R Developments Pty Limited v Forth (No 2)
[2018] ACTSC 241
•31 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R Developments Pty Limited v Forth (No 2) |
Citation: | [2018] ACTSC 241 |
Hearing Date: | 16 August 2018 |
DecisionDate: | 31 August 2018 |
Before: | McWilliam AsJ |
Decision: | See [79]-[80] |
Catchwords: | COSTS – principles applicable to review of costs assessment – whether costs associated with removal of a caveat were part of the costs of the proceedings – reasonableness of time taken to prepare file for assessment – reasonableness of interstate counsel’s fees – reasonableness of costs of the costs assessment |
Legislation Cited: | Court Procedures Act 2004 (ACT) s 11BA |
Cases Cited: | Alexander Stewart & Sons Ltd v Robinson (No 2) (1921) 29 CLR 325 |
Parties: | R Developments Pty Ltd (Plaintiff) Andrew Stephen Forth (First Defendant) Ksenija Maria Nemet (Second Defendant) |
Representation: | Counsel Mr S Onitiri (Plaintiff) Mr D Harrington (First and Second Defendants) |
| Solicitors Aulich Civil Law (Plaintiff) Kamy Saeedi Law (First and Second Defendants) | |
File Number: | SC 201 of 2014 |
The parties to these proceedings are the owners of a property (the defendants) and a builder (the plaintiff). The plaintiff sought to terminate a contract to build a house for the defendants in Yarralumla. They have litigated their dispute, resulting in a judgment delivered by Mossop AsJ, as his Honour then was, on 4 February 2016: see R Developments Pty Ltd v Forth & Anor [2016] ACTSC 8 (the substantive judgment). His Honour ordered that the plaintiff pay the defendants’ costs of the proceedings. The issue now before the Court is a review of the assessment of those costs. The plaintiff is seeking to reduce the amount of the costs assessment.
Procedural history of the assessment
The costs of the proceedings were assessed in accordance with Division 2.17.3 of the Court Procedure Rules 2006 (ACT) (Rules). The parties attended a costs assessment hearing on 31 January and 16 March 2018.
On 19 March 2018, the Acting Deputy Registrar (Registrar), exercising the function delegated to him, as permitted by s 11BA of the Court Procedures Act 2004 (ACT) (Act), sent an email to the parties indicating a list of items that had not been allowed on the assessment and stated:
Parties have until midday tomorrow to advise me of any discrepancies in the above items to that which they thought were settled at the assessment
I therefore will make an order as to costs in the amount $101,029.60
The order will be effective from midday tomorrow.
On 20 March 2018, the defendants’ legal representative responded to that email. However, on the evidence before the Court the defendants do not appear to have included the plaintiff’s legal representative in the correspondence. The defendants attached a bill of costs in short form, claiming costs of the costs assessment.
Later that day, the defendants’ legal representative sent a further email, this time copying in the solicitor for the plaintiff, clarifying certain figures. Within half an hour of receipt of that email, the Registrar made the following orders:
1.Costs are assessed at $104,430.62
2.Interest is assessed at the amount submitted – being $12,333.91
3.The [defendants’] costs of the assessment are assessed in accordance with the short bill of costs submitted by the defendants at $21,544.68.
However, the Registrar had not given the plaintiff an opportunity to be heard on the short form bill of costs that founded order 3, which had been submitted by the defendants to the Court the day before the orders were made. When this was raised by the plaintiff, the Registrar properly permitted the parties to be heard on the quantum of the costs of the costs assessment.
Following receipt of the further submissions, on 9 April 2018 the Registrar varied order 3 above, substituting the amount of $18,942.68.
On 23 April 2018, the plaintiff sought reconsideration of the assessment under Division 2.17.7, pursuant to r 1852 of the Rules. Under r 1852, the plaintiff had 14 days to lodge the application for reconsideration.
On 18 May 2018, the Registrar made orders dismissing the application for reconsideration and ordering the plaintiff to pay the defendants’ costs of the reconsideration, fixed at $2,716.
10. The Registrar’s reasons for decision include the following:
The objections raise issues that were matters raised at assessment. The assessment was undertaken through hearings on 31 January 2018 and 16 March 2018. On 19 March 2018 I handed down my decision on the Bill of Costs. The plaintiff has lodged objections to this assessment outside of the time permitted by r 1852.
