Carole Anne Bennett v Peter George Seaman, Peter Anthony Hohnen, Robert Neville Arthur Howse, Christopher Geoffrey Chenoweth, Richard Christopher Refshauge, Patrick Bill Williams, Ross Edward Watch, Deidre Rhoda Smith and Alan Robert Mcarthur Trading As Ma [1993] ACTSC 71 (30 July 1993)

SUPREME COURT OF THE ACT

CAROLE ANNE BENNETT v PETER GEORGE SEAMAN, PETER ANTHONY HOHNEN, ROBERT
NEVILLE ARTHUR HOWSE, CHRISTOPHER GEOFFREY CHENOWETH, RICHARD CHRISTOPHER
REFSHAUGE, PATRICK BILL WILLIAMS, ROSS EDWARD WATCH, DEIDRE RHODA SMITH and
ALAN ROBERT McARTHUR trading as MACPHILLAMY CUMMINS and GIBSON
No. SC 1144 of 1984
Number of pages - 19
Costs
(1993) 117 ACTR 1

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Costs - taxation - unnecessary costs - drawing of internal case management document - copying of subpoenaed documents.

Costs - taxation - multiple photocopies - 2,478 pages - assessment on basis of use of commercial copier.

Costs - taxation - appeal - weight given to discretion of taxing officer - generally - and under O.65 r.82 Supreme Court Rules.

Costs - taxation - costs of and incidental to negotiations for settlement - costs of genuine attempt to settle allowable.

Costs - taxation - allowance care, skill and attention - application of general, 50%, rule.

Costs - taxation - counsel's fees - fee on brief - conferences and consultations - preparation fees - allowance for trial settled on first day.

Supreme Court Rules, O.65 rr.53, 53A, 65, 66, 82, Fourth Schedule

Brown v McEncroe (1891) 12 LR (NSW) Eq 93

Commercial Bank Ltd v City of Melbourne Bank Ltd (1900) 6 ALR (CN) 17

Smith v Smith (1906) VLR 78

Cayron v Russell (1899) 25 VLR 379

Re Central Queensland Developments Pty Ltd (1988) 2 Qd R 476)

Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536

Re Duke's Will (1907) VLR 632

Re Lamrock, Brown and Hall; ex p. Black (1908) VLR 238

O'Rourke v Commissioner for Railways (1893) 10 WN (NSW) 49

Kalamalka Constructions Pty Ltd v Imamovic (1977) Qd R 29

Cape v Redarb Pty Ltd et al (SC 34/1990; SC ACT; 12/6/91; unreported)

Stemm v Feigelsohn (1964) Qd R 416

Re Federal Deposit Bank Ltd (In Voluntary Liquidation) (1937) QWN 38

Robinson v Malcolm and Co Ltd (1899) 5 ALR 204

Magna Alloys and Research Pty Ltd v Coffey (No. 2) (1980) VR 97

Prudential Finance Ltd v Davander Nominees Pty Ltd (1992) 1 VR 468

HEARING

CANBERRA, 27 January and 16 June 1993
30:7:1993

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors: Messrs Gallens Crowley and

Chamberlain

Counsel for the Defendants: Mr J. Topfer

Instructing Solicitors: Messrs Mallesons Stephen Jacques

ORDER

The Court Orders that the certificate of taxation be varied by adding $9,340.23.

DECISION

HIGGINS J On 16 July 1992, the Deputy Registrar (Mrs Circosta), as taxing officer under O.65 of the Supreme Court Rules, delivered a decision in respect of a Review of the Taxation of Costs herein. That review was pursuant to O.65 r.65.

2. The costs in question were ordered to be paid by the defendants to the plaintiff. The bill had been drawn at $211,477.04 and was allowed at $109,307.28.

3. The taxing officer's decision has resulted in the amount allowed on taxation being increased to $109,739.58. The plaintiff now seeks a further review pursuant to O.65 r.66. There is also a right of appeal pursuant to O.65 r.82. That right of appeal is intended to allow a Judge to review the taxing officer's decision with regard to "instructions for brief" and "drawing same", without being bound by the discretion of the taxing officer.

4. I will therefore, proceed to review those items in respect of which the plaintiff is dissatisfied with the taxing officer's decision.

