Slater v Ecosol Pty Ltd (No 3)

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
SLATER v ECOSOL PTY LTD (No 3)
[2024] SASC 70
Decision of the Honourable Justice Blue
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS
DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - OTHER MATTERS
The applicant Matthew Slater was previously ordered to pay the costs of his action against Ecosol Pty Ltd and Jeffery Smith in accordance with the Magistrates Court costs scale: Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29.
These reasons address the amount of the costs pursuant to that costs order.
Held:
1       In relation to item 3 of the Magistrates Court costs scale:
(a)    in the particular circumstances of the case, item 3 should be regarded as extending up to the last hearing shortly before the commencement of trial and item 4 as encompassing preparation for trial after the last listing for trial such that there is a temporal overlap between the two items (at [13]);
(b)    quantum for the purposes of item 3 should be determined by the weighted average (by reference to time) of the amount of the claim being $60,000 during the first part (broadly assessed) of the period covered by item 3 and $80,000 during the balance of that period (at [16]-[19]);
(c)     the coexistence of a cross claim by Mr Smith against Mr Slater is not a reason to reduce the costs fixed under item 3 (at [22]-[24]);
(d)    costs under item 3 fixed at $9,280 (at [25]).

2       In relation to item 4 of the Magistrates Court costs scale:
(a)    quantum for the purposes of item 4 should be determined by the amount of the claim being $80,000 throughout the substantial majority of that period (at [27]);
(b)    the coexistence of a cross claim by Mr Smith against Mr Slater is not a reason to reduce the costs fixed under item 4 (at [28]);
(c)     costs under item 3 fixed at $6,400 (at [32]).

3       In relation to item 7 of the Magistrates Court costs scale:
(a)    quantum for the purposes of item 7 should be determined by the amount of the claim being $80,000 throughout the period of the trial (at [35]);
(b)    the coexistence of a cross claim by Mr Smith against Mr Slater is not a reason to reduce the costs fixed under item 7 (at [36]);
(c)     costs under item 7 fixed at $20,000 (at [37]).

4       In relation to item 9 of the Magistrates Court costs scale:
(a)    costs under item 9 should be fixed in respect of the hearings at which argument took place on 7 October 2020, 22 January 2021, 10 June 2021, 23 September 2021, 2 February 2022, 2 March 2022, 14 April 2022 and 27 November 2023 (at [82],[164]);
(b)    costs under item 9 should not be fixed in respect of the balance of the interlocutory hearings (at [81]);
(c)     costs under item 9 fixed at $1,280 (at [82]).

5       In relation to disbursements:
(a)    $410 being 50 per cent of the total setting down fee, being the proportion paid by the respondents, is recoverable against Mr Slater (at [89]);
(b)    $12,094.35 being costs of transcript of interlocutory hearings on 10 June 2021, 23 September 2021 and 14 April 2022 (45 pages) and of the first tranche of the trial in March 2022 is recoverable against Mr Slater (at [128], [138]);
(c)     $4,933.50 being costs paid by Ecosol to Janic is recoverable against Mr Slater (at [148]);
(d)    $154.60 for searches is conceded by Mr Slater (at [150]);
(e)     $1,188.55 being 50 per cent of travel costs incurred by Mr Smith and 100 per cent of the travel costs reimbursed by Ecosol to Mr Smith is recoverable against Mr Slater (at [157]).

6 Costs fixed at $55,741 (at [165]).
Uniform Civil Rules 2020 (SA), referred to.
Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29; Slater v Smith [2021] SASC 135, discussed.

SLATER v ECOSOL PTY LTD (No 3)
[2024] SASC 70

BLUE J: I previously delivered reasons for judgment for ordering that Matthew Slater pay the costs of his action against Ecosol Pty Ltd and Jeffery Smith (the Slater action) in accordance with the Magistrates Court costs scale and that Mr Smith pay the costs of his action against Mr Slater (the Smith action) in accordance with the ordinary basis applicable in the District Court of New South Wales up to 17 June 2021 and thereafter as if the action had proceeded from that date in the Magistrates Court.[1]
[1] Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29.
I indicated that I would hear the parties as to the precise orders to be made. At the request or with the agreement of the parties, I determined to fix the amount of the costs pursuant to those orders myself rather than the quantum being fixed by taxation before another judicial officer. These reasons address the amount of the costs pursuant to the costs order made in the Slater action.
Professional costs
Ecosol and Mr Smith claim under items 3, 4, 7 and 9 of the Magistrates Court costs scale contained in Part 3 of Schedule 6 to the Uniform Civil Rules 2020 (SA). Subrule 5(1) relates to costs in respect of work done up to 28 August 2022 and subrule 5(2) relates to costs in respect of work done on and after 29 August 2022. However, there is no difference between items 3, 4, 7 and 9 in the two subrules and I therefore refer to the scales contained in those subrules simply as the Scale.
Item 3
Item 3 of the Scale is described as:
Any and all activity after the first directions hearing or hearing (solicitor and counsel) until:
(a)if the action is to proceed to trial—the last hearing before trial, whether a directions hearing, hearing or pre‑trial conference; or
(b)     the final determination of an originating application:
(i)    when determined at a hearing; and
(ii)     when the action is not listed for trial.
The amount of item 3 is specified as 14 per cent of “quantum”, which is relevantly defined by subrule 1(b)(i) of Schedule 6 to mean the total claim value sought by the applicant against the respondent.
The total claim value was originally $45,000 but on 28 July 2020 Mr Slater increased his claim value to $60,000 and on 26 August 2021 he increased it to $80,000.
