Southwell v Jackson [2012] QDC 65

District Court of Queensland|2012-04-23

COSTS - Solicitor and Client - assessment of itemised bills - whether whole assessment ought to be set aside

COSTS - Solicitor and Client - assessment of itemised bills - when retainer terminated - whether care and consideration claimable - whether cost of itemised bills claimable

Amos v Monsour [2009] QCA 123 - cited.

Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 - applied.

Auspine Ltd v Australian Newsprint Mills Ltd [1996] FCA 673 - considered.

B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 - cited.

Brookfield v Davey Products Pty Ltd [1997] FCA 1462 - cited.

Re: Carter Newell's Bill of Costs [1996] 2 Qd R 13 - cited.

Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 - cited.

Cockerill v Collins [1998] QCA 76; [1999] 2 Qd R 26 - cited.

Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 - cited.

Fleming v Fleming [2009] Fam CA 552 - distinguished.

Mastronardi v New South Wales [2007] NSWCA 54 - cited.

Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 - cited.

Re: Moore [1996] QSC 212 - cited.

Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729 - cited.

Nationwide News v Naidu [2007] NSWCA 377 - cited.

Roderick v Telecommunications Corporation [1992] FCA 596; (1992) 39 FCR 134 - cited.

Schweppes' Ltd v Archer [1934] NSWStRp 17; (1934) 34 SR (NSW) 178 - applied.

South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 - cited.

Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 85 ALJR 1183 - cited.

Wide Bay Conservation Council Inc. v Burnett Water Pty Ltd (No. 9) [2011] FCA 661 - cited.

Re: Wingfield & Blew [1904] 2 Ch 665 - applied.

[1] On 25 November 2008 the applicants applied to the court for an order that three itemised bills they had received from the respondent be assessed under the Legal Profession Act 2007 ("the Act"). That order was made by consent by another judge on 18 December 2008. On 5 August 2011 the costs assessor filed three certificates, one in respect of each bill. On 21 December 2011 the applicants applied for orders to give effect to the costs certificates, in circumstances where the solicitor had, after the itemised bills were delivered, deducted the amounts of the bills from money held by her in trust, and where the certificates showed that the costs assessed were significantly lower than the amounts in the itemised bills. In response the solicitor filed an application for a review of the costs assessment on 13 January 2012.

[2] At that stage the respondent was not able to specify detailed grounds, because, despite a request for a statement of reasons for the assessor's decisions, his reasons had not been forthcoming. On 16 January 2012 I ordered the assessor to provide a list of the adjustments that he had made to each of the itemised bills, and to provide reasons for his decisions; the former were filed on 2 February 2012, and the latter on 15 February 2012. After the reasons became available the respondent filed an amended application for review, and (the same day) a further amended application for review.

[3] The assessment covered three itemised bills. The copies that I have on the file are not dated, or indeed signed by the respondent; it is not clear whether the bills as delivered were in this form. I shall for convenience identify them as follows:

(a) Bill 1: claimed $3,571.60 for work done between 5 December 2007 and 12 February 2008. The costs assessor certified the costs payable at $1,211.73, after deducting the costs of the assessment of the applicants assessed at $715.87.

(b) Bill 2: claimed $13,055.85 for work done between 15 October 2007 and 1 April 2008. The assessor certified the costs payable at $2,402.89, after deducting the costs of the assessment assessed at $1,075.88.

(c) Bill 3: claimed $50,786.30 for work done between 17 October 2007 and 14 April 2008. The assessor certified the costs payable at $29,972.37, after deducting the costs of the assessment assessed at $6,355.88.

[4] At the hearing I decided an issue as to the standing of the applicants to file the originating application, and their application of 21 December 2011. The next matter argued by the respondent was that the costs assessments should be set aside in total, on three grounds. The first was that there had been a breach by the costs assessor of his obligations under r 719. That rule provides:

"If a costs assessor has a direct or indirect interest in a costs assessment that could conflict with the proper performance of the costs assessor's duties, the costs assessor must, after the relevant facts come to the costs assessor's knowledge -

(a) disclose the nature of the interest to the registrar of the court; and

[5] The basis of the conflict of interest relied on was that at some point prior to the time when the costs assessor's certificates were filed in the court the applicants, who had become concerned about the length of the delay in obtaining them, complained to the Legal Services Commission about the costs assessor, and there was some correspondence between the costs assessor and the Commission about this. It was submitted by the respondent that this gave the costs assessor a direct or indirect interest in the costs assessment that could conflict with the proper performance of his duties. It was submitted that this was a mandatory provision which had not been complied with and that therefore the certificates ought to be set aside. It was further submitted that it was not to the point that there had been no application prior to the filing of the costs certificates by the respondent to set aside the costs assessor's appointment, because r 719 required action by the costs assessor not some step by the parties.

[6] Rule 719 complements the requirement in r 710(2)(d) that ordinarily before a costs assessor is appointed there must be a consent to the appointment by the costs assessor and confirmation that if appointed there would be no conflict of interest. It was obviously intended to deal with the situation where a costs assessor had been appointed but the existence of the conflict of interest emerged after the appointment. The rule assumes that a costs assessor will identify a conflict of interest if one emerges, and indicates what the costs assessor should do if that situation arises. In the present case, however, the costs assessor did not act under r 719; the rule does not specify the consequences of that situation.

[7] The first question is whether there was a breach of the rule by the costs assessor. In my opinion the rule is concerned with a conflict of interest in the traditional sense, a situation where there was some association between the costs assessor and a firm of solicitors involved in the costs assessment, or a situation where there was some association between the costs assessor and one of the parties, for example, if the costs assessor was a member of a firm of solicitors which had previously acted for one of the parties. I do not want to attempt a comprehensive analysis of the scope of a conflict of interest for the purposes of the rule, because it seems to me quite clear that the mere fact that one party has complained about the delay of the assessor in carrying out the assessment does not give rise to a conflict of interest for the purposes of the rule.

[8] The fact that one of the parties involved in the assessment is complaining about delay does not give the assessor even an indirect interest in the assessment. At most, it could put some pressure on the assessor to speed up the assessment process, but it is difficult to see how that could conflict with the proper performance of the costs assessor's duties, which in any event would, I consider, include conducting the assessment with reasonable expedition. I consider that there is some analogy with the situation where a party (or parties) to a proceeding before a court complains about delay on the part of the judge in delivering a reserved judgment. In some circumstances, appellate courts have taken into account the length of the delay before the judgment was delivered as a factor relevant to an appeal against the decision, but as far as I am aware it has never been suggested that the mere fact that a complaint was made about delay would require the judge to disqualify himself from delivering the decision, or even justify a disqualification.

[9] I think the position is the same here; the fact that the applicants were complaining about delay in completing the assessment, and had taken the further step of complaining to a supervisory body, did not in my opinion give the costs assessor a direct or indirect interest in the assessments and therefore did not trigger r 719. There can be therefore no question of setting aside the assessments because of a failure to comply with that rule.

