D.M. Wright & Associates v Murrell (No 2) [2021] QDC 141

DISTRICT COURT OF QUEENSLAND CITATION: D.M. Wright & Associates v Murrell (No 2) [2021] QDC 141 PARTIES: D.M. WRIGHT & ASSOCIATES (Appellant) v MURRELL (Respondent) FILE NOS: BD 2586/2020 BD 280/2021 DIVISION: Appeals DELIVERED ON: 16 July 2021 DELIVERED AT: Brisbane HEARING DATE: 29 March 2021, 17 May 2021 JUDGE: Barlow QC DCJ ORDERS: In BD2586 of 2020: 1. The appeal be allowed in part. 2. The decision of the Magistrate be set aside. 3. The Certificate of Costs dated 30 October 2018 be varied by: (a) altering the figure in the chapeau of paragraph 3 to $20,987.36; (b) altering the figure for professional fees, in paragraph 3a to $34,248.68; (c) altering the figure for the total, where it first appears in paragraph 3, to $36,607.66; (d) altering the figure for the total, where it appears the second time in paragraph 3, to $20,987.36; and (e) altering the final figure in paragraph 5 to $23,830.13. 4. The appeal otherwise be dismissed. 5. The parties, by 23 July 2021, provide written submissions of no more than 5 pages about the costs of the appeal. -- 1 of 62 -- ii In BD280 of 2021: 1. The appeal be dismissed. 2. The appellant pay the respondent’s costs of the appeal. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – APPEAL, REVIEW OR REFERENCE – RELEVANT PRINCIPLES – GENERALLY – application made for assessment of costs by costs assessor pursuant to Legal Profession Act – costs assessor completed assessment – appellant sought review of costs assessor’s decision on various grounds – Magistrate dismissed review application – appellant appealed – whether the magistrate applied wrong principles – whether magistrate failed to consider grounds of review – whether cost’s assessor’s reasons were inadequate – whether short charges could be claimed by the appellant – whether reductions made were based on errors of law or fact. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – APPEAL, REVIEW OR REFERENCE – PROCEDURE AND EVIDENCE – COSTS OF APPEAL, REVIEW OR REFERENCE – appellant sought review of cost’s assessor’s decision on various grounds – orders were made in interlocutory hearings reserving costs of interlocutory issues – Magistrate ordered that some reserved costs be paid by the appellant – whether Magistrate erred in exercising discretion in making such an order. Legal Profession Act 2007, ss 340, 341, 342 Magistrates Court Act 1921, s 45 Uniform Civil Procedure Rules 1999, rr 720, 737, 738, 742, 765, 785 Allesch v Maunz (2000) 203 CLR 172, cited Casey v Quabba & Anor [2005] QSC 356, cited Chapman v Harris [2019] QDC 47, cited CSR Ltd v Della Maddalena (2006) 224 ALR 1, cited Hughes v O’Kane [1994] QSC 123, followed Jezer Construction Group Pty Ltd v Conomos [2004] QSC 440, considered King v Allianz Australia Insurance Ltd [2015] QCA 101, applied Leneham v Legal Services Commissioner [2017] QCA 137, cited Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635, followed -- 2 of 62 -- iii Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221, cited Radich v Kenway [2014] QDC 60, followed Radich v Kenway [2014] QCA 301, cited Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228, cited Re Edwin Sutherland & Co’s Bill of Costs [1971] Qd R 318, considered Sopov v Kane Constructions Pty Ltd (No 2) (2009) 24 VR 510, cited Southwell v Jackson [2012] QDC 65, considered Vasco Investments Pty Ltd v Morgan Stanley Australia Ltd (2014) 108 IPR 52, considered COUNSEL: SK Hartwell for the appellant IG Murrell, respondent, self-represented SOLICITORS: DM Wright & Associates for the appellant Contents Introduction .......................................................................................................................... 1 Nature of review and appeal ................................................................................................. 3 Principles applying to a costs assessment ............................................................................ 4 The assessment process ........................................................................................................ 5 Cases dealing with assessment processes and fees .............................................................. 7 Consideration of the process ................................................................................................ 8 Conclusions on costs and fees for assessment .................................................................... 11 Costs of providing reasons ................................................................................................. 12 Failure to consider grounds of review ................................................................................ 15 Overall failure to consider grounds of review ................................................................ 15 Costs of delivery and disclosure issues .......................................................................... 15 Misapplication of s 341, inadequate reasons for reductions, incorrect disallowances ... 17 Ordinary assessment items ......................................................................................... 18 Inadequate reasons ..................................................................................................... 18 Incorrect folio count: formal parts of letters............................................................... 19 Time less than a 5 minute block ................................................................................. 23 Reduction of Enid bill for failure to disclose ............................................................. 24 Costs charged after the termination of retainer .......................................................... 27 Short charges .................................................................................................................. 31 Items where appeal allowed ........................................................................................... 34 Failure to accord natural justice ..................................................................................... 35 Outcome of the principal appeal ........................................................................................ 35 -- 3 of 62 -- iv Costs of the principal appeal .............................................................................................. 36 Appeal about costs of the review........................................................................................ 36 General grounds ............................................................................................................. 36 15 April 2019.................................................................................................................. 37 23 August 2019 .............................................................................................................. 38 21 January 2020.............................................................................................................. 39 Conclusion on costs appeal ............................................................................................ 40 Appendix A – items not to be reviewed or for which no error was found ......................... 41 Bill for estate of Enid ..................................................................................................... 41 Bill for estate of Joyce .................................................................................................... 41 Bill for estate of Gordon ................................................................................................. 41 Appendix B – Items for which reasons alleged to be inadequate ...................................... 42 Appendix C – Items for which assessor has reduced fee for formal parts of letters or parts of letters not drawn ............................................................................................................. 51 Appendix D – Time less than a 5 minute block ................................................................. 52 Appendix E – Short Charges .............................................................................................. 53 Appendix F – Items for which appeal allowed (in part or in full)...................................... 57 -- 4 of 62 -- 1 Introduction [1] These appeals arise from two decisions of a magistrate.1 By the first, she dismissed the appellant’s application to review a costs assessment that had been conducted by a costs assessor.2 By the second, she made orders for the disposition of the costs of the review. [2] The principal appeal has been argued and considered in two parts. In my decision on the first part, I rejected the appellant’s submission that the magistrate erred in finding that the costs assessor was not biased and there was no reasonable apprehension that he might have been biased.3 In these reasons, I consider the balance of the issues raised in the principal appeal and the appeal against her Honour’s orders on the costs of the review. [3] The appellant (a solicitor practising under a firm name) was the respondent’s solicitor in three related matters.4 The solicitor and the client had entered into a costs agreement for two of those matters. The solicitor conducted work on all three matters in 2015 and gave the client a bill for each of the matters. The total of the three bills was $44,817.49. The client sought an assessment of the solicitor’s costs charged for those matters. (The three bills were dealt with together throughout the assessment, review and appeal processes, including in submissions. I shall also deal with them in that manner.) [4] An assessor was initially appointed by court order in February 2016. On an application by the solicitor alleging a reasonable apprehension of bias by that assessor, by consent he was removed and a second assessor was appointed in January 2017. [5] The second assessor reduced the bills to a total of $31,109.55. He ordered that the solicitor pay the client’s costs of the assessment, which he assessed at $15,620.30, and his own fees of $13,950.5 He determined that, as the client had previously paid all the solicitor’s fees, the solicitor should refund the sum of $29,328.24. [6] The solicitor sought reasons for the assessor’s decisions.6 The assessor prepared reasons, for which he charged the solicitor $5,014.70.7 [7] The principal appeal is made on a number of grounds. In my first decision, I considered and rejected grounds 4 to 9, which concerned whether the magistrate had erred in failing to find there was actual bias, or a reasonable apprehension of bias, on 1 The appeals are pursuant to the Magistrates Courts Act 1921, s 45(1)(a). 2 The review was pursuant to Uniform Civil Procedure Rules 1999, r 742, which is applied to the assessment of costs as between a solicitor and the solicitor’s client by the Legal Profession Act 2007 (LPA), s 743I. 3 DM Wright & Associates v Murrell [2021] QDC 93. 4 For simplicity, I shall refer to the appellant and the respondent respectively as the solicitor and the client. The matters concerned the estates of the client’s mother (Joyce), sister (Enid) and father (Gordon). Each died intestate and the client wished to be appointed administrator of each estate. 5 His invoice and the attached time sheet records that the total time for which he charged was 77.5 hours. 6 Under UCPR, r 738. 7 The original bill for the reasons was for $4,950, but the parties agree that the assessor later amended that bill. Although the amended bill is not in the material before the court, I am prepared to assume that it was given. -- 5 of 62 -- 2 the part of the assessor in carrying out the assessment. Having rejected those grounds, I now proceed to consider the balance of the grounds of appeal. [8] The solicitor listed 20 grounds of appeal, most containing several sub-paragraphs. At the hearing, counsel for the solicitor abandoned grounds 1, 15 and 20. Ground 2 (and, it seems, ground 3) were dealt with in conjunction with grounds 18 and 19. Thus there remain, in essence, 9 substantive grounds of appeal, but there is repetition between some of these grounds and others (or between appeal grounds and grounds of review below). Doing the best I can, the issues that remain for me to determine can be summarised as follows (in the order in which I shall consider them). (a) Whether the costs of the assessment were excessive, principally because the costs assessor failed to manage the assessment process appropriately (appeal grounds 10 to 12).8 (b) Whether the costs assessor’s fees, including for his reasons, were manifestly excessive (appeal grounds 13, 16, 17), principally for the same reason. (c) Whether, in dismissing three of the grounds of review before her, the magistrate failed to consider those grounds adequately or at all, thus constructively failing to exercise her jurisdiction (appeals ground 2, 3, 18). The relevant grounds of review were whether the costs assessor: (i) misapplied s 341 of the LPA (review grounds 5, 6((iv) and (v)); (ii) did not give sufficient reasons for disallowing or reducing a number of items of work claimed by the solicitor (review grounds 6(i), (ii) and (iii)); (iii) made errors in disallowing or reducing the fees for a number of items of work claimed by the solicitor, in particular: A. by incorrectly counting the number of folios in documents (review ground 6(vi));9 or B. in finding that work was carried out unreasonably or in an unreasonable way (review ground 6(vii)); (iv) wrongly refused to allow the solicitor to claim “short charges” and to offset those against deductions made (review ground 7a); (v) erred in ordering that the solicitor pay: A. the costs of an issue in the assessment process referred to as the “disclosure issue” (review ground 7b); and B. the costs of an issue in the assessment process referred to as the “delivery issue” (review ground 7d);10 8 This encompassed grounds of review items 7e and 7f. 9 “Folio” is not a term used in the costs agreements, but it appears to have been used by the parties and the assessor as meaning 100 words in a document. 10 This is also appeal ground 14. -- 6 of 62 -- 3 As a consequence of these errors, the solicitor submits that the magistrate failed to deal with or to allow the solicitor’s objections to the costs assessor’s deductions to a large number of specific items of work. (d) Whether, in purportedly considering those grounds, the magistrate applied a decision of a District Court judge, on appeal from a magistrate’s interlocutory decision, without seeking submissions from the parties about the application of that decision to the issues before her, thus failing to accord natural justice (appeal grounds 2, 3, 19). [9] The solicitor submits that, if she succeeds in demonstrating the grounds summarised in paragraphs 10(c) and (d) above, I should remit the proceeding to the Magistrates Court for a different magistrate to consider and determine those grounds of review and the solicitor’s objections to the deductions made by the assessor. The client submits that, if it becomes necessary, I should deal with those grounds rather than remit the proceeding. [10] So far as the costs of the assessment are concerned, the solicitor does not suggest that she should not be liable to pay those costs in the event that her bills are ultimately reduced by more than 15%. Her principal objection is to the amount of those costs. However, her counsel submitted that, if the solicitor’s objections to the deductions are successful to the extent that, by this appeal or by a remitted review of the assessment, her costs are not reduced by 15%, then each party should bear her or his own costs of the assessment. Nature of review and appeal [11] On a review of a costs assessment, the court conducting the review (and therefore this court on appeal from a review conducted by the Magistrates Court) may relevantly: (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) refer any item to the costs assessor for reconsideration, with or without directions; and (d) make any other order or give any other direction the court considers appropriate.11 [12] In a review by a court of a costs assessment:12 Generally, the discretion of the costs assessor will not be interfered with by a judge on review, unless the costs assessor has erred on a question of principle. Where the question on the review is the quantum allowed for the item, the court is generally unwilling to interfere with the judgment of the costs assessor whose expertise is to make judgments on the quantum of the costs and disbursements. 11 UCPR, r 742(6). 12 King v Allianz Australia Insurance Ltd [2015] QCA 101, [18] (Mullins J, Philippides JA and Burns J agreeing). Similar statements from a number of decisions were set out by Martin J in Pinehurst Nominees Pty Ltd v Coeur de Lion Investments Pty Ltd [2015] QSC 122, [8]-[10]. -- 7 of 62 -- 4 [13] An appeal to this court is by way of rehearing.13 For the purposes of the appeal, this Court has the same powers as the Court of Appeal has to hear an appeal.14 Among those powers are “all the powers and duties of the court that made the decision appealed from.”15 [14] As the appeal is by way of rehearing, this court may substitute its own decision based on the facts and the law as they now stand.16 The court is required to conduct a “real review” of the evidence and to determine whether the court below erred in fact or law.17 The court must make its own determination of the facts in issue from the evidence, but giving due deference and attaching a good deal of weight to the magistrate’s view. However, “the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”18 [15] The requirements for an appeal by way of rehearing have been described as: that the appellate court is obliged to conduct a thorough examination of the record and a real rehearing. It is not confined to reconsideration of the record to correct errors of law, although that will certainly be encompassed in such an appeal. It is required to consider suggested errors in fact-finding. … Having conducted a rehearing as so described, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given at first instance’. This involves … conducting a thorough review of the primary judge’s reasons and engaging in the tasks of ‘weighing conflicting evidence and drawing … inferences and conclusions.19 Principles applying to a costs assessment [16] The principles governing the conduct and result of a costs assessment are, of course, directly relevant to this appeal. It is necessary to set them out. [17] A costs assessor must assess any disputed costs that are subject to a costs agreement, relevantly, by reference to the provisions of the costs agreement that specify the amount, or a rate or other means of calculating the amount, of the costs.20 [18] Where there is no costs agreement, the assessor must, in effect, assess the costs under the applicable scale of costs.21 [19] In assessing costs, the assessor must consider whether or not it was reasonable to carry out the work, whether or not the work was carried out in a reasonable way and, in 13 Rule 765(1), rendered applicable to an appeal to the District Court by rule 785(1). 14 District Court of Queensland Act 1967, s 113. 15 Uniform Civil Procedure Rules 1999, r 766(1)(a). 16 Allesch v Maunz (2000) 203 CLR 172, 181 [23]. 17 Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679, 686-687. 18 Allesch v Maunz (2000) 203 CLR 172, 180 [23]; Teelow v Commissioner of Police [2009] QCA 84, [4]; McDonald v Queensland Police Service [2018] 2 Qd R 612, [47]. 19 CSR Ltd v Della Maddalena (2006) 224 ALR 1, 7 (Kirby J). 20 LPA, s 340. 21 LPA, s 319(1)(b). -- 8 of 62 -- 5 respect of costs not assessed under a costs agreement, the fairness and reasonableness of the amount in relation to the work.22 [20] In conducting an assessment, the assessor must decide the procedure to be followed. That procedure must be appropriate to the scope and nature of the dispute and the amount in dispute; consistent with the rules of natural justice; and fair and efficient.23 [21] At the end of the assessment, the assessor must certify the amount or amounts payable by whom and to whom in relation to the assessment, having regard to the amount at which costs were assessed and the costs of the assessment.24 [22] A costs assessor must also decide the costs of the costs assessment but, unless the assessor otherwise orders for good reason shown by the solicitor, the solicitor must pay those costs if the costs assessed are reduced by 15% or more. Otherwise the costs are in the assessor’s discretion.25 In this respect, the approach of the legislation and the courts has been described in the following way, with which I respectfully agree: The position under s 342(2) … is that where, as here, the costs are reduced by more than 15 per cent, the costs assessor has a discretion as to the costs of the assessment, but the starting point is that the law practice pays them, so that it is necessary for the law practice to show there is good reason for departing from the prima facie position stipulated by the statute in order to avoid an order that it pay the costs of the assessment.26 [23] A party to an assessment may request the assessor to provide reasons for any decision included in the certificate and that party must pay the assessor’s reasonable costs of preparing the reasons. Those costs form part of that party’s costs in any subsequent review.27 The assessment process [24] The issues concerning the costs of the assessment and the assessor’s fees for conducting it28 mostly fall to be determined together, because the solicitor contends that they were both manifestly excessive because the assessor failed to adopt and enforce a reasonable procedure for conducting the assessment. [25] The solicitor submits that a reasonable and appropriate procedure for the assessor to decide was for him to seek submissions from the client on the client’s objections, a response from the solicitor and, perhaps, submissions in reply from the client. Then the assessor should have determined the assessment. If, in the preliminary stages or in the course of the assessment, the assessor considered that further or fresh submissions would assist him on particular issues, then he should have adopted the same process for submissions and determined that issue, then proceeded further with the assessment. [26] In fact (the solicitor submits) the assessor engaged in lengthy and, at times, repetitive correspondence with the parties, in which he particularly argued with the solicitor and 22 LPA, s 341(1). 