Ralkon Agricultural Co. Pty Ltd v Aboriginal Development Commission & Anor [1986] FCA 320

Australian Coal and Shale Employees' Federation Vv. The Commonwealth (1953) 94 C.L.R. 621 at P.628

Fat-Sel Pty Ltd v. Brambles Holdings Ltd (1985) 61 A.L.R. 536 Commissioner of Taxation v. Gulland Watson, Legal Reporter 15 April 1996

Maqna Alloys & Research Pty Ltd v. Coffee (No. 2) (1982) V.R. 97 at p.109

} ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. G50 of 1981 ) )

JUDGE MAKING ORDER ? FORSTER J. WHERE MADE : ADELAIDE DATE OF ORDER 2 il JULY 1986

1. This matter be remitted to the taxing officer to make the necessary alterations to his certificate to comply

2. Further submissions be heard as to the appropriate

ote: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

) ) SOUTH AUSTRALIA DISTRICT REGISTRY } No. G50 of 1981 ) }

This is a review of a taxation of costs carried out by

the District Registrar of this Court. The review is pursuant to Order 62 Rule 44 of the Federal Court Rules. The applicant for review was the unsuccessful applicant in the main action ordered to pay the costs of the respondent. The applicant objects before me and objected before the taxing officer to the amount

allowed in the taxation with respect to fourteen separate items

or groups of items. Upon reconsideration pursuant to 0.62 R.43 the taxing officer taxed off entirely the amount he had allocated on taxation with respect to one item and reduced another item hy $100. The respondent, by a sort of cross-application for a review, applies for review of this decision of the taxing

officer. The application and the cross-application were heard

The first question to be decided is the nature of the review and the powers of the court when conducting it and the manner in which it should approach its task. Is the review a

hearing de novo as is contended for by the applicant or is it an

appeal stricto sensu as is contended for by the respondent? Order 62 R.44(4) and (5) are as follows -

"({4) On the review, unless the Court by order otherwise directs -

(6b) a party shall not raise any ground of objection not either stated in a Statement of objection or raised before the taxing officer.

(5) Subject to sub-rule (4), on the review, the Court may -

(a) exercise all the powers and discretions of the taxing officer in relation to the subject matter of the review;

(b) make orders for the alteration of the certificate;

(c) make orders for the remission of any item to the same or any other taxing officer for taxation; and

(d) make such other orders as the nature of the case requires."

It is said by the applicant that para. 5(a) appears in

the relevant rules of no other jurisdiction except that of the

Supreme Court of New South Wales (see 0.52 R.62). It is argued

that the presence of this paragraph in the Federal Court Rules and its absence from the relevant High Court Rules and the relevant Victorian Supreme Court Rules means that cases on the High Court Rules or Victorian Supreme Court Rules are of doubtful relevance. It is arqued further that the effect of para. 5(a) is to make this hearing a hearing de novo. No authority is cited for this proposition and I have found none nor has any authority based on the New South Wales rule been cited to me but it is asserted that the effect of para. 5({a) is to make the review a hearing de novo. Ido not think that this is so. Sub-rules 4(a) and 4(b) are entirely inappropriate for such a hearing. At a hearing de novo it would not be right to exclude further evidence. Limiting the grounds of objection to those taken before the taxing officer would be inappropriate to a hearing de novo. Exactly what is accomplished by sub-rule 5(a) Iam uncertain and the finding on this will have to await a

If I am to regard the review as an appeal stricto sensu how then am I to be quided as to how I. should proceed? With very great respect I am content to adopt the words of Kitto J. in

