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CITE

Unreported Judgment

McCoombes v Curragh Queensland Mining Limited[2001] QDC 142McGill DCJ
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McCoombes v Curragh Queensland Mining Limited[2001] QDC 142

DISTRICT COURT OF QUEENSLAND

CITATION:	McCoombes v. Curragh Queensland Mining Limited [2001] QDC 142
PARTIES:	MALCOLM ADRIAN McCOOMBES (Plaintiff) v. CURRAGH QUEENSLAND MINING LIMITED (Defendant)
FILE NO/S:	D59 of 1995
DIVISION:
PROCEEDING:	Review of costs assessment
ORIGINATING COURT:	District Court Brisbane
DELIVERED ON:	14 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	12 October 2000
JUDGE:	McGill DCJ
ORDER:	Objections 2, 10, 11, 19, 22, 24, 30, 31 and 35 upheld; objections 4, 14, 36 and 38 upheld in part; other objections disallowed.
CATCHWORDS:	COSTS – Assessment – review – Uniform Civil Procedure Rules r. 742 COSTS – Assessment – notice of objection – whether binding on party liable to pay – whether binding on registrar – Uniform Civil Procedure Rules r. 717 COSTS – Assessment – costs of assessment – offer to settle assessment – whether more than one possible – consequence of assessment splitting offers – whether another order appropriate – Uniform Civil Procedure Rules r. 721, 722. COSTS – Assessment – scale items – engrossing – what constitutes WORDS AND PHRASES – “engrossing” Re: Feez Ruthning Bill of Costs [1989] 1 Qd.R. 55 – applied Re: Bain Gasteen & Co’s Bill of Costs [1990] 1 Qd.R. 412 – applied Garrard v. Email Furniture Pty Ltd (1993) 32 NSWLR 662 – followed Dalrymple Holdings Pty Ltd v. Gohl (1991) 34 FCR 397 – followed Adsett v. Berlouis (Writ 783/91, Thomas J, 15.1.93, unreported) – distinguished
COUNSEL:	M. Grant-Taylor SC and S.P. Gray for the plaintiff N.E. Ulrick for the defendant
SOLICITORS:	R Rees & Sydney Jones for the plaintiff Bain Gasteen for the defendant

[1]
This is a review pursuant to Uniform Civil Procedure Rules r. 742 of the decision made by a deputy registrar on a reconsideration under r. 741 of decisions made in the course of conducting an assessment of a costs statement filed on behalf of the plaintiff. On 7 July 1999, Senior Judge Trafford-Walker ordered by consent that the action be adjourned to the settlement list, and that the defendant pay the plaintiff’s costs of and incidental to the action to be taxed on the District Court scale where the amount recovered exceeds $50,000. Pursuant to that order, on 1 December 1999 an application for costs assessment and costs statement was filed in the court by the solicitors for the plaintiff. The costs statement claimed $24,607.85 for professional costs and outlays of $16,044.40, a total of $40,652.25. It was 210 pages long, and included 1,432 items.

[2]
On 17 January 2001, the defendant filed its objections. There was a general objection to the manner of claiming for perusals and photocopying for counsel’s brief, and in addition there were 640 specific objections, although many of those were in substance the same objection which arose in respect of a number of particular items in the costs statement. An assessment was held over a period of 10 days in March and April 2000. On 20 April 2000, the deputy registrar directed that any application for reconsideration be filed and served by 19 May 2000. On that day, both the plaintiff and the defendant filed applications for reconsideration. On 26 May 2000, responses to the respective applications were filed by each of the parties. On 1 September 2000, the deputy registrar allowed in part the plaintiff’s application for reconsideration, and allowed a total of $19,388.90^[1], which included costs associated with the reconsideration. A taxing fee of $1,968 was ordered to be paid by the plaintiff. The defendant’s application for reconsideration was unsuccessful. On 15 September 2000, the application before me was filed on behalf of the plaintiff; written submissions on behalf of the plaintiff were filed on 2 October 2000, and on behalf of the defendant on 6 October 2000. The matter was argued before me on 12 October 2000. Under r. 742(4)(b), unless the court otherwise directs, a party may not raise any ground of objection not stated in a statement of objection or raised before the registrar.

History of the proceeding

[3]
The action was commenced by a writ filed in the Supreme Court on 10 March 1993 claiming damages for negligence, breach of contract and breach of statutory duty on the part of the defendant, the plaintiff’s employer. The statement of claim was delivered on 8 July 1993 and a defence on 8 October 1993. An application on behalf of the defendant for further discovery and for a further Statement of Loss and Damage on behalf of the plaintiff was filed on 8 December 1994, and on 21 December 1994 Derrington J made an order for the plaintiff to file and serve a further supplement to the Statement of Loss and Damage pursuant to O. 39 r. 29C of the rules of the Supreme Court. The application for further discovery was adjourned to a date to be fixed. The plaintiff was ordered to pay the costs of the application, not to be enforced until the determination of the action and to be on the District Court scale. According to a costs certificate filed on 28 April 1995, the costs payable pursuant to that order were fixed by the taxing officer at $1,428.

[4]
On 5 January 1995 a consent was filed, signed on behalf of both the plaintiff and the defendant, for an order that the action be remitted to the District Court at Brisbane. Pursuant to that consent, a deputy registrar on 6 January 1995 ordered by consent “that the within action be remitted to the District Court at Brisbane”. A certificate of readiness signed by the solicitors for both parties was filed on 4 January 1999, and the following day an entry for trial was filed by the solicitors for the plaintiff. A further amended Entry of Appearance and Defence on behalf of the defendant was filed on 30 June 1999, and a statement of claim was filed on 6 July 1999; this was a copy of the statement of claim delivered on 8 July 1993, and its filing appears to have arisen from an incorrect assumption that such a step was necessary under the Uniform Civil Procedure Rules rather than because of any desire to amend the pleading.

[5]
On the first day of the assessment objection was taken to all of the costs prior to the matter being remitted to the District Court, on the basis that no order had been made in the Supreme Court to deal with those costs. Prior to 1 March 2000, s. 77 of the District Court Act, which dealt with removal of proceedings from the Supreme Court to the District Court, provided in relation to costs in subsection (6) as follows:

“The costs of the parties in respect of proceedings remitted to a District Court by an order made under subsection (3) –

(a)
incurred subsequently to the order shall be allowed according to the scale prescribed in District Courts;

(b)
incurred before the order

(i)
in the case of proceedings referred to in subsection (1)(a) shall be in the discretion of the Supreme Court or a judge thereof; and

(ii)
in the case of proceedings referred to in subsection (1)(b) shall be allowed according to the scale prescribed in the Supreme Court.”

This action fell within subsection (1)(a). The order by which the matter was remitted to the District Court did not make any provision for costs and under that subsection there was no jurisdiction in the District Court which could have been exercised by Judge Trafford-Walker when making the order for costs. There was no order which authorised the assessment of the costs prior to remittal. After this matter was raised, the plaintiff made application to a judge of the Supreme Court, who on 3 April 2000 ordered the defendant to pay the plaintiff’s costs of and incidental to the action up to the date of remitter to be assessed in accordance with the District Court scale applicable to matters where the amount recovered was in excess of $50,000. Her Honour also ordered that the defendant pay the plaintiff’s costs of that application, to be assessed if not agreed. Her Honour, in her reasons on 3 April 2000, was of the opinion that there was power under r. 686 for the District Court judge to make an order in respect to the costs of the proceeding prior to remitter, but that that power had not in fact been exercised, so it was appropriate for an order then to be made by Her Honour to deal with those costs.

[6]
Section 77(6) was amended by s. 20 of the Justice Legislation (Miscellaneous Provisions) Act (Number 2) 1999, so that para. (b)(i) read:

“In the case of proceedings referred to in subsection (1)(a), must be assessed on the basis the proceedings had been started in the Supreme Court if the Supreme Court orders, or, in the absence of an order, as if the proceedings had been started in the District Court.”

That amendment took effect on 1 March 2000. The effect of the amendment is, in my opinion, to make it clear that this provision is concerned with the scale on which the costs are to be assessed, and does not now impose any limitation on a District Court judge from dealing with the costs of the whole of the proceeding after it has been remitted to the District Court pursuant to Uniform Civil Procedure Rules r. 686.

[7]
It may be that the amendment is irrelevant here because prior to the amendment the parties had an accrued right to have the assessment conducted in accordance with the former law, but in my opinion it would not matter if the section in its amended form did apply, because what has been done by way of assessment is consistent with the provisions of that section in its amended form, as well as being in accordance with the order made by Her Honour, in relation to the costs incurred while the action was in the Supreme Court.

The effect of a Notice of Objection

[8]
One issue which arose in relation to a number of objections is the extent to which the content of a notice of objection filed by a party liable to costs under r. 711 is binding on that party, or on the registrar. It was submitted on behalf of the plaintiff that the defendant should have been confined to the objections raised in the notice it filed, and the deputy-registrar had been wrong to disallow items not objected to, or to disallow items on grounds other than those raised in the notice of objection. This is a matter of general importance, on which there is some conflict in earlier decisions.

[9]
The scheme of the Uniform Civil Procedure Rules Division 5 dealing with the procedure to assess the costs requires a cost statement to be filed and served: rr. 710, 711. There is no obligation on the party liable to pay to file a notice of objection, even though if one is to be filed, it must be filed and served at least two business days before the day fixed for the directions hearing: r. 717(1), (6). Rule 717 provides:

“(1)A party on whom a costs statement is served may, by notice, object to any item in the statement.

(2)
The notice of objection must –

(a)
number each objection; and

(b)
give the number of each item in the costs statement to which the party objects; and

(c)
for each objection – concisely state the reasons for the objection identifying any issue of law or fact the objector considers the registrar must consider to make a decision in favour of the objector.

…

(4)If the same objection applies to consecutive or near consecutive items in a costs statement, the notice need not separately state the reasons for objecting to each of the items.

(5)Also, if there are a number of associated items, the objection may be in the form of an objection to a common issue related to the associated items.”

If no notice of objection is filed, and the party liable for the costs does not attend the directions hearing, the registrar may assess the costs without considering each item, although the party entitled to costs if not satisfied with the assessment may require the registrar to assess the costs by considering each item: r. 719. The rules do not specifically state that otherwise the registrar is required to consider each item, but the inference is that that will occur unless r. 719 applies, or unless r. 718 applies. That rule provides that if a notice of objection relates only to particular issues or a particular item, the registrar may limit the assessment to the resolution of the matters raised in the objection, and otherwise assess the costs under r. 719.

[10]
The rules therefore contemplate that an assessment may be conducted, in certain circumstances, on a “broad brush” approach without detailed consideration of each item, or may proceed by considering each item, or may proceed by considering particular items which are in dispute, and otherwise assessing on the broad brush basis. However, the rules never oblige a registrar to assess on a broad brush basis, and the registrar is always entitled to consider the costs statement item by item. The overriding obligation is that the assessment must be on the standard basis: r. 708. The registrar must consider the matters referred to in r. 707. A solicitor’s entitlement to costs is limited by the scale: r. 690(1). Further, the registrar can not make a global assessment under r. 719 if the party liable for costs does attend the directions hearing required to be fixed by r. 710(2), and a party who does not file a notice of objection may nevertheless appear at the directions hearing. In those circumstances, there cannot be a global assessment under r. 719. These provisions show that the registrar is not just adjudicating on the particular disputes raised by the parties; her duty under the rules is to assess the costs in accordance with the rules and the scale. The party liable to pay the costs has a right to attend the assessment and to be heard in relation to any matter arising on the assessment: Dalrymple Holdings Pty Ltd v. Gohl (1991) 34 FCR 397 at 403. The right to be heard in the directions hearing is not made conditional upon having filed a notice of objection.

[11]
It was submitted on behalf of the plaintiff that r. 717(2) was a mandatory provision, so that the party objecting was confined to the reasons for objection identified in that objection. This argument was rejected by the deputy registrar, on the ground that her obligation when assessing costs was to determine whether they met the test identified in r. 703(2), and that, even in the absence of written objection, she had an obligation to examine the bill and hear a party wishing to be heard.

[12]
There is no rule which expressly confines a party on an assessment to a ground of objection set out in the notice of objection. It may be instructive to look at the rules which confine parties as to the grounds which may be raised subsequently, on reconsideration or review, under Division 7. A party liable for costs on a reconsideration is confined to any objection “previously taken” (r. 739(6)) but the subrule does not require that objection to have been taken in any particular way; it does not say that the party is confined to any objection included in the notice of objection filed pursuant to r. 717. If the party liable were to be bound by the content of the notice of objection, that subrule would have been drafted differently. Further, r. 742(4)(a) confines a party on a review to any ground of objection stated in a statement of objection (under r. 739) or raised before the registrar. That also indicates that matters can be raised before a registrar without their having been included in the written document.

[13]
The rules do not confine a party to the notice of objection for the reason that the registrar’s function under the rules is not simply to adjudicate on disputes raised by the parties. Her function is to determine what amount is properly allowable by way of costs in accordance with the rules. She is an officer of the court, and a person seeking an assessment of costs carries the onus of persuading her that the costs sought are appropriate in accordance with the rules. The registrar has a duty to determine what amounts should properly be allowed under the bill, which must be discharged whether or not the party liable to the costs appears to contest the assessment, although the failure of a party to object to the bill may be taken into account by her: Garrard v. Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 678 per Mahoney AP. Accordingly, it is not appropriate for the registrar’s consideration of particular items in a costs statement to be confined by the terms of the notice of objection filed by the party liable to pay the costs. She is entitled to consider items not objected to, and it follows that she can consider items objected to on grounds other than those raised in the objection.

[14]
It necessarily follows that the party liable is not confined to the grounds of the objection, although any significant disparity between the matters argued and the grounds of the notice of objection, particularly where that is not explicable by issues arising in the course of the assessment, would obviously be a matter relevant to the costs of an assessment, and could well be a relevant circumstance in determining whether it was appropriate to order otherwise under r. 722(4). It may have other consequences. A notice of objection is therefore not irrelevant, but it is not confining in the way that a pleading is, since it is not a document which defines the issues to be determined on the assessment. That is consistent in my opinion with the general approach in Dalrymple Holdings, and in Garrard. I do not consider that these cases are distinguishable on the basis that in the present case a notice of objection was filed. It would be counter productive to say that a party had a general right to appear and be heard only if no notice of objection was filed.

[15]
Counsel for the plaintiff referred me to the decision in Adsett v. Berlouis (Writ 783/91, Thomas J, 15.1.93, unreported) where his Honour made a direction that the respondent deliver a list of all objections on which he intended to rely and further directed that

“The respondent shall be confined upon the taxation to such objections as are contained in the objections so delivered or to such objections as reasonably arise out of such objections as are so contained.”

His Honour noted, with some disapproval, that it had been a practice to allow objections to be taken late and that no one had ever been deprived of the opportunity of changing ground during an assessment; his Honour thought that such practices ought to be tightened up a little.

[16]
There are three points to note in that decision. The first is that the fact that his Honour made a direction confining the party liable on the bill to the grounds stated in the notice of objection suggests that he thought that in the absence of such a direction the party would not be so confined. The second is that his Honour there was dealing with a situation where the party liable was being unusually uncooperative; he did not wish to be directed to deliver his objections within any time at all. That is, I think a different situation from one where the party liable has put in a notice of objection, and the only question which arises is whether the registrar is entitled to disallow an item of costs other than on a ground raised in the notice of objection. The third point is that it does not appear that his Honour had considered the general duty of the registrar on an assessment which arises whether or not there is a notice of objection, or whether or not a particular item is objected to, discussed by the Court of Appeal in Garrard (supra). Accepting therefore that it may be appropriate, at least in some cases, for a respondent to be confined to the content of a notice of objection, the decision does not establish that in the ordinary case the party liable will be so confined, much less that the registrar is so confined.

[17]
The plaintiff also relied on the judgment in O'Neill v Waugh (Morley DCJ, 30.8.95, unreported) where his Honour said that the taxing officer was but deciding upon issues between the parties, and was simply to go through those items to which objection was taken and decide the issues raised in the objection. That approach seems to me with respect to be inconsistent with the decisions in Garrard (supra) and Dalrymple Holdings Pty Ltd (supra) and with the provisions of the rules to which I have referred. In my opinion the approach in those cases is in accord with the true construction of the relevant provisions of the Uniform Civil Procedure Rules, and they should be followed in preference to the decision in O'Neill v Waugh.

[18]
It is not difficult to think of a situation where it would be quite inappropriate to confine a respondent to matters raised in the notice of objection. A particular item in a costs statement may be claimed under item A in the scale of costs, and the party liable may object that the work properly falls within item B. But the registrar may conclude after considering the point that the work really falls within item C, and that ruling may have consequences for other work claimed in the costs statement which was claimed within item B and not objected to (because the solicitors for the other party also thought it should be claimed under item B) but which consistent with the earlier ruling ought to be allowed under item C. The registrar ought to be able to apply the ruling consistently throughout the costs statement, and the party liable ought to be able to submit, in relation to particular items not otherwise objected to, that consistently with the earlier ruling that item ought to be dealt with under item C. Examples such as this could easily be multiplied. This simply demonstrates that it is unrealistic to approach a task like this on the basis that the only matter for determination is the resolution of particular points raised by the party liable in the notice of objection.

[19]
In my opinion, the true position is that the registrar is not confined by the notice of objection. She is entitled to disallow or reduce items not objected to, if she thought on her examination of the bill that there was good reason for doing so, and she is entitled to disallow on one ground an item objected to on another ground. I do not accept that the result is likely to be that the assessment will degenerate into chaos. This does seem to have been an unusually long and difficult assessment, but there is no reason to think that it became chaotic.

