Ralkon Agricultural Co. Pty Ltd v Aboriginal Development Commission

CATCHWORDS

Review of

taxation of costs - applLcant

for

review

was

unsuccessful applicant in main action and ordered to pay costs

0.62 r.44 Federal Court Rules

- power of court to review

- nature

~	1
I

of review

- discretion

of taxing officer

- what costs can be

properly

allowed

- perusing

scanning

- necessity

and

I	justification of allowed costs	- partylparty costs	- counsel fees
l
senior and lunior.

1 Administrative Decisions (Judicial Review) Act

:	Fecleral	Court Rules, 063. r.44
I
I

Australian

Coal

and

Shale

Zmplovees' Federation v.

Commonwealth (1553) 94 C.L.R.

621 at P.628

Fat-Se1 Pty Ltd

v. Brambles Holdinos Ltd

(1985) 61 A.L.R.

536

Commissioner of	Taxation v.	Gulland Watson, Lepal Reporter	15
April 1996

M&na

Allovs & Research Ptv Ltd

v. Coffee (No. 2 ) (1982) V.R.

at p.109

PORSTER, J.

-ADELAIDE

I	-	11 JULY 1986
I
I
1	.

IN THE FEDEFAL COURT OF AUSTRALIA

SOUTH AUSTPALIA DISTP.ICT REGISTRY

1	No. G50 of 1981

)

GENEWL DIVISION

B E T W E F N :

PALKON AGRICULTUPIIL COMPANY

PTY LIMITED

Applicant

- and -

ABORIGINPJ; DEVELOPMENT CONYISSION and 3 J I O W .

Respondent

MINUTE OF ORDEP.

JUDGE MAKING ORDER	FORSTEE J.
WHERE MADE	PDELAIDE
DATE OF ORDEF.	11 JULY 1986
THE COURT 0RDEF.S THAT:

. a

1.	This matter be	remitted to	taxing	he	officer	to	I .
~

make the necessary alterations

to his certificate to comply

with the court's findings.	I .
i

Further

submissions

h ard

as to the appropriate

/ '

order for costs.

L .

! '

t .

. ,

Note: Settlement and entry

orders is dealt with in

Order 36 of the Federal Court Rules.	1
I I
c,<
I
L ~.
' ,

I N THE FEDERPJ. COmT OF AUSTRALIA )

SOUTH AUSTPALIA DISTRICT REGISTRY )

No. G50 of 1 9 8 1

GENE-&

D I V I S I O N

B E T W E E N :

PJLLKON AGRICULTUFUL COMPANY

PTY	L I M I T E D

Applicant

- and -

ABORIGINAL DEVELOPMENT COMMISSION and ANOTHEX

Respondent

REASONS FOR JUDGMENT

CORPA: Forster, J.

This is a review of

a taxation of costs carried out by

the District lieglscrar

OF this Court.

The review is pursuant to

Order 62 Rule 44 of the Federal Court

Rules. The applicant for

review was the unsuccessful applicant in the main action ordered

to pay the costs

of the

respondent.

The applicant objects

before me and objected befcre the taxing officer to the amount

allowed in the taxation with respect to fourteen separate items

I .

or groups of items. Upon reconsideration pursuant to

0 .62

R.43

I ,

the taxing officer taxed off entirely the amount

he had allocated

on taxation with respect to one item and reduced another item

$100.

The respondent, by a sort of cross-application

for a

review, applies for review of this decxsion of the taxing

officer.

The

application and the cross-application were heard

, .

?!.

2 .

together.

The first question

to be decided

is the nature of

the

review and the powers

the court when conducting

it and the

manner in which it should approach its task.

Is the review a

hearing de novo as

is contended for by the applicant

or is it an

appeal stricto sensu as is contended for by the respondent?

l	Order 62 P..44(4) and ( 5 ) are as follows -

" ( 4 ) On the review, unl@ss

the

Court by order

otherwise directs -

(a1 lurther evidence shall

not be received;

and

!b) a party

shall not raise any ground

objection

not

either

stated

statement of objection or raised before

the taxing officer.

( 5 ) Subject to sub-rule

(41, on the review, the

Court may -

(a)

exercise all the powers and discretions

of the taxing officer in relation to

the

subject mattet of the review;

(bl make orders for the alteration

of the

I	certificate ;

(cl	make orders for the remission of any item to the same or any other taxing officer for taxation; and

(dl make such other orders as the nature

the case requires

a "

It is said by

the applicant that para. 5(a) appears

the relevant rules of no other jurisdiction

except that of the

. :

Supreme Court of New South Wales

(see 0.52 R.62).