Australian Coal and Shale Employees' Federation Va The

taxing officer as to quantum is generally speaking Tinal, and that it must be a very exceptional case in which the Court will even listen to an

application to review such a decision : In the Estate of Ogilvie (1910) P., at p.245. But the authorities as a whole (not omitting to notice White v. Altrincham U.D.C. (1936) 2 K.B. 138, do not establish as an absolute proposition that a judge will never review a taxing officer's decision on a question of quantum only. Swinfen Eady L.J. said in Slingsby v. Attorney-General (1918) BP. 236, at p.239, after quoting the passage from Ogilvie's Case to which I have referred : 'The decision of the taxing master is not absolutely final, even on a question of quantum'; and so it has been held several times in Victoria, where the view has been accepted for many years that a taxing officer's decision on quantum will be corrected if the judge concludes that 'he has clearly made a mistake' : In re Melbourne Parking Station Ltd. (1929) V.L.R. 5, at p.89; House v. Life Insurance Co. of Australia Ltd. (1930) V.L.R. 165; Dwyer v. National Trustees Executors &

Agency Co. of Australasia Ltd. (No. 3) (1940) V.L.R. 366; Carrazzo v. Weyman (1944) V.L.R. 207;

McCoughtry v. Sehrick (1947) V.L.R. 342; see also, Russo v. Russo (1953) V.L.R. 57, I

respectfully adopt the summary of the law on this Matter which was made by Jordan C.J., with the concurrence of Harvey C.d. in Eq. and Street Jd., in Schweppes' Ltd. v. Archer (1934) 34 S5.R. {N.S.W.) 178; 51 W.N. 71. His Honour said:- 'In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he

possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted

jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved, and will do so freely ona proper case, using its own knowledge of the circumstances : Western Australian Bank v. Royal Insurance Co. (1908) 7 C.L.R. at p.388; Clark, Tait & Co. v.

142, at pp.145-146, but it will in general 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; and where the question is one of amount only, will

do so only in an extreme case' (1934) 34 S.R. (N.S.W.), at pp.183, 184; 51 W.N., at p.73."

I now-deal with the applicant's objections item by item

in order of importance at first rather than in numerical order.

Item 116 - Perusals for Discovery 9221 pages 27663 folios

It is conceded that if 27663 folios were properly perused the appropriate rate at the time was $1-60 per folio according to the second schedule to the High Court Rules which were applicable pursuant to the second schedule of the Federal Court Rules. It is said however that it was not necessary for one Smith an associate partner of the respondent's solicitors to peruse all the documents said to have been perused in order to decide whether or not they should be discovered. A relatively small number of documents was eventually discovered as a result of all this perusal. As a matter of principle I would say that ail reasonably possible sources of relevant discoverable documents should be explored and thus perused or at Ileast scanned. The taxing officer examined the documents and concluded that it was necessary and proper within this principle that they be perused. I was not pressed to undertake a similar exercise and I was left with the argument based on the relatively small number of documents discovered. The taxing officer taxed

off $4,871-92 because he was of opinion that a lesser number of

folios was perused. IT am unable to say that the taxing officer

was wrong to find that there were 24,619 folios fit and proper to

There is however a further point and that is that according to his affidavit sworn and filed in the taxation Smith spent a maximum of 60 hours on these perusals and probably less. Smith's time sheets for the relevant period record 26 hours for "attendances", 5 hours for "drawing" and 34.2 hours for "various". One can disregard the hours employed in "drawing" and Smith's affidavit says that the entries "in respect of work done by me in this matter, at the time, would have related substantially to the matter of discovery although I am unable to recall whether all such entries were entirely so". Smith also says that in filling in his time sheets he intended to give a conservative estimate of the time involved. Balancing one consideration against another I conclude an absolute maximum .of 60 hours was spent by Smith in perusing the relevant documents and probably less, If 24,619 folios were perused at least 410 folios or 103 pages must have been perused in each hour. In the absence of evidence that Smith is a gifted speed reader I do not believe that he could have done this more or less continuously or at all. I point out that perusal of a document means a consideration of its contents (Law of Costs, Oliver at p.214). Perusal is to be contrasted with scanning. In the scale at present applicable in the Federal Court scanning of documents is

chargeable at a different and lesser rate to perusal. In view

of the time said to have been taken to peruse a great number of documents I think it likely that Smith simply scanned many if not most of - the documents. At the relevant time no charge was provided for scanning in the applicable scale. I also point out that after $4,871-92 had been taxed off from this item it was allowed at a sum which remunerated Smith at the rate of more than $656 per hour. I consider that in allowing $39,388-88 for item 116 the taxing officer proceeded upon a wrong principle and If

