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[1995] FCA 813
Federal Court of Australia
1993-08-17
Finn J
Original judgment source is linked above.
The applicant submitted that when one had regard to the considerations referred to in Item 41 that award was unjustifiable. The argument of the respondents in the event took a somewhat more circuitous course. At the hearing before me it was submitted that two broad paths were followed in superior courts in relation to the allowance for general care and conduct. The one was to mark up only those items which carry a content of legal skill and responsibility, but to mark them up generally by 50 per cent. The other was to mark up the entire bill by an amount of 15 per cent (as was done in this case). The rationale for the latter is that it will produce a like result to the first method I have noted but without the need to dissect items as that method requires. Given the requirements of O62 r22 as to the matters which a taxing officer is obliged to take into account in the exercise of his discretion, I felt unable to accept the respondents' submission in this form. Accordingly, after the hearing I recalled the parties for the purpose of providing the respondents with the opportunity either to justify the practice on which they relied in their original submission, or else the particular percentage adopted by the taxing officer. The respondents then sought, and were granted, leave under O62 r44(4) to file an affidavit of a Mr Travers, the principal of a legal cost consultancy firm, as to his understanding of the practices on taxation in the Federal Court and the Supreme Court of the A.C.T. While swearing that, in conformity with practice of the Federal Court in New South Wales, a percentage for general care and conduct was given on all the work set out in the bill, that percentage ordinarily was in the range of 10 per cent to 20 per cent. The variation in the range exists so as to accommodate the discretion the taxing officer is obliged to exercise. I should add that I gave leave to file this affidavit over the objection of Mr Titan. Its deponent, Mr Travers, had in fact appeared on behalf of the respondents on the reconsideration. It was unfortunate that he was engaged to provide expert evidence in these circumstances. Mr Titan's opposition to it was wholly understandable. Nonetheless I was prepared to allow the affidavit in evidence. It confirmed both my own understanding of taxation practice in this Court and my objection to the respondents' submission in its original form. In light of the affidavit the respondents then submitted that the percentage selected by the taxing officer was within the range available to him and for that reason should be left unaltered, irrespective of whether the percentage selected is not one that a judge might have adopted. I am prepared to accept the utility of the practice (adopted in this instance) of calculating general care and conduct as a percentage of the bill - provided always that the range itself is not seen as an inflexible one and that, consistent with O62 r22 and Item 41, a genuine discretion is exercised in each instance in the percentage selected. To accept the practice is one thing. To apply it to the particular circumstances of a case is another. One would have expected, for example, that those considerations which in the case of trial were likely to enhance the allowance made, would be less prominent in the usual appeal with the result that the appropriate allowance would, ordinarily, be at the lower end of the range. Equally the role played by counsel in the matter at the appellate stage may have some direct bearing on the actual care and conduct exhibited. Contrarily there may be factors, of which dealing with a self-representing opponent may be one in a given case, that may heighten the care required. But be these matters as they may, I cannot discern from the one sentence in the taxing officer's reasons in which he justifies the particular percentage chosen adequate or sufficient explanation of that figure. To adopt the comment made of reasons provided under a not dissimilar English rule, those given here are "unduly uniformative": Eaves v Eaves & Powell [1956] P154 at 157. O62 r43(1)(a) requires the taxing officer on request to "state ... his reasons for his decisions on reconsideration". In relation to this particular objection that requirement has not, in my view, been satisfied adequately. The reasons, for example, do not advert either to the factors referred to in Item 41 or, in terms, to any of the considerations referred to in O62 r22. Notwithstanding the matters both required and appropriate to be taken into account, I simply am left in the dark as to how, if at all, any of these contributed to or justified either the selection of the particular figure chosen or the disallowance of the objection to it. The obligation to give adequate reasons is an important one to uphold if public confidence - but more importantly the confidence of litigants - is to be maintained in our courts and their processes. The decisions of appellate courts in this country leave no room for doubt on this score in relation to the decisions of judges: see e.g. Apps v Pilet (1987) 11 NSWLR 350; Sun Alliance Insurance Ltd v Massoud [1989] VR 8; Bennett and Bennett (1991) FLC 78, 251. The general criteria now being applied to judicial reasons are, in my view, appropriate for the Court to apply to its own officers where reasons are required to be given as a prelude to the exercise of a review of the decision of such an officer: cf Sun Alliance Insurance Ltd v Massoud, above, at 18 on those criteria. The effectiveness of the review process itself depends on the sufficiency of the reasons given. As Megarry V-C observed in Re Gibson's Settlement Trusts, Mellors v Gibson [1981] 1 All ER 233 at 243: The duty to give reasons is plainly most important. The reasons are needed initially to enable the unsuccessful party to decide whether to carry matters further. If he does bring the taxation before a judge for review, the reasons are needed to enable the parties to know the propositions they have to attack or defend, and also to enable the judge to understand why the taxing officer did what he did....[t]he duty of the taxing officer is to make a full statement of all his reasons, and this duty may well entail stating specifically whether or not a matter complained of was taken into account.
