Re R G Kilner & Black
[1995] QSC 307
•7 December 1995
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 664 of 1995
[Re R G Kilner & Black]
IN THE MATTER OF R.G. KILNER & BLACK (a firm) BILL OF COSTS
- and -
THE COSTS ACT 1867 s's 22, 25, 26 & 33
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 7/12/1995
CATCHWORDS COSTS ACT 1867 - wh. s.22 bills - s.25 - wh. paid - wh. special circumstances - s.33.
Counsel:Applicant in person.
Mr de Plater for respondent.
Solicitors:Applicant in person.
R.G. Kilner & Black for the respondent.
Hearing date: 16 November 1995
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 664 of 1995
IN THE MATTER OF R.G. KILNER & BLACK (a firm) BILL OF COSTS
- and -
THE COSTS ACT 1867 s's. 22, 25, 26 & 33
REASONS FOR JUDGMENT - WHITE J
Judgment delivered 7/12/1995
The applicant, Mr Stubberfield, by his originating summons dated 27 September 1995 seeks orders that the respondent firm of solicitors ("the firm") "deliver signed, itemised bills of costs in taxable form" for work done by them on his behalf and that an enquiry be carried out to determine whether the costs relating to the Magistrates Court prosecution were "thrown away by the negligence, deceit or failure of duty of care of the said solicitors justifying disallowance of such costs". Alternatively, that any bills found to have been delivered in compliance with the requirements of s. 22 of the Costs Act be referred for taxation.
The summons came on before Byrne J in Chambers on 3 October 1995. The firm sought an adjournment on the grounds that the solicitor who had the conduct of Mr Stubberfield's matters, Mr Kilner, was away and his instructions were essential for a proper presentation of the firm's response to the application. That application occupied some 1½ hours. His Honour sought to refine the issues for consideration and to identify those that could appropriately be heard in Chambers. Ultimately, his Honour secured agreement from the parties that they would attempt to agree on questions to be answered at an adjourned hearing of the summons. Somewhat surprisingly, it might be thought, the parties have agreed as to the central issues to be resolved in Chambers.
The questions proposed by the firm and which Mr Stubberfield agrees should be answered are:"1.Does the original document dated 6th January, 1993 a true copy of which is marked "A", comply with the description of a Bill of Costs in accordance with the requirements of The Costs Act?
2.Do the documents and letters dated:
01.07.92
02.07.92
08.07.92
13.10.92
15.10.95
04.01.93
true copies of which are annexed hereto and collectively marked "B", either collectively or individually, comply with the definition of a Bill of Costs in accordance with the requirements of the Costs Act?
3.Do the documents and letters dated:
30.11.92
01.12.92
true copies of which are annexed hereto and collectively marked "C", either collectively or individually, comply with the definition of a Bill of Costs in accordance with the requirements of the Costs Act?"
Mr Stubberfield requires the documents sent under cover of letter dated 17 October 1991 and the two documents dated 16 April 1992 to be the subject of a similar inquiry. Mr Stubberfield additionally requires the following questions to be answered:
"In the event that any or all of questions 1 - 3 being decided to be yes:
4. Have any of the said "bills" been "paid" within the meaning of s. 33 of the Costs Act.
5. Are there "special circumstances" present within the meaning of s. 25 of the Costs Act to justify taxation of the said "bills".
6. Did solicitor Kilner act Deliberately (fraudulently) or negligently in his management of the Magistrates Court prosecution causing the total loss of that action.
7. Did the proceedings constitute one single retainer/contract between the parties."
The parties agreed that the documents annexed to the firm's questions together with the "bills" in exhibits 2 and 6 to Mr Kilner's affidavit filed on 26 October 1995 are all the "bills" that are to be considered on this application. Mr Stubberfield agreed that question 6 could not be considered on this hearing. Pleadings, no doubt, could be ordered within the originating summons to deal with the matter, but that has not been sought. It may be that a separate action for damages for professional negligence could be commenced by Mr Stubberfield if he be so advised. If successful the costs of the Magistrates Court proceedings would be an item of damages. Should the bill covering that action be referred to taxation then the taxing officer may be able to consider the matter in a limited fashion.
The resolution of question 7 would require evidence as to conversations between Mr Stubberfield and Mr Kilner as the retainer(s) is not said to be in writing. The evidence does not go so far but I think it is possible to deal with it for the purpose of the Costs Act matters with which this application is concerned.
I think it unnecessary to canvass many of the facts and circumstances referred to by both Mr Stubberfield and Mr Kilner in their affidavits which deal with the substance of the various pieces of litigation, the subject of the retainer and memoranda of account. If I do not refer to all of the facts raised, I mention, particularly for Mr Stubberfield's benefit, that I have read and considered all of the material filed in this summons. I mention this because I did not adjourn to read the material but was taken by counsel and Mr Stubberfield to particular aspects of it and I assured Mr Stubberfield that I would read all of the material before reaching my decision. The hearing in the event took in excess of three hours on a busy chamber day.
The Issues
Mr Stubberfield contends that the retainer between himself and the firm was a single one for the sole purpose of achieving the aim of a private prosecution in the Magistrates Court, commenced before he retained the firm, and bringing it to a successful conclusion. Accordingly he contends that his cheques paid into the firm's trust account from time to time were security for payment for the work done and to be done, but were not payment for the work done. At the end of the retainer he argues that he was entitled, as requested, to a bill in taxable form for the whole of the retainer.
He submits that none of the accounts are bills for the purposes of the Costs Act so that time does not run against him and he is entitled to a bill in taxable form for the whole of the retainer which ought to be referred to taxation.
Mr Stubberfield submits that if all or any of the accounts are found to be bills pursuant to the Costs Act they have not been paid within the meaning of s. 33 and special circumstances exist pursuant to s. 25 which would cause the court to exercise its discretion to refer the bills to taxation.
The firm concedes that some of the memoranda of account are not bills within the meaning of the Costs Act but says that they were replaced by proper bills. In other cases, the accounts themselves are not proper bills but if read with the documents accompanying them, they are. The firm further submits that the bills have been paid within the meaning of s. 33 or, alternatively, that there are no special circumstances which would justify sending the bills to taxation. In the case of the final memorandum of account the firm has obtained a judgment upon it in the Magistrates Court and contends that there are no special circumstances which would cause it to be examined.
Circumstances surrounding the delivery of accounts
Mr Stubberfield retained solicitors Peter Channell & Associates to bring a private prosecution on his behalf against one Newing in the Magistrates Court to restrain an alleged unlawful use of land which had an alleged detrimental effect on adjoining land in which he had an interest. Mr Stubberfield withdrew his instructions from that firm and instructed Mr Kilner of the respondent firm on 11 July 1991 in relation to that prosecution. Mr Stubberfield required Mr Kilner to obtain an itemised bill for the work already done in the matter by his former solicitors. He deposited the sum of $1,000 by cheque with the firm on 27 July 1991. Counsel was briefed and the prosecution set down for trial on 16 October 1991. Preparation for the hearing occurred throughout August, September and October. In due course Peter Channell & Associates responded to requests about its costs.
