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[2012] QSC 47
General information, not legal advice.
Supreme Court of Queensland
2012-03-08
Ann Lyons J
Original judgment source is linked above.
[1] The applicants apply pursuant to r 742 of the Uniform Civil Procedure Rules (UCPR) for a review of the decisions of a cost assessor made in each of these three proceedings.
[2] The costs orders under review relate to the order of McMurdo J made on 1 March 2010 that the plaintiffs pay the defendants' 'costs as a result of the adjournment of the trial' on an indemnity basis after the trial was adjourned after five days of hearing due to the plaintiff's late disclosure. The costs order made in each proceeding is the same.
[3] There were two debt proceedings. In the first debt proceeding, 7342 of 2000, Hannover International Limited claimed repayment of the moneys alleged to be loaned by it to Charles Robson.
[4] In the second debt proceeding, 8937 of 2000, Mine & Quarry Equipment International Ltd claimed repayment of interest owing on moneys alleged to be owing to it by Charles Robson.
[5] The third action related to a Trust Action. In proceeding 10177 of 2004, Gary Robson claimed declarations that Charles Robson and Sandra Robson hold half their shares in Yalgold Pty Ltd on trust for Gary Robson pursuant to written declarations of trust they signed in 1989 and 1995.
[6] The trial of the three proceedings commenced on 22 February 2010 and was adjourned on 1 March 2010. The late disclosure by the plaintiff was described by the trial judge as a very serious default.
[7] There is no dispute that in each action the plaintiff (the applicant in these proceedings) was ordered to pay the defendants' "costs occasioned by the adjournment of the trial to be assessed on the indemnity basis". McMurdo J stated:
"There is a further debate about costs. The defendants seek orders that the plaintiff, that is Mr Gary Robson, pay their costs of the five days of trial last week to be assessed on the indemnity basis. Further, they seek an order that by the end of this month the defendants pay the sum of $100,000 to the trust account of the solicitors for the defendants to be held on account of those costs and that failing such payment, proceedings be stayed. Further again, failing such payment by the end of May, the proceedings stand dismissed.
I am not persuaded that it would be appropriate to visit the plaintiff, Mr Gary Robson, with all of those costs. I do not think that the five days of trial last week should be wasted. There may be a need to revisit some of the subject matter of last week's evidence, in particular with Gary Robson, but in my view it is appropriate to make what is the more usual order which is that the defaulting party pay the other party's costs as a result of the adjournment of the trial. They would clearly include the costs of today as well as such of the costs of yesterday as relate to the adjournment of the trial. I am satisfied that this is an appropriate case for indemnity costs. The default, on any view, is a very serious one." [emphasis added]
[8] The trial resumed nine months later in December 2010 and occupied seven days. The trial continued in February 2011for three days and concluded on 9 May 2011. The trial therefore occupied 17 days in total.
[9] On 7 February 2011 Charles Robson and Sandra Robson's solicitors served five costs statements in respect of the costs order made on 1 March 2010 in relation to the costs of the adjournment. The costs claimed in relation to the adjournment were $135,331.39.
[10] On 7 March 2011 the plaintiffs filed notices of objection to the costs statements rejecting all but $26,064.10 of the costs claimed.
[11] On 26 July 2011 a Certificate of Assessment was filed in relation to the three proceedings. The costs assessor assessed the total costs occasioned by the adjournment in the three proceedings to be $107,114.32.
[12] On 8 August 2011 the plaintiffs requested reasons for the assessments.
[13] Judgment was delivered in the three proceedings on 12 August 2011 whereby McMurdo J:
(a) dismissed the claim in proceedings 8937 of 2000 and 7342 of 2000; and
(b) made the declarations sought in proceeding 10177 of 2004.
[14] The costs assessor's reasons are dated 21 September 2011.
[15] The applicant submits that the costs certificates should be set aside and that, in lieu thereof, the Court should fix the indemnity costs occasioned by the adjournment of the trial at $45,900 rather than the assessed amount of $107,114.32.
