ZAB v Australasian Solicitors Pty Ltd trading as HHG Legal Group - [2023] WASC 164

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   ZAB -v- AUSTRALASIAN SOLICITORS PTY LTD t/as HHG LEGAL GROUP [2023] WASC 164
CORAM:   REGISTRAR FATHARLY
HEARD:   ON THE PAPERS
DELIVERED          :   19 MAY 2023
PUBLISHED           :   19 MAY 2023
FILE NO/S:   LPA 52 of 2019
BETWEEN:   ZAB
Applicant
AND
AUSTRALASIAN SOLICITORS PTY LTD t/as HHG LEGAL GROUP
Respondent

Catchwords:

Assessment of costs ‑ Objections ‑ Timing of considering costs of costs assessment

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 53 and r 54

Result:

Objection 1 allowed in part
Objections otherwise dismissed

Category: B

Representation:

Counsel:

Applicant	:	No appearance
Respondent	:	No appearance

Solicitors:

Applicant	:	In person
Respondent	:	Coulson Legal

Case(s) referred to in decision(s):

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Hodder v Australian Executor Trustees Ltd (as administrator of the estate of Hodder) (No 3) [2022] WASC 361
Larussa v Carr [2019] WASCA 34
Moleirinho v Talbot Olivier Lawyers Pty Ltd [2014] WASCA 65
Mossensons (a firm) v Coastline Associates Unreported, WASC, Library No 970661
Nicholson v Behan and Speed Pty [2000] VLPT 28
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Soia v Bennett [2014] WASCA 204
The Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors v Morgan [2018] WASC 69
ZAB v Australasian Solicitors Pty Ltd t/as HHG Legal Group [2023] WASC 43
Zaghloul v Woodside Energy Limited [2019] WASCA 187

REGISTRAR FATHARLY:

Taxation of costs

These are my reasons upon review and reconsideration of the assessment of solicitor and own client costs between the applicant and respondent under O 66 r 53 and r 54 of the Rules of the Supreme Court 1971 (WA) (RSC).
The nature and history of assessment of the solicitor and own client costs are set out in detail in my decision ZAB v Australasian Solicitors Pty Ltd t/as HHG Legal Group [2023] WASC 43 delivered 20 February 2023 (the Decision).
Within the Decision I:
(a)confirmed the amount allowed at the assessment for the costs the subject of the Bill subject to any objections; and
(b)set out my reasons as taxing officer for determining appropriate costs orders arising from the application for assessment of the solicitor and own client costs filed under s 295(2) Legal Profession Act 2008 (WA) (LPA), that is who should pay the costs of the assessment and how much should be allowed.
On 14 March 2023 the applicant filed objections and grounds for review pursuant to O 66 r 53 RSC (the Objections).
For the reasons set out below, I:
(a)allow Objection 1 in part and reduce the sum to be allowed upon the taxation by $46.75 from $99,831.94 to $99,785.19 inclusive of disbursements and GST but exclusive of the costs of the application and the taxation;
(b)otherwise dismiss the Objections;
(c)confirm the costs of the application for assessment and of the taxation of costs the subject of further affidavits, submissions and reasons, should be paid by the applicant to the respondent, fixed in the sum of $42,523.80 inclusive of disbursements and GST; and
(d)issue, immediately following these reasons, a certificate of taxation allowing the bill of costs in the sum of $99,785.19 and $42,523.80 for the costs of the costs assessment.

Background

As the applicant had been a party to and represented by the law firm in Family Court proceedings the Decision was anonymised. The solicitor and own client costs the subject of assessment arose from those proceedings.
The Decision informs and provides detail in support of these reasons. Other than as set out herein, there is no need for me to repeat or add to the detailed content of the Decision.
The Decision was delivered, and the subject of orders made 20 February 2023 (Orders) that:
1.Subject to order 3 of these orders, the costs the subject of the bill of costs assessed on 8 and 15 April 2021, 26 and 27 May 2021, 6 and 7 July 2021, 6 August 2021 and 18 November 2021 (the taxation) have been allowed in the amount of $99,831.94 inclusive of disbursements and GST but exclusive of the costs of the application and the taxation.
2. Subject to order 3 of these orders, the costs of the application for assessment and of the taxation of costs the subject of further affidavits, submissions and reasons, should be paid by the applicant to the respondent, fixed in the sum of $42,523.80 inclusive of disbursements and GST.
3. By 4pm on 14 March 2023 any party who contends that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in the bill of costs assessed on 8 and 15 April 2021, 26 and 27 May 2021, 6 and 7 July 2021, 6 August 2021 and 18 November 2021 (the taxation), the subject of further affidavits, submissions and reasons relating to the amount allowed at taxation and the costs of the taxation, may file and serve any objections pursuant to Order 66 rule 53 of the Rules of Supreme Court, applying to the taxing officer to review the taxation in relation to those parts. Any objections shall be in writing, objecting to the allowance or disallowance of specific items allowed, in a short and concise form and set out the grounds and reasons for objection.
4. If no objections are filed a Certificate of Taxation will be issued allowing the respondent law firm:
(a) Fees in the amount of $99,831.94 inclusive of disbursements and GST allowed upon the taxation exclusive of the costs of application for and of the taxation; and
(b)Costs of the application for assessment and of the taxation of costs of $42,523.80 inclusive of disbursements and GST.
The Objections are comprised of six grounds, relating to:
(a)calculation of the sum assessed;
(b)costs awarded to the respondent for preparation of the Bill;
(c)costs awarded to the respondent for the costs assessment;
(d)all intra‑office conferrals;
(e)all items charged for non‑complex documents (including emails and letters); and
(f)printing.

