w) attending the final hearing of the matter, conferring with counsel and general correspondence with the plaintiff's solicitor during the hearing. Advising the defendant from time to time and conferring with counsel.
23 That general approach leaves the obtaining of all relevant documents of the client to the stage of giving of discovery, that is, after pleadings have closed; and it leaves the taking of statements of evidence to the end of the preparation of the case for hearing. Such an approach too often involves duplication of work, delays the identification of the real issues in the proceedings and results in late applications for amendments to pleadings. Such an approach can sometimes prove fatal to the client's case, through no fault of the client. The assembly of relevant documents and the taking of statements of evidence should be done at the earliest possible stage so that pleadings are prepared with the benefit of proofs of evidence and the client's documents. Thus in preparing their case, although the solicitor has had conferences with four witnesses, it seems they will have to be interviewed again in order to prepare witness statements as well as there being conferences again with counsel before the hearing. Without witness statements and all the relevant documents of the client, the solicitor or barrister will often be uncertain as to what documents might be required from the opposing party, or from third parties, with the result that wide-ranging demands for documents are made. In other words, and speaking generally, a case will not assume its proper focus until those essential preparatory steps of obtaining and organising documents and taking proofs of evidence are taken.
24 No doubt that throws a heavier burden of costs to the earlier stage of preparation of proceedings but the approach saves costs in the long run. In particular, it minimises the risk of the real issues not emerging until late in the process.
25 Ms Vojvodic deposes that at this stage of the proceedings junior counsel should only be briefed to settle the commercial list matter and notice of motion for security of costs. I do not agree.
26 In a usual case of commercial litigation, counsel, at least junior counsel, should be briefed early. Where there is work that can be done either by the solicitor or by junior counsel, and, as often happens, junior counsel is more experienced than the solicitor and charges at a significantly lower rate, then the solicitor's duty to his or her client is to ensure that the work is done at the lower cost. That general statement is, of course, subject to the ability of the individual legal practitioners involved. But very often one sees work done by a solicitor in a firm which could be done equally well or better at a fraction of the cost by junior counsel with considerably more experience as a litigation solicitor and with more expertise.
27 In the present case Mr Kumar charges and hourly rate of $400 exclusive of GST. He was admitted as a legal practitioner in July 2004. Prior to taking up his employment as an in house legal counsel with the defendant in 2008, he was employed as an Acting Legal Officer in the New South Wales Office of Liquor Gaming and Racing managing litigation for that department. On the other hand, junior counsel was admitted as a legal practitioner in 2002 and after almost six years of practice was admitted to the Bar in June 2008. His hourly charge is $250 per hour. Mr Kumar is not to be criticised for using counsel too much. If anything, the criticism would be that counsel is not used enough. However, that is not to say that there is any justification for duplicating work, and it does appear to me from Mr Kumar's affidavit that he has allowed for excessive duplication. As to the plaintiff's criticism of the use of junior counsel early in the proceedings, I repeat my observations in Motor Trade Finances Prestige Leasing Pty Ltd v Elderslie Finance Corporation Ltd & Ors [2005] NSWSC 921 at [28] and [29]. I adhere to the view that I there expressed, that a costs assessor should consider whether it is just and reasonable for a losing party to pay more towards a successful party's costs than would have been incurred if the successful party made efficient use of the resources of the junior Bar.
28 That takes me to the hourly charge of Mr Kumar. Although he is employed by the defendant as an in-house legal counsel, he also is the principal of a firm known as MAS Legal. He deposes that the defendant has engaged his services as the principal of that firm and has entered into a costs agreement pursuant to which he is entitled to charge at the hourly rate of $400 inclusive of GST. His evidence is that his arrangement with the defendant is that he can keep the fees charged. In any event, even if the work done and to be done by him were done as an employed solicitor, it is likely that on an assessment the costs to be recovered would be assessed as if he had acted as an external solicitor, unless there were good and sufficient cause to investigate whether this would infringe the indemnity principle (Commonwealth Bank of Australia v Hattersley [2001] NSWSC 60; (2001) 51 NSWLR 333). I express no view as to the appropriateness of the fee of $400 per hour for the carrying out of skilled solicitor's work. However, it is difficult to envisage that on an assessment, a costs assessor would allow that charge for the full range of services Mr Kumar is to provide. It is one thing for a solicitor of about five years' standing to charge $400 per hour for skilled work such as preparing witness statements and ensuring that they are in admissible form. It is quite another to allow that rate for any solicitor for mundane activities that could properly be undertaken by a clerk.
29 There are other aspects of the defendant's assessment of future costs with which I am not satisfied. For example, in discussing costs likely to be incurred in obtaining expert evidence, no allowance is made for the fact that if the Court were satisfied of the need for expert evidence it is likely that a single expert would be required to be engaged.
30 I do not consider it appropriate to assess the amount of security using Mr Kumar's estimate of the work to be done and the charges for such work, even as moderated by Ms Armitage. I have already said that Ms Armitage's approach is vitiated by her erroneous belief as to the irrelevance, on a costs assessment, of the proportionality between costs to be allowed and the importance and complexity of the subject matter of the dispute.
31 The matter is very much one of impression. It appears to me that the case should be no more than a three or four day matter. Mr Ramsey-Stewart deposes:
" In my experience and opinion, I would expect to draw a party/party bill (on the usual order basis) for a commercial recovery of this type, with 2 parties, no cross-claims, standard directions/interlocutory proceedings and run for 2 to 4 days on final hearing in the Supreme court, in the range of $150,000 to $170,000 exclusive of GST. This would then be reduced, potentially, on assessment to $120,000 to $140,000 (approximately 15% to 20% reduction). This is a very general summation of my experience and expectation for costs only and there are of course many variables that would affect those costs - for example - different hourly rates being charged by law firms and use of 'teams' of solicitors. It is still a useful yardstick to use in comparing figures generated by other methods. "