Law Society of New South Wales v Gallagher [1999] NSWADT 8 (5 March 1999)

Last Updated: 9 March 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Law Society of New South Wales -v- Gallagher [1999] NSWADT 8

REVISION DATE:

DIVISION: Legal Services

APPLICANT:

The Council of the Law Society of New South Wales

RESPONDENT:

Alan James Gallagher

FILE NUMBERS: 9412

HEARING DATES: 28/10/98

SUBMISSIONS CLOSED: 17/12/1998

DECISION DATE: 05/03/1999

JUDICIAL MEMBER: G B Molloy Judicial Member

LAY MEMBER:

LAY MEMBER:

APPLICANT KEYWORDS: Assessment of costs

MATTER FOR DECISION: Application for costs

PRIMARY LEGISLATION CITED: Legal Profession Act 1987

APPLICANT REPRESENTATIVE: L W Pierotti instructed by R J Collins

RESPONDENT REPRESENTATIVE: N Eddy instructed by Nicholas Eddy & Co

ORDERS: 1. Pursuant to the Tribunal's Orders dated 14 November 1997, Alan James Gallagher pay the costs and disbursements of the Council of the Law Society of New South Wales as informant in respect of these proceedings at $28,585.11.

2. Alan James Gallagher pay the costs of the Informant in respect of the Informant's Application filed 28 August 1998 in $1,000.00.

DECISION:

1 On 14 November 1997 the Tribunal ordered that the name of the legal practitioner be removed from the Roll of Solicitors and that he pay the costs of the Law Society as agreed or as assessed.

2 By Application filed in this Tribunal 28 August 1998 the Council of the Law Society of New South Wales sought an order for the assessment of its costs.

3 By its application the Society seeks an order that its costs and disbursements be assessed at $32,244.11. The Society alleges that it provided an assessment of its costs to the Solicitor, that those costs have not been paid and it seeks a determination of quantum.

4 The Application was supported by a detailed Memorandum of thirty pages in length.

5 When the matter came on for mention before me on 28 October 1998 the parties agreed that they would abide by any decision that I made as to quantum, that the respondent practitioner would file and serve a Notice of Objection listing any specific items to which he would seek to object and such Notice to include any general objections that the practitioner would seek to make to the Law Society's Bill and the Society to file its Reply thereafter if it wished.

6 The Notice of Objection was filed 1 December 1998 and the Society filed a Reply 17 December 1998.

7 It now falls to me to determine the quantum that should be paid by the practitioner pursuant to the Orders made 14 November 1997.

Costing History and Principles

8 At the outset I think it important to review, in short compass, the modern history of costing and changes in the method and principles of costing, because I rather suspect that there is a continuing misunderstanding in the legal profession of what the basic principles are. There seems to be a continuing hangover of old discredited costing principles that seem to continually worm their way into the modern costing milieu and it is important, in my view, to identify the problems that were sought to be overcome and to identify the principles that now should apply.

9 Prior to 23 December 1983 Bills of Costs were taxed by Taxing Officers in the Supreme and District Courts. Those officers were public servants, often as high as Registrars and Deputy Prothonotaries, and they taxed Bills of Costs prepared under the then applicable and strictly enforced cost scales. Under that taxing system not only was each item carefully examined and dissected but often items were completely "taxed off" or partially "taxed off" on the basis that the item claimed was not "necessary or proper" for the conduct of the matter. It was particularly notorious in litigation where lengthy and often acrimonious taxations took place before senior taxing officers. The "necessary or proper" taxation principle was based on the outdated principle of a qualified indemnity to the successful party based on the particular applicable scale. One's experience showed, more often than not (unfortunately), that taxing officers at that time somehow thought that by taxing down the successful party's bills they were depriving their solicitor of his/her costs when all that was really happening was that the successful party recovered less of their costs from the unsuccessful party and had to wear the balance themselves.

10 As a result of the recommendations of a special sub-committee formed to examine some of the problems then encountered, the Supreme Court Rule Committee, on 23 December 1983, inserted two new rules into Part 52, namely Rules 50A and 50B. By these amendments two fairly revolutionary steps were taken:

(i) where no objections were made to a Bill then the Bill was to be allowed in full (Rule 50A(7))

(ii) where a Notice of Objection was filed "the items to which objection is taken in the Notice of Objection shall be taxed and other items shall be allowed" (Rule 50A(8)).