Rules of the Supreme Court and authorities relevant to review of assessment

The term 'taxing officer' means a taxing officer of the Supreme Court.[1]
[1] Section 3 LPA.
Registrars are taxing officers of the Supreme Court.[2]
[2] Section 155(2) Supreme Court Act 1935.
Bills of costs are taxed pursuant to O 32 RSC.
Order 66 r 11(3) RSC incorporates the requirement to tax costs between parties by reference to the appropriate scale of costs except where there is a valid written costs agreement between solicitor and client.[3]
[3] Now referred to under the Legal Profession Uniform Law (WA).
Order 66 r 44 RSC sets out the taxing officer's powers.
The framework for taxations of costs and review thereof is summarised in the decision of the Court of Appeal in Zaghloul v Woodside Energy Limited.[4]
[4] Zaghloul v Woodside Energy Limited [2019] WASCA 187 [16] ‑ [23].
By O 66 r 53 RSC:
(1)A party contending that the taxing officer has made an error in principle in allowing or disallowing any item or part of an item in a bill of costs taxed by him may, at any time before a certificate dealing finally with that item is signed, or at such earlier time as may, in any case, be fixed by the taxing officer:
(a)deliver to the other party interested in the allowance or disallowance and carry in before the taxing officer, an objection in writing to the allowance or disallowance specifying in the objection by a list, in short and concise form, the items or parts of items objected to, and the grounds and reasons for the objections; and
(b)thereupon apply to the taxing officer to review the taxation in respect of those items or parts.
(2)Pending the consideration and determination of the objection, the taxing officer may if he thinks fit issue a certificate of taxation for or on account of the remainder or part of the bill of costs. Any further certificate which may be necessary shall be issued by the taxing officer after his decision upon the objections.
Upon application to review the taxation under O 66 r 53, the taxing officer shall reconsider and review his taxation in relation to the objections, and may, if thought fit, receive further evidence in respect of the objections.[5]
[5] O 66 r 54(1) RSC.
In reconsidering and reviewing the taxation I did not consider it necessary to receive further evidence, nor did I consider it necessary to receive further evidence for or at the taxation beyond that which I received.
Upon review:
(a)if so required by a party, the taxing officer shall state in his certificate of taxation or by reference to the objection, the ground and reason of his decision on the objection, and any special facts or circumstances relating to his decision.[6] I have not been requested to do so but set out the ground and reasons, facts and circumstances, so that the parties and any Judge upon review of my determination may understand them;
(b)the taxing officer may tax the costs of the objections and add them to or deduct them from any sum payable by or to a party to the taxation;[7]
(c)the taxing officer is functus officio once they have signed the certificate of taxation,[8] other than amending for manifest or clerical error under O 66 r 54(4). Until signing the certificate the taxation is not completed and there is power to reopen the taxation provided procedural fairness is afforded.
[6] O 66 r 54(2) RSC.
[7] O 66 r 55(3) RSC.
[8] O 66 r 54(4) RSC; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621, 624 - 625; Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [66], [70].
Taxing officers of the Court have a very wide discretion in allowing or disallowing costs.
The decision of a taxing officer on all questions of fact shall be final.[9]
[9] O 66 r 43 RSC.
Errors in principle are to be contrasted with questions as to mere quantum. Nevertheless errors in principle may be made both in determining whether an item should be allowed and in determining how much should be allowed. An error in principle may be inferred from a decision of the taxing officer if the result is such that the discretion appears not to have been exercised at all, or where it has been exercised in a manner that is manifestly wrong.[10]
[10] Rankilor [75] ‑ [78], citing Re Catlin [1854] 18 Beav 508 [52 ER 200]; Alsop v LordOxford 1 Myl & K 564, Schweppes Ltd v Archer (1934) 34 (NSW) 178, 183, Australian Coal at 628 ‑ 629, Mossensons (a firm) v Coastline Associates Unreported, WASC, Library No 970661, 2 December 1997.
In Mossensons (a firm) v Coastline Associates,[11] Ipp J (Pidgeon J agreeing) observed at 9 ‑ 10:
The point is that there must be an error in principle before a judge will carry out a review under O 66 r 55. Although it is possible for an error in principle to be made in regard to the quantum allowed in respect of a particular item, that is generally regarded as unusual. In my opinion, an error in principle on this basis could only be established if it is shown that no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question.
[11] Cited in Rankilor [78].
An error in principle may be raised under O 66 r 53 even if the issue the subject of the objection had not been raised and considered by the taxing officer at taxation.[12]
[12] Altorfer& Stow (a firm) v Lindsay [2005] WASCA 73 [56]; Rankilor [63].
With respect to the importance of casting objections to and grounds and reasons for objections with precision, Mitchell J stated in Soia v Bennett:[13]
Because upon a review of a taxation a judge may rectify only errors of principle, it is particularly important that the party seeking review should require the taxing officer to state the ground and reasons of his decision on each objection and equally important that the taxing officer should give clear but concise reasons. This will only be achievable if the objection under r 53 specifies the items or parts of items objected to and the grounds and reasons for the objections, cast in terms of an alleged error of principle.
[13] Soia v Bennett [2014] WASCA 204.
It has not been expressly contended that there was any error of principle in the conduct of the taxation or Decision.
It has not been expressly contended in terms of quantum allowed or in determining any amount to which I determined it was appropriate to allow, that 'no taxing officer, acting reasonably, could ever have taxed the particular item in the amount in question'.
The fundamental requirements of O 66 r 53(1) RSC have not been met by the applicant objector but as she is self-represented, although with assistance from time to time of her costs consultant solicitor who appeared for her at the commencement of the taxation,[14] the stated objections are considered and addressed in these reasons upon review on the basis that error or principle is implied by the objections.
[14] Applicant's affidavit 24 January 2022 at [3].
If a party is dissatisfied with the certificate of a taxing officer as to any item or part of an item objected to under O 66 r 53, they may, within 14 days from the date of the certificate or such other time as the Court, or the taxing officer at the time he signs his certificate allow, apply to a Judge in chambers for an order to review the taxation as to that item or part of an item.[15] The Judge, if of the opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the Judge thinks fit.[16] The certificate of the taxing officer is final and conclusive as to all matters which have not been objected to in accordance with the rules.
[15] O 66 r 55(1) RSC.
[16] O 66 r 55(2) RSC.