[10] The respondent also submitted that there was a breach of natural justice on the part of the costs assessor, on a number of grounds. The first relied on was the existence of the conflict of interest, which in my opinion did not exist. The second was the delay in completing the assessments and filing the certificates, but I cannot see how that could have produced some breach of the rules of natural justice. In some circumstances, appellate courts have been concerned that delay in delivering reserved judgments has meant that by the time the judgment was prepared the trial judge had an insufficient recollection of the details of the matter properly to be able to resolve issues of credibility of witnesses, or to deal comprehensively with submissions which had been made at the trial;[1] usually this occurred in a context where there was something in the reasons for judgment to provide some logical support for that conclusion. In the present case, however, there is nothing in the reasons of the costs assessor which have been filed which suggests that these factors could have been applicable. There was no assessment of the credibility of anyone. There was no oral hearing, and the assessment was based on documents which would not have changed with the passage of time. The mere fact of the delay therefore does not justify setting aside the outcome of the assessments.[2] Indeed, it strikes me as perverse to deal with delay by starting the assessments again.

[11] I should say that I am speaking of delay simply in terms of the overall time that passed between the appointment of the assessor and his filing of the certificates. I have not investigated in these proceedings the details of how that delay came about, though it is apparent from the material before me that in this matter there were a number of occasions where the assessor sought additional submissions from the respondent in relation to particular points. It appears that in the course of the assessment the assessor identified a number of points which arose in relation to the bills which had not been raised specifically in the objections of the applicants, where the assessor sought submissions from the respondent (in compliance with the principles of natural justice) before deciding what to do about them. I am therefore using the term "delay" simply by reference to the fact that a long time passed, and without making any express or implied finding as to whether the conduct of the assessor in failing to provide assessments earlier was justified or excused by any relevant circumstances.

[12] A complaint was also made about delay in the provision of reasons, where the position in my opinion is much the same. Even if there was unjustifiable delay in the provision of reasons, that does not give rise to a breach of natural justice. I have therefore not investigated the question of whether the time taken to provide the reasons was in fact justified, or whether the costs assessor had any reasonable excuse. Again, this delay could not in my opinion justify setting aside the assessment and starting again.

[13] The respondent also complained about secret communications between the applicants and the costs assessor which should have been disclosed to the respondent. Proceedings in a court of course must be conducted in the presence of both parties, or at least with both parties having the opportunity to be present, and there are strict limitations on private communications between parties to a proceeding and the judge responsible for it.[3] Traditionally the process of taxing costs occurred before a registrar where the parties attended (or could attend) and any submissions about the taxation were made orally, but the current rules contemplate that, ordinarily, there will be no oral hearing before a costs assessor,[4] and I understand that in practice assessment on the documents is always or virtually always used.

[14] Although the matter is not specifically dealt with by the rules, obviously the party who has obtained an order appointing a costs assessor has to communicate with the costs assessor to advise the assessor of the order, and to provide the documents which, under the order, are to be provided. The procedure on the assessment is to be decided by the costs assessor and, unless there is an oral hearing, ordinarily communications about this with the parties would take place in writing, or by telephone. In the present case, the matter was complicated by the fact that the respondent's files, including the files which the costs assessor would have to examine in order to assess the bills, were in the possession of the Legal Services Commission, so that it was necessary for arrangements to be made to enable the files to be made available to the costs assessor for the purposes of the assessment.

[15] Even if the function of a costs assessor is properly characterised as judicial,[5] I do not consider that there is any obligation under the rules of natural justice for all communications to be disclosed to the other party, where those communications are only concerned with the mechanical processes of the assessment. On the other hand, the costs assessor ought not to have acted on any submission as to the substance of the assessment contrary to the interest of a party without disclosing the submission to that party and giving that party the opportunity to respond to it: Roderick v Telecommunications Corporation [1992] FCA 596; (1992) 39 FCR 134 at 142-145. It follows that there ought not to have been any communication about the substance of the assessment from the applicants or their solicitors which was not disclosed to the respondent so that she could have the opportunity to respond to it, at least unless the assessor was entirely unpersuaded by the submission and was proposing to reject it. But there was no evidence of that in the present case.

[16] The respondent's concerns were I think based largely on the unsatisfactory outcome of the assessment process from her point of view, and some indications that there had been some communications the details of which were not disclosed to her. To some extent, she found out about the latter as a result of the solicitors for the applicants providing to the costs assessor a costs statement in respect of their costs of the assessment, which became relevant as a result of the operations of s 342(2)(a) of the Act. That costs statement referred to some letters to the costs assessor, and some telephone attendances. At the hearing I was provided with copies of the letters concerned, and the diary notes of the telephone attendances, and it was clear that none of them involved any communication about the substance of the assessment, all being concerned with mechanical matters. Once they had been disclosed the respondent did not submit that there was any breach of the rules of natural justice as a result of those communications. I would certainly agree.

[17] The procedure adopted by the assessor is required to be consistent with the rules of natural justice, but also required to be efficient: r 720(2)(a)(c). In my view, having no communication with either party unless a copy of that communication was disclosed to the other party is not required by the rules of natural justice, and would be inconsistent with the requirement of efficiency, bearing in mind that no oral hearing is contemplated. I conclude that there was no breach of natural justice involved on this basis in the present case.

[18] It was also submitted that the costs assessor failed to take into account matters which should have been taken into account, in particular submissions which were received from the respondent in relation to particular matters raised by the costs assessor with the respondent. This submission was based largely on the fact that, in each statement of reasons prepared by the costs assessor, the material received was identified simply as "itemised bill, applicant's objections, solicitors responses, solicitor's file", and there was no reference to the respondent's later submissions. However, there were a series of these documents, they could be included in the term "solicitor's responses", and there was no reason to doubt that the costs assessor had in fact received them.

[19] No argument was advanced by reference to the reasons given in relation to any particular decision of the costs assessor that those reasons supported an inference that regard had not been had to the submissions, though the outcome differed from that contended for in the respondent's submissions. To some extent, the force of this proposition is tempered by the fact that the costs assessor's reasons focused on his justification for the conclusion arrived at, rather than providing anything much in the way of explanation for his rejection of submissions to the contrary.

[20] On the whole, however, I am not persuaded that the costs assessor has failed to have regard to, as distinct from rejecting, the further submissions put forward by the respondent. In any event, it appears that the matters which were the subject of further submissions were also the subject of specific argument before me, where those submissions were also relied on, so that in any event the decisions of the costs assessor in relation to them have been reconsidered in this review. I do not consider that this would provide any justification for going further and setting aside the outcome of the assessments generally.

[21] The remaining matters relied on were that the costs assessor failed to act with due care and attention, and had acted on preformed conclusions, and bias. As to the first, I am not at all sure that this would provide a basis for setting aside the decision on judicial review grounds, and as to the others, there is simply no evidence of prejudgment or bias. The only matter that the respondent relied on was the fact that the submissions which she had advanced did not persuade the costs assessor. The fact that those submissions were sought may well indicate that the costs assessor had a preliminary view in relation to those matters, but that does not mean that there was any prejudgment or bias; there was no indication that the costs assessor had formed a view from which he would not be swayed by further argument if that argument were able to show that his preliminary view was wrong.[6] In my opinion, there is simply no evidence of prejudgment or bias in the present case.