11 Both of these were quite revolutionary because prior to those amendments taxing officers had to look at each item of a Bill notwithstanding the fact that no objection had been raised to items not in dispute. The view was taken in 1983, and correctly so, that there was no difference between the actual court case and a taxation of costs, both being of an adversary nature, (except, curiously, in the case of solicitor/client bills where the taxing officer still quaintly took the role of objector), and where an item was not in dispute then it should be automatically allowed and the time of the Taxing Officer should not be spent on matters not in dispute. Subsequently, provision was made for Consent Certificates of Taxation.

12 The next revolutionary step was the amendments to the Legal Profession Act made in 1983. As a result of those amendments the Legal Fees and Costs Board came into being in 1984 with a brief to review legal costing. In 1990 the Board was upgraded and the upgraded Board adopted a robust review of all costs right across the legal spectrum. There was good reason for this because:

(a) the costs scales had not been updated consistent with inflation;

(b) the original and outdated concepts required re-visiting and critical analysis; and

(c) the then scales bore no relationship to the economic reality of conducting a legal practice.

The then applicable scales had become quite discredited and were, indeed, quite irrelevant to the conduct of a legal practice. The Board understood this.

13 The first major step taken by the Board was a careful examination of the then Supreme Court scale Schedule G, Table 1. This schedule the Board reduced from 43 items (with numerous sub-items) down to ten items, making the taxation of costs much more rational.

14 Nextly, in 1994 the Board recommended, and the Parliament accepted, that scales should be abolished. This revolutionary and progressive step took place in 1994. All scales, including all court scales and the conveyancing Schedule Two scale were abolished, costs were de-regulated except for Workers' Compensation costs, various fixed costs and part of the Probate/Estate Administration costs.

15 There were a number of other steps taken at the same time:

(a) The system of taxation by court employed taxing officers was abolished and in lieu cost assessment by experienced litigation practitioners was introduced.

(b) Two old discredited heads of taxation (common fund and trustee basis) were also abolished.

(c) The concept, of "necessary or proper" was substituted by the concept of "fair and reasonable".

16 The last concept, "fair and reasonable", has resulted in a considerable change in the method of costing. The standard of proof is now much lower because the assessment is based on reality and the "coming together" of solicitor/client costs and party/party costs. The assessor, with his/her experience, looks at the reality of actually conducting a matter. The result is that the successful party can now recover most of their reasonable costs instead of part only of an outdated scale. The successful party is therefore more properly indemnified for the costs that they have expended in the proceedings as against the unsuccessful party so that the gap between party/party and solicitor/client is now substantially reduced and in many cases could well be non-existent. And it is important to emphasise the word "party" because it is the client, not the solicitor, who has benefited from the reforms.

17 In addition, there is a real argument that the Re Blythe (1882) 10QBD 207 warning about "unusual" costs and the extraordinary (with respect) decision in Baldi v N G Green & Co (1975) ACLD 175 may have passed.

18 In my view one needs to be very careful not to import into the current liberal costing principles, that enable a successful party to recover most or all of their reasonable costs, principles that date back to an earlier time when there was little or no inflation, where there were very restrictive scales (which often, curiously, only applied to one branch of the profession and not the other) and where the commercial reality of the conduct of a legal practice was entirely different from the commercial realities of life that are currently encountered, not only in the law but also in all other professions and callings.

19 Assessments under the Legal Profession Act, 1987, take place using the principles as prescribed in Sections 208A - 208I inclusive. For the purposes of this judgment the relevant principles are set out in Sections 208A(1), 208F(1) and 208G.

20 Applications for assessment are made either by clients (S.199), by instructing practitioners (S.200), by the legal practitioner (S.201) or by the successful or unsuccessful party in proceedings (S.202). Section 203 requires the application for assessment to be made in the form prescribed by the Regulations and it must contain a statement by the applicant "that there is no reasonable prospect of settlement of the matter by mediation".

21 The forms of application are prescribed by Regulation 26 of the Legal Profession Regulation 1994. Regulation 26A(1)(b) makes provision for a response to be lodged, in the case of a solicitor/client bill, by the legal practitioner who gave the Bill of Costs. In the case of a party/party bill Regulation 26C provides a procedure requiring the party liable to lodge any objection within 21 days and even if lodged later is still to be sent to the assessor (Regulation 26C(1)(a) and (f)).

