Paragreen v Lim Group Holdings Pty Ltd
[2021] VSC 376
•28 June 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COSTS COURT
S ECI 2020 03492
| MICHAEL ANDREW PARAGREEN | First Applicant |
| and | |
| JUSTINE KIMIKO PARAGREEN | Second Applicant |
| v | |
| LIM GROUP HOLDINGS PTY LTD (ACN 074 598 646) | Respondent |
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JUDGICIAL REGISTRAR: | GOURLAY JR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 28 June 2021 |
CASE MAY BE CITED AS: | Paragreen & Anor v Lim Group Holdings Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 376 |
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COSTS COURT – Application to record and transcribe hearing of party/party Taxation of Costs – Review of Order of Costs Registrar pursuant to s 17H Supreme Court Act 1986 refusing application made during the course of the taxation.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Boris Pogoriller Solicitor | |
| For the Respondent | Mr S Warne | Castra Legal Costing Pty Ltd |
JUDICIAL REGISTRAR:
The Applicants filed a Summons for Taxation seeking taxation of legal costs ordered to be paid by the Court of Appeal on 27 April 2020 in proceeding S APCI 2018 0163. The bill claimed the professional costs of the appeal in the sum of $80,453.52, disbursements incurred for the appeal, including Counsel’s fees, in the sum of $66,330.53, professional costs of the Summons for Taxation in the sum of $13,081.60 and a filing fee of $440.00, being a total of $160,921.13.[1] The item within the bill to draw the bill of costs claims the sum of $11,306.70. The path for conduct of the taxation of the bill has been extremely convoluted, including:
[1]Counsel’s fees in the bill are claimed in full, however the bill notes that Counsel gave the Applicants a discount of $9,250.00, reducing the claimed costs to $151,396.13.
(a) On the filing of the Summons for Taxation on 2 September 2020, in accordance with the Costs Court’s usual practice, the matter was listed for a mediation on 7 October 2020.
(b) The Respondent filed and served a Notice of Objection to the bill on 8 October 2020.
(c) On 14 October 2020 the Applicants’ solicitor filed correspondence attaching two without prejudice offers of compromise and a Calderbank offer.
(d) On 15 October 2020 the mediation was held, but was not successful in reaching an agreement as to the amount of cost to be paid.
(e) On 22 October 2020 a telephone directions hearing was held and orders were made referring the bill of costs to an assessment:
The taxation of the bill of costs will proceed pursuant to Part 8 of the Supreme Court (General Civil Procedure) Rules 2015 and be assessed in accordance with Rule 63.88 on 16 November 2020 or as soon as practicable thereafter.
(f) On 11 November 2020 the Applicants’ solicitor wrote to the Costs Registrar who was to conduct the assessment detailing a further open offer made on 15 October 2020.
(g) On the same day the Applicants’ solicitor filed an addendum bill of costs seeking additional costs in the sum of $14,051.67, including the sum of $3,547.20 to draw and engross the addendum bill and disbursements of $369.10.
(h) On 17 November 2020 the Respondent filed and served its Notice of Objection to the addendum bill.
(i) On 25 November 2020 the parties were advised that the total costs had been estimated as $91,205.00.
(j) The same day the Applicants filed and served an Objection to the estimated sum requesting the matter proceed to a taxation.
(k) A mention was held on 11 December 2020 and the taxation was listed to be heard on 8 and 9 February 2021.
(l) On 8 February 2021 the Applicants filed and served written submissions in response to the Respondent’s Notice of Objections.
(m) The taxation proceeded on 8 February 2021, 9 February 2021 and 18 February 2021 (days 1, 2 and 3).
(n) The taxation was listed for further hearing on 3 and 4 March 2021 (days 4 and 5).
(o) On 1 March 2021 the Applicants, by email to the Costs Registrar conducting the taxation of costs, renewed the application that the remaining listed days be recorded.[2]
(p) After an exchange of emails between the Costs Registrar and the parties the Costs Registrar made orders refusing the application to record the remaining days of the taxation and adjourning the listed hearing days pending an application to review that order.
