Antney v Smith[1996] QDC 368

BETWEEN:

AND:

AND:

BEFORE HIS HONOUR JUDGE I.McG. WYLIE QC

REASONS

26/2/96

1. This action was commenced by plaint presented on August 26, 1994. It arose from a motor vehicle collision which occurred on March 2, 1994. The action was entered for trial on September 6, 1995 and the trial was set to take place on February 26, 1996. The parties were able to conclude a compromise agreement which provided that the defendant by election shall pay the plaintiff's costs of and incidental to the action to be agreed or, failing agreement, to be taxed on the appropriate scale where the amount recovered exceeds $50,000. The plaintiff sought from me a certificate to the Registrar or Taxing Officer (as the case may be) so that, if the Registrar or Taxing Officer thinks it proper in the circumstances to do so, he or she may allow an amount greater than the maximum amount specified under Items 24 or 27 of the Costs Scale.

2. So far as the question of allowable costs be concerned, the starting point is r.365 of the District Courts Rules which provides that the fees to be allowed to a solicitor for acting on behalf of a party to an action in the Court shall be according to the Schedule of Scale of Fees and Costs to those Rules. That Schedule proceeds by way of a numbered series of items, each of which relates to a particular step which may be taken and with respect to which the maximum amount to be allowed on taxation is then set out. Items 24 and 27 fall within a series of items under the subheading “Instructions”.

3. Item 24 applies if an action is settled and no amount is allowed under item 27. It permits an allowance to include: (a) allowances for instructions to settle and all attendances on, and correspondence with, the party and the party's witnesses; and (b) all necessary work and perusals in connection with the settlement, and briefs to counsel in regard to settlement. That allowance (excluding any necessary out of pocket expenses which may be allowed) is to be not more than $916.50 on the present Scale.

4. Item 24 also recognises that, in a particular case, that allowance may not be a sufficient indemnity to the party. Sub item (4) provides:

5. Item 27 applies to instruction for brief to counsel including: (a) all attendances on, and correspondence with, the party and the party's witnesses; and (b) all necessary perusals and work in connection with the preparation for hearing. The amount which may be allowed (excluding any necessary out of pocket expenses which may be allowed) is not more than $2,707.50 on the present Scale.

6. Item 27 also recognises that, in a particular case, that allowance may not be a sufficient indemnity to the party. Sub item (3) provides:

7. The grant of such a certificate does not assure the applicant party an allowance of a higher amount than is prescribed by either item 24 or item 27. It merely allows that to be done if the registrar or taxing officer considers that the circumstances are such that it is proper to do so. In the end so much may be taxed off the bill of costs that the final allowance does not exceed the maximum amount prescribed. The question on this application is as to what are the “special circumstances” which the applicant party has to show to lead to the grant of such a certificate. A judicial certificate does not usurp the discretion of the taxing officer.

8. The phrase “special circumstances” is often found in legislation or subordinate legislation.

9. With respect to costs and taxation, the phrase appeared in the last paragraph of s.25 of The Costs Act of 1867 (now s. 8 (3) of the Legal Practitioners Act 1995) in relation to a reference of a bill of costs to taxation only “under special circumstances to be proved to the satisfaction” of a Judge of the Supreme Court. The phrase also appeared in s. 33 of The Costs Act of 1867 (now s. 16 (1) of the Legal Practitioners Act 1995) under which a bill of costs which has been paid can only be referred to taxation “if the special circumstances of the case” require it. The case law which has dealt with those, and comparable, provisions provide no guidance to the meaning of “special circumstances” in items 24 and 27 of this Court's Schedule. However, in Re Norman (1886) 16 Q.B.D. 673 at p 677, Lopes L.J. observed:

10. In R. v Moffitt (1990) 20 N.S.W.L.R 114 at p 115, Samuels J.A. said of “special circumstances” in s.5 of the N.S.W. Sentencing Act 1989:

In Re Mallett (1989) 95 F.L.R. 63, with respect to “special circumstances” justifying admission to practise as a legal practitioner within s. 11 (5) of the Northern Territory Legal Practitioners Act, Asche C.J. said at p 67:

11. The word “special” must be given effect. It is a word used to describe or distinguish something which is different from the ordinary or the usual. It is the most comprehensive of a group of words in everyday use for that purpose. Appropriate antonyms are: general, normal and usual. In the context of r. 365 and the Scale of Fees authorised by it, I consider that the “special circumstances” which the applicant under item 24 or item 27 must establish are those relating to the action in question which, by reason of their being different to what ordinarily or usually exist, distinguish the work required to be done in that action from the work ordinarily or usually done. In particular the result must be that the maximum amount prescribed under either of those items will be insufficient reimbursement for the work which was actually done. Essentially the applicant must show that, because of the circumstances of the action, more work was done than in an ordinary or usual action such that an allowance over and above the prescribed maximum for the items would be proper or right in order to allow appropriate reimbursement.

12. That is, I consider, the proper approach to items 24 and 27 and to an application for a judicial certificate thereunder. The Scale of Fees and Costs has been regularly reviewed and altered over the years. The associations representing legal practitioners have, to my knowledge, been afforded the opportunity to comment on the need for any change as well as the nature thereof. Those associations may be presumed familiar with the work usually done under any item in the Scale and with an appropriate remuneration therefor. The District Court Judges who make the Rules under s. 101 of the District Courts Act, even if not familiar with the present day costs of running a professional practice, may be presumed both capable of appraising fairly submissions received by them and, from their present and past experience, being capable of distinguishing between an ordinary or usual type of action in a District Court and one which requires more work than usual. Indeed it is of interest to note that a substantial change was made to the nature of the Scale of Fees and Costs to commence on November 1, 1989 at the same time as the monetary and subject matter jurisdiction was greatly enlarged because of the commencement of the District Courts and Other Acts Amendment Act (1989). That was when Items 24 and 27 were put into their present form. Each item thereafter has limited the maximum amount which may be allowed under it whilst affording an opportunity to satisfy a Judge that, by reason of the “special circumstances” which existed, he or she should grant to the registrar or taxing officer permission to allow more than the maximum amount if that be the proper result of the work actually done.

13. In this context r. 365 states the general rule which may be stated thus: irrespective of how much work may be done the maximum allowable therefor is that amount set out for each item in the Scale. Item 27 deals with instructions for brief to counsel and preparation for hearing. In the present case it was only a week or so before the trial that the terms proposed for settlement of this action were sent to the plaintiff's solicitor. They have been accepted. Item 24 exists to provide for the work occasioned by receipt, consideration and acceptance of that offer to the extent that an allowance is not made under item 27 for the same or for what is essentially the same work as is comprised in the item 27 allowance. In that sense item 24 can be held to recognise that additional work may ordinarily become necessary when an offer of settlement is received after preparation of the brief on trial. However, I consider that particular circumstance (which does often occur) is not itself a “special” circumstance since item 24 provides an appropriate general allowance for such additional work and then goes on to provide for “special circumstances” with regard to that additional work.

14. Likewise I consider that item 27 provides an appropriate general allowance for the work ordinarily done with respect to that category and then goes on to provide for an exception where the action cannot be fairly described as belonging to the ordinary or usual example of such an action. That exception requires proof of “special circumstances” rendering it proper to allow more than the generally applicable maximum.

15. So I consider that an application for a judicial certificate, whether under item 24 or item 27, should descend into particularity. It should demonstrate exactly what work was done and, if not obvious, why that work was done and what were the circumstances which rendered that work “special” in the sense that it was different from or more than that work which would ordinarily be done in an ordinary action in this Court. My reference to “if not obvious” may not always be relevant where the application is made under item 27 to the trial judge at the end of the trial for by then he or she may have a sufficient insight into the nature of the work done to describe the circumstances as “special”.

