Players P/L (in Liq) (Receiver Appointed) v Clone P/L (No 3) - [2020] SASC 165

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
PLAYERS P/L (IN LIQ) (RECEIVER APPOINTED) & ORS v CLONE P/L & ORS (No 3)
[2020] SASC 165
Judgment of Auxiliary Judge Norman a Master of the Supreme Court
9 September 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - TAXATION AND OTHER FORMS OF ASSESSMENT - PARTICULAR ITEMS - COUNSEL FEES - NUMBER OF COUNSEL - TWO COUNSEL
Held, trial at first instance before Hargrave AJ and subsequent Full Court appeal certified as appropriate for two senior counsel, counsel fees of senior counsel Mr Karkar QC and Mr Sullivan QC allowed at the rate of $500 per hour and $5,000 per day, counsel fees of second senior counsel Mr Roberts QC allowed at $300 per hour and $3,000 per day from August 2010 until around the end of December 2013, at $350 per hour and $3,500 per day from January 2014, and at $450 per hour and $4,500 per day from on or around 30 November 2014.
Dust Diseases Act 2005, referred to.
Kroehn v Kroehn (1912) 15 CLR 137; 18 ALR 455; Dalgety Australia Operations Ltd v FF Seely Nominees Pty Ltd (No. 2) (1988) 49 SASR 75; Taplin v Amaca Pty Ltd [2020] SADC 3; Meyer v Amaca Pty Ltd (formerly James Hardie & Co. Pty Ltd) District Court, Master Norman, Decision No. 33 of 2013; Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia (No. 7) [2009] WASC 218 at [44], applied.
Reynolds v Comcare District Court, Master Norman, delivered 2 July 2008; Hockley v BI Contracting District Court, Master Rice, delivered 11 July 2011; Ewbank v Wallaby Grip District Court ,Master Rice, delivered 28 June 2012; Weber v Deakin University (No. 2) [2016] VSC 679; Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122 at [20]; Edwards v Legalese Pty Ltd T/A Peter Scragg & Associates (No. 2) [2012] SADC 110; Edwards v Legalese Pty Ltd [2014] SASCFC 58; Australian Securities and Investment Commission (ASIC) v West (2008) 100 SASR 496; Innes v AAL Aviation Limited (No. 2) [2018] FCAFC 130, discussed.
06r 264(2); British Metal Corporation v Ludlow [1938] 1 All ER 135; Dal Pont's Law of Costs 2nd Edition; Whitley (deceased) (1963) 3 All ER 45 at 54; Higgins v Nicol & Ors (No. 2) (1972) 21 FLR 34 at 41; Stanley v Phillips (1966) 115 CLR 470; re Fuller Holdings Pty Ltd (1979) 21 SASR 212; Bush v Condon & Barrett Pty Ltd [1975] 1 NSWLR 260 at 263; Goode v Onslow (1881) 23 LR (NSW 278(3); Young v Ballarat & Ballarat East water Cmrs (1880) 6 VLR (l) 14 at 14-18; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; Clone v Players (2018) 264 CLR 165; Clone v Players [2015] SASC 133, Judge Bowen Pain; Clone v Players (2016) 127 SASR 1, considered.

PLAYERS P/L (IN LIQ) (RECEIVER APPOINTED) & ORS v CLONE P/L & ORS (No 3)
[2020] SASC 165
Introduction

This is the continuing taxation of costs in these proceedings. The background to the matter, and to the costs recovery, is set out in detail in my reasons dated 24 June 2020 (FDN 130) paragraphs 5 to 16.
In these reasons, the applicants will be referred to as “Players” and the respondent as “Clone”.
In my reasons, I dealt with two preliminary issues, one of which related to Clone’s use of interstate counsel at the trial before Hargrave AJ and at the Full Court appeal from the decision of Hargrave AJ.
I found that I was not satisfied that Clone could establish (affirmatively prove) that the disbursements, occasioned by the briefing of interstate counsel, were “reasonably incurred” within the meaning of 06 r 264(2).
Following the publication of those reasons, I invited the parties to indicate what steps they required to be undertaken next.
On 30 June 2020, Players’ solicitors wrote to the Court and indicated that it should fix the (daily/hourly) “rate” to be allowed to Clone in respect of its counsel fees, on a party/party basis, for both the 2015 trial before Hargrave AJ and the 2016 Full Court Appeal.
On 1 July 2020, Clone’s solicitors wrote to the Court proposing the fixing of a/the (daily/hourly) “rate” to be allowed to Clone in respect of its counsel fees on a party/party basis for both the 2015 trial before Hargrave AJ and the 2016 Full Court Appeal.
Accordingly, I fixed a hearing date of 12 August 2020 to enable the parties to make their submissions on this issue.
On 7 August 2020, Players filed their written submissions (FDN 131) and on 12 August 2020, Clone filed its written submissions (FDN 133).
At a hearing on 12 August 2020, I heard submissions from Mr B. Ericson of counsel for Clone and from Mr J. Whitington with Mr T. Cogan of counsel for Players. As the costs claimant, Clone presented its submissions first.
After hearing submissions from both parties, I reserved my decision.
Clone’s written submissions
Clone submitted that in respect of the fixing of the rate to be allowed for it in respect of its counsel fees on a party/party basis for both the 2015 trial before Hargrave AJ and the 2016 Full Court appeal, the fees of Mr Karkar QC and Mr Sullivan QC should each be allowed at the rate of $700 per hour and $7,000 per day.
In respect to Mr Roberts QC, it submitted the matter should be certified as being fit for two senior counsel and that Mr Roberts’ fees should be allowed as charged.
Clone first addressed Mr Karkar QC’s and Mr Sullivan QC’s fees. It had been the Court’s findings that the disbursements incurred in consequence of Clone’s briefing of interstate counsel in respect of both the trial before Hargrave AJ and the subsequent appeal to the Full Court, were not disbursements which were “reasonably incurred” and that interstate rates would not be allowed. Clone accepted, therefore, that the rates of those counsel would need to be reduced appropriately as a result of this finding.
However, the suggestion by Players that the rate should be reduced to the upper end of the prevailing Indicator range was rejected. It was submitted that the Indicator was not a scale but a guide to counsel fees only, and that accordingly, the Court had the discretion to depart from the guide if the circumstances of the matter justified such a departure.
Clone submitted that there were two reasons supporting the contention that a rate exceeding that of the upper end of the Indicator range should be allowed in this matter.