[22] It was also submitted that there had been a failure on the part of the costs assessor to assess the costs as required by s 341(1) of the Act, because the costs assessor had taken into account the consideration identified in paragraph (c), notwithstanding that there was a costs agreement between the parties which had not been set aside, so that for two of the bills the costs were to be assessed under that agreement; s 340 of the Act applied and paragraph (c) did not apply. This argument was based on the use by the costs assessor in his reasons of the expression "amount was fair and reasonable", or sometimes that the amount was not fair and reasonable, which reflected the test in paragraph (c). That on its face suggests that the costs assessor was applying s 341(1) incorrectly, but when the particular adjustments that were made by the costs assessor on the ground that the amount was not fair and reasonable are examined, it can be seen that what in fact was meant by the costs assessor by that expression in the context of these assessments was that the amount claimed was not calculated in accordance with terms of the costs agreement.

[23] I looked at some of these particular cases in the course of the hearing, and I have since looked at some other examples, and in all of them that I have looked at the adjustment in fact made by the costs assessor by reference to this ground was an adjustment to bring the amount claimed into line with the rates specified in the costs agreement. The respondent did not identify for me any example of an item where the amount claimed was reduced on the ground that the amount was "not fair and reasonable" and where the reduction was other than to bring the amount for the item into line with the amount calculated in accordance with the costs agreement.

[24] In these circumstances, it appears to me that the obvious conclusion is that the costs assessor has used the wording in paragraph (c) as a conventional shorthand expression to refer to the question of whether or not the amount charged was consistent with the rate specified in the costs agreement. That is what he was required to do, applying ss 340 and 341. The use of the phrase in this context may have been somewhat unfortunate, and it would certainly have been clearer if he had simply said that the amount was not in accordance with the costs agreement, but so long as that was what he was actually doing, the assessment has been correctly carried out, and the fact that the reasons might have been better expressed is not in my view a ground to set aside the certificates of assessment.

[25] I therefore conclude that none of the grounds relied on by the respondent for her submission that the assessments as a whole should be set aside are made out. In these circumstances it is unnecessary for me to consider the question of whether, if any of these grounds had been made out, I would have power to grant such relief. My power in the present circumstances arises under r 742, but that rule does not expressly contemplate the grant of relief from the assessment generally on what might be described as judicial review grounds.[7] It may be that such relief can be granted under r 742(6)(e), but otherwise it may be that the appropriate course for the respondent was to apply to the Supreme Court under the Judicial Review Act 1991. However, the point was not argued before me and it is not necessary for me to say anything further about it.

[26] The respondent next complained about a number of reductions which were said to have been made in error in relation to bill 3. The first was that Items 130, 132 and 134 appeared in the list of adjustments by reference to Objection 38, although that objection related to Item 129. This was a matter not mentioned in the reasons, but an examination of the items reveals that each involved work by a paralegal for which $30 was charged, when the amount of time specified in the bill would justify a charge of only about $17 on the rates for a paralegal's work set out in the costs agreement. In other words, these three items were not claimed in accordance with the costs agreement. The assessor reacted by reducing each of them by $10, which was being generous to the respondent as in my view each of them should have been reduced by $13 to bring them into line with the costs agreement.

[27] It seems to me that the only errors on the part of the assessor were in attributing the reduction to Objection 38 in the schedule of adjustments, and in failing to give reasons for this, no doubt because the matter had not been raised specifically in an objection. That gives rise to the question of whether the costs assessor can take into account anything which is not raised in an objection. In the case of a costs statement being assessed under Part 3 of Chapter 17A, r 722 requires an assessment to be limited to objections raised and otherwise to be dealt with under r 708. That rule by paragraph (3)(a) requires the costs assessor to allow the amounts claimed in the costs statement, though paragraph (4)(b) provides that this "does not prevent the costs assessor correcting an obvious error in the costs statement."

[28] I suspect that an adjustment of this nature comes within the terms of that paragraph, and could be justified even if this assessment were under Part 3, but this assessment was under Part 4 and the Legal Profession Act. There is nothing in the Act which requires the assessment process to be limited to matters specifically raised in a notice of objection, and r 722 does not apply to an assessment under Part 4: r 743I. Traditionally a taxing officer taxing a bill examined the whole bill and considered every item, although no doubt in practice the fact that there was no particular objection to an item would ordinarily have some practical effect on the extent of that consideration. It was always open to the taxing officer to disallow or reduce an item if it were thought to be unjustified. I think that the fact that there is no limitation on the scope of the assessment in the Act is of particular importance when considering an assessment under the Act[8], and in my view the obligation of a costs assessor under the Act is to have some regard to all matters in the bill, at least to the extent of picking up an error of this nature.

[29] I do not consider that there is anything confining the process of assessment to items the subject of specific objection, or indeed, to considering the items which are objected to only by reference to the grounds raised in the notice of objection, though this does give rise to an issue about the rules of natural justice. It does not appear that submissions were invited from the respondent in relation to these particular items, no doubt because, as proved to be the case when I asked her about the matter during the hearing, there was no submission she could advance in support of this part of the bill as drawn.

[30] It was said that Objection 98 disallowed postage on a letter the charge for which was allowed. An examination of the bill reveals that the letter was written on the same day as the respondent had a significant meeting with the addressee. This is not a matter dealt with expressly in the reasons, but I suspect that the obvious explanation for disallowing the charge for postage was that the costs assessor concluded that the letter had not been posted, but simply handed over during that meeting. This may qualify as a technical deficiency in the reasons, but does not suggest that there was actually any real error in the process of assessment. In any case, I would not act on a point which only involved 50 cents.

[31] Objection 99 related to Items 394 and 395. What was disallowed was Item 395, as appears from the list of adjustments, though the reasons refer only to the fact that Item 394 was not disallowed. Again, I think this was an error in the reasons, but the explanation for the adjustment is obvious enough. Item 394 was a charge for a 30 minute conference of the respondent with one of the applicants, and Item 395 was a charge for travelling time to and from the conference, 90 minutes. The applicant in question lives in Hervey Bay and the respondent practices in Caboolture, but said that she happened to be in Maryborough that day for other reasons, and it was therefore convenient for her to call on the applicant at her home. That may well be the case, but it does not in my view justify charging at the rate specified in the costs agreement for travelling from Maryborough to Hervey Bay and back. I think it obvious that the costs assessor has disallowed Item 395, and I would not disagree with that decision. Again, the deficiency is that the reasons did not deal with the disallowance of this particular item. That was an unfortunate omission from the reasons, but the actual decision is not shown to be wrong.

[32] Something similar happened in relation to adjustments to Items 478 and 493, which were attributed in the lists of adjustments to Objections 130 and 139. The former objected to Items 477 and 478, and Item 477 was allowed, for which reasons were given. Item 477 was for receiving invoices for dog expenses from a person, while Item 478 was for perusing the invoices, for each of which six minutes was claimed. The assessor obviously took the view that one lot of six minutes should have been sufficient for both processes. Again, the deficiency is in the reasons, but there is no reason to think that the actual decision was wrong. Objection 139 was to Items 492 and 493, the former was allowed but the latter disallowed in the list of adjustments, obviously because the costs assessor considered that one unit of six minutes was enough both to receive a letter which attached a tax invoice and to peruse the tax invoice. No error has been shown in the decision, though the reasons did not explain why Item 493 was disallowed. Overall, these deficiencies in the reasons are not of such seriousness as to justify otherwise interfering in the assessment.