[16] The applicant argues that the costs assessor made three errors of principle:
(i) the cost assessor manifestly erred by misapprehending the meaning of "costs occasioned by adjournment of the trial" and he included in his assessment costs which would have been incurred regardless of the adjournment. It is argued that this error led to the costs being grossly overstated;
(ii) the costs assessor allowed GST on disbursements without satisfying himself that there was a basis to claim GST on disbursements. It is argued that this error of principle led to the costs being overstated by a further factor of 10 per cent; and
(iii) the costs assessor failed to consider the matters required by r 703 of the UCPR when considering identical items of costs which appear in each of the costs statements.
[17] There is no doubt that a costs assessor appointed pursuant to the UCPR has a very broad discretion and the Court, on review of such an assessment, has a similarly wide discretion. In the recent decision of Nashvying Pty Ltd v Giacomi[1], Jones J discussed the relevant principles:
"[3] Before dealing with each of these items I should state the principles which govern a review of this kind. The application is made pursuant to R. 742 of the Uniform Civil Procedure Rules (UCPR). By sub-rule (6) thereof the Court may do any of the following:-
(a) Exercise all the powers of the costs assessor in relation to the assessment;
(b) Set aside or vary the decision of the costs assessor;
(c) Set aside or vary an order made under R. 740(1);
(d) Refer any item to the costs assessor for reconsideration, with or without directions;
(e) Make any other order or give any other direction the court considers appropriate.
[4] The discretion conferred by the sub-rule is a wide one. But it is to be exercised with a consciousness that it is effectively an appeal against the exercise by the cost assessor of a discretion. In general, the Court will interfere only where the discretion appears not to have been exercised at all or to have been exercised in a manner which is manifestly wrong: Australian Coal and Shale Employees Federation v The Commonwealth. The plaintiffs contend that the cost assessor's discretion miscarried because he failed to give due weight to the importance of the proceedings to the plaintiffs when considering what was 'necessary or proper' within the meaning of R. 702. The defendant accepts that the proceeding raised important issues and did not object to senior and junior counsel being retained by the plaintiffs at the final hearing. The review questions whether the fees of both senior and junior counsel are recoverable on a standard basis assessment on the hearing of an interlocutory application and for settling of pleadings and what fees are appropriate for preparation for trial. I will turn then to the individual items in dispute."
[18] In Australian Coal and Shale Employees Federation v The Commonwealth[2] it was held that the Court would review a decision of a costs assessor or taxing officer where it is contended the assessor proceeded on a wrong principle either in determining whether an item should be allowed or in determining how much would be allowed. However, the Court held that where there is no error of principle involved, the Court should be reluctant to interfere particularly where the question is one of 'amount only'. An applicant must therefore show that the discretion has not been exercised at all or that it was exercised in a manner which was clearly wrong.
Error as to the 'Costs occasioned by adjournment of the trial'
[19] The applicants argue that the first error of principle by the costs assessor relates to what he considered should be included in his assessment of 'the costs occasioned by the adjournment'. The assessor referred to these costs as the costs 'thrown away'. The applicants argue that the trial judge indicated that the costs wasted by reason of the adjournment would be the costs of Monday 1 March 2010 as well as some of the costs occurred on Sunday 28 February 2010, together with other costs 'occasioned by the adjournment', some of which would have been incurred both before and after the trial resumed.
[20] However the applicant submits that the costs assessor misapprehended the meaning of 'costs occasioned by the adjournment' of the trial and he included in his assessment costs which would have been incurred regardless of the adjournment. The applicant argues that three examples illustrate the manifest error in that assessment:
(a) The costs assessor included in his assessment the costs of reviewing the further disclosure on the basis that they were 'necessary work arising from the fresh disclosure' and he allowed 'reasonable preparation dealing with those issues'. It is argued that the error in this approach is that the disclosure should have been made in any event and that the costs of reviewing it would have been incurred in any event. Accordingly, it is argued the costs of reviewing the disclosure were not therefore costs occasioned by the adjournment.