Items 252 and 1081
5. These items claim remuneration for drawing schedules of work to be done. Those schedules list the steps which the plaintiff's solicitor needed to take to further prepare and obtain relevant evidence for the trial.

6. The test for the allowance of costs for work done, in the absence of any special order, is that payment is to be allowed, in accordance with the scale set out in the 4th Schedule, so far as the work in question is shown by the party entitled to costs to have been "necessary or proper" for the conduct of the litigation.

7. Order 65 r.53 sets out the relevant principle,

"53. On every taxation the taxing officer shall allow all such
costs, charges, and expenses as appear to him to have been
necessary or proper for the attainment of justice or for
enforcing or defending the rights of any party, but save as
against the party who incurred the same, costs shall not be
allowed which appear to the taxing officer to have been
incurred or increased through over caution, negligence, or
mistake, or by payment of special fees to counsel or special
charges or expenses to witnesses or other persons, or by other
unusual expenses."

8. The primary purpose of the schedules was to detail work being done or which was to be done to prepare the case. I was told it resulted from consultations with counsel. No doubt it was prudent to keep a check list and report to counsel on what had been done. The taxing officer allowed copies of those schedules which were included in briefs to counsel.

9. In my view, the original document was in the nature of an internal case-management document. It was not appropriate for any allowance to be made for drawing it. Indeed, I would not have allowed the engrossing of it, although if relevant to advising counsel as to what had been done it might be allowed as a copy for brief.

10. There is, of course, no review sought in respect of items 253 and 1081 claiming remuneration for engrossing the Schedules in question. I simply dismiss the claim to allow items 252 and 1080.

Item 1028
11. The plaintiff's solicitors took copies of documents produced on subpoena for their own file. The taxing officer declined to allow the cost of the copies, either as a scheduled item or as a disbursement. I agree with that decision.

12. Generally, when and if such copies are deemed necessary for supply to counsel, they can be allowed as copies for brief (see Brown v McEncroe (1891) 12 LR(NSW) Eq 93).

13. In that event, the costs of attendance to inspect the subpoenaed documents including procuring the copies are, of course, allowable. Copies not necessary for counsel's brief, however, whether taken for the solicitors or the client's own records, are not allowable (see Commercial Bank Ltd v City of Melbourne Bank Ltd (1900) 6 ALR (CN) 17; Smith v Smith (1906) VLR 78).

14. I dismiss the claim to allow this item.

Item 1250
15. This was a claim for remuneration for 2,478 pages copied for inclusion in counsel's brief.

16. It was not claimed that the making of copies of such documents for briefing to counsel was unnecessary. The objection was that to copy the documents page by page "in-house" was unnecessarily expensive.

17. Copying by means of photocopying is generally allowed at a flat rate per page (then $1.40). That rate reflects the overhead costs and attendance costs involved in the making of such copies. The greater the number of copies made at one time the higher the profit that will be attracted. At some point it will be more economical for the documents to be collated and delivered to a commercial copier. In that sense, the taxing officer has a discretion to disallow an "excessive profit" element in multiple photocopying (see Cayron v Russell (1899) 25 VLR 379; Re Central Queensland Developments Pty Ltd (1988) 2 Qd R 476).

18. It was suggested that Fat-Sel Pty Ltd v Brambles Holdings Ltd (1985) 61 ALR 536 was authority for a contrary view. In my view that suggestion is incorrect. The decision of the taxing officer in this case was not that the proper application of the scale charge for photocopying produced an unreasonable result but that, to the extent that copying could be achieved more economically by using a commercial copier, it was not necessary or proper for a clerk to copy each page individually. The charge, accordingly, exceeded that which was necessary or proper. The surplus was properly disallowed.

19. In Fat-Sel Pty Ltd v Brambles Holdings Ltd (supra), Beaumont J was asked whether fees for perusal could be allowed at an hourly rate rather than a per folio rate to produce a more reasonable result. Assuming that the taxing officer was satisfied that the perusals in question were necessary and/or proper then, in the absence of a discretion to vary the mode of remuneration (now provided for by an amendment to the Federal Court Rules), the scale had to be applied even if the result was apparently unreasonably high.