Objection 1

[20]
In the course of preparing for trial, the plaintiff’s solicitors obtained a copy of a report submitted to the Department of Mines and Energy concerning the incident in which the plaintiff was injured. According to the deputy registrar, who saw the report, the document was four pages in length and largely a tick box document, although there was a three line handwritten description of the accident on the last page. The deputy registrar found that this description was consistent with the account of the accident given by the plaintiff to his solicitors when instructions were taken on 14 October 1991. A copy of the document was sent by the solicitors to the plaintiff for his consideration and comments thereon. Item 24 claimed for photocopying expenses, and item 33 the cost of postage; the fee for the letter was included in the claim at item 1392, which in accordance with item 27 in the costs scale included all correspondence with the plaintiff. The defendant objected that it did not further the action to brief the plaintiff with this document. It was submitted on behalf of the plaintiff that it was appropriate to obtain instructions from the plaintiff in relation to a form which had been prepared on behalf of the defendant, and that this was part of the solicitor’s obligation to obtain instructions from his client about the conduct of the action.

[21]
In my opinion, the essential question is whether there was any good reason why it was appropriate, in order to enable the plaintiff’s claim properly to be pursued, for the plaintiff to be informed of the contents of this document. That depends very much on the particular contents of the particular document. In many circumstances it would be appropriate to seek the plaintiff’s instructions on such a document, or even confer with the plaintiff about the contents of such a document. But I do not accept that it is necessarily appropriate for the solicitor to seek instructions from the client on any document coming from the defendant which says anything about the incident, even if it is superficial and entirely consistent with the plaintiff’s account. Whether this particular document fell into a category where it was not necessary to obtain instructions from the client was, in my opinion, a matter which was properly for the deputy registrar to determine, and she has not been shown to have proceeded on any incorrect basis, nor is her decision obviously wrong. Objection 1 is therefore disallowed.

Objection 2

[22]
At the time when the plaintiff was injured the Workers' Compensation Act 1916 provided in s. 9A(2) that, in such an action, the plaintiff must serve a copy of the Writ of Summons on the Workers' Compensation Board and file an affidavit as to such service in the court before taking any other step in the action. It was then usual to plead in the statement of claim that a copy of the writ had been served and that an affidavit deposing such service had been filed, and that was done in para. 9 of the statement of claim delivered in this action. Item 54 in the costs statement claims for drawing the affidavit of service on the Board, and Item 56 is a claim for a photocopy of the affidavit for the brief to counsel.

[23]
Both of these items were objected to by the defendant on the ground that this was a matter covered by item 43 of the costs statement, which in accordance with Item 1 of the Schedule of Costs in the District Court included a reference to “affidavit of service”. This objection was overruled, the deputy registrar evidently taking the view that Item 1 in the Schedule referred to an affidavit of service of the plaint on the defendant, but the deputy registrar disallowed item 56 on the ground that the question of whether the Board had been served was never in issue and that including copies of the affidavit in various briefs to counsel amounted to overcaution on the part of the solicitors for the plaintiff, and was not necessary.

[24]
On behalf of the plaintiff it was submitted that it was appropriate for the affidavit to be briefed in relation to drawing the statement of claim, where such service was pleaded, even if the document ought not to have been included in subsequent briefs, so that this item was properly claimed. The defendant submitted that the information was not necessary for the statement of claim, which appeared to have been prepared leaving the date of service blank for the plaintiff’s solicitors to complete, suggesting that counsel was not actually briefed with, or did not read, the affidavit. The statement of claim delivered on 7 July 1993, a copy of which was filed on 6 July 1999, was obviously prepared with the date of filing of the affidavit of service left blank, and the particular date subsequently typed in, but the date of service on the Board was included in the document when it was originally prepared.

[25]
Assuming that this was, or was directly based on, counsel’s draft, that suggests that counsel was aware of the date of service on the Workers' Compensation Board, which is consistent with the affidavit of service having been included in the brief to draw up the statement of claim without instructions as to the filing date. Indeed, it may have been filed after the brief was sent. It would not have been difficult to draw a statement of claim which assumed that the requirements of the statute had been complied with, and allowed blanks for the appropriate dates to be inserted, but including a copy of the affidavit of service on the brief to draw the statement of claim was correct. It appears from the costs statement that counsel was briefed to draw the statement of claim, and it is not clear from the deputy registrar’s decision that this affidavit was not included on that brief; there is no finding to that effect. Attention seems to have been directed rather to the inclusion of the document on later briefs.

[26]
In the absence of some dispute as to service on the Board, the inclusion of the document in later briefs was inappropriate. Some barristers do sometimes find it quite annoying to have to wade through a number of documents which have been included in a brief for no good purpose, and they could be expected to approve a rule that costs should not be allowed for documents which a solicitor continues to brief after they have ceased to be relevant. Nevertheless, I do not think that is the correct principle. If a copy of this affidavit was properly included in one brief to counsel, the cost of it is properly recoverable regardless of what was done with it subsequently. The argument for the defendant is not supported by the appearance of the statement of claim as filed, nor by any finding made by the deputy registrar. In my opinion, there has been an error of principle made here by the deputy registrar, and I allow the objection to the decision on Item 56, an amount of $2.80.

Objection 3

[27]
This objection concerns a number of items for attendances on, or written correspondence with, the plaintiff in connection with a request by the defendant’s solicitors that the plaintiff undergo an examination by an orthopaedic surgeon for the purposes of a report, and that the plaintiff authorise the treating orthopaedic surgeon to provide a supplementary report to the solicitors for the defendant. The defendant has consistently submitted that these items ought not to be allowed as they were covered by item 1392, which made a claim in terms of scale item 27. The relevant part of that item said that it covers:

“Instructions for brief for counsel, or brief notes for solicitor where no counsel employed on trial, 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 argument before the deputy registrar was that these costs were payable on the basis that any such medical examination was to be undertaken at the cost of the defendant, but that argument was not upheld by the deputy registrar, nor relied on before me.

[28]
The submission before me was that item 27(1)(a) was only concerned with attendances on and correspondence with the party for the prosecution of the plaintiff’s claim, and these should not be charged as part of an item dealing with the preparation of the plaintiff’s case at trial. The deputy registrar’s ruling was that item 27 on its face covered all attendances on and correspondence with the party, so these were not claimable as separate items, although they were properly taken into account when determining the amount allowable under item 1392, which was the claim under scale item 27, where $3,000 was claimed and $2,000 allowed. The deputy registrar said that regard was had to the work performed in respect of these various items covered by objection number 3 when considering the global amount at item 1392. There is no reason to doubt that proposition.

[29]
This, in my opinion, is an issue which turns on the proper construction of the scale item. There are a number of items in the scale of costs which allow a single sum to cover a range of work, which could have been split up into distinct parts, with each part charged for separately. The approach was to allow lump sums for various parts of the litigation process which commonly occur together. One consequence of this approach is that it simplifies the assessment of costs, although it has the disadvantage that the assessment will be more on a “broad brush” basis. In my opinion, it is undesirable for this approach to be complicated by reading into the words in an item limitations which are not expressed, so as to restrict the ground covered by the item. I think it is of some significance that the limitation “in connection with the preparation for hearing” appears in para. (b) but not in para. (a). The plaintiff’s argument is really an attempt to extend that limitation to para. (a), and is not justified by the words of the item. This objection is disallowed.

Objection 4

[30]
This objection relates to items 151, 165, 197 and 234. Apparently on 18 February 1994 the plaintiff’s solicitors received from the defendant’s solicitors a form of authority to Medicare which the plaintiff was asked to execute: item 147. This was forwarded to the plaintiff under cover of a letter which gave advice in relation to the request, claimed in item 151. The form of authority was received and executed by the plaintiff on 4 March (item 165 – perusing). On 28 April there was a further letter from the solicitors to the plaintiff (item 197) passing on a request from the defendant’s solicitors that the plaintiff identify services relevant to the incident on a schedule of Medicare benefits, and return this to them. The plaintiff’s argument is that these items should be separately allowed because they were undertaken specifically at the request of the defendant, and not as part of the preparation of the plaintiff’s case of the trial. This in substance involves the same argument as objection number 3; it is an attempt to read into para. (a) of item 37 the limitation contained in para. (b). In my opinion, that attempt is unjustified. It was appropriate for this work to be taken into account when assessing the quantum to be allowed under item 1392 of the costs statement.

[31]
Item 234 is a claim for perusing a letter from the defendant’s solicitors “requesting we advise when they could expect to receive a copy of the plaintiff’s Medicare claims history”, according to the costs statement. This was objected to on the ground that “this information should have been provided to the defendant at an earlier date. The defendant should not have to indemnify the plaintiff for this request.” The deputy registrar appears to have accepted this argument and concluded that there had been sufficient time to receive and provide the information so that perusal of this letter was not necessary or proper on a standard basis.

[32]
In the immediate sense, of course, it was necessary and proper for the plaintiff’s solicitors to read any letter they received from the defendant’s solicitors, but if additional work had been made necessary because of a deficiency on the part of the solicitor, that is not a matter which results in extra costs being payable by the other party. The deputy registrar, in her decision on the reconsideration, referred first to item 187 on p. 29, which the plaintiff agrees was the letter which item 234 was following up, but then spoke of the letter at item 181 said to have arrived on 22 March 1994. But there is no item dated 22 March 1994, and Item 181 (dated 17 March 1994) is a letter by the plaintiff’s solicitors to a Mr. Lau. The date for item 187 is 22 April. The deputy registrar disallowed item 234 on the basis that over two months had elapsed, which had allowed sufficient time for the plaintiff’s solicitors to provide the information sought. It seems to me that the deputy registrar has misread the month attributable to item 187 as March, and this has led to an incorrect understanding of the factual situation.

[33]
However, the defendant submitted that the letter, item 234, was really following up the long overdue statement of loss and damage, and was properly disallowed even though it also referred to the Medicare history. There is, however, no basis upon which I can resolve that point, since there is nothing more before me as to the content of this letter, and further evidence is not ordinarily admissible on a review: r. 742(4)(a). In circumstances where there has been shown to be a slip by the deputy registrar, I think this item should be allowed. Objection number 4 is therefore allowed in part, in the sum of $15.50.

Objection 5

[34]
The letter at item 181 is described in the costs statement as:

“Letter to Mr. T. Lau referring to our letter of 24^th November last, enclosing plaintiff’s executed form of authority and again requesting that he provide us with copies of plaintiff’s income tax documentation for the period from the financial year ended 30 June 1988 to the present time.”

The defendant objected to this letter on the ground that the solicitors had originally forwarded a request for copies of the tax returns on 24 November 1993, and the authority should have been provided with that request, so that this letter was unnecessary. The original letter was item 129. In the reconsideration, the deputy registrar allowed for a short letter under item 97(4) in the scale of costs, which refers to “a short letter of a formal nature sent or received forwarding documents without comment or a letter to the like effect”. It was submitted on behalf of the plaintiff that the letter concerned did more in that it repeated the request to the accountant and informed him of the scope of the request.

[35]
I agree that the fact that the letter is short is not the determinative factor, but to read the sub-item as being confined to letters forwarding documents “without comment” ignores the concluding words “or a letter to the like effect”. The approach of the deputy registrar here was that nothing new was said in this letter, so that in substance all it did was forward the authority which Mr. Lau had sought. This involved a conclusion in favour of the plaintiff that the plaintiff should not be deprived of all the costs associated with this letter on the basis that the authority ought to have been sent earlier, but also involved a conclusion that all that was reasonably necessary at that point was a short formal letter enclosing the authority without comment, and the repetition of the request was not something for which the other party should pay. In my opinion, that view was open to the deputy registrar, and has not been shown to be erroneous. Objection number 5 is disallowed.

Objection 6

[36]
Item 232 claims for perusing 37 folios of documents discovered by the defendant. The defendant objected on the ground that this matter was covered by item 27 on the scale, which include “all necessary perusals and work in connection with the preparation for hearing”. The plaintiff however relied on item 39, which covers:

“Perusing deeds, correspondence, accounts and documents, if long and necessary, and if the registrar considers that allowance should be made in addition to item 27 …”

The deputy registrar in her decision on the reconsideration stated:

“On a proper construction of item 39, the words ‘if long and necessary’ should be referenced to the nouns ‘deeds, correspondence, accounts and documents’, not the verb ‘perusing’. In other words, what is ‘long and necessary’ is what is being perused, i.e, the ‘deed, correspondence’. Therefore the test should be under item 39, is the document for which perusal is being claimed a ‘long’ document and a ‘necessary’ document?”

She made reference to the content of the documents, and concluded that none of them met the requirements of being individually “long and necessary” as required under item 39 of the scale.

[37]
With respect, I do not agree with this construction of item 39. Here the word “perusing” is used as a verbal noun, and in my opinion the words “if long and necessary” govern “perusing” rather than the various items perused. In my opinion, the word “necessary” more naturally applies to the former, since what is important is not whether the document perused was “necessary”, but whether perusing it was necessary. There was a time when a certificate of readiness for trial in the Supreme Court was quite a lengthy document, and it was certainly a necessary document in order to enable the litigation to be carried forward, but because it was in a standard form it was not necessary for a solicitor to “peruse” the full certificate of readiness every time he saw one of them. There will be other examples.

[38]
Perusal does not just mean looking at the document; it means, as the deputy registrar correctly said, careful reading with a detailed consideration: Re: Feez Ruthning’s Bill of Costs [1989] 1 Qd.R. 55 at 74. A situation may arise where a lengthy document, which is the foundation of the plaintiff’s claim, only requires consideration of one particular clause under which an amount claimed is said to be payable, so that little attention would need to be given to the rest of the document. The document would be long and necessary, but relatively short perusal of it would be required. On the other hand, a fairly short home made will might require perusal for quite a long time in an attempt to work out what it means, or what it could mean. As well, it would be an unsatisfactory situation if one long document requiring perusal would come within item 39 but one hundred short documents, requiring the same amount of perusal overall, would not.

[39]
In my opinion, item 39 can be seen to operate more sensibly if it applies in a situation where perusal rather than a more superficial examination is necessary, and the perusal was long, that is, it took so much of the solicitor’s time that it would be appropriate to make some special allowance under this item rather than have the perusal covered by the global item 27 to which I have referred. In my opinion, both the literal and the purposive constructions of this item led to the same result. It follows that in my opinion there was an error of principle in the approach adopted by the deputy registrar in that she has adopted what is in my opinion the wrong construction of item 39. She erred in proceeding on the basis that it was necessary for the individual documents in the bundle to be “long and necessary” before perusal of them could activate the discretion in that item. On the construction that I adopt, what matters is whether it was necessary for there to be long perusal of the documents as a whole.

[40]
The deputy registrar found, and there is no reason to doubt this conclusion, that on the test to which I have referred some documents in the bundle required perusal and others did not. Discovered documents are likely to include documents which require perusal, but not infrequently include documents which do not. That establishes the proposition that some perusal of the bundle was necessary, but the difficulty is that there is no express finding on whether or not the perusal of those documents in the bundle which did require perusal would have been “long”, and if so whether it was appropriate as a matter of discretion to have made an allowance additional to that made under item 27. It is not even clear whether the 37 folios represented the whole of the documents, or that part of the document which the solicitor was claiming justified perusal. There is also the consideration that presumably some allowance has been made for this in fixing the amount allowed under item 27.

[41]
In my opinion, item 39 was concerned with a situation where perusal of the various stated documents was necessary and of unusual length in terms of the ordinary run of litigation, so that it could be said that item 27 would not cover such perusal as part of the ordinary process of preparation for trial. Ultimately, I am not persuaded the perusal of all or even some, of 37 folios of discovered documents as part of the preparation of the plaintiff’s case in a matter of this nature, would be sufficient to take this outside the ordinary run of perusal which the plaintiff’s solicitor might be expected to undertake in the ordinary case, so I am not persuaded that it was appropriate for an allowance to be made additional to the allowance under item 27. This objection is therefore not allowed.

Objection 7

[42]
Item 241 in the costs statement is a claim for drawing the plaintiff’s draft statement of loss and damages (32 folios) and item 242 is a claim for engrossing it for forwarding to the plaintiff for his consideration and to supply information necessary to complete it. Objection was taken to item 241 but only as to the number of folios involved, but the objection to item 242 was that this represented a duplication, and reference was made to O. 91 r. 56. At the assessment hearing, most of the amount claimed in these items was disallowed on the ground of the deficiency in the document drawn. This was the subject of the successful application for an order that a further and better statement of loss and damage be filed and served.

[43]
On the reconsideration, the deputy registrar said:

“There was no need for a draft statement to be sent to the client. The information required to complete the statement could have been sought and identified in the letter sent to the client at item 243. An attendance to confer with the client regarding the information necessary to complete this statement has been allowed at item 244 …. Engrossing of the document to send to the client is not recoverable on the standard basis under r. 703.”

Rule 703 states the basic test for what costs are properly allowed on a standard basis; that is, all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed. It does not in terms repeat O. 91 r. 56, and in my opinion there is no reason to treat the former rule as still applying in terms, although the result it produced may well in a particular case still be the result of applying the test in r. 703.

Engrossing

[44]
The concept of engrossing dates from long ago when court records were written by hand in a characteristic, old fashioned style of writing which had been preserved for that purpose after writing styles had generally changed. The term came to be applied to any writing in that special style, so that engrossing a document, usually a deed, meant writing it in that special court hand.^[2] As that special style dropped out of use, engrossing came to mean preparing the final version of a deed or other legal document, which would normally be carefully and elegantly written out in full^[3]. Some surviving examples are now considered works of art. These would be produced by an engrossing clerk, and there were also copying clerks who made less elegant copies for less formal use.

