Meade v Queensland Ambulance Service

[1996] QSC 62

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No. 1414 of 1995

Before the Hon Justice White

[Meade v. Queensland Ambulance Service]

BETWEEN:

GRAHAM CHRISTOPHER MEADE
  Plaintiff

AND:

QUEENSLAND AMBULANCE SERVICE
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 24/04/1996

CATCHWORDS      REVIEW of Taxation of Costs - Four similar chamber summonses - Same solicitor and counsel for respondents/plaintiffs - Four bills of costs  - Apportionment - Approach - R. v. Hore, ex parte Brisbane City Council

Counsel:Mr P Dwyer for applicant

Mr P Gorman for respondent

Solicitors:Crown Solicitor for applicant

Watts & Company for respondent

Hearing date:    19 April 1996

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No. 1414 of 1995

[Meade v. Queensland Ambulance Service]

BETWEEN:

GRAHAM CHRISTOPHER MEADE
  Plaintiff

AND:

QUEENSLAND AMBULANCE SERVICE
  Defendant

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 24/04/1996

This is an application to review the taxation carried out by a taxing officer of this Court in respect of a bill of costs pursuant to O.92 r.119 of the Rules.  Objections were taken to a great number of items in the bill, the taxing officer answered the objections allowing a small number and declining the bulk of them.  A review of those items, the objections to which were disallowed, is sought on this application for review.  Three other bills, almost identical, were brought in at the same time.  They were not then taxed by the taxing officer but were considered by him when taxing the subject bill and need to be considered on this application.
Background
           On 4 August 1995 four Supreme Court writs of summons were filed in the Brisbane registry being writs numbered 1414, 1415, 1416 and 1417 of 1995.  In each writ Queensland Ambulance Service ("the Service") was named as the defendant and the solicitor on the record for each plaintiff was Watts & Company.  The endorsement on each writ is for damages for personal injuries caused by the negligence and/or breach of contract and/or breach of statutory duty of the Service arising out of incidents occurring in 1992 and subsequently.  The writs were served on the Service and the Workers' Compensation Board of Queensland on 9 August 1995.
           On 14 August 1995 the Crown Solicitor received by facsimile transmission copies of the writs from the Workers' Compensation Board.  On the following day the Crown Solicitor received copies of the writs from the Service.  The Crown Solicitor was instructed by the Service to enter appearances on its behalf in respect of all the writs.  Due to administrative matters within the office of the Crown Solicitor no action was taken on those files until 22 August 1995 when an entry of appearance in respect of each matter was filed in the Supreme Court registry.  Two hours earlier the solicitor for the plaintiffs had obtained judgment in respect of each action in default of appearance against the Service with damages to be assessed.  The first that the Crown Solicitor knew of the judgments was from an article which appeared in the "Courier-Mail" on Monday, 28 August 1995.  A search of the court files then revealed that that had indeed occurred.  By letter dated 28 August 1995 the plaintiffs' solicitor wrote to the Service including a copy of the default judgment in each action and sought the identity of the Service's solicitor so that arrangements could be made for the assessment of damages.
           The Crown Solicitor wrote immediately to Watts & Company indicating that he acted on behalf of the Service in those actions and enclosed the entries of appearance by way of service.  He notified Watts & Company that the Service proposed to apply to the Supreme Court in each action seeking orders setting aside interlocutory judgment together with costs.  The Crown Solicitor quoted an extract from the "Courier-Mail" article in which was stated

"Four officers Shaun Clark, Graham Meade, John Brotton and Michael Jerez, have won a judgment in default after the Workers' Compensation Board, which insures the QAS, failed to respond to the writ.  The judgment is expected to be set aside so the Board can defend the QAS."

The Crown Solicitor asked in light of this comment if the plaintiffs' solicitor would be prepared to consent to orders setting aside the judgments.  The solicitor for the plaintiffs was not disposed to consent to the setting aside of interlocutory judgment believing, as his subsequent affidavit revealed, that the Commissioner of the Service had made an admission of liability in a radio interview.
           A summons to set aside a regularly entered judgment and supporting material in respect of each of the four judgments was served upon Watts & Company on 30 August 1995.  The summons was heard before Helman J in Chambers on 11 September 1995.  I have been informed from the Bar table that the hearing of those applications occupied approximately one hour.  They were strenuously opposed.  The statements of claim filed in support of the judgments in default of appearance alleged that the Service failed to provide a safe system of work in that "wilful, malicious, unfair and improper conduct" of the Service caused each plaintiff to suffer stress-related illness such that he was unfit to continue working for the Service.  His Honour ordered that the interlocutory judgments entered by the plaintiffs against the Service on 22 August 1995 be set aside and that the Service pay the costs of and incidental to each plaintiff of the application to be taxed.  Bills were delivered by Watts & Company in taxable form to the Crown Solicitor on 11 October 1995 in the following amounts:

