Retchless v Lister (No 2)

[2016] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:

Retchless & others v Lister (No 2) [2016] QDC 29

PARTIES:

Retchless & others
(Applicant)

v

Lister
(Respondent)

FILE NO/S:

63/14

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Southport

DELIVERED ON:

22 February 2016 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

22 February 2016

JUDGE:

Rackemann DCJ

ORDER:

The matter is to be sent back to the costs assessor for reconsideration.

CATCHWORDS:

CIVIL LAW - APPLICATION FOR A REVIEW OF THE DECISION OF A COSTS ASSESSOR – where the plaintiff were ordered to pay the defendants costs – where the cost assessor did not comply with the rules of natural justice – where the costs assessor failed to give adequate reasons

COUNSEL:

M E Pope for the applicant

S Buchanan (solicitor) for the respondent

SOLICITORS:

DGM Lawyers for the applicant
Buchanan Lawyers for the respondent

1. This is an application for a review of the decision of a costs assessor in assessing the costs which the unsuccessful plaintiffs were ordered to pay to the defendant in relation to a defamation matter.  On a review, the Court, unless it has directed to the contrary, may not receive further evidence and any party may not raise any ground of objection not stated in the application for the assessment or a notice of objection raised before the costs assessor.  Subject to that, the Court may do any of the following: 

(a) exercise all the powers of a costs assessor in relation to the assessment; 

(b) set aside or vary the decision of the costs assessor;

(c) set aside or vary an order made under rule 740(1); 

(d) refer any item to the costs assessor for reconsideration, with or without directions;  or

(e) make any other order or give any other direction the Court considers appropriate. 

1. In this case, the applicant for review seeks the Court to exercise its power under rule 742(6)(d);  that is, to refer a certain number of items to the costs assessor for reconsideration, with directions.  The items which the applicant wants reconsidered are items 478, 479, 483, 484, 486, 488, 500 – 502, 504, 505 and 512.  Those items variously relate to three issues, namely (1) the hourly rate charged by counsel, (2) the amount allowed for preparation by counsel, both prior to trial and during trial, and (3) the amount allowed for care and consideration. 

1. Insofar as the first of those two items are concerned, the hourly rate which was generally allowed in the assessment was four hundred dollars per hour plus GST, save for some items where the rate was reduced on account, it would seem, that the assessor thought that it was solicitor’s level work that was carried out.  The applicant for review pointed out that this hourly rate was the same as the hourly rate that was allowed for the day when they were ordered to pay indemnity cost and they queried why the hourly rate that was allowed for the day when they were ordered to pay indemnity costs was the same as that assessed on a standard basis.

1. It was suggested that greater guidance in relation to an appropriate hourly rate, to charge on a standard basis, would be the rate which is allowed under the schedule of costs for when a solicitor does an element of barrister’s work such as item 13 of the scale of fees which allows for $69.35 per quarter hour for certain attendance by a solicitor without a barrister. I do not consider that the rate in item 13 should necessarily be adopted as the appropriate rate be used for a barrister when doing appropriate work for inclusion within the assessment. 

1. Also, the fact that the hourly rate adopted for the work done on a day when indemnity costs were ordered is the same as that which is allowed for on a day when standard costs are being paid does not, of itself, indicate error.  It may well be that the amount which counsel actually charged is properly assessed to be no more than would be payable on a standard basis. 

1. Insofar as the amount of preparation is concerned, the appropriate allowance for that will vary, depending upon the circumstances of the case. 

1. The difficulty, insofar as counsel’s fees are concerned, lies in two things. The first is that the reasons given by the costs assessor are quite brief.  In response to the general objection that:

The following objection is made to each item involving counsel’s fees, together with any other individual objection to an item.  Counsel’s fees reflect fees on an indemnity basis.  Counsel has 10 years at the bar and does not profess to practice defamation law and an appropriate hourly rate, on a standard basis, is $277 an hour plus GST.

1. The costs assessor simply said:

I generally disagree with this contention, however, this general objection has been considered and some items have been assessed.

1. That indicates a rejection of the contention that counsel’s fees reflected an indemnity basis, but did not give any reasons as to why the assessor held that view or, more particularly, why the rate allowed was thought to be appropriate for assessment on a standard basis. Further, in relation to the items relating to preparation, where the objection had specifically taken issue with the number of days charged for preparation and had put a view as to the appropriate level of preparation, both prior to trial and on the days of trial, the assessor contented himself with merely saying, “Charge considered reasonable.” Those reasons are inadequate in the circumstances. 

1. A further area of concern, emerged during the hearing today.  The solicitor for the defendant/respondent, quite properly, drew the court’s attention to some correspondence which had passed between the assessor and the barrister who had been retained for her client.

1. That correspondence shows that an email was sent by the assessor in September last year, to counsel which drew counsel’s attention to the objections that had been taken in relation to his fees and expressly sought from counsel information as to his hourly rate and the basis of that rate, by qualification and experience, and sought his time records for each item of charge. That information was requested to be provided by close of business on Wednesday, the 16th of September for the purposes of the assessor completing his assessment in a timely manner.