23 UCPR, r 720. 24 UCPR, r 737. 25 LPA, s 342; UCPR, r 732. 26 Chapman v Harris [2019] QDC 47, [120]. 27 UCPR, r 738. 28 Setting aside, for the moment, his fee for preparing reasons for his decision. -- 9 of 62 -- 6 sought to explain (that is, give reasons for) or to justify his decisions from time to time. Instead, he should have simply acknowledged the parties’ correspondence, if necessary instructed one or both parties to cease corresponding on an issue, taken the submissions into account and, if requested after issuing his certificate, given his reasons. When he finally gave reasons, he mostly repeated many of the reasons given in prior correspondence, thus resulting in unnecessary duplication of effort and expense. This process vastly increased the parties’ costs of the assessment29 and the assessor’s fees for conducting it. Thus the court should review the process adopted and, if it agrees with the appellant’s submissions, it should reduce the amount of costs, including the amount of the assessor’s fees that the solicitor should pay for those matters. [27] The client submits that the manner in which the assessment proceeded was mostly due to the solicitor engaging in voluminous, argumentative and lengthy correspondence with the client’s solicitors and the assessor. The solicitor wrote many long letters to the assessor, necessitating (and sometimes specifically requesting) that he respond to her and answer the issues that she had raised. On some occasions, she would not accept his decisions on such issues, but sought instead to debate them, demanding additional explanations or that he alter his decisions. While the assessor did, on occasions, say that he would give reasons, if requested, after delivering his certificate, the solicitor demanded that he provide his reasons immediately and then subsequently sought to argue against them. [28] Thus, the client submits, despite the assessor’s best efforts in attempting to curtail the process, he also attempted – in the face of the solicitor’s demands – to deal with the solicitor’s arguments and complaints in order, he must have thought, to enable him to proceed further with the assessment. [29] Mr Hartwell, appearing for the solicitor, pointed to the assessor’s duty to decide the procedure for an assessment, which must be appropriate to the scope, nature and amount in dispute. He submitted to the effect that, notwithstanding the many and lengthy letters sent by the solicitor to the client’s solicitors and the assessor, it was inappropriate for the assessor to have permitted that process to continue, or to entertain it. His failure in some way to shut it down was in breach of his obligations and should not result in the solicitor having to bear the client’s costs of dealing with all that correspondence (and the assessor’s responsive letters), nor the assessor’s fees arising from it. [30] Mr Hartwell also submitted that the assessor’s record of the time that he spent in the process shows that, in fact, the total time he spent actually assessing the solicitor’s bills was about 44.5 hours, between 14 and 22 May 2018. On my calculation, at his agreed rate of $180 an hour, that would amount to $8,010 (plus GST). [31] However, Mr Hartwell went on to submit (without any real explanation) that an appropriate time within which the assessment could have been completed was three days at 8.5 hours a day, totalling 24.5 hours. I calculate that to amount to fees of $4,590. Additionally, Mr Hartwell submitted that it should not have taken the assessor more than one day to prepare his reasons. On my calculation, that would equal $1,530.30 29 The client was represented by solicitors during the assessment process and in the Magistrates Court. 30 These figures do not include goods and services tax. -- 10 of 62 -- 7 Cases dealing with assessment processes and fees [32] In submitting that the assessor’s fees were manifestly excessive, Mr Hartwell referred to decisions of this court and the Court of Appeal that have considered the process and costs of an assessment and the reasonableness of an assessor’s fees. The client also relied on principles from those cases. It is convenient now to review the relevant parts of those decisions. [33] In Radich v Kenway [2014] QDC 60, McGinness DCJ considered a costs assessor’s obligations under r 720 in determining the procedure to be followed. The bills in question before her Honour totalled $20,313.37. They were assessed at a total of $11,187.24. The costs assessor’s fee for the assessment was $5,246.23. The respondent clients’ and their solicitors’ costs of the assessment were $23,057.45, which the appellant solicitor was ordered to pay. At the appellant’s request, the assessor provided reasons for his decision, for which he invoiced the appellant $7,892.50. [34] The solicitor in that case submitted that the procedure was not appropriate to the scope and nature of the dispute and the amount involved, given that the costs of the assessment were more than double the amount in dispute. Her Honour disagreed, relevantly saying the following. (a) It is appropriate, when the amount in dispute is relatively small, to adopt a procedure that will be relatively inexpensive.31 (b) There is no absolute rule that the costs of assessment cannot exceed the amount being assessed. The process of costs assessment is inevitably going to be an expensive one in circumstances where it is necessary for someone to pay a costs assessor to conduct the assessment and where one or both parties may incur legal costs in relation to the assessment.32 (c) In the matter before her Honour, it was not immediately obvious how the process of assessment could have been made more efficient, given the issues on which the parties were in dispute and the extent to which that dispute was in fact pursued by way of submissions to the costs assessor. A costs assessor is also required to comply with natural justice, so there is a limit to the extent to which the process can be pared back.33 (d) It was not necessary for her Honour to reconsider the assessment by the magistrate of any particular items and to make up her own mind as to its correctness, as is ordinarily the case with an appeal by way of rehearing, because, even with such an appeal, it remains for the appellant to show that the decision below was wrong. [35] The solicitor in Radich unsuccessfully sought leave to appeal to the Court of Appeal. In deciding that application, Boddice J recorded that the solicitor had submitted that the costs assessor had embarked on an assessment not limited to the matters raised by the clients’ affidavit, entertained prolix and irrelevant submissions and assessed items not the subject of objection without first hearing from the solicitor. Such an 31 [2014] QDC 60, [20]. 32 [2014] QDC 60, [21]. 33 [2014] QDC 60, [24]. -- 11 of 62 -- 8 assessment breached the requirements of rule 720 of the UCPR. The procedure was not appropriate, having regard to the scope and nature of the dispute, was not in accordance with the rules of natural justice and was not fair and efficient.34 [36] Relevantly to this appeal, Boddice J went on to say the following. (a) The directions made by the costs assessor included a timetable for the delivery of notices of objection or submissions by the clients and for submissions in response by the solicitor. Those directions were consistent with the requirements of r 720(2). They provided for a process which was fair and efficient, having regard to the nature and scope of the dispute which related to the whole of the bills, in the context of an alleged failure to satisfy the disclosure obligations in the LPA. The provision for submissions, including in reply, met the obligation to act in accordance with the rules of natural justice.35 (b) Where a client is seeking an assessment of the whole of the bills and that is ordered, all of the costs are to be assessed, as they are the costs in dispute for the purposes of the UCPR. The assessment is not restricted to only those items specifically raised by the client. However, that assessment must be conducted fairly and efficiently, and in accordance with the rules of natural justice. Compliance with the rules of natural justice necessitates the costs assessor giving the solicitor the opportunity to make submissions on any other items of concern.36 (c) McGinness DCJ was correct in observing that the mere fact the costs of the assessment exceeded the amount being assessed did not mean the result must be wrong. Regard must be had to the nature and scope of the dispute. Where, as was the case there, a central issue in the dispute is whether the solicitor has complied with the disclosure obligations, the assessment of the issues in dispute is likely to involve considerable expense.37 Consideration of the process [37] The amount of correspondence exchanged in the course of the assessment in this case is extraordinary. The certificate was dated 30 October 2018 and the assessor posted it to the Magistrates Court and to the parties the next day. From the date of his appointment to then, the correspondence between the parties and the assessor (not including the certificate, its attachments and the assessor’s covering letter) totalled 541 pages. Given that volume, it is not surprising that all parties’ costs and the assessor’s fees were so high.38 [38] The real issue is whether those costs and fees were justifiable. [39] Mr Hartwell submitted that the costs of the assessment were increased substantially by the manner in which the client (by his solicitors) conducted the process. Mr 34 Radich v Kenway [2014] QCA 301, [20]. McMurdo P and Applegarth J agreed with his Honour. 35 [2014] QCA 301, [34]. 36 [2014] QCA 301, [36], [38]. 37 [2014] QCA 301, [43]. 38 The correspondence comprises part C of the agreed bundle, which has a total of 705 pages. As that total indicates, a further substantial volume of correspondence followed the publication of the certificate of assessment. -- 12 of 62 -- 9 Hartwell submitted that the first 153 pages of the correspondence related to two preliminary issues that were raised by the client and were determined against him. [40] These two issues are also separately raised in another ground of appeal, arising under a ground of review which the solicitor contends the magistrate did not consider.39 I shall not go into them at this juncture. However, I do record that the solicitor contends that the extent of correspondence and, therefore, costs generated by these issues is a clear example of the assessor’s failure to adopt a reasonable process for the assessment and, on these issues, is the fault of the client raising them. [41] In his written submission to this court, Mr Murrell analysed the correspondence exchanged between the parties and the assessor on a number of issues that arose in the course of the overall assessment process from appointment to certificate. His analysis was not disputed by the solicitor in this appeal. [42] That analysis showed that, on several issues, the volume and length of correspondence from the solicitor considerably exceeded the volume and length of correspondence from the assessor, as well as that from the client’s solicitors. For example, on the “delivery issue”, before the files were delivered to the assessor the solicitor wrote four letters containing 1,343 words, the assessor wrote two letters containing 844 words and the client’s solicitors wrote three letters containing 632 words. Even after the files had been delivered to the assessor, the solicitors wrote another three letters about the matter containing 2,135 words.40 The letters did not all relate solely to the delivery issue, but the differing length of the correspondence is telling. It was later reflected in the respective volumes of correspondence between the parties and the assessor throughout the assessment process. [43] I have read much of the correspondence generated in the process and I have scanned the balance of it. My rough calculation of the number of pages of correspondence devoted to various issues reveals the following. (a) Most of the first 111 pages concerned the delivery issue, all before the assessor had the file or even, for most of it, the order appointing him to assess the costs. (b) He gave procedural directions by letter of 9 February 2018 (p 62ff). (c) Pages 112 to 161 concerned disputes about the solicitor having access to the file and, in part, the disclosure issue. (d) The client provided lists of particular objections to the bills under short covering letters of 23 March 2018 (pp 181, 183 are the covering letters). (e) The solicitor provided her responses to the objections on 10 May 2018 (p 195 is the covering letter). (f) On 21 May 2018, the assessor sought submissions on a number of items that were not the subject of objections. He also informed the parties that he had decided that the solicitor had not given sufficient disclosure on one file. However, he did not consider it to be a material non-disclosure and therefore he would still assess costs on the basis of the relevant costs agreement. He did say, though, that he would make an appropriate reduction of costs at the time the 39 See paragraph [8](c)(v) above. 40 Respondent’s outline of argument, table 7. -- 13 of 62 -- 10 assessment was completed (pp 196-203).41 He told the parties that he would give reasons for that decision, if requested, at the end of the assessment. (g) That led to a flurry of correspondence (pp 207-260), mostly from the solicitor, in which, among other things, she demanded that the assessor give his reasons then and she accused him of failing to provide natural justice if he did not give his reasons immediately. In the end, the assessor gave reasons on 26 June 2018 (pp 261-267). (h) On 10 July 2018, the solicitor made submissions on matters that had been raised by the assessor in his letter of 21 May 2018 (pp 290-309). It appears that, at the end of that letter, the solicitor gave notice that she would provide a schedule of “short charges” that she intended to claim.42 (i) On 13 July 2018, the assessor responded to a number of issues raised by the solicitor (including an alleged apprehension of bias) and sought submissions on whether the solicitor should be permitted to claim “short charges” (p 311). The parties made submissions and exchanged correspondence about that issue over the following few weeks (pp 314-373). On 15 August 2018, the assessor gave his decision and reasons for not allowing short charges and explained or responded to a number of other issues that the solicitor had raised in her correspondence (pp 374-378). (j) The solicitor then wrote again to the assessor, including debating his decision not to allow short charges (pp 380-383). (k) On 4 September 2018, the assessor asked whether the solicitor’s costs had been paid, which led to another flurry of correspondence on that straightforward question (pp 392-401, 404-408). The solicitor contended that it was irrelevant, notwithstanding that r 737 requires the assessor to certify the amount payable by whom and to whom, having regard to the amount at which costs were assessed and the costs of the assessment. (It is a reasonable construction of this requirement, in my view, that the question of who is to pay whom depends in part on whether any part of the solicitor’s fees had already been paid.) (l) On 5 September 2018, the assessor informed the parties that his assessment would reduce the solicitor’s costs by more than 15% and he sought submissions on the costs of the assessment. He later determined that the solicitor should pay those costs and, in effect, assessed those costs by seeking a bill from the client’s solicitors, the solicitor’s objections to the bill and a response from the client. This generated considerable correspondence and submissions (pp 402, 409- 541). (m) The assessor sent his certificate to the parties and the Magistrates Court on 30 October 2018. 41 I shall refer to this as the “disclosure adequacy issue”. 42 The last page of the letter is not in the agreed bundle but, in his reasons for not allowing short charges, the assessor said, “At the end of this letter [of 10 July 2018] I was advised that a schedule of short charges is being prepared and would be provided in the future.” -- 14 of 62 -- 11 Conclusions on costs and fees for assessment [44] This brief summary of the events from January to October 2018 serves to demonstrate why the costs of assessment and the assessor’s fees were so high. Having reviewed the correspondence, I have concluded that the solicitor’s conduct of the assessment process was a substantial (indeed, the predominant) cause of such a large amount of paper and costs being generated. The solicitor sent frequent lengthy letters to the assessor about issues that the solicitor considered relevant, or making submissions about issues raised by the assessor. Instead of allowing the assessor to get on with the assessment, the solicitor demanded reasons for interim decisions, debated those decisions after they had been made and, as I referred to in my reasons on the assertion of apprehension of bias, made and persisted with unjustified allegations against the assessor and attempted to denigrate him personally.43 [45] The assessor may have been better advised not to take the bait continually dangled before him. He did make several attempts to ask the parties to limit their correspondence to the real issues, but he was unsuccessful. It ill behoves the solicitor now to complain about the costs generated in the process, largely as a result of her own aggressive correspondence. To put it in equitable terms, the solicitor’s conduct reasonably led the assessor to assume that it was necessary to respond to the solicitor’s correspondence and the solicitor cannot now be permitted to resile from the assumption that she created. She cannot “approbate and reprobate.” [46] In the circumstances, subject to my consideration below of the disclosure issue and the delivery issue raised by the notice of appeal, I do not consider that the costs of the assessment, nor the costs assessor’s fees for conducting the assessment, are manifestly excessive. Nor has the assessor made any discernible error in determining the amounts of those items. This ground of appeal therefore fails. [47] However, I will comment that, in future, costs assessors should take firm measures to refrain from engaging in detailed or unlimited correspondence with parties to an assessment. Rather, the assessor should generally set out a simple procedure requiring one set of submissions from the parties on each issue and then make his or her decision on the issue (recording the reasons for his or her own reference, but not publishing them to the parties during the course of the assessment). The assessor should generally only publish one set of reasons, if requested, after the assessment is made. [48] Similarly, solicitors and clients involved in an assessment of costs should recognise that the assessment process itself can be time consuming and potentially expensive. Even if the assessment is as between solicitor and client, so arguably UCPR r 5 may not apply directly to the process, the philosophy of rule 5 applies even more acutely in the process of an assessment between solicitor and client. Solicitors, too, have an overriding obligation, as officers of the Court, to conduct disputes in which they are involved efficiently, cost effectively and with appropriate discretion and decorum. Parties to an assessment of costs should do all they can to minimise the costs of the assessment and to cooperate with each other and with the costs assessor in that endeavour. Parties who do not conduct themselves in that manner may expect that they may be visited with the costs of the assessment, in the exercise of the discretion given to costs assessors. These comments apply particularly to assessments of costs as between solicitors and their current or former clients. 