•Meade v. Queensland Ambulance Service  $3,569.96

•Jerez v. Queensland Ambulance Service  $2,908.49

•Clark v. Queensland Ambulance Service  $2,932.31

•Brotton v. Queensland Ambulance Service  $3,471.56

That was a total of $12,882.90.  An appointment was made for taxation of those bills.
The Taxation
           Mr Gorman of counsel who had appeared on the chamber summonses appeared on behalf of the four plaintiffs on the taxation and a solicitor in the office of Crown Solicitor appeared on behalf of the Service on 3 January 1996.  Prior to the commencement of the taxation the taxing officer discussed its conduct and it was agreed that the bill in respect of Writ No 1414 of 1995, the Meade writ, would be taxed that day and the other bills adjourned.  At the commencement of the taxation the taxing officer advised that he would apportion the costs allowed as between the four matters.
           The taxing officer taxed and allowed the Meade bill at $2,220.57 and allowed 14 days for objections.  Those were filed on 17 January 1996.  On 22 March 1996 the taxing officer answered the objections.  He allowed a small number and taxed off a further $40.47.  The amount of the bill then allowed was $2,173.57.
           Each bill contains a notation:-

"WHERE COSTS ARE COMMON TO ACTION NO 1414 OF 1995, 1415 OF 1995, 1416 OF 1995 AND 1417 OF 1995 SUCH COSTS HAVE BEEN APPORTIONED."

The Service submits that whilst the taxing officer has apportioned some items between the four bills others were not and an inconsistency in approach is thus revealed.  Mr Dwyer for the Service has prepared a schedule of the challenged items showing the item number in each of the other bills which is the same as the challenged item in Writ No 1414 of 1995 and I shall append that schedule to these reasons.
Principles on Taxation
           Both parties, as indeed did the taxing officer, accept that the overall principle to be applied in the circumstance where the same solicitor and counsel act in two or more applications heard together and involving substantially the same issues may be derived from R v. Hore, ex parte Brisbane City Council [1969] QD R 75 particularly at p. 91. Hoare J with whom Hanger and Stable JJ agreed said at p. 91:

"Where there are a number of appeals involving precisely the same points, if there has been an early agreement to have them heard together, it would be quite unrealistic to allow a full fee on brief on each appeal and comparable solicitor's costs.  Depending on the particular circumstances, in such a case both in respect of the fee on brief and refreshers, I should think that a normal full fee should not be allowed on each separate appeal.  On the other hand, I should think that usually it would be equally incorrect to allow only a total fee of an amount appropriate to one appeal only.  Generally speaking (and again depending on circumstances) it would appear appropriate that some moderate increase be made in the proper fee for one appeal and an apportionment of the total among all appeals would, I think, be quite justified.  It seems to me that a similar approach would be the correct one on relevant items of solicitor's costs."

This reflects the view in Oliver, The Law of Costs (1960) pp. 67 and 110 where it was recognised that the Victorian practice was different from that prevailing in New South Wales where the practice was not to apportion.  See also Boguslawski v. Gdynia Ameryka Linie (No 2) [1951] 2KB 328 where the earlier decision in Oppenshaw v. Whitehead (1854) 9 Ex. 384 that where two actions had been fought and won on substantially the same ground for two plaintiffs the attorney was entitled to the same charges as if two different attorneys had been employed, was doubted. It seems clear as a consequence of the approach in Hore that it is not necessary that the actions or applications be consolidated or that one is run as a test case before apportionment can occur.  Hore reflects that in a practical rather than a formal sense there be no double charging.
           Other matters of general principle should be mentioned.  Perusal of a document means more than simply looking at it.  Perusal of a document means a consideration of its contents.  The comparison of an affidavit or any other document with a number of identical affidavits or other documents is therefore not a perusal, Betts v. Cleaver (1872) LR 7 Ch 513; Oliver, op cit, 214.  Neither can a solicitor charge for perusing a document drawn by that solicitor, Richards v. Watts (1866) 1 QSCR 143 at p. 145 per Cockle CJ.  "Drawing" is the application of the mind to the preparation of the document, not the actual writing, Re Marsland (1890) 4 QLJ 3. It implies composing and writing the document, it does not include any part of a document which is merely a copy of another document, Oliver, pp. 206-7.
           There is no hard and fast rule as to when counsel's fees for settling an affidavit or other document will be allowed but unless the matter is of some complexity or of evidentiary difficulty, in a straight forward case a solicitor who purports to practise in the jurisdiction ought not require the assistance of counsel to settle such affidavits.  See examples in Oliver, pp. 111-3.
           An item of charge for care and consideration is generally intended to recompense the solicitor for work which is not covered by specific items.  It includes the skill, knowledge and care and responsibility involved.  There must be something over and above that for which specific charges can be claimed.
           I now turn to the specific items.