(q) On 15 March 2021 the Applicants filed a Notice of Review of the Costs Registrar’s order refusing to permit a recording be made of the remainder of the taxation.
[2]The parties submissions both refer to repeated oral applications being made on days 1, 2 and 3 of the taxation, each of which was denied by the Costs Registrar.
From the parties submissions it is apparent that the Applicants made oral applications on 8, 9 and 18 February 2021 that the Costs Registrar record the taxation. On 18 February 2021 while considering the application the Costs Registrar used the recording function in Zoom for at least part of that day. However, the Costs Registrar later ruled that the remaining hearing days would not be recorded. On 1 March 2021 the Applicants renewed the application by an email requesting that the taxation on 3 and 4 March 2021 be recorded for the purposes of producing an authorised transcript of the proceeding.[3] After an exchange of emails between the parties the Costs Registrar refused the application. The order, made that day, includes in Other Matters the Costs Registrar’s reasons for the refusal, as follows:
[3]Email from the Applicants’ solicitor to the Court dated 1 March 2021.
On 18 February 2021, the taxation (via Zoom) of the Applicants’ claim for costs pursuant to the order of the Court of Appeal made 27 April 2020 in proceeding No S APCI 2018 0163 was adjourned part-heard to 10.00 am on 3 and 4 March 2021.
By letter dated 1 March 2021 emailed to the Court at 11.11 am, the Applicants’ Solicitor requested that the taxation on 3 and 4 March 2021 “be recorded for the purposes of producing an authorised transcript of the proceeding”. The basis of the request was stated to be the Applicants’ inability to observe the taxation and reference was made to the principles contained in the Open Court Act 2014 (Vic). The Applicants sought an adjournment of the taxation on 3 and 4 March 2021 in the event the application was not granted to allow an appeal to be made against the ruling. Written reasons were requested.
By email received at 12.37 pm, the Respondent’s solicitor wrote to the Court setting out what I considered to be submissions opposing the Applicants’ request to record the taxation. The Respondent contended, amongst other things, that the Applicants had “failed to provide cogent reasons for the recording of the taxation”, noting that the Applicants were entitled to attend the taxation.
In response, the Applicants’ solicitor made further submissions by email received at 1.00 pm. It was contended on behalf of the Applicants that a transcript would facilitate the review of rulings made in the course of the taxation. The Applicants argued that transcribing the taxation would not delay the taxation or prejudice the Respondent in any way, noting that the costs of the transcript would be borne, initially at least, by the Applicants.
I wrote to the parties at 2.46 pm. In my very brief reasons, I noted that it was not the practice of the Costs Court, and never had been, to order transcripts in taxations without cogent reasons for doing so – referring to the fact that a taxation in the Costs Court was not regarded as a “civil trial”. I further noted that the decision to approve the recording of a taxation was at the discretion of the presiding taxing officer. I refused the Applicants’ request to allow the further hearing of the taxation of costs to be recorded on the basis that the Applicants had not provided any persuasive reasons for doing so. I confirmed that the Applicants were, of course, free to attend the taxation via Zoom. I also, initially at least, refused the application to adjourn the taxation.
At 3.33 pm, a further letter was sent to the Court on behalf of the Applicants. In addition to requesting that my ruling be recorded as an order of the Court, the Applicants’ solicitor made further submissions regarding the adjournment of the taxation fixed for 3 and 4 March 2021. The Applicants’ solicitor confirmed that he had instructions to file a notice of review in respect of my refusal to allow the taxation to be recorded. The Applicants submitted that “a refusal to adjourn the taxation for a period required to determine the review would render the review nugatory” and that the “balance of convenience favours a stay”. The Court was advised that if the taxation was not adjourned, the Applicants would make an application to the Practice Court seeking orders staying the taxation pending the review of my decision not to allow the taxation to be recorded.