(b) The costs assessor included in his assessment costs of preparing witness statements, preparation of witnesses for trial and arranging conduct money in pre-trial conferences. The costs assessor indicated that this was 'necessary work that had to be redone and was wasted', or 'reasonable work for resumed preparation, including preparation by a conference with counsel'. The applicant argues, however, that none of the witnesses were called. It is argued that therefore these costs were not costs occasioned by the adjournment of the trial and it was a manifest error to include them.
(c) The costs assessor included in his assessment miscellaneous items such as organising searchable electronic files and transcripts and costs of preparation of cross-examination notes, pleading memoranda and conferences with counsel. It is argued that these are not costs occasioned by the adjournment of the trial.
[21] Before turning to a consideration of the applicant's argument it is important to consider the circumstances surrounding the adjournment. In his reasons granting the adjournment and awarding costs on 1 March 2010 McMurdo J stated:
"Yesterday, a substantial amount of documentation was provided by the plaintiff's side to the defendant's side. It was apparently material brought to Australia by a witness who came from Vanuatu who is an accountant associated with the plaintiff's side of the proceedings."
[22] It was submitted by counsel for the defendants that the plaintiff, Gary Robson, had control of those documents at all times and that they should have been disclosed 10 years previously. The transcript indicates that once the material was received by counsel on Sunday afternoon it took some 12 hours working through the night to review the documents "on the fly"[3] without investigating them thoroughly. Counsel for the plaintiff very fairly conceded that on the present state of the disclosure it would be unfair to the defendants to proceed and did not oppose the application to adjourn the trial. In terms of the future conduct of the trial it was intimated by senior counsel for the defendants that, at the resumed hearing,
"there is inevitably going to be some repetition, Mr Gary Robson is going to have to come back for further cross-examination on the documents which had been disclosed and potentially those which may be disclosed. We're not suggesting that the - there will be a complete loss of five days' evidence but there is inevitably going to be some revisiting of matters that were previously closed."
[23] In relation to the grounds raised by the plaintiff's notice of objection to the costs statement, it is apparent from the assessor's reasons that the arguments raised in this application are indeed substantially the same grounds that were argued in the notices of objection.
[24] In order to succeed on this application the applicant needs to establish that the assessor did not exercise his discretion or that he incorrectly exercised his discretion. In the present case the assessor did exercise his discretion.
[25] In relation to how he actually approached his task the assessor's reasons indicate that he was well aware of the applicant's objections and note the basis of the applicant's objections to the amounts claimed. The assessor stated that there were competing arguments as to which of the aborted hearing days ought to be covered in the scope of the costs order. He then considered the transcript of the hearing before McMurdo J on 1 March 2010 and indicated that the scope of the costs order was not limited to the date of 1 March only and the previous day.
[26] The assessor indicated that in assessing the costs 'thrown away' on an 'indemnity basis' he was required to apply the criteria under UCPR r 703. It was clear that, given the principles upon which indemnity costs are based, the assessor did not have any issue with the defendants having engaged two counsel or the rates charged by counsel. The assessor also satisfied himself that there was evidence to satisfy him that the hourly rates claimed by the solicitor were consistent with the rates and method of charging contained in a client agreement. After a thorough review and after specifically noting the applicant's objections the assessor allowed the preparatory work for the resumed hearing undertaken by the lawyers on the weekend before 1 March 2010 but did not allow any work on the preceding Friday as he did not accept those costs "as being encompassed as costs thrown away and occasioned by the adjournment". He considered that most of the weekend work was required and was reasonable on the basis of the late disclosure. The reasons specifically note:
"I therefore allowed all of the preparatory work undertaken by the lawyers on that weekend between the two hearing dates, but did not allow any work on the preceding Friday trial date. When one considers the transcript, it is apparent that nearly all the work required by Russell and Company occasioned by the late disclosure by the Plaintiffs, and which ultimately resulted in the adjournment on Monday 1 March 2010, was all reasonable work and much of it wasted by the subsequent adjournment.
Having regard to the relevant authorities concerning the manner in which indemnity costs are to generally be assessed (see Bottoms v Reser, unreported de Jersey, CJ, 29 November 2000_; Henley_ v State of Queensland [2005] QDC 044; Amos v Monsour [2007] QCA 235), I was prepared to allow the vast majority of costs claimed in the respective Costs Statements as being reasonable and flowing from the late and additional disclosure by the Plaintiffs and thus causing the adjourned trial."