Determination of “quantum”
Ecosol and Mr Smith contend that the amount of “quantum” under item 3 should be the amount at the end of the work encompassed in item 3. Mr Slater contends that item 3 should be apportioned to different periods when the work encompassed in item 3 was performed depending on the amount of quantum during those periods.
Ecosol and Mr Smith contend that the work encompassed in item 3 concluded upon the last hearing before trial, which was on 2 March 2022. Mr Slater contends that it concluded when the action was last listed for trial, which was on 29 July 2021.
Interrelationship between items 3 and 4
The first issue relates to the temporal extent of work encompassed in item 3 and involves the interrelationship between items 3 and 4.
Item 4 is described as:
All aspects not otherwise specified of, and incidental to, preparing for trial (solicitor and counsel), including:
(a)     proofing witnesses;
(b)     advice on evidence and law; and
(c)     delivering brief to counsel.
In the typical case where an action proceeds to trial and the amount of the claim is not amended, there is no need to determine where the line is drawn between item 3 and item 4. This is only necessary if the amount of the claim is amended at a time arguably part way during the progression of item 3 or item 4 or if the action is determined (by summary or default judgment or acceptance of an offer that includes costs on the Scale) at such a time.
In the paradigm case, the last hearing before trial will be the hearing at which the action was listed for trial and the preparation for trial will be undertaken after that hearing. In that case, item 3 will cover work undertaken up to the hearing at which the action is listed for trial and item 4 will cover work undertaken after that hearing. If the only hearing after listing for trial and before commencement of trial is a routine pre-trial hearing at which the Court confirms that the matter is ready for trial and gives routine pre-trial directions, it would be appropriate to consider that item 3 nevertheless covers work undertaken up to the hearing at which the action is listed for trial and that item 4 covers work undertaken after that hearing.
In the present case, there were several hearings after the action was last listed for trial (29 July 2021). At that time, there were still issues predominantly involving pleadings and discovery yet to be determined. In the present case, it is appropriate to regard item 3 as covering the hearings up to 2 March 2022 and item 4 as covering largely concurrent preparation for trial between 29 July 2021 and the commencement of trial on 5 March 2022.
Time at which claim value determined
The second issue is whether the amount of “quantum” should be the amount in March 2022 ($80,000) or apportioned based on the amount of quantum during the period up to March 2022.
As explained in my previous judgment, an important underlying rationale for the structure of the Scale is to ensure that costs are proportionate to the amount in dispute. Further, in the present case the amount claimed by Mr Slater increased over time but in another case the amount claimed might well decrease. Accordingly, it is not appropriate merely to take the amount of the claim at the end of the period as the “quantum” for the purposes of item 3. On the other hand, if the amount of the claim is different during only a relatively minor part of the period in question, it will be appropriate to use the amount of the claim during the preponderant period as the “quantum”.
In the present case, on the one hand, during the majority of the period of work covered by item 3 the amount of the claim was $60,000 and during a significant (albeit less) period the amount of the claim was $80,000. It is appropriate to apportion the calculation of item 3 between those two periods.
On the other hand, although item 3 is expressed to commence after the first hearing in the action and the first such hearing was in January 2020, item 3 proceeds on the basis that both parties have filed their pleadings as part of items 1 and 2 and item 3 involves work undertaken thereafter. In the present case, although Ecosol and Mr Smith had filed a defence while self-represented, it was a holding defence with little substantial content and implicitly anticipated the subsequent filing of a proper defence. The work undertaken by the respondents’ lawyers in the action up to 19 June 2020 involved the preparation, filing and service of a substantive (amended) defence. In those circumstances, it is appropriate to ignore the period before 20 June 2020.
On 28 July 2020 Mr Slater increased the amount of his claim from $45,000 to $60,000. This was only some six weeks after filing of the amended defence. This is not a significant period compared to the subsequent periods covered by item 3 when the amount of the claim was $60,000 and then $80,000. It is not appropriate to include the period before 28 July 2020 in the apportionment.
The period between 28 July 2020 and 26 August 2021 (when the amount of the claim was $60,000) involves approximately 13 months. The period between 26 August 2021 and 2 March 2022 (when the amount of the claim was $80,000) involves approximately six months. The total period is 19 months. It is appropriate to apportion the quantum of item 3 as to 13/19ths to $60,000 and as to 7/19ths to $80,000. This results in an apportioned (rounded) quantum of $66,300. 14 per cent of that amount (rounded) equals $9,280.
Relevance of two actions
The third issue arises from Mr Slater’s contention that Ecosol and Mr Smith should recover only a proportion of the item 3 amount that would otherwise be appropriate to reflect the fact that the solicitors and counsel representing them as respondents in the Slater action also represented Mr Smith as applicant in the Smith action from January 2022.
I observe in passing that during the vast majority of the period covered by item 3 Mr Smith was self-represented in the Smith action. If Mr Slater’s contention were otherwise to be accepted, it would have little if any effect upon the amount allowed under item 3 (but would apply in full to item 7).
I reject Mr Slater’s contention. I already decided this issue as part of deciding what costs order to make in the Slater action in my costs order judgment.[2] In any event, I adhere to my reasons for rejecting Mr Slater’s contention.
[2] Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29 at [223]-[232].
The Scale is premised on the professional costs recoverable under item 3, 4 and 7 in a case of an unsuccessful action and an unsuccessful cross action being calculated and recovered independently. In other words, a respondent who is successful in defending an action is entitled to recover the full amount of item 3 (calculated by reference to the amount of the claim) as part of their costs of the action and conversely an applicant who is successful in defending a cross action is entitled to recover the full amount of item 3 (calculated by reference to the amount of the cross claim) as part of their costs of the cross action.