22 There is an argument oft raised in the profession, in or to the effect that an assessor must have regard to the whole of the bill and to all of the items therein set out. It is said that this obligation arises out of Sections 208A, 208B, 208D 208F and 208G. It seems to me that that argument is, not only at variance with proper efficient practice but is contrary to the principles that should apply. Firstly, Regulation 26G provides that an assessment may be made by consent. It envisages, clearly, that the parties to a bill are at arm's length in relation to the assessment and are entitled to agree. Secondly, the procedures for the filing of objections clearly put the assessment procedure into the category of it being an adversary procedure so that the assessor needs only to determine those matters which the parties have agreed ought to be determined. The filed objection (bearing in mind the requirements of Regulation 22A) operates as a form of pleading identifying the issues that the assessor needs to determine. It is not dissimilar to a matter before a court or tribunal in that the adjudicating officer looks at the pleadings (however they may be described in the particular arena) and thereby determines what issues are not in dispute and what issues are in dispute so that the adjudicating officer (judge or tribunal member) only has to determine the issues that are brought before the court or tribunal by the parties for determination and then only on the evidence adduced by them. After all, that is the very role of the court or tribunal - not to wander off on a frolic of its own but to detemine disputes, i. e. the disputes that are brought before the court or tribunal by the parties for determination.

23 It seems to me, therefore, that the role of the assessor is not at large but is confined by the items in the bill that are disputed, all other items being allowed simply because they are not disputed.

24 Of course, only items should be put in dispute that are genuinely in dispute and for which it is cost-effective to argue. Blanket objections are to be discouraged, are unprofessional and the party making unwarranted objections ought to be mulcted in costs.

25 So, and based on the legal milieu as outlined above (and bearing in mind Legal Profession Act section 208I), the current costing principles mean that I need only determine those matters in dispute, I will automatically allow those items not in dispute, and I will approach the assessment on the basis of what is fair and reasonable with more flexibility and more reasonableness, in order to determine what are to be the proper costs allowable in this matter bearing in mind the reality of conducting litigation, in contrast to the artificiality and nit-picking that was the bane of many taxations.

26 That does not mean, of course, that one should ignore objections taken nor that one should ignore the items claimed. But in carrying out an assessment one needs to be careful not to dissect with a legal scalpel every item claimed or every objection made. To do this would be, as the very least, totally non-cost effective, certainly unproductive and clearly contrary to current, and proper, practice.

27 It is a pity to have to observe, however, that both the Federal Court and the High Court (with great respect) continue to have in place scales of costs that bear little or no relationship to the realistic conduct of a legal practice.

The Objections

28 Dealing now with the legal practitioner's objections, the practitioner made a number of general submissions. Submissions 2 and 4 deal with the fees charged by Ms Jean Sayer, the appointed Investigator and who, in that role, gave evidence before the Tribunal. The practitioner's submission is that her reports dealt with matters other than the matters that were placed before the Tribunal at the hearing. The Society has responded to the effect that the fees charged by her are "purely for her attendances at the Tribunal and associated matters (such as conference and attending to peruse material produced to the Tribunal). Ms Sayer's fees do not relate to her earlier role as Investigator". On that basis it seems to me, that, subject to reasonableness, her fees ought to be allowed as a proper disbursement. No evidence was placed before me in or to the effect that, having regard to the Reply, the fees charged by Ms Sayer were anything other than proper and in my view the fees should be allowed in the amount claimed.

29 It is important to remember, when considering a Bill submitted by the Law Society or the Legal Services Commissioner in matters before this Tribunal, that both organisations have a public duty to perform in ensuring that matters that are capable of amounting to professional misconduct are properly placed before the Tribunal so that legal practitioners who are alleged to have fallen foul of the principles that apply to the practise of our profession ought to be brought before the Tribunal and invited to answer the complaints made against them. In so doing, both organisations discharge their public duty. But, in order to reach that position both organisations need to carry out preparatory work and consider material which, because of the report(s) of a duly appointed Investigator or Receiver, require to be considered in formulating the particulars of the complaint that will ultimately be brought before the Tribunal.