[27] The assessor did not allow costs to be charged for purely administrative matters as they should have been absorbed by the solicitor's hourly rates. Neither did he allow all of the work undertaken on the weekend. He considered that much of the preparation on the weekend related to the need to read the disclosed documents in case the trial proceeded, as well as to prepare the application for adjournment. He did not allow reviewing the disclosed material in full, particularly where it related to preparation for the resumed hearing.
[28] The assessor also found it reasonable to charge a full day's brief fee and considered that the defendants should also recover the fees rendered for preparation later in the year. The assessor considered that, when the trial resumed nine months later, it was reasonable for counsel to re-familiarise themselves with the matter. He considered that such costs were costs that were within the scope of those 'thrown away'.
[29] I concur with the assessor's indication that McMurdo J clearly left the matter to the discretion of the assessor but intimated that he did not think all five days' costs were costs that were thrown away. Furthermore, rather than actually limiting the costs recoverable to 1 March and the previous day, McMurdo J indicated that
"Well, at the moment I think it's the costs thrown away by the adjournment which would certainly include today and an assessor would no doubt include within that some of the work that as done on your side before midnight last night." (my emphasis).
In my view His Honour was clearly leaving the matter to the assessor to ascertain.
[30] In this regard what is considered to be 'thrown away' it is clearly a matter for the assessor's discretion. In The Fashion Warehouse Pty Ltd v Pola[4] Williams J (as he then was) held:
"it was for the Taxing Master in the exercise of his discretion to determine what costs were actually "thrown away". All that those cases establish is that for costs to be allowed as- "costs thrown away", they must have been, in the opinion of the Taxing Officer, reasonably incurred and relate to the work done which has become wasted in the circumstances."
[31] In relation to the indemnity basis for the assessment of costs, UCPR 703(3) provides:
(3) when assessing costs on the indemnity basis, a cost assessor must allow all costs reasonably incurred and of a reasonable amount, having regard to-
(b) any costs agreement between the party to whom the costs are payable and the party's solicitor; and
(c) charges ordinarily paid by a client to a solicitor for the work.
[32] Furthermore, it is important to recall the principles underlying the assessment of costs on an indemnity basis as discussed by the Court of Appeal in Amos v Monsour[5];
_"_A determination of whether indemnity costs are "reasonably incurred" and "of a reasonable amount" within the meaning of those terms in UCPR r 704(3) will involve a consideration, at the time of the assessment of the costs, of all relevant circumstances pertaining in the particular case. As de Jersey CJ noted in Bottoms v Reser: "... In such an assessment, no niggardly or unduly narrow approach would be warranted." That is because indemnity costs are exceptional and are awarded only for good reason, here, because Mr Amos's conduct of the litigation effectively amounted to an abuse of process entitling Monsour P/L to be fully compensated for its reasonable expenses in defending the action. Sub-rule 704(3) in its terms requires the consideration of the scale of fees prescribed for the court (r 704(3)(a)); the costs agreement between the party in whose favour the costs order is made (r 704(3)(b)) and the charges ordinarily payable by a client to a solicitor for the work (r704(3)(c)). Other matters may also be relevant in a particular case. UCPR r 704(3)(a) by necessary implication requires the consideration of an element of proportionality. Cases from other jurisdictions are necessarily of limited assistance in construing the UCPR as they turn on their own facts and statutory provisions. An approach to the concept of reasonableness under r 704(3) which involves a consideration of proportionality is, however, consistent with the approach taken in Skalkos v T & S Recoveries Pty Ltd, Moore v Moore, Yvancich v Kennedy (No 2), McKeand v Thomas and Lownds v Home Office."
[33] There is a further helpful analysis of the decision of the Chief Justice in Bottoms v Reser by McGill DCJ in Henley v State of Queensland[6] as follows;
"[30] The Chief Justice considered the operation of this rule in Bottoms v Reser [2000] QSC 413. In that case his Honour had to deal with the approach to assessment of costs which had been ordered, after the commencement of the UCPR, to be paid on a "solicitor and own client" basis. His Honour concluded that under those rules the only bases for assessment were the standard basis and the indemnity basis, and that the order should be taken to comprehend "what is now regarded as the indemnity basis under r 704."