Mr Stubberfield and his wife signed a trust account authority on 15 October 1991. It is not clear why she did as she was not a party in any proceedings. Nothing turns upon it. Mr Stubberfield swore that he could not remember signing it, that he had no copy and that he required to see the original document. It was in court. I do not take him to deny that it is his signature and that of his wife. He has made submissions on the scope of that authority. I proceed on the basis that it is what it purports to be. It is in the following terms:
"RE:THE TRUST ACCOUNT ACT
RE:PROSECUTION - NEWING 15/10/91 [in handwriting]
I/WE HEREBY AUTHORISE YOU TO WITHDRAW FROM THE MONEYS HELD BY YOU IN YOUR TRUST ACCOUNT ON MY/OUR BEHALF UNDER THE TRUST ACCOUNTS ACT SUCH AMOUNT AS SHALL BE SUFFICIENT FOR YOUR PROFESSIONAL COSTS, STATUTORY DUTIES AND CHARGES AND OTHER PROPER OUTLAYS INCURRED IN RESPECT OF SERVICES PERFORMED BY YOU ON MY/OUR BEHALF.
JR Stubberfield [signed]
DM Stubberfield [signed] "
Mr Stubberfield paid $1,500 into the firm's trust account on 15 October 1991. The hearing before the Magistrate took place on 16 October and the decision was reserved. The firm sent its memorandum of fees under cover of a letter dated 17 October in which Mr Kilner said that after considering what was a fair fee for the work involved the firm was charging on the District Court Scale not the Supreme Court Scale preferred by Peter Channell & Associates. Three documents were enclosed, the first being a general description of professional work done and charges made which included no dates and finished with "Our Fee ($3,305.00) reduced to $2,800.00." Outlays were set out and described generally, for example, travelling expenses: $84.55. Barrister's fees were included as an anticipated outlay. The total amounted to $5,318.25 from which the trust account sum of $2,500 was deducted leaving an amount $2,818.25 due. The second document was a computer printout of the statement of fees and outlays with slightly more detail as to outlays. The final document was a trust account statement. There was no response from Mr Stubberfield. Mr Stubberfield contends that he never agreed to incur costs charged on any other than the Magistrates Court scale for this work.
The Magistrate handed down his decision on 25 October 1991. Mr Stubberfield was completely unsuccessful on the prosecutions and costs were awarded against him. Mr Kilner notified Mr Stubberfield of the result by letter dated 28 October 1991. On 31 October Mr Kilner discussed with Mr Stubberfield the prospects of an appeal to the District Court or, alternatively, an application to the Planning & Environment Court. Mr Stubberfield instructed Mr Kilner to brief a different barrister to advise on the prospects of success of an application to the Planning & Environment Court. In a lengthy document dated 3 November 1991 Mr Stubberfield outlined grounds of appeal against the Magistrate's decision to Mr Kilner. On 5 November Mr Stubberfield sent a cheque for $4,000 to the firm. This was in excess of what was required to settle the account sent. Mr Stubberfield contends that the extra was to allow him to take his file for the purpose of preparing for his appeal to the District Court. Counsel who appeared for Mr Stubberfield in the Magistrates Court advised against an appeal to the District Court. Mr Stubberfield decided to conduct the appeal himself.
Mr Stubberfield instructed Mr Kilner to commence proceedings in the Planning & Environment Court for declarations and injunctions arising out of the alleged unlawful use of the land. On 8 January 1992 Mr Kilner requested Mr Stubberfield to provide the firm with a copy of Peter Channell & Associates' bill of costs so that advice could be given with respect to those costs. The new counsel gave advice concerning the application to the Planning & Environment Court in December and again in February 1992. Mr Stubberfield attended on Mr Kilner for the purposes of giving further instructions about the application in the latter part of March 1992. He was closely involved in the drafting of the application documents.
The bill of costs from Peter Channell & Associates was taxed and resulted in an order that the firm refund to Mr Stubberfield an amount of $1,662.79. Costs were allowed by the taxing officer on the Supreme Court scale despite Mr Kilner's (who appeared for Mr Stubberfield) submission that the District Court scale was more appropriate. Mr Kilner proposed by letter to Mr Stubberfield dated 14 April 1992 that when the cheque was received either it be sent to Mr Stubberfield or remain in trust on account of future fees for the Planning & Environment Court application. Mr Kilner enclosed his firm's memorandum of fees for acting on the taxation. The professional fees in the sum of $920 were not further itemised. The outlays were set out, although postage and petty expenses at $70.50, photocopying at $97.80 and travelling at $27.20 were not further identified. Mr Stubberfield asserts that this included costs other than those associated with the taxation of Peter Channell & Associates' bill of costs but does not, as far as I can tell, otherwise identify them. A trust account statement was also included. The total amount owing was $1,510.30. The balance of the account after deductions from moneys held in trust and adding an amount previously outstanding was $1,239.30. The firm received the refund cheque and on 14 May 1992 Mr Stubberfield signed a further trust account authority. Since the ambit of this authority was the subject of submissions I set it out in full:
"Dear Sir,
RE:THE TRUST ACCOUNTS ACT
RE:STUBBERFIELD & COSTS APPLICATION CHANNELL & ASSOCIATES
I/We hereby authorise you to withdraw from the moneys held by you in your Trust Account on my/our behalf under the Trust Accounts Act such amount as shall be sufficient for your professional costs, statutory duties and charges and other proper outlays incurred in respect of services performed by you on my/our behalf (and to apply the balance towards costs incurred in respect of the Planning & Environment Court application against Newing and B.C.C.)
JR Stubberfield
The words in brackets were added in handwriting initialled by Mr Stubberfield.
Mr Stubberfield appeared on his appeal in the District Court from the decision of the Magistrate on 17 June 1992. The next day he sent a cheque to the firm in the amount of $3,000 on account of fees. The hearing in the Planning & Environment Court for declarations and injunctions against Newing and the Brisbane City Council took place on 25 June 1992 and judgment was reserved. On 8 July the firm sent its memorandum of fees for work "done to date" on the Planning & Environment Court application. The account was in a short form, the professional fees being unitemised at $9,500, followed by a general description of each item of outlays, for example, "photocopying $707.30" and "travelling $120.85". Included were "anticipated outlays" being fees to a professional witness, Mr Holland, of $3,022 and counsel's fees particularised and amounting to $5,360. The balance due on the whole account was $17,995.30. A trust account statement was attached showing a credit of $4,418.34. Some fifteen pages of computer printout were included. They showed in columns a description of the work done, the date that it was done, the amount attributed to that item and a running total. The system of charging by units of time was utilised by the firm and they are included in respect of each item. An item for care and consideration was included in the sum of $1,500. It was mentioned in the covering letter.