•Item 21

This relates to a telephone call to journalists with a newspaper and with a radio station relating to admissions allegedly made by the Commissioner of the Service.  This was done to ascertain if the plaintiffs could hold a position that there was no defence to the allegations and only quantum was in issue.  The taxing officer allowed those claims apportioned between each of the four actions.  Whilst as a matter of practical commonsense one would not conclude that the transcripts of what Dr Fitzgerald had said on the radio would be regarded as an admission of liability pursuant to O.36 r.5, nonetheless the allowance of this item does not seem to involve any wrong principle.  The amount is not unreasonable.

•Items 22, 73 and 80

These items relate to obtaining a transcript of a taped interview and preservation of the tape.  The same observations apply as to Item 21.

•Item 29

This item is the charge for perusal of the defendant's summons to set aside the judgment.  The bill did not seek to apportion - the taxing officer did.  However he allowed the total amount charged noting that the same amount was charged in respect of each summons.  He concluded that even if some allowance were made simply for comparing and examining each of the four summonses (the summons being of three folios) a total claim of $16.80 was reasonable.  The same approach of apportionment ought to have been taken.  A quick glance at the other three summonses would have been sufficient to see that they were the same.  Some reduction ought to have been made.

•Item 31

This relates to the perusal of the affidavit in support of the summons.  It is of 13 folios.  The bills of costs charge separately for perusing each affidavit.  The four were apparently identical save for the heading.  $18.20 was claimed on each bill.  That is the ordinary allowance for perusal of a document of that length.  The taxing officer concluded that because of the similarity of the affidavits it was unreasonable to allow the full charge in respect of each.  He was of the view that there was additional work in handling and considering the other three documents and did not accept that there should be no allowance for this additional work.  The taxing officer doubled the usual fee and divided it by four making an allowance of $9.10.  In my view it was not reasonable to double the cost for perusal.  No more than one and a half times the cost divided by four would have been the maximum.

•Item 33

That item relates to perusal of an affidavit in support of the summons of six folios.  The amount charged was $8.40 on each bill, the usual charge for that item.  The taxing officer approached this in the same way as Item 29 on the basis that it was a relatively small amount and to multiply it by four was not unreasonable.  In my opinion it was unreasonable to approach this item in that way and the approach to Item 31 set out above should have been taken.

•Item 34

Again that item related to examining the exhibits to the above affidavit and the same approach as to Item 33 should have occurred.

•Item 36

That item related to perusing a further affidavit.  In that case the taxing officer allowed half on the same basis as he did in Item 31.  For the reasons which I have given in respect of Item 31 I think it was unreasonable to make such a generous allowance.

•Item 37

This item concerned examining the exhibits to the above affidavit.  The total amount was allowed on the same basis as Item 29, namely, that it was a reasonable sum.  I do not accept that that was a reasonable approach and it should have been as set out above in respect of Item 29.

•Item 62

This item was for photocopying the affidavit of service for counsel's brief of nine folios.  This was an application to set aside a judgment regularly entered.  There was no suggestion in the correspondence that any issue was taken with respect to service or any irregularity.  It was unnecessary to brief counsel on each of the four applications with the affidavit of service.  A line in the instructions to counsel would have sufficed.  It ought not to have been allowed.

•Item 64

This item relates to photocopying the statement of claim for counsel's brief.  A statement of claim was filed in respect of each judgment as required by the Rules.  It was reasonable that counsel be briefed with each statement of claim and the taxing officer was correct in allowing that item.

