Paroz v Clifford Gouldson Lawyers (No 2)
[2014] QDC 157
•30 May 2014
DISTRICT COURT OF QUEENSLAND
CITATION:
Paroz v Clifford Gouldson Lawyers (No 2) [2014] QDC 157
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.
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 | |
0
14
2