WENTWORTH v WENTWORTH (EXECUTOR OF THE ESTATE OF THE LATE WENTWORTH) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MCLAUGHLIN M 2 November 1998 [1998] NSWCA 259 McLaughlin M On 30 October 1997 I published my reserved judgment in respect to a review conducted by me of the decision of Taxing Officer Davidson on a reconsideration of each of a number of specified items in the plaintiff's bill of costs. That review was initiated by notice of motion fled in the Court of Appeal on 11 December 1996 by the plaintiff Katherine Wentworth. By order of the Court of Appeal made on 3 February 1997, the review was remitted to the Equity Division. Amongst the various items in the plaintiff's bill of costs, the subject of the review, were certain counsel's fees. Essentially, I expressed agreement with the conclusion of the taxing officer in relation to items (F) and (G) concerning the approach of the Court to the amount to be allowed for counsel's fees and also concerning counsel's fees for preparation. Subsequently, the plaintiff appealed to the Court of Appeal from my decision. In a reserved judgment published on 3 September 1998, the Court of Appeal upheld the appeal in respect to those two areas relating to Counsel's fees and ordered that the matter be remitted to me for reconsideration in accordance with the reasons for judgment expressed by the Court of Appeal. Concerning the allowance of counsel's fees, the Court of Appeal said at p3 of its judgment:- 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 [that is, Miss Wentworth] was entitled to have the full amount charged allowed on a party and party taxation. The Court of Appeal said, concerning the scale published in Ritchie's Supreme Court Practice, 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. The Court of Appeal expressed the view that upon the reconsideration which it directed I should now conduct, I would legitimately permit further evidence, if that be desirable, to ensure a correct determination of the barristers' fees which are allowable to the appellant. The amounts of the barristers' fees which are the subject of the present reconsideration by me are not insignificant. The fees of Miss Carolyn Simpson of Queen's Counsel (as her Honour then was) total $46,700 and those of Mr Robert Malcolm Goot of Counsel total $20,250. There was taxed off Miss Simpson's fees an amount in round figures of $31,700 and there was taxed off Mr Goot's fees an amount in round figures of $12,390. 2 UNREPORTED JUDGMENTS At today's hearing Miss Wentworth appeared in person; there was no appearance for the defendant. I note that there was no appearance for the defendant at the hearing before the Court of Appeal on 12 August 1998, or at the hearing before me in August of 1997. In my judgment published on 30 October 1997, I referred (at p2 thereof) to communications passing between the defendant and the Court concerning the listing of the matter for hearing before me. Consonant with the view expressed by the Court of Appeal, I have received evidence at the present hearing. That evidence consists of affidavits from Carolyn Simpson sworn 30 October 1998, Robert Malcolm Goot sworn 2 November 1998 and Salvatore Russo sworn 30 October 1998. Mr Russo has at all relevant times been acting as solicitor for the plaintiff, and it was Mr Russo who retained Miss Simpson and Mr Goot to appear on the plaintiff's behalf in the appeal, the costs of which are the subject of the present reconsideration before me. It will be appreciated that upon the present reconsideration, I am concerned only with the amounts of the fees charged by Miss Simpson and Mr Goot. In my judgment of 30 October 1997, I expressed the view that each of the items charged by counsel was "necessary or proper" (see Pt52 123(2) of the Supreme Court Rules). That aspect of my decision was not in any way challenged in or qualified by the decision of the Court of Appeal. Iam satisfied from the affidavit evidence of the solicitor for the plaintiff, from the very experienced senior counsel who appeared for the plaintiff (and who is now a Judge of this Court) and from the experienced counsel who appeared as Junior counsel for the plaintiff, that the totality of the fees charged by Miss Simpson and Mr Goot were both necessary and proper for the preparation and the conduct of the appeal. Accordingly, I am satisfied that the plaintiff is entitled to a certificate which will reflect the totality of the fees of Miss Simpson and Mr Goot being accepted as both necessary and proper. It should here be recorded that since the Court of Appeal delivered its substantive decision on this point on 3 September 1998, it has delivered further reasons for judgment on 28 October 1998 concerning the calculation of the amount to be included in the interim certificate which the Court of Appeal in its 3 September judgment contemplated should issue. In consequence, therefore, Registrar Jupp on 28 October 1998 issued an interim certificate of taxation in respect to the costs of the plaintiff in an amount of $36,707.25. That amount includes the sum of $10,480.72 previously allowed in an interim certificate of taxation issued on 25 July 1994. The interim certificate contains the following provision:- The appellant is entitled to a further certificate in respect of counsel's fees in an amount to be determined by the Master. Neither the interim certificate