20. Of course, where perusal by a solicitor is necessary or proper there is no commercial alternative which can reasonably be adopted. This is not so with respect to copying of documents.

21. In the event, I am satisfied that the taxing officer's approach was correct. The realities of modern day technology and the savings achieved by use of it cannot be ignored. A simple per page application of a flat fee for each copy no matter what the number to be copied or the available technology would, to my mind, be unjust to any party called upon to pay on such a basis.

22. I dismiss the claim to allow this item.

Items 1251 and 1252
23. The request to review the disallowance of these items was abandoned.

Items 1151 - 1247
24. These items contained a charge for attendances by a clerk locating and collating documents to be included in counsel's brief.

25. The taxing officer did not reject the assertion that a total time of 39 hours was spent locating and collating the documents in question. However, she did reduce the time allowed for the purpose of remuneration to about 21 hours. It was her view that the time claimed was greater than was reasonably necessary.

26. In my view, that was a discretionary judgment which I am in no position to challenge.

27. I am not persuaded that the taxing officer's approach or judgment was wrong.

28. I dismiss the claim to allow these items.

Item 1269
29. This was a claim for remuneration for receiving and filing a facsimile letter from the plaintiff to her solicitor. It raised matters relevant to conferences to be held with counsel. So far as I can see the conference to which it was a prelude was not disallowed.

30. I can see no reason why a personal attendance to convey such instructions would not have been allowed. Of course, there may be repetitive conferences which might justifiably be disallowed. This letter, its perusal replacing an attendance, does not seem to me to repeat previous conferences or letters.

31. I would allow this item. $4.80 will be added to the sum allowed.

Item 1288
32. This item raised a similar question to items 252 and 1081 (supra). I confirm the taxing officer's decision in relation to this item.

Items 1294 and 1325
33. These items fall into the same category as does item 1250. For the same reasons as I alluded to in considering that item, I am not persuaded that the taxing officer was wrong and I confirm her decision.

Items 1371 and 1372
34. The taxing officer originally allowed item 1371 (drawing record of examination of documents) and disallowed the engrossment thereof (item 1372). On review, she disallowed item 1371 and allowed item 1372.

35. For reasons I have referred to in considering items 252 and 1081, I would have allowed neither item.

36. However, as all I am asked to do is to review the taxing officer's decision to disallow item 1371, I simply dismiss the request to allow it.

Items 1434, 1425, 1442
37. These were claims for remuneration for engrossment of file notes by the plaintiff's solicitor. I see no distinction between these notes and any other internal document. Of course, copies thereof, if properly included in a brief to counsel, might well be allowed on that basis but not for the solicitor's own records or use.

38. I would expect that, where an attendance was allowed, the time taken to make a note recording it would be included in the fee chargeable for the attendance (see Re Duke's Will (1907) VLR 632; c.f. Re Lamrock, Brown and Hall; ex p Black (1908) VLR 238; see also, O'Rourke v Commissioner for Railways (1893) 10 WN (NSW) 49).

39. In this case, the solicitor claimed and was allowed, not only the time for the telephone attendance itself but also the time taken to write up the notes recording the attendance. Normally, of course, the two would be, or be close to, contemporaneous. It is necessary and proper to note attendances. However, allowing for extra time reasonably taken to note the attendance seems fairly to reflect the remuneration appropriate to that attendance where such extra time is reasonably necessary.

40. The taxing officer correctly disallowed these items. I confirm her decision.

Items 1485, 1571 and Item 1688
41. These substantially raised the same issues as for bulk photocopying referred to above. They also claim remuneration for copies "for retention". The latter is no more than a note for file or a "back-up copy". These items are not allowable on a party and party basis for the reasons I have already given.

42. I confirm the disallowance of these items.

Items 1188, 1189, 1193, 1194, 1205, 1211
43. These various items represent time claimed for assembling documents to be copied and included in an agreed bundle of documents. The taxing officer agreed that a reasonable sum should be allowed as remuneration for this work. However, she allowed 50% only of the time claimed. It was objected that this was an "arbitrary" decision.

44. Any discretionary judgment of this kind is, in a sense, "arbitrary". The length of time regarded as "necessary or proper" is a matter of judgment or impression (see O'Rourke (supra) per Stephen J at 50). However, that does not make such a judgment "arbitrary" in the sense that it is based on mere whim or preference.