Judgment on the appeal to the District Court was handed down on 17 July 1992. The Magistrates's decision in respect of two of the four complaints was reversed and convictions entered. Each party was ordered to bear its own costs in the court below and on the appeal. On 23 July Mr Stubberfield paid the sum of $14,000 to the firm. He complained about the fees charged by Mr Holland and asked Mr Kilner to negotiate a reduction. He authorised the firm to pay Mr Holland $2,224.50 from funds held in the trust account. Further negotiations continued with Mr Holland about his fees and it appears that an arrangement was reached about the difference.
On 14 July Judge O'Sullivan's clerk contacted the firm and indicated that her Honour needed further submissions from counsel before completing her judgment and offered several dates before she left to go overseas. Mr Kilner's secretary took this call as he was away. She noted that the Judge's clerk would ring counsel direct in the expectation that he would be briefed and that her Honour required all barristers to attend. After further discussion with the clerk, counsel and Mr Kilner, the impression left with Mr Kilner was that her Honour required counsel to make submissions. Mr Stubberfield's counsel was not available on those dates and the matter was not dealt with further until September when her Honour returned. Mr Stubberfield was not consulted about this and learnt of it much later. He deposes that he would have appeared on his own behalf had he known. Judgment was handed down in the Planning & Environment Court on 29 September. Her Honour required further submissions. The judgment and what further submissions and applications should be made were discussed between Mr Stubberfield, Mr Kilner and counsel. A great deal of further material was prepared by Mr Stubberfield and by his solicitor but it seems that in the event her Honour was not prepared to entertain a further application from Mr Stubberfield which arose out of her judgment. Mr Stubberfield was of the opinion that without a further declaration he was in no better position than he had been before litigation had started in the Magistrates Court. It appears from Mr Kilner's letter to Mr Webb of counsel of 7 October 1992 that Mr Kilner did not understand the judgment handed down by her Honour to be final or that no further submissions could be made about the declaration until he had discussed matters with Mr Webb. Mr Stubberfield had by this time incurred further costs because of what seems best described as fruitless work done by the firm.
Under cover of a letter dated 15 October 1992 the firm sent its memorandum of fees and outlays relating to the balance of the costs of the Planning & Environment Court application. The account is computer printed. Reference is made to $9,613,30 from the account of 2 July 1992. Professional fees are charged in one sum of $2,200 reduced to $1,800. There are no particulars. Outlays include barrister's fees in the sum of $5,360. Under anticipated outlays appear the fees of Mr Holland and barrister's fees itemised, without dates, as to the general description of work done, for example, conferring with Mr Kilner regarding discovery, evidence and res judicata (a matter canvassed owing to the appeal to the District Court and the application to the Planning & Environment Court). Payments of certain of these items are shown as "credited". The balance due was $4,804.50. A trust account statement was included showing that $18,827.14 had been received from or on behalf of Mr Stubberfield. Transfers to the general account were shown in the sum of $15,551.10 and to Holland & Associates in two payments of $2,024.50 and $498.75. The trust account showed a credit balance of $752.79.
On the following day Mr Stubberfield conferred with Mr Kilner about the Planning & Environment Court application and the costs. Mr Stubberfield expressed dissatisfaction about the delay in the judgment being handed down due to the unavailability of counsel about which he had not been consulted and the extra costs incurred as a consequence of the further submissions. Mr Stubberfield contends that a further charge of $3,871.76 was made for taking the "deferred" judgment and associated costs. It seems that what was to be considered on the adjourned hearing was the time for the commencement of or compliance with the orders. Mr Stubberfield indicated to Mr Kilner that he proposed considering an appeal and wanted his file. Mr Kilner said that the file would be available for perusal in his office. Mr Kilner then gave Mr Stubberfield a complete printout of the charges itemised as described above and marked where the additional work commenced which included a further 3½ pages. Mr Kilner told Mr Stubberfield that if he were dissatisfied with the charges the file could go to taxation.
On 19 October 1992 the firm wrote to Mr Stubberfield enclosing an amended itemised account stating:
"Please note that the account is for the entire job that was done for you and includes details of the itemised account which had been previously sent to you at the time of rendering the last bill.
...
We further confirm that we are quite prepared to discuss with you any part of the account which causes you concern."
That itemised account was again the computer printout given to Mr Stubberfield on 16 October with a duplication of counsel's fees deleted and an overcharging for photocopying also deleted. By letter dated 18 November 1992 Mr Stubberfield sought to have "the whole contract" between himself and the firm sent to taxation and sought that "the whole of your account from July 8 1991 be supplied in taxable form". The firm responded on 30 November as follows:
"In relation to your request that the whole of the bill be taxed as from 8th July 1991. We are prepared to deliver to you, and we accordingly deliver herewith, a bill in itemised form as from 14th July 1992. You have been previously supplied with an itemised bill in relation to costs incurred up to 14th July 1992 and this account has been paid without objection.
You have also been supplied with an itemised bill for costs incurred since 14th July 1992 but as this bill was to some extent incomplete, showed a duplicate fee of Mr Webb for $750.00, (in fact Mr Webb is owed $1,500.00, not $2,250.00) and overcharge for photocopying expenses, a substitute bill is now enclosed.
Please further note that despite the amount of the costs enclosed, we only seek from you the sum of $1,800.00 plus outlays, a total of $3,560.96."
The account for work and outlays from 14 July 1992 to 22 October 1992 and dated 1 December 1992 is particularised as to items charged, dates, costs and outlays with a total at the end of each page. The total charges are $2,110.80 and outlays of $1,760.76. Care and consideration is charged at $375. Mr Stubberfield again requested an account in taxable form for the whole of the retainer from 8 July 1991 by letter dated 29 December and threatened an application to the court in default of such an account. The firm responded by letter dated 4 January 1993 enclosing the itemised computer printout sent previously but with the references to units of time crossed out. Of this Mr Kilner wrote:
"We have deleted the computer reference detail which may have caused some confusion in your mind."
Mr Kilner mentioned that an itemised bill was being prepared in respect of the Magistrates Court hearing.
Under cover of letter dated 6 January 1993 the firm sent a bill in itemised form in respect of the Magistrates Court prosecution and the taxation of Peter Channell & Associates' bill of costs. The bill describes the work done, the date, the outlays and the costs. It has a total at the foot of each page and each item is numbered. The total is $8,156.94 reduced to $6,557.55. The care and consideration item is charged at $700. This sum appears to be $270.99 less than the amount charged together on the two earlier accounts covering these matters. Mr de Plater has submitted that they can be reconciled exactly and it may be that I have overlooked an item. The firm has reduced the itemised bill by almost $1,600.