30 In my view it would be niggardly and inappropriate to limit the costs recovered against a legal practitioner to only those matters where the Society or Commissioner were ultimately successful. It is often the case that a costs order is made in this jurisdiction, even where the Society is not successful, but because it was proper for the Society to bring the matter before the Tribunal for determination having regard to the factual matters that fell for determination and having regard to the attitude taken by the practitioner at the hearing and/or the manner in which he/she conducted their practice.

31 The matter now before me falls into that category. The allegations made against the practitioner were numerous, were serious, arose out of complaints by members of the public, involved a consideration of the Investigator's reports and did properly require the attention of both the Society and its senior legal officers and the attention of briefed counsel.

32 One's experience in litigation indicates quite clearly, and notwithstanding the odd angry shot fired in the media, that two heads are better than one, often three heads are better than one, and in consideration of a matter that was undoubtedly complex (after all the legal practitioner himself briefed senior counsel to appear for him) the briefing of counsel at an early stage is often not only warranted but also advisable. Indeed, one should throw around vigorously and robustly, prior to commencing litigation, the facts and the legal principles and in a matter that is likely to be contested (as was this matter) then this robust discussion ought to take place between solicitors and briefed counsel fairly early.

33 If support is required for the above observations, one need only look to Yates Property Corporation (in liq) v Boland (1998) 157 ALR 30. In that case the appellant sued its solicitors and counsel retained by it in proceedings between the appellant and the Darling Harbour Authority for compensation payable to the appellant following resumption of certain land owned by it. The appellant retained solicitors and senior and junior counsel. The appellant claimed that it should have received a substantially greater sum by way of compensation for work performed in bringing the project pertaining to the land to a state of imminent development, no evidence having been led in the Land and Environment Court proceedings of the economic value to the appellant of being in a position to develop the land immediately. The potentiality or adaptability of land should be properly considered when assessing its value if that potentiality or adaptability adds to the value of the land making its highest and best use different from its use at the date of resumption. If the potentiality or adaptability is peculiar to the dispossed owner then it will not be taken into account in ascertaining the market value of the resumed land but falls to be compensated as special value.

34 The solicitor submitted that because competent and experienced counsel, including senior counsel, had been briefed for the work the solicitor was entitled to rely on the advice of counsel as to the appropriate manner in which the proceedings should be conducted. The Full Federal Court rejected that submission. The Court held that the relationship of solicitor and client was a relationship of proximity which ordinarily, and in the particular case before it, gives rise to a duty of care requiring the solicitor to take steps to avoid the client suffering foreseeable economic loss and that duty does not come to an end merely because counsel has been retained.

35 The standard of care that a solicitor owes to his or her client when the solicitor professes to be especially experienced or expert in a particular area of the law should not be confined to the standard of care and skill that is possessed by a solicitor of ordinary competence. Instead, the standard of skill and care is that of a reasonably competent solicitor who is an expert in that particular area of the law. In this case, a solicitor with experience in the law relating to the resumption of land should have appreciated that the appellant's claim represented special value which was relevant in compensation proceedings.

36 In any event, and importantly, the Court held that while a solicitor who does not have specialist experience in a particular field is entitled to rely heavily upon the advice of counsel, the solicitor is still under an obligation to turn his or her mind to the issue under consideration and cannot blindly follow the advice of counsel. So, in this case, the solicitor had failed to consider how the claim for market value and how the claim for special value should be formulated and quantified, had failed to seek the advice of counsel on this issue and was therefore negligent.

37 It seems to me that there is a further consequence of this decision, namely that the professional charges of solicitors, tradititionally thought to be chargeable at a rate lower than the fees of retained counsel, ought perhaps be brought upwards, bearing in mind their obvious responsibility for the action and, more importantly, bearing in mind the personal liability assumed by solicitors. It may well be, having regard to the decision in Yates, the assessment of costs of solicitors on the basis of what is fair and reasonable needs also to be looked at in the light of the ultimate personal liability that the solicitor assumes in the matter. It seems to me not an argument that because the client was successful in the proceedings then somehow or other that personal liability is reduced - indeed, it is the assumption of that personal liability that encourages the solicitor to ensure that all aspects of the matter have been properly considered, counsel properly briefed, vigorous conferences with counsel conducted, all so that the interests of the client are properly protected. And all of this must result in proper remuneration for the solicitor having regard to the assumption of that personal liability and the inability of the solicitor to rely upon the advices of briefed counsel.