In an effort to save the parties the time and cost of a stay application before the Practice Court, I wrote to the Respondent inquiring as to its position in relation to the Applicants’ adjournment application. By email received at 4.24 pm, the Respondent consented to the adjournment of the taxation on 3 and 4 March 2021.
The order that this review relates to states:
1.The Applicants’ application to record and transcribe the taxation of costs is refused.
The Notice of Review pursuant to s 17H of the Supreme Court Act 1986 (Vic) applies to set aside that order and that I order that the remaining days of the taxation be recorded and transcribed. On 23 March 2021 I made orders allowing the Applicants to file and serve an amended Notice of Review, if so advised, for the parties to file and serve written submissions and directing that the matter be determined on the papers. The amended Notice of Review was filed on 6 April 2021 and the parties written submissions were filed shortly after.
The Applicants’ submissions
The Applicants submit that the order is a procedural order and a final determination that is wrong in law. The Applicants submit that there are clear and cogent reasons to record the taxation as follows:
36In oral submissions made on 8 and 9 February 2021 the Applicants submitted to the Court that recording the proceeding would:
36.1.(a)facilitate the just and efficient determination of the real issues in dispute;
36.1.(b)narrow down the issues, including the scope of ambit and generic objections made to almost every item in the Applicants’ bill;
36.1.(c)record the ultimate position adopted by the Respondent in respect of each generic objections raised without providing any alternative for the disputed item; and
36.1.(d) would record rulings made with respect to items assessed other than pursuant to Scale in Appendix A.[4]
[4]Applicants’ written submissions at paragraph 36.
I understand that the application to record the taxation was made orally several times on the first three days of the hearing and repeated and expanded on in the emails sent to the Costs Registrar on 1 March 2021. The Costs Registrar refers to these emails in his reasons, reproduced at paragraph 2, above. The Applicants submit that:
... the Registrar otherwise failed to consider any of the Applicants’ Reasons, above, placed before the Court.[5]
[5]Ibid, paragraph 38.
It was also submitted that it was not open to the Costs Registrar to fail or omit to consider the Applicants’ reasons or to conclude that the Applicants had failed to provide any persuasive reason in support of their application.[6] The Applicants submit that the Costs Registrar made errors of law as follows:
[6]Ibid, paragraph 39-40.
(a) The Costs Registrar took into account irrelevant considerations in deciding not to allow recording and transcript as:
(i) The Costs Registrar stated that in cases where a recording of taxations has occurred it was done in response to cogent reasons for doing so presumably existed. The Costs Registrar relied on unspecified decisions of the Court in making this decision.
(ii) The Costs Registrar relied on the usual practice of the Costs Court not to record and transcribe taxations of bills of costs. The Applicants submit that the conventions and practices adopted by a Court are not relevant to the exercise of a discretion.[7]
[7]Ibid, paragraph 49-50.
(iii) The Costs Registrar relied on the fact that Mr Sizenko, an experienced costs lawyer, and Mr Pogoriller, as the instructing solicitor, appeared at the taxation and that they would be able to explain the rulings of the Costs Court to them. The Applicants submit that the Court should allow litigants to utilise all available technological resources and a denial of the use of these resources restricted access to the Court.[8]
[8]Ibid, paragraph 54-61.
(b) The statement by the Costs Registrar that a taxation of a bill of costs is not a civil trial was wrong in law as the Costs Court sits within the civil jurisdiction of the Supreme Court.
(i) That determination was contrary to the power of the Costs Court to regulate its own practice and conduct.[9]
[9]Section 17D(2) of the Act.
(ii) The Supreme Court Act1986 (Vic) (‘the Act’) at s 17C establishes the Costs Court within the Trial Division. Section 25(ae) of the Act empowers the Judges of the Court to make Rules for the conduct of proceedings to further the overarching obligations of the Civil Procedure Act 2010 (‘the CPA’).
(iii)Section 24 of the Act provides that costs are in the discretion of the Court and Order 63 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) applies to costs payable or to the be taxed pursuant to orders of the Court to be exercised in accordance with the procedures in Order 63.
