Sadleir v Motor Trades Association of Australia
[2012] FCA 712
•3 July 2012
FEDERAL COURT OF AUSTRALIA
Sadleir v Motor Trades Association of Australia [2012] FCA 712
Citation: Sadleir v Motor Trades Association of Australia
[2012] FCA 712Parties: CHRISTINE JUNE SADLEIR v MOTOR TRADES ASSOCIATION OF AUSTRALIA and VANESSA ANNE JACKSON File number: SAD 202 of 2009 Judge: LANDER J Date of judgment: 3 July 2012 Date of hearing: 3 July 2012 Place: Adelaide Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 14 Counsel for the Applicant: Mr S Sizenko Solicitor for the Applicant: Victorian Legal Cost Assessors Counsel for the Second Respondent: Mr T Cogan Solicitor for the Second Respondent: Costs Law SA
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 202 of 2009
BETWEEN: CHRISTINE JUNE SADLEIR
ApplicantAND: MOTOR TRADES ASSOCIATION OF AUSTRALIA
First RespondentVANESSA ANNE JACKSON
Second Respondent
JUDGE:
LANDER J
DATE OF ORDER:
3 JULY 2012
WHERE MADE:
ADELAIDE
THE COURT ORDERS THAT:
1.The application for review of the Certificate of Taxation dated 4 May 2012 be allowed to the extent that the second respondent’s costs as between party and party be reduced by $537 and the second respondent’s costs be taxed at $16,753.33.
2.The applicant pay the second respondent’s costs, fixed at $660.
Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
SAD 202 of 2009
BETWEEN: CHRISTINE JUNE SADLEIR
ApplicantAND: MOTOR TRADES ASSOCIATION OF AUSTRALIA
First RespondentVANESSA ANNE JACKSON
Second Respondent
JUDGE:
LANDER J
DATE:
3 JULY 2012
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
On 2 February 2011, I published reasons for judgment in which I allowed the first applicant’s appeal from the Superannuation Complaints Tribunal and quashed the decision of the Superannuation Complaints Tribunal made on 20 November 2009. However, notwithstanding her success on the appeal, I ordered the first applicant to pay the second respondent’s costs of the appeal up to and including 27 August 2010 because the first applicant’s appeal had been predicated on a misunderstanding until such time as she was given leave to amend her notice of appeal. The price of the amendment was the costs thrown away prior to the date of the amendment.
On 2 September 2011, the second respondent filed a bill of costs seeking costs in the sum of $18,294.93. On 20 October 2011, Deputy Registrar Bochner provided an estimate of the bill in the sum of $15,805.87. On 17 April 2012, the first applicant objected to the assessment. On 27 April 2012, the second respondent responded to the objection. On 4 May 2012, the Deputy Registrar taxed the bill in the sum of $17,290.33. It can be seen from that short history that the first applicant would have been wise to accept the Registrar’s estimate. By objecting to the Registrar’s estimate, she increased her liability for costs in the sum of about $1,500.
Notwithstanding that unfortunate result, the first applicant has now applied to the Court for a review of the taxation pursuant to rule 40.34. She has, in that application for review, identified 12 items in the solicitor’s bill which she says should not have been allowed or should not have been allowed in the sum allowed by the Registrar, and a number of items in the counsel’s fees which she says should not have been allowed at all, or in the amount claimed. In respect of counsel fees, I immediately mentioned that the Registrar reduced the amount claimed by counsel from $7,700 to $6,490 on a party and party basis.
This is the first application I have ever seen for a review of a taxation of costs in my 18 years as a judge. I might say it is one of the most pointless applications that I have seen as a judge. The first applicant was not only unwise not to accept the Registrar’s estimate, but she was also unwise to have not accepted the Registrar’s certificate of taxation. To have the bill of costs taxed and to have the bill of costs reviewed, she has gone to the expense of flying a solicitor from Melbourne to Adelaide on two occasions, including for this review. I cannot see how this application could ever have been in the first applicant’s interests.
