Marketing Advisory Services v Tasmanian Football League Inc [2002] FCA 990

FEDERAL COURT OF AUSTRALIA

Marketing Advisory Services v Tasmanian Football League Inc [2002] FCA 990

PRACTICE AND PROCEDURE – taxation of costs – unrepresented litigant – application for extension of time to object to decision of taxing officer – consideration of merits of proposed review Federal Court Rules O 62 r 42, 44 MARKETING ADVISORY SERVICES v THE TASMANIAN FOOTBALL LEAGUE INC & ANOR T5 of 2001 HEEREY J 31 JULY 2002 HOBART

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T5 OF 2001

BETWEEN: MARKETING ADVISORY SERVICES

APPLICANT

AND: THE TASMANIAN FOOTBALL LEAGUE INC

FIRST RESPONDENT

FOOTBALL TASMANIA LTD

SECOND RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 31 JULY 2002

WHERE MADE: HOBART

THE COURT ORDERS THAT: 1. The time for filing a notice of motion fixed by O 62 r 42(3) of the Federal Court Rules be extended until today. 2. The notice of motion filed by the applicant on 10 May 2002 be treated nunc pro tunc as a notice of motion for the purposes of O 62 r 42(2) of the Federal Court Rules. 3. The reconsideration be conducted by the taxing officer on a date to be fixed. 4. The costs of today's application be paid by the applicant. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY T5 OF 2001

BETWEEN: MARKETING ADVISORY SERVICES

APPLICANT

AND: THE TASMANIAN FOOTBALL LEAGUE INC

FIRST RESPONDENT

FOOTBALL TASMANIA LTD

SECOND RESPONDENT

JUDGE: HEEREY J

DATE: 31 JULY 2002

PLACE: HOBART

REASONS FOR JUDGMENT 1 The question I have to decide is whether the applicant, Mr Wheaton, should be granted an extension of time pursuant to the general provisions of O 3 r 3 of the Federal Court Rules ("the Rules") to object to a decision of the taxing officer. The taxation took place on 27 March 2002 pursuant to an order of Marshall J of 26 October 2001 which provided: "(1) The costs of the respondent ordered to be paid by the applicant shall be paid as follows: (a) those costs incurred on or before 23 September 2001 shall be paid on a party and party basis; (b) those costs incurred after that date are to include all costs except in so far as they are of an unreasonable amount or have been unreasonably incurred, so that, subject to the above exceptions the respondent will be completely indemnified by the applicant for his costs." 2 Marshall J's order was on 31 May 2002 affirmed by a Full Court of this Court. I was informed by Mr Wheaton that he is seeking special leave to appeal to the High Court of Australia but for present purposes I need only look at the procedure that the taxation of costs took. 3 On 7 May 2002 the taxing officer issued a certificate of taxation at $13,787.60 together with the costs of taxation fixed at $750. 4 There has not been in the meantime, as there should have been under O 62 r 42, an objection to the decision of the taxing officer. The subsequent review to the Court under O 62 r 44 is conditional on a reconsideration pursuant to such an objection. Hence all I can do now is consider whether or not the time for that objection should be extended, notwithstanding that the certificate of taxation has issued in the meantime. 5 On 10 May 2002 Mr Wheaton filed a document headed "Notice of Motion and Request for Review of Taxed Bill of Costs [Order 62, Rules 42, 43 and 44]". Citing the order of Marshall J, the notice continued: "Whereas the following item numbers to the bill of costs are either unreasonable or excessively charged, as had been pleaded at the taxation or had been unreasonably incurred; Items 1,9, 17, 19, 22, 33, 35, 49, 50, 51, 52, 53, 54, all charged at $220 per hour whereas schedule 2 on Costs Allowable (70,595) Items #1 through #5 (Instructions) and Items #31 through #39 (Attendances) Column 5 collectively allow the maximum fees below $220 per hour, with items 22, 33, 35, 51 claiming excessive hours/times for simple tasks, in particular items 22 and 51 being manifestly excessive, such that: Item 22 was charged at 6 hours in lieu of 2 hours being more reasonable; and Item 51 consists of duplicate claims at 30 hours in lieu of 4 hours being more reasonable; Item 43 excessively charged." (Emphasis in original) 6 I think for practical purposes the notice of motion, setting out as it does the items complained of, can be treated as a statement of objections as required by O 62 r 42(4). Mr Wheaton, of course, has to explain the reason for delay. He filed an affidavit sworn on 16 May which seems to be mainly concerned with his complaints about the handling of the matter by his former solicitors Hunt and Hunt. Most of that really relates to alleged failures by Hunt and Hunt in relation to the substantive hearing although he does allege, "failure to attend the taxation which involved matters entirely in that firm's carriage." 7 There is then a question of the merits of the proposed review. Mr Wheaton claimed the $220 per hour was unreasonable and he complained of item 22, which was: "Attending as Counsel to consider instructions from John William Woods, Liquidator and draw affidavits of John William Woods and Guy Frederick Abel, 6 hours at $220 per hour." And item 51, dates 22, 23, 24, 25 and 26 October 2001: "To Counsel's fee on brief, including research of all relevant Case Law in relation to Copyright and relevant legislation, research of all relevant Case Law in relation to dismissal of Applicant's claim and striking out of Applicant's claim, security for costs, stay of proceedings and abuse of process of Court, drawing engross Notice of Motion, preparation and drawing of written submissions to be submitted to Court and List of Authorities to be provided to Court, plus fee in time for general care and attention (as per Counsel), 30 hours as $220 per hour." 8 Mr Abel of counsel who appeared for the second respondent, Football Tasmania Limited, objected to Mr Wheaton making comments on the reasonableness of his (Mr Abel's) conduct. I think, however, Mr Wheaton was doing no more than attempting to show why he might have some prospect of success on review of these items and I certainly do not take anything Mr Wheaton said as any attack on the professional conduct of Mr Abel. The fact that there is a dispute about the quantum of fees that a practitioner charges raises, of itself, no suggestion of improper conduct. 9 In all the circumstances, having regard to the fact that Mr Wheaton is not legally represented, and was not at the time of the taxation, I think it is reasonable to give him an opportunity to raise his objections on a review. I do not think that there is any real prejudice caused to the respondents by such extension. It was said that the respondents' prospects of recovery were "slim" but there is no evidence before the Court to establish that and certainly no evidence to suggest that Mr Wheaton might dispose of such assets as he has in the meantime. So the only prejudice likely to be suffered by the second respondent would be such extra costs as may be incurred in attending before the review. Having regard to the amount of the taxed bill, which is quite substantial, I think it is fair to give Mr Wheaton that opportunity. 10 So I will order that: (1) the time for filing a notice of motion fixed by O 62 r 42(3) be extended until today; (2) the notice of motion filed by the applicant on 10 May 2002 be treated nunc pro tunc as a notice of motion for the purposes of O 62 r 42(2); (3) the reconsideration be conducted by the taxing officer on a date to be fixed; and (4) the costs of today's application be paid by the applicant.