Winn v Garland Hawthorn & Brahe
[2006] VSC 476
•14 December 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 3503 of 2005
| JULENE WINN | Plaintiff |
| v | |
| GARLAND HAWTHORN & BRAHE | Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29, 30 November 2006 | |
DATE OF JUDGMENT: | 14 December 2006 | |
CASE MAY BE CITED AS: | Winn v Garland Hawthorn & Brahe | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 476 | |
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COSTS – Taxation – Solicitor’s bill of costs for acting for client on application for leave to appeal from Recessions of Victorian Civil and Administrative Tribunal – Allegations of delay, incompetence and negligence – whether question may be determined on a taxation of costs – Supreme Court Rules r.63.23 – Abrahams & Anor v Wainwright Ryan [1999] 1 VR 102 considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms Winn (in person) | |
| For the Defendant | Mr E Moon | Garland Hawthorn & Brahe |
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HIS HONOUR:
This is an appeal by the plaintiff, Ms Julene Winn, from an order of the Taxing Master, Master Wood, dated 19 October 2006. That order was made on an application by the plaintiff for the review of a previous order dated 6 June 2006 by which the Master had taxed a bill of costs rendered to the plaintiff by her former solicitors, the defendant.
The appeal came before the judge in the Practice Court, who referred the hearing of the appeal to me.
The matter has a long and rather complicated history. For the purposes of the matters that are currently in dispute that history may be summarised briefly. The plaintiff was a party to a number of proceedings before the Victorian Civil and Administrative Tribunal (“VCAT”). Three of those proceedings were numbered 4215, 4216 and 4217, respectively, of 2002. The Tribunal announced its decisions in those proceedings in December 2001. The plaintiff consulted the defendant in relation to those decisions, and as a consequence, the defendant acted for the plaintiff as her solicitor until July 2002. During that time the defendant, on behalf of the plaintiff, instituted three applications for leave to appeal from the decisions of VCAT. The defendant rendered the plaintiff three bills of costs for that work totalling $49,872.06. The plaintiff responded by requesting an assessable bill of costs. In November 2003 the defendant issued proceedings in the Magistrates’ Court claiming $37,872.06 costs plus interest.
On 7 December 2004 the plaintiff filed an originating motion in these proceedings seeking leave to issue a summons for the taxation of the defendant’s costs pursuant to s.115 of the Legal Practice Act 1996 (Victoria), seeking an order that the defendant provide a bill of costs in taxable form, and seeking a stay of the Magistrates’ Court proceeding. On 16 February 2005 the plaintiff issued a summons in the proceeding for taxation of the defendant’s costs.
On 26 May 2005 Master Bruce, the then Taxing Master, made an order that the defendant file and serve a bill of costs in taxable form, and that there be a stay of the Magistrates’ Court proceeding. Accordingly the defendant, on 22 July 2005, filed a bill of costs in taxable form. The plaintiff responded by a notice of objection dated 15 August 2005. She provided a further notice of objection dated 29 August 2005. I shall refer, in due course, to those notices. As a result of the matters raised in the notices, Master Bruce, on 31 August 2005, ordered that the plaintiff show cause at the call over on 27 September 2005 why the order staying the Magistrates’ Court proceeding should not be lifted. In the “other matters” part of the order, the Master stated:
“The reason for the directions below is that the question of negligence (sic) more appropriate for decision in the Magistrates’ Court.”
As a result of that order, the applicant filed a further document dated 28 November 2005 entitled “Objections to Costs”, listing her objections to the defendant’s bill of costs. On 16 December 2005 Master Bruce commenced to conduct the taxation of the defendant’s bill of costs. That bill contains 183 items. It is common ground that Master Bruce taxed the bill of costs up to and including item 160. In conducting that taxation, he reduced the items, taxed by him, by some $3,330.
Master Bruce retired as the Taxing Master in March of this year. Subsequently Master Wood fixed the adjourned taxation to 5 and 6 June 2006. On 15 May 2006 the plaintiff filed an affidavit on which she intended to rely at the hearing of the adjourned taxation. In due course Master Wood resumed the taxation, and completed it on 6 June 2006. On that date the Master, pursuant to s.115 of the Legal Practice Act, ordered that the costs of the defendant be assessed at $21,642.90. He made no order as to costs.
On 19 June 2006 the plaintiff filed a notice of application for review of the order of the Taxing Master, pursuant to Order 63.56(1) of the Rules of the Supreme Court. In support of that application she filed an affidavit sworn 22 August 2006. On 2 October the defendant filed, and served on the plaintiff, written submissions in response to the application by the plaintiff for review. On 19 October the Taxing Master, on the return of the application for review before him, made orders to the following effect:
1.That the order of 6 June 2006 be vacated on review.
