7 e) bh CATCHWORDS Costs ~ Federal Courc Rules 0.62R.12 and R.19 - costs for perusing documents prima facie "unreasonable" - taxing officer has no discretion to reduce amount allowed in Second Schedule for Price v. Clinton [19 FAT-SEL PTY. LIMITED such item. 06] 2 Ch. 487 - con. v. BRAMBLES HOLDINGS LIMITED No. G16 of 19385 Beaumont, J. 29 May 1985. Sydney. ee mans CNT ROS Beet one ms Me Yaa Dever Feb Md was aA SIPS sue PORT OR ee Ty TE Tar, CRSA Rh, ARO DA WATTS [eee T FE" IN THE PEDERAL COURT OF AUSTRALIA NEW 3QUTH WALES REGISTRY No. G16 of 1395 we ee GENERAL DIVISION BETWEEN : FAT-SEL PTY. LIMITED Applicant AND: BRAMBLES HOLDINGS LIMITED Respondent MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: 29 May 1985, Where made: Sydney. THE COURT GRDERS THAT: l. Answer the questions referred as Follows: ~ Question: Notwithstanding the provisions of Order 62 Rule 12 of the Federal Court Rules. does the taxing officer have a discretion to allow items at other than the scale. - measurement or fee contained in the Second Schedule to the Federal Court Rules? Answer: Subject to the operation. if any, of Order 62 Rule 13, no. a eed eee ne ee we Re eee mee Po ON Question: In particular. does Rule 19 operate to qualify Rule 12? 2- Make no order as to costs. Note: Settlement and entry of orders i3 dealt with in Order 36 of the Federal Court Rules. raheem a enn Ne ee re nee RY em tenet Beene om oe mee - - +e Lt] THE FEDERAL COURT OF AUSTRALIA a a oO [on a Hy fo it fee ter NEW SOUTH WALES REGISTRY GENERAL DIVISION BETWEEN : FAT-SEL PTY. LIMITED Applicant AND: BRAMBLES HOLDINGS LIMITED Respondent CORAM: Beaumont. J. DATED: 29 May 1985. REASONS FOR JUDGMENT (ON REFERENCE FROM A TAXING OFFICER) In the context of an application for security for costs, I ordered that the responaent's costs for work done in this proceeding up to 22 March 1985 be taxed. A bill of costs having been filed. pursuant to Order 62 Rule 39/3). the taxing officer has referred to the Court the following questions: "1. Notwithztanding the provisions of Order 62 Rule 12 of the Federal Court Pules. daoes the Taxing Officer have a discretion to allow items at other than the scale, measurement or fee contained in the Second Schedule to the Federal Court Rules? In particular., does Rule 19 operate to qualify Rule 12?" ares ee ty The facts. as stated by the taxing officer. are a3 Follows: "Throughout the Respondent's Bill of Costs charqes are made in respect of the following items in the Second Schedule: - 17. Percusal of any document (when necessary) including Special letter, telegram or telex If 3 Folios or less ...... 10.00 Or per Folio .-... eee eee 2.00 13. Where it 18 not necessary to peruse but 1t 15 necessary to scan a document per PATE .e eee eee ee eee ve reereece 3.00 (item 50 inter alia. a folio comerises 72 words; there are qenerally 3 folios to each page) _ The Bill of Costs includes the following charges 1n respect of 1tems 17 and 13 in the Second Schedule:- Page No. No. of item 2nd Schedule Charae 8 538 17 $3 6,000.00 8 59 16 19,500.00 10 80 1? 444.00 10 81 18 1,500.00 13. 118 17 120.00 ~ i5 137 17 576.00 20 184 17 84.00 20 185 1? 700.00 20 186 18 3,000.00 4 416 17 270.00 46 447 17 124.00 47 455 17 400.00 50 480 17 900.00 50 481 18 600.00 $25,218.00 taxing officer offered the following comments "These 14 separate charges resresent the perusal of 4779 folios and the scanning of 5200 pages. In my view if the measurement and fee (charge) in the Second Schedule ig applied. the fees that would be allowed appear prima Tacie unreasonable. However. if a measurement on an hourly basis were applied (i.e. 590.00 -~ 395.00 per house (item 37)). the fees that would be allowed would more properly and reasonably reflect the actual work engaged _ in. It would appear appropriate in this Bill of costs that items 17 and 18 be allowed on an hourly basis." Reference should first be made to the terms of the relevant rules. By Order 62 Rule 1Z. excent as otnerwise ordered. in ail proceedings commenced after the relevant date. s30licitors are. subject to the Rules. entitled to charge and be allowed the fees set forth in the Second Schedule in respect of the matters referred to in that Schedule. and higher fees are not to be allowed in any case except such as are otherwise provided for by that Order. dy Qrder 62 Rule 19. 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 yustice or for maintaining or dsetending the rights of a party, but, mcept as against the party wno incurred then, costs shall not be allowed which appear to the taxing officer to have been incurred or increased: YT tr mettre so a wee ne or a ee _ —~———— 4. (a) chrough over-caution. negligence or misconduct: (b) oy payment of special fees to counsel or special charges of expenses to witnesses or other persons: or (c) by other unusual expen3es. The provisions or the Second Schedule need not be detailed. Items 17 and 18. which are applicable here. have already been mentioned. It will suffice for present pucposes to note that although the Second Schedule provides in many instances fora fixed sum (items 17 ana 18 are examples), in the case of a limited number of items. the taxing officer 18 given a discretion as to the fee to be allowed (see, e.g. items 6, 7 and 23). On behalf of the respondent it is submitted that. subject to the application of Order 62 Rule 19 where appropriate (and that question does not arise on this ceference although it may well arise at a later staqe), the taxing officer has no discrstion to allow an amount less tnan