Paroz v Clifford Gouldson Lawyers - [2014] QDC 125

DISTRICT COURT OF QUEENSLAND

CITATION:

Paroz v Clifford Gouldson Lawyers [2014] QDC 125

PARTIES:

LESLIE ROLAND PAROZ
(Applicant)

AND

CLIFFORD GOULDSON LAWYERS
(Respondent)

FILE NO/S:

OA 1747/2010

DIVISION:

PROCEEDING:

Review of costs assessment – reassessment

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

30 May 2014

DELIVERED AT:

Brisbane

HEARING DATE:

26 June 2012, and submissions in writing

JUDGE:

McGill DCJ

ORDER:

Order that the certificate of the costs assessor filed 13 December 2011, court document 20, be varied so as to substitute as the balance certified as payable to the respondent the sum of $34,071.11. Order that the order of the registrar dated 20 December 2011 be varied so as to provide that the amount payable by the applicant to the respondent under that certificate be $34,071.11.

CATCHWORDS:

COSTS – Solicitor and client – assessment – fair and reasonable basis – details of reassessment – order for payment varied.

COSTS – Appeals – indemnity certificate – whether applies to an appeal by way of review of an assessment by a costs assessor.

Legal Profession Act 2007 s 341.

Appeal Costs Fund Act 1973 s 4 - “court”

Bieto v Triline Australia Pty Ltd (No 2) [2003] QDC 307 – cited.
Re Carter Newell’s Bill of Costs [1996] 2 Qd R 13 – cited.
Harrison v Tew [1990] 2 AC 523 – cited.
Lennox v The Board of Professional Engineers of Queensland (No 3) [2009] QDC 282 – followed.
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 – cited.
Maltby v DJ Freeman & Co [1978] 1 WLR 431 – considered.
Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228 – cited.
New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 – cited.
Property and Reversionary Investment Corporation Ltd v Secretary of State for the Environment [1975] 1 WLR 1504 – considered
Pryles & Defteros (a firm) v Green [1999] WASC 34 – followed.
Queensland Building Services Authority v Morris (appeal 3319/97, Robin DCJ, 24-10-97, unreported) – followed.
R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 – cited.
R v Webster [1987] 1 Qd R 45 – cited.
Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 – cited.
Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No. 9) [2011] FCA 661 – cited.

COUNSEL:

No appearance for the applicant

N.P. Hiscox for the respondent

SOLICITORS:

The applicant was not represented

The respondent represented itself

In this matter on 17 June 2010 the applicant filed an originating application seeking an order for the assessment under the Legal Profession Act 2007 (the Act) of all costs incurred and invoiced by the respondent for services provided to the applicant between 7 June 2008 and 2 July 2009. An order for assessment was made on 27 July 2010, and ultimately certificates of assessment were filed on 13 December 2011. Subsequently an application to review the assessment was made by the respondent, which came before me in January 2012.

On 26 June 2012 I published reasons in which I set out in more detail the history of the matter, and dealt with the issues raised on the review.[1] In short I held that two of the certificates of assessment were not shown to have been in error, but that the third assessment, which had been conducted in accordance with the Supreme Court scale on the basis that s 319(1)(b) of the Act was applicable, had miscarried, because the costs should have been assessed under s 341. I concluded therefore that the assessment had to be done again under that section, but refrained from making a formal order in relation to the review until I had received further submissions.
[1][2012] QDC 151.

The relevant bill of costs was one dated 1 July 2011, containing 1882 items. The statement claimed a total of $129,950.34 by way of professional costs, including a figure of $29,988.54 under item 1 “General care and conduct”, claimed at 30% of the total amount charged for specific items, and outlays of $3,920.36. The costs assessor had allowed professional fees of $65,125.14 and disbursements of $3,894.25, but deducted the amount of $22,475.60 as an apportioned amount of the costs of the assessment. The certificate also records that the applicant had paid a total of $37,094.90 in respect of this matter.[2]
[2]An apportioned part, 84.6% of a total of $43,847.40 paid overall.

The matter came before me again on 13 December 2012, when I raised the question of whether there were any other matters which ought to be dealt with before the reassessment occurred. I was conscious of the fact that, as I noted in paragraph [16] of my previous reasons, the costs assessor had declined to act on submissions as to whether the respondent’s costs should be reduced because of the quality and nature of the legal services provided to the applicant, saying that this was a matter for determination by the court rather than by a costs assessor, a view which I then endorsed. I sought to clarify with the solicitor for the applicant whether there were issues of negligence raised on behalf of the applicant to be determined, and, on being told that there were, I required a document outlining the matters relied on by way of negligence or lack of usefulness to be filed, and gave the defendant the opportunity to respond.

On 8 February 2013 the applicant’s submissions in relation to the quality of legal representation were filed, together with submissions seeking an order under the Appeal Costs Fund Act s 15. On 19 April 2013 the solicitors for the applicant filed an application for leave to withdraw as solicitors on the record for the applicant. In support of this an affidavit was filed indicating that in January 2013 the applicant was in the Brisbane Correctional Centre, and that a notice as required by the rules had been sent to the applicant at that address in April 2013. Leave to withdraw was given on 3 May 2013 though the notice of withdrawal of solicitors was not filed until 24 September 2013. In fact the applicant was in prison at that time as a result of the activation, following the commission of a number of criminal offences, mostly against property owned by his brothers, of a wholly suspended sentence of imprisonment imposed on 19 August 2010 because of the applicant’s breaches of an injunction granted against him on the application of the other partners, his brothers and their spouses, in related proceedings: R v Paroz [2012] QSC 427.

In the meantime a further submission in writing in relation to the quality of legal representation was filed by the solicitors on 1 May 2013. It did not appear however that any further instructions had been received by the solicitors from the applicant, and when the matter came on before me again on 2 August 2013 it was adjourned to 16 August 2013, on the basis that any question of negligence would be dealt with on that day. On that day the position remained the same, the solicitors who have been given leave to withdraw had no instructions and on that day I ordered that unless the applicant took some steps himself to carry the matter forward within 21 days I would proceed to reassess the costs myself. I also said that I would consider the question of the application under the Appeal Costs Fund Act. The applicant has not taken any further steps to carry the matter forward, but, because of other reserved judgments, it has taken me some time to get around to the reassessment.

The difficulty is that the respondent, as appears in the reasons I have published previously, needs to have the costs assessed before they are recoverable from the applicant, so there has to be an assessment which is effective.[3] Ordinarily the reassessment would be undertaken by a costs assessor, but at an earlier stage the suggestion had come up of my conducting the reassessment myself, essentially in order to save the parties costs. In that process, I have the advantage that there has already been a costs assessment undertaken by a costs assessor, albeit on the wrong basis, so that I do not need to be concerned with issues such as the absence of documentation in respect of claims for work done.[4] The issue on which I held that reassessment was necessary was simply an issue as to the basis upon which the assessment occurred. It had been carried out by the costs assessor under the Supreme Court scale, but I held that the costs assessor should have assessed the costs under s 341(1) of the Act, including paragraph (c), that is by reference to the fairness and reasonableness of the amount of legal costs in relation to the work.
[3]Pursuant to an order of the Supreme Court there is a sum held in a firm’s trust account pending resolution of this dispute: affidavit of Hallewell filed 27 July 2010, Exhibit ASH1 p 28.
[4]The assessor, at my request, helpfully provided me with a copy of the costs statement in question, as annotated by him, which gave me his assessment of each item, and generally a brief indication of the reasons for it.

As I indicated in my previous reasons, this is to be done without regard to the terms of the costs agreement, because of the operation of s 340(1)(c). It is also not to be undertaken by reference to the Supreme Court scale, because s 319(1)(b) does not apply, since it is not the case that paragraph (a) does not apply; there was a costs agreement made as discussed in my earlier reasons. That the Act operates in this way is somewhat peculiar, but it is not the only peculiar feature of this Act, and I do not consider that there is any basis upon which I can fail to give effect to the applicable terms of division 7 simply because of that peculiarity.

Under s 341(1) in conducting the reassessment I must consider whether or not it was reasonable to carry out the work to which the legal costs related, whether or not the work was carried out in a reasonable way, and the fairness and reasonableness of the amount of legal costs in relation to the work. In considering this last point, I have regard to the matters referred to in s 341(2). In relation to that, I should say that there is no evidence of any relevant advertisement, there was some criticism on behalf of the applicant about the quality of the work done, and the respondent relied on the proposition that the work was required to be done urgently.

Background

The costs statement in question related to proceedings brought by the applicant in the Supreme Court in 2004 against other members of his family, with whom he was in partnership. The matter commenced well before the respondent was involved, and ultimately went to trial in December 2009, with other solicitors acting for the applicant. On 25 February 2010 the applicant’s claims were dismissed: [2010] QSC 41. On 14 May 2010 the applicant was ordered to pay the defendants’ costs on the standard basis until 3 July 2008, and thereafter on the indemnity basis: [2010] QSC 157. An appeal by the applicant was dismissed on 17 December 2010: [2010] QCA 362. There has been other litigation between the parties.

The following background to the dispute is taken from the judgment of the trial judge, which was in this respect accepted without question by the Court of Appeal. The applicant and two brothers had grown up on farms owned by their father in the 1950’s, and acquired two more farms in the 1960’s. His two brothers obtained work away from the farms but the applicant continued to live and work on the farms until 1971 when he had a dispute with his father, as a result of which he went away for about 12 months before returning at his mother’s request. The other two brothers would during holidays return to the farms where they did some work. It seems the applicant received little remuneration for his work at this time.

Two more farms were acquired by the three brothers between 1979 and 1983, and they executed a deed of partnership for a farming partnership on 15 July 1981, and a deed of partnership in respect of the land holding on 24 August 1981. The spouses of his brothers were also members of the farming partnership. The applicant began to receive wages for his full time work for the partnership. It appears that in 1985 the father retired and transferred the original farms to the three sons, although he and his wife continued to live there until he passed away. In 1989 the three sons purchased another farming property. In the same year one of the brothers left his employment and began full time work on the farms, although three years later he obtained some off-farm work, as a result of which payments made to him from the farming partnership were reduced. The trial judge said at [126]:

“From about 1989 until about 2002, the partnership was under considerable financial pressure, in part because of the amount borrowed to buy Hiddenvale, and in part because of the long drought. The evidence demonstrates that it could not have paid significantly more to Leslie in this period.”

His Honour added at [127]:

“During the period of the long drought, Leslie’s conduct demonstrated that he was more concerned with the preservation of partnership assets than with receiving more cash. The other partners wanted to reduce the size of the herd by selling off cattle, which would have provided cash, and enabled the sale of hay produced on the farms. It would have also avoided the need to buy additional feed for the cattle. Leslie, however, resisted this, as he wished to maintain the herd. That was a business judgment which he made. It was accepted, apparently reluctantly, by the other partners. It makes it unlikely that the level of wages paid to Leslie was the product of cynicism on their part.”

It appears that, at least by the 1990’s, some dissention developed between the applicant and his brothers. There was disagreement about the way in which the properties should be run, and the applicant took various steps in relation to the management of the properties without the agreement of the brothers, to some extent without consulting them. In about 2002 there was a disagreement between the applicant and his brothers about the applicant’s building a house on partnership land in which he could live with a woman with whom he had established a relationship. Some time after that, the applicant began to complain about the amount of money that he was being paid from the partnership. In 2003 he presented a demand for increased wages, to be backdated to an unspecified date, which did result in some increase in his wages, and for compensation for the use of his vehicle, which also produced some concession.

