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  • Unreported Judgment

D.G. Ogle Pty. Ltd. v Bowdens

 

[1979] FC 69

IN THE SUPREME COURT OF QUEENSLAND

Misc. No. 410 of 1978

IN THE MATTER OF “The Costs Act 1967”

- and -

IN THE MATTER OF Bowdens Bill of Costs against D.G. Ogle Pty. Ltd.

BETWEEN:

D.G. OGLE PTY. LTD.

(Applicant) Respondent

- and -

BOWDENS

(Respondent) Appellant

_____________________

Lucas J.

Matthews J.

Sheahan J.

_____________________

Judgment delivered by Lucas J. on the 19th September with Matthews J. and Sheahan J. concurring with those Reasons.

_____________________

“THE APPEAL IS ALLOWED. THE ORDER OF THE LEARNED JUDGE SET ASIDE AND IN LIEU THEREOF IT IS ORDERED THAT THE SUMMONS TO REVIEW THE TAXATION SHOULD BE DISMISSED.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

No. 410 of 1978

FULL COURT

BEFORE:

Mr. Justice Lucas

Mr. Justice Matthews

Mr. Justice Sheahan

BRISBANE, 19 SEPTEMBER 1979

(Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter, Court Reporting Bureau.)

----

IN THE MATTER OF “The Costs Act 1967”

- and -

IN THE MATTER OF Bowdens Bill of Costs against D.G. Ogle Pty. Ltd.

BETWEEN:

D. G. OGLE PTY. LTD.

(Applicant) Respondent

- and -

BOWDENS

(Respondent) Appellant

JUDGMENT

MR. JUSTICE LUCAS: In my opinion the appeal should he allowed, the order of the learned judge set aside and in lieu thereof it should he ordered that the summons to review the taxation should be dismissed. I publish my reasons.

I am authorised by my brother Matthews to say that he agrees with the order which I propose and with the reasons which I have published.

MR. JUSTICE SHEAHAN: I also agree with the order proposed by the learned presiding judge. I also agree with the reasons for that order.

------

IN THE SUPREME COURT OF QUEENSLAND

Misc. No. 410 of 1978

IN THE MATTER of “The Costs Act of 1867”

- and -

IN THE MATTER of BOWDENS' Bill of Costs against D.G. OGLE PTY. LTD.

BETWEEN:

D.G. OGLE PTY. LTD.

(Applicant) Respondent

AND:

BOWDENS

(Respondent) Appellant

JUDGMENT - LUCAS J.

This is an appeal against an order made by the learned judge in Chambers upon a review of the taxation of a solicitor's bill of costs against his client under s. 34 of the Costs Act of 1867. The bill related to a conveyancing transaction whereby the client, D.G. Ogle Pty. Ltd., purchased a parcel of land from E. Banks and South Branch Pastoral Co. Pty. Ltd., and it was drawn by reference to the Conveyancing Scale issued by the Law Society to its members. The scale is introduced by the words “This Scale has no statutory sanction. It is submitted as a Scale which in the opinion of the Council of the Queensland Law Society Incorporated will give to practitioners a fair and reasonable level of remuneration for the conveyancing and general business specified without the necessity of preparing an itemized bill in every matter”. There are in fact two scales; one, as it relates to a conveyance or transfer of land under the Real Property Act, provides a “lump sum” charge based upon the amount of the consideration for the conveyance or transfer; the other provides a series of “item charges” for the various kinds of services performed in all conveyancing transactions. Since a bill of costs for taxation under the Costs Act must be in itemized form, it was by reference to the scale of “item charges” that the bill in this case was drawn. When the bill came before the Taxing Officer for taxation, the solicitor then acting for the client objected that it was not open to the Taxing Officer to have regard to the Law Society scale, because it was not a statutory scale; he should instead adopt the statutory scale of costs which was most applicable to the work done which, as he submitted, was the scale contained in the Second Schedule to the Rules of Court.