38 Consequently, in my view the first four items to which objection has been taken ought to be allowed.

39 The next four items dealt with consideration of jurisdictional questions. Again, for reasons indicated above, the Society has a public duty to discharge. It, as a matter of procedural fairness, brought to the attention of the legal advisors for the Solicitor various jurisdictional concerns and as a result the proceedings were adjourned. Indeed, the adjournment was by consent and it is my recollection that that was a proper course of action for both parties to adopt because it would have been improper to have proceeded with the hearing in circumstances where there was a possibility that the matter might "go off the rails". Consequently, I allow those four items in the amounts claimed.

40 The next item (7/8/95) I allow and I allow the next following item, being stated to be a "general discussion with counsel in relation to matter" because one's experience in litigation indicates that it is often the case, and proper (in my view) to occasionally telephone briefed counsel to discuss the matter generally, where the matter is progressing, and so on, to "throw the matter around". To attempt to limit communication between a party and briefed counsel, unless such communication is excessive or obviously unreasonable, is in my view counterproductive. Communication is often the key to sorting out problems and as long as the communications are not unreasonable, in my view they should be allowed.

41 I allow the item 26/9/95 for the reasons set out above; and I also allow the next two items for the reasons indicated by the Society in its Reply.

42 The practitioner objected to various items pertaining to attendances on/notices to produce served upon Mr Barwick, his former partner. Objection was taken on the basis that Mr Barwick did not give evidence and therefore the items should not be allowed. Apparently a Notice to Attend and Produce was served upon Mr Barwick. The question is: was it reasonable and proper for the Society to issue such a notice to that particular person? And the answer to that question must be "Yes". In my view it matters not whether the person actually produced the documents or in fact gave evidence - it is plain to me that the Notice was properly issued as part of the case for the Society and, as I have indicated in previous judgments, the Society has an obligation to put before the Tribunal all material pertaining to the matters in issue whether or not that material supports the case for the Society or is against it. Consequently, I allow the items 22/12/95 and 15/1/95.

43 Objection was taken to the item 16/1/96 being an attendance on the Registrar to check the form of the Notice to Produce. This was said to be a solicitor/client cost and not a party/party cost. I agree. It is certainly not a party/party cost and there is a distinct question mark over whether it is a solicitor/client cost - maybe it is just the overhead cost of conducting the matter. I disallow the item 16/1/96.

44 I allow the item 29/1/96, I allow the item 24/10/96 (the first one) and I disallow the second item 24/10/96 to which objection has been made, for the reasons set out above. Indeed, the Society concedes this item.

45 The next item (Nov 1996) was an enquiry in my view properly made, to the Registrar of the District Court. I see no problem with this item and I allow it.

46 The next 17 items to which objection was taken relate to the evidence of a Mr Shepherd. Mr Shepherd made a Declaration in the proceedings but was unable to give evidence. His Declaration was admitted into evidence.

47 Objection is taken because Mr Shepherd was not called but that, for the reasons indicated above in other aspects of this matter, seems to me to be irrelevant if in fact it was reasonable for the Society to attend upon and in respect of this witness in circumstances where in fact the evidence of the witness was admitted, albeit without the witness being present at the hearing. I allow the items to which objection has been made in this regard.

48 I allow the items 29/11/96 with respect to Mr Barwick.

49 Objection is taken to a conference 2/12/96 with counsel "discussing matter generally". This is said to be "not a party and party matter" but I simply cannot understand that objection having regard to the fact that the matter was before the Tribunal on hearing 2 and 3 December 1996.

50 Objection was also taken to various attendances arising out of the illness of one of the key witnesses for the Society. One can understand this objection. I have read carefully the submission by the Society on this aspect but I am unable to agree that this is a reasonable party/party cost. It is not the same as a judge being ill and the matter having to be vacated. It is one of the unfortunate vagaries of litigation, certainly not the fault of the respondent legal practitioner and it seems to me to be inappropriate and inconsistent with "justice" to visit the respondent practitioner with the consequent cost arising out of the illness of a witness for the Society. I therefore disallow the last item 21/2/97, the items 3 and 4/3/97 and the item 12/3/97 to which objection has been taken.