that specified in items 17 and 18 of the Second Schedule. The applicant, in its submissions. appears to have accepted this general position and directed its arguments to the different 1ssue, yet to be determined. of whether the costs claimed should be disallowed by virtue of Urder 62 Rule 19. It is not apoeropriate that I express any view on this aspect of the matter at this atage. The question now asked is. of course. ore of construction of the Rules and 1t is clear that the operation of Order 62 Rule 12. being expressed to be "subtect to these Rules". i8 subject to the operation. if any, of Order 42 Bule 19. Further. in my view, the language and structure of the Second Schedule indicate that where an item falls within items 17 or 18. the taxing officer-is bound to allow costs on the basis there specified and at no lower rate. sunject to the possible operation of Order 62 Rule 19. In short. Rule 13 apart. in my opinion the taxing officer is given no relevant discretion on the taxation of these items. In this respect, the contrast between these items and items such as item 23. where a discretion is conferred. is significant. Such a construction is supported by authority. Price v. Clinton £19063 2 Ch. 4387 is directly in point. It was there held that under the English rules the taxing officer had no jurisdiction to reduce the amounts allowed under scale costs. Numerous actions having been brought by different plaintiffs against one defendant in respect or the same subject matter, the defendant's solicitor entered an appearance in all the actions at one and the same time. It was held that he was entitled on taxation to the full allowed by p.490): fee the rules on each avclion. Joyce, J. said (at "Rule 8 of Order LEV. provides that solicitor3a shall be entitled to charge and be allcwed the fees set forth in Appendix N: and Appendix N prescribes the amounts to be allowed. Now what the taxing Master has done is this: He considaerad that, notwithstanaing Appendix N, he had a discretion as to the amount to be allowed. and that by virtue of Order LXV. r.27. sub-r.29. and under the pecullar ~ clrcumstances of this case. he was entitled to allow. and did allow. a smaller sum than the amount specified in the appendix. But it appears to me that whether this sub-rule enables the taxing Master to allow more than the specified amount, or whatever the authority may be wnich ut confers upon him, it does not entitle him to allow a smaller sum than the amount specified in the appendix. Now, according, to r.8 and Appendix N. the sum to be allowed for entering any appearance is 6s. 8d.: and if entered at one time for more than one person. for every defendant beyond the first sum of Ils. There is no provision in the rules or appendix for such a case as the present. where there are several actions aqainst the game defendant. and all the plaintiffs are represented by the same solicitor. nor 1s there anything at all like it. If any special provision is to be made to meet a case like the present, where there are many actions, that provision must be made by anew rule or an alteration of the appendix. In the meantime. as the appendix stands, 63. 8d. is to be allowed for any appearance. Therefore. in my opinion. 6s. 8d. must be allowed for each appearance in this case." (See alsa Russo v. Russo £19531] V.L.R. 57 at p.63; cf.. in the case of an increase of the allowed costs. Re Ermen £19033 2 Ch. 156: see further Halsburv's Lawa OL England, 4th Fd. Vol. 37 at p.S723; Butterworths Costs, 4th Ed. Vol. 1 at para.Alet). It 1s true, as Halsburv (op. cit.) points out, that notwithstanding what was decided in Price v. Clinton, a Judge may in his discretion modify the scale of costs when ordering that a party receive costs (see Neaves v. Spooner (1887) 36 WR 257. C.A.). That is a different question although it may be a material matter to be taken into acceunt inthe application for sécurity for cost La) on the issue of the amount of the security to be provided. for in ordering security for costs. the Court does not set out to give a complete and certain indemnity for costs incurrad (see Brundza v. Robbie & Co. (No. 2) (1953) 88 C.L.R. 171 at p.175). It follows. in my opinion. that subject to the application of Order 62 Rule 19 where appropriate (and I express no view on that matter) the taxing officer is bound to allow costs in the amounts specified in items 17 and 18 of the Second Schedule. Specifically, an my view. where Order 62 Rule 19 is not applicable. the taxing officer has ArSere {re 5 no jurisdiction to reduce those amounts merely because 1t 1s considered that an "unreasonable" result 1s thereby 8. achieved. (It should be noted that the ules of Court have recently been amended so as to give the taxing officer a discretion in a matter such as the present but the amendnent has not yet come into operation.) In the result. I answer the questions referred as follows: Question: Notwithstanding the provizions of Order 62 Rule 12 of the Federal Court Rules. does the taxing officer have a discretion to allow items at other than the = scale. measurement or fee contained in the Second Schedule to the Federal Court Rules? Answer: Subject to the operation, if any, of Order 62 Rule 19, no. Question: In particular. does Rule 19 operate to qualify Rule 12? Answer: Yes, Since there was much common qround in the respective contentions of the parties on these questions. I propose to make no order for the costs of the reference. the y . I cerivly inet teeseeektie" © preceding SS pee em een re See