[33] It was next said that the preparation of the certificate for bill 3 was incorrect. The assessor's certificate for bill 3 was that the cost payable pursuant to the bill were assessed at $29,972.37, comprising professional fees of $20,407.12 and disbursements of $565.25. The professional fees were said to have been arrived at after deducting the costs of the assessment, assessed at $6,355.88 including the assessor's fees of $6,000, but even so on its face the certificate does not add up. Reference to the list of adjustments shows that, from professional fees claimed at $50,177.10, the total deducted of $23,414.10 left a balance of $26,763. The disbursements were claimed at $609.20, $43.70 was deducted, leaving a balance of $565.50 which balances the amount in the certificate. However, if one deducts from the professional fees the costs of the assessment as assessed by the assessor, one is left with $20,407.12. If to this one adds the disbursements of $565.25, the total is $20,972.37. The explanation for the certificate is therefore obvious enough: it contains a typing error, in that what ought to have been a "0" has come out as a "9". That is a ground for correcting the certificate, but does not justify any other relief.

[34] The respondent submitted that the costs assessor had erred in disallowing what was claimed in Item 37, $732.60 for "instructions generally, and to brief counsel, all sundry attendances and perusals not herein and specifically referred to, care and consideration." The reference to briefing counsel is somewhat puzzling. Item 16 was for a telephone call to counsel "requesting advice on the matter" but there was no item in the bill for preparation or delivery of a brief to counsel, or any item for receiving advice from counsel, either orally or in writing. There was no specific item claimed for any attendance on the client in relation to instructions to brief counsel. The notice of objection sought the reduction of this item on the ground that 30% of the professional fees claimed was excessive, given that the work was largely of an administrative nature, and that the claim should be reduced for professional fees disallowed up to that point. However, the assessor disallowed the claim in its entirety, on the ground that the bill had been drawn and was being assessed in accordance with the terms of the costs agreement, and there was no provision in the costs agreement for charging "care and consideration".

[35] The costs assessor on 30 June 2009 sought submissions from the respondent as to whether she was entitled to charge for care and consideration in these circumstances, and on 8 September 2009 she made a submission to him in relation to this point[9]. That submission was also relied upon before me. The submission referred to the provisions in the schedule of the UCPR for costs in the Supreme Court, but the bill was drawn on the basis of the costs agreement, not on the basis of the Supreme Court scale. Much of these submissions do not address the relevant point. Where the agreement for retainer specifies that the solicitor will charge on a particular basis, then there is no right to charge on any other basis.

[36] The respondent submitted in effect that, on a bill based on time charging, she had a choice to charge care and consideration where an allowance was warranted, or not to do so where the matter did not warrant an allowance. She submitted that the client agreement did not specify that the hourly rate must be charged for all things normally included in care and consideration for a bill under the Supreme Court scale, or that all attendances of care and consideration must be separated from other items and covered by a single charge called care and consideration. It was submitted that "care and consideration allows for some types of recorded time, like research, but it also allows for some more nebulous time where to allow all the time would be unfair to the client but to allow no time would be unfair to the practitioner." She went on to give as an example a situation where an issue was pondered over a long period of time before a conclusion was arrived at, where she did not capture details of time spent pondering for the purpose of time costing every time she thought about the matter.

[37] The respondent was not able to point to any provision in the costs agreement with the client which provided any direct support for a right to charge for care and consideration. The most she could say in relation to the terms of the costs agreement was that it did not contain an express provision that care and consideration was not chargeable. She also submitted that it was inappropriate for the applicants to rely on the decision in Auspine Ltd v Australian Newsprint Mills Ltd [1996] FCA 673 because that concerned costs on a party and party basis, but she relied herself on the decision in Fleming v Fleming [2009] Fam CA 552, which was also concerned with the assessment of party and party costs, in accordance with the scale applicable in the Family Court. That scale was drawn on an item of work basis rather than a time cost basis, and the judge in that matter held that there was no care and consideration item in the Family Court scale, for which purpose he interpreted the use which could properly be made of a particular item which had been relied on in that matter as being in effect a care and consideration item.

[38] Not only can I find nothing in the decision which is relevant to the interpretation of a contract between parties as to the costs payable, but it contains at [151] apparent approval of the statement of O'Lachlan J in Auspine (supra) at [46] that in the application of the Federal Court scale there should not be any mark-up "for care and conduct in cases that are properly described as non-exceptional or run of the mill". As I understand the position, that does not reflect the practice when assessing in accordance with scale in Queensland, and if applied would be of no assistance to the respondent in relation to this particular bill.

[39] In my opinion the answer turns on the effect of the Act and the contract between the parties. Section 340(1) provides that a costs assessor must assess any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if a relevant provision of the costs agreement specifies the amount or a rate or other means of calculating the amount of the costs. The section goes on to provide exceptions, if the agreement has been set aside or if the cost assessor has been satisfied of certain things, none of which apply here. The question then is whether a relevant provision of the costs agreement specifies a rate or other means of calculating the amount of the costs; it did not provide for a lump sum amount.

[40] The agreement[10] was described as a client agreement, and noted that the Queensland Law Society Act "requires that a written agreement be entered into setting out the work ... and how the firm will charge the firm's fees and costs to the client." Clause 3(a) provided "The firm charges fees according to the time spent on the matter on the following rates", and some rates were then set out. The rates specified in Clause 3 were said to be "plus GST". It went on to refer to how the time was calculated (by reference to six minute units) and noted that time charging might result in a higher or lower bill than charging on the essential tasks performed on the basis provided in the relevant court scales as attached in Schedule 1. It went on to refer to charging for outgoings and certain services; Clause 3 also provided that certain services would not be chargeable, a provision to which I shall return. There was then a reference in Clause 5 about passing on to the client goods and services tax charged to the firm for any supply made to it. There were no other relevant provisions in the agreement.

[41] It seems to me abundantly clear that as a matter of construction the written agreement provided an express and exhaustive statement of the basis upon which fees would be calculated and charged for the work done by the firm. It is a time-charging basis, and there was no provision for an additional mark-up to cover "care and consideration" or the sort of matters ordinarily covered by such an item. The client pays for "the time spent on the matter", and the contract therefore proceeded on the basis that either someone in the list is spending time on the matter, or not. It also proceeded on the basis that all time spent on the matter would be recorded and charged. There was no provision in the agreement for any additional amount to be charged, and it necessarily follows that the decision of the costs assessor, that no charge could be made for care and consideration, was correct. Indeed, I consider that the costs assessor was obliged to disallow such a claim by s 340 of the Act.[11]

[42] The respondent's argument could only succeed if the circumstances justified the implication into the client agreement of a provision that the solicitor could also charge for care and consideration. In my opinion there is no basis for such an implication.[12] It would certainly not go without saying; I venture to suggest that the vast majority of clients would never have heard of the concept of care and consideration, but more fundamentally it seems to me to be in conflict with the clear terms of the agreement itself. It would also not be unambiguous; one of the issues that has arisen in relation to care and consideration is the basis upon which it is to be assessed. Apart from the authority referred to earlier, that it is to be allowed only in matters of unusual difficulty, it has also been said that if care and consideration is to be allowed in relation to a time-charging bill, it should be on a much lower rate than for a bill drawn on the basis of charging for particular work done,[13] where it has been recognised that that method of charging will often, indeed generally, not capture all of the work in fact put in by a solicitor.