43 [2021] QDC 93, [44], [72]-[74]. -- 15 of 62 -- 12 Costs of providing reasons [49] The solicitor submitted that the assessor’s fee of $5,014.70 for providing his reasons at the solicitor’s request was also manifestly excessive. In this respect, Mr Hartwell referred to the reasons of McGill SC, DCJ in Southwell v Jackson [2012] QDC 65. In that decision, his Honour considered an application for review of the assessment of three bills that, between them, totalled $67,416.75. Having completed the assessments, the assessor provided his reasons, for which he charged fees totalling $8,174.63. Among other issues, McGill SC, DCJ considered the reasonableness of those fees, which were about 50% of the amount charged for the assessments themselves. His Honour commented that that seemed a lot and he went on to say:44 The assessment process ought to produce working papers, and the fact that an assessor may be called upon to provide reasons ought to justify the assessor’s including in the working papers some brief note comprehensible to him of what the reasons were so that it would be relatively straightforward to provide reasons if they were required. The assessor must have had reasons for any adjustment that he made, and they must have been known to him at the time he made the adjustment. In my view if an assessment is done properly, the process of producing reasons ought to be relatively straightforward. It should not be a process which would require something like half the amount of time and effort required to do the assessment in the first place. Apart from anything else, it would not require the reconsideration of the very detailed and lengthy submissions which had been provided by the respondent in relation to the various matters … There should not in my view be any great additional charge for the provision of reasons … [50] His Honour did not interfere with the costs for the reasons in that case, but he warned that: If the issue arises in the future in respect of the costs of reasons for an assessment which was undertaken after these reasons are published, a costs assessor might expect that I may take a very different approach. [51] Here, Mr Hartwell submitted that the assessor’s reasons were unnecessarily long, repeated much that he had said in correspondence during the assessment process and in many respects comprised mere attempts to justify his own conduct, rather than to provide concise reasons for the decisions he had made in the assessment. Given the amount involved in the dispute, they were excessive and his fee was not justifiable. [52] The assessor provided his certificate to the parties and to the court, under cover of a letter dated 31 October 2018.45 Attached to the certificate were: (a) a schedule pursuant to UCPR r 747A of the disallowances of costs claimed in each of the three itemised bills – no reasons for the disallowances were stated in the schedules; (b) a schedule of the reductions made to costs claimed by the client’s solicitors as costs of the assessment, including brief reasons for the deductions, at the end of which was a 3½ page document headed “Written response in relation to matters raised by the Respondent Solicitors as to my decision as to the quantification of 44 [2012] QDC 65, [82] to [83], [85]. 45 Agreed bundle, part C, pp 547-548. -- 16 of 62 -- 13 the Costs of the Assessment and other matters set out in subsequent correspondence from the Respondent Solicitors” – in which the assessor expressly said that he did not charge for that response; (c) the assessor’s invoice for his fees for conducting the assessment, together with a schedule of times spent by him, showing the date, the task and the time spent by him, to which was attached a 6½ page document entitled “Written reasons in relation to my costs of assessing the matter” – in which he again expressly said that he did not charge for those reasons; (d) copies of several letters that were referred to in his reasons for the assessment. [53] In a letter dated 28 November 2018 from the solicitor, she requested that the assessor provide reasons for his decisions made in the course of the assessment.46 In that letter, the solicitor set out 12 separate issues about which she particularly requested the assessor provide his reasons. [54] The assessor’s reasons comprised a total of 91 pages, including attachments. In his reasons, he expressly gave reasons for each of the matters for which the solicitor had sought reasons. He began with tables giving short reasons for each of the items that he had disallowed. In a table attached to his invoice for providing his reasons,47 he recorded that he spent had 14 hours preparing those tables. [55] He then attached narrative reasons for each of the decisions that he had made about the issues raised by the solicitor. Many of the reasons were extensive. It seems to me that they were necessarily so in order to explain his reasons in the face of particular and often extensive submissions that he had received from the solicitor during the assessment process. However, some were simply copied and pasted from reasons that the assessor had previously given during the assessment process.48 Where he had charged for giving those reasons at an earlier stage, he should not charge again for the reasons at the end. It is not clear whether he did. But he also provided some reasons for which, again, he stated that he had not charged, or had charged only for making changes to them.49 [56] One of the solicitor’s criticisms of the assessor’s conduct of the assessment was that he responded to many of the solicitor’s letters in a manner that the solicitor categorised as attempting to justify the assessor’s conduct. I do not accept that criticism, particularly in light of the solicitor’s repeated assertions that the assessor was, or was threatening to, deny the solicitor natural justice, that the assessor was incompetent and that the assessor was biased. The solicitor specifically sought reasons for that correspondence, leading to the assessor providing four pages of reasons in which he dealt with each criticism that had been made by the solicitor and why he had responded. I consider that it was appropriate that he provide those reasons and, 46 Agreed bundle, part C, pp 581-583. 47 Agreed bundle, part C, pp 588-589. 48 Or from issues (and the reasons for them) that he had raised in earlier correspondence. Examples that I have been able to identify are his reasons for reducing claims for letters to take account of formal matters (attachment B to the tables) and his reasons on the disclosure inadequacy issue. 49 “Written reasons in relation to my costs of assessing the matter”, 6½ pages; reasons for refusing to hold the client responsible for the costs of the disclosure issue, 2.3 pages; reasons for not allowing charges for formal parts of letters, 4 pages. -- 17 of 62 -- 14 although relatively long, the extent to which he responded to the request was within his discretion. [57] In the table of his time that was attached to his invoice for providing his reasons for the assessment, the assessor recorded that the total time for which he charged was 27.5 hours, of which 14 hours were spent preparing the tables of reasons for disallowances, 4 hours preparing the table of reasons for allowing the individual items comprising the client’s costs of the assessment and the balance preparing narrative reasons. He split up the latter to show the time spent on each set of reasons concerning the separate issues. [58] Judge McGill SC has commented on the extent of costs assessors’ fees for providing reasons on a number of occasions. As long ago as 2012, his Honour suggested that assessors should, when making decisions on each item of costs, make and retain brief notes of their reason for each decision, which could then easily be reproduced if, after the certificate was provided, the assessor was asked to provide reasons. Then it would simply be a matter of going back through the notes and setting out the reasons in a comprehensible form.50 Those comments particularly apply, in this case, to the assessor’s fees for producing his reasons for the individual decisions on the solicitor’s costs and also on the client’s solicitors’ costs of the assessment. [59] Having regard to his Honour’s comments, I have some concerns about the time spent by the assessor in this case in preparing the tables of reasons for the disallowances and for the costs of the assessment. If proper notes had been kept of the reasons when the decisions were made, it should not have been hard to prepare tables setting out those reasons in short form. Indeed, it would have been most efficient for the assessor to have inserted those reasons in a column of the initial tables of disallowances and allowances, at the times he made those decisions. It would then have been a simple administrative task to print out the complete table as constituting the reasons, perhaps also spending a little time just reviewing them for accuracy. Also, instead of preparing, say, a legend of the meaning of repeated reasons applying to many items and simply cross-referring to that legend, the assessor often repeated or substantially repeated the entire explanation for many similar items. That was not an efficient way to provide those reasons. [60] Judge McGill SC expressed the tentative view that, since the “reasonable costs” of providing reasons form part of the costs of a review, it may be open to the court to review those costs and, if appropriate, to order that the assessor provide a refund of any excess costs.51 But his Honour did not express a concluded view. UCPR r 738 provides that the assessor’s fee for providing reasons forms part of the costs of a subsequent review. That being the case, it seems to me, with due respect to his Honour, that any question as to the reasonableness of that fee would ordinarily be a question to be determined in any assessment of the costs of the review, not by the judge or magistrate conducting the review. Of course, in that case it may also be necessary to permit the costs assessor to be represented at the assessment of the costs of the review in order, at that stage, to justify the fee for the reasons.52 50 Body Corporate for Sunseeker Apartments CS618 v Jasen [2012] QDC 51 (“Sunseeker”), [50]-[52]; Southwell v Jackson [2012] QDC 65, [82]-[87]. 51 Sunseeker, [54]. 52 The assessor was not represented before the magistrate, nor before this court. In contrast, in Southwell v Jackson, the assessor was represented by counsel. -- 18 of 62 -- 15 [61] As I said, I am concerned, in this case, that the assessor spent a total of 18 hours preparing the tables. However, I do not consider that it was for the magistrate on the review, nor is it for me on this appeal, to assess those fees. The fees formed part of the costs of the review and they should remain so, subject to any later assessment if it were sought.53 [62] This ground of appeal therefore fails. Failure to consider grounds of review [63] I turn now to consider the solicitor’s contention that the magistrate failed to consider several of the grounds of review before her.54 Overall failure to consider grounds of review [64] It is clear to me that the magistrate did not consider these grounds. Her second set of reasons appear, with respect, to be confused and not to address the grounds properly, if at all. She appears to have been attempting to address the solicitor’s contentions concerning the proper application of s 341, but she certainly has not addressed the other grounds. In this respect, the appellant is correct in some of her grounds of appeal. The magistrate did not address any of grounds 5, 6 and 7 except s 341. [65] Given that conclusion, it is open to me to refer those issues back to a magistrate for a fresh decision. However, given the amount involved and the time that this whole process has taken, I consider that it would be contrary to the interests of justice and would bring the law and legal processes into disrepute if I were to do that. The whole dispute should be brought to an end by this court. Therefore, I shall consider and determine them myself. Costs of delivery and disclosure issues [66] I have already alluded to two of the issues in considering the costs of the assessment. I shall deal with them first. [67] First, when the assessor was first appointed, he asked the solicitor to collect her files from the initial assessor and to deliver them to him. The client’s solicitors objected to that happening. They pointed out that the magistrate who had removed the initial assessor and appointed the new assessor had also ordered that the new assessor arrange to collect the files from the initial assessor and they asserted that that order was made with a view to preventing either the solicitor or the client having sole access to the files.55 The solicitor submitted to the assessor that she wanted to collect the files to ensure that they were in an appropriate order for a straightforward assessment to be done. Ultimately, after a considerable amount of correspondence, the assessor decided to arrange to have the files collected by a courier and delivered to him. [68] The solicitor submits that this issue (the “delivery issue”) arose because the assessor did not simply arrange for the file’s collection at the start. It was inappropriate to 53 In saying this, I do not encourage the parties to seek such an assessment. It would be out of all proportion to the amount involved to spend further time and costs in such an exercise. 54 I summarise those grounds above in paragraph [8](c). 55 I understand that the alleged apprehension of bias of the initial assessor arose because he had permitted the client to inspect the files in the absence of the solicitor. It was therefore a sensitive issue. -- 19 of 62 -- 16 engage in considerable correspondence about it and therefore these costs were incurred as a result of the assessor’s failure to adopt an appropriate procedure. The assessor ought not to have ordered that the solicitor pay the costs associated with that issue. [69] The second issue (the “disclosure issue”) arose because the client denied that he had been given certain costs disclosure documents that the solicitor insisted he had been given. The relevance of this issue was that, if inadequate disclosure had been given, then on assessment of the costs, the amount of the costs may be reduced by an amount considered by the costs assessor to be proportionate to the seriousness of the failure to disclose.56 [70] Again, correspondence was exchanged on this issue, although not as voluminous as on the delivery issue. [71] The assessor decided that the client had received the relevant disclosure and he gave his reasons for that decision on 6 March 2018.57 He did, however, indicate that he would continue to consider the question of whether the disclosure was adequate and therefore whether to reduce the amount of costs pursuant to s 316(4) of the LPA. In the end, he decided that he would make such a reduction but only in relation to the bill in relation to Enid. I will address that issue separately below. [72] The solicitor submits that the assessor ought not to have ordered that she pay the costs (and the assessor’s fees) of dealing with the disclosure issue, as she was successful on that issue, having satisfied the assessor that the client had received the relevant letters. [73] It is notable that both these issues were initially raised before the assessor had even received the files (or even, for part of it, the order appointing him to assess the costs). It was necessary for the assessor to deal with them at a time when he knew very little about the matter. In my view he cannot fairly be criticised for dealing with these preliminary issues in the manner that he did. [74] The solicitor also submits that the manner in which the assessor dealt with both issues was unreasonable and generated unreasonable costs. She should not have to bear the client’s costs, nor the assessor’s fees, of dealing with these issues. The costs should be excluded from the order that the solicitor pay the costs of the assessment and the assessor’s fees for dealing with them should be excluded from the fees that the solicitor is required to pay.58 [75] The starting point for consideration of these submissions is the default position prescribed by s 342, where a solicitor’s costs have been reduced by more than 15%, that the solicitor must show there is good reason for departing from the prima facie position stipulated by the statute in order to avoid an order that the solicitor pay the costs of the assessment.59 This, of course, is different from the general rule involving the award of costs between the parties to litigation, set out in r 681, that costs of a proceeding or an application follow the event unless the court otherwise orders. 56 LPA, s 316(4). 57 Agreed bundle part C, pp 151-154. 58 The solicitor did not quantify how much of the client’s solicitors’ costs or the assessor’s fees arose from these issues. 59 See [22] above. -- 20 of 62 -- 17 [76] The question is therefore whether the costs assessor erred in the exercise of his discretion in considering whether he should order that the solicitor not pay the costs of issues within, or preliminary to, the assessment on which the solicitor had been proved partly or wholly correct, or for other reasons. Of course, the assessor’s discretion in this respect is not unfettered, given the default position under s 342(2).60 [77] The question being a matter of discretion, the solicitor has a high bar to jump to demonstrate that this court (or the court below) should review the exercise of that discretion.61 In my view, the solicitor has not demonstrated any error in the assessor’s exercise of his discretion. [78] Neither the solicitor nor the client’s solicitors covered themselves with glory in their correspondence about the delivery issue. The solicitor, in particular, engaged in a great deal of correspondence on it, including accusing the client’s solicitors of professional misconduct (and copying that correspondence to the assessor, thus inviting him to read it). It would have been simple for each of the parties to refer the assessor to the order that required the assessor to arrange for the collection of the files and to offer to arrange for a courier to collect and deliver them, as ultimately happened, instead of arguing with each other about the reasons for that order having been made. [79] On the disclosure issue, again the parties should have dealt with it simply and quickly. The solicitor, again, engaged in substantial and, in my view, unjustifiably long correspondence about it. [80] Neither decision on the costs of those issues was “contrary to the weight of the evidence,” as the solicitor submitted on this appeal. Nor, in the circumstances, was either decision “unreasonable or plainly unjust,” as the solicitor also submitted. Each was a decision that, on the facts and having regard to the default order, was within the assessor’s discretion. [81] In the circumstances, the solicitor has not shown grounds why the costs of these issues should be dealt with other than by the usual order in accordance with s 342(2). In particular, he has not demonstrated any error by the costs assessor in exercising the limited discretion he had under that section in respect of the costs of either issue. [82] Therefore, review grounds 7(b) and 7(d) have not been substantiated. Misapplication of s 341, inadequate reasons for reductions, incorrect disallowances [83] I return now to issues concerning many of the specific items that the assessor reduced or disallowed. The solicitor contended before the magistrate that a large number of reductions or disallowances were made incorrectly, either because the assessor did not apply the respective costs agreements, or because he made errors of fact in calculation of the appropriate item of costs – for example, by miscounting the number of folios in a document. In other cases, he made errors of law, for example by not counting the formal parts of letters in counting the number of folios in the letters. Also, in some cases, the solicitor submitted, the assessor gave inadequate reasons for his decisions in making reductions to the bills. 60 Chapman v Harris [2019] QDC 47, [120]. 