First, it was noted that the Indicator had been published in 2007 and had not been replaced until 1 June 2017 – when the current Indicator came into effect. During that 10-year period, it was submitted, rates charged by local counsel, and in particular, eminent senior counsel, had substantially increased. Further, towards the end of that period, it was common for Masters, in matters which were substantial and complex, to award a rate that exceeded the upper end of the Indicator range.
Secondly, it was submitted, the present matter was exceptional. Whilst the Court had declined to allow interstate counsel rates, it had accepted that this was a matter of great legal and factual complexity involving conflicting authorities, it ultimately required to be resolved by the High Court, and further, it involved accusations of misconduct against practising solicitors and barristers. The High Court had found that it was a matter of public importance sufficient to allow for a grant of special leave to appeal, and the complexities of both law and fact in the matter had been recognised in my 24 June 2020 reasons at [91]-[105]. It was submitted that counsel rates exceeding the upper end of the Indicator range had frequently been permitted, despite a concurrent finding that a party’s engagement of interstate counsel was not reasonable.
In Taplin v Amaca Pty Ltd [2020] SADC 3, Judge Dart had upheld the decision of a District Court Master who had allowed $600 per hour and a $5,000 daily fee for senior counsel incurred at a time, when the 2007 Indicator was in force. While Taplin had been a matter which involved significant issues as to the assessment of damages, Clone submitted, it did not have the legal and factual complexity of the present matter.
Clone submitted a further example in which the Dalgety Australia Operations Ltd v FF Seely Nominees Pty Ltd (No. 2) (1988) 49 SASR 75 interstate counsel decision was not satisfied, but where rates in excess of the Indicator were allowed by the Court, referring to Meyer v Amaca Pty Ltd (formerly James Hardie & Co. Pty Ltd), District Court, Master Norman, Decision No. 33 of 2013. In that matter, the rates for senior counsel were fixed at $5,500 per day and $550 per hour. Clone referred to [69]-[70] of that decision.
Clone emphasised that all of the work undertaken by Mr Karkar QC and Mr Sullivan QC, in relation to the trial before Hargrave AJ and the Full Court appeal, had been undertaken between seven years and four months and eight years and nine months after the relevant counsel fee Indicator had been published. It submitted that, having regard to the complex issues of law and facts set out at [98]-[105] of the decision on the interstate counsel point, a rate in excess of the upper end of the Indicator rate, but nevertheless significantly less than the rates actually charged, would be appropriate. It sought an allowance on a party/party basis of $700 per hour and $7,000 per day for Mr Karkar QC and Mr Sullivan QC, and submitted that this would be consistent with rates charged by South Australian senior counsel for major matters at the time – eg Mr Whitington QC, who was engaged by Players up to late 2014, had charged $700 per hour in 2014.
Clone then addressed the counsel fees of Mr Roberts QC. He had been appointed as senior counsel in early September 2014. From August 2010 until around December 2013, he had charged a rate of $300 per hour and $3,000 per day. This had increased to $350 per hour and $3,500 per day in around January 2014 and to $450 per hour and $4,500 per day on or around 30 November 2014. The latter rate reflected the upper end of rates for senior counsel on the Indicator range.
Clone conceded that the matter had not yet been certified as being fit for senior counsel. However, it contended, this did not prevent such a certification being made by the Court in the exercise of its discretion. The matter was unusual in that the costs had been awarded by the High Court as part of a judgment after a successful appeal by Clone and accordingly, there had been little opportunity for the parties to put submissions as to the details of counsel charges in the courts below.
Clone submitted that there were three reasons why rates for two senior counsel should be allowed by the Court in the matter.
The first was that Mr Roberts QC had been engaged since 2010 in the matter. If, when he commenced charging senior counsel rates in 2014 – almost four years after his initial engagement – Clone had decided to dismiss him and to engage alternative junior counsel with a rate lower than that being charged by Mr Roberts QC, it would have suffered the loss of his invaluable experience and expertise in relation to the matter. The costs of engaging a new junior counsel would have resulted in significant extra fees for the incoming barrister to become familiar with what was already a matter with a very lengthy and complex history.
Secondly, this was a case with a broad range of complex and unsettled legal issues needing to be resolved and they applied to a complex factual matrix. It was well established that two senior counsel might be allowed in such cases - Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia (No. 7) [2009] WASC 218 at [44]. It was a combination of complex facts and complex law which rendered two senior counsel appropriate. If the complexity were to be of law only, then a single senior counsel would deal with the matter with a junior dealing with the simple factual issues. However, as could be seen from the accounts of Mr Roberts QC exhibited to FDN 89 and FDN 90, he was substantially himself engaged in the research of the unsettled law and in drafting submissions in respect of same.
Thirdly, Clone submitted, Players had also engaged two new senior counsel throughout a significant proportion of the matter, spanning from Mr S. Doyle’s (as he then was) appointment to senior counsel in 2012 until the conclusion of the Full Court appeal in 2016. Whilst this was not a decisive factor, it was nevertheless relevant – British Metal Corporation v Ludlow [1938] 1 All ER 135.
Clone noted that the following counsel had been engaged by Players throughout the relevant periods:
·Mr Sam Doyle QC (now the Honourable Doyle J) was engaged as counsel by Players from as early as April 2010 and had remained engaged throughout the trial before Hargrave AJ and the Full Court appeal – and who was appointed to senior counsel on 13 September 2012 – at hourly rates of $330 in 2010 and 2011, $330 in 2012, $400 in 2013, $450 in 2014, and $480 in 2015.
·Mr Dick Whitington QC had been engaged by Players from as early as December 2009 and had remained engaged until in or around November 2014, at hourly rates of $550 in 2010 and 2011, $600 in 2012 and 2013, and $700 in 2014.
·Mr Norman O’Bryan SC, who was engaged by Players from around October 2014 and throughout the trial, charged an hourly rate of $800 in 2014 and 2015.
·Mr Patrick Zappia QC was engaged by Players for the Full Court appeal from around April 2016 at an hourly rate of $550.
In all these circumstances, Clone submitted that the matter was one of the rare cases which necessitated the involvement of two senior counsel.
It finally submitted that the charging of rates by Mr Roberts QC, exceeding the upper end of the Indicator range for a junior counsel, should be allowed in full. However, in the event that the Court was not prepared to allow this, it should still, it was submitted, allow an award exceeding the rate usual for junior counsel, in light of earlier submissions.
