Rankin v Marine Power International Pty Ltd

[2003] VSC 75

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 6972 of 1999

GEOFFREY RANKIN
	Plaintiff
v.
MARINE POWER INTERNATIONAL PTY LTD	Defendant

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JUDGE:	MANDIE, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 March 2003
DATE OF JUDGMENT:	7 March 2003
MEDIUM NEUTRAL CITATION:	[2003] VSC 75

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COSTS – review of order of Taxing Master – whether costs of Court Books for instructing solicitor allowable as party-party costs – whether costs of book of exhibits and cost of book of copy authorities for instructing solicitor allowable as solicitor-client costs

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.R.S. Tracey, Q.C.	A. J. Macken & Co
For the Defendant	Ms J. Cole	Anderson Rice

HIS HONOUR:

1. This is an application for review under Rule 63.57 of the Rules, for review of an order of the Taxing Master.  It is clear under the Rules that the judge on such a review is empowered to exercise all the powers and discretions of the Taxing Master with respect to the subject matter of the review and to confirm, set aside or vary the order of the Taxing Master.  Needless to say, all due deference should be given to the experience of the Taxing Master, particularly where any discretion is involved, but likewise the court is entitled to consider the matter afresh and to use its own knowledge and experience, particularly where the items relate to matters which are, perhaps, especially familiar to a trial judge.  I think this is such a case because the three items involved are intimately related to the conduct of complex litigation in this court where court books are used and where there are a lot of documents.  It was a long hearing and it was a complex case;  there were substantial numbers of documents;  there were 1,112 pages in the court book, three volumes.  There have been many cases where there have been many more court books than that, but it is of some substance, and there were exhibits, in addition to the court book, amounting to 346 pages.

1. The three items which are the subject of the review and which were disallowed by the Master are, firstly, item 291, copy court books for instructing solicitor;  secondly, item 512, claim for copy of separate exhibit book compiled by instructor during course of trial, given documents extracted from court books and provided to court as exhibits, 346 pages;  and item 518, copy of authorities for instructing solicitor, 245 pages. 

1. The trial judge’s order was that the defendant pay the costs on a party-party basis up to 2 April and from 2 April onwards on a solicitor-client basis, so the basis of taxation differs depending on the date when the costs were incurred.  On a party-party basis, Rule 63.29 talks of “all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed”, whereas Rule 63.30 talks of “all costs reasonably incurred and of reasonable amount”.  There is no question here as to the amount.  So, in relation to item 291, the question is:  were the costs necessary or proper for the attainment of justice or for enforcing the rights of the plaintiff?  In relation to the two other items, the question is whether the costs were reasonably incurred – a more generous basis of taxation, and which in fact differs from an indemnity basis only in respect of the onus of proof.  When costs are ordered on an indemnity basis, doubts are resolved in favour of the party to whom the costs are payable.  On a taxation on an indemnity basis, all costs shall be allowed except in so far as they are unreasonable, so that is an even more generous basis, but the test is the same in relation to reasonableness, it is just that the onus is different.  Here the plaintiff has to satisfy the Taxing Master or in turn the court that the costs are reasonably incurred. 

1. In relation to item 291, I am satisfied that the Taxing Master was in error in disallowing the item involved.  In my opinion, in a case of this kind, and this may depend on the particular circumstances, a copy of the court books for the instructing solicitor was both necessary and proper for the attainment of justice and for enforcing the rights of the plaintiff, and I stress that it is not simply the attainment of justice, although they are wide words, but also for enforcing the rights of the plaintiff.  I have no doubt that for the instructing solicitor to do her job properly in this case she needed to have a copy of the court book in order to be able to instruct counsel, to understand what was happening in the trial, and to do other work outside court hours in relation to witnesses and organisation of the trial generally.  To deprive the instructing solicitor of a copy of the paginated court book would be to tie her hands behind her back.  I have seen many cases where court books have been used and I am quite sure that it would often be a severe disadvantage to a litigant to have his or her solicitor in a position where they did not have their own copy of the court book.  Counsel, whether they be one or two, are fully involved in using their own court books and, after court, taking them away with them, and the solicitor who has the overall management of the litigation also needs those books.  It is no answer, I think, to say in this case, although it may be in some cases, that the instructing solicitor can have recourse to the original documents.  In some cases that might be an answer, but in a case where there are large bundles of documents (and in this case it was not challenged before the Taxing Master that they had notes on them as to where they came from – some came from one source, some from another – and they were all bundled up in a particular way) that recourse to them would be a highly inefficient way of conducting litigation, when all the references in the course of the trial would be to the numbered pages of the court book.  I do not think it is a luxury in any way, shape or form for the instructing solicitor to have a copy of the court books in that situation.  It may be in some cases it is not necessary, and each case will depend on the nature of the litigation and the nature of the documents involved and the numbers of the documents, but from what I have seen in the material, including the bills of costs and the description of the litigation in the submissions of both parties, it is clear in my view that it was both necessary and proper in this case, within the meaning of R.63.29, for the instructing solicitor to have her own copy of the court book. 

1. Turning to item 512, I am satisfied that for the solicitor to have her own exhibit book compiled for her purposes, with the documents which had become separate exhibits, was perhaps not necessary or proper for the attainment of justice, but certainly were costs reasonably incurred which ought to be allowed on a solicitor and client basis.  I think, again, that the Taxing Master was in error.  The Master’s reasons do not disclose any clear attention to the distinction between party and party and solicitor and client costs, but I know that he is fully aware of the distinction and I have no doubt that he applied it.  I think with respect that he has been in error in the way he has applied it.  In my view, the instructing solicitor would be at a severe disadvantage in assisting and instructing counsel if she did not have at hand a volume with the exhibits in exhibit order available to her, and that again, I think, is at least something that could not be said to be unreasonable.  I am satisfied that those costs were reasonably incurred.

1. When it comes to a separate set of the authorities, I am in some doubt.  I think the point is rightly made by counsel for the defendant that if there is already a number of copies of the authorities in court, the solicitor as a member of the litigation team can have adequate access to them.  To some extent I think it is a luxury for the instructing solicitor to have an additional set of photocopies of authorities, although I do have some hesitation in saying that she should not do so.  On balance I am not satisfied that that item should be allowed even on a solicitor and client basis, although I do not reject that item with any great confidence;  I am just not satisfied that the Taxing Master was in error there. 

[Orders were then made.]

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