A meeting was held on 21 June 2003 at the office of the family solicitor but matters were not resolved. On 8 December 2006 receivers were appointed to the partnership. They sold cattle owned by the partnership to the applicant in March 2007. He then arranged for them to be returned to the farms, which he continued to use. Ultimately the other members of the partnership obtained an injunction to restrain him from continuing to do this, which injunction he repeatedly breached, which ultimately led to the applicant’s imprisonment for contempt. Financial records prepared by the partnership indicated not insignificant accumulated losses; none of the other partners had received any distribution profits from the partnership.

By the time the matter came to trial, the applicant’s case was based on alleged unconscionable conduct of the other members of the farming partnership. He alleged that by reason of his strong emotional attachment to and affinity for the farming business and the land upon which it had been undertaken and, in later years, his need to look after his mother, he was at a special disadvantage vis a vis the defendants which he alleged was exploited by them, primarily by the low wages paid to him and the acceptance of the benefit of the appreciation of the value of the farms made possible by his work, and for which he was not reasonably compensated.[5] By the time of the trial there was no express reliance upon fiduciary duties owed to him as a partner, though it was still in the statement of claim, and no damages were sought for breaches of contract, because the breaches extended back so far in time.[6] The trial judge rejected the proposition that the applicant was under any relevant special disadvantage, or that the defendants knew of and exploited it. His Honour said at [113]:

“It was apparent to me that Leslie held his parents in very high regard. He gave evidence, which is generally consistent with the evidence of the other members of the family, and which I accept, of his strong desire throughout his working life to remain working on the farms. Nevertheless, he presented in court as someone with a relatively strong personality. He was not unintelligent. I observed nothing to suggest that his capacity to make a judgment in his own interests was seriously impaired.”

[5][2010] QSC 41 at [3].

[6]Ibid at [4], [5].

In the Court of Appeal Fraser JA, with whom the other members of the court agreed, said at [55]:

“Having regard to the absence of reliable evidence about the relative values to the partnership of each partners’ contribution and Leslie’s preference for fulltime work on the family farms to better paid employment elsewhere, it is by no means clear that his decisions to work for low wages when his partners worked part-time for no wages were imprudent. Even if Leslie’s decisions were very much against his financial interests and correspondingly to the benefit of the respondents, it does not necessarily follow that he was under any disadvantage, special or otherwise, when dealing with the respondents, or that the respondents acted unconscientiously.”

Content of “fair and reasonable” test

I am not aware of any particular authority as to the meeting of this expression in s 341(1) of the Act, though the concept of costs being fair and reasonable as between solicitor and client is a familiar one. In Re Carter Newell’s Bill of Costs [1996] 2 Qd R 13 Dowsett J at p 15 said after referring to other authority:

“In taxing a bill as between solicitor and client, what the taxing officer must do is determined whether or not each charge was reasonably incurred incidental to the performance of the duty undertaken pursuant to the retainer.”

In those days that had to be undertaken in the light of various provisions of O 91 of the Rules of the Supreme Court. Nevertheless, the overriding issue was as to reasonableness pursuant to the retainer, and his Honour’s reasons contain some examples of the application of that general approach. In Harrison v Tew [1990] 2 AC 523 Lord Lowry at p 532 referred to the general principle and policy that “a solicitor’s remuneration should be fair and reasonable and no more”. That proposition was cited with approval by Parker J in Pryles & Defteros (a firm) v Green [1999] WASC 34 at [22]. His Honour noted that the taxation of solicitor and client bills of costs where there was no prescribed scale of costs had long been a feature of legal practice in England, so that, although in the absence of a written agreement a taxation “of this nature is not an easy task”, it was one to which taxing officers had long been exposed: [21]. Indeed, in this respect it could be said that the statute ultimately embodies the common law test.

Parker J held at [26]:

“As has been revealed by the authorities, the measure or standard ultimately applied by a Taxing Officer in such a case as this is that the practitioner should be remunerated properly, and no more. In practical terms this may be seen to produce the result that in circumstances such as the present, on taxation costs will be allowed which, in the view of the Taxing Officer, constitute reasonable charges in respect of all work reasonably undertaken. As this is a practitioner and client taxation, costs reasonably incurred by the practitioner extend to include work actually authorised by the client even though the work might not ordinarily be regarded as necessary or proper for the attainment of justice for the client. While this standard is imprecise, it is one with which Taxing Officers are not unfamiliar, and it enables a measure of justice and fairness to be achieved between a practitioner and a client.” [26]

His Honour went on to note at [27] that on such a taxation the Taxing Officer will often be able to proceed by way of analogy, using as a guide a scale applicable in the jurisdiction to work which is substantially similar in nature and responsibility to the business which is the subject of the bill. Ultimately however in that case his Honour had merely to determine that the wrong test had been applied by the Taxing Officer, and remit the taxation to him for further consideration in the light of his reasons. If I may say so, with respect, his Honour’s approach overall strikes me as an appropriate one, and I propose to adopt it.

Discussion of certain objections

The relevant costs statement was one dated 1 July 2011, containing 1882 items. The then solicitor for the applicant prepared a notice of objection to this costs statement dated 14 August 2011; a copy was filed on 12 January 2012, court document 27. Overall there were 341 objections put forward. To some extent this incorporated objections made in a document dated 16 July 2010, also filed in the court on 12 January 2012 as document 28. One of these standard objections was referred to as “the costs agreement” objection. The basis of this objection was essentially that, because the first agreement had never been signed by the applicant and the second agreement could not be retrospective, there was no applicable costs agreement. I have already dealt with the substance of this objection, and agree that the assessment is not to be undertaken pursuant to the costs agreement.

The earlier document also identified what was called an “internal communication objection”, that the client should not be charged for communications between a partner and an employee of the firm or between two employees of the firm. There was also an objection entitled “office administration objection”, which was applied to time spent sorting documents, filing material within the office, looking for documents or work of a similar nature. These were said to be not recoverable because there was no provision for them in the Supreme Court Scale. That argument is not now to the point, the question is simply whether, given the particular situation or the volume of material, the charge was fair and reasonable.

There was also an objection advanced under the heading “time costing objection” based on the fact that the records kept by the respondent of how long it took for things to be done were kept by reference to a time costing system of six minute intervals, whereas in the case of an assessment on the Supreme Court scale it was relevant to have regard to the actual time taken, at least in those cases where the relevant period was in excess of 15 minutes. This was another ground of objection which was specific to an assessment on the Supreme Court scale, and is no longer applicable. Although the time taken for things was recorded only to the nearest .1 hour, that I think is as precise as it needs to be for an assessment on the fair and reasonable basis, bearing in mind that it is conventional for time records to be kept only to this level of precision.

Another objection raised to a number of items was by the description “not an examination”, where the objection was taken that the solicitor was charging for 15 minutes of time under an item in the scale in relation to the examination of documents where the examination was of only a single or small number of relatively short documents, where allowing a quarter of an hour was quite excessive, and where a charge on a perusal basis would have been much lower. This objection is also related to the detailed working out of the Supreme Court scale and I have generally allowed what I regard as a reasonable time at the appropriate rate. There was also a “litigation funding objection”, advanced on the basis that there was some advantage to the solicitor in the client’s obtaining litigation funding. That may be true, but in principle it is something which operated to the advantage of the client, and so long as the solicitor had instructions to seek that litigation funding it seems to me on the face of it to be work for which the solicitor was entitled to charge.

Other matters

There is one further complication. The respondent initially prepared particulars of the amount charged by reference to the draft costs agreement which had been forwarded to the applicant, so that it was essentially in the form of a time costed bill, which did not discriminate between the three different matters which were ultimately covered by the three different bills prepared and served at the direction of the costs assessor, and assessed by him, as discussed in my earlier reasons. That appears to have been done largely on the basis that the costs were to be assessed on the Supreme Court scale, but in respect of one of the bills I ultimately concluded that that approach was incorrect. Nevertheless, for practical purposes, I am assessing this separate bill of costs, but do not consider that the respondent should be prejudiced because it was required to submit a bill drawn in accordance with the Supreme Court scale. It also follows that some of the more technical objections raised in the notice of objections of the applicant to items in this bill specifically by reference to the requirements of the Supreme Court scale will become irrelevant, or of little significance. Nevertheless, I do not propose to require that yet another costs statement be prepared. There has already been too much trouble taken over this exercise, without my adding to it in that way.

One other issue which arises is in relation to the content of an affidavit of B J Gouldson sworn 24 January 2012 and sought to be relied on in relation to the review. Parts of this were objected to on the ground that it contained information which was not put before the costs assessor, and therefore breached r 742(5)(a). I have not taken that evidence, or at least that part that was objected to, into account in determining the matters dealt with in my earlier reasons, but in circumstances where the function I am now performing is analogous to a reassessment by a costs assessor, there can I think be no harm in my receiving additional evidence. In the circumstances I direct that that further evidence in that affidavit be admitted in total. It is of some relevance to the circumstances surrounding the retainer of the respondent, and the circumstances under which the respondent had to work.

Another issue which arises is as to whether I can have regard to the content of the draft costs agreement which was sent to the applicant early in the retainer, but never signed. Obviously I cannot treat it as tantamount to a costs agreement, an approach which would be inconsistent with the whole scheme of the legislation. It follows that it would also be wrong for me to treat it as evidence of what is a fair and reasonable rate for the services of the respondent. At most it could be some evidence of what the respondent would have liked to have charged, at least in this case; I do not think there is any evidence that this draft agreement reflected even the ordinary rates charged by the respondent for clients generally, and certainly no evidence of the ordinary rates charged by firms like the respondent for clients generally. I can of course take into account the rates allowed under the applicable Supreme Court scale for work by reference to the time taken, and I am prepared to take notice of the proposition that solicitors generally charge more, sometimes significantly more, than that rate. However, even the rates commonly charged by solicitors to clients generally would not necessarily determine what rate was fair and reasonable as between the solicitor and this client, which is what I have to decide.

Perhaps I should add that I do not think that the fact that particular rates were disclosed in the draft cost agreement makes those rates applicable because of s 341(2)(b), on the basis that this was disclosure under division 3. Mr Gouldson also deposed to having disclosed his firm’s hourly rate during his first meeting with the applicant on 9 June 2008.[7] An argument could be constructed based on this provision for the proposition that the continuation of the instructions in the light of the disclosure of particular rates implied an acceptance by the client of those rates so as to justify assessing costs by reference to those rates. The difficulty with that argument is that it would put the legal practitioner in the same position as if there were a proper costs agreement entitling the legal practitioner to have the costs assessed under s 340. On the whole I think that s 341(2)(b) is closely related to (a), so that it is relevant to take into account the extent of compliance as well as the extent of non compliance, a matter analysed in my earlier reasons.
[7]Affidavit of Gouldson para 6(c).