The Taxing Officer regarded this argument as raising an important point of principle, and he took the time to prepare a carefully reasoned judgment embodying his conclusions upon it. His decision ended in this way:—

“The taxation before me at present is not a taxation in court but is under The Costs Act of 1867 where I act as persona designata and not as Taxing Officer of the Supreme Court. The Queensland Law Society Conveyancing Scale is not an official scale, and I am certainly not bound by such scale, nor can the Taxing Officer's discretion be fettered by the suggestion that it should be used as a minimum allowance for itemised Bills of Costs in conveyancing matters. However in the light of Queensland Forests Limited referred to supra, I would deem it more appropriate to be guided by the Queensland Law Society Conveyancing Scale rather than the Supreme Court Scale in taxing Bills of Costs for conveyancing work, bearing in mind always that each case depends on its own circumstances and must be taxed accordingly and the Taxing Officer must consider the skill and labour properly employed and the expense and responsibility incurred to arrive at the proper sum to be charged to the client.”

The Taxing Officer issued a certificate of taxation on 1st November, 1978, and by a summons issued on 15th November the solicitor acting for the client sought a review of the taxation by a judge. The summons came before the judge in chambers, who gave his decision on 12th December 1978. The learned judge decided that there was no legal justification for the use by the Taxing Officer of the Law Society scale, and that he should use the Supreme Court scale in taxing bills of costs for conveyancing work. He ordered that the bill should be referred back to the Taxing Officer for retaxation in accordance with that decision.

The appeal to this court was instituted by Notice of Appeal dated 13th December 1978, but it did not come before the court until 23rd July 1979.

The duty of the Taxing Officer is prescribed by s. 27 of the Costs Act and s. 18 of The Solicitors' Act 1891, which respectively provide as follows:—

“In taxing any bill for preparing or drawing any deed, contract case or other document it shall be lawful for the taxing officer and he is hereby required in estimating the proper sum to be charged for such transaction to consider the skill and labour properly employed and the expense and responsibility incurred in the preparation thereof.”

“Upon any taxation of costs the taxing officer may, in determining the remuneration (if any) to be allowed to the solicitor for his services, have regard, subject to any general rules or orders hereafter to be made to the skill, labour, and responsibility involved.”

His duty, then, is to fix “a proper sum”, for the remuneration of the solicitor taking into account the skill, labour, responsibility and expense involved in doing the work to which the bill of costs relates. In Queensland there is no statutory scale of costs for conveyancing work, and no doubt the Taxing Officer's work would be made easier, as the learned judge recognized, if there was such a scale. In its absence, however, it is desirable that there should be something to which the Taxing Officer can refer, apart from his own experience, which can assist him in the performance of his task, which involves the formation of a “value judgment”; see Property and Reversionary Investment Corporation Ltd v. Secretary of State for the Environment (1975) 1 W.L.R. 1504 at p. 1512. The effect of the judgment under appeal, as it seems to me, is to restrict the Taxing Officer's area of reference to the scale contained in the second schedule to the Rules of Court. That scale is referred to in Order 91 Rule 30, which provides as follows:—

“In causes and matters commenced after these rules come into operation, solicitors shall be entitled to charge, and shall be allowed the fees set forth in the Second Schedule to these Rules, in all causes and matters, and no higher fees shall be allowed in any case, except as by this order otherwise provided”.

This scale, then, governs the fees which may be charged by solicitors in “causes and matters”. Neither of these terms is defined in Order 1 Rule 1, except that it is there provided that “the term ‘cause’ includes any subsidiary or incidental proceedings arising out of or in the course of a cause”. It is necessary therefore to turn to the definitions in s. 1 of the Judicature Act, which are incorporated into the construction of the Rules by Order 1 Rule 1. The term “cause” is there defined as follows:—

“‘Cause’ shall include any suit, action or other original proceeding between a plaintiff and a defendant”.

The definition of “matter” is as follows:—

“‘Matter’ shall include every proceeding in the court not in a cause”.

It follows that the scale in the Second Schedule has no direct application to a bill of costs for conveyancing work, for that class of work is not done “in the court”, nor, as it appears, was it intended to apply to the remuneration for such work. It is however possible to adapt some of the items contained in that scale to the type of work that is normally done by a solicitor in a conveyancing transaction. Indeed, there is authority which suggests that such a scale should be resorted to in the absence of a statutory scale for conveyancing work; In re McLaughlin, ex parte The Farmers' Fertilizers Corporation Ltd. (1917) 17 S.R. N.S.W. 392, a case upon which the learned judge relied, and to which I shall refer.