[45]
Over time, however, the special formality associated with engrossing declined^[4], and by 1977 it was regarded by Jowitt as meaning “typing or writing a deed, agreement or the like from the draft with all words, dates and amounts set out at length, and with the formal testatum and attestation clause, so as to be ready for execution.” It has also been described as merely the making of the original of a document: Quick on Costs, para 1/1610. That may be going too far: in Re Flower & Hart’s Bill of Costs [1969] QWN 41 Lucas J referred to Re Moylan (1908) 30 ALT sup. 10; 14 ALR (CN) 37, where drawing a document was said to be the composing of the document, an exercise of application of the mind, and said: “It is of course in one sense necessary to ‘apply the mind’ even to the task of engrossing or copying, but I imagine that the expression is used to mark the contrast between the preparation of a draft on the one hand, taking all relevant matters into consideration and providing for all contingencies which may arise, and the production of a copy on the other." That suggests to me that His Honour regarded the production of a draft as part of the process of drawing, so that engrossing involved turning a draft into a document in the form in which it was to be used^[5].

[46]
At one time the production of a document would have involved a solicitor taking a sheet of paper and composing a draft, often no doubt with much alteration. When he was finished he would give it to a typist to type up. In that situation what the solicitor did was drawing the document. Transforming the draft into the final typed version, after any corrections and alterations were made, was the process of engrossing, even if the document was still a draft in that it was then to be sent to the client, or to counsel, for consideration or settling. These days there may be little practical difference between the form of the first draft of a document prepared using a word processing programme on a computer and the final version which is filed in the court. There may even not be a physical document until the version for filing is produced; but there will still be “drawing” and, once a physical document is produced in a form in which it is to be used by the solicitor for some purpose, “engrossing”. Understood in this way, it was appropriate for preparation of even an incomplete draft of the statement of loss and damage to be sent to the client to be termed “engrossing”. In my opinion, prima facie it was appropriate for this draft document to be engrossed for forwarding to the client.

[47]
In my opinion it is in general necessary and appropriate for a draft statement of loss and damage to be forwarded to the client for consideration. This gives the client the opportunity to check what is in the statement, as well as assisting the client in an understanding of what further information is required to complete any gaps in the statement. Ultimately, it is the client who will suffer if there are deficiencies in the statement of loss and damage, and it is therefore appropriate that the client be closely involved in the preparation of the statement, and given the opportunity to consider the statement before it is served. Hopefully in this way discrepancies between what is claimed in the statement of loss and damage and what is ultimately claimed by the plaintiff at trial will be minimised. Apart from the risks to the client’s interest which the existence of such discrepancies pose, in terms of credit for example, having a comprehensive and accurate statement of loss and damage is likely to assist in the early resolution of claims. In my opinion therefore, the deputy registrar erred in principle in concluding that there was no need for the draft statement to be sent to the client.

[48]
On the other hand, it appears that originally a substantial amount of the claim under item 241 was disallowed on the ground of deficiency in the statement. It is not at all clear that that ground was abandoned by the deputy registrar on the reconsideration, and she noted in her reasons that apart from the first statement there were four later statements delivered, including two more in 1994. I have looked at the statements filed on 7 June 1994, 28 October 1994, 22 December 1994, 30 May 1997 and 4 November 1998. The third deals only with future economic loss, a matter which was omitted in the earlier statements, a clear deficiency in them. The second statement does contain some additional material which ought to have been included in the original statement, as well as some material which post-dated the original statement. The most significant addition in the second statement is the reference to a claim for gratuitous care which was not included at all in the first statement. In general, however, the earlier amendments built on what was already there rather than discarding the first version and starting again.

[49]
A greater contrast however was presented by the one filed on 30 May 1997. The presentation of that document was quite different, and it is generally more informative and more realistic. This version still did not comply in all respects with the rules, for example, addresses of the experts who had examined or given reports on the plaintiff were not included, but it was generally a more comprehensive document. For example, it lists 29 medical reports which pre-date the statement of loss and damage filed on 27 October 1994, whereas that statement only lists 6. (Some of them may have become available later.) In my opinion a conclusion that there were such deficiencies in the document drawn in item 241 that most of the costs claimed for it should be disallowed was one which was open to the deputy registrar on the facts. In arriving at that conclusion, I am conscious that courts on a review of this nature generally attribute considerable significance to conclusions of fact on the part of the registrar: Re: Bain Gasteen & Co’s Bill of Costs [1990] 1 Qd.R. 412 at 416. The costs of drawing the version filed in May 1997 was allowed in full: item 807. The November 1998 version was not much changed from the May 1997 version, and only 4 folios were allowed for drawing it: item 957. Accordingly, my conclusion is that objection 7 should be disallowed.

Objection 8

[50]
This objection relates to items 284, 295, 553, 554, 565 and 569, which concern correspondence with and attendance on Dr. Bulwinkel, the plaintiff’s treating surgeon, who was to be a witness for the plaintiff at the trial. These were claimed by the plaintiff in addition to the claim under item 27, on the basis that this contact with Dr. Bulwinkel was undertaken in response to a request from the solicitors for the defendant (by letter at item 252). The attendance at item 295 was disallowed because it was for perusing a document which the solicitors were unable to produce on the assessment, and there is no basis for interfering with that conclusion. In relation to the others, this really involves the same issue about the scope of item 27 which was discussed earlier. For reasons I have already given, in my opinion, the fact that there is correspondence with the plaintiff’s witnesses in response to something raised on behalf of the defendant does not take the correspondence outside item 27, although it is obviously a matter properly taken into account when determining what amount to allow under item 27. The position is not different in principle from that arising under objection 3, and this objection is disallowed.

Objection 9

[51]
Item 347 is a letter to the defendant’s solicitors forwarding a copy of a CAT scan and further and better particulars. The amount was claimed under item 18 of the scale, on the basis this amounted to service of a necessary document. The defendant objected to this item, on the ground that all the costs associated with the requests for and provision of further and better particulars were caused by a failure properly to particularise the claim in the plaint. Evidently, that objection was not upheld at the assessment hearing, but only the amount under scale item 97(4), for a short formal letter forwarding documents, was allowed. On the review, the point was made that at that time the action was in the Supreme Court where further and better particulars were delivered rather than served. Rule 102 of the District Court Rules then in force also provided for particulars to be filed and delivered, rather than served, but the District Court Scale of Costs does not contain any item, or indeed any other reference, to delivering documents rather than serving them.

[52]
The Supreme Court scale referred to an attendance to deliver a document: item 10(a). I would think, however, that that would cover a situation where someone had actually attended on the opposite party’s address for service for the purpose of delivering the document. If that had been properly done in a District Court action, a claim could have been made under item 43, attending on the opposite party. However, if the further particulars were simply forwarded by post, as they can be, with (as would be usual) a formal covering letter which did not do anything else, the nature and quality of the work actually done by the solicitor is, in my opinion, more appropriately dealt with under item 97(4), and it is not appropriate to allow an additional amount because the document forwarded in this way happened to be one of which service was required. I therefore agree with the deputy registrar that the letter appropriately fits the description of a formal letter under item 97(4) and disallow the objection.

Objection 10

[53]
Item 360 is a letter to Mr. Lau, the accountant, enclosing a form of authority executed by the plaintiff and his wife seeking copies of the plaintiff’s partnership income tax returns for the year ended 30 June 1998 and subsequently. Objection was taken to this item on the ground that all of the relevant material should have been obtained from the accountant on one occasion. Originally at the assessment the amounts claimed under this item were disallowed, but on the reconsideration this letter was treated as a matter properly taken into account under item 27 as correspondence with a witness, and the disbursement of .45c for postage was reinstated. The deputy registrar noted that the partnership tax returns for the years up to 30 June 1993 had been obtained earlier, as they had been perused earlier (items on p. 32 and p. 33 of the costs statement), and that the only further partnership return obtained from this letter was that for the year ended 30 June 1994. Once additional tax returns are produced, it is appropriate for copies of them to be obtained, and that is obviously something which could not have been done prior to the end of the financial year when the earlier request was made to the accountant.

[54]
The deputy registrar on the reconsideration has regarded the letter as appropriate, but falling within item 27. As to the latter point, it is not clear to me that Mr. Lau was the plaintiff’s witness. It does not follow that he falls into this category just because he is the plaintiff’s accountant, and copies of tax returns are usually proved by the party rather than by the party’s accountant. In my opinion, correspondence with Mr. Lau does not come within item 27, and this letter ought to have been allowed separately under item 97. Although I suspect that the letter really ought to be treated as falling within item 97(4), that has not been the subject of any determination by the deputy registrar and in all the circumstances I will uphold the objection and allow the amount disallowed by the deputy registrar, of $15.50.

Objection 11

[55]
On 5 October 1994, the solicitor telephoned the plaintiff and discussed issues raised by the amended defence and obtained his instructions thereon. According to item 367 of the costs statement, this took some 25 minutes. Item 368 then is a claim for drawing a summary of the telephone conference (2 folios) and item 369 a claim for engrossing the summary for the brief. Objection was taken to the latter two items on the ground that the summary was of a solicitor and own client nature, and did not further the plaintiff’s action so should not be borne by the defendant. The deputy registrar considered the note prepared, and disallowed these items on the basis that this information should have been obtained at the time when the plaintiff was originally interviewed, since it related to questions of prior back injuries and exactly how the accident occurred. The defendant maintains the submission that this is properly a solicitor and own client item and it does not further the action.

[56]
In my opinion, however, if a defence is amended in a way which raises factual matters not previously pleaded, it is likely to be appropriate for those new factual issues to be discussed with the plaintiff, and the plaintiff’s instructions in response to them to be made available to counsel. It is, in my opinion, not enough just to rely on the original version given by the plaintiff. The plaintiff can be expected at the trial to be cross-examined about the new version, and it is therefore appropriate for the proper preparation of the plaintiff’s case for the plaintiff’s comments in relation to the new factual issues raised in the defence to be discussed with the plaintiff, and proper that counsel should be informed of the outcome of that discussion. The deputy registrar did not seem to have proceeded on the basis that the matters raised by the amendment were not matters within the knowledge of the plaintiff or about which any comment from the plaintiff would be unlikely to be relevant. What occurred here was in substance a supplement to the plaintiff’s statement, and that in my opinion is not a matter properly covered under item 27, nor is it a matter of “housekeeping”. The deputy registrar also said that a photocopy of the note taken by the solicitor could have been sent and did not allow for engrossing under item 369. It follows from my discussion earlier of the concept of engrossing that, so long as this note was typed up, it was engrossed. Clearly it ought to be typed up for the brief. In my opinion, therefore, items 368 and 369 should have been allowed. Objection 11 is allowed in the sum of $11.20.

Objection 12

[57]
Item 422 claims for drawing the plaintiff’s updated Statement of Loss and Damage (44 folios) and item 423 claims for engrossing it for forwarding to the plaintiff for his consideration and for the supply of information required to complete it. The parties essentially rely on the same arguments as were advanced in relation to Objection 7. The position is not quite the same, because this statement was not as deficient as the previous one, but the proposition remains that ultimately the plaintiff went to trial on a Statement of Loss and Damage which had been completely redrawn so that the work involved in preparation of this statement was of very little use in the end. That was not because of any subsequent development, but because this work was not done properly. I am a little concerned that one folio was allowed in respect of each of these items, in circumstances where it is not quite clear why that one folio was allowed. In all the circumstances, however, I think that sufficient grounds have not been shown to depart from the decision of the deputy registrar in relation to these two items, and this objection is disallowed.

Objection 13

[58]
Item 522 of the costs statement claimed for “perusal and consideration of extensive material in relation to the partnership between the plaintiff and his wife (engaged 3 hours).” Objection was taken to this item on the ground that it appeared to fall within item 27 of the scale. The claim was under scale item 39, which as the deputy registrar noted, allowed a folio rate rather than an hourly rate. On the reconsideration the deputy registrar was not prepared to make any allowance on this basis because the documents could not be produced, since any allowance under item 39 had to be on a folio basis rather than an hourly basis, and it was not possible to establish that the documents were “long and necessary” in order to enliven the discretion under item 39. For reasons given earlier in my opinion this last point involved an incorrect construction of item 39. Nevertheless, the absence of the documents produced difficulties, since it was difficult to establish that perusal of them as distinct from a more superficial consideration was necessary, or that such perusal was required at sufficient length to justify making a special allowance under item 39 rather than treating the matter as covered by item 27. The deputy registrar was prepared to take this matter into account when fixing allowance under item 27. The matter was complicated by the circumstance that the solicitors acting for the plaintiff at the time of this perusal were not the same solicitors who were involved when the assessment was occurring, so there was some difficulty in proving up the details of this claim. The documents were identified to some extent in the affidavit of documents.

[59]
The difficulty I have with this claim is in seeing how the careful consideration involved in perusing this mass of documents was necessary for the proper conduct of the plaintiff’s case. One argument advanced before the deputy registrar was that it was necessary to peruse the documents in order to prepare the supplementary affidavit of documents. It may sometimes be the case that a document needs to be perused for that purpose, but many documents could be identified as appropriate for inclusion in an affidavit of documents without perusal, because they are obviously discoverable. According to the deputy registrar, the supplementary affidavit of documents disclosed what appeared to be largely financial records. This is not material which would obviously require lengthy perusal for the purposes of this case, although it may be that some perusal of some of the documents was appropriate.

[60]
Ultimately, the deputy registrar’s position was that the discretion under Item 39 could not be exercised favourably to the plaintiff unless the documents were produced so that they could be properly assessed, and, to the extent that perusal was necessary, the folios could be counted. It seems to me that there must be a good deal of force in that proposition, although I recognise the difficulty that the plaintiff’s solicitors may well now have in reassembling the material for the purpose of supporting this item in the costs statement, and I do not consider that an inability to reassemble the material should always be a bar to the allowance of something under item 39. But in this case, given the nature of the item and the nature of the material I cannot conclude that the deputy registrar was wrong not to have been satisfied that an allowance was appropriate under item 39. This objection is therefore disallowed.

Objection 14

[61]
Item 543 is a claim for photocopying 54 pages of documents received on discovery from the defendant’s solicitor, and item 544 is a claim for photocopying of 32 pages of documents received, apparently on third party discovery, from the Workers' Compensation Board of Queensland, both for forwarding to the plaintiff, seeking instructions on certain matters relevant to the question of liability, particularly whether the plaintiff had been given instructions by his employer concerning manual lifting processes. Objection was taken to these two items on the ground that it was unnecessary to provide the plaintiff with this material. On the assessment the plaintiff’s solicitors were not able to produce the bundle of documents, and the deputy registrar concluded that she could not allow these items if she was unable to confirm the page count, and was unable to determine if any or all of the documents were necessary to be photocopied and sent to the client, for the purposes of assessment on the standard basis. It was submitted on behalf of the plaintiff that the defendant knew what these documents were as they had been provided by either it or the Workers' Compensation Board, and that they would not have been produced if they had not been relevant, so that it was appropriate for them to be provided to the plaintiff for perusing and obtaining further instructions. The defendant on the other hand submitted that the approach of the deputy registrar was appropriate.

[62]
In my opinion, the mere fact that a document is disclosed by the other party in the action does not necessarily mean that it is proper for a photocopy of it to be sent to the client. Again, the difficulty here is in being able to determine whether in the case of particular documents it was appropriate for instructions to be obtained on them. There could well be many documents produced in such a way upon which it would be appropriate to obtain instructions, and in such circumstances it would be likely to be an efficient way to deal with the matter to send copies of the relevant documents to the plaintiff so that the plaintiff could consider them before discussing them with the solicitor. I would therefore expect that it would be likely that at least some of these documents were documents properly copied to the plaintiff. There is the difficulty that it is not possible to demonstrate in any particular case in the absence of the particular document that it fell into that category. Nevertheless, I do not think it necessarily follows that no amount can be allowed. The deputy registrar seems to have proceeded on the basis that no allowance should be made under the item unless the actual documents can be produced, and I think that that is also too sweeping a position.

[63]
The position here is somewhat different from the case of a claim under item 39, because it is not necessary to show that there was some particular reason why allowance should be made for copying these documents. Some indication of the content of the material could have been obtained from the defendant’s affidavit of documents, or perhaps from letters or other material from the Workers' Compensation Board. Even apart from such material, the proposition that it was inappropriate to copy any of this material for the plaintiff is just as sweeping, and I think just as likely to be wrong, as the proposition that it was appropriate to copy all of it for the plaintiff. In my opinion, the appropriate course overall was to make some moderate allowance taking into account the fact that the documents were at least likely to be relevant to the matters in issue in the action, but also being cautious because of the inability of the plaintiff to produce the documents for verification. On this basis I would allow one third of the copying claimed, that is 18 pages under item 543 and 11 pages under item 544. This objection is therefore allowed in part, in the amount of $40.60.

Objection 15

[64]
Items 572, 573, 574 and 576 claim for drawing a certificate of readiness for trial, engrossing it for filing, photocopy for the brief and attending on the defendant’s solicitors to tender the signed certificate. In its objections the defendant sought a reduction in the folio rate on the ground that the certificate of readiness was a standard form document, and objected that it was unnecessary to brief counsel with the document, or to attend the office of the defendant’s solicitor rather than post the signed certificate. On the assessment, however, these items were disallowed on the basis that to prepare and present a certificate of readiness at that stage was premature, and therefore not necessary or proper on the part of the plaintiff’s solicitors.

[65]
The matter raised on behalf of the plaintiff on the reconsideration, and repeated before me, was that it was inappropriate for the deputy registrar to disallow this item in circumstances where the only objection was as to the number of folios. I have considered this argument earlier, and rejected it. The deputy registrar has set out what seem on their face to be good reasons for disallowing these items, and indeed no submission was directed to me dealing with the merits of the decision, the argument being directed to the question of whether the deputy registrar was confined to the ground raised in the notice of objection. In my opinion, she was not and this objection is disallowed.