The taxing officer in his decision referred (by reference back) to the genesis and history of this litigation and to the quantum of the claim made. The relevance of either of these matters to the taxation being undertaken is unexplained. I cannot on the basis of this material discern how and why it was concluded as a matter of judgment that 15 per cent was an appropriate figure in the circumstances. In these circumstances I consider it necessary to remit this matter to the taxing officer with the direction that he again make a determination as to the appropriate allowance for general care and conduct and that he provide reasons therefor to the appellant. I should emphasise that I am not encouraging prolixity. Neither am I endorsing the adoption of a mechanical, check-list approach to the exercise of discretion in light of O62 r22 and of Item 41. What I am suggesting is that when a taxing officer's reasons are considered in the light of that rule and that item, one should be able readily enough to discern what are the factors and considerations which provide the basis for the decision and, to the extent that specific objections have been raised to the percentage selected, what was the process of reasoning that has led to their allowance or disallowance. I should also emphasise that I am remitting this aspect of the matter to the taxing officer for a reason which was not the explicit subject of argument before me. Given that Mr Titan is conducting his own case and did object to the figure selected, given the unsatisfactory course argument on this allowance has so far taken, given the changing character of the respondents' submissions as the review has proceeded and as new material has been put before me, and given that this Court is being asked to review a decision which in my view clearly is inadequate in its reasons, I am of the opinion that this matter should now be regularised. As a matter of basic fairness, Mr Titan should be given adequate reasons for the decision rejecting his objections. Armed with these, he then, if so minded, can challenge the decision from a position of understanding. Little purpose would have been served in my view to yet again recall the parties to make further submissions about the allowance where the justification given for it despite objection, is itself inadequate - the more so because a submission attacking the decision on the ground of inadequacy of reasons would have been irresistible and, as I understand the position, it would have been my responsibility to alert Mr Titan to his rights in this regard: see Neil v Nott (1994) 121 ALR 148 at 150. Conclusions and Orders My conclusions are first, that the objection to the engagement of senior counsel on the appeal be allowed; and secondly, that insufficient reasons have been given by the taxing officer to justify his disallowance of the appellant's objection to the 15 per cent allowance for general care and conduct. Pursuant to O62 r44(5) I order that the certificate of the taxing officer be set aside. I direct the taxing officer (i) to tax the bill of costs on the basis that objection to the engagement of senior counsel should be allowed; and (ii) to reconsider the allowance to be made for general care and conduct and to provide the appellant in his certificate or some other document, his reasons for decision on that reconsideration. I certify that this and the preceding 20 pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate Dated: 11 October 1995 Applicant in person : Jozef Titan Counsel for the respondent : D C D Harper Solicitors for the respondent : Abbott Tout Russell Kennedy Date of hearing : 8 August 1995 Date of judgment : 11 October 1995
Australian Coal and Shale Employees Federation
Commonwealth
CATCHWORDS COSTS - Appeals as to Costs - Taxation - reconsideration by the taxing officer - appeal from reconsideration - 'practice' of superior courts - general care and conduct - percentage allowance chosen - adequacy of reasons - duty of taxing officer to give adequate reasons. COSTS - Appeals as to Costs - two counsel - costs for senior counsel - litigant in person on appeal to Full Court of the Federal Court from decision of the Full Court of the Supreme Court of the ACT - relevant considerations COURTS AND JUDGES - Judges - role of judges where self-representing litigant. Federal Court Rules Order 62 r44 Federal Court Rules Order 62 rr19, 22 Federal Court Rules Second Schedule, Item 41 Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621, applied. Magna Alloys & Research Pty Ltd v Coffee (No 2) [1982] VR 97, applied. Pacific Dunlop Ltd v Australian Rubber Gloves unreported, Federal Court, 17 August 1993, applied. Re Gibson's Settlement Trusts, Mellors v Gibson [1981] 1 All ER 233, applied. Neil v Nott (1994) 121 ALR 148, applied. Schweppes' Ltd v Archer (1934) 34 SR(NSW) 178, applied. Stanley v Phillips (1966) 115 CLR 470, applied. JOZEF TITAN v TOMISLAV BABIC (First Respondent) JOHN WILLIAM KELLY (Second Respondent) and NRMA INSURANCE LIMITED (Third Respondent) No ACT G31 of 1992 FINN J CANBERRA 11 OCTOBER 1995
(1953) 94 CLR 621
(1994) 121 ALR 148
(1966) 115 CLR 470
(1987) 11 NSWLR 350