In any event, in the present case the solicitors and counsel representing Ecosol and Mr Smith in the Slater action were instructed and paid by the insurer. It is clear, and I find, that they would not have acted for Mr Smith in the Smith action but for the fact that they were representing Ecosol and Mr Smith in the Slater action and, due to the overlap of issues, there was very little additional work involved in their acting for Mr Smith in the Smith action.
I fix the amount recoverable under item 3 at $9,280.
Item 4
Item 4 of the Scale involves preparation for trial including proofing witnesses, briefing counsel and advice on evidence. In the present case, there is a temporal overlap between the period covered by item 3 and the period covered by item 4.
The period between the final listing for trial made on 29 July 2021 and the commencement of trial on 5 March 2022 was approximately seven months. Although during the first month of this period the amount of Mr Slater’s claim was $60,000, during the great preponderance of the period the amount of the claim was $80,000. It is not appropriate in the circumstances to make an apportionment. The amount in the Scale for item 4 is eight per cent of quantum. Eight per cent of $80,000 is $6,400.
Mr Slater makes the same contention about overlap between the Slater action and the Smith action as he makes in respect of item 3. I reject that contention for the same reasons.
Mr Slater also contends that, because item 3 includes proofing witnesses and because Ecosol and Mr Smith were not represented when their witnesses were called, less than the full amount should be allowed under item 4. I reject that contention.
First, the reference to proofing witnesses is only an example of the type of work that is encompassed in item 4. The actual definition of item 4 is preparation for trial. In some cases a party will not call witnesses and in other cases a party will only call themself as a witness. The amount allowed under item 4 will not change (absent special circumstances justifying an order for departure from the Scale).
Secondly and more importantly, in the present case I made an order that the evidence in chief of all witnesses be contained in written statements. This was done in respect of the witnesses called by the respondents while they were still represented by solicitors and counsel. The proofing of witnesses was undertaken during the representation period.
I fix the amount recoverable under item 4 at $6,400.
Item 7
Item 7 of the Scale is described as:
Attendance as counsel at trial, including fee on brief.
The amount specified for the first day of trial is four per cent of quantum (subject to a minimum of $1,410) and for subsequent days is three per cent of quantum (subject to a minimum of $1,060). The minima are premised on a quantum of approximately $35,000.
The trial proceeded for an initial period when the respondents were represented by solicitors and counsel of eight days. Based on a quantum of $80,000, being the amount of Mr Slater’s claim throughout the trial, prima facie the amount of item 7 is $20,000 ($3,200 plus seven times $2,400).
Mr Slater makes the same contention about overlap between the Slater action and the Smith action as he makes in respect of items 3 and 4. I reject that contention for the same reasons. In particular, the initial period of the trial was not prolonged by reason of the existence of the Smith action. A trial of the Slater action alone would still have taken eight days for the initial period.
I fix the amount recoverable under item 7 at $20,000.
Item 9
Item 9 of the Scale is described as:
Any other attendance when the costs are not within any other item (solicitor and counsel).
Ecosol and Mr Smith claim costs under item 9 in respect of most, but not all, pre-trial hearings. These are hearings on 23 July 2020, 7 October 2020, 9 December 2020, 22 January 2021, 23 April 2021, 10 June 2021, 29 July 2021, 27 August 2021, 2 September 2021, 23 September 2021, 11 October 2021, 24 November 2021, 8 December 2021, 2 February 2022, 24 February 2022, 2 March 2022 and 14 April 2022.
Ecosol and Mr Smith also claim costs for the hearings on 14 September 2023 and 27 November 2023 at which argument was heard on their costs applications and on 6 March 2024 when I delivered judgment on the costs applications. I defer consideration of these claims for the time being.
Ecosol and Mr Smith also claim costs for attending to mediations before Supreme Court judicial officers. I do not allow these costs.
In general terms, interlocutory hearings will be encompassed in item 3. However, there may be circumstances in which a particular hearing is outside the scope of what is encompassed in item 3. Without being exhaustive, those circumstances might include one of the following.
First, if a substantial argument is heard and determined (such as concerning pleadings, discovery or joinder particularly on an interlocutory application), depending on the result of the argument, it may be appropriate to award costs under item 9. It is preferable that, if either party seeks costs of an argument under item 9 in any event or that they be that party’s costs in the cause separately recoverable under item 9 if that party is successful in the action but not otherwise or that they be separately recoverable under item 9 by the successful party in the action, that party makes application for such an order when the argument is determined. However, it is possible that such costs might be awarded at the end of the action.
Secondly, a directions hearing is initially scheduled (usually after a defence has been filed) and thereafter directions hearings are usually adjourned from date to date as the action proceeds. If a party makes an interlocutory application (particularly seeking a discretionary order such as leave to amend or an extension of time) necessitating a specific hearing outside the run of directions hearings, it may be appropriate to order that that party pay the other party’s costs of the hearing in accordance with item 9.
Thirdly, directions hearings vary in length. Within reason, the mere fact that a directions hearing is longer rather than shorter will not result in item 9 being attracted. However, if a directions hearing proceeds for an extraordinary length, it may be that it is appropriate to order that the costs of the hearing be the subject of item 9 and be costs in the cause (such that the successful party recovers the costs of the hearing under item 9).
Fourthly, if a hearing is unduly prolonged by the conduct of one party, it may be appropriate to order that the costs of the hearing be the subject of item 9 and be paid by that party in any event or if that party is ultimately unsuccessful in the action.