51 The item 1/4/97 is allowed, the item 9/4/97 is disallowed and the item 6/5/97 relating to a draft letter from counsel I allow as the letter was sent and there is no objection to the format or content of the letter and having regard to the way in which the matter had progressed to that point I can see no reason why counsel should not have been appropriately briefed in this regard.

52 The item 30/5/97 I allow.

53 Objection was taken to the item 25/6/97 being a letter to the Registrar confirming that the Society was not to call upon certain Notices to Produce. The Society has submitted that these notices were issued as a result of evidence given by the practitioner and comments from the Tribunal Bench - efforts were made to locate the relevant material, the documents were produced from one party and the attendance on the Registrar seems, in my view, to be reasonable. I allow it. Again, the question is: was the attendance or attendances reasonable in all the circumstances? If the answer is "Yes", then the attendance should be allowed.

54 Objection was taken to a number of items commencing 26/6/97 arising out of an amendment to the filed Information. It was said, baldly, that the cost was not "properly the cost that should be paid by the respondent". Perhaps a little more detail would have been helpful. As I remember it, the various amendments were not in fact dealt with at the substantive proceedings and in my view, therefore, the items should be disallowed. It is not to the point, as submitted by the Society, that the Tribunal's Order in respect of costs did not differentiate as to "the costs which the former solicitor should be responsible for" simply because that is a matter for assessment to work out what is reasonable and what is not. One then looks at each individual item to which objection is taken to work out whether, in all the circumstances, the item claimed is reasonable as to the attendance and as to the charge. In my view, these items fail the test and ought to be disallowed.

55 The next item to which objection was made was 25/7/97 being a letter to the legal advisor to a complainant seeking compensation. I must confess I am at a loss to understand why objection is taken to this, it being a natural and consequent activity as a consequence of the Tribunal's findings. I allow the item. I also allow the following item 23/7/97 for the reasons previously indicated.

56 A substantial objection was raised by the solicitor to an item for "additional general file administration" which is calculated (apparently) to be $2,837.50. The objection is that this item "are not party and party costs and should be deleted in its entirety". In its Reply the Society submitted that it maintained computerised diary action sheets, that general work may be carried out in the matter, work that may include attending to photocopying documents, arranging for service and that, "it is not always that an attendance by the responsible solicitor will be diarised other than in the general terms of file administration". The Society submitted that "in the light of the time which this matter was on foot, the hourly charges and the number of hours of work which fall within this category .... such a charge is, in the circumstances, reasonable".

57 In my respectful opinion, however, that simply fudges the issue. The objection is properly taken and needs to be properly answered. After all, it is the successful party who makes a claim against the unsuccessful party and the onus of proof is on the successful party to prove to the satisfaction of the Assessor that the attendances were reasonable and the amount charged for those attendances was also reasonable. To make some sort of an ambit claim does not satisfy the requirement for reasonable particularity so that the respondent practitioner is able to address the particular attendances to see whether those particular attendances were reasonable or not.

58 Consequently, in my respectful opinion, this item should be disallowed in its entirety.

59 The next objection was taken to the fees of counsel Ms P A Bergin. No objection was taken to the reasonableness of the fees of Ms Bergin, the objection seemed to be that because the Law Society solicitors are "experts in (the) field (then they) should not be seeking advice from counsel". If that is the sole basis of the objection, then I disallow the objection and allow the amount claimed. It is trite to observe, yet again, that in litigation often two or three heads are better than one and unless it can be said to have been a matter that did not require the services of counsel at all (and this case clearly does not fall within that category) then it seems to me that the fees of Ms Bergin are properly allowed.

60 The next item objected to were the fees of Mr Wales of counsel. It was said that his fees should be reduced by 50% because extraneous materials (to which objection had been taken and has been dealt with above) were included in his brief, that certain matters were not proceeded with and so on. The objection is a trifle hard to follow but I agree with the Society's submission that the objection "does not raise the reasonableness of counsel's fees or the work carried out by him, especially having regard to (his) expertise, the duration of the hearing of the matter and the position which was taken by (the practitioner)".

