Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2024] QSC 28 (2024) 19 QR 332

SUPREME COURT OF QUEENSLAND CITATION: Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2024] QSC 28 PARTIES: CIVIL MINING & CONSTRUCTION PTY LTD (plaintiff) v WIGGINS ISLAND COAL EXPORT TERMINAL PTY LTD (defendant) FILE NO: BS No 6050 of 2013 DIVISION: Trial Division PROCEEDING: Review of cost assessment ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 8 March 2024 DELIVERED AT: Brisbane HEARING DATE: 7, 8, 9 and 31 August 2023 JUDGE: Muir J ORDER: The Order of the Court is that by 4.00pm, Friday 22 March 2024, the parties are to: (a) email to my associate, draft Final Orders consistent with my findings (and costs, if those orders can be agreed); and (b) if necessary, file and serve written submissions as to costs, no longer than two pages, and deliver a copy of the submissions by email to my associate. CATCHWORDS: COSTS – COSTS ASSESSMENT – APPLICATION FOR REVIEW – COSTS ON THE STANDARD BASIS – CLAIM – COUNTERCLAIM - where the parties alleged errors in the costs assessor’s approach to whether the costs claimed were standard costs necessary or proper for the attainment of justice - whether the costs statement complies with the requirements of r705 UCPR - whether the notice of objection complies with r706 UCPR - whether the costs assessor provided adequate reasons. PLAINTIFF APPLICATION FOR REVIEW – COSTS ASSESSOR – WRONGFUL DISALLOWANCE – PREPARATION COSTS – COUNSEL FEES – ADEQUACY OF COSTS ASSESSOR’S REASONS – APPOINTMENT OF COSTS – CARE AND CONDUCT COSTS - whether the costs assessor wrongly disallowed costs incurred prior to the -- 1 of 93 -- 2 commencement of the proceeding - whether the costs assessor provided inadequate reasons - whether certain costs were necessary or proper for the attainment of justice. whether the costs assessor wrongly disallowed costs relating to expert evidence obtained in the proceeding – whether the costs relating to expert evidence were necessary or proper - whether the costs assessor wrongly disallowed costs paid for various counsel briefed in the proceeding – whether work undertaken prior to the trial as “preparation” could be capped – whether the allowance for “preparation time” should be reduced – whether the costs assessor erred in including certain items in the allowance for preparation fees. whether the costs assessor erred in reducing counsels fees – whether the costs assessors decision to limit counsels fees should be set aside – whether the costs assessor wrongly disallowed counsels costs associated with a mediation of the proceeding – whether the costs assessor made an error of law by disallowing certain fees incurred to brief new counsel – whether there was a duplication of costs – whether the costs assessor erred in making percentage reductions in counsel fees. whether the costs assessor was manifestly wrong in exercising his discretion to disallow the claim/counterclaim costs - Whether the costs assessor erred in apportioning the claim/counterclaim costs in the manner that he did - whether the costs assessor failed to give adequate reasons for his decision to exercise his discretion to disallow the claim/counterclaim costs. whether the costs assessor erred in disallowing care and conduct costs – whether the costs assessor was manifestly wrong in exercising his discretion to disallow these “Care & Conduct Costs” – whether the costs assessor failed to give adequate reasons for his decision to exercise his discretion in the way he did – whether the costs assessor erred in law by failing to provide adequate reasons – whether the costs assessor wrongly sustained an objection which led to the wrongful disallowance of the uplift under r 691(5) UCPR DEFENDANT APPLICATION FOR REVIEW – COSTS ASSESSOR – ADEQUACY OF PARTICULARS – OBJECTIONS – LIBAILITY FOR COSTS - whether the costs assessor erred in allowing certain cost items for “examining various documents” – whether there were adequate particulars to support a reasonable assessment that the work claimed by certain items were necessary or proper. whether the costs assessor erred in rejecting certain objections – whether those errors would warrant the court making orders under r 742 UCPR to refer the costs items back to the costs assessor for reconsideration. -- 2 of 93 -- 3 whether the costs assessor erred in his decision relating to the liability for costs of the assessment and the cost of his fees – whether the costs assessor took into account an incorrect and irrelevant consideration. Building and Construction Industry Payments Act 2004 (Qld) Civil Proceedings Act 2011 (Qld) s 78, s 79 Uniform Civil Procedure Rules 1999 (Qld) r 416, r 472, r 679, r 691, r 702, r 705, r 706, r 742 Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 63.34.3 Alucraft Pty Ltd (in liq) v Grocon Limited [2001] VSC 477 Assets Development Co Ltd v Close Brothers and Co. [1900] 2 Ch 717 Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 Australia & New Zealand Banking Group Ltd v Alirezai (No 2) [2002] QSC 205 Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 Barristers’ Board v Palm Management Pty Ltd [1984] WAR 101 Bartlett v Higgins (1901) 2 KB 230 Civil Mining and Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 Clark v Malpas (1863) 31 Beav 1253 Clark, Tait & Co v Federal Commissioner of Taxation (Cth) (1931) 47 CLR 142 Club Marconi of Bossley Park v AVR Services NSW Pty Ltd [2002] NSWSC 584 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Commission v Nation (1995) 57 FCR 25 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 Ernest v Partridge (1863) 2 New Rep 232 Gladstone Area Water Board v AJ Lucas Operations [2015] QSC 52 Green v Hoyle [1976] 2 All ER 633 Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd (2007) QDC 057 Higgins v Nicol (No 2) (1972) 21 FLR 34 House v The King [1936] 55 CLR 499 Hunter v Hunter [2015] QSC 181 Innes v The Electoral Commission of Queensland & Ors [2022] QSC 122 -- 3 of 93 -- 4 Innes v Electoral Commission of Queensland & Anor [2023] QCA 88 Jenkins v GJ Coles & Co Ltd [1993] 1 VR 155 King v Allianz Australia Insurance Limited [2015] QCA 101 Laming v Jennings [2018] VSCA 335 Levetus v Newton (1883) 28 Sol. J. 166 McCoombes v Curragh Qld Mining Limited [2001] QDC 142 Menegazzo v PricewaterhouseCoopers [2017] QSC 172 Midway Oil and Storage v Continental Contractors (1929) AC 88 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 Nashvying Pty Ltd v Giacomi [2009] QSC 31 Pathway Investments Pty Ltd v National Australia Bank Limited [2012] VSC 97 Picamore Pty Ltd v Challen [2015] QDC 67 Pinehurst Nominees Pty Ltd v Coeur De Lion Investments Pty Ltd [2015] QSC 122 Re Feez Ruthning’s Bill of Costs [1989] 1 Qd R 55 Remely v O’Shea & Ors (No 2) [2008] QSC 218 Rivington v Garden [1901] 1 Ch. 561 Russells (a firm) v McCosker [2018] QDC 080 Schmid v Skimming [2020] VSC 493 Smith v Madden (1946) 73 CLR 129 Swan v Bank of New Zealand (1890) 24 SALR 20 The City of Warrnambool v Tabone, unreported, 25 August 1992 BC9203233 Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QCA 2 Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) [2001] VSC 477 W & A Gilbey Ltd v Continental Liqueurs Pty Ltd (1964) NSWR 527 Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250 Wiesac Pty Ltd v Insurance Australia Ltd (No 3) (2021) 7 QR 642 Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd [2001] QCA 8 Williams v AusNet Electricity Services Pty Ltd (No 3) [2017] VSC 528 COUNSEL: B O’Donnell KC with B Wacker for the plaintiff P L O’Shea KC with S Eggins for the defendant SOLICITORS: Thomson Geer for the plaintiff Corrs Chambers Westgarth for the defendant -- 4 of 93 -- 5 Part one: Overview The applications [1] This is the determination of cross applications by the plaintiff (“CMC”) and the defendant (“WICET”) under r 742 of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”) to review a costs assessor’s assessment of CMC’s costs of its claim awarded in the substantive proceeding. [2] That proceeding concerned a construction dispute over works undertaken by CMC (as the contractor) for WICET (as the principal) at the Wiggins Island Coal Export Terminal near Gladstone between September 2011 and March 2013. CMC’s claim totalled around $14.5 million for variations and delays, and WICET’s counterclaim was for overpayments, repayments and damages totalling around $12.5 million. After a seven week trial before Flanagan J (as his Honour then was) in 2016, a judgment on liability and certain aspects of quantum was delivered on 19 May 2017.1 A final judgment on quantum was delivered on 26 March 2018.2 CMC was awarded $3,562,586.38 plus interest on its claim (plus GST of $356,258.65) with a further order for return of its bank guarantee, and WICET was awarded the sum of $2,936,844.61 plus interest on its counterclaim.3 After various appeals, WICET was ordered to pay CMC’s costs of the claim, and CMC was ordered to pay WICET’s costs of the counterclaim.4 [3] On 15 October 2021, CMC served WICET with a costs statement claiming some 19,000 separate items totalling nearly $11 million [$10,729,265.16] as its costs on the standard basis. On 19 March 2022, WICET filed a Notice of Objection in two parts: the first is 82 pages and contained 14 broad General Objections; the second contained Excel spreadsheets with specific objections to a significant proportion of the 19,000 items claimed. On 10 May 2022, CMC provided a detailed (214 page) response to the Notice of Objection. On 16 January 2023, CMC served a supplementary costs statement seeking $339,838.81 as its costs associated with the costs assessment process. [4] Like the substantive proceeding, the costs assessment process was expensive, hard- fought, and protracted; taking around one and a-half years to be finalised. On any view, Mr Philip Roberts (the costs assessor appointed by the parties on 16 June 2022 to assess CMC’s costs) was faced with a mammoth task. Unsurprisingly, his fees alone were over $325,000. When delivering his reasons Mr Roberts described the 1 Civil Mining and Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2017] QSC 85 at [1]-[16] per Flanagan J. 2 Civil Mining and Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2018] QSC 60. 3 Separate orders were made with the difference between the amounts of the two judgments, once interest and GST were added, was $1,796,368.55 (in CMC’s favour). 4 Order dated 31 January 2022; Civil Mining and Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd [2020] QSC 1 (“the Costs Judgment”). WICET’s costs of its counterclaim are yet to be assessed (although a costs statement and notice of objection have been prepared). WICET appealed the costs order. Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd [2021] QCA 8; (2021) 7 QR 1 (“Costs Appeal Judgment”). -- 5 of 93 -- 6 process as an “extremely challenging assessment” with the costs statement and objections reflecting “the intense combat that had preceded their delivery to me.”5 [5] On 10 March 2023, Mr Roberts issued his final costs certificate in the amount of $6,605,189.25 (which included $64,163.73 as the costs of the assessment process).6 On 22 December 2022 and 11 April 2023, he provided written reasons for his assessment following requests by WICET to do so. These reasons – which are analysed in more detail during the course of these reasons – are in different forms but included spreadsheets with item-by-item reasoning (with varying levels of detail). [6] By their current applications, the fierce and unyielding battle between the parties continues. Although their respective legal teams thankfully endeavoured to make the review manageable by providing detailed written submissions, working bundles and schedules, and by categorising the issues for determination.7 Grounds of review [7] CMC confined its grounds of review to alleged errors by the costs assessor in his assessment of standard costs under the following five headings: (a) Ground one: Pre-commencement costs; (b) Ground two: Mitchell Brandtman costs; (c) Ground three: Counsel’s costs; (d) Ground four: Claim/counterclaim costs; and (e) Ground five: Care and conduct costs. [8] WICET articulated three alleged errors by the costs assessor on the following grounds: (a) Ground one: The assessor erred in allowing certain cost items for “examining various documents” despite there being inadequate particulars to support any reasonable assessment that the work claimed by those items was necessary or proper; (b) Ground two: The assessor erred in rejecting WICET’s objections in “General Objection 1B” in the Notice of Objection. The costs assessor erred in wrongly rejecting WICET’s dual form of objections; and 5 Letter dated 22 December 2022 from Mr Roberts to the parties; Exhibit SGS-115 to Speechly Affidavit; letter is also marked for identification “K”. 6 Earlier certificates of 9 November 2022 and 9 December 2022 (amending the 9 November certificate) were later agreed by the parties to be void on the basis that they were premature and were replaced by the certificate of 10 March 2023. But before this (on 1 December 2022), WICET requested the costs assessor provide reasons for assessment relevantly about CMC’s various claims for “examining”. That issue is discussed under that heading later in these reasons. The final sum of $6,605,189.25 in the costs certificate of 10 March 2023 is comprised of $1,655,946 for disbursements (including CMC’s share of the costs assessors assessment of the bill of $327,764.80, which was paid in equal proportions by the parties with CMC’s portion then included as part of the disbursement payable by WICET); and $4,717,621 for professional fees; [total of $6,541.025.52] plus the sum of $64,163.73 in respect of the plaintiff’s supplementary costs statement of 16 January 2023 ($37,167.13 for professional fees and $26,996.60 for disbursements). 7 For example, the costs assessor schedules were helpfully enlarged, colour-coded and bound into six large A3 folders totalling 800 pages for the purpose of this review. Marked for identification “S”. -- 6 of 93 -- 7 (c) Ground three: The assessor erred in determining that WICET must pay all the assessor’s fees in respect of the assessment and all of CMC’s costs of the assessment. [9] In order to analyse these grounds, it is necessary to have some understanding of the nature, scope and conduct of the substantive proceedings. The substantive proceedings [10] CMC was engaged by WICET under a written contract dated September 2011 to perform a package of bulk earthworks and civil works for a coal export terminal near the Port of Gladstone.8 The delivery of those works was delayed by 208 days. [11] Disputes arose, and on 4 January 2013 an adjudication pursuant to the Building and Construction Industry Payments Act 2004 (Qld) (“BCIPA”) was commenced by CMC. The adjudication included claims under the Contract described as: (a) The Earthworks Claim (also referred to as Variation 141); (b) The Piling Claim (also referred to as Variation 142); (c) The Pyealy Creek Bebo Arch Claim (also referred to as Variation 103); (d) The Delay Claim (also referred to as Variation 17); (e) The Haul Roads Claim (also referred to as Variation 30 or the GPN Borrow Pit Claim); (f) The Environmental Management Claim (also referred to as Variation 90); and (g) The Geolon 600 Claim (also referred to as Variation 63). [12] On 16 February 2013, CMC was awarded $9,308,081.53 in the adjudication decision. But it did not recover any amounts for the Earthworks Claim, Piling Claim, GPN Borrow Pit Claim; and only partially recovered amounts claimed for the Pyealy Creek Bebo Arch Claim, Delay Claim, Geolon 600 Claim, and Environmental Management Claim. [13] On 26 April 2013, CMC brought a second adjudication application under the BCIPA and on 5 June 2013, CMC was awarded another $2,845,972.39, which included further amounts of $458,030.00 for the Delay Claim and $447,939.65 for the Pyealy Creek Bebo Arch Claim. [14] On 3 July 2013, CMC commenced proceedings which included the following claims: (a) The Earthworks Claim, (b) The Piling Claim; (c) Additional amounts for the Pyealy Creek Bebo Arch Claim and Delay Claim; and 8 The works under the Contract involved the preparation of a rail receival facility, an overland conveyer to deliver the coal to a stockyard area, materials handling and sampling systems, a single berth with ship loader, associated channels, wharves, serves, and administrative facilities. -- 7 of 93 -- 8 (d) Amounts for the GPN Borrow Pit Claim, Geolon 600 Claim and Increased Environmental Management Claim. [15] On 31 July 2013, WICET filed a defence and counterclaim. It defended CMC’s claims and sought the payment of moneys from CMC by way of alleged overpayments and an entitlement to liquidated damages. These correlated counterclaims did not raise any claims that had a separate factual basis to the claims brought by CMC. But on 27 February 2015, WICET amended its defence and counterclaim and introduced additional new counterclaims unrelated to the matters the subject of CMC’s claim. [16] The trial took place before Flanagan J (who also case managed the proceeding leading up to the trial) in late 2016 and involved: (a) 36 hearing days; (b) nine primary lay witnesses giving extensive evidence as to disputed facts; (c) eight expert witnesses giving opinion evidence as to delay, disruption, quantum and surveying results; and (d) extensive and detailed written submissions and a 304 page judgment. [17] The litigation had all the hallmarks of a “classic building and construction dispute.”9 It was variously described by Flanagan J as “complex”, “lengthy and hard fought.”10 In terms of liability: CMC enjoyed success on all of its claims; and WICET on its Final Certificate and Variation 17 claim, but not on its claims for liquidated damages, adjudication fees and interest under the BCIPA, the OLC Claim, and the Environmental Management Claim.11 In the end, when considered in the context of a percentage of their total claims, Flanagan J captured the end result as both parties achieving “not dissimilar results” in being awarded a “substantial monetary judgment.”12 [18] Against this general background it is necessary to understand the legal principles relevant to applications for review under UCPR r 742. Applications for Review [19] The starting point is UCPR r 742, which empowers the court to review a cost assessment decision and relevantly states as follows: “742 Review by court (1) A party dissatisfied with a decision included in a costs assessor’s certificate of assessment may apply to the court to review the decision. … (3) The application must— 9 As that expression was used by Palmer J in Club Marconi of Bossley Park v AVR Services NSW Pty Ltd [2002] NSWSC 584 at [16]. 10 Costs Judgment at [67], [73] and [81]. 11 Costs Judgment at [66]. 12 Costs Judgment at [67]. -- 8 of 93 -- 9 (a) state specific and concise grounds for objecting to the certificate; and (b) have attached to it a copy of any written reasons for the decision given by the costs assessor; and … (5) On a review, unless the court directs otherwise— (a) the court may not receive further evidence; and (b) a party may not raise any ground of objection not stated in the application for assessment or a notice of objection or raised before the costs assessor. (6) Subject to subrule (5), on the review, the court may do any of the following— (a) exercise all the powers of the costs assessor in relation to the assessment; (b) set aside or vary the decision of the costs assessor; (c) set aside or vary an order made under rule 740(1); (d) refer any item to the costs assessor for reconsideration, with or without directions; (e) make any other order or give any other direction the court considers appropriate. … [Underlining added] [20] The following eight guidelines for conducting a review under UCPR r 742 (some of which overlap), emerge from the authorities: (a) First: The onus lies on those who seek to impeach the costs assessor’s decision to satisfy the court of the error;13 (b) Secondly: An application to review involves the exercise of discretion so it is analogous to an appeal.14 It follows that the well-known principles pertaining to an appeal against the exercise of a discretion, as set out in the House v The King [1936] 55 CLR 499 at 505, are applicable: the court may interfere with a costs assessor’s exercise of discretion where it is demonstrated that the costs assessor has either acted upon a wrong principle, failed to exercise a discretion, or exercised a discretion in a way that was manifestly wrong;15 (c) Thirdly: A decision of a costs assessor will be manifestly wrong if it was not open on the facts or not within the costs assessor’s lawful discretion;16 13 Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627- 628 per Kitto J. 14 See Nashvying Pty Ltd v Giacomi [2009] QSC 31 at [4]. 15 See the discussion by Flanagan J in Wiesac Pty Ltd v Insurance Australia Ltd (No 3) (2021) 7 QR 642 at [12]-[14]. 16 Ibid at [48]. -- 9 of 93 -- 10 (d) Fourthly: There is a strong presumption in favour of the correctness of a costs assessor’s decision such that it should be affirmed unless the judge on review is satisfied that it is clearly wrong;17 (e) Fifthly: Ordinarily, the discretion of the costs assessor will not be interfered with on review unless the costs assessor has erred on a question of principle;18 (f) Sixthly: Where the decision involves quantum only, it is, generally speaking, final, and it must be a very exceptional case in which the court will even listen to an application to review such a decision;19 (g) Seventhly: In practice, it is necessary to show there has been some specific error or that the outcome is so obviously inappropriate there is an undisclosed error in the exercise of the assessor’s judgment; it is not sufficient for the reviewing court to take the view that if it had been performing the assessment, a different amount would have been assessed;20 and (h) Finally: If there is an error, it is appropriate (if in a position to do so) for the court of review to exercise the relevant judgment itself.21 [21] Some of the grounds of review are underpinned by alleged errors in the costs assessor’s approach to whether the costs claimed were standard costs necessary or proper for the attainment of justice. Costs on the standard basis [22] Under the heading, “Disposition of the costs of the proceedings” the orders made by Flanagan J (which were upheld on appeal) were as follows:22 “1. WICET pay CMC’s costs of the claim. 2. CMC pay WICET’s costs of the counterclaim.” [23] It follows from UCPR r 702(1), that the costs assessor was required to assess CMC’s costs (of the claim) on the “standard basis”; a well-established expression formerly used to describe “party and party” costs.23 [24] The assessment process was approached by both sides (in the review applications) and before the costs assessor, on the basis that the effect of the orders was that the reference to “costs of the claim” was to CMC’s standard “costs of the proceeding”. I have therefore proceeded on that basis too. [25] Rule 679 of the UCPR relevantly defines “costs of the proceeding” as follows: 17 Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627- 628. 18 King v Allianz Australia Insurance Limited [2015] QCA 101 at [18] (Mullins J, (as her Honour then was) with whom Philippides JA and Burns J agreed). 19 Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627- 628. 20 Picamore Pty Ltd v Challen [2015] QDC 67 at [7]-[8] per McGill KC DCJ. 21 Ibid at [7]-[8] per McGill KC DCJ. 22 Costs Judgment at [82]. 23 Hennessey Glass & Aluminium v Watpac Australia [2007] QDC 57 at [23] per McGill KC DCJ. -- 10 of 93 -- 11 “costs of the proceeding mean costs of all the issues in the proceeding and includes— (a) costs ordered to be costs of the proceeding; and (b) costs of complying with the necessary steps before starting the proceeding; and (c) costs incurred before or after the start of the proceeding for successful or unsuccessful negotiations for settlement of the dispute.” [26] Rule 702 of the UCPR provides: “702 Standard basis of assessment (1) Unless these rules or an order of the court provides otherwise, a costs assessor must assess costs on the standard basis. Note— Costs on the standard basis were previously party and party costs— see rule 743S (Old basis for taxing costs equates to new basis for assessing costs). (2) When assessing costs on the standard basis, a costs assessor must allow all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.” [Underlining added] [27] This begs the question (and it is plainly the question that the costs assessor was required to answer as part of his assessment on the items claimed): were the costs necessary or proper for the attainment of justice? Necessary or proper costs have been described as costs incurred to enable a party to conduct the litigation or establish its case.24 They are not confined to the “bare minimum necessary to enable a party to conduct litigation – and no more.”25 [28] Rather, on any ordinary reading of the rule, the addition of the words “or proper” broadens the scope of the test and envisages a wider ambit of charge.26 These words have discrete and distinct meanings and are “not interchangeable.”27 The authorities establish that a rigid or narrow approach should not be taken to an assessment of the costs necessary or proper for the attainment of justice.28 [29] Costs have been described as “necessary” if the litigation could not have been carried on reasonably without them, and “proper” if it was reasonable for a client with a competent solicitor to have incurred those costs in carrying on the litigation;29 or similarly, whether the costs were reasonably necessary or proper “for the adequate 24 Smith v Buller (1875) LR 19 Eq 473. 25 Smith v Buller (1875) LR 19 Eq 473 at 475 referred to at [23] in Hennessey Glass. 26 W & A Gilbey Ltd v Continental Liqueurs Pty Ltd [1964] NSWLR 527 at 534; Hennessy Glass at [24] with reference to Francis v Francis and Dickerson [1956] P 87 at 95. 27 Wiesac at [6]. 28 See also Hennessey Glass at [26]; Francis v Francis and Dickerson [1956] P 87 at 95. 29 Hennessey Glass at [24]. -- 11 of 93 -- 12 conduct of the case, incurred to maximise the prospect of success.”30 There must be some real relationship between the work that was carried out and the subject matter of the litigation (once that is commenced).31 The question is not (as Applegarth J relevantly observed) “whether a party seeking its own maximum advantage would engage a counsel of a particular level of experience or skill” for a particular number of days, nor is it “whether one member of the bar will present the case better than another.”32 [30] The nature and circumstances of a particular case is an important determinant.33 With care required not to be affected by hindsight.34 As Flanagan J relevantly observed in Wiesac:35 “[6] [A] distinction is drawn between the words ‘necessary” and “proper”…The test is to be applied by reference to the circumstances that existed when the costs were incurred, and the defendant should not be penalised for incurring costs that were reasonably and proper at the time but which, with the benefit of hindsight, may not have been strictly necessary given the eventual course of the proceeding.” (Footnotes omitted) [31] The following (frequently cited and well approved) observations of Asprey J in W & A Gilbey Ltd v Continental Liqueurs Proprietary Ltd [1964] NSWR 527 remain a salient reminder and summary of the overall and correct approach to be taken on this issue:36 “A taxing officer in a party and party taxation should allow a successful litigant, in whose favour an order for costs has been made, a just and reasonable amount in respect of each item claimed in such litigant’s bill of costs where such item was, in fact, incurred on behalf of the litigant by his solicitor in respect of some step or matter in the litigation which either (i) was necessarily taken or performed for the attainment of justice or the maintaining or defending of the litigant’s rights in the circumstances of the particular case, or, (ii) although not necessarily taken or performed for such purposes, would reasonably have been taken or performed for any of those purposes by a solicitor acting at the time when it was taken or performed without extravagance in conformity with the then situation of the case and not in conflict with the statutes and rules, the practice of the court, and the usages of the legal profession appertaining to such a case. In determining whether an item of costs is “necessary” or “proper”, the taxing officer would have regard to the facts in issue between the parties’ litigation as disclosed by the pleadings and to all facts which render probable the existence 30 Hennessey Glass at [27] with reference to Stanley v Phillips (1966) 115 CLR 470 at 486 per Taylor and Owen JJ. 31 See Pathways Investments Pty Ltd v National Australia Bank Limited [2012] VSC 97 at [3]. 32 Lee v Abedian [2017] QSC 022 at [73]. 33 Hennessey Glass at [26] with reference to the observations of Barwick CJ at p 478 in Stanley. 34 W & A Gilbey Ltd at 534-535 per Asprey J with reference to the observations of Sachs J in Francis v Francis and Dickerson (1956) P 87 at 96. 35 Wiesac at [6]. 