Monika Cleary v Michael Edward Smith [1994] ACTSC 47 (26 May 1994)

SUPREME COURT OF THE ACT

MONIKA CLEARY v. MICHAEL EDWARD SMITH
No. SC575 of 1990
Number of pages - 3
Practice And Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Practice And Procedure - costs - taxation - application to review - instructions for brief - allocation for care, skill and consideration - disbursements - quantum - verdict monies - solicitor's trust account - Financial Institutions Duty.

Supreme Court Rules, O.65 rr 64 and 65

Cape v Redarb Pty Ltd (Receiver and Manager Appointed) and Others (ACTSC, Higgins J, 12.6.91, unreported)
Bennett v Seaman and Ors t/as Macphillamy, Cummins and Gibson (ACTSC, Higgins J, 30.7.93, unreported)
Williams Supreme Court Practice, Victoria, 2nd ed. par 65.27.35, p.2483

HEARING

CANBERRA, 13 May 1994
26:5:1994

Counsel for the Plaintiff: Mr G Stretton

Instructing solicitors: Snedden Hall and Gallop

Counsel for the Defendant: Mr C MacLachlan

Instructing solicitors: Crossin Barker Gosling

ORDER

THE COURT ORDERS THAT:
The amount allowed under the item headed "Care, Skill and Consideration" be increased to $8,373.89.
2. The amounts claimed under the item headed "Macquarie Reporting

Services Reports" be allowed in full.
3. The amount claimed under the item headed "Financial Institutions
Duty" be allowed.

DECISION

HIGGINS J This is an application to review certain decisions made by the Deputy Registrar, Mrs Circosta, in connection with the taxation of a Bill of Costs in this matter.

2. On 15 December 1993, Master Hogan ordered the entry of judgment for the plaintiff for $282,870.00 and costs.

3. A Bill of Costs was drawn and submitted to Deputy Registrar Circosta for taxation. Pursuant to Order 65 rules 64 and 65 of the Supreme Court Rules, the plaintiff requested her to review certain of the decisions she had made in the course of that taxation.

4. In a written decision, dated 19 April 1994, Deputy Registrar Circosta rejected those requests.

5. This application requests a review of three decisions as follows,

(a) That the care skill and consideration component of instructions
for brief (Item 9) should have been allowed at 50% rather than
33%;
(b) That the fees claimed as disbursements for reports from Macquarie
Reporting Services should have been allowed either in full or in
excess of the $2,773.00 allowed by the Deputy Registrar;
(c) That the disbursement for financial institutions duty incurred by
reason of receipt of the judgment monies should be allowed as a
disbursement.

Care, Skill and Consideration
6. In Cape v Redarb Pty Ltd (Receiver and Manager Appointed) and Others (ACTSC, 12.6.91, unreported) and Bennett v Seaman and Ors t/as Macphillamy, Cummins and Gibson (ACTSC, 30.7.93, unreported), I referred to a proposition that normally in allowing a sum for "Instructions for brief" one-third should be allocated to "care, skill and consideration". In this matter, whilst the Deputy Registrar agreed this was such a case, the effect of the sum disallowed is that of only 25% of the sum allowed for "Instructions for Brief" is allocated to "care, skill and consideration". The confusion arises because, to achieve a one-third allowance, 50% must be added to the specific items allowed.

7. I agree that one-third is appropriate in the circumstances of this case, even though it was an assessment of damages case only. The amount allowed under this item should be increased to $8,373.89.

Macquarie Reporting Services Reports
8. The challenge made to these disbursements was only as to quantum. The quantum was said to be excessive not because of the rates charged by the persons who prepared the reports but rather because the time charged for them was excessive.

9. The Deputy Registrar was left to make an assessment without specific evidence as to the reasonableness of the time charged from any person independent of the persons who prepared those reports.

10. Before me, however, the defendant's counsel called evidence from a qualified expert who agreed that the time spent in the preparation of the reports was reasonable.

11. The person who prepared the reports verified that the hours claimed were in fact worked.

12. It follows that the sums claimed for these disbursements must be allowed in full.

Financial Institutions Duty
13. A sum of $282.87 was levied upon the deposit of the verdict monies into the trust account of the plaintiff's solicitors.

14. It is, clearly enough, a necessary expense for the plaintiff's solicitors to have incurred. The Deputy Registrar disallowed this item on the ground that it is taken into account by the Federal Costs Advisory Committee in recommending scale increases. She considered, in effect, that it was part of the overhead component allowed in fixing fees generally.

15. Consider, however, the cost of faxes, telephones and postage. This is also an overhead factor, rises in which will affect cost increases. Nevertheless, the incurring of such expenses in relation to a particular matter will be allowed, particularly where the amount is unusual.

16. That expenses of this kind are not taken into account on the scale is apparent from a perusal of it. Telephone attendances are allowed at the same rate whichever party initiates them and thus incurs the call charge (items 26 and 27). The note to item 35 states, "postage and transmission fees properly incurred may be claimed as a disbursement".

17. The general principle for the allowance of disbursements is whether they have been necessarily and properly incurred in and for the purposes of the litigation.

18. Clearly, if there had been a duty levied on the judgment, such as a stamp duty, that would be an expense recoverable by the successful party (see Williams Supreme Court Practice, Victoria, 2nd ed. par 65.27.35, p.2483). This is an analogous expense.

19. It follows that it ought to be allowed.

20. The Certificate of Taxation should be varied accordingly.

21. I will hear the parties as to the costs of the taxation.