It is argued

that the presence of this paragraph in the Federal Court Rules

and

its

absence

from

the

relevant

High

Court

Rules

and

the

relevant Victorian Supreme Court Rules means that cases on the

High Court Rules or Victorian Supreme Court Rules are

of doubtful

relevance. It is argued further that the effect of para.

5(al

is to make this hearing

a hearing de novo.

No authority is

cited for this proposition and

I have

found none nor has any

authority based

on the New South Wales rule been cited

to me but

it is asserted that the effect of para. 5(al is

to make the

review a hearing de novo.

I do not think that this is

so.

Sub-rules 4[a)

and

4 ( b ) are entirely inappropriate for such a

hearing. At

a hearing de novo it would not be right to exclude

further evidence. Limiting the grounds of objection

those

taken before the taxing officer would

be inappropriate to a

hearing de novo. Exactly what is accomplished by sub-rule

5(a)

I am uncertain and the finding

on this will have to await

thorough argument

on it in some later case.

If I am to regard the review as

an appeal stricto sensu

how then am

I to be guided

as to how I

should proceed? With

very great respect

I am content to adopt the words of Kitto

J. in

Australian

Coal

and

Shale

Emplovees'

Federation

Commonwealth 11953) 94 C.L.R.

621 at p.628 -

"I take it to

be true that the decisian of

the

taxing officer as to quantum is generally speaking

final, and that it must be

a v ry exceptional case

which

the

Court

will

even

listen

I	I
!

application to review such a decision	: In the
Estate of Osilvie (1910) P., at p.245.	But the

authorities as a whole (not omitting to notice

Whlte v. Altrincham U.D.C.

(1936) 2 K . B . 138, do

not establish as an absolute proposition that

judge

will

never eview

a taxing

officer's

decision on a question of auantum only.

Swinfen

L.J. said in Slinosby v. Attornev-General

(1918) P. 236, at p.239, after quoting the passage

from Ouilvie's Case to which

I have referred

'The

decision of the

taxing

master

not

absolutely final, even

on a question of ouantum';

and so it has been held several times

n Victoria,

...

where the view has been accepted

for many pears

( _ .

l	that a taxing officer's decision on guantum will be corrected if the judge concludes that 'he has clearly made a mistake' : In re Melbourne Parkinq	* ,
, .

Station Ltd. (1929) V.L.R.

5, at p.89; House v.

L .

Life Insurance Co. of Australia Ltd. (1930)

V.L.R.

' .

165; Emer v. National

Trustees

Executors

Auencv Co. of Australasia Ltd. (No. 3) (1940) V.L.R. 366; Carrazzo v. Wevman (1944) V.L.R. 207;

McCouahtrv v. Schrick (1947) V.L.R. 342;

see

also,

Russo v. Russo (1953) V.L.R. 57.

respectfully adopt the summary of the law

on this

matter which was made by Jordan C.J., with the concurrence of Harvev C. J, in Eq. and Street J.,

in Schweppes'

Ltd.

Archer

(1934) 34 S.R.

(N.S.W.) 178: 51 W.N. 71.

His Honour said:-

' In

appeals as to coscs, the principles

to be applied

are these.

The Court will always review

decision of a Taxing Officer where it is contended

that he has proceeded upon

a wrong principle, for

the purpose of determining the principle which

should be applied; and an error in principle may

occur both in determining whether an item should

be allowed and

in determining how much should be

allowed. Where

no principle is involved, and the

question is,

whether

the

Taxing

Officer

has

correctly

exercised

a discretion

which

possesses and is purporting

to exercise, the Court

reluctant

interfere.

has undoubted

jurisdiction to

review

the

Taxing

Officer's

1 .

decision even

where an exercise

of discretion only

is involved, and will do so freely on a proper

case, using its

own knowledge of the circumstances

: Western-Australian

Sank v. Roval Insurance Co.

(1908) 7 C.L.R.

at p.388;

Clark, Tait &.Co. v.

Federal Commissioner of Taxation (1931)

47 C.L.R.'

142, at pp.145-146,

but

will

in general

r .

interfere only where the discretion appears not to

have been exercised at

all,

to have been

exercised in a

manner which is manifestly wrong;

and where the question is one

OF amount only, will

5 .

do so only in an extreme case' (1934) 34 S.R.