Objection 16

[66]
Item 605 claimed for a telephone attendance on the plaintiff to advise of interrogatories received and conferring thereon; the work done was claimed under item 1392 (the claim under item 27 of the scale) but an outlay of $1.20 was claimed. This was not objected to in the notice of objection but was disallowed by the deputy registrar having regard to the other claims for taking instructions to answer interrogatories. Item 605 claimed a 15 minute attendance on 19 July 1995, item 640 claimed a 30 minute attendance on 20 August 1995, item 645 claimed a four hour attendance on 26 September 1995, item 651 claimed a 10 minute telephone attendance on 19 October 1995, and item 652 claimed a further five minute attendance on the same day. The deputy registrar regarded the total of 5 hours as excessive to take instructions from the client for preparing answers for interrogatories. In relation to item 645, the notice of objection complained about numerous attendances to take answers to interrogatories and continued:

“The defendant should not indemnify the plaintiff for all these attendances.”

Ultimately, the deputy registrar allowed items 640 and 651 in full, allowed item 645 but notionally reduced it to two hours, and disallowed item 605 and 652. The deputy registrar perused the plaintiff’s answers to interrogatories which were finally filed on 13 August 1996 after they had been settled by counsel, and concluded that the amount which she had allowed was “more than adequate” for taking instructions to prepare them. A submission to the contrary was not advanced before me in relation to the merits of that conclusion, but it was submitted that the deputy registrar was not entitled to disallow item 605 because there had been no objection specifically to that item in the notice of objection.

[67]
It follows from the reasons that I have given earlier in my opinion that this is not correct, since in my opinion the contents of the notice of objection do not limit the duty of the deputy registrar properly to assess the costs statement. In any case, there had been in substance, in the defendant’s objection to item 645, an objection to the whole extent of the time spent in taking instructions for answers to interrogatories, and how the deputy registrar dealt with the conclusion that that objection was well founded, and that an excessive amount of time had been applied for that purpose, was really a matter for the deputy registrar. It strikes me as quite artificial to suggest that, in circumstances where the objection has been taken that too much time had been spent on this matter and the deputy registrar was of the view that that objection was sound, the adjustment could only be made in the particular item where that objection was taken, and all other items where time had been spent on this matter, which had contributed to the overall result of there being excessive time for this work, had to be left untouched. Such an approach seems to me to be quite artificial. There is no reason to doubt the deputy registrar’s ultimate conclusion that excessive time was taken. Objection 16 is disallowed.

Objection 17

[68]
Item 634 claimed for perusing 47 folio of copy records obtained from the Blackwater Hospital. In the notice of objection it was claimed that such perusal fell within scale item 27, and the deputy registrar concluded that the records from the hospital did not contain any long and necessary documents so as to justify allowance under item 39. I have already expressed the opinion in relation to Objection 6 that her interpretation of item 39 was in my opinion erroneous, and the question is whether so much perusal of these records was necessary in order to prepare the action properly that it was appropriate to make some special allowance for this perusal, because it required more work than was expected to be covered by the ordinary perusals appropriate in an ordinary case for preparing a matter, which would be covered under item 27.

[69]
The difficulty is that I really have no material which deals with the proper application of this test. I do not know to what extent the hospital records dealt with matters which were likely to be of particular importance in the assessment of the plaintiff’s damages. As a general proposition, it is commonly the case that some entries in hospital records at least are of some relevance, and some parts of hospital records would be appropriately perused, particularly those parts where any note is made of anything the plaintiff is supposed to have said about how the injury came to be suffered. Such experience as I have suggests that it is unlikely however that all of the hospital records required perusal. I was provided with a copy of the hospital records, and the position appears to be typical; some pages required perusal, and some did not. It is difficult for me to know whether, bearing in mind the other material which was being perused in the course of preparation of this matter, there was so much material being perused overall that it was appropriate to make a special allowance under item 39 in respect of these records. The position therefore is that, although in my opinion there was an error of principle on the part of the deputy registrar in dealing with this item, I am not persuaded that it is appropriate to exercise the discretion under item 39 in favour of the plaintiff and the objection is disallowed.

Objection 18

[70]
Item 626 claims for drawing a formal authority by Mr Hume for release of statements made by him to the Workers Compensation Board and insurance loss assessors, and item 627 claims for engrossing the document; it was then sent to Mr Hume for execution under cover of a letter claimed at item 628. In the defendant’s notice of objection it was submitted that allowance should not be made for drawing this document because an allowance had earlier been made in item 5 for drawing an authority for the plaintiff and it was not necessary to re-draw individual authorities as they were required for other purposes in the course of the action. The deputy registrar noted that the authority (or a copy of it) could not be produced before her, so she was not able to determine the extent to which the plaintiff’s solicitors had actually drawn this authority as distinct from copying it from other authorities used earlier in the action. Mr Hume was a co-worker who was present at the time of the plaintiff’s accident and who had apparently made statements about that accident, and the plaintiff’s solicitors were trying to get copies of the statement. She noted that allowance had been made for drawing “a general authority” at the commencement of the action, with details of the recipient of the authority inserted as circumstances required, and declined to allow drawing, although on the reconsideration she allowed the charge for engrossing in the amount claimed of $1.40. The objection therefore appears to be misconceived in relation to item 627, which has now been allowed.

[71]
As to the disallowance of item 626, it was submitted that the deputy registrar had erred in treating a general authority drawn for a plaintiff as sufficient to enable a document to be obtained where the right to obtain the document resided not with the plaintiff but with someone else. Certainly there is some difference with the authority, in that the authority has to be given by a relevant person, here Mr Hume, rather than by the plaintiff, but that would not necessarily involve anything more than changing the name of the person who was giving the authority. The fact that the authority was being given by someone other than the plaintiff does not necessarily mean that it has to be redrawn completely; an authority by the plaintiff in fairly general terms to release documents to the solicitor could be very easily adapted as an authority in similar terms by someone other than the plaintiff. In circumstances where the document could not be produced so as to demonstrate that it was to some significant extent the product of drawing rather than copying the deputy registrar was in my opinion entitled to come to the conclusion that she arrived at, and the objection is disallowed.

Objection 19

[72]
The plaintiff’s solicitors arranged for a medico legal report on the plaintiff to be provided by an orthopaedic surgeon, Dr White, who was paid a fee of $450 for his consultation and report; this is claimed as an outlay at item 712. Objection was taken to this on the ground that the fees were excessive and should be reduced to the AMA recommended scale. However, the deputy registrar disallowed the fee of Dr White, on the basis that the plaintiff had obtained reports from four orthopaedic surgeons for the purpose of the action, and that this was excessive so that the costs would be limited to costs of obtaining reports from the treating orthopaedic surgeon, Dr Bulwinkel, and Dr Gillett whose attendance to give evidence at the trial was ultimately arranged. Accordingly fees to Dr White (and to Dr F.R. Wilson) were disallowed as being not necessary or proper for the purposes of the action, and therefore not allowable on a taxation on a standard basis.

[73]
In the written submissions the plaintiff sought leave to dispute the disallowance by the deputy registrar of the costs associated with obtaining a report from Dr Wilson, on the ground that the deputy registrar had failed to appreciate that Dr Wilson had been retained because the plaintiff had been previously seen by Dr Wilson for treatment and Dr Wilson was not prepared to provide a report unless there had been an examination of the plaintiff within a period of six months, which had not been the case. This was not a matter raised before the deputy registrar, and accordingly the plaintiff cannot now raise it without a special direction; r. 742(4)(b). In my opinion there has been insufficient reason shown for giving a special direction in relation to these costs.

[74]
It was submitted before the deputy registrar that Dr Gillett was retained because Dr White made himself unavailable to give evidence at the trial. The deputy registrar considered the factual basis for this, and noted that in the costs statement the advice from Dr White that he would be unavailable to give evidence during the trial was item 1227, whereas the attendance to arrange for Dr Gillett to see the plaintiff was item 1219. The deputy registrar said that it appeared that Dr Gillett had been telephoned before the plaintiff’s solicitors were advised that Dr White would not be available, but both items in the costs statement are dated 24 June 1999, and I do not think any particular significance should be attributed to the sequence within which various events, which were listed in the costs statement as occurring on the same day, happened to be put into that statement. In any case, the dates in the costs statement are not always accurate; for example, some of the dates for filing documents do not correspond with the dates on the filed documents.

[75]
The deputy registrar also had seen an affidavit by Mr Byrne, the solicitor for the plaintiff, in which he had sworn that he was informed on Tuesday, 6 July 1999 that Dr White was out of Australia on holidays on a cruise. The deputy registrar decided that the affidavit of the solicitor was the better evidence, and on this basis concluded that Dr White’s unavailability had been communicated only after Dr Gillett had been retained. Accordingly she found that the unavailability for trial had not been the cause of Dr Gillett being retained. Further the deputy registrar was of the view that Dr White’s attendance could have been secured by his being subpoenaed to give evidence, and even foreshadowed the possibility of a subpoena being issued after the advice had been received that he would be out of the country (on a cruise) at that time.

[76]
In my view this last point provides no justification for any conclusion by the deputy registrar adverse to the plaintiff. There are plenty of medical specialists who simply will not provide medico legal reports, because they find attending court too disruptive to their practices. In some specialties where the number of specialists available is not high this can pose real difficulties for solicitors seeking to arrange witnesses for litigation. I can imagine few steps better calculated to render a witness hostile and uncooperative, not only in relation to that particular trial but in relation to any future medico legal work, than subpoenaing the witness after he had arranged to be on a cruise overseas at the time the trial had been set down. I would not regard that as a reasonable step for the plaintiff’s solicitor to take, even in the context of a costs assessment on a standard basis. If the engagement of Dr Gillett really was a response to the absence of Dr White, in my opinion it was clearly the correct response in those circumstances. Although Dr White’s report may well have been admissible under s. 92 of the Evidence Act, on the ground that he was at the time of the trial out of the jurisdiction and unavailable to give evidence, in a matter where there was some real clash of orthopaedic opinion the risk to the plaintiff that a report unsupported by a doctor available to respond to cross-examination would receive less weight (as it obviously would) was in my opinion not a risk that it was reasonable for the plaintiff to run.

[77]
The deputy registrar also adverted to the possibility that Dr White might have been able to give evidence by telephone. Although I have had telephone evidence from witnesses who have been out of Australia, I have not yet had such evidence from a witness who was on a cruise at the time. I do not know whether there was any evidence before the deputy registrar that telephone communication was in fact readily available at a pre-determined time suitable to the court from the cruise vessel in question, but if not that was not an appropriate matter for speculation.

[78]
In my opinion the reasoning of the deputy registrar constitutes an error of principle, and justifies my considering the matter afresh. I am conscious however that the retention of four orthopaedic specialists and arranging for reports of three of them to be available at the trial may well be an unusual course, and that in general the proliferation of expert evidence which is in substance to the same effect is something to be discouraged. The deputy registrar referred to the decision in Ricks v White [1995] 2 Qd R 302 where Demack J at p. 309 upheld the conclusion of the taxing officer that it was not necessary for an expert’s report to be obtained from a second engineer, in circumstances where the first report had covered the essential issues that had been pleaded, was given by a qualified expert, and was given in respect of an accident where the essential facts had been ascertained at a coronial inquiry and when those facts almost spoke of negligence without any further proof. Indeed, His Honour noted that the statement of claim included a plea of res ipsa loquitur, a plea which, if justified, meant that no expert evidence was necessary. His Honour went on to note that he thought there was much to commend the old practice of only allowing on taxation one expert opinion on issues that arise in litigation.

[79]
It is difficult to know to what extent the nature of the dispute between experts in the present case differed from the relatively straight-forward situation contemplated by His Honour in that matter. The mere fact that it involves medical experts rather than engineering experts is of no consequence, but it is necessary to determine whether the real issue covered by these reports was controversial, and the extent to which the controversy involved questions of fact or of matters of medical opinion. There may be no dispute as to what actually happened to a plaintiff in the physical sense, but there may be considerable difference of medical opinion, for example, as to what his prognosis would be. On the other hand, there may be some real difficulty in identifying just what it was that was physically wrong with a plaintiff. There is also the consideration that a solicitor may these days obtain a report which ends up being of more use to his opponent; now that all such reports have to be disclosed, it is not all that rare for a report, provided by a specialist to a solicitor on one side in a matter, to be put in evidence on behalf of the other side.

[80]
More recently in Interchase Corporation Ltd v ACN 010 087 573 Pty Ltd (Writ 520/94, White J, 16.8.99, unreported) Her Honour gave directions limiting the number of expert valuers who could give evidence on a point of valuation in an action for damages for negligence against a valuer. Her Honour’s decision in the action went to the Court of Appeal - [2001] QCA 191 – but there was no reference in that judgment to this point. This reflects a general move in recent years towards restricting the number of expert witnesses allowable^[6], and such an approach would be consistent with a limitation on the number of expert witnesses covered by assessment of costs on the standard basis. It is however always necessary to adopt a certain amount of flexibility in such matters, and to bear in mind that there is no general practice in Queensland at the present time of limiting the number of medical experts who can be called in personal injury actions. In practice it is not unusual for at least one medical expert in the same specialty as the treating specialist to be called, either as well as, or in lieu of, the treating specialist, and in my opinion it was not appropriate at the present time to approach the matter on the basis of any fixed formula.

[81]
Nevertheless, the issue in relation to this item is not really whether the plaintiff should have been allowed to retain three orthopaedic specialists rather than two, but what happened concerning the substitution of Dr Gillett for Dr White as the non-treating expert specialist. In this regard, I am concerned by some of the reasoning which led the deputy registrar to disallow these costs. I do not think any significance should be attributed to the fact that the telephone call to Dr Gillett was claimed at an earlier item number then the telephone advice from Dr White’s rooms that Dr White would not be available. I am also wary about the treatment of the affidavit of Mr Byrne; that affidavit apparently did not say that Dr Gillett was retained before the advice was forthcoming from the secretary to Dr White, and is not necessarily inconsistent with advice having been received from Dr White’s rooms on 24 June 1999 that the doctor would not be available to give evidence at the trial. There may be various explanations for the affidavit; for example, it may be that the telephone advice on 24 June did not come directly to Mr Byrne, and he was properly reluctant to swear an affidavit on information and belief unless he had spoken personally to Dr White’s secretary, which he did in a telephone call made for the purpose of the affidavit on 6 July 1999. Accordingly in my opinion it was not appropriate for the deputy registrar to treat that affidavit as clear evidence that the plaintiff’s solicitors had not been informed of the unavailability of Dr White until after Dr Gillett had been retained.

[82]
It would also strike me as something of a coincidence if the plaintiff’s solicitor happened to decide to retain Dr Gillett a matter of a few days before it emerged out of the blue that Dr White would not be available to give evidence at the trial anyway. The alternative explanation, that Dr Gillett was engaged to replace Dr White as the independent expert because of his unavailability, is in my opinion inherently more plausible. In all the circumstances therefore, and notwithstanding the caution which is appropriate before overturning any finding of fact by the deputy registrar in proceedings of this nature, in my opinion the finding that Dr Gillett had been retained before the plaintiff’s solicitor was made aware of Dr White’s unavailability was not justified by the evidence before the deputy registrar, and is wrong. I accept that in fact Dr Gillett was retained only because of Dr White’s unavailability overseas.

[83]
Had Dr White been available, it would have been appropriate for Dr White to see the plaintiff again shortly before the trial and provide a report on the plaintiff’s current condition. An up to date medical report on the plaintiff’s condition is particularly helpful to the trial judge; I can say from experience that, on the occasions when I have had to assess damages without any up to date medical reports, it is very frustrating not to know to what extent the doctor’s prognostications from some years back have been vindicated by subsequent events. I would certainly have been unhappy, had I been the trial judge, if the plaintiff had not produced a report from an orthopaedic surgeon more recent than 1993 or 1994. Had Dr White been available his earlier report and a later report would have been available, and the trial judge would have had the advantage of two reports from the same doctor, which is always more useful than two reports from different doctors, because the same doctor will be more likely to be adopting the same standards on examination and approach to the measure of incapacity and disability on both occasions.

[84]
The report of Dr White was apparently to be put in evidence at the trial had it proceeded. In my opinion it was not appropriate for this outlay to have been disallowed in full. I note that this outlay was objected to on behalf of the defendant only in relation to quantum. For the reasons given earlier that was not in my opinion a bar to its being disallowed in full by the deputy registrar, although the absence of an objection was a relevant factor for consideration. One of the unfortunate consequences of the outlay having been disallowed entirely, on a ground that I have found was unjustified, is that there never was a determination by the deputy registrar of whether the original ground of objection was justified. I do not know very much about how doctors charge in these circumstances. I note that Dr Gillett charged $500 for his examination and report; item 1247. There was an objection by the defendant on the ground that this fee also was excessive, but it was withdrawn on the assessment. Dr Wilson was paid only $200 for his examination and report; item 78, 30 June 1993. Dr Bulwinkel on the other hand charged $350 for his report: item 80, 1 July 1993. The usual objection was taken, that these fees were also excessive, the defendant even objecting to Dr Wilson’s modest fee on this ground. It appears that Dr Bulwinkel’s fee was allowed without reduction, which indicates that the deputy registrar thought a fee of at least $350 was reasonable. There was no submission addressed to me by either party on the reasonableness of a fee assuming that it was appropriate to pay a reasonable fee for this report, and in those circumstances I do not uphold the objection that the fee was too high. I therefore uphold the plaintiff’s objection 19, in the amount of $450.

Objection 20

[85]
This objection relates to a number of items arising out of the retention by the plaintiff’s solicitors in Rockhampton of agents in Brisbane for the purpose of filing documents in the District Court registry in Brisbane. Most of these items were objected to by the defendant on the specific ground that the letter concerned was of a formal nature only, but in addition on page 38 of the notice of objection there is a passage in a box “a general objection is taken to all costs associated with the engagement of Brisbane agents and additional expenses incurred by the engagement of Rockhampton solicitors. ....” In these circumstances the notice of objection fairly raised the question of whether it was appropriate for the plaintiff’s solicitors to engage agents in Brisbane, so that the argument that the deputy registrar was not entitled to disallow costs on a ground not raised in the notice of objection was unjustified here. That argument would fail anyway for reasons I have given elsewhere.

