Decisions of Costs Assessor (mostly) reversed on Review.
- Paul Cameron
- Jun 16, 2022
- 4 min read
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – PROCEDURE AND EVIDENCE – TIME AND EXTENSION THEREOF; APPEAL REVIEW OR REFERENCE – RELEVANT PRINCIPLES – GENERALLY; MISTAKE OF TAXING OFFICER; PARTICULAR ITEMS – COUNSEL FEES – NUMBER OF COUNSEL – TWO COUNSEL
The Costs Applicant applied for a Review of the Costs Assessors Certificate pursuant to rule 742 of the Uniform Civil Procedure Rules. The Costs Applicant’s primary arguments were that that the Costs Assessor erred in respect to disallowing Queens Counsel’s fees, and by Ordering the Costs Applicant pay ¾ of the Costs of the Assessment.
Leave.
The Application for Review was filed outside the 14 days as required under r742(c) (b). Her Honour noted that the Costs Assessor never sent a signed copy of the Certificate to the parties [6] (two draft .docx (Word ®) versions). Her Honour in this respect found that that pursuant to rule 737 (2) that a Costs Assessor is required to send a signed copy of the Certificate to the parties. [7] Not withstanding that Her Honour stated that the Application should have been filed earlier, Her Honour granted an extension of time to file the Application. The Reasons for allowing the Review Application was that:
1) The Registrar had not given Judgment on the Certificate;
2) the Costs Respondent was not prejudiced; and
3) that there are important points of law raised and errors on behalf of the Costs Assessor. [8]
Costs of the Hearing
The Costs Applicant claimed it in its Costs Statement “Costs of the hearing” pursuant to Order 3 of the Orders of Applegarth J. Her Honour at the hearing of the Review Application noted the parties did not have a copy of the ex-tempore reasons for the Orders Applegarth J and requested same. Following a review of these reasons Her Honour determined that the items claimed in the Costs Statement were in fact “Costs of the Hearing”.[20], [43] This is not withstanding the Costs Applicant’s concessions to the Costs Respondent’s objections that items 1 – 93 in the Costs Statement as not being “Costs of the Hearing” [27]. This is also tied in with the Claim for Queens Counsel’s fees.
Providing Reasons without Request under rule 738
Her Honour referred to Rule 720 (2) where it is stated that an Assessment must be carried out considering the rules of natural Justice. Her Honour also took no issue with the fact that the Assessment was carried out without an oral hearing in accordance with rule 720(4)(b) (which is normal in any event) [29]
It was noted that the Costs Assessor provided reasons not withstanding that no party requested reasons (at no charge), on a relatively simple assessment and brought up issues that had no bearing on the Assessment. The Costs Assessor stated that that the reasons would ensure finality to the Assessment, however it was noted by Her Honour that this it in fact prompted this Review Application. It was also indicated an aspect of bias by the Costs Assessor towards the Costs Consultant engaged by the Costs Applicant may have affected the Assessment (noting the Costs Assessor (inappropriately) filed an Affidavit (interjecting himself in the proceedings) which the Costs Respondent disclaimed reliance on). [12]
Allowance for Senior Counsel.
Her Honour referred to Queens Counsel’s fees where the narration was “work done before the actual date of the hearing”. Her Honour noted Dal Pont at 17.48 and rule 731 (refresher) where it was noted that a fee on brief includes preparation for and hearing of the Application including a refresher.
It was noted that the Costs Assessor discounted Junior Counsel’s fees [34] with the Costs Applicant only pressing for Queens Counsel’s fees [35]. Her Honour noted the Costs Assessors reliance of extraneous material not presented by the parties which was in fact wrong. [36], [37] When applying rule 721 Her Honour noted that “nature and importance of the proceeding” warranted the engagement of Queens Counsel. [38]
Her Honour found when allowing all of Queens Counsel’s fees:
there was work – preparing, conferring and dealing with the draft order – not charged for separately by Morris QC;
no fee is claimed for junior counsel in circumstances where the fee notes show junior counsel prepared drafts for and otherwise assisted Senior counsel;
the costs assessor allowed only 10% of a fairly modest claim for care and consideration in part because of the solicitors’ reliance on counsel; and
the fee is reasonable having regard to the nature of the application.
Costs of the Assessment
The Costs Assessor determined that the Costs Application was to pay ¾ of the Costs of the Assessment due to the items claimed in the Costs Statement but (wrongly) abandoned on Assessment. Her Honour accepted that the Costs Applicant’s submissions the net effect of the Certificate was that the Costs Applicant was to pay the Costs Respondent. [50] Most Costs Certificates require the Costs Respondent to pay the Assessed Costs and Costs of the Assessment (without any compliant offers to settle) [50]
Her Honour when referring to Hunter v Hunter [2015] QSC 181 found that the Costs Assessor erred when apportioning costs 75/25 in the favour of the Costs Respondent. In Hunter it was accepted that absence of any offer to settle the Costs Applicant has no choice by to proceed the matter to assessment ([34]) and that any excessive claims must be discounted (35). [51]
Her Honour also accepted that the Costs Assessor denied the parties procedural fairness by refusing to request or accept any submissions on Costs of the Assessment [52] (which is normal procedural step).
Her Honour accepted that the Costs of the Assessment should be paid by the Costs Respondent as: [55]
The applicant (Costs Respondent) made the same formulaic and wrong objection to each of these items (items in the Costs Statement);
the items were not of great value; and
that they were abandoned by the respondents (Costs Applicant) so that the assessor did not have to decide them
Orders
That Queens Counsel’s fees are allowed, and Junior Counsel’s fees be disallowed.
That the Costs Respondents pay 90% the Costs of the Assessment
That there is a further hearing to fix costs of this Review Application.
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