Mr Slater refers to rule 6(1) of Part 3 of Schedule 6 to the Uniform Civil Rules 2020 (SA). That subrule states that all the items in the table are inclusive of costs “for all incidental and necessary activity and advice for each item to the intent that no costs will be allowed in addition to the costs set for each item or for anything not itemised”. He contends that the claim by Ecosol and Mr Smith under item 9 is a double up of their claims under items 3, 4 and 7.
I reject Mr Slater’s contention. It would result in item 9 having virtually no work to do. Clearly item 9 contemplates that there will be attendances in the course of an action for which costs should separately be recovered under item 9 notwithstanding that items 1 to 7 collectively cover the full course of an action from institution to conclusion of trial.
However, as observed above, before an attendance can be recovered under item 9, it must be demonstrated that the attendance should not be regarded as covered by one of the other items.
Arguments
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing in the Magistrates Court on 23 July 2020.
Mr Slater had on 26 June 2020 filed an interlocutory application seeking further particulars of the amended defence filed by Ecosol and Mr Smith (FDN 12).
On 23 July 2020 Magistrate Hodder ordered that Ecosol and Mr Smith file an amended defence with respect to their justification and qualified privilege defences particularising the applicable statutory provisions and/or common law and affirmative facts relied upon. Transcript of the hearing (and of the other hearings in the Magistrates Court) is not available. However, as it appears that Mr Slater was successful on his application, it should not be ordered that he pay the costs of the hearing.
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing on 7 October 2020.
Mr Slater had on 11 September 2020 filed an interlocutory application seeking amongst other things striking out of certain paragraphs of the further amended defence filed by Ecosol and Mr Smith (FDN 23).
On 7 October 2020 Magistrate Hodder heard argument on the strike out application and reserved her decision. On 27 October 2020 she published reasons for refusing the application.
As the hearing on 7 October 2020 involved argument on an application by Mr Slater in respect of which he was unsuccessful, Ecosol and Mr Smith should recover costs of the hearing under item 9.
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing on 22 January 2021.
Mr Slater had on 15 January 2021 filed an interlocutory application seeking amongst other things further discovery, better particulars of the further amended defence, appointment of an independent expert and a stay of the action (FDN 52).
On 22 January 2021 Magistrate Hodder heard argument on the application and dismissed it insofar as it related to those four matters.
It is true that at the hearing Magistrate Hodder also listed the action for trial. However, the hearing was obviously prolonged by argument on Mr Slater’s applications in which he was unsuccessful.
It is true that Mr Slater appealed against the discovery, expert and stay orders and the appeal was allowed by consent to the extent that Mr Slater was in effect successful on his stay application. However, there is no reason why Ecosol and Mr Smith should not recover costs of the hearing under item 9 because he failed on his discovery and further particulars applications.
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing in the Supreme Court on 23 April 2021.
The hearing on 23 April 2021 was in part an ordinary directions hearing addressing timetabling and other matters. That part of the hearing can be put aside.
In addition, I heard Mr Slater’s interlocutory application dated 21 April 2021 (FDN 60) complaining about various paragraphs of the defence. In broad terms, I upheld the majority of Mr Slater’s complaints, albeit Ecosol and Mr Smith did not pursue their opposition after I expressed preliminary views in relation to many of those complaints. In these circumstances, it is not appropriate that Ecosol and Mr Smith recover separately under item 9 in respect of this hearing.
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing on 10 June 2021.
The hearing on 10 June 2021 had been listed for argument in respect of Mr Slater’s interlocutory application dated 20 May 2021 (FDN 67) primarily seeking striking out of various paragraphs of the defence and further discovery. The hearing extended over two hours and 40 minutes.
Mr Slater sought four categories of further discovery. Consideration of one of the categories was deferred to a subsequent hearing.[3] Mr Slater failed in respect of two categories and succeeded in respect of one category. In relation to the pleadings arguments, in broad terms, I upheld the majority of Mr Slater’s complaints, albeit Ecosol and Mr Smith did not pursue their opposition after I expressed preliminary views in relation to many of those complaints.
[3] See Slater v Smith [2021] SASC 135 addressed below.
The result in relation to the pleadings arguments considered in isolation would not justify a costs order. However, given the result on the discovery arguments and the circumstances to which I have referred, Ecosol and Mr Smith should recover costs of the hearing under item 9.
Ecosol and Mr Smith seek $160 under item 9 in respect of each hearing on 23 September 2021 and 11 October 2021.
In broad terms, at these hearings argument was heard concerning Mr Slater’s applications for further discovery relating to the documents disclosed by Ecosol in the Queensland Supreme Court proceeding and that the other parties be dux litis. On 24 November 2021 I published reasons for decision on those applications.[4] Mr Slater was successful on his principal discovery application. However, Mr Slater was unsuccessful on his dux litis application and on various ancillary discovery applications. In the circumstances, Ecosol and Mr Smith should recover costs of one of the two hearings (say 23 September 2021) under item 9.
[4] Slater v Smith [2021] SASC 135.
Mr Slater contends that the cost should be apportioned between the Slater action and the Smith action. He puts the same contention in respect of subsequent hearings. I reject that contention for essentially the same reasons as in respect of items 3, 4 and 7.
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing on 2 February 2022.
In broad terms, at the hearings on 2 and 3 February 2022 argument was heard concerning Mr Slater’s discovery-related applications contained in his interlocutory application dated 31 January 2022 (FDN 144). The parties enjoyed mixed success on the applications. Although some further discovery orders were made as sought by Mr Slater, other applications were refused. In the circumstances, Ecosol and Mr Smith should recover costs of one of the two hearings under item 9. As they only seek the costs of the hearing on 2 February 2022, they should recover the costs of that hearing.