There are a number of items in the Supreme Court scale where charges may be made by reference to the time taken. Not all work however is to be charged for under that scale on a time cost basis. The issue of time charging is somewhat controversial. In New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 at 126 Gleeson CJ, with whom Hope JA agreed, said that “to allow a simple, flat, hourly rate as the basis for charging for anything, of whatever character, done by any solicitor of whatever seniority and experience in relation to the matter is difficult to justify.” In Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103, Rogers CJ Comm D at 109 noted that time charging “rewards the inefficient and the incompetent… as well, time cost charging loses the incentive to avoid unnecessary work or inefficient practices.” In Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228 Fryberg J at 239 noted that there was a potential for the inefficient use of time to be charged. These and other criticisms of time based charging were cited with approval by Logan J in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No. 9) [2011] FCA 661.

The fact that some time may require the application of more skill and specialised knowledge than other time charged for at the same rate was also recognised in Property and Reversionary Investment Corporation Ltd v Secretary of State for the Environment [1975] 1 WLR 1504 at 1509. In that matter Donaldson J dealt with an appeal from the taxation of a bill of costs on a conveyance to the Secretary of State under the Compulsory Purchase Act 1965, and his Lordship held that the object of the exercise was to arrive at a sum which was fair and reasonable, having regard to all the circumstances of the case, and in particular the list of matters in article 2 of the Solicitors Remuneration Order 1972, a list not unlike the list in s 341(2). His Lordship said that it was necessary to look at the general nature of the business, and then work through the factors in article 2: p 1510.

On the other hand, one judge has suggested that a system of time charging may actually underestimate the amount of time that a solicitor applies to a particular case. In Maltby v DJ Freeman & Co [1978] 1 WLR 431 Walton J at 435, when discussing the relevance of the time expended by the solicitor in the assessment of reasonable remuneration, said that in a good many cases the time spent gives a good indication of the weight of the matter as a whole. His Lordship added:

“I would, however, make one gloss; however meticulous time records are kept, they will always, save in the plainest of all possible cases, represent an undercharge. No professional man, or senior employee of a professional man, stops thinking about the day’s problems the minute he lifts his coat and umbrella from the stand and sets out on the journey home. Ideas – often very valuable ideas – occur in the train or car home, or in the bath, or even whilst watching television. Yet nothing is ever put down on a time sheet – or can be put down on a time sheet – adequately to reflect this out of hours devotion of time.”

I am not at all sure that those judges who have been critical of the notion of time charging would be particularly sorry to see solicitors deprived of the opportunity to charge for time spent thinking about, worrying about, or possibly even agonising over their client’s legal problems. They would say that there is no particular reason why a nervous, hesitant or prevaricating solicitor should be entitled to charge more than one who, through superior skill and experience, is able to discern speedily the appropriate or best course of action for the client, and in his leisure time think about something else. His Lordship’s analysis does assume that it is the relevant client’s business which will be continuing to occupy the solicitor’s mind when he is engaged in other activities.

Another factor which can sometimes be relevant is the existence of time pressure, applicable here because at times there were limits imposed either by the rules or an order of the court within which things were to be done.[8] That work is required to be done urgently or within a particular time limit is covered by s 341(2)(i).
[8]This was described as the “adrenalin factor” by Donaldson J in Treasury Solicitor v Regester [1978] 2 All ER 920 at 926.

I also note Mr Gouldson’s explanation of how the retainer came about.[9] The applicant was introduced to him by a family friend, who told Mr Gouldson that he was being badly done by and who had apparently suggested Mr Gouldson to the applicant. Mr Gouldson rang the applicant, and was told that the applicant was currently on his fourth solicitor in a difficult and longstanding dispute. Nevertheless, he and the applicant met at his office on a public holiday and discussed the matter in detail, although the file was not provided at that stage. It was not until 1 September 2008 that what was said to be the file was handed over, but Mr Gouldson said, and I accept, that he had never seen a more disorganised and generally worse kept file.[10] He said that after spending some time working on sorting the file it became apparent that some documents were missing. In addition there were steps which had to be undertaken urgently, including providing a Supreme Court Judge with a written report about the status of the proceeding, and attending court to resist an application to strike out the statement of claim.
[9]Affidavit of Gouldson paras 2-8.
[10]Ibid para 10. That may not have been the fault of the previous solicitor; I do not know how long the file was in the hands of the applicant before it was handed to Mr Gouldson.

Rates

At the time when the work began the hourly rate allowed under the Supreme Court scale was $248. The rate at that time actually being charged by the respondent in its initial accounts to the applicant was $280 plus GST for the partner, but the rate disclosed for a partner in the document sent out in September 2008 was $300 per hour plus GST, and the rate charged went up to that at about that time. The respondent practices in Toowoomba, and the partner having carriage of the matter had in excess of 10 years experience in litigation; I have no other information about the skill and experience of the lawyers doing the work. The matter has an element of complexity because the applicant’s story, and the background to the dispute, extended over a period of many years, and there was some difficulty involved essentially in trying to find a legitimate basis for achieving for the applicant the outcome that he sought. This was difficult, as shown by the fact that ultimately it was not achieved. I should say that there is nothing I have seen in the judgments in the Supreme Court, or in any other material I have seen, which suggests that a better outcome could have been achieved in another way, and I suspect the real problem was that the outcome sought by the applicant was not one which he was legally entitled to achieve.

The affidavit also complained about the difficulty in the approach of the applicant. The solicitor said that the applicant refused to accept advice to reduce the number and extent of the issues being raised in the proceedings, or to redraft the statement of claim from scratch: para 23. He said that the applicant continually refused to follow legal advice, or initially followed the advice but then changed his mind and reversed his instructions: para 24. One example of this was that he persisted in writing to the Judge supervising the proceeding in the Supreme Court, despite advice not to do so: para 25. That strikes me as consistent with the approach demonstrated in the subsequent proceedings in the court, when the applicant was found to have breached an injunction so as to be found guilty of contempt of court. No doubt he had been advised by his then solicitors that he must comply with the court’s order.

In this context it is somewhat surprising that the issues raised in the documents filed by the applicant’s solicitors were based on the proposition that the respondent ought to have advised the applicant to abandon certain of the claims which he was making in the pleadings prepared by them. However, I am not deciding those claims on the merits, but simply taking the view that, the applicant having (it seems to me) essentially abandoned these proceedings, there are no live issues before me about the quality of the legal work undertaken by the respondent.

The reasons in the Supreme Court judgment also provide some background to the character and circumstances of the applicant, which it seems to me is entirely consistent with the description of him given by Mr Gouldson. It also makes the point that he was asset rich but cash poor: the farms were apparently worth quite a lot of money, but, at least in the way in which the applicant was operating them and the way in which he wanted to be able to continue to operate them, they were not generating a large income. Although if his action had been successful he would have obtained judgment for a significant sum of money, it is difficult to see how the partnership could have continued in the face of such litigation, and in those circumstances it is likely that the properties would be broken up and sold off, thus realising the value of the assets. My view is that the applicant is not a client who through poverty was deserving of particular consideration in the fixing of the amount charged.

Bearing in mind the matters referred to above, and in the light of my general experience in relation to issues of costs, in my opinion it was fair and reasonable for the respondent to charge for Mr Gouldson’s work at the rate of $280 per hour inclusive of GST from the time when the work started. The District Court costs scale was increased on 1 September 2008, and the rates in fact being charged by the respondent increased at about that time, and it is reasonable that the rate should from that date increase to $300 per hour inclusive of GST. The rates for other persons in the firm can be appropriately scaled by reference to those figures. I should say however that I consider that the rates being charged for those without legal qualifications, paralegals and an administrative assistant, were too high and there ought to have been some greater tapering involved. I appreciate that a skilled and experienced paralegal can work as productively as some solicitors, but there is no particular information about the paralegals concerned, and the charges for a junior paralegal or an administrative assistant seem to me far too high. I will allow $55 an hour for these, increasing to $60 an hour, and $120 per hour, increasing to $130 per hour, for the senior paralegal, all inclusive of GST.[11]
[11]Other rates are $250 and $270 per hour for the Senior Lawyer, $200 and $210 per hour for lawyers, and $140 and $150 per hour for a law clerk, all inclusive of GST.

I should emphasise that, although I am often approaching the assessment on a time charging basis, I am very conscious of the requirement to take into account the matters referred to in s 341(1)(a) and (b), which require consideration of the length of time devoted to particular tasks. In this way the problems with time costing can I think be brought under control, and, more importantly, that appears to be the basic structure contemplated by s 341.

Assessment

The costs statement as drawn provided for professional costs, apart from the claim in item 1882 under item 1 of the scale for general care and conduct, of $99,961.80, and outlays of $3,920.36, a total of $103,882.16. I have on the reassessment allowed a corresponding total of $85,441.61, with the amount taxed off totalling $23,163.65 offset in part by amounts allowed as short charges in the sum of $4,723.10.[12] The costs assessor reduced the claim in item 1882 of $29,988.64, at 30% of the professional costs for items 1-1881, to 20% of the professional costs allowed for items 1-1881, under s 316(4) of the Act. I do not wish to interfere with the adjustment made under that sub-section by the costs assessor, for reasons published previously, but because my approach to the assessment of the costs statement has been different, I have allowed as hourly rate charges a lot of items which on an assessment under the Supreme Court scale would be covered by the allowance under item 1.
[12]Unfortunately by the time it occurred to me that I should be recording separately adjustments to professional costs and outlays I was so far into the reassessment process that I was not prepared to go back and start again.

The complicating feature here however is that the costs statement was drawn under the Supreme Court scale, and has generally been assessed under the Supreme Court scale, and there are a lot of items which were included in the original time charging account for which no claim was made in the costs statement as drawn. In all the circumstances therefore I think it is still appropriate for some allowance to be made for general care and conduct, but it should be much more modest than the amount previously allowed, bearing in mind that a lot of things assessed as covered by the claim under item 1 have been allowed on the reassessment on an hourly basis. In all the circumstances I consider that it is appropriate on this reassessment to allow an amount of $8,200 for general care and conduct. This is intended to be approximately 10% of the professional costs otherwise allowed. It follows that I now assess the total costs statement overall at $93,641.61 .

The costs assessor certified a total of fees and disbursements allowed of $69,019.39, from which he deducted the apportioned part of the total costs paid, $37,094.90, and of the costs of the assessment, $22,475.60, to obtain a balance payable to the respondent of $9,448.89. On 20 December 2011 a registrar ordered, pursuant to r 740, that the applicant pay the respondent this amount, and the amounts certified as payable in respect of the other two costs statements. Substituting my overall assessment, and deducting those two sums, produces a balance payable to the respondent of $34,071.11. I therefore order that the certificate of the costs assessor filed 13 December 2011, court document 20, be varied so as to substitute as the balance certified as payable to the respondent the sum of $34,071.11. I also order that the judgment of the registrar dated 20 December 2011 be varied so as to provide that the amount payable by the applicant to the respondent under that certificate be $34,071.11. The total amount payable to the respondent under that judgment becomes $35,837.07.

Application under the Appeal Costs Fund Act

The applicant, as the respondent to the application for review, sought an indemnity certificate under s 15(2) of the Appeal Costs Fund Act 1973. That section provides:

“Where an appeal against the decision of a court to the District Court on a question of law succeeds, the District Court may, upon application made in that behalf, grant to any respondent to the appeal an indemnity certificate in respect of the appeal.”