I accept with respect the correctness of the decision of Beaumont J. in Fat-Sel Pty Ltd v. Brambles Holdings Ltd (1985) 61 A.L.R. 536. If the work of peruSal were actually done the fact that the application of the appropriate item in the scale of costs produces what seems to be an unreasonable result is irrelevant. The relevant scale as at March 1983 gave the taxing officer no discretion to reduce the result obtained by applying the scale to the work done. In the matter before me now however I cannot be satisfied that 24,619 folios were perused in the proper meaning of the word and in my view many of them must have been scanned for which there was at the time no charge allocated in the scale. What then is to be done? I have no doubt that a substantial amount of work was done in scanning and perusing documents but I have no way of knowing or of finding out how many folios were scanned and how many were perused it only being the latter for which any charge can be made. According to his

affidavit Smith has no clear recollection of what was done. I

must, I think, apply a broad axe to the problem bearing in mind the time taken, the number of folios actually discovered, the

surrounding circumstances and the fact that the onus rested upon

the respondent of satisfying the taxing officer and me that the work was done. Doing the best I can I assess the charge under

item 116 at $7,500 which means that a further $31,8B88-88 must be

taxed off. I point out that if the work took 60 hours this is

still remuneration at $125 per hour. If less hours were taken

The next general topic is counsel fees. There are five items or groups of consecutive items in the bill submitted for taxation which comprise counsel fees. Mr Debelle Q.C. of the independent bar was leading counsel for the respondent and Mr Ericson, a barrister and solicitor then in the employ of the solicitor's for the respondent, was his junior. Counsel fees are claimed for both. Counsel fees are charged for the court hearing of the action on a daily basis. There are fees for conferences, for reading, for advice, for perusing documents and

for drafting written submissions. Very little was taxed off the

In the first place it should be observed that the bill does not make provision for a fee on brief and refreshers for

either counsel. Generally speaking the time spent by each is

charged. For instance for time in court Mr Debelle 0.C. charges

$1,000 per day and Mr Ericson charges $666-66 per day.

"The time honoured basis of charging counsel's fees in respect of a court hearing remains the basis of a brief fee and refreshers of two-thirds of that fee, and prima facie this is the basis upon which counsel's fees will be taxed as between party and party. There must, in my opinion, be an onus upon the party who seeks a departure on taxation from that traditional and usual basis, and the onus must be one of satisfying the taxing officer that

the traditional method of fee marking could not reasonably have been followed in all the

circumstances of the case." (Magna Alloys v. Coffee (No. 2) (1982) V.R. 97 at p.112 per

In that case the taxing officer remodelled counsel fees which had been charged ona daily basis so as to provide for a fee on brief and refreshers. Fullagar J. approved this course despite being urged to depart from traditional practice. In the case at hand the taxing officer was urged to remodel the charges

for counsel fees in the respondent's bill but declined to do so.

In this I think he was in error and this error being an error of

principle I feel able to interfere. I note with interest the

reasons given by the Registrar of the High Court Mr F.W.D. Jones in Commissioner of Taxation v. Gulland Watson reported in the

Legal Reporter of 15 April 1986 with which I respectfully agree.