36 W & A Gilbey at 534-5; cited with approval in King v Allianz Australia Insurance (2015) 71 MVR 182 at [19]; W & A Gilbey (page 534) cited with approval by Martin J (as his Honour then was) in Pinehurst Nominees v Coeur De Lion Investments [2015] QSC 122 at [61]. -- 12 of 93 -- 13 or non-existence of the facts in issue including those matters which would affect the weight or credibility of any such facts. But, in making his decisions upon these matters, the taxing officer should place himself [or herself] in the position of the solicitor sitting in his [or her] office chair engaged in the task of preparing the case for trial and, to use the words of Sachs J in Francis v Francis and Dickerson at 96: “…in particular, care must be taken not to be affected by what is colloquially termed ‘hindsight’.” The question of the necessity for or propriety of any item of costs should be judged by the state of things known or which ought reasonably to have been known to a diligent solicitor at the time when the expenditure was made, or the liability therefore was incurred.” [Underlining added] [32] The grounds of review canvass a myriad of issues including the validity of the initial costs statement, the form of the notice of objections and many aspects of the costs assessor’s processes and approach to the assessment. The Costs Statement and Notice of Objection [33] The parties’ applications and written submissions are underpinned by allegations of inadequacies in the initiating court documents filed as part of the costs assessment process. On the one hand, WICET submitted that the costs statement does not comply with the requirements of UCPR r 705 (2); and on the other hand, CMC submitted that WICET’s notice of objection does not comply with the requirements of the UCPR r 706. [34] The particular complaints about CMC’s costs statement and WICET’s notice of objection are dealt with where they arise during the course of these reasons. But it is necessary to have some factual understanding of these documents and of the legal requirements as provided for in the UCPR. Costs statement [35] Rule 705(2) of the UCPR relevantly sets out the requirements for a costs statement as follows: (2) The costs statement must— (a) contain sufficient details to enable the party liable to pay the costs to understand the basis for the costs, prepare an objection to the costs statement and obtain advice about an offer to settle the costs; and (b) if practicable, have attached to it copies of all invoices for the disbursements claimed in the costs statement. [Underlining added] -- 13 of 93 -- 14 [36] The practicalities and limitations of costs statements being fully particularised was recognised by Bradley J in Innes v Electoral Commission of Queensland [2022] QSC 122 as follows:37 “[60] I have examined each of the two costs statements. Each of them lists in chronological order the items of costs claimed, noting the date, assigning a sequential item number. Each has a description for each item and the sum claimed as the costs for it (which are divided between disbursements and professional fees). Each has a cumulative sub-total at the bottom of each page. At the end of each costs statement, there is a total of outlays and a (grand) total of outlays and professional fees. [61] Mr Innes is not a lawyer. He acted for himself in the CDR application. He prepared, filed and served various documents on ECQ and Mr Jamieson. He was served with documents that each of those other parties relied upon. He appeared at each hearing day. So, he has personal knowledge of the progress of the CDR application, the documents filed, served and read and the appearances. [62] Considering the knowledge of Mr Innes of the CDR application and the circumstances of it more generally, I am satisfied that each of the two costs statements is sufficient to enable a person in the position of Mr Innes to understand the basis for the costs stated in each item, to prepare an objection to it, and to obtain advice about any offer to settle the costs by either ECQ or Mr Jamieson, or by both of them.” (Footnotes omitted) [Underlining added] [37] The costs statement prepared by CMC is lengthy and claims over $10.7 million in costs on the standard basis. It is introduced by a 10-page submission which includes:  an overview of the dispute;  the claims;  a history of the litigation; and  details about the length, complexity and outcome of the trial, together with an outline of the main protagonists (that is the non-expert and expert witnesses, solicitors and senior and junior counsel involved in the litigation). [38] The costs statement itself is over 2,500 pages long and contains over 19,000 items setting out each of the costs (including disbursements claimed). These items are listed in chronological order with an assigned sequential number and the date noted. Each item has a brief description of the task said to have been undertaken (sometimes with the initials of the person carrying out the task) and the sum claimed as costs for that 37 Innes v The Electoral Commission of Queensland & Ors [2022] QSC 122 at [60]-[62]. This decision was upheld on appeal; see Innes v Electoral Commission of Queensland & Anor [2023] QCA 88 per Bond JA, Gotterson AJA and Wilson J. -- 14 of 93 -- 15 task. For items which included a claim under Item 9 of Schedule 1 of the Scale of Costs, the total amount of time claimed for that item is also included. [39] The solicitors for CMC billed a total amount of $11,809,135.09 to CMC through 125 invoices. However, the actual costs were higher as some extra disbursements for expert witness reports, dispute resolution services, witness fees and transcripts were paid by CMC directly.38 The total of these additional costs was not apparent. Regardless, and on any view, the total amount of costs of $10,729,265.15 that CMC sought from WICET was extraordinarily high – and it is understandable that it caused some scepticism on WICET’s part about whether that sum was recoverable as CMC’s necessary or proper costs on the standard basis. Notice of objection [40] The requirement for objections to any costs statement are set out in UCPR r 706 as follows: “706 Objection to costs statement (1) A party on whom a costs statement is served may, within 21 days after being served, object to any item in the statement by serving a notice of objection on the party serving the statement. (2) The notice of objection must— (a) number each objection; and (b) give the number of each item in the costs statement to which the party objects; and (c) for each objection—concisely state the reasons for the objection identifying any issue of law or fact the objector contends a costs assessor should consider in order to make a decision in favour of the objector. (3) The reasons for objection may be in abbreviated note form but must be understandable without further explanation. (4) If the same objection applies to consecutive or nearly consecutive items in a costs statement, the notice need not separately state the reasons for objecting to each of the items. (5) Also, if there are a number of associated items, the objection may be in the form of an objection to a common issue related to the associated items.” [Underlining added] [41] WICET’s notice of objection is also lengthy. It is underpinned by a covering submission of 82 pages, containing 13 “General Objections”. The General Objections contain various sub-general objections. For example, General Objection 1: “Manner of preparation of the costs statement” has two Sub-General Objections; 1A and 1B. 38 See letter of 19 August 2022 from CMC’s solicitors to the costs assessor. Exhibit SGS-40 to the affidavit of Speechly. This letter was also marked in a bundle for identification “Q”. -- 15 of 93 -- 16 General Objection 7: “Costs related to the Delay Claim” has three alternatives. Sub- general Objection 1B is 18 pages long. [42] The General Objections also attach “Specific Objections” comprising of Excel spreadsheets that detail the specific objections to individual items in the costs statement. Those Specific Objections then cross-refer to some, but not all, of the General Objections. [43] The notice of objection did not state how the General Objections were to be applied to each item in the costs statement. But on this review application, WICET submitted that the purpose of the General Objections was to raise a “common objection” in respect of a number of “associated items” as permitted by UCPR r 706(5) and that where the Specific Objections referred to the General Objections they were also to be taken as a Common Objection. [44] I accept that a reference to general objections in a schedule of specific objections is not unusual in the costs assessment process because it avoids repetition. There is also no reason why a notice of objection might not consist of multiple documents (as was the case here).39 But the usefulness of any particular method depends on the type and complexity of the litigation. In some cases, such a multifaceted approach may only serve to add another layer of complexity to the assessment itself – resulting in a far more cumbersome and expensive process then necessary. Which is what the costs assessor found in the present case. [45] It is instructive, too, that in the initial summary of its overall objections to the costs statement, WICET made a number of submissions questioning the integrity and veracity of the costs statement and the need for the costs assessor to undertake a detailed process of verification, including relevantly as follows: “1.6 Because of the misguided manner in which the Costs Statement has been prepared, WICET has significant reservations as to the veracity of the Costs Statement and the level of the costs claimed therein. Even if certain claim items are permissible under the Scale (which is denied), the rolled-up and general description of the items makes them difficult to interrogate. Because the Costs Statement seeks every advantage, WICET has doubts as to whether the costs described were incurred at all. 1.7 By its Costs Statement, CMC claims approximately $10.7M That is a staggering amount for a claim for costs on the standard basis—and even more extraordinary in circumstances where the net result to CMC based on the claim and counterclaim was an award of approximately $600,000. Based on its own costs incurred in the proceeding, WICET expects that CMC’s claim for $10.7M is, in fact, a majority of CMC’s actual costs. Again, CMC is not entitled to its costs on an indemnity basis. 1.8 The result is that neither WICET nor any Assessor can have any confidence in the Costs Statement prepared by CMC. 39 Russells (a firm) v McCosker [2018] QDC 080 at [36] to [38] per Farr SC DCJ. -- 16 of 93 -- 17 1.9 WICET of course recognises that it must pay to CMC the costs of the claim. However, WICET cannot be compelled to pay for items which are not properly claimable on the standard basis by the application of the Scale. The Costs Statement needs to stand on its own. To the extent it is defective, it should fail. For a substantial number of items, CMC has not properly made a claim and WICET has been unable to properly form objections. 1.10 For any items that the Assessor is minded to consider: (a) CMC should produce its invoices, accounts and file in full; and (b) The invoices and accounts should be the subject of a line- by-line comparison with the Costs Statement for the purposes of verifying the items; (c) Further, CMC should be asked to demonstrate that it has in fact incurred and/or paid the costs the subject of the claim.” [Underlining added] Verification process undertaken by the costs assessor [46] The latter submission to the costs assessor included a request that for any items the assessor was “minded to” consider, some form of verification by him was essential, (particularly for time-based entries). This request is consistent with the observations of McGill DCJ in Picamore Pty Ltd v Challen [2015] QDC 67 at 24 as follows: “[24] There was a general objection in relation to a large number of items in the invoices that the amount of times claimed to have been spent on a particular task was excessive and unreasonable, and many of the items were reduced on this basis, although a number of items were reduced on the related basis that the material on the file did not adequately demonstrate that the amount of time claimed had in fact been spent on that item. That is really a separate point. The onus is on the practitioner to show that there is an entitlement to charge the amount sought to be recovered for the legal services performed, and to justify by file notes or other appropriate means the amount of the charge by showing that it does reflect legal services actually provided. If the amounts claimed are not adequately documented, it follows that the claims must be disallowed, or allowed only to the extent that they are properly documented, unless it is apparent from other material or the logic of the situation that some amount of time must have been spent on the task in question.” [Underlining added] [47] WICET conceded to the costs assessor that “verification is a significant task for any assessor” but that it was prepared to assist in this task if the invoices and accounts are produced on an open basis to it. The problem with the latter offer is, of course, that there will often be an “information asymmetry” between the party entitled to costs -- 17 of 93 -- 18 and the party liable to pay costs due to a solicitor’s file ordinarily containing confidential and privileged material. Indeed, ss 78 and 79 of the Civil Proceedings Act 2011 (Qld) recognise that a costs assessor may need to review such material in assessing costs and the legislation preserves confidentiality and privilege accordingly. [48] Both applications for review proceeded on the following bases:40 (a) First: WICET requested that a detailed verification exercise was warranted by the costs assessor; (b) Secondly: CMC produced its invoices, accounts and solicitor’s files to the costs assessor for the purpose of such a verification being undertaken by the costs assessor; this included a ShareFile link of all tax invoices requested; (c) Thirdly: WICET requested that the costs assessor advise how he anticipated to conduct the verification exercise; (d) Fourthly: The costs assessor confirmed to both parties that he was verifying each item of expenditure claimed on the database he had assembled – on a line- by-line basis, but that he would be making his “own decision” on the “further process” required to achieve a just and equitable outcome for both parties; and (e) Fifthly: The parties were asked on notice whether the court might be assisted in communicating with the costs assessor in dealing with the applications for review.41 But no submissions were subsequently made or received by either party on this issue. [49] In the circumstances outlined above, I am satisfied that: (a) the exact process undertaken by the costs assessor to verify each item are unknown. But with the benefit of access to CMC’s file, he was in the “unique” and best position to decide the most appropriate process for examining CMC’s costs and to make appropriate allowances and reductions; (b) the costs assessor undertook the detailed verification exercise that WICET requested; and (c) that it is reasonable to infer, (as I do), that as part of that process, the costs assessor accessed, reviewed, and checked the relevant documentation contained in CMC’s solicitor’s files if, and when, he considered it necessary to do so. The assessment process [50] Rule 706 of the UCPR then relevantly provides as follows: “706 Objection to costs statement (1) A party on whom a costs statement is served may, within 21 days after being served, object to any item in the statement by serving a notice of objection on the party serving the statement. (2) The notice of objection must— 40 See bundle of correspondence marked for identification “Q”. 41 T3-84 ll 1-21. -- 18 of 93 -- 19 (a) number each objection; and (b) give the number of each item in the costs statement to which the party objects; and (c) for each objection—concisely state the reasons for the objection identifying any issue of law or fact the objector contends a costs assessor should consider in order to make a decision in favour of the objector. (3) The reasons for objection may be in abbreviated note form but must be understandable without further explanation. (4) If the same objection applies to consecutive or nearly consecutive items in a costs statement, the notice need not separately state the reasons for objecting to each of the items. (5) Also, if there are a number of associated items, the objection may be in the form of an objection to a common issue related to the associated items.” [51] The procedure on assessment is set out in UCPR r 720 relevantly as follows: “720 Procedure on assessment (1) A costs assessor appointed to carry out a costs assessment is to decide the procedure to be followed on the assessment. (2) However, the procedure must be - (a) appropriate to the scope and nature of the dispute and the amount dispute; and (b) consistent with the rules of natural justice; and (c) fair and efficient. … (4) Without limiting subrule (1) or (2), the costs assessor may decide to do all or any of the following- (a) hear the costs assessment in private; (b) carry out the costs assessment on the papers without an oral hearing; (c) not be bound by laws of evidence or procedure applying to a proceeding in the court; (d) be informed of the facts in any way the costs assessor considers appropriate; (e) not make a record of the evidence given.” [Underlining added] -- 19 of 93 -- 20 [52] The matters for consideration within the discretion of a costs assessor are set out in UCPR r 721 as follow: “721 Discretion of a costs assessor In assessing costs, a costs assessor must consider the following— (a) any other fees and allowances payable to the solicitor or counsel for other items in the same proceeding; (b) the nature and importance of the proceeding; (c) the amount involved; (d) the principle involved; (e) the interests of the parties; (f) the person who is to pay the costs, or the fund or estate out of which the costs are to be paid; (g) the general conduct and cost of the proceeding; (h) any other relevant circumstances.” [53] Rule 738 of the UCPR then expressly provides that a party may submit a written request for reasons to a costs assessor for any decision included in the costs assessor’s certificate. That occurred in this case. Rule 738(2) requires the costs assessor to give written reasons for the decision. [54] The adequacy of the costs assessor’s reasons permeates both applications. Adequacy of Reasons [55] The requirement for a decision maker to provide reasons is obviously important because it enables an unsuccessful party to decide whether to carry matters further. But the extent of the reasons necessary is a function of the nature of the work being undertaken. As Martin J (as his Honour then was) observed in Pinehurst Nominees Pty Ltd v Coeur de Lion Investments Pty Ltd [2015] QSC 122:42 “…The assessor is not in the same position as, say, a judge who is required to set out, in some detail, the reasoning behind the making of findings.” [56] Depending on the circumstances, a costs assessor may express reasons quite briefly. As Martin J also observed in Pinehurst Nominees, a number of matters suggest that an assessor will satisfy the requirements of r 738 of the UCPR by providing abbreviated reasons. These include: 42 Pinehurst Nominees Pty Ltd v Coeur de Lion Investments Pty Ltd [2015] QSC 122 at [31]. -- 20 of 93 -- 21 (a) First: The requirement in s 738(2)(a) that the reasons be provided within 21 days from when they are requested; and (b) Secondly: The style of the reasons will respond to the form of objection and the request for reasons. Objections may be expressed by experienced practitioners in abrupt terms. An assessor, who is an expert, can also provide a truncated response. In some cases, a few words is enough, although if a request is made further reasons may be necessary.43 [57] It has long been accepted that decisions as to costs (more generally) “do not require the same degree of elaboration as other decisions” and the extent of the reasons depend on “the nature of the issues for determination” and “the function to be served by the giving of reasons.44 These observations are consistent with Martin J’s observations in Pinehurst Nominees and are equally apposite to reasons in a costs assessment in my respectful view. [58] In the present case, I accept that the costs assessor’s reasons for either allowing or disallowing particular items were brief at times. The costs assessor’s reasons are discussed in more detail under that heading in Part three of the reasons. But in my view, the criticism of this brevity and of his reasons generally is not justified and overlooks the facts and circumstances of this case and, in particular, the following six matters: (a) First: The substantive proceedings were lengthy and raised many complex and varied issues; (b) Secondly: The costs assessor was required to determine whether thousands of items were necessary or proper standard costs in the context that CMC appeared to have claimed nearly all of their actual costs of the litigation; (c) Thirdly: The assessment process was not made easier by the approach to objections taken by WICET; (d) Fourthly: The evidence shows that the costs assessor was clearly frustrated by the constant demands of the parties during the process and their (at times) unsolicited submissions and views about the correct approach to the assessment; (e) Fifthly: The costs assessor had access to CMC’s solicitor’s file and a Sharefile link containing tax invoices for the amounts claimed for the purpose of verifying the claims and making the assessment; and (f) Finally: The uncontested evidence was that he was “verifying each item of expenditure on a database he had assembled on a “line by line basis” and that he would decide the best process to achieve a just and equitable outcome for both parties.” [59] In these circumstances, it is reasonable to infer, as I do, that the costs assessor established a process of verification that he considered was the most expedient and appropriate to the case and that he carefully considered each item claimed, taking into 43 Pinehurst Nominees from [32] to [35], with reference to Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729. 44 Costs Appeal Judgment at [81] with reference to Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219 at 237. -- 21 of 93 -- 22 account all relevant matters in the circumstances outlined, including the parties’ submissions.45 [60] In the circumstances of this case, I am therefore not satisfied that in general terms the costs assessor’s reasons are inadequate. I have otherwise addressed more specific issues raised about the costs assessor’s reasons where necessary and relevant throughout the course of these reasons. [61] Turning now to address each of the review applications. First CMC’s. Part two: CMC’s application for review Ground one: pre-commencement costs [62] CMC claims that the costs assessor wrongly disallowed costs incurred prior to the commencement of the proceedings totalling $256,771. It is instructive to observe at the outset that WICET objected to all of CMC’s pre-proceeding costs (prior to 27 May 2013), but the costs assessor in fact allowed a significant number of these items. [63] CMC’s complaint regarding pre-proceeding costs relates to 490 cost items, which it has split into the following two categories: (a) First: Costs paid to Critical Control Pty Ltd, and costs related to an adjudication that took place pursuant to the BCIP prior to the proceeding; and (b) Secondly: Other costs. [64] CMC raised the following three grounds of error in support of this ground:46 (a) First: The costs assessor was manifestly wrong in exercising his discretion to disallow the pre-proceeding costs; (b) Secondly: The costs assessor erred in finding that the pre-proceeding costs were not necessarily or properly incurred in connection with the claim; and (c) Thirdly: The costs assessor failed to give adequate reasons for his decision to exercise his discretion to disallow the pre-proceedings costs. [65] CMC’s argument was not that the costs assessor asked himself the wrong question, but rather that his decision to disallow certain pre-proceeding costs (because he did not consider they were necessary or proper for the attainment of justice), was plainly wrong. Senior Counsel for CMC submitted that the error of principle was that the costs assessor took into account irrelevant matters such as the fact that Critical Control were used in the adjudication. [66] Against this, WICET argued that no reviewable error of principle had been identified by CMC. WICET also submitted that there was no discernible error in the costs decision because CMC’s solicitors knew that any reports obtained from Critical Control in the adjudication could not be used in future litigation, as it was engaged 45 King v Allianz Australia Insurance Limited [2015] QCA 101 at [33]. 46 CMC’s amended application at [1(a)]. The items listed in Table 1 of the Schedule to the application are defined as the “pre-proceeding costs”. -- 22 of 93 -- 23 by CMC in the initial project (the subject of the dispute) and therefore was not independent. [67] CMC submitted that WICET should not be permitted to run the latter argument before me as it was not a matter raised in their notice of objection, as required by UCPR r 742(5)(b).47 I accept this point was not raised in WICET’s notice of objection but I am satisfied that WICET ought to be allowed to raise it now because it is relevant to the issue of whether these costs are necessary or proper; and the fact that Critical Control lacked independence as a trial expert is no surprise to CMC as that fact was well known to it. It was also a fact before the costs assessor, because CMC’s solicitor’s file (which the costs assessor had access to throughout his assessment) included correspondence identifying that Critical Control performed a project role and therefore could not act as an expert in the litigation. [68] To the extent necessary, I therefore grant WICET leave under UCPR r 742(5)(b) to run this argument. [69] Before addressing each of the two categories of costs, it is necessary to deal briefly with the third ground of error raised by CMC - the alleged inadequacy of reasons. Inadequacy of reasons [70] The costs assessor reasons for disallowing a number of pre-proceeding costs were varied. Some examples are as follows: (a) “objection sustained see paragraph 4 of the objections”: see eg costs items 1-8; (b) “objection sustained insufficient nexus to trial”: see eg cost item 9; (c) “objection sustained no relevance showing” (or similar): see eg costs items 21- 32; (d) “objection sustained, Critical Control used for adjudication”: see eg costs items 172, 656, 1374, 1451-1453, 1534-1552, 1625-1628; (e) “objection sustained relevance to litigation queried” (or similar): see eg costs items 177-247; and (f) “objection sustained subject to adjudication”: see eg costs items 248-507. [71] These reasons, although truncated, sufficiently outline the costs assessor’s reasoning for not accepting that the items claimed were necessary or proper. This finding is supported by the fact that in developing its argument in support of this ground, CMC clearly understood the approach the costs assessor took. [72] For these reasons, and for the reasons outlined under the heading “Adequacy of Reasons” earlier in this judgment, I do not accept CMC’s submission that the costs assessor failed to give adequate reasons for his decision not to allow some of the pre- proceeding costs. 47 CMC’s complaint that WICET “snuck” in the argument overlooks that the issue was raised in WICET’s written submissions in response to CMC’s application for review. -- 23 of 93 -- 24 Critical Control and adjudication costs [73] CMC submitted that costs from Critical Control and the adjudication costs were necessary or proper for the attainment of justice for the following four reasons: (a) First: Critical Control provided reports in respect of the matters the subject of CMC’s claims; (b) Secondly: These reports were not only used in the adjudication but also as a basis for pleading their claims and instructing experts in the proceeding; (c) Thirdly: The work done by Critical Control was adopted (in part) by Gerard King, one of CMC’s experts at the trial; and (d) Fourthly: Both the Critical Control and adjudication costs were incurred by CMC in seeking to resolve the disputed variations and Delay Claim. [74] The fourth submission was not advanced before the costs assessor and there is no evidence to substantiate it. [75] CMC maintained before the costs assessor (in its reply to submissions to him) that: (a) the work done by Critical Control was adopted by King Planning as part of developing the claim; (b) that the factual events listed in the Critical Control report aligned with the factual events claimed in CMC’s pleadings and relied upon by Mr King in his delay report; and (c) its solicitors performed work which formed the basis of factual instructions around the issues in dispute which remained relevant for the duration of the proceedings. [76] It is uncontroversial that Critical Control was engaged by CMC as an expert delay analysis programmer, and that Critical Control prepared a number of reports about delay and disruption on CMC’s behalf for the adjudication. It is also uncontroversial that these reports were not relied upon by CMC at trial but were referred to as particulars in the first iteration of the statement of claim. But it cannot be overlooked that the amended statement of claim on 18 September 2023 removed reference to these reports and they were not expressly referred to afterwards. [77] The delay expert who was retained by CMC for the litigation was ultimately Gerard King from King Planning.48 CMC’s submissions about the use of the work done by Critical Control were not necessarily supported by any evidence. There were, unsurprisingly, general alignments between the facts set out in the report of Mr King and the Critical Control reports, but otherwise there were, in fact, no references in Mr King’s report to the work undertaken by Critical Control. [78] Overall, I am not satisfied that the costs assessor was clearly wrong or that any error of principle has been identified by CMC that justifies this courts interference with the costs assessor’s decision about the Critical Control (and other adjudication) costs, for the following three reasons: 48 It was not contended before me that Mr King’s costs were not recovered or not recoverable under the costs order made in CMC’s favour. -- 24 of 93 -- 25 (a) First: A number of factual contentions underpinning this ground were factual matters within the purview of the costs assessor. For example: (i) the contention that the work done by Critical Control was adopted by Mr King at the trial was a factual matter within the purview of the assessor’s discretion and not subject to review by the court. In any event, CMC’s submissions were obviously rejected by the costs assessor; and (ii) the contention that Critical Control and adjudication costs were incurred by CMC in seeking to resolve the proceedings is not supported by any evidence. (b) Secondly: Critical Control and other statutory adjudication costs were costs that would have been incurred by CMC irrespective of whether the proceeding had been commenced, because: (i) they were incurred as a result of CMC’s election to pursue statutory adjudication of its claims; (ii) CMC was seeking to have payment of disputed claims determined by an adjudicator pursuant to the statutory adjudication process without the need to go to court, and in that context it was open for the costs assessor to find that they were not necessarily pre-litigation steps; and (iii) the Critical Control costs and the costs of the adjudication do not fall within any of the sub-headings of UCPR r 679. They were not ordered to be costs of the proceeding, nor were they incurred as part of complying with the necessary steps that had to be completed before the proceeding was started. And, contrary to CMC’s submissions, there was no evidence that they were incurred for the purpose of conducting negotiations. (c) Thirdly: Out of the 490 items of alleged pre-proceeding costs that are subject of this ground, a number were in fact incurred after the proceeding commenced on 3 July 2013 (specifically, all costs items from 705 onwards). The basis for CMC including these items as part of their first ground (given that they were incurred after the proceedings started and are therefore not by definition pre- proceeding costs) is otherwise not clear; (d) Fourthly: There was evidence available to the costs assessor that the reason Critical Control was dropped by CMC as an expert in the litigation was because it had a role in the project and, accordingly, was not independent. This lends support to the finding that the Critical Control reports costs were really costs of the adjudication. In any event, the fact that Critical Control were engaged on the project and would not be able to be used in the litigation was a matter that CMC’s solicitors, acting diligently, should have been aware of. This evidence was before the costs assessor and was a legitimate reason for him, acting in his discretion, to disallow the costs of Critical Control as part of the costs of the proceedings. It was not, as CMC submitted an erroneous dissent into hindsight by the costs assessor. -- 25 of 93 -- 26 The other costs [79] Any pre-proceeding costs out of the 490 items that make up this ground that are not Critical Control costs or arise from the adjudication have been categorised by CMC as “other