CONSIDERATION
122 For context, I note that I was a member of the Full Court that decided the Injunction Appeal and the Interpleader Appeal, and so I am familiar with the issues that were the subject of the various proceedings.
123 I now turn to the assessment of the costs, considered against the backdrop of those principles and starting with general comments applicable to all matters. In doing so I have had regard to the matters raised in the Third Rumsley Affidavit and the submissions filed on behalf of the parties.
124 The Liquidators and the Whitby Parties by their solicitors went to considerable effort in their costs affidavits to comply with the GPN-Costs. This is not a case where a claimant has simply disclosed actual costs and suggested a global discount or left it to the court to allocate a global discount. The solicitors have undertaken a process that commenced with a consideration of actual costs, included reductions to Scale rates where applicable, and considered and applied discounts before indicating a figure that is in fact claimed. This is highly relevant in the context of a submission from Mr Rumsley that the amounts assessed by the registrar ranged between 96% and 101% of the amounts claimed by the parties. That submission does not accurately reflect the position. The amounts claimed had already been discounted by the Liquidators and Whitby Parties, and the basis of such discounts fully disclosed in the affidavit evidence.
125 The starting point for an assessment is actual costs incurred. There is no reason in theory why an assessment may not differ greatly from a claimed amount, if the actual costs are not prima facie unreasonable, and if the parties seeking payment have gone to considerable trouble to come to the claimed amount based on Scale rates, and incorporating fair and reasonable discounts. To assume a default position that a further discount should be applied to a claimed amount is to fail to give credit to a careful and responsible consideration of costs undertaken by, in this case, solicitors with some guidance from a costs expert.
126 As to the Liquidators' calculation of claimed costs, the following matters are of particular relevance.
127 A 10% discount was applied to all solicitor's fees to recognise that not all actual costs incurred were recoverable on a time basis under the Scale.
128 It is not unusual, where it is appropriate that such a discount be imposed, that there be a compensating skill care load to account for the complexity and importance of work (see, for example, Geneva Laboratories at [100]), and the Liquidators sought such an allowance in the primary actions.
129 A 10% discount was applied to all solicitors' fees, to recognise that not all work would have been recoverable on a party and party basis. The fees were within Scale, in any event. However, it is relevant to recognise that in these matters the clients were sophisticated (experienced liquidators) and, as the Liquidators submitted, there were not significant solicitor and own client costs by way of obtaining instructions that might be the case in other matters.
130 The level and spread of solicitors involved in the matters was to my mind appropriate. For example, in the Interpleader Action, Mr Dundas was the only partner involved, and the majority of the work was done either by him (61 hours) or a junior solicitor James Nagle (117 hours). A mid-range solicitor undertook a limited amount of work (Tanika Matic - 14 hours). Whilst it is true that eight HWL lawyers were involved, between them the other five lawyers account for only about 16 hours of work. In short, there was a core team of two lawyers, one of whom was very experienced. Based on my experience, significant efficiencies often result from the appropriate deployment of senior, skilled practitioners, and as Mr Dundas not only supervised the actions but instructed counsel and attended at the hearings, I do not find the number of hours of work that he recorded during the relevant period to be excessive. Nor do I consider the hours recorded by the respective solicitors to be surprising, when one has regard to the fact that there were three case management hearings and a two day trial, one witness whose evidence was lead in chief and two witnesses who were cross examined on their affidavit evidence by the Liquidators and the matters before the Court related to questions of both fact and law. I am not satisfied on the evidence before me and based on my own experience that there was inappropriate duplication or delegation of work by HWL although as will be seen, I have provided for a small discount to address the potential for such duplication in a matter of this type. The spread of work appears to have been fair and reasonable.
131 Further, the spread of work as between solicitors and counsel appears to have been fair and reasonable. This is particularly apparent, for example, in the context of preparation of written submissions in the appeals. HWL has charged for the drafting of submissions, Mr Scovell has charged for reviewing and settling them, and Mr Vandongen SC has charged for only one hour across both appeals for settling them. This indicates that it is unlikely there has been duplication of work between solicitors and counsel of any real significance. Rather, it suggests there has been a sensible allocation of work, having regard to the nature of the submissions required.
132 I am satisfied that it was appropriate for the Liquidators to retain junior and senior counsel. Indeed, Mr Caratti did the same in each of the Interpleader Action and the Injunction Action, and was represented by two counsel in each of the appeals. The outcome of the proceedings was of importance to the Liquidators and the unsecured creditors of the various companies. It is fundamental in liquidations that liquidators have access to the books and records of the company. That Mr Vandongen SC and Mr Scovell were retained for all matters will, I infer, have led to efficiencies as to their costs. Some of Mr Scovell's work was charged at a discounted rate to his ordinary hourly rate. The Liquidators have in any event applied a 10% discount to Counsels' fees for the purpose of the claimed amounts.