It was agreed by counsel before me on the hearing of the review that if a fee on brief plus refreshers were the

appropriate way to approach the assessment of counsel fees for

time spent in court, however much preparation should properly be included in the brief fee, was to charge a brief fee and ten

This was a difficult and complicated tase which took a long time in court and involved voluminous documentation and involved difficult and complicated questions of law and fact. However difficult and complicated the case may have been the distinction between yporcty and party costs and solicitor and client costs must always be maintained. Whatever agreement as to fees for counsel and the method of assessing them may be reached between counsel, solicitors and client and however proper in that context such fees and methods may be seen to be, there is

no warrant for introducing such fees and methods in a taxation as

between party and party when the provisions of 0.62 R.19 must he

"19. On every taxation the taxing officer shail allow all such costs charges and expenses as

appear to him to have been necessary or proper for the attainment of justice or for maintaining or

defending the rights of a party, but, except as against the party who incurred them, costs shall not be allowed which appear to the taxing officer to have been incurred or increased -

(a) through over-caution, negligence or misconduct;

(b) by payment of special fees to counsel or special charges or expenses to witnesses or

The fee to be allowed on brief must be taken to include a good deal of time spent in reading facts and law in preparation for trial. "I think the taxing master has a discretion to allow on party taxation a separate fee for preparation relating to facts or law or both, but that generally speaking he should allow

it only in matters of great complexity or voluminous

"In my opinion, as I have said. a brief fee itself is remuneration for a preparation extending up to at least a substantial part of the day hefore and the night before the

hearing, as well as for time spent in court before the first

refresher commences". (Magna Alloys & Research Pty Ltd v.

In the bill under consideration senior counsel charges for twelve and a half hours spent pre-trial in reading, perusing documents and reviewing law for which $1,220 is charged. Having

in mind the complexity of this case the guide to counsel fees in

the Supreme Court and the fact that this matter is in the Federal Court, I consider that the appropriate fee om brief for Mr Debelle Q.C. is $1,200 with refreshers of $800. This brief fee is some $450 above that mentiond in the Supreme Court guide to counsel fees for the relevant time. In my view this fee with

its consequential effect on the ten refreshers adequately reflects as between party and party the complexity and difficulty

of the matter and the time spent by Mr Debelle in preparation for

trial and in some of the additional conferences. Mr Ericson's fee on brief should be $800 and his ten refresher fees at $533. Disregarding conferences counsel fees for Mr Debelle Q.C. for the trial and preparation for it should be $9,200 and for Mr Ericson $6,130. There remain the questions of fees to counsel for

conferences are claimed and were allowed by the taxing officer

with only minor reductions. These conferences stretch in time from a time when the case was listed for trial and due for trial in two months to a little less than half way through the trial. It is argued by the applicants that by any standard the number of conferences charged for and allowed as between party and party is excessive. This argument was also put to the taxing officer and rejected by hin. In this I think he was wrong. The allowance of fees for a greatly excessive number of conferences with counsel both senior and junior sometimes together and sometimes separately amounts in my view to an error in principle which

justifies my interference with the exercise of the taxing

I have been supplied with a memorandum setting out some

detail of what was discussed at the various conferences some as I say with senior counsel and some with junior counsel, some with

both and some with representatives of the clients also present.

When I was more familiar with these matters, some fifteen years ago, the practice in the Supreme Court of South Australia with respect to taxation of a bill of costs between party and party ina run of the mill action such as a running down case was to allow one conference between party and party with counsel before the trial and none during the trial unless something entirely unexpected occurred. In matters of greater complexity two or perhaps even three conferences would be allowed on taxation between party and party. The propriety of allowing any more than one, two or possibly three conferences would be examined very closely indeed. Iam informed by counsel that this is still the practice in the Supreme Court of South Australia. This seems to me with respect to be a useful and

The case at hand was, as I have said, a difficult and very complex one. Having considered the matter carefully and in particular having considered the memorandum submitted with details of the conferences, I have decided to allow the fees for four of the conferences, the detail of which is set out in the memorandum. These conferences are as follows -

1. Item 78 - 15.2.83 - conference Mr Debelle ° Q.C. with Messrs Wilson, Anderson, Prior and Smith.

2. Item 172 - 7.4.83 - conference Mr Debelle 0.C. and Mr Ericson with Ms Featherston and Messrs Prior, Anderson and Smith.