[43] It is, however, unnecessary for me to explore the question of what amount could properly be charged under this heading where an agreement provided expressly for a care and consideration item in what is otherwise a time-charging bill. Obviously no court would imply into the agreement a term that the practitioner could charge care and consideration or not as she determined, and in whatever amount she liked. Yet, it seems that no other approach could justify the amount claimed in this bill.

[44] The next point raised was that Items 38, 39 and 40 had been disallowed, on the basis that the respondent was not entitled to charge the applicants for the preparation of an itemised bill. The respondent's submission was that neither s 332(6) of the Act, which provides that a law practice is not entitled to charge a person for the preparation of an itemised bill requested under this section, nor Item 5 in the schedule to the costs agreement, applied because neither of them had been followed in this particular matter; there had been no request for an itemised bill under s 332. It was nevertheless submitted that the bill was requested pursuant to specific instructions of the executors in an agreement reached between the parties on 1 February 2008, confirmed in a letter written 12 February 2008[14].

[45] That letter recorded that it was agreed that costs would be independently determined by a costs assessment, and there was some record of some discussion about the mechanism involved in appointing a costs assessor, but the letter does not record any express agreement as to who is to pay for the costs assessment. It did say in one paragraph, "To be clear, the cost assessor knows that they are engaged not on our behalf alone, but on our and your behalf as Executors in order to determine a fee fair which will enable this matter to be resolved without litigation regarding costs." Even if this might have amounted to an agreement with the client for the costs assessor to cost the file so as to determine the "fee fair", I do not see how it has anything to do with the costs of preparing an itemised bill.

[46] There was no other evidence of the terms of the agreement with the client on that day other than the statement in paragraph 83 of the respondent's affidavit that, "It was agreed that costs assessors would be engaged to independently determine costs because the beneficiaries were already raising queries about costs." The short answer to the respondent's submission is that there was no express agreement on the part of the client to pay the costs of drawing an itemised bill. It is therefore unnecessary to consider what precautions a solicitor would have to take before entering into such an agreement with lay clients, bearing in mind that, even apart from s 332(6), it is the long-standing and firm common law rule that a solicitor is not entitled to charge for preparing what is now described as an itemised bill.[15] In my opinion there is no substance to the submissions advanced by the respondent, and the costs assessor's decision in relation to these items was clearly correct.

[47] This bill covered work done by the solicitor in relation to the estate of the deceased before she had entered into a client agreement with the applicants and was therefore assessed on the Supreme Court scale: s 319(1)(b). The deceased, who had been a client of the respondent, was murdered, and the first the respondent knew about it was when she was telephoned by someone from the police advising that a warrant would be served for her files for the deceased. In response to that she did some work, including doing some research into the legal position and speaking to various people about what her position was in such a situation, and making contact with another firm to advise them what had happened and enquiring about whether they held a will. There were then some dealings with the police and with the coroner, in connection with which she made contact with the applicants and arranged for them to sign a waiver of confidentiality and legal privilege in relation to the files, which were then handed over to the police.

[48] At the hearing I expressed some difficulty in understanding how there was an entitlement to charge for this at all. It seems to me that what she was doing was finding out for herself what her response should be as a solicitor and how she should behave in the circumstances that had arisen, and that was work which was really directed towards protecting her position, rather than providing legal work for anyone else. The only connection with the estate was that the interest of the police arose because they were investigating the murder of someone who had been her client and for whom she had done legal work. However, this point had not been raised by the applicants in their notice of objection, or in submissions before the costs assessor, and the costs assessor had not dealt with the matter on that basis, and in the circumstances I proceeded with the review on the assumption that she was entitled to charge the estate for that work. I would not want it to be thought, however, that my decision involves any endorsement on my part of the correctness of that proposition.

[49] Item 5 of the bill was for the solicitor's researching lawyers' duties, essentially trying to find out what she should do in the situation in which she found herself, for which three hours were claimed. Curiously, at the end of the description of the item there was in brackets "care and consideration", but there was a separate Item 91, "care and conduct", for which $2,850 was claimed. The ground of objection was that this was clearly self-education, which seems to me to be obviously correct, although the costs assessor's reasons referred to research as being one of the matters referred to in Item 1 of the Supreme Court scale which, combined with the description "care and consideration", indicated that this was not properly claimed as a separate item, so it was disallowed. I listened to the respondent's submissions, but it seems to me to be clear almost beyond argument that this amount cannot properly be claimed under the scale as a separate item and was correctly disallowed by the costs assessor.

[50] The next matter argued was Item 19, the subject of Objection 16. Under this item the solicitor had charged for urgently assisting in the copying of files for the search warrant, checking the copying and mark-up of envelopes for release on completion (100 minutes), which was objected to on the ground that it was inappropriate for this work to be done by a solicitor. That seems to have been upheld, although the costs assessor also referred to the fact that there was no urgency as the warrant was not signed until two days later; the claim was reduced to an allowance for a clerk. It was submitted by the respondent that she was not to know when the warrant would be signed, and she had been told earlier that day that a warrant was to issue. It does not appear, however, that she was told that the warrant was to issue that day, or that the police wanted the material ready to collect that day.

[51] If the police had actually turned up with a warrant and were waiting for the material to be copied so that they could take possession of it, then there may well have been a degree of urgency which would have justified the solicitor in doing a clerk's work, but that was not the situation. The respondent further submitted that there was some solicitor's work involved in this, in that it involved her determining which documents were properly the subject of a claim for privilege, so that they could be separately identified and sealed up. In relation to this point, I think the short answer is that that is not what was charged for in the bill. On its face, Item 19 referred only to mechanical work, and under the Act the costs assessor can only assess the itemised bill that the solicitor has delivered. The solicitor cannot complain if the bill as delivered did not adequately claim for what was actually done. The assessor's decision was correct.

[52] Counsel for the applicants also made the point in relation to this item that the word "attendance" had been incorrectly used, when in fact the item simply referred to the solicitor's doing things. Traditionally the term "attendance" was used in the context of an item of work where a solicitor had to attend on someone, such as the client, counsel, the solicitor for the other party, the registrar, or the court. The term includes attending at a particular office, on the basis that, at least traditionally, going to an office meant dealing with a human being at that office. Presumably the term could properly be used now when the attendance involves dealing with a machine which is standing in the place of a human being, for example attending telephoning and leaving a message on an answering machine, although it would strike me as artificial to speak of, for example, attending an ATM.