2.That the summons for taxation filed by the plaintiff on 17 February 2005 be dismissed.
3.That the stay of the Magistrates’ Court proceeding granted by the order of Master Bruce of 25 May 2005 be lifted.
4.That the plaintiff pay the defendant’s costs fixed in the sum of $10,000.
The Master provided written reasons for making those orders. In those reasons the Master recited the history of the matter, referred to an advice received by the plaintiff from Mr C. Maxwell QC (now President of the Court of Appeal) in May 2005, and reviewed the further affidavit sworn by the plaintiff of 22 August 2005. He concluded that the plaintiff, in response to the bill of costs served by the defendant, was not asserting negligence in relation to isolated items or tasks, but that the allegations made by the plaintiff were pervasive and went to the whole matter in which the defendant was retained by her. Accordingly the Taxing Master held that the matters of objection raised by the plaintiff were not appropriate for him to deal with under Order 63.23, but that, rather, they were matters which would need to be litigated in separate proceedings. For those reasons the Taxing Master vacated his earlier order made on 6 June 2006, dismissed the summons for taxation and lifted the stay order made by Master Bruce on 25 May 2005.
The appeal
Although the appeal from the Master is a hearing de novo, the issue in the present appeal is somewhat more limited. In effect, the Taxing Master refused or dismissed the application by the plaintiff to review the order for taxation of 6 June 2006, because he considered that the matters raised by the plaintiff were not legitimate objections to a taxable bill of costs. The question which I need to determine is whether, in fact, those matters are fit for consideration as objections to the bill of costs or whether, as found by the Master, they are matters which need to be determined in separate proceedings. If I come to the former conclusion, then it is common ground between the parties that I should allow the appeal, set aside the order of the Taxing Master of 19 October, and direct that the review, which is the subject of the application by the plaintiff, proceed before the Taxing Master.
Legal principles
The question which arises concerns the extent to which, on a taxation of costs, errors or omissions by a solicitor may constitute a basis upon which the Taxing Master may disallow or reduce an item or items on the solicitor’s bill of costs. Order 63.23(1) is the relevant provision of the Rules of the Supreme Court. It provides:
“Where a solicitor for a party, whether personally or through a servant or agent, has caused costs to be incurred improperly or without reasonable cause or to be wasted by a failure to act with reasonable competence and expedition, the court may make an order that –
(a)all or any of the costs between the solicitor and the client be disallowed or that the solicitor repay to the client the whole or part of any money paid on account of the costs.”
That provision was considered by the Court of Appeal in Abrahams & Anor v Wainwright Ryan[1]. In that case the appellants had engaged the respondent solicitors to act for them in respect of a number of disputes which they had with their neighbour. The appellants filed a detailed notice of objection to the bill of costs submitted by the respondents. Those objections principally concerned the manner in which the respondents had acted on their behalf, and contained a number of criticisms as to various steps which the respondents had taken or had failed to take, in acting in the dispute. In the course of his judgment, Brooking JA (with whom Winneke P agreed) noted that, before the decision of the Court of Appeal in Re Massey & Carey[2], it was possible to find in the reported cases support for two opposing and extreme views whether the Taxing Master could disallow items in a bill of costs on the ground that the solicitor had done the work negligently. At one extreme, of which the decision of Phillimore P in The Papa de Rossie[3] was an example, was the view that a bill of costs may be entirely disallowed on the grounds that the litigation to which it related had been negligently instituted by the solicitor, when the solicitor ought to have known that the litigation had no reasonable prospect of success. At the other extreme was the decision of the Court of Appeal in Re Clark[4], namely that the Taxing Master was not concerned at all with the question of negligence, so that not even a single item could be disallowed on the ground that the work had been done negligently or that it had been made necessary because of the negligence of the solicitor. In Abrahams’ case, Brooking JA referred to and accepted the view of the Court of Appeal in Re Massey & Carey, namely, that the correct approach lies midway between the two extreme views.
[1][1999] 1 VR 102.
[2](1884) 26 Ch D 459.
[3](1878) 3 PD 160.
[4](1851) 13 Beav 173; 51 ER 67.