Objection 1: Calculation of the sum assessed

The first objection is on the basis that the applicant calculated a different overall outcome and is unclear as to the divergence between her running balance sheet and the sum stated in the Decision.
The applicant requests a review of the sum calculated with supporting calculations and documentation of the calculation to be provided to be made available to the parties.

Review and reasons in relation to Objection 1

No error of principle has been alleged in relation to Objection 1.
It is not appropriate or necessary for a taxing officer to provide to the parties detailed supporting calculations and documentation in taxing a bill of costs.
For both the preparation of the Decision and upon review in consideration of the objections the calculations have been checked.
The amounts claimed in the Bill in original and amended form are set out in the Decision [22] ‑ [26].
During the assessment each party maintained their own notes or records of the amounts allowed or taxed off as I did as taxing officer.
On the last day of the assessment the respondent's counsel was asked to file a spreadsheet with allowed and disallowed items, with the opportunity to file affidavits and submissions as to the costs or the amount assessed.[17]
[17] Decision [44] ‑ [45].
The Orders were made to ensure there was clarity of amounts allowed or disallowed and provide an opportunity for the applicant to confirm or explain any discrepancies in the spreadsheet if there was disagreement. That occurred before the Decision confirming the sum to be allowed.
The relevant spreadsheet was provided by Coulson Legal to the Court and to the applicant 22 November 2021 listing each item number, each amount claimed, the amount if any taxed off an item, and totals in each column.
Of the items referred to in the spreadsheet, there was reference to items 776, 777 and 778 not being taxed. Those three items related to the claims for drafting the Bill ($12,000), attending taxation ($7,040) and the filing fee for the Bill ($1,004), a combined total of $20,044, which items were excluded for my separate determination the subject of the Decision.
The applicant responded to the spreadsheet by her affidavit and submission filed 24 January 2022. She had the opportunity to query and challenge the amounts set out in the spreadsheet.
Each of the respondent's spreadsheet, the applicant's response regarding the spreadsheet, and amounts allowed or disallowed have been considered and compared with my copy of the Bill of the assessment of costs.
The calculations of the amounts allowed subject to confirmation at the end of the assessment were stated in paragraphs [46] ‑ [51] of the Decision, summarised at [48].
The total value of items the applicant claimed to be discrepancies to the Coulson Legal spreadsheet amounted to $669.67[18] although they were not stated in the Objections.
[18] Applicant's affidavit 24 January 2021 attachment 3 at page 15.
Of the discrepancies raised by the applicant:
1.The applicant claimed that item 43 had been conceded by the respondent. Relevantly:
(a)by the Respondent's Response to the Applicant's Notice of Objections dated 8 January 2021, the respondent had addressed objections raised to items 41 ‑ 45 on the basis that they should have been claimed together. The respondent's response was to concede two of the five items originally claimed at $46.75 each;
(b)while it appears within that document that the concession is as to item 42 and there are separate concessions as to item 43 and item 44, there is an apparent internal error within that document referring to conceding item 42 and item 43. The concessions were properly as to item 43 and item 44;
(c)all of those items remained in the amended Bill with amounts claimed. At taxation item 44 was taxed off. The Decision referred to item 42 not having been disallowed;
(d)the full effect of the concessions was not made. A further $46.75 should have been taxed off such that for both item 42 and item 43 only one of the items was allowed, not both.
2.The allowance for item 190 was reduced by $233.50 as stated in the applicant's discrepancies and the Decision [48 (2)].
3.Item 198, $46.75, was disallowed as stated in the applicant's discrepancies and the Decision [48 (3)].
4.Item 199 was not conceded. It was originally objected to and conceded in part. The amended Bill showed the item claimed at $44.00 not $46.75. The amount was allowed. The stated discrepancy is incorrect.
5.Item 221, $330.00 was allowed at $220 based on an allowance of 1.0 hour of time at $220 per hour. $110 was taxed off as the original claim was for 1.5 hours of time. The stated discrepancy is incorrect.
6.Item 225 claimed $1,636.25. Of that amount, $1,309.00 was allowed based upon 2.8 hours of time at $467.50 per hour rather than 3.5 hours claimed. $327.25 was taxed off. The stated discrepancy is incorrect.
7.Item 522, $22.00 was originally to be conceded on the basis of a lack of supporting evidence upon inspection of the file by the applicant's solicitor. The item remained in the original and amended Bill. Upon assessment I was satisfied that the item should be allowed without deduction. The stated discrepancy is incorrect.
9.Item 576, $22.00, was stated by the applicant to have been taxed off. That item was correctly allowed, not taxed off. The stated discrepancy is incorrect.
10.Item 641, $49.50, was stated by the applicant to have been taxed off. That item was correctly allowed, not taxed off. The stated discrepancy is incorrect.
11.Item 698 claimed $32.45. The amount allowed upon assessment was $22.00. The amount taxed off was $10.45 as stated in in the applicant's discrepancies and the Decision [48(4)].
12.Item 716 claimed $356.95. $227.15 was allowed, with $129.80 taxed off as stated in the applicant's discrepancies and the Decision [48 (5)].
13.Item 775, $467.50, was properly allowed at $46.75 as explained in the Decision [48(6)].