costs”. CMC made the broad submission that the costs assessor adopted a narrow and improper restriction on the assessment of costs incurred prior to the commencement of proceedings; and that the claims in the proceeding were broad; and therefore, these costs were reasonably incurred in prosecuting CMC’s rights in respect of these claims. I reject this submission by CMC for the following two reasons: (a) First: The submission is imprecise and vague. It does not explain the nature of the narrow approach the costs assessor is said to have adopted or why that narrow approach departed from established principle; and (b) Secondly: I am not satisfied that the costs assessor’s discretion has miscarried and that his decision should be altered or set aside on the basis of such general and broad assertions. Ground two: the Mitchell Brandtman costs [80] Mitchell Brandtman (Quantity Surveyors and Construction Expert Opinion firm) was engaged by CMC to provide quantum surveying expert evidence in the proceeding. David Mitchell and Richard Mason from Mitchell Brandtman both provided reports but were not ultimately called by CMC as witnesses at the trial. On 11 February 2016, CMC terminated its retainer with this firm and later that month engaged Paul Roberts from Aquenta as its expert quantum surveyor. It was not alleged that CMC did not recover the costs of engaging Aquenta as its expert quantum surveyor. [81] CMC claimed eight items, made up of disbursements paid to Mitchell Brandtman in connection with its retainer on the basis that: (a) although the expert evidence from this firm was not ultimately used at trial, the costs were necessarily or properly incurred at the time; (b) the briefs to Mitchell Brandtman were duplicated when CMC briefed Mr Roberts to provide a report and evidence at trial; and (c) the reports obtained from Mitchell Brandtman were largely adopted and replicated by Mr Roberts in his report and during the trial. [82] WICET made the following four submissions to the costs assessor as to why the Mitchell Brandtman costs were not necessary or proper: (a) First: The abandoned experts had undertaken a significant amount of wasted work before their termination; (b) Secondly: There was no evidence that the briefs to Mitchell Brandtman were duplicated; rather, the evidence showed that the briefs were materially different; (c) Thirdly: After Mitchell Brandtman’s termination, CMC departed from any pleading underpinned by its reports; and -- 26 of 93 -- 27 (d) Fourthly: CMC was ordered to pay WICET’s costs thrown away by reason of the change of experts, so it follows that it would be perverse for CMC to recover its costs of engaging Mitchell Brandtman. [83] The costs assessor disallowed the Mitchell Brandtman costs, his reasons were as follows: “Objection sustained. Expert and work done were abandoned and not relied upon at the trial.” [84] CMC submitted that the assessor made an error of principle in not allowing these costs for two reasons: (a) First: It is irrelevant that the Mitchell Brandtman experts were not called at trial because the relevant question is whether on the state of affairs known to the solicitors at the time Mitchell Brandtman was engaged, the expenditure was necessary or proper. And it plainly was, as the quantity surveying evidence went to establishing the quantum of CMC’s losses; and (b) Secondly: The work of Mitchell Brandtman was not abandoned, as it was briefed to and relied upon by the replacement quantity survey expert, Mr Roberts. Reason one: Hindsight is a wonderful thing [85] Whether costs are necessarily or properly incurred, is a matter which is to be assessed at the time they were incurred, not with the benefit of hindsight.49 The rationale for such a principle is, of course, that the costs associated with a witness should not necessarily be disallowed, merely because it transpires at trial that the evidence of the witness was not needed. This principle applies generally, whether it be due to a forensic decision taken by a party, or whether the evidence ultimately proved unnecessary or unhelpful. In other words, the decision to call or obtain evidence from a particular witness might have been prudent at the time, however the nature of litigation is such that this might change due to unforeseeable events. [86] But in my view, the rationale for this principle does not necessarily apply to a case such as this, where CMC – for reasons not connected with proof of its case – decided to terminate the retainer of its expert and replace that expert with someone else possessing expertise in the same field.50 CMC did not offer any explanation in its submissions to the costs assessor as to why it terminated Mitchell Brandtman’s retainer and engaged a replacement expert. During the course of the trial, CMC needed to replace Mitchell Brandtman as its quantity surveying expert because it had terminated their retainer as part of a negotiation tactic in a fee dispute (CMC had hoped this might result in Mitchell Brandtman agreeing to lower their fees). This decision led to a breakdown of the professional relationship, which then resulted in CMC needing to brief a replacement expert. Evidence about this was before the costs assessor as part of CMC’s solicitor’s file. But even if this reason was not known by the costs assessor, the onus rests with CMC and it remained open to the costs assessor to have not been satisfied that these costs were both necessary and proper. 49 See W & A Gilbey Ltd per Asprey J. 50 I accept there might be circumstances when a plaintiff might still reasonably recover the fees of the first expert in such a scenario; for example, if the expert had died or otherwise become unavailable for reasons that were beyond the control of the plaintiff. But of course, that is not the case here. -- 27 of 93 -- 28 [87] I accept that ordinarily the legitimacy of costs associated with a particular witness ought not be assessed with the benefit of hindsight, but in my view, the facts of the cases relied upon by CMC are distinguishable from the present and therefore the general proposition is tempered accordingly.51 [88] Either way, it was, in my view, a classic exercise of the costs assessor’s discretion to determine whether or not the costs associated with obtaining the Mitchell Brandtman report were necessary or proper. I am not satisfied of any error in the exercise of the costs assessor’s discretion based on the first reason argued by CMC. Reason two: Mitchell Brandtman’s work was used by Aquenta [89] CMC contended that the work of one of the two Mitchell Brandtman experts, Mr David Mitchell, was “adopted” by Mr Roberts of Aquenta and thus his work was not thrown away and therefore the costs assessor was wrong to disallow all of the costs of Mitchell Brandtman.52 [90] WICET made detailed submissions to the costs assessor explaining why the costs of Mitchell Brandtman should not be allowed. These submissions refuted the notion that the new expert adopted the earlier work that had been done.53 [91] CMC advanced relatively brief submissions in response but drew the costs assessor’s attention to the observations of Flanagan J that CMC had been penalised by an indemnity costs order against it for changing the quantity surveyor expert, and for re- formulating its delay claim.54 [92] The question for the costs assessor was therefore whether the Mitchell Brandtman costs were necessary or properly incurred in the interests of justice. It is reasonable to infer, as I do, given the substantial submissions made to him which focussed on this question, that the costs assessor considered this question. [93] CMC’s submission is that the costs assessor wrongly concluded that the Mitchell Brandtman work was abandoned, but the factual question of whether or not the reports - or at least one of them - had been adopted by CMC’s new expert, was squarely raised before the costs assessor. The costs assessor’s reasons are brief but adequate enough for CMC to understand the basis of his ruling. It was open to the costs assessor to conclude as he did; that is, to uphold WICET’s objections. [94] Again, this was a classic exercise of the costs assessor’s discretion to determine whether or not costs associated with obtaining a report were necessary or proper. There has been no demonstrable error in the exercise of that discretion nor am I satisfied the costs assessor’s decision is clearly wrong. 51 Bartlett v Higgins (1901) 2 KB 230 at 237; Levetus v Newton (1883) 28 Sol. J. 166 at 166, cited with approval by the High Court in Clark, Tait & Co v Federal Commissioner of Taxation (Cth) (1931) 47 CLR 142 at 146; Clark v Malpas (1863) 31 Beav 1253 at 1255, also cited in Clark, Tait & Co v Federal Commissioner of Taxation (Cth) (1931) 47 CLR 142 at 146. 52 CMC does not suggest that the other report prepared, i.e. Mr Mason’s report, was also adopted by CMC’s replacement expert. CMC’s brief submissions as to the costs assessed on this topic [3.14] - [3.15] make no mention of Mr Mason’s report. 53 WICET’s notice of objection at [7.1] – [7.4]. 54 CMC’s submissions in response at [8.1] – [8.6]. Costs Judgment at [72]. -- 28 of 93 -- 29 Ground three: Counsel costs [95] This was reasonably complex and protracted construction litigation. Unsurprisingly, WICET did not submit to the costs assessor (nor did the costs assessor find) that it was not proper or necessary for CMC to have retained more than one counsel, including eminent Senior Counsel and an experienced senior junior, during the course of the proceeding and for the trial.55 [96] CMC claims the costs assessor wrongly disallowed some of the costs it paid for various counsel it briefed in the proceedings [totalling $675,959] as follows: (a) Mr O’Donnell KC: $512,698; (b) Mr Doyle KC: $90,340; (c) Mr Holt KC: $22,225; and (d) Mr Webster: $50,696. [97] CMC identified the following three errors concerning this ground:56 (a) First: The costs assessor was manifestly wrong in exercising his discretion to disallow the Counsel Costs; (b) Secondly: The costs assessor erred in finding that the Counsel Costs were not necessarily or properly incurred in connection with the claim; and (c) Thirdly: The costs assessor failed to give adequate reasons for his decision to disallow the Counsel Costs. Did the costs assessor ask himself the right question from the outset? [98] It is necessary to start by addressing the general contention by CMC that the costs assessor’s discretion erred as a matter of principle because he did not expressly state that he considered whether each of the counsel costs claimed were necessary or proper.57 [99] As emerges later in my analysis of ground three, I am satisfied that the costs assessor took into account irrelevant considerations which led him into error in determining aspects of CMC’s claims for Counsel Costs. However, for the following five reasons; I otherwise reject CMC’s submission that the costs assessor failed to ask himself the right question in the process: (a) First: It does not automatically follow that a failure by a costs assessor to expressly refer to the necessary or proper test means he has not applied it. Each case turns on its facts and an assessment of the costs assessors reasons; (b) Secondly: There is a certain irony and convenience to this argument being maintained given that CMC does not, for obvious reasons, suggest that the costs assessor did not apply the necessary or proper test in relation to the amounts he allowed for CMC’s counsel’s fees; 55 Indeed, both parties engaged experienced senior and junior counsel throughout the proceeding including the trial, with WICET retaining two junior counsel for the trial and CMC one junior counsel. 56 CMC’s amended application [1(d)]. 57 Relying on the observations of Flanaghan J in Wiesac at [47]. -- 29 of 93 -- 30 (c) Thirdly: The costs assessor’s reasons include a reference to the decision of Logan J in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250 which refers to the correct test. (d) Fourthly: Mr Roberts is an experienced costs assessor who is on the register of approved costs assessors. The preamble to his reasons state that he has considered the relevant provisions of the UCPR. The necessary and proper test is a fundamental one in any conduct of a costs assessment under the UCPR, as expressly provided for by r 702(2). It is reasonable to infer, as I do, that the costs assessor did not ignore this basic concept and that, indeed, he applied it to the amounts that he allowed and disallowed. Whether he applied it correctly is a separate question. Mr O’Donnell KC’s fees [100] Item 8363 of the costs statement related to Mr O’Donnell KC’s fees. The costs assessors reasons for sustaining the objection to some of Mr O’Donnell KC’s fees are as follows: “Objection sustained. Objection $9,000 per day Reading and preparation, a deduction of 33%. Allow for 36 days preparation only. Fees incurred before Trial in total $449,250. Equals 44.9 days. The resolution for allowing 36/44.9* 24250*(1 - 0.33)* 0.9 = 11,724.25 which is Less than what Corrs allowed to. Therefore, apply for the value which Corrs allowed to.” [101] CMC submitted the costs assessor erred by disallowing 33 per cent of Mr O’Donnell KC’s fees in the following three ways: (a) First: He allowed a daily rate for Mr O’Donnell of $9,000 per day when his actual daily rate was $10,000 per day; (b) Secondly: He characterised all of Mr O’Donnell KC’s time for work prior to the trial as “preparation” and he then capped those fees at 36 days;58 and (c) Thirdly: He imposed arbitrary reductions for certain tasks (example, closing submissions) without providing any reason for doing so. Reduction of daily rate [102] In its submission to the costs assessor in support of Mr O’Donnell KC’s fees being necessary or proper, CMC referred to the range of fees for senior counsel to be broad, with newly admitted senior counsel setting their daily fees at $5,000, with more senior and pre-eminent members being known to charge $15,000 to $17,000, and on occasion, $20,000 per day, for specialised advice. [103] In response, WICET submitted there being no “actual evidence” in support of the ranges contended by CMC. [104] The crux of WICET’s submission to the costs assessor was that its senior counsel – now a Supreme Court Judge, charged $900 per hour and $9,000 per day, and that there was no basis for CMC to recover its counsels’ fees at a rate above this. In developing this contention WICET also submitted that: 58 That is, he appears to have adopted a rule of thumb of one day of preparation for each day of trial. -- 30 of 93 -- 31 (a) the daily rate of CMC’s senior counsel that exceeded this figure was excessive and over and above what could reasonably be claimed on the standard basis; and (b) just because counsel may have agreed with a client to charge a particular rate does not mean that the rate will be necessary or proper when it comes to an assessment.59 [105] Before me, on the review application, Senior Counsel for WICET made two further points: (a) First: The question of the rate at which counsel’s fees could be recovered on the standard basis was a matter within the costs assessor’s discretion, and in the absence of evidence on the topic — but in the possession of knowledge about what WICET’s senior counsel had charged — the costs assessor made a decision on the question that was open to him, so therefore no error of principle has been demonstrated; and (b) Secondly: That the reduction in the allowable costs for Mr O’Donnell KC from $10,000 per day to $9,000 per day is a classic example of the sort of quantum decision costs assessors make all the time and that courts are loathe to interfere with. [106] I accept that the question of whether the rate of counsel’s fees is necessary or proper on the standard basis is a matter within the costs assessor’s discretion and that courts are loathe to interfere with such “quantum” decisions. But in my respectful view, the costs assessor was plainly wrong to reduce Mr O’Donnell KC’s daily rate in the way he did, and the exercise of his discretion to do so was much more than just a “quantum” decision. Rather, it was plainly an error of principle that justifies this court’s intervention for the following reasons six reasons: (a) First: The fact alone that senior counsel for WICET charged a rate of $9,000 per day ($1,000 per day less than Mr O’Donnell KC) is entirely irrelevant to whether Mr O’Donnell KC’s daily rate was necessary or proper for the attainment of justice; (b) Secondly: In its submissions to the costs assessor, CMC correctly identified that there is no guide or scale for counsel’s fees in Queensland, leaving the costs assessor with a wide discretion as to the proper fees for services provided by senior counsel. There is nothing controversial about the contention that a daily fee rate of between $5,000 to $20,000 was charged by senior counsel depending on their seniority, expertise and the complexity of the case. That range ought to have been accepted as a matter of common knowledge by an experienced costs assessor such as Mr Roberts. It was not necessary, on my view, for there to have been some evidence to underpin this range; (c) Thirdly: Regardless, it is not strictly correct to say that there was no evidence before the costs assessor of the rates charges by experienced senior counsel with expertise in complex construction and commercial matters. He had four invoices from different senior counsel before him; 59 With reference to Higgins v Nicol (No 2) (1972) 21 FLR 34 at 42. See WICET’s reply to response to notice of objection at 16.2(d) referring to Swan v Bank of New Zealand (1890) 24 SALR 20 at 21. -- 31 of 93 -- 32 (d) Fourthly: There is no suggestion that Mr O’Donnell KC’s daily rate was not a proper fee to be charged by senior King’s Counsel; nor that the case did not require the skill, expertise and leadership of such counsel; (e) Fifthly: There is no logical reason and, perhaps unsurprisingly, any case authority that supports the proposition that the costs of senior counsel recoverable on a standard basis assessment is confined or limited to the daily rate charged by senior counsel for the other side; and (f) Sixthly: In all of the above circumstances, the decision by the costs assessor to reduce senior counsel’s fees by $1,000 per day was infected by an irrelevant consideration and was plainly wrong. [107] I therefore set aside the costs assessor’s decision to limit Mr O’Donnell KC’s daily rate to $9,000 per day. [108] There is no need to refer this issue back to the costs assessor for his reconsideration. This court is in a position to assess whether the rate of $10,000 per day charged by Mr O’Donnell KC was necessary or proper for the attainment of justice. For all of the reasons discussed under this heading, I am satisfied that: (a) Mr O’Donnell KC’s daily rate of $10,000 is not excessive or unreasonable; and (b) it is both a necessary and a proper daily fee, given Mr O’Donnell’s seniority, expertise and the complexity of the case. [109] I therefore find that Mr O’Donnell KC’s daily rate of $10,000 ought to be allowed. I direct that: (a) the parties recalculate and agree on the figures that flow from this finding; and (b) agree on the amendment to the costs certificate that flows from this finding. Pre-trial preparation and cap of 36 days [110] CMC submitted that the costs assessor erred by characterising all of Mr O’Donnell KC’s time in respect of all work undertaken prior to the trial as “preparation” and then capped those fees at 36 days. In advancing the latter argument, CMC submitted that the costs assessor did not consider or outline the basis for the imposed cap of one day preparation to one day of trial, and that his decision to do so was an arbitrary one. Allowance for preparation time [111] The notion that Mr O’Donnell KC’s fees should be reduced, including a cap of 36 days of hearing preparation time, was initially raised and developed in some detail in the substantive submissions advanced by WICET to the costs assessor.60 That submission appears to be premised on the “rule of thumb” of one day preparation for each one day of the trial. [112] CMC provided detailed submissions in response as follows: “16.1 WICET’s surprise at the quantum of CMC’s counsel’s fees is artificial and hyperbolic. It is unlikely that WICET, 60 WICET’s notice of objection at [15.8] – [15.10]. -- 32 of 93 -- 33 having engaged similarly qualified and multiple counsel, has incurred any lesser fees. … 16.15 WICET takes issue with Mr O’Donnell QC’s fees and claims he has charged $813,000 in preparation for a hearing. This is simply not true. Mr O’Donnell did not charge preparation fees for hearing until 21 May 2016, just two days prior to the commencement of hearing. 16.16 the recoverable costs of senior counsel on an inter-parties basis was examined at length by Logan J in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCA 661 at [104-106]. 16.17 His Honour established a reasonable preparation time at 15 days for a 15 day trial, and for two days closing submissions. Mr O’Donnell’s preparation time is within that ratio. 16.18 WICET’s submissions as to Counsel’s fees fail to recognise the modern tendency for counsel to charge a flat fee of a daily basis for both preparation and court work, as opposed to the traditional “fee on brief” and “refresher” method. They also fail to differentiate between Court work and other briefs, such as preparation of pleadings. … 16.20 CMC maintains that senior and junior counsel’s fees as claimed in full are appropriate in all the circumstances of the matter which involved complex and urgent issues, and where the work achieved a novel outcome. CMC also considers these fees are comparable to those of Senior Counsel engaged by WICET in the proceedings. 16.21 WICET has failed to show that there has been any double or overcharging as a result of the use of multiple counsel for separate tasks over the course of this long running and complex commercial matter.” [Underlining added] [113] The current and common practice in most types of civil litigation is for counsel to charge a flat fee on a daily basis for both preparation and court work. This allows for, and reflects, the considerable work required leading up to trial and at trial, particularly in factually dense and legally complex trials such as the present. The approach to taxation must take these matters into account.61 In undertaking the task of assessing what is necessary or proper, I do not accept that the old “rule of thumb” of one day’s 61 Dal Pont, Law on Costs 3rd ed, LexisNexis, Australia, 2013 at 16.2-16.21; See also the observations of McGill DCJ QC in Hennessey Glass at [78] and [81]; Atkinson J in Menegazzo v PricewaterhouseCoopers [2017] QSC 172 [8] and [10]; and Jones J in Nashvying Pty Ltd v Giacomi [2009] QSC 31 at [12]. -- 33 of 93 -- 34 preparation to a day’s hearing is necessarily a relevant guide in modern and complex litigation. Such a general approach is too simplistic and has a tendency to overlook relevant factors, including how many counsel are briefed, the timing of the listing of the trial and any urgency in complying with trial directions, the nature, complexity and number of issues in the case both legally and factually, the need to confer with lay and expert witnesses and any other matters which may be peculiar to a particular case. [114] In this case however, the costs assessor was faced with resolving competing detailed submissions from both parties as to whether or not Mr O’Donnell KC’s fees in preparation for trial were necessary or proper. The issue of what work is included in the expression “preparation for trial” is a separate matter and is discussed under that heading below. This issue is a finely balanced one, however, in the circumstances of this case, I am not satisfied that CMC has established that the costs assessor erred in limiting Mr O’Donnell KC’s fees as he did, to 36 days for preparation, for the following five reasons: (a) First: CMC’s submissions in reply to the costs assessor [at 16.17] contended that a reasonable preparation time was one day preparation for each one day of trial; (b) Secondly: CMC’s submissions on this issue were confusing. For example, the reference to Mr O’Donnell undertaking only two days of preparation for trial [16.15] does not make sense; and whilst CMC referred to the decision of Wide Bay Conservation as relevant to reasonable preparation time, it later refuted this decision as being applicable to assessments under the UCPR;62 (c) Thirdly: The costs assessor is experienced and understood and accepted the complexity of the litigation. For example, as discussed under Ground Five, he accepted that a 35 per cent uplift of fees was appropriate. The decision about whether preparation time on the part of senior counsel was necessary or proper in the circumstances of this case was a factual matter within his purview; (d) Fourthly: The costs assessor’s reasons are abbreviated, but he identified the approach he took. In the circumstances of this case, I am satisfied that the costs assessor paid particular regard to the detailed written submissions from the parties. The costs assessor obviously read and considered these submissions by cross-referencing them in his reasons. I find the costs assessor’s reasons are adequate; and (e) Fifthly: In a complex, acrimonious and protracted costs assessment such as the present, where the parties had ample opportunity to (and did) make their respective points to the costs assessor, it would be against the interests of justice to remit the issue back to the costs assessor when CMC did not contest the “rule of thumb” approach before him in the first place. Preparation for trial work [115] CMC submitted that the costs assessor erred by wrongly including items such as: (a) settling amendments to the statement of claim [Item 8363]; 62 CMC’s submissions at [103]. -- 34 of 93 -- 35 (b) appearing at a court review [Item 9802]; (c) drafting a reply [Item 9512]; and (d) reviewing amendments to the statement of claim [Item 11635] as part of his allowance for preparation fees, notwithstanding that such tasks were plainly not preparation for a trial. [116] I am not satisfied that CMC has demonstrated any error of principle in the exercise of the costs assessor’s discretion (or that he was clearly wrong) on this issue for the following four reasons: (a) First: The trial was due to commence on 23 May 2016 and Mr O’Donnell KC was briefed in November 2015 (junior counsel having been briefed throughout the lead up to the trial). It is reasonable to assume, as I do, that he was briefed to prepare for and appear at the trial. It is not unusual or surprising that Senior Counsel might, during the course of his preparation, decide that some amendments to pleadings (and his attendance at a review) might be necessary; (b) Secondly: I reject the general proposition that these items “plainly” do not fall under the auspice of preparation. The term is a broad one. In circumstances where a trial date had been set and directions made by the supervising trial judge leading up to trial, it potentially covers all types of tasks to be undertaken in the period leading to the trial — including attending trial reviews; (c) Thirdly: The tasks that might be classified under the broad brush umbrella of preparation were factual matters for the costs assessor to decide in the exercise of his discretion; and (d) Fourthly: In the circumstances of this case, it was open for the costs assessor to have found, as he did, that these items were included in the allowance he made for preparation. Arbitrary reductions [117] CMC submitted that the costs assessor arbitrarily reduced Mr O’Donnell KC’s fees for the preparation of the closing submissions by 24 per cent (citing Item 16865), without providing a basis for the reduction. [118] I am not satisfied that CMC has demonstrated any error by the costs assessor on this issue for the following four reasons: (a) First: Item 16865 does not relate to Mr O’Donnell KC, but rather to Mr Webster; (b) Secondly: It is not correct to say that the reduction was necessarily arbitrary. By General Objection 6, Annexure D to the Notice of objection, WICET submitted that the costs of the closing submissions should be reduced by 24 per cent to account for the fact that a portion of the closing submissions costs related only to the counterclaim; (c) Thirdly: The costs assessor’s reason for his decision are abbreviated. But it is obvious that the costs assessor accepted WICET’s submission over that of CMC. In the circumstances of this case, I am again satisfied his reasons are adequate; and -- 35 of 93 -- 36 (d) Fourthly: The task for the costs assessor was to consider the submissions from the parties and to determine, based on those submissions and the other material before him, whether Mr O’Donnell KC’s fee was necessary or proper in the circumstances. The costs assessor’s finding as to the apportionment of the closing submission that related to the counterclaim was a factual matter within his purview, and open to be made on the submissions and the evidence before him. Mr Doyle KC’s fees [119] CMC submitted that the costs assessor made the following two errors in relation to his assessment of Mr Doyle KC’s fees: (a) First: He capped Mr Doyle KC’s fees at $9,000 per day; and (b) Secondly: He refused to allow Mr Doyle KC’s fees in relation to preparation for a mediation. Capping of daily rate [120] WICET calculated Mr Doyle KC’s daily rate was at least $14,600.63 It objected to this rate as “plainly extraordinary and excessive” as follows:64 “Mr Doyle QC’s fees are plainly extraordinary and excessive. CMC was of course free to elect and engage Mr Doyle QC. However, it would have done so knowing his rate was far and above the usual rate. It cannot recover an indemnity on that basis.” [121] WICET also submitted that this submission was reasonable, especially given that WICET’s senior counsel had charged the lesser rate of $9,000 per day.65 [122] I am satisfied that CMC has established a demonstrable error in the costs assessor’s decision for the following reasons: (a) First: For the same reasons set out in paragraph 106 above [in relation to the assessment of Mr O’Donnell KC’s fees]; (b) Secondly: There was no evidence that Mr Doyle’s fee was “far and above” the “usual rate”; (c) Thirdly: The proceeding was of a significant size and warranted a senior King’s Counsel being briefed. Further, there is no suggestion that any of Mr Doyle KC’s fees were a double-up; and (d) Fourthly: The costs assessor’s role was to assess whether these fees were necessary or proper having regard to the expertise, seniority of counsel and the complexity of the matter, and he failed to answer this question in the correct context – rather, he was distracted by the irrelevant consideration of senior counsel for WICET’s daily fee. 63 WICET’s notice of objection at [15.1]. 64 WICET’s notice of objection at [15.6]. 