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing on 2 March 2022.
In broad terms, at the hearing on 2 March 2022 argument was heard on an interlocutory application by Ecosol and Mr Smith dated 28 February 2022 to set aside a subpoena to produce documents issued at the request of Mr Slater to Rachael Turner (FDN 188) and an interlocutory application by Mr Slater dated 1 March 2022 relating to that interlocutory application, a subpoena issued at the request of Mr Slater to Lucent Advisory and proposed interrogatories to the other parties (FDN 186).
Ecosol and Mr Smith were largely successful in respect of both applications. Most of the paragraphs of the subpoena to Ms Turner were set aside and three of the remaining paragraphs were amended. All but two of the orders sought by Mr Slater were refused and the remaining two orders were otiose. Ecosol and Mr Smith should recover costs of the hearing under item 9.
Ecosol and Mr Smith seek $160 under item 9 in respect of the hearing on 14 April 2022.
In broad terms, at the hearing on 14 April 2022 argument was heard on an interlocutory application by Mr Slater dated 4 April 2022 that Ecosol pay $55,000 into court and that the respondents discover documents relating to recipients of the impugned publications and communications with their insurer relating to certain indorsements (FDN 208).
Ecosol and Mr Smith were successful in respect of these applications. The applications for discovery were dismissed. The application for payment of monies into court was misconceived. Although I ultimately entertained an application by Mr Slater for a freezing order, Mr Slater had deliberately not sought such an order in his interlocutory application and it was not addressed on its merits at this hearing. Ecosol and Mr Smith should recover costs of the hearing under item 9.
Other hearings
The remaining hearings in respect of which Ecosol and Mr Smith seek costs under item 9 were essentially directions hearings. In a couple of cases, there was very short argument on an interlocutory application brought by Mr Slater but the time devoted to it was not significant.
It is true that in general terms the hearings were longer than a typical directions hearing on the Magistrates Court and there were more hearings than in a typical case in the Magistrates Court. However, considered holistically, although it might be regarded as finely balanced, I am not persuaded that Ecosol and Mr Smith should recover costs of these hearings under item 9.
Conclusion
Ecosol and Mr Smith should recover costs under item 9 in respect of the hearings on 7 October 2020, 22 January 2021, 10 June 2021, 23 September 2021, 2 February 2022, 2 March 2022 and 14 April 2022. This involves a total of seven hearings at $160 each being $1,120.
Total professional fees
The total professional fees allowed are $36,800.
Disbursements
Ecosol and Mr Smith claim disbursements in relation to a setting down fee, the costs of transcript, costs paid to Janic Consulting Pty Ltd as a result of my discovery order made on 24 November 2021, costs of litigation and property searches undertaken by them and costs of travel by Mr Smith to attend at trial in August 2022 and February 2023 when Ecosol was self-represented (by Mr Smith).
Setting down fee
In January 2021, when the Magistrates Court listed the Slater action for trial, it was ordered that the applicant and the respondent were each to pay 50 per cent of the trial listing fee of $820 in the amount of $410 each.
In March 2021 Ecosol and Mr Smith paid $410 to the Court pursuant to that order. This amount is recoverable as an ordinary disbursement.
Mr Slater contends that only half of this amount should be allowed because there was no trial listing fee charged in respect of the Smith action and the amount that was charged should be allocated as to 50 per cent to each action.
I reject that contention. When the trial setting down fee was paid, there was no Smith action in the Magistrates Court. That action was proceeding in the District Court of New South Wales. There is no basis for any allocation between the two actions.
I allow $410 being the setting down fee paid to the Court.
Transcript
Ecosol and Mr Smith claim $16,643.70 for the cost of transcript.
The transcript can be divided into three components:
1Transcript of the interlocutory appeal on 1 April 2021 and of certain interlocutory hearings between 23 April 2021 and 8 February 2022 and on 8 June 2022 at a total cost of $6,097.40;
2Transcript of the first period of trial in March 2022 at a cost of $10,425.30;
3Transcript of the first costs argument on 14 September 2023 at a cost of $1,320.50.
Barry Nilsson Lawyers, the solicitors for Ecosol and Mr Smith when instructed by the insurer, obtained the transcript referred to in items 1 and 2. After Mr Slater discontinued his action against Mr Smith and solicitors and counsel ceased to act for Ecosol (in July 2022), Ecosol did not obtain transcript for the second tranche of the trial or closing addresses.
After I delivered my primary judgment (in July 2023) and solicitors (now Wotton Kearney) resumed acting for Ecosol and Mr Smith in the Slater action for the purpose of seeking costs, they obtained the transcript referred to in item 3. I defer consideration of this claim for the time being.
Mr Slater opposes recovery of $16,643.70 for transcript on the grounds that it was not a cost reasonably incurred and is disproportionate to the amount in dispute.
Interlocutory hearings
It is necessary to consider whether, in the context of taxation of costs as between party and party in an action proceeding as if it were in the Magistrates Court, the costs of transcript of the interlocutory hearings the subject of the claims were reasonably incurred.
Unlike the position in the Supreme Court, it is not normal practice for the Magistrates Court to produce transcript automatically of interlocutory hearings. It is only produced on request (by a party or by a judicial officer). The mere fact that a party purchases transcript of an interlocutory hearing does not in itself demonstrate that, as between party and party, the cost was reasonably incurred. It is necessary for the party to demonstrate that the transcript was reasonably required for the prosecution or defence of the action (as the case may be).
