Crouch & Lyndon's Bill of Costs, Re [1997] QSC 178 [1998] 2 Qd R 228

IN THE SUPRE11E COURT OF QUEENSLAND Brisbane Before the Hon Justice White No 238 of 1996 IN THE MATTER of the Costs Act 1867 - and- IN THE MATTER of a Bill of Costs of CROUCH & LYNDON (Solicitors) against LOWY PTX LTD and BARBARA LOWY '" . - and- IN THE MATTER ofP & E Southport Application No. 40 of 1994 between COUNCIL OF THE CITY OF GOLD COAST (Applicant) and MONACE PTY LTD (ACN 054 764 993) (First Respondent) and LOWY PTY LTD (ACN 000 965 417) (Second Respondent) REASONS FOR JUDGMENT - WHITE J Judgment delivered 30/09/1997 CATCHWORDS: COSTS - review of taxation-general principles - proceedings in Planning and Environment Court - bill taxed on District Court scale - whether Supreme Court scale more appropriate - whether taxing officer signed an allocatur - meaning and requirements of allocatur- Donaldson procedure - whether taxing officer wrongly refused to allow amendments to the heading to the bill of costs - whether taxing officer erred in refusing to allow for senior counsel - obligation to give appropriate warning where unusual expense - meaning of unusual expense - content of warning required - whether client should have been awarded interest in respect of sums retained by solicitors ordered to be reimbursed - meaning of "improperly" in s.38 Legal Practitioners Act 1995. -- 1 of 36 -- Counsel: Solicitors: Hearing Date: 2 Australian Coal and Shale Employees' Federation v. The Commonwealth (1956) 94 CLR 621 Blyth v. Fanshawe (1882) 10 QBD 207" DG Ogle Pty Ltd v. Bowdens"[1979] Qd R 507 In Re Donaldson (1884) 51 L.T. (N.S.) 622 Re Fraser (deceased) [1958] 1 All ER 26 Korner v. H Korner & Co Ltd [1951] Ch 10 R v. District Registrar, Kingston-Upon-Hull ex parte Norton [1944] 1 All ER546 Common Law Practice Act 1867, s.73 Legal Practitioners Act 1995, s.38 Local Government (Planning and Environment) Act 1990 ss.7.6, 7.8 Rules ofthe Supreme Court (Qld) O.91rr.82, 82A, 117 to 120 Ms D Skennar for applicant solicitors Mr G Robinson for respondent client Crouch & Lyndon on their own behalf Hollingworth & Spencer for the respondent client 11 September 1997 -- 2 of 36 -- IN THE SUPREME COURT .OF QUEENSLAND Brisbane No 238 of 1996 IN THE MATTER of the Costs Act 1867 - and- IN THE MATTER of a Bill of Costs of CROUCH & LYNDON (Solicitors) against LOWY PTY LTD. and BARBARA LOWY - and- IN THE MATTER ofP & E Southport Application No. 40 of 1994 between COUNCIL OF THE CITY OF GOLD COAST (Applicant) and MONACE PTY LTD (ACN 054 764 993) (First Respondent) and LOWY PTY LTD (ACN 000965417) (Second Respondent) REASONS FOR JUDGMENT - WHITE J Judgment delivered 30/09/1997 The applicant finn of solicitors (the solicitors) seeks review of the taxation of a taxing officer pursuant to 0.91r.119 of the Rules. The respondent Lowy Pty Ltd and Barbara Lowy (the client) retained the solicitors in mid-1994 to act in respect of certain disputes about the use of land at the Gold Coast in the Planning and Environment Court at Southport. The client became dissatisfied with the solicitors' work and the quantum of the accounts and sought an order that the solicitors deliver a bill of costs in taxable form in respect of legal representation in the Planning and Environment Court. The costs and fees had been paid by the client. -- 3 of 36 -- 2 Ambrose J heard the application on 20 October 1995. The solicitors agreed to deliver a bill of costs in taxable form without an order to that ~ffect being made. The bill was delivered on 22 December 1995 at $53,005.55 of which $21,734.12 was disbursements and $31,271.43 related to professional costs. It was filed for taxation on 9 January 1996. The client obj ected to certain items in the bill of costs pursuant to 0.91 r. 41 A including in Item 1 of the objections to the application of the Supreme Court scale to all the items (1-1201) in the bill. That question was to be decided by consent as a preliminary issue before proceeding with the taxation proper. On 27 March 1996 submissions were heard by the deputy taxing officer, Mr Mitchell. At the hearing the solicitors indicated that if, after review, the client's position was upheld they would seek review by the court pursuant to 0.91 r.119. Mr Mitchell found in favour of the client and reduced Item 1 on the bill of costs "instructions to act" to the amount allowed under the District Court scale, namely, $249. The solicitors sought review of the taxing officer's decision pursuant to 0.91r.117. Mr Mitchell delivered his answers to the objection on 4 October 1996 upholding the determination. At p.1 he wrote "The decision that has been made is in respect of the proper scale that ought to have been used by the respondent solicitors in the preparation of the bill of costs and will therefore affect the consideration of almost every item thereafter or at least the costs of the proceedings in the Planning and Environment Court. In the circumstances I assume that the respondent will require a certificate to issue in accordance with the Donaldson procedure (see (1884) 51 LT (NS) 622) to allow the respondents the opportunity to obtain the judge's decision as to the principle by which the balance ofthe items in the bill are to be taxed." As noted in Oliver Law of Costs (1960) at p.189 when considering the analogous Victorian rule to 0.91r.119 "Under the Donaldson procedure a certificate is given when one or two items have been taxed in order to give the parties an opportunity to obtain the Court's decision as to the principle on which the costs are to be taxed; but a certificate cannot be given unless there has been a taxation, that is, unless at least one item has been dealt with." -- 4 of 36 -- 3 0.91r.119 provides that any party who is dissatisfied with the certificate or allocatur of the taxing officer as to any item which has been objected to may within fourteen days from the date of the certificate or allocatur or such other time as may be allowed by the court or the taxing officer at the time when the taxing officer signs the certificate or allocatur, apply to a judge in chambers for an order to review the taxation as to that item. There was no application by the solicitors pursuant to that Rule and the client arranged a further directions hearing for 13 November 1996 with a view to allocating a date for the taxation of the balance of the bill of costs. On that day the solicitors indicated to the taxing officer, Mr Enright, that the solicitors might yet seek a review of the earlier decision but told him that they intended waiting for Mr Mitchell's allocatur to be signed before making a final decision. Mr Enright took the view that the written decision delivered on 4 October 1996 and signed by Mr Mitchell was sufficient allocatur and directed that the bill of costs be redrawn on the District Court scale by 11 December 1996, that fresh objections be prepared by 6 January 1997 and the taxation proceed from 20 to 23 January. Mr Mitchell wrote to the solicitors by letter dated 14 November 1996 pointing out to them that the purpose of dealing with the preliminary point had been to avoid delay and expense. He noted that if an application to the court to reverse his decision was successful the taxation would take a different course but that if it were left until after the taxation the costs of the taxation would be wasted and further delays would result. He concluded "So that there is no misunderstanding, I advise that it was my intention and belief that my final signed determination pursuant to Rule 118 be sufficient allocatur for the purposes of any review to the Court under Rule 119 and I am therefore now functus officio." No application was brought following Mr Mitchell's letter. The solicitors did not comply with the direction ofMr Enright to redraw the bill on the District Court scale and indeed at one stage -- 5 of 36 -- 4 took the position that it was for the client to do so. The client was thus unable to comply with the direction to prepare fresh objections to the redrawn bill. The taxation proceeded on the original bill and extended o,ver several days. The solicitors lodged 637 objections covering all 1,201 items in the bill. Mr Enright gave his answers to the objections on 20 June 1997. He certified the balance of the bill (items 2-1201) at $26,860.10. That resulted in more than one-sixth being taxed off the total bill and the costs of the taxation and the costs of objection were awarded to the client at $6,436.15 together with the taxing fee of $2, 152. Since the client had paid to the solicitors $38,465.33 in respect of the bill of costs the client was certified as entitled to a refund of $18,041.38 from the solicitors. The taxing officer certified that the client be allowed interest upon that amount at 10% per annum calculated from 20 October 1995. The summons relates only to the second taxation by Mr Enright but seeks the allowance of objections 1-4 (the summons seeks review of objections numbered 1 and 4 but was amended at the hearing by leave) of the solicitor's objections to his taxation which cover all items. Those objections encompass most if not all of the other objections. In essence they are that 1. The taxing officer was wrong to "redraw" the bill of costs on the District Court scale. 