Attached to Clone’s submissions were a media release of 11 September 2014 by the CAA of the appointment of Mr Brendan Roberts as senior counsel and a media release of 13 September 2012 by the CAA as to the appointment of Mr Sam Doyle as senior counsel.
Clone’s oral submissions
Mr Ericson made oral submissions supplementing his written outline of argument. He acknowledged the interstate counsel fees were not permitted but said that this did not of itself fix the rates to be allowed. He said there were several cases in the Supreme and District Courts in which claims for interstate counsel had been rejected, but fees above the maximum of the Indicator to counsel fees had been permitted on the grounds of the great difficulty and complexity of the matter. He referred to Taplin v Amaca (supra) and Meyer v Amaca (supra) where fees in excess of the maximum of the Indicator were allowed.
Mr Ericson submitted that the Indicator, in its own terms, provided that it was that and not a scale of counsel fees, and that it did not in any way bind the courts on how they would determine the proper quantum of counsel fees. The Indicator contained not so much rules, as guidelines, as to what was likely to represent what would be allowed in the ordinary case. He submitted that the present matter was quite legally complex as had been found in my reasons on the interstate counsel fee issues at [98]-[105].
The case involved legal complexity and research of cases concerning the ancient equitable jurisdiction to set aside a perfected judgment. Further, the case was factually complex, both on two levels, first the initial trial and then on the appeal to the Full Court. There was a hot debate at the trial before Hargrave AJ as to what had occurred with respect to the lease, as the original copies had not been found, and the question arose in the context of setting aside a judgment to investigate how much the fresh material might influence the decision. It was accordingly necessary for counsel to have an appreciation of the original facts, on top of that an appreciation of the facts of the previous litigation itself, and to conclude with statements being taken from counsel and solicitors in difficult situations, where they were facing allegations of professional misconduct.
Further, he submitted, there was a ground for awarding above the Indicator by reason of the Indicator having been published in 2007 and not being replaced until 1 June 2017. Over that period, counsel fees had commercially increased, as had been noted in my reasons in Meyer v Amaca (supra). The commercial rate fixed in 2007 was not the same as the commercial rate in force in 2014, when the matter was heard.
Mr Ericson then analysed the rates charged by counsel in this case. Both Mr Karkar QC and Mr Sullivan QC had charged $700 per hour or $7,000 per day, and this represented probably the top end of the commercial rate charged by South Australian senior counsel. It was equivalent to what Mr Whitington QC, acting for Players, had charged. He submitted that the Court should allow $700 per hour and $7,000 per day for the interstate silks.
Mr Ericson then turned to the counsel fees of Mr Roberts QC, and he asked for the matter to be certified as fit for two senior counsel. He acknowledged that this was unusual but contended that it was open to the discretion of the taxing officer, if not so certified. In the present case, the matter had finally been determined in the High Court, and it would not have been appropriate, he submitted, for counsel to have troubled the High Court seeking a ruling on this issue. It was not required as a matter of law to have the certificate from the trial Judge, and he referred to Leighton Contractors (supra).
Mr Ericson gave three reasons why two senior counsel should be allowed. First, he said, Mr Roberts had been initially engaged as junior counsel since 2010 and had only commenced charging senior counsel rates in 2014 after four years involvement in the case. It would not be reasonable, he submitted, to expect Mr Roberts to be discharged in these circumstances and replaced, because whoever replaced him would have to become intimately familiar with the matter, and there would be substantial reading fees incurred.
Secondly, the case involved a broad range of complex and unsettled legal issues which need to be resolved and applied to a complex factual matrix. If it was legally complex only, senior counsel would have dealt with the matter with a junior doing the simple factual issues. However, the interacting complexity of the fact that the case involved uncertain law being applied to hotly contested disputed facts meant that there had to be highly skilled legal manpower applied. Mr Ericson further submitted that it was clear from the accounts of Mr Roberts that he was not appearing just as an adjunct to senior counsel, rather he was engaged himself in researching the unsettled law and drafting the submissions. This work was of a nature which senior counsel undertook and was the reason why two seniors should be allowed.
Thirdly, and finally, he submitted that it was relevant, albeit not determinative, that Players themselves had engaged two senior counsel. He further noted that they had two interstate silk for the Full Court appeal.
Mr Ericson submitted that the amounts involved in the litigation, although not gargantuan, were substantial and involved amounts in the hundreds of thousands of dollars.
Mr Ericson invited the Court to read through the claims for counsel fees by Mr Roberts QC and these, he submitted, showed the considerable extent to which he was involved in working out legal arguments and trying to match them into the facts of the case. It was a case which Clone found hard to win: it lost at first instance, and on appeal, but eventually won only when the matter went to the High Court.

Mr Ericson invited the Court to have regard to all of these matters in allowing two senior counsel.
As to Mr Roberts’ rate, he submitted that something over the top end of the junior counsel Indicator should be allowed. He left the precise amount to the Court’s discretion but noted that, in this matter, junior counsel had an unusually heavy burden and was heavily involved in the preparation of the case. At the end of the day, Clone was seeking Mr Roberts’ fees as charged. It was not intended that it was a three-counsel case, but it was submitted that it was certainly a two counsel case.
Players’ written submissions
Players confirmed the parties’ request that the Court fix the hourly and daily rates to be allowed to Clone in respect of its counsel fees on a party/party basis for both the 2015 trial before Hargrave AJ and the 2016 Full Court appeal. They submitted that the rate to be allowed to Clone in respect of its counsel fees on a party/party basis for both the trial and the appeal ought to be limited to the rate prescribed by the Supreme Court “Guide to Counsel Fees” (I note that the correct title is “Indicator to Counsel Fees”) which was applicable from 1 July 2007 until 31 May 2017.
Players noted that all of the counsel fees, the subject of both claims for costs in respect of the 2015 trial and the 2016 Full Court appeal, related to work performed by Clone’s counsel during the period 1 July 2007 to 31 May 2017, being the relevant period covered by the Indicator.
Players accepted that Clone ought to be allowed the “upper” and/or “maximum” rate allowable for the period 1 July 2007 to 31 May 2017.
Players then addressed Clone’s claim for costs in respect of the 2015 trial. They submitted that, in respect of the work performed by Mr John Karkar QC and Mr Alan Sullivan QC, Clone’s senior counsel, the rate to be allowed to Clone in respect of fees charged by those counsel should be an hourly rate of $450 and a daily rate of $4,500.