[86]
The deputy registrar disallowed these items on the ground that the plaintiff’s solicitor could have filed the documentation in the court by post. There were at the relevant time rules of the District Court dealing with the filing of documents by post^[7]. The plaintiff’s solicitors submitted that, notwithstanding the existence of these rules, the usual practice was for filing in the Brisbane District Court to be dealt with by town agents, at least at the time when this occurred (August 1996). The defendant’s solicitor on the other hand submitted that it was standard practice to rely upon the rule for filing by post. This is a matter where it would have been of some assistance to have had a finding on the point of what was common practice in August 1996, but the deputy registrar has proceeded on the basis that only the “most cost effective method” should be recovered on assessment on the standard basis. Presumably, she regarded filing by post as being at least readily available, and something a reasonable solicitor ought to have used.

[87]
For reasons given earlier, in my opinion the deputy registrar was not constrained by the terms of the notice of objection from dealing with the matter on this basis. As to whether that was an appropriate basis, that is very much a matter within the special expertise of a registrar, and is not a matter where it is appropriate for me to interfere on a review. The plaintiff’s argument was that as a matter of principle the registrar was confined to the grounds of the notice of objection; since I am against the plaintiff on that for reasons I have stated previously, the objection fails.

Objection 21

[88]
Item 75 was a letter to the defendant’s solicitor enclosing copies of reports by the Blackwater Hospital and Dr White and advising of the fees claimed, claimed under the correspondence item for an ordinary letter. The defendant objected that this letter was of formal nature only, and that objection was upheld. The submissions on behalf of the plaintiff were those advanced in relation to Objection 5. They emphasize the words “without comment” in the wording of scale item 97(4) and do not in my opinion give enough significance to the further words “or a letter to the like effect”. The governing words in the item are “short letter of a formal nature” and that description certainly applied in the present case. In my opinion scale item 97(4) ought not to be construed so that the inclusion in the letter of a reference to the photocopying fee payable would take the letter outside that item. In my opinion the deputy registrar’s decision was correct and the objection is disallowed.

Objection 22

[89]
On 26 November 1996 a formal offer of settlement was received from the defendant’s solicitors. Item 777 claims for an attendance on the plaintiff on 20 December 1996 to confer and advise in relation to the formal offer of settlement, and obtaining instructions to reject it. This was claimed under scale item 51, which provided:

“If an attendance is necessary to advise or receive instructions from a client during an action or matter, and the purpose for the attendance could not have been effected at any previous or subsequent attendance, and if the attendance has not been otherwise provided for in this schedule.”

At the assessment hearing the plaintiff’s solicitors were not able to produce a diary note supporting this item, giving the length of the attendance and the details of what was discussed. The solicitors for the plaintiff however swore an affidavit deposing to the fact that the attendance had occurred. The deputy registrar would not allow a separate attendance under item 51, but said that she took the work involved into account when considering the global claim under scale item 27. The deputy registrar concluded that it was necessary and proper for the plaintiff’s solicitor to obtain instructions from the client regarding the settlement offer but in the absence of a supporting note showing the length of the attendance this was not shown to have been a substantial attendance as to justify allowing it under item 51 of the scale rather than including it under item 27. The deputy registrar said she took this into account when considering item 1392 (the claim under scale item 27).

[90]
There is some inconsistency in the scale if item 27 is read literally, because it includes in paragraph (1)(a) “all attendances on ....”, yet item 51 contemplates that there can be an attendance on the client, that is the party, which is not otherwise provided for in the scale. I do not think that these provisions should be interpreted so that s. 51 never applied. In my opinion the preferable construction, which would give it some operation, is to treat it as similar to item 39 dealing with perusing, which allows for something in addition to item 27 where that is particularly justified. Item 39 uses a different formula to indicate expressly that what is to be provided under that item is in addition to what is covered by item 27, but to be given any sensible operation item 51 must also provide for an attendance allowance which is additional to the allowance in item 27. Perhaps this could be achieved by reading item 51 as if the word “adequately” were inserted after the word “otherwise”. On this interpretation the test for item 51 would become whether the attendance was necessary and proper as an attendance additional to the attendance on the client which would be usual in the course of conducting such litigation in the District Court.

[91]
An attendance to discuss a formal offer of settlement is likely to fall into this category; it is (as the deputy registrar found) necessary and proper for the solicitor to obtain instructions from the client in response to the offer, and offers of settlement are invariably limited by time so, except by co-incidence, this would not be a matter which could properly be dealt with at any previous or subsequent attendance. The deputy registrar has adopted the test that this must be a “substantial attendance”, which is in my opinion a reasonable test particularly bearing in mind the amount allowed under this item at various times. It would be difficult to justify an allowance under this item on the basis that the attendance was not adequately provided for by item 27 if the attendance was quite short.

[92]
Nevertheless, I am concerned that too much emphasis has been placed on the failure to produce the attendance note, and the mere length of the attendance. The note was a matter of some significance, in that its presence would have indicated what the true situation was. I would add that I would expect there would ordinarily be an attendance note for an attendance of such importance, so perhaps the absence of an attendance note is some indication that this offer of settlement was regarded as one that could be rejected without detailed consideration. In the absence of such a note, it is more difficult to show that it is appropriate to allow this attendance under item 51 rather than under item 27, although the subject matter of the attendance is of significance, since one would expect that an attendance to discuss an offer of settlement would be likely to be a substantial attendance, particularly if there had not previously been a similar discussion between the solicitor and the client. One would expect that any real discussion of a serious settlement offer would take enough time to characterise the attendance as “substantial”.

[93]
In my opinion the question of whether an attendance is substantial is not concerned only with the time element, but involves also the significance of the subject matter discussed, and the discussion of how to deal with an offer of settlement is a matter which is of great significance to the client and where the professional skill and judgment of the solicitor is of importance. I can see that it would be possible for there to be, in a particular case, a very short and somewhat superficial attendance in such circumstances, if for example the offer was regarded as plainly inadequate, but I would not expect that to be typical. This offer was low, but not so low as to be rejected out of hand, as it was net of the workers' compensation amount. It is the sort of offer which I would expect would require some discussion. In all the circumstances, and not without some hesitation, I consider that the dominant consideration is that the subject matter of the attendance ought to be regarded as sufficient in itself to show that this was a substantial attendance, on the basis that one would expect an attendance of such a nature to be substantial in the absence of any reason to treat this offer as not one which required serious consideration. Objection 22 is therefore allowed in the sum of $55.

Objection 23

[94]
Items 811, 812, 815-818 related to the use of a Brisbane agent by the plaintiff’s solicitors to file a further version of the statement of loss and damage. Item 813 was a letter from the plaintiff’s solicitors to the defendant’s solicitors forwarding a copy by way of service. Item 813 was originally disallowed on the assessment, but on the reconsideration was allowed in the amount claimed. There is no reason for me to consider it further. In respect of the other items, an amount was allowed for what it would have cost to file the further statement of loss of damages by post, on the basis that filing by post was the most cost effective method of performing the work. The issues that arose here are the same as the issues that arose in relation to Objection 20. For the reasons given in relation to Objection 20, Objection 23 is disallowed.

Objection 24

[95]
Item 835 claimed for a telephone call to loss adjusters in Rockhampton to fix a time for inspecting the mine and equipment. Objection was taken to this on the ground that this was part of the cost associated with the engagement of an engineer to report on the matter for the plaintiff which was unnecessary, and on the ground that the attendance fell within item 27 of the scale. The former ground was not upheld by the deputy registrar during the assessment, but the deputy registrar was of the view that the work was properly claimed under item 27. It was submitted on behalf of the plaintiff that this was an error on the part of the deputy registrar, because the attendance was on one of the defendant’s witnesses rather than on the plaintiff’s witness, but the matter was not put within item 27 on the basis of attendance on the plaintiff’s witness, but rather on the basis that this was “necessary work in connection with the preparation of the hearing”.

[96]
The plaintiff submitted however that this did not involve preparation for the hearing, but rather work in connection with obtaining an expert opinion from the safety engineer, and that it was the defendant who had wanted arrangements to be made through the loss adjuster. In addition other items associated with this inspection were allowed, so that it was not the case that all the work associated with Mr. Kahler’s inspection was treated as falling within item 27. The defendant submitted that this was an item properly dealt with under item 27, and in addition was a duplication because there were a number of attendances in connection with arranging the inspection. The latter point is not one dealt with by the deputy registrar, and there is no factual basis for it in her findings.

[97]
No diary note was produced of this attendance, but plainly there was an attendance as appears from the surrounding items. The attendances at items 836 and 837 were claimed within item 27, but because these were attendances on the plaintiff and the plaintiff’s witness, not because they were necessary work in connection with the hearing; that is they fell within scale item 27(1)(a), not (b). They are therefore not a basis for treating item 835 as falling within item 27 (1)(b) and in my opinion there was an error of principle on the part of the deputy registrar in approaching the matter in this way. These arrangements occurred in August 1997, and therefore at a time when the matter was not approaching a trial, and in all the circumstances, in my opinion, the engagement of the safety expert and arrangements for him to inspect the site of the accident are not part of the work in connection with the preparation for the hearing. In my opinion, they were all allowable items, and the appropriate item for this attendance should be item 64(3), as the deputy registrar seemed to recognise if it were to be allowed, as in my opinion, it ought to have been. I would therefore allow objection 24, in the sum of $11.40 (the further .30 for the disbursement was allowed on the reconsideration by the deputy registrar ).

Objection 25

[98]
Item 858 claimed for 5 hours of the solicitor’s time for travelling from Rockhampton to Blackwater and attending the safety expert during the inspection of the mine and equipment, and returning to Rockhampton, which occurred in September 1997. Item 859 covered travel and accommodation expenses paid for the expert witness and the solicitor. Both of these were objected to, first under the a general objection to any costs associated with the involvement of the expert witness, which ground was not upheld by the deputy registrar, and on the further ground that it was not necessary for a solicitor to attend on the inspection. Both of these items were disallowed before by the deputy registrar on the assessment, and that position was confirmed on the reconsideration.

[99]
The deputy registrar considered that the cost of the solicitor’s presence was not recoverable on the standard basis, and that in any case the solicitor would have been entitled to charge the full hourly rate under item 50 only in respect of the period when the inspection was actually taking place, and not for travelling. With regard to the expenses, the deputy registrar identified an apparent overlap with the expenses that were charged by the expert, and was not persuaded that any part of item 859 covered the expert’s expenses rather those of the solicitor. During the hearing of the review it was conceded that the costs statement ought to have sought 2 hours at the full rate and 3 hours at a half rate under item 858, and that the expenses under item 859 ought to have been limited to the sum of $135.78.

[100]
The injury alleged to have been suffered was prolapse of L4-5/L5-S1 disc. Paragraph 4 of the Statement of Claim alleged that the plaintiff suffered this injury while he was “engaged in manipulating and lifting a heavy wire rope”. Particulars were sought of this rather vague allegation, which was not admitted in the defence, and in particulars provided in March 1994 it was alleged that the plaintiff “lifted the rope with his right hand and placed the A-frame under the rope with his left hand …. the rope kept slipping over the top of the A-frame so he laid the A-frame on the ground and reached for a drum that was near him with his left hand.” On 25 May 1994 the defendant sought details of the A-frame, which were provided on 7 September 1994; an attached diagram also showed a large cable drum on a frame so that apparently the wire rope was coming off this drum and part had been lifted and placed on a triangular frame with a channel at the top to hold the rope.

[101]
Interrogatories were delivered for the examination of the plaintiff on 8 June 1995, and No. 8 sought details of how the injury arose. According to the answers sworn on 7 August 1996, the plaintiff had been assisting a welder to cut the 2 inch wire rope into various lengths and weld a steel eyelet onto one end of each length. The rope was on a large reel on a reel stand so that it could be unwound from the reel to enable cutting into appropriate lengths. The plaintiff would lift approximately 4 metres of the 2 inch wire rope from the spool to about 1 metre past the A-frame so that the wire rope could be positioned on top of the A-frame to enable the eyelet to be welded onto the end of the rope while it was supported above the floor. When this had been welded on, the plaintiff would assist in dragging out more of the wire rope to a length of about 20 metres before the piece would be cut off, and the next end would be positioned on the A-frame so as to enable another eyelet to be welded on.

[102]
The plaintiff swore that he lifted the wire rope by holding it with both hands and keeping his back as straight as possible and bending his knees and lifting with his legs and not his back. The actual events of the accident were described in paragraph 8(a):-

“I sustained the injury to my back when I attempted to steady the wire rope immediately after the “A” frame had become unstable and was falling to my left hand side. I was in a crouched position and putting the earth clamp onto the leg of the “A” frame at the time when the “A” frame started to move. I grabbed the wire rope with my right hand which at that time was at or above my right shoulder level and immediately after grabbing the wire rope with my right hand I overbalanced forward and to my left so that I steadied myself by putting my left hand on the ground. It was at the time when I was overbalancing forward and to my left that I experienced pain in my lower back.”

[103]
There is nothing in the defence or amended defence to suggest that there was any dispute on the part of the defendant about what the plaintiff was doing at the time when he was injured. Assuming that this account was reasonably accurate, it may be of some assistance in understanding the mechanism of the injury to know the gauge and composition of the wire rope, and to see just what the A-frame and the earth clamp referred to looked like. It would have been of some assistance to have the actual items available for photographing, but the process the plaintiff was undertaking at the time was essentially quite straightforward and apparently not one which was specific to the place where he was injured. The accident did not involve any complicated machinery which would have to be seen in order to enable its operation to be understood.

[104]
Supplementary Further and Better Particulars of the Statement of Claim delivered 7 August 1996 were consistent with the Answers to Interrogatories. A further Amended Defence filed in June 1999 did not contest the circumstances of the accident, but alleged that certain training had been provided which was alleged to have been appropriate to discharge the defendant’s duty in that regard, that there was appropriate supervision, that the plaintiff had been properly warned, that the task could be carried out safely by the number of men provided, that lifting the rope was within the physical capacity of the plaintiff, that the plaintiff had a pre-existing back condition which pre-disposed him to injury, which he had not disclosed when he started to work for the defendant, and that the plaintiff was guilty of contributory negligence, or in the alternative, breach of an implied term of the contract of employment that he would carry out his duties with due care and skill and in a fashion not to cause injury to himself.

[105]
It is not uncommon for safety engineers to be engaged in cases where it is alleged that an employee suffered a back injury as a result of unsafe lifting practices, and the starting point is that it was appropriate for the proposed expert witness to inspect. It would have been of some assistance for the plaintiff to have attended in order to ensure that the proposed expert witness had a clear understanding of how the plaintiff said that the accident happened, and to enable the plaintiff to confirm that what the engineer was inspecting was relevant, that is, he was looking at the right drum of cable (or identical one), the right A-frame (or an identical one), and the right clamp (or an identical one). In the event, apparently he did not see any A-frame or clamp.

[106]
Having regard to the nature of the allegations being made by the plaintiff as to how the accident happened, and the fact that these allegations, although not admitted, were not denied or directly disputed in the pleadings, and having regard to the relatively straightforward mechanism involved, in my opinion a conclusion that it was not necessary for the solicitor to attend the inspection at the site is one which was clearly open to the deputy registrar. Indeed, I suspect it was the correct conclusion. It was not a question of deciding how the plaintiff was to prepare his case, which involved the decision to engage the expert witness. It was not necessary for the solicitor to be present in order to brief the expert witness on the elements of liability. Apart from the fact that the expert witness was experienced in lifting cases, so that he might be expected to know what had to be proved, what he had to give evidence about was not the elements of liability but how the accident happened and how it could have been avoided, and what sort of stresses were imposed on the plaintiff when performing the task required of him in the course of which the injury was suffered. These are matters which in my opinion did not require a solicitor on site. Accordingly this objection is disallowed.

Objection 26

[107]
Items 883, 884 and 888-892 related to the engagement by the plaintiff’s solicitors of Brisbane agents for the purpose of filing Further and Better Particulars. These items were objected to on the ground that these Further and Better Particulars were made necessary by the nature of the plaintiff’s pleadings, but were disallowed on the basis that the Further and Better Particulars could have been filed by post which was the most cost effective way of performing the work at the relevant time. The equivalent cost of filing the document by mail was allowed.

[108]
Item 885 was the letter from the plaintiff’s solicitors to the defendant’s solicitors and was claimed under scale item 18 as serving the copy of the particulars. This was initially disallowed, but on the reconsideration the deputy registrar allowed a formal letter under scale item 97(4) together with postage, rather than item 18, on the basis that the former District Court Rules provided for particulars to be delivered rather than served. That correctly reflected the wording of r. 102 of the then District Court Rules. In the Supreme Court pleadings were, under the former rules, delivered rather than served, and particulars which are associated with pleadings were also delivered. In the District Court pleadings were filed and were therefore served (see eg. rr. 97, 98, 99). Amendments to pleadings were also served: r. 104(1). Accordingly under the District Court Rules it was only particulars which were delivered, and the reference there to delivery rather than service may have been a mistake because the scale of costs in the District Court did not include any items for attending delivering particulars (or anything else), whereas in the Supreme Court scale item 10(a) provided for an attendance “to file or deliver a document”. Where the particulars were “delivered” by sending a copy by post with a formal covering letter, it does seem to me that the deputy registrar was correct in treating the matter as falling within item 97(4).

[109]
The position with the other items is the same as with those covered by objection 20, and for the reasons given earlier objection 26 is disallowed.