61 I have considered the Memorandum of Fees of Mr Wales attached to the Bill of Costs. There is no doubt, in my view, that the quantum of fees charged is reasonable and, in all the circumstances, I am unable to see any attendance that could be regarded as other than reasonable and proper save as to the attendances relating to the amendment to the filed Information which appear to be the attendances 1/7/97, 2/7/97 and 3/7/97 and, for the reasons that I have indicated above in my view those attendances ought not to be allowed on a party/party basis and I therefore disallow those items which in total amount to $220.00.

62 An objection was also raised to the photocopying charge made by the Society. It was stated on behalf of the practitioner that "many documents were not allowed (sic) and should not be a party and party cost" and a reduction of $150.00 was submitted. I reject that submission. Photocopying was claimed at 20c per page. Even if there was, somehow or other, some slight over copying there is absolutely no doubt in my mind that a charge of 20c per page is more than reasonable, indeed overly generous. One's commercial legal experience indicates quite clearly that rates between 40c per page and $1.00 per page are the market rates, consistent with practice, consistent with the former scales and consistent with proper profitability of legal practices.

63 The Society in the preparation of its Bill, as I understand it has adopted varying hourly rates for the time spent. Firstly, the Bill has been presented to the Tribunal on an hourly basis divided into minimum six minute units, each unit being specified as 0.10. Then, in considering the actual amount, for the period 1/7/94 - 20/6/95 the hourly rate is $110.00, for the period 1/7/95 - 30/6/96 the hourly rate is $115.00; for the period 1/7//96 - 30/6/97 the hourly rate is $120.00; and for the period 1/7/97 to 14//11/97 the hourly rate is $140.00. The Society has submitted that "those professional costs are arrived at by the Society on the basis of a number of factors which exclude any `profit' element. The Society merely seeks to recover the costs which it has expended". I have little doubt that submission is correct. There is no doubt in my mind that the rate charged by the Society was more than reasonable, even generous, and well below the proper market rate that would have been charged by a legal practitioner in private practice. There is more than adequate authority for the view that a statutory authority is entitled to recover legal costs at the proper "market" rate and there is no doubt in my mind, absolutely no doubt, that the charge rate brought in by the Society in this Bill of Costs is well below the "market" rate and I have no hesitation in finding that the hourly rate as charged is more than reasonable. I also have no hesitation in finding that the hourly rate divided into minimum six minute units is quite proper, consistent with common commercial practice, and ought to be allowed. I am totally unable to follow any argument (not, I admit, advanced in this case) that is sometimes raised by some judges that minimum six minute units are inappropriate. The Legal Fees and Costs Board in its determinations, clearly found to the contrary, the scales that subsequently became law clearly adopted the minimum six minute approach, six minute units are common and proper in the profession, are consistent with commercial reality and in the circumstances of this particular case in particular are more than reasonable from the point of view of the legal practitioner.

Conclusion

64 The Bill for the Society has been brought in at $32,244.11. In the course of my determination I have disallowed one unit at $115.00 per hour ($11.50), 20 units at $120.00 per hour ($240.00); 25 units at $140.00 per hour ($350.00), additional general file administration at $2,837.50 and $220.00 worth of the fees of counsel, in total: $3,659.000.

65 Therefore, in my judgment, the sum of $28,585.11 should be the amount that the legal practitioner should pay to the Society pursuant to the Orders made 14 November 1997.

66 The Society also seeks an order that its costs of the Application should also be paid by the legal practitioner. I do not know what negotiations (if any) took place between the parties prior to the filing of the Application 28 August 1998. However, I am content to rely on the general principle that a successful party is entitled to its costs. The costs of a Costs Assessor are generally included as part of the successful party's costs and in my view nothing has been put before me that would disentitle the Society to an order that its costs be paid. Those costs must include the not insubstantial costs of the preparation of its itemised Bill, the costs of perusing and considering the Notice of Objection and the cost of the Society's Reply. Fortunately for everybody nobody has to pay my costs!

67 Doing the best I can, and subject to any submissions that any party may wish to make to me to the contrary, I assess the costs of the Law Society of its Application, having regard to the above criteria, at $1,000.00. However, I grant leave to any party to make any further submissions to me on this aspect, such submissions to be made within 14 days, otherwise this assessment to become final.