Based upon the above, upon review of the objections and reviewing the calculations, only one item contains an error. The amount stated in the Decision which should be allowed should be reduced by the further $46.75 which should have been taxed off. To that extent only Objection 1 is successful, and otherwise is dismissed.
Accordingly, the correct amount disallowed at taxation should have been $14,636.52[19] plus the $46.75, a total of $14,683.27, leaving $99,785.19 allowed of the amended Bill not $99,831.94.[20] The certificate should reflect the correct amount of $99,785.19 subject to consideration of the other objections.
[19] Decision [48].
[20] Decision [6], [48], [64], [70], [160], [162 (1)].
The reduction of the total allowed by $46.75 makes no material difference to the percentage calculations of reduction to the Bill, or other aspects of the Decision, including as to my award of the costs of the assessment and amount of those costs.

Objection 2: Costs awarded to the respondent for preparation of the Bill of Costs

The second objection is on the basis that there should have been no costs awarded to the respondent for preparation of the bill of costs for the reasons set out at [5] ‑ [15] of the Objections.

Review and reasons in relation to Objection 2

No error of principle has been alleged in relation to Objection 2, rather a statement that there should be no costs awarded to the respondent for the preparation of the Bill.
The costs of and incidental to the orders of then Registrar McDonald made 22 October 2020, which required the filing and service of the Bill, were reserved.
As the taxing officer, by s 304(1) LPA I must determine the costs of the costs assessment.
By s 305 LPA I must certify the costs allowed and costs of the assessment.
Awarding costs for drawing the Bill fell to my discretion.
The applicant filed submissions 27 January 2022 regarding the costs of the assessment, the subject of responsive submissions, both of which were considered and the subject of the Decision [72] ‑ [77] and [157(1)(a)].
The costs allowed for drafting the Bill were not for the applicant client to have to pay the respondent firm to comply with legal obligations under the LPA. Neither were the costs 'virtually automatic or [had] taken up no meaningful time, and had been done by a bookkeeper'.[21]
[21] Objection 2 [8].
The authority of Nicholson v Behan and Speed Pty [2000] VLPT 28 referred to by the applicant objector has no bearing on the issue of the costs chargeable or otherwise in Western Australia for preparation of a bill of costs for taxation between solicitor and client under the LPA. That is a decision of the Victorian Legal Profession Tribunal on an application to cancel a costs agreement primarily citing another of its decisions and referring to onus of proof when a client challenges the amount of the costs charged. It was a finding that the costs agreement in question was not fair and reasonable.
Relevantly:
1.The above case is not authority for ensuring that a bill was properly prepared at the firm's cost under the LPA in Western Australia.
2.The applicant in this case did not seek to have the costs agreement reviewed or set aside despite the applicant having been represented at the time by a costs consultant. Had that occurred, the applicant would bear the burden of proving that the costs agreement was unreasonable.[22]
3.I was satisfied at taxation on evidence both from production of files and evidence of the practitioners who had conduct of the file of the work undertaken in relation to allowed costs. The files were detailed and more thorough records kept that I have often seen upon assessments of solicitor and client costs.
[22] Moleirinho v Talbot Olivier Lawyers Pty Ltd [2014] WASCA 65 [30], citing Jovetic v Stoddart & Co (1992) 7 WAR 208; Stoddart & Co v Jovetic (1993) 8 WAR 420; Harrison v Hocking [2000] WASC 188 [92]. The VLPT concluded that the client would bear the onus of proving that a costs agreement should be cancelled at page 4.
The costs of the costs assessment included costs reserved by the 22 October 2020 orders.[23]
[23] Decision [20].
Considerations for costs of the costs assessment were stated in the Decision [52] ‑ [60] and [153] ‑ [158] particularly.
I exercised my discretion to award costs of preparation of the Bill to the respondent in the sum of $6,000, not the $12,000 claimed in item 776.
There is no error. Objection 2 is dismissed.

Objection 3: Costs of the assessment

The third objection is based upon the following contentions.
The applicant accepts that a discretion exists but says the discretion miscarried because:
(a)there was a failure to take into consideration onus;[24] and
(b)the 15% question arising under s 304 LPA must be based upon the original invoices issued, not the bill of costs in assessable form because:
(i)the requirement to confer under the Consolidated Practice Directions is based upon the original invoices; and
(i)the mischief that the legislature objectively intends to prevent is overcharging by lawyers as originally invoiced rather than any mischief associated with lawyers after the process starts of failing to adequately concede items in a bill in assessable form.
[24] By reference to Nicolson v Behan and Speed Pty.
While there were concessions in the bill in assessable form in relation to some items, the overall sum included preparation of the Bill.
The applicant contends that she could not just accept the redrawn Bill inclusive of the concessions and take a refund.
The applicant broadly states that it is hard to conceive of why a costs assessment for this sum of money took so many days, during which time she only took ad hoc advice, she made a best attempt to try and group items to narrow issues with the costs lawyers acting for the respondent, and although there was a wide extent of objections the onus was on the law practice to satisfy the court and it was reasonable to be cautious and sceptical.
The applicant referenced in her objections having difficulties in being self-represented, the fact that her lawyer at the beginning of the costs assessment at day one sought to explain calculations he had made regarding the 15% issue and how much of that amount had already been reduced, but that as the taxing officer I stated that that was a matter I did not need to hear about until after the substantive process, with no further opportunity that day to revisit the issue.
The applicant says that in relation to the question of costs of the costs assessment that should only have been determined after the review process had concluded and without prejudice communications should not have been put before me prior to the substantive questions having been determined, inclusive of the review process.
The applicant seeks the mis‑sequencing be remedied on review.[25]
[25] Relying upon Hodder v Australian Executor Trustees Ltd (as administrator of the estate of Hodder) (No 3) [2022] WASC 361 for statements of principle.