65 WICET’s written submissions in response to CMC’s application for review [149]. -- 36 of 93 -- 37 [123] These errors warrant this court’s interference and determination of whether the daily rate of approximately $14,600 for Mr Doyle KC’s fees is necessary or proper. [124] I therefore set aside the costs assessor’s decision to limit Mr Doyle KC’s daily rate to approximately $14,600 a day. [125] There is no need to refer this issue back to the costs assessor for his reconsideration. This Court is in a position to assess whether the rate of approximately $14,600 charged by Mr Doyle KC was necessary or proper for the attainment of justice. [126] For all of the reasons discussed under this heading, I am satisfied it is both a necessary and a proper daily fee, given Mr Doyle KC’s seniority, expertise and the complexity of the case. [127] I therefore find that Mr Doyle KC’s daily rate of approximately $14,600 (or whatever rate he in fact charged) ought to be allowed. [128] Again, I direct that the parties recalculate the figures that flow from this finding and agree on the necessary variations to the costs certificate. Mediation costs [129] CMC also contended that the costs assessor wrongly disallowed about $60,800 of Mr Doyle KC’s costs in respect of work he undertook associated with a mediation of the proceeding. [130] The error said to underpin the costs assessor’s error was identified by CMC that the parties agreed to bear their “costs of the day” of the mediation and that the reduction imposed by the costs assessor: 66 “…did not reflect that agreement nor any basis to otherwise disallow the costs, particularly given the definition of “costs of the proceeding” in UCPR r 679, which extends to unsuccessful negotiations for the settlement of the dispute.” [131] The starting point is that the parties did not agree to bear their “costs of the day”. Rather, that is the construction CMC submitted to the costs assessor. The mediation agreement signed by the parties in fact expressly stated that “each party agreed to bear their own costs and expenses of the mediation.”67 [132] The costs assessor was faced with two competing interpretations of the proper construction of the mediation agreement: (a) On the one hand, WICET contended that the mediation agreement provided the parties would pay their own costs and expenses in respect of the mediation and did not operate to make those costs part of the parties’ costs in the proceeding; and (b) On the other hand, CMC contended that the agreement extended to unsuccessful negotiations for settlement and the agreement operated to limit these costs to the mediator’s fee and counsels’ appearance fees. 66 CMC’s submissions at [98]. 67 Ibid. -- 37 of 93 -- 38 [133] The crux of CMC’s case is that the costs assessor misunderstood the natural meaning of the costs order. For the reasons that follow, I reject CMC’s contention. [134] The principles applicable to the construction of an agreement include the following two principles: (a) First: If the true meaning of an agreement is “immediately plain” (or unambiguous), the terms will speak for themselves;68 and (b) Secondly: If that is not the case, the task of ascertaining meaning is to be approached having regard to the ordinary rules of construction. That is to construe the objective meaning of the words in a way that does not make commercial nonsense or inconvenience.69 [135] I am not satisfied that there is any demonstrable error in the costs assessor’s interpretation of the agreement for the five following reasons: (a) Firstly: The mediation agreement signed by the parties stated that each party would pay their own costs and expenses of the mediation as opposed to their costs of the day. If the parties had intended those costs to be confined to the mediator’s fee and counsels’ fees (as CMC submitted), then the agreement would have stated so. It did not; (b) Secondly: The true meaning of the agreement is plain and unambiguous, and the terms speak for themselves. The preferred construction does not make commercial nonsense;70 (c) Thirdly: Regardless, even if there is said to be some ambiguity, viewed objectively, CMC’s interpretation does not follow on a natural and ordinary reading of the words; (d) Fourthly: Under UCPR r 679, the costs of the proceeding include the costs incurred for unsuccessful negotiations such as a mediation. It follows that the costs incurred with an unsuccessful mediation include the costs of preparing for the mediation, and they are not just confined to the costs of the day; and (e) Fifthly: In this case, the costs incurred in the unsuccessful negotiations for settlement of the dispute [the mediation] were compromised and are therefore not included as part of the costs of the proceeding. [136] I am not satisfied that CMC has demonstrated any error in the costs assessor’s resolution of the question of the proper construction of the mediation agreement in favour of WICET. It was a construction plainly open on the express terms of the agreement. It follows that no error of principle warrants the court interfering with this interpretation and deciding the contractual construction question afresh.71 68 Laming v Jennings [2018] VSCA 335 at [123] (with reference to the construction of a court order – the construction of which is no different to the construction of an agreement). 69 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352; Commission v Nation (1995) 57 FCR 25 at 33-34 (Beaumont J, Jenkinson J and Black CJ agreeing); Electricity Generation Corporation t/as Verve Energy v Woodside Energy Ltd (2014) 251 CLR 640 at 656 – 657. 70 Zhu v Treasurer of New South Wales (2004) 218 CLR 530 at 559; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at 118. 71 Wiesac at [48]-[49], per Flanagan J. -- 38 of 93 -- 39 Mr Holt KC’s fees [137] CMC contended that the costs assessor made an error of law by acceding to a submission of WICET that certain fees of Mr Holt KC (for example, Costs Item 5924) be disallowed as they were incurred because CMC needed to brief new senior counsel (as Mr Holt KC withdrew), resulting in a duplication of costs. [138] CMC submitted that the costs assessor’s reasons failed to identify a basis for that conclusion and that this constitutes an error of law. [139] I reject CMC’s submissions on this issue. I am not satisfied that any error of principle has been identified by CMC justifying this courts intervention for three reasons: (a) First: Whether or not there was in fact a duplication of costs was a decision of fact for the costs assessor; (b) Secondly: CMC disputed the contention of a double-up in its detailed submissions to the costs assessor. Again, the costs assessor’s reasons are brief (being essentially that he upheld WICET’s objection), but they are not inadequate in the circumstances of this case where the issue for determination by the costs assessor was whether or not, as a matter of fact, a duplication of fees and had occurred; and (c) Thirdly: The finding the costs assessor made on this issue was open on the material before him and within the purview of the exercise of his discretion as costs assessor. Mr Websters fees [140] Mr Webster is an experienced junior counsel who was engaged by CMC from the early days of the litigation. He charged a daily and hourly fee (as is usual for junior counsel to do in complex construction matters). It was not in issue that the majority of the items claimed for his fees were allowed by the costs assessor on this basis. [141] However, CMC submitted that the costs assessor erred in making percentage reductions on a number of items claimed for Mr Webster’s fees associated with the preparation of pleadings as follows: (a) Item 1252 (Mr Webster’s fee for further preparing statement of claim) - objection sustained, reduced to take into account statement of claim work - reduced by 20 per cent. Followed Corrs method. (b) Item 2549 (Mr Webster’s fees to prepare amended statement of claim and conferences with counsel) - reason for objection - time records have not been provided - preparation fees at discretion of costs assessor. I followed the National Guide to Counsel’s Fees, together with the authority of Logan J in Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 9) (2011) 194 FCR 250 at [104]-[106], pre-trial preparation (reading, consultations and conferences) made an adjustment approximately 33 per cent deduction. (c) Item 2697 (Mr Webster’s fee to prepare amended reply) - objection sustained - claims that relate to the amended reply and answer and reduced by 7 per cent. -- 39 of 93 -- 40 [142] CMC submitted that the costs assessor erred by relying on the decision of Wide Bay Conservation Council and the National Guide to Counsel’s Fees when both references have no application to the UCPR. [143] On the other hand, WICET submitted that there is no reason why the costs assessor might not reasonably have regard to “these two authoritative documents” in considering whether counsel’s fees were necessary or proper. Senior counsel for WICET submitted that such an approach was a rational basis open to the costs assessor and a matter very much within the field of costs assessors. [144] For the following three reasons, and in my respectful view, there is some force to CMC’s submission that the approach taken by the court in Wide Bay Conservation Council (based on a fee on brief with a refresher),72 is not one applicable to the facts of this case which concern a costs assessment under the UCPR for three reasons: (a) First: Wide Bay Conservation Council Inc was a case where Logan J allowed the “old-fashioned system” of a fee on brief for the first day of the trial and then a refresher fee of two-thirds for the subsequent days of the trial;73 (b) Secondly: The present case is not one where there was an enlarged fee for the first day of trial. The evidence is that counsel charged the same amount for each day, including the first day, and the costs assessor did not allow any larger fee for the first day of trial; and (c) Thirdly: In Wide Bay Conservation Council Inc,74 Logan J disallowed the two- thirds of the fee on brief for each day of pre-trial preparation on the basis of reading preparation and conference fee being included in the fee on brief for the first day of hearing. [145] This view is consistent with the following observations of McGill QC DCJ in Hennessey Glass & Aluminium Pty Ltd v Watpac Australia Pty Ltd (2007) QDC 57:75 “I suspect that the original notion of a fee on brief was based on the idea that a barrister was essentially paid for his work in court, on the assumption that relatively little in way of preparation for the trial would be necessary beforehand, although there would usually be a conference as well. That was no doubt reasonable enough in the old days then most litigation was so simple that all a barrister had to do was read his brief and go into court, but it is an entirely inappropriate approach when dealing with modern litigation with the complexity of the issues which were involved in the hearing of this matter. Accordingly, it was quite wrong for the registrar to say as he said (para 311) that one of the reasons why the fees were excessive were that “the work for which the fees have been incurred occurred on 5 September 2001”. That in my opinion is an attitude to the assessment of fees which is obsolete and should be abandoned. In such a matter, counsel is expected to work in preparation for trial before the day of trial, it is reasonable or 72 Wide Bay at [104]-[106]. 73 As described senior counsel for CMC before me at T 2-67 ll 32-36. 74 Wide Bay at [105]. 75 Hennessey Glass at [78]. See also Dal Pont, Law on Costs 3rd ed, LexisNexis, Australia, 2013 at 17.68. -- 40 of 93 -- 41 proper for that to be paid for, and it is part of costs assessed on the standard basis.” (Footnotes omitted) [Underlining added] [146] However, in the circumstances of this case, I am not satisfied that CMC has established that the costs assessor erred in limiting Mr Webster’s fees as he did for the following four reasons: (a) First: CMC’s submissions on this issue were confusing. Again, and as set out in paragraph 112 above, CMC referred the costs assessor to the decision of Wide Bay Conservation as being relevant to the question of the reasonable preparation time to be allowed for each day of trial but then later refuted this decision as being applicable to assessments under the UCPR; (b) Secondly: It is not in dispute that the costs assessor is experienced and well aware of the complexity of the litigation. The decision about what amount of preparation time for pleadings ought to be allowed as necessary or proper for junior counsel in the circumstances of this case, was a factual matter within his purview. This is particularly so, when he allowed a substantial amount of the items claimed for junior counsel’s fees on an hourly or daily basis; (c) Thirdly: The costs assessor’s reasons are abbreviated, however they identified the approach he took. In the circumstances of this case, particularly having regard to the detailed written submissions which I am satisfied (from the cross- referencing of those submissions in his reasons) that the costs assessor obviously read and considered, I find that his reasons are adequate; and (d) Fourthly: In a complex, acrimonious and protracted costs assessment such as the present, where the parties had ample opportunity to (and did) make their respective points to the costs assessor, it would be against the interests of justice to remit the issue back to the costs assessor on the basis that he ought not confine his assessment of preparation costs to be allowed based, when the decision he relied upon was expressly relied upon by CMC as being relevant to another aspect of the assessment of counsels fees. Ground four: the claim and counterclaim costs [147] CMC’s fourth ground of review emanates from the costs assessor’s disallowance (in whole or in part), of approximately 2,373 items totalling $782,213 that were claimed as costs of both the claim and the counterclaim.76 The general errors raised are that the costs assessor:77 (a) was manifestly wrong in exercising his discretion to disallow the claim/counterclaim costs; (b) erred in apportioning the claim/counterclaim costs in the manner that he did; and (c) failed to give adequate reasons for his decision to exercise his discretion to disallow the claim/counterclaim costs. 76 These items are listed in Table 4 of the Schedule to the amended application. 77 Amended application at [1(d)(i)-(iii)]. -- 41 of 93 -- 42 [148] More specifically, CMC submitted that the overall approach of the costs assessor was wrong for the following four reasons: (a) First: He applied various percentage reductions on the basis that it was said by WICET “x% of this…issue relates to the counterclaim” or similar wording [Items 1712, 1861, 1911, 2081 and 2124]; (b) Secondly: He arrived at the percentage reductions having not asked for, nor viewed, any of the solicitors’ files or documents referrable to the costs items. That is, the costs assessor failed to take into account relevant documents and merely relied upon the assertions of WICET without checking or verifying the submissions made as to the appropriate reduction; (c) Thirdly: He disallowed costs that were incurred before the counterclaim was filed [Item 132 and following] when there was no proper basis to do so; and (d) Fourthly: Insofar as he asserted that a claim/counterclaim cost was “severable” between the two cases, the costs assessor did not state any basis for such a finding. Nor did he state the basis on which he arrived at the quantum for the severed amounts (beyond repeating the bald assertions of WICET). [149] It is instructive to deal briefly with the fourth ground of error raised by CMC first. Inadequacy of reasons [150] The costs assessor’s reasons for disallowing, in whole or in part, recovery of some of the items of costs that were referrable both to the claim and to the counterclaim, were referenced to the notice of objection and submissions he received or cross-referenced to his determination of other items. [151] The costs assessor’s reasons are brief and truncated, but in my view sufficiently outline his reasoning in not accepting that the items claimed were necessary or proper. This finding is supported by the fact that in developing its argument in support of this ground, CMC clearly understood (at least on the occasions where its claim for costs was not allowed) that the costs assessor adopted the approach preferred by WICET over CMC’s approach. [152] For these reasons and for the reasons outlined under the heading “Adequacy of Reasons” earlier in these reasons, I do not accept CMC’s submission that the costs assessor failed to give adequate reasons as to why and how he made the apportionments he did. Basis upon which the costs order was made [153] In order to analyse the remaining three errors maintained by CMC, it is necessary to briefly revisit the premise upon which the court ordered that WICET pay CMC’s costs of the claim and CMC pay WICET’s costs of the counterclaim. [154] The starting point is that the claim by CMC alleged that it had been prevented/delayed by WICET in achieving practical completion, and that it should be allowed an extension of time under the Contact to achieve practical completion; and that consequent upon that extension of time being granted, it was entitled to substantial damages for the additional costs incurred in the extended time taken to achieve practical completion. As a consequence of an adjudication under the BCIPA, WICET -- 42 of 93 -- 43 had already paid CMC the sum of $4,087,233.21 in respect of these claims. It follows that CMC had to recover (in the substantive proceeding) more than that amount in order to obtain an order for payment from WICET. [155] WICET defended the claim on the basis that no extension of time for practical completion should be allowed, and no damages for delay should be recovered. WICET also alleged that it had already paid CMC the sum of $4,087,233.21 under the adjudication, and this sum should be repaid pursuant to s 100(3) of the BCIPA. WICET further counterclaimed that, depending on what, if any, extension of time for practical completion was allowed, CMC was liable to WICET for liquidated damages for failure to achieve practical completion by the contract date. In other words, CMC counterclaimed for repayment of the $4,087,233.21 and $3,846,503.88 in liquidated damages. [156] In summary, the end result was: (a) CMC had been prevented or delayed in achieving practical completion; (b) the date for practical completion should be extended by 208 days; (c) the legal effect of the extension was that CMC had no liability for liquidated damages to WICET; (d) CMC’s damages due to its delayed completion were assessed at $2,932,550.61; (e) as $2,932,550.61 was less than the amount WICET had paid pursuant to the adjudication, CMC recovered no amount on its delay claim, and CMC was held liable to pay WICET on the counterclaim $1,154,682.60 [$4,087,233.21 less $2,932,550.61]; and (f) CMC recovered nothing in respect of the delay claim, and WICET recovered an order for $1,154,682.60 on its counterclaim. Analysis [157] The following four matters were common ground between the parties before the costs assessor and on this review: (a) First: According to the principles that emerged from Smith v Madden,78 and other relevant authorities:79 (i) As the party entitled to the costs of the claim, CMC should recover its general costs and whatever was reasonably incurred in bringing its action as if there had been no counterclaim; (ii) As the party entitled to the costs of the counterclaim, WICET should only recover its added costs of maintaining a counterclaim; 78 (1946) 73 CLR 129 at 133-134. 79 Medway Oil and Storage Co Ltd v Continental Contractors Ltd [1929] AC 88; Gladstone Area Water Board v AJ Lucas Operations [2015] QSC 52 at [27]; Australia & New Zealand Banking Group Ltd v Alirezai (No 2) [2002] QSC 205 at [14]; Quick & Garnsworthy, Quick on Costs 2009, LBC Information Services at para 4.4960; Wiggins Island Coal Export Terminal Pty Ltd v Civil Mining & Construction Pty Ltd (2021) 7 QR 1 at [6]. -- 43 of 93 -- 44 (b) Secondly: CMC should receive all of its costs in bringing and maintaining its causes of action for extension of time and Delay, as if there had been no counterclaim; and (c) Thirdly: The only claim made in the counterclaim that did not overlap with CMC’s claim was the counterclaim in respect of the Final Certificate and the OLC claim.80 [158] WICET’s contention to this effect was addressed in section 8 of its submissions (General Objection 6) which included relevantly: (a) Submissions that the costs associated with the OLC and Final Certificate claims are costs of the counterclaim only. As such, CMC should not be entitled to any costs that relate to those claims [WICET did not understand that to be in dispute]; (b) an Annexure D (to the submissions), which contained a table which identified, for each key stage in the proceedings, the extent to which the OLC claim and Final Certificate formed part of the work involved; (c) the submission that WICET has adopted an informed approach to the treatment of mixed and counterclaim costs: (i) for mixed costs, WICET has reduced items by apportionment - using the table at Annexure D where appropriate; and (ii) counterclaim costs have been disallowed in full. [159] Relevantly, Annexure D set out how WICET had attempted to identify what portion of particular tasks could fairly be attributable to the Final Certificate and OLC claim (as opposed to CMC’s claim). For example, in respect of the lay witnesses, WICET proposed that an apportionment be made based on how much time (if any) had been spent in the witness’s affidavit in chief dealing with the Final Certificate or the OLC claim. An excerpt of this part of Annexure D is as follows: Event Sub-event Total Length Final Certificate Variation 30 (OLC claim) Other/ comment Witness - Lay - WICET Athol Webb 4 - - - Witness - Lay - WICET Stephen Cole 9 - - - Witness - Lay - WICET David Armstrong 6 All (100%) Mr Armstrong’s witness statement was converted to affidavit and went into evidence as Exhibit 423 Witness - Lay - WICET Stephen Armstrong 6 All (100%) Mr Armstrong’s witness statement was converted to affidavit and went into evidence as Exhibit 424 Witness - Lay - CMC Ben Vance 17 3 (17.5%) 1 (5%) - Witness - Lay - CMC Matthew Grey 5 - - - 80 T 1-41 ll 33-36. -- 44 of 93 -- 45 Witness - Lay - CMC John Henderson 7 1 (14.3%) - - Witness - Lay - CMC James Barry 4 - .25 (6%) - [160] Before the costs assessor, WICET also contended that part of the costs relating to CMC’s Delay Claim were also attributable to the counterclaim. But that is not pursued in this review.81 Approach to the percentage reduction [161] The main issue was the percentage reduction which might be appropriate for the Final Certificate claim or the OLC claim. [162] The approach taken by the costs assessor was that he accepted WICET’s submission that there should be a percentage reduction to certain cost items (for example, the closing submissions) as a means of removing costs associated with the Final Certificate claim and the OLC claims. [163] Both parties made submissions before the costs assessor about the issue of what costs items should be reduced because of the overlap. In oral submissions during his closing address, Senior Counsel for CMC pointed to the costs of the closing submissions and submitted that a percentage reduction in an aggregate sense should not be done; rather, it should have been done on an item-by-item basis; and that for examining documents in order to prepare closing submissions on piling, CMC should have obtained 100 per cent of those costs. Senior counsel for WICET accepted that proposition was correct in principle, but argued that the question was, “was it permissible?” and, indeed, “necessary” for the costs assessor to have undertaken this task on an aggregate basis. He also submitted that there was no error in principle to do so by looking at the closing submissions and saying 10 or 20 per cent related to the Final Certificate and the OLC claim.82 The counter to this being that where there is a costs item which does relate to the Final Certificate claim or the OLC claim, there will only be a 10 or 20 per cent reduction in that for CMC, where, in fact, there should be a 100 per cent reduction. [164] I accept that the ideal approach would have been for the costs assessor to have undertaken the approach as CMC submitted. But in the circumstances of this case, the size of the task facing the costs assessor was mammoth; not only in terms of time and expense, but also in terms of logistics - on one view near impossible, given that a number of items which related to the closing submissions were not identifiable to any particular aspects of the case.83 For example, examining various documents in preparation for drafting the client’s closing submissions in respect of the chronology.84 [165] In my view, there was (and as WICET submitted), “no perfect way to conduct an apportionment of costs of this kind.”85 Overall, I am not satisfied that the costs 81 CMC’s submissions dealt with why items in respect of the Delay Claim should not be apportioned as they were not severable. WICET had made submissions to the costs assessor that an apportionment was appropriate, but the costs assessor did not allow that submission and WICET does not challenge that aspect of the costs assessor’s decision. It accepts that the items of cost claimed by CMC, with respect to its Delay Claim, should not be reduced. 82 T2-39. 83 See document marked for identification ‘A’. 84 T 2-39 ll 45-46. 85 WICET’s written submissions in response to CMC’s application for review at [182]. -- 45 of 93 -- 46 assessor was clearly wrong or erred in determining that an aggregate approach to apportioning between the claim and the counterclaim for closing submissions was necessary or proper. [166] Another example given by WICET is Item 4501: Cost item Amount claimed Objection Objection Objection in the alternative Notes of Costs Assessor Costs not allowed Examining and collating documents in preparation for taking James Barry’s statement (EK engaged 228 minutes) $1,117.20 $1,117.20 See general objection 1B - insufficient detail as to what is being examined to justify the claim of nearly 4 hours. See general objection 6 - reduce by 6% - Mr Barry. Objection sustained, reduction by 6% $67.03 [167] It is apparent that the costs assessor accepted WICET’s submission that certain costs items ought to be reduced on the basis that part of the work attributable to those items arose solely out of WICET’s counterclaim. I understand and accept why CMC might not agree with that approach. I also accept that there were other ways to approach this task. But in my view, the costs assessor’s decision was within the reasonable bounds of his discretion and was not clearly wrong. [168] CMC pointed to the approach taken to the apportionment of the costs associated with the evidence of the lay witness Mr Vance as being wrong because, whilst he was in the witness box for three or four days, only a small portion of his evidence related to counterclaim items, and therefore the better approach was to use the transcript. But as senior counsel for WICET submitted, apart from the examination of witnesses, this does not take into account the preparation involved. I accept that using the witness summaries was, perhaps, one way to proceed but I am not satisfied that there was error in the costs assessor proceeding in the way he did. [169] The appropriate reduction to be made was a question of fact within the costs assessor’s discretion. In this case, the costs assessor took an aggregate approach which, in my view, was a reasonable one in the circumstances, particularly given that there were over 400 pages of items in Schedule 4 (2,373 separate items). [170] I therefore reject CMC’s submission that in respect of the items that form part of ground four, the costs assessor has failed to identify which items are referable to both CMC’s claim and to either the Final Certificate claim or the OLC claim for the following reasons: (a) First: It is not correct to say that the costs assessor has not made any rational apportionment between these claims. It is apparent that what he has done, in most instances, is to accept the percentage reduction advanced by WICET in General Objection 6 and Annexure D to the notice of objection, which was not arbitrary but advanced on a reasonable basis. In other instances, the costs assessor has adopted a lesser percentage reduction than that advanced by WICET;86 86 As senior counsel for CMC pointed out at T1-48 ll 19-26. -- 46 of 93 -- 47 (b) Secondly: Both parties made detailed submissions on this issue with the costs assessor ultimately accepting the percentage reductions submitted by WICET in most instances. The issue of what costs items should be reduced because of the overlap and how much that reduction should be, is a question of fact with in the costs assessor’s discretion; and (c) Thirdly: The extent of any appropriate percentage reduction was, in my view, a matter within the costs assessor’s discretion and is not subject to review by this court. Failure to consider the relevant documents [171] CMC also contended that the costs assessor failed to take into account a relevant consideration (the content of its solicitor’s files) and merely relied upon the assertions of WICET without in any way checking or verifying the submission made as to an allegedly appropriate reduction. [172] I found this aspect of CMC’s submission confusing. It appeared to contend that the costs assessor was at fault for failing to consider documents on CMC’s solicitor’s file (which CMC appeared to say were not provided to the costs assessor). Yet in the submission made by CMC to the costs assessor on this topic (in response to WICET’s notice of objection), it submitted as follows: “9.11 The assessor (with the benefit of CMC’s file) is in a unique position to examine the costs CMC incurred in addressing the counterclaim and make appropriate reductions (and not guesses). In considering these costs, CMC submits that the assessor should note that the costs incurred by CMC in relation to the counterclaim were few, as much of the counterclaim was WICET simply pleading the return of moneys paid in the adjudications for the items CMC claimed in the proceedings. As a result there were no significant factual, legal or technical disputes unique to the counterclaim. This is evidenced in the pleadings and in the trial decision as set out below.” [173] It follows that I accept WICET’s submissions that if CMC’s solicitor’s files were in fact provided to the costs assessor (as CMC had said was the case), CMC has no reasonable basis for a submission that those files were not considered by the costs assessor in determining the suitability of the percentage reductions contended for by WICET. Disallowance of items before counterclaim [174] Finally, CMC submitted that the costs assessor’s approach to disallowing costs was on the basis that they were attributable to the counterclaim before that counterclaim was brought (for example, Item 132) was wrong. I accept that some of the costs items to which the percentage reductions were applied were items dated before the counterclaim was filed. But I am not satisfied this was a demonstrable error that justifies the matter being sent back to the costs assessor for the following reasons: (a) First: It was appropriate for such an approach to be taken in this case, given that the basis on which the percentage reductions were made was by reference to the total costs incurred by CMC in respect of a particular type of task (for -- 47 of 93 -- 48 example, disclosure or work associated with a particular witness). It follows that the quantum of the percentage reduction did not take into account when that particular work was performed, nor could it; (b) Secondly: The effect of WICET’s argument (which was accepted by the costs assessor), is that the best way of apportioning the costs between the claim and counterclaim, was to identify that a certain percentage