[53] Its use was obviously inappropriate for Item 19, but this appears to be the fault of whoever drew these itemised bills, since this error was reproduced in a large number of other items in the bill; the word seems almost to have been tacked on whenever possible, and generally quite inappropriately. Fortunately, it does not appear that the costs assessor was misled by this inappropriate usage. What it does mean is that in any event Item 16(a) in the scale, which was the item identified for Item 19, was not engaged, because that speaks of an attendance, and this was not an attendance.

[54] Item 80 of the bill was described as a phone call to a particular barrister "briefing him to advise and receiving his advice re release of the file", claimed under Item 16(a). There appear to have been six previous similar calls to this barrister, and some contact with another barrister. The ground of objection was that by this time the matter had been concluded, and it was pointless to continue communicating with counsel. I have the distinct impression that what was actually happening here was that the respondent was ringing a barrister whom she knew to discuss the position, effectively to obtain informal advice for herself as to what she should do in the situation, in the way that one practitioner confronted with an unfamiliar situation might telephone a friend who might have some experience in the area and could provide some guidance. That sort of thing is I believe commonplace among lawyers, but I find surprising and novel the proposition that the client should be charged for doing it. However, the real point raised here by the applicants and decided by the adjudicator was that the respondent's retainer had been terminated by a letter on the previous day.

[55] The adjudicator referred to a letter of 12 February 2008 from the current solicitors for the applicants, and concluded that the instructions had been terminated by it, and that therefore this and some subsequent items could not properly be claimed. The respondent's submission was that the letter was not effective to terminate the retainer, and that the retainer continued until she terminated it some days later. This was on the basis that, for a termination of retainer to be effective, it needed to be plainly expressed, something definite, clear and precise: Re: Wingfield & Blew [1904] 2 Ch 665 at 684. As it happens, that case was not about how clearly expressed a letter from the client to the solicitor had to be to terminate a retainer, but about whether a wife's authority by reason of the relation of coverture to pledge her husband's credit when retaining a solicitor to act for her was terminated by an order for judicial separation.[16] Nevertheless, this statement has been subsequently cited as a general proposition and I accept that it is applicable.

[56] The letter from the applicant's current solicitors was in the following terms:[17]

We now have instructions from Irene Elizabeth Raps and Irene Joyce Kennedy who are the executors named in the last will of the above named who now instruct they want us to act for them in the administration of the estate.

We would be pleased if you could advise your requirements in order to allow transfer of the file.

We have received your fax dated 11 February 2007.[18] In view of these latest instructions we ask you to take no further steps in the estate's administration."

[57] The respondent submitted that this was not clear enough to terminate her authority to act, as it was communicating a desire that something happen at some time in the future rather than a statement that something was happening then, that is, that her instructions were terminated. There was no signed authority or direction from the clients (the applicants) and there was no clear statement that she was to do nothing more in relation to the estate, but merely a request. It was also noted that the fax dated 11 February 2008 had been sent to those solicitors as solicitors for a particular beneficiary, in relation to obtaining production of a key for the purposes of the estate, and it was submitted that the final sentence of the letter was to be understood in the context of that issue, and related to the particular property associated with the key, rather than the estate administration as a whole.

[58] I have considered the arguments advanced by the respondent, both orally and in the submissions put to the costs assessor, but in my opinion the letter is sufficiently definite, clear and precise as to the applicants' position effectively to terminate the retainer. The combination of the advice that the applicants wanted another firm to act for them in the administration of the estate and an enquiry in relation to the process of transferring the file unambiguously communicated that her instructions had been withdrawn; it is only in that situation that there would be any reason to be talking about the requirements for transferring the file.

[59] I do not consider that the last sentence of the letter is to be in some way limited by the subject matter of the fax of 11 February 2008, and consider that the last paragraph should be read disjunctively. The last sentence obviously referred to the instructions in the first paragraph, and clearly indicated that she was to do no further work in relation to the matter. There is no requirement that a termination of the retainer be effected only by a document signed by the clients personally, it was not suggested that the other solicitors did not in fact have their instructions to send that letter, and the only question was whether its terms were effective to terminate the retainer. In my opinion the costs assessor's conclusion that they were was plainly correct.

[60] The costs assessor's reasons referred to a letter sent by the respondent the same day in which she said to someone else, "The client has withdrawn instructions." It appears from this that the respondent was well aware of the effect of the letter of 12 February 2008 at the time, and indeed, although she wrote back to the other solicitors the same day,[19] she told me (the letter is not before me) that she did not in that letter seek clarification as to whether her instructions were withdrawn or not. Whether or not her instructions were withdrawn depends on the effect of the letter which is to be assessed objectively, but I consider it does not reflect well on the respondent now to be asserting that her instructions had not been effectively withdrawn if that was in fact the way she had understood the position at the time.

[61] It follows that the assessor's decision on this point was in my opinion correct and that he properly disallowed this item, and the following 10 items. The same point also arose in relation to bill 3.

[62] The other matter which arose in relation to this bill was Item 91, the care and conduct item. I have already mentioned that earlier. This bill is being assessed according to the Supreme Court scale, where care and conduct can be charged. The ground of objection was that the rate (over 30% of the professional fees claimed) was excessive for a matter described as quite straightforward; it was said that a generous allowance would be not more than 15% of the professional fees in fact allowed up to that point. The costs assessor referred to the matters listed in Item 1(a) to (h) of the Supreme Court scale, and something which had been said in the Court of Appeal,[20] which provided some additional guidance as to matters that could in a particular case be relevant to an assessment under Item 1. The costs assessor then allowed an amount of about 20% of the professional fees allowed on assessment. It appears that the amount claimed was reduced both because the professional fees otherwise claimable were reduced, and because the percentage was reduced.

[63] It was submitted that the costs assessor had failed to recognise the novelty, difficulty and complexity of the work done the subject of the bill. It was submitted that the situation of a coroner's warrant was unclear at that time in terms of its effect on legal professional privilege, and reference was made to the fact that the Coroner's Act was subsequently amended with a view to clarifying this. She was concerned about her position vis-à-vis the police and their warrant, and also concerned about her position vis-à-vis the coroner. It was also submitted that a lot of work had been involved but relatively little could be properly claimed under items in the schedule. It does appear, however, that in fact a number of specific items were claimed in respect of matters properly covered by an award of care and consideration, in addition to a substantial loading for care and consideration.

[64] I have referred earlier to the work the subject of this bill. The real point in this work was that the respondent had to determine how she ought to act, given her position as solicitor for the deceased, in circumstances where the coroner was investigating his death. That may have been a novel and difficult point for her, but it does not strike me as, objectively speaking, a point of any great novelty, difficulty or complexity. The concept of legal professional privilege is fundamental,[21] and would be maintained even if the client were deceased for the benefit of the client's estate, and would be preserved from the operations of the Coroner's Act, or any other statute, unless there was a clearly revealed intention to the contrary.[22]

[65] The legal position strikes me as straightforward and uncomplicated, and if the matter were to be approached on the basis indicated in Fleming v Fleming, in my opinion no allowance for care and consideration would be appropriate in this matter. Accepting that that approach is not appropriate for costs assessed under the Supreme Court scale, my distinct impression is that an allowance of 20% on the part of the costs assessor was a generous one in the circumstances. I accept, however, that this is an aspect of judgment in relation to a point of quantum on which I should readily defer to the view of the costs assessor in the absence of a clear indication that there was some error in his approach.[23] I am certainly not persuaded that there is any error on the part of the costs assessor in failing to make a more generous allowance in respect of this item.