61 House v The King (1936) 55 CLR 499, 504-505. -- 21 of 62 -- 18 [84] It is convenient to deal with these issues together, because they are all, effectively, argued in a schedule of objections to the reductions made by the assessor to each of the three bills, which the solicitor produced to the magistrate in support of those grounds of review. Those schedules amount to a total of 63 pages. On reading the schedules, it is clear that they were produced by another costs assessor, rather than the solicitor.62 Ordinary assessment items [85] Many of the solicitor’s objections are, in fact, matters that are ordinarily decided by a costs assessor, based on his or her findings of fact and, often, his or her discretion and expert opinion about whether a particular item of work was reasonable and was reasonably undertaken. In those cases, the reviewing court (and this appellate court) should defer to the costs assessor’s opinion unless it is based on a clear error of fact that is contrary to the material before the assessor, or an error of law.63 I therefore decline to review those items where the reductions were made because the assessor determined that the work done was not reasonable or not reasonably undertaken. [86] There are also a number of reductions objected to for which insufficient evidence has been provided to this court to overturn the findings of the costs assessor. Both items for which deference is given to the costs assessor’s opinion, as well as items for which there is insufficient evidence to overturn the costs assessor’s decision, are identified in appendix A to these reasons, by the item numbers referred to in the schedules of objections. Inadequate reasons [87] In contending that the assessor failed to give adequate reasons for some deductions, the solicitor submitted that it was inadequate for the assessor to say simply, for example, that he agreed with the client’s objection, or the costs are unreasonable or excessive, or that they were not proper. In the absence of adequate reasons, the court should return those items to the assessor for a fresh decision or should itself review those items and determine the objection. [88] In support of that submission, the solicitor referred to cases on the adequacy of judicial decisions, from which it gleaned the principle that:64 A global, or general pronouncement, on the part of a judge that he or she has considered all the relevant evidence and reached a conclusion based thereon is not an adequate statement of reasons. Nor is it normally sufficient to set out the arguments of both sides and state simply that the contentions of one party are to be preferred to those of the other. 62 In some places, it refers to “my opinion”, “my experience,” “in my view” and “based on my review”. It seems likely that it was prepared by the costs assessor engaged by the solicitor, who produced an affidavit about which the costs assessor made comments in some of his reasons. 63 See [12] above. 64 This statement of the principles is apparently taken from a paper presented by Justice M Weinberg at the Judicial College of Victoria on 4 March 2014, entitled Adequate, Sufficient and Excessive Reasons. -- 22 of 62 -- 19 [89] The solicitor also contends that the use of the words “proper” and “not proper” indicates that the assessor applied the test under UCPR r 70265 rather than that under LPA s 341(1)(a) and (b). [90] I do not consider it necessary for an assessor to give a detailed reason for every decision he makes in the course of an assessment. As I have said, many aspects of an assessment involve the application of the assessor’s expert judgment, which a court will not usually review. An assessor’s duty to give reasons is not as strict as that of a court giving its reasons for a judgment. An assessor is entitled to exercise judgment in deciding whether an item of work was reasonable or was reasonably carried out. Only a short explanation for that judgment is necessary where reasons are sought. [91] Where, in her schedule of objections, inadequacy of reasons is referred to, I have reviewed the items and decided whether there is an apparent basis for the assessor’s view. Where I consider the reasons to be adequate, I have not reviewed the item itself. Where I consider the reasons to be inadequate, I have substituted my own decision, stating a brief reason. My decision on each of those items is in appendix B to these reasons. Incorrect folio count: formal parts of letters [92] Another ground of objection to several items, as I have said, is that, in determining the number of folios contained in a letter, the assessor did not count the words in the formal parts of the letter, such as the name and address of the addressee, the title and the salutation. As a consequence, where a claim for drawing a communication with a number of folios showed that the words counted to form part of that number of folios were only a few more than a block of 100 words, he would reduce the number of folios claimed by one as a rough measure of excluding the words comprising the formal parts of the letters. The solicitor submits that that is an error of law on the assessor’s part, as the costs agreements did not distinguish between formal and substantive parts of a letter and it expressly provided for a charge per 100 words or part of 100 words. [93] The assessor gave two sets of reasons for this view. One was in attachment B to his certificate; the other was in a separate section of his reasons. In summary, his reasons were that to “draw” a letter involved consideration of the contents of the folios drawn. When a letter was first produced, the formal parts comprising the name and address of the recipient and the subject matter were drawn, as was the body of the letter. But subsequent correspondence to the same recipient would, he assumed, include a copy and paste of the formal parts of the letter from an earlier version. No legal knowledge, thought or skill was involved in those parts of the letter, at least in the subsequent correspondence. Therefore, the formal parts were not “drawn” and should not be included in the number of words forming the folios for which the claim of “drawing” was made for the subsequent letters. Therefore no “work”, particularly by a solicitor or other professional, was done in engrossing those formal parts of the letters. [94] The solicitor contends that there was always work done in drawing the formal parts of the letters, as a solicitor or other professional must determine to whom the letter was addressed and its subject matter. She contends that, in her office, “copying and 65 That is, that costs are “necessary or proper for the attainment of justice or for enforcing or defending the rights of the party.” -- 23 of 62 -- 20 pasting” from one letter to another was not permitted, so the formal parts always involved work in drawing them. [95] The contention that copying and pasting between letters was prohibited in the solicitor’s office seems to be belied by one example that was drawn to my attention by the client. On 22 September 2015, the solicitor sent two letters to the Australian Electoral Commission to inform it respectively of the deaths of Enid and Joyce. The letters were respectively sent to the Commission in Brisbane and Canberra. Each of the letters set out a heading referring to the relevant deceased, her date of death and her last address. However, the body of each of the letters was identical, including commencing, “We are acting for Ian Gordon Murrell, the deceased’s brother and next of kin.” Mr Murrell is Joyce’s son, not her brother. It seems clear, therefore, that the letter about Enid was drawn first and then the substantive part of it was copied to become the letter about Joyce. [96] The assessor allowed the claim for the letter about Enid (which appears to have been the original letter), but reduced the claim by one folio on the basis of excluding the formal parts (Enid item 277). In the case of the claim for the letter about Joyce (item 173), he noted that it copied the letter about Enid and therefore treated it as a pro forma letter for which the fee prescribed in the costs agreement was $16, reducing the claim from $40 to $24.66 [97] The costs agreements provided that the solicitor would charge fees calculated at rates set out in a table headed “Scale of Fees”. That table described items of work and the charge or rate of charge for each item. Relevant to this claim, the scale provided: Item Matter for which charge is made Charge 101 Drafting Documents (other than letters) excluding solicitor’s time to correlate required information to enable the drafting of Court documents or other documents (a) Court document $110.00 per page or part of a page (b) Other document $40.00 per 100 words or part of 100 words 102 Producing documents in printed form (including the reproduction of letters) (a) Court documents $55.00 per page or part of a page (b) Other documents $30.00 per 100 words or part of 100 words 66 Despite claiming 2 folios for the Joyce letter, the bill only claimed $40 (the price for one folio). It is not clear why, when the claim for the Enid letter was for two folios. -- 24 of 62 -- 21 (c) Reproduction of letters $15.00 per 100 words or part of 100 words 103 Drafting and producing letters (including fax or email transmissions) excluding solicitor’s time to correlate required information to enable the drafting of letters (a) Letters $40.00 per 100 words or part of 100 words (b) Pro forma Letter (second and additional letters) 20% of the cost of the initial letter 110 Time reasonably spent by a secretary (except for work of an administrative nature only) (charged per 5 min blocks) $115.00 per hour [98] As can be seen, the agreements provide for “drafting and producing letters” (item 103). Other items provide for “drafting documents (other than letters)” (item 101) and “producing documents in printed form (including the reproduction of letters)” (item 102). The terms “drafting” and “producing” in the agreements therefore refer to different steps toward the final production of a document. It is necessary to determine what each of these terms means, in the context of the entire agreements. Although they are private agreements and must be construed on their face, their context is the basis for a solicitor charging a client for legal work. Therefore, common terms used in the context of solicitors’ costs may be relevant to construing those terms in the agreements, unless the common meaning of those terms is inconsistent with the agreements, so that terms have different meanings for the purposes of the agreements. [99] The costs assessor obtained assistance on this question of construction from the well-known loose-leaf service, Quick on Costs, in which the authors consider the “drawing and engrossing” of a document. The authors say:67 To "draw" a document is to draft or compose it, to prepare it and not simply to write it. Drawing requires the application of the mind to the document so that the correct words are used in the correct sequence and the document expresses what was intended. … A drawing charge is a charge for drawing what is new. Where a document or part of a document drawn is a copy of another document, an engrossing or copying charge may be made for what has been prepared but not a drawing charge. For example, a drawing charge may be allowed for drawing the title to proceedings on the heading or backsheet to the document which originates the proceedings, but in subsequent documents the heading or backsheet should attract a lesser engrossing or copying charge. … A drawing fee may be allowed for those parts of a document already in print, reflecting the consideration required as to whether those parts of the document in print apply to the particular matter, or should be amended. A number of scales 67 Quick on Costs, Westlaw AU, [20.660] (citations omitted, emphasis added). -- 25 of 62 -- 22 draw a distinction between drawing what is in print and what is new, allowing a lower fee for the "in print" matter. [100] Additionally, as to “engrossing”, the authors say:68 the word has meant the making of a formal copy of a document. Nowadays, however, the word engrossing equally often means getting down on paper the material drawn or composed in the mind, that is, the making of the original of a document. Drawing may include the completion of printed forms, but the allowable charge for engrossing is confined to the actual handwriting or typing by which such a document is completed. Similarly, where a document has been the subject of successive drafts, the engrossing charge should be made only for the final draft. [101] In my view, the “drafting and producing” of a letter involves the same concepts as “drawing and engrossing” a letter. This is supported by the separate items for drafting a document other than a letter and producing documents in printed form, including reproduction of letters. To draft a letter is to create the written parts of a letter (including the formal parts) for the first time. To produce a letter is to engross, or to put into one document, the drafted parts and any other parts of the letter. Where some parts are freshly drafted and other parts are taken from previous letters (whether taken by copying and pasting or by retyping from earlier letters that have previously been drafted), then the production of the new letter involves partly the production of the freshly drafted parts and partly the reproduction of the previously drafted parts. Thus, for the new body of a letter, the charge of $40 per 100 words or part thereof applies, under item 103(a) of the agreements. But, for previously drafted parts that are reproduced in the letter, the charge of $15 per 100 words or part thereof applies, under item 102(c) of the agreements. [102] Therefore, with respect, neither the solicitor nor the assessor was correct. The solicitor was entitled to charge $40 per 100 words or part thereof for the entirety of an entirely new letter, including formal parts. But, after the first letter to the client or other person had been drafted and produced, she was entitled to charge at that rate only for the body of each letter. But she was also entitled to charge $15 per 100 words or part thereof for the formal parts that had previously been drawn. Those formal parts are, in my view, parts such as the internal file reference, the date, the name and address of the addressee, the manner of transmission (such as by email, post or facsimile), the salutation and the signatory.69 The heading or subject matter may be reproduced or drafted, depending on whether it changes between letters. [103] However, where the substantive part of a letter is simply reproduced in another letter (whether on the same file or another file), the reproduced copy of the letter should be treated as a pro forma letter. Pro forma letters are treated differently under the agreements. The common meaning of a pro forma document is one that has been drafted without the personal details of the person to whom it is addressed, allowing for the insertion of those details in the reproduction of the body of the document. If there were not a separate item for pro forma letters, then the production of such pro forma letters may have entitled the solicitor to charge for drafting the different personal details and reproducing the balance of each letter. But the agreements specifically provide a different method of charging for pro forma letters, by providing 68 Quick on Costs, [20.680] (citations omitted). 69 Although the date is likely to differ with each letter, it is so basic and short that I do not consider that it would, in subsequent letters, justify charging it under the item for drafting. -- 26 of 62 -- 23 that each such letter be charged at a sum equal to 20% of the originally drafted and produced letter. Thus, the assessor was correct in treating the letter at item 173 of the Joyce bill as a pro forma letter.70 However, in item 277 of the Enid bill, the assessor should have allowed $40 per 100 words for all of the letter, as it was entirely freshly drafted, except the reference and the date, for which she could charge $15 per 100 words or part thereof (but not adding to the costs of the letter by separately charging for each component). [104] As far as I am aware, the only item to which a charge for a pro forma letter was applied by the assessor was item 173 in the bill concerning Joyce. The substantive part of that letter was simply a reproduction of the letter the subject of item 277 of the Enid bill. Therefore, the charge allowed for Joyce item 173 was correct. [105] The items where the assessor has incorrectly reduced the charge claimed by the solicitor for letters by excluding any charge for formal parts, and the amounts by which the charge allowed should consequently be increased, are set out in appendix C to these reasons. Time less than a 5 minute block [106] Another issue of law raised by the solicitor is whether the assessor was wrong in reducing time cost charges where the time involved in a task was less than a five minute period, or less than a complete multiple of such a period, but the solicitor has charged for complete five minute blocks. [107] The relevant items in the costs agreements are: Item Matter for which charge is made Charge 107 Time reasonably spent by a lawyer on work requiring the skill of a lawyer (except work to which any other item in the Scale applies) (charged per 5 min blocks) $495.00 per hour 108 Telephone attendance up to 5 minutes in duration $42.00 per call 109 Time reasonably spent by a law clerk on work (except work to which any other item in this Scale applies) (charged per 5 min blocks) $165.00 per hour. 110 Time reasonably spent by a secretary (except for work of an administrative nature only) (charged per 5 min blocks) $115.00 per hour. [108] The solicitor gave, as an example of this error, item 98 (apparently in the bill for Joyce), for a solicitor’s telephone attendance said in the bill to be 20 minutes long. 70 See paragraph [96] above. -- 27 of 62 -- 24 The assessor reduced a claim of $82.50 by $8.25, on the basis that the file note of the conversation recorded that it lasted 18 minutes. The solicitor submits that the full amount should have been allowed because the costs agreement allows a charge “per 5 min[ute] blocks”. The solicitor in fact split the charge for this item between the Joyce and Enid bills (item 180 in the Enid bill), as the call concerned both matters. However, the assessor did not alter that item in the Enid bill. [109] Neither the assessor nor the solicitor is correct. First, there was no basis for the assessor to reduce the claim by an amount equal to 1/60 th of the hourly charge in only one bill. If, indeed, the appropriate charge was to be determined by the minute, he should have reduced it by 1/60th on each bill, as the call was two minutes less than 20 minutes. But the agreements did not provide for charging by the minute. The solicitor is correct in saying that she was entitled to charge per 5 minute block. [110] But the solicitor is incorrect in claiming that she is entitled to charge for four 5 minute blocks when the call lasted 18 minutes. Only three 5 minute blocks were completed in that call and therefore she was entitled to charge only for three such blocks. The agreements did not say “charged per 5 min blocks or part thereof,” in contrast to other items that provided, for example, for charging “per 100 words or part of 100 words.” [111] Therefore, the correct way to deal with the charges for this phone call was to allow a total charge of three 5 minute blocks ($123.75) and to allow half of that amount ($61.88) on each bill. [112] A list of reductions on this basis is set out in appendix D to these reasons. Reduction of Enid bill for failure to disclose [113] As noted above, one of the issues that arose in the course of the assessment was the disclosure issue in relation to the Enid bill. The assessor, in a letter dated 21 May 2018, indicated that he considered that a disclosure of costs made on 22 September 2015 did not meet the requirements of Division 3 of the LPA, that is, it was a failure to give adequate costs disclosure. Having already decided that that failure was not a material non-disclosure for the purposes of s 340(1)(c) of the LPA, the assessor went on to consider that it was still within his discretion to reduce costs in an amount proportionate to the failure. He did so, reducing costs on the Enid bill by $1,287.00. The solicitor challenges this reduction. [114] The assessor, in his reasons, stated that he had found that the costs estimate included in the disclosure of 22 September 2015 was “incorrect to a significant degree”. He noted that a range of costs of $9,500 to $13,500 plus GST and outlays was given in that disclosure. He recorded that the upper limit of that estimate had already been reached on the exact date the estimate was provided.71 A further estimate was provided a short time later on 23 October 2015, which revised the estimated range to between $13,500 and $25,500 plus GST and outlays. By this time, according to the itemised bill and the costs assessor, the total costs incurred were $19,734.62. [115] The assessor went on to note that no evidence was provided of the basis on which these costs estimates were calculated, such as “work in progress” printouts. He did 71 At page 48 of his reasons the assessor gives this date as 22 September 2014. This was clearly merely a typographical error (meaning to refer to 2015), given that the earliest date on the bill was in March 2015. -- 28 of 62 -- 25 not consider that, even without such printouts, it would have been difficult for an experienced lawyer, such as the solicitor with carriage of the matter, to review the work done and to provide an accurate estimate of the total legal costs that were to be incurred by the respondent. This was, in the assessor’s opinion, particularly true of this solicitor, who by her own admission had decades of experience working in estate and other related matters. [116] The solicitor, both in her letter dated 10 July 2018 and in a schedule of objections to the reductions, provides three authorities in support of her contention that the assessor has made an error.72 [117] Both Jezer and Casey were decided prior to the commencement of the LPA. The regime has changed, but I accept that some guidance on the nature of costs estimates can be drawn from those cases. [118] Jezer was