45. I am satisfied that the taxing officer properly applied her mind to relevant matters and came to a conclusion well within the bounds of reason. I do not consider I should disturb her judgment.

46. I confirm the disallowance of these items.

Items 1705, 1706
47. Attending to recover a brief from counsel is an allowable expense (see Kalamalka Constructions Pty Ltd v Imamovic (1977) Qd R 29).

48. The expense disallowed here was receiving and perusing a letter returning a brief. I agree with the taxing officer that, unless it contained relevant advice, a letter from counsel was unnecessary. However, the return of the brief and memorandum of fees was necessary. It saved the cost of a clerk attending to collect the same (Item 28, ($11.50)). The memorandum of fees had to be received, filed and perused. The letter did not add to the cost of that. $6.60 should have been allowed.

49. The sum allowed will be increased by $6.60.

Items 1709, 1720 (etc)
50. The matter was ultimately settled. As the taxing officer has noted,

"... a thorn in (the side of?) the ultimate settlement of this
action was the payment of outstanding costs to the defendants'
firm for work performed by them in the Family Court."

51. This was a reference to a debt due from the plaintiff to the defendants for costs incurred by her in the litigation out of which her claim for damages for negligence arose.

52. It became a term of the settlement that the defendants would forgo those costs.

53. The recoverability or quantum of those costs was not in issue in the proceedings. The taxing officer rejected the claim for remuneration for work done, as represented by these items, which involved negotiations directed towards having that term included in the settlement.

54. In 1983, O.65 r.53A was inserted into the Rules to settle doubts as to whether and, if so, the extent to which, costs relating to negotiations for settlement should be allowed.

55. That rule provides,

"53A. Any costs of and incidental to negotiations for
settlement which appear to the taxing officer to have been
reasonably and properly incurred shall be allowed on taxation
whether or not the negotiations were successful."

56. The defendants claimed that the costs referred to in these items should not be allowed because the term in question was sought to be added after settlement had been otherwise negotiated. They further submitted that the matters referred to "did not arise in these proceedings".

57. It is true that the issue as to whether the defendants should forgo entitlement to costs owed to them by the plaintiff did not arise in the proceedings. It did, however, arise in the course of the settlement negotiations. Frequently, in personal injuries litigation, a term of settlement requires a defendant employer to accept liability for such compensation payments as may have otherwise and previously been made to or on behalf of an injured worker. That would not be an order a court could make in giving judgment although a verdict might be nominally larger without such a term.

58. It should be noted that r.53A refers, not to costs "of and incidental to" the action itself, but, "to negotiations for settlement". It is necessary that such costs be "reasonably and properly" incurred. The fact that negotiations are unsuccessful does not prevent such costs being allowed.

59. What is incidental to "negotiations for settlement" may be widely different from matters relevant to the issues raised in the litigation. Other possible causes of action may be proposed for release. Other past liabilities may be proposed for discharge. Indeed, some issues not capable of resolution by legal action may be raised for resolution.

60. I can see no reason why the costs relevant to consideration of an issue, genuinely raised for consideration in settlement negotiations, should not be allowed pursuant to r.53A even if that issue is not otherwise connected with the litigation. Costs of making or considering frivolous proposals can be disallowed as not "reasonably and properly" incurred. However, where a proposal has been raised, discussed and accepted, the costs of that process would, prima facie, be allowable as "reasonable" and "proper".

61. It follows, in my opinion, that the taxing officer erred in disallowing the costs of and incidental to the negotiations which led to the inclusion in the terms of settlement of the proposal for the defendants to forgo costs otherwise due to them from the plaintiff.

62. It was not suggested that there was any other basis for disallowance of these items. Accordingly, I uphold the request to allow them. The sum to be allowed will be increased by a further $ 461.11.

Items 954, 955 (etc)
63. These items sought remuneration for the attendances of both a senior solicitor and a junior solicitor for various purposes.

64. If it was necessary or proper to delegate a task to a junior solicitor, it was also proper, in my view, for that junior solicitor to be briefed on the task to be performed. Further, if it was necessary or proper to assign two solicitors to a task, then the costs attributable to the work done by these solicitors are allowable (see, for example, Re Lamrock, Brown and Hall; ex p Black (supra)). Such a situation would be exceptional and, whether such a situation had arisen was a matter for the taxing officer to determine. That determination involved a discretionary judgment on the part of the taxing officer.