Nothing further was heard from Mr Stubberfield and on 10 February 1993 the firm wrote seeking payment of its account and informing Mr Stubberfield that recovery action would be taken if he failed to do so. A plaint and summons was issued out of the Magistrates Court on 15 March 1993 and amended on 18 March. Pleading matters were completed by 27 July 1993. A Certificate of Readiness for Trial was forwarded to Mr Stubberfield on 6 February 1995. No explanation is given for this delay. Mr Stubberfield indicated that he was not ready to proceed as he was awaiting counsel's opinion. The trial was set down for hearing on 5 April 1995 and the firm indicated to Mr Stubberfield that it intended to amend its plaint to claim $3,871.76 (originally $3,560.96 as in the covering letter of 30 November 1992). Mr Stubberfield sought an adjournment unsuccessfully at the commencement of the trial on 5 April and his amended defence and recently added counterclaim were struck out by the Magistrate. Judgment was given in favour of the firm for the amount claimed. I think it clear from the submissions made before me that the firm sued on the bill of costs sent under cover of letter of 30 November 1992.
Before turning to the accounts I will deal with a number of more general submissions made by Mr Stubberfield.
Single retainer
Mr Stubberfield has submitted that there was but one retainer and he was entitled to a single definable bill at the end of the retainer or, as a concession, a series of consecutive bills in respect of it. It cannot be correct to submit that there was one retainer only. Mr Stubberfield approached the firm during the currency of his Magistrates Court prosecution. At that time no business other than the completion of that prosecution was in contemplation. Accordingly, when that came to an end with the decision of the Magistrate that business was concluded. A memorandum of fees disbursements and outlays was sent in respect of that work. Mr Stubberfield then considered whether to appeal to the District Court or to make an application to the Planning & Environment Court. In the event both of those things occurred although Mr Stubberfield appeared for himself on the appeal to the District Court. The application to the Planning & Environment Court was a separate retainer. Mr Stubberfield retained the firm to deal with the question of the taxation of his costs with Peter Channell & Associates. That in my view was a separate but allied retainer to the Magistrates Court prosecution. It would be appropriate to bill those costs separately or with the Magistrates Court prosecution. Initially they were separate charges but when the bill was delivered in itemised form both were included.
At common law a solicitor is bound by the ordinary rules of contract and is not entitled to deliver a bill until the work is completed if the contract is an entire one. In equity there may be a break which entitles the solicitor to deliver a bill covering the work to that time, Re Hall and Barker (1878) 9 Ch. D 538; Re Romer and Haslam (1893) 2 QB 286 and Re Hardy and Madden (1881) 7 VLR 266 and see Oliver Law of Costs (1960) pp. 21-22. The occasions when the bills were sent clearly fell into the category of convenient breaks, being the Magistrates Court prosecution, the taxation of Peter Channell & Associates' bill of costs, the Planning & Environment Court application up to the hearing and from the hearing until final judgment, see Cobbett v. Wood [1908] 2 KB 420 per Fletcher Moulton LJ at p. 428.
Anticipated Outlays
Mr Stubberfield submitted that anticipated outlays could not be included in a bill of costs. If I understand his submission correctly, that is a misconception. Order 91 Rule 82B RSC provides that the taxing officer may allow disbursements (including counsel's fees) notwithstanding that they have not been paid before the delivery of the bill provided that they are charged in respect of a liability properly incurred by the solicitor on behalf of the client, are described in the bill as not then paid and have been paid before the taxation is completed. Mr Stubberfield referred to Sadd v. Griffin [1908] 2 KB 510 which held that payments not actually made before the delivery of the bill were not disbursements and could not be allowed on taxation. That was the earlier position, but Order 91 Rule 82B has changed that. There is no prohibition on delivering a memorandum of fees which identifies anticipated disbursements and outlays. In order to be considered by the taxing officer those disbursements and outlays must actually have been paid before the taxation is completed.
Amending a bill
Mr Stubberfield has submitted that a solicitor may not amend a bill of costs once delivered without concurrence of the client or the leave of the court. He relied upon the decision of Re Edwin Sutherland & Co's Bill of Costs [1971] QDR 318. That does not mean that a solicitor is absolutely prohibited from withdrawing one bill and delivering another. It means, in the ordinary case, that the solicitor will be bound by the first bill delivered for the purposes of taxation and, more particularly, for the purposes of the one-sixth rule. It may also mean that a solicitor may not sue on a substitute bill without leave. As numerous authorities state, this is to protect the client. The client might be presented with a bill and upon querying it or indicating that it is to go to taxation, is then presented with a substitute lesser bill by the solicitor which would more readily stand the scrutiny of a taxing officer, see In re Thompson [1885] 30 Ch. 441 and Lumsden v. Shipcote Land Company [1906] 2 K.B. 433 in addition to the cases cited in Edwin Sutherland, supra, by Hanger CJ at pp. 329-30. See also Order 91 Rule 48 RSC. Where the solicitor seeks to substitute a greater bill comments in Lumsden v. Shipcote Land Company, supra, are apposite. Fletcher Moulton LJ at p. 439 observed:
"Where there has been no taxation, and no steps towards taxation, I cannot see why the Court should prevent the solicitor from sending in a corrected bill, and I do not think that the Courts have done so. If a solicitor sends in a bill of costs, and subsequently amends it by sending in a second with increased charges, the first bill would afford evidence that the items in it were right. The passage in Archbold's Practice, which was referred to in the course of the argument, to the effect that "The delivery of a bill is strong evidence against an increase of charge in a subsequent bill for any of the items contained in the first bill, and presumptive evidence against any additional items," seems to me to describe correctly the position, and while on the one hand it is open to the plaintiff to send in an amended bill it is open to the defendants on the other hand to use the first bill as evidence in opposition to the new or increased items inserted in the second bill."
This passage is cited in Oliver, op. cit, at p. 26. I do not take the decision of the Full Court in Edwin v. Sutherland to be contrary to this proposition.
Mr Stubberfield has, I think, consented to one amendment to a memorandum of account. A facsimile overcharge in an account was drawn to Mr Stubberfield's attention and dealt with, apparently to his satisfaction, for nothing more is heard of it. The account dated 1 December 1992 was delivered at the request of the client. It covered the same work as the account delivered in October 1992. No extra items were added but it was reduced to take account of a duplicate fee of $750 to counsel and an overcharge for photocopying. I do not think that it can be inferred that Mr Stubberfield consented to that reduction and for taxation purposes the firm may well be left with the greater bill, unless a genuine mistake can be shown. The itemised bill of 6 January 1993 was delivered in response to Mr Stubberfield's request. The total amount seems to be slightly less than the original bills.
Bills generally for the purposes of the Costs Act
In the first place Mr Stubberfield contends that in order to comply with s. 22 of the Costs Act 1867 a bill must be in taxable form.