an application for a declaration that certain costs agreements were void and that a bill of costs should be delivered calculated other than under those agreements. One of the arguments was that an estimate of costs that may be payable either to the client or to the other party at the end of any litigation was insufficiently detailed and thus inconsistent with the requirements of paragraph 18 to the schedule to the Queensland Law Society Act 1952. [119] Fryberg J made the following remarks, which the solicitor quotes in her objections: The provision of a wrong estimate, and it can only be an estimate, does not produce the result that the estimate ceases to be an estimate. For the applicants it was submitted that this estimate was so vague and so plainly and widely wrong that it did not merit the description estimate, but I do not agree. It may well be that the estimate, in fact in overall terms at least, was not a bad one. The material does not really demonstrate that one way or another. In any event, it seems to me that mere inaccuracy, even substantial inaccuracy in the estimate does not mean there is no estimate for the purposes of this section. [120] I accept that reasoning. Mere inaccuracy, it is well understood, does not render an estimate inconsistent with the obligations of disclosure. This was confirmed by Jones J in Casey, a case involving a dispute about indemnity costs and the validity of a costs agreement. The plaintiff’s solicitors had entered into a costs agreement which gave estimates of between “nil and $250,000.00 (approximately)” in relation to both total legal costs and potential costs payable under a costs order. The defendant disputed this on the basis of being “tantamount to a failure to give any estimate.” [121] Jones J held that the costs estimates were not genuine attempts to inform the client as required by the schedule to the Queensland Law Society Act. At [39], his Honour said: An estimate for fees and costs in a range between nil and $250,000 is not an estimate which provides any guidance for a client in the position of this plaintiff. It was not necessary to provide a single estimate to cover the extreme possibilities for the conduct of the claim. If a genuine total estimate cannot be given, the schedule contemplates a range of estimates for the work and an explanation of the variables. In a personal injury claim where the various steps in a proceeding are well defined, providing a stage by stage estimate of fees and costs is not a difficult undertaking. The client would thus be informed whenever 72 Jezer Construction Group Pty Ltd v Conomos [2004] QSC 440 (Jezer), Casey v Quabba & Anor [2005] QSC 356 (Casey) and Leneham v Legal Services Commissioner [2017] QCA 137 (Leneham). -- 29 of 62 -- 26 there is any major change in the extent of his/her liability. Any major change affecting exposure to costs (such as an admission of liability) could be contemplated in that framework or be the subject of further notification. [122] The assessor rejected the authority of both Jezer and Casey to estimates under s 315, on the basis that Fryberg J stated that his decision was “for the purposes of [s 48 of the Queensland Law Society Act].” To that extent, the assessor was in error. While there are differences, the old regime under the Queensland Law Society Act still contemplated a consumer protection system based on disclosure of a number of matters, including estimates of total legal costs. Case law referring to that regime, while not necessarily binding, still holds weight. [123] Leneham is the only case on which the solicitor relied that was decided subsequent to the enactment of the LPA. It was an appeal from a disciplinary proceeding in QCAT regarding a number of charges of professional misconduct or unsatisfactory professional conduct. One of those charges related to a failure to comply with the ongoing duty to disclose under s 315. [124] The solicitor relies on passages from Leneham such as this from McMurdo JA (with whom Boddice J agreed): [62] The word “aware” in s 315 is unambiguous. It is, in this context, synonymous with “actually knows”. Nothing in the text, context or purpose of s 315 indicates that instead it means “should be aware”. The awareness is the state of mind which triggers the obligation, under s 315, to make further disclosure as soon as reasonably practicably from the time of that awareness. The provision does not require the disclosure of that which is unknown. [63] The purpose of s 315 would not be defeated or compromised by giving “aware” its ordinary meaning. The obligation of initial disclosure, as prescribed by s 308 of the LPA, is to provide (relevantly) “an estimate of the total legal costs if reasonably practicable.” That estimate must be a genuine one. But the duty under s 308 is fulfilled although the estimate is inaccurate or incomplete, because s 308 does not require the estimate to be a reasonable one. Similarly, s 315 imposes a standard of honesty, not reasonableness. That standard should not be imposed in the absence of its express prescription, especially having regard to the serious disciplinary consequences from a contravention. [125] I also accept these propositions. To be aware, for the purposes of whether further disclosure is required under s 315, is to have actual knowledge of any substantial change to anything included in a disclosure. It is not for this court to decide otherwise. [126] However, there is an issue in the application of Leneham to these circumstances. Leneham concerned a question of whether there was any need for an updated estimate at all. That question does not arise here. The solicitor in this case clearly thought an updated costs estimate was required, or at least prudent, and provided not one but two within the span of just over a month. The question here, then, is not whether the solicitor held actual knowledge – the solicitor did hold that knowledge, evidenced by the existence of updated costs estimates – but whether the updated estimate was genuine. [127] I find against the solicitor and agree with the assessor on this point. [128] As I have said, the solicitor must have had some knowledge that there had been substantial change, at least enough to necessitate updating the costs estimate. As the -- 30 of 62 -- 27 assessor pointed out, the itemised bill indicates that, by the point the first updated estimate was provided, the “estimate” was already superseded, as the upper limit had already been passed. The amount was certainly ‘not incapable’ of being determined.73 This is not a case of simple cost overruns in the course of a proceeding, which can (and regularly do) happen. This estimate was clearly wrong, had no basis and was grossly misleading. I am satisfied that the solicitor has moved beyond the realm of mere inaccuracy and that this did not constitute a genuine estimate of costs that someone with the knowledge of the solicitor should have made. [129] Furthermore, it would not be within the object of consumer protection contemplated by Part 3.4 of the LPA to allow solicitors to provide an estimate (or range) of the total legal costs that has no chance, as the facts stand at the date of the estimate, of being accurate. As the assessor pointed out, it would not have been difficult for the solicitor to review the file, see what work had already been undertaken and provide a genuine estimate accordingly. [130] The further estimate given on 23 October 2015 was given at a time when the bottom half of the range had already been exceeded, as the costs already incurred to that date (as shown in the bill) were $19,734.62. Again, given that fact, it was a very misleading estimate, although at least it did not so severely understate the estimated costs that a bill delivered that day would render it totally incorrect. That estimate, if it had been provided instead on 22 September 2015, may have been genuine. [131] Accordingly, I uphold the reduction to the Enid bill on this basis, in the amount provided by the assessor. I see no reason to alter the amount of the reduction, that being $1,287.00, despite the legal error in his reasoning, in rejecting the application of Jezer and Casey. The amount of the reduction was within his discretion and the exercise of that discretion is not vitiated by that error. [132] The Queensland Law Society has provided a Guidance Statement on ongoing disclosure that indicates that it would be astute for practitioners to have in place systems by which work in progress is periodically reviewed against the initial disclosure.74 Such systems may have prevented the misleading estimates being provided. I commend such systems to all solicitors in Queensland. Costs charged after the termination of retainer [133] The assessor disallowed in bulk a substantial number of items on the basis that work after the termination of a retainer is not chargeable. The assessor, citing Southwell v Jackson at [55] – [61], held that such costs were “not sustainable”. [134] In response, the solicitor submitted that she was entitled to claim costs after the termination of the retainer, either on the basis of the (by this point terminated) costs agreements or on a quantum meruit for the work done.75 The solicitor also submitted that, should costs be payable on a quantum meruit, the appropriate scale to be applied 73 Jezer at p 11, line 22. 74 Queensland Law Society Ethics Centre, ‘Ongoing Costs Disclosure’, Guidance Statement No 2, revised 25 July 2017, cl 2.2. 75 Citing Vasco Investments Pty Ltd v Morgan Stanley Australia Ltd (2014) 108 IPR 52 (Vasco), Ireland v Trilby Misso Lawyers [2011] 2 Qd R 320 (Ireland) and Legal Services Commissioner v Baker (No 2) [2006] 2 Qd R 249 (Baker). -- 31 of 62 -- 28 would still be the scale provided in the costs agreements (where relevant) for the matter. [135] With respect, neither position is entirely correct. The position in Southwell is best understood in the context of that decision. McGill SC, DCJ considered the question whether or not a costs agreement had been validly terminated. Having answered in the affirmative, his Honour then upheld the decision of the costs assessor in disallowing “some” subsequent items, but did not give any further reasons for that opinion. Southwell should not be considered as authority for the proposition that all work done after the termination of a retainer is not chargeable on some basis. The costs assessor was in error in considering that the claims for costs as a whole could not be accepted on some basis other than a retainer. [136] On the other hand, the position does not rise to the point submitted by the solicitor in her objections to the assessment. First, as a matter of general law the retainers and the costs agreements were terminated by a letter dated 12 November 2015 from Mr Murrell to the solicitor, which relevantly said: I ask that you stop working on matters relating to both my mother, Joyce Mary Murrell, and my sister, Enid Joyce Murrell, and that you work out what costs are owed to your firm for the two cases. [137] I find that this complied with the requirements in Clause 7 of the costs agreements. If there had been any doubt about whether this should have been considered a termination - and I do not consider that there should have been - the prudent course would have been to ask the respondent to confirm that position in a way which is clear and unequivocal.76 [138] Therefore, any attempt to rely upon the costs agreements as extant agreements after 12 November 2015 is misplaced, as the basis of the costs agreements (the instructions to assist in the respective estate matters) had been withdrawn. If any costs were claimed on a quantum meruit basis, a contention I address below, then the assessment of those costs would be governed by the general law regarding quantum meruit claims77 and any price previously agreed for the services was merely a piece of evidence to consider.78 As McPherson JA has said:79 Once the contract is gone, it is the law that must determine whether payment should be made for the work done, and not the terms of an agreement that the parties have by their words and conduct finally put aside and discarded. [139] Thus, I now turn to that quantum meruit claim. At the outset, I accept that a claim in quantum meruit is available for legal services rendered. So much is clear from the terms of the LPA which provide that, where there is no costs agreement, costs be assessed and legal costs be recoverable under either the applicable scale of costs or according to the fair and reasonable value of the legal services provided.80 What is incorrect, in my opinion, is the solicitor’s proposed application of the principles of quantum meruit claims. 76 Stark v Dennett [2008] 2 Qd R 72, [46]. 77 See, for example Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 (‘Pavey’). 78 Pavey at 252; Sopov v Kane Constructions Pty Ltd (No 2) (2009) 24 VR 510, 517. 79 Iezzi Constructions Pty Ltd v Watkins Pacific (Qld) Pty Ltd [1995] 2 Qd R 350, 362. 80 LPA, s 319(1)(c). -- 32 of 62 -- 29 [140] Baker, Ireland and Vasco all consider, at least briefly, the question of a quantum meruit claim in relation to the payment of costs after the termination of a retainer. However, the references to Baker and Ireland by the solicitor demonstrate, with respect, a misunderstanding of those cases. Baker was an appeal from a disciplinary proceeding in the Legal Practice Tribunal regarding the removal of a solicitor’s name from the roll of legal practitioners for work done on what are colloquially referred to as “no win no fee” retainers. Ireland dealt with the termination of another “no win no fee” retainer by the solicitor, and McMeekin J explicitly stated (at [18] and [30]) that that case did not determine any question of whether the solicitors could claim fees or outlays. Each case, in any event, dealt with costs which were incurred prior to the termination of any retainer and thus holds little relevance to this particular claim by the solicitor. [141] Vasco is more relevant. That case regarded professional services provided by a firm to an investment bank in relation to a recapitalisation project of a fund manager. The bank denied liability to the firm and the firm sought payment on a quantum meruit. Vickery J set out the principles for quantum meruit claims:81 [337] The following principles apply to an action in quantum meruit, as derived from Pavey & Matthews Pty Ltd v Paul, Brenner v First Artist Management Pty Ltd, Lumbers v W Cook Builders Pty Ltd (in liq) and the cases cited therein. [338] Vasco’s claim under this head is a claim in restitution arising out of services performed. [339] The law may impose an obligation to make restitution on a quantum meruit basis, under what I will call the first class of case, where the plaintiff proves: (a) actual or constructive acceptance of the benefit of the provider’s goods or services by the recipient; (b) the recipient of the goods or services should have realised that the provider expected to be paid; and (c) it would be unjust for the recipient to take the benefit of the goods or services provided without paying a reasonable sum for them. … [346] The provider of the services in the first class of case must prove that the services were not provided as a gift, or on the basis that payment should not be made unless a precondition has been met and that condition remains unfulfilled. [347] The court is not concerned with the actual state of mind of the parties when considering whether payment ought to have been contemplated in the first class of case. The appropriate inquiry is whether the recipient of the services, as a reasonable person, should have realised that a person in the position of the provider of the services would expect to be paid for them. Where the services are provided pursuant to a request made in a normal commercial relationship with a person whose business it is to provide those services for reward, this requirement will usually be satisfied. [348] The circumstances which may satisfy the element of injustice sufficient to impose an obligation under the first class of case to make fair and just restitution will vary from case to case. In Angelopoulos & Ditara Pty Ltd v Sabatino & Spiniello, Doyle CJ noted nine factors which were held in that case to give the acceptance of the relevant services the necessary character to support 81 Applied in Queensland in Lupker v Shine Lawyers Pty Ltd [2016] 2 Qd R 323 (footnotes omitted). -- 33 of 62 -- 30 the claim. But these are by no means definitive or exhaustive. Some elements or variants thereof may appear in some cases which justify relief, others may not. [142] One of the cases to which Vickery J referred was Lumbers v W Cook Builders Pty Ltd (in liq).82 In Lumbers, a majority of the High Court discussed the nature of a “benefit” in a quantum meruit claim: The doing of work, or payment of money, for and at the request of another, are archetypal cases in which it may be said that a person receives a “benefit” at the “expense” of another which the recipient “accepts” and which it would be unconscionable for the recipient to retain without payment. ... [It] is essential to consider whether the facts of the present case yield to analysis as a claim for work and labour done, or money paid, because where one party (in this case, Builders) seeks recompense from another (here the Lumbers) for some service done or benefit conferred by the first party for or on the other, the bare fact of conferral of the benefit or provision of the service does not suffice to establish an entitlement to recovery. As Bowen LJ said in Falcke v Scottish Imperial Insurance Co: “The general principle is, beyond all question, that work and labour done or money expended by one man to preserve or benefit the property of another do not according to English law create any lien upon the property saved or benefited, nor, even if standing alone, create any obligation to repay the expenditure. Liabilities are not to be forced upon people behind their backs any more than you can confer a benefit upon a man against his will.” [143] This is not a case where there was some pre-condition to payment, such as in cases involving “no win no fee” retainers. No dispute is raised to the entitlement of the solicitor to charge for those costs which arose before the termination of her retainers and no statement of the law is made in that regard. The sole questions relevant here are those set out in paragraph [339] of Vasco. [144] The work undertaken by the solicitor subsequent to the termination of the retainer was not at the request of the client. No real benefit in relation to the progression of any of the client’s legal matters was derived and accepted by the client from the work. That work included: (a) back and forth communications (via email, post and phone) about the payment of an invoice from an accountant (which the client had already paid); (b) organising of payment out to the client of the balance held in the solicitor’s trust account; and (c) perusing letters which were sent to the firm from other parties who (apparently) had yet to be informed that the solicitor no longer acted for the client, charges for forwarding those letters and charges for the covering letters which were sent when those letters were forwarded, as well as disbursements for every time each of those documents was posted and emailed. 82 (2008) 232 CLR 635, 663 (Emphasis in original. Footnotes omitted.). -- 34 of 62 -- 31 [145] The third category, for example, presents a logical issue in favour of the client’s case. Say, hypothetically, that the solicitor had delivered the bills on 1 December 2015. Those bills had been paid out of the money in the trust accounts. The relationship, and any outstanding liabilities, were satisfied. Subsequently, on 16 December 2015, a letter was received from a creditor of the estate asking after the client. On what basis would (or indeed, could) perusal of such a letter be charged? The quote from Bowen LJ in Falcke v Scottish Imperial Insurance Co83 emphasised above in Lumbers is pertinent here. [146] The same can be said for the first of these three categories. The second is simply the solicitor carrying out her duties as trustee of the funds to release them to the client at the termination of her retainers. It was not part of carrying out her retainers. [147] There were also a number of instances in which the solicitor charged for items, such as the express postage of a bill of costs, which fall within the category of matters in the preparation of a bill for which a solicitor is not entitled to charge.84 Such items should, as a matter of principle, be disallowed and the solicitor was correct in not charging for most of that work. However, where that was charged, the costs assessor should rightly have disallowed it on this ground. [148] A reasonable person would not, in my opinion, have realised that the solicitor expected to get paid for this non-legal work. The client, on a number of occasions, communicated to the solicitor that he wanted the bills provided to him as soon as possible, going so far as to suggest that the delay in provision of the bills (which were not provided until 11 January 2016, nearly three months after the termination of the retainer) was causing him and his family stress.85 There were delays attributable to both parties and I make no finding on that point. Nonetheless, the client’s requests are indicative of the fact that he was not requesting the solicitor to undertake any of this work, besides the delivery of the bill (for which, as I said, the solicitor could not charge). [149] In summary, despite the error on the part of the assessor in his reasons, I find that it would not be fair, reasonable or just, and it was not permissible, for the solicitor to charge for any of the “work” which she has claimed subsequent to the termination of the retainers. The evidence does not support a finding to the contrary. Therefore, the reductions of the costs for those items were correct and this aspect of the appeal fails. Short charges [150] The solicitor contends that the assessor was wrong in declining to give the solicitor credit, against the deductions made by the assessor, for items in which the solicitor contended that she had, apparently inadvertently, under-charged the client for work done. The solicitor and the assessor referred to those claims as “short charges”. [151] I have referred to the correspondence on this issue in paragraphs [43](h), [43](i) and [43](j) above. In his reasons for disallowing this claim, the assessor relied on what he had referred to, in his letter of 13 July 2018, as “the general law prohibition on the alteration or substitution of bills of costs that have been delivered and where there is 83 (1886) 34 Ch 234. 