65. It is apparent that the taxing officer did not consider that the attendance of the additional solicitor was "necessary or proper". I cannot say that she was wrong so to conclude. Even insofar as the review of these items may be done without being "bound" by her view, I, nevertheless, would accord her view both weight and respect unless persuaded that it should not be accepted. In that event, it might well not be necessary to be persuaded that her view was "manifestly" wrong. However, I am not persuaded that the taxing officer's decision on these items is tainted by any error.

66. I uphold the taxing officer's decision in respect of these items.

Instructions for Brief - p.199, 22.2.91; p.200 (etc)
67. This relates to matters reviewable under O.65 r.82. I am not bound by the discretion of the taxing officer. Nevertheless, I accord it weight and due respect.

68. These items, again, relate to the employment of two solicitors. It was the taxing officer's judgment that the attendance of two solicitors was not necessary or proper. I have no basis for disputing that conclusion.

69. Accordingly, I uphold the taxing officer's decision.

Instructions for Brief - p.174, 7.10.87; (etc)
70. There was an objection raised that the taxing officer's decision to disallow 213.41 hours out of 333.46 hours claimed as necessary or proper was wrong. In her reasons for decision the taxing officer states that each particular item was individually considered in relation to that test and allowed or disallowed accordingly.

71. All that the plaintiff could say was that the degree of disallowance was manifestly excessive. Assuming that the time taken was in fact spent, it is suggested that such a discrepancy is, in itself, evidence of an error of principle.

72. I am not so persuaded. The taxing officer considered all the items claimed, individually and collectively. It is true that she has assumed a measure of "over servicing" relative to the test to be applied in party and party taxations. However, given her conclusion, for example, that, in a number of instances, two solicitors had been used when one would do, that conclusion is not so apparently unreasonable that I can conclude that it was wrong.

73. This objection was rightly dismissed. I uphold the taxing officer's decision.

Instructions for Brief - p.168, p.170 (etc)
74. The bill claimed allowances for care, skill and attention at 50%. That is, it was claimed the total charge for instructions for brief should include one-third for care, skill and attention over and above the scale allowance for individual items of work necessarily or properly performed in relation to this item.

75. That is a discretionary judgment, but, in accordance with O.65 r.82, I am not bound by that exercise of judgment by the taxing officer.

76. Even so, the exercise of such a judgment will not ordinarily be departed from on review (see O'Rourke v Commissioner for Railways (supra)).

77. The taxing officer carefully considered the particular items to be taken into account under this heading. She disallowed a number of such items. The taxing officer accepted that the hours claimed were in fact worked but reduced the time component to that which she was satisfied was necessary or proper.

78. She took account of various matters in assessing the difficulty and novelty of the matter.

79. As a general rule, in my view, a taxing officer should allow 50% on top of the scale rate applicable to attendances and perusals. Of course those attendances and perusals must be necessary or proper for the attainment of justice in a matter properly or necessarily litigated in this court.

80. This matter was necessarily commenced in this court. It was a matter of considerable complexity and importance. Prima facie, it should attract that level of allowance.

81. The taxing officer, however, has a discretion to allow more or less than would be regarded as "usual" or normal. She referred to four reasons for allowing less in this case.

1. The matter, whilst involving a large volume of documents,
did not involve any complex or novel issue;
2. The matter was settled for $0.5m even though $1.5m had been
claimed. It was noted that the plaintiff had "difficulties with
liability";
3. There was no evidence of "specialised knowledge or lengthy
research". The taxing officer further commented that "much of
the skill and responsibility exercised in the conduct of the
case was exercised by counsel";
4. Inordinate time had been spent collating and preparing
volumes of documents. This was, she noted, "time consuming but
not a great intellectual task".

82. The taxing officer rejected a suggestion that my decision in Cape v Redarb Pty Ltd et al (SC 34/1990; SC ACT; 12/6/91; unreported) mandated an allowance of 50%.