2. The taxing officer's decision to refuse the application of the solicitors to amend the heading of the bill of costs to incorporate the words "and in the matter of other Miscellaneous Matters" was wrong. 3. The decision of the taxing officer to disallow items on the basis that they formed part of an overall allowance under Item 27 of the District Court Scale was wrong. 4. The decision of the taxing officer to reduce counsel's fees on the ground that the fee charged by senior counsel was an unusual expense and that an appropriate warning had not been given was wrong. -- 6 of 36 -- 5 5. The taxing officer's order that the solicitors pay interest to the client be vacated. Although the summons related only to the second taxation a consideration of the first taxation was a necessary aspect of it. The solicitors sought to adduce affidavit material at this hearing which exhibited certain material which, it was submitted, might be inferred to have been before the taxing officer but some of which might fall broadly into the category of "fresh evidence" and also an affidavit setting out, from the solicitor's perspective, what had taken place before the taxing officer. I did not permit any of this material to be read. It has long been accepted, at least where there are no exceptional circumstances, that it is not appropriate to go beyond the taxing officer's "grounds and reasons" as to what actually occurred on a taxation because ofthe undesirability of conflicts of evidence between aggrieved parties and officers of the court, Eaves v. Eaves & Powell [1956] P 154 at p.159 per Sachs J and Sturge v. Dimsdale (1846) 9 Beav 170; 150 ER 308. Order 91 r.120 provides that every application for review must be heard on the evidence which was before the taxing officer unless the court otherwise directs. The "fresh" material did not satisfy the test usually applied for the reception of such evidence on appeal Re O'Sullivan, Wilson & Bedford [1936] St R Qd 50 at per Henchman J p.62. An affidavit of Gregory Robert Ryan a solicitor and legal costs consultant which was argumentative and insulting of the taxing officer was sought to be read before me. After submissions Ms Skennar, counsel for the solicitors, did not seek to rely upon it. The first taxing officer attached to his answers to objections the affidavits and other material including submissions which were placed before him. The second taxing officer attached correspondence and his directions. The solicitors could have sought to put further evidence before each taxing officer when objecting to the disallowance but did not do so, 0.91r.117. The answers of the taxing officers in each case are prima facie in conformity with the requirements of -- 7 of 36 -- 6 0.91r.118 setting out the "grounds and reasons" relating to the decision and "any special facts and circumstances". The approach to be taken to a review of a taxation of costs is in general principle the same as on an appeal from the exercise of a discretion. The observations by Kitto J in Australian Coal and Shale Employees' Federation v. The Commonwealth (1956) 94 CLR 621 at p.627-9 provide guidance as to the special nature of the taxing officer's discretion: " ... the exercise of the jurisdiction to review a taxation of costs is subject to no narrower limitation than that which was stated by Bovill CJ and Brett J in Hill v. Peel (1870) LR 5CP 172:- "A very wide discretion must necessarily be left to the taxing officer, which must be exercised by him after a careful consideration of the particular circumstances of each case; and where, after properly considering the matter, the master has arrived at a decision, it lies upon those who impeach his decision to satisfy the Court that he is wrong. Where a principle is involved, the Court will always entertain the question, and, if necessary, give directions to the master; but, where it is a question of whether the master has exercised his discretion properly, or it is only a question as to the amount to allowed, the Court is generally unwilling to interfere with the judgment of its officers, whose peculiar provenance it is to investigate and to judge of such matters, unless there are very strong grounds to shew that the officer is wrong in the judgment which he has formed [at pp. 180-1]." I take it to be true that the decision of the taxing officer as to quantum is generally speaking final, and that it must be a very exceptional case in which the Court will even listen to an application to review such a decision ... but the authorities as a whole ... do not establish as an absolute proposition that a judge will never review a taxing officer's decision on a question of quantum only ... I respectfully adopt the summary of the law on this matter which was made by Jordan CJ, with the concurrence of Harvey CJ in Eq and Street J, in Schweppes Ltd v. Archer ((1934) 34 SR (NSW) 178; 51 WN 71). His Honour said:- 'In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances ... but it will in general only interfere where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; -- 8 of 36 -- 7 and where the question is one of amount only, will do so only in an extreme case.' " This approach was endorsed by Thomas J in Re Bain Gasteen and Co's Bill of Costs [1990] 1 Qd R 412 at p.416. The issues for consideration on this review are:- • whether the first taxing officer signed an allocatur within the meaning of the Rules so that the time limit in 0.91 r. 119 would apply; • whether the decision of the first taxing officer that the bill of costs should have been drawn on the District Court scale rather than as was the case, on the Supreme Court scale, and the application of this finding by the second taxing officer to his taxation was in error; • whether the second taxing officer erred in refusing to allow the solicitors to amend the heading to the bill of costs to include reference to other work not the subject of the Planning and Environment Court litigation and thereby taxing off those items for that work from the bill; • whether the second taxing officer erred in refusing to allow for senior counsel; • whether the decision to award interest to the client in respect of the sum retained by the solicitors ordered to be reimbursed to the client was in error. The First Taxation - The Allocatur The client took the position that since no application was made to review the decision of the first taxing officer to disallow item 1 on the bill of costs and to allow the corresponding amount on the District Court scale within 14 days from the date of the allocatur that matter could not be reviewed by reference to the second taxing officer's decision to tax the balance of the bill on that scale. The solicitors do not seek an extension of time pursuant to 0.91r.119. They -- 9 of 36 -- 8 submit that it was inappropriate to seek review after Mr Mitchell's answers to objection were delivered because the full picture of the taxation was not then known including whether one-sixth would be taxed off the bill of costs. That cannot have been a strongly held view because the consequences of the ruling were apparent and they joined in that approach to the taxation. They argue that there was no allocatur within the meaning of Rule 119 relying on the decision R v. District Registrar, Kingston-Upon-Hull ex parte Norton [1944] 1 All ER 546. Order 91 r.116 provides that when the taxation is concluded the taxing officer shall state the result either in the form of an allocatur written on the bill of costs or in the form of a certificate as the case may require. In sub-rule (3) the taxing officer is empowered to make an interim allocatur or certificate in respect of any portion of the bill of costs without waiting for the conclusion of the taxation. Re Norton concerned the form of an allocatur and whether it might be endorsed on or written at the foot of a bill of costs or in a separate document. The court considered conflicting practices in different registries in England. In the course of his judgment Viscount Caldecott LCJ observed at p.547 that there was nothing special about the use of the word "allocatur" and added "As in the course of the argument I ventured to suggest, there are at least four matters which are important: the name of the cause or matter, an indication of the party whose costs are to be taxed so that they may be paid, the amount at which the bill of costs is taxed, and the signature of the taxing officer or some other responsible person giving those details." The solicitors submit that whilst the document signed by Mr Mitchell on 4 October 1996 contains the name of the matter, the name of the party whose costs are to be taxed and the signature of the taxing officer it does not set out the amount at which the bill of costs is taxed or, in this case, the amount of item 1. It is contended on behalf of the client that the concluding statement "The determination made at the commencement of the taxation is upheld" by Mr Mitchell is sufficient to comply with that requirement. In a usual case of taxation of costs the taxing officer's -- 10 of 36 -- 9 certification of the amount at which the bill of costs is taxed must be set forth since the parties need to know the amount due. Re Norton was an ordinary taxation of a bill of costs. The parties here made use of a procedure, which has much to commend it, of ascertaining the basis upon