[31] His Honour went on to discuss the approach to assessment on that basis, ie, the indemnity basis. His Honour said at p.4 that it "encompasses all costs except so far as they may be of unreasonable amount or where unreasonably incurred." On the following page he adopted a comment from EMI Records Ltd v I C Wallace Ltd [1983] 1 Ch 59 at 74, that in determining reasonableness "the receiving party will be given the benefit of any doubt." He continued: "In other words, considerable liberality should ordinarily be extended in assessing reasonableness. That is indeed implicitly recognised by the reference in para (b) of sub-rule (3) to any costs agreement between a client and the client's solicitor. It would perhaps be an unusual case where, costs having been agreed in that way, they were then, on this process of assessment, to be excluded as 'unreasonable.' Plainly however if they warranted characterisation as outlandish, they ought no doubt nevertheless to be excluded. I emphasise my view that in such an assessment, no niggardly or unduly narrow approach would be warranted."
[34] Having considered the applicable principles in relation to- 'indemnity costs' and costs 'thrown away', which have been clearly elaborated in the decisions set out above, I can find no identifiable error in the approach the assessor took. He was clearly satisfied that it was not unreasonable to allow the inclusion of the work actually undertaken on the weekend before 1 March 2010 as well as the costs required to re-familiarise prior to the resumption of the trial. Clearly the work undertaken on Sunday 28 February 2010 included reviewing the first week of the trial and preparing for the resumption of the trial. The costs of that review of the first week and preparation for the second week were clearly part of the costs thrown away as the matter was ultimately adjourned. Furthermore, when the newly disclosed material came in mid-afternoon on Sunday, the focus shifted and that newly disclosed material had to be read and the existing documents had to be re-read to assess the impact of the new material on them. Further research had to be undertaken on the law and preparation for trial had to be made on the basis of the new disclosure. In addition to actually preparing for the resumed hearing with the newly disclosed material, an application had to be prepared in support of an application for an adjournment.
[35] The assessor allowed the costs for the preparation of the adjournment application, however the costs of preparing for trial on the basis of the newly disclosed material was not considered as part of the costs thrown away as the assessor considered that "the Defendant's solicitors would have had to review the newly disclosed material at some stage and was therefore not work thrown away".[7] It was clear however that a review of that newly disclosed material for the purposes of the adjournment application only was part of the costs 'thrown away' as it was clearly considered distinct from a review as part of the actual preparation for the trial. Similarly, many other items were ruled out and considered not to be costs 'thrown way'.
[36] In terms of the rates that were charged by the solicitors for the defendants in the costs statement there is no evidence that the assessor erred in this regard. The assessor satisfied himself as required by r 703(3)(b) about the rates agreed to be charged between the solicitors and the defendant and stated;
"I satisfied myself from examination of the Russell and Company files that the hourly rates claimed in the Cost Statement were consistent with the rates and method of charging contained in the various invoices delivered to the Costs Applicant/client over the period of the work claimed in the Cost Statement. Whilst I did not sight a client agreement in the extracted files provide to me, nevertheless I believe that the invoices and the work ledgers located on the Russell and Company files provided me with sufficient evidence as to the manner of charging their client."[8]
[37] The applicant also argues that the cost of re-interviewing the witnesses subsequent to the adjournment is not appropriate and should not be allowed as those witnesses were not ultimately called. In my view however the question as to whether they were actually called to give evidence or not is not determinative of the question whether they were costs 'thrown away'. The real issue is whether the costs associated with the interviews and the preparation of statements were 'not unreasonable'. Clearly it was within the assessor's discretion to consider those costs were not unreasonable and were an appropriate response to the late disclosure. Clearly those avenues of inquiry needed to be explored even if they were ultimately eliminated. I can see no error in the approach the assessor took in allowing those costs.