On that basis alone, I should not reconsider the items raised by those objections. …
11. However, the Registrar then expressly put the question of any time limit to one side and embarked on a reconsideration, stating his findings in respect of each of the objections raised by the plaintiff and giving reasons for them (as required by r 1854(b) of the Rules). He prefaced each of his findings with words such as, “had I been required to reconsider the objection I would say…” and “had the application been made within time, I would think…”.
12. The present application for review of the Registrar’s decision was filed on 1 June 2018 and is brought pursuant to r 1855(1) of the Rules.
The Court’s power to review
13. The parties were at odds as to whether this Court had jurisdiction to even hear the application for review. The defendants contend that as the plaintiff was out of time to lodge the application for reconsideration, the Registrar had no power to consider the application and consequently, this Court has no power to review whatever decision the Registrar made.
14. Rule 1855, under which the application is brought, is in the following terms:
Costs—review by court
(1)A party dissatisfied with the decision of the registrar on reconsideration under rule 1854 may apply to the court to review the decision.
(2)The application must—
(a) give the number of each item in the bill of costs to which the decision objected to relates; and
(b) state briefly, but specifically, the grounds for objecting to the decision; and
(c) state briefly the reasons for the grounds; and
(d) state the decision sought from the court in relation to each objection.
(3)The party must file the application, and serve a stamped copy of it on all other parties to the assessment, not later than 14 days after the day the registrar made the decision on reconsideration under rule 1854.
(4)Unless the court otherwise orders, on the review a party must not—
(a) present evidence; or
(b) raise any ground of objection not stated in a statement of objection or raised before the registrar.
NotePt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
(5)On the review, the court may—
(a) exercise all the powers of the registrar in relation to the items of the bill of costs under objection; and
(b) amend or set aside the registrar's decision; and
(c) return any item in the bill of costs to the registrar for reconsideration, whether with or without directions to the registrar; and
(d) make any other order it considers appropriate.
(6)Unless the court otherwise orders, the review does not operate as a stay of the registrar's decision.
15. As r 1855(5)(a) permits the Court to exercise all the powers of the registrar in relation to the items of the bill of costs under objection, r 1761 of the Rules is relevant. It provides:
Costs—registrar's discretion in assessing
In assessing costs, the registrar must consider the following:
(a) any other fees and allowances payable to the solicitor or counsel for other items in the same proceeding;
(b) the nature and importance of the proceeding;
(c) the amount involved;
(d) the principle involved;
(e) the interest of the parties;
(f) the fund, estate, or person who is to pay the costs;
(g) the general conduct and cost of the proceeding;
(h) any other relevant circumstances.
16. The defendants argue that the Registrar’s decision was in substance a decision declining to exercise jurisdiction, rather than a decision capable of triggering the review function under r 1855.
17. The defendants rely upon the decision of Raymond Arthur Fitzpatrick v John David Nicholl t/as Nicholl & Co & Ors [2007] ACTSC 7 (Fitzpatrick) at [8], where Crispin J made obiter comments about the jurisdiction for review in reference to rr 1852-1855:
…given the regulatory scheme to which I have referred, it may be doubted whether the Master would have had jurisdiction to embark upon any review of the certificate of costs in the absence of such a reconsideration.
18. The defendants contend that if the plaintiff wanted to challenge the Registrar’s decision, the plaintiff should have appealed the Registrar’s decision pursuant to r 5012 of the Rules, which permits an appeal to be commenced by filing a Form 5.1. Under r 5014, such an appeal must be commenced within five days of the decision being made “or any further time the Supreme Court allows.”
19. The argument that neither the Registrar on the reconsideration, nor this Court on review, had jurisdiction is rejected. The Court has jurisdiction to entertain the review application for the following reasons.
20. First, the Registrar at least had jurisdiction under the Rules to decide whether or not he could exercise jurisdiction in a particular proceeding, as that is a question of law. The ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine: Craig v South Australia (1995) 184 CLR 163, 177. The Registrar is part of the Court for the exercise of any jurisdiction given to that position (r 5 of the Rules). The Registrar had jurisdiction to undertake a reconsideration, and thus had jurisdiction to determine whether the application before him attracted such jurisdiction.