1. The barrister wrote back, giving not only details of the rate charged and the number of hours, but going into a spirited defence of the reasonableness of both, and in the course of that rebutted, or sought to rebut, the criticisms that had been raised in the objection.  It was common ground at the bar table today, that unfortunately the cost assessor did not tell either of the parties that he was writing to counsel, nor did the cost assessor or counsel provide a copy of the response to either party prior to the assessment being concluded. 

1. It is true to observe that, under rule 720(4)(d), the assessor had the power to inform himself of the facts in any way he considered appropriate. But that must be subject to the other requirements on the cost assessor.  In particular, whilst rule 720 permits the cost assessor to decide the procedure to be followed in the assessment, subsection (2) provides that the procedure must, amongst other things, be consistent with the rules of natural justice and be fair.  It is not consistent with the rules of natural justice nor fair for the cost assessor to obtain detailed information and argument in relation to the subject matter of the objection for the purposes of using that information in the assessment without giving the parties, including the party against whose interests it may be used, an opportunity to comment on that information.  In my view, the process before the cost assessor miscarried on that basis.

1. Insofar as care and consideration is concerned the objection relied on a number of arguments in support of a contention that the amount sought for care and consideration was excessive.  Those arguments may be summarised as follows:

(1) The matter was not complex.

(2) The only difficult questions involved the admissibility of expert evidence and cross-examination of experts in circumstances where the defendant did not call its own experts and cross-examination was handled by counsel.

(3) The amount involved was small.

(4) There was a heavy reliance on counsel.

(5) The solicitors did not purport to have specialised knowledge in the area.

(6) The important documents to be perused were mainly handled by counsel.

(7) There was a large reliance on non-professional staff, the principal solicitor did not instruct at trial and the principal’s time represented only a minor proportion of the total time spent on the matter.

1. The assessor did reduce the amount claimed for care and consideration with the only reason being given “deduction for over-reliance on counsel”.  This addressed one only of the arguments which have been put forward in the objection.  None of the other arguments were addressed specifically in relation to item 512. 

1. It should be noted that towards the front of the cost assessor’s reasons he did address the general objection of work being more that was necessary or proper by saying, in part, that:

As a general observation, a defamation is regarded as difficult, especially when, in the action, the plaintiff’s case was found to rely large on experts in “foreign linguistics”…

1. That perhaps could be seen as adding to his reasoning with respect to care and consideration, but still does not completely deal with the inadequacies of the reasons. 

1. To say, as a matter of general observation, that “a defamation action is regarded as difficult” does not go very far, because the question is not as to the difficulty of  defamation actions in general, but the difficulty of this action.  Further, the complication which was introduced by the plaintiff’s reliance on experts in foreign linguistics was a relevant matter to take into account, but the cost assessor did not address himself to the objection that this complication was one which would ought to have been reflected in whatever allowance was made for counsel’s fees more than care and consideration, since it was counsel who was largely relied upon to deal with that aspect of the case.

1. As I have already noted, the reasoning did not otherwise address the arguments put forward in the objection, nor did they provide any insight as to how the quantification of the care and consideration component was arrived at.  Further, it may well be that in considering the complexity of the matter the cost assessor was somewhat influenced by the document that he had received from counsel, but not passed on to the parties, which although addressing itself to counsel’s fees also addressed itself to the complexity of the matter, including the complexity introduced by the plaintiff’s reliance on experts in “foreign linguistics”, which was a matter to which the assessor referred in his reasons.

1. The failure to give adequate reasons and the very real prospect that the assessor was influenced, in this respect also, by a document to which the parties had not been given an opportunity to comment upon, in my view justifies the matter being sent back to the cost assessor for reconsideration in relation to that item as well as the others to which I have referred. 

1. In reaching that conclusion, I should not be taken to have made any decision that the amounts that the assessor has in fact assessed are necessarily excessive.  It might well be that, upon a proper consideration of the matter, the same or similar amounts are arrived at.  However, what warrants a reconsideration is a miscarriage of the process in which natural justice has been denied in a material respect, and in which there has been a failure to give appropriate reasons.

1. Accordingly, I refer items 478, 479, 483, 484, 486, 488, 500 to 502, 504, 505 and 512 to the costs assessor for reconsideration.  I direct that the costs before reconsidering those items, give notice to the parties of any information or documents which he has and which he proposes to take into consideration and give the parties an opportunity to make submissions about those documents, including the email from the defendant’s barrister of the 16th September 2015.  

1. Further, I direct that, in relation to the items of counsel’s fees, that the assessor assess the disputed items on a standard basis and give reasons with respect to the quantum of the hourly rate which he allows and reasons as to the amount of preparation that he allows, both in relation to the pre-trial items and the items during trial. 

1. Insofar as the reasonable care and consideration item 512, the assessor is to give reasons for arriving at his assessment and those reasons should address each of the contentions put forward in the objection.