(N.S.W.), at pp.183, 184; 51 W.N., at p.73."

I now-deal with the

applicant's objectTons item by item

in order of importance at first rather than in numerical order.

Item 116 - Perusals for Discoverv 9221	paaes 37663 folios
$44,260-80.

is conceded

that if 27663 folios

were properly

perused the appropriate rate

at the time was $1-60 per folio

according to the second schedule

the High Court Rules

which

were applicable pursuant to the second schedule of the Federal

Court Rules.

It is said however that it was not necessary for

one Smith an associate

partner of the respondent's solicitors to

peruse all the documents said to have been perused in order

decide whether or not they should be discovered.

relatively

small number of documents was eventually discovered as a

result

of all this perusal.

As a matter of principle I would say that

all reasonably possible

sources

of relevant

discoverable

documents should be explored

and thus perused or at least

scanned.

The

taxinq

officer

examined the documents

and

concluded that it was necessary and proper within this principle that they be perused. I was not pressed to undertake a similar

exercise and I was left with the argument based on the

relatively

small number of documents discovered.

The taxing officer taxed

off $4,871-92 because he was of opinion that a lesser number

I .

folios was perused.

I am unable to say that the taxing officer

was wrong to find that there were 34,619 folios fit and

proper to

I	be perused.

1 .

There is however	a	further point and	that is that	.c
'. ,

according to his affidavit sworn and filed in th'e taxation Smith

spent a maximum of 60 hours on these perusals and probably

less.

Smith's

time sheets for the relevant period record 26 hours for

"attendances", 5 hours f o r

"drawing"

and 34.2 hours

for

"various". One

can disregard the hours employed in "drawing"

and Smith's affidavit says

that the entries "in respect of

work

I done by

me in this matter,

at the time, would have related

substantially to the matter

of discovery although I am unable to

recall whether all

such entries were entirely

so".

Smith also

says that in

filling in his time sheets he

intended to give

conservative

stimate

the

time

involved.

Balancing

one

consideration against another I

conclude an absolute maximum .of

60 hours was spent

by Smith in perusing the relevant documents

and probably less.

If 24,619 folios were perused at least 410

folios or 103 pages must have been perused in each hour.

In the

I b . !'

absence of evidence that Smith is a gifted speed reader

I do not

believe that he could have done this more

or less continuously or

all.

I point out that

perusal of a

document

means

consideration of its contents

(Law of Costs, Oliver at p.214).

Perusal is to be contrasted with scanning.

In the scale at

present applicable in the Federal Court scanning of documents

charqeable at a different and lesser rate to

perusal.

In view

, .

/ L .

7 .

of the time said to have been taken to peruse

a great number of

documents I think it likely that Smith simply scanned many if not

most of -the

documents.

relevant

ime

no charge was

provided for scanning in the applicable scale.

I also point out

that

after $4,871-92 had

been

taxed

off

from this

item

was

allowed at a sum which remunerated Smith at the rate

of more than

$656 per

hour.

I consider that in

allowing

$39,388-88 for

item

116 the taxing officer proceeded upun

a wrong principle and

ought to review and alter his decision.

I accept with respect the correctness of the decision

Beaumont J. in Fat-Se1

Ptv Ltd v. Brambles Holdinus Ltd

(1985) 61

A.L.P.. 536.

If the work of perusal were actually done the fact

that the application of the appropriate item

in the scale of

costs produces what seems to

an unreasonable result is

irrelevant.

The relevant scale as

at March 1983 gave the taxing

officer no discretion

reduce the result obtained

by applying

the scale to the work done. In the matter before me

now however

I cannot be satisfied that

24,619

folios were

perused in the

proper meaning of the word

and in my view many of them must have

been scanned for which there

was at the time

no charge allocated

in the scale. What then is to

be done?

I have no doubt that

substantial amount of

work

was done in scanning and perusing

documents but I have no way of knowing or of finding out

how many

folios were scanned and

how

many were perused it only being the

latter for which any charge can be made. According to his

!, -

' I .

affidavit Smith has no clear recollection of what was done.

must, I think, apply a broad

axe to the problem bearing

in mind

the time taken, the number of folios actually discovered, the

surrounding circumstances and the fact that the onus rested upon

the respondent of satisfying the taxing officer and me that the

work was done. Doing the best

I can I assess the charge under

item 116 at $7,500 which means that

a further $31,808-88 must be

taxed off.