[66] Items 92, 93 and 94 of this bill claimed the costs of drawing, engrossing and copying the itemised bill in taxable form and were disallowed. The respondent accepted that the conclusion in relation to bill 1 on this point applied equally here, so I would not interfere with the costs assessor's decision on this point either.

[67] This bill was also delivered under the time-costing basis set out in the costs agreement. There were a number of issues raised in relation to this bill which were also raised in relation to the earlier bills, and which are concluded (adversely to the respondent) by what I have said in relation to the corresponding points in the earlier bills. These points were not the subject of separate argument in respect of this bill. For example, Item 786 was in similar terms to the claim for care and consideration in bill 1, and was disallowed for the same reason. For the reasons that I have given, I agree that this item was properly disallowed. The respondent, however, submitted that there were three occasions when items in the bill had been reduced on the basis that they were properly items of care and consideration, and that the costs assessor should not have taken both steps.

[68] A careful examination of the reasons, however, does not indicate that the items were disallowed on that basis by the costs assessor. Item 443 was described as "attendance of partner researching the placement of former names on the application for grant of probate" for which 20 minutes was claimed. The objection was that this was at best a care and consideration item, but the costs assessor said that this claimed a professional fee for research which may be self-education, and that paragraph 3 of the client agreement provides that the firm's hourly rate includes research services. The item was therefore disallowed in total. That gives rise to an issue about the correct interpretation of paragraph 3 of the client agreement, which I mentioned earlier.

[69] I will not repeat the whole of paragraph 3, but under the table of hourly rates there is the statement: "The firm's hourly rate includes secretarial and word processing services, and research services." It appears from the reasons that the costs assessor has interpreted the expression "research services" as covering research undertaken by, for example, the respondent personally. The respondent's submission was that the term meant services which were provided to the firm, such as a subscription to an online legal research service operated by a legal publisher, which might be used in a particular case for the purpose of the solicitor's conducting legal research. If that occurred, any cost to the firm of the research services would not be billed to the client, but the firm was still entitled to charge for the solicitor's time in conducting the research.

[70] On behalf of the applicants it was submitted that the expression "research services" was at least ambiguous, and that it should be construed contra proferentum, and therefore in the way adopted by the costs assessor. It was pointed out that Clause 4 of the agreement dealt with outlays, and that the inclusion of certain services in Clause 3 meant that those services were being provided to the client free of charge. Interpreted by reference to what would be understood by a client, the document was saying in effect that the client would not be charged for research.

[71] That submission would carry more weight if the reference had been just to "research" rather than to "research services". The word services appears in both Clause 3 and Clause 4, in Clause 3 also relating to "secretarial and word processing services", and in Clause 4 "services the firm (or an associated company) uses or supplies on the client's behalf as follows" with a reference then to photocopying and facsimile transmission. Overall, it seems to me that the term services is used in the contract to refer to something which is provided by someone to someone else, with Clause 4 dealing with services which are provided effectively to the client at particular rates to the client, and Clause 3 dealing with services which are in the immediate sense provided to the firm or the person concerned, and only of indirect benefit to the client, for which no separate charge is made.

[72] Bearing in mind the presence of the word "services" after research and the context provided by the rest of the sentence, in my opinion the correct interpretation of the term in context is that it is speaking of costs which would be incurred by the firm either in conducting specific research or in having available research facilities which could be used if required, such as a subscription to an online legal research service. It does not, however, meant that if a practitioner is doing legal research as part of the time spent on the matter that is not something which will be charged for. To the extent that the costs assessor's reasons were based on that interpretation of the contract, I consider that that was an error on the part of the costs assessor.

[73] On the other hand, it does not seem to me that the costs agreement would entitle the solicitor to charge the client for the process of finding out the sort of knowledge which I would expect a reasonably skilled and experienced solicitor to possess anyway. The issue of what former names are to be placed on an application for grant of probate in my opinion falls into that category. If the concern was with former names of the deceased, the rules require reference to them.[24] There is no requirement for reference to former names of the applicants for the grant. In my view, that is something that a solicitor doing probate work should know, and the work the subject of this item was properly characterised as self-education and ought to have been disallowed on that ground. Although I disagree with the reasons of the costs assessor, deciding the matter for myself, I uphold his decision on the point.

[74] Item 446 was a telephone call received from particular counsel giving advice on this point. It appears from the bill as a whole that after 20 minutes of research the respondent had not worked out the answer and called a barrister and this item related to the barrister's telling her what he thought she should do. The ground of objection was that there should not have been any need to consult counsel, with which I entirely agree, but again it seems to me that this is an example of the sort of informal telephone call between practitioners which is common enough but should not be the subject of a charge to the client. In fact, it was disallowed on the basis that seeking counsel's advice was unnecessary since the matters should be within the solicitor's knowledge and is basically for the solicitor's assistance and education. I entirely agree. This was certainly not an example of a case where the costs assessor said that the work should be covered by care and consideration.

[75] Item 583 was 45 minutes of the respondent's time "reviewing documents and researching irregularly signed wills". The objection was that this work properly formed part of a claim for care and consideration, but the costs assessor's reasons for rejecting the item were the same as in relation to Item 443. In my opinion, the reasoning that I applied in relation to Item 443 applies equally here. So far as the costs assessor rejected this because research was included in the hourly rate by Clause 3 of the contract, I disagree with him. However, I consider that this was also self-education and was not allowable as a charge to the client for that reason.

[76] I gather that there was a more recent will which had been signed by the deceased but had not been witnessed at all. In this situation it was relevant for the solicitor to be aware of the capacity for irregularly executed wills now to be admitted to probate in certain circumstances, and to be giving the clients advice in relation to that matter, and for the existence of the document to be disclosed if an application were made for probate of the earlier apparently regularly executed will. It is not clear that the applicants had actually sought advice on the prospects of the irregularly executed will being admitted to probate, although it may be that the issue was raised in some discussions.

[77] At that stage the power to admit to probate irregularly executed wills was relatively recent in Queensland,[25] and there was not much law in Queensland on the subject, though the point was not a novel one, as there were provisions for something like this in other states from the 1990s. Overall, I consider that this item is properly characterised as self-education and is therefore not chargeable. I agree with the assessor's decision for this reason. It follows that although I consider that there was an error on the part of the costs assessor in interpreting the client agreement, it did not lead to any incorrect outcome in the costs assessment.

[78] As well, I was told by the respondent that, on 31 January at a conference with the executors, they were told about all relevant instruments including the irregular later will, they had copies of the relevant documents, and she had explained to them what the position was. It appears from Item 487 that counsel also attended this conference. In these circumstances, when she (and presumably counsel) had already dealt with the issue with the executors, there seems to be even less justification in further research for the purposes of the administration of the estate or an application for a grant of probate; it looks to me very much as though the work was also unnecessary.