133 Having reviewed the hours of work claimed by both Mr Vandongen SC and Mr Scovell in all of the matters, and having regard to the matters in issue in the proceedings, I have no reason to consider the amounts billed by them were other than fair and reasonable. For example, for the preparation for and concurrent hearings of the two appeals, Mr Vandongen SC has charged for 28.6 hours. Those appeals raised a number of novel issues, including the construction of s 3N of the Crimes Act. Mr Vandongen SC's fees are in my view fair and reasonable and indicate considerable efficiency in the allocation of work as between Mr Vandongen SC and Mr Scovell.
134 I accept the Liquidators' submissions that the reliance on and use of junior counsel is likely to have operated to reduce overall costs: Mr Vandongen SC's fees would no doubt have been significantly higher but for the assistance of Mr Scovell. To the extent there was any unwarranted duplication of work as between counsel (and there is no evidence of that), that potential seems to be to be provided for by the 10% discount already applied by the Liquidators for the purpose of the assessment.
135 I do not consider the fact that there was separate representation leads to a deduction in the costs assessments. The Liquidators were respondents to the actions and to the appeals. They were entitled to appear and be represented separately or by the same legal team with respect to each company, depending upon circumstances including internal group conflicts or external conflicts.
136 I have taken into account that the Liquidators retained Mr Nicholas to assist them in preparing for the assessment. In my experience, costs consultants who have experience gained over conducting and drafting papers for many taxations and assessments, are able to provide advice that results in that process being undertaken more efficiently by solicitors. Therefore, I consider it appropriate that Mr Nicholas was retained and that there be an allowance to the Liquidators for the work required in the costs assessments.
137 However, I do not think the Liquidators require an additional allowance for HWL's skill, care and responsibility in this matter.
138 Item 11 of Schedule 3 is for skill, care and responsibility and provides that an additional amount may be allowed, having regard to all the circumstances of the case, including:
(a) the complexity of the matter;
(b) the difficulty or novelty of the questions involved in the matter;
(c) the skill, specialised knowledge and responsibility involved and the time and labour expended by the lawyer;
(d) the number and importance of the documents prepared and read, regardless of their length;
(e) the amount or value of money or property involved;
(f) research and consideration of questions of law and fact;
(g) the general care and conduct of the lawyer, having regard to the lawyer's instructions and all relevant circumstances;
(h) the time within which the work was required to be done;
(i) allowances otherwise made in accordance with this scale (including any allowances for attendances in accordance with item 1.1); and
(j) any other relevant matter.
139 In addition, the Court's Guide to Discretionary Items in Bills of Costs is a guide for parties as to how the discretion available to taxing officers in relation to claims made in a bill of costs for, among other things, 'skill, care and responsibility' is commonly exercised. It provides that for item '11.1 - Skill, care and responsibility':
A percentage of the amount allowed for items 1-10, in the range of 0-15%, is commonly allowed.
140 As the Liquidators state in their submissions, the matters at trial level were not factually complex and many of the issues of fact were addressed by an agreed statement of facts, issue and contentions. Whilst the matters did involve complexities, particularly complexities of law, to my mind they were addressed by the involvement of Mr Dundas and experienced counsel. I consider all of the types of matters referred to that are relevant in this case have been provided for in the costs otherwise claimed. In saying that, I do not suggest that such an allowance should be denied simply because counsel are involved - my view is based on the particular circumstances of the relevant actions.
141 Turning to the claims of the Whitby Parties, the above comments generally also apply (save for the reference to a claim for skill, care and responsibility).
142 Mr Blaxill's affidavits are detailed and comprehensive, and meet the requirements of GPN-Costs. It is clear that Mr Blaxill did not simply approve disbursements but considered them: this is evidenced by his excision of certain charges from Mr Scovell's invoices.
143 Mr Blaxill has also ensured Scale rates were charged and that a discount of 10% was applied to Mr Scovell's fees (the only counsel who billed the Whitby parties). Mr Blaxill has applied a first and second 10% discount for Allens' fees for the reasons already articulated. Such discounts are in addition to the 10% discount to be imposed pursuant to Barker J's costs order in the Interpleader Action.
144 Mr Blaxill was involved in overseeing and running the litigation on behalf of the Whitby Parties and so has first-hand knowledge of what was involved (and the same applies, I should add, with respect to both Mr Dundas and Mr Langdon).
145 Mr Blaxill clearly took care to guard against charging for duplicated work: for example, according to his evidence he has not claimed costs for non-admitted lawyers; new lawyers reading in; or lawyers covering him during his absence from the office.
146 As to the size of the team representing the Whitby Parties, it is true that, for example, for the Interpleader Action eight lawyers were involved. However, Mr Blaxill explains a lack of concurrent involvement of some of those persons (for example, senior associate Kai Francis took over from senior associate Rebecca Collins). Further, by far the majority of the work was undertaken by two core team members at any one time, being a senior associate and an associate. The involvement of the other members of the team was limited. So, to speak of a large team of persons, as Mr Rumsley does in his Third Affidavit, rather obscures the true position.