I point out that if the work took 60 hours this is

still remuneration at $135 per hour. If

less hours were taken

then the hourly rate is higher.	l
y ,
1 -
Counsel Fees	I . .-
c

The next general topic

is counsel fees. There are five

I ..

items or groups of consecutive

items

in the bill submitted for

8 .

taxation which comprise coun5el fees. Mr Debelle

Q.C. of

the

. -

independent bar was leading counsel for the respondent and Mr

Ericson, a barrister and solicitor then

in the employ of

the

solicitor's for the respondent,

was his junior. Counsel

fees

are claimed for both. Counsel

fees are

charged for the court

hearing of the action

on a daily basis. There are fees

for

I..

conferences, for reading, for advice, for perusing documents and

for drafting written submissions. Very little was taxed off the

bill by the tkving officer.

In the first place it should be observed

that the bill

does not make provision for

a fee on

brief and refreshers for

either counsel. Generally speaking the time spent by each

1 ,

I .

I .: I '

charged. For instance

for time in court Mr Debelle

Q.C. charges

$1,000 per day and

Mr Ericson charges $666-66 per day.

"The time honoured basis of charging counsel's fees

in respect of

a court hearing remains the basis of

a brief fee and refreshers of two-thirds of that

fee, and prima facie this is the basis' upon which

counsel's fees will be taxed as between party and

party. There must, in my opinion, be an onus upon

the party who seeks a departure on taxation from

that traditional and usual basis, and the onus

must be one of satisfying the taxing officer that

the traditional method of fee marking could not

reasonably

have

been

followed

all

the

circumstances of the case."

(Maana Allovs

Coffee !No. 2 ) (1983) V.R.	97 at p.112	per
Fullagar, J.)

In that case the taxing officer remodelled counsel fees

which had been charge6 on

a daily basis

so as to provide for a

fee on brief and refreshers. Fullagar

J. approved this course

despite being urged to depart from traditional practice. In the

case at hand the taxing officer was urged to remodel the charges

for counsel fees in the respondent's bill but declined to

d so.

In this I think

he was in error and this error being an error of

principle I feel able to interfere.

I note with interest the

reasons given by the Registrar of the High Court Mr

F.W.D. Jones

in Commissioner of Taxation

Gulland Watson reported in the

Legal Reporter

of 15 April 1986 with which

I respectfully agree.

It was agreed

by counsel before me on the hearing of the

review

that

a fee

brief

plus

refreshers

were

the

appropriate way to approach the assessment of counsel fees for

t -

10.

1 :

time spent in court, however	much preparatlon	should properly be	I.,	r - .:
L "

included in the brief fee,

was to charge a brief fee and ten

I :.

refreshers.

' :

This

was a

difficult

and

complicated

case

which

took

L.:

long time

court and involved voluminous documentation and

involved difficult and complicated questions

law and fact.

However difficult and complicated the

case

may have been the

distinction between &.-rty and party costs and solicitor and

client costs must always be maintained. -tever

agreement as

to fees for counsel and the method of assessing them may be reached between counsel, solicitors and client and however proper

in that context such fees

and methods may be seen to

be, there is

no warrant for introducing such fees and

methods in a taxation as

I	between party and party when the provisions of 0.62 R.19 must	be
i	kept in mind -

"19. On

every taxation the taxing officer shall

allow all such costs

charges

and

expenses

appear to him to have been ecessary or proper for the attainment of justice or for maintaining or defending the rights of a party, but, except as

against the party

who incurred them, costs shall

not be allowed which appear to

the taxing officer

to have been incurred

or increased -

through over-caution,

negligence

misconduct;

;

by payment of special

fees

to counsel or

special charges or expenses to witnesses or	I-
other persons; or	I.
I~
by other unusual. expenses. "	1 ;
L:
!

1 %

11.

The fee to

be allowed on brief must

be taken to include

a good deal of time spent

i reading facts and law

in preparation

for trial.

"I think the taxing master

has a discretion to allow

on party taxation

separate fee for preparation relating to

facts or law

or both, but that generally speaking he should allow

only

matters

great

complexity

voluminous

documentation."

"In my opinion, as I have said.

a brief fee itself is

remuneration for a preparation extending

up to at least

substantial part

of the day before and the night before the

hearing, as well

for time spent

in court before the first

refresher

commences".