Review and reasons in relation to Objection 3

Approach to determination of costs of the costs assessment

Criteria for a solicitor and client costs assessment are set out in s 301 and s 302 LPA.
Given that there was a written costs agreement which had not been set aside and the exceptions to s 302 were not applicable,[26] key issues for the costs assessment were properly as to reasonableness to carry out the work and whether it was carried out in a reasonable manner with charges according to the costs agreement.
[26] Decision [54].
The costs of the costs assessment were determined in accordance with s 304 LPA which states:
304. Costs of assessment
(1)A taxing officer must determine the costs of a costs assessment.
(2)Unless the taxing officer otherwise orders and subject to subsection (4) the law practice to which the costs are payable or were paid must pay the costs of the assessment if ‑
(a)on the assessment the legal costs are reduced by 15% or more; or
(b)the taxing officer is satisfied that the law practice failed to comply with Division 3.
(3)Unless the taxing officer otherwise orders and subject to subsection (4), if the law practice is not, under subsection (2), liable to pay the costs of the assessment, the costs of the assessment must be paid by the party ordered by the taxing officer to pay those costs.
(4)A taxing officer may refer to the Supreme Court any special circumstances relating to a costs assessment and the Court may make any order it thinks fit concerning the costs of the costs assessment.
Clearly there is a discretion to 'otherwise order'.
Based upon the amount allowed upon the assessment of the solicitor and client costs, the legal costs were not reduced by 15% or more from the Bill.[27]
[27] Decision [49], [56] ‑ [ 57].
The applicant's submissions about the issue of the 15% properly being reduced from the invoiced costs not the Bill were the subject of consideration in the Decision [64] ‑ [71]:
1.While the invoices gave rise to the application, the Bill in original and amended form were the subject of assessment a considerable time later, and it was the Bill which was assessed and reduced by less than 15%. The costs of the assessment arose from the considerable time taken to assess the Bill.
2.The correct approach was that the 15% reduction for the purpose of s 304 LPA was required from the Bill not the invoiced amounts to require the law practice to pay the costs unless I ordered otherwise.
3.If I was incorrect in principle in that regard, in exercising my discretion under s 304 LPA to otherwise order, I considered the facts of the case did not justify that the respondent should pay the applicant's costs of the application and assessment and I was not satisfied that she should have the costs of the assessment paid to her by the respondent.

Onus and time spent undertaking assessment giving rise to costs

The application for assessment of costs commenced with the applicant's solicitor applying to assess 37 invoices over more than two years with no summary table of costs charged or the subject of dispute and no waiver of any rights to apply for the costs agreement to be set aside or to challenge its applicability in any other way.[28]
[28] Decision [10] ‑ [18].
Objections raised by the applicant through her solicitor following an inspection of the respondent's files on 22 December 2020 by notice filed 8 January 2021 and at the assessment of costs arose from one or more of:
(a)excessive time spent/billed;
(b)secretarial/administrative work;
(c)content of document formulaic/precedent;
(d)items should have been billed together or linked;
(e)no supporting evidence found on inspection of file;
(f)internal conferences for which there should be no charge;
(g)charging for no charge items;
(h)supervision for which a client should not be charged;
(i)not filing a document drafted;
(j)unnecessary, not proportionate, unjustifiable.
Preliminary objections were raised by written submissions.[29] The main issues raised in written submissions were summarised in the Decision [27] ‑ [30] and having heard each counsel orally on the first day of the assessment I made preliminary determinations as set out at [36] ‑ [38].
[29] Filed 4 December 2020 for the respondent and 29 January 2021 for the applicant.
The assessment process and requirement for line by line assessment is referred to in the Decision [39] ‑ [43].
The respondent was essentially put to proof on many of the items in the Bill.
With respect to onus:
1.I was satisfied at taxation on evidence both from production of files and evidence of the practitioners who had conduct of the file of the work undertaken in relation to allowed costs. The files were detailed and more thorough records kept that I have often seen upon taxation.
2.I was satisfied that the respondent had met the onus to satisfy me as to the work undertaken and charges for the work in relation to allowed costs.
3.The applicant is well aware that I was satisfied on items on a line by line basis on disputed items often by reference to the firm's many files and file notes or correspondence, written costs agreement,[30] electronic copies of documents displayed on a screen showing versions of documents with changes over time,[31] and information provided by the practitioners who had had conduct of the file.
4.There was no failure to take into consideration the question of onus.
5.The discretion to award costs did not miscarry due to any failure to take into consideration the question of onus.
[30] As to entitlements to charge for certain items or amount they could charge under the agreement for professional fees and disbursements such as photocopying.
[31] For example, to update document disclosure lists required in the Family Court, such that the amendments were part of ongoing disclosure not amendments arising from corrections of errors to documents.
The assessment process was necessarily slow, tedious and time consuming but thorough given the numerous objections.
So much time was taken on items within the Bill because of the objections raised by the applicant, originally set up by her solicitor and argued by her personally at the assessment after he withdrew. It necessarily involved substantial time of those involved, being myself, the applicant, her solicitor when he was acting, the respondent's solicitor and the respondent's former and current practitioner who had had conduct of the file.
As stated in the Decision [42], the parties were advised of my concern many times as to the costs of the process and potential impacts that may have at the end of the assessment process. The applicant was cautioned about that on a number of occasions and the parties encouraged to find ways to narrow or resolve issues or agree an amount or amounts. The fact the parties attempted to do so only had limited impact on the process.
The impact of any reduction of costs by way of 15% or otherwise was not a matter for consideration at the commencement of assessment.
The impact of s 304 in terms of appropriate costs orders arising from the amount of costs taxed off or exercise of discretion could only properly be considered upon completion of the assessment. While not known to me at the commencement of the assessment, the parties each later sought also to rely on Calderbank offers in relation to costs.
The approach of the applicant's solicitor that any reduction from the invoiced sums counted towards the 15% is incorrect in my view.[32]
[32] Decision [66] ‑ [67].
I determined that even if I was incorrect, and that the 15% reduction was from the invoiced amounts not the Bill, in exercise of my discretion I would not award the applicant costs and awarded the respondent costs of the assessment.[33]
[33] Decision [66] ‑ [67], [153] ‑ [154].
The applicant stated[34] that is hard to conceive of why a costs assessment for the sum took so many days. To the contrary, her solicitor's 'without prejudice save as to costs' letter dated 11 April 2021[35] refers to the fact that having observed day one of the proceeding, the applicant was confident she could handle the matter herself and was prepared to put in the time for the probably additional 9 or 10 days required to complete the process, an estimate based upon the then current rate of progress. It was estimated by her solicitor[36] in that letter to be a 10 day costs assessment instead of a two day costs assessment. That should have been well known to her then if not by my costs cautions.
[34] Objections [22].
[35] Affidavit of Amy Louise Pascoe 16 December 2021, [6]; Decision [131].
[36] At [8].
I would not change the exercise of my discretion in relation to the award of costs or amount of the costs.