21. The Court then has jurisdiction on review to determine whether that decision was correct, at least as part of its common law (inherent) judicial review jurisdiction as a superior court of record, by reason of its source of power deriving from Commonwealth legislation: see Faull v Commissioner for Social Housing for the ACT [2013] ACTSC 121; 277 FLR 61 at [109]; Director of Public Prosecutions (ACT) v Martin [2014] ACTSC 104; 9 ACTLR 1; 286 FLR 120 at [104].
22. Second, in this case, the requirement to file an application for reconsideration within a certain time was pursuant to a procedural rule. Any failure to file the document created an irregularity not a nullity. See by analogy, the discussion of Refshauge J in Brennand and Naughton v Hartung and Best Practice Education Group Ltd [2014] ACTSC 326 (Brennand) at [84]-[88], and the cases there-cited. His Honour was in that case considering the legal consequence of using an incorrect form, and distinguished a nullity from an irregularity as a distinction between an order which a court has no jurisdiction to make and an order which, though within jurisdiction, has been made without the prescribed procedure being followed.
23. At worst, the application before the Registrar was an irregularity, not a nullity: see Logan v Baird [2011] NSWCA 19 at [3] in relation to a notice of appeal filed out of time; Plowman v Palmer (1914) 18 CLR 339, 347-348; Morris v Public Transport Commission of NSW (Unreported, New South Wales Court of Appeal, Moffitt P, Glass and Mahoney JJA, 28 May 1984). This is because the Registrar had the power to extend time under r 6351 of the Rules. It was also a procedural requirement which the defendants could waive unless they sought to have the application set aside: Perez v Transfield (Qld) Pty Ltd [1979] Qd R 444, 447.
24. The fact that the defendants, through their reply filed 7 May 2018, did object to what they considered to be the late filing of the application for reconsideration does not render the application a nullity, such that the Registrar had no jurisdiction to consider it.
25. Third, the basis for the Registrar deciding that the application for reconsideration was out of time was flawed. Although the Registrar indicated an intention to make orders on 19 March 2018, the orders were not made on that date. As set out above, they were made the following day. However, one of the orders was made in denial of procedural fairness, so that the decision was in fact no decision at all: see Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51]-[53].The Registrar plainly recognised this and gave a further opportunity to the parties to be heard, and further consideration to the orders to be made.
26. Pursuant to r 1734(1) of the Rules, the costs of a proceeding include the costs of preparing a bill of costs and attending the assessment of costs. As a result of the operation of that rule, I accept the plaintiff’s submission that the assessment of the costs of the proceeding was not complete until 9 April 2018, so that the application for reconsideration filed on 23 April 2018 was within the prescribed 14 day time limit.
27. Fourth, even if I had accepted the defendants’ construction of the Rules and consequently accepted that the application had been filed out of time, given the Registrar’s error in affording a fair opportunity to be heard on the totality of the orders to be made, the Registrar ought to have extended the time in which to file any application for reconsideration to 23 April 2018.
28. Finally, r 1721 (the terms of which are set out below) provides that the costs of a proceeding or of an application in a proceeding are in the discretion of the court. Such discretion is absolute and unfettered: Donald Campbell & Co Ltd v Pollack [1927] AC 732, 809. I would not have treated the fact that the Registrar has power to assess costs pursuant to division 2.17.3 as ousting the Court’s jurisdiction to award costs, but rather as a concurrent power. That much is evident from rules such as r 1720, which enable the Court to fix an amount of costs decided by the Court, which is effectively assessment by a different means.
29. For completeness, the facts of this case are distinguishable from those in Fitzpatrick, where the Registrar’s attention had not been drawn to the application for reconsideration sought to be filed, no reconsideration had occurred at all, and the Registrar had proceeded to issue a certificate.
30. Here, no certificate has yet been issued, pending the outcome of this application, and the Registrar has exercised the jurisdiction, notwithstanding his finding that the application was out of time.
Applicable principles on review
31. In Brennand at [92]-[96], Refshauge J applied a number of earlier single instance authorities in this Court in determining the approach that the Court should take on review.
32. His Honour found that the principles articulated in House v The King (1936) 55 CLR 499 (House v The King), 505 are the principles to be applied and the plaintiff has framed the ‘grounds’ of the application for review with a view to establishing such error.
33. That position may have been understandable previously (if I may respectfully say so), in light of the earlier single instance authorities in this Court to which his Honour referred, and the fact that, as it can be seen from r 1761 of the Rules (set out at [15] of these reasons) the nature of the decision-making power of the Registrar is discretionary, in the sense of balancing a number of considerations, which include “any other relevant circumstances”.