(iv) Nothing in the Act or the Rules or the CPA suggest that a taxation of costs is not a civil proceeding. A taxation must therefore be conducted pursuant to the procedure in the Act and the Rules. The statement made by the Costs Registrar that a taxation is not a civil trial constitutes a separate error of law.
The Applicants submit that each of the errors referred to in paragraph 7, above, are errors of law that amount to a failure by the Costs Registrar to exercise his discretion and that Order 1 of the 1 March 2021 order must be set aside.
Further, the Applicants argue that the Court should order that the remaining days of the taxation should be recorded because:
(a) The Applicants are far more affected by the outcome of the taxation than usual commercial litigants who have the benefit of a costs order in their favour, as follows:
The Paragreens interest in this proceeding is compensatory. The Costs Orders operate to offset and repair, so far as it is possible, the adverse effects of litigation instituted by Lim Group against the Paragreens.[10]
[10]Applicants’ written submissions at paragraph 86.
(b) The Applicants were successful in defending the title to their home in the County Court and the Court of Appeal and the amount of legal costs incurred by them should be recovered as far as the orders allow.
(c) The Applicants are concerned that the Costs Registrar may be assessing the bill on a basis other than provided for in the costs order.[11]
[11]Ibid, paragraph 93.
(d) The proceeding should be recorded as it is just, fair and reasonable to do so where the technology is available and accessible. The transcript will facilitate and expedite the determination of the real issues in dispute. The recording would assist the parties in the conduct of the taxation and prevent arguments about the rulings made.
(e) Recording the taxation would relieve the parties of the need to take notes of the hearing, including notes of the submissions made by both sides and of the rulings made.
(f) The transcript will assist with any review of the taxation should a review be required.
(g) A recording will elucidate and confine the Respondent’s objections and record the Costs Registrar’s rulings, including rulings on jurisdictional matters. The Applicants object to earlier rulings allowing the Respondent to participate in the taxation without having filed and served a proper Notice of Objections as is required by paragraph 7.5 of the Costs Court Practice Direction. The Respondent has not, in its Notice of Objection, advanced any alternative reasonable amounts by reference to the Scale. They submit that the Notice of Objection should be disregarded as in its present form it has lengthened the taxation.
(h) Any handwritten file notes made by the parties will create further disagreement and place the credit of the legal practitioners involved in issue.
(i) The Costs Registrar made incorrect rulings and exercised discretions incorrectly based on the scale on days 1 – 3 of the taxation it was submitted. These rulings apply to some of the large items in the bill. These rulings were made on a basis other than the Scale and are beyond power or made in error. If the future hearings are not recorded the Applicants will not be able to identify and formulate appropriate grounds for review if further impugned rulings occur.
The recording of the remaining days of taxation will enable justice to be seen to be done. There is no prejudice to the Respondent and no reason not to record the taxation. The recording would not delay the taxation and would not prejudice the Respondent in terms of the costs of the taxation.
The Applicants submit that they should be granted leave to review the order and an order in its place should be made that the remaining days of the taxation be recorded.
The Respondent’s submissions
The Respondent opposes the orders sought, but for the purpose of the review the Respondent submits:
3. Nevertheless, the Court should in this particular case give dispensation from the requirements of r.63.91(1)(a), because of the circumstances that:
(a) the taxation has been adjourned, part-heard, by consent pending the review;
(b) the Court has received full written argument;
(c) the parties are content for the review to be conducted on the papers; and
(d) the matter has been fixed for hearing of the leave application concurrently with the hearing of merits argument in the event that leave is granted,
so that it is as well to get on with it and have the question determined, especially since the review is a de novo hearing: r.63.91(9) at least to the extent required given the delineation of issues provided for by r.63.91(4).[12]
[12]Respondent’s written submissions dated 20 April 2021 at paragraph 3.
The Respondent submits that the Applicants did not apply for the recording of the taxation using the Zoom record function or that any such recording be made available for transcription. If that had been the application the outcome may have been different.