Should the costs of the costs assessment have been determined only after the review process concluded?

The objection on the basis of mis-sequencing is misconceived. There is no mis-sequencing.
The determination of costs could not be determined only after the review process under O 66 r 53 RSC.
A taxing officer must certify in writing the amount of disputed costs allowed and the costs of the costs assessment.[37]
[37] Section 305(1) LPA.
Section 305(2) and s (3) LPA refer to 'a certificate under subsection (1)', not separate certificates.
A taxing officer is functus officio once they have signed the certificate of taxation,[38] and until that time has not completed the taxation.[39] Once a certificate is signed, a taxing officer shall not review the taxation or amend the certificate except to correct a manifest or clerical error under O 66 r 54(4) RSC.
[38] Australian Coal 624; Rankilor [66].
[39] Australian Coal 625; Rankilor [70].
It is appropriate to issue one certificate for the amount of the disputed costs allowed and the costs of the costs assessment.
The costs of a costs assessment are determined as part of the assessment process, usually at the end of the assessment upon oral submissions only, when the outcome, discretionary factors and all relevant issues are known as to the costs incurred in relation to the assessment.
In this case, due to the extent of the Bill and to afford procedural fairness including an opportunity to take legal advice if required, it was appropriate to issue the orders made 19 November 2021:
(a)to receive the spreadsheet from the respondent's solicitor setting out the calculations for the allowed or disallowed costs;
(b)to receive submissions and any affidavits from the parties as to the calculation of the costs claimed and costs of the assessment;
(c)then determine and notify the parties of the amount I intended should be allowed on the Bill inclusive of any costs of and incidental to the taxation;
(d)then provide the parties an opportunity object and apply for review under O 66 r 53 RSC;
(e)then to issue a certificate of taxation for the costs allowed upon the Bill and the costs of and incidental to the taxation if there were no objections or upon completion of the review under O 66 r 54 RSC if there were objections.
When evidence of the Calderbank offers was filed in affidavits, the costs assessment was completed subject to confirmation of the calculations and determining costs.
Evidence of Calderbank offers and submissions were appropriately provided and received after the determination of the substantive issue at assessment, being the amount of costs to be allowed on the Bill, so that the costs of the process could be determined at the same time as confirming the amount allowed after that had been checked.
It was within the recognised exceptions referred to by Justice Curthoys in Hodder v Australian Executor Trustees Limited as administrator of the estate of Reece William Hodder [No 3] [42] cited by the applicant. It did not create prejudice in the assessment of the Bill which had already been the subject of the assessment, and both parties provided such communications and submissions well before the Decision, each seeking special costs orders in their favour in reliance on the offers and conduct and neither taking any objections to the other having filed such correspondence when filed.
In the context of s 305(1) LPA, O 66 r 53 and r 54 RSC:
1.the assessment of the Bill had occurred in full subject to checking and confirmation of the amounts allowed or disallowed and other than in relation to costs;
2.the Decision clarified and confirmed the amount allowed on the Bill during the assessment subject to any objections, it did not determine whether to allow, or the amount to allow, for each item within the Bill other than as to costs;
3.receipt of the costs submissions and the affidavits containing without prejudice communications about costs of the costs assessment had no bearing on the amount already assessed in the Bill or confirmed as allowed other that in relation to costs of the assessment;
4.the affidavits and submissions as to the costs of the costs assessment were required to properly allow the parties to be heard on the issue of costs of the assessment so that those matters could be the subject of determination in the Decision, indicating what I intended should be allowed subject to any objection received;[40]
5.objections under O 66 r 53 could then be made regarding the allowing or disallowing [of] any item or part of an item in a bill of costs taxed. The opportunity needed to be provided to file objections as to the primary amount allowed as well as allowance as to costs of the assessment.
6.the review under O 66 r 54 is a reconsideration and review only of objections, usually only for an error of principle, and a taxing officer need not consider matters beyond the express objections raised;[41]
7.if costs of the assessment were not the subject of submissions and evidence for the Decision but determined only after review and determination of objections:
(a)the parties would not have had the opportunity to have understood my determination of the issue of the costs of the assessment and to file objections prior to my issuing a certificate;
(b)upon the completion of the review I would have issued a certificate and been obliged by s 305 LPA to determine the costs, alternatively I would have been functus officio if the certificate had issued, unable to do so and in breach of my obligation to determine costs.
[40] Decision [5], [9].
[41] Larussa v Carr [2019] WASCA 34 [32] ‑ [36].