which the taxation was to be conducted. The amount of the item was of no particular significance since, apart from item 1, the bill remained untaxed but the taxing officer had actually taxed that item. The structure of the Rules requires an "allowance or disallowance" by the taxing officer, "of the whole or any part of any items". Objection may be taken by the dissatisfied party who may seek review of that taxation, 0.91 rr.117, 119. The taxing officer's review is in respect of those objections and the review of the taxing officer's allocatur or certificate by the court is in respect of the item or items which have been objected to. The first taxing officer made use of the Donaldson procedure. The origin of that procedure is not known, but the first reported case of its use is the case bearing that name, (1884) 51 L.T. (N.S.) 622). The practice of taxing one or two items only of a bill of costs where a matter of principle is involved was well established by then as can be seen from the taxing master's certificate and the absence of comment on that procedure by both senior counsel who argued the case and the court. The taxing master wrote in his answers to the objections of the applicant/client to the taxation at p.622 "On these considerations I was of opinion that I ought to allow the solicitor profit charges, and therefore I allowed the first two items in the bill, forebearing at present to tax the remainder of the bill in order that the applicant might, if she thought fit, at once take steps to appeal from my decision. I have considered the objections, and I am of the same opinion, and I disallow them." . The actual monetary amount of the items allowed was not set forth. In a useful note in The Law Journal for 9 May 1958 (vol. cviii p.291) it is suggested that it was not until Korner v. H Korner & Co Ltd [1951] Ch 10 that the Donaldson procedure was again referred to in a reported case. In Korner the practice of allowance or disallowance of one -- 11 of 36 -- 10 or two items did not occur. The principle of taxation in Korner was whether seven successful defendants out of eight were entitled to seven-eighths of all the costs of the action or only to seven-eighths of the general costs and the costs of the minor issues with which they were concerned. On the matter being referred to taxation the taxing master at the request of the parties and before making any allowance or disallowance gave a ruling as to the basis on which the taxation should proceed. He stated at p.l2 "I have been requested by the defendants in this action to construe the order herein as to costs and thereby enable the parties, if so advised, to lay preliminary objections before me in accordance with the practice outlined in In Re Donaldson (1888) 27 Ch D 544 ... " The order referred to was a costs order made by Romer J at the end of an action. The taxing master gave his construction of the order stating the basis upon which the defendants were entitled to costs and said that "a taxation on these principles will of course entail a somewhat difficult question of apportionment for the taxing master". The defendants brought in preliminary objections which the taxing master disallowed and overruled. The taxing master without having made any allowance or disallowance made a separate certificate. The defendants issued a summons to review the certificate of the taxing master which was dismissed by Wynn-Parry J without discussion of the procedure. Neither was there any discussion of the taxing master's procedure to make a separate certificate without first making an allowance or disallowance in the Court of Appeal by Singleton LJ with whom Jenkins LJ agreed. It would appear that the court proceeded by way of the general jurisdictional rule, O. 65r.25 of the English Rules, which, with certain modifications, parallels O.9lr.77 of the Rules concerning the powers ofa taxing officer although no reference was made to it in the reasons of the Court. The English Rule at the time of the decision in Korner, as does the present Queensland Rule, gave the taxing master power, inter alia, "to make separate certificates or allocaturs". -- 12 of 36 -- 11 A quite different approach was taken in Re Fraser (deceased) [1958] 1 All ER 26. An order for taxation directed that the costs of the action including the costs of negotiating a compromise before the originating summons was issued should be taxed and paid out of an estate. The first defendant, the Public Trustee, lodged a bill of costs of which the major part was a lump sum bill. The taxing master ruled that these costs related to contentious business and verbally directed the Public Trustee to bring in a detailed bill or lodge objections. The Public Trustee brought in written objections to this part of the taxation and the taxing master disallowed the objections and stated his reasons in written answers. The taxing master made a certificate stating: "In pursuance of the order herein bearing date the 18th day of May 1956 ... whereas I should have proceeded to tax the bills of costs as by the said order directed, but the solicitors for the defendant the Public Trustee having carried in objections to my direction dated June 20, 1957, whereby I directed the said defendant to bring in details in lieu of a lump sum charge in his bill of costs, I have considered such objections and disallowed the same and at the request of the said defendant I make this my separate certificate so that the said defendant may take the opinion of the court on the principle on which the said bill should be taxed in relation to the said lump sum charge." The Public Trustee took out a summons to review this decision. Roxburgh J was critical of a number of matters including that the process was at variance with 0.65r.27 (39) (Eng.), (0.91r.117 of the Queensland Rules). He was of the view that Re Donaldson was a special case dealing with general principles of equity which were essentially matters for a chancery judge rather than matters of taxation and it was not intended to lay down any rule of general application. Roxburgh J disposed of Korner on the basis that the procedure was never investigated by the court. He concluded at p.32 "Any separate certificate must be either an allowance or disallowance: it has to be a certificate or allocatur "as to any item or part of an item which may have been objected to as aforesaid ... ", within the meaning of RSC Ord 65 r 27 (41) [0.91r.119]. One can then apply to the judge to review the taxation as to some item, or part of an item. In my view, no certificate, whether it is called "separate" or "preliminary" or anything else, complies with the rules if it does not comply with RSC Ord 65 r 27 (41) and the court has no jurisdiction except with the -- 13 of 36 -- 12 consent of the parties, to deal with any question which does not anse In accordance with r 27 (41)." Roxburgh J was hampered by having only one party appear before him. He suggested that it might be possible by consent of the parties to place before the court an objection without an allowance or disallowance. In Re Fraser it would not have been possible to allow or disallow an item on the bill since it was a lump sum bill. I would read 0.91r.77, which gives power to the taxing officer to make separate certificates or allocaturs, as subject to the particular requirements of 0.91 r.117 that there be an allowance or disallowance. I would think it particularly artificial in respect of the first taxing officer's answers to objections to find that because the item amount of $249 was not to be found in a separate certificate or in the answers to objection that there has not been an allocatur within the meaning of the rule. The objections of the solicitors are headed as follows "The objections of the solicitors to the allowance/disallowance by the taxing officer of a certain item of the solicitors' bill of costs filed for taxation pursuant to 0.90r.40 of the Supreme Court rules." The objection then goes on to say that the solicitors object for the reasons following to the allowance/disallowance by the taxing officer of the undermentioned item and then set out in tabular form the item number being" I" and the reason for the objection being "the decision of the taxing officer to allow a short charge of $220 in respect of Item 1 of the Bill of Costs noted as "instructions to act (19)" is incorrect. The short charge resulted from the taxing officer's decision to proceed with the taxation on the basis that the bill should be taxed on a District Court Scale. The solicitors contend that the taxation should proceed on a Supreme Court Scale for the reasons set out in their submission attached hereto and marked "A". The conclusion is that there was an "allowance or disallowance" within the requirements of the Rules and the document dated 4 October 1996 constituted the allocatur of the taxing officer. If it be thought that the amount must appear in the document then it was an error arising from an accidental slip or omission and may be corrected pursuant to 0.32r.12. This occurred -- 14 of 36 -- 13 in respect ofa taxation ofa bill of costs in Chessum & Sons v. Gordon [1901] 1 QB 694 pursuant to the analogous English Rule (0.28r.11). Since some 10 months have passed the solicitors are well out of time for a review ofthat decision, which