In my opinion it is quite open to the Taxing Officer to use the scale in the second schedule, if he thinks in any case that it is appropriate to the matter before him. But in my opinion he is not required to use it to the exclusion of any other scale which he considers, in his experience, as having been properly prepared, even though that other scale has no statutory basis. In re McLaughlin is not an authority to the contrary. That was a review of a taxation at the instance of a solicitor who had, as solicitor for a mortgagee, delivered a bill to the mortgagors, who wished to have it taxed. The solicitor sought a review of the taxation, objecting to the disallowance of certain items in the bill. The objections to the disallowance fell into five categories, of which the only one relevant to the present case was that constituted by objections to a ruling that the Taxing Officer could only allow for attendances, perusals, copying and other charges at the amounts set out in Dax's Precedents of Costs, in accordance with a ruling which had been given by the Master in Equity in 1886.

As to this, Harvey J. said (at pp. 396, 397):—

“The fourth ground of objection is that of slavish adherence to Dax's Precedents. The practice of the taxing officers in this respect is regulated by a ruling given on the 15th December, 1886, by Mr. Frank Barton, the late Master in Equity, on a reference to “him by Mr. Hargraves, the Deputy Registrar, as to the scale for conveyancing costs. That ruling was as follows: ‘I lay down as a rule for future guidance that I will allow for the details of work and labour done on the basis of the precedents stated in pages 513 to 543 Dax's Costs, but I will consider for the item for “Instructions” for the transaction the skill and labour properly employed and the expense and responsibility incurred in the preparation of any deed contract case or other document.’ That was his way of applying the provisions of what is now s. 31 of the Legal Practitioners Act of 1898. (In identical terms with s. 27 of the Costs Act of 1967). In practice the taxing officers since that date have always applied the scale in Dax's Precedents for the various items, and as these amounts are recognised as being decidedly low according to present day ideas, they have allowed an increased fee in the item for drawing the document in question so as to compensate the solicitor.

I naturally feel great reluctance to hold that a practice which has been pursued continuously for thirty years should be departed from, but I confess this principle of taxation does not altogether commend itself to my mind. The principle of taxation professedly applied is to pay the solicitor for his work in detail; this is not in effect carried out. An insufficient amount is allowed for the bulk of the items, and in the one item of ‘drawing’ a discretionary amount is allowed to pay for the work done and responsibility taken by the solicitor, not merely in the drawing, but in the whole matter and not already sufficiently remunerated.

In my opinion the taxing officers should not take Dax's Precedents as binding on them.— Where scales adopted by the Court for litigious costs deal with matters similar to those arising in conveyancing bills of costs these scales should be followed. ... Where no such guide is forthcoming Dax's Precedents may be referred to as useful, but should not be slavishly followed.”

He remitted the bill to the Taxing Officer for retaxation. The effect of the judgment was that the scale for litigious costs was to be preferred to Dax's Precedents where the items in the former were applicable to conveyancing work, but he did not say that Dax's Precedents could not be used at all. Dax's Precedents, as the extract quoted shows, was very different from the Law Society scale. The amounts in it had become completely out of date, and the method of getting over that difficulty was to add a lump sum to one item, that of drawing. It was this which I think the learned judge had in mind when he said that the principle of taxation so disclosed did not altogether commend itself to his mind.

The case went to the Full Court on appeal by the mortgagor, but the question as to the use of Dax's Precedents did not come up for consideration in that court. The court merely said:— (at p. 400)

“As to the fourth objection His Honour has ordered a review of taxation on that ground and the appellant does not now complain in regard to that.”

I should add that in 1920 a statutory scale of conveyancing fees was introduced in New South Wales under the Conveyancing Act 1919.

In these circumstances In re McLaughlin cannot in my opinion be regarded as supporting the proposition that it is not open to the Taxing Officer to use the Law Society scale as a guide. That scale is kept regularly up to date, as the material before us (which was not before the learned judge) shows. The “item charges” in the scale are put forward as “minimum allowances”. Such a scale, in my opinion, constitutes a useful guide for the Taxing Officer; he is of course not bound by it, any more than he is bound by the scale in the second schedule. I venture to repeat what I said in Re Queensland Forests Ltd (1966) Qd. R. 181, with the agreement of the other members of the court:— (at pp. 186, 187)

“For myself, I cannot see why a scale of charges compiled and recommended by a reputable professional body should not, by virtue of the very fact that it is so compiled and so recommended, be regarded as reasonable; I should indeed have thought that such a scale constituted the most reliable standard of comparison obtainable ... The scale of fees under consideration in the present case is not of course an agreed scale but I cannot think that that makes any difference; it seems to me to be hardly likely that a professional body such as the Institute of Chartered Accountants would fix a scale of fees which they could not reasonably expect the clients of their members to be willing to pay.”