16. My approach is reinforced by the circumstance that this is the first occasion on which I have been asked to grant a certificate under these items despite having dealt with hundreds of civil actions since November 1989 which have been of varying length, complexity and character. My research has discovered instances where other Judges have granted a certificate. On January 31, 1996 my brother Nase did so in Hughes v Alward (District Court, Rcckhampton). His Honour's reasons were brief but they disclose that he had before him an affidavit from the solicitor for the applicant deposing “generally as to the necessary work involved in conducting the action” and pointing out that a bill of costs had been prepared “in which item 27 was calculated in excess of $4,600 without any allowance for care and consideration.” His Honour accepted evidence that the maximum item 27 allowance was inadequate and then said:

After a long and hotly contested defamation action, my brother Robin also granted an item 27 certificate. Some of the flavour of Griffiths v Queensland Newspapers Pty Ltd can be gained from a study of the Court of Appeal judgment reported at [1993] 2 Qd.R. 367. His Honour had been the trial Judge. The circumstances of that action were undoubtedly “special” and it was not necessary for reasons to be given.

17. The present applicant has failed to establish to my satisfaction the existence of “special circumstances” such that I should grant the certificate she seeks.

18. A solicitor in the employ of the plaintiff's solicitor has sworn an affidavit which exhibits an assessment of the plaintiff's party and party professional costs prepared by a legal costs assessor. The assessment is not in the form of a taxable bill of costs and does not deal with each item of work done in the chronological order in which it was done. Some items are noted “24/27” and it is noted that for the period to April 1, 1995 (when the maximum allowable amounts increased slightly) 24/27 items totalled $2,516.87 and that for the period thereafter such items totalled $1,401.02. The total of all such items is $3,917.89. Taking the present Scale only for the purpose of this exercise I note that the maximum amounts allowable under items 24 and 27 total $3,624.00. So if, on a party and party taxation, the plaintiff were allowed the amount claimed for each item of work done and shown in that assessment by way of an indemnity for costs reasonably and necessarily incurred by her, the difference is only $293.87. The Scale does not confer an unfettered discretion to authorise the registrar or taxing officer to allow more than the maximum simply because it has so happened that work amounting to more than the maximum has been done. The Scale requires special circumstances to exist and to be shown to the satisfaction of the Judge. Such a small excess, even if it be not trifling, is not such as to bespeak the presence of “special circumstances”.

19. The deponent nowhere in his affidavit refers to facts which support “special circumstances”. All he says is:

That paragraph describes only what one would ordinarily expect in such an action. The Court Index and the pleadings do not suggest anything untoward in the history of this action or in the issues raised by it. Counsel for the plaintiff conceded that the liability issue was one of credibility of witnesses and the injury issue was not an uncommon one although he submitted that perhaps it resulted in more medical reports than otherwise would have been necessary or appropriate, and that because there was what might be thought to be a disproportionate psychological response to a persisting whiplash injury. The costs assessment under the heading “medical reports” lists several “report” fees and “consultation and report” fees but these are “out of pockets” allowable in any event and the number thereof is not such as to suggest any unusual amount of work concerning them. Indeed the costs assessment, when identifying the item 24 and item 27 work done by the solicitor, does not indicate any additional work in arranging for such consultations and fees.

20. I reserved my decision upon this application and gave the parties leave to exchange further submissions and to forward the same to me. None have been received within the time allowed.

21. I refuse to grant the certificate sought.

22. The solicitor who appeared for the defendant by election sought costs in relation to the time spent upon this aspect of the matter. There was no dissent from my observation that the hearing of this application (over and above the formal mention of the settlement of the action) probably involved some one half an hour. The plaintiff's application has failed and I consider it just to allow the defendant by election its additional costs occasioned by reason of its having been made. I refer to item 54 of the Scale (which does not relate to any period of time) and to item 46 which does. I bear in mind that the solicitor attended for the purpose of expressing consent to the orders I made. I seek to avoid the work and expense of taxation. I act under s. 366 and fix costs occasioned by this step in the action.

I order the plaintiff to pay the defendant by election's costs of today's appearance on this application fixed in the amount of $50.