they have not sought. Taxation on the District Court Scale The solicitors objected to Mr Enright's decision to "redraw" the bill of costs on the District Court Scale. This objection related to items 1-1201 in the bill of costs and constituted objection 1. Mr Enright decided that since item 1 had been decided by the written decision of Mr Mitchell on 4 October 1996 the objection had no standing and gave no reconsideration to that issue and neither did he reassess item 1 itself on the taxation. He gave an extension of time within which to object to item 2 and the items following. The solicitors submitted before Mr Enright and on review that it is the obligation of a taxing officer to determine the proper costs for each particular item of work done and it was a wrong approach to apply an arbitrary scale. I have concluded that the decision of Mr Mitchell was final and binding, subject to review within the Rules, on the further conduct of the taxation with respect to the application of the District Court Scale however it may be of assistance if I consider the substance of the argument against that approach. Before the taxing officer and on this review the solicitors argued that there is no statutory scale of costs applicable to the Planning and Environment Court and accordingly the observation of Lucas J (with whom Matthews and Sheahan JJ agreed) in DG Ogle Pty Ltd v. Bowdens [1979] Qd R 507 at p. 513 should apply, namely, that where no statutory scale is imposed the approach to a taxation is analogous to a quantum meruit. That is not disputed, see also s.39 of the Legal Practitioners Act 1995. (Ogle concerned a conveyance and not litigious work and the approach -- 15 of 36 -- 14 of the court to the application of the Rules must be read in the light of the observations of the Full Court in Re Feez Ruthning's Bill of Costs [1989] 1 Qd R 55.) The issues identified by Mr Mitchell for his decision were • whether upon the proper construction of the provisions of the Local Government (planning and Environment) Act 1990 the legislation imposed an obligation upon solicitors to charge out their services in that jurisdiction in accordance with a particular statutory scale of costs or if the Act could not be so construed did the circumstances of the case under consideration warrant charging in accordance with the Supreme Court scale to ensure that the solicitors received proper remuneration for their services. It is not suggested that the taxing officer did not correctly identify the questions for his consideration. Section 7.6 of the Local Government (Planning and Environment) Act provides for costs but does not create a statutory scale of costs. Section 7.8 provides for the making of rules of court but no rules relating to a schedule of costs have been made. The Planning and Environment Court is constituted by Judges of District Courts, s.7.3(2) and appeals therefrom are heard by the Court of Appeal, s.7.4. Section 7.6 provides a limited jurisdiction to the Planning and Environment Court to award costs: "(1) Subject to subsection (IA), each of the parties to an appeal or other proceedings is to bear their own costs. (1 A) The Court may, upon application made to it, order such costs (including allowances to witnesses attending for the purpose of giving evidence at the hearing) as it considers appropriate in the following cases - (a) where it considers the appeal or other proceedings to have been frivolous or vexatious; -- 16 of 36 -- 15 (b) where a party has not been given reasonable prior notice of intention to apply for an adjournment of an appeal or other proceedings; (c) where a party has incurred costs because another party has defaulted in the procedural requirements; (d) without limiting the generality of paragraph (c), where a party has incurred costs because another party has introduced (or sought to introduce) new material without first giving the party reasonable time to consider the material; (e) where a local government does not take an active part in the proceedings where it has a responsibility to do so. (2) An order made under subsection (IA) may be made an order of the District Court and enforced accordingly. (3) Where the Court has jurisdiction under this Act or any other Act to award costs to or in favour of or amongst any party or parties to any proceeding or matter before the Court, the Court may in its discretion order that those costs are to be ascertained and determined by the proper costs taxing officer of the Supreme Court, according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court and in every such case it is within the discretion of the taxing officer to decide the proper scale to be adopted by the taxing officer in the taxation of those costs." The first taxing officer approached the construction of s. 7.6 by considering the operation of the previous legislation relating to costs in the Local Government Court. The City of Brisbane Town Planning Act of 1964 established the Local Government Court which was to be constituted by a District Court Judge, s.27. The Act provided in s.31 for the award of costs of any proceedings on a more extensive basis than does s.7.6. That section was replaced by a new s.31 in virtually identical terms by the Local Government and City of Brisbane Town Planning Acts Amendment Act 1985 as follows "(1) The Court may make such order as it thinks fit as to the costs of any proceedings before it, including allowances to witnesses attending for the purpose of giving evidence at the hearing. -- 17 of 36 -- 16 Any such order may be made an order of the District Court and enforced accordingly. (2) Where the Court has jurisdiction under this Act or any other Act to award costs to or in favour of or amongst any party or parties to any proceedings or matter before the Court, the Court may in its discretion order that such costs shall be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane, according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court, and in every such case it shall be within the discretion of the taxing officer to decide the proper scale to be adopted by him in the taxation of such costs. " Prior to the repeal of s.31 by the Local Government (Planning and Environment) Act 1990 there was no schedule of costs applicable to the Local Government Court. The first taxing officer construed s.31(1) as providing that the Local Government Court could itself fix the costs or the taxation of those costs could be by a person other than the taxing officer of the Supreme Court. He concluded that that person was not one of the officers of the Local Government Court since the duties imposed upon those officers did not include the taxation of bills of costs and concluded that since s.31, (as does s.7.6), permitted an order of the Local Government Court with respect to costs to be made an order of the District Court that had the effect of providing for taxing those costs in that jurisdiction. The District Court had (and has) a schedule of scale of fees and costs which would be applied by a taxing officer of the court when taxing a Local Government Court matter. The first taxing officer suggested that the alteration of the empowering words in s.7.6(lA) has changed the meaning of that part of the section from that of s.31. In s.31 the words "the Court may make such order as it thinks fit as to the costs of any proceeding ... "meant that the court could make costs orders at its discretion. The alteration of the words in s.7.6(2) to "the Court ... may order such costs ... as it considers appropriate ... " suggests, the first taxing officer thought, that the court itself must fix the costs where the circumstances fall into one of s. 7. 6( 1A) -- 18 of 36 -- 17 ( a) to (e). It cannot be the case he posited that the judge constituting the Planning and Environment Court would be required actually to fix the costs particularly in the absence of any schedule of costs for that court. I agree with his impression of infelicitous drafting. The first taxing officer concluded, rightly, that otherwise the provisions of s. 7.6 operate in the same manner as those in former s.31, namely, that costs orders, .other than those directed specifically to the taxing officer of the Supreme Court, will be made an order of the District Court and taxed by one of the registrars of that court on the District Court scale. The first taxing officer accepted the submissions of the client that an order pursuant to s.7.6(3) that the taxing officer of the Supreme Court determine the quantum of the costs "according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court and in every such case it is within the discretion of the taxing officer to decide the proper scale to be adopted by the taxing officer in the taxation of those costs" is a reference to the divisions in the District Court scale of costs which applied at the time when s.31 was in force. The solicitors argued that the expression "the proper scale" meant that the discretion was at large. The observation of the first taxing officer that it would appear that the draftsman has simply incorporated s.31(3) into s.7.6(3) without having in mind that the division between Scales A, Band C of the District Court scale of costs is no longer maintained seems correct. The reference to the taxing officer of the