34. However, it does not follow that because the underlying decision of a Registrar is a discretionary one, the Court is limited to a review for House v The King error, as it is commonly described. The Court’s function on review is to be determined by the statute and the rules that govern the power. The genesis of the earlier authorities is Tarrant v Lier (Unreported, Australian Capital Territory Supreme Court, Fox J, 5 February 1968) (Tarrant v Lier), referred to in Brennand at [94].
35. Justice Fox (as his Honour then was) considered that he was dealing “with appellate jurisdiction in relation to decisions involving a discretionary judgment (as does the decision of the taxing officer) and, more specifically, with reviews of taxation.”
36. Respectfully, Fox J conflated a review of taxation as being a subset of the exercise of appellate jurisdiction, when in fact, the review was not an appeal at all. The relevant power under consideration was Order 65 r 66 of the Supreme Court Rules 1937 (ACT). That rule was in the following terms (emphasis added):
Party dissatisfied with taxing officer may apply to judge
Any party who is dissatisfied with the certificate or allocatur of the taxing officer as to any item or part of an item which has been objected to, may, within 14 days from the date of the certificate or allocatur, or such other time as the court, or the taxing officer at the time he or she signs his or her certificate or allocatur, allows, apply to the judge at chambers for an order to review the taxation as to the same item or part of an item, and the judge may thereupon make such order as the judge thinks just, but the certificate or allocatur of the taxing officer shall be final and conclusive as to all matters which have not been objected to in the manner provided in this order.
37. The said power of review is expressly not an appeal, which is a creature of statute. The emphasised words make it plain that mere dissatisfaction of the result permitted the right of review. That is, a party could apply for review based on merit and the judge could intervene as the judge thought just. There is no warrant to read down those words as requiring House v The King error.
38. Those concepts have been repeated in the current version of the Rules, namely in r 1855, set out at [14] above. The dissatisfaction of a party is the touchstone for ‘review’, with the power of the Court to make such orders as it considers appropriate – including any order the Registrar could have made. Those words make it clear that the Court is not limited to judicial review pursuant to s 34B of the Supreme Court Act 1933 (ACT). The consequence is that it is not limited to finding error based on the principles in House v The King.
39. Under r 1855(4), the Rules limit what evidence and submissions can be put to the Court on a review of a reconsideration decision. Importantly though, the Court retains the power to ‘otherwise order’. The words of the rule indicate that what the Court is undertaking is, in fact, a modified form of hearing de novo and this is consistent with authorities in other courts, such as: Cassimatis v Australian Securities and Investments Commission [2016] FCA 131; 334 ALR 350 (Cassimatis) per Edelman J (when he was sitting in that court), who undertook a detailed consideration of the similar provision in the Federal Court Rules at [7]-[16], with which I respectfully agree.
40. The consideration and approach in Cassimatis has since been adopted in this Court by Mossop AsJ (as his Honour then was) in Wagdy Hanna and Associates Pty Limited v Gavagna (No 2) [2017] ACTSC 4 at [13].
41. Accordingly, the plaintiff on this review does not need to identify error, but the Court does not exclude from consideration the relevant record of the proceedings, including the conclusions reached by the Registrar, particularly because the Registrar holds expertise in assessing the costs in litigation, by reference to scales and allowances at a level of detail that judges do not: see WJ Green & Co (1984) Pty Ltd v Tace Pty Ltd (No. 4) [2010] WASC 363 at [23], cited in Cassimatis at [16].
Objections
42. Given my conclusions in relation to the applicable principles, it is unnecessary to traverse every ground of the application in proceedings, many of which were directed to establishing error such as failing to give reasons. I will deal instead with the essence of the plaintiff’s complaints, which amount to four categories of objections.
The costs associated with the caveat
43. The first set of objections by the plaintiff relates to items 23, 24, 30, 45, 46, 47, 48, 49, 85, 114 and 489 of the bill of costs. The amount claimed for these items, totalling $723.30, concerned the placement by the defendants of a caveat over the property the subject of the proceedings. The Registrar allowed the inclusion of these costs.
44. The plaintiff submits that the Registrar did not have the power to allow the costs associated with the caveat as the caveat was not an issue in the substantive proceedings, and was not pleaded by the plaintiff or raised by the defendants in their defence. It is the defendants’ position that the Registrar did have such power to allow the costs associated with the caveat.