Players submitted that in respect of the work performed by Mr Brendan Roberts, Clone’s junior counsel, the rate to be allowed to Clone in respect of those fees in respect of the 2015 trial before Hargrave AJ, should be an hourly rate of $280 and a daily rate of $2,800.
In respect of Mr Roberts QC, it was noted that the Court had not certified or allowed two senior counsel on a party/party basis. In other words, Mr Roberts’ rates were to be assessed on the relevant junior counsel rate.
Players further submitted that there was no reason for the Court to depart from the rate set out in the Supreme Court Indicator in respect of the 2015 trial.
Players then addressed Clone’s claim for costs in respect of the 2016 Full Court appeal. They submitted that, in respect of the work performed by Mr John Karkar QC and Mr Alan Sullivan QC, Clone’s senior counsel, the rate to be allowed to Clone in respect of fees charged by those two counsel with respect to that appeal, should be an hourly rate of $450 and a daily rate of $4,500.
In respect of the work performed by Mr Brendan Roberts, Clone’s junior counsel, they submitted that the rate to be allowed to Clone with respect to the appeal should be $280 per hour and $2,800 per day.
In respect of Mr Roberts QC, Players noted that the Court had not certified to allow two senior counsel on a party/party basis and in other words Mr Roberts’ rates were to be assessed on the relevant junior counsel rate. Players submitted that there was no reason for the Court to depart from the rates set out in the applicable guide in respect of the Full Court appeal.
Finally, for the avoidance of doubt, Players submitted that they had only addressed the particular rate to be applied to any particular item respecting counsel fees for which Players were ultimately found, following a detailed taxation, to be liable on a party/party basis.
Players’ oral submissions
Mr Whitington QC made submissions in response to Clone’s claim for two senior counsel and for fixing of rates. He said that Players accepted that the matter was appropriate for one senior and one junior, and he acknowledged that from the litigant’s perspective, it was appropriate and reasonable for Mr Roberts to be retained, notwithstanding that he had assumed silk. However, he said, this was not the test. He referred, in this regard, to the judgment of Barwick CJ in Leighton Contractors v Public Transport Authority at [45] (supra).
Mr Whitington then turned to the rate to be allowed to Clone’s senior counsel. He accepted that a rate at the top of the applicable guide was appropriate, namely $4,500 as a daily rate and an hourly rate of $450. However, a fee of $7,000 per day was vastly above the maximum in the Indicator, approximately 85%, or almost double the daily rate permitted. He submitted that the only authorities supporting a rate higher than the maximum of the Indicator were dust diseases cases, and he referred to Taplin v Amaca (supra) and Meyer v Amaca (supra).
In Taplin, Judge Dart had refused to overturn Master Keith’s determination of a $5,000 daily fee, however, the relevant aspects of that case involved the provisions of the Dust Diseases Act 2005 and the fact that senior counsel there, Mr Semmler, had been involved in previous such cases. The Court should, accordingly, be cautious to rely on dust diseases cases as a precedent when they were really quite a special set of circumstances involving new legislation.
In relation to Mr Roberts QC’s rate, Mr Whitington QC submitted that this had increased to $450 per hour and $4,500 per day in about November 2014, and this rate reflected the upper end of the scale for senior counsel. Mr Whitington noted that Mr Roberts had been heavily involved in the matter and had run aspects of the case, had cross-examined certain witnesses, and indeed had run the High Court appeal as sole lead counsel. He had also conducted the oral reply submissions at the Full Court appeal in 2016. Mr Whitington QC submitted that Mr Roberts QC was fully competent to properly conduct the matter and that he had in fact conducted large components of it, and his rate at the relevant time was precisely the rate which Players accepted as appropriate, namely $4,500 per day.
Clone’s oral submissions in reply
Mr Ericson made brief submissions in reply. He submitted that there was nothing in the dust diseases cases suggesting that the courts were purporting to do other than apply the normal rules and in fact they were applying the normal rules notwithstanding the increased allowances. The Court could accordingly have regard to the dust diseases cases and should not simply regard them as the only cases where rates over the Indicator would be allowed. Indeed, he submitted, this matter was probably more difficult than the dust diseases cases.
Principles
The Indicator to Counsel Fees
The preamble to the Indicator to Counsel Fees applicable for the period between 1 July 2007 and 31 May 2017, which applied at the relevant times during this part of the litigation, provided that it was an Indicator, and not a scale, of counsel fees. It was based on information obtained by the courts of relevant matters on how the courts might exercise their discretion in the future in allowing and fixing counsel fees. It in no way was to bind the courts on how they will determine the proper quantum of counsel fees based on the admissible evidence about their quantum in a particular case. The ranges for the items reflected the likely degree of variation in the possible factual conclusions, which may be reached on taxations or adjudications.
It provided for a daily trial fee to cover contested hearings and appeals, which exceeded a half day, in the amount of $1,180 to $2,800 for junior counsel, and $2,450 to $4,500 for senior counsel.
It further provided for general time fee, including necessary and proper preparation, reading, waiting and travelling time, at the rates of $200 to $300 per hour for junior counsel and $300 to $420 per hour for senior counsel.
The Indicator was superseded from 31 May 2017 and replaced by an updated Indicator as and from 1 June 2017 to date, which provides for a day fee for the first day, including preparation of summary of argument, in the amount of $3,000 to $4,800 for junior counsel and $4,800 to $7,200 for senior counsel, and a day fee for appearance at trial or subsequent days of an appeal, in the amount of $2,000 to $3,200 for junior counsel and $3,200 to $4,800 for senior counsel.
It further provided for an hourly rate applicable to all other work reasonably required of counsel at the amounts of $250 to $400 for junior counsel and $400 to $600 for senior counsel.
Quantum of counsel fees generally
Party/party costs are an indemnity to the successful party and should reflect the amounts which that party has had to pay to obtain counsel at a level appropriate to the litigation. The amount reasonable is the amount of the party's actual liability for counsel fees within proper and reasonable limits.
