Dive and Administrative Appeals Tribunal [2000] AATA 56 (1 February 2000)

Last Updated: 4 February 2000

DECISION AND REASONS FOR DECISION [2000] AATA 56

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. Q1997/1196

General ADMINISTRATIVE DIVISION )

Re JOHN DOUGLAS JAMES DIVE

Applicant

And DISTRICT REGISTRAR, ADMINISTRATIVE APPEALS TRIBUNAL

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 1 February 2000

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

Taxation of Costs - Bill of Costs - party and party costs - use of costs consultant - whether failure to respond amounted to acquiescence and consent to assessment - reasonableness of fees.

Safety Rehabilitation and Compensation Act 1988 s 67

REASONS FOR DECISION

1 February 2000 Deputy President DP Breen

1. This is an application to review the amount of costs to be paid as determined by the District Registrar in a taxation of the applicant's Bill of Costs in these proceedings. The taxation was conduced by the District Registrar on 6 November 1996.

2. The parties agree that costs were awarded in accordance with Section 67 of the Safety Rehabilitation and Compensation Act 1988.

3. The applicant is appealing against the disallowance of Items 611-615 inclusively, Item 644, Items 587 and 591 in the Bill of Costs.

Items 611, 612, 613 and 615

4. These items in the Bill of Costs relate to correspondence between the applicant's Solicitors and Ryan Costs Consultant Pty Ltd. The District Registrar disallowed these items in full on taxation.

5. The applicant's representatives submitted at the taxation, that the costs of this correspondence were a party and party cost because the respondent's representative, the Australian Government Solicitor, failed to respond to a letter seeking that costs be determined between the parties by way of an assessment from a legal cost consultant. In the submission of the applicant, this failure amounted to acquiescence and consent.

6. The respondent submitted that the failure to respond did not amount to acquiescence or consent to the obtaining of an assessment of costs from a costs assessor.

7. In her reasons for decision the District Registrar stated:

"18. In disallowing the items claimed, I accepted that AGS had failed to respond to the correspondence of the applicant about seeking an assessment, however I did not accept that silence constituted consent to that course of action. The obtaining of the assessment may have assisted the applicant to conduct negotiations with Comcare more easily, however the obtaining of the assessment was in fact not productive in advancing the matter."

8. The respondent submitted that the letter in question did not request the consent of the Australian Government Solicitor to the course of action taken by the applicant's solicitors. The letter in question is a letter dated 4 April 1996 which itemises 6 "significant matters coming out of that decision". The final paragraph is in the following terms:

"We intend to have our costs assessed by Greg Ryan Cost Consultants on the relevant scale applying to the matters of this type. We will forward to you copies of the assessment in due course."

9. It does seem to me that a party is entitled to obtain a cost assessment as the applicant's solicitors did. This however is in the hands of the particular party. As was stated by the District Registrar, "the assessment was in fact not productive in advancing the matter". The letter on its face shows no requirement for the Australian Government Solicitor to respond either affirmatively or negatively. If the applicant wanted to approach the assessment of costs in this manner that was a matter entirely for him and certainly did not require the consent of the respondent.

10. I would therefore agree with the District Registrar that these items are not party and party costs and should be disallowed.

Item 644

11. This item relates to "instructions including attendances on and correspondence with the applicant, perusals, work usual and necessary but not hereinbefore mentioned, care and consideration " - $3930.00. On taxation, the sum was reduced to $1800.

12. The District Registrar "considered that as the Bill of Costs comprehensively itemised by specific item charge, the conduct of the proceeding, that no allowance need be made for any additional items under item 644 except for care and consideration."

13. I agree with approach of the District Registrar with respect to this Item.

items 587 and 591 of the Bill of Costs

14. Item 587 relates to payment to Counsel for his appearance at the hearing on 21 March 1996 in the sum of $2,100. Item 591 relates to the refresher fee in the sum of $1,400. The District Registrar reduced Item 587 to $1,500 and Item 591 to $1,000.

15. The District Registrar in her reasons said -

"33. To disallow the fees claimed I must first find that in all the circumstances the fees were unreasonable (in re Trout, Bernays & Co (1955) QSR 398). I found the fee on brief and the refresher fee of $2100 and $1400 to be unreasonable having regard to the complexity of the matter and the fact that allowances had previously been made in the Bill of Costs for an advice on evidence on 5 February 1996 ($150) and pre hearing conferences on 14 March 1996 ($250) and 20 march 1996 ($375). A fee on brief has a component for preparation by counsel. I took into account under Order 62 Rule 22(2)(a) the fact that counsel had previously prepared an advice on evidence and that two conferences were held in the matter, in considering the reasonableness of the fees claimed.

34. Having found the fees to be unreasonable, I allowed a sum of $1500 for the fee on brief and $1000 for the refresher after considering the District Court Scale which at that time allowed for $1050 on trial or hearing with a refresher fee of 2/3 of that amount, the Family Court Scale which allowed $950 - $1400 a day and a "Scale of Counsel's Fees" issued by the New South Wales District Registry of the Federal Court of Australia (appearing at page 52,431 of Legal Costs New South Wales (1994 Butterworths looseleaf)), which indicates a fee between $1200 - $2000."

16. I agree with the decision made by the District Registrar in taxing the costs for these items. Her reasons for decision are fair and considered. There is no basis for interference by the Tribunal with the outcome struck by the determination under review.

I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President DP Breen, Presidential Member.

Signed: Emma Oettinger

Associate

Date/s of Hearing 8.5.98

Written Submissions 5.6.98

Date of Decision 1.2.00

Counsel for the Applicant

Solicitor for Applicant Mr M Dyer, Messrs O'Shea & Dyer

Counsel for the Respondent

Solicitor for the Respondent Ms N Barker, AGS