Pean v Perkins[1996] QDC 139

CIVIL JURISDICTION

JUDGE ROBERTSON

and

and

IPSWICH

DATE 22/05/96

JUDGMENT

HIS HONOUR: The plaintiff applies for a certificate from me directed to the Taxing Officer so that, if the Taxing Officer thinks it appropriate, he or she may allow an amount greater than the maximum amount specified under items 24 and 27 of the District Court Scale of Fees and Costs.

The action was commenced by plaint on 20 November 1991 and was compromised on the 2nd October 1995 after negotiations. The matter had been prepared for trial and was listed for hearing in this Court on the 25th and 26th October 1995. Although the plaintiff's solicitor's affidavit states that both liability and quantum were in issue, it is clear from the Entry of Appearance and Defence filed on 5 April 1993 that negligence was admitted. The only issue in relation to liability was contributory negligence which was pleaded in paragraph 4 of the defence on the basis the plaintiff had not worn a seat belt.

Items 24 and 27 in the Scale of Costs recognise that the allowance for instructions under these heads may not be sufficient in a particular case. Sub item (3) of item 27 provides as follows:

It is accepted by both parties that to satisfy the burden on it, the party seeking to establish special circumstances:

(See Antney v. Smith and Anor plaint 1839 of 94 unreported judgment of the District Court, His Honour Judge Wylie QC page 5). It is probably more accurate to use the word “may” instead of “would” as the granting of a certificate by a Judge does not effect the discretion of the Taxing Officer on taxation of the bill.

Counsel have referred me to a number of decisions of Judges of this Court in which certificates were granted on the basis that special circumstances existed. Generally speaking, these cases indicate that where a matter is unusually complex as evidenced by the number of witnesses, the issues and the number of expert witnesses, et cetera (eg. Kane v. The State of Queensland and Anor No 53 of 1990 unreported judgment of Judge Shanahan (as he then was) dated 28 September 1990 and Rigelstein, unreported judgment of Judge Wolfe dated 20 September 1995), special circumstances have been found to exist. In Antney (supra) Judge Wylie declined to find special circumstances because His Honour found the action was not in any sense out of the ordinary or complex, on the basis of the evidence before him.

The plaintiff argues that there are a number of features of this action which can be categorised as “unusual or out of the ordinary.” These features are referred to in the affidavit of the plaintiff's solicitor Mr NcNamara, and can be briefly summarised as follows:

It is not my task to undertake a taxation of the plaintiff's Bill of Costs. However, in order to determine the validity of the plaintiff's arguments it is necessary to peruse the Bill of Costs in taxable form which has been filed, and also the defendant's objections which were filed on the 1st of February 1996. I do not think there is anything in points 1 and 4.

These actions are regularly commenced on behalf of infant plaintiffs; and her absence of recollection was hardly extraordinary.

Negligence was admitted, and the only issue relating to the seat belt was no doubt covered by the police report. Matters relating to quantum could easily be canvassed with the parents and by access to school reports et cetera., quite usual investigations involving a claim by an infant plaintiff. Again, I do not think there is anything out of the ordinary in the plaintiff attaining her majority in the course of the litigation. Indeed, it could be argued that the absence of a work history, with no need to obtain tax returns and explore past employment performance, is likely to make the solicitor's task a little easier.

The need for the solicitor to travel to the plaintiff's home is not a special circumstance as contemplated by item 27. Indeed a perusal of the bill indicates the solicitor has claimed the time in transit as a separate attendance item and not under item 24 or 27 (for example see items 3 and 55). As Mr Keim, for the defendant, points out, the medical reports indicate that on occasions the plaintiff was accompanied to medical appointments by her father who provided some history. It is clear from the reports that, although the plaintiff has total amnesia of the accident itself, and partial amnesia for some time afterwards, she was nevertheless able to give a good account of her pre and post accident schooling and symptoms. I therefore do not think items 2 or 3 could constitute a special circumstance, either in isolation or together with other features.

This leaves the issue of the number of expert witnesses referred to in Mr McNamara's affidavit. In Riglestein (supra) Judge Wolfe regarded the number of medical reports (18) as being a factor contributing to her view there were special circumstances, particularly in light of the fact that 15 of those reports were admitted at trial by consent, and thus the defendant acknowledged the relevance of and need for such extensive medical evidence. There was another unusual feature in that case, absent here, concerning the location of the accident.

Mr Keim argues for the defendant that some of the reports referred to in the plaintiff's Statement of Loss and Damage were not relevant to the issues in the trial, and are solicitor/own client items, and would not on a taxation be chargeable against the defendant. Mr Keim submits by reference to long established principle concerning the proper basis for assessment for party and party costs, that if the plaintiff's solicitor performs a task which is as a result of overcaution, then such a task cannot be relied upon as adding to the complexity of the action, and therefore adding support to an argument that special circumstances exist for the purposes of item 27. It is well established that a party cannot recover a cost against the unsuccessful party if the cost was not necessary to maintain the rights of the party, or was as a result of overcaution. (See Ricks v. White and Anor - No 95 of 1989, unreported judgment of Demack J delivered 4 February 1994). Mr Keim argues that it was not necessary for the plaintiff to be examined by Dr Reye, an orthopaedic surgeon, as she had no orthopaedic injuries nor was it necessary to obtain reports from Dr Toakley and Atkinson, both of whom are neurosurgeons. He extended the later submission, somewhat tentatively, to include Dr Cameron, however it was clearly necessary to have the plaintiff examined by a neurologist as well as a neurosurgeon. Mr Keim also submits that it was not necessary to engage Dr Myers who is a general physician.

To assess this submission it was necessary for me to read the various reports which were handed up in a bundle by Mr Keim. It is difficult to see why it was necessary to obtain reports from the two neurosurgeons - perhaps the brevity of Dr Toakley's opinion, which was obtained first, encouraged MR NcNamara to go to Dr Atkinson. The neurosurgeon engaged by the defendant, Dr Weidmann essentially agreed with Dr Atkinson, and I cannot see that there is any issue of real complexity arising out of these reports. In relation to Dr Meyers and Reye, it is quite clear that neither report was necessary and both were obtained, in my view, out of overcaution on the part of the plaintiff's solicitors and in so finding I am in no way being critical of Mr McNamara.

In the light of these findings I conclude this was not an action in which more work was done then in an ordinary or usual action, and I decline to find special circumstances and I refuse the application.

Before dealing with the issue of costs there are two matters to which I wish to refer. I do not think it is correct to approach the issue of special circumstances on the basis of an assessment by a costs assessor which is in excess of the allowable sum in items 24 and 27. In this matter there was such material suggesting that the extra work exceeded the scale by approximately $600. The correct approach is, as I have adopted here, for the Judge to assess the nature of the action itself and decide whether because of its complexity and/or unusual features involving extra work, special circumstances exist.

The second matter concerns the structure of the scale itself. The scale is regularly reviewed and undoubtedly bodies such as the Queensland Law Society and the Bar Association are involved in the consultation process leading up to such a review. In my view the scale is unnecessarily complex and its present form leads to significant additional costs to parties. It is also difficult to understand why there still remains a different scale for this Court and the Supreme Court in the light of the major jurisdictional changes since 1989.

...

HIS HONOUR: I order the plaintiff to pay the defendant's costs of and incidental to the application to be taxed.