Objection 27

[110]
Item 898 claimed $2,461.00 for the fee paid to Intersafe Group Pty Ltd for the provision of a safety expert, covering inspection, tests, conferences, report, material supplied etc., including 7.5 hours charged at $250.00 per hour plus expenses of $586.00. Objection was taken to this item on the ground that the engagement of a safety engineer was unnecessary, and on the further ground that the fees were excessive. The deputy registrar concluded that it was within the test for standard assessment under r. 703 for a safety engineer to be engaged, and that conclusion was not disputed before me. The deputy registrar also concluded that the hourly rate charged by the expert of $250 was within a reasonable range. However, instead of allowing 7.5 hours, the deputy registrar allowed only 6.5 hours, and 3 hours of that was allowed at only half rates because it represented travelling to and from the mine site for the purpose of the inspection. In doing the calculations the deputy registrar allowed only $100 per hour travelling time rather than $125 which would have been half the rate ordinarily charged; it is not clear from her reasons whether this was a slip or whether she concluded that $100 per hour was reasonable remuneration for travelling time in the circumstances.

[111]
It was submitted on behalf of the plaintiff that it was not clear that any charge had originally been made for travelling time, and that there was no evidence to suggest the time spent by the expert was excessive. It was submitted that the deputy registrar had no experience of what time would be taken by an engineer in performing his work, and that she had placed too much emphasis on the size of the document ultimately produced. The submission was made that, in the absence of evidence to the contrary, the deputy registrar should have accepted the time claimed as being reasonable and necessary time for the compilation of the report. The defendant submitted that the report was simply a projection of the forces involved and the comparison with a standardised table, and that the deputy registrar was in a good position to assess how the fee charged in this case compared with the fees charged in other cases.

[112]
My own experience of safety engineers’ reports is that they are very mixed; some do contain detailed analysis of how the accident happened and how it could have been avoided, sometimes with an attempt to derive the forces involved. Sometimes they do talk about indications of good practice in industry, and direct attention to relevant standards. Sometimes they contain a great deal which is of little or no relevance or assistance. A copy of the report was provided in a “book of exhibits” made available to me for the purposes of the review, on the basis that this material had also been before the deputy registrar . The report does include some photographs, although not one of the A-frame presumably because it was not available.

[113]
There was some analysis of the stability of an arrangement described by the plaintiff, and an account of how the expert thought the accident had occurred which seems to have involved the proposition that at one point while the plaintiff was squatting down he was lifting with one hand the weight of the cable that otherwise had been resting on the top of the A-frame. That weight was calculated and compared with a table of standard weights showing limits for conventional lifting one-handed close to the body of 20kg for a male under 50, or of 10 kg if at arms-length either forward or sideways. This provided some evidence that, if the plaintiff had been required in the circumstances to lift this weight, it was excessive. There was also some reference to scientific examination of the link between unexpected load handling and a back injury. There are methods suggested by which the risk could have been avoided. Overall, the report is relatively straightforward, although more useful than some that I have seen.

[114]
In my opinion it is not the case that in these circumstances the defendant is obliged to pay whatever fee the expert retained and the solicitor decide he will charge, nor is it necessary for the defendant to produce evidence in order to challenge the fee on the ground that it is excessive. The perusal and consideration of material supplied ought not to have taken very long, and it is not clear from the invoice whether the inspection included time taken for travelling. It is not clear who was interviewed, but consultation with the solicitor would not have taken long nor would the calculations, some literature review and library search would have been required but not a great amount in this case. The analysis, consideration and preparation of the report would not have taken an experienced expert many hours. Effectively the deputy registrar has allowed 3.5 hours plus travelling time; if there was no charge made for travelling time, then only 3.5 hours should have been allowed. The question is whether 3.5 hours could properly be regarded as a reasonable allowance for the work referred to in the invoice in the light of what is revealed by the report.

[115]
I am not persuaded that the deputy registrar took irrelevant considerations into account, or that there was any error of principle in the approach. Having myself considered the report, I am not persuaded that the conclusion that a reasonably competent expert ought not have needed to apply more than 3.5 hours to producing it (apart from travelling time) was one which no reasonable registrar could in the circumstances have arrived at; that is, it was not outside the range where the court would defer to the deputy registrar in a matter of fact or a matter of quantum. The plaintiff has failed to persuade me that I should interfere with this decision of the deputy registrar and objection 27 is disallowed.

Objection 28

[116]
Items 961, 962, 967-971 relate to the retention by the plaintiff’s solicitors of a Brisbane agent to file a revised statement of loss of damages, which items were on the assessment reduced to the amount allowable for the costs associated with filing by post. For this purpose, item 961 was allowed at the sum claimed, and item 962 was reduced by $1, and items 968-971 were disallowed. Objection 28 therefore does not in terms object to the decision in respect of items 961 and 962. The appropriateness of disallowing item 967 also on this ground was overlooked by the deputy registrar on the assessment, apparently because that item had not been specifically objected to by the defendant. For reasons given earlier, that was not in my opinion a bar to disallowing that item, and it ought to have been disallowed on the assessment consistent with the earlier approach. On the re-consideration, item 967 was disallowed, and the decision in other respects was confirmed.

[117]
Items 1004, 1005, and 1107-1112 relate to the engagement of Brisbane agents for the purpose of filing in the Registry the certificate of readiness for trial, entry for trial and certificate as to jurisdiction. Item 1006 was the plaintiff’s solicitors letter to the defendant’s solicitors forwarding a copy of the entry for trial and certificate as to jurisdiction and advising of arrangements made for the filing of the originals. These items were objected to on the ground that the letters would be of a formal nature only. At the assessment, the deputy registrar allowed the equivalent of the costs that would have applied if the documents had been filed by post, and on this basis item 1004 was allowed, item 1005 was reduced by only $1, and items 1107 and 1109-1112 were disallowed. Item 1006 was disallowed as it was not necessary or proper to send copies of the certificate of jurisdiction and the entry for trial to the defendant’s solicitors. Although item 1006 was included in the application for review under objection 28, there were no submissions advanced in relation to it here and it is properly considered under objection 29. Item 1108 was the filing fee on the entry for trial, which was (properly) allowed.

[118]
The matters raised in relation to these items are the same as those relied on in relation to objection 20. For the reasons given earlier, this objection is also disallowed.

Objection 29

[119]
Items 998 and 1002 claimed for photocopies of the entry for trial and the certificate as to jurisdiction for service. Objection was taken to these items on the ground that it was not necessary for those documents to be served, and this objection was upheld by the deputy registrar on the assessment and on the reconsideration. Item 1006 should be included in this objection rather than objection 28. The deputy registrar disallowed these items on the ground that there was nothing in the rules to require that copies of these documents be provided to the defendant’s solicitors. It was submitted on behalf of the plaintiff that it was the usual practice to provide such documents. Whether this was the usual practice was disputed on behalf of the defendant.

[120]
The deputy registrar was clearly right in saying that there was no requirement under the rules for copies of these documents to be provided to the other party. Either party may file the entry for trial, and indeed the certificate of readiness; r. 149. It would be possible for a party to obtain a signed certificate of readiness and then file it but not file the entry for trial, and that may in a particular case lead to the action being delayed if the other party is not immediately aware that that has occurred. Nevertheless in the ordinary case where one party (usually the plaintiff) obtained a signed certificate of readiness the other party was entitled to expect that in due course the certificate would be filed together with an entry for trial and (at that time) a certificate as to jurisdiction. It might be a reasonable precaution after all the documents have been filed for the party filing them to advise the other party that that had occurred and when, since it may be of some assistance to know this information to determine when the matter is likely to appear on the callover list and (at least now when the matter usually gets set down at the callover after the request for trial date is filed) when the matter might come on for trial. It does not appear however, that any such letter was sent; item 1006 was sent on 23 December, prior to the filing of the documents on 4 and 5 January 1999.

[121]
Even if it is common practice to serve copies of these documents as a matter of courtesy, in my opinion it was not required and the deputy registrar was correct in concluding that these costs ought not be recovered on an assessment on the standard basis. Objection 29 is therefore disallowed.

Objection 30

[122]
An offer to settle from the defendant dated 19 April 1999 was received by the solicitors for the plaintiff the following day: item 1163. On (or after) 29 April, there was an attendance on the plaintiff to confer and advise with regard to this offer and to receive instructions to reject it: item 1182. Objection was taken to this item on the ground that the attendance fell within item 27 of the scale, and that objection was upheld, noting there was no sufficient attendance note, and the amount claimed was disallowed.

[123]
In the application for reconsideration this decision was objected to, on the ground that it was appropriate to seek and obtain such instructions in response to the formal offer of settlement and that this was contemplated specifically in item 51 of the District Court scale. However, the objection was incorrectly referenced as relating to item 1118 (page 154) instead of 1182 on page 164. The reference to item 1118 was obviously wrong, as that item related to the costs associated with a notice of change of Brisbane agents, for which no amount was claimed. Hence, what was said in the application for reconsideration did not on its face make a lot of sense, and the objection to item 1118 was disallowed. Nevertheless, item 1182 has obviously been the subject of debate before the Registrar, on the original assessment, and accordingly it can be considered notwithstanding r. 742(4)(b).

[124]
In relation to the substance of the matter, the position is the same in my opinion as that applying to objection 22. This was an attendance to take instruction in response to a formal offer of settlement, and that ought to have been the subject of a substantial attendance, at least in terms of the importance of the matter under consideration, and of the skill and experience of the solicitor. Although I recognised that the absence of a proper attendance note is a matter of concern, on balance in my opinion too much attention was attributed to this feature and the position appears to have been similar to the decision which led to objection 22. Essentially for the same reasons, in my opinion, this objection should be allowed in the sum of $57.00.

Objection 31

[125]
Item 1214 was the fee on brief on trial paid to Counsel in the sum of $1,850. The defendant objected to this on the ground that the fee was excessive and should be reduced. At the assessment the fee was reduced by $250, to $1600, and that decision was not changed on reconsideration. One of the matters noted in the reconsideration was that the amount for which the action was ultimately settled was at the very low end of the District Court scale, that is not much more than the limit of jurisdiction of the Magistrates Court.

[126]
It was submitted on behalf of the plaintiff that it is necessary to put that figure in perspective by noting that the settlement amount was net of a workers compensation refund, but the legislation provided that in such circumstances damages recoverable from the employer were to be reduced by the amount of such payment. Accordingly the amount properly recoverable was the balance after making allowance for any workers compensation payments made, and that is the amount for which judgment would have been given if the plaintiff had succeeded in a way corresponding to the settlement. The workers compensation “refund” was larger than the balance recovered by the plaintiff from the settlement, but that does not mean that in some way the amount really in issue in the action is to be derived by adding that “refund” to the settlement sum.

[127]
It was also submitted that an estimate of two to three days for the trial indicated that the matter was not a simple and straightforward one, and that the deputy registrar was wrong to conclude otherwise. But a reasonably simple personal injury action may take two or three days to try. On the other hand, it is rare for a civil trial in the District Court to go beyond five days. In my opinion what is of greater significance is the difficulty of the case, that is, were there complex legal and factual issues involved, and was the case one which was going to be difficult for the party to win? I do not think that the mere fact that liability remained in issue was enough to make the matter complex, but there were particular legal difficulties associated with the question of liability here, the significance of which do not appear to have been appreciated by the deputy registrar. One factual issue of some complexity which emerged from the defendant’s pleadings was the question of the effect of some pre-existing back problems on the plaintiff, a matter which might well impact on both liability and quantum.

[128]
In addition there was, after an amendment in June 1999,^[8] a plea that the plaintiff had breached an implied term of the contract of employment and that this breach was the cause of his injury, and as a result the plaintiff was liable to the defendant in an amount which equalled some or all of the liability of the defendant to the plaintiff. That this was an issue of considerable legal complexity is shown by the treatment of some of the difficulties raised by such a plea in the decisions of the Court of Appeal in Wylie v ANI Corporation Ltd [2000] QCA 314, Jones v Persal & Co [2000] QCA 386, and Nelson v BHP Coal Pty Ltd [2000] QCA 505. There were considerable legal difficulties thrown up by that plea. In so far as these decisions provide any guidance, they were not then available; my judgment in Wylie was on 9 April 1999.

[129]
The approach to the registrar’s decision on assessment in relation to Counsel’s fee is that established by the Full Court in Re: Skinner and Smith’s Bill of Costs (No 2) [1990] 1 Qd.R 180 at 183; if on assessment the registrar determines that the fee charged and paid is outside the range of reasonable fees, she proceeds to determine a reasonable figure and disallows the excess. Unless there is some error of principle, or unless the decision arrived at is clearly wrong, the Court will not interfere. Counsel for the plaintiff relied on Carmeri v Hall (Williams J, 3.10.91) where his Honour overturned a taxing officer’s decision not to allow two counsel, having concluded that the taxing officer had placed too much significance on the circumstance that ultimately the action was settled for $25,000 plus costs, and paid insufficient attention to the complexity and novelty of the claim, and the substantial amount being sought by the claim, and the factual difficulty of the matter in circumstances where a case involving substantial conflict of medical experts was to be tried with a jury.

[130]
The deputy registrar referred to the amount prescribed in item 83 of the fees to counsel of $1,119, where the amount recovered does not exceed $50,000, and that is plainly a relevant consideration. However, it must be remembered that the District Court’s costs scale deals with counsel’s fees by prescribing scale fees in matters where the amount recovered does not exceed $50,000, or, in the case of defendant’s party and party costs, the amount claimed does not exceed $50,000, but allowing a general discretion by the registrar in other matters. Even in matters where the scale is prescribed, there is a discretion to allow a higher (or lower) amount the registrar considers reasonable. The scale is therefore only a prima facie guide for matters where the amount involved is relatively small, reflecting no doubt a desire to minimise the cost of litigation in such matters. The flexibility of the scale in my opinion shows that the amount recovered is not the governing consideration. That is also shown by the decision in Carmeri (supra).

[131]
The deputy registrar said that there were no great complex factual legal issues involved, and if that were the case, in my opinion, her determination could not be interfered with. However, for reasons I have given there were ultimately complex legal issues raised in the defence, and issues as to whether and to what extent the plaintiff had previous problems with his back, and to what extent the subject incident was the cause of any current or future problems the plaintiff may have, which are factors which can have an enormous effect on quantum, were also in my opinion appropriately regarded as factually complex. At least they are more complex than in the ordinary run of personal injury cases, even personal injury cases involving back injuries, where it is not unusual for there to be some issue about the effect of pre-existing degeneration. In this case however it was alleged that there was a specific injury to the plaintiff in 1967 when he suffered a fracture of the seventh thoracic vertebrae, and that he had suffered other injuries in 1986 and 1993.

[132]
Dr Gillett in his report of 1 July 1999 expressed the opinion that the incident in 1986 was unrelated to his current problems, but that the accident in 1990 which was the subject of the action resulted in a derangement of the L4/5 discrimination, which had pre-existing degeneration, and that condition was further aggravated by a further accident at work in September 1993 which led to acute sciatic symptoms, and ultimately to surgery. Dr Gillett assessed 10% impairment of bodily function due to work related spinal injuries out of an overall impairment of 15% taking into account pre-existing degeneration, and expressed the view that had the incident in 1990 not occurred it was probable that within a period of five to seven years there would have been some back problems anyway. He thought the plaintiff was unable to work in any manual labour. Dr Gillett’s view was to the effect that the injury to the disc suffered in 1990 was a cause of the further injury suffered in 1993.

[133]
Dr Maguire, who had reported for the defendant, said in a report in December 1996 that the episodes of 1986, 1990 and 1993 represented exacerbation of disc degeneration in a susceptible back, and that the incident in 1993 would probably have occurred whether or not the 1990 incident had occurred. He attributed one-third of an overall 10% disability to each of the incidents in 1986, 1990 and 1993. That remained his view in a further report dated 11 March 1999. It follows that there was an issue about the significance of the 1986 injury on the plaintiff’s current condition, and an issue as to whether the 1990 injury was a cause of the deterioration suffered in 1993, and hence the subsequent medical treatment. There were a relatively large number of other medical reports, and they reveal a larger than usual range of medical issues. Such a situation is more complex than the usual personal injury case involving a back injury, although not dramatically more complex.

[134]
I am not suggesting that the matter was very complex factually on this ground, but the approach of the deputy registrar seems to have been that there was really nothing about this case to take it out of the ordinary run of industrial accident litigation where liability and quantum are an issue. Presumably, although this was not stated expressly, the deputy registrar regarded the fee of $1,600 as a reasonable fee for counsel for the plaintiff in such a case. No attempt was made before me to base a submission on what was usually charged by counsel in such circumstances, and no reference was made to that factor by the deputy registrar. The deputy registrar has taken into account other fees paid to counsel for other work in the action, as required by r. 707(a). Some of these were reduced on assessment and some were not.

[135]
Ultimately it does seem to me that the deputy registrar has failed to appreciate the significance of some of the legal and factual issues raised in the matter, which made the matter, in my opinion, more complex than an ordinary District Court personal injury action where liability and quantum are both an issue. In my opinion the deputy registrar failed to identify and have sufficient regard to these features in the matter, and also attributed too much significance to the amount ultimately recovered, and this led to an erroneous conclusion that the fee charged was unreasonable. In my opinion there is a proper basis for the court to intervene, and I would uphold this objection and allow Counsel’s fee in the amount claimed. This is an increase of $250.

Objection 32

[136]
Items 1267 – 1270 refer to the costs for the Brisbane agents’ attendance at the District Court Registry searching the file to obtain details of writs of non-party discovery issued on behalf of the defendant, the search fee, and the reporting by telephone to the solicitor in Rockhampton of the result of this search. Objection was taken on the ground that this was of a solicitor and own client nature and should not be borne by the defendant. The deputy registrar disallowed these items and confirmed the disallowance in the reconsideration, on the ground that they amounted to overcaution, speculation, luxury or comfort. Reference was made to Grant v. Australian Knitting Mills [1937] SASR 113, which confirmed that costs can be disallowed on this basis on a party and party taxation but also noted that what is proper may be more than what is necessary.

