28 Ms Deborah Susan Vine‑Hall practised as a solicitor from 1986 to 1989. Since that time she has practised first on her own account as a costs consultant and more recently as a director of DSA Legal Cost Consultants Pty Ltd. She has extensive experience in the preparation and taxation of bills of costs in a number of jurisdictions, including in this Court, and in relation to large commercial matters. She also lectures on matters related to costing. The approach taken by Ms Vine‑Hall to estimating the costs recoverable by the Bain respondents on a party/party basis may be briefly described. Where I refer to the "scale" I mean, as Ms Vine‑Hall evidently did, the scale of costs set out in the second schedule to the Federal Court Rules. In order to estimate the likely extent of recovery, on a party/party basis, of the solicitors' own professional costs, Ms Vine‑Hall applied the rates provided in the scale increased by 20 per cent for general care and conduct. Plainly this is a case where some allowance of that kind is appropriate. Ms Vine‑Hall allowed $48 per hour for work undertaken by a paralegal up to 14 July 1998 (an increase in the scale took effect on 15 July) and $53 per hour thereafter. She reduced the amounts allowed on those bases, for both solicitors and paralegals, by 15 per cent to take account of the use of the highest scale item; and she made a further reduction of 25 per cent for work which would not be recoverable on taxation on a party/party basis. She explained the process as follows:
"In my opinion, it is possible to obtain a very close estimate of the costs which would be recoverable for the work undertaken by solicitors, by using the amount allowed under scale item 31, that is the hourly rate item. Naturally, as the scale prescribes a lower rate for some types of work (for example, conferences with counsel) and a different basis altogether for other types of work (for example, perusing document or writing letters) it is then necessary to factor a reduction to take account of the fact that the item 31 rate is the highest end of the scale. It is also necessary to factor a further reduction for the work which might be held to be solicitor and client in nature. To that result should be added an amount which is likely to be awarded by the taxing officer for the general care and conduct item of the scale. This amount is discretionary; however, the taxing officers allow an amount within a range so that their decisions while taking into account the specifics of a particular matter, will be consistent."
29 Mr T E F Hughes QC, Mr L G Foster SC and Mr J V Nicholas appeared for the Bain respondents. According to Ms Vine‑Hall, the rates charged by Mr Foster and Mr Nicholas ($4,500 per day and $2,500 per day respectively) were well within the range usually allowed on taxation for difficult matters. Ms Vine‑Hall expressed the view that the rate charged by Mr Hughes ($6,000 per day) was at the highest end of the range but that, in view of the importance of certain cross‑examination, there was a good chance that "Mr Hughes would be allowed, in principle as a second senior counsel and at the rate claimed or close to those rates." It may be that that is not quite the way in which those representing the Bain respondents would have described the situation; the effect of the evidence, however, is clear enough. Ms Vine‑Hall proceeded to reduce the rate charged by Mr Hughes to $4,500 in order to arrive at a party/party estimate. She then made a further reduction to take account of the fact that not all work undertaken by counsel might be allowed on a party/party basis:
"Without a detailed analysis of the files it is difficult to estimate the areas where reductions might apply. For the purposes of this estimate I would allow 65% of Mr Foster's time, 75% of Mr Hughes's time (but at the lower rate) and 75% of Mr Nicholas' time, …"
30 Other disbursements were treated as follows. Ms Vine‑Hall took the view that the cost of the transcripts would be allowed in whole; so too would the fees and witness expenses of Mr Bryant and another expert, Mr Borglund (those amounts were, in the scheme of things, relatively small). Other expenses included photocopying, facsimiles, couriers and searches. They amounted to about $129,026. The photocopying was charged at a rate of 20 cents or less per page. Ms Vine‑Hall, in order to make what she described as a conservative estimate, discounted the amounts for facsimile, taxi fares, courier and "miscellaneous" costs entirely, leaving a total of $111,953, and then estimated the recoverable amount at $72,700. The final item was an amount for Dr Burt's travelling and accommodation costs, incurred when he travelled to Sydney to give evidence. Ms Vine‑Hall estimated the recovery of those expenses at $18,000, slightly more than half the amount actually incurred.
31 Ms Vine‑Hall estimated a total amount recoverable for costs and disbursements incurred up to the conclusion of the trial on a party/party basis; she also provided an estimate of the amount which would be recovered up to 24 February 1998 on a party/party basis and the amount which would be recoverable on the indemnity basis for costs incurred after that date. She proceeded on the basis that, on the indemnity basis, all amounts actually incurred would be recoverable. Her estimate of the total amount recoverable on that footing was $3,930,970.72.
32 It may be observed that by far the largest component of that amount is counsel's fees incurred after 24 February 1998 ($1,959,250) and the second largest component is the solicitors' professional costs incurred after 24 February 1998 ($744,075). I have already summarised Ms Vine‑Hall's comments on the rates charged by counsel. The hourly rates charged by partners and employees of the solicitors for the Bain respondents range from rates of $295 and $280 per hour for the two partners involved to amounts between $80 and $100 per hour for paralegals. There is no reason to think that those rates are by any means excessive in the circumstances. I have mentioned that the amounts of the other disbursements are relatively small components of the total sum. The photocopying rates seem entirely reasonable, and I see no reason to think that any of the other amounts are excessive or unreasonable. I shall, however, defer further comment until I have considered the evidence about the costs incurred by Mr Price.