84 Re Morris Fletcher & Cross’ Bill of Costs [1997] 2 Qd R 228, 249-250. 85 Agreed bundle part D, documents relating to the Enid Bill, page 796. I cite this not as a finding of culpability in causing the client stress, but as a clear indication that the relationship of solicitor and client had been terminated and no further legal work was expected. -- 35 of 62 -- 32 a need for the client’s consent or leave of the court.” He subsequently relied for that proposition on Re Edwin Sutherland & Co’s Bill of Costs [1971] Qd R 318 and a passage from the author of a book on the law of costs.86 In his reasons on short charges,87 he also referred to similar statements, in other works on costs,88 to that made in Dal Pont’s work at 5.54, to another passage in that work (at 18.90) and to Hughes v O’Kane [1994] QSC 123. [152] In Sutherland at first instance, Hoare J considered a situation in which a solicitor, having issued a bill of costs that had not been paid, issued a new bill in taxable form for a greater amount. His Honour was considering whether that was permissible or whether, in taxing the latter bill, the taxing master was obliged to limit it to the amount of the first bill. His Honour reviewed a number of authorities and found that the following proposition was long-standing and should be followed:89 There is undoubtedly a clear authority on the point in Loveridge v Botham (1797) 1 Bos at p.49, 126 ER 772, which held that an attorney was not entitled to withdraw a bill of costs once delivered and, in effect, substitute a bill for an increased amount although errors or real omissions, if proved, could be allowed for. [153] His Honour ordered that the second bill be taxed but limited in total to the amount of the first bill. [154] On appeal, the Chief Justice (with whom the other members of the court agreed) also reviewed authorities relevant to the question whether there was a rule that a solicitor who delivered a second bill must be limited on taxation by the amount of the first bill, particularly where the second bill was delivered before proceedings were commenced to tax the first bill. His Honour concluded that the law in Queensland was that,90 there must be special circumstances to entitle a solicitor to withdraw one bill and substitute another. … under special circumstances, this might be so, on the ordinary equitable ground of fraud, accident or mistake – such as, for instance, … in the case of accident, where a charge or page had been inserted by mistake; but special circumstances there must be. [155] In Hughes v O’Kane, Mackenzie J set out the principles governing the delivery of a second bill by a solicitor to a client:91 (a) a solicitor is generally bound by the bill delivered; (b) however, that rule is not inflexible. For example, where from accident or mistake a bill contains over charges, the solicitor may redress the error; and receive the correct consideration (rather than having the entire item disallowed on a taxation); 86 Agreed bundle part C, p 317; Dal Pont, Law of Costs (3 rd ed), 5.54. That edition has been superseded by a later edition but the paragraph in question (now 5.56) is not relevantly different. 87 Dated 7 February 2019, but delivered with his other reasons in April 2019. 88 Quick on Costs, Oliver on Costs. 89 [1971] Qd R 318, 322 90 [1971] Qd R 318, 330, quoting from the reasons of Sir George Jessel MR in Re Holroyde & Smith (1881) 43 LT 722. 91 [1994] QSC 123, 2-3. -- 36 of 62 -- 33 (c) in some cases, the court may permit a solicitor to withdraw a bill and to submit another; (d) “the guiding principle appears to be that where the incorrect inclusion in the bill has been occasioned by error or mistake and the court is satisfied that the solicitor has acted honestly and merits assistance in the matter, the court's jurisdiction extends to withdrawal of the bill and substitution of another although the ambit of amendment will be strictly confined.” [156] As can be seen, the principles set out above and relied on by the assessor concern the delivery by a solicitor to a client of a second bill for the same work. That is not the situation here. Rather, during the course of the assessment of a bill, the solicitor has sought to increase the charge claimed for certain items of work, or to add items not previously charged for, on the basis that she incorrectly under-charged in the bill. The authorities on which the assessor relied for rejecting those claims therefore are not directly relevant, although they may inform the proper approach to this type of claim. [157] The solicitor contended before the assessor that the approach she proposed, on allowing short charges in the course of an assessment, was supported by the fact that Judge McGill SC, in one review, had expressly offset, against amounts taxed off, amounts allowed as short charges.92 However, his Honour did not consider the principles upon which such charges may or may not be allowed. His Honour’s decision in that case is of no assistance here. The same can be said for another decision later referred to by the solicitor.93 [158] The authors of Quick on Costs describe relevant principles in these terms:94 Unless a valid conditional delivery has been made or the case is one where the solicitor has sued for her or his bill without the client seeking taxation, the bill cannot be withdrawn or amended without the client's consent. Generally the courts will only allow the amendment or withdrawal and redelivery of a solicitor and client bill in circumstances resulting from fraud on the part of another or genuine mistake or inadvertence on the part of the solicitor without desire or intention on the part of the solicitor to trick or take advantage of the client. The courts have shown a willingness to relieve a solicitor from having to bear the cost of work done or disbursements incurred on proper instructions simply because the particular charge reflecting the work done or the disbursements has not been noted or has not been properly noted in the bill. [159] Professor Dal Pont expresses the principles similarly, but relevantly he adds that one reason for the general prohibition on a solicitor issuing a new bill is that it prevents a solicitor who has sent a bill that he or she fears may be drastically pruned on assessment from seeking to substitute something more moderate upon learning that assessment is threatened and that the one-sixth rule puts the solicitor in jeopardy of being liable for the costs of assessment. A solicitor is also treated strictly because the matter is one where the solicitor is an expert and the client is not.95 [160] Professor Dal Pont goes on to consider the circumstances in which a court may give leave to a solicitor to amend a bill that has been delivered. He records that, even if 92 Paroz v Clifford Gouldson Lawyers [2014] QDC 125, [42]. Referred to by the solicitor in the agreed bundle, part C, p 339. 93 Lynch v Collins [1999] QCA 445, [24], referred to in agreed bundle, part C, p 370. 94 Quick on Costs (Westlaw AU online), [90.280]. Emphasis added. 95 Dal Pont, Law of Costs (4 th ed, 2018), 5.56. -- 37 of 62 -- 34 leave to amend is granted, the client is protected by the fact that the amendment does not affect the traditional “one-sixth” rule for determining who is liable for the costs of assessing the bill.96 [161] This review of the law indicates to me that the applicable principle is as stated in the passages from Quick on Costs that I have emphasised above. That is supported by the propositions, long accepted by courts, that errors or real omissions, if proved, may be allowed for in assessment.97 In the course of an assessment, the assessor may allow the solicitor to amend the claim for costs to charge appropriately for work done but overlooked or mistakenly recorded in preparing the itemized bill, whether the amendment is an increase or a decrease in a charge. Whether the assessor allows such costs is a matter within the assessor’s discretion. When additional costs are allowed, they may be offset against any deductions. However, any increases may not be permitted to increase the allowed costs above the total in the bill that had been delivered. [162] The assessor in this case, with respect, was mistaken in his ruling that the principle to which he referred applied to the short charges that the solicitor asked him to take into account in the overall assessment. To refuse to take account of properly undertaken work that was mistakenly not recorded (or not correctly recorded) in the bill would be to require the solicitor to bear the cost of work done simply because the particular charge reflecting the work done had not been noted or had not been properly noted in the bill. [163] As the assessor erred in law, his discretion was not properly exercised. This court may exercise that discretion in lieu of returning the matter to the assessor. I intend to do that. Thus, it is necessary to consider whether the solicitor’s claimed “short charges” were in fact properly claimable by her. [164] Those “short charges” and the reasons for them were set out by the solicitor in a schedule of short charges, for each of the Joyce and Enid bills, supplied to the assessor.98 The assessor did not consider each item in the schedules, as he decided that the solicitor was not entitled to claim any short charges for the reasons already discussed. Although I could refer the schedules back to the assessor for his determination, given the delays and costs to date I consider that it is appropriate for me to review them. Appendix E to these reasons sets out my decision on each item. [165] To make it clear, the items I have allowed will not be taken into account in determining the costs of the assessment. Items where appeal allowed [166] It has become apparent that, in the course of the assessment, there were certain instances where the costs assessor did err in law in a manner that affected the proper exercise of his discretion. Again, although such items could be referred back to him or to a magistrate for re-determination, I consider it appropriate to review them and decide the appropriate reductions in such instances. Unless it is already dealt with in 96 Dal Pont, 5.60. The “one-sixth” rule is the equivalent of the starting position under LPA, s 342(2). 97 See, in particular, the passage from Sutherland quoted above. Also, the principle stated in Hughes v O’Kane that an error in an overcharge may be redressed can also apply to under charges. 98 Sent on 20 July 2018: agreed bundle, part C, p 341. The schedules are pages 20 and 21 of the exhibit to the affidavit of Timothy Cunningham filed in the Magistrates Court on 4 October 2019. The short charges claimed totalled $2,417.75 for Enid and $546.75 for Joyce. -- 38 of 62 -- 35 the other appendices to these reasons, those items and the reasons for my decision on each reduction are set out in Appendix F to these reasons. Failure to accord natural justice [167] The solicitor contends, in the alternative to her grounds of appeal in respect of grounds 5 to 7 of the application for review, that the magistrate did not disclose to the solicitor her intention to dismiss those grounds on the basis of a decision of Judge Reid99 and therefore failed to accord the solicitor natural justice in not giving her the opportunity to make submissions about that decision. [168] It is unnecessary to address this issue, as I have separately dealt with each of grounds 5 to 7. I will say, however, that his Honour’s decision was entirely irrelevant to the substantive issues before her Honour and I do not understand her reasoning about it. But I need say no more. Outcome of the principal appeal [169] For the reasons stated above, I am satisfied that the assessor made a number of errors in the course of the assessment. I am also satisfied that the magistrate was in error in not dealing with those issues and in not allowing the appeal to that extent. Most of the assessor’s errors, though, were not as contended by the solicitor. Given the errors that I have found, it is necessary to allow the appeal, to set aside the magistrate’s order on the review and to substitute it by ordering that the costs assessor’s certificate be varied to take account of the changes to individual items in accordance with my decisions referred to above and in the appendices. [170] The consequence of those decisions is that the solicitor’s bills will be reduced by a total of $10,319.15:100 a reduction of 23.02% prior to any amendment on the basis of the short charges. For that reason and my reasons above concerning the costs of the assessment and the assessor’s fees, the solicitor should continue to be liable for those costs. [171] In respect of the claim for short charges, I have allowed the solicitor an additional $2,855.75: additions of $2,234.00 to the Enid bill and $621.75 to the Joyce bill. These will be reflected in the amendments to the costs assessor’s certificate as part of the professional fees. [172] Therefore, the costs assessor’s certificate should be amended by: (a) altering the figure in the chapeau of paragraph 3 to $20,987.36; (b) altering the figure for professional fees, in paragraph 3a to $34,248.68; (c) altering the figure for the total, where it first appears in paragraph 3, to $36,607.66; (d) altering the figure for the total, where it appears the second time in paragraph 3, to $20,987.36; and 99 D M Wright & Associated v Murrell [2020] QDC 110. 100 This does not include the $80.00 reduced as part of the amendment of the bill in the short charges. -- 39 of 62 -- 36 (e) altering the final figure in paragraph 5 to $23,830.13. Costs of the principal appeal [173] I shall invite the parties to make short submissions about the costs of the appeal. Appeal about costs of the review [174] Following her determination of the application for review, the magistrate received submissions and considered what orders should be made in respect of the costs of the review, including of three interlocutory hearings where those costs had been reserved. [175] Although not entirely clear, the magistrate appears to have ordered that the solicitor pay the client’s costs of the review (subject to her separate decisions on the reserved costs). This appears from her Honour’s reasons at [7] to [10], [66] to [70] and the order she made at [73]. There is no appeal from that decision. Although, in the principal notice of appeal, the solicitor seeks an order that the client pay the solicitor’s costs of the appeal and of the review, that notice of appeal is expressly directed only to the principal decision. The notice of appeal on her Honour’s orders as to costs is limited to the magistrate’s decisions on the reserved costs. Therefore, the magistrate’s decision on the costs of the review (apart from the reserved costs) should remain. [176] As for the reserved costs, her Honour, in effect, ordered that the solicitor pay some or all of the client’s costs of each occasion. The second appeal concerns those orders. [177] It appears that the total amount of the costs that the solicitor is liable to pay exceeds the relevant jurisdiction of QCAT and therefore the solicitor does not need this court’s leave to bring this appeal.101 [178] In the grounds of appeal and the solicitor’s submissions in support, she submits that the magistrate made a number of errors of fact in her reasons. I shall deal with each hearing in turn. [179] However, before dealing with specific grounds of appeal concerning each costs order, I shall deal with the solicitor’s submissions that the magistrate made seven other errors of fact or law that infected all of the individual decisions on costs. General grounds [180] I shall deal with the first four alleged errors together. They concern the magistrate mis-stating what had occurred on various occasions in the assessment process or in the review. None of those errors, even if established, appears to me to be material to her Honour’s decisions on the costs of the three hearings the subject of the appeal. This appears, not only from her Honour’s reasons, but also from my independent review of the costs orders: even if one were to take into account the facts for which the solicitor contends, they can have no material bearing on the individual decisions. Therefore, I reject those grounds of appeal. [181] The fifth alleged error concerns the costs order for the hearing on 21 January 2020. I shall consider this in dealing with that order. 101 Magistrates Courts Act 1921, s 45. QCAT’s jurisdiction (the “minor civil dispute limit” referred to in that section) is $25,000. -- 40 of 62 -- 37 [182] The sixth alleged error is that the magistrate appears to have misunderstood that she had power – and was being asked – to make or confirm an order for costs of a hearing on 29 October 2019. In fact, that order had previously been dealt with (and varied) in a separate appeal to this court from that order.102 I agree that the magistrate was not able to deal with that order and, to the extent that she purported to consider and determine those costs, she was in error. However, that error and her reasons for it had nothing to do with her Honour’s decisions on the costs matters actually before her. I do not agree that it can be said to have “infected” the other decisions. Therefore this ground fails. [183] The last alleged error is that the magistrate found that the proceeding had been delayed by the solicitor (magistrate’s reasons at [72]), when only the hearing on 29 October 2019 had been found to have been the fault of the solicitor and her Honour did not identify the delays to which she was referring. [184] The reason for the magistrate making that statement, in the last paragraph of her reasons, is not clear. However, it appears that she was then dealing with the question whether to order that the solicitor pay the client’s costs on the indemnity basis instead of the standard basis. She determined that question in favour of the solicitor, ordering that all the costs that she had awarded against the solicitor be determined on the standard basis. I do not consider that this reasoning “infected” her decisions on the individual costs orders. I dismiss this ground of appeal. 15 April 2019 [185] The first specific order the subject of the appeal concerns the costs of a hearing on 15 April 2019. That hearing was of two applications. On 27 February 2019, the client filed an application for judgment on the certificate of assessment. That application was listed for hearing on 15 April 2019. On 3 April 2019, the solicitor filed an application for an order that the assessor provide his reasons for his decision and that the client’s application be dismissed. That application was also set down for 15 April. At that hearing, the magistrate hearing the applications ordered that the assessor provide his reasons, adjourned the application for judgment to the registry and reserved costs. The magistrate below, in dealing with the reserved costs, ordered that the solicitor “pay the preparatory costs incurred by the client up until 4 April 2019 (when the client became aware of the solicitor’s application) but not the costs incurred on the day of the hearing.” [186] The solicitor appeals that order on grounds that the magistrate made errors in: (a) not considering separately the costs of each application dealt with on that day; (b) finding that the client withdrew his application, when it was simply adjourned to the registry; (c) finding that the client did not oppose the solicitor’s application, when he did and the solicitor was successful; and (d) finding that the client could not proceed with his application because of UCPR r 743H, when that rule simply provides that the court may delay giving judgment pending a review by the court of a costs assessor’s decision; and 102 See footnote 99 above. -- 41 of 62 -- 38 r 742(7) provides that, unless the court otherwise orders, the application for review does not operate as a stay of an order for judgment under r 740. [187] It is true that the magistrate ought strictly to have dealt with the costs of each application separately. However, the outcome of the client’s application on that day, for practical purposes, was a result of the fact that the solicitor filed her application after the client had filed his. While it would have been open for the court to proceed on the client’s application, the practical process was to adjourn it pending the outcome of the review, which itself could not proceed until the assessor had provided his reasons. There had also been some delay in the solicitor filing her application. That fact and that the solicitor was successful in her application appear to have been taken into account by the magistrate in ordering that the solicitor pay the client’s costs only up to the date of service of the solicitor’s application. The magistrate, exercising her discretion, took a practical view as to the costs of each application and determined how they should be paid. Although she may have erred in her understanding of (or may have simply mis-stated) the facts stated in the second and third grounds of appeal, I consider it unlikely that those errors had any practical effect on her decision, in that it was likely to have been the same in any event. [188] Even if I considered that her Honour had erred in the exercise of her discretion and it fell to me to re-exercise that discretion, I would not alter her Honour’s order on these grounds. [189] Therefore, this ground of appeal is unsuccessful. 