I cannot understand how the first applicant could have pursued this application if she were aware of the costs involved and the likely result. The application for review has challenged, as I have said, 12 separate items of the solicitor’s bill. The pointlessness of the application is demonstrated by the fact that one of the items challenged was in the sum of $8; another was in the sum of $20; and another in the sum of $21. How a party could pay for a lawyer to travel interstate to put an argument in respect of items of that kind is, with the greatest respect, beyond me.
During the hearing of the review, Mr Cogan, who appeared for the second respondent conceded that the bill ought to be reduced in respect of two items: item 26 in the sum of $13; and item 100 in the sum of $524. In respect of item 100, Mr Cogan conceded that the bill was drawn prior to the introduction of the new scale and, therefore, on a party and party basis, ought to be allowed under the old scale. Each of the other items he has contended were appropriate and I have disallowed each of the objections to those other items. The objections have, in my opinion, involved a misunderstanding of the costs which are allowable on a party and party basis.
They have also, in some respects, misunderstood the way in which the second respondent went about the defence of this case. An example is item 38, which was a claim by the second respondent’s solicitor of $592 for attending at court with his client and inspecting the T-documents, which had been provided by the Superannuation Complaints Tribunal, and arranging for copying those documents. The Registrar reduced the sum of $592 to $474, but the first applicant has continued to object to the allowance of that sum.
As I put to Mr Sizenko, who appeared for the applicant, the second respondent’s solicitor could have gone about it in a different way. The second respondent’s solicitor could have sent a clerk to copy the documents at court. The clerk would then return them to the solicitor who would have to read them and then the solicitor would have to meet with the second respondent in relation to the content of the documents. That would have allowed for three items separately charged on a party and party basis, which would have been in excess of the amount claimed by the second respondent’s solicitor. In fact, what the second respondent’s solicitor did was to have his client attend with him at the court and inspect the documents at the same time, thereby, averting the need for a later conference. The objection in respect of that amount was misconceived.
The other amounts were for small amounts except for items 15 and 23, which were claims of $268 each for the second respondent’s solicitor’s attendance at court. Mr Sizenko argued that the solicitor should not have been entitled to charge on a party and party basis for the solicitor’s attendance at two directions hearings or, alternatively, counsel should not have been entitled to charge for counsel’s attendance on those directions hearings. I disagree. The practice in this State is for the solicitors to appear with counsel on directions hearings and, in my opinion, it was appropriate for the solicitor to attend Court, to be ready and able to instruct counsel in relation to any matter that might arise in the directions hearing. On a party and party basis, it was appropriate for both solicitor and counsel to appear on the directions hearings.
I will not bother about giving any reasons in respect of the items which claim costs of $8, $20 or $21, and the like.
The last objections or series of objections relate to counsel fees. As I have said, the Registrar reduced counsel fees from $7,700 to $6,490. Mr Sizenko argued that counsel had overcharged by charging at an hourly rate. The national guide to counsel fees, at the relevant time, allowed for a fee on brief for a junior counsel somewhere between $1,200 to $4,800 and appearance at a hearing, evaluating including conference, of between $850 and $3,950.
The alternative was to charge on an hourly rate in the sum of between $250 and $500. Counsel has charged at a rate between those amounts and, in my opinion, the counsel fees are not excessive. Mr Sizenko said it was a simple matter but that is not my memory of the matter and it was appropriate, in my opinion, for counsel to charge as counsel has.
The application for review will be allowed to the extent of reducing the bill taxed by the Registrar by $537.
Mr Cogan, on behalf of the second respondent, has sought an order for costs. Mr Sizenko accepts that the first applicant must pay the costs. I can only repeat what I said earlier. It has not been in the first applicant’s interests, ever since this bill was lodged, to have taken the attitude that she has in relation to this bill. Unfortunately, the order sought by Mr Cogan must be made and there will be an order that the applicant pay the second respondent’s costs fixed at $660.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate:
Dated: 9 July 2012
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