83. I said in that case,

(7) "An allowance of one third, as here, for care skill and
attention reflects a matter of sufficient importance and
concern to warrant it being a Supreme Court matter. It is about
average on the scale of level of care, skill and attention to
be allowed for in such matters."

84. I noted in that case that a greater allowance could have been claimed. That decision supports a view that allowing one third of the total as there indicated is a norm only. The taxing officer rightly rejected the view that it is mandatory in all Supreme Court matters.

85. However, whilst I do not disagree with the taxing officer's view that this matter was "not unduly complex", that is not the same as an assertion that the matter was less than usually complex.

86. Indeed, given the nature of the cause of action pleaded, its admitted difficulties with liability and the amount involved, such a conclusion would be manifestly insupportable (see, for example, Stemm v Feigelsohn (1964) Qd R 416).

87. In the absence of evidence that the employment of counsel relieved the solicitors of the burden ordinarily to be expected to fall on them, the usual allowance otherwise warranted should not be reduced because counsel was engaged (see Re Federal Deposit Bank Ltd (In Voluntary Liquidation) (1937) QWN 38).

88. The exercise of specialised knowledge is likely to decrease the quantity of time spent but increase its quality. That is a reason for increasing the allowance otherwise warranted (see Robinson v Malcolm and Co Ltd (1899) 5 ALR 204, Kalamalka Constructions Pty Ltd v Imamovic (supra)).

89. Conversely, the allowance can be reduced to take account of time spent by less experienced practitioners or clerks where the quantity of time spent is unusually high compared with the norm to be expected.

90. However, the taxing officer does not seem to have given consideration to the fact that, in the approach taken to assessing the item "Instructions for Brief", time spent by junior solicitors or clerks was claimed at a lesser rate than for a senior solicitor. That was done by reference to the scale for such attendances generally but the application of the scale takes some account of the correlation between quantity and quality of time spent. Further, the taxing officer disallowed large periods of the time actually spent by solicitors and clerks to reflect what she considered should have been the time necessary for a solicitor of appropriate skill and experience performing such work as was reasonable or proper in the circumstances.

91. Then to further reduce the usual level of allowance seems to me to unduly undervalue the amount to be allowed for this item.

92. I would uphold the plaintiff's contention that the allowance calculated by way of surcharge on the scale items allowed within the item, "Instructions for brief" should be increased to 50% rather than one-third as allowed.

93. The sum allowed will be increased by $4,886.60 accordingly.

Counsel's fees - p.229, 230
94. The taxing officer noted that, for counsel, the major difficulties in the case arose from the voluminous documentation relating to all the properties in question. Not all those documents, she concluded, required close attention.

95. Two issues arose in relation to counsel's fees. The first was the extent to which preparation should have been included in the brief fee. The second was the rate at which conferences, preparation and brief fees should have been allowed.

96. It has been traditional that a brief fee includes preparation and not less than the first five hours of hearing. Subsequent days are allowed at the refresher rate, traditionally not more than two-thirds of that fee. Junior counsel's fees should, normally, not exceed two thirds of senior counsel's fees in the same matter.

97. It should be emphasised that these guidelines may be departed from in the proper exercise of the taxing officer's discretion.

98. As to the rate at which counsel's fees are to be allowed, the Registrar annually publishes a list of fees which will normally be allowed to counsel for various services on a party and party taxation. That list is, again, a norm which may be varied above or below the figure so recommended in the proper exercise of a taxing officer's discretion.

99. So far as preparation is concerned, senior counsel (Ms M Beasley QC, as she then was) charged for 14.5 hours conferences, 7 hours preparation and 2 days fees (a total of $6,000.00) for brief on hearing. (The matter had been fixed for five days but settled on the first day.)

100. Junior counsel (Mr P P O'Loughlin) charged 18 1/2 hours conferences, 2 hours preparation and $3,000.00 for brief on hearing on the same basis.

101. Whilst it was accepted that it was appropriate for senior counsel to be briefed, there was no submission that interstate counsel was necessary as opposed to local counsel.

102. Accordingly, on a party/party basis, at least, no more was allowable than would have been allowed had local counsel been briefed.

103. The recommended rate for local junior counsel, as at 30 June 1990, was a brief fee of $1,200.00 and an hourly rate of $160-190.00 for conferences. On and from 1 July 1991 the recommended rate was raised to $1,300.00 for a brief fee and an hourly rate of $170-200.00 for conferences.