I do not consider Objection 3 to have merit and dismiss it.

Objection 4: Intra‑office conferrals

Objection 4 states that in relation to the intra‑office conferrals the test applied during the costs assessment was whether the conferral progressed or advanced the matter, that not being a suitable test.
It was submitted that:
(a)the test should be whether a competent lawyer with adequate years' experience dealing with a matter should need the input of any other lawyer; and
(b)the test that was applied had a tendency to result in the client paying for supervisory work and management of less experienced and junior lawyers, which should not be allowable as the payment of an hourly rate to the junior lawyer takes into account some overhead that the law practice charges for supervision.[42]
[42] No evidence was provided in support of that contention.
The applicant cited two authorities in support of the contentions that:
(a)all fees should be disallowed where there was no file note, although none were identified;
(b)the applicant had a letter from the respondent stating that she would not be charged for a particular conferral charged and allowed, although the item was not identified;
(c)training and supervision were not for her benefit but part of the firm's overheads;
(d)the majority of intra-office conferrals were updates, which of themselves should not be chargeable.

Review and reasons in relation to Objection 4

Written costs agreement provisions relating to internal conferences

The starting point in relation to the assessment was the obligation to assess the amount of disputed costs the subject of the costs agreement by reference to the provisions of the agreement.[43]
[43] Section 302(1) LPA.
As there was a written costs agreement, by virtue of s 301 LPA the primary considerations were:
(a)the entitlement to charge for an item under the costs agreement;
(b)whether or not it was reasonable to carry out the work to which the legal costs related;[44] and
(c)whether or not the work was carried out in a reasonable manner.[45]
[44] Section 301(1)(a) LPA.
[45] Section 301(1)(b) LPA.
The costs agreement, a copy of which was filed 22 November 2019 by the applicant's solicitor, relevantly provided:
2.2The Law Practice may charge for reasonable time spent by practitioners conferring in relation to your matter. Conferral time is important to ensure that you benefit from the resources, skills and experience available in a firm of this size and capability, and that progress is well managed.
and
SCHEDULE 1
A.PROFESSIONAL COSTS
The Client agrees to pay the following rates for legal professional services and all incidental services (including non-legal services, waiting in court, conferral between professional staff, travelling and so forth) which have been, and are to be, supplied regarding the Subject Matter:
[rates were then set out according to seniority]
(a)that the Law Practice may charge for a number of professionals' time working on the Subject Matter including at the same time with or without external counsel;[46]
(b)to pay for time reasonably spent in conferral between the Law Practice's professionals, including conferral with counsel, and including in respect of a senior lawyer's supervision, management and delegation to, and assessment of the work of, more junior professionals.
[46] Decision [27 (2)], [28(1)].
On the face of the costs agreement the respondent was entitled to charge for conferral between professional staff.
When the application for costs assessment was filed by the applicant, the applicant was represented by a legal practitioner who specialises in legal costs disputes.
The costs agreement was not set aside.
The issue of intra-office conferrals, internal conferences and supervision were the subject of extensive submissions and consideration as part of the assessment process:
(a)written objections to the Bill filed for the applicant on 8 January 2021;
(b)response to objections filed for the respondent 22 January 2021;
(c)submissions filed by each party on 22 and 29 January 2021 respectively;
(d)oral objections made for the applicant at the commencement of assessment and my preliminary rulings on that;[47]
(e)by the applicant during the assessment;
(f)rulings made on allowances or disallowances during the assessment;
(g)determination in the Decision [101(6)].
[47] Decision [37(1)].
The Australasian Lawyers Group Pty Ltd t/as Butlers Barristers & Solicitors v Morgan [2018] WASC 69 is not authority for the fact that intra‑office conferrals are not chargeable. To the contrary, the issue in that case was the registrar not making clear those which should or should not be chargeable and providing the basis for determination.
In this case the respondent was challenged on each of the conferrals. Each was allowed or disallowed or reduced in amount individually.
There was no express need for a file note to explain why all conferral occurred on every occasion. That was often apparent from the circumstances or the subject of explanation if required. However during the assessment I reviewed many file notes and records expressly recording the details of conferences which stated the nature and time spent in conferral often in detail, often supplemented by oral explanation if required.
I was satisfied during the assessment in relation to each intra-office conferral that there was an entitlement for the firm to charge the costs, that it was reasonable to carry out the work, that it was carried out reasonably, and there was evidence to support the nature and time spent doing so.
I was satisfied that they advanced the interests of the applicant client by their nature, quite apart from the fact that typically only the professional fees of the senior of the practitioners' time had been charged and I allowed the charge for only that one practitioner not both who conferred.
I do not consider Objection 4 to have merit and dismiss it.

Objection 5: Test for assessing non‑complex documents

The applicant contends, in effect, that the length, complexity and number of words in each document should be relevant to considerations for the assessment.
The applicant contends that lawyers should be able to produce short documents rapidly, and such time should be supported by evidence from the file, including the length and complexity of letters or other documents prepared or considered and the handwritten notes of attendances, and the note would need to justify why it was necessary for the fee earner with conduct to seek advice from a colleague given that fee earners should be given cases that are within their competence.