By s 4 of the Act, “appeal” is defined to include any other proceeding in the nature of an appeal, and in the circumstances a review of a costs assessment is a proceeding in the nature of an appeal, so that I accept that this was a case where an appeal on a question of law to the District Court succeeded. The question however is whether it was an appeal against the decision of a court. The term “court” is also defined in s 4 as follows:

“court includes any board, other body or person from whose decision there is an appeal to a superior court on a question of law or which may state a case for the opinion or determination of a superior court on a question of law or reserve any question of law in the form of a special case for the opinion of a superior court.”

Given the wide meaning of the term “appeal” it is apparent that there is an appeal from a costs assessor to the District Court on a question of law, under r 742 and r 743I(1), and the powers of review under r 742 are at least wide enough to accommodate an appeal on a question of law. As it happens a costs assessor may also refer any question including a question of law arising in relation to the assessment of costs for decision by the court under r 717(2), but it is not necessary to rely on this part of the definition. The crucial question however is whether the District Court is a “superior court” for the purposes of this definition.

The term “superior court” is not defined in the Act, or in the Acts Interpretation Act 1954, but it has a well-recognised technical legal meaning. A superior court is a court of general jurisdiction, that is to say, a court where all matters are within its jurisdiction unless the contrary is shown.[13] By contrast, a court that is not a superior court, generally described as an inferior court, has only the jurisdiction that is expressed by, or to be implied from, relevant legislation. The Supreme Court is the superior court for Queensland: Constitution of Queensland 2001 s 58. The jurisdiction of the District Court, by contrast, is that conferred expressly by the District Court of Queensland Act 1967 s 68, or by some other provision, and it is an inferior court. If the term “superior court” is used in its technical sense in the definition of s 4, it follows that if all that is available is an appeal to the District Court, a costs assessor is not a “court” for the purposes of s 15(2). The definition of the word “appeal” in s 4 also uses the term “a superior court”, but because of the terms of that definition it is not necessary to resolve this question to determine whether the review was an “appeal” for the purposes of the Act.
[13]R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 399; Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 at 28.

In my opinion this is to be determined by reference to the circumstances of this particular case. It would not, I think, be sufficient to make a costs assessor a court for the purposes of s 15(2) that, if the assessor happened to be assessing a costs statement pursuant to an order of the Supreme Court, there would be a right to appeal by way of review to the Supreme Court under r 742.

There is a tendency to assume that in a statute the term “superior court” is used in its technical sense. It does appear to me however that there are two indications in the text of the statute that the term was not used in the technical sense in the definition of “court” in s 4 of this Act. The first is that, if the term is to be so confined, it gives little operation to s 15(2) of the Act. That section contemplates that there can be an appeal against the decision of a court to the District Court on a question of law, and it would be odd if the extended meaning of the term “court” prima facie provided by the definition of that word in s 4 only applied in the case of a “court” in s 15(2) if there happened to be a parallel right of appeal to the Supreme Court, which in the event had not been exercised.

The definition of “court” is an inclusive one, so there is no reason to apply the “superior court” limitation in the case of a court in the ordinary sense. There is no reason to doubt that s 15(2) would apply to an appeal to the District Court from a decision of a Magistrates Court. But it would appear somewhat odd if the benefit of the extended definition would apply in the case of an appeal to the District Court only if there were a parallel right to appeal to the Supreme Court which had not in fact been exercised. I note that no distinction is drawn between the position of the Supreme Court and the District Court in s 17 or s 22 of the Act.

The other consideration is that the reference in the definition of “court” is “to a superior court” not “to the superior court”. As I have just mentioned, in the Queensland context, which is the context one would expect to be applied in the case of Queensland legislation, there is one superior court, the Supreme Court of Queensland. If therefore the intention was to refer to the superior court (of Queensland) in the technical sense, one would have expected the definition to use the term “the superior court”, or indeed simply “the Supreme Court”.

The statute must be read as a whole, and in circumstances where power is conferred on both the Supreme Court and the District Court to grant indemnity certificates, it would fit the scheme of the Act as a whole better, in my opinion, if the term “a superior court” was used, not in the absolute sense, the technical sense referred to earlier, but in a relative sense, that is to say, a court which is higher in the chain of appeals than the “court” from which the appeal is brought. That is a concept which is readily expressed by reference to the idea of a court being superior to another court or other body simply by the virtue of the existence of the right to appeal.[14]
[14]It may be that this usage was more natural in 1973 when this Act was passed. The Act is remedial legislation and should be given a beneficial interpretation: R v Webster [1987] 1 Qd R 45 at 50 per Connolly J.

This Act was passed following report 12 of the Queensland Law Reform Commission; I have read that report, and there is nothing in that report touching directly on this question, or providing any justification for the use of the term “superior court” in one sense or the other in the definition section. However the report did say at one point:

“It is not only within the structure of the Civil Courts that an appeal fund should be available. There is every reason why assistance should be available in respect of appeals from administrative tribunals, and the assistance should be available either for an appeal proper or by way of prerogative process which, in some cases, is the only remedy available. Under this umbrella would come workers’ compensation appeals, cardiac board appeals, and the like.”

At the time the Workers’ Compensation Ac 1916t provided for something like an appeal from a decision of the insurer (the SGIO) to an industrial magistrate, with a further right of appeal to the full bench of the Industrial Court, under s 13 of that Act. Although the president of the Industrial Court was a Supreme Court judge, the Industrial Court was not a superior court, having only the jurisdiction conferred on it expressly by statute. Certainly a court constituted by an industrial magistrate was not a superior court. The cardiac board was established under s 14C of the Workers’ Compensation Act 1916. Certain of its determinations were made final and conclusive by ss (5), but otherwise the rights of appeal in s 13 remained. In these circumstances, it appears that the commission contemplated that there would be a provision for an indemnity certificate in circumstances where there was a right of appeal from an administrative tribunal other than to a superior court in the technical sense. The report of the Law Reform Commission is extrinsic material for the purposes of the Acts Interpretation Act 1954 s 14B: see ss (3)(b).

I looked at this question in the context of considering whether the Queensland Building Tribunal was a “court” for the purposes of s 15(2) of the Appeal Costs Fund Act in Anderton v Parks Horticultural Services Pty Ltd (appeal 2790/96, 15-11-96, unreported). Subsequently Robin DCJ, in Queensland Building Services Authority v Morris (appeal 3319/97, 24-10-97, unreported) also considered the question and concluded that the expression “superior court” was not used in s 4 in the technical sense, but was used in a more informal sense, which would include the District Court. Accordingly his Honour allowed a certificate under s 15(2) in relation to an appeal to the District Court from the Queensland Building Tribunal. His Honour pointed out a number of other Queensland statutes where the term “superior court” was used other than in its technical sense, and drew attention to the interpretation of “superior contractor” in Hewitt Nominees v Commissioner for Railways [1978] Qd R 256.

I understand that Judge Robin’s decision was subsequently followed by a number of my colleagues, and in Bieto v Triline Australia Pty Ltd (No 2) [2003] QDC 307 I also followed it. It was held in Lennox v The Board of Professional Engineers of Queensland (No 3) [2009] QDC 282, again by Robin DCJ, that an indemnity certificate was available in respect of an appeal to the District Court from a decision of the Commercial and Consumer Tribunal, again taking a non-technical view of the term “superior court”.

Accordingly I hold that the term “superior court” in the definition of “court” in s 4 of the Act is not used in the technical sense, but is used simply to refer to a court to which an appeal in fact lies from the tribunal, person or other body within the extended definition of the term “court”. It follows that when an application to review an assessment of a costs assessor succeeds on a question of law, this court may give an indemnity certificate under s 15(2) of the Act.

The effect of the indemnity certificate is set out in s 16. In the present context that would cover any amount the applicant was ordered to pay to the respondent as the costs of the appeal, and any amount that the applicant was ordered to pay to the respondent as the costs of a new trial had in consequence of an order made upon the appeal: s 16(1)(a)(ii). However there will be no “new trial” because I have conducted the reassessment myself. The certificate would also cover the applicant’s costs of the appeal, and of a new trial had in consequence of an order made upon the appeal: s 16(1)(b). There is however no provision made for the indemnity certificate to cover the costs of the first trial, the trial from which the appeal was brought.

Besides that, the effect of the costs assessor’s decision was that the costs of the assessment that he conducted came to be payable by the respondent, and that will not change as a result of my reassessment. That is not only because the costs statement has still been reduced by an amount in excess of 15%, but because the costs assessor held that there had been a failure on the part of the respondent to comply with the disclosure obligations in the Legal Profession Act, so that the costs of the assessment were required to be paid by the respondent under s 342(2)(b) of the Act. Since the applicant has already obtained the benefit of a favourable order in relation to the costs of the assessment from the costs assessor, there is nothing in relation to the first “trial” in respect of which it would be appropriate to indemnify the applicant. The only relevance of an indemnity certificate would be in relation to the costs of the appeal.

As I noted in my earlier reasons, the matters referred to by the respondent in its application for a review covered the major issues between the parties: whether there was a valid costs agreement, whether the costs were properly assessed in accordance with ss 340 and 341 of the Act, and whether certain findings of the costs assessor, which appear to have been of general application rather than in relation to specific items, were to be set aside. I dealt with a number of issues on the appeal, the first being the question of disclosure, rejecting the respondent’s submission that the disclosure in fact made, at or about the time the retainer commenced, amounted to substantial compliance, or at least significant compliance, with the obligations of disclosure in the Act, so that s 340(1)(c) applied. In this respect I was not persuaded to depart from the conclusion of the costs assessor, and this aspect of the “appeal” failed. On the question of adequacy of disclosure, the “appeal” was entirely unsuccessful.

I did find however that the costs agreement entered into in April 2009 was valid and could apply retrospectively to the whole retainer, and on its true interpretation was retrospective and did cover the entire retainer. This did not mean that the costs were to be assessed under the agreement however, because of the failure to make proper disclosure, and it simply had the effect of excluding assessment under the Supreme Court scale, so that the costs statement which I have reassessed, which had been assessed under the Supreme Court scale, had been wrongly assessed. The respondent can be said to have succeeded in relation to this aspect of the review, particularly in circumstances where the amount allowed on the reassessment was greater than the amount previously allowed.

There was a further issue, about whether the scale of costs in Schedule 1 of the UCPR was an applicable scale of costs for the purposes of the Act, but I held that that scale was an applicable scale for that purpose, so there was no error shown on the part of the costs assessor in this respect. There was also a challenge to the costs assessor’s reduction, apparently under s 316(4), of the general care and conduct item in the bill from 30% to 20%, but the respondent was not successful in having that aspect of the costs assessor’s decision overturned or varied.

Overall therefore it seems to me that, although the respondent has had some success, and has secured a reassessment which has produced a relatively modest increase in the amount allowed in respect of the major costs statement, the respondent was unsuccessful in relation to most of the issues raised by it on the review, and in particular was unsuccessful in relation to the most important issue, whether there had in fact been adequate disclosure, or (in substance) whether any inadequacy in the respondent’s disclosure should be excused.

The question of costs of the review is something which should not be finally decided without giving the parties the opportunity to be heard further in relation to the matter, and I do not consider that I can make a final decision as to the appropriateness of an indemnity certificate under s 15(2) until I have made a decision as to the appropriate order for costs in relation to the review. In the circumstances all I will say at this stage is that I consider an indemnity certificate can be granted in respect of a review of the decision of a costs assessor, in an appropriate case.