(Mama Allovs & Research

Ptv

Ltd

Coffee (supra) per Fullagar

J. at p.109).

In the bill

under consideration senior counsel charges

for twelve and a half

hours spent pre-trial in reading, perusing

documents and reviewing

law for which

$1,220 is charged. Having

in mind the complexity of this case the guide to counsel fees in

the Supreme Court and the fact that this matter is

in the Federal

Court, I

consider that the appropriate

fee on brief for

Debelle Q.C. is $1,200 with refreshers of

$800.

This brief

fee

is some $450

above that-mentiond in the

Supreme Court guide

counsel fees for the relevant time.

In my view this fee with

its

consequential

effect

the

ten

refreshers

adequately

reflects as between party and party the complexity and difficulty

of the matter and the time spent by Mr Debelle in preparation for

' .

12.

trial and In

some of the additional

conferences.

Ericson's

fee on brief

should be $a00

and his

ten refresher fees at $533.

Disregarding

conferences counsel fees for Mr Debelle

Q.C. for the

trial and preparation

for it should be

$9,200 and for

Mr Ericson

$6,130. There

remain

the

questions

fees to

counsel

for

conferences and certain other matters.

As	to conferences, fees to counsel for some twenty

conferences are claimed and were allowed by the taxing officer

with only minor reductions. These conferences stretch

in time

from a time when the case

was listed for trial and due for trial

in two months

to a little less than half way through the trial.

It is argued by the applicants that by any standard the number of conferences charged for and allowed as between party and party is excessive. This argument was also put to the taxing officer and

rejected by him. In this

I think he was wrong.

The allowance

of fees for

greatly excessive number of conferences with

counsel both senior and junior sometimes together and sometimes

separately amounts in my

view to

an error

in principle which

justifies my interference with the	exercise	of	the	taxing
officer's discretion.

I have been supplied

with a memorandum setting out some

detail of what was discussed at the various conferences some as

say with senior counsel and Some with junior counsel,

some with

both and some with representatives of the clients also present.

13.

When I was more familiar with these matters,

some

fifteen years ago, the practice in the Supreme Court of South Australia with respect to taxation of a bill of costs between

party and party in a run of the mill action

such as a

running

down case was to allow one conference between party and party

with counsel before the trial and none during the trial unless

something entirely unexpected occurred. In matters of greater

complexity two or perhaps even three conferences would be allowed

on taxation between party and party.

The propriety of allowing

any more than one, two

or possibly three conferences would be

I .

examined very closely indeed. I am informed by counsel that

, :

this

still

the

practice

in the

Supreme

Court

South

L..

Australia.

This seems to me with respect

to be a useful and

simple practice

for busy taxing officers.

The case at hand was, as I

have said, a difficult and

very complex one.

Having considered the matter carefully and

particular

having

considered

the

memorandum

submitted

with

details of the conferences, I have decided to allow the fees for four of the conferences, the detail of which is set out in the

memorandum. These conferences are as follows

Item

15.2.83 - conference

Debelle

Q.C.	with Messrs Wilson, Anderson,

Prior and Smith.

2 .

Item 172 -

7.4.83 - conference Mr Debelle

Q.C.

I .'

and Mr Ericson with

MS Featherston

L '

and

Messrs

Prior,

Anderson

and

Smith.

Item 1971172 -

28.9.83 - conference Mr Debelle

14.

Q.C. with Mr Ericson and Mr Smith.

Item 197 -

13.10.83 - conference

Debelle

Q.C. with Messrs Muddle and

Tpnan.

The first three of the above conferences took place

before the trial began and concerned generally preparations

for

I. . .

the trial.

The last conference took place during the trial

when, in

my view, it was necessary to confer

with two witnesses

I..

to be called by the respondent

order to discuss evidence

presented in the case of the applicant.

I should

say

that

where

attended

a conference

, .

appropriate fees should	be allowed to Mr Ericson.	I
7 .
I .

Finally on the topic of counsel

fees, the fees allowed

, -

to Mr Debelle Q.C.

for settling documents are objected to both on

, I

the basis that it was not necessary to have senior counsel settle

: >

. ,

the documents settled by him and also that the fees allowed as

, ,

between party and party were too high.