4. Item 197 - 13.10.83 - conference Mr Debelle Q.C. with Messrs Muddle and Tynan.

The first three of the above conferences took place

before the trial began and concerned generally preparations for the trial. The last conference took place during the trial

when, in my view, it was necessary to confer with two witnesses to be called by the respondent in order to discuss evidence

Finally on the topic of counsel fees, the fees allowed to Mr Debelle 9.C. for settling documents are objected to both on

the basis that it was not necessary to have senior counsel settle

the documents settled by him and also that the fees allowed as

Included in Item 78 - Fee to Mr Debelle Q.C. to settle defence $200

The taxing officer took the view that "while it may be unusual to

allow settling fees to Senior Counsel that is not to say that

such amounts are never to be allowed in an appropriate case. Taking into account all the circumstances of this matter I have formed the view that this was an appropriate case to allow such

fees...". I find myself unable to say that the taxing officer was so clearly wrong in allowing fees to senior counsel for

settling documents or in the quantum of such fees as to warrant my interference. It was a very difficult and complex matter and

I do not consider that it can be said that it was extravagant or in any other way unreasonable to have senior counsel settle these

two documents. The quantum of the fees appears to me to be high

Included in Item 197 - October 5th, fees to Mr Debelle Q.C. for drafting

reasons for decision and telephone conference to secure instructions thereon from Aboriginal Development Commission, Canberra $300

These items require some explanation. The proceedings taken by

the applicant were under the Administrative Decisions (Judicial

Review) Act seeking a review of a decision by the respondent.

In the middle of the trial it was discovered that although reaons

for the decision had been sought under 5.13 of the Administrative

Decisions (Judicial Review) Act these had not been supplied.

After intervention by the trial judge it was agreed that these

reasons would be supplied. It seems to me that even though the

trial judge may have encouraged the respondent to supply reasons under 5.13, the preparation and supply of those reasons which should have been supplied quite a long time before, was, in no sense, an essential step in the proceedings. Such reaons are required to be given by the person making the decision in question irrespective of whether any proceedings may be taken to seek a review of the decision. The right to reasons is a right separate and apart from the right to seek a review although of course the reaons given may establish grounds for seeking a review. In any event it seems to me that the obligation of complying with the request under s.13 was the respondents which should know perfectly well why it made a particular decision. I cannot see that it should be necessary or proper as between party and party for the unsuccessful applicant to be saddled with the expenses of the respondent in complying with its obligations under s.13. To get counsel to draw and settle the reaons seems to me to be an extravagance which the respondent should bear

I deal now with the remaining items in the bill to which

objection is taken and deal with them in numerical order.

Item 120 ~ Copies of Discovered Documents for Counsel $3,868-80.

There were 4,836 sheets which required copying. There was no dispute before me that the sheets needed copying or that

the charge per page is above what is permitted by the relevant

scale, but it was argued that copying of so many sheets produced an unduly high charge which should be mitigated. Even assuming that this is so there was at the time the work was done no discretion in the taxing officer to reduce the result arrived at

by applying the High Court scale then applicable pursuant to the

second schedule of the Federal Court Rules. (See Fat-Sel Pty Ltd v. Brambles Holdings Ltd (supra)). The taxing officer did

not interfere with this charge and I consider that he was

Item 159 - Perusing Transcript $1,070-40 allowed on taxation at

It is contended by the applicant that nothing should be

allowed for perusing the transcript to date, i.e. 22 July 1983.