Supreme Court in s.7.6(3) does not support any argument that the costs are discretionary in the widest sense. Rule 368 of the District Court Rules provides that the costs and charges of proceedings in a District Court as between solicitor and client may be taxed by the taxing officer of the Supreme Court and there is no suggestion that the scale of costs in Schedule 2 to the District Court Rules would not apply. There is provision for the fees and costs prescribed by that schedule to be more or less on the direction of a judge. -- 19 of 36 -- 18 The first taxing officer concluded that the Local Government (planning and Environment) Act 1990 contemplates the application of the District Court scale of fees and costs in every instance where costs are referred to. He concluded that although the circumstances in which the Planning and Environment Court can award costs is confined to a narrow range of circumstances there is nothing to suggest they were to be awarded as a penalty rather than as an indemnity to the person entitled to them, see Latoudis v. Casey (1991) 170 CLR 534 at 543 per Mason Cl He concluded that on its proper construction s.7.6 requires the application of the District Court scale of fees and costs in all circumstances. He therefore concluded that the intention of the legislature is to require practitioners in the Planning and Environment Court to charge their clients in accordance with the directions on the District Court scale. To find otherwise would lead to an anomalous result where costs ordered in favour of a party pursuant to s.7.6(1A) (a) to (e) are to be taxed on the District Court scale but that party's solicitor and client costs may be taxed on the Supreme Court scale. The first taxing officer does not appear to me to have approached the construction of the legislation incorrectly and has reached a result which was open to him. Although his conclusion required him to embark on no further findings he considered the submission of the solicitors that the circumstances of the proceedings justified the preparation of the bill of costs on the Supreme Court scale consistently with the principle enunciated in Ogle's case. In view of the submissions on this point I will make some comment on his approach. Before the first taxing officer the solicitors relied upon five aspects of the case to raise the level of fees although Mr Mitchell noted that other factors may be relevant. They were "(a) the nature of the case including its complexity or novelty; (b) the subject matter of the case; ( c) the importance of the case to the client; -- 20 of 36 -- 19 (d) whether the solicitor and client had discussed levels of fees (see letter from solicitor to client dated 27 September 1994); (e) the degree of skill or knowledge required by the nature of the case or demanded by the client;" The first taxing officer had the benefit of written submissions from both parties as well as the affidavits of senior counsel, Mr Simon Couper, who appeared on behalf of the client in the Planning and Environment Court, the affidavit ofMr Christopher Lyndon, the partner responsible for the matter, and the affidavits of two of his staffMonique Holloway and Denise Ramsay. The oral submissions did not depart from the approach in the written material. The first taxing officer stated that those affidavits created an image of a demanding and concerned client who realised the importance of the litigation to her livelihood, peace of mind and financial future. He concluded that the importance of proceedings to a client is but one aspect of any litigation and not sufficient, generally, on its own to justify abandoning a particular scale for one that the practitioner might consider to be more generous. The first taxing officer recognised that where the demands and concerns of a client result in numerous attendances upon the client's solicitor and would generate considerable correspondence then the extra work to which the solicitor has been put would be the subject of justifiable charges by the solicitor no matter what scale was employed. He noted however that there was some difficulty for a solicitor in that circumstance to be properly remunerated under the District Court scale because all such attendances and correspondence would not be chargeable by a solicitor as discrete claims but would be part of one allowance made under Item 27 of the scale. Where extra work is involved Schedule 2 to the District Court Rules permits the trial judge at or after the trial to certify for a higher amount on -- 21 of 36 -- 20 taxation. The first taxing officer looked at the bill of costs to ascertain the extent of attendances and correspondence between the solicitor and client. He concluded "From my consideration of the bill of costs it appears that up to .the point of settlement of the proceedings there could not be said to be an inordinate number of solicitor/client contacts and it could not be said that the majority of those attendances etc were at the instigation of the client. Certainly there are no more attendances or a greater volume of correspondence than one might expect to find in proceedings that would have been concluded in the District Court." He noted that some of the attendances related to threatened Supreme Court injunctive proceedings and foreshadowed that those matters might not be part of the solicitors' retainer the subject of the bill and might be taxed off but could be the subject of another bill which "quite probably could be charged out as against the client upon a scale other than the scale applicable in the District Court". He noted that many attendances apparently instigated by the client were not part of the proceedings and could not be considered as part of the Item 27 claim and would not then, on a separate bill, be hampered by the restriction ofItem 27. The first taxing officer took the position that a solicitor has an obligation to advise a client of the consequences of continually making unnecessary telephone attendances or writing unnecessary correspondence. No evidence was adduced to show that any warning was given to the client about conduct which the solicitors considered unnecessary. In dealing with the nature of the matter and its complexities the first taxing officer had regard to Mr Couper's affidavit in which the complexities were identified as the extent of right of use of a grant of an easement; • the extent of the jurisdiction of the Planning and Environment Court to make declarations; the correct interpretation of s.4.15 of the Local Government (Planning and Environment) Act 1990; -- 22 of 36 -- 21 • factual issues regarding the effect of the proposed variation of the consent permit; • the extent to which a local authority may bind itself by estoppel by convention; the difficulty of the settlement negotiations as the result of the animosity of the parties towards one another and the inability of Lowy Pty Ltd to comply with the car parking permit requirements. The first taxing officer noted that no evidence was adduced that might tend to show the extent to which the solicitors were involved in the resolution of the above issues. He had recourse to the bill of costs for assistance and concluded that the solicitors appeared to rely heavily upon counsel. He noted that counsel provided an opinion prior to the preparation of any material and provided advice regarding confidential material. He regarded the instructions provided to counsel with each brief as a useful guide to the extent of the solicitors' active research and skills. He saw no brief but concluded that the bill of costs indicated that the largest and first brief drawn by the solicitor was twelve folios whilst the trial brief comprised three folios. The claim for drawing the twelve folio brief included the drawing of the index. He concluded "Given the number of documents that were claimed in the bill as having been photocopied for counsel prior to the preparation of this first brief it is safe to conclude that the bulk of the drawing claimed would be in respect of the index of documents. If this is the situation then it only confirms the heavy reliance placed upon counsel in this matter." He noted that the solicitors prepared six affidavits of which the largest was three pages in length; one witness was served with a subpoena to appear at the hearing; two experts were retained to support the client's case and their reports were exhibited to affidavits which were two pages and one page in length respectively. The first taxing officer concluded that throughout the proceedings a considerable amount of material had been perused by the solicitors but its volume did not appear to be any greater than would be expected in proceedings conducted in the District Court. -- 23 of 36 -- 22 He considered the degree of skill involved but indicated that he was hampered by having little material upon which he could rely to determine the extent of the skill that had been utilised by the solicitors and in particular by Mr Lyndon. The client had left her previous solicitors and retained the solicitors because it was her understanding that they had expertise in planning and environment matters and Mr Lyndon asserted some experience in the planning and environment jurisdiction in his affidavit. However the first taxing officer concluded