In Massey & Carey, the appellants acted as solicitors for Mr Wood, in a matter in which he was the defendant. By inadvertence the solicitors omitted to deliver, within the time prescribed by the Rules, a rejoinder to the reply that had been delivered by the plaintiff. The solicitors made an application for leave to file the rejoinder out of time. That leave was granted by the Court on the terms of the defendant paying the costs of the applicant. The solicitors paid those costs, and then charged them against Mr Wood in the bill of costs. The Registrar disallowed those costs on taxation. On appeal, the Vice Chancellor affirmed the decision of the Registrar. The solicitors appealed to the Court of Appeal, which also dismissed their appeal. The Court held that omissions and oversights of the type which had occurred in that case were matters which could properly be raised in an objection to a bill of costs. Bowen LJ stated:
“It is true that at common law the taxing master has not the power to decide the question of negligence in all cases. If the negligence goes to the loss of a whole action he cannot then entertain the question; but if it relates only to certain proceedings in the action he can. Otherwise the unfortunate result would be that if there was a question as to the propriety of a particular step in the action, as to which no man is better able to decide than the Taxing Master, you place the client in the position that he would have to pay the charge and then bring an action to get it back from the solicitor. It seems to me that the Taxing Master has the power to decide, and that he ought to decide, such questions without prejudice to the right of a client to bring an action.”[5]
[5]At pages 463-4.
In Abrahams, the appellant clients raised a significant number of diverse objections to the bill of costs rendered by the respondent solicitors. Those objections included: the proceedings in the Supreme Court had been taken negligently since the easement asserted on behalf of the appellants did not exist; the bill of costs should be disallowed in its entirety because the proceedings had been taken in the Supreme Court while the dispute was still unresolved in the Magistrates’ Court; the solicitors had led the appellants to believe that the total costs of litigation would be no more than $7,000, and had not warned them that a three day hearing in the Supreme Court might cost seven times that amount; the proceeding should have been brought in the Magistrates or County Court rather than the Supreme Court; the solicitors failed to properly ascertain the facts and the law before commencing the proceedings, and failed to obtain advice and competent counsel as to the prospects of success of the case; and the solicitors failed to properly instruct counsel, to provide an instructing solicitor to counsel, to call available witnesses, and to take other appropriate steps in the litigation. The taxation of the appellants’ costs involved some complications, which it is not necessary to recite here. On appeal to the judge in the Practice Court, Beach J, before whom the matter came, held that it was probable that the appellants would have chosen to sue in the Supreme Court even if they had been advised of other possible alternative courses. His Honour therefore held that the solicitors were entitled to their costs (excluding only costs referrable to an application for interrogatory relief). The appellants appealed from that decision to the Court of Appeal. Their appeal was unanimously rejected.
In the course of his judgment, Brooking JA referred to the conflict in the authorities which preceded the decision of the Court of Appeal in Re Massey & Carey. His Honour then referred to Massey & Carey, and stated:
“When the nature, number and variety of the Abrahams’ complaints became known it should have been realised that the only satisfactory way of resolving the matter was for them to seek to establish their allegations in an action against the solicitors, who were said by them to have done everything badly.”[6]
[6]Page 118.
His Honour then recited the various objections taken by the appellants to the solicitor’s bill of costs and concluded that Beach J was correct in deciding that he should not make an order under Order 63.23. His Honour concluded that additionally the allegations contained in the notice of objection were “ ... a congeries of claims not fit to be dealt with under the Rule”.[7]
[7]Page 119.
Phillips JA delivered a short concurring judgment in which his Honour agreed with the judgment of Brooking JA. Phillips JA added:
“To my mind, the nature and extent of the allegations of negligence made by the Abrahams against their former solicitors in the course of the proceedings that have taken place over the solicitors’ bill of costs, are such that they could properly have been determined only in an action. The allegations of Mr and Mrs Abrahams amount in substance to a claim for damages from Wainwright Ryan. The Abrahams are not seeking simply to oppose the allowance of certain items of costs on taxation; for they invoke Rule 63.23. But neither are they simply making an application under Rule 63.23, for the claims go beyond what is in contemplation by that Rule. As I see it, Rule 63.23 provides for summary relief where, by reason of some specific act, neglect or default on the part of a practitioner, a procedural step along the way has been so taken or not taken as to occasion costs improperly or unnecessarily or to cause costs to be wasted; where the case is plain enough, a summary remedy is available under Rule 63.23 … That was the view of the Rule taken by Beach J and, with respect, I agree. It is unnecessary to express any further opinion about what is or is not within the ambit of the Rule because on any view the case which the Abrahams have been raising against their former solicitors goes well beyond what Rule 63.23 has in contemplation.”[8]
[8]Pages 119-120.
In my view the following propositions may be derived from the foregoing review of the authorities:
(1)The fact that an objection to a bill of costs may involve an allegation of a negligent error or oversight on the part of a solicitor does not mean that it is not a proper objection to be dealt with on a taxation of costs.