The taxing officer was of the view that because of the complexity of the matter and the fact that there had been a number of interlocutory applications "a limited reading of certain portions of the transcript was necessary and accordingly a fee should be

allowed for it". Iam unable to say the taxing officer was

Item 171 - Instructions for Brief charged at $9,500 and allowed

"Rider A" a detailed schedule of items individually charged for,

the charges for which added up to s5,203. Some of the items in this detailed schedule should not properly be there under the

heading of instructions for brief although they may be otherwise chargeable. The taxing officer deals with this and his approach qenerally to the assessment of a charge for this item as

"In any event, I did net consider it necessary to make a decision on whether each individual item is allowable, see Grant v. Australian Knitting Mills 1937 SASR 113 at page 115 where the Court heli that a Master when considering an amount for instructions for brief 'is not obliged ta assign separate amounts for various particulars, but he must take tem (sic.) all into consideration when deciding what was necessary or proper for the attainment of justice, or for defending the rights of the party'. I accordingly considered the contents of 'Rider A' to enable me to assess the charge which should be allowed under this item. Ihave also had regard to the pleadings and evidence both of witnesses and documentatary (sic.) which I find is substantial. In addition I have taken into account the amount claimed to be que which, while not quantified, concerned the | tenure of land within a community and accordingly if notional sums were assigned to the amount of money the case involved would obviously be substantial. I have ,aiso had regard to the labour and anxiety involved in getting up the evidence which again must be given due weight having regard to the nature of the claim and the importance of land tenure to the litigants in this matter. I have also had regard to the work done pursuant to this item and in all the circumstances of this case I allow the sum of $5250.00 as the 'base' figure for instructions for brief. To

• this figure should be added a component for skill care and consideration which has been described, somewhat aptly in my view, as the great imponderable. According to practice, an amount as to be added for skill, responsibility and the general management of the proceedings Higgins v.

Nicol and Others (no. 2), 21 FLR 34 at page 49 and in view of all the circumstances of this case I assess the sum of $1750 as being appropriate under this heading. I accordingly allow the total sum of $7,000.00 for instructions for brief."

I consider that the taxing officer allowed under this item a sum somewhat greater than I might have allowed myself were I taxing the bill at first instance but I am unable to say that this discrepancy is so great as to warrant my intervention and accordingly I determine that item 171 - Instructions for Brief

should be allowed as the taxing officer allowed it. Ttem 223 - Perusing Reasons $324.

This charge is for perusing the reasons for judgment of Fisher J. at first instance. The perusal is charged at the appropriate rate but it is said by the applicant that this is not a necessary party and party cost of the proceedings although it may of course be a proper party and party cost of any appeal. No authority or text was cited by the respondent in support of this contention that perusal of the reasons for judgment is not a matter properly to be included in a party and party bill. It seems to me that certainly when, as in this case, reasons for judgment are delivered but not read a successful party's solicitor must read the reasons so that he may inforn his client of the reason why he has succeeded and the extent to which he has

succeeded. I consider that this item should be allowed as

This was a copy of the reasons for judgment made for delivery to the successful client. Whereas I have found that

perusal of the reasons for judgment as a proper party and party

cost and similarly informing the client of the result, I consider that to make and supply a copy of the reasons for judgment is a

solicitor and client cost and thus should be disallowed.

Ttem 2742 - Fee to Australian Agricultural Consulting and

This company had knowledge and documentation concerning the early development of the applicant and knowledge of the purposes of its establishment and its management of the farm property the subject of the proceedings. The taxing officer came to the conclusion that the consultations with Hillock an employee of Australian Agricultural Consulting and Management Company Pty Ltd charged in this item as an account rendered "by Australian Agricultural Consulting and Management Company Pty Ltd to the respondent's solicitor in order to obtain the information held by Australian Agricultural Consulting and Management Company Pty Ltd were a proper party and party charge. It was asserted before him by the applicant that this item was incurred through over-caution or was a special charge and unusual expense. The

taxing officer considered that the matters upon which Hillock

informed the respondent's advisers were directly in issue between

the parties. Iam unable to say that he was wrong so to

I remit this matter to the taxing officer so that he may make the calculations made necessary by compliance with these

findings and make such alterations to his certificate as are

I should say that the cross application of the respondent was not argued ana I make no finding with respect to

The applicant has been partly successful in the review

and I will hear counsel as to the appropriate order for costs.

I certify that this and the preceding pages are a true copy of the Reasons