23 August 2019 [190] The solicitor filed her application for review of the assessment on 24 April 2019. In the application, she sought directions for the progress of the application. The application was listed for hearing on 23 August 2019, when it came on before Magistrate Cull. Her Honour made directions for affidavits to be filed and reserved costs. [191] The magistrate ordered that the solicitor pay those costs. In doing so, she appears to have understood that, before Magistrate Cull, the solicitor had sought an extension of time within which to file her affidavits, whereas in fact the solicitor had simply sought dates for filing that were later than those sought by the client. The magistrate also seems to have taken into account, in making her order as to costs that the solicitor subsequently did not comply with those directions. [192] The solicitor appeals on the grounds that the magistrate erred in thinking that the solicitor had sought an extension of time and in taking into account the solicitor’s later non-compliance with the directions made by Magistrate Cull. [193] I agree that the magistrate erred in both respects. However, the appropriate order would still have been that the solicitor pay those costs, treating them as part of the costs of the review. Treating them that way, the magistrate’s order should stand, subject to the next issue. [194] In ground six of the appeal, the solicitor contends that the amount of costs allowed by the magistrate exceeds that provided for in UCPR, schedule 2 and the magistrate did not consider whether the costs had been necessarily and properly incurred by the client, as required by r 702(2). The latter part of that ground is not explained in the -- 42 of 62 -- 39 solicitor’s submissions to this court and I see no reason for any contention that the client’s costs on that day were not necessarily or properly incurred. As for the amount of the costs, the magistrate did not specify any amount. Rather, she ordered that the solicitor pay the client’s costs “in this matter” (by which she clearly meant the costs of that hearing) on the standard basis. The amount of those costs remains to be agreed or assessed. [195] Ground six, in respect of this order, fails. 21 January 2020 [196] In October or November 2019, the review was set down for a two day hearing commencing on 21 January 2020. On that date, counsel then representing the client sought an adjournment so that he could look at the solicitor’s original file. After some debate, that order was made and Magistrate Hay reserved costs. [197] Acting Magistrate Swan ordered that the solicitor pay the reserved costs. Her Honour accepted the client’s submission that he had not previously been allowed to inspect the file except on one brief occasion in 2017, while he had received by Dropbox what the solicitor said was a full copy, he was entitled to view the original file in order to see that it was complete and his counsel had not seen it and would require a considerable time to inspect and consider it. [198] The solicitor submits that her Honour erred in that the files were not relevant to the review and the one hour access that the client had had, had been allowed by the first costs assessor. [199] Those are not, in my view, errors of fact or law that vitiate the exercise of her Honour’s discretion to award costs. The fact was that the client and his counsel had not seen and had the opportunity to consider the solicitor’s file in its entirety for any length of time, if at all. It is not possible to tell whether the opportunity to inspect the file was irrelevant, as it may well have informed the client’s counsel’s approach to the review. While the application to inspect the file was late – a fact that was relevant to the appropriate order for costs of the adjournment and that may have led another magistrate or court to have made a different order - that does not vitiate the proper exercise of her Honour’s discretion. [200] These grounds of appeal fail. [201] Ground six of the appeal also applies to this item of costs: that is, the solicitor contends that the amount of costs allowed by the magistrate exceeds that provided for in UCPR, schedule 2 and the magistrate did not consider whether the costs had been necessarily and properly incurred by the client. Confusingly, though, the notice of appeal and the solicitor’s submission refer to paragraphs [63] to [64] of her Honour’s reasons as where the costs are allowed. Those paragraphs relate to the final hearing of the review, on 11 and 12 March 2020, not to the initial proposed hearing on 21 January 2020. The award of costs for the latter is dealt with at paragraph [59] of her Honour’s reasons. I shall take it that the solicitor intended to refer to that paragraph. [202] In that paragraph, her Honour records that the client sought the amount of $1,362 for counsel appearing for him on that occasion. Both parties were represented by counsel on that date. It was entirely within the client’s proper discretion to have counsel briefed and to pay his fee. I see no reason (and the solicitor provides none) why -- 43 of 62 -- 40 counsel’s fee was not necessarily or properly incurred. Nor did the solicitor submit to the magistrate that the fee in that sum was excessive. It seems to me to be a moderate fee for such a matter. Indeed, contrary to the solicitor’s submission, the fee is well within the scale for counsel’s fees for trials or other hearings in matters over $20,000: item 8(f) in schedule 2. The review had been set down for hearing on that day, although it was adjourned. Therefore, ground six of the appeal fails. Conclusion on costs appeal [203] For these reasons, the appeal against the magistrates’ orders disposing of the reserved costs is dismissed. The appellant should pay the respondent’s costs of that appeal. -- 44 of 62 -- 41 Appendix A – items not to be reviewed or for which no error was found103 Bill for estate of Enid Items 5 ($13.75), 15-16 ($13.75), 18 ($20.00), 31 ($13.75), 57 ($11.25), 58 ($13.75), 59 ($35.00), 99 ($0.75), 121 ($35.00), 123 ($35.00), 124 ($8.00), 133 ($35.00), 134 ($0.75), 137 ($7.00), 147 ($81.67), 149 ($3.50), 165 ($19.00), 172 ($13.75), 179 ($13.75), 187 ($21.00), 200 ($3.50), 204 ($3.50), 215 ($3.50), 224 ($0.70), 237 ($7.00), 241 ($5.30), 246 ($5.30), 271-272 ($17.50), 274 ($96.00), 279 ($13.00), 288- 289 ($7.70), 335 ($22.50), 336 ($1.00), 339 ($35.00), 355 ($13.75), 365 ($15.00), 366 ($55.00), 410 ($70.00), 411 ($13.75). Bill for estate of Joyce Items 22 ($35.00), 37 ($13.75), 39 ($13.75), 40 ($13.75), 49 ($45.42), 55 ($13.75), 74 ($13.75), 94 ($13.75), 102 ($13.75), 105 ($21.00), 122 ($3.50), 134 ($3.50), 138 ($42.00), 150 ($12.50), 153-154 ($35.00), 161 ($13.75), 173 ($24.00), 194 ($123.75), 195 ($82.50), 196 ($11.67), 199 ($10.00), 211 ($40.50), 229 ($27.50), 239 ($13.75), 242 ($22.50). Bill for estate of Gordon104 Items 1 ($11.26), 2 ($110.20), 3 ($45.92), 5 ($82.65), 6 ($60.10), 7 ($50.20), 9 ($128.17), 10 ($4.00), 11 ($43.80), 14 ($34.60), 18 ($43.80), 21 ($33.80), 23 ($43.80), 26 ($123.80), 27 ($12.00). Also allow $100.00 uplift for care and consideration. 103 Amounts reduced in (parentheses) after item numbers. 104 Also included uplift of $100.00 for care and consideration, which will be included in the calculation of the costs of the assessment. -- 45 of 62 -- 42 Appendix B – Items for which reasons alleged to be inadequate105 See reasons, [87] to [91]. Bill for Estate of Enid Item # Amount charged on Bill ($) Amount reduced by Assessor ($) Reasons of Assessor Amount reduced on appeal Reasons Allowed charge ($) 6-10 206.25 165.00 Agree with the objection. Folio count is excessive and time taken excessive. Not work carried out in a reasonable way pursuant to Section 341(1)(b). 165.00 Amount claimed under Item 107 of costs agreement. Question of time taken. Within discretion of costs assessor to consider time taken excessive. 41.25 20 30.00 30.00 Agree with objections. Producing included in letter rate. 30.00 Item 103 of costs agreement includes ‘drafting and producing’. This encompasses the production of the final copy, so no separate charge permissible. No error. 0.00 28- 30 48.50 6.30 Not necessary to send by email. Not reasonable to carry out work pursuant to Section 341(1)(a) of LPA. Sufficient to send by post. 6.30 Within discretion of costs assessor to consider whether postage or email necessary. 42.20 46 70.00 35.00 Not work carried out in a reasonable way pursuant to Section 341(1)(b). Letter is 1 folio 35.00 The body of the email is less than 1 folio. It is not reasonable to carry out work in such a way that a claim for costs could be made, in each letter, for formal, procedurally- generated parts of emails such as signatures and addresses. 35.00 47 82.50 41.25 Claim is excessive and not work carried out in a reasonable way. Most of the kit would not have been perused. Allow 5 minutes. 41.25 Reasons adequate. Within discretion of assessor. 41.25 110 35.00 22.50 I could not find this email on the file but agree that it should be scanning 22.50 This email is not included in the bundle of documents before this court. Document in Agreed Bundle marked ‘Item 110 + 111’ simply an out of office email. Insufficient evidence to overturn decision of assessor. 7.50 105 Where an item could fit into multiple categories – such as, for example, Item 34 of the Enid Bill, the item will go into a more specific category i.e. Appendix C or D -- 46 of 62 -- 43 148 175.00 154.17 Folio count is OK but a scanning rate is applicable and should be apportioned as to 1/3 154.17 Apportionment should be on 1/3 basis – for work claimed between all three bills, apportionment should not end up being greater than the whole i.e. cannot claim 7/6ths of work. No reason to disturb discretion otherwise. 20.83 159 70.00 35.00 Folio count excessive. Allow 1 folio of relevant material. 0.00 Error of fact. Body of letter is more than 1 folio. 70.00 160 165.00 115.00 Not work reasonable to carry out pursuant to Section 341(1)(a) of LPA. Some material not necessary to read. 115.00 Within discretion of assessor to consider whether it was necessary to spend the time on the work claimed, given that it was claimed as time spent. 35.00 184- 185 375.00 275.00 I agree with the objection and this would only be scanning. Also refer to Picamore Pty. Ltd v Challen [2015] QDC 067 at [120] 125.00 Within discretion of assessor to consider that only scanning is necessary in relation to the forms and parts of letters which are clearly pro-forma, such as headers and contact blocks. However, error in not allowing for perusal of main body of letter in Item 184. 250.00 208 105.00 92.50 I agree with the objection that the scanning rate was all that was necessary. 92.50 Within discretion of assessor to consider that the reasonable work to be done was simply to scan the document instead of a full perusal. This is effectively a simple bank statement. 12.50 214 80.00 80.00 See claims at Items 212 and 213 which I have allowed and I consider a further claim for the letter is not work carried out in a reasonable way pursuant to section 341(1)(b) of the LPA 12.50 Error of fact or law. Scale of costs clearly provides that the time for drafting and producing excludes the solicitor’s time to correlate the required information. However, reduction allowed in part on basis of reasons set out at [92] to [105] (apportioned at ½). 72.50 217- 218 45.00 42.00 I agree with the objection and this is not work carried out in a reasonable way pursuant to s. 341(1)(b) of the LPA 42.00 It was unnecessary and unreasonable to call when a secretary or clerk could have very simply found the information on the Queensland Reports website. At all relevant times, the information sought (with the exception of whether a tear sheet is 3.00 -- 47 of 62 -- 44 provided) was publicly available there.106 225 105.00 92.50 I agree with the objection and consider it a common form of letter and only scanning would required. Allow 1 page of scanning 92.50 No error. Within discretion to consider standard, procedurally generated email containing draft booking details only requiring a scan. 12.50 227- 228 315.00 150.00 I agree with the objection and consider it a common form of letter and only scanning would required. Allow 2 pages of scanning 150.00 Similar reasons to Item 225 above. Within discretion to consider common documents with little relevant information (such as listing pre-payment options for a newspaper, of which a solicitor with the appellant’s experience should be aware) as requiring only a scan. 165.00 231 82.50 55.00 I agree with the objection. Also not a cost carried out in a reasonable way pursuant to section 341(1)(b) of the LPA. The call is too long and apparently a result of waiting around for a transfer. In any event this is work that a clerk should be instructed to carry out. 41.25 Within discretion of costs assessor to decrease on basis that work not carried out in a reasonable way. However, error to state that this is work that should be carried out by clerk in the circumstances. Should be charged on basis of time reasonably spent by lawyer. 41.25 243- 244 23.50 23.50 I agree with the objection and consider this is not a cost that was reasonable to carry out pursuant to Section 341(1)(a) of the LPA. Alternatively a secretary could have called and advised. 19.85 Inconsistent to suggest that cost not reasonable to carry out, but also suggest that secretary could have called and advised (which would be chargeable). Allow a charge equivalent to a 5- min call from a secretary to a mobile phone (apportioned at ½ cost). 3.65 299- 300 70.00 57.50 I agree with the objection. Scanning only was necessary. Additionally refer to Picamore Pty. Ltd v Challen [2015] QDC 067 at [120]. Letter is 1 folio and allow 1 folio for perusing both item 299 and 300 at the same time 45.00 Within discretion to consider scanning only necessary. However, should have treated them as separate pages as per scanning charge in scale of charges. Allow 2 pages of scanning. 25.00 308 35.00 22.50 I agree with the objection. Scanning only was necessary 22.50 See reasons for Item 208 above. Was a procedurally 12.50 106 Found using the Internet Archive ‘Wayback Machine’ at https://web.archive.org/web/20150714023324/http://www.queenslandreports.com.au:80/advertising/ how-to-advertise/. -- 48 of 62 -- 45 generated message with no relevant content. 310 210.00 185.00 I agree with the objection. Scanning only was necessary 185.00 See reasons for Item 208 above. Much of the letter is common knowledge, such as who may certify documents. 25.00 320- 321 82.50 57.50 I agree with the objection. Scanning only was necessary 57.50 See reasons for Item 208 above. Was a check to see if advertisement was correct, within discretion to consider a full perusal unnecessary. 25.00 324- 326 457.50 227.50 I agree with the objection. Scanning only was necessary. Very common documents. Allow 16 pages of scanning. 120.00 Within discretion of assessor to consider scanning of the forms as carrying out the work in a reasonable way. 337.50 340 41.25 16.25 The wrong rate has been applied. I allow 2 pages of scanning. 16.25 Within discretion of costs assessor. Bill states the document was only scanned – the relevant rate to apply is the scanning rate in the scale of charges. Also noted that much of this document is the same as the document referred to in Item 325. 25.00 342 175.00 150.00 I agree with the objection. Scanning only was necessary 150.00 See reasons for Item 208 above. 25.00 356 105.00 92.50 I agree with the objection. Scanning only was necessary 92.50 See reasons for Item 208 above. This is a death certificate – important for file, but a deep perusal not necessary as much of the information would already be known, or irrelevant. 12.50 357- 358 52.50 40.00 I agree with the objection and allow 1 page of scanning. Additionally refer to Picamore Pty. Ltd v Challen [2015] QDC 067 at [120] 27.50 See reasons for Item 208 above. Documents were simple invoice and covering email. However, should have allowed 2 pages of scanning. 25.00 368- 369 42.00 42.00 I agree with the objections. Not a cost reasonable to carry out pursuant to Section 341(1)(a) of the LPA. The errors were obvious 42.00 Within discretion to consider not a cost reasonable to be carried out. Would be absurd to charge for reading the corrections made by the client when those costs would not have been incurred but for the application of due care and skill. 0.00 383 165.00 165.00 I agree with the objections. Not a cost reasonable to carry out 165.00 See reasons for Items 368- 369. 0.00 -- 49 of 62 -- 46 pursuant to Section 341(1)(a) of the LPA. The errors were obvious 407 70.00 45.00 I agree with the objection. Allow scanning of 2 pages 0.00 Normally within discretion to consider only scanning. However, in the circumstances, these are non-standard communications and so perusal necessary. Allow 2 folios of perusal. 70.00 414- 471 1919.10 1919.10 Costs incurred after termination of the retainer are not sustainable c.f. Southwell v. Jackon [2012] QDC 65 at [55- 61] and Legal Services Commission v A.L. Jackson [2017] QCAT 207 at [21] 1919.10 See [133] to [149] of reasons above. 0.00 Bill for the Estate of Joyce 8 35.00 22.50 The letter contains 4 words. Scanning is a more appropriate rate. 22.50 See reasons for Item 208 of the Enid Bill. Letter was simply stating that draft looked fine. 12.50 68 67.50 55.00 I agree with the objection and the scanning charge is more appropriate. 55.00 See reasons for Item 208 of the Enid Bill. Renunciation is standard form court document. Within discretion. 12.50 78 - 80 280.00 230.00 Not work carried out in a reasonable way pursuant to S. 341(10(b) of the LPA. Refer to Picamore Pty. Ltd v Challen [2015] QDC 067 at [120]. Documents should be treated as one as perused at the same time. However I agree with the objection that scanning is more appropriate and I allowed 4 pages of scanning. 115.00 See reasons for Items 184- 185 of the Enid Bill. Allow 4 folios of perusal for the letter in Item 78, but within discretion to consider scanning the appropriate charge for both Items 79 and 80. 165.00 87 35.00 22.50 I agree with the objection. I counted the words of the letter and there are 11 words in the letter. I agree scanning is more appropriate. 22.50 See reasons for Item 208 of the Enid Bill. Very short email, with no actual content relevant to the matter, only a short aside by the respondent. 12.50 97 70.00 35.00 I agree with the objection and consider only 1 folio of perusal was proper 35.00 This was a simple title search. Much of the document is irrelevant, and the body is less than 1 folio. 35.00 -- 50 of 62 -- 47 No error on the part of the assessor. 144- 145 280.00 255.00 Not work carried out in a reasonable way pursuant to S. 341(1)(b) of the LPA. Refer to Picamore Pty. Ltd v Challen [2015] QDC 067 at [120]. The letter and the following statement total 2 folios. Documents should be treated as one and I consider scanning of 2 pages appropriate. 172.50 See reasons for Item 208 of the Enid Bill in relation to Item 145 – this is a simple invoice statement, so allow 3 pages of scanning. However, non-standard letter containing information requiring perusal, so for Item 144 allow 2 folios of perusal (as body is only 2 folios). 107.50 162 (incl. Items 163- 171) 347.50 172.50 I agree with the objection and allow 14 pages of scanning 197.50 Item 163 is dealt with separately as a short charge in Appendix E. See reasons for Item 208 of the Enid Bill in relation to Items 164-171 on this bill. All of the forms would have been scanned, they are all standard documents such as PAYG summaries and statements which only require scanning. Even though originally claimed on a time basis, allow reduction to scanning basis and allow 12 pages of scanning. 