That case was cited to the learned judge, but he regarded it as not being applicable because, as he said “In that case there was no possibility of possibly competing scales of charges”. The learned judge described the problem before him as that “of deciding which of two scales of charges should be used” by the Taxing Officer.

With great respect, however, that was not in my opinion the problem. The decision of the Taxing Officer was given in the exercise of a discretionary judgment; his task was to fix “the proper sum” for the remuneration of the solicitor; the question for the learned judge was whether in performing that task the Taxing Officer had mistaken the facts, or had had regard to irrelevant considerations, or had failed to have regard to some relevant consideration, or had committed some error of principle. The learned judge could have said, in accordance with the decision at which he arrived, that the Taxing Officer had taken irrelevant matters into account in that he had taken the Law Society scale into consideration, but that was not how he put it. It does seem that the matter before him was conducted on the basis that the question for his decision involved a choice between two competing scales.

Much material was put before us, which was not before the learned judge. It shows that since the introduction of the Law Society scale many taxations under the Costs Act have been conducted by reference to that scale. The only evidentiary material which the judge had before him tended to support this, but the learned judge drew on his own knowledge and experience in saying that the scale in the second schedule had been used on such taxations as well. In the reasons for his decision the Taxing Officer said that he had taxed bills for conveyancing work which were drawn on the Law Society scale, and, that the question whether that scale was a proper one had never been raised or argued; he said that there had been a certain “detente” between members of the profession in that regard. He added that he had also taxed bills which were drawn on the scale in the second schedule. It appears to be the case, therefore, that both scales have been referred to in fixing a proper sum for the remuneration of a solicitor.

In my opinion this is entirely proper. The task of the Taxing Officer upon a taxation under the Costs Act is analogous to that of determining a quantum meruit. In fixing a reasonable remuneration for the services performed by a solicitor it seems to me to be appropriate to refer to the scale of charges suggested as being reasonable by the Law Society, the body representing the solicitors' profession. True, the scale has no statutory basis, but surely it must be regarded as having been prepared in a responsible and moderate manner.

Similarly, if in the circumstances of a particular case he thinks fit to do so, the Taxing Officer may refer to the applicable items in the scale contained in the second schedule. As I have said and as the Taxing Officer recognized, he is not bound by either scale; he is entitled to use the considerable knowledge and experience which he gains from the performance of his duties, and he must, as he said, bear in mind that “each case depends upon its own circumstances and must be taxed accordingly.”

It seems to me, therefore, that the decision of the learned judge, which would have the effect of excluding the Law Society scale from the Taxing Officer's consideration in all cases, cannot be supported.

There was a subsidiary point argued by the appellant. It was that the summons to review the taxation was not issued within 5 days after the Taxing Officer's decision, and thus was out of time. Reliance was placed on the provisions of Order 70 Rule 31, which fixes a limit of 5 days after the decision within which to appeal to a judge in chambers from an order of a registrar. It is clear, however, that Order 70 Rule 33 contemplates a summons already in existence, which has been dealt with by the Registrar in such a manner that a party wishes to appeal to a judge. A summons issued under s. 34 of the Costs Act, as this was, is a fresh summons issued after the Taxing Officer has given his decision. Moreover, the Taxing Officer was not acting in his capacity as a Deputy Registrar of the court; he was acting as the person designated by s. 24 of the Costs Act to tax solicitors' bills of costs relating to conveyancing business. The precise steps by which the mantle of the Master in Equity mentioned in that section has been assumed by the Taxing Officer are not quite clear, but it is not necessary to pursue that matter. I agree with the learned judge in thinking that Order 70 Rule 33 does not apply in the present case.

In my opinion, for the reasons I have given, the appeal should be allowed with costs, the order of the learned judge set aside, and in lieu thereof it should be ordered that the summons to review the taxation should be dismissed with costs.

Close

Editorial Notes

  • Published Case Name:

    D.G. Ogle Pty. Ltd. v Bowdens

  • Shortened Case Name:

    D.G. Ogle Pty. Ltd. v Bowdens

  • MNC:

    [1979] FC 69

  • Court:

    QSC

  • Judge(s):

    Lucas J., Matthews J. and Sheahan J.

  • Date:

    19 Sep 1979

Litigation History

No Litigation History

Appeal Status

No Status