He submitted on the authority of Re Feez Ruthning's Bill of Costs [1989] 1 Qd. R 55, that the meaning of "bill" in the Costs Act is subject to the Rules of the Supreme Court and in particular to Order 91 Rule 47 describing the form of a bill for the purposes of being laid before the taxing officer. Kiefel J in Re Bailey's Bills of Costs [1994] 1 Qd. R. 576 at p. 580 doubted that if a bill were brought for taxation by the person to be charged under s. 24 of the Costs Act within time and which otherwise fulfilled the requirements of the Costs Act the taxing officer had a discretion to refuse to tax the bill as not being in the form required by the Rules. I am, with respect, inclined to agree with her Honour. The taxing officer has powers under the Rules to compel the provision of documents and vouchers and to penalise solicitors for failure to cooperate. It is clear that Re Feez Ruthning's Bill of Costs concerned issues of jurisdiction quite different from those under consideration here.
Section 22 of the Costs Act provides:
"No attorney ... shall commence or maintain any action or suit for the recovery of any fees charges or disbursements for any business done by such attorney until the expiration of one month after such attorney ... shall have delivered unto the party to be charged therewith or sent by the post ... a bill of such fees charges and disbursements and which bill shall be subscribed by such attorney in his proper handwriting (or in the case of partnership by any of the partners either with his own name or with the name and style of such partnership) ..."
If a bill does comply with s. 22 then time runs against the client. Section 24 provides for taxation upon application by the party to be charged within one month of receipt of the bill without the order of the court. By s. 25, an application may be made to the court for an order to refer the bill to taxation. That application must be brought prior to the expiration of twelve months from the delivery of the bill which may be extended if special circumstances are shown. A bill cannot be referred to taxation after judgment has been signed in an action for the recovery of the sum demanded unless special circumstances be shown. By s. 33 the payment of a bill does not preclude the court from referring it to taxation if there are special circumstances but the application for taxation must be made within twelve months from payment. The last paragraph of s. 26 of the Costs Act provides that it is lawful for a judge "in any case" "to make such order for the delivery by any attorney ... of such bill as aforesaid ..." Thus where no bill within the meaning of the Costs Act has been delivered the court may order the delivery of such a bill to ascertain if a reference to taxation is warranted.
The firm has submitted that it is not seeking to sue on the memoranda of account and thus s. 22 does not apply. It tends to be convenient to refer to s. 22 when referring to bills of costs but "bill" bears the same meaning throughout the Costs Act and where the provisions of the Act provide for taxation they refer to taxation of a bill of the kind described in s. 22.
What is sufficient to constitute a bill of costs within the meaning of the Costs Act has been the subject of authoritative comment. Mann J in Malleson, Stewart, Stawell and Nankirvell v. Williams [1930] VLR 410 said at p. 411:
"These authorities show that the Courts have repeatedly held that a bill of costs must contain such details as will enable the client to make up his mind on the subject of taxation, and will enable those advising him to advise him effectively as to whether taxation is desirable or not."
This was followed by Douglas J in Currie v. Robinson [1968] QWN 25, Dowsett J in Re Walsh Halligan Douglas' Bills of Costs [1990] 1 Qd. R. 288 at p. 294, Ryan J in Re Flower and Hart's Bill of Costs [1991] 2 Qd. R. 20 at p. 24 and Kiefel J in Re Bailey's Bills of Costs, supra, at 579. See also Green v. Australian Hydro Carbons NL [1988] 13 NSW LR 459 at p. 462 per McHugh J. In Keene v. Ward (1849) 13 QB 515 at p. 521; 116 ER 1359 at p. 1362 Patteson J held:
"In requiring the delivery of an attorney's bill, the Legislature intended that the client should have sufficient materials for obtaining advices to taxation: and we think that we fulfil that intention by holding the present bill sufficient within that principle: whereas, if we required in respect of every item a precise exactness of form, we should go beyond the words and meaning of the statute, and should give facilities to dishonest clients to defeat just claims upon a pretence of a defective form in respect of which they had no real interest."
To satisfy the description of a bill the document need not be a bill in taxable form as required by Order 91 Rule 47 RSC.
The particular "bills"
17 October 1991; 16 April 1992; 6 January 1993: Magistrates Court prosecution and taxation of Peter Channell & Associates bill of costs
The first document mentioned in the questions is that dated 6 January 1993. It covers the prosecution in the Magistrates Court and the taxation of Peter Channell & Associates' costs. It is clear that the original memorandum of fees sent under cover of letter dated 17 October 1991 (RGK 2) dealing with the Magistrates Court prosecution and that of 16 April 1992 (RGK 8) dealing with the taxation of Peter Channell & Associates' costs are not bills within the meaning of the Costs Act. In the case of the latter particularly the breakdown of costs for professional charges is quite insufficient and would not enable the client to decide whether to seek advice as to whether he should request taxation.
Those bills were replaced in due course with that of 6 January 1993. It is a bill of fees charges and disbursements. Mr Stubberfield does not contend to the contrary but, he submits, it is nonetheless not a bill within the meaning of the Costs Act because it has not been "subscribed" by the solicitor "in his proper handwriting". Mr de Plater has agreed that that is so but, relying on Halsbury (4th ed, vol 44 para 171), submitted that the bill was sent under cover of a letter signed by the solicitor in which reference was made to the bill and that was sufficient subscription. As Mr Stubberfield has correctly pointed out, the English Acts concerning solicitors' charges include and have included the phrase "or be enclosed in or accompanied by a letter subscribed in like manner referring to such bill", in cognate provisions to s. 22. It does not, however, appear in the Costs Act which otherwise follows s. 37 of the Solicitors' Act (Eng) of 1843. No explanation is to be found as to why this quite useful clause was omitted when the Costs Act was enacted, but that omission would, I think, exclude reliance on an accompanying letter to satisfy the requirement of subscription in Queensland. Mr Stubberfield says that he has treated the document dated 6 January 1993 as a nullity for this reason "as is his privilege". He submits that he has not waived the formal requirement of signature and accordingly the document is not a bill within the meaning of the Act. He relies upon Re Gedye (1851) 14 Beav 56; 51 ER 208. The first part of Mr Stubberfield's submission can be gleaned from the head note to the report but the decision itself needs to be examined. The Master of the Rolls, Sir John Romilly, observed at p. 60 (209):
"... it is urged that both reason and equity, and the decided cases, settle, that a solicitor who delivers an unsigned bill shall not take advantage of this defect: that he cannot deliver an unsigned bill and take the chance of its payment, and if the client require it to be taxed, then say, "the bill is a nullity, and I will now deliver my real bill of costs." The case of In re Pender is cited for an authority for this proposition. I concur in this; but it still remains to be seen whether this will entitle the Petitioners to the order for taxation asked for. I think that it will not. The client who receives an unsigned bill may, if he pleases, treat it as a nullity; the attorney can bring no action upon it, and he may wholly disregard its existence. But, on the other hand, he may, if he pleases, treat it as a bill delivered under the statute: he may, in fact, waive the signature of the attorney to the bill, and treat it as if the proper formalities had been complied with; it is his privilege to do so, and the solicitor, by delivering an unsigned bill, enables his client to exercise his option on this subject. But I apprehend that it is not in the power of the client to treat it as both, i.e., to treat it first as a duly signed bill, and, if that fails his purpose, then to treat it as a nullity.