Transcript of the interlocutory hearing on 23 April 2021 comprising 56 pages was purchased on or before 30 April 2021. I have concluded at [64] above that the cost of the attendance on 23 April 2021 should not be allowed under item 9. The question whether the transcript was reasonably required is whether it was reasonably required for future hearings, which is a different question to whether the costs of the hearing should be (separately) recovered.
Taking into account in particular that this was the first directions hearing after the Slater action was transferred into this Court and the nature, length and result of the hearing, I am not satisfied that the cost of the transcript of this hearing should be recovered in all of the circumstances.
Transcript of the interlocutory hearing on 10 June 2021 comprising 83 pages was purchased on or before 17 June 2021 at a cost of $722.10. I have concluded at [68] above that the cost of the attendance on 10 June 2021 should be allowed under item 9.
Taking into account that Mr Slater revisited discovery and pleadings issues in subsequent hearings after earlier raising them, I am satisfied subject to the issue of proportionality addressed below that the cost of the transcript of this hearing was reasonably incurred and should be recovered in all of the circumstances.
Transcript of the interlocutory hearing on 29 July 2021 comprising 62 pages was requested on 2 August 2021, of the interlocutory hearing on 27 August 2021 comprising 53 pages was requested on 10 September 2021 and of the interlocutory hearing on 2 September 2021 comprising 35 pages was requested on 6 September 2021.
These were essentially directions hearings rather than arguments. As Ecosol and Mr Smith were represented by counsel and an instructing solicitor who were able to take notes of significant points for the purpose of the future, and taking into account the nature and length of the hearings, I am not satisfied that the cost of the transcript of these hearings was reasonably incurred as between party and party and should be recovered in all of the circumstances.
Transcript of the interlocutory hearing on 23 September 2021 comprising 62 pages was requested on 5 October 2021 at a cost of $548.70 and of the interlocutory hearing on 11 October 2021 comprising 87 pages was requested on 15 October 2021 at a cost of $769.95. I have concluded at [70] above that the cost of the attendance on 23 September 2021 should be allowed under item 9.
The hearings comprised argument on applications by Mr Slater relating to discovery, dux litis and pleadings. Taking into account the fact that the applications were part heard after the first hearing on 23 September 2021 and the result of the applications, subject to the issue of proportionality addressed below I am satisfied that the cost of the transcript of the first hearing on 23 September 2021 was reasonably incurred for the purposes of the second hearing and should be recovered in all of the circumstances. Conversely, I am not satisfied that the cost of the transcript of the second hearing on 11 October 2021 was reasonably required.
Transcript of the interlocutory hearing on 24 November 2021 comprising 29 pages was requested on or before 2 December 2021 and of the interlocutory hearing on 8 December 2021 comprising 32 pages was requested on 9 December 2021.
These were essentially directions hearings (at the first hearing I delivered reasons for judgment on Mr Slater’s applications referred to at [104] above) rather than arguments. As Ecosol and Mr Smith were represented by a solicitor who was able to take notes of significant points for the purpose of the future, and taking into account the nature and length of the hearings, I am not satisfied that the cost of the transcript of these hearings was reasonably incurred and should be recovered in all of the circumstances.
Transcript of the hearing of the interlocutory appeal on 1 April 2021 comprising 55 pages was requested in January or February 2022. This was shortly before the trial was listed to commence in March 2022.
The interlocutory appeal was resolved by orders made by consent with no order as to costs. However, the fact that no order was made as to costs of the appeal does not determine recoverability of the costs of transcript because that turns on the question whether the transcript was reasonably required for the purposes of future hearings at the time that it was purchased.
As Ecosol and Mr Smith were represented by counsel and an instructing solicitor who were able to take notes of significant points for the purpose of the future, and taking into account the nature and length of the hearing, I am not satisfied that the cost of the transcript of the appeal hearing was reasonably incurred and should be recovered in all of the circumstances.
Transcript of the interlocutory hearing on 8 February 2022 comprising 60 pages was requested in February 2022. That hearing principally addressed the arrangement of witnesses for trial (including whether evidence could be given by audiovisual link). It included some argument on Mr Slater’s oral application that Ecosol’s discovery be verified by its accountants Lucent, which Mr Slater abandoned.
As Ecosol and Mr Smith were represented by counsel and an instructing solicitor who were able to take notes of significant points for the purpose of the future, and taking into account the nature and length of the hearing, I am not satisfied that the cost of the transcript was reasonably incurred and should be recovered in all of the circumstances.
Transcript of the interlocutory hearing on 14 April 2022 comprising 69 pages was requested on 27 April 2022 at a cost of $610.65.
The hearing while Ecosol’s counsel was present (involving 45 pages of transcript) principally comprised argument on an application by Mr Slater that Ecosol pay $55,000 into Court as security for any damages and costs awarded against Ecosol. Mr Slater eschewed seeking a freezing order. I indicated that Mr Slater would not be successful on his application for payment into court. Mr Slater then said that he would seek a freezing order in the alternative. Orders were made for the filing of affidavits and his oral application was listed for argument on 17 May 2022.
Taking into account the fact that the application was part heard after the hearing on 27 April 2022, the result of the application for payment into court of monies and the fact that Mr Slater revisited the topic of security (by way of freezing order) at the subsequent hearing on 17 May 2022, subject to the issue of proportionality addressed below I am satisfied that the cost of 45 pages of the transcript of the hearing ($398.25) was reasonably incurred and should be recovered in all of the circumstances.

The balance of the hearing addressed the issue between Mr Slater and Mr John as to the quantum of the witness fee payable by Mr Slater to Mr John. I am not satisfied that the cost of this portion of the transcript was reasonably incurred.