33 Mr Price incurred costs only from 7 May 1998 and I have held that he is entitled to recover those costs on the indemnity basis. The total costs incurred by Mr Price from 7 May 1998 amounted to $1,163,387. That total is made up of solicitors' fees ($401,540); senior counsel's fees ($395,600); junior counsel's fees ($199,160); travelling expenses ($41,236); transcript ($70,530); fees paid to the firm of which an expert witness, Mr Ziffren, was a member ($19,800); and "miscellaneous general disbursements" ($35,521). The solicitors charged on the basis of hourly rates very similar to those charged by the solicitors for the Bain respondents; senior counsel charged at the rate of $4,000 per day and junior counsel at the rate of $2,400 per day. Ms Higinbotham expressed the view, based on her experience, that the items which were unlikely to involve dispute on taxation were counsel's appearance in court on hearing days; daily attendance of a solicitor to instruct on hearing days plus one hour's preparation time per hearing day; the transcript costs; and the travelling expenses.
34 In suggesting that other amounts might be disputable on a taxation (including on an indemnity basis), however, it is plain that Ms Higinbotham was not suggesting that the potentially disputable amounts would be disallowed in whole or even in large part. Her overall conclusion was that:
"… based on my experience and having regard to the rates charged by counsel and solicitors for the Sixth Respondent, if costs were to be awarded to the Sixth Respondent on an indemnity basis, I would expect recovery of between 90% and 95% of the expenditure. I have calculated the likely range of recovery for the whole of the Sixth Respondent's costs incurred in the period 7 May 1998 up to the conclusion of submissions, if awarded on that basis, at between $1,047,050 and $1,105,200."
35 The evidence is, I think, sufficient to enable me with reasonable confidence to fix gross sums to be paid both to the Bain respondents and to Mr Price. Plainly it enables me to do so only if I apply a much broader brush than would be applied on taxation, but that, it has been held in Beach, is what the rule contemplates. The form of order for payment of costs on the indemnity basis is to the effect that, subject to two exceptions, the respondents will be completely indemnified by the applicant for their costs as actually incurred. The exceptions are those costs which are of an unreasonable amount or were unreasonably incurred. Ms Higinbotham's expected discount of between 5 and 10 per cent no doubt arose because of those exceptions and having regard to the presence, among the items of costs actually incurred, of some which, in her experience, were likely to give rise to dispute. No doubt common sense as well as experience suggests that where there are disputes about a number of detailed items, it is unusual for every dispute to be resolved in the same way. It is, however, not possible for me, on the material before me, to consider in detail the potentially disputable items; and I must bear in mind both the omission of the applicant to make any submission on this aspect of the matter and the warning by von Doussa J in Beach at 123, which I have already quoted, that the Court must be astute not to cause an injustice to the successful party by making an arbitrary "fail safe" discount on its cost estimates. Nothing in the evidence suggests that there is anything surprising or excessive about the amount of costs incurred by Mr Price. Although it is right to recognise, as Ms Higinbotham does, that some discount is to be expected, I think a discount at the lower end of the range which she suggests is in the circumstances appropriate. On that basis, the gross sum to which Mr Price would be entitled is $1,105,200. That is the amount which he seeks by his amended notice of motion and I propose to order that he be paid that gross sum.
36 Ms Vine-Hall does not contemplate any discount in relation to the costs incurred, after 24 February 1998, by the Bain respondents. The amount which they claim by the notice of motion is $3,930,970, which is the sum of Ms Vine‑Hall's estimate of party/party costs up to 24 February 1998 and the full amounts actually incurred thereafter. I see no reason to discount Ms Vine‑Hall's estimate of party/party costs up to and including 24 February 1998. However, the considerations which suggested at least some discount of the indemnity costs recoverable by Mr Price suggest equally some discount in relation to the costs incurred by the Bain respondents. The more difficult question is how great that discount should be. Ms Vine‑Hall helpfully prepared separate estimates of costs, on both a party/party basis and the indemnity basis, incurred during the trial. A particularly striking aspect of the results of that exercise is that, whereas the solicitors' actual costs incurred during that period amounted to $744,075, Ms Vine‑Hall's estimate of the amount recoverable for those costs on a party/party basis is $195,990: her statement of the basis on which she makes that estimate is "141 days @ $870.00 plus say 2 hours per day general work @ $206.00." The difference between the amounts for counsel's fees - $1,489,342 on a party/party basis and $2,098,100 on the indemnity basis - is also considerable, but rather less striking. There are two particular matters, in addition to those which I have already identified, which must, I think, be taken into account. One is that Ms Vine‑Hall, whose evidence was unchallenged, expressed the view that it might well be that substantially all the fees charged by counsel might turn out to be recoverable on a party/party basis. That, perhaps, is a somewhat optimistic view but it does indicate, I think, that in the circumstances I should not rush to conclude that substantially less than the whole of counsel's fees might properly be recovered on the indemnity basis. Secondly - and this applies both to counsel's fees and the solicitors' own fees - both cross‑examination and the leading of evidence in chief covered a great number of complex events extending over a substantial period in relation to which varying evidence was given by a number of witnesses; and there was also a considerable volume of contemporaneous documentation to be mastered. This, plainly, was a case in which a great deal of work had to be done out of Court during the trial; and the volume of work undertaken by those representing the Bain respondents was, I should think, substantially greater than that undertaken by the solicitors and counsel for Mr Price. That is reflected in the substantially greater amount claimed by the Bain respondents.
37 Nevertheless, the very substantial differences between the party/party and indemnity estimates suggests, I think, that a greater discount is appropriate in the case of the Bain respondents than in the case of Mr Price. The discount should not be outside the range suggested by Ms Higinbotham in relation to Mr Price's costs but it should, I think, be at the higher end of that range. Accordingly, I think, the appropriate course is to reduce by 10 per cent the amount of the solicitors' and counsel's fees and general disbursements incurred after 24 February 1998. The sum of those items, so reduced, would be $2,481,997 and the total amount recoverable, including the amount for party/party costs up to 24 February 1998, a gross sum of $3,655,192.