150.00 172 70.00 70.00 Not work carried out in a reasonable way pursuant to S. 341(1)(b) of the LPA. Refer to Picamore Pty. Ltd v Challen [2015] QDC 067 at [120]. I have included scanning of these tax returns in the claim at Item 162 and I note that the tax returns included some blank pages. 0.00 Error to include Item 172 as part of the assessment of Item 162. Charged separately, so should be dealt with separately if a scanning basis is to be allowed. Even though potential costs would be greater than 70.00 for perusal of tax return, only allow amount claimed in bill. 70.00 207- 209 280.00 92.50 I agree with the objection. It is a very common letter for estate lawyers. Allow 1 page of scanning 92.50 See reasons for Items 225 and 227-228 of the Enid bill above. These are the same types of documents and within discretion to consider only scanning necessary. 187.50 224- 225 52.50 40.00 I agree with the objection and allow 1 page of scanning. Additionally refer to Picamore Pty. Ltd v Challen [2015] QDC 067 at [120] 27.50 See reasons for Items 357- 358 of the Enid bill. These are the same documents, and should be treated the same. Allow 2 pages of scanning. 25.00 227 35.00 22.50 I agree with the objection. It is a very common letter for solicitors who work in 22.50 See reasons for Items 208 and 308 of the Enid bill. Procedurally generated, 12.50 -- 51 of 62 -- 48 estate matters. Allow 1 page of scanning mostly irrelevant content in email. Within discretion. 231 41.25 27.50 Not work carried out in a reasonable way pursuant to S. 341(1)(b) of the LPA. I agree with the objection. Additionally scanning only was necessary 27.50 See reasons for Items 320- 321 of the Enid Bill. Same type of work – perusing to check to see if notice is placed correctly. As clerk rate is applied in making reduction, that is upheld, even though scanning rate may have seen a further reduction. 13.75 245 80.00 40.00 No reasons given.107 25.00 It appears this was reduced on the basis that it was just over one folio and so did not allow for drafting formal parts of letters. The letter was 133 words long, according to the word count. I allow 1 folio of drafting, and 1 folio of reproducing, as per paragraphs [92] to [105] of these reasons. 55.00 248 350.00 200.00 No reasons given. 75.00 See reasons for Item 363 of the Enid bill at Appendix F. These are certificates of exhibits, and cannot be charged on the basis of drafting, only producing, as the majority is standard form (in fact, they are very similar to the documents charged at Item 363 of the Enid bill). Allow 5 pages of producing court documents. 275.00 250 35.00 22.50 No reasons given. 22.50 See reasons for Items 368- 369 of the Enid bill. Similarly, this is an email seeking to correct errors in a draft. It seems a scanning rate has been applied and, while it was arguable a complete reduction was within discretion, allow scanning charge. Very short email. 12.50 253 165.00 115.00 No reasons given. 110.00 This is listed as a reproduction. This is a notice of intention to apply, something which had already been drafted, so no drafting was done, only producing. Allow 1 page of 55.00 107 No reasons appear on the record for any items from 245 onwards. While it does appear that a page is missing, this page appears to have been missing when the reasons were provided by the costs assessor, and I have not found any indication that this was drawn to the assessor’s attention. I have assessed each of these items on the basis of the material before this court, with certain inferences made about the assessor’s potential reasons based upon the relevant item, the costs agreement and the size of the reductions. -- 52 of 62 -- 49 producing a court document. 254 70.00 40.00 No reasons given. 15.00 See reasons for Item 363 of the Enid bill at Appendix F and Item 248 of this bill above. This was another certificate of exhibit, so no charge for drafting, only producing (at court document scale). 55.00 257 13.75 13.75 No reasons given. 13.75 Inferred that this was reduced on basis that this was an administrative task, not chargeable legal work. Many similar instances were allowed without review in Appendix A, therefore allow the reduction here as well. 0.00 259 165.00 27.50 No reasons given. 13.75 It appears that the assessor considered that this should not have taken longer than 50 minutes. The only evidence of the time taken is in the file note. In the absence of contrary evidence, the recorded time must be accepted. However, reduction of one 5 minute block as per paragraphs [106] – [111] of these reasons, as it was only 57 minutes. 151.25 266 0.38 0.38 No reasons given. 0.38 This was a photocopy of a letter already in hardcopy form. Not only was this the letter terminating the retainer, so it is arguable it cannot be charged for in any event, solicitor cannot charge for simply maintaining a file. 0.00 267- 297 905.95 905.95 No reasons given. 905.95 See [133] to [149] of reasons above. 0.00 Bill for the Estate of Gordon 4 70.00 65.05 I allow perusal but consider there is 1 folio. I have converted the claim to the Supreme Court Scale rate for perusing i.e. $4.95 per folio i.e. $4.95. 60.10 I have allowed the reductions on the basis of applying the Supreme Court Scale as applied at the time, as that is an appropriate scale. However, document was in fact over two folios, so allow 2 folios of perusal on that scale as claimed. 9.90 8 70.00 65.05 I allow perusal but consider the folio count is 1 folio. I have converted the claim to 60.10 See reasons for Item 4 of this bill above. Letter 2 folios. 9.90 -- 53 of 62 -- 50 the Supreme Court Scale rate for perusing i.e. $4.95 per folio 22 165.00 90.50 The claim is objected to and submits that the scanning rate is applicable. I accept the objection and apply the Supreme Court Scale rate for examining. I allow 15 minutes of examination i.e. $74.50 90.50 Unclear why assessor has treated this as examining, when it appears that the reduction was made on the basis of 15 minutes of a solicitor’s time (as examining was charged in the scale at $73.50 per 15 minutes). No file note, so within discretion to consider whether work reasonably done would take a certain time and has indicated 15 minutes was reasonable. Reduction allowed. 74.50 -- 54 of 62 -- 51 Appendix C – Items for which assessor has reduced fee for formal parts of letters or parts of letters not drawn See reasons, [92] to [105]. Bill for Estate of Enid Item # Short Description of claimed cost Amount charged on Bill ($) Amount reduced by Assessor ($) and reason Amount reduced on appeal ($) Allowed charge ($) 34 Letter 2 folios (148 words) 80.00 40.00 (1 folio) 25.00 55.00 135 Letter 2 folios (128 words) 80.00 40.00 (1 folio) 25.00 55.00 221 Letter 2 folios (107 words) 80.00 40.00 (1 folio) 25.00 55.00 245 Letter 3 folios (214 words) 120.00 40.00 (2 folios) 25.00 95.00 277 Letter 2 folios (136 words) 80.00 40.00 (1 folio) 25.00 55.00 Bill for the Estate of Joyce 5 Letter 3 folios (208 words) 120.00 40.00 (2 folios) 25.00 95.00 15 Letter 2 folios (114 words) 80.00 40.00 (1 folio) 25.00 55.00 30 Letter 2 folios (115 words) 80.00 40.00 (1 folio) 25.00 55.00 69 Letter 2 folios (122 words) 80.00 40.00 (1 folio) 25.00 55.00 130 Letter 2 folios (124 words) 80.00 40.00 (1 folio) 25.00 55.00 177 Letter 3 folios (217 words) 120.00 40.00 (2 folios) 25.00 95.00 179 Letter 6 folios (546 words) 240.00 80.00 (4 folios) 25.00 215.00 197 Letter 2 folios (104 words) 80.00 40.00 (1 folio)108 25.00 55.00 201 Letter 2 folios (107 words) 80.00 40.00 (1 folio) 25.00 55.00 204 Letter 2 folios (102 words) 80.00 40.00 (1 folio) 25.00 55.00 240 Letter 2 folios (123 words) 80.00 40.00 (1 folio) 25.00 55.00 108 There was an error in the assessor’s reasons at this point. It referred to a letter which was 217 words and allowed 2 folios, neither of which is correct nor accords with the assessed reduction. Assessed on basis of document contained on file and marked as ‘Item 197’. -- 55 of 62 -- 52 Appendix D – Time less than a 5 minute block See reasons, [106] to [112]. Bill for Estate of Enid Item # Short description of claimed cost Actual time elapsed Amount charged on Bill ($) Amount reduced by Assessor ($) Amount reduced on appeal ($) Allowed charge and reason 117 Attendance by clerk (10 minutes) 5 minutes 32 seconds 27.50 13.75 13.75 13.75 (only 1 five minute block completed) 180 Attendance by solicitor (20 minutes) (apportioned at ½ fee) 18 minutes 82.50 0.00109 20.62 61.88 (only 3 five minute blocks completed) 219- 220 Attendance by clerk (10 minutes) 8 minutes (5 minutes on hold) 27.80 30.80 27.50 0.30 (no five minute block of actual work completed) 387 Attendance by clerk (5 minutes) 1 minute and 6 seconds 13.75 13.75 13.75 0.00 (no five minute block completed) 399110 Attendance by clerk (5 minutes) 1 minute and 26 seconds 13.75 13.75 13.75 0.00 (no five minute block completed) 400 Attendance by clerk (5 minutes) 1 minute and 14 seconds 13.75 13.75 13.75 0.00 (no five minute block completed) Bill for the Estate of Joyce 98 Attendance by solicitor (20 minutes) (apportioned at ½ fee) 18 minutes 82.50 8.25 20.62 61.88 (only 3 five minute blocks completed) 109 This was not originally reduced by the assessor, but corresponds to the reduction at Item 98 of the Joyce Bill being apportioned across to this item which is its equivalent on the Enid Bill. They are the same item of work. 110 Both Items 399 and 400 could be reduced on other bases, including the discretion of the assessor to consider matters under 341(1)(a) & (b) more generally. -- 56 of 62 -- 53 Appendix E – Short Charges See reasons, paragraphs [150] to [165] for main items. Bill for Estate of Enid Item # Short description of originally claimed cost Short description of short charge Amount charged on Bill ($) Amount of short charge claimed ($) Additional amount allowed on appeal ($) Reasons Allowed charge ($) 1 Solicitor’s attendance (45 minutes)111 Additional 15 minutes of attendance 371.25 123.75 82.50 Originally charged for 45 minutes, even though file note only recorded 32 minutes. Extra file note records additional 25 minutes spent. Allow additional 10 minutes of solicitor’s attendance, as one 5-minute block was not completed (see paragraphs [107] – [113] of these reasons). 453.75 6 Solicitor’s attendance (25 minutes) Additional 10 minutes of attendance 206.25 82.50 82.50 Original file note recorded time spent as 36 minutes. Allow additional 10 minutes as claimed. 288.75 43A N/A (Item 43 was mobile phone attendance) Mobile telephone charge (i.e. phone charge outlay) N/A 13.00 13.00 File note records this charge being via mobile telephone, and the call lasting 26 minutes. Allow 26 minutes of call at $0.50 per minute. $13.00 53 Clerk’s attendance (10 minutes) Solicitor’s attendance (5 minutes) 27.50 13.75 13.75 File note records that the solicitor spent 5 minutes perusing the results of the clerk’s work. Effectively, this short charge replaces the charge for the clerk’s attendance with the charge for the solicitor’s work. Allow the additional charge as the difference between 10 minutes of a clerk’s time and 5 minutes of a solicitor’s time. 41.25 130A N/A Solicitor’s attendance (10 minutes) N/A 82.50 82.50 File note records 10 minute attendance on call from respondent. Allow the charge. 82.50 150 Solicitor’s attendance (25 minutes) Solicitor’s attendance (10 minutes) 206.25 82.50 41.25 File note records call lasted 33 minutes. Allow one additional 5-minute block as second block not completed. 247.50 177A N/A Unclear – appears to N/A 70.00 70.00 Entitled to charge for the drafting and producing of 70.00 111 File note originally stated 32 minutes, but 45 minutes charged. Not reduced by assessor. -- 57 of 62 -- 54 be drafting and producing certification clause the clause certifying a document as a true and correct copy. Allow charge of drafting and producing 1 folio of an ‘other document’. 195 Solicitor’s attendance (40 minutes) (apportioned at ½ cost) Solicitor’s attendance (20 minutes) 165.00 82.50 82.50 File note records attendance lasted 60 minutes. Allow short charge. 247.50 198A N/A Solicitor’s attendance (25 minutes) N/A 206.25 206.25 File note indicate additional 25 minute attendance by solicitor. Unclear whether it was intended to be apportioned, but will allow the charge in full as noted on file note. 206.25 213 Solicitor’s attendance (40 minutes) (apportioned at ½ cost) Solicitor’s attendance (5 minutes) 165.00 41.25 41.25 File note indicates attendance lasted 45 minutes, not 40 as originally charged. Will allow full charge on this bill on basis that no short charge was claimed on the corresponding item in the Joyce bill. 206.25 285 Drafting and producing letter 9 folios (855 words) Same as charged 330.00 30.00 30.00 Appears to have been miscalculated on itemised bill. Drafting and producing 9 folio letter at $40.00 per folio equals $360.00. 360.00 286 Email charge (apportioned at ½ cost) Same as charged, but not apportioned 3.50 3.50 3.50 Unclear why it was originally listed as apportioned. Letter and enclosures related to Enid estate, no corresponding charge in Joyce or Gordon bills. Allow short charge. 7.00 297A N/A Solicitor’s attendance (50 minutes) N/A 412.50 371.25 File note records separate 49 minute mobile phone attendance. Allow 9 blocks of 5 minutes of solicitor’s time as tenth block not completed. 371.25 359A N/A Solicitor’s attendance (90 minutes) N/A 742.50 701.25 File note records additional 89 minute attendance. Allow 17 blocks of 5 minutes of solicitor’s time as 18th block not completed. 701.25 381 Solicitor’s attendance (55 minutes) Solicitor’s attendance (65 minutes) 453.75 87.50 82.50 File note records attendance actually lasted 67 minutes. Allow additional 10 minutes as claimed, on the appropriate scale (it appears there was a typographical error as 536.25 -- 58 of 62 -- 55 $82.50 was the correct amount) 392A N/A Clerk’s attendance (5 minutes) N/A 13.75 0.00 File note records separate attendance of 5 minutes. However, attendance was simply to hand over some letters – not the provision of legal services to which legal costs relate. Short charge not allowed. 0.00 392B N/A Solicitor’s attendance (20 minutes) N/A 165.00 165.00 File note records additional 21 minute attendance. Allow 4 blocks of 5 minutes of solicitor’s time. 165.00 408 Solicitor’s attendance (40 minutes) Solicitor’s attendance (20 minutes) 330.00 165.00 165.00 File note records attendance (correlation of documents) actually lasted 60 minutes. Allow short charge. 495.00 Bill for the Estate of Joyce 3A N/A. Solicitor’s attendance (15 minutes) N/A 123.75 123.75 File note records additional 17 minute attendance. Allow short charge. 123.75 19 Solicitor’s attendance (10 minutes) Solicitor’s attendance (15 minutes) 82.50 41.25 41.25 File note records attendance actually lasted 16 minutes. Allow short charge. 123.75 76 Solicitor’s attendance (20 minutes) Solicitor’s attendance (5 minutes) 165.00 41.25 41.25 File note records attendance actually lasted 27 minutes. Allow short charge. 206.25 159 Solicitor’s attendance (25 minutes) Same as claimed. 206.25 0.00 0.00 This was simply to amend the reference in the bill to charging on the basis of a 15-minute attendance. The actual charge is consistent with the time actually spent, 26 minutes. Amendment allowed. 0.00 160 Mobile telephone call charge (15 minutes) Mobile telephone charge (11 minutes) 7.50 5.50 5.50 File note shows call lasted 26 minutes. Allowed on that basis. 13.00 162 (163) N/A Reading of letter (4 folios) N/A 140.00 112 115.00 Letter is of a nature that perusal is necessary. However, find that the body of this letter is only 3 folios, not including things 115.00 112 This was originally listed in the schedule of short charges as $40.00. However, that was because there was an error in how the amount was originally calculated, such that an additional $100.00 was added to the original Item 162, in which the charge for Item 163 was originally included. The aim of claiming the short charge by the solicitor was to separate out the perusal of this letter as a separate charge to the attendance charge for the rest of the documents included in Item 162. I have reverted to the actual amount claimed in the short charge. -- 59 of 62 -- 56 like salutations and the sender’s details block. 182 Drafting and producing letter (4 folios) Reduction of 2 folios 160.00 -80.00 -80.00 Letter was only 2 folios, and was described in the itemised bill as such. Allow the amendment to reduce the charge. 80.00 176A N/A Unclear – appears to be drafting and producing certification clause N/A 70.00 70.00 See reasons for Item 177A of the Enid bill in this appendix. Allow short charge. 70.00 178A N/A Unclear – appears to be drafting and producing 2 certification clauses N/A 140.00 140.00 See reasons for Item 177A of the Enid bill in this appendix. Allow short charge. 140.00 243A N/A Solicitor’s attendance (20 minutes) N/A 165.00 165.00 File note records additional 22 minute attendance. Allow short charge. 165.00 -- 60 of 62 -- 57 Appendix F – Items for which appeal allowed (in part or in full) Bill for Estate of Enid Item # Amount charged on Bill ($) Amount reduced by Assessor ($) Amount reduced on appeal ($) Reason Allowed charge ($) 98 70.00 8.25 0.00 Costs assessor clearly referred to wrong item on bill. Item on bill related to drafting and producing a document – not a time charge. No reason to reduce stated cost. 70.00 131 70.00 35.00 0.00 Counting the substantive words, the solicitor is correct in stating that the email is over 100 words. Entitled to charge amount as stipulated in the scale of costs. 70.00 139 35.00 35.00 0.00 The document is not the same as that claimed at Item 121 of the Enid Bill. Entitled to charge amount as stipulated in the scale of costs. 35.00 290 70.00 35.00 0.00 The documents together are over 1 folio. Error of fact on part of assessor. 70.00 294- 295 70.00 17.50 0.00 Letter referred to in Item 295 of the Enid Bill is a separate document for which respondent entitled to charge. Error on part of assessor. 70.00 318 41.25 41.50 41.25 Error in reducing more than was charged. Otherwise, within discretion to reduce. 0.00 363113 210.00 120.00 45.00 Error in not applying correct scales of charges. Should have allowed claim for producing 3 documents on court document scale. Cannot claim for drafting documents when majority of document standard form contained in UCPR. 165.00 366 70.00 15.00 0.00 See reasons for Item 363. Entitled to charge 165.00 – but will remain at amount charged. 70.00 Bill for the Estate of Joyce 10 45.00 45.00 0.00 The document, a letter, had already been the subject of a charge for drafting and producing. However, the letter was reproduced in printed form after instructions were given. Entitled to charge 3 folios for reproduction. 45.00 31 45.00 45.00 0.00 See reasons for Item 10 above. Letter being re- produced. 45.00 32 15.00 15.00 0.00 See reasons for Item 10 above. Letter being re- produced. 15.00 116 453.75 247.50 0.00 The assessor has made an error in conflating two separate attendances into one. They are separate, despite having the same subject matter and were in relation to the preparation of the one document. It would have been open to the assessor to consider the work in the context of s 453.75 113 It appears that the solicitor was charging on the scale for other documents, as opposed to the court document scale. It appears all parties were in error in characterising a certificate of exhibit, which is part of an affidavit intended to be filed, as anything other than a court document. This is the same for Item 366 of the Enid Bill. -- 61 of 62 -- 58 341(1)(a) or (b), but as the assessor has not seen fit to do so that will not be done here. 133 80.00 80.00 12.50 See reasons for Item 214 of the Enid Bill as set out in Appendix B – this is the same letter. Reduced only on the basis that part of the letter is proforma – see reasons in paragraphs [93] – [106]. 67.50 140- 141 23.50 23.50 19.85 See reasons for Item 243-244 of the Enid Bill as set out in Appendix B – this is the same letter and email. Allowed 15 min call from secretary to mobile (apportioned at ½ cost). 3.65 185- 186 70.00 17.50 0.00 See reasons for Item 294-295 of the Enid Bill in this Appendix. These are the same documents as referred to in those reasons. 70.00 221- 222 70.00 35.00 45.00 Should have treated the two separate documents separately, and assessed on that basis, even if one is a covering email. However, these are almost the exact same documents as described in Items 299-300 of the Enid bill (see Appendix B), for which I agreed only scanning was necessary, and I apply that reasoning again here. Allow 2 pages of scanning. 25.00 244 371.25 371.25 0.00 The assessor’s reasons, in essence, boiled down to a contention that this should not be allowed as a separate charge to the charge for drafting the affidavit. With respect, I disagree. The costs agreement precisely excluded the solicitor’s time taken to correlate and consider material for preparation of documents. I allow the charge, noting that there is no evidence or finding about the reasonableness of the time taken. I thus make no finding beyond allowing 45 minutes of solicitor’s time to correlate and consider material. 371.25 -- 62 of 62 --