There has been reference to the Indicator to Counsel Fees. Its aim is to provide an indication of the range of counsel fees which adjudicating officers will regard as being within those limits. It has the status only of an Indicator and is not a scale. It is based on information obtained by the courts of relevant matters of how the courts might exercise their discretion by allowing and fixing counsel fees. It is in no way to bind the courts on how they will determine the proper quantum of counsel fees based on the admissible evidence about their quantum in a particular case. The ranges for the items reflect the likely degree of variation in the possible factual conclusions which may be reached on adjudications. The fees to be allowed will be what is fair and reasonable having regard to the time occupied, the complexity of the matter, the standing and experience of the particular counsel, the prevailing rates being charged for work of a particular type in this State, and any other relevant criteria. The Court will act on the admissible evidence and submissions received in a particular case in which it has to determine the proper quantum of allowable counsel fees. The Indicator superseded a previous Guide to Counsel Fees.
In all cases, the fee charged and allowed should be fair and reasonable having regard to the time occupied, the complexity of the matter and the standing and experience of counsel.
In my judgment in Meyer v Amaca Pty Ltd (formerly James Hardie & Co. Pty Ltd) (supra) senior counsel’s fees were fixed at $5,500 per day and $550 per hour. Both these amounts were above the highest amounts allowed in the Indicator. The majority of senior counsel’s work in that case was undertaken in late 2011 and in early 2012. The action related to the Dust Diseases Act on which there had been little case law. The senior counsel in Meyer had been involved in some of these other cases and had expertise in the area. The relevant facts went back to as early as January 1961, and through other cases he had prior knowledge of many of these facts, and of the considerable documentation involved, and the time spent in researching them would be lessened by his involvement. An application for summary dismissal and/or a stay on the basis of a time point, had been pleaded involving complex factual and causation issues, and the case involved difficult corporate control issues.
In Reynolds v Comcare an unreported decision delivered by me on 2 July 2008, I was asked to determine the rate of senior counsel. That case was a 2008 decision for work undertaken earlier, and I concluded that a senior counsel’s rate should be allowed at $4,000 per day, as fair and reasonable.
In Hockley v BI Contracting, an unreported decision of Master Rice delivered on 11 July 2011, the Master concluded that at the time the work was undertaken, namely April 2010, a rate of $4,500 per day was appropriate in South Australia for experienced senior counsel. His Honour noted that the advantage of bringing experience to a matter was that the time for preparation was dramatically reduced. He found that the overall time spent on the matter was entirely reasonable, if not modest. He noted that issues on liability, foreseeability and causation, were significant, even though the quantum of damages might not have been high.
In Ewbank v Wallaby Grip, an unreported decision of Master Rice delivered on 28 June 2012, his Honour considered a claim for counsel fee of Mr Semmler QC for $7,000 per day, with an hourly rate of $700. He noted the range provided in the 2007 Indicator. The counsel fees Mr Semmler actually charged were significantly higher. Master Rice noted evidence attached to an affidavit suggesting that senior counsel in Adelaide charged at a rate between $4,500 and $6,000 per day with a real average of about $5,000, as at July 2011. He took the view that as at early 2011, in cases where it was appropriate to brief senior counsel, a reasonable rate for appropriately complex matters was $5,000 per day. He allowed charges based on this figure.
In Taplin v Amaca Pty Ltd (supra), Judge Dart had upheld the decision of a District Court Master who had allowed $600 per hour and a $5,000 daily fee for senior counsel incurred at a time when the 2007 Indicator was in force. Judge Dart wrote at [31]-[32]:
“31 The second matter to be determined is the quantum to be allowed. The fixing of quantum is a discretionary matter. The Master allowed Senior Counsel fees on the basis of a $5000 daily fee and an attendance fee of $600 per hour. The trial commenced on 1 May 2017 and concluded on 5 May 2017. The present Guide to Counsel Fees commenced operation on 1 July 2017. It is a guide, not a scale, but the fact that it commenced after the trial may be a matter of some relevance. Even in respect of the new guide, the allowance made by the Master is at the top end of the scale.
32 The plaintiff says that the Court should have regard to the fact that local Senior Counsel charge more than the amount allowed. The fact that local counsel may have charged more on a solicitor/client basis is not necessarily relevant to the question of party/party costs. I am not satisfied there was any error in the discretion exercised by the Master in fixing the allowance for Senior Counsel fees. In any event, it is a decision of the type referenced to in Australian Coal and Shale Employees Association as one which should only be interfered with in an extreme case. This is not such a case.”
In Dal Pont’s Law of Costs, 2^nd Edition, at p592, the learned author discusses the quantum of counsel fees and notes that the amount allowable as between party and party is not determined by the mere fact that under an agreement between counsel and the instructing solicitors, a fee has been agreed. Although, in order to procure counsel of choice, a party may have to pay a fee reasonable and proper as between him and counsel, that fee may not be necessary or proper for the purposes of a party and party adjudication. It is noted that the more eminent the barrister and the more specialised the jurisdiction, the more likely it is that there may be a gap between the fee charged and that recoverable on a party and party basis. The learned author notes that, in determining the appropriate fee, including an hourly rate, the taxing officer takes into account the nature and importance of the cause or matter, the amount involved, the interest of the parties, the fund or persons to bear the costs, the general conduct of the proceedings, and all other relevant circumstances that impact upon what fees are reasonable and proper for an unsuccessful litigant to bear – Re Whitley (deceased) (1963) 3 All ER 45 at 54, Higgins v Nicol & Ors (No. 2) (1972) 21 FLR 34 at 41.
More than one counsel
Nearly all of the reported cases relating to the justification for allowing fees for two counsel relate to instances of a senior counsel and junior counsel, or of two junior counsel.
The test has been referred to as “would a prudent person not compelled by poverty come in to court in such a case without two counsel?” - Kroehn v Kroehn (1912) 15 CLR 137; 18 ALR 455; Griffiths CJ.
In Weber v Deakin University (No. 2) [2016] VSC 679, McMillan J, two counsel were allowed where there were many grounds of appeal, where a number of separate persons and senior persons associated with the respondent were named, where there were allegations of impropriety against the respondent’s solicitors and counsel, where the appellant sought to rely on a substantial amount of documentation, where the eighteen grounds raised significant and diverse arguments, where the appeals dealt with a wide variety of legal issues, and where the appellant relied on a large number of authorities and extensive written submissions, which required detailed responses.
The relevant factors determining the appropriateness of allowing fees for two counsel are the importance of the case, the probable duration of the trial, the probability of conflict of evidence entailing the necessity of careful cross-examination, the number or character of the witnesses to be examined: Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122 at [20].