Included in Item

7 8 -

I .:

Fee	to Mr	Debelle	Q . C .	to	settle	defence	$200	I
1.
l<,:

Fee to Mr Debelle

Q.C. to settle request

for

r .;

better	par	further	and	iculars	$200	, "
I .
i I
I I
t -

'?he	taxing officer took the view that "while it may be unusual to

j .

allow settling fees to Senior Counsel that is not to	say	that	I	;
(:I

, .

15.

i	such amounts are never	to be	allowed in	an appropriate case.
I

Taking into account all

the circumstances of this matter

I have

formed the view that this was

an appropriate case to allow such

fees...".

I find

myself

unable

say

that

the

taxing

officer

was so clearly wrong

in allowing fees to senior counsel

fo r

!	settling documents or	in the quantum of such	fe'ea as to warrant
I

my interference. It

was a very difficult and complex matter and

I do not consider that it can be said that it

was extravagant or

in any other way unreasonable to have senior counsel settle these

two documents.

The quantum of the fees appears

to me to be high

1 -.

but not so high as to call for interference.

I .

Included in Item

197 -

October 5th. fees to

Mr Debelle Q.C. for drafting

reasons for decision and telephone conference

secure instructions thereon from Aboriginal

Development Commission, Canberra

$300

October 6th, settling reasons

$240

These items require some explanation.

The proceedings taken by

the applicant were under the Administrative Decisions (Judicial

Review) Act seeking a review of

a decision by the respondent.

In the middle of the trial it was discovered that although reaons

for the decision had been souiht under

s.13 of the Administrative

Decisions (Judicial

Review) Act these had not been supplied.

After intervention by the trial judge it was agreed that these reasons would be supplied. It seems .to me that even though the

' .

I ,

I	.
I

16.

trial judge may have encouraged the respondent to supply

reasons

under 5.13,

the preparation and supply

of those reasons which

should have been supplied quite a long time before, was, in no sense, an essential step in the proceedings. Such reaons are

required

to be given

the person making the decision in

question irrespective of whether any proceedings may

be taken to

seek a review of the decision.

The right to reasons is a right

separate and apart

from the right to seek a review although of

course the reaons given

may establish grounds for seeking

review. In any event it seems to me that the obligation of complying with the request under 5.13 was the respondents which should h o w perfectly well why it made a particular decision. I cannot see that it should be necessary or proper as between party and party for the unsuccessful applicant to be saddled with the

expenses of the respondent in complying

with its obligations

under s.13.

To get counsel to draw and settle the reaons seems

to me

to be

an extravagance which the respondent should bear

itself.

These two items should be disallowed.

I deal now with the

r maining items in the bill to which

objection is taken and deal wlth

them in numerical order.

Item 120 - Copies of Discovered Documents for Counsel $3.868-80.

There were 4,836 sheets which required copying.

There

was no dispute before me that the sheets needed copying or

that

the charge per

page is above what

is permitted by the relevant

scale, but it: was argued that copying of

so many sheets produced

an unduly high charge which should be mitigated. Even assuming

1	:	that thls is	so	there was at	the time the work was done no
I

discretion in the taxing officer to reduce the result arrived at

by applying the High Court scale then applicable pursuant to the

second schedule of the Federal Court Rules.

(See Fat-Se1 Pty

l	Ltd v. Brambles	Holdinus	Ltd	(supra)	). The	taxing	officer	did
I	-

not interfere with this charge

and I consider that

he was

perfectly correct not to

do so.

,	Item 159 - Perusinq Transcript $1,070-40 allowed on taxation at
$300-00.

It is contended by the applicant that nothing should be

allowed for perusing the transcript to date, i.e.

22 July 1983.

The taxing officer was of the view that because

of the complexity

of the matter and the fact that there

had

been a

number of

interlocutory applications "a limited reading of certain portions

of the transcript

was necessary and accordingly

a fee should be

allowed for it".

I am unable to say the taxing officer was

I-

wrong to allow this charge

at $300.

Item 171 - Instructions for Brief charued at

$9.500 and allowed

bv the taxinu officer

at S7.000.

I . .,

The taxing officer asked for and was supplied with

"Rider A" a detailed schedule of Items individually chirged

for,

the charges for which added up to $5,203.

Some of the items in

this detailed schedule should not properly

there under the

heading of instructions for brief although they may

be otherwise

chargeable.