•Items 67 and 68

This item concerned the drawing of a brief to counsel of six folios in respect of each application.  The taxing officer after objections taxed off an amount by reference to apportionment.  Four applications were served each with its supporting material on the solicitor for the plaintiffs.  There is of course no objection to the solicitor keeping four separate files for each of the plaintiffs.  It would be unusual not to do so.  It seems to me however that four separate briefs to counsel results in unnecessary expense.  Where documents were different in each action they should of course have been included in counsel's brief but the summonses and the supporting affidavits were the same except for the headings.  Judgment and moderation needed to be exercised in the incurring of costs and in my view if four briefs were to be allowed then some reduction ought to have occurred upon taxation.

•Item 76

This item was an enquiry by the plaintiffs' solicitors to ascertain the number of legal officers in the Crown Solicitor's employ in Brisbane.  This was to respond to the explanation for the failure to put in an entry of appearance in each action.  The plaintiffs' solicitor pointed out that he was a sole practitioner who employed no other solicitor and was able to do his work.  Whilst he might have felt some indignation that a big organisation such as the Crown Solicitor's office could overlook such an important matter as filing an entry of appearance, nonetheless it did not seem to me to be a particularly sensible way of seeking to persuade the court that the administrative arrangements within the Crown Solicitor's office which led to this failure would not be a good reason for setting aside the judgment on that ground alone.  Nonetheless it does not seem to have been an unreasonable exercise of the taxing officer's discretion to allow that amount.  It has been apportioned but I would suggest that the amount could be looked at again.  $4.15 has been charged and allowed in respect of each of the bills of cost.  Only one letter would have had to be written.

•Items 82-96

These items concern the plaintiffs' solicitors affidavit in response to the material filed by the defendant.  The notice of objection apparently was to the effect that because the application was made by the Service the onus was on them and that the plaintiff should simply have attended and made submissions and not filed responsive material.  The taxing officer concluded that it was reasonable that the plaintiff reply by way of affidavit.  He concluded that four folios were unnecessarily included being more properly submissions and those pages were taxed off and the cost reduced to accommodate this.  The affidavits were the same for each of the four matters, were of 22 folios and were charged on each of the bills at $101.20.  An amount of $80.50 was allowed.  I agree with the taxing officer that an affidavit responsive to the application was not inappropriate.  However since they were the same the taxing off of only $20 does not seem to me sufficient.  Only the title pages and the backing sheets for the exhibits would have been extra work.  A greater reduction ought therefore to have occurred.

•Item 86

Counsel apparently charged $1,000 to settle the solicitor's affidavit.  An amount of $250 was allocated to each of the four bills of costs.  The taxing officer concluded that it was excessive and should be apportioned between the four actions although he notes that by allocating $250 to each bill that it was in fact apportioned.  The taxing officer reduced the fee to $480 for settling the four identical affidavits and apportioned it equally between the four actions.  There is a degree of over-anxiety in briefing counsel to settle a straight forward affidavit in response to an application to set aside a regularly entered judgment.  I cannot conclude however that it was so unnecessary as to be unreasonable but would incline to the view that even $480 is excessive to settle what is a document without complexity both as to the matters that needed to be covered and evidentiary issues where counsel's opinion might be well be sought.  It could be reduced further.

•Item 100

This item relates to a telephone call to counsel advising as to the filing and service of affidavits and arrangements for the hearing that day.  It is apportioned across the four bills at $2.65.  The taxing officer's approach, bearing in mind the alternatives that were available to the plaintiffs' solicitor, was reasonable.

•Item 102

This item relates to counsel's fee on brief.  It is not expressed in the bills to be apportioned but that must have occurred since counsel charged $1,250 on the Meade brief and $625 on each of the other briefs.  The total amount was $3,000.  The taxing officer allowed $1,900 which he then apportioned between the four bills in an amount of $775.  It is clear that the taxing officer apportioned in accordance with the principles enunciated in R v. Hore.  He could consistently have fixed a reasonable fee for one application, added something to reflect that there were four applications, substantially the same, and allow nil for the fee on brief on the three other applications when taxed.  The taxing officer notes that the hearing occupied an hour and that the pleadings which were different in each action needed to be considered.  Whilst the defence of the Service to each of the claims was a matter about which the chamber judge needed to be satisfied the distinctions between the four actions as to liability on an application of this kind did not require detailed analysis of each statement of claim.  The taxing officer noted in his answers to objection that the application was of great importance to the plaintiff.  There is no argument with that.  As he noted, success to the Service would mean that full actions would have to be run on behalf of each of the plaintiffs.  Whilst an amount of $1,900 for what is a relatively straight forward application might not be an amount which I would allow I cannot conclude that the taxing officer's discretion miscarried to the extent that it ought to be reviewed.  Further he is regularly made aware of what counsel charge in the Supreme Court for chamber applications and applies that knowledge.  I do not think, as was submitted, that the upper scale for District Court chamber applications is of great assistance.