104. It was the taxing officer's opinion that, although the documentation was voluminous, the issues in the case were neither novel or complex.

105. She allowed fees to Mr O'Loughlin at the rate of $160.00 per hour for conferences and a brief fee of $2,000.00. The latter was, I assume, allowed for two days as claimed. The separate fee charged for "preparation" was disallowed.

106. In my view, it is immaterial whether counsel choose to charge a daily rate plus preparation or a brief fee (including preparation) for the first day and a lower rate for refreshers thereafter.

107. In Magna Alloys and Research Pty Ltd v Coffey (No. 2) (1980) VR 97, Fullagar J took the view that, however counsel may have "remodelled" their charges, the reasonableness of the fees charged should be judged against the "old established principles" (105).

108. It was concluded in that case that a fee charged for 10 hours preparation should have been included in the brief fee. That conclusion was not so expressed as to amount to an opinion that in all cases up to 10 hours preparation should be regarded as included in the usual fee on brief.

109. Rather, it was his Honour's view that the fees actually charged should be compared with the traditional method of charging and, in the circumstances of the case, a judgment made as to whether the usual level of brief fee, and thus of refreshers, should be increased to reflect additional preparation time whether before or during the hearing.

110. The taxing officer clearly has a discretion, in my view, as to whether to allow a separate preparation fee as part of the allowance of counsel's fees. However, the usual fee on brief provides a standard as to what, usually, will be regarded as a reasonable fee in the circumstances.

111. In Prudential Finance Ltd v Davander Nominees Pty Ltd (1992) 1 VR 468, Ashley J summarised the principles to be applied as follows,

(473-4) "It is beyond argument that in some cases it will be
appropriate to allow as party and party costs fees to counsel
for preparation.
The following principles appear to be relevant:
1. A brief fee should be taken to include "preparation
extending up to at least a substantial part of the day before
and the night before the hearing, as well as for time spent in
court before the first refresher commences": Magna Alloys and
Research Pty Ltd, at p.109, per Fullagar J. See also Phillips
and Trebilco, Bills of Costs with Precedents, 3rd ed, p.153.
2. In a particular case, remuneration for preparation beyond
that which should ordinarily be included in a brief fee may be
provided for by an increase in the brief fee (and consequently
in the refresher fee); Magna Alloys was a case where that was
the course followed by the master. In the circumstances of that
case, Fullagar J, at p.106, considered such a course
appropriate.
3. "... the taxing master has a discretion to allow on party
and party taxation a separate fee for preparation relating to
facts or law or both, but ... generally speaking he should
allow it only in matters of great complexity or voluminous
documentation, and only then when the circumstances are such
that a loading of the brief fee ... for the preparation
component is ... seen to be likely to result in overall fees
substantially too high or too low": Magna Alloys, at p.109.
4. In exceptional cases (which may be of many and greatly
differing kinds) involving many days and often weeks' work, the
Taxing master has a wide discretion to allow on party and party
taxation preparation fees fixed at a daily rate: Magna Alloys,
at p.112.
It is my clear impression that cases in which it will be proper
to allow preparation fees at a daily rate on party and party
taxation are likely to be more common, numerous and less
"exceptional" in consequence than was the case a decade ago. In
a variety of areas of practice the last decade has seen the
emergence of new and complex work. Within established areas of
practice the last decade has seen litigation of unprecedented
individual scale, with attendant complexity.
5. As with other costs items, the question whether separate
preparation fees should be allowed by the Taxing Master on a
party and party basis is whether such fees were necessary or
proper to be incurred: see Rules of Civil Procedure, Ch 1,
rr.63.29 and 63.69. The answer to that question is not provided
by the mere fact that, pursuant to an agreement between counsel
and his instructing solicitors, a daily preparation fee is
agreed to apply to however many days preparation is in fact
undertaken. As to what should be considered "necessary or
proper" expenditure, see Re Malleson, Stewart, Stawell and
Nankivell (1931) VLR 127, at pp 133-4, per McArthur J and
Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470, at p 478, per Barwick CJ
and, at pp. 489-90, per Menzies J. The question is: would it be
necessary or proper for a reasonably prudent man, endeavouring
to get justice, but endeavouring to get it without undue
expenditure of money to incur the expense in question?
6. Where a case is such as to require considerable out of court
work during trial, recompense for that out of court work has
been traditionally provided by an increase in the brief fee -
and hence each refresher. However, there may be cases where a
daily fee on brief should properly be allowed. In 1982,
Fullagar J. said that such cases "must necessarily be
exceptional", although he observed that the complexity and
difficulty of litigation had in his opinion substantially
increased over the preceding 30 years. As I have already said,
it is my clear impression that, in the last decade, the course
of litigation has become generally more complex still. It may
well be that the "exceptional" case of a decade ago is now a
more common phenomenon."