The Respondent further submits that it appears likely that the Applicants will review the final orders after the conclusion of the taxation and that the Court should not make orders that will encourage any review of the taxation orders by the Applicants as:
the availability of the record function within the Zoom platform provides a free opportunity to provide a high-quality recording so that the technical anxieties of courts in the reported cases on the question of informal recordings of otherwise un-recorded court hearings, about single-microphone store-bought tape recorders in the pre-Zoom era are greatly lessened.[13]
[13]Respondent’s written submissions dated 20 April 2021 at paragraph 29.
However, the Court needs to consider whether the use of the recording and transcript is justified or if a recording and transcript are made that the transcript will have limited utility. The Court has discretions contained in s 47 of the CPA, to further the overarching purposes of the CPA to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute. Section 47 provides that:
(1) Without limiting any other power of a court, for the purposes of ensuring that a civil proceeding is managed and conducted in accordance with the overarching purpose, the court may give any direction or make any order it considers appropriate, including any directions given or orders made-
(a) in the interests of the administration of justice; or
(b) in the public interest.
Allowing a recording will only encourage the Applicants to seek to review the orders made and would be both in efficient and would not greatly increase the costs of the taxation. The Court should bear in mind that the likely cost of the recording and transcription are not justified in the taxation of a relatively small bill and that the Respondent as the paying party is likely to have to pay those costs, even though these costs are not usually incurred costs in party/party taxations. Auscript indicates that its charges a minimum of $950 a day for transcript and in some cases the charges are much more.
The Applicants appear to intend to use the transcript to obtain the Costs Registrar’s rulings. However, the contractual arrangement between the Court and Auscript prevents the distribution of transcripts of rulings without revision and reasons must be provided by the Court to the parties directly.[14]
[14]Attachment 3 of the Respondent’s written submissions.
The costs of this matter are already high as there has been both a mediation and an assessment. The original proceeding was not unusual and does not warrant any further additional unnecessary costs being incurred.
The submission by the Applicants that the transcript is needed because they were unable to attend the previous Zoom hearings is incorrect. All Costs Court hearing are public hearings and any party, including the Applicants, are able to attend a virtual hearing. This can be achieved by the Applicants’ solicitor requesting a link be forwarded to them directly or by the solicitor forwarding the link sent by the Costs Registrar to him each day. This did not occur. All taxations are open hearings and the Open Courts Act 2013 is not applicable. The hearing is advertised in the Daily List which includes a link that enables interested people to view hearings.
The transcript will not assist on a review of the taxation as:
45. Returning to the sole argument with any merit, it becomes apparent that this is not a case where transcript will in fact assist on review, even though many times a transcript of a first instance hearing will assist in any review or appeal other than a de novo hearing.
46. Since any transcript would not include the rulings made by the Costs Registrar, its utility would be nil, since taxation hearings typically comprise a running series of rulings.
47. In this case, the Costs Registrar has indicated that he will provide written reasons for determinations which the applicants seek to review, as recorded by the respondent’s solicitor in her email to the Court in the nature of submissions on 1 March 2020 and not cavilled with by the applicants’ solicitor in his reply to the Court that day.[15]
[15]Respondent’s written submissions at paragraphs 45-47.
It is common practice in the Costs Court that when rulings are made they are able to be reopened if the Costs Registrar considers that reopening would be is justified prior to the pronouncement of final orders. Where experienced costs lawyers are appear the rulings made are generally truncated and may be in jargon[16] that is understood by the practitioners who appear regularly in the Costs Court.
[16]Ibid, paragraph 53.
The Respondent submits that the review should be dismissed and the Applicants should be ordered to pay its costs of the review on an indemnity basis. The application is inconsistent with the overarching obligations in the CPA of proportionality, limiting costs and only taking reasonable steps in a proceeding.
