WENTWORTH v WENTWORTH (Executor of the Estate of the law G N Wentworth) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL FITZGERALD AJA, PRIESTLEY and STEIN JJA 12 August 1998, 3 September 1998 [1998] NSWCA 257 TAXATION of costs — quantum of counsel's fees — relevant test to be applied is "necessary or proper" test — scale in Ritchie's Supreme Court Practice has no legitimacy or materiality for the determination of counsel's fees allowable on a party and party taxation. Priestley JA I agree with Fitzgerald AJA. Stein JA I agree with Fitzgerald AJA. Fitzgerald AJA This is an appeal by leave from part of a decision of Master McLaughlin on 30 October 1997, which confirmed an earlier decision of Taxing Officer Davidson on 29 November 1996. The respondent did not oppose the appeal, but the Attorney-General appeared by counsel to assist the Court. The appellant had successfully claimed provision from the estate of her late father under s7 of the Family Provision Act 1982. In the Equity Division, the executor of the deceased's estate was ordered to pay the appellant's costs. That order was confirmed in this Court, which also ordered the executor to pay half of the appellant's costs of appeals brought by the appellant and the executor. Under Pt52, r23(2) of the Supreme Court Rules, she is entitled on a party and party taxation to "all such costs as were necessary or proper for the attainment of justice or for enforcing or defending [her] rights...". The present appeal relates only to fees paid by the appellant to her barristers on brief, for refreshers and as additional fees for preparation. Each of the items charged by Counsel was held to be "necessary or proper". The amounts allowed on brief and for refreshers were based on the scale with respect to barristers' fees set out in Ritchie's Supreme Court Practice, to which 25% was added. For the additional preparation, an amount equivalent to a full brief fee (according to the scale) plus 25% was allowed for the appellant's Senior Counsel for each of two days, and an amount equivalent to a full brief fee (according to the scale) plus 25% was allowed for her Junior Counsel for one day. It was accepted that Senior Counsel has been paid for seven days' additional preparation and Junior Counsel had been paid for three days' additional preparation, that that work had been done, and, although this is not entirely clear, that the additional preparation was "necessary or proper" having regard to the "complexity and voluminous documentation" involved. Implicitly at least, the starting position adopted by the Taxing Officer and endorsed by the Master was that the barristers' fees incurred and paid could not be allowed in full because of the distinction between party and party costs and solicitor and client costs. That premise is fallacious. If counsel charged no more than was "necessary or proper', the appellant was entitled to have the full amount charged allowed on a party and party taxation. 2 UNREPORTED JUDGMENTS The error referred to in the preceding paragraph was compounded by resort to the scale in Ritchie's Practice. It is unnecessary to trace the history of the scale, which lacks any statutory or other formal foundation. Whatever might have been the position in the past, the scale now has no legitimacy or materiality for the determination of the fees which are allowable on a party and party taxation. Nor should some other test, such as "market rates" at the material time, be substituted for the test prescribed by the Rules, ie, "necessary or proper". Other considerations aside, the concept of "market rates" is too vague and imprecise having regard to the different fees charged by different barristers according to reputation and a variety of other factors. It is for the party awarded the costs to satisfy the person conducting the taxation what work was "necessary or proper", what level of skill and experience was "necessary or proper" for counsel to carry out that work competently, and what fees would properly be charged for counsel of that skill and experience for that work. If suitably qualified and experienced, the person conducting the taxation might have material knowledge, but, subject to that, what is "necessary or proper" is a matter for evidence. As is obvious from what has been stated, the appeal must be allowed. The matter should be remitted for reconsideration in accordance with the judgment of this Court. In all the circumstances, including the delays which have occurred, that reconsideration should be undertaken by the Master from whom this application was brought, who should do so as soon as possible. The Master would, in my opinion, legitimately permit further evidence if that is desirable to ensure a correct determination of the barristers' fees which are allowable to the appellant. The conclusion which has been reached requires that the certificate of taxation which the appellant presently holds, which includes amounts based upon the error on the Taxing Officer and the Master, be set aside. The amount of that certificate was $47,864.12, and the total of the two erroneous items was $22,313.74. The appellant should have an interim certificate for the difference, namely, $25,550.38. The further amount to which she is entitled will be determined by the Master. The respondent must pay the appellant's taxed costs of this appeal, but should, if qualified, have a certificate under the Suitors Fund Act. Certificate of taxation held by appellant be set aside. Respondent to pay the appellant's taxed costs of this appeal. The appellant appeared in person with Mr S Russo Solicitors for the appellant: Russo, & Partners Solicitors for the respondent: P F N Wentworth Counsel for the Attorney General (amicus curiae): C Birch