[137]
It was submitted on behalf of the plaintiff that it was usual and proper practice to search the registry to ascertain what writs of non party discovery had been issued by the defendant, in order to enable the plaintiff’s legal representatives to be fully prepared to combat and respond to any matters likely to be raised by the defendant in the course of preparing for trial. The issue here is whether taking precautions against matters which may be raised by the defendant is part of the ordinary process of litigating, or whether it might be regarded as a luxury provided to the client. The identity of the recipient of third party discovery may throw some light on the scope of cross-examination, and whether particular issues are likely to be raised. The plaintiff may be able to be warned, for example, that the defendant will have access to the medical records of Doctor X, so that the plaintiff can consider what matters he has seen Doctor X about over the years, and whether he may have said anything to Doctor X about the circumstances of the subject accident, or its consequences.

[138]
On the other hand, if a plaintiff has been frank about the relevant matters with his legal advisers, and they have been frank with the other party, there should be no surprises turned up by third party disclosure, and on this basis it could be said that, for the purposes of a party and party taxation, this expenditure was not necessary. This precaution is really to guard against a failure of frankness on the part of the plaintiff, and that is not a mater which should be covered by party and party costs. It was not a cost necessarily incurred to conduct the plaintiff’s action, or properly incurred, for the purposes of party and party taxation. The deputy registrar has referred to the relevant considerations, and in my opinion it has not been shown that there has been any error of principle on the part of the deputy registrar in deciding to disallow these items. This objection is disallowed.

Objection 33

[139]
Item 1302 was a charge for perusing a letter from the police officer at Blackwater returning an unserved subpoena and advising three attempts had been made to effect service. This was claimed under item 97(3) but allowed only under item 97(4). The deputy registrar took into account that the solicitors had previously telephoned the police officer and had been advised service had not been effected (item 1271) and that they had subsequently made contact with the person sought to be served who was then in Rockhampton: item 1372. In these circumstances, there was no need to peruse any detailed report provided as to attempts to effect service by the Blackwater police officer, and in my opinion the deputy registrar was entitled to allow this as a receipt of a formal letter, since nothing which was said in the letter was of any novelty or by that stage any continuing significance.

[140]
The argument on behalf of the plaintiff was similar to that advanced in relation to objection 5, and involves in my opinion too narrow an interpretation of the wording of item 97(4). I do not accept that any letter which does more than simply enclose documents without comment is an ordinary letter. In the circumstances, the reading of this letter would have involved minimal attention from the solicitor, and in my opinion it was plainly appropriate to allow no more than under item 97(4). This objection is disallowed.

Objection 34

[141]
Items 1336 – 1342 relate to the preparation of an affidavit of service of the subpoena on Mr. J.C. Hume, one of the plaintiff’s witnesses. Items 1274 – 1279 relate to the preparation of an affidavit of service of the subpoena on WorkCover Queensland at Rockhampton. Objection was taken to these items on the ground that it was unnecessary to prepare an affidavit of service at that stage and that this expense had been incurred through overcaution. Neither affidavit was filed, although the deputy registrar did not regard that as vital, but concluded that at the time this work was done there was nothing to indicate the witnesses were not going to attend in response to the subpoena, and that accordingly this was a matter of overcaution. The deputy registrar also disallowed items 1338 and 1276, copying affidavits for the brief, on the ground that the affidavits did not in fact appear in the trial brief. There seems to be no basis to dispute that conclusion.

[142]
It was submitted that the plaintiff’s solicitors could not assume that the apparent co-operativeness of the witnesses would continue, and noted that the relevant affidavit had to be prepared in Rockhampton. It is not difficult to see from the decision of the deputy registrar that the preparation and affidavit of service of the subpoena on WorkCover was overcautious and was justified. The position with Mr. Hume is more difficult. He was someone working with the plaintiff at the time of the accident, but by the time of trial they were no longer working together and there may not have been any particular relationship between them. It was evidently thought appropriate to serve a subpoena on Mr. Hume. It does not appear that there was any objection taken with the costs associated with the issuing and serving the subpoena on Mr. Hume, and they appear in general to have been allowed, so it appears to be accepted that it was reasonable for him to be subpoenaed. The subpoena was apparently served by the Rockhampton bailiff, and it is likely that the person serving the subpoena would have been readily available at the time of the trial had it been necessary to obtain an affidavit of service on short notice.

[143]
The preparation of an affidavit of service of a subpoena may often be an appropriate precaution, but a great deal depends on the circumstances of an individual case. It follows that it is difficult to interfere with the conclusion of the deputy registrar as to whether circumstances which justified this step were present in a particular case. No error of principle has been shown in relation to the deputy registrar’s decision, and I am not persuaded that the circumstances justify my intervening. Objection 34 is disallowed.

Objection 35

[144]
Items 1268 - 1273 are the costs associated with preparation of an affidavit by the plaintiff’s solicitor in support of the admissibility of the medical report by Dr. White, on the ground that he had been informed that Dr. White was out of the jurisdiction. These items were disallowed on the basis that it was unnecessary to have any orthopaedic evidence other than from Dr. Bulwinkel and Dr. Gillett, and that accordingly costs associated with the preparation to put in evidence the report of Dr. White would be disallowed, essentially for the same reason the cost of obtaining Dr. White’s report was disallowed.

[145]
This raises the issue discussed in relation to objection 19, as to the appropriateness of obtaining and putting in evidence the report of Dr. White. For reasons given there, in my opinion it was inappropriate to disallow the costs associated with the report of Dr. White. Once the report was available, it was appropriate to put it in evidence even in the absence of Dr. White, notwithstanding that it would be of diminished weight because he was not available for cross-examination, since he was the only non-treating expert sought to be relied on who had given a report at about that time. Given the circumstance that the plaintiff’s current condition was the product of a pre-existing degeneration and at least potentially three separate past incidents, having no more than the reports of Dr. Bulwinkel and the report of Dr. Gillett prepared shortly before the trial was in my opinion an unduly restrictive approach on the part of the deputy registrar. Dr. White’s report was properly obtained, and in my opinion it was proper for the solicitor to take the steps necessary to put it before the court, notwithstanding its reduced weight. The preparation of this affidavit was the appropriate way by which the document would be made admissible under s. 92 of the Evidence Act, and no issue was raised as to the detail of the costs. This objection is allowed, in the amount claimed, $40.30.

Objection 36

[146]
Item 1392 was the claim under scale item 27, instructions for brief to counsel on trial and instructions generally throughout the proceedings, including allowance for all attendances on and correspondence to the plaintiff and witnesses, for which an amount of $3,000 was claimed in the costs statement. Objection was taken on the ground that the claim for this item was excessive, and on the assessment it was reduced to $2,000. On the reconsideration, the allowance on this item was not changed. At the relevant time the scale allowed a maximum of $3,013 in the absence of some special order from the trial judge, which had not been obtained in this case.

[147]
In giving reasons in relation to the reconsideration, the deputy registrar said that the amount of $2,000 was within an acceptable range having regard to the amount for which the claim was finally settled, the circumstance that the matter was not an overly complex one, although liability and quantum were both in issue, the length of time taken to dispose of the matter from the commencement of proceedings in March 1993 until settlement just before trial in July 1999 during which two firms of solicitors had acted, the circumstance that when the second firm took over the action was to some extent recast, that counsel had been engaged to perform a variety of tasks during the trial, and “the amount of item 27 attendances claimed and allowed at the assessment hearing”.

[148]
It was submitted on behalf of the plaintiff that the deputy registrar must have failed to have sufficient regard to the extent to which various items claimed separately within the bill had been treated as matters covered by item 27, because the total of the amounts claimed separately within the bill treated by her as covered by that item came to $2,347.06. But it should not be assumed that such matters when taken into account for the purposes of item 27 would be treated as justifying an amount equivalent to the amount claimed for them originally as separate items. Nevertheless, there do seem to have been quite a number of items in this bill which were said in the course of the assessment or the reconsideration by the deputy registrar to have been items which were covered by item 27. During the hearing I was presented with a list (which I could have derived for myself from the costs statement) of all of the items in the statement which had been either originally claimed as covered by item 27 (eg item 2) or were treated by the deputy registrar as matters which ought to have been claimed under item 27 (eg item 111). It was said that if all of these items had been costed at the normal scale amounts, or in the case of items converted at the amounts originally claimed in the statement, they total $4,023.12. Again, this figure should not be accepted at face value, because it will include items claimed where, had there not been an item 27, on an assessment less than the amounts claimed in the statement or in the list would have been allowed, but this does show there is some force in the proposition that there was in this action rather a lot of work covered by item 1392.

[149]
It was submitted on behalf of the defendant that all this really shows is that item 27 at the relevant time was too low, but that is not a factor which the deputy registrar could take into account. The plaintiff acknowledges that the real problem is that item 27 is too low, a proposition which has some judicial support. In Boral Resources (Queensland) Pty Ltd v. Trim (Robin DCJ, 6.5.97, unreported), his Honour said at p. 3:

“My experience is (and I think it is the common understanding) that item 27 is inadequate, even in a run of the mill case”.

However, the deputy registrar cannot disregard the item, or allow the maximum amount for all matters, even run of the mill ones, on the basis that the scale item is too low. The deputy registrar is obliged to give effect to the limitation imposed by the scale. This could be done by assessing whatever is thought to be a reasonable amount, but if that happened to be more than the limit, allowing only the limit, as is done with applications for criminal compensation under the Criminal Code: McClintock v. Jones [1996] 1 Qd.R. 524. Alternatively, the upper limit could be regarded as the maximum received for the most substantial matters covered by the item, with the amount allowed in other cases being scaled accordingly, according to their relative amount and difficulty of work, in a process analogous to the scaling of criminal compensation awards under the Criminal Offence Victims Act 1995: Dooley v. Ward [2000] QCA 493. The analogy with criminal compensation should not be taken too far, but it is of some assistance to illustrate the different approaches. The plaintiff submitted that the former should be used, but in my opinion the nature and purpose of the scale and the policy it reflects are better served by the latter approach, which is the one adopted by the deputy registrar.

[150]
Nevertheless, the fact that the scale limit is relatively low and has been recognised as such judicially is, in my opinion, a relevant consideration. If it were appropriate to approach the matter on the basis that $3,013 was the maximum to be reserved for the most complex, or a particularly complex matter, and allowance should be made in respect of other matters by scaling them with reference to that maximum, the result might be quite unfair. In circumstances where there is some judicial recognition that the item is too low, it should be accepted that the courts will not be too restrictive in determining that there are special circumstances justifying the giving of a certificate under para.(3) allowing a higher amount on assessment. Accordingly, the upper limit should not be confined to cases of unusual difficulty and complexity or length in the context of District Court litigation, but rather cases which are, within the ordinary run of District Court litigation, at the more complex, more difficult or relatively long end^[9].

[151]
Another matter of concern is the significance attributed by the deputy registrar of the time taken to bring the matter to completion, and the engagement of two solicitors. The deputy registrar had already excluded any costs which amounted to duplication arising from the change of solicitors by the plaintiff, and notwithstanding that as a matter of public policy it is desirable for litigation not to be unduly delayed, it is difficult to see that this is a consideration for the purposes of assessing the amount properly allowable on a party and party assessment under item 27. I am also concerned about the conclusion that the matter was not an overly complex one. For reasons given earlier, in my opinion there were some complexities in this matter, in relation to both quantum and (at least after the amendment of the defence in June 1999) liability. Although those features do not convert this into a particularly complex matter, the deputy registrar does not appear to have had an adequate appreciation of such complexity as they did represent, and I am concerned that this may have led her to a conclusion that this action could be characterised as a run of the mill matter. In my opinion it was more complex than that.

[152]
I do not think that the failure to obtain counsel’s advice on quantum or evidence is a feature of significance; given its general approach to this costs statement, undoubtedly if they had been obtained the defendant would have objected on the ground they were unnecessary on a party and party basis because the matter was not sufficiently complex. I am also concerned that again too much weight has been attributed to the significance of the amount at which the claim was finally settled, a figure which suggests to me that the plaintiff’s advisers were conscious of some of the real difficulties in relation to liability or quantum, or both. There also does not seem to have been a recognition that work falling under this item but undertaken at the request of the defendant (such as the items covered by objections 3, 4 and 8) ought to have been treated as increasing the amount allowed under this item.

[153]
I recognise that the assessment of the amount appropriate under item 27 is very much a matter of discretion, and one where it is important to have some consistency in approach, and that this is the sort of situation where a court should be particularly cautious about intervening. However, in circumstances where I am satisfied that there has been an error of some significance in the assessment of the degree of complexity of this matter by the deputy registrar, and when I have concerns about some other matters taken into account or apparently not sufficiently taken into account, I am sufficiently concerned overall to regard this as an appropriate case to intervene on review. In my opinion, such complexity as this matter had by way of quantum and liability would place it towards the upper limit of complexity within the ordinary run of District Court litigation, and the analysis referred to earlier as to how the various items of work would have been calculated had there been no global item 27 in the scale, even if taken with a large grain of salt, suggests that an allowance at least approaching the maximum allowed without a certificate was justified. In all the circumstances, I will allow objection 36, but taking into account the approach of the deputy registrar and my view that this was not a matter which fell just short of the point where a certificate under para. (3) would have been appropriate, I will not allow the full amount claimed in the costs statement. In all the circumstances, in my opinion a reasonable allowance is $2,800. This objection is allowed in part in the sum of $800.

Objection 37

[154]
Item 1393 claimed an amount of drawing the costs statement, on the basis of 629 folios. On the assessment hearing, this was reduced in two ways: the number of folios in the bill as delivered was reduced to 2 per page , and a reduction was made for items which were disallowed. In Queensland a folio is 72 words (see eg scale item 104 then in force, item 102 in the current scale) as has been traditional for documents other than wills (Osborn’s Concise Law Dictionary 5^th ed, 1964 p. 138) although I understand in some other jurisdictions a figure of 100 words has been adopted.

[155]
In the past, the task of counting the number of folios in a document was perhaps the most tiresome aspect of taxation of costs. These days, when most computer programmes can provide immediate information as to the number of words in a document, the task has become very much simpler. It ought to have been possible for someone to have been able to say exactly how many words there were on this document. However, I do not have the document on my computer, and I do not propose to count all the words on all the pages. What I did do was count five pages chosen more or less at random (p. 38, 53, 91, 140 and 180). Only one of these (p. 91) counted at less than two folios, and p. 180 counted at 2.4 folios. The average was 2.2 folios. The number of folios claimed was calculated by the deputy registrar as being the equivalent of approximately 2.98 folios per page on average. My calculation suggests that the deputy registrar was closer to the mark than the plaintiff. Further, it would have been appropriate to make some reduction for items disallowed and items “deemed padding in the bill”. I do not accept the proposition that the bill was properly claimed at 3 folios per page, and in circumstances where there has been a substantial reduction in the bill anyway, it is unsurprising that there would be a significant allowance for reduction in the length of the bill. Overall, I am not persuaded that the deputy registrar erred in her approach to this assessment, and this objection is disallowed.

Summary of Review

[156]
Apart from the two objections concerning costs of the assessment, the review may be summarised by listing the objections allowed:

Objection 2 $ 2.80

Objection 4 (part) $ 15.50

Objection 10 $ 15.50

Objection 11 $ 11.20

Objection 14 (part) $ 40.60

Objection 19 $ 450.00

Objection 22 $ 55.00

Objection 24 $ 11.40

Objection 30 $ 57.00

Objection 31 $ 250.00

Objection 35 $ 40.30

Objection 36 (part) $ 800.00

$1,749.30

The remaining objections are disallowed.

Objection 39

[157]
Although this followed objection 38 which deals with the question of costs, it is convenient to deal with objection 39 before dealing with objection 38, because it relates to a separate issue which arises in the course of considering how costs should be resolved. It concerns the construction of r. 721. That rule relevantly provides:

“(1)A party liable to pay costs may serve on the party entitled to the costs a written offer to settle the costs.

(2)
An offer to settle costs –

(a)
must state it is made under this rule; and

(b)
must be for all of the person’s liability for costs to the party to whom it is made; and

(3)
An offer to settle costs –

(a)
can not be withdrawn without the leave of the court; and

(b)
does not lapse because the party to whom it is made rejects or fails to accept it; and

Subrule 4 then prohibits disclosure of the amount of the offer until all questions other than the costs of the assessment have been resolved. The plaintiff’s point is that the rule does not contemplate that more than one offer to settle costs may be made, and therefore the deputy registrar should have disregarded all offers other than the first one (there were altogether three made by the defendant).

[158]
This argument is based on the rule permitting service of “a written offer to settle the costs”, and notes the absence of an equivalent to r. 353(2) which expressly permits more than one offer of settlement to be made under that rule. It was submitted that The absence of such a subrule in r. 721 suggests that the intention was that only one offer could be made. It was also noted that there was no provision for a counter offer, and for this reason the rule should be interpreted strictly.

[159]
I have some difficulty with seeing how the absence of provision for a counter offer provides the justification for interpreting the rules strictly, but the provision that an offer once made remains open until the commencement of the costs assessment of the statement is a factor which suggests that it was contemplated that there would be only one offer, since it would be unusual to have more than one offer of settlement open at the same time. Under the general law of contract, any variation in the terms of an offer by the offeror would readily be regarded as an implied revocation of the offer in its original form, so that ordinarily making a second offer dealing with the same subject would impliedly revoke an earlier one. Hence having two offers which are open for acceptance at the same time but on different terms is not clearly consistent with ordinary principles of contract.

[160]
On the other hand, in the Rules generally words in the singular are taken to include the plural: Acts Interpretation Act 1954 s. 32C(a). In addition, there is no obvious reason of policy why it would be undesirable to permit a second (presumably better) offer of settlement of the costs to be made; in circumstances where an offer once made cannot be withdrawn, there would be no point in making a second, less favourable offer. The desirability of encouraging realistic settlement offers was referred to in the Court of Appeal in Cameron v. Nominal Defendant [2000] QCA 137; in my opinion the same policy applies in relation to settling disputes as to costs.