(2)On the other hand, when the nature, extent and effect of the objections go beyond an allegation of negligence in respect of a specific step, or specific steps taken by the solicitors, but relate to the conduct of the whole proceeding, then those matters would not be appropriate grounds for objection to a bill of costs but, rather, ought to be raised in separate proceedings between the client and the solicitors.
(3)There is no sharp line of distinction between what is, and what is not, a matter which is a proper for taxation in accordance with the above principles. The number, nature, variety and extent of the allegations made by the client in objecting to the bill are relevant to determining that question.
It is with those principles in mind that it is necessary, therefore, to examine the objections made by the plaintiff in her notice of application for review of the Taxing Master’s order. Those objections were elaborated by the plaintiff in her affidavit in support of that application sworn 22 August. In addition, Ms Winn, at my invitation, outlined at some length the manner in which she would be contending that those objections to the bill of costs should be upheld.
Based on those matters, there are, broadly speaking, nine categories of objection raised by Ms Winn in her application to review, which is the subject of this appeal. Those categories are as follows:
(1)The defendant issued three originating motions in respect of the VCAT decisions against her, when it would have been sufficient to have issued one application. The defendant should not have issued an originating motion in VCAT action number 4215 of 2002 (Winn v Blueprint) because that matter was decided in her favour. It was not necessary to issue an originating motion seeking leave to appeal the decision of VCAT in action number 4216 of 2002 (Winn v Goodwin) because the amount involved in that proceeding was wholly disproportionate to the potential costs of the application for leave to appeal to the Supreme Court. Ms Winn submitted that the following items in the bill of costs are affected by this objection: items 8 to 12, 15, 17, 28, 34, 94 to 99, 116 to 120.
(2)On a number of occasions the defendant briefed counsel or conferred with counsel when it was unnecessary to do so. The solicitor should have had sufficient expertise to have undertaken the work itself without incurring the additional expense of briefing and conferring with counsel. This objection was raised to items 21 to 26, 29, 41, 66 to 69, 80, 82, 123 and 124.
(3)The solicitor charged for work which in fact had been carried out by the plaintiff herself. Items 27, 132, 133, 157.
(4)The solicitor charged for work which was unnecessary. Items 32, 78, 84, 85, 87, 132, 133, 164 to 167.
(5)The solicitor charged two items of cost (items 37, 38) for conferring with the Secretary to the Board of Examiners concerning the impact on the plaintiff of the decisions of VCAT. The solicitor should have had sufficient knowledge that they did not need to confer with the Secretary.
(6)The solicitor delayed in filing or serving documents, and in carrying out other steps, which resulted in further attendances which caused further costs to be incurred. Items 39, 40, 45, 52, 55 to 58, 63, 64, 71, 72, 100, 101.
(7)The solicitor failed to prepare properly a number of documents or carry out other steps, as a result of which the work which was done by the solicitor had to be redone. The costs of redoing the work should not have been charged to the client. Items 67, 68, 76, 88, 89 to 93.
(8)Some items of costs were incurred because the solicitor failed to apply promptly to VCAT for a stay of its orders. Items 102 to 113, 154, 155.
(9)The solicitor failed to institute the application for leave to appeal against the orders of VCAT in the time prescribed by the Rules of the Supreme Court, and accordingly incurred further costs in making an application for leave to institute that application out of time. Items 126 to 131, 134, 140, 153, 161, 162, 163, 169 to 172, 173.
Pausing there, individually, each of the matters to which I have referred are, on the their face, matters with which Taxing Masters have traditionally dealt. The first five categories of objection do not, in substance, arise from any alleged negligent act or omission by the solicitor. The last four objections involve allegations that the solicitor incorrectly did, or failed to do, something in acting for the client. However, they relate to specific items charged in the bill of costs. They allege that the solicitor caused the costs, claimed in the bill, to be incurred or duplicated, because of the error or neglect of the solicitor. As such, they are not dissimilar to the type of objection which are ordinarily resolved on a taxation of costs. None of them would, it seems, involve the unravelling of a complex set of facts. Indeed, in respect of the ninth category, it is common ground that the defendant solicitor made an error in respect to the time within which it was necessary to seek leave to appeal.