45. Relevantly, r 1751 of the Rules provides for the basis on which a registrar must assess costs:
(1)Unless a territory law or an order of the court otherwise provides, the registrar must assess costs on a party and party basis.
…(2)In assessing costs on a party and party basis, the registrar must allow all costs that the registrar considers were fair and reasonable for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.
46. Rule 1722(1) of the Rules provides that a solicitor may charge for, and be allowed, work done for or in a proceeding.
47. The only reason the plaintiff lodged the caveat was to protect the interest he considered he had in the defendants’ land, which he sought to maintain by the proceedings, and which he lost. Thus, even though the removal of the caveat was not the subject of any express pleading, the defendants’ costs of removing the caveat were directly referable to the proceedings. I consider the caveat relates to work done for the proceeding and the items associated with it were clearly necessary for the lawyers for the defendants to deal with the proceedings commenced by the plaintiffs. There is no basis to overturn the Registrar’s finding in respect of the costs referable to the caveat issue.
The costs associated with preparing the file for the costs assessment
48. The second objection by the plaintiff concerns item 433 of the bill of costs. This item related to a claim for 48 hours of work by a solicitor and a clerk, claiming 12 hours and 36 hours respectively, in preparation of the file for the costs assessment. The Registrar made an order for 24 hours of work, allowing six hours work by a solicitor and 18 hours by a clerk, being $3,038.40.
49. The plaintiff submits that the decision of the Registrar in relation to item 433 is manifestly unreasonable, drawing attention to the amount claimed and allowed for the drawing of the bill of costs, being $1,644.60.
50. In the plaintiff’s submission, the drawing of the bill is what requires the application of skill and the legal mind, and typically represents the majority of the work done in preparing the bill. The plaintiff submitted that allowing almost double that amount for “essentially organising the file” to allow for the bill to be drawn is not fair and reasonable.
51. The plaintiff further submitted the bill of costs, not including the summary sheet, was relatively small, being 41.5 pages in length and that this was not large enough to justify 24 hours of work organising a file for assessment. They say a fair and reasonable allowance for the work would be $741.60 on the basis of three hours at the item 31 rate of $247.50 per hour.
52. The defendants submitted that the amount allowed was more than fair and reasonable for a bill of costs of this quantum and file of this size. They submitted that it is ultimately a question of what is a fair and reasonable attendance, taking into account the amount of work that is reasonably expected to be undertaken in the circumstances. They maintained the volume of the file, being four boxes of files, was of such a nature that it required a significant attendance.
53. Having regard to the considerations in r 1855 above, the case was a three day case and resulted in a substantial judgment, requiring determinations of fact, and a volume of evidence presented by each party, part of which was commented on by Mossop AsJ in the substantive judgment at [33]. Nevertheless, what was allowed was more than three full days to get the file in order before the bill of costs was drawn. If the file was in such a state that it required the amount of time billed before it was ready for the task, then that is not a matter for which the plaintiff ought be responsible.
54. I will disallow three hours of the solicitor’s time and four hours of the clerk’s time. That means that three hours’ work by a solicitor and 14 hours by a clerk (being two full seven hour days) has been allowed.
The costs associated with the use of interstate counsel
55. The third set of objections by the plaintiff relates to items 496-499 of the bill of costs. These items related to costs associated with the use of interstate counsel. The plaintiff complains about:
(i) the allowance of the costs for interstate counsel in the absence of sufficient proof by the defendants that it was appropriate to brief interstate counsel;
(ii) that such costs were allowed on a solicitor/client basis, rather than on a party/party basis; and
(iii) the quantum of the costs, which it says were not fair and reasonable having regard to the amounts charged by practitioners in the Territory.
56. As to the first aspect of the complaint, both parties relied on Per Dalgety Australia Operations Ltd v FF Seeley Nominees Pty Ltd (No 2) (1989) 49 SASR 75 (Dalgety) which states, in general principle, that travel and accommodation costs of interstate counsel will not be allowed if there are suitable counsel available in the jurisdiction where the proceedings are heard. See also Milisits v South Australia [2017] SASC 186 at [42].