The taxing officer deals with this and his approach

generally to the assessment	of a charge for this item as
follows -

"In any event, I

did not consider it necessary to

make a decision on whether each individual item is

allowable, see Grant v. Australian Knittins Mills

1937 SASR 113 at page

115 where the Court

hel-!

that a Master

when considering an amount for

instructions for

brief 'is not obliged

tn assiga

separate amounts for various particulars, but he must take tem (sic.) all into consideration when deciding what was necessary or proper for the attainment of justice, or for defending the rights

of the

party'.

I accordingly

considered

the

contents of 'Rider A' to enable me to assess the

charge which should

be allowed under this item.

l ..

I	have also had regard to the pleadinqs and

evidence

both

witnesses

and

documentatary

(sic.) which I find is substantial.

addition

,. -

I have taken into account the amount claimed to be

due which, while not quantified, concerned the

tenure of land within a community and accordingly

if notional sums

were assigned to the amount of

money

the

case

involved

would

obviously

substantial.

1 have

,also had regard

the

labour and anxiety

involved in getting up

the

evidence which again must be given due

weight

having regard to the nature of the claim

and the

importance of land tenure

to the litigants in this

matter. I have also had reqard to the work done

pursuant to this item and in all the circumstances

of this case I allow the sum of $5350.00 as the

'base' figure for instructions for brief. To

this figure should be added

a component for skill

care and consideration which has been described,

somewhat

aptly

in my view, as the

great

imponderable.

Accordmg to practice, an amount

1s to be-added for skill, responsibility and

the

general management of the

proceedings Hiasins v.

19.

Nicol and Others

(no. Z ) , 21 FLR 34 at page 43 and

in view of

all the circumstances of this case

assess the sum of $1750

a5 being appropriate under

this heading.

I accordingly allow the total sum

of $7,000.00 for instructions for brief."

I consider that

the taxing officer allowed under this

item a

sum somewhat greater than

I might have allowed myself were

I taxing the bill at first instance but

I am unable to say that

this discrepancy is so great as

to warrant my intervention and

accordingly I determine that item

171

- Instructions for Brief

should be allowed

as the taxing officer allowed it.

Item 723 - Perusincr Reasons

$314.

This charge is f o r perusing the reasons for judgment of

Fisher J. at first instance.

The

perusal is charged at the

appropriate rate but it is said by the applicant that this is not

a necessary party and party cost of the proceedings although it

may of course

be a proper party and party cost of any appeal.

No authority or text was cited by the respondent

in support of

this contention that perusal of the reasons for judgment is not

matter properly to be included

in a party and party bill. It

seems to me that certainly when, as in this case, reasons for

judgment

are

delivered

but

not

read

a successful

party's

solicitor must read the reasons

so that he may inform his client

of the reason	why he has succeeded and the extent to which he has	_.
!
: I

succeeded.

consider that

this item should be allowed as

between party

and party.

, .. ,

70.

Item 226 - Couv Reasons for Judament

$ 5 6 .

This was a

copy of

the reasons for judgment made for

delivery to the successful client. Whereas I have found that perusal of the reasons for judgment as a proper party and party cost and similarly informing the client of the result, I consider

that to make and supply

copy of the reasons for judgment

is a

solicitor and client cost and thus should be disallowed.

Item 242 - Fee

Australian

Aqricultural

Consultinu

and

Manaaement Comuanv Ptv Ltd.

This company had knowledge and documentation concerning

the early development

of tSe applicant and knowledge

of the

purposes of its establishment and its management

of the farm

property the subject

of the proceedings. The taxing officer

came to the conclusion that the consultations with Hillock an

employee of Australian Agricultural Consulting and Management

Company Pty Ltd charged in this item as an account rendered by

Australian Agricultural Consulting and Management Company Pty Ltd

to the respondent's solicitor in order to obtain the information

held by Australian Agricultural Consulting and Management Company

Pty Ltd were-a proper party and party charge. It

was

asserted

before him by the applicant that this item was incurred through

i	over-caution or was a special charge and unusual expense.	The
i
I

taxing

officer

considered

that

matters

upon

which

Hillock

informed the respondent's advisers were directly in issue between

21.

the parties.

I am unable

to say that

he was wrong

so to

conclude and the item will be allowed.

i	:
I
I I I
!
I

The applicant has been partly successful in the review

I	and I will hear counsel as to the appropriate order for costs.

I certify that this and the preceding pages are

a true copy

of the Rea- =on5

f o r Judgment of Mr Justice

Forster.

[1986] FCA 320

7 Nov 1986