In this case, the solicitor could not have sustained an action to recover the amount; and if the Petitioners intended to treat the bill as a nullity, they should have taken no step whatever in relation to it. They should not have applied for the common order for its taxation, and, when it was discharged, they should not have applied for the special order for its taxation, which is now asked for. This conduct is inconsistent with the treating the bill as a nullity."
Has Mr Stubberfield engaged in conduct which is inconsistent with treating this document as a nullity? He says that he has not. In Re Pender (1846) 8 Beav 299; 41 ER 868, Cottenham LC concluded that the authentication by signature of a solicitor's bill of costs was intended for the protection of the client only and when such a bill had been delivered without authentication that circumstance was no objection to an application by the client for its taxation. It is difficult to conceive what benefit could arise from requiring that a bill be signed for the purpose of taxation at the instance of the client. The Lord Chancellor observed that such a construction might lead to great malpractice. He noted that a solicitor is subjected to the penalty that if he delivers a bill too large by one-sixth of its amount he pays the costs of the taxation. Accordingly, requiring signature when the client wished taxation might lead to a circumstance where the solicitor would be able to protect himself from the one-sixth penalty by relying on the bill being unsigned. There was, he concluded:
"No reason why a bill should go for nothing when the client comes for taxation, merely because it is not signed."
Can it be argued that Mr Stubberfield has paid the bill and thereby waived the requirement as to signature? He paid earlier memoranda relating to the same work which are not bills. It cannot thereby be said that he has paid on this bill. Mr Stubberfield has not waived the requirement for signature by bringing the originating summons. He seeks an order for a bill in accordance with the Costs Act. It is only if the Court finds against him that he seeks taxation. It is a victory on a very technical point, but the firm must have been aware of the requirements of the Costs Act and that failure to comply by omitting to sign the bill exposed it to a finding of no bill. The appropriate course, pursuant to s. 26 of the Costs Act, is to order Mr Stubberfield to return the document dated 6 January 1993 to the firm so that it may be subscribed as required and that it be re-delivered to Mr Stubberfield. It is a matter for him whether he takes it to taxation pursuant to s. 24 of the Act. I doubt that the court would have power to deem the signature sufficient nunc pro tunc.
If I am found to have been in error on the question of signature it may be of assistance if I consider the document of 6 January 1993 as a bill for the purposes of the Act. It was delivered more than 12 months before this summons was brought. It would then be necessary to decide if it has been paid within the meaning of s. 33. If it has then that would be the end of it; if it has not then Mr Stubberfield would need to show special circumstances pursuant to s. 25. I shall consider those matters below.
30 November 1992; 1 December 1992: From the end of the hearing in the Planning & Environment Court to final judgment
It is convenient next to consider those documents which are exhibit "C" to Mr Kilner's statement of the questions. They comprise a letter dated 30 November 1992 and 7 pages of memoranda of fees etc bearing date 1 December 1992. It will be recalled that in response to the further request by Mr Stubberfield on 18 November 1992 for the whole of the bill to be taxed from 8 July 1991 the firm delivered an itemised bill from 14 July 1992 and described it as a substitute bill for one delivered in October for the work from 14 July 1992. Mr Stubberfield does not dispute that it is in an appropriate form as to dates, description of work and costs. However he submits that it does not include all disbursements in respect of the work in the Planning & Environment Court applications which amount to approximately $8,000 . Outlays associated with that application were included in earlier memoranda of costs. Mr Stubberfield complains that if he sent this bill to taxation he would not have these outlays considered. There are some outlays included in the document under consideration. But his major submission is again that the bill is not signed and is therefore not a bill within the meaning of the Act. The same considerations apply as to the document of 6 January 1993 discussed above except that there is no question of waiver by payment. I do not think the submission that it does not include the outlays which were previously charged on another memorandum is a good one since this bill does not purport to be the whole of the charges in respect of the application to the Planning & Environment Court. I conclude therefore that the document dated 1 December 1992 is not a bill within the meaning of the Costs Act for the purposes of this application for the reasons set out above. Similarly, Mr Stubberfield should return this document to the firm so that it may be signed and re-delivered to him. As will be seen below, I have concluded that the earlier memorandum in October is a sufficient bill, but since, in effect, it was withdrawn by the firm that will have no effect on the memorandum of 1 December.
The memorandum of 1 December 1992 appears to be the bill which was sued upon by the firm in the Magistrates Court proceedings wherein judgment was obtained against Mr Stubberfield on 21 April 1995. If that were so, then the firm was not entitled to judgment. By s. 22 of the Costs Act no action may be brought by a solicitor against the client on a bill which is not signed by the solicitor. As I understand the position, the Magistrate was persuaded by a submission made on behalf of the firm that an unsigned bill will be sufficient for the purposes of s. 22 if it is sent with a letter signed by the solicitor. This is not correct and I have dealt with that above. I shall refer to this again in respect of the proviso to s. 25 of the Costs Act when considering the question of special circumstances which I propose to do in case I have erroneously concluded that the document without a signature is not a bill.
1,2,8 July 1992, 13,15 October 1992 and 4 January 1993: to end of hearing in Planning & Environment Court and to final judgment
The next documents are those comprising "B" to the questions. They are of the 1, 2 and 8 July 1992, 13 and 15 October 1992 and 4 January 1993. The memoranda are in lump sum form as to professional fees with specified outlays. On their own they are insufficient. The firm relies upon the computer printouts accompanying them to provide sufficient detail of the memoranda so that Mr Stubberfield could consider whether he should seek taxation or advice about taxation. Mr Stubberfield submits that such detail as was provided in the computer printouts was, to him, incomprehensible. It must be said that the format is unattractive or at least unsympathetic but not, I think, incomprehensible. Each item is described in a generic fashion, for example as "letter", "phone", "perusing" etc with sufficient detail written underneath to identify what was done more particularly but not as detailed as the bills dated 1 December 1992 and 6 January 1993. The charges are set out, the date incurred, a running total appears down the far right hand side of the page. Outlays are similarly identified as particular items. That there are different documents which together make up the bill does not matter. In Currie v. Robinson, supra, numerous sheets referring to particular items were appended to the memorandum of account. Douglas J found the account not to be in accordance with the Act because no separate charge for each item was shown.
There is no doubt that the short memoranda are not bills within the meaning of the Costs Act but if read together with the computer printouts I conclude that sufficient information was provided as would enable Mr Stubberfield to make up his mind or take advice as to whether taxation was desirable. The solicitor was willing to discuss any items. Together, for each memorandum of account, they constitute a bill with the meaning of the Costs Act. This format is clearly much less expensive than the more familiar itemised bill of costs of the past and will, one would hope, lead to some reduction in costs to clients. Some programming changes might make it more attractive and easier to follow but nonetheless all the necessary details are provided. The documents dated 1, 7 and 8 July 1992 collectively constitute a bill pursuant to the Costs Act.