57. The issue was also considered in Alexander Stewart & Sons Ltd v Robinson (No 2) (1921) 29 CLR 325 where Starke J noted at 327:
The expenses of sending legal advisors to another State may, no doubt, be allowed as costs if a litigant of ordinary prudence would reasonably have incurred them to secure a proper presentation of his case to the Court.
58. His Honour further noted that where “the matters to be dealt with were purely matters of law”, the party claiming the expense must “satisfy the Court of very special circumstances.” Such “special circumstances” were found to be present in that case, as the matter was brought on urgently and the case had been brought on the advice of the interstate counsel who were already familiar with its details. The principle articulated by Starke J above has been applied in this Court in Tarrant v Lier (at page 62 of the Transcript of Proceedings).
59. In Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629, the fees associated with the use of interstate senior counsel were allowed but the fees associated with interstate junior counsel were not allowed. In accepting senior counsel’s fees, Mason J noted that inquiries made by the solicitors led to the conclusion that there were no other suitably qualified and experienced senior counsel available and therefore it was necessary and proper for interstate senior counsel to be briefed. The general statement as to the unavailability of local senior counsel with relevant experience was not challenged and his Honour saw no need to look beyond an unchallenged statement.
60. In the circumstances of the current case, the defendants submitted there were no suitable counsel available in the Territory at the time the matter was run. Mr Orlov had been initially engaged, however due to the uncertainty of his ongoing availability, the defendants had then engaged Mr Katekar, interstate counsel.
61. The plaintiff itself engaged interstate counsel in the substantive proceedings. Given the explanation by the defendants as to the unavailability of the counsel they had engaged (supported by the evidence before the Court that Mr Orlov had been previously briefed in the matter), and having read the substantive judgment of Mossop AsJ, I have some understanding of the complex contractual nature of the matter, which required cross-examination on critical facts. Had the claim been successful, the case was worth more than half a million dollars (see [18] of the substantive judgment). This was not a case where the matter was so routine that any available counsel with expertise in commercial matters in the Territory should have been briefed over an interstate counsel, and I do not read Dalgety as requiring that result. The case required the expertise and the level of seniority of the counsel involved, who regularly appears in this Court on commercial matters. The defendants were entitled to their choice of counsel within the bounds of reasonableness. I find that a litigant of ordinary prudence would reasonably have incurred the costs of the particular interstate counsel involved in the case.
62. As to the second complaint, sub-r (3) and sub-r (4) of r 1805 of the Rules provide as follows:
(3)If a bill of costs includes a charge for work done by a solicitor or counsel practising outside the ACT, the charge must be shown as a disbursement.
(4)If a registrar allows a charge mentioned in subrule (3) when assessing costs, the amount the registrar allows must, as far as practicable, be an amount appropriate in the place where the solicitor or counsel practises.
63. The plaintiff submitted that r 1805(4) concerns work done by counsel practising in another jurisdiction – it does not include work done by counsel in which they are retained to appear in proceedings instituted and then ultimately heard in a court in the Territory.
64. I disagree. There is no basis to limit the application of that rule to exclude work properly carried out by an interstate counsel for a hearing that takes place in the Territory. Accordingly, the amount is to be assessed as a disbursement; that is, on a solicitor/client basis.
65. As to the third complaint, the plaintiff objected to the reasonableness of the quantum of the costs of briefing interstate counsel by the defendants, including the travel costs. The plaintiff submitted the scale of fees sets out what can be considered a standard of what is fair and reasonable. The scale of fees provides for a fee on brief of $1,800.00 to $3,500.00. However, the taxing officer has the discretion to allow more than scale fees.
66. The submissions of the plaintiff proceeded on an assumption that counsel for the defendants had charged a brief on hearing fee. Once the detail of counsel’s fees was provided to the Court, the basis on which the interstate counsel involved had charged became apparent. The work included three days for appearing in Court, one day of preparation the day before the commencement of hearing, and what amounted to two days of the counsel’s time for reviewing the brief, conferences, preparing a chronology, research, preparing objections, advising on pleadings and amending the same, and preparation of submissions. The daily rate was $5,000 plus GST. Such costs were plainly reasonable having regard to the relative seniority of the counsel involved, the issues in dispute, and in particular the nature of the work involved, all of which I consider was directly necessary for the counsel to adequately present the case and assist the Court to reach the conclusions it did.
67. To the extent that the travel costs of interstate counsel were high given the close proximity between Canberra and Sydney, they regrettably represent the basic cost of economy plane travel between those two locations during the working week and I would not disallow such costs.