The complexities of issues of fact or law, the extent of the preparatory research of fact or law undertaken, the complexities of the required presentation, and the amount sought to be recovered are all relevant: Kroehn v Kroehn (supra); Stanley v Phillips (1966) 115 CLR 470; Re Fuller Holdings Pty Ltd (1979) 21 SASR 212; Bush v Condon & Barrett Pty Ltd [1975] 1 NSWLR 260 at 263; Goode v Onslow (1881) 23 LR (NSW) 278(3); and Young v Ballarat & Ballarat East Water Cmrs (1880) 6 VLR (L) 14 at 14–18.
In Australian Securities and Investments Commission (ASIC) v West (2008) 100 SASR 496, Gray J allowed two counsel, including one senior counsel, due to the complexity of issues, the requirement to assess, marshal and present voluminous material, and in light of the significant assets involved, the money at stake, the rights and liabilities of a number of people, and the public interest in the proper conduct of the proceedings.
In contrast, in Edwards v Legalese Pty Ltd T/A Peter Scragg & Associates (No. 2) [2012] SADC 110, the trial Judge refused certification for two counsel as, although the claim was significant (in excess of $1 million), the documents voluminous, and the points of law difficult, the major reason for the “need” for two counsel was that the senior of the two counsel was engaged late and was obliged to absorb a great deal of information so as to familiarise himself with the brief in a short time, and there was also a risk that at least one of the counsel might have to be absent on other matters from time to time. This ruling was upheld on appeal in Edwards v Legalese Pty Ltd [2014] SASCFC 58, the Full Court declining to overturn the ruling as the trial Judge had had the benefit of observing its progress and was in a better position to determine such matters.
In Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [No. 7] (supra) Le Miere J observed at [44]-[46]:
“44. However, the court must be mindful that to allow costs of two senior counsel further increases the costs for an unsuccessful litigant and will only be allowed where the case is of such difficulty, complexity or importance to justify burdening the unsuccessful party with those costs.
45. The test 'is concerned not with what a reasonable litigant might be prepared to do in order to win but with what such a person would adjudge necessary or prudent in order to have his or her case properly presented': see Dal Pont G E, Law of Costs (2nd ed, 2009) [17.76]. Barwick CJ explained the point as follows in Stanley v Phillips (1966) 115 CLR 470, 478 – 479:
The emphasis throughout is upon obtaining an adequate presentation to enable justice to be done; it is not upon the propriety of the steps taken by a litigant to ensure the maximum of success in his own cause. That of course he may do but not … at his opponent's expense … [the question is not whether] a man in seeking his own maximum advantage would be imprudent not to engage counsel of a particular level of experience or skill. The question is whether the services of more than one counsel are reasonably necessary for the adequate presentation of the case.
46. The volume of material to be handled, the nature and extent of the cross examination required, the anticipated length of the case, the complexity and difficulty of its issues and the importance of the outcome to the parties justify the engagement of two counsel. However, the engagement of two senior counsel is an unusual expense and will be justified in few cases. I am not satisfied that this is such a case. The taxing officer should be directed to allow costs for senior counsel and a second counsel but not for two senior counsel.”

In Innes v AAL Aviation Limited (No. 2) [2018] FCAFC 130, the Full Court of the Federal Court (Tracey, Bromberg and White JJ) considered applications for the Court to fix lump sum costs following its dismissal of the appellants’ appeals. The Court decided that it would determine the respondent’s costs on a lump sum basis. In the course of the assessment to those costs, the Full Court considered claims made for counsel fees for the appeals. In that case, two silks had appeared, Mr Bret Walker SC and Mr Lockhart QC.
At [42] it observed:
“Fourthly, while the Court was much assisted by the submissions of Mr Walker SC, we are not satisfied that the costs incurred by the Respondent in retaining him were incurred fairly or reasonably. Mr Walker was retained only to present the argument raised by the Respondent’s Notice of Contention concerning the limitation issue and he appeared only at the hearing on 17 November 2016. Ms Dransfield deposed that Mr Walker had been briefed because of his familiarity with the subject matter arising from his involvement as counsel in Commonwealth of Australia v Cornwell [2007] HCA 16; (2007) 229 CLR 519 and Innes v Commonwealth [2015] ACTA 33. However, there is no apparent reason why the submissions on the Notice of Contention could not have been presented by Mr Lockhart SC and Mr Colquhoun. They had made the submissions on the limitation of actions issue at trial and had been prepared to present the submissions on the issue at the hearing on 8 and 9 August 2016. Had the Court been able to complete the hearing on these days, they would have done so. There has been no suggestion that Mr Lockhart SC and Mr Colquhoun were not able to present that argument. In those circumstances, we do not accept the Respondent’s submission that the limitation issue “demanded specialist knowledge” making reasonable the retention of Mr Walker SC. We disallow the whole of the fees incurred by the Respondent in retaining Mr Walker SC. This includes the disbursement to Mr Walker in respect of his fees and the solicitors’ costs in retaining him.”
Consideration
Engagement of two senior counsel
The appropriate test
I have referred to Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [No. 7] (supra), where the Court found that to allow costs of two senior counsel would further increase the costs for an unsuccessful litigant and would only be allowed where the case was of such difficulty, complexity or importance to justify burdening the unsuccessful party with those costs. The test is concerned not with what a reasonable litigant might be prepared to do in order to win, but with what such a person would adjudge necessary or prudent in order to have his or her case properly presented. As Barwick CJ wrote in Stanley v Phillips (supra), the emphasis is upon obtaining an adequate presentation to enable justice to be done and not upon the propriety of the steps taken by a litigant to ensure the maximum of success in his own cause. The question is whether the services of more than one counsel are reasonably necessary for the adequate presentation of the case. The engagement of two senior counsel is an unusual expense and will be justified in few cases.
The trial and appeal both involved complex issues of law
In my findings on 24 June 2020, I observed at [98]–[101] that the legal matters in issue at the trial (and the appeal), were complex and included whether the then solicitors and counsel for Clone in the action, before Vanstone J, had breached duties of disclosure (and other duties) so as to justify setting aside the judgment in favour of Clone, a determination of the relevant test, including consideration of authorities dating back many years and across a number of different jurisdictions, a claim for $750,000 compensation by Players under the lease terminated by Clone, the subject of the dispute, and the costs of the substantial proceedings in the original action sought to be set aside, including the 26 day trial before Vanstone J and the Full Court appeal.