I should add that my summary of the objections is, perhaps, somewhat simplistic. As pointed out by Mr Moon, both the affidavit material, and also the argument advanced before me, contain allegations of somewhat broader complexion. For example in explaining the second type of objection – the excessive briefing of counsel – Ms Winn told me, in argument, that she had been led to believe that the defendant had skill and experience in the type of work in which she had instructed them, and there was no discussion about the need or desirability of briefing counsel to prepare the documentation necessary for her application to seek leave to appeal from VCAT. Nonetheless, the summary of the objections which I have set out above does, I consider, fairly distil the central features of each of the complaints which Ms Winn has sought to put forward in support of her application to review the previous order of the Taxing Master. As I have stated, each of them, alone and individually, are matters which, I consider, are matters upon which a Taxing Master might ordinarily rule. No doubt some of them may involve some issues of fact. For example, the seventh category, involving the failure to properly prepare documents, may involve some assessment of the documents that had been prepared, and even some explanation as to why the first draft of the document was not prepared properly. However I would expect that that type of complaint is a matter with which the Taxing Master is accustomed to dealing.
The largest item in the bill of costs is item 179, entitled “Instructions for Brief”. The solicitors claimed the sum of $16,200 for that item. On 6 June Master Wood taxed off $11,200 from that item, and allowed the sum of $5,000. In her application for review Ms Winn stated her objection as follows:
“179. Disallow. I rely on all previous submissions and affidavits filed. I rely on affidavit and documents produced at the review hearing.”
That statement gave little insight as to the nature of the objection to be made by Ms Winn. However in oral argument before me[9] Ms Winn made it plain that she relied on two principal submissions in support of her contention that the items should be reduced to zero. First, she submitted that the matters referred to in the “Instructions for Brief” included items which had been specifically charged earlier in the bill of costs. Secondly, Ms Winn relied on the failure of the solicitor to provide information to her, at the time of her retainer, pursuant to s.86 of the Legal Practice Act, and a failure to provide an itemised bill of costs. As expressed in that matter, the objection by Ms Winn to item 179 is the type of objection with which a Taxing Master is accustomed to dealing. Indeed, a failure of a solicitor to comply with s.86 of the Legal Practice Act may only be invoked, in response to a bill of costs, on a taxation of costs.[10] It would not constitute the basis of resisting, wholly or in part, a claim by a solicitor against a client in an action in debt.
[9]Transcript 43 to 44.
[10]Section 91(a).
During the taxation, an issue was raised between the parties as to the advice given to Ms Winn by Mr Maxwell QC (as he then was), in which he suggested that the proceedings at VCAT could have been challenged on the grounds that the oral reasons for decision given by VCAT differed from the written reasons later provided by VCAT. The draft notices of appeal from the decisions of VCAT had not included that ground. The failure of the defendant to include such a ground in the draft notice for application for leave to appeal was, it would seem, raised in the plaintiff’s notice of objections dated 28 November 2005. In that document an objection was made that item 179 should be disallowed in total because it was “incurred as a result of solicitors’ erroneous advice that led to proceedings being issued and negligently conducted”. It is not clear from the record whether the advice was before Master Bruce on 16 December 2005 or Master Wood on 6 June 2006. The written submissions of the respondent dated 2 October 2006 which were before Master Wood on 19 October 2006, suggest that the advice was before the Taxing Master and it was on the basis of that advice that the item was reduced from $16,200 to $5,000. Be that as it may, in submissions before me, Ms Winn made it clear that in her objection to item 179, she was not contending that the solicitors negligently caused the loss of the whole application for leave to appeal; rather, her submission went to the quantum which should be allowed for the work carried out by the solicitor.[11]
[11]Transcript pages 83 to 84.
The principal submission by Mr Moon on behalf of the defendant was that, when considered collectively, the objections by the plaintiff to the defendant’s bill of costs amount to widespread and pervasive allegations of negligence by the defendant which are not appropriate to be dealt with by the Taxing Master under Order 63.23. Mr Moon submitted that the allegations relate to nearly each aspect of the conduct by the defendant of the proceedings, and that it could not be said that they only relate to a particular step or to discrete steps in the proceeding. Thus he submitted that, of the 108 grounds relied on by the plaintiff, some 91 could be said to be based on allegations of negligence by the defendant. Mr Moon submitted that the objections in the present case are similar to the type of allegations made by the clients in Abrahams’ case, which the Court of Appeal held were so pervasive that they were not appropriate objections under Order 63.23, but, rather, should have been the subject of separate proceedings by the client against the solicitor.
In Abrahams, the Court of Appeal considered that the large number of the complaints made by the client was a relevant circumstance in determining this question. However, the quantity of objections to a bill could not, alone, be determinative of the issue. If a large number of items in a bill were unnecessary, or were occasioned by the solicitor’s delay, or were due to the incompetence of the solicitor so that the work performed by the solicitor had to be redone, that of itself would not necessarily have the result that the complaints made by the client could not be considered under Order 63.23. Indeed, a number of grounds for rejecting items in a bill of costs, commonly relied on before a Taxing Master, do arise from errors, omissions or acts of neglect by a solicitor. Thus costs incurred by a solicitor on behalf of a client because of the failure of the solicitor to bring an application or institute proceedings on time may well have been caused by the neglect of the solicitors. However, that would not be a valid basis for declining to entertain such an objection.