Transcript of the interlocutory hearing on 8 June 2022 comprising 22 pages was requested on 15 June 2022. That hearing principally addressed the consequences of Ecosol ceasing to be represented by solicitors and counsel and arrangements for the balance of the trial.
As Ecosol and Mr Smith were represented by counsel and an instructing solicitor who were able to take notes of significant points for the purpose of the future, and taking into account the nature and length of the hearing, I am not satisfied that the cost of the transcript was reasonably incurred and should be recovered in all of the circumstances.
Mr Slater contends that Ecosol and Mr Smith should recover in the Slater action only 50 per cent of the costs of transcript because the transcript was equally relevant to the Smith action and the costs should be apportioned between the two actions.
I reject Mr Slater’s contention. It is clear, and I find, that the transcript was only obtained because of the Slater action and would not have been obtained if only the Smith action had proceeded. This is confirmed by the fact that Ecosol and Mr Smith did not obtain transcript for the second tranche of the trial or of any interlocutory hearings when they were self-represented. In these circumstances, the cause of the incurring of the expense of transcript was the institution and prosecution by Mr Slater of the Slater action. Ecosol and Mr Smith are entitled to recover the full amount of that cost in the Slater action. It is irrelevant whether or not Mr Smith may have used the transcript for the purposes of the Smith action (given that it had already been obtained for the purposes of the Slater action).
Mr Slater contends that, if the cost of transcript in the Magistrates Court is less than the cost of transcript in the Supreme Court, Ecosol and Mr Smith should only recover at the rate applicable in the Magistrates Court. This question does not arise because the cost of transcript in both Courts is the same (when transcript is produced).
I have concluded above that the cost of transcript of three interlocutory hearings totalling $1,669.05 was, subject to the issue of proportionality, reasonably incurred.
Mr Slater refers to the fact that the Scale explicitly applies proportionality to professional costs in items 1 to 7 because the costs recoverable under those items are fixed solely or primarily by reference to a percentage of quantum. He refers to the fact that the Scale does not explicitly adopt the same approach in relation to disbursements but contends that a similar approach should be taken to the assessment of disbursements.
On the one hand, unlike professional costs which are fixed by the Scale and are fixed by a formula incorporating proportionality, disbursements under item 27 such as transcript are not fixed but are specified to be recoverable “to the extent to which they have been properly and reasonably incurred and paid”. Accordingly, the proportionality approach embodied in the Scale insofar as it addresses professional costs does not apply to disbursements.
On the other hand, even under costs regimes such as the Higher Courts costs scale, it is necessary to take into account proportionality in assessing whether costs have been a reasonably incurred. Time spent on a particular task or a disbursement incurred might be assessed as reasonably incurred in a claim for $1 million but not as reasonably incurred in a claim for $50,000.
In assessing the reasonableness of disbursements incurred under either scale, proportionality is one factor to be taken into account.
In the present case, at the time of the first interlocutory hearing in question, the amount of Mr Slater’s claim was $60,000 and, at the time of the second and third interlocutory hearings in question, the amount of his claim was $80,000.
I do not consider that a cost of approximately $2,000 for transcript of interlocutory hearings is so disproportionate to the amount in dispute as to render a cost that would otherwise be reasonably incurred as not reasonably incurred.
I allow $1,669.05 for the cost of transcript of interlocutory hearings.
Trial first tranche
Transcript of the first period of trial in March 2022 was requested in March or April 2022 by Barry Nilsson Lawyers at a cost of $10,425.30.
It is not normal practice for the Magistrates Court to produce transcript automatically of trials. As with interlocutory hearings, it is only produced on request (by a party or by a judicial officer).
Most trials in the Magistrates Court are completed within two or three or at least not more than five days and are completed in a single tranche. It is therefore unusual that transcript is requested to be produced during a trial.
In the present case, the first tranche of the trial (involving witnesses called by Mr Slater) proceeded in March 2022 and the second tranche of the trial (involving witnesses called by the respondents) proceeded in August 2022. In addition, it was ordered that the evidence in chief of witnesses to be called by the respondents be adduced (principally) by written witness statements.
In the circumstances, I am satisfied that obtaining the transcript of the evidence adduced in Mr Slater’s case in March 2022 was reasonably required by the respondents both to prepare their written witness statements and for the purposes of the second tranche of the trial.
Mr Slater contends that Ecosol and Mr Smith should recover in the Slater action only 50 per cent of the costs of transcript because the transcript was equally relevant to the Smith action and the costs should be apportioned between the two actions.
I reject Mr Slater’s contention for the same reasons as in respect of the transcript of interlocutory hearings.
I take into account the question of proportionality. At the time that the respondents purchased the transcript of the first tranche of the trial, the amount of Mr Slater’s claim was $80,000.
I accept that a cost of approximately $10,000 for transcript of the trial is a significant proportion of the amount of the claim. Taking into account that proportion, the purchase of the transcript was nevertheless reasonably required and the cost reasonably incurred.
I allow $10,425.30 for the cost of transcript of the trial.
Janic Consulting fee
On 24 November 2021, on the application of Mr Slater in the Slater action, I made an order that Ecosol and Mr Smith make specific discovery of all documents in their possession, custody or power (including any documents in the custody of Janic Consulting Pty Ltd (Janic) or Ian Charlton) copies of which were contained in the bundle of documents created by Mr Charlton that were disclosed pursuant to the Supreme Court of Queensland order dated 2 October 2018.[5]
[5] See Slater v Smith [2021] SASC 135.