[79] I was told by the respondent that the other matters sought to be raised in relation to this bill were matters which had already been raised in relation to other bills. It follows that they are also unsuccessful.

[80] The net result therefore is that the only adjustment I would make is in respect of the applicants' costs of the assessment. It appears that a costs statement, which was forwarded to the costs assessor on 15 April 2011 so that he could assess the applicants' costs of the assessment, included items for letters to the costs assessor by the applicants' solicitors on 20 January 2009 (Item 47) and 28 January 2009 (Item 50). When I was provided with copies of those letters it was apparent that they were in identical terms, except for the date. There should not have been any justification for a second letter, and counsel for the applicants was unable to suggest any. In these circumstances Item 50 should have been disallowed.

[81] I was told that the amount claimed for the applicants' costs had been allowed in full, and that appears to be correct, so it should be reduced by the amounts claimed for Item 50, a total of $32. It appears that the costs were apportioned over the three bills by the costs assessor, but it would be convenient for the adjustment to be made just to one of them, by reducing the applicants' costs of the assessment on bill 3 by $32. It is convenient to adjust the certificate for bill 3, since that is erroneous anyway as referred to earlier. The applicants' costs of the assessment in that bill should therefore become $6,323.88 including the assessor's fees, which when deducted from the costs otherwise allowable produces a balance of $21,004.37.

[82] The other matter that was argued was as to the extent of the fees charged by the costs assessor for providing the reasons. The amount charged was overall approximately 50% of the amount charged for the assessment, which seems a lot. The assessment process ought to produce working papers, and the fact that an assessor may be called upon to provide reasons ought to justify the assessor's including in the working papers some brief note comprehensible to him of what the reasons were so that it would be relatively straightforward to provide reasons if they were required. The assessor must have had reasons for any adjustment that he made, and they must have been known to him at the time he made the adjustment. In my view if an assessment is done properly, the process of producing reasons ought to be relatively straightforward.[26] It should not be a process which would require something like half the amount of time and effort required to do the assessment in the first place.

[83] Apart from anything else, it would not require the reconsideration of the very detailed and lengthy submissions which had been provided by the respondent in relation to the various matters which were also argued before me. As I have already noted, the reasons frequently do not contain any sort of reasoned response to those submissions, which must have been rejected by the costs assessor. They do, however, generally expose the reasoning process of the assessor. A large number of the reasons are in standard form, particularly when no change was made in response to the objection. There is also the consideration that there were some omissions from the reasons, so it does not appear that they were prepared with close attention to the list of adjustments also provided by the costs assessor.

[84] Counsel for the costs assessor submitted that the reason why so much time was spent on the reasons was that a request was made for reasons for all of the decisions included in the assessment. But the reason for this was that, until the costs assessor in response to my order provided details of the adjustments which had been made, the respondent had no way of knowing what adjustments had been made, and therefore no way of identifying those particular adjustments for which she sought reasons. The real problem here is that costs assessors, in my experience, produce a minimum of information in their certificate, and do not routinely provide such a list of adjustments to the parties in time to enable a more discriminating request for reasons to be formulated. In my opinion it would be helpful for such a list to be provided routinely to the parties with the certificate.

[85] The position is I think somewhat unsatisfactory. There should not in my view be any great additional charge for the provision of reasons, but it may well be that, despite the terms of the rules, costs assessors when conducting assessments have not been in the practice of making notes about their actual reasons for the decisions as they went along, so that there had to be an element of reconstruction in the process of preparing the reasons later. That is an inherently unsatisfactory procedure, because it runs the risk that the reasons provided will not be the actual reasons which the costs assessor had at the time the assessment was made, but reasons later devised which would appear to justify the change in fact made, which is not what is supposed to be provided.

[86] However, while there is authority in New South Wales that costs assessors should undertake assessments in this way, I am not aware of any authority in Queensland at the time this assessment was undertaken to that effect. I have accordingly ultimately come to the conclusion that, assuming I have power on the review to determine what would be reasonable costs of the assessor for the provisions of reasons, I should not interfere with the costs in fact charged on this occasion by the assessor.

[87] I emphasise, however, that that should not be treated as any sort of endorsement by the court of the appropriateness of the level of charges imposed on this occasion. If the issue arises in the future in respect of the costs of reasons for an assessment which was undertaken after these reasons are published, a costs assessor might expect that I may take a very different approach.

[88] When these reasons are delivered I will hear further submissions as to the formal orders to give effect to my conclusions, and as to what happens next with the proceeding.

[1] Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729 at [43]; Mastronardi v New South Wales [2007] NSWCA 54 at [62]- [70].

[2] Cf Nationwide News v Naidu [2007] NSWCA 377 at [164]- [178].

[3] This matter is taken so seriously that ordinarily even communications about purely mechanical matters are handled through the judge's associate, one of the reasons why it is essential that judges have associates.

[4] UCPR r 720(4)(b), and indeed a costs assessor does not have the powers of an assessing registrar under r 714 without an order of the court: r 715.

[5] Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 739.

[6] Minister for Immigration v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [71]- [78]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16.

[7] The nature and scope of a "review" depends on its context and the terms of the legislation providing for it: Tasty Chicks Pty Ltd v Chief Commissioner of State Revenue [2011] HCA 41; (2011) 85 ALJR 1183 at [5].

[8] The legislature may well have been making allowance for the fact that the client seeking the assessment may not have the benefit of legal advice.

[9] Affidavit of respondent filed 16 January 2012 paras 171-176; Exhibit ALJ1.

[10] Affidavit of Kennedy filed 25 November 2008 Exhibit IJK1.

[11] It may be that to charge care and consideration as well would be an unauthorised uplift contrary to s 313 of the Legal Profession Act.

[12] For the test for implication of a term see B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283.

[13] Brookfield v Davey Products Pty Ltd [1997] FCA 1462; Wide Bay Conservation Council Inc. v Burnett Water Pty Ltd (No. 9) [2011] FCA 661 at [126].

[14] Affidavit of respondent filed 16 January 2012 Exhibit ALJ1 page 21.

[15] See Re: Carter Newell's Bill of Costs [1996] 2 Qd R 13 at 19, Re: Moore [1996] QSC 212, and authorities there cited.

[16] The law in this area has moved on to such an extent that I suspect that this formulation of the point will be incomprehensible to most young lawyers.

[17] Affidavit of respondent filed 16 January 2012, Exhibit ALJ2, p 55.

[18] This apparently should refer to a fax of 11 February 2008: Affidavit of respondent para 94.

[19] Affidavit of respondent filed 16 January 2012 para 98.

[20] Amos v Monsour [2009] QCA 123 at [12].

[21] Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 138 per Deane J.

[22] Cockerill v Collins [1998] QCA 76; [1999] 2 Qd R 26 at 28; Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 322, 332.

[23] Schweppes' Ltd v Archer [1934] NSWStRp 17; (1934) 34 SR (NSW) 178 at 183-4.

[24] UCPR r 599(1)(a)(i); Form 103, Form 105.

[25] See Succession Act 1981 s 18, introduced by an amendment which commenced on 1 April 2006.

[26] See Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (supra) at 735-6.

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