from the bill that there had been considerable reliance upon the services of counsel while the work performed by the solicitor in the preparation for the hearing did not appear to have been onerous or extensive. He gave little weight to the correspondence between the solicitors and the client about the level of fees: "A lay person has little or no concept of what would constitute a reasonable level offees for a given piece of work and must rely either upon their solicitor's advice or the taxing officer upon taxation in that regard." He was not persuaded that the solicitors would not receive proper remuneration by the application of the District Court scale offees and costs to the work done for the proceedings in the Planning and Environment Court. On review MsSkennar for the solicitors emphasised the complexity and technical nature of the case.and made reference to the attendances on representatives of the Council and experts and perusals of plans and documents. She referred to the large number of items in the bill of costs and the importance of the case to the client. She particularly referred to Item 27 of the District Court scale and submitted that in the circumstances of this case the application of such a scale would lead to the remuneration being far lower than it otherwise would have been if taxed on the Supreme Court scale. There is nothing in those submissions or in the material which was before the first taxing officer which would suggest that he exercised his discretion erroneously by taking into account irrelevant considerations or not giving due weight to the matters which were raised -- 24 of 36 -- 23 before him. His extensive experience is particularly valuable when considering if the retainer under consideration related to proceedings which were more complex, difficult or technical than cases to which the District Court scale applies as of course. The amendment to the heading on the bill Objection 2 by the solicitors is in two parts. The first relates to the decision to tax on the District Court scale and the second to the decision not to permit the solicitors to amend the heading on the bill to incorporate the words "AND IN THE MATTER of other Miscellaneous Matters". The objection goes on to state "The Taxing Master's decision was wrong on the grounds that the items referred to should properly have been dealt with separately they not forming part of the original retainer from the client and being properly the subject of separate consideration for taxation under the Supreme Court Scale of Costs. The Taxing Master's reason for rejection viz. that the Solicitors had the opportunity to deliver a Bill to the client in the appropriate form segmenting those items under the Supreme Court Scale and should have done so, was not valid, in that the necessity to differentiate those items from the main body of the Bill only became apparent and necessary when the Taxing Master made the decision (long after the delivery of the Bill to the client) that the Bill should have been delivered under and taxed in accordance with the District Court Scale. The Solicitors at no stage after the decision was made by the Taxing Master had the opportunity to withdraw the Bill and resubmit it in the form suggested by the Taxing Master." The objection on its face applies to Items 601-609 and 949-1198. The second taxing officer had directed that the bill be redrawn on the District Court scale by 11 December 1996. On 10 December the solicitors indicated that they did not propose to redraw the bill and would be relying on the original bill as delivered to be taxed. When the matter came before Mr Enright on 20 January, in the presence of the parties, he converted the amount claimed for each item save item 1 in the bill to the District Court scale of fees and costs and noted each conversion allowed. On his copy of the bill he wrote the new figures in red under the old figures on the bill. Where a separate amount could not be claimed for a particular item under the District Court scale he drew a red line on his copy of the bill underneath the old figure to indicate this. Mr Enright -- 25 of 36 -- 24 observed that it was a conversion exercise done as best he could in the available time and in the circumstances. There is no objection as to any inaccuracies in the conversion. The solicitors had been given an opportunity to resubmit the bill of costs relating to the specific retainer on the District Court scale. The issue of the standing of the matters relating to the threatened Supreme Court proceedings and the post-settlement work had been made clear to them in the answers to objections by Mr Mitchell on 4 October 1996. Order 91 rule 48 prohibits any addition or alteration to be made in a bill of costs after it is lodged for taxation "except by permission or direction of the taxing officer". If any addition or alteration is allowed on taxation of a bill of costs between a solicitor and his or her client "such addition or alteration shall not be taken into consideration in determining whether the bill has or has not been reduced by a sixth part". As the annotations (Ryan Weld and Lee) to the Rule observe there is no counterpart in the English rules nor in the Victorian or New South Wales rules. It ameliorates the stringency of the common law that "there is but one bill" per Farwell LJ in Sadd v. Griffin [1908] 2 KB 510 at p.511 et seq. It allows the taxing officer to exercise what would, without the rule, be the jurisdiction of the court. In applications to the court for leave to amend a bill of costs leave will be granted where it is just to both solicitor and client to do so. A fair reading of the first taxing officer's answers to objections would suggest that leave may well have been given particularly since the client's position concerning the costs of taxation is protected. The second taxing officer disallowed Items 601-609 which related to an unlawful fence on the neighbouring property. He stated at p.8 "When it became evident that items were going be disallowed on the basis that they did not relate to the Planning and Environment Court proceedings, the solicitor sought leave to amend the heading of the bill so as to encompass claims for "other Miscellaneous Matters" which had also been included in the bill." -- 26 of 36 -- 25 He took the view, rightly, that it is the solicitors' retainer which establishes the purpose for which the costs in a bill are incurred. If there is more than one retainer and the solicitors deliver a bill which is said to be restricted to particular matters then the client is entitled to treat that bill as being restricted to those particular matters. The costs which the solicitors were seeking to have the client pay were costs associated with the services provided to the client under the retainer to conduct proceedings in the Planning and Environment Court. He concluded at p.9 "As a consequence whilst it may be possible to include in one bill the costs relating to two or more retainers this must be done before the presentation of the bill to the client. It is not possible to alter the basis upon which the bill has been compiled after the bill has been brought in for taxation. By that time a client will have considered the reasonableness of the claims in light of the bill as delivered. The heading also establishes the parameters by which the taxing officer considers the claims in the bill. If the costs are not reasonably incidental to the retainer for which the bill has been delivered then those costs are disallowed. It is not acceptable once the taxation has commenced to alter those parameters in order to include in the bill items which would otherwise not be allowable." The request for amendment occurred at Item 60 I - halfway through the bill of costs. Leave to delete these items could have been sought. In refusing leave to amend the heading in the circumstances of the case it cannot be said that the second taxing officer exercised his discretion on an incorrect basis. The solicitors objected to the disallowance of the balance of the items under this objection on the basis that they formed part of an overall allowance under Item 27. This was a repetition of the objection concerning the District Court scale. At the commencement of the second taxing officer's answers to objections under the heading "Objection 2" he dealt with the issue of the District Court Scale. At p.IO he stated that "the response provided above will also have application to the solicitors' objection 3" and thereafter set out many numbered objections. Ms Skennar submitted that the taxing officer did not appear to deal with this objection specifically -- 27 of 36 -- 26 referring to it only generally and argued that it was "somewhat difficult" to see how his reasoning in relatione to the amendment to the title of the bill related to this objection. The second taxing officer had dealt with the matter of the District Court scale and it did not require fresh consideration. Senior Counsel's Fees The solicitors objected to the second taxing officer's decision to reduce counsel's fees on the ground that the fee charged by senior counsel was an unusual expense and that an appropriate warning in accordance with the principle enunciated in Blyth v. Fanshawe (1882) 10 QBD 207 had not been given. The solicitors