•Item 106

This item related to an attendance at the registry to collect the sealed copy order.  The taxing officer has reconsidered that matter and has concluded that there was no reason why more than one attendance would be necessary to collect all four orders.  Each were charged separately.  He reduced this item from $16.60 to $12.45.  Since, as he notes, the orders are kept in a folder at the counter and are readily available it is difficult to understand why an amount of $12.45 apportioned, that is, attributable to each of the files was allowed.  That seems to me to be excessive and the apportionment should be in the vicinity of $20 for the whole attendance.

•Item 109

This item is for care and consideration.  The total claim in all four actions is $1,200, was reduced on taxation to $950 and then apportioned between the four matters.  The taxing officer concluded that this was a serious matter for the plaintiffs, that there was not an excessive reliance upon counsel and that the plaintiffs rightly had concerns as to the merits of any defence.  The plaintiffs' solicitor had to meet an allegation that was critical of his firm's failure to give prior warning of the intention to obtain default judgment either as a matter of professional courtesy or as ethical conduct.  That would be a matter of concern for any solicitor and it was appropriate to answer it.  The taxing officer described this item as recompense to a solicitor for work done unable to be specifically claimed elsewhere in the bill.  He notes that it includes skill, knowledge, care and responsibility.  Any research or considerations as to options or courses of conduct are also gathered up here, as well as the commercial profit element.  It incorporates the "anxiety factor" involving co-ordinating and preparing for instructing at the hearing.
           In my view the amount charged for care and consideration even when taxed off to $950 seems high when one looks at the balance of the bill, the use that was made of counsel to settle material and the failure to select, in a practical sense, relevant documents for the brief(s).  However with some items above reduced then it cannot be concluded that the amount allowed is unreasonable.

•Item 110

This item relates to drawing the bill of costs.  The taxing officer has noted that there is a degree of duplication in the four bills.  The taxing officer allowed the bill in Meade at 23 folios in lieu of the 47 claimed taking into account the items taxed off the bill.  He allowed an additional 23 folios in respect of the additional work involved in drawing the other three bills and then apportioned the final amount between the four actions.  There is no basis for disturbing his approach.

•Item 111

This relates to engrossing the bill.  Twenty-three folios were allowed by the taxing officer as each of the four bills must be separately printed out.  There is no basis for disturbing this amount.

•Item 112

This is an item for photocopying the bill to serve which was reduced to 8 folios on taxation from 13.  No further reduction seems to me to be required.

•Items 119 and 121

These items were allowed in part and no further attention need be given to them.
Conclusion
           While the solicitor for the plaintiffs/respondents could have delivered one bill for all four applications, nothing compelled him to do so.  Generally, the taxing officer approached the taxation on the correct principle, although in some instances did not apportion where that ought to have occurred.  In the result the total amount across the four bills is higher than it ought to be.  The particular sums are often in relatively small amounts but the principle ought nonetheless be applied.
           This is a review of the exercise of a discretion and whilst I might have a different view as to some items nonetheless it cannot be concluded that the taxing officer's discretion miscarried in a number of items as was urged by the applicant.
           The four bills which were delivered at nearly $13,000 in a far from difficult or complex chamber application might suggest that some of the blame for the high costs of civil litigation rests with the system of costing.  It is a system which was devised when all documents were copied by hand and were necessarily few in number.  That system does not appear appropriate in a era governed by the photocopier, laser printer and word processor.
           The applicant has been successful on a number of items but not on some of the larger items which were contested.  Although I expressed a different view at the hearing as to who should bear the costs of this application, on reflection I have concluded that the respondent ought to pay two-thirds of the applicant's taxed costs of and incidental to the application for review.
           I do order that the taxing officer review his taxation of the bill of costs herein in accordance with these reasons.
           I further order that the respondent pay two-thirds of the applicant's costs of and incidental to the application for review to be taxed.  The respondent is granted an indemnity certificate pursuant to s.15 of the Appeals Costs Fund Act 1973 in respect of the order of review.