Reasons for reassessment[15]

[15]These are in my usual discursive style, out of habit. They are not a model of reasons for a costs assessment.

There are a large number of items in the costs statement to which no objection was taken in the notice of objection dated 18 August 2011 and filed on 12 January 2012. In general my approach has been that when no objection was taken the amounts were allowed as claimed, but where I thought it appropriate I have adjusted the amounts claimed by reference to the hourly rates determined as reasonable earlier. Usually this has resulted in an allowance lower than the amount claimed,[16] sometimes an increase.[17] Given my different approach to assessment, it was appropriate to assess them on a time basis by reference to the person who, so far as I could tell from the costs statement or the original itemised account, was the person who actually did the work. This generally produced a reduction because the claim was for a minimum of a quarter of an hour.
[16]Item 89, $6.00, item 100, $6.00 taxed off, item 128, $12.00, item 129 $37.00, item 224, $12.00, item 285, $34.00, item 288, $6.00, item 290, $6.00, item 321, $12.00, item 363, $12.00, item 629, $34.00, item 789, $4.00, item 804, $35.00, item 808, $35.00, item 925, $35.00, item 1108, $20.00, item 1215, $35.00, item 1222, $35.00, item 1224 $5.00, item 1243, $38.00, item 1300, $11.00, item 1678, $35.00, item 1680, $35.00, item 1854, $35.00.
[17]Item 1108, short charged $20.00; item 1497, $64.00.

On one occasion as well I disallowed items which were not objected to because of my decision in relation to another item: item 121 was claimed in the bill as care and consideration, when the earlier statement indicates that it was for 4.5 hours for the senior lawyer to do work associated with preparing a draft bill of sale, including an element of research. There was then no objection to items 131 and 132, drafting the bill of sale and producing it. I decided that it was more appropriate to allow for this work on the bill of sale on a time charging basis, for which I allowed two hours at $250.00 an hour under item 121, but treated this as covering the work included in items 131 and 132, which were therefore disallowed.

There was no objection to item 640, but the original account revealed that this call was taken by an administrative assistant. I therefore allow 0.4 hour at $55.00, a deduction of $77.20. There was no objection to item 1460, which in fact the assessor disallowed. It appears that what really happened is that a clerk[18] spent an hour assembling the additional material to update the brief. That is reasonable, although not an attendance, and I allow $130.00, a short charge of $106.00. There was no objection to item 1791, considering a reply to the defence, which was disallowed by the assessor as covered by care and consideration, but I think it was reasonable to do this and allow this item at the rate for a senior lawyer, $135.00, a short charge of $5.00. Item 1793 was not objected to but reduced by the assessor as item 14(a)(ii) did not apply, as there was no hearing. That was correct, but it was reasonable to charge for travel and waiting time and I allow 2 hours at $270.00, a short charge of $45.00. There was no objection to item 661, but it was disallowed by the assessor on the basis that originally this was to be at no charge to the client; for the same reason, I disallow this item.
[18]I generally use the term clerk following the terminology of the costs statement, although the rate I apply is usually that for a senior paralegal rather than a law clerk, based generally on who did the work according to the statement or earlier itemised account.

I have previously referred to the proposition that what was described as the time charging objection became irrelevant when the bill was not being assessed on the Supreme Court scale. There were a large number of items where this was the only objection, but generally they were items where an hourly charge had been made under the Supreme Court scale, and where I allowed a different hourly rate. This covered most adjustments necessary because I am adopting different rates from those in the Supreme Court scale. In general I allowed my hourly rate for the length of time claimed, which resulted in short charges in the following items:

·Item 2                 $22.40
·Item 70               $12.80;
·Item 72               $16.00;
·Item 88               $16.00;
·Item 102            $64.00;
·Item 119             $12.80
·Item 126            $1.20;
·Item 147            $12.80;
·Item 159            $1.00;
·Item 183            $1.60;
·Item 196            80 cents;
·Item 207            60 cents;
·Item 217            60 cents;
·Item 280             60 cents;
·Item 286            $12.80;
·Item 395            $59.20;
·Item 465            $9.60;
·Item 615            $19.20;
·Item 616            $24.00;
·Item 624            $16.00;
·Item 628            $16.00;
·Item 695            $68.00;
·Item 794            $20.00;
·Item 888            $16.00;
·Item 938            $32.00;
·Item 978            $20.00;
·Item 1006  $20.00;
·Item 1131           $15.00;
·Item 1290           $50.00;
·Item 1416           $16.00;
·Item 1592           $48.00;
·Item 1596           $12.00;
·Item 1703           $13.00;
·Item 1756           $48.00;
·Item 1792           $40.00;
·Item 1832           $84.00;
·Item 1847           $86.40;
·Item 1870           $6.00.

There were also items where the application of the appropriate hourly rate produced a reduction: item 811, $39.00, item 1825, $8.40.

An objection was taken to items 6 and 7 but this time there were 65 documents on the court file, and I am surprised that a consideration of the file index took as little as 12 minutes. This objection was disallowed by the costs assessor, but I would allow two units at the appropriate hourly rate, a short charge of $16.20. Item 14 was objected to on the basis that it was simply a matter of noting on the screen that the recipient of an email had acknowledged receipt, so that claiming for perusal of one folio was excessive. This objection was rejected by the costs assessor, but I think there is some force in it and in assessing on a fair and reasonable basis I would allow only a nominal amount of $2.00.

Item 29 was objected to on the basis that this was simply a discussion between the partner and the employed solicitor. This is certainly not something accommodated by the Supreme Court scale, and the costs assessor treated it as covered by care and consideration. That will not necessarily be the appropriate approach to an assessment on a fair and reasonable basis, but in circumstances where I cannot identify a corresponding entry in the original itemised account I am wary about this item, and have disallowed it. Item 116 involved the partner speaking to an employed solicitor about the preparation of an appropriate bill of sale. This was objected to, and the objection was upheld by the costs assessor. This was concerning the preparation of a bill of sale as security in relation to the negotiations between the applicant and the former solicitors to hand over the file, which I consider it is reasonable to charge for, and I allow 1 hour for each, a total of $48.00, so $14.00 comes off.

Item 41 was a telephone call to the client at 0.1 of an hour which was claimed under item 16(a); I would allow $28 on a time changing basis, a reduction of $34. Similar items, for short phone calls claimed as attendances under item 16(a), which I have allowed on a time charging basis, and the amounts taxed off, are as follows:

·Item 361             $37.00;
·Item 365             $37.00;
·Item 1113  $35.00;
·Item 1137  $5.00;
·Item 1139  $5.00;
·Item 1143  $5.00;
·Item 1197  $5.00;
·Item 1405  $38.00.

Item 49 was objected to as administration, and I would disallow this, noting that originally in the itemised account no charge was attributed to this call.

There were a number of items which were objected to and disallowed essentially on the basis that they amounted to legal research. I have looked at these on an individual basis, essentially by reference to whether the particular topic was one with which I would expect an ordinary litigation solicitor to have some reasonable familiarity, or whether it was reasonable for some research to be done because of the unusual nature of the issue. For example, what was raised by item 61 was a question about the obligations of trustees appointed to sell jointly owned property, something which presumably arose because the client was concerned about the actions of the trustees. In general I have allowed these items on an hourly rate rather than treating them as either something covered by the item 1 claim, or something the solicitor should not be charging for at all. It appears from the original account that item 61 was undertaken by a law clerk, and I would allow the claim for item 61 at 4.5 hours at the rate for a law clerk, $140 per hour, and the related items 62 and 63 at the hourly rate for 1.6 hours, rather than as claimed. This produces an amount of $630 for item 61 and $224 for items 62 and 63, a total taken off the statement of $608.80.

Items 95 and 96 involved an administrative assistant looking up contact details for counsel on the Bar website. This was objected to as administration, and disallowed. It is not an attendance and should not have been claimed under items 8 and 11 of the scale, but I think it is reasonable to make an allowance of 0.1 of an hour for an administrative assistant, $5.50. The balance of $21.70 is taxed off. The position is similar with items 103-105, where I allow 0.1 of an hour at $120, $12, for the phone call including looking up the number, and $30.10 is taxed off. This is the amount of time claimed in the original particularised account. Item 1811 was for looking up a fax number, but I think this should be covered by the charge for fax transmission, item 1813, and I disallow this item.

One matter where there were a lot of objections, and which frequently arose, was where the costs statement claimed under item 9 for examining enclosures to a letter or email, on the basis of a minimum 0.25 of an hour charge, when obviously nothing like that amount of time was in fact spent. Item 35 and 36 were claimed under item 9, examining the enclosures in a letter from Pilot Partners to Mr Stone, for which a total of 0.5 of an hour was claimed. The costs assessor made only the time costing adjustment, but I note the original account attributed only 0.2 of an hour to perusal of this material. Accordingly for items 35 and 36 I allow 0.2 of an hour at $280.00, a total of $56.00, so that between these two items $121.85 is disallowed. Item 98 was examining a letter from the solicitors for the defendants to the previous solicitor for the applicant for which 0.1 of an hour was claimed. I think in this context it is reasonable to allow an appropriate period for examining the enclosure at the time charging rate, and for item 98 I allow 0.1 of an hour, $28, so that $33.75 is taxed off. Item 111 involved perusing an enclosure to a letter in the form of a bill of sale, where it was objected that the whole bill would not require perusal. I note that the costs assessor allowed half an hour for this, and so would I, which gives $140, so I would tax off $112.

Another example is item 118, where one hour was claimed for examining 46 pages of documents enclosed with a letter from the client, which seems a long time, particularly when the original itemised account only claimed 0.2 of an hour. I allow 0.2 of an hour or $56 for item 118, so $191 is taxed off. Items 165, 167 and 170 were objected to by reference to the amounts claimed, but only item 170 was reduced by the costs assessor. I allow these at the times claimed at the rate I have fixed for a senior lawyer, $250 per hour, which produces amounts of $125, $25 and $25 respectively, a total of $72 taxed off.

Other items where I have adopted the same approach and the amounts taxed off are:

· Item 176 and 177 $48.50

· Item 210 $36.75 (allow .1 hour)[19]
[19]The period claimed is excessive as this is a simple document.

· Item 214 $11.75

· Item 223 $11.75

· Item 278 $11.75

· Item 393 $48.80 (allow .2 hour) [20]
[20]The period claimed is excessive as detailed examination unnecessary.

· Item 403 $33.75 (allow .1 hour)[21]
[21]Again the time claimed is excessive for 2 utility bills.

· Item 411-413 $102.70 (allow .1 hour)[22]
[22]These documents had been seen already, and required only confirmation.

· Item 461 $61.75[23]
[23]This required no more than a glance, and is disallowed.

· Item 653 $49.75 (allow .1 hour @ $120.00)

· Item 658 $33.75 (allow .1 hour)

· Item 681 $38.00 (allow .1 hour)[24]
[24]The period claimed is excessive for 2 pages.

· Item 738 $35.00

· Item 912 $35.00 (allow .1 hour)[25]
[25]This was only 3 pages, and the assessor allowed 2 folios only.

· Item 929 $35.00 (allow .1 hour)

· Item 951 $65.00[26]
[26]This was just a page of interest rates; it required only a glance, and this is disallowed.