Ecosol had indicated that, to comply with such an order if made, it would need to engage Janic to reconstruct the documents and that Mr Charlton had estimated that this would take approximately 45 hours. In my reasons, I expressed the preliminary view that I did not expect that the task would require that long.
I also made an order that, if Ecosol should be required to pay Mr Charlton to produce documents in his custody for the purpose of compliance with the order, the reasonable costs paid to Mr Charlton would be recoverable by Ecosol from Mr Slater if an order were made that he pay its costs of action notwithstanding that those costs might otherwise be taxable on the Scale.
Janic rendered an invoice to Ecosol on 1 July 2022 for $4,933.50 comprising $4,485 plus GST. The amount was calculated based on 39 hours at $115 per hour for time spent between 1 and 7 December 2021 compiling documents to be discovered pursuant to my order.
Mr Charlton on 22 April 2024 provided details of the work undertaken the subject of the invoice. Those details show that Mr Charlton undertook extensive searches of electronic files and email databases. He did not charge for three and one-quarter hours of initial work spent on 26 and 27 November 2021. He did not charge for some subsequent work, particularly discussions with his instructors.
Ecosol seeks recovery of $4,933.50 pursuant to my order.
Mr Slater contends that the time spent by Mr Charlton totalling 39 hours was excessive. In light of Mr Charlton’s explanation of the work that he undertook, I am satisfied that the time spent for which he charged was reasonable. Although I initially expressed the opinion before the work was undertaken that 44 hours was an overestimate, I did not then have detailed knowledge of the scope of the work required to be undertaken.
Mr Slater contends that Ecosol and Mr Smith should recover in the Slater action only 50 per cent of this disbursement because the documents were equally relevant to the Smith action and the costs should be apportioned between the two actions.
I accept that the documents were equally relevant to the Slater action and the Smith action. However, the order for discovery was made against Ecosol and Ecosol incurred the disbursement. Ecosol is entitled to recover the full amount of that disbursement in the Slater action. Whether Mr Slater is entitled to recover part of that disbursement from Mr Smith in the Smith action is a matter to be determined in the Smith action.
I allow $4,933.50 in respect of the amount paid by Ecosol to Janic.
Searches
Ecosol and Mr Smith claim $52.50 for the cost of two Court searches and $102.10 for Land Title Office searches in respect of land owned by Mr Slater, which Mr Slater does not oppose.
I allow $154.60 for searches.
Travel costs
Ecosol and Mr Smith initially claimed a total of $1,523.57 for travel and accommodation for Mr Smith’s attendance at trial in August 2022 (evidence) and a total of $853.53 for travel and accommodation for Mr Smith’s attendance at trial (closing addresses) in February 2023.
Mr Slater contended that these costs should be characterised as costs of the Smith action or alternatively Ecosol and Mr Smith should recover in the Slater action only 50 per cent of these disbursements because Mr Smith’s attendances at trial were equally required for the Smith action.
Subsequently, Ecosol and Mr Smith informed me that Ecosol had only reimbursed Mr Smith for 50 per cent of these travel costs and conceded that the claim should be reduced to 50 per cent of the cost incurred by Mr Smith.
The circumstances in which these travel costs were incurred are different to the circumstances in which the transcript costs (and Janic costs) were incurred. When the travel costs were incurred, Ecosol was represented in the Slater action (pursuant to leave granted) by Mr Smith and Mr Smith was representing himself in the Smith action. If the Smith action did not exist, Mr Smith would still have been required to attend to represent Ecosol in the Slater action. If the Slater action did not exist, Mr Smith would still have been required to attend to represent himself in the Smith action.
In these circumstances, it cannot be said that Mr Smith’s attendance (and the attendant costs) were singly caused by the prosecution of the Slater action or by the prosecution of the Smith action. They were caused independently by the prosecution of each action.
In those circumstances, it is appropriate to allocate the travel costs equally between the Slater action and the Smith action. Ecosol and Mr Smith should therefore recover 50 per cent of the travel costs in the Slater action (and Mr Smith will bear the other 50 per cent as a result of unsuccessfully prosecuting the Smith action).
I allow $1,188.55 for travel costs.
Total disbursements
The total disbursements allowed are $18,781.
Costs argument
As observed above, Ecosol and Mr Smith claim attendances under item 9 for the hearings on 14 September 2023 and 27 November 2023 at which argument was heard on their costs applications, and on 6 March 2024 when I delivered judgment on the costs applications. They also claim the cost of transcript obtained in November 2023 which was obtained for the purpose of the costs applications.
On the one hand, the principal issue addressed at the hearings on 14 September 2023 and 27 November 2023 was the question whether indemnity costs should be ordered against Mr Slater in the Slater action. Mr Slater was successful on that issue.
On the other hand, Ecosol and Mr Smith sought in the alternative an order that Mr Slater pay their costs of the Slater action in accordance with the Scale. Mr Slater advanced various arguments against such an order, on which he was generally unsuccessful.
In the circumstances, Ecosol and Mr Smith should recover in respect of one only of the three hearings. I allow costs under item 9 in respect of the hearing on 27 November 2023.
The transcript obtained by Ecosol and Mr Smith in November 2023 was not required for the purposes of their alternative costs application but may have been required for the purposes of their principal indemnity costs application. They should not recover the costs of that transcript given their failure on the principal indemnity costs application.
I allow $160 under this heading.
Conclusion
I fix the amount of costs payable by Mr Slater to Ecosol and Mr Smith pursuant to my order dated 6 March 2024 at $55,741.

[2024] SASC 70

29 May 2024