of a particular work item (for example, disclosure or the preparation of a particular witness) was attributable to the counterclaim. For example, in the case of the witness Mr Barry as set out above, the portion of his evidence that dealt with counterclaim issues was six per cent, and so it was assumed that six per cent of all the work done in respect of that witness was attributable to the counterclaim. This percentage was not worked out on the basis of when particular work was conducted – it was calculated on the basis of how much of the witness’s evidence was referrable to the counterclaim; (c) Thirdly: It would be wrong to remove from the percentage calculation the work performed prior to the counterclaim being filed. That is because the percentage reduction necessarily operated on the basis that six per cent of all work performed in respect of the witness Mr Barry was referrable to the counterclaim – not that six per cent of work performed after the counterclaim was filed was referrable to that witness. As a matter of logic then, I accept that the percentage reduction needed to be applied to all work referrable to that witness. The same applied to any work item (for example, pleadings, disclosure, etc) to which a percentage reduction was applied; and (d) Fourthly: Whilst there may have been other appropriate ways to determine this issue, it was open to the costs assessor (in the exercise of his discretion) to apply the percentage reduction across all relevant costs items in determining what fees were necessary or proper. Even if some of those costs items were for costs incurred prior to the counterclaim being filed. Ground five: Care and conduct costs [175] A number of items in the costs statement sought an uplift on CMC’s solicitors’ fees as follows: (a) Item 19400:87 “The plaintiff submits and relies on the submission provided as a preamble to the Costs Statement that the matter was one of substantial complexity and importance to the parties and warrants an allowance as allowed for in UCPR 691(5) & (6) in an amount of 30%”. (b) Item 19401:88 Item 1 [of the Scale of Costs (excluding the costs incurred in respective of the costs assessment itself)]: “General Care and Conduct included in this claim are instructions generally throughout the proceeding including allowance for all attendances and perusals not herein specified, general care and consideration at 35% given the nature and importance of the matter, the 87 CMC claimed $1,048,335.41 under this item. 88 CMC claimed $1,589,975.31 under this item. -- 48 of 93 -- 49 issues involved, the parties involved, the extent of the material involved, time necessary engaged in research and consideration of facts and law, skill care and responsibility (35% of $4,542,786.79)”; and (c) Item 19434:89 General care and conduct claimed in relation to work undertaken in the assessment of costs in accordance with paragraph 19 of Remely v O’Shea & Ors (No 2) [2008] QSC 218 at 35% of $119,457.90 (Items 19402 to 19433 only)”. [176] Overall, CMC claimed a total of $2,680,121.06 in uplift fees. This equated to just under 25 per cent of the total costs and outlays claimed in the costs statement. [177] It is instructive to observe at the outset, that in claiming two uplifts on its professional fees, CMC submitted (on this review) that the effect of these claims before the costs assessor was an uplift for care and conduct in a combined amount of 65 per cent.90 But I reject this submission as it overlooks that the 30 per cent uplift under UCPR r 691(5) applied to the entirety of the costs allowed under the Scale (including any uplift under Item 1 of the Scale of Costs for care and consideration). It follows that CMC was, in fact, asking for more than a straightforward 65 per cent uplift. [178] By way of response to these claims for care and conduct costs, WICET: (a) objected to the entirety of the claim made in Item 19400; (b) conceded the claim under Item 19401 (to the extent that this calculation should be made on the costs as allowed only); and (c) objected to the percentage claimed under Item 19434, and submitted that the rate of 25 per cent was appropriate. [179] The costs assessor upheld the claim under Item 19401 on the allowed costs of $2,482,512.00. He assessed this amount at $843,491.47. The parties agreed that the costs assessor’s arithmetic miscarried in the calculation of this amount and that correct amount for care and conduct is $892,232.86.91 I order and direct that the costs assessment certificate be varied accordingly. [180] As to the other two claims for general care and conduct, the costs assessor determined as follows:92 (a) Item 19400: The costs assessor upheld WICET’s objections and disallowed any amount for this item; and (b) Item 19434: The costs assessor allowed this claim on the basis that 25 per cent was the appropriate amount for the uplift (i.e. he accepted WICET’s submission about the correct percentage). 89 CMC claimed $41,810.27 under this item. 90 CMC’s submissions at [135]. 91 Document marked for identification “H”. T1-58 ll 45-46. 92 Overall, the costs assessor disallowed around $1,811,242.00 of the care and conduct costs. -- 49 of 93 -- 50 [181] Against this general background, CMC submitted the costs assessor erred in disallowing around $1,811,242.00 of the care and conduct costs claimed in the following two ways: (a) First: He was manifestly wrong in exercising his discretion to disallow these “Care & Conduct Costs”; and (b) Secondly: He failed to give adequate reasons for his decision to exercise his discretion in the way he did. [182] These grounds are, of course, focussed on the costs assessor’s decision about Items 19434 and 19400 – with the most significant disallowance being the latter. [183] It is necessary therefore to set out the provisions of the UCPR which provide for an allowance as to general care and conduct, together with the relevant authorities considering such principles. Legal principles: care and conduct [184] There are two separate bases under the UCPR for the allowance of additional amounts on an assessment of costs. This contention did not appear to be a matter of contest between the parties on the review application. Although, the legal availability of two appeared to be challenged by WICET before the costs assessor. [185] The starting point is UCPR r 691 which relevantly provides as follows: (1) For assessing costs on the standard basis, an Australian lawyer is entitled to charge and be allowed the costs under the scales of costs for work done for or in a proceeding in the court. (2) The scales of costs are in— (a) for the Supreme Court and District Court—schedule 1; or (b) for Magistrates Courts—schedule 2. … (5) If the nature and importance, or the difficulty or urgency, of a proceeding and the justice of the case justify it, the court may allow an increase of not more than 30% of the Australian lawyer’s costs allowable on an assessment under the relevant scale of costs. (6) A costs assessor has the same authority as the court under subrule (5). [Underlining added] [186] Item 1 of Schedule 1 provides for an uplift to be allowed on all other costs assessed pursuant to the scale to reflect general care and conduct as follows: “General care and conduct In addition to an amount that is to be allowed under another item of this schedule, the amount that is to be allowed for a solicitor’s care and conduct of a proceeding is the amount the registrar or a costs assessor considers reasonable, in accordance with any -- 50 of 93 -- 51 guidelines issued in a practice direction by the Chief Justice and having regard to the circumstances of the proceeding, including, for example— (a) the complexity of the proceeding; and (b) whether the proceeding is in the Supreme Court or the District Court; and (c) if the proceeding is in the Supreme Court—whether the proceeding could have been brought in the District Court; and (d) the difficulty and novelty of any question raised in the proceeding; and (e) the importance of the proceeding to the party; and (f) the amount involved; and (g) the skill, labour, specialised knowledge and responsibility involved in the proceeding on the part of the solicitor; and (h) the number and importance of the documents prepared or perused, without regard to the length of the documents; and (i) the time spent by the solicitor; and (j) research and consideration of questions of law and fact.” [187] Supreme Court Practice Direction 22 of 2018 sets out guidelines for the awarding of an additional amount under Item 1 of Schedule 1 of the UCPR as follows: [1] The amount allowed will normally be calculated on the basis of a percentage of the total amount otherwise allowed for costs (not including outlays) on the costs statement, although it may be rounded up or down to some small extent. [2] The percentage allowed should take into account the matters listed in Item 1 in the Schedule. Any special significance of the proceeding to the client should not be relevant to an assessment on the standard basis unless the special significance involves the party liable to pay, so that it is fair to that party to have regard to it. [3] The percentage allowed should, in the absence of exceptional circumstances, fall within the range stated below for the applicable type of matter, and be scaled according to the nature of the matter within the range of matters covered by the item. [Underlining added] [188] Item D to the Schedule to the Guidelines provides that a “Complex claim not otherwise specified, where the amount involved is above $2 million” should fall within the range of 25-35 per cent. The present case falls within this category. CMC submitted for the top of the range percent (of 35) as a reasonable uplift based on various factors such as the nature and importance of the matter, the issues involved, -- 51 of 93 -- 52 the parties involved, the extent of the material involved, time necessarily engaged in research and consideration of facts, law, skill, care, and responsibility.93 [189] The costs assessor’s reasons for allowing an uplift on Item 19401 are brief. He simply stated, “objection sustained at 35 per cent of $2,482,512.46”. The reference to the objection being sustained must be seen in the context of WICET’s submissions about this item (that it agreed to the percentage being applied to the fees as assessed but not to the amount CMC had actually claimed). Given the lack of contest over this item, it is hardly surprising that the costs assessor did not provide any “reasoning or justification.”94 It is reasonable to infer, as I do, that the costs assessor accepted CMC’s submission as to its entitlement to an uplift (as did WICET – subject to the amount). His brevity is both understandable and reasonable, and certainly not inadequate. [190] CMC’s written submissions also maintained that “having regard to the complexity of the matter”, this was a case of “exceptional circumstances” and that the costs assessor “should not have, in effect, limited the uplift to that provided in the Practice Direction.”95 But I reject this submission. It is an unfair criticism of the costs assessor and one that cannot be maintained on the facts. CMC did not submit to the costs assessor that there were “exceptional circumstances” within paragraph [3] of the Practice Direction warranting an uplift above 35 per cent. Instead, CMC claimed a further 30 per cent uplift separately under UCPR r 691(5) due to the complexity of the case. [191] As I stated at the outset of this section, I accept that there are two separate heads under the UCPR by which an award of costs may be uplifted, namely r 691(5) and Item 1 of Schedule 1. This finding is consistent with the natural reading and the plain terms of both r 691(5) and Item 1 of Schedule 1 (the latter when read with the Practice Direction). Rule 691(5) is limited to an uplift of 30 per cent, whereas the Practice Direction permits (other than in exceptional circumstances) an uplift of up to 35 per cent. There is no reason to read one as being exclusive of the other. [192] The interaction of these two provisions does not however appear to be the subject of any previous judicial consideration in this jurisdiction. But as both sides usefully identified, UCPR r 691(5) is in similar terms to r 63.34.3 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). And that provision has been judicially considered. [193] In Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) [2001] VSC 477, Eames J discussed the relevant authorities and the need for there to be “special grounds” or “something very out of the ordinary” for rule 63.34.4 to be invoked, as follows:96 “[6] The relevant principles have been discussed in a number of cases. In Jenkins v G.J. Coles & Co, Hayne J held that the Rule required that special grounds arising out of the nature and importance, or the difficulty or urgency of the case be established. In City of 93 This was the correct approach; see the observation of Philippides JA (with whom Fraser JA and Ryan J agreed) in Thompson v Cavalier King Charles Spaniel Rescue (Qld) Inc [2020] QCA 2 at [26]. 94 CMC’s submissions at [136]. 95 CMC’s submissions at [141]. 96 Toomey v Scolaro’s Concrete Constructions Pty Ltd (in liq) (2001) VSC 477 at [6]-[8],[11]. -- 52 of 93 -- 53 Warrnambool v Tabone in the judgment of the Full Court, Fullagar J held that the Rule was confined to cases “where the nature and importance or the difficulty or the urgency gives rise to some special ground, over and above the importance or difficulty or urgency itself, for ordering that the charges available in accordance with the scales in the appendices should be increased.” His Honour added: “…merely to say that the case has been especially difficult and substantial is only to say that it was very difficult and substantial. The Rule requires something over and above difficult and substantial which arises out of the difficulty and substance and something which is special in its character or very much out of the ordinary…” [7] In Alucraft Pty Ltd (In Liq) v Grocon Ltd, Smith J held that notwithstanding the fact that the case was long, hard fought and had issues requiring considerable preparation: “it must be shown that there was something more and significantly more involved than simply the conduct of heavy litigation.” [8] This case ran for some 57 days. There were many witnesses and at various times up to ten defendants actively participated through counsel. There were a multitude of issues, both legal and factual, and responsibilities of counsel and solicitors for the plaintiff, I have no doubt, were considerable. It was “heavy” litigation in those senses, and I would not be surprised if it was concluded by the Taxing Master that recognition need be given to that when allowing particular items claimed on costs. This Rule is concerned with an application to increase solicitor’s charges. Counsel for the plaintiffs indicated that when the matter comes before the Taxing Master it is likely that allowance will be sought for three counsel and also for daily preparation fees to be allowed for counsel. … [11]In my opinion, this is a case which could be deemed special for the purpose of Rule 63.34. It is appropriate that the Taxing Master have the authority to increase the solicitor’s costs by reference to the Rule if he so rules, and then deems it appropriate to make any such allowance. His decision will depend on the evidence presented to him, having regard to the principles discussed above. The application to him for a general increase in solicitor’s costs may be accompanied by applications, in the exercise of his general discretions under the Rules, to allow for three counsel and for daily preparation fees. In the event that such evidence is provided it is a matter for the discretion of the Master as to whether to make such allowances.” (Footnotes omitted) [Underlining added] -- 53 of 93 -- 54 [194] As emerges from the last passage, Eames J considered that the case before him “could” be deemed such a special case but that it was a matter for the taxing master’s discretion in light of the evidence before him and with regard to the relevant legal principles. Alleged errors [195] CMC submitted that the costs assessor errored in law in the following two ways: (a) First: He gave no reasons for disallowing Item 19400 (the uplift under UCPR r 691(5)); and (b) Secondly: In not allowing the uplift under UCPR r 691(5), he wrongly sustained an objection by WICET that the uplift it sought under this rule duplicated the uplift for general care and conduct under the scale, when this was incorrect because there was no duplication, as item 1 of the Scale of Costs and r 691(5) “are separate heads of award”. [196] These contentions must be considered in the context of the following matters: (a) First: The reason he gave was “Objection sustained”. But that reason must be seen in the context that his reasons set out each parties’ perspective as reflected in their various submission to him as follows: (i) WICET submitted that CMC “has claimed two uplift amounts - see General objections as to same – disallow the claim in full as claimed in error and as essentially a duplication of the claim at 1940”; (ii) CMC submitted that “The UCPR makes provision for the uplift. The case cited in the Notice can be distinguished in that case the outcome for the plaintiff was relatively minor. This is not the case here as had been established in the Submissions, the introduction and the General Responses”; (iii) WICET responded “See Reply sections 2 and 4 – paragraphs 4.20 – 4.27 of the Notice of objection. The Costs Applicant has provided no basis whatsoever for the claiming of this second uplift fee.” (iv) Relevantly, those sections of the notice of objection provided as follows:97 “CMC improperly claims two uplifts on its professional fees: (a) at item 19400 of the Costs Statement, CMC claims an increase on allowable Scale costs of 30%, pursuant to rr 691(5) and (6) of the UCPR. It claims $1,048,335.41 on this basis. (b) at items 19401 and 19434 of the Costs Statement, CMC claims an uplift for general care and conduct of 35% pursuant to Item 1 of the Scale. For that uplift, it claims $1,589,975.38 (item 19401) and $41,810.27 (item 19434). 97 WICET’s notice of objection at [4.20] to [4.27]. -- 54 of 93 -- 55 In the premises, a total of $2,680,121.06 is claimed in the Costs Statement for uplift fees. This equates to just under 25% of the total costs and outlays claimed in the Costs Statement. For the following reasons, there is no basis for the additional amount claimed by CMC at item 19400. First, the claim is duplicative. The claim pursuant to r 691 of the UCPR duplicates the claim under Item 1 for care and conduct. Both cannot be claimed. That the two items are duplicative is apparent from a textual analysis. Rule 691(5) applies if the “nature and importance, or the difficulty or urgency, of a proceeding…justify it”. Scale Item 1 is to compensate a party for “complexity”, “difficulty and novelty”, “importance of the proceeding” (among others). Secondly, the proper application of the Scale requires any uplift to be pursuant to Scale Item 1. Rule 691 of the UCPR was introduced by the Uniform Civil Procedure Amendment Rule (No. 4) 2007 (Qld) and took effect on 1 January 2008. Subsequent to that date, the Court has prescribed the uplift that should be applied to the Scale in the complex matters: see Practice Direction 22 of 2018 issued by the Chief Justice on 10 September 2018. This matters fits within section D of the Practice Direction, such that a percentage uplift of between 25% and 35% is appropriate. CMC claims that uplift at items 19401 and 19434. Thirdly, and in any event, there are otherwise no exceptional circumstances in these proceedings, including in relation to its nature and importance, or the difficulty or urgency of the proceedings, which justify an uplift pursuant to r 691(5) of the UCPR (at all or over and above that allowed at Scale under Item 1 for general care and conduct). This was a large heavily contested case, but not an unusually complex one. Fourthly, and in any event, for the purposes of r 691(5), the “justice of the case” does not require an increase to the Scale (over and above care and conduct). In that regard: (a) as outlined repeatedly above, CMC achieved very limited success on the overall outcome of the case. The claim and counterclaim resulted in a net payment by WICET to CMC of $625,741.77 (of $14.5 million claimed); (b) an application was made to the Court under r 691(5) of the UCPR in PMB Australia Ltd v MMI General Insurance Ltd & Ors (No 2) [2001] QSC 339. The plaintiff had been successful in the proceeding, but the order for a r 691(5) increase was disallowed having regards to the relatively low outcome for the plaintiff on its claim. At [35] Mullins J stated: “Because of the great disparity between the claim made by the plaintiff for the sum of $4,795,000 in the statement of claim at -- 55 of 93 -- 56 the commencement of the trial and the sum of $538,707 (before interest under s 57 of the Insurance Contracts Act) for which it has been successful, the justice of the case does not require an order under r 690(5) of the UCPR increasing the solicitor’s costs allowed in the assessment of the plaintiff’s costs of the proceeding.” Fifthly, CMC did not seek a r 691(5) increase during the costs hearing. If it was to be sought, it should have been sought at the time. Flanagan J was in the best position to determine if the circumstances of the case warranted it. Instead, his Honour awarded CMC the costs of the claim - such costs to be assessed on the standard basis.” (b) Secondly: On 23 November 2022, the solicitors for CMC wrote to the costs assessor and, among a myriad of requests, asked for: “Your reasoning for disallowing item 1940 (complexity).” The costs assessor responded to this request on 22 December 2022, stating that “Regarding 19400, I decided not to allow that claim as I considered all of the Plaintiff’s costs I allowed, sufficiently rewarded the Plaintiff.” Did costs assessor even consider the question of a further uplift? [197] It is reasonable to infer, as I do, that the costs assessor carefully considered each parties’ submissions on this issue. WICET’s submissions were multi-faceted. The costs assessor did not expressly state which point he accepted in sustaining the objection (and most relevantly that he did not accept WICET’S contention that a second uplift was not available). But it is implicit from the subsequent correspondence on 22 December 2022, that the costs assessor rejected the latter proposition and that he had turned his mind to whether a further uplift was reasonable, necessary or proper in the circumstances. In doing so, he reached the view that CMC has been sufficiently compensated for its fees. Duplication [198] The possibility of duplication has been addressed in a similar context in Victoria - as between rule 63.34(3) (the Victorian equivalent to rule 691(5)) and rule 63.48 which provides for a discretionary uplift akin to Item 1 of the Scale of Costs of the UCPR. [199] This overlap is helpfully discussed by G E Dal Pont in the “The Law of Costs” as follows:98 “There is considerable overlap between the language governing the discretion utilised in r 63.34(3) to justify an increase in costs allowable and that utilised in r 63.38(2) vis-a-vis the taxing officer’s exercise of discretion as to quantum. It follows that, to avoid double dipping, an order for a loading under r 63.34(3) must be taken into account when assessing whether a loading under r 63,48 is appropriate: Williams v AusNet Electricity Services Pty Ltd (No 3) [2017] VSC 528 at [27] per Wood AsJ (who, having allowed the maximum 30 per cent loading under r 63.34(3), perceived little work left for r 63.48 to do, and so 98 Dal Pont, Law of Costs, 4th ed, LexisNexis, Australia, 2018 at 15.68 footnote 382. -- 56 of 93 -- 57 allowed only a 5 per cent loading under the latter provision, given the volume of documents: at [34] to [37].” [200] The following observations from Wood AsJ in Williams v AusNet Electricity Services Pty Ltd (No 3) [2017] VSC 528 (referred to by Dal Pont) are most instructive on this issue:99 “[27] The discretion to be exercised under r 63.48 is premised with the words Except where these Rules or any order of the Court otherwise provides. The question could be posed Is the wording of r 63.34(3) together with a finding and exercise of a discretion in relation to all those same matters otherwise providing for the purpose of r 63.48? On the assumption that the factors exist to satisfy and justify the maximum under r63.34(3) of 30%, is there double dipping for these factors by adding a further loading under r 63.48? The wording except where these Rules or any order of the Court otherwise provide clearly accommodates the situation where allowances for the same factors elsewhere via r 63.34(3) impacts on any ability to make an allowance for the same matters in r 63.48. An order for a loading under r 63.34(3) therefore has to be taken into account when assessing whether a loading under r 63.48 is appropriate. … [34] The maximum 30% loading under r 63.34(3) has covered most of the factors in r 63.48 and the latter rule is applied subject to r 63.34. There is little work left for r 63.48 to do given the narrow scope of the categories that do not overlap between the two rules. The most significant one is contained in r 63.48(2)(d), which in part includes the number and importance of the documents, perused, regardless of length. It is apparent that Mr Arnold has utilised folio rates for the discovered and subpoenaed documents rather than actual time spent.36 This approach favours Maddens as the folio rate is set at a generous allowance on the assumption that a document might be examined on more than one occasion. He gave evidence that he removed the hours spent on documents from his calculation and assessed them on pages and folios.37 However, it is also clear that he has quite fairly modified the full folio rates to 5%, 25% and 35% for some of the documents to allow for scanning, and examining rather than claim the full perusal rates. The volume of documents is significant. His report discloses 187,011 pages of discovery, 10,254 pages of subpoenaed documents and a further 4,150 documents comprising 89.5GB.38 [35] There are two other comments that can be made. First, it was clear on the face of the Costs Agreement that a 30% loading under r 63.34 was the basis of Maddens taking on the matter and this was accepted by the client at the outset. Secondly, a further loading under r 63.48 is not immediately apparent to the client from the Costs Agreement as it is buried in Appendix A. It is not apparent to the client that an additional unspecified loading over and above the 30% and 25% uplift 99 Williams v AusNet Electricity Services Pty Ltd (No 3) [2017] VSC 528 at [27], [34]-[37]. -- 57 of 93 -- 58 fee was potentially in play. For that reason restricting the loading to 30% with an uplift of 25% could be concluded to be a fair and reasonable result. [36] However, in view of the volume of documents, being a consideration absent from r 63.34 and specifically referred to in r 63.48, I am prepared to allow 5%> under r 63.48. Conclusion [37] The maximum loading of 30% under r 63,34(3) on all work (including clerical or administrative) is a reasonable allowance particularly given it was flagged in the Costs Agreement. The overlap of factors in rr 63.48 and 63.34(4) make it inappropriate to allow a significant loading under r 63.48. A loading of 5% is appropriate given the volume of documents. The application of loadings under both rr 63.48 and 63.34(3) is appropriate in this matter. The loading of 30% under r 63.34(3) to all the proceeding is appropriate and a loading of 5% under r 63.48 is appropriate.” [Underlining added] [201] In Schmid v Skimming [2020] VSC 493, Forbes J also relevantly observed as follows:100 “First the scale loading provided for in the rules applicable for the skill care and attention, a matter ordinarily in the discretion of the Court in the application of the costs rules. Ms Dealehr ultimately assessed this at 30%. Second the special grounds loading also at 30% as provided for in the costs agreements relying on Rule 63.34. If both of these loadings apply, then duplication should be avoided.” [Underlining added] [202] In Schmid, Forbes J also found that if there were to be an allowance under rule 63.34, there would need to be consideration for an adjustment of any uplift under the scale to avoid “double dipping.”101 This, of course, makes perfect sense, given the degree of overlap between the considerations relevant to the award of an uplift under rule 691(5)), and those that would support an uplift under Item 1 of the Scale of Costs. [203] The following (current) commentary to UCPR r 691(5) in the LexisNexis annotations to the UCPR also supports the finding that an overlap between the two allowances is possible, and that duplication should be avoided: “In the Supreme and District Courts, the factors listed for consideration by the court under r 691(5) are factors already taken into account under item 1 of the respective courts’ scale of costs. It is submitted that justice would not be done by doubly rewarding the solicitor for the same factors — once under r 691(5) and once under item 1 of the scale. Accordingly, where an allowance is made by the Supreme and District Courts under r 691 (5), it is submitted that the 100 Schmid v Skimming [2020] VSC 493 at [88]. 101 Ibid at [101] and [115]. -- 58 of 93 -- 59 costs assessor would take this into account in deciding what further allowance, if any, is warranted under item 1.” Summary of conclusions as to these errors [204] On this analysis, it follows that I reject CMC’s submissions that the costs assessor: (a) failed to give adequate reasons for his decision to refuse an uplift under UCPR r 691(5);102 and (b) failed to consider the issue of whether a further uplift under UCPR r 691(5) was reasonable, necessary or proper in the circumstances. [205] I am also satisfied that it was open for the costs assessor to disallow a further uplift under rule 691(5) on the grounds that the allowance pursuant to Item 1 of the Scale of Costs was sufficient, i.e., that any further allowance would duplicate what had already been allowed under the Scale. Item 19400: uplift under UCPR 691(5) [206] The real issue is whether the costs assessor erred in finding that an additional uplift was not warranted. CMC submitted that it was because of the “complexity and importance of the proceeding”, which it described as “heavy”.103 [207] Apart from contending there has been a “duplication” WICET also objected to the uplift under UCPR 691(5) on the following two grounds: (a) First: That there were no exceptional circumstances in relation to the case’s nature and importance, or difficulty or urgency, that justified an uplift pursuant to rule 691(5); and (b) Secondly: The justice of the case did not require an increase to the costs allowed under the Scale of Costs. [208] In order to determine whether the costs assessor was clearly wrong or erred in disallowing a further uplift, it is instructive to examine some of the authorities that have considered this issue – albeit (and again) in the context of the Victorian rule 63.34(3).104 [209] In Jenkins v GJ Coles & Co Ltd [1993] 1 VR 155, Hayne J discussed the origins and history of rule 63.34 (3) relevantly observing as follows:105 R63.34(3) is in the same form as 0.65, r9 of the English Rules current in the late nineteenth century. Apparently that rule was made in order to assimilate practice between the common law and chancery sides in Britain. In Williamson v North Staffordshire Railway Co (1886) 32 Ch D 399, Bowen LJ said, at p. 401, in the course of argument in that case: "This is an important question, and I believe there has been a 102 And for the more general reasons outlined under the heading “Adequacy of Reasons” earlier in these reasons. 