Consideration and Reasons
This review was commenced pursuant to rule 63.91 of the Rules. In my opinion, if leave is required for the Applicants to bring the review then it should be granted and the matter proceed as a hearing de novo. The review, clearly, is not a challenge of the taxation of items in the bill of costs, rather it is a challenge to a procedural order made concerning the conduct of the taxation hearing.
If leave is granted to bring the review the only issue before me is whether it is reasonable and appropriate to record the hearing of the taxation and for the recording to be transcribed. If that order is made the Applicants may be able to obtain a transcript of the remainder of the taxation. Although Zoom allows the host of the hearing to record the hearing on the host’s computer this is not a recording referred to in Practice Note SC GEN 7 as the recording would not be made by a preferred transcript provider. To enable a preferred transcript provider to attend the hearing the Costs Registrar is required to notify a preferred transcript provider that a recording of the remaining days hearing is required and to send the preferred transcript provider an invitation to the Zoom hearing and then after the hearing, if thought appropriate, to request that a transcript of the hearing be prepared.
In general, the present practice of the Costs Court is to have transcript prepared only if a witness is giving evidence and being cross-examined.[17] The Costs Registrar was right to state that, usually, taxation hearings are not recorded and transcript is not prepared in party/party taxations. In my view the obtaining of transcript would be a wasteful and expensive exercise in terms of the resources of the Court to record a party/party taxation hearing. The end result of a party/party taxation is the quantification of a bill of costs and the costs of the taxation. The final orders made are for payment of the taxed amount. Therefore transcript is of little or no utility and the costs would not be justified.
[17]This usually only occurs in hearings relating to the Legal Profession Uniform Law 2014 and the Legal Profession Act 2004.
Party/party taxations of bills of costs are conducted by the examination of the Applicants’ solicitor’s file to substantiate any claims of costs made in the filed bill. A transcript cannot reproduce the file notes, correspondence and documents. The transcript only records the submissions and the rulings of the Court made on each item in the bill.
The Practice Note in respect of Transcript in Civil Proceedings[18] states that it applies to all civil proceedings in the Trial Division and Court of Appeal of the Supreme Court of Victoria whether heard in Melbourne or on circuit. It states that the Court has appointed preferred suppliers[19] to provide transcript to ensure the efficient conduct of proceedings and that transcript is required for all trials.[20] In respect of hearings that are not trials the Practice Note states that:
6. OTHER HEARINGS
6.1The Practice Notes in relation to particular divisions, lists and proceedings indicate when transcript is required as a matter of course for directions hearings, interlocutory applications and other hearings.
[18]SC GEN 7.
[19]The current preferred supplier is referred to as Auscript Australasia Pty Ltd.
[20]SC GEN 7 para 5.
In my view a party/party taxation of costs is not a trial, but is an ‘Other Hearing’. This is so as rule 63.01 defines a taxation of costs as the assessment, settling, taxation or review of costs[21] and not as a trial. Order 63 deals with matters of Costs including the conduct of a taxation. Rule 63.50 provides that any person interested in the taxation may attend a taxation. The Costs Court’s Practice Note[22] does not include any direction that transcript is required at a hearing of a taxation of bills of costs. The question of transcript remains an entirely discretionary matter for the taxing officer conducting the taxation.
[21]Rule 63.01 of the Rules.
[22]SC GEN 11.
Taxations of costs, as I have said, are heard with the parties making oral submissions to justify or oppose claimed items of costs in the bill of costs. The solicitor’s file is the primary evidence relied on to justify each claim for an allowance of, reduction of or total disallowance of the amounts claimed in the bill and objected to by the Respondent. It is generally accepted practice that if an item is not objected to it is to be allowed. The Costs Court has adopted an informal approach to submissions and in general does not to require affidavits or sworn testimony to prove the costs claimed. This has been the practice used since the commencement of the Costs Court and that practice also existed well before that time in taxations conducted by the Taxing Master in the Supreme Court.