I respectfully concur.

112. It was the taxing officer's judgment that this matter was out of the ordinary only because of the volume of documentation. In her view that consideration warranted additional preparatory work but did not add to the degree of skill required. I accept the taxing officer's assessment of the matter.

113. The taxing officer obviously judged that, as at June 1991, the fees to be allowed to counsel should not exceed the norm then applicable. The recommended rate for conferences was $160-190.00. The taxing officer deemed $160.00 to be the appropriate rate to allow for junior counsel. That is a discretionary judgment which does not seem to me to be wrong.

114. However, as from 1 July 1991, the minimum recommended rate was altered to $170.00 per hour. Insofar as that rise was not reflected in fees allowed to counsel for work done after 1 July 1991, it does seem to me that error has been demonstrated.

115. Two other issues have been raised. The taxing officer disallowed separate fees claimed for preparation. She allowed for junior counsel $2,000.00 for "brief on hearing". Counsel had charged two days notwithstanding that the matter was settled on the first day.

116. It was contended that this was fair and reasonable because the matter had been listed for five days commencing 12 August 1991. Counsel had set aside that time.

117. It appears that, for 7 August 1991, the taxing officer allowed one hour of the additional pre-trial preparation claimed but disallowed the remainder. Counsel had also charged for two days at a daily rate of $1,500.00. However, the recommended rate for a brief fee would then have been $1,300.00, including preparation. The refresher rate would have been $867.00. The taxing officer was obviously prepared to allow two days on the conventional basis. If so, the current rate should then have been applied, resulting in a small increase in the amount that should have been allowed. With that qualification I can detect no error in the taxing officer's allowance of fees to junior counsel. However, to take account of the adjustment to recommended rates, I would vary the sum allowed by adding a further $262.00.

118. As to the fees allowed to senior counsel, I follow the same approach. Conventionally, such fees are higher than for junior counsel being led by senior counsel. A leader may be allowed such fees whether or not that senior counsel has a commission as one of Her Majesty's counsel (see Cape v Redarb Pty Ltd et al (supra)).

119. A sum of $14,062.50 was claimed for senior counsel. The details were not shown on the Bill of Costs save as follows:-

"Preparation (up to end of 7.8.91) $7,875.00
Fee on brief (on basis that if matter
settled would charge 2 out of 5 days
of hearing) 6,000.00
Telephone conference 1.5 hrs 187.50"

120. The taxing officer disallowed all additional preparation, allowing only $3,187.50.

121. Before me, a fee note from senior counsel was tendered. It disclosed that the details given to the taxing officer were inaccurate. It disclosed that of the "preparation", 14.5 hours were for conferences. Additional preparation comprised only 7 hours. There was no claim for a telephone conference.

122. I would allow those fees as follows, on the same basis as for junior counsel,

1991 SERVICE CHARGE ALLOWED
12 June Conference (1 hr) 350 240
27 June Conference (1.5 hrs) 525 360
1 August Conference (8.5 hrs) 2,975 2,168
6 August Conference (3.5 hrs) 1,225 893
7 August Conference, preparation
(2 hrs) 700 255
Plus further preparation
(5 hrs) 1,750 nil
12 August Brief of hearing (matter
set down for 5 days)
2 days claimed 6,000 3,250
$13,525 $7,166

123. It follows that the sum allowed for senior counsel's fees should be increased by $3,978.50. Conclusion

124. The certificate of taxation will be varied by adding $9,340.23.

125. I will hear the parties as to the costs of this appeal.