103 CMC’s submission at [137]. 104 These authorities were helpfully gathered in WICET’s written submissions in response to CMC’s application for review [214] to [218]. 105 Jenkins v GJ Coles & Co Ltd [1993] 1 VR 155 at 156. -- 59 of 93 -- 60 difference in practice between the Common Law and the Chancery Divisions. On the common law side it has been almost impossible to get costs on the higher scale. I remember a very complicated and difficult case in which the Duke of Norfolk was a party, which involved questions of law, and the Court refused costs on the higher scale. The rule seems to have been intended to assimilate the practice of the two Divisions." However this may be, the words of the rule indicate that what must be shown is special grounds arising out of the nature and importance, or the difficulty or urgency of the case. Cotton LJ, at p, 402, in giving the judgment of the court in Williamson's Case, said: "Although this case is one of importance and of extreme difficulty I do not think that there are in it special grounds arising out of the nature and importance or the difficulty or urgency of the case. I have great difficulty in understanding the meaning of the rule, and it is not necessary for us to determine its construction, but I think that in the present case, though important and' difficult, there are no special grounds arising out of its importance or difficulty to justify us in giving costs on the higher [sic] This approach to the rule adopted in Williamson's Case was repeated by the Court of Appeal in England in Paine v Chisholm [1891] 1 QB 531. In that case. Lord Esher MR said, at p. 534: "In my opinion the application of this rule giving power to allow costs on the higher scale ought to be strictly limited. I think that the proper rule of conduct with regard to the exercise of the discretion should be a strict rule." [Underlining added] [210] In Jenkins, Hayne J also made the further two observations which are particularly apposite to the present case:106 (a) First: That the mere fact that the work of the practitioners has been done well and efficiently is not enough to warrant an order under r 63.34(3);107 and (b) Secondly: It is also not enough to show that the case has been a “heavy” one. [211] A similar approach was adopted by the Full Court in The City of Warrnambool v Tabone, in which Fullager J (with Brooking and Marks JJ agreeing) stated as follows:108 “It was maintained here and below that this was a "heavy case". I am prepared to deal with the appeal upon the footing that it was a "heavy case"...But it must be said at once that there are very many very heavy cases that are not sufficiently special or out of the ordinary in their characteristics or requirements to qualify under the rule. I am quick to acknowledge that over the last two decades the work of our profession in all its branches, including the Bench, has become steadily more difficult and more demanding. 106 Jenkins at 157. 107 Jenkins at 157 referring to Rivington v Garden [1901] 1 Ch. 561 at 569; and Assets Development Co Ltd v Close Brothers and Co. [1900] 2 Ch 717. 108 The City of Warrnambool v Tabone, unreported, 25 August 1992 BC9203233 at 4 to 5. -- 60 of 93 -- 61 But decisions of high authority and respectable antiquity show that the Rule now in question requires, in addition to difficulty and heavy burdens, a quality of "speciality", of being something out of the ordinary, other than and in some way arising from onerousness or difficulty or urgency or character of the case in question. The Rule appears to have been in existence, in the same form as it now appears in Victoria, from the very enactment of the Judicature Act in England, and the scope of the Rule has been authoritatively delineated in the Court of Appeal in England by what I might call, with respect, very strong courts in the late nineteenth century. In my opinion there is no reason shown for departing in this State and in this era from the construction of the Rule so laid down. The identical English Rule has been construed in a way which not merely confines it to cases which are important or difficult or urgent, but confines the existence of the discretion to a class of cases where the nature and importance or the difficulty or the urgency gives rise to some special ground, over and above the importance or difficulty or urgency itself, for ordering that the charges available in accordance with the scales in the appendices should be increased. This conclusion is made perfectly clear in the judgment of Cotton LJ with which Bowen and Fry LJJ concur, in Williamson v North Staffordshire Railway Co [1886] 32 ChD 399. The ratio decidendi of their Lordships in dismissing an application for an allowance under the Rule is contained in the following very short reasons of Cotton LJ at p402: “Although this case is one of importance and of extreme difficulty I do not think that there are in it special grounds arising out of the nature and importance or the difficulty or urgency of the case. I have had great difficulty in understanding the meaning of the rule, and it is not necessary for us to determine its construction, but I think that in the present case, though important and difficult, there are no special grounds arising out of its importance or difficulty to justify us in giving costs on the higher scale.” [Underlining added] [212] The circumstances of Tabone, which were found insufficient to warrant an uplift under the relevant rule, were described by Fullager J as follows:109 “The trial lasted for twenty-one hearing days. Thirty-seven witnesses ware called, twenty-eight of them on behalf of the infant respondent. The respondent's solicitor said that he took proofs from twenty-two further witnesses who ultimately were not called. The matter was contested on all issues and, as the learned judge put it, there was a very real question of liability involved in the case, including whether the plaintiff himself voluntarily dived from the bridge. There was also a great deal of evidence going to damages, especially in the area of future economic loss. 109 The City of Warrnambool v Tabone, unreported, 25 August 1992 BC9203233 at 3. -- 61 of 93 -- 62 In an affidavit in support of the application of the respondent pursuant to r63.34 the experienced solicitor for the respondent deposed that he had been in practice for over fifteen years in the personal injuries jurisdiction for plaintiffs and defendants, and that he had conducted a number of lengthy trials in the Supreme Court, and he deposed that this case was tire most difficult and complex that he had ever undertaken.” [213] The following remarks of Smith J in Alucraft Pty Ltd (in liq) v Grocon Limited, are also apposite to the present case:110 “... I doubt if there could have been a more hard fought trial and in each of the cases the factual and expert matters involved much detail and considerable preparation both before and during the hearing. To obtain orders under either rule, however, it is necessary for the plaintiff to show some other special feature or features in the litigation which warrant such an order. It must be shown that there was something more and significantly more involved than simply the conduct of heavy litigation.” [Underlining added] [214] I accept that the proceeding was a complex one and that CMC’s description of it as being “heavy” is an apt one. This finding is consistent with the fact that: the trial ran for 36 days; there were 9 lay witnesses and 8 expert witnesses; the court book ran to 16 volumes; the agreed trial bundle comprised 1,213 items; 426 exhibits were tendered during the trial; and there were “thousands of documents” and a number of claims which necessitated the parties being requested to identify the specific findings of fact they sought.111 I accept too that the outcome of the proceeding was extremely important to the individual parties. But I do not accept that it was shown to be an important proceeding more broadly (if that is what is meant by CMC’s submission) or that it was an unusually complex or “significantly more involved than simply the conduct of heavy litigation.”112 Summary of findings: Item 19400 [215] I am not satisfied that CMC has established that the costs assessor was clearly wrong or demonstrated any error in the costs assessor’s disallowance of the further uplift under UCPR 691(5) for the following three reasons: (a) First: On a proper interpretation of rule 691(5), the reasons advanced by CMC do not justify an uplift to its costs under that rule; (b) Secondly: If the costs assessor rejected the uplift sought under rule 691(5) on the grounds that this would duplicate the uplift allowed under Item 1 of the Scale of Costs, he was entitled to do so; and (c) Thirdly: It was open for the costs assessor to have accepted the alternative submissions made by WICET on this issue - including that the circumstances were not sufficiently exceptional to warrant an uplift pursuant to rule 691(5). 110 Alucraft Pty Ltd (in liq) v Grocon Limited, unreported 25 May 1994 BC9401087 at 3. 111 Trial Judgment at [74]. 112 In the language of Smith J in Alucraft. -- 62 of 93 -- 63 Item 19434: Uplift of 25 per cent on costs [216] Costs Item 19434 claimed a further uplift in relation to the work undertaken in the assessment of costs as follows: “General care and conduct claimed in relation to work undertaken in the assessment of costs in accordance with paragraph 19 Remely v O'Shea & Ors (No 2) [2008] QSC 218 at 35% of $119,457,90 (Items 19402 to 19433 only).” [217] In Remely v O'Shea & Ors (No 2) [2008] QSC 218 it was observed by McMeekin J that a “modest” additional allowance for care and consideration might be allowed in respect of the costs of an assessment as follows:113 “Although an amount for care and consideration was claimed in the bill up to the time of the preparation of the costs statement I can see no good reason why a further modest amount could not have been allowed for the work subsequently required, It was apparent that some work had been in fact required — including an attendance on the registrar for directions. Mr Remely attempted to adjourn that directions hearing. Attendance at a hearing where there is dispute must of necessity involve factors that legitimately attract such a fee.” [218] WICET did not object to an uplift on costs but submitted a 25 per cent uplift was appropriate. CMC pressed for 35 per cent in its Reply Submissions to the costs assessor. The costs assessor allowed the uplift but referred to the “Objection sustained” obviously because he accepted WICET’s submission as to the appropriate percentage figure. [219] CMC submitted that the costs assessor erred by wrongly allowing care and conduct at the lower of the range permitted by the Practice Direction. The error or principle is that he allegedly failed to take into account relevant considerations - namely the scale and complexity of the proceeding and the assessment. [220] I am not satisfied that CMC has demonstrated any error by the costs assessor in his assessment of Item 19434 for the following five reasons: (a) First: CMC’s contentions are mere assertions without any facts underpinning them. Rather, and to the contrary, the parties’ submissions and the correspondence between them and the costs assessor clearly reveals just how complex the costs assessment was; (b) Secondly: The complexity of the case was recognised by the costs assessor in his allowance of Item 19401 – at the top of the range percentage of 35 per cent as submitted by CMC; (c) Thirdly: The decision as to the quantum of the uplift on the costs of the assessment was a matter within the exercise of the costs assessor’s discretion; 113 Remely v O'Shea & Ors (No 2) [2008] QSC 218 at [19]; In Geatches v Anglo Coal (Moranbah North Management) Pty Ltd (No 2) [2014] QSC 136 at [37] Henry J observed that this reasoning was uncontroversial. -- 63 of 93 -- 64 (d) Fourthly: The costs assessor’s decision was within the range of the Practice Direction; and (e) Fifthly: This type of quantum decision is exactly the type of matter that courts loath to interfere with. Part Three: WICET’s application for review [221] WICET raised the following three grounds of review of the costs assessor’s decision: (a) Ground one: The costs assessor erred in allowing certain cost items for “examining various documents” despite there being inadequate particulars to support any reasonable assessment that the work claimed by those items was necessary or proper; (b) Ground two: The costs assessor erred in rejecting WICET’s objections in “General Objection 1B” of the notice of objection; and (c) Ground three: The costs assessor erred in determining that WICET must pay all of his fees in respect of the assessment and all of CMC’s costs of the assessment. Ground one: Lack of particulars [222] The costs statement included about 852 costs items (set out in Exhibit A) by which CMC claimed an amount of $691,867.57 (on a time basis), for “examining” various documents under Item 9 of the Scale of Costs”. At the relevant time, Item 9 provided as follows:114 Examining or comparing documents 9 Examining a document or comparing documents, if perusal is unnecessary— (a) By a solicitor—for each quarter-hour 73.50 (b) By an employee—for each quarter-hour 21.70 [223] WICET objected to these claims (before the costs assessor) for a number of reasons. Most relevantly, (in terms of the current ground of review), on the basis that the lack of particulars about each item made it impossible for it to properly form objections.115 [224] Some of the 852 items were allowed in full, others partially disallowed, and others disallowed in their entirety. The costs assessor reasons were short and varied and generally on the basis that the objection was “sustained” or “denied”, with reference to the notice of objection. In total, the costs assessor disallowed about $149,729.33.116 [225] WICET submitted that the costs assessor acted contrary to principle by allowing around $540,000 for the items listed in Exhibit A and that this court should vary that decision so that none of those items are allowed. 114 Between 2013 and 2018 when most of the costs of the proceeding were incurred. 115 WICET’s notice of objection at [1.4]. 116 During oral submissions at the review hearing, senior counsel for WICET confirmed that that WICET was not challenging the costs assessor’s decision to disallow approximately $150,000 but rather, the challenge was to all of the amount allowed. T3-14 ll 13-16. -- 64 of 93 -- 65 Analysis [226] The costs assessor’s task in assessing costs on the standard basis was to determine what costs were “necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.”117 [227] WICET complained that each of the cost items listed in Exhibit A (with some minor exceptions) claimed a sum for “examining various documents” without stating: (a) what the relevant documents were; (b) what kind of documents were involved; (c) how long the documents were; and (d) what kind of information the documents contained. [228] A costs statement must of course contain sufficient detail to enable the party liable to pay the cost, to understand the basis for the cost, prepare an objection to the costs statement, and obtain advice about an offer to settle the cost.118 The obligation under this section is to provide “sufficient detail” to enable the party liable to pay costs to “understand the basis for the cost.” It follows that a costs statement is not a pleading – and it will therefore usually contain shorthand descriptions of the items claimed by reference to the Scale of Costs in Schedule 1 to the UCPR, as happened here. [229] The costs statement in this case is an extremely lengthy one – running over 2,500 pages. It contains sequentially numbered items in chronologically dated order of the claimed costs. Each item has a description and the sum claimed as costs for it. For items which include a claim under Item 9, the total amount of time claimed for that item is included. For example:119 (a) Item 3618:120 “Examining various documents in preparation for conference with King Planning arranging further searches on the Ringtail and considering progress claims (JN engaged 180 minutes).” (b) Item 840:121 “Examining various documents including considering additions to the Statement of Claim for the purposes of addressing issues raised by the Defendant (CB engaged 420 minutes).” (c) Item 5812:122 “Examining various documents in relation to the client’s claim and considering obtaining Quantity Survey Expert Evidence for the purposes of providing advice to the client (engaged 204 minutes).” [230] I accept that a costs statement on its face should adequately describe the work performed. But it does not necessarily mean that if does not then the claim must fail. 117 UCPR r 702(2). 118 UCPR r 705(2). 119 As set out in paragraphs [28] to [35] of WICET’s written submissions. 120 The objection was rejected on the grounds that “the work done was (sic) the purposes on the ongoing litigation. 121 The bulk of the claim was allowed – the disallowed portion was rejected on the basis that some of CMC’s costs related to the counterclaim costs and not costs of the claim. 122 The objection was rejected on the grounds “Objection denied insufficient particulars”. -- 65 of 93 -- 66 [231] If an item is objected to, the costs assessor can consider the objection by, amongst other things, reviewing the solicitor’s file – that is what WICET told the costs assessor to do in this case. [232] WICET submitted that on the face of the costs statement, it was not possible for it to have made any reliable determination as to whether the time spent conducting the alleged “examination of unspecified documents” was necessary or proper. But this submission overlooks three things: (a) First: That as a matter of fact, WICET was able to and did make objections to all of these items; (b) Secondly: That it is clear from the cross-referencing in the costs assessor’s reasons, and his item-by-item rejection or acceptance of the objections, that WICET’s objections were carefully considered by him; and (c) Thirdly: By its notice of objection – WICET required verification of each, and every item claimed. [233] WICET also submitted that the costs assessor must necessarily have concluded both that the examination of the documents in question was necessary and that the time devoted to that examination was reasonable; but without knowing more about the documents, the costs assessor could not have done this. I accept the former submission, but I reject the latter because it overlooks that by its notice of objection, WICET expressly demanded that for any items the costs assessor “is minded” to consider, CMC should be made to produce among (other things) the “file in full.”123 As stated repeatedly throughout these reasons, I am satisfied that earlier the costs assessor had access to, and utilised if necessary, CMC’s Files. Conclusion: ground one [234] Overall, I am not satisfied that any error of principle has been demonstrated by WICET for the following five reasons: (a) First: WICET is a sophisticated litigant, having been involved in multiple bouts of litigation with CMC. It was advised by competent solicitors and counsel and took very lengthy objections to the costs statement. It is reasonable to infer, as I do, that it plainly understood the basis of the costs stated in each item; (b) Secondly: WICET’s real complaint is not about the nature of the particulars provided, but rather about the costs assessor’s approval of the allegedly unparticularised items. But it was open for the costs assessor to have been satisfied that the items were necessary or proper because he had available to him the whole of CMC’s solicitor’s files. This finding is consistent with WICET’s submission that the costs assessor “had access to CMC’s solicitor’s files and was thus in a position to verify the carrying out of the claimed items.”124 If the costs assessor had access and was in a position to verify the carrying out of the claimed items (which was what WICET’s notice of objection suggested he do),125 it cannot follow that the costs assessor’s discretion miscarried because he ought to have required more particulars; 123 WICET’s notice of objection at [1.10]. 124 WICET’s submissions at [117]. 125 WICET’s notice of objection at [1.13(c)]. -- 66 of 93 -- 67 (c) Thirdly: Whilst the costs assessor needed to be satisfied of compliance with UCPR r 705(2), it was also for the costs assessor to determine the procedure to be followed on an assessment [UCPR r 720(1)]. WICET did not, by its notice of objection, demand the provision of further particulars, nor did it request the costs assessor to undertake any particular procedure requiring the provision of particulars. Rather, it said that the costs assessor should obtain CMC’s files and undertake a verification process; (d) Fourthly: It is difficult to see how WICET would have acted any differently had the alleged lacking particulars been provided, given that it objected to these items in any event; and (e) Fifthly: In sustaining a number of the objections and rejecting others on an item-by-item basis, I am satisfied the costs assessor considered each item carefully and on its merits. Ground two: rejection of WICET’s objections in General Objection 1B [235] WICET’s second ground of review is underpinned by two alleged errors: (a) First: That the costs assessor summarily rejected WICET’s objections in General Objection 1B on the basis that these objections were in an irregular form; and (b) Secondly: The costs assessor acted on a wrong interpretation of Item 9 of the Scale of Costs (Schedule 1 to the UCPR) in allowing certain items claimed by CMC, (the subject of General Objection 1B) based on an incorrect application of Item 9. [236] WICET submitted that these errors warranted the court making orders under UCPR r 742 to refer the costs items set out in Exhibit B back to the costs assessor for his reconsideration, with directions that he must: (a) decide those items after taking into account the submissions of WICET that he had previously discounted; and (b) in respect of any such items that are claimed pursuant to the “examining” scale cost item, check the work claimed in the costs statement against CMC’s time records and invoices, and either: (i) disallow any items where the work claimed is not restricted to examining (because, for example, the item improperly claims time for drafting or other work); or (ii) reduce the item so as to disallow time which has not been spent on examining. [237] In order to properly analyse the issues that emerge from the errors raised (of which there is some overlap), it is necessary to firstly set out the relevant parts of the costs assessors reasons. Costs assessor’s reasons [238] The costs assessor issued cost assessment certificates on 9 November 2022 and 9 December 2022. Those certificates were later declared void (following consent -- 67 of 93 -- 68 orders of the parties) on the basis they were premature. Before they were declared void, WICET requested, and the costs assessor issued, reasons for decision. [239] In a letter dated 1 December 2022, WICET requested that the costs assessor provide reasons for assessment in respect of the following: “1 …WICET’s submissions that: (a) items commencing “Examining various ...” are too vague to be properly claimable: see paragraphs [3.5] to [3.8] and the items in Annexure A (first column) of the notice of objection submissions; (b) items which read “Examining .... for the purpose of drafting” (or which use a similar formulation) should not be allowed because they are improper claims for indemnity recovery of solicitor time drafting documents not permitted by the Scale (where drafting and producing should instead be recovered under items 4 and 5 of the Scale): see paragraphs [3.14] to [3.18], Annexure A (second column) and Annexure B of the notice of objection submissions; (c) items which read “Examining and considering” (or which use a similar formulation) should not be allowed because “consideration” is not claimable under the Scale and because a claim at the “examination” rate is inappropriate: see paragraphs [3.19] to [3.24] and the items in Annexure A (third column) of the notice of objection submissions; (d) items which read “Examining ... in order to settle” (or which use a similar formulation) should not be allowed because claims for settling work are part of care and conduct and/or not an examination under the Scale: see paragraphs [3.25] to [3.28] and the items in Annexure A (sixth column) of the notice of objection; (e) items which relate to “preparing” or “collating” should not be allowed for reasons set out at paragraphs [3,31] to [3.34] of the notice of objection submissions, 2 In respect of General Objection 1 in the notice of objection, please provide reasons in respect of: (a) each item in Annexure A (first column) to the notice of objection submissions; (b) each example referred to at paragraph [3.16] of the notice of objection submissions; (c) each example referred to at paragraph [3.24] of the notice of objection submissions; (d) each example referred to at paragraph [3,28] of the notice of objection submissions; -- 68 of 93 -- 69 (e) each example referred to at paragraph [3.36] of the notice of objection submissions; (f) each example referred to at paragraph [3.38] of the notice of objection submissions; (g) each example referred to at paragraph [3.41] of the notice of objection submissions. … 6 Please provide reasons in respect of each item in Annexure B.” [240] The costs assessor delivered reasons on 22 December 2022. These reasons attached spreadsheets with item-by-item reasoning (with varying levels of detail). The cover letter stated relevantly as follows: “The term ‘Examining’ as depicted in paragraph 9 of the Scale precedes billable items for ‘Correspondence (17)’ and is thus to be applied to other types of work and does not include for example, perusing. One such use deployed by the Plaintiff was for the purpose of drafting. Whilst this (only) may have been a generous application of Scale, it also may not have been, as this litigation was document intensive. Similarly, the Plaintiff applied the term ‘Examining and Considering’ and ‘Examining in order to settle’. The Defendant will observe from my Reasons that I have not allowed all of such claims by the Plaintiff and have sought a balance, appropriate to the endeavour claimed. My view is that the imprecision of the term ‘Examining’ in the Scale, requires rectification.” [Underlining added] [241] Following the provision of the costs assessor’s certificate on 13 March 2023, WICET again requested reasons for the decision (by letter dated 23 March 2023). The request was in the same terms as the request on 1 December 2022, but the costs assessor’s response was couched in slightly different terms, as follows:126 “Reasons: Please refer to my reasons set out in the attached Assessment and paragraphs 12 and 13 below.” [242] The “attached Assessment” are the three Excel spreadsheets, the final columns of which are “Notes of costs assessor" (which record his reasons in respect of each objection) and the amount of the costs allowed and disallowed. Paragraphs 12 and 13 of the costs assessor’s reasons (which he expressly referred to) state as follows:127 “Rule 722 of the UCPR directs a Costs Assessor to limit an assessment to a resolution of matters raised in the Notice of Objection. The Defendants [sic] Notice of Objection comprised two parts, namely Submission comprising 82 pages (attached) together with specific objections. I found the dual format and particularly the Submission failed to 126 Costs assessor’s reasons dated 11 April 2023 at [11]. 127 Costs assessor's reasons dated 11 April 2023 at [12] and [13]. -- 69 of 93 -- 70 comply with rule 706 of the UCPR, e.g. the use of terms such as ‘see General Objection 1’ (etc) and in which such general objections contained a number of varying arguments, to my mind, failed the requirement of the Rule. General Objection 1B, for example is 18 pages long. It is inappropriate to require a costs assessor to have to find a foot to fit the shoe. I discounted the Defendant’s Submissions, accordingly.” [Underlining added] [243] WICET submitted that it follows from the costs assessor’s reasons that he rejected the objections made by WICET in this “dual form” without considering them on their merit and that in doing so, he acted contrary to principle and his discretion miscarried. That submission is rejected under the analysis of error one below. Error one: Improper rejection of the dual form objection [244] Given that the first error is premised on the costs assessor’s alleged lack of consideration of General Objection 1B, it is useful to firstly set out the introductory part of that objection which states as follows:128 “General Objection 1B: improper application of scale 3.10 It appears the Cost Statement has been prepared by reference to, and to reflect, the time-based charges of CMC’s solicitors. 3.11 In a very significant number of instances, items in the Costs Statement have been drafted using language which seeks to engage the Scale items (eg, “Examining”, “Attending”) when, in actuality: (a) the work being claim is not what is described; and/or (b) the work being claimed is not claimable on a standard bases on a proper application of the Scale. 3.12 In short, it appears that in many cases CMC is simply seeking to recover solicitor/client time be describing the claim items in a particular way. CMC is not entitled to claim costs in a manner effectively on the indemnity basis. CMC can only recover costs in accordance with the items set out in the Scale. As such, a significant portion of the Costs Statement can be rejected. 3.13 Examples of the improper application of the Scale are set out below. For the avoid of doubt, these items are also subject to General Objection 1A—in that they are often defective because of a lack of particularity.” [245] The following 17 (or so) paragraphs of this objection set out examples of what are said to be non-claimable solicitor/client drafting. In addition: Annexure A contains a list of costs statement items that read “examining…for the purpose of drafting”;129 128 WICET’s notice of objection at [3.10] to [3.45]. 