It is necessary to bear in mind the nature , as well as the number, of the allegations that are made by the client in the objections. As I have already stated the objections raised are, at least in the main, the type of objections with which a Taxing Master ordinarily deals. They are, I consider, significantly different to the type of allegations made in Abrahams. In that case Brooking JA summarized those allegations in detail,[12] and described them as a “potpourri” of complaints. They pervaded each of the steps taken by the solicitors on behalf of Mr and Mrs Abrahams. As observed by Phillips JA, they were matters which could only be properly raised and determined in a separate action for damages by the client against the solicitor. In the present case, as I have noted, there are nine categories of complaints made by Ms Winn. They are of a different nature to those in Abrahams. Nor are they as diffuse or variegated as the type of allegations noted by Brooking JA in Abrahams’ case. Indeed the central complaints made by Ms Winn comprise three main allegations, namely, the making of three applications rather than one application to set aside the VCAT decisions, the unnecessary briefing of counsel, and the incurring of costs arising out of the solicitor’s delay or failure to take steps within time. Those allegations are to be contrasted with the extraordinarily broad raft of allegations made by the client in Abrahams’ case, a significant number of which could only be properly agitated in a common law proceeding between the client and the solicitors.
[12]At pages 118-119.
It is true that some of the complaints by Ms Winn, as expressed in her notice of objection, in her affidavit, and in oral argument before me, could be said to be on the border of matters which might be more suitably agitated in separate proceedings rather than before the Taxing Master. However, when viewed as a whole, I consider that, in substance, the objections by the plaintiff are objections of the type which might be properly considered within Order 63.23.
That conclusion is supported by the history of these proceedings. In August 2005, the plaintiff filed and served notices of objection to the bill of costs served by the defendant. The second notice, dated 29 August, commenced with a significant critique of the work conducted by the defendant on her behalf, and sought to have each item in the bill disallowed. That notice of objection caused Master Bruce, on 31 August, to order the plaintiff to show cause why the stay in the Magistrates’ Court should not be lifted. In response the applicant, on 28 November, provided a document entitled “Objections to Cost”. That document contained a large number of objections, but substantially less than the notice dated 29 August. The matter proceeded to taxation. On 16 December Master Bruce taxed the bill up to item 160, and in doing so taxed off some $3,330. The matter was then adjourned part heard. It returned before Master Wood on 5 and 6 June. In the meantime the plaintiff had filed a further affidavit sworn 15 May.
In filing that affidavit the plaintiff alleged that the defendant’s conduct of the matter “as a whole and in each of the steps it undertook” involved erroneous advice and unnecessary and negligently performed work. At paragraph 14 the plaintiff deposed that the defendant failed to include grounds of appeal in the application for leave to appeal, as a consequence of which the application failed. Master Wood completed the taxation of costs on 5 and 6 June. In doing so he taxed off a further $13,732 (including as I have noted $11,200 for the “Instructions for Brief”, item 179).
From that history it is evident that the Taxing Masters, on each of the occasions the matter was before them, did not consider that the matters raised by the plaintiff in her notice of 28 November 2005 or in her supporting material were unsuited to be dealt with under Order 63.23 or otherwise on a taxation. On the taxation, a number of the plaintiff’s objections were obviously upheld, so that more than forty per centum of the original bill was taxed off by the Masters in December 2005 and June 2006.
The plaintiff then sought review of the taxation pursuant to Order 63.56, which provides:
“(1) Where any party interested objects to an order of the Taxing Master allowing or disallowing, wholly or in part, any item in a bill, or allowing some amount in respect of any item, the Taxing Master may, on the application of that party, review the order.
…
(5) Upon the application the Taxing Master –
(a)shall reconsider and review the taxation upon the objection stated in the notice; and
(b)shall make an order confirming the taxation or make such further or other order as may be necessary.”
For the purposes of the review the plaintiff filed further grounds of objection. That notice contained less grounds of objection than the original notice of 28 November. The grounds which remained were, by and large, either identical with or similar to the grounds stated in the notice of objection of 28 November. In support of the application the plaintiff filed an affidavit sworn 22 August. That affidavit addressed the grounds of objection raised by the plaintiff. Master Wood considered that the affidavit contained “pervasive allegations of negligence”. It was that consideration which caused the Master to make the orders refusing the application for review, and also vacating his previous order of 6 June, and dismissing the summons for taxation in its entirety.