The informal approach adopted is confirmed by s 17D of the Act which provides that:
(1)The Costs Court -
(a)has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in all proceedings in the Court;
And in exercise of that jurisdiction the Costs Court has:
(2)The Costs Court has such powers of the Court as are necessary to enable it to exercise its jurisdiction.
(3)The Costs Court must exercise its jurisdiction with as little formality and technicality, and with as much expedition, as the requirements of this Act, the Rules and the proper consideration of the matters before the Court permit.
(4)Subject to this Act and the Rules, the Costs Court may regulate its own procedure.
The Costs Court has the power to regulate its own procedure. This power includes ordering recording and transcription of hearings. Orders for the recording of and transcription of taxations are rarely, if ever, made and are entirely discretionary for the taxing officer hearing the taxation. The cost of transcript is not justified. The Applicants submit that their position differs from most other litigants and that they are far more affected by the outcome of the taxation than other commercial litigants taxing costs. The written submission states that:
The Paragreens interest in this proceeding is compensatory. The Costs Orders operate to offset and repair, so far as it is possible, the adverse effects of litigation instituted by Lim Group against the Paragreens.[23]
[23]Applicant’s written submissions at paragraph 86.
In my view the Applicants are no different from any other litigant in the conduct of or the outcome of the taxation who have an order that they be paid standard costs of a proceeding. The Costs Court does not differentiate between classes of litigants and should not utilise different standards because a litigant maybe out of pocket to some extent in respect of costs of the litigation. An order for the payment of costs is intended to provide a partial indemnity to a successful party and the order is not intended to provide total indemnity. The Court of Appeal order is for the payment of standard costs. Standard costs are defined in rule 63.30 as allowing all costs reasonably incurred and of reasonable amount. The Costs Registrar is required to tax the bill of costs pursuant to the order made applying the scale of costs to the work was undertaken and no more.
In my view the costs of recording and production of transcript are an unusual expense for the costs of a party/party taxation and not justified. This is partly because, until March 2020, taxations of party/party bills were often heard in hearing rooms that did not have the technology available to record the hearings. It has only been since remote hearings commenced in March 2020, due to the COVID pandemic, that all taxations of party/party costs were able to be recorded on Zoom technology. The usual practice of the Costs Court has been and I understand remains to allow recording of a hearing and obtaining transcript of hearings where a witness is cross examined. The allowing of recording is always at the discretion of the Associate Judges, Judicial Registrar or Costs Registrar who has the conduct of the hearing.
At all hearings so far the Applicants have been represented by Mr Sergey Sizenko, an experienced costs lawyer instructed by Mr Boris Pogoriller, the solicitor who had the conduct of the original proceedings. Mr Pogoriller was present to give instructions and take notes. In respect of the argument that the Costs Registrar’s order lacked procedural fairness it is apparent that the both the Applicants’ solicitors made oral applications and submissions during past hearings and on 1 March 2021 sent emails making a further written application to reopen that ruling following the Costs Registrar’s refusal to allow the recording of the hearing. More often than not in taxations of costs the instructing solicitor is not present to assist as a specialist costs lawyer appearing who has drawn the bill of costs. The specialist cost lawyer refers to their instructor’s file to prepare the bill of costs and as evidence to justify those claims at the taxation in the bill of costs. Any submission made by an instructing solicitor of factual matters to justify claims would amount to the giving of unsworn evidence from the bar table and has little evidentiary value. Although the Costs Court operates in an informal manner this informality does not and should not override settled law in respect of evidence.
In my view a transcript is not required in this taxation and would result in unnecessary costs being incurred. Here, the Applicants apply to review a procedural order made during the conduct of the taxation. The Costs Registrar has indicated that he will provide written rulings of any disputed allowances therefore a transcript of submissions made would not assist the Applicants if they do apply, pursuant to rule 63.91(5)(a) or (b), to review any of the determinations of the Costs Registrar in respect of allowances or disallowances of items in the bill of costs.
For the reasons above I dismiss the Notice of Review. Costs should follow the event unless the parties seek to make brief written submissions within 4 days of the delivery of reasons.
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