The documents dated 13 October 1992 under cover of letter dated 15 October 1992 are not sufficient bills, but on 16 October Mr Stubberfield was given another computer printout. Mr Kilner told Mr Stubberfield, and this is not disputed, that if he were dissatisfied with the charges the file could go to taxation. The document dated 4 January 1993 was the computer printout but with the reference to units of time crossed out. It can be read with the earlier printout but really is no different.
On 16 October 1992 Mr Stubberfield had sufficient information to decide whether to seek taxation or to seek advice about taxation in respect of the memorandum of account bearing date 13 October 1992. The documents dated 13, 15 October 1992 collectively constitute a bill pursuant to the Costs Act. That bill covers the same period as the bill dated 1 December 1992. The document dated 4 January 1993 is not such a bill and is so distant in time as not to be joined with other documents.
Ought the bills be referred to taxation?
I turn now to the matters which would, Mr Stubberfield submits, even if the documents are proper bills, call for an order that the bills be referred to taxation. As indicated, for completeness, I propose to consider all of the documents (except 4 January 1993) as if they were sufficient bills. Section 33 of the Costs Act provides that the payment of any bill shall not preclude the court from referring the bill for taxation if the special circumstances of the case appear so to require provided that the application be made within twelve calendar months after payment. The issue is whether there has been payment within the meaning of the Costs Act because 12 months has passed since the last "payment". If there has not been payment, then s. 25 will apply but after 12 months from delivery of the bill special circumstances must be shown if an order is to be made and special circumstances must be shown if judgment has been entered on a bill.
Have the bills been paid?
Mr Stubberfield submits that there was limited authority to transfer funds from the trust account to the general account to satisfy the memoranda of fees, costs and disbursements delivered by the firm. The two authorities, by their terms, cover the whole of the work done for Mr Stubberfield. Section 8(1)(c) of the Trusts Accounts Act 1973 does not appear to require a fresh authority after each payment into the trust account by a client provided the original authority covers the subject matter of the payments. In the absence of an authorisation in writing by the person on behalf of whom moneys are held, section 8(1)(c)(ii) of the Trust Accounts Act permits a solicitor, where an untaxed bill of costs has been delivered to the client and at the expiration of one month after delivery no evidence exists of any objection by the client to the quantum of the bill, to withdraw a sum not to exceed the amount of the bill. That would conclude the matter but I am of the view that the written authorities are sufficient in any event.
Documents dated 17 October 1991, 16 April 1992 and 6 January 1993
The original memoranda under cover of letter dated 17 October 1991 (RGK 2) and 16 April 1992 (RGK 8) relating to the Magistrates Court prosecution and the taxation of Peter Channell & Associates' bill of costs I have found are not bills of the kind described in s. 22 of the Costs Act. Those memoranda were paid by utilisation of the funds placed in the firm's trust account. The trust account authority allowed the funds already held to be transferred to the general account. The cheque for $4,000 was to be applied to the balance of those fees and additionally to secure the return of the file "borrowed" by Mr Stubberfield. There was a surplus but further work was to be done. Trust account statements were sent to Mr Stubberfield showing the movement of money to the general account. A further authority was signed on 14 May 1992. No objections or queries were made about the costs or the payment of them. The ruling in Re Woodard (1869) 18 WR 37 that a solicitor's bill cannot be considered paid for the purposes of taxation when a payment on account has alone been made, is not applicable here because more than a payment on account has occurred and, in any event, the Trust Accounts Act applies. The question is: were they paid within the meaning of s. 33 of the Costs Act on 5 November 1991 and 14 April 1992? The Privy Council in Duffett v. McEvoy (1885) 10 App. Cas. 300 considering the Victorian equivalent of s. 33 held at p. 302,
"If there had never been any bill at all which seems to have been the case here, that is to say, nothing that would give any details or items, or enable the party to judge of the goodness of the items, the bill may be ordered to be delivered, it not necessarily following that then it would be ordered to be taxed ..."
That approach was followed by the Full Court In re Wilson v. Hemming [1913] S.R. QD. 34 per Real J at p. 36. The bill referred to in s. 33 must be of a similar kind to that in s. 22. In Duffett v. McEvoy the economy with which the Privy Council described the facts makes it difficult to know of what nature the bill was, but it was probably a lump sum bill. In Wilson v. Hemming no bill of any kind was delivered; the client paid on an oral representation. The memorandum under cover of letter dated 17 October 1991 and the memorandum of 16 April 1992 were not bills. The conclusion must be that they were not paid. The firm delivered a bill in proper form in respect of that work on 6 January 1993. As I have mentioned, I doubt that that bill can be characterised as having been paid even though the firm had been recompensed for its work. That being more than 12 months prior to the filing of the application are there special circumstances which would dictate that that bill (if it be one) should be referred for taxation. It is well accepted that the special circumstances commonly found are pressure to pay and demonstrable overcharge, Re John Barry & Co's Bill of Costs [1975] Qd. R. 368 per Dunn J at pp. 371 et seq; Re Walsh Halligan Douglas' Bill of Costs [1990] 1 Qd. R 288 at p. 295. Mr Stubberfield was not, on the material, under pressure to pay although he mentions an "extra" $1,000 to take his file. Cheques were received from Mr Stubberfield promptly. There is nothing about his state of mind, nor does he have a disadvantageous intellectual position vis-a-vis the solicitor which could be described as special circumstances. Mr Stubberfield submits that the bills demonstrate overcharge. The firm charged on the District Court scale and not on the Magistrates Court scale for the Magistrates Court prosecution. Mr Stubberfield said that there was no agreement that the firm could charge anything other than in accordance with the scale of fees, costs and charges laid down for work done in the Magistrates Court. In the covering letter to the account dated 17 October 1991 Mr Kilner wrote:
"As for ourselves, we have had a great deal of difficulty in reaching what we consider to be a fair fee for work done on your behalf.
After consideration of the matter, we have assessed our fee on the basis of the District Court Scale, not the Supreme Court Scale as the previous solicitors wish to charge. The matter was certainly one of some complexity but not so complex as to justify, in our view, charges to be rendered on the Supreme Court Scale."
Mr Stubberfield did not demur to this proposal, nor to the transfer of moneys from the trust account to the general account in settlement of the account. There is nothing sinister to be seen in the short form account. It does in fact provide some detail as to the breakdown of professional costs and identifies each of the items in the schedule of outlays. Fryberg J in In re Hill v. Taylor (unreported decision 29 August 1995; OS No 522 of 1995), another of Mr Stubberfield's matters, at p. 13 of his judgment noted that the rendering of a lump sum bill by solicitors is often a useful method of lowering the costs of litigation. The total amount of the account was $5,318.25. The professional costs came to $3,305 and were rendered at $2,800. The bill in taxable form sent on 6 January 1993 included both the Magistrates' Court prosecution and the taxation of Peter Channell & Associates' bill of costs. The account dated 16 April 1992 for the taxation of Peter Channell & Associates' costs was for $1,510.30.