129 As well as other claims for examining (for example, “examining and considering”) as discussed under that heading later in these reasons. -- 70 of 93 -- 71 and Annexure B is a table that sets out the claims made for a solicitor’s examination of various documents for the purpose of drafting closing submissions. [246] On any view, WICET’s notice of objection is a dense document. As stated earlier, it has a covering submission of 82 pages, containing 13 “General Objections”; and three separate Excel files with WICET’s “Specific Objections” addressing each of the over 19,000 items in CMC’s costs statement. Those Excel files contain standalone objections and, on occasion, refer back to one or more of the General Objections. [247] I accept that UCPR r 706(5) expressly allows an objection to a common issue to be made in respect of a number of associated items. But by identifying a myriad of alternative objections within other objections, I am not satisfied that WICET’s notice of objection “concisely” stated “the reasons for the objection, identifying any issue of law or fact the objector contends a costs assessor should consider in order to make a decision in favour of the objector” as required by UCPR r 705(2)(c). [248] In my respectful view, the costs assessor was correct in his assessment that he was being asked to “find a foot to fit the shoe”. However, some blame for the predicament must be attributed to CMC. The assessment can hardly be said to have commenced on the right foot.130 Although, ultimately, the costs assessor recognised the issues with the costs statement in the following two ways:131 (a) First: He observed in his reasons that he had taken into account that CMC’s costs statement appeared to traverse all of the work undertaken by the plaintiffs; and (b) Secondly: He rejected over $4 million of the amount claimed by CMC assessing costs on the standard basis at around $6.5 million. [249] The form and content of the notice of objection effectively meant that WICET was hedging its bets and it acted as an almost impenetrable obstacle to an efficient and just costs assessment. I am satisfied that it was therefore open to the costs assessor to have determined on the facts of this case (as he did) that the dual format failed to comply with UCPR r 706. But this does not mean that he necessarily failed to consider or ignored these objections in their entirety. [250] Overall, I am not satisfied that the costs assessor failed to take into account WICET’s “dual form” of objections (where those objections were specifically referenced to the relevant costs item) for the following seven reasons:132 (a) First: He did not say he rejected the objections – just that he discounted them; (b) Secondly: It is obvious from the spreadsheets that he treated the General Objection as “common objections” in respect of “associated items” (where WICET referred to the General Objections in the Specific Objection). But what the costs assessor did not do, nor was he required to do, was for each of the 19,000 items, was review all 82 pages of General Objections to see which might apply; 130 Given the quantum of the costs statement and the number of items. 131 Costs assessor’s reasons dated 11 April 2023 at [10(d)]. 132 CMC’s submissions in response to WICET’s application for review at [43] and [44]. -- 71 of 93 -- 72 (c) Thirdly: To the extent that the costs assessor discounted WICET’S dual form objection, is it apparent from a review of the reasons recorded in the Excel spreadsheets, that he only did so to the extent that he was not expressly referred to them in the Specific Objections; (d) Fourthly: A review of Exhibit B reveals that the costs assessor upheld many of the objections (either in full or in part) listed. For example, on the first page, only two of 22 objections were denied.133 The others were sustained in full. On the second page, only 11 of 24 objections were denied and the others were either sustained in full or in part. It follows that Exhibit B plainly demonstrates that the costs assessor did not summarily reject WICET’s objections; (e) Fifthly: It is evident from the final column in Exhibit B that the costs assessor clearly considered each and every objection by either deciding to sustain the objection in whole or in part or deny it. Usually, where an objection was denied, the costs assessor provided an additional reason such as, “sufficient proximity and relevance”, “work seems necessary”, or “costs appear reasonable”; (f) Sixthly: WICET cited one example where the costs assessor allegedly did not take into account “its dual form of objection” [Item 5098]. But plainly, the costs assessor took the objection into account but considered it an insufficient basis. (g) Seventhly: As CMC submitted, (and I accept), in addition to those examples shown in Exhibit B, there are many occasions where the costs assessor not only took the “dual form” of objection into account but upheld that objection. Some examples from the first 1,000 items of costs alone are set out in CMC’s submissions as follows: Item Description Objection Outcome 61 Examining various documents in preparation for drafting… See general objections 1A , 1B and 4 Objection sustained insufficient clarity 64 Examining and considering interim Analysis… General objection 1B - settling Objection sustained seems like duplication 87 Examining and considering Piling Variation Report… General objections 1B and 4 Objection sustained not necessary 100 Examining various documents in preparation for drafting… As above. See also general objection 1B Objection sustained insufficient information 122 Examining various documents in preparation for drafting… See general objections 1B and 4 Objection sustained. Claim too vague 562 Examining and collating various documents in preparation for drafting… See general objection 1A and 1B Objection sustained allow clerk rate 574 Examining and considering additions to the instructions to… Appears excessive for one folio…See general objection 1B Objection sustained. Appears excessive for review of one folio… 692 Examining further documents in preparation for drafting… See general objection 1A and 1B Objection sustained reduction 738 Examining and considering supplementary brief to Queen’s Counsel… Excessive and unreasonable…see also general objection 1B Objection sustained on balance 759 Examining and considering Memo in order to settle… See general objection 1B - settling Objection sustained appears duplication of previous work 133 The Excel spreadsheet contained in Exhibit B sets out: the item objected to; the claim description; the objection description; and the reasons of the costs assessor (as delivered on 11 April 2023). -- 72 of 93 -- 73 812 Examining various document in preparation for drafting… See general objection 1A and 1B - insufficient details provided as to what is being examined… Objection sustained, draft various documents appear to be duplication 817 Examining and considering brief to Junior Counsel in order to… See general objection 1B - settling Objection sustained duplication of work 849 Examining and considering Request for Further and Better Particulars… See general objection 1B - settling Objection sustained misapplication of scale 854 Continued examining various documents… See general objection 1A and 1B - again no detail provided Objection sustained as stated 855 Continued examining various documents… See general objection 1A and 1B - again no detail provided… Objection sustained as stated 930 Examining documents enclosed therein including considering… See general objection 1A and 1B Objection sustained misapplication of scale [251] I therefore reject WICET’s contention in relation to the first error. [252] The second error which concerns the application of a claim for “examination” under Item 9 is a more complex and layered issue. Error 2: Improper application of the Scale [253] The costs statement contained a large number of entries claimed for “examining” under Item 9. By its notice of objection, WICET made lengthy and detailed submissions about why many of these time-based claims were not permissible on a proper application of that scale.134 [254] WICET’S complaints are premised on the notion that CMC improperly claimed (and was subsequently awarded) costs for items for “examining” when, in truth, these items were compensating CMC on an indemnity basis for the costs of its solicitors drafting documents on a time basis. WICET’s complaints fall into the following four categories:135 (a) First: Items that read “examining ….for the purpose of drafting” [or a similar formulation]; (b) Secondly: Items which include consideration, in particular those which commence “Examining and considering”; (c) Thirdly: Items which relate to work by a solicitor “settling” another solicitor’s work, in particular items that read “Examining…in order to settle…” [or which use a similar formulation]; and (d) Fourthly: Items that relate to “preparing” or “collating”. [255] Each of these categories are discussed in turn below. But it is instructive at the outset to set out the relevant scale items. 134 WICET’s notice of objection at [3.10] to [3.45]. 135 All of which are part of its General Objection 1B in WICET’s notice of objection. -- 73 of 93 -- 74 Meaning of relevant scale items [256] The following four scale items are relevant to the issues for determination: Drafting documents 4 Drafting a document - for each 100 words 24.45 Producing documents 5 Producing a document in final form - for each 100 word 5.90 … Perusing documents 8 Perusing a document - for each 100 words 5.90 Examining or comparing documents 9 Examining a document or comparing documents, if Perusal is unnecessary - (a) by a solicitor - for each quarter hour 86.70 [257] It follows that Item 4 (Drafting), Item 5 (Producing) and Item 8 (Perusing) are calculated by reference to the length of the document and Item 9 (Examining) is calculated by reference to the time taken. [258] The following meanings for these terms emerge from the authorities: (a) Drawing (or drafting) [Item 4]: Is the composition of a new document.136 Drawing requires “use of the intellect to compose the document, the use of the brain to select the correct words, to put them in the correct sequence so that the document expresses the intention of the parties.”137 Where there are multiple drafts of a document, a drawing charge should be made for the first draft and for what is new or revised in the subsequent drafts.138 (b) Producing [Item 5]: Was formerly called ‘engrossing’ and means reducing the composition to written form and producing the formal document. That is, the actual handwriting or typing by which the document is completed. Where a document is the subject of successive drafts, the producing charge is claimed in respect of the final draft.139 (c) Perusing [Item 8]: Entails a careful reading of the document, giving detailed consideration to its contents and the application of the solicitor’s legal knowledge in order to determine what steps should be taken in the client’s interest as a consequence of the document.140 136 R Quick, Quick on Costs, Thomson Reuters, [290.130]. 137 Barristers’ Board v Palm Management Pty Ltd [1984] WAR 101 at 109, citing Green v Hoyle [1976] 2 All ER 633 at 638. 138 R Quick, Quick on Costs, Thomson Reuters, [290.130]. 139 R Quick, Quick on Costs, Thomson Reuters, [290.140]. 140 Re Feez Ruthning’s Bill of Costs [1989] 1 Qd R 55 at 73; McCoombes v Curragh Qld Mining Limited [2001] QDC 142 at [38]. -- 74 of 93 -- 75 (d) Examining [Item 9]: Involves a higher level of review than a perusal. An examination charge is applicable if a close reading of the document, i.e., a perusal, is unnecessary. It may mean reading only a portion of the document closely; or it may mean a high level or even more cursory review of the whole document, but without reading every line closely. It may also mean comparing the contents of one document with another.141 An examination charge is not limited to examining Document A for the purpose of drafting Document B. An examination charge is also available in respect of a range of matters. For example, the work of collating a document, making notes about a document, preparing an index to documents or a chronology, or comparing two documents.142 [259] CMC submitted, (and I accept) that a claim can be made for more than one of the above items in the production of a document in circumstances such as the following:143 “…Take an example. Assume the solicitor is to draft a Statement of Claim. The solicitor will examine many documents in order to put the solicitor into a position to be able to compose the paragraphs of the Statement of Claim. Assume it takes the solicitor 4 hours examining documents in order to be able to compose the Statement of Claim. It then takes the solicitor 3 hours to draft the Statement of Claim, which is 25 pages long, and then the solicitor types the Statement of Claim (proof reads) and then issues the Statement of Claim. The appropriate charges under the scale would be: (a) Item 9 - examining documents in order to enable the solicitor to draft the Statement of Claim: 4 hours x $86.70 per quarter hour x 4 quarters = $1,387.20; (b) Item 4 - drafting the Statement of Claim: 25 pages x 4 folios per page x $24.45 per folio = $2,445; and (c) Item 5 - producing the Statement of Claim in final form: 25 pages x 4 folios per page x $5.90 per folio = $590.” [260] During oral submissions, senior counsel for WICET accepted this example as correct but argued that on the facts of this case that is not what happened – rather “in a number of instances, hours other than hours spent just examining documents have been allowed.”144 [261] At the hearing of the review applications, CMC relied upon the affidavit of Shannon Schwarz, a partner in the firm of CMC’s solicitors who has been involved in this litigation acting for CMC since December 2012, to justify its claims for “examining”. Mr Schwarz reviewed CMC’s solicitor’s files (for the purpose of this review) to identify the documents that the relevant solicitor examined in respect of each item to which WICET complained about in its submissions.145 I have not given any weight 141 R Quick, Quick on Costs, Thomson Reuters, [290.120]. 142 Ernest v Partridge (1863) 2 New Rep 232. 143 CMC’s submission in response to WICET’s application for review at [57]. 144 T 3-71 ll 33-46. 145 Mr Schwarz also exhibited the relevant document to his affidavit to demonstrate (on its face) that the solicitor must have reviewed other documents in drafting or producing etc that document. -- 75 of 93 -- 76 to any submission by CMC underpinned by the evidence of Mr Schwarz of what is a reasonable time for examining, for two reasons: (a) First: This evidence was not before the costs assessor; and (b) Secondly: It was clear from his cross-examination that Mr Schwarz was not aware of the distinction between examining and perusing under the scale.146 [262] Turning then to the particular categories developed by WICET in support of this contention. Examining for the purpose of drafting [263] The total sum of the costs items that are the subject of this category is $649,199.79. The costs assessor disallowed the sum of $149,215.06.147 [264] WICET objected to these items on the following five bases:148 (a) First: In many cases, these claims are not in actuality claims for “Examination” pursuant to Scale item 9; (b) Secondly: Rather, these items seek to compensate CMC on an indemnity basis for the cost of its solicitors’ drafting documents on a time basis; (c) Thirdly: The drafting and producing of documents is allowed under Items 4 and 5 of the Scale. These items capture everything in the mind of the drafter including time spent by the lawyer considering what words to use and how to phrase the document. The producing rate allows the costs of the actual production of the finished piece of work. Parties cannot separately, or at all, claim under the provisions of the Scale for the hours that solicitors spend drafting documents; (d) Fourthly: At best for CMC, solicitor/client time for drafting forms part of any allowance for general care and conduct under Scale Item 1; and (e) Fifthly: Further, any time re-examining documents which have previously been examined should also form part of any allowance for general care and conduct (and cannot be allowed on the basis of a further attendance applying examining rate under the Scale). [265] In support of its contention of the misapplication of Item 9 and error WICET referred to four examples set out in its notice of objection. That submission and the costs assessor’s reasons were set out by WICET in the following tables: 146 T 3-66. Mr Schwarz’s affidavit was relied upon as a submission and not evidence [T1-3 ll 44-46]. I have however mentioned some of the documents referred to and exhibited to Mr Schwarz’s affidavit in this judgment as they were before the costs assessor. For example, the closing submissions and drafting a chronology for the Bebo Arch claim. 147 The examining for the purpose of drafting items are listed at pages 26 to 58 of Exhibit B. 148 WICET’s notice of objection at [3.15] to [3.18] as set out in WICET’s submissions at [80]. -- 76 of 93 -- 77 Claim item Item description WICET’s submission in the notice of objection Costs assessor’s reasons Costs Statement Item 511 Examining various documents in preparation for drafting Notice of Dispute and Appendix A to Notice of Dispute (engaged 330 minutes) The entry is dated 27 May 2013. The Costs Assessor will note the lack of particularity in the claim (ie “Examining various”) CMC separately claims for drafting the Notice of Dispute at Costs Statement item 512 (10 folios). It also separately claims the producing rate at item 513. An available inference is that Costs Statement item 511 is an improper claim for indemnity reimbursement of solicitor drafting time. The Assessor is invited to check CMC’s solicitor’s invoices / time records for work on 27 May 2013 in relation to drafting the notice of dispute. If the work in the invoices / time records is described as drafting, it is not examining various”, “in preparation for drafting”. “ Objection denied, appears relevant to litigation. Costs Statement Item 5555 ($1,029) Examining various documents in preparation for drafting Chronology in respect to the Bebo Arch claim for the purposes of briefing King Planning (EK engaged 210 minutes) The entry is dated 3 March 2015. EK is presumably a fee earner at CMC’s solicitors. Separately, CMC claims for drafting the Chronology of Events at Costs Statement Item 5556 (5 folios). It also claims for producing the document at Item 5557 (5 folios). An available inference is that the claim is an improper claim for reimbursement of solicitor drafting time which is not permitted at Scale on the standard basis. The Assessor is invited to check CMC’s solicitor’s invoices / time records on 3 March 2015. Objection denied, insufficient particulars Costs Statement Item 16479 ($3,145.80) Examining various documents in preparation for amending Closing Submissions (Bebo Arch delay) (SS engaged 10 hours 42 minutes) The entry is dated 21 August 2016. CMC’s closing submissions were filed on 19 September 2016. WICET understands “SS” to be Shannon Schwarz - a Senior Associate at the time at CMC. There are many claims of this nature. An available inference is that Costs Statement Item 16479 is an improper claim for reimbursement of solicitor drafting time which is not permitted at Scale on the standard basis. The Assessor should check CMC’s solicitor’s invoices / time records for work on 21 August 2016 in relation to Mr Schwarz. Objection sustained. Costs Statement Item 18101 ($1,675.80) Further examination of documents in preparation for drafting schedule of on-site overheads (CH engaged 5 hours 42 minutes) The entry is dated 19 July 2017 (ie the post-trial period). “CH” is presumably a fee earner at CMC’s solicitors. CMC separately claims for drafting and producing the schedule of on-site overheads: see Costs Statement Items 18126 and 18127. Objection sustained. -- 77 of 93 -- 78 An available inference is that Costs Statement Item 18101 is an improper claim for reimbursement of solicitor drafting time which is not permitted at Scale on the standard basis. The Assessor is invited to check CMC’s solicitors’ invoices / time records for work on 19 July 2017 in relation to “CH”. [266] Against this backdrop, WICET made the following two points: (a) First: The costs assessor’s approach to these items was inconsistent because: the objections that were denied by the costs assessor were denied on different bases; but two items (objected to on the same basis), had the objection sustained; and (b) Secondly: An examination of the claim descriptions for these items gives rise to a “compelling inference” that the time entries the subject of the costs statement items relate to drafting-not an examination of documents. [267] I reject the first point as being demonstrative of any error. Rather, given that two of the four examples WICET highlighted above were resolved in its favour, it is (as CMC submitted) more demonstrative of the inconsistent approach taken by WICET in this review (at times). [268] In support of its submission of an established error flowing from the second point, WICET focused on the details in the invoices CMC sent to its client not matching the item claims and description in the costs statement.149 [269] Taking, for example, Item 5555. WICET submitted that the only conclusion is that the costs assessor did not look at the relevant invoice for this work as he should have, because if he had, he would have seen that the relevant invoices set out that that time was spent drafting the chronology where the costs statement claimed time for examining documents. This point was developed by senior counsel for WICET during the course of the hearing as follows:150 “And we say the costs assessor had to consider this material, because if one sends a bill to the client saying, “We spent three and a-half hours preparing your chronology,” that’s inconsistent with the notion that various documents were being examined on that day for that period of time in order to prepare a chronology. Now, we say there’s no evidence that the costs assessor has taken this into account, because otherwise he would have had to have reconciled this entry in the invoice with the costs that were claimed. Now, there may have been a way for him to reconcile it. But all of the evidence from the assessment is that he just simply didn’t take this into account at all, because otherwise he would have had to have dealt with it.” 149 As can be seen from the notice of objection, WICET invited the costs assessor to check CMC’s solicitors invoices/time records. 150 T3-76 ll 1-12. -- 78 of 93 -- 79 [270] But in my respectful view this submission overlooks two things: (a) First: That CMC also provided detailed responses to the notice of objection, which included relevantly (for Item 5555) as follows:151 “Eloise Kearney (a solicitor at Thomson Geer) was asked to draft a chronology of events for the purposes of briefing King Planning (CMC’s delay expert). To undertake this task, she reviewed and included references to relevant documents in a draft chronology, which referenced source documents as well as draft witness statements of both Matthew Grey and Ben Vance. Source documents, including Site Instructions, Revised Drawings, photographs, emails, RFI’s (requests for information) and responses. The assessor is invited to review email correspondence on the file from 3 March 2015 to assess the documents examined by Eloise - including the documents referred to in the Bebo Arch chronology.” [Underlining added]. (b) Secondly: The costs assessor’s reasons make express reference to these reply submissions and all of the submissions made to him by both parties in this matter. As discussed earlier (and as WICET conceded), the costs assessor had access to CMC’s solicitor’s file. It follows that to the extent it was necessary for the costs assessor to review or have regard to any particular document said to be “examined” by the solicitor, the costs assessor was able to review the file if he considered it necessary to do so. Such an undertaking was expressly encouraged by WICET. [271] WICET’s focus on the details in the invoice and the description of what was undertaken to the client is, in my respectful view, misplaced for five reasons: (a) First: A claim for drafting of the chronology of events in respect of the Bebo Arch claim was made separately (Item 5556). That claim (of five folios on 3 March 2015) was not objected to and the amount of $103.50 was allowed; (b) Secondly: It is not surprising that the claims for drafting and producing were not part of the invoice.152 As a matter of common knowledge, it is unlikely in a case like this that a client would be charged on Scale (the evidence was CMC was charged on an hourly rate). It follows that it is unsurprising that an invoice to the client would be itemised according to the Scale; (c) Thirdly: The relevant 15 page chronology is quite detailed, describing an event and an effect with the source document.153 It is reasonable to infer, (as I do), that in order to prepare such a document, a high level (more cursory) review of the relevant documents is necessary; (d) Fourthly: The costs assessor’s task exercise was to conduct a “nuts and bolts” “factual assessment” on all of the items, taking into account not only the descriptions contained in the invoices and the costs statement but also the 151 CMC’s response to objection at p.10. Similar responses were given to other items; See the response column at p. 10 to 17 of CMC’s response to objection. 152 Items 5556 and 5557. 153 The chronology is at SCS-4 of the 7-volume affidavit of Shannon Carl Schwarz, sworn 2 August 2023, Volume 6 of the plaintiff’s bundle of material behind Tab 14. -- 79 of 93 -- 80 documents on the file, the file notes and other records, and to make an assessment as to what was a necessary or proper allowance of time for examining material; 154 and (e) Fifthly: It was open for the costs assessor (having looked at the chronology – and if necessary the relevant documents) to infer (as I do), as he did; that the time claimed for examining the documents was a proper claim. The fact that it was simply described as ‘drafting’ and not ‘examining’ in the invoice is not, in my view, instructive of anything other than this time was spent on the chronology. [272] These findings are consistent with CMC’s solicitor’s letter to the costs assessor in August 2022 pointing out the difficulties with relying on descriptions in invoices to the client as follows:155 “We also note your view that these invoices should be the subject of a line-by-line comparison with the Cost Statement. Whilst it is a matter for you as to how you want to proceed, we wish to note that: (a) it is unlikely that a line-by-line analysis would be useful as our client’s Cost Statement was prepared based on our firm’s file and there will be discrepancies between this and the recorded time; and (b) the preparation of a line-by-line analysis would take considerable time and would also come at a significant cost. If it is of assistance, we can provide you with an Excel copy of our firm’s time recording on this file. This is unlikely to align with the Cost Statement, and will not reflect the time billed (our firm would not have billed all time recorded) but you may consider it a useful reference tool in your assessment.” [Underlining added] [273] There were a number of ways the costs assessor could have correctly gone about his assessment on this issue. Senior Counsel for WICET fairly accepted the difficulties the costs assessor faced as follows: 156 “What he should have done was – and this is a question which we don’t have a definite answer to. He should either have attempted to make an apportion himself. Given that that time was spent preparing the chronology, he should have said, “Well, I’ll allow, let’s say, an hour and a-half for looking at the documents and an hour and a-half for actually drafting and preparing the chronology.” Or he could have said, and we also say this, “If I’m given a costs item that says three and a-half hours spent examining documents and I’m satisfied that that whole time hasn’t been spent examining documents, then I’ll disallow the item.” One of those things is what he should have done.” [Underlining added] 154 As described by senior counsel for CMC, T 4-36 ll 15-17. 155 Letter dated 24 August 2022 at [2.2] - part of the bundle of documents marked for identification, “N”. 156 T 3-82 ll 4-11; Later in the proceeding, it was submitted that the assessor ought to have asked, “Did Eloise Kearney spend three hours and 30 minutes just examining documents?” at T 3-82 ll 38-40. -- 80 of 93 -- 81 [274] Overall, I am not satisfied that WICET has established that the costs assessor erred in adopting the method he did; or that a compelling inference ought to be drawn that the time entries (the subject of the costs statement items) relate to drafting and not to an examination, for the following six reasons: (a) First: For the reasons discussed in paragraph 271, the differences between the relevant invoice and the costs statement description are not particularly instructive on this issue; (b) Secondly: It was open for the costs assessor to have accepted as and when he did (in the exercise of his discretion) that the time claimed for examining a document was in fact spent on such a task;157 (c) Thirdly: The appropriate process to be undertaken by the costs assessor (having been alerted by WICET of its concerns about the claims made under Item 9) was a matter for him. It is reasonable to infer, as I do, that the costs assessor undertook a process of verification as he said he would, and in doing so was satisfied that the solicitor examined other documents in preparation for the drafting of the underlying document – and that such a task (a high level perusal of the document) was necessary or proper; and (d) Fourthly: It is clear from the costs assessor’s reasons as set out under that heading, that he turned his mind to the issue of the hourly claims for examining. and was cognisant of the allegations by WICET as to how it had been wrongly deployed by CMC. His acknowledgment that his assessment may have been a generous application of the Scale (or that it may not have been, given the document and the intensive nature of the litigation) does not establish a misapplication of principle in itself; (e) Fifthly: Nothing in the process the costs assessor undertook on this issue reveals that he was clearly wrong or that he miscarried in the exercise of his discretion to allow these items as he did. Examining and considering [275] The cost items the subject of the examining and considering category of objection total $330,507.33. Of this amount, $105,582.97 had been disallowed by the costs assessor.158 [276] These items were objected to on the following two bases: (a) First: The component of these items in relation to “consideration” is not claimable under the scale; (b) Secondly: In relation to the claim for examination: (i) some of the claims are insufficiently particularised and do not identify the document being examined and considered; and 157 Some of the examples given by WICET were resolved in its favour: for example, Item 16469 and 18101; and from the “high level” examples given Item 16463 and a partial reduction for Item 16603. 