argued that the retention of senior counsel did not give rise to an expense which was unusual when regard was had to the difficulty of the matter, its importance to the client, the acceptance by the client of senior counsel and his level of fees. The solicitors pointed to senior counsel appearing without a junior, that a certain junior counsel had provided an unsatisfactory opinion and the fee charged was not unusual considering the complexity of the matter. They submitted that the principle in Blyth v. Fanshaw only applied where the prospect of recovery of costs from an opposite party was a possibility which was not this case and that the fees of senior counsel ought to have been allowed under 0.91r.82(2) since the client had consented to briefing senior counsel, was made aware of his charges and had made no objection to them. The second taxing officer correctly identified 0.91r.82A as establishing the proper basis upon which all taxation whether party and party or solicitor and client is to be conducted. It provides "Subject to rules 81 and 82 the taxing officer shall, on every taxation, allow all such costs, charges, and expenses as shall appear to the taxing officer to have been necessary or proper for the attainment of justice or for defending the rights of the party whose costs are to be taxed." -- 28 of 36 -- 27 Order 91 rule 82 concerns costs as between solicitor and client. Rule 82(1) is the converse of rule 82A in so far as it directs that the taxing officer shall not allow costs which do not appear to have been necessary or properly incurred by the solicitor for the attainment of justice or for protecting the rights of the party or which appear to have been incurred improvidently through overcaution, negligence or mistake on the part of the solicitor. Rule 82(2) provides "On the taxation as between solicitor and client of costs of proceedings in court, the taxing officer may allow reasonable charges for work or outlay properly done or made, notwithstanding that such charges are not recoverable from any other party, or have been disallowed in taxation in whole or part as between party and party, unless, in any case, the taxing officer is of opinion that the consent of the client ought to have been obtained before the charge was incurred, in which case no allowance shall be made in respect thereof unless it is shown to his or her satisfaction that the charge was incurred with the consent or with the subsequent approval of the client." At taxation the client submitted that the engagement of senior counsel was not necessary or proper and accordingly any additional fees for senior counsel were an unusual expense. Such expenses, it was argued on the authority of Blyth v. Fanshaw, can only be recovered on the taxation of solicitor and client costs where there has been a warning given by the solicitor to the client that such expenses are unusual and would not be recoverable from any other party even if the client were ultimately successful and would have to be borne entirely by the client. The client's position was that the amount payable to the solicitors on account of counsel's fees ought to be reduced to a rate applicable that of junior counsel of appropriate skill and experience. The taxing officer had regard to the circumstances of the case, Kroehn v. Kroehn (1912) 15 CLR 137 at p.141 per Griffith CJ; Stanley v. Phillips (1966) 115 CLR 470 per Barwick CJ at p.478 and considered whether a prudent person would have proceeded without senior counsel. Relying upon an unreported decision of Dowsett J in Jovanovski v. Tafcom of 19 March 1993 (Writ No 4014 of 1987) he concluded that the factors affecting the briefing of senior counsel without junior counsel are whether the level of skill and experience required is that normally only -- 29 of 36 -- 28 found at the senior bar. No further material was provided to the second taxing officer than was before the first taxing officer and he indicated that he intended to rely upon the "unchallenged answers" of the first taxing officer delivered on 4 October 1996 concerning the complexity and importance of the matter since they were applicable to the question of choice of counsel. The solicitors have not submitted that he was not entitled to do this but the discretion reposes in the taxing officer conducting the taxation and he must bring his mind to bear upon the matter. The first taxing officer's answer to a large extent set out a factual summary of the material appearing in the affidavits ofMr Couper and Mr Lyndon and referred to quantitative matters appearing in the bill of costs. The second taxing officer concluded at p.12 "It is my opinion that counsel of appropriate ability were available within the junior bar and that in the present circumstances a prudent person, properly advised, would have proceeded in this matter without senior counsel. Therefore the additional costs of engaging senior counsel are not necessary or proper costs." Notwithstanding a failure to set out a detailed examination of the matters under consideration himself it seems clear enough that the second taxing officer did exercise his own discretion and made use of the analysis by the first taxing officer which had not been controverted. Having reached that conclusion the taxing officer considered whether a warning should have been given. In Re Felton (1942) 60 WN (NSW) 16 Maxwell J said at p.20 "An unusual expense is one which would not in the ordinary course of a particular type of litigation be incurred. What is unusual in one type of litigation is not necessarily unusual in litigation of a different type." In Re Malleson, Stewart, Stawell and Nankivell [1931] VLR 127 McArthur J adopted at p.134 the test suggested by Parker J in Peel v. London and North Western Railway Co [1907] 1 Ch 607 at p.617 "Would it be necessary or proper for a reasonably prudent man, endeavouring to get justice but endeavouring to get it without any undue expenditure of money, to incur the expense in question?" -- 30 of 36 -- 29 See also Oliver Law of Costs 1960 at pp.53-55. The consequences at common law of characterising an expense as unusual is that a solicitor cannot charge his client with that expense even when the client knew that it was being incurred and authorised the solicitor to incur it unless the solicitor explained to the client that whatever was the result of the action the client would have to bear that unusual expense, Re Roney (1914) 2 KB 529 per Buckley LJ at p.541. If the costs incurred are necessary or proper even though unusual no warning is necessary as the client's retainer is sufficient authority to the solicitor to incur the expense, Oliver ibid p.54. The second taxing officer considered whether the warning was only relevant to proceedings in jurisdictions where there was a reasonable likelihood of a costs order between the parties being made. The taxing officer has a discretion to allow costs relating to "costs of proceedings in court" which are reasonable charges for work or outlay properly done notwithstanding that they are not recoverable from any other party or have been disallowed on party and party taxation, 0.91r.82(2) and whether evidence of consent by the client is required. The second taxing officer referred to Re Skinner and Smith's Bill of Costs (No.2) [1990] 1 Qd. R. 180 in which no reference is made by the Full Court to this Rule. In that case the client had been informed of the proposal to retain a second junior counsel and had not objected. The court applied the principles in Blyth v. Fanshawe and concluded that since no warning was given to the client and the expense was unusual it was not allowed. The annotations in Ryan Weld & Lee to 0.91r.82 include a reference to Blyth v. Fanshawe and Re Skinner and Smith's Bill of Costs iliQ2). The rule requires the work to have been proper and the charge reasonable and otherwise gives the taxing officer a discretion to require proof of the client's consent. This must be informed consent of the kind referred to in Blyth v. Fanshawe and in the cases following which elaborated those principles. There is an express provision in the Local Government (Plannimr and Environment) Act that each party is to pay that party's own costs except in a very limited set of -- 31 of 36 -- 30 circumstances. The second taxing officer referred to observations by Cussens J in Re Lambrock, Brown and Hall (1908) VLR 238 at p.255 "The principle generally applicable is that before doing unusual work or incurring an unusual amount of expense on behalf of a client, the solicitor should get the client's express authority. This rule applies whether or not the work is done or the expenses incurred in the course of an action. But in the latter case the Courts have said that express sanction or authority is not enough, as it may have been given under the impression that success in the action would result in an order for payment by the opposite party. Therefore it is laid down that in such a case the solicitor must show that the client knew that such a result would or might not follow, and usually the only way of showing such knowledge is by the giving of an express warning." The rationale for the obligation was expressed as the need to protect the client from any misconception that if successful all costs would be met by the opposite