[38] Similarly, the further complaint is that the assessor included in his assessment miscellaneous items such as organising searchable electronic files and transcripts and costs of preparation of cross-examination notes, pleading memoranda and conferences with counsel. In my view it was within the assessor's discretion to consider that the costs of these items was 'not unreasonable' given the trial had to be adjourned for nine months and there was certainly a need for both counsel to re-familiarise themselves with extensive material including the transcript of a week's evidence.
[39] I can find no basis therefore for the first error contended for by the applicant. The assessor considered that all those costs were 'reasonably incurred' and of a 'reasonable amount', bearing in mind that a restrictive approach should not be taken and that the "receiving party will be given the benefit of any doubt" and that "considerable liberality should ordinarily be extended in assessing reasonableness".
[40] The applicant argues that the second error of principle was that there was a manifest error in relation to the costs assessor's treatment of GST. The applicant argues that when the costs assessor's costs statement was initially delivered it did not claim GST on disbursements. An amended costs statement was subsequently delivered which claimed GST on disbursements.
[41] It is clear from the costs assessor's reasons that he queried the GST status of the costs applicant as an individual, on the basis that there had been no GST claimed on outlays. It was confirmed by counsel, however, that the client in fact wanted to claim GST and directions were then given for an amendment wherein the GST component was added back in by the costs consultant.
[42] It is argued that the costs assessor erred in principle by failing to satisfy himself as to whether the defendant was registered for GST instead of having regard to the fact he wanted to claim GST. It is argued that he did not require any explanation as to why the initial instructions about GST were wrong and neither did he undertake any search himself of the defendant's registration for GST.
[43] The assessor clearly amended the assessment after he was advised of the defendant's accurate GST status. It is a matter for the assessor as to how he satisfied himself of this purely factual matter and I can see no error of principle. The assessor clearly indicated that Significantly, UCPR r 720(4) provides that not only does the assessor decide the procedure to be adopted on a costs assessment but that the assessor is not bound by the laws of evidence or procedure and may be informed of the facts in any way the costs assessor considers appropriate. The assessor's discretion did not miscarry.
Error in relation to the apportionment of costs amongst the matters
[44] The applicant submits that the third error of principle made by the costs assessor is that when he considered identical items of costs which appear in each of the three costs statements the assessor failed to consider the matters in UCPR r 703. Rule 703 requires that the assessor, when considering costs on the indemnity basis, must allow all costs reasonably incurred and of a reasonable amount, having regard to the scale of fees prescribed for the Court and any costs agreement between the party to whom the costs are payable and the party's solicitor, as well as charges ordinarily payable by a client to a solicitor for the work.
[45] It is argued that whilst a number of the larger items might appear reasonable they appear identically in all three costs statements and accordingly the assessor was required to assess whether in aggregate the claimed costs were reasonable.
[46] If one considers the assessor's reasons there is no doubt that this is, in fact, the approach that the assessor undertook. The assessor stated in his reasons:[9]
"Regarding Objection No 3 [in each assessment] for $4,000.00, which raised an apportionment issue across all three Cost Statements, firstly, the alleged table of comparisons prepared by Mr Norquay, solicitor, was only provided to me late in the assessment process, and secondly, even having regard to that document, I was more swayed by the submission from Russell and Company that appropriate apportionment had been made across the three similar Cost Statements. Further, as will be noted from the below table, I made some reduction where there appears to be a need for apportionment across the three documents."
[47] In my view the applicant has not satisfied the onus on him to establish that the assessor has conducted the assessment in a way which is manifestly wrong. I can discern no error of principle. It may well be that I and, indeed, the trial judge might well have reached a different calculation and indeed a calculation which was significantly less than the assessor's calculation. However, that fact is irrelevant. Minds may differ as to what is considered to be 'not unreasonable'. The actual calculation was a matter entirely within the assessor's discretion. I can not discern any error of principle. The assessor's discretion did not miscarry.
[1] [2009] QSC 031 at 3-4.
[6] [2005] QDC 094 at 30-31.
[7] Assessor's Reasons for Decision at p5, item 11.
[8] Assessor's Reasons for Decision at p2.
[9] Assessor's Reasons for Decision at p4.
(1953) 94 CLR 621