I found that the case did involve complex and difficult points of law as to the nature of the jurisdiction to set aside a perfected court judgment, which was ultimately considered in the High Court upon Clone’s successful appeal. There had been three competing schools of thought about the test for setting aside a perfected judgment. One was that referred to in Commonwealth Bank of Australia v Quade (1991) 178 CLR 134, also being the approach of Hargrave AJ at trial and by the Full Court.
I noted that an alternative was the approach taken by Kourakis J in his interlocutory decision [2012] SASC 12, regarded it as an abuse of process issue. The third, ultimately accepted by the High Court, was that it was a uniquely equitable jurisdiction requiring proof of conscious dishonesty – Clone v Players (2018) 264 CLR 165. The three schools of thought showed that it was a case dealing with unsettled principle and it was complex for this reason. It was not a run-of-the-mill piece of litigation where ultimately the High Court had dealt with it afresh. Rather, it was an unsettled proposition of law which was dealt with.
The trial and appeal both involved complex issues of fact
I also found in those reasons at [102]-[107] that the trial before Hargrave AJ involved a factual morass as to whether or not there had been malpractice. The test which he and the Full Court applied was ultimately found by the High Court to be the wrong test. An issue arose as to whether the relevant document had been in Clone’s physical possession. Hargrave AJ held that it was neither within its physical possession nor within its custody, although he found that it was within its power by reason of an order of Judge Bowen Pain [2015] SASC 133. The Full Court at Clone v Players (2016) 127 SASR 1, had found that it was not within Clone’s power, but it was nonetheless within its custody and was therefore discoverable. Accordingly, both on the question of power and on the question of custody, the Judges had split 2:2. These matters demonstrated that it was a complex case that had material uncertainty, both as a matter of fact and law.
Ultimately, the Full Court had held that Clone, through its counsel, had misled the Court by submissions, whereas Hargrave AJ had found that there was no misleading of the Court and had rejected this point. Players had succeeded by 2:1 on the “misleading” issue in the Full Court, so again it was 2:2 overall as to whether there had been any misleading of the Court.
I will have regard to these findings in relation to the quantum of counsel fees to be allowed and whether the case should be certified as fit for two senior counsel.
Was the case fit for two senior counsel at the trial level and on the appeal?
I have determined that in the circumstances of this case, it is appropriate to allow the costs of two senior counsel to Clone, both at the trial before Hargrave AJ and on appeal.
It is not in dispute that the matter has not yet been certified as being fit for senior counsel, either by Hargrave AJ at first instance, or by the Full Court on appeal, or by the High Court when it gave special leave and allowed the appeal. However, this does not prevent such a certification being made by the Court on a taxation in the exercise of its discretion. The matter was unusual in that, at first instance and on the Full Court appeal, Clone was unsuccessful, so there was no opportunity for Hargrave AJ or the Full Court to make certifications. It would be difficult to now ask those courts to reconvene to deal with the matter. Further, when costs were awarded by the High Court as part of its judgment after a successful appeal by Clone, there was little or no opportunity for the parties to put submissions as to the details of counsel charges in the courts below, and further as Mr Ericson has contended, it would not have been appropriate for counsel to have troubled the High Court to spend its valuable time providing a ruling on such an issue. It is a matter on which can be determined by the taxing officer in appropriate cases.
It is clearly established that in a case with a broad range of complex and unsettled legal issues needing to be resolved against the background of a complex factual matrix, two senior counsel might be allowed in such cases - Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia (No. 7) (supra). Such an award is, of course, a matter for the court’s discretion, and in Innes v AAL Aviation Limited (No. 2) (supra), the Full Court on taxation declined to allow for the costs of two senior counsel. The same occurred in both Leighton Contractors (supra) and in Stanley v Phillips (supra).
I note, in passing, that Clone is not seeking for the costs of both of its leading counsel, Mr Karkar QC and Mr Sullivan SC. The circumstances of their retainer have been explained and I refer to [28] of my reasons of 24 June 2020. Clone was only represented by one leading counsel at a time, and that Mr Sullivan QC’s retainer only occurred when Mr Karkar QC became unavailable between February 20916 and July 2017 due to his ill health.
The first reason for allowing two senior counsel in this matter is the fact that Mr Roberts QC had been engaged since 2010 in the matter. He was appointed as senior counsel in 2014 – almost four years after his initial engagement – and if Clone had then decided to dismiss him and to engage alternative junior counsel, with a rate lower than that being charged by Mr Roberts QC, it would have suffered the considerable loss of his experience and expertise in relation to the matter. There is little doubt that the costs of engaging a new junior counsel at that time would have resulted in significant extra fees for the incoming junior barrister to become familiar with what was already a matter with a very lengthy and complex history. This circumstance brings the matter into those comparatively rare instances where an unusual expense justified in few cases is to be allowed.
The second reason for allowing two senior counsel is that the case, at both first instance and on appeal, involved a combination of both complex facts and complex law which rendered two senior counsel appropriate. I have analysed these factual and legal issues which have been found to have been complex. As Mr Ericson conceded, if the complexity were to be of law only, then a single senior counsel would deal with the matter with a junior dealing with the simple factual issues. However, as could be seen from the accounts of Mr Roberts QC, which are before the court, he was substantially himself engaged in the research of the unsettled law and in drafting submissions in respect of same.
The third reason, although much less significant, is that Players itself had also engaged two new senior counsel throughout a significant proportion of the matter, spanning from Mr S. Doyle’s appointment to senior counsel in 2012 until the conclusion of the Full Court appeal in 2016, and also involving Mr Dick Whitington QC, Mr Norman O’Bryan QC and Mr Patrick Zappia QC. Whilst this is not a decisive factor, it is nevertheless relevant – British Metal Corporation v Ludlow [1938] 1 All ER 135.
Quantum of counsel fees
Status of the Indicator
Counsel have addressed the status of the Indicator and how it should be used by the Court in fixing counsel fees. Its purpose is clearly stated in its preamble: it is an Indicator and not a scale of counsel fees. It is based on information obtained by the courts of relevant matters on how the courts might exercise their discretion in the future in allowing and fixing counsel fees, but it in no way is to bind the courts on how they will determine the proper quantum of counsel fees based on the admissible evidence about their quantum in a particular case. It is clear in its terms that the Court has the discretion to depart from it if the circumstances of the matter justify such a departure.
Should counsel fees for the trial and appeal in this matter be fixed at rates outside the Indicator?
There are a number or matters to which the court should have regard in determining this issue.