· Item 981 $35.00

· Item 1041 $35.00 (allow .1 hour)

· Item 1075 $35.00

· Item 1118 $5.00

· Item 1194 $65.00 (disallowed)

· Item 1275 $35.00 (allow .1 hour)

· Item 1352 $35.00 (allow .1 hour)

· Item 1359 $35.00 (allow .1 hour)

· Item 1394 $5.00

· Item 1399 $35.00 (allow .1 hour)

· Item 1468 $35.00 (allow .1 hour)

· Item 1508 $65.00 (disallowed)[27]
[27]This would have required no more than a chance to confirm.

· Item 1512 $65.00 (disallowed)[28]
[28]This would not have changed from the day before: see items 1507, 1508.

· Item 1555 $65.00 (disallowed – like item 1508)

· Item 1583 $35.00 (allowed .1 hour)[29]

· Item 1820 $52.00 (allow .1 hour at $130)

[29]This was an order made the previous year, which was essentially spent.

There were also a few occasions where enclosures with letters were claimed under item 8, perusing documents, where it was objected that perusal was unnecessary, and where that was upheld by the costs assessor. Item 307 claimed perusing 30 folios under item 8, but the assessor allowed examination for 15 minutes and taxed off $64.25. I consider that one would exhaust the fascination of 27 pages of counsel’s fee notes in 0.2 of an hour, which I allow at a law clerk’s rate, so $102.00 is taxed off. Items 353 to 360 were perusing eight enclosures with the letter in item 352, which were allowed on an examination basis for one hour by the costs assessor. I accept that one hour was reasonable, and allow at $280.00, so $35.00 is taxed off. The position was similar with items 961 to 964, except that one was an examination; for the four, I allow .4 hour $120, and $19.80 is taxed off. Item 983 was for perusal of a water bill, claimed for two folios; I agree that this is excessive, and allow only one, so $4.40 is taxed off.

There were a number of letters where it was said that the claim should have been on the basis of a short letter under item 17(1) rather than under item 17(2). Given that I am not assessing the bill on the Supreme Court scale this is a somewhat artificial objection, but if in fact it was a short letter the charge should be lower than for an ordinary letter on any basis, and on the whole it seems to me appropriate in a number of cases to uphold this objection and for convenience to allow the Supreme Court scale amount for a short letter in lieu of the amount claimed. The items where this has been done and the amounts taxed off are:

·Item 149             $18.00;
·Item 387             $18.00;
·Item 657             $18.00;
·Item 993             $19.00;
·Item 997             $19.00;
·Item 1193           $19.00;
·Item 1202           $19.00;
·Item 1302           $19.00;
·Item 1311           $19.00;
·Item 1355           $19.00;
·Item 1377           $19.00;
·Item 1379           $19.00;
·Item 1632           $19.00.

Similarly, objection was taken to a number of telephone calls on the basis that they fell within item 12, something generally upheld by the assessor. Again in most cases I think it is more convenient to allow for what look to be relatively short formal calls under item 12 rather than on a time basis, and generally that is what I have done. The items where this has been done and the amounts taxed off are:

· Item 259 $47.10

· Item 833 $3.50

· Item 853 $3.50

· Item 881 $3.50

· Item 883 $7.30

· Item 919 $3.50

· Item 932 $49.50

· Item 946 $3.50

· Item 1093 $3.50

· Item 1121 $3.50

· Item 1133 $3.50

· Item 1155 $49.50

· Item 1164 $3.50

· Item 1169 $3.50

· Item 1228 $3.50

· Item 1258 $3.50

· Item 1277 $3.50

· Item 1366 $3.50

· Item 1447 $3.50

· Item 1471 $3.50

· Item 1498 $3.50

· Item 1501 $3.50

· Item 1577 $3.50

· Item 1623 $3.50

· Item 1626 $3.50

· Item 1652 $49.50

· Item 1779 $49.50

· Item 1804 $3.50

· Item 1839 $49.50

· Item 1865 $3.50

Items 203 and 204 were objected to and disallowed by the costs assessor. There was evidently some difficulty about the arrangements for the file being transferred from the former solicitor for the applicant to the respondent, and some negotiations about putting in place an arrangement between the applicant and the former solicitor otherwise to secure that solicitor’s costs. Item 203 was evidently a discussion between the partner and the employed solicitor about this matter and about the terms of the bill of sale, and item 204 was some additional time by the employed solicitor (as appeared from the original account) in making amendments to a pre-existing document. I think it was reasonable in the circumstances for some time to be spent on this, but the periods claimed seem too long, and I will allow 0.2 of an hour for each of the partner and the employed solicitor under item 203, $106.00, and 0.1 of an hour for item 204, $25.00, so the total taxed off is $55.00. There was further work on the bill of sale later at item 235, in the light of further developments, and I allow .2 hour, $50, $12 taxed off.

Item 208 was for the employed solicitor to document his conversation with the client, which also strikes me as reasonable and I will allow 0.2 of an hour, $50.00, taxing off $12.00. Of course, none of these items was an attendance. The same applies to items 220, 226 and 273, again with $12.00 taxed off each. There were other discussions between the partner and the employed solicitor at item 232 and item 253, which again seem reasonable and I allow at 0.1 of an hour for each, so that $9.00 is taxed off each.

Items 248 and 251 are letters originally sent to counsel and forwarded by him, one from the associate and one from the solicitor for the defendants, a copy of their letter to the associate. Both were claimed at the letter rate, the former was reduced, presumably to the folio rate, but the latter was not. This is a situation where counsel was really just acting as a post box and the letter was in substance to the solicitors, and I think it reasonable to allow both at the letter rate. The latter letter prompted a discussion between the partner and the employed solicitor about the foreshadowed application to strike out the pleadings, item 253, the cost of which was disallowed, although I think it was reasonable given their respective involvement in the matter, and I allow $53.00 under this item, $9.00 off. Item 255 was objected to, and I think the objection should be upheld, not on the ground advanced but because, if item 254 was properly claimed on a different file, so was this item.

Item 296 was for the solicitor driving to Laidley to see the client, to obtain his signature on an authority and undertaking and to get some further instructions, and then seeing the former solicitor with the bill of sale and undertaking, for which three hours was claimed. It was objected that this did not require personal attendance by the solicitor, but in the circumstances I think it was reasonable for the solicitor to bring these documents down to ensure that they were properly signed and delivered, and I allow three hours at $280.00 which produces a short charge of $96.00. Item 308 was for a clerk updating figures in the undertaking, presumably before it was actually taken to the client for signature at item 296. This is in effect finalising the terms of the undertaking before it was executed, and I allow 0.2 of an hour at $140.00, so there is a short charge of $10.00 here.

Items 299 and 300 were objected to and disallowed. These were for investigating what had to be done to get the bill of sale stamped. In the initial account no charge was made for these matters, and bearing that in mind I do not think it reasonable to charge the client for them; they were really self-education. I disallow items 299-301, $85.25 taxed off. Item 302 was time taken to organise the registration of the bill of sale, which was reasonable. The amount claimed is the equivalent of half an hour at clerk’s rates, and I simply allow the amount as claimed.

Item 1004 was claimed as a letter from some accountants who forwarded tax returns and other documents, which was disallowed as the letter was not sighted; it was said that the documents referred to in item 1005 as enclosures to that letter had in fact been brought in by the client that day, item 1006. The assessor disallowed item 1004 although there was no objection to it, and I agree, and item 1005, but I allow half an hour with the client, item 1006,[32] and half an hour for examining the documents he brought in, a short charge for item 1005 of $20. Item 1007 was looking again at a letter which had already been charged for in relation to an application by the defendants’ solicitors, I allow only .1 of an hour, and $35 is taxed off. In relation to this application there was then two hours claimed for research into a legal issue raised by it (item 1011) and the preparation of submissions in writing was claimed under items 4 and 5 of the scale at items 1012 and 1013. All these were objected to and disallowed, but I think it is reasonable to allow some preparation in relation to the hearing of the defendant’s application, and I think two hours reasonable given the somewhat esoteric point raised, so that $144 is taxed off.
[32]Short charge of $20, already dealt with at [44].

Item 1020 was perusing the defence to the most recent amended statement of claim, claimed on the folio basis but I think it more reasonable to allow on a time basis, and I allow .7 of an hour, $210, a short charge of $12. Item 1023 was time spent on the partner settling the written submissions, and item 1024 was for reviewing and executing the consent order and the submissions. Neither of these was an attendance, and in my opinion both are covered by the previous allowance for preparation in relation to the application for the appointment of the trustee, so both are disallowed, and $195 taxed off. Item 1036 was half an hour of the clerk’s time going through some cheque records and invoices; I allow this at $30, so $8 is taxed off. Items 1044 and 1045 involved work updating the list of documents, claimed as .2 hour for the solicitor and one hour for support staff. This was seen to produce five folios of additional list of documents, and I think for that quantity the time claimed is reasonable, and allow $60 plus $150, a total of $210, so $115 is taxed off. Item 1042 claimed the sum of $1, apparently in error; that should be taxed off.

Item 1061 was for a telephone call when the Registry rang, handled by a clerk for .2 hour, which at the rate for a senior paralegal produces a short charge of $7. Item 1069 was attendance at court by telephone for the review, including some preparation, so that a total of .6 hour was claimed. It appears that the preparation time was disallowed by the assessor, but in my opinion it is reasonable to allow some preparation time, and not much is claimed here. I allow .6 of an hour, so there is a short charge of $9.60.

Item 1130 was two hours spent preparing for a conference with the client, which lasted .3 of an hour and involved two solicitors: items 1131, 1132. I think it was reasonable for the solicitor to prepare for the conference, and in the circumstances reasonable for both solicitors to attend the conference, and I allow 2 hours at $300 for item 1130, a short charge of $80.[33] Item 1140 was for a further conference with counsel, including some preparation which was disallowed by the assessor; again, I think preparation time was reasonable and I allow 2.2 hours, a short charge of $88. Item 1145 was claimed as an attendance “to consider” a notice of oral hearing, for which a charge was then made for drafting and producing. This was objected to as not an attendance, which is correct, and the appropriate allowance for the notice was made in items 1146 and 1147. This was taxed off by the costs assessor, and I agree and disallow it. There was a further claim at item 1148 for reviewing and executing the notice, which was not an attendance, and I consider it should be covered by item 1147, so it is disallowed.
[33]Item 1131 has already been dealt with, and item 1132 is allowed as claimed.

Item 1157 was objected to and disallowed as administration; it appears to be a charge for a clerk passing on a message to the partner, and I would also disallow this as not something that should be charged for. Item 1180 was claimed under item 9 for examining a sealed copy of a notice forwarded by the town agent, a notice which had been prepared by the respondent. The only thing to be done was to confirm that the court seal was on it. Examination was unreasonable and the item is disallowed. Items 1189 and 1190 were related to the identification of a date for the oral hearing, initially via a website, then in a conversation with the Registry. The former was not an attendance but I allow .1 of an hour for a paralegal, $13 ($6 taxed off), for that and .2 of an hour, $26, a short charge of $7, for item 1190.