158 Annexure A to WICET’s notice of objection includes a list of items claiming costs for examining and considering. Exhibit B is the Excel spreadsheet which includes the item objected to; the claim description; the objection description and the costs assessor reasons of 12 April 2023 – the claims for costs for examining and considering are set out at pages 59 to 84. -- 81 of 93 -- 82 (ii) even where the claims identify the document, an examination rate is inappropriate for a number of reasons, including: (A) perusal of the document purportedly examined is separately claimed; (B) a letter rate for the document purportedly examined is separately claimed; (C) the work is in fact drafting and producing, not examination (which is part of Scale Items 4 and 5 and separately claimed by CMC); (D) any review of a document previously examined cannot in the usual course attract another examination rate. [277] The starting point is that I do not accept that the expression, “considering” is not an expression included in an item allowed under the Scale. As set out earlier, perusing a document entails giving detailed consideration to its content and examining a document requires a higher level of review than perusal. It follows, in my respectful view that, both tasks involve a level of consideration – although one [perusal], allows for more consideration than the other [examination]. [278] In its notice of objection, WICET detailed four examples of this objection. That submission and the costs assessor’s reasons are as follows: Claim item Item description WICET’s submission in the notice of objection Costs assessor’s reasons Costs Statement Item 802 ($882) Examining and considering rule 444 letter and Defence for the purposes of providing advice to the client (AK engaged 180 minutes) This item is dated 31 July 2013. WICET understands that AK is Mr Andrew Kelly - a Partner of CMC’s instructing solicitors. CMC separately claims for perusing the rule 444 letter: see Costs Statement Item 799 (73 folios). CMC separately claims for perusing the Defence: see Costs Statement Item 801 (202 folios). The Assessor is invited to check CMC’s solicitor’s invoice for work performed by Mr Kelly on 31 July 2013 (180 minutes / 3 hours). If in fact Mr Kelly’s time entries record examination of the defence and r 444 letter (and nothing more), that claim is duplicative of the claims for perusal of the same documents and an impermissible attempt to recover solicitor/client costs of reviewing documents. Objection sustained - solicitor and client. Costs Statement Item 6423 ($1969) Examining and considering disclosure lists of key word search results outlining in excess of 5000 documents including checking accuracy, considering privilege documents and ensuring the This item is dated 10 June 2015. At this time, the parties were performing disclosure. “EK” is presumably a solicitor working at CMC’s solicitors. The Costs Statement item narration suggests that EK was checking a document list (for which drafting and producing is presumably separately claimed), performing document checks (in Objection denied. -- 82 of 93 -- 83 document protocol has been adhered to in preparation for supplementary disclosure. respect of documents already reviewed) and otherwise thinking about the issues. The Assessor is invited to check CMC’s solicitor’s invoices for work performed by EK on 10 June 2015 (for 402 minutes / 6.7 hours). If in fact the lawyer’s time entries match the Costs Statement narration, the claim is duplicative and at best care and conduct for the reasons set out above. Costs Statement Item 12037 ($676.20) Examining and considering supplementary disclosure arising out of Trial Bundle including finalising index (CN engaged 138 minutes) This item is dated 12 May 2016 (ie, close to commencement of trial). WICET understands “CN” is solicitor Christopher Newby. The Costs Statement item narration suggests that Mr Newby was reviewing disclosure, considering it and then drafting an index. The Assessor is invited to check CMC’s solicitor’s invoices / time records for work performed by CN on 12 May 2016 (for 138 minutes / 2.3 hours). If in fact the time entry reflects the Costs Statement narration: (A) any consideration is part of care and conduct, and (B) drafting is not claimable as part of examination, (C) any examination referred to in the time entry would need to be check carefully to make sure a claim for examination is not duplicated. Objection sustained. At clerk rate. Costs Statement Item 19300 ($127.12) Examining and considering the above email to the client (AK engaged 24 minutes) This item is dated 23 February 2020 (ie, after the Costs Judgment). WICET understands AK to be Andrew Kelly - a partner at CMC’s solicitors. The Costs Statement narration suggests that Mr Kelly was reviewing an email “above” - ie, the email at Costs Statement Item 1299. CMC claims the letter rate for the email at Costs Statement Item 1299. It cannot separately claim for solicitor time reviewing that email. The letter rate is the entire Scale compensation for the email. The Assessor is invited to check CMC’s solicitors’ invoices for work performed by Mr Kelly on 23 February 2020 (for 24 minutes / 0.4 hours). Objection denied. [279] WICET relies on these example as reflective of an inconsistent and unclear approach taken by the costs assessor to this objection. But I do not accept that such a conclusion is necessarily drawn for the following three reasons: (a) First: One of these objections was upheld (Item 802) and another was sustained at a much lower clear rate (Item 12037); (b) Secondly: WICET is apparently seeking a review of items assessed in its favour; and (c) Thirdly: The reliance on these examples is equally reflective of an inconsistent and unclear approach by WICET to this review. -- 83 of 93 -- 84 [280] WICET’S reliance on the examples also overlook the detailed responses provided to the costs assessor by CMC on this issue. For example, CMC provided the following response to Item 6423 (the second example given by WICET):159 “At the time, Eloise Kearney was preparing CMC’s supplementary disclosure in the proceedings which was exchanged on 12 June 2015. The Assessor is invited to review CMC’s file and time entries from around this date which evidence the work performed. As the entry notes this involved consideration of disclosure lists and over 5000 documents for this purpose. A copy of the supplementary list is included it Annexure G. The Notice presume that CMC separately claims for drafting and producing this list and checking the documents included in the list – however this is incorrect. The list was drafted and produced by key word searches and then the results were reviewed by Eloise by way of this (and other items).” [Underlining added] [281] Overall, I am not satisfied that WICET has established that the costs assessor erred in allowing amounts for examining and considering as he did, for the following three reasons: (a) First: It is common sense that a task such as “examining” (which again entails a high level consideration or review of documents) would be necessary or proper for undertaking supplementary disclosure and that such a task would be charged on an hourly rate (as opposed to a folio rate per document being reviewed); (b) Secondly: On the evidence and submissions before him, it was open to the costs assessor to allow the items as he did; and (c) Thirdly: For all of the reasons set out in paragraph 273 above [in relation to the amounts allowed for examination and drafting]. Examining for the purposes of settling [282] The claims for costs for examining for the purposes of settling was $167,176.65. The costs assessor disallowed $55,769.80 of this amount.160 [283] The items were objected to on the bases that: (a) the claims are not, in actuality, claims for “Examination” pursuant to Scale item 9; (b) instead, the items were to compensate CMC for time incurred on a solicitor/client basis for senior lawyers and partners reviewing documents prepared by junior lawyers. To that extent, if the work is in fact drafting, it is 159 CMC’s response to notice of objection at p. 13. 160 WICET’s submissions in respect of this objection are at [3.25] to [3.28] of the notice of objection. The costs items the subject of this category are at pages 85 to 98 of Exhibit B. -- 84 of 93 -- 85 claimable under Item 4 of the Scale (or, at best for CMC, as part of care and conduct under Item 1 of the Scale). [284] WICET detailed four examples of this objection to the costs assessor as to why this claim was improper. That submission, and the costs assessor’s reasons are as follows: Claim item Item description WICET’s submission in the notice of objection Costs assessor’s reasons Costs Statement Item 670 ($2,205) Examining and considering draft Statement of Claim in order to settle (AK engaged 450 minutes) This entry is dated 2 July 2013 (ie, the day before the statement of claim was filed). WICET understands AK to be Andrew Kelly. CMC separately claims for drafting the Statement of Claim at Item 668 (105 folios). An available inference is that Costs Statement Item 670 is an improper attempt for indemnity reimbursement of Mr Kelly drafting, amending and/or settling a document prepared by another lawyer. As to the drafting performed by other lawyers, see Costs Statement Items 666 and 667 (which are also impermissible solicitor/client claims). The Assessor is invited to check CMC’s solicitor’s time records / invoices on 2 July 2013 for tie incurred by Mr Kelly. If in fact Mr Kelly recorded 450 minutes (7.5 hours) for reviewing and settling the draft statement of claim, that claim should be rejected for the reasons set out above. Objection denied - cost appears reasonable. Costs Statement Item 8293 ($882) Examining and considering Third Further Amended Statement of Claim in order to settle (GB engaged 108 minutes) This item is dated 16 December 2015. WICET understands “GB” to be Mr Geoff Brennan, then a Special Council at CMC’s solicitors. CMC separately claims for drafting and producing the Third Further Amended Statement of Claim at Costs Statement Items 8290 and 8291. An available inference is that Costs Statement Item 8293 is an improper attempt for reimbursement of solicitor drafting and amendment of a document prepared by another lawyer which is not permitted at Scale on the standard basis. As to the work performed by the other lawyer, see Item 8289 (which is also an impermissible solicitor / client claim). The Assessor is invited to check CMC’s solicitors’ invoices on 16 December 2015 for time recorded for Mr Brennan (for 108 minutes / 1.8 hours) Objection sustained. As to 25% UCPR721 (a) Note: the reduction in this instance arose because of a different objection from WICET (in relation to the costs of pleadings), not General Objection 1B. -- 85 of 93 -- 86 Claim item Item description WICET’s submission in the notice of objection Costs assessor’s reasons Costs Statement Item 15447 ($1,117.20) Examining and considering instructions to Junior Counsel regarding payments in order to settle This entry is dated 27 July 2016 (ie during trial) for work by AK, Andrew Kelly. CMC separately claims for drafting the instructions to Junior Counsel at Costs Statement Item 15445 (41 folios). CMC also claims for producing the document at Costs Statement Item 15446. An available inference is that Costs Statement Item 15447 is an improper attempt for indemnity reimbursement of secondary solicitor review - in circumstances where separate drafting and production rates have been claimed. As to the drafting performed by the other lawyer, see Item 15444 (which is also a solicitor/client claim not permitted on the standard basis at Scale). The Assessor is invited to check CMC’s solicitors’ invoices / time records for entries on 27 July 2016 in relation to time recorded by Mr Kelly. In in fact Mr Kelly recorded 228 minutes (3.8 hours) for settling a brief, that claim should be rejected for the reasons set out above. Objection denied - insufficient particulars. Costs Statement Item 19210 ($572.40) Examining and considering costs spreadsheet in order to settle (AK engaged 108 minutes) This entry is dated 13 February 2020 for work done by Andrew Kelly. This is after the Costs Judgment. The Costs Statement narration indicates that Mr Kelly settled a document prepared by another lawyer. As to the claim made by the other lawyer, see 19209 (which is also a solicitor/client claim not permitted at Scale on the standard basis). The Assessor should check CMC’s solicitor’s invoices for entries on 27 July 2016 in relation to time recorded by Mr Kelly. If in fact Mr Kelly recorded 108 minutes (1.8 hours) of time for settling a costs spreadsheet, that claim should be rejected for the reasons set out above. Objection sustained. [285] Taking, for example, Item 670, WICET submitted that “[I]t is not possible to settle a document without reading it carefully, let alone to settle a document without perusing it” and that, “[p]erusal of the document settled was claimed separately by CMC”.161 I accept that ordinarily it is difficult to see how a document could be settled properly without a careful reading of it being undertaken and it follows therefore that on one view there is some force to WICET’s submission on this issue. 161 WICET’s submissions at [98]. -- 86 of 93 -- 87 [286] This issue is a finally balanced one. But overall, I am not satisfied that WICET has established an error justifying the matter being referred back to the costs assessor for a reconsideration of these claims, for the following six reasons: (a) First: Again, it appears that WICET is seeking to review items determined in its favour: as one of these objections was upheld (Item 19210); and another sustained in part, with the allowable costs reduced by 25 per cent (Item 8293); (b) Secondly: Using WICET’s example of Item 670 and contrary to WICET’s submission, the statement of claim (which is 50 pages and refers to numerous documents) is the subject of a separate drafting claim but not a separate perusing claim; (c) Thirdly: WICET’s submissions do not take into account CMC’s detailed reply submission to the costs assessor about a number of these items; (d) Fourthly: Taking, for example, Item 670. CMC submitted that given the importance of the matter it is normal practice for a document such as a 50 page statement of claim to be settled by a partner.162 I accept that. But it cannot be overlooked that this is a claim for examining and considering (not settling) for nearly 8 hours – so at least on one view, it does appear to be a generous application of the Scale (with CMC claiming an hourly rate for a task of settling which is charged at a folio rate). But the task of settling cannot be seen in isolation and, depending on the case, may require a higher level of review of documents as well. For example, with a 50 page statement of claim which refers to a number of other documents, it is reasonable to assume, (as I do), that a high level reading of the document and associated documents rather than a careful and detailed reading of every relevant document was necessary or proper; and (e) Fifthly: It is obvious from the costs assessor’s reasons earlier under that heading, that this may have been a generous application of the Scale (or it may not have been given the document intensive nature of the litigation), that the costs assessor was alert to this issue; and (f) Sixthly: in the circumstances of this case, the allowance of an amount for these items was open to the costs assessor in the broad exercise of his discretion and his decision to allow these claims is not clearly wrong. Examining and collating [287] The total sum of costs claimed for preparing and collating was $322,421.59. The costs assessor disallowed $149,663.35.163 The items were objected to on the following bases: (a) First: No item in the Scale provides for costs of preparing and collating (or either of time) material. At best for CMC, the costs of this work, if allowed at all, would form part of the allowance for general care and conduct; (b) Secondly: Given the manner in which CMC’s Costs Statement has otherwise been prepared, WICET is concerned that CMC has used “Preparing and collating” to describe work which is in fact different to simple collating - for 162 CMC’s response to WICET’s notice of objection at p. 15. 163 The costs the subject of this category of objection are set out at pages 99 to 116 of Exhibit B. -- 87 of 93 -- 88 example, because it involves non-claimable solicitor/client drafting costs. Many of the “preparing” only items appear to be drafting claims which are otherwise compensated by reference to Scale Items 4 and 5; (c) Thirdly: Many of these claims are so vaguely described as to make them objectionable for that reason alone; (d) Fourthly: Even if it is said that collating material is an attendance (which is denied by WICET), it does not follow that CMC’s claimed items should be accepted without further interrogation; and (e) Fifthly: If any collating is allowed, it should only be at a clerk rate. CMC often claims time for solicitors undertaking this task. [288] I accept that there is no item in the Scale that provides for the costs of preparing and collating material. But I am satisfied that it may be necessary for a solicitor to collate material for inclusion in a list or brief. In such a case it would obviously be proper for a solicitor to undertake the higher level review of documents for this purpose. It follows that an examination charge may be found to be both necessary and proper.164 [289] WICET cited four examples of cost items where it says this claim for examining is improper.165 It is unnecessary to set these out in full. But again, two of those objections were upheld (Items 3203 and 18175). The first of those was conceded by CMC as not being claimable. In terms of the other two items given as an example, I am otherwise satisfied that the costs assessor had detailed submissions in response from CMC and access to its solicitor’s file. He was therefore in a position to understand the claim and to satisfy himself as to whether or not these examining and collating claims were necessary or proper in the circumstances. For example, Item 3203 was further explained to be a review and collation of documents emerging from WICET’s pleadings by a solicitor from CMC. These costs were not allowed. But items claiming the cost of a clerk examining and collating document for disclosure and briefing experts and additions to summaries of evidence for hyperlinking were allowed.166 The allowance of these items as necessary or proper was open to the costs assessor in the broad exercise of his discretion. [290] It follows that I am not satisfied that WICET has established an error justifying these items being referred back to the costs assessor for his further reconsideration. Ground three: liability for the costs of the assessment and the assessor’s fees [291] By its costs statement, CMC claimed $10,729,265.15. The effect of WICET’s notice of objection was that CMC’s entitlement to costs should be assessed at $4,278,473.55. The amount ultimately allowed by the costs assessor was $6,377,143.12, being approximately 60 per cent of CMC’s claim. [292] UCPR r 732 provides that the costs assessor must decide the costs of a costs assessment. In the present case, the costs assessor made the following two orders as to costs: 164 R Quick, Quick on Costs, Thomson Reuters [290.120]. 165 WICET’s notice of objection at [3.36]. 166 These were high-value examples given to the costs assessor by WICET in its notice of objection: see Items 1950, 5690 and 8432; as set out in WICET’s submissions at [107]. -- 88 of 93 -- 89 (a) First: that WICET pay CMC’s costs of the assessment; and (b) Secondly: that WICET pay all of the costs assessor’s fees of $327,764.80. [293] WICET submitted that the costs assessor’s discretion miscarried as he took into account an incorrect and irrelevant consideration as emerged from the following underlined portion of his reasons:167 “The Defendant’s Submissions…correctly stated that it is the Assessor’s discretion to decide costs of the assessment. In coming to my decision, I did take into account that the Plaintiff’s Costs Statement appeared to traverse all of the work undertaken by the Plaintiffs Solicitors, and indeed, I cannot recall a specific objection from the Defendant asserting that any item (or items) of work or disbursements claimed was never performed. …” [Underlining added] [294] In seeking to set aside these costs orders, CMC submitted (subject to the outcome of the two reviews) that the appropriate order as to costs ought to be that: (a) CMC should recover from WICET: (i) 60 per cent of its costs associated with preparing the costs statement; and (ii) 32.5 per cent of its costs associated with responding to WICET’s objections; (b) WICET should recover from CMC: (i) 67.5 per cent of its costs of the assessment. [295] The parties agreed that I did not need to consider this ground if I was remitting the assessment back to the costs assessment for his further consideration. Given my overall findings on both applications do not necessitate that happening, it follows that it is necessary to determine this final ground. Analysis [296] The starting point is that absent an offer to settle by the party liable to pay costs, the party entitled to be paid its costs should be paid its costs of the assessment on the basis that it had no choice but to have its costs assessed.168 However, this position may be altered:169 (a) where claims in a costs statement are substantially reduced by the assessor; or (b) depending on the nature and extent of the objections. [297] WICET focussed on the first limb – the significant reduction in CMC’s assessed costs after the assessment process. Or as senior counsel for WICET described it, the 167 Costs assessor’s reasons dated 11 April 2023 at [10(d)]. 168 Hunter v Hunter [2015] QSC 181 at [34]. 169 Hunter v Hunter [2015] QSC 181 at [34]. -- 89 of 93 -- 90 “considerable lack of success in the assessment process”.170 In doing so, WICET submitted that the costs assessor’s reasoning was incorrect because WICET had made it clear that it had “serious reservations” about the veracity of the costs statement as follows:171 “Because of the misguided manner in which the Costs Statement has been prepared, WICET has significant reservations as to the veracity of the Costs Statement and the level of the costs claimed therein. Even if certain claim items are permissible under the Scale (which is denied), the rolled-up and general description of the items makes them difficult to interrogate. Because the Costs Statement seeks every advance, WICET has doubts as to whether the costs described were incurred at all. By its Costs Statement, CMC claims approximately $10.7 million. That is a staggering amount for a claim for costs on the standard basis - and even more extraordinary in circumstances where the net result to COMC based on the claim and counterclaim was an award of approximately $600,000. Based on its own costs incurred in the proceeding, WICET expects that CMC’s claim for $10.7 million is, in fact, a majority of CMC’s actual costs. Again, CMC is not entitled to its costs on an indemnity basis. The result is that neither WICET nor any Assessor can have any confidence in the Costs Statement prepared by CMC. … For any items that the Assessor is minded to consider: (a) CMC should produce its own invoices, accounts and file in full; and (b) the invoices and accounts should be the subject of a line-by-line comparison with the Costs Statement for the purpose of verifying the items; (c) further, CMC should be asked to demonstrate that it has in fact incurred and/or paid the costs the subject of the claim. Verification of CMC’s claim is essential - in particular for time-based entries... “ [Underlining added] [298] It follows that, not only did WICET expressly assert that items of work were never performed, it demanded a strict and thorough verification process needed to be undertaken by the costs assessor before he approved any items claimed. The costs assessor’s observations that WICET did not make specific objections about any items never having been undertaken is not therefore strictly correct. But I do not consider that anything turns on this observation for the following five reasons: 170 T3-11 l 36. 171 WICET’s notice of objection at [1.6] to [1.12]. -- 90 of 93 -- 91 (a) First: The costs assessor’s observations must be considered in the context of the overall assessment process, including his views about the notice of objection; (b) Secondly: As these reasons reveal, I am satisfied that the strict verification process was undertaken by the costs assessor in this case; (c) Thirdly: The costs assessor’s reasons expressly recognised the significant reduction in the amount claimed by CMC; (d) Fourthly: I am not satisfied that these observations are demonstrative of any error on the costs assessor’s part in determining the appropriate orders as to costs on the assessment; and (e) Fifthly: As the analysis below further reveals, I am not satisfied that any error in the exercise of the costs assessor’s discretion to award costs has been demonstrated in the circumstances of this case. [299] Otherwise, at first blush, there is some obvious force to WICET’s submission on this issue given the substantial reduction in the costs claimed by CMC. But on review, it is immediately apparent that WICET’s submissions fail to recognise two important matters: (a) First: While CMC had originally claimed approximately 91 per cent of its actual costs which were considerably reduced on assessment – it still recovered a substantial amount of its costs on the standard basis in circumstances where WICET had taken the stance that CMC was not entitled to any costs without any proof or verification; and (b) Secondly: The assessor took into account the reduction in the costs claimed to those recovered in awarding costs as he did. For example: (i) by Item 19402 CMC claimed the costs of drafting the costs statement in the sum of $161,278.92. But this was reduced by 25 per cent (so only $117,971.04 was allowed);172 and (ii) in CMC’s supplementary costs statement, a claim of $339,838.81 was claimed as CMC’s assessed costs (of the assessment process). But only $64,163.73 was allowed. [300] As the following observations from P McMurdo J (as his honour then was) in Hunter v Hunter [2015] QSC 181 reveal, a costs assessor is required to balance a number of competing considerations in undertaking the costs assessment process and is to be afforded a broad discretion when balancing those considerations in determining the costs of the assessment:173 “The assessor then considered whether some of the burden of the costs of the assessment should be borne by the present respondents. He correctly took into account the outcome of the costs assessment. That was a relevant consideration because where claims in a costs statement are substantially reduced by the assessor, it can be said that the costs 172 Items 19403 and 19404 claimed for producing and copying the costs statement – those claims were reduced by 25 per cent as well. 173 [2015] QSC 181 at [35]. -- 91 of 93 -- 92 of the assessment have been increased through the fault of the party which presented the costs statement. But that was not the only consideration: it was also relevant for the assessor to consider the nature and extent of the objections. In this case, the assessor noted that the applicant appeared to have an objection to every item. And he noted that her objections were not framed by reference to the relevant principles and rules and that at least some of them were entirely without merit. In my view, there was no error in the exercise of his discretion in deciding to apportion the costs of the assessment as he did.” [Underlining added]. [301] It follows that the costs assessor’s exercise of his discretion, in terms of the costs of the assessment, required him to make a balanced assessment of the appropriate order as to costs in all of the circumstances of this case. Those circumstances included the following relevant matters: (a) the costs assessment process was incredibly hard fought and elongated – taking over one and a half years to resolve; (b) the costs assessor’s findings (which I have found were open for him to have made) about the unsatisfactory nature and form of the dual format of the notice of objections filed by WICET; and (c) that CMC was compelled to prepare a costs statement and to have its costs assessed in order to obtain payment of them. The costs of preparing the costs statement could not have been avoided by it. To the extent that the costs statement was reduced – that fact was taken into account. [302] As the following extract from his reasons show, the costs assessor balanced the impact of the notice of objection against the reduction of costs awarded to CMC:174 “…despite the reduction the Plaintiff sustained…I ultimately decided that the Plaintiff should receive the benefit of the costs of the assessment, as I also considered that WICET’s Objections would have had to traverse a similar if not identical range in any alternative scenario.” [303] As the person tasked with such a huge undertaking, the costs assessor was in the best position to make a reasoned and balanced assessment of the appropriate orders as to costs in all of the circumstances of this case. Whilst it was open for him to have made a different order as to costs, I am not satisfied that any discernible error in his reasoning has been established or that his ultimate decision about costs was clearly wrong. It was, I am satisfied, open for the costs assessor to have determined costs as he did. Part Four: summary of outcomes of the applications. [1] It follows that the outcome of this decision is that it is unnecessary for the costs assessment to be remitted back to the costs assessor for any further consideration. 174 Costs assessor’s reasons dated 12 April 2023 at [10(d)]. -- 92 of 93 -- 93 [2] I direct that by 4.00pm, Friday 22 March 2024, the legal representatives for the parties liaise and formulate draft orders [including any agreed orders as to costs] in accordance with these reasons, which includes providing for the costs certificate to be varied consistent with the parties agreement, that the correct amount for care and conduct is $892,232.86.175 [3] The variations to the costs certificate and orders consistent with my findings are as follows: In terms of CMC’s application, that: 1. The costs assessor’s decision to limit Mr O’Donnell KC’s daily rate to $9,000 per day is set aside and a daily rate of $10,000 is allowed;176 and 2. The costs assessor’s decision to limit Mr Doyle KC’s daily rate to $9,000 per day is set aside and a daily rate of approximately $14,600 is allowed;177and 3. CMC’s application is otherwise dismissed. (b) That WICET’s application is dismissed. [4] As to costs, the fact that CMC enjoyed success on two aspects of one of its five grounds of review and that WICET was unsuccessful on all three of its grounds of review, suggests that the appropriate orders as to costs are that WICET is to pay: 20 percent of CMC’s costs of its application for review; and all of CMC’s costs of WICET’s application for review. [5] However, there may be other factors that warrant different orders being made. While I encourage the parties to agree the appropriate costs orders, I will allow further submissions to be filed and served and a copy emailed to my associate addressing the issue of the costs of the applications (if necessary), by 4.00pm 22 March 2024. Orders [6] The Order of the Court is that by 4.00pm, Friday 22 March 2024, the parties are to: (a) email to my associate, draft Final Orders consistent with my findings (and costs, if those orders can be agreed); and (b) if necessary, file and serve written submissions as to costs, no longer than two pages, and deliver a copy of the submissions by email to my associate. 175 Pursuant to the document marked for identification “H”; T1-58 l 46. 176 See paragraph [107] to [109] of these reasons. This will require a recalculation of the amount the costs assessor allowed at the lower rate using the higher rate- with the need for the costs certificate to be varied accordingly. 177 See paragraphs [124] to [128] of these reasons. Again, This will require a recalculation of the amount the costs assessor allowed at the lower rate using the higher rate that Mr Doyle KC actually charged- with the need for the costs certificate to be varied accordingly. -- 93 of 93 --