Review and reasons in relation to Objection 5

No error is asserted in relation to Objection 5.
The applicant seeks to repeat issues raised by her lawyer at commencement of the assessment summarised in the Decision [27(4)] and [27(5)] and that many charges were for what were properly administrative tasks, determined on an in principle basis at [37] ‑ [38].
The applicant seeks to press Objection 4 again regarding intra-office conferrals in Objection 5. To that extent the review and response to Objection 4 is repeated and dismissed.
Again, the starting point was the costs agreement set out in relation to schedule 1 charges above.
Brevity of a document or number of words does not of itself simply equate to lack of complexity, lack of need for appropriate consideration and due professional care, or the fact that is merely an administrative task capable of being properly done by non-professional staff.
Again, the correct approach was to apply the considerations of entitlement to charge, whether or not it was reasonable to charge and whether or not the work was carried out in a reasonable manner.
The firm was entitled to and did charge based upon their time at hourly rates according to seniority in units equal to six minutes.[48] If the time spent was less than six minutes the client was to be charged for the full six minutes. If more than six minutes was spent, the calculation was made on the next highest level. For example, if eight minutes was spent, the charge was calculated according to the costs agreement, at 12 minutes.
[48] Costs Agreement, [2.3].
As part of the assessment process I was required by the nature and extent of the objections to review numerous physical documents including emails, letters, file notes, court documents and drafts of numerous documents in electronic or hard copy to determine the appropriateness of the charges taking into consideration circumstances. That was supplemented by explanations from the fee earners at the relevant time as necessary. That process is why the assessment took as long as it did. Each document had to be located in the relevant file, considered and the subject of submission. There were three boxes of documents.
By way of example, ongoing disclosure of documents was required within the Family Court proceedings, requiring a number of amendments over time to the list of disclosed documents. On the face of it that was a simple administrative task to add item descriptions of documents to a list by way of amendment when required. However the underlying task involved the practitioner receiving often numerous documents, considering them, categorising and organising them and providing them with appropriate document codes and descriptions. The underlying process was explained, and multiple versions of the relevant disclosure documents were displayed and discussed, during assessment.
There was evidence to satisfy me of the appropriateness and reasonableness of the charges I allowed upon assessment. In some cases I reduced the amounts originally claimed.
I do not consider Objection 5 to have merit and dismiss it.

Objection 6: Printing

The applicant refers to item 801 of the Bill where the respondent claimed $1,421.60 for 3,554 pages at $0.40 per copy. The quantity was disputed referring to invoice 37 as an example.

Review and reasons in relation to Objection 6

No error is asserted in Objection 6.
The costs agreement provided for the charge for black and white printing, photocopying and scanning at $0.80 per page and $1.50 if for colour.
The costs agreement was not set aside.
The amount claimed in the Bill for item 801 for 3,554 pages was $1,421.60 for printing at $0.40 per page.
There was an additional item 802 for photocopying of $404.80 being for 1,012 pages at $0.40 per page, not the subject of objection.
Invoice 37 is stated by the applicant as an example of disputed printing charges.[49] The detail of the objection is not one made at the assessment and relies upon an assumption as what each copy or printed document was for. Had it been made at the assessment there could have been a brief, economic, response. Instead, to have the respondent reply to it specifically in response to the objections, or by way of example of an alleged problem generally, seeks now to put the respondent to proof of each and every copy made rather than enabling the issues to be dealt with at the assessment. That is not a proper way to proceed.
[49] Invoice 37 listed in the Bill is the respondent's invoice to the applicant dated 15 July 2019.
Printing and copying were addressed at the assessment and claimed amounts of $1,421.60 for item 801 and $404.80 were allowed.
As part of the review I have separately checked the number of items of printing and photocopying on every one of the 37 invoices and can confirm that, as invoiced, the amount of pages the subject of those invoices were 3,554 pages for printing and 1,012 pages for photocopying.
Given the nature of the proceedings, the amount of disclosure documents, the time over which the file was the subject of advice and representation, the need to brief counsel and the fact of trial, significant printing and copying was necessarily required and many volumes of files created which I had to review at the assessment.
The applicant objects to the number of copies required or made, but ignores the entitlement of the firm under the costs agreement to charge for printing, photocopying or scanning at $0.80 per page plus GST.
The total claimed in the Bill and allowed was at a rate of $0.40 per print or copy inclusive of GST, less than half of the amount to which the respondent was entitled to charge on the face of the costs agreement.
While the costs agreement rate is high for such charges compared to scale rates for printing and copying, the applicant did not seek to or have the costs agreement set aside.
At the assessment, for the same number of pages, allowance was made at the more reasonable sum of $0.40 per page inclusive of GST. That was still higher than would be allowed on scale but less than half of the charge under the solicitor and own client costs agreement which on the face of it the firm was entitled to charge. The firm's costs consultant lawyers had appropriately formulated the Bill on the basis of the concession that the charge under the costs agreement was high and should be reduced.
On that basis, having heard the parties and it being impossible to discern each and every page printed or copied or scanned, but taking into account:
(a)the three boxes of lever arch files relating to the matter evidencing significant work; and
(b)the need for many copies of documents to be printed for provision to the Family Court and counsel in addition to file records and correspondence sent;
I determined that the amounts claimed in the Bill for printing and copying were reasonable.
Having reviewed the charges, I maintain that position.
Accordingly, I do not consider Objection 6 to have merit and dismiss it.

Costs of objections

As the applicant is self‑represented and has been almost entirely unsuccessful in the objections, it is not appropriate that there be any costs ordered to be paid to her in relation to the objections.
As the respondent firm has not filed responsive submissions it has been spared additional costs of reply.
Accordingly, I make no determination as to the costs of objections in favour of either party.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RD
Associate to Registrar Fatharly
19 MAY 2023