First, the Indicator was published in 2007 and remained in force until 1 June 2017, when the current Indicator came into effect. During this 10-year period, rates charged by counsel, including eminent senior counsel, substantially increased, and towards the end of this period, the Masters, in complex and substantial matters, awarded rates exceeding the upper end of the range.
Examples have been referred to. In Taplin v Amaca Pty Ltd (supra), Judge Dart upheld the decision of a District Court Master who allowed $600 per hour and a $5,000 daily fee for senior counsel. In Meyer v Amaca Pty Ltd (supra), I fixed the rates for senior counsel at $5,500 per day and $550 per hour. And in Ewbank v Wallaby Grip (supra), Master Rice found that as at early 2011, a reasonable rate for appropriately complex matters was $5,000 per day. In all of these cases the 2007-2017 Indicator was in force. I have regard to the fact that all of the work undertaken by Mr Karkar QC and Mr Sullivan QC in relation to the trial before Hargrave AJ and the Full Court appeal, was so undertaken between seven years and four months, and eight years and nine months after the relevant Indicator had been published.
Secondly, an issue has arisen as to whether cases concerning the Dust Diseases Act have any precedent value in the context of awarding counsel fee rates under the Indicator. Mr Whitington QC argued that, as the only authorities supporting a rate higher than the maximum of the Indicator were dust diseases cases, so that these cases had no precedent value outside that context and that the court should accordingly be cautious to rely such cases as a precedent when they were really quite a special set of circumstances involving new legislation.
However, in my view there is nothing in the dust diseases cases suggesting that the courts were purporting to do other than apply the normal rules, and in fact they were applying the normal rules notwithstanding the increased allowances. The Court can accordingly have regard to the dust diseases cases and should not simply regard them as the only cases where rates over the Indicator will be allowed.
Thirdly, it is necessary to have regard to the particular circumstances of this matter, both the trial before Hargrave AJ and the Full Court appeal. In my view, the present matter has been exceptional. It has involved both complex factual and legal issues. Notwithstanding that, I declined to allow the use of interstate counsel as party and party costs. I accepted that the case was a matter of great legal and factual complexity. It further involved accusations of misconduct against practising solicitors and barristers. It also involved conflicting legal authorities and the High Court found that it was a matter of public importance sufficient to allow for a grant of special leave to appeal and it ultimately resolved the matter by allowing the appeal from the Full Court decision.
Fixing of the rates
In respect to the fees of Mr Karkar QC and Mr Sullivan QC, Clone submits that these should be allowed at the rate of $700 per hour and $7,000 per day.
Clone submits that this would represent probably the top end of the commercial rate charged by South Australian senior counsel; for example, Mr Whitington QC, who was engaged by Players up to late 2014, had charged $700 per hour in 2014.
In respect to Mr Roberts QC, it submits that his fees should be allowed as charged, which are $300 per hour and $3,000 per day from August 2010 until around December 2013, at $350 per hour and $3,500 per day, from around January 2014, and at $450 per hour and $4,500 per day from on or around 30 November 2014, or at least a rate exceeding the usual amount for junior counsel. Clone noted that Mr Roberts had an unusually heavy burden and that he was was heavily involved in the preparation of the case.
As could be seen from the accounts of Mr Roberts QC, he was substantially himself engaged in the research of the unsettled law and in drafting submissions in respect of same. He ran aspects of the case, cross-examined certain witnesses, and indeed ran the High Court appeal as sole lead counsel.
Players argued, however, that in respect of both the trial and the Full Court appeal, the work performed by Mr Karkar QC and Mr Sullivan QC, should be allowed at an hourly rate of $450 and a daily rate of $4,500, and that the work performed by Mr Roberts QC should be allowed at an hourly rate of $280 and a daily rate of $2,800. It submitted that the fee of $7,000 per day claimed for Mr Karkar QC and Mr Sullivan QC was vastly above the maximum in the Indicator - approximately 85%, or almost double the daily rate permitted. It further argued that noting that Mr Roberts had been heavily involved in the matter, had run aspects of it, had cross-examined certain witnesses, had conducted the oral reply submissions at the Full Court appeal in 2016, and had run the High Court appeal as sole lead counsel, he was fully competent to properly conduct the matter, and had in fact conducted large components of it. His rate at the relevant time was precisely the rate which it accepted as appropriate, namely $4,500 per day.
I have considered these arguments.
In my view, having regard to the complexity of the matter, both in fact and in law, and the fact that by the time the trial and appeal were heard, it is clear that rates charged by counsel, including eminent senior counsel, had substantially increased since the Indicator was published in 2007. The rates to be awarded to counsel in this matter should exceed those published in the Indicator.
However, the degree to which the rates should exceed the Indicator should bear some relationship to the time period between when the Indicator was published and when the work was undertaken.
Further, having allowed for two senior counsel in this matter, the amounts for Mr Roberts QC are to be set in each instance at the senior counsel rate provided in the Indicator, and not the junior counsel rate.
However, bearing in mind the heavy involvement of Mr Roberts QC in the matter as described above, including at all stages of the matter, and noting that he played a leading role in some aspects of the matter, I take the view that the fees to be allowed for Mr Karkar QC and Mr Sullivan QC should not significantly exceed those which have been claimed for Mr Roberts QC.
In respect to the fees of Mr Karkar QC and Mr Sullivan QC, I allow these at the rate of $500 per hour and $5,000 per day.
In respect to Mr Roberts QC, I allow his fees as claimed, namely, at $300 per hour and $3,000 per day, from August 2010 until around the end of December 2013, at $350 per hour and $3,500 per day from January 2014, and at $450 per hour and $4,500 per day from on or around 30 November 2014.
Orders
1.I certify both the trial at first instance before Hargrave AJ and the Full Court appeal, as appropriate for two senior counsel.
2.In respect to the fees of Mr Karkar QC and Mr Sullivan QC, I allow these at the rate of $500 per hour and $5,000 per day.
3.In respect to Mr Roberts QC, I allow his fees as claimed, namely, at $300 per hour and $3,000 per day from August 2010 until around the end of December 2013, at $350 per hour and $3,500 per day from January 2014, and at $450 per hour and $4,500 per day from on or around 30 November 2014.
4.As has been sought, this is a general indication only and will be subject to individual items in the claims being dealt with on their own circumstances.
5.As requested by the parties, I direct that they each contact the court within 14 days of the publication of these reasons, advising whether they seek a further directions hearing, or a time or times to be set aside for further submissions, or some other and what orders.