issued by Registrar Jupp on 28 October 1998, nor the sum of $10,480.72 previously allowed in an interim certificate issued on 25 July 1994, includes any amount in respect to the fees of Miss Simpson and Mr Goot. Those fees in totality comprise an amount of $66,950, being $46,700 for Miss Simpson and $20,250 for Mr Goot. Since under the original order of the Court of Appeal, awarding costs of the appeal to the plaintiff, the plaintiff was entitled to one half of her costs of that appeal, it follows, therefore, that the further certificate in respect to the counsel's fees of Miss Simpson and Mr Goot will be in an amount of one half of $66,950, that is, in an amount of $33,475. I propose, therefore, to direct that a further certificate of taxation as contemplated in the interim certificate: of Registrar Jupp dated 28 October 1998, should now issue in respect to the costs of the plaintiff in the amount of $33,475. WFENTWORTH v WENTWORTH (EXECUTOR OF THE ESTATE OF THE LATS WENTWORTH) (McLaughlin M) (McLaughlin M) (Miss Wentworth requested that the Master avail himself of the Court's powers under Pt52A r6(2) of the Supreme Court Rules to award a gross sum for costs for her appearances up to and including today's heading) The plaintiff has requested that I should avail myself of the powers given to the Court under Pt52A r6(2), which subrule provides, relevantly:- Where the Court orders that costs be paid to any person, the Court may, at any time prior to the costs being referred by the registrar for assessment, further order that, as to the whole or any part (specified in the order) of the costs, instead of assessed costs, that person shall be entitled to - (c) a gross sum specified in the order instead of the assessed costs." I consider that the plaintiff is entitled to an order that she have the costs of the reconsideration by me pursuant to the direction in that regard of the Court of Appeal. Those costs would include the costs of today's hearing and the costs of the preparation of that hearing, including the costs of preparation of the affidavits of Miss Simpson, Mr Goot and Mr Russo, and doubtless the attendances by Mr Russo upon Justice Simpson and Mr Goot in order to obtain their affidavits, and also the costs of the appearance before me several weeks ago when today's hearing date was fixed. The amount which is sought as a gross amount in respect to the costs of that reconsideration is $3,000. I consider that that is a reasonable amount. I propose to make an order for the payment of such a gross amount, since it seems to me that it is implicit in the reasons for judgment of the Court of Appeal that the entirety of the costs aspects of this appeal should be brought to a conclusion as soon as possible. The plaintiff has also sought a similar order for a gross sum in respect to the hearing before me on | August 1997. In my reasons for judgment in respect of that hearing, which were published on 30 October 1997, I ordered that the defendant pay the costs of the hearing on 1 August 1997. The plaintiff has sought in respect of that hearing that I order that she receive a gross amount of $3,000. Ihave been informed by the plaintiff that no action has yet been taken to enforce the costs order of 30 October 1997. Therefore, since the costs have not yet been referred by the Registrar for assessment, I am not precluded from making an order of the nature now sought by the plaintiff. For the hearing on | August 1997, a hearing which resulted in my delivering reasons for judgment covering some 87 pages, I consider that the amount of $3,000, which is now sought by the plaintiff as the gross amount of her costs of that hearing, is a proper and reasonable amount and I propose to make an order for the payment of such gross amount. By making such an order in respect to the costs the subject of my order of 30 October 1997 (as well as such an order in respect to the costs of the present reconsideration), I consider that I am acting in accordance with the views expressed by the Court of Appeal in its reasons for judgment of 3 September 1998, it being implicit in those reasons that there should be no further delay in bringing to a conclusion the costs aspects arising out of the original appeal in this matter. If it were necessary for either the costs ordered by me on 30 October 1997, or the costs which I propose to order this day, to proceed to an assessment., there would be further delays in bringing to a final conclusion this aspect of the litigation. I make the following orders:- (1) Idirect that a further certificate of taxation issue in favour of the plaintiff in respect of counsel's fees in the sum of $33,475 and that a final certificate of taxation issue in favour of the plaintiff in the sum of JOBNAME: No Job Name PAGE: 4 SESS: 1 OUTPUT: Mon Nov 5 10:33:26 2007 /reports/caseml]/case/urj/9805960 UNREPORTED JUDGMENTS (2) (3) $70,182.25 (which amount includes the amount of the interim certificate of taxation dated 28 October 1998 ($36,707.25) and the foregoing amount of $33,475. I order that the defendant pay the costs of the plaintiff of the reconsideration conducted by me pursuant to the order of the Court of Appeal made on 3 September 1998 and that those costs be in a gross sum of $3,000. I order that the costs ordered by me on 30 October 1997 to be paid by the defendant to the plaintiff be in a gross sum of $3,000.