In considering the plaintiff’s affidavit of 22 August, it must be borne in mind that that affidavit was directed to the grounds of objection contained in the plaintiff’s notice of application for review dated 16 June 2006. As I have stated those grounds were, to a large extent, the same as the grounds contained in the notice of objection of 28 November 2005, which had been the subject of a taxation which had concluded on 6 June 2006.
It is true, as noted by the Taxing Master in his reasons of the decision dated 19 October, that the affidavit of the plaintiff of 22 August contains allegations that the defendant acted erroneously, that the defendant took unnecessary steps, and that it prepared documents incorrectly and out of time. However, I do not consider that that affidavit altered the fundamental character of the notice of objection. The use of words such as “erroneous” and “negligently”, in the affidavit, should not obscure the true nature of the fundamental objections made by Ms Winn to the bill of costs of the defendant which had been the subject of the taxation. When considered in conjunction with the Notice of Application for review, I do not consider that the affidavit so altered the nature and number the plaintiff’s objections that they are no longer fit for taxation.
I turn then to the parts of the affidavit which the Master considered to contain “pervasive allegations of negligence” so that “the vast majority of the items objected to now can be characterised as allegations of negligence on behalf of the defendant”.[13] The Master referred to the following paragraphs in the plaintiff’s affidavit:
[13]Master’s reasons paragraph 21.
(a)Affidavit paragraph 13. In this paragraph the plaintiff stated that she believed that the advice given to her by the defendant, to seek leave to appeal to the VCAT decision, was “erroneous”. This paragraph needs to be read in its context. Paragraphs 12 and 13 of the affidavit are, it seems, directed to item 7 of the bill of costs. Item 7 was for the sum of $85.80 for perusing the reasons for decision of VCAT. The ground of objection in the notice of application for review stated that the costs were unnecessary, and the solicitor should not have requested the written reasons as the oral reasons were included in the transcript. In this context paragraph 13 is an irrelevant aside.
(b)Affidavit paragraph 14. “The defendant erroneously issued three originating motions.” That statement in the affidavit needs to be read in context. The complaint of the plaintiff, contained in the grounds of objection and also in the rest of paragraph 14, is that the defendant should have only issued one originating motion, because it was not necessary to appeal two of the three VCAT orders.
(c)Affidavit paragraph 16. “The course of action he subsequently took was incorrect … I am now aware that that advice is incorrect.” When each of those two sentences are read in the context of the whole paragraph, and in the context of the objections to the bill of costs, the plaintiff was complaining of the issue of three applications for leave to appeal the VCAT decision, when only one was necessary.
(d)Affidavit paragraph 21. “An appeal against the order in Winn v Blueprint should not have been instituted.” Again, this statement was a complaint that only one of the three VCAT decisions should have been the subject of an application for leave to appeal.
(e)Affidavit paragraph 28. “This was unnecessary if the defendant had conducted the matter competently.” That statement was directed to the objection to item 52 of the bill of costs. That item was for attending at the court to amend the return dates of summons. The objection to the item was that the amendment to the return date was necessary because the solicitor had failed to have the matter ready for hearing on the due date.
(g)Affidavit paragraph 30. “The documents were incorrectly and negligently compiled in that the main grounds of appeal were omitted.” The objection in the application for review states “Incurred without instruction, poorly prepared. Repeats costs claimed in (item) 23.” Read as a whole, and apart from the sentence quoted by the Master, paragraph 30 otherwise addresses that notice of objection. Paragraph 30 of the affidavit commences by stating that the costs were unnecessary because the defendant should have been capable of preparing the affidavits and the notices of appeal, the plaintiff did not instruct the defendant to engage counsel, and the plaintiff understood that the defendant was preparing the appeal documents. The allegation of “negligence” in paragraph 30, quoted by the Master, is an allegation which places the objection on the border of what is and what is not permissible under Order 63.23. However, the main thrust of paragraph 30 comprises the allegation that the solicitor should have done the work rather than counsel.
(h)Affidavit paragraph 31. “… caused by the failure of the defendant to properly prepare the documents.” The complaint in this paragraph was that the affidavit was unsatisfactory and had to be redone. The conference with counsel was unnecessary. The affidavit refers to the three items in the bill which related specifically to attendances for the finalisation of the plaintiff’s draft affidavit. In my view the matters raised in the affidavit were directed specifically to those items and not to some widespread allegation of negligence.