party. However the principle is wider. It is to protect the client against unnecessary expense and the client, in general unfamiliar with legal matters, must rely upon the retained solicitor's advice, Re Windeyer, Fawl & Co (1930) 31 SR (NSW) 145; Re Felton (1942) 60 WN (NSW) 16 at 21. See also Quick On Costs (1996) LBC at para 3.1860. The rule as to unusual expenses has been held to apply in Family Court proceedings where orders inter partes are made less frequently than in other civil litigation, Weiss v. Barker Gosling (No 2) (1993) 17 FLR 626 per Fogarty J at 653. I can discern no error of principle in the approach taken by the second taxing officer. He then considered the facts and noted a conflict in the affidavits of the client and the solicitor. The client swore that the firm recommended the use of a particular senior counsel for the proceedings but did not inform the client that there were members of the junior bar who were competent and experienced in that jurisdiction and denied that a discussion about the level of senior counsel's fees occurred. The solicitor deposed that the question of counsel was discussed in some detail including the option of junior counsel but that the client was happy that Mr Couper be engaged notwithstanding that his fees would be greater. The solicitor deposed that the client wanted -- 32 of 36 -- 31 Mr Couper because of the importance of the action to her and her future financial wellbeing and that she did not question the charges made by Mr Couper until the objections in the bill of costs. The second taxing officer concluded that the solicitor's evidence did not provide specific details of the discussion regarding the use of senior counselor whether junior counsel was a viable option. He noted that even if there was dissatisfaction with an opinion from an earlier junior counsel that did not indicate recourse to senior counsel. He concluded that there was no evidence that any warning or advices had been given to the client and noted that the solicitors did not contend that there were. He stated that a solicitor has an obligation to satisfy a taxing officer as to the solicitor's entitlement to costs on a solicitor and client taxation. He accepted that some form of discussion had taken place regarding the use of senior counsel but was unable to conclude that the solicitor had discharged his responsibilities to the client because all the relevant circumstances were not deposed to as having been put to the client so as to give the client an opportunity to provide informed instructions. The second taxing officer was not satisfied to the requisite standard that the express authority of the client was obtained to retain senior counsel. The second taxing officer has not been shown to have taken into account irrelevant considerations or overlooked matters which he ought to have taken into account or proceeded on a wrong principle. The solicitors contended that the fees charged by senior counsel were no greater than those which junior counsel would charge in any event. Counsel's fee on brief at the hearing in October 1994 was claimed at $3,000. The second taxing officer concluded that that fee was more than would be reasonable had junior counsel been engaged and he reduced it on taxation to $2,300. In the absence of any further evidence from the solicitors and against the taxing officer's wide experience as to fees charged in the jurisdiction in question no error is discernible in this allowance. -- 33 of 36 -- 32 Interest By his certificates the second taxing officer allowed the client interest upon the amounts to be refunded at the rate of 10% per annum calculated from 20 October 1995. He gave no reasons for so doing. It was assumed by both counsel that s.38 of the Legal Practitioners Act 1995 was the authority whereby he awarded interest. It was not suggested that s.73 of the Common Law Practice Act 1867 could apply to enable interest to be awarded, there being no order of the court as was the case in the Re Gould [1992] 2 Qd. R. 377 a case concerned with interest on moneys retained by solicitors and ordered to be repaid after taxation. There is little authority on the ambit of "improperly" as it appears in s.38 although it has appeared in legislation since 1870, see Attorneys and Solicitors Act 1870 (Eng). However it seems that impropriety or misconduct on the part of the solicitor is necessary in order for interest to be awarded on moneys of the client retained in the hands of the solicitor. The learned author of Quick at para 3.4510 suggests that such a provision arises out of the fiduciary relationship between the solicitor and client as exemplified in Burdick v. Garrick (1870) LR 5 Ch App.233. The old case of Wright v. Southward (1827) 1 Y & J 527; 148 ER 779 gives some guide as to the circumstances when an award of interest on money of the client retained in the solicitor's hands where there was no legislation akin to s.38 will be made. The court declined to charge a solicitor with interest which afterthe taxation of his bill of costs was in the solicitor's hands for some time. The Lord Chief Baron said at p.531-2 (781) "If there had been any gross fraud or laches on the part of a solicitor, or any unnecessary obstacle or delay had been thrown by him in the way of the taxation, I think that there might have been some ground for charging him interest." Hullock B observed that if misconduct was made out a solicitor may be visited with interest or damages. In Re Gould, McPherson ACJ considered Burdick v. Garrick and Wright and Southward of assistance in considering the exercise of a discretion to award interest conferred by -- 34 of 36 -- 33 s.73 of the Common Law Practice Act. Section 38 of the Legal Practitioners Act did not apply in Re Gould as the taxing officer had apparently not awarded interest. The clients applied to the court for orders that their former solicitors pay interest on the amount received by them on account of professional costs incurred by the applicants in the course of the action. In the absence of reasons it is necessary to look at the facts to see if those facts would justifY the award of interest pursuant to s.38. There has been considerable delay in this matter but not all is attributable to the solicitors. They agreed to deliver a bill in taxable form on 20 October 1995. It was delivered two months later and filed for taxation early in 1996. The client's objections to the bill were filed a month later and a directions hearing was heard a week after that. The taxation commenced on 27 March 1996 and on 2 April the solicitors requested reasons. The first taxing officer delivered his reasons on 4 October 1996. At the request of the client a directions hearing was held on 13 November 1996. The solicitors did not comply with the second taxing officer's direction that the bill be redrawn on the District Court scale but, nonetheless, no real delay was caused as the direction was given on 27 November that the taxation proceed towards the end of January 1997. That taxation concluded at the end of January and notice of objection was delivered early in February. The second taxing officer gave his answers to those objections on 20 June 1997. This summons was taken within time in early July and it is not suggested that the failure to have this matter reviewed earlier was due to default in any party. Those facts do not clearly give rise to a conclusion of impropriety or misconduct on the part of the solicitors. It is appropriate that solicitors pay interest on funds belonging to the client retained by them but in the absence of an order of the court of the kind made by Master Lee (as his Honour then was) when ordering taxation of the solicitors' costs in Re Gould which enabled McPherson ACJ to apply s.73 of the Common Law Practice Act there is no basis for ordering -- 35 of 36 -- 34 interest in the absence of impropriety or misconduct. I conclude that the taxing officer in some fashion misdirected himself as to the appropriate test to apply when certifYing for interest and that part of the certificate ought to be vacated. Conclusion The solicitors have submitted that as a consequence of the taxation and the orders for costs and interest made thereunder they have been left with little benefit for the work done. It is always open to solicitors to enter into a reasonable agreement with their client as to the costs of work which they will carry out for the client which provides for remuneration greater than that which would be allowed on taxation. If solicitors do not choose to do so then they are always at risk should the client proceed to tax the bill of costs. The solicitors have not demonstrated that the second taxing officer erred on a matter of principle or took into account irrelevant considerations or failed to give appropriate weight to relevant considerations or that he fell into error in the way in which he approached his task save for the matter of interest. The formal orders are: the certification that the client be allowed interest upon the amount to be refunded at the rate of 10% per annum calculated from 20 October 1995 on each certificate of taxation dated 20 June 1997 be vacated; • otherwise the summons stands dismissed. I will hear submissions as to costs. 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