The defendant’s solicitors sent a r 444 letter concerning disclosure at item 1160; item 1196 was .7 of an hour claimed (incorrectly as an attendance) for thinking about the need for a r 445 reply. This was disallowed by the assessor. A r 445 letter was charged for by the respondent at item 1293, and in the circumstances I agree with the assessor and do not think that it was reasonable for the solicitor to charge separately for item 1196, so $182.00 is taxed off. Item 1204 was one hour claimed for time spent considering material to be included in the brief, disallowed by the assessor as care and consideration. I think it was reasonable for the solicitor, particularly in a complicated matter, to devote some consideration to what should be included in a brief to counsel, and I allow this at the rate appropriate for an employed solicitor, on the basis of the original account, producing a short charge of $10.00. Item 1207 was a charge for photocopying 186 pages which were then electronically scanned to form part of the brief to counsel: item 1208. The former item was objected to, and I agree that it was unnecessary to photocopy documents before they were scanned for transmission to counsel, and disallow item 1207.

Item 1236 appears to have been one hour for a paralegal to find the relevant directions on the file, so that counsel could be advised of them at item 1237. Given the time which had been spent sorting out the file it ought not to have been difficult to locate the relevant documents so that the necessary information could be provided to counsel, and I allow only .1 of an hour, so $63.00 is taxed off. Item 1240 is a discussion with counsel about the matter by telephone, for which 1.9 hours was claimed including preparing a diary note of the conversation. The costs assessor allowed 1.8 hours, apparently excluding the time for the memo, but I think it reasonable to document the results of the conversation and I allow 1.9 hours at $300.00, a short charge of $76.00. Item 1241 was for an employed solicitor also to attend that conference, but this was disallowed by the costs assessor on the ground that it was not noted on the time sheets, and on that basis I also disallow it.

Items 1244-1250 were objected to by the litigation funding objection, and should be allowed. They include item 1247 which was for 1 hour of a paralegal’s time, for which I allow $130.00, a short charge of $54.00. Item 1265 was a charge for perusing submissions forwarded by counsel for discussion at item 1264, for which $21.00 was claimed. There was then a telephone call with counsel for .3 of an hour discussing the submissions in item 1267. Both of these were disallowed by the assessor, but given the complexity of the matter I think it reasonable for the draft submissions to be provided by counsel and read and considered by the solicitor, and to be discussed, and for items 1265 and 1267 I allow .5 of an hour at $300.00, $140.00, and $20.40 is taxed off. Item 1268 was for the attendance of a second solicitor at a conference; the objection to this item was disallowed on the ground that the other solicitor attended a different conference in preparation for the hearing, and for this item I allow .3 of an hour at $270.00, $81.00, a short charge of $3.00.

Item 1282 was claimed as an attendance which it was not, but it was reasonable for a paralegal to spend .1 of an hour locating the relevant documents for forwarding and I allow $13.00, $6.00 taxed off. Items 1314 and 1315 were for attendance on the review on 28 November, with counsel, which seems together to have occupied the solicitor’s time from 6.10am to 7.10pm, including travelling time. There seemed to be some difference between what was claimed here and what was claimed in the earlier detailed amount. In all the circumstances I allow 5.2 hours at $300.00 and 4.4 hours at $150.00 for travelling and waiting, $2,220.00, a short charge of $311.00. On the basis of all of the available material, it seems to me that this is a reasonable charge. This was a significant review at which among other things consideration was given to the terms of the pleadings and parts of the pleadings were struck out and had to be re-pleaded, and obviously a substantial amount of time was devoted to the matter this day.

Item 1388 was subject to the litigation funding objection which I overruled. The discussion on this occasion was for .6 of an hour, and I allow that at the employed solicitor’s rate, producing a short charge of $6.00. There was a telephone conference with the client on 12 December discussing the coming mediation and other matters, involving both the partner at item 1416 and the employed solicitor item 1417; the latter was disallowed by the assessor, but it appears from some earlier entries such as item 1410 that the employed solicitor had been particularly involved with the preparation for the mediation, and in all the circumstances I think it was reasonable for him to attend this conference as well. For his time I allow $108, a short charge of $4. Items 1418 and 1419, incorrectly claimed as attendances, were extracting information from the file either for forwarding to potential litigation funders or for some other purpose, for which a total of .8 of an hour was claimed. This appears in fact to have been done by an administrative assistant, and I allow .8 of an hour at $60, $48, so $12.80 is taxed off.

Item 1424 was for 2.3 hours preparing for the mediation, disallowed by the assessor on the basis that this was covered by care and consideration. In my opinion it was reasonable to prepare for the mediation, and the time taken seems to me reasonable, so this should be allowed at the appropriate rate, a short charge of $92. The following item, attendance at the mediation, should also be allowed at the same rate, and I would allow travelling time, item 1426, at half the rate, a total short charge of $289. Item 1442 was claimed as an attendance to uplift the brief and disallowed, apparently on the basis that the brief was collected by a courier: item 1443. I allow $5 for the courier’s fee and tax off $19. Item 1449 was claimed as an attendance, which is was not, but I allow .3 of an hour for a paralegal to dig out the further and better particulars. I allow $39, and the same amount is taxed off.

Item 1457 was for a clerk to spend time updating the list of documents, although there was a separate claim for drawing amendments to the list of documents and then producing the amended list. I think what this means in practice is that some time was spent gathering and collating the relevant documents, and then time was spent actually formulating the amendments to the list of documents, and then the whole amended list was produced. The first charge was disallowed on the basis that this was not allowed on a time based charge, but I consider it reasonable for this to be done and if it took a further 10 folios of list, there must have been quite a few documents involved. I allow 1.2 hours at a rate for a paralegal, which produces a short charge of $64.80, but like the assessor I will allow the item 5 claim in item 1459 only for 10 folios, so $264 is taxed off.

It appears that on 19 January the client wanted some of the documents held by the firm back, and there was a charge on item 1479 for .3 of an hour for a paralegal to locate the relevant documents on the file, and then at item 1480 .2 of an hour to see the client to hand them over. If the client wanted some of the documents back it would have been reasonable to dig them out for him, and there were evidently a lot of evidentiary documents held by the respondent at that time, so these seem to me to be reasonable and I allow them at a paralegal rate, a total short charge of $23.20. The position was similar with item 1488, where a paralegal spent one hour preparing an income and expense schedule for the client. This was objected to on the ground that it should have been charged on a folio basis, but if it was done it was reasonable to charge for it, and I allow it at the rate determined earlier, which again produces a short charge this time of $54.

Much the same applies to item 1502, where the solicitor spent 1.2 hours updating the further and better particulars in the light of recent instructions from the client, which seems reasonable and I allow this, a short charge of $48. This information had apparently been obtained in a conference with the client at item 1497, and there was a further hour claimed at item 1496 in preparation for the conference, which involved taking the client through issues arising out of the need to re-plead, to identify what additional instructions were required. Consistently with my general approach I allow both the conference and preparation at the rates I have determined, which produces a total short charge of $104.[34] At item 1489 there was a charge for a clerk reviewing the amended list of documents, though it is not clear whether this involved updating the list because additional documents were obtained or just checking whether it was accurate. This was objected to and disallowed as covered by care and consideration, but if it was in fact done it ought to have been charged for, and I would allow .3 hour for a paralegal, a short charge of $16.20.
[34]Item 1496 $40, item 1497 (referred to earlier) $64.

Items 1505 and 1506 were claimed as attendances, which they were not. It was reasonable to look on the Law Society website as a form of legal research which I would allow at an hourly rate rather than as covered by care and consideration, and I disallow the litigation funding objection to item 1506; I allow half an hour for a paralegal for both of these items, which produces a short charge of $17. Item 1514 was for a paralegal collating information on on-farm and off-farm income and expenses, which was reasonable and at the rate I have nominated produces a short charge of $86.40. This item appears not to have been disallowed by the assessor, although a similar item, 1557, was, for which I allow a short charge of $54, for the same reason, and item 1568, where I allow a short charge of $25.60. There was obviously a lot of information which had to be extracted and collated from financial documents in order to determine just what they showed and to present the information in a systematic form for a court.

Item 1576 was another litigation funding objection, I allow .7 of an hour at the employed solicitor rate which produces a short charge of $7. Item 1578 was similar, and there is a short charge of $20.00. Item 1600 was objected to as covered by care and consideration and disallowed by the assessor. It was appropriate to spend time considering amendments to the statement of claim, but that does not sound like something usefully considered by a paralegal, who apparently did this, and in all the circumstances I am not persuaded that this charge was reasonable, and it is disallowed. Items 1603 and 1604 appear both to be reviewing the amended statement of claim prior to execution; these are not attendances, and I allow .1 of an hour, $30, so $100 is taxed off. Item 1615 at the senior lawyer rate produces a short charge of $12, overruling the litigation funding objection.

Items 1635 and 1636 were drafting and producing a memorandum of issues to be discussed with the client, charged for on a folio basis. The assessor disallowed the former. I think in substance this is preparation for the conference and I allow half an hour for the employed solicitor, a short charge of 60 cents. Item 1637 is then the conference with the client for which 2.1 hours was claimed. This was objected to on the ground that it must have included .3 of an hour for the typewritten memorandum which should be disallowed. I would not disallow that since it was reasonable to record the client’s instructions, but it appears that the assessor disallowed part of this conference on the basis some of the matters covered were properly charged on another bill, and presumably that time was allowed on that bill. It also appears that time spent discussing litigation funding was disallowed. Ultimately 1.5 hours was allowed, but that should be allowed at my rate. So the amount taxed off is $96.

Item 1645, a discussion between the partner and the solicitor about the progress in the matter, was disallowed as care and consideration, but I allow .5 of an hour at $270, a short charge of $5. The objection to item 1647, a telephone call to the client, was disallowed by the assessor, and I disallow it as well. Items 1657 and 1659 were perusal of two return receipts from the solicitors for the defendants. This should require no more than a glance, and I do not consider that it is reasonable to charge for perusal, or indeed anything else, and these items are disallowed, as indeed they were by the assessor. Item 1688, perusing the amended defence, was objected to on the ground that the perusal should be allowed only for the part amended, but I think that this is an unduly narrow view, and that it was reasonable to consider the whole defence in the light of the amendments, so that the approach in the statement is reasonable and I disallow the objection. On the other hand, it is a little surprising that a further .6 of an hour should be required for considering the need for particulars in the light of the amendments made, item 1690; this was disallowed by the assessor as covered by care and consideration. I would prefer to allow a reasonable charge for time, but I think a reasonable time is .3 of an hour, particularly bearing in mind that it appears that no request for further particulars was ever made, and $75 is taxed off. It appears that a further .8 of an hour was spent considering this point at item 1721, and I also disallow that item, $208 taxed off.

Item 1713 is examining the sealed amended defence forwarded under cover of letter 6 March 2009, item 1712; this was objected to as unnecessary given that the document had already been perused, and I think it was sufficient just to check that the sealed defence was in the same terms as the version forwarded earlier, for which I allow .1 of an hour for the employed solicitor, $38 taxed off. Item 1720 was getting the documents ready for inspection when the other side attended to inspect them, claimed on a time basis though not claimed at item 1726, and there was further preparation at item 1729. All of these were disallowed by the assessor as covered by care and consideration. I think that some preparation for inspection would inevitably have been necessary given the large volume of documents, and I allow for item 1720, 2.7 hours for a paralegal, a short charge of $145.80. I also allow two hours for a paralegal for item 1729, so $260 is taxed off. The actual inspection appears to have been covered by items 1730-1734, a total of 6.6 hours which at the rate for a paralegal comes to $858, a short charge of $345.