Mr Stubberfield submitted that if those costs associated with Peter Channell & Associates' bill of costs are added up on the consolidated bill they amount to only $1,348.99 and include an item of $244.79 incurred after the date of the bill on 16 April 1992. This, he suggested, indicated an overcharge of some $406.10 on the original bill. I have not been able to find the errant $244.79. There are some smaller items for letters sent after 16 April 1992 bill included in the consolidated bill. There is no submission of duplication. Is a difference of $161.31 on a bill of that size sufficient to conclude that overcharge has occurred? I think not. Mr Stubberfield submitted that I should also take into account that the previous solicitors performed work taxed out at $3,278.71 on the same file. Without knowing what that entailed it is impossible to be assisted by that on the question of overcharge.
The only matter of any seriousness is the question of the scale of costs. The taxing officer taxed Peter Channell & Associates' costs on the Supreme Court scale although Mr Kilner submitted to the contrary. With that in mind and in the circumstance that the firm told Mr Stubberfield in writing that it proposed to charge on the District Court Scale to which no objection was made I do not consider that there is an odour of overcharge about the bill dated 6 January 1993 and accordingly special circumstances have not been shown were it to have been found to be a bill within the Act.
Documents dated 2 July 1992, 13 October 1992 and 1 December 1992
I have concluded that collectively with the computer printouts these accounts are bills. The first was paid by transfers from the trust account. With respect to the second bill apart from utilising some money in the trust account for minor items that bill remained unpaid for Mr Stubberfield declined to make further payments and it was, as I have said, replaced by that of 1 December 1992.
As to the bill of 2 July 1992, it has been paid and more than 12 months since the application was brought and no further enquiry may be had. If I am incorrect on the question of payment I will consider if special circumstances have been shown. Mr Stubberfield submitted that because separate items are not detailed it is impossible to ascertain if the firm has complied with the District Court scale which he submits is the appropriate basis for charging. The computer printout pages do itemise each piece of work and its costs. Neither Mr de Plater nor Mr Stubberfield took me to any particular item to compare it with the District Court scale but Mr Stubberfield handed up the 1994 scale of fees and costs for the District Court. A number of items do appear to conform to that scale, eg, engrossing counsel's brief is $1.40 per folio. The firm appears to have charged $1. This was an application in the Planning & Environment Court not an ordinary action in the District Court. According to the District Court scale, in that circumstance the fees will be allowed on taxation in an amount considered proper by the registrar or taxing officer. No particular items have been identified as unnecessary, prolix or not done. The charge out rate for the partner is $100 per hour. No evidence as to the reasonableness of the rate was given, but it does not seem excessive. There are many attendances with Mr Stubberfield. He was closely involved in the application and, apart from the matter concerning final judgment, he does not complain about particular items. There is no demonstrated sense of overcharge.
The bill under cover of letter of 15 October 1992 related to the work done from the end of the hearing in Planning & Environment Court until the conclusion of the work. The balance due was $4,804.50 but some of that is a carry over from the previous account. Mr Stubberfield submits that $3,871.76 was charged by solicitors and counsel for matters between the end of the hearing and the conclusion of the judgment process.
This amount was the subject of the judgment in the Magistrates Court obtained against Mr Stubberfield by the firm but not on this bill. It has not been paid and no judgment has been entered on it. Since it was delivered more than 12 months prior to the application special circumstances must be shown. By s. 25 no taxation may be ordered if judgment has been entered on a bill unless special circumstances are shown. I have indicated that judgment ought not to have been given. The Court of Appeal in Stubberfield v. Hill & Taylor Appeal No. 194 of 1995 (delivered 24 November 1995) pointed that Fryberg J in Re Hill & Taylor's Bill of Costs, supra, had held that the entry of a judgment on the solicitor's bill of costs in the Magistrates Court did not prevent a challenge to the amount of the bill for the purposes of reference to taxation. The court noted at p.5 of its reasons that there had been no appeal from his decision. I conclude that I may consider whether there are special circumstances such as would indicate that the bill ought to be sent to taxation and these will be the same as for the October bill.
The amount charged by the solicitors and counsel seems to be very great. If Mr Kilner was unsure as to what her Honour required by way of further submissions after reading his secretary's note he could have contacted the clerk again. There is an air of muddle about the ensuing activities. Mr Stubberfield, although closely involved, relied upon his legal advisers to give appropriate advice as to what would be the subject of the further submissions and the courses that should be taken.
The taxing officer has power under Order 91 Rule 82 RSC to look into costs which appear to have been incurred unnecessarily, improvidently or by negligence or mistake and not to allow them, see In Re Clark (1851) 1 De G M & G 43; 42 ER 467, In Re Ogilvie [1910] P 243 per Cozens-Hardy MR at p. 244 and Re Roberts, unreported decision of GN Williams J of 16 December 1994 (O.S. No. 821 of 1994 at p. 9). I conclude that there are special circumstances shown. I have concluded that the account of 1 December 1992 is not a bill. It replaced that of 2 July 1992 which I have found is a sufficient bill. The amount sought was the same on each. My impression is that it is the document of 1 December which should be taxed and not that of 15 October 1992.
There is good reason to stay execution on the judgment obtained in the Magistrates Court and I will hear submissions in respect of that matter.
The answers to the questions posed then are as follows:
The original document dated 6 January 1993 does not comply with the description of a bill of costs in accordance with the requirements of the Costs Act.
The original documents sent under cover of letter dated 17 October 1991 and two documents dated 16 April 1992 being "RSK2" and "RGK6" to the affidavit of Ronald Gary Kilner filed 25 October 1995 do not comply with the description of a bill of costs in accordance with the requirements of the Costs Act.
The original documents bearing dates 1, 2 and 8 July 1992 and the original documents bearing date 13 and 15 October 1992 collectively as to each group of documents comply with the description of a bill of costs in accordance with the requirements of the Costs Act.
The original documents dated 30 November and 1 December 1992 and 4 January 1993 do not either separately or collectively comply with the description of a bill of costs in accordance with the requirements of the Costs Act.
The questions posed as Nos 4 6 7 by Mr Stubberfield have been answered in the text of these reasons and to the extent necessary such answers will be reflected in the formal orders.
As a consequence of those findings the formal orders are:
(a) The applicant John Stubberfield return to RG Kilner & Black the original documents being memoranda of accounts dated 1 December 1992 and 6 January 1993 within 7 days hereof;
(b)RG Kilner & Black subscribe the said documents in accordance with the requirement of s. 22 of the Costs Act 1867 and return them within 7 days of receipt to the applicant.
There be liberty to apply on the giving of 3 days notice in writing each to the other.
I will hear submissions as to costs.
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