The costs of the assessment
68. The final objection by the plaintiff related to the costs of the assessment. The Registrar allowed $18,942.68 for the costs of the assessment.
69. The plaintiff submitted the Registrar erred in finding that rr 1720 and 1721 of the Rules gave him the power to determine the costs of the assessment at his discretion. It was the plaintiff’s evidence that both of these rules concern the Court’s general power to award costs, not the assessment process.
70. Rules 1720 and 1721 provide as follows:
1720 Costs—entitlement to recover
(1)A party to a proceeding cannot recover any costs of the proceeding from another party or anyone else otherwise than by agreement, under a territory law, or an order of the court under a territory law.
Note A territory law includes these rules (see Legislation Act, s 98).
(2)If, under a territory law or an order of the court, a party is entitled to costs, the costs are to be assessed costs.
Note The parties may agree that the costs be set at a certain amount (see r 1702 (Costs—agreement about costs).
(3)However, instead of assessed costs, the court may order a person liable for costs to pay to the party entitled to costs—
(a) a stated part or percentage of assessed costs; or
(b) assessed costs to or from a stated stage of the proceeding; or
(c) an amount for costs decided by the court; or
(d) an amount for costs to be decided in a way the court directs.
Note Pt 6.2 (Applications in proceedings) applies to an application for an order under this subrule.
1721 Costs—general rule
(1) The costs of a proceeding or of an application in a proceeding are in the discretion of the court.
(2) The costs of the proceeding include the costs of an application in the proceeding, unless the court otherwise orders.
Note 1 Application in a proceeding is defined in r 6006.
Note 2 Pt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
71. The plaintiff submitted that the defendants’ solicitor did not make a claim for the costs of the assessment in their bill of costs and what they did file was described as a “short bill of costs”, for which there is no such provision in the Rules. The plaintiff says the short bill of costs did not comply with r 1802, as it was not prepared in accordance with the Schedule 4 scale and failed to provide particulars.
72. Having reviewed the history of correspondence between the parties and the Registrar, this entire argument is misconceived. It arises from one line in the reasons delivered by the Registrar on the application for reconsideration, which referred to those two rules set out above. It is unnecessary to determine whether the Registrar was in error in offering that explanation for an order he had previously made.
73. It can readily be seen from the correspondence of 9 April 2018, reducing the assessed costs of the costs assessment to $18,942.68, that such sum was the result of a detailed, line by line assessment of what the Registrar considered to be fair and reasonable. The Registrar has clearly set out the amounts that were considered to be excessive in that correspondence.
74. It is appropriate to defer to the expertise of the Registrar on such a line by line analysis. I am unable to discern any particular item in the costs claimed was unreasonably claimed.
75. The plaintiff further complains about the fact that the bill of costs for the costs of the assessment was itself not prepared in accordance with r 1802, in that it was not prepared in accordance with the Schedule 4 scale and provided no particulars as to how the amounts claimed were made up.
76. At this point, the plaintiff is moving towards disproportionality of resources devoted to the resolution of the issues in dispute (including judicial resources) as against the quantum in dispute and placing form over substance. The Registrar was able to use his experience in the assessment process to determine the reasonableness of those further costs. Pursuant to r 6 of the Rules, to the extent that it is necessary to do so, I dispense with the requirement for the defendants’ short form bill of costs of the costs assessment to comply with r 1802 of the Rules.
Conclusion
77. In the result, the plaintiff has achieved a small degree of success in reducing the costs associated with preparing the file for the costs assessment. The plaintiff thus has been successful on the review application. The costs order of the Registrar in relation to the reconsideration application will be set aside.
78. Ordinarily, costs would follow the event and the nature of the hearing was such that there was no argument clearly severable.
79. However, as can be seen from the reasons set out above, the defendants have also achieved a significant measure of success in respect of the remainder of the arguments.
80. Given the mixed success of both parties, I have decided that the just outcome is to order that each party pay their own costs of this application and of the reconsideration application. The parties are directed to bring in short minutes of order giving effect to these reasons.
| I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: |
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Amendments
13 September 2018 Replace “four hours’ ” with “four hours” Paragraph: [54]
Replace “15 hours by a clerk” with “14 hours by a clerk (being two full seven hour days)” Paragraph: [54]
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