Item 1736 was photocopying a large number of pages at the request of the solicitors for the defendants so that copies could be supplied. This was objected to on the ground that commonly documents provided on disclosure are copied at the expense of the party requesting them, and disallowed on that basis, and I agree with this approach, and disallow this item. Item 1737 was a search of the Hiddenvale property claimed under item 11; I allow .2 of an hour for a paralegal, $26, a short charge of $2. The solicitors for the defendants raised some issues about disclosure (item 1743) and as a result the senior lawyer spent time in research about disclosure in a partnership dispute, item 1747; I regard this as reasonable, and allow a short charge of $25.00. Objection was made to letters forwarding the client a copy of the amended defence and a copy of the draft request for particulars: items 1772, 1775. In this case however it appears the client was expecting to exercise fairly close supervision over matters such as pleadings,[35] and in the circumstances I think this was reasonable, though I agree that there is no reason why these two documents could not have been sent in the one envelope, and I disallow items 1775 and 1777.
[35]See items 846, 864.

The objection to item 1786 was disallowed, but it seems to me that this should have been a short letter, and $19 is taxed off. Item 1795 was for reviewing and executing the reply, claimed under item 16(a), which was not appropriate and disallowed by the assessor; given that drafting and producing this had been claimed separately at items 1789 and 1790; this item is disallowed. The claim for an attendance to deliver the reply at item 1798 was disallowed by the assessor on the ground that it was not verified by a file note; he allowed only postage $1 instead. The respondent could only claim attendance if it was properly verified, and I adopt the same approach, so $23 is taxed off. Items 1799 and 1800 were reduced by the assessor on the basis that the relevant material was only four folios in length. I accept the assessor’s count on this and will also tax off $22.20.

Items 1808 and 1809 were for drafting and producing a r 444 letter claimed at the rate for eight folios. This was disallowed in part by the assessor who allowed only the special letter rate, but eight folios is a large letter and on the whole I think that when a special letter is of that size it is reasonable to allow the equivalent of the drafting and producing rate, and I will allow these items as claimed. Item 1824 was preparation for a review, for which .5 of an hour was claimed, and, as elsewhere, I think it is reasonable to allow some time for preparing for these reviews and I allow .5 of an hour at $270, a short charge of $5. It appears that it was at this review that it was disclosed that the plaintiff had been writing directly to the court, and at item 1828 there was a claim for 1.6 hours for legal research to examine the consequences of this; this was objected to but allowed (apart from a time costing adjustment) by the assessor, and at my rate for an employed solicitor there is a short charge of $16.

There was also a discussion at item 1831 between the partner and the employed solicitor about these letters, which I think was also reasonable and I allow .7 of an hour, producing a short charge of $28. This was also in part no doubt preparation for a conference with the client which went for 2.1 hours, attended by both the partner and the employed solicitor; the presence of the latter was objected to, but I think in the circumstances given the serious situation with which the applicant was confronted it was important for both solicitors to be present, particularly as it was the employed solicitor who had been present at the review and had done the research on the effect of such conduct, and I allow item 1833 which at the employed solicitors rate produces a short charge of $21.

Item 1837 was objected to as an item 12 call, but if it took the paralegal half an hour to get whatever information was required from the Taxation Office I do not think it qualifies as an item 12 call, and I will allow it as claimed. The objection to item 1848 appears to have been disallowed by the assessor, but at my rate for a paralegal I allow a short charge of $97.20. Item 1849 was claimed for considering the appointment of a special referee to quantify the contribution of each partner, which was disallowed as covered by care and consideration. I agree that this should be disallowed, essentially on the basis that that was not a sensible approach and not worth considering for half an hour. For the same reason I disallow items 1850 and 1851. Item 1869 seems to be related to the process of supervision by the employed solicitor of disclosure, which I think was reasonable and I allow this, which at my rate produces a short charge of $4. In the case of any items to which objection was taken and which are not referred to individually or covered by my general comments, the objections were considered and disallowed, taking into account what the assessor did with the item.

Summary of reassessment

It follows that the following items in the costs statement were adjusted either by being increased (short charged) or by being decreased (taxed off):

SCHEDULE
Item No.	Short Charge	Tax Off
2	22.4
6, 7	16.2
14	2.2
29	62
35, 36	121.85
41	34
49, 50	15.15
61	536
62, 63	72.8
70	12.8
72	16
88	16
89	6
95, 96	21.7
98	33.75
100	6
102	64
103-105	30.1
111	112
116	14
118	191
119	12.8
121	500
126	1.2
128	12
129	37
131, 132	169.6
147	12.8
149	18
159	1
165	1.5
167	36.75
170	36.75
176, 177	48.5
183	1.6
196	0.8
203	18
204	37
207	0.6
208	12
210	36.75
214	11.75
217	0.6
220	12
223	11.75
224	12
226	12
232	9
235	12
253	9
255	74.4
259	47.1
273	12
278	11.75
280	0.6
285	34
286	12.8
288	6
290	6
296	96
299-301	85.25
307	102
308	10
314	37
316-319	38.4
320	11.75
321	12
340	62
351	47.1
353-360	35
361	37
363	12
365	37
386	18
387	18
390, 391	34
393	48.8
395	59.2
396	70
398	14.4
403	33.75
406, 407	125.6
408	74.4
409	1
411-413	102.7
419	62
436-458	388
461	61.75
465	9.6
472	6
473-613	12,592.05
615	19.2
616	24
623	60
624	16
625	54.4
628	16
629	34
635, 636	185.8
640	77.2
642	338.4
653	49.75
657	18
658	33.75
661	18
663	24
673	113.4
674	22.8
681	38
691	68
692	4.4
693, 694	15.6
695	68
699	24
715, 716	218.2
719	60
720	35
738	35
742	18
764	35
783	8
789	4
793	66
794	20
795	5
804	35
808	35
810	12
811	39
815	11
817	68.4
833	3.5
838-841	244
842, 843, 846, 847, 848, 861, 863, 864, 865, 866, 878		405
853	3.5
880	4.4
881	3.5
883	7.3
888	16
901	5
912	35
919	3.5
921, 922	66
925	35
929	35
932	49.5
938	32
944	7
946	3.5
947	7
951	65
957	65
961-964	19.8
971	5
978	20
981	35
983	4.4
993	19
997	19
1004	31.5
1005	20
1006	20
1007	35
1012, 1013	144
1020	12
1023	130
1024	65
1036	8
1041	35
1042	1
1044, 1045	115
1061	7
1069	9.6
1075	35
1093	3.5
1108	20
1113	35
1118	5
1121	3.5
1130	80
1131, 1132	15
1133	3.5
1137	5
1139	5
1140	88
1143	5
1145	130
1148	65
1155	49.5
1157	7
1164	3.5
1169	3.5
1180	65
1189	6
1190	7
1193	19
1194	65
1196	182
1197	5
1202	19
1204	10
1207	37.2
1215	35
1222	35
1224	5
1228	3.5
1236	63
1240	76
1241	494
1243	38
1247	54
1258	3.5
1265, 1267	20.4
1268	3
1275	35
1277	3.5
1282	6
1290	50
1300	11
1302	19
1311	19
1314, 1315	311
1352	35
1355	19
1359	35
1366	3.5
1377	19
1379	19
1388	6
1394	5
1399	35
1405	38
1416	16
1417	4
1418, 1419	12.8
1424	92
1425, 1426	289
1442	19
1447	3.5
1449	39
1457	64.8
1459	264
1460	106
1468	35
1471	3.5
1479	16.2
1480	7
1488	54
1489	16.2
1496	40
1497	64
1498	3.5
1501	3.5
1502	48
1505, 1506	17
1508	65
1512	65
1514	86.4
1555	65
1557	54
1568	25.6
1576	7
1577	3.5
1578	20
1583	35
1592	48
1596	12
1600	65
1603, 1604	100
1615	12
1623	3.5
1626	3.5
1632	19
1635	0.6
1637	96
1645	5
1652	49.5
1657	4.4
1659	4.4
1678	35
1680	35
1690	75
1703	13
1713	38
1720	145.8
1721	208
1729	260
1730-1734	345
1736	177.6
1737	2
1747	25
1756	48
1776, 1777	32.5
1779	49.5
1786	19
1791	5
1792	40
1793	45
1795	65
1798	23
1799, 1800	22.2
1804	3.5
1811	24
1820	52
1824	5
1825	8.4
1828	16
1831	28
1832	84
1833	21
1839	49.5
1847	86.4
1848	97.2
1849	130
1850, 1851	65.25
1854	35
1865	3.5
1869	4
1870	6
TOTAL	TOTAL
4723.1	23163.65

Citations

Paroz v Clifford Gouldson Lawyers [2014] QDC 125

Most Recent Citation

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CITATION:	Paroz v Clifford Gouldson Lawyers [2014] QDC 125
PARTIES:	LESLIE ROLAND PAROZ (Applicant) AND CLIFFORD GOULDSON LAWYERS (Respondent)
FILE NO/S:	OA 1747/2010
DIVISION:
PROCEEDING:	Review of costs assessment – reassessment
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	30 May 2014
DELIVERED AT:	Brisbane
HEARING DATE:	26 June 2012, and submissions in writing
JUDGE:	McGill DCJ
ORDER:	Order that the certificate of the costs assessor filed 13 December 2011, court document 20, be varied so as to substitute as the balance certified as payable to the respondent the sum of $34,071.11. Order that the order of the registrar dated 20 December 2011 be varied so as to provide that the amount payable by the applicant to the respondent under that certificate be $34,071.11.
CATCHWORDS:	COSTS – Solicitor and client – assessment – fair and reasonable basis – details of reassessment – order for payment varied. COSTS – Appeals – indemnity certificate – whether applies to an appeal by way of review of an assessment by a costs assessor. Legal Profession Act 2007 s 341. Appeal Costs Fund Act 1973 s 4 - “court” Bieto v Triline Australia Pty Ltd (No 2) [2003] QDC 307 – cited. Re Carter Newell’s Bill of Costs [1996] 2 Qd R 13 – cited. Harrison v Tew [1990] 2 AC 523 – cited. Lennox v The Board of Professional Engineers of Queensland (No 3) [2009] QDC 282 – followed. Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 – cited. Maltby v DJ Freeman & Co [1978] 1 WLR 431 – considered. Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228 – cited. New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 – cited. Property and Reversionary Investment Corporation Ltd v Secretary of State for the Environment [1975] 1 WLR 1504 – considered Pryles & Defteros (a firm) v Green [1999] WASC 34 – followed. Queensland Building Services Authority v Morris (appeal 3319/97, Robin DCJ, 24-10-97, unreported) – followed. R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 – cited. R v Webster [1987] 1 Qd R 45 – cited. Singleton v Macquarie Broadcasting Holdings Ltd (1991) 24 NSWLR 103 – cited. Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No. 9) [2011] FCA 661 – cited.
COUNSEL:	No appearance for the applicant N.P. Hiscox for the respondent
SOLICITORS:	The applicant was not represented The respondent represented itself