(i)Affidavit paragraph 32. “The defendant had negligently failed to serve …” This is an allegation of the failure of the defendant to serve the originating motions and summonses on one of the respondents to the applications for leave to appeal in January 2002. The allegation relates to a specific step in the proceeding.
(j)Affidavit paragraph 33. “… caused by the defendant’s negligence in not preparing the affidavit.” The balance of the paragraph stated that the conference repeated previous conferences. Accordingly the conference was unnecessary and was caused by the defendant’s negligence in failing to prepare the affidavit properly.
(k)Affidavit paragraph 34. “I state that this was a negligently incurred cost.” The effect of the notice of objection, and the balance of paragraph 34 of the affidavit, shows that the objection was that the cost was unnecessarily incurred after the affidavit had been finalised, and that it served no use.
(l)Affidavit paragraph 35. “I state that this was unnecessary and caused by the defendant’s negligence.” The items objected to related to conferences with counsel. Paragraph 35 alleged that those items were unnecessary and caused by the defendant’s negligence and “inability to prepare an affidavit”. Read in context the objection concerned the failure of the defendant, rather than counsel, to do the work.
(m)Affidavit paragraph 36. “This was incurred as a result of the first affidavit not having been prepared properly by the defendant.” That allegation was that the items of costs in question (items 88 and 89) for had to be redone because the defendant had failed to do them properly.
(n)Affidavit paragraph 37. “I state that the document was negligently prepared.” That paragraph of the affidavit proceeded to state that some documents were poorly photocopied and presented, the defendant failed to include a main exhibit, failed to file any exhibit, and had retained the original exhibits. Again the allegation of “negligence” needs to be considered in the context of the objection itself.
(o)Affidavit paragraph 38. “I state that the affidavit was negligently prepared …” Again that objection related to two specific items in connection with the swearing and service of the affidavit.
(p)Affidavit paragraph 39. “I state that these proceedings were unnecessary and negligently instituted and conducted.” That affidavit relates to proceedings numbers 4215 and 4216, and repeats the point that only one of the three VCAT orders should have been the subject of the application for leave to appeal.
(q)Affidavit paragraph 40. “This was caused by the defendant’s failure to prepare the document properly and to file it in time.” The items objected to (items 100 and 101) related to the need to adjourn the application because of the delay in service of the affidavits. Again the objection related to a specific item in the bill.
(r)Affidavit paragraph 41. “As stated the costs were incurred by the defendant’s failure to apply for a stay of the VCAT order …” The objections (to items 102 to 114) addressed in this paragraph of the affidavit are objections to specific items relating to the application for the stay of the VCAT order.
(s)Affidavit paragraph 42. “As stated the costs related to this appointment were incurred by the defendant’s negligence in failing to progress the matter competently.” The two items in question (items 114 and 115) related to two short attendances, for which the solicitor charged $41. As I understand it, the objection by the plaintiff related to the failure of the defendant to act without undue delay.
(t)Affidavit paragraph 54. “As stated the defendant performed this negligently.” Paragraph 54 addresses the objection to item 168, which charged $600 for the solicitor attending as counsel at VCAT for two hours. The matters set out in paragraph 54 of the affidavit are, at best, on the border of what is not permissible under Order 63.23. However, I do not I consider that they take the objections raised by the notice of what is outside of what is permissible under Order 63.23.
The foregoing review of the paragraphs of the plaintiff’s affidavit, referred to by the Taxing Master, confirms my view that the notice of application for review and the affidavit do not raise matters which take the review outside what is permissible for consideration in a taxation of costs. As I have already stated, the principal attack by the plaintiff on the defendant’s bill consists of the three matters to which I have referred to in paragraph 29 above, namely, the making of three applications rather than one application to set aside the VCAT decisions, the unnecessary briefing of counsel, and the incurring costs consequent upon the failure or delay by the solicitor to take steps within time. I do not consider that the plaintiff is now advancing, in support of her application for review, matters which are of such a different character to those already considered in the December 2005 and June 2006 taxations that they are not appropriate for consideration on a taxation.
Conclusion
I have therefore come to the conclusion that the matters raised by the plaintiff, on her application to review the order of the Taxing Master dated 6 June 2006, are matters which may be appropriately considered and dealt with under Order 63.23 or otherwise on a review of the taxation. It follows that the appeal from the order of the Taxing Master should be allowed. As I have already stated, the parties agree that, if I were to reach that conclusion, then it would be appropriate for me to make orders allowing the appeal, setting aside the orders of Master Wood dated 19 October, and directing that the review, which was the subject of the application by the plaintiff dated 16 June 2006, proceed before the Taxing Master. I shall hear the parties on the precise orders which should be made, and on the question of costs.
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