[161]
The purpose of formalising an offer to settle costs under r. 721 is to activate r. 722(3) and (4) if the offer is not accepted. Those sub-rules are also drafted on the assumption that there is only one offer to settle, but that in my opinion is essentially for the sake of simplicity of expression, and there is nothing about them which would preclude their operation in circumstances where there had been more than one offer to settle. If any difficulty arose in a particular case, it could be overcome by the fact that there is a residual discretion in the registrar to order otherwise under each sub-rule. If an assessment fell between two offers, so that both subsections were activated, the use of the word “however” at the beginning of subsection (4) shows that that is the dominant provision, and the party propounding the costs statement gets the costs up to the date of the second offer, but has to pay them on and from the date of service of that offer to settle, and the fee for the assessment.

[162]
In my opinion the absence of an equivalent to r. 353(2) was not deliberate so as to indicate that only one offer of settlement could be made. Policy considerations which would make it undesirable to adopt a construction which might impair the resolution of a dispute as to quantum of costs by settlement, by discouraging a party from making more than one offer if the original offer was not accepted, reinforce the ordinary rule that the singular includes the plural. The importance of adopting a construction of the relevant provisions which encourages resolution of disputes as to assessment of costs was referred to by the Court of Appeal in Suncorp Insurance v. Moule (Appeal 105/91, Court of Appeal, 23.3.92, unreported), BC9202559. In my opinion, therefore, more than one offer of settlement can validly be made for the purposes of r. 721 and 722.

[163]
The submission was also made that the offers were not offers within r. 721 because they were not made for all of the defendant’s liability for costs and therefore ought not to have been considered by the deputy registrar. The defendant made three offers, on 27 September 1999, on 17 January 2000 and on 3 February 2000. They were in identical terms and were expressly made pursuant to r. 721. They offered to settle “the costs payable under their order/judgment of Senior Judge Trafford-Walker made 7 day of July 1999” by payment of a specific lump sum. The defendant’s liability for costs was (prior to 3 April 2000) under the order made by His Honour, so at the time each of those offers was made there was an offer for all of the defendant’s liability for costs to the plaintiff under that order.

[164]
The plaintiff’s point however was that, by the agreement by which the matter had been settled, it was agreed that the defendant would pay the entire costs of the action to be assessed on the District Court scale, but the order of His Honour did not cover all of that liability because it only applied to that part of the costs which were incurred after the matter was transferred to the District Court. The liability in respect of the other part of the costs lay only in contract until Mullins J. made the order on 3 April 2000 that the defendant pay the plaintiff’s costs of the action while it was in the Supreme Court.

[165]
In my opinion this submission misinterprets r. 721. That rule when it speaks of “a party liable to pay costs” is not talking in the abstract; it is to be understood taking into account where it appears in division 5 of chapter 17 of the Rules, dealing with the procedure to assess costs. The division makes provision for that procedure to be set in train by an application for costs to be assessed and costs statement: r. 709. A discussion of the subsequent provision appears earlier in these reasons. In my opinion, the reference to costs in r. 721 is a reference to the costs claimed in the costs statement. The purpose of inserting r. 721(2)(b) is plainly to ensure that any offer made would be one which, if accepted, would produce an agreement on the basis of which the costs, the assessment of which the registrar had been asked to undertake pursuant to the application, could be set pursuant to r. 722(2). It must bring that assessment to an end. This is to avoid a situation where the offer, if accepted, would still leave some matters to be determined on that assessment by the registrar.

[166]
It is not intended to refer to any liability for costs which may exist on any basis in that party in favour of the party who has filed the application. For example, if there have been two separate orders made (perhaps on two separate applications) under which costs to be assessed were payable to the same party, and that party had filed an application under r. 709 in respect of one of them but not the other, an offer under r. 721 in respect of the liability for costs under the order in respect of which the application of assessment had been filed would be a valid offer for the purposes of r. 721, even though it did not cover the liability for costs that the party also had on the second order. See John Goss Projects Pty Ltd v. Thiess Watkins White Constructions Ltd [1995] 2 Qd.R. 591.

[167]
The fact that a costs statement may cover a liability for costs on more than one basis (for example under two separate interlocutory orders) does not affect this construction; if that is what the costs statement covers, an offer would not be valid under r. 721 unless it was for all of the party’s liability covered by the statement, that is under both orders. If this is thought to be too restrictive in a particular case, the party liable may always make a Calderbank^[10] offer which, although not one which will activate r. 722(3) or (4), will nevertheless be a matter properly taken into account by a registrar when making an order for costs of the assessment under r. 694(2).

[168]
It follows that objection 39 is disallowed.

Objection 38

[169]
This objection relates to the order made in respect of the costs of the assessment. At the assessment the deputy registrar determined that the first of the settlement offers made under r. 721 by the defendant, the offer of 27 September 1999, was an operative offer for the purposes of r. 722, so that r. 722(4) applied and the plaintiff was liable to pay the defendant’s costs of the assessment, including the assessment fee and fee payable to the court. In arriving at this conclusion, the deputy registrar disregarded that part of the costs statement covered by items 1-511, the items relevant to the time when the action was in the Supreme Court, on the basis that the liability to pay those items arose only when the order was made by Mullins J. Accordingly, they should be disregarded when determining the liability for costs, and the offer made on 27 September 1999 was greater than the assessed liability under the order of Trafford-Walker DCJ.

[170]
The plaintiff submitted that the deputy registrar had erred in allowing the defendant to raise, for the first time on the first day of the assessment, the issue of whether the costs for the period while the matter was in the Supreme Court were covered by the existing order, because this was not a matter raised in the notice of objection. For reasons given earlier, in my opinion that was not a matter which prevented this issue from being raised by the deputy registrar, or by the defendant. It was submitted that it was inappropriate for the plaintiff to be penalized in costs for in effect not accepting the offer of settlement in circumstances where that offer could not be assessed by reference to a comprehensive statement of objections. Although the notice of objection was not filed and served until 17 January 2000, well after the offer had been made, the offer was still open for acceptance, the assessment not having commenced.

[171]
Alternatively, the plaintiff could have made the application that he did ultimately make to the Supreme Court at an earlier stage. Indeed, I think it very likely that if the matter had been raised in the notice of objection originally the plaintiff would not have accepted the offer which was on the table, but would have made the application to the Supreme Court, when an order like that ultimately made would no doubt have been made. The practical effect then would have been to provide a justification for the assessment of the whole statement, as ultimately occurred. Once that order was made, the offer of 27 September 1999 became inadequate as, even on the original assessment, including the amounts allowed for items 1-511, the deputy registrar allowed an amount in excess of the offer of 27 September 1999.

[172]
The deputy registrar however was of the opinion that the effect of r. 716 was that items 1-511 had to be disregarded when deciding whether the amount of assessed costs was more or less than the amount of the offer. On 3 April 2000 she gave the plaintiff leave to amend the application for costs assessment to include as authority to assess items 1-511 the order of Mullins J made the same day. There was some point taken as to whether this was an amendment to the “costs statement” as distinct from the “application to assess”. Rule 709 speaks of them as if they were two documents, but the approved form (Form 60) treats them as one document, and apart from r. 709 the Rules speak only of the “costs statement”. Indeed, r. 711 only requires the “costs statement” to be served on the party liable to pay. In my opinion there is only one document, and the order made by the deputy registrar on 3 April 2000 was an amendment to the costs statement. Accordingly r. 716(2)(b) was triggered and r. 722 was prima facie properly applied by disregarding the amendment. Without that amendment, there was no authority to assess items 1-511, so the amounts allowed in respect of those items were strictly speaking properly disregarded.

[173]
I am however concerned about two aspects of the matter. One is the matter adverted to by Mullins J at p. 3 from her reasons. In the form of discharge signed by the plaintiff in connection with the settlement of his claim there was an agreement by WorkCover in clause 2 to pay

“the worker’s reasonable party and party costs of and incidental to the proceedings with such costs in accordance with the District Court Scale applicable to the matter in which more than $50,000 is recovered to be agreed between the solicitors ... and failing agreement, such costs shall be taxed.”

As her Honour also noted the

“proceedings were defined as the proceedings claiming damages in the Supreme Court under Writ No. 369 of 1993 were subsequently remitted to the District Court ….”

Therefore, the matter was settled on the basis that WorkCover (on behalf of the defendant) would pay the costs of the whole action, in the Supreme Court as well as in the District Court.

[174]
Her Honour concluded that the order of Trafford-Walker SJDC dealt only with the costs of the District Court, and that it therefore “did not reflect the terms of settlement of the personal injuries action in relation to costs as set out in clause 2 of the discharge” (page 7). This is a matter which Her Honour thought was relevant to the question of the costs of the application before Her Honour, and she also took into account the fact that no objection was made until the first day of the assessment (page 8). Her Honour continued (page 9)

“As Mr Robinson [counsel for the defendant] pointed out, the matter could have been resolved by consent orders by the parties at any time after 1 December 1999 if the defendant had chosen to draw that to the plaintiff’s attention. It is not unreasonable that it did not occur to the plaintiff that there was the deficiency in the costs order, having regard to the terms of settlement reflected in paragraph 2 of the discharge and the fact that it does not appear to have been raised between the parties until 7 March 2000 that there was this deficiency in the costs order.”

Because of this and because the applicant then was successful in obtaining the order necessary to enable the assessment of items 1-511, Her Honour ordered the respondents (the defendant and WorkCover) to pay the plaintiff’s costs of the application to be assessed.

[175]
It follows that there was always a contractual obligation on either WorkCover or the defendant (or possibly both) to pay the plaintiff’s costs of the proceedings in the Supreme Court. The point taken at the commencement of the taxation therefore was a technical one, devoid of merit. There is the further consideration that Her Honour found that it was not unreasonable that it did not occur to the plaintiff that there was a deficiency in the costs order. There is also the circumstance that the matter was not raised prior to the first day of the assessment, and in particular was not raised in the defendant’s notice of objection filed on 17 January 2000. Given that the matter went to the authority of the deputy registrar to assess the bill at all, the defendant was entitled to take the point, and indeed the point might well have been taken by the deputy registrar had it not been raised by the defendant. But that does not mean that the failure to take the point earlier was of no consequence when considering whether it was appropriate to order otherwise under r. 722.

[176]
The deputy registrar has apparently not considered these features, and has not provided any justification for disregarding them when deciding to apply the rules in accordance with their terms. That in my opinion is not the right approach in this case. In circumstances where there was a contractual obligation to pay the costs anyway, where the point was not taken at the appropriate time, where it was not unreasonable for the matter not to occur to the plaintiff, and where the plaintiff had been put to the trouble of having to make an application to the Supreme Court to recover something the plaintiff was contractually entitled to receive, in my opinion it was clearly inappropriate to disregard items 1-511 for the purpose of applying r. 722. Whether the matter is regarded as one where the deputy registrar should have ordered otherwise under r. 716(2), or whether she should have determined under r. 722(4) to order otherwise, the costs incurred while the matter was in the Supreme Court ought not to have been disregarded for the purpose of applying r. 722, in order to avoid a manifest injustice to the plaintiff. But for the circumstance of the issue it may well have been raised by the deputy registrar anyway because it went to her authority to assess the costs statement, I would have no hesitation in saying that the point is one that ought never to have been taken at all by the defendant, being devoid of merit. In my opinion it would be quite unjust for the costs of the assessment to be determined in any basis other than with the costs properly allowable in respect of items 1-511 included. On that basis, the first offer did not activate r. 722(4).

[177]
Counting items 1-511, once the additional items allowed on the reconsideration and the additional amounts which I have allowed are added in, the amount which ought to have been allowed in the bill up to item 1418 exceeds the amount offered on 17 January 2000. That offer was $28,890.80, and the deputy registrar performed a hypothetical calculation of the amount allowed up to 17 January 2000 on the basis of the assessment and taking into account extra amounts allowed on the reconsideration, of $27,589.70. If I add in the total allowed by me on the other objections, $1,749.30, this is an amount of $29,339 which is in excess of the offer.

[178]
For the purpose of assessing the third offer, made on 3 February 2000 in the sum of $30,000, the deputy registrar determined that it was necessary also to add in the fee for attending the directions hearing in the sum of $29.25 (item 1415), so that her hypothetical assessment up to 3 February was $27,618.95. If I add the total of the additional amounts I have allowed, $1,749.30, this produces a total of $29,368.25 which is still less than the amount of the offer. It was submitted however that for the purpose of determining whether to order otherwise it was appropriate to disregard reductions where the defendant on the assessment raised matters not in the notice of objections. That may well be right, but in this case the matters identified in the application for review and written submissions of the plaintiff as falling in to this category which were not allowed on the review, are those in objections 9, 15, 20, 23, 26 and 28. The amounts in issue with these objections totalled $470, and after allowing for this the final amount is still less than the final offer, so it is unnecessary to consider this point further, although I will add that, as I have stated earlier, I consider that the notice of objection did raise the relevant grounds concerning the items covered by objections 20, 23, 26 and 28. Accordingly, that offer was one which did activate r. 722(4).

[179]
Nevertheless it was submitted that allowance should be made for the fact that the assessment was prolonged and delayed because the point about absence of authority to deal with items 1-511 was raised by the defendant, and I consider there is some force in that: see Uniform Civil Procedure Rules r. 726. The deputy registrar said she took into account the number of successful objections made on the assessment for the defendant, the generous amount of the offer, given the size of the matter and what the action ultimately settled for, the length of the assessment hearing, and the fact that matters had to be stood over on a number of occasions to give the plaintiff the opportunity to produce documents. But the deputy registrar, when assessing the costs allowance for the notice of objection, does not seem to have made any allowance for the fact that the original notice of objection contained a number of objections which were not upheld, nor has she allowed for delays attributable to the defendant, as I have indicated. In my opinion these are matters properly taken into account.

[180]
As I indicated earlier, because there were offers which fall within r. 722(3) and (4), the plaintiff should recover his costs of the assessment up to the date of the offer within subsection (4), and pay the defendant’s costs of the assessment thereafter. The details of the defendant’s costs of the assessment are set out at p. 65 of the reasons of the deputy registrar. All except the attendance on the assessment hearing must have been incurred prior to the making of the third offer, and so should have been disallowed. The remaining item should be reduced to take account of the additional matters to which I have referred. The appropriate way to make allowance for them is to reduce the defendant’s costs of attendance on the assessment by one third, to the sum of $2,457. I accept this would involve a greater reduction than is justified by the specific matters, but it is convenient to deal with the time wasted by taking the point about the costs in the Supreme Court just by reducing the defendant’s costs rather than by reducing them by a lesser amount and increasing the plaintiff’s costs by some amount.

[181]
There is also the question of what should happen in relation to the costs of the reconsideration. There were a total of 66 matters subject to reconsideration, of which 14 produced some improvement before the deputy registrar, and a further 12 ought to have, in view of my conclusions. Although only 13 of the 39 objections before me have been successful, the amounts involved (apart from objection 38) meant that the plaintiff obtained an additional $1,749.30 out of the total additional amount sought of $4,924.07. In all the circumstances I think it would have been more appropriate in view of the ultimate outcome for there to have been no order as to the costs of the plaintiff’s reconsideration.

Final calculations

[182]
Total amount of claim $40,652.25

Less

Reductions in bill by deputy registrar

to item 1418 $12,467.95

Disallowance of items 1419 – 1432 $ 761.45

Subtotal $13,229.40

Balance $27,422.85

Add

Total of short charges (deputy registrar) $ 122.60

Additional amounts allowed on

review $1,749.30

Subtotal $1,871.90

Balance $29,294.75

Less set off of defendant’s costs $2,457.00

Add plaintiff’s costs on defendant’s

application for reconsideration 79.40

Final amount allowed $26,917.15

A taxing fee which is 8% of the amount properly allowable to the plaintiff on the costs statement, that is 8% of $29,294.75 namely $2,343.58, remains payable by the plaintiff, because of the third offer. This is an increase of $375.58.

[183]
The issue which remains is the costs of the review. The plaintiff has had success in a number of items on the review, and although they were less than half of the total number of items in issue on the review, they were in a number of cases items where the amounts involved were relatively large. The plaintiff has been more successful in monetary terms than in terms of counting items. As well, some arguments advanced on behalf of the plaintiff in relation to other items were successful, but the objections were disallowed for other reasons. On the other hand, there were some cases where arguments were advanced which were not successful, even in relation to particular objections which otherwise have succeeded in whole or in part. I am conscious of the fact that the plaintiff ultimately fell short of what must have been the true objective of the review, of getting the allowable costs increased by enough for none of the defendant’s offers to bring r. 722(4) into operation, and ultimately that objective was unsuccessful. Subject to the existence of any offers to compromise the review (as to which at the moment of course I know nothing) in my opinion a fair outcome overall is to make no order as to the costs of the review. I will circulate these reasons and invite submissions as to costs when I make the formal orders.

[184]
In conclusion I should like to record my gratitude for the very thorough detailed and helpful reasons prepared by the deputy registrar in relation to the reconsideration, which have greatly facilitated my conduct of the review. I also acknowledge the assistance received from detailed and helpful written submissions provided on behalf of each of the parties.

Footnotes

[1] This was net of a set-off of $5,224.74 for the defendant’s costs of the assessment.

[2] Jowitt’s Dictionary of English Law, (2nd Ed 1977) – “engross”. See also Butterworths Australian Legal Dictionary (1997) p. 418.

[3] See Anderson v. Commonwealth of Kentucky (1938) 121 SW 2d 46 at 48: “to copy the rude draft of an instrument in a fair, large hand”.

[4] See Osborne “A Concise Law Dictionary” (5th ed., 1964): “copying a deed at length in writing or typewriting for execution.”

[5] See also “Australian Legal Words and Phraases (Blackstone Press Pty Ltd, 1990): “The final stage in drawing a legal document. It is no longer a preliminary copy but a good copy ready for execution (signing) or acceptance at the office of a court.”

For example, in the English Civil Procedure Rules (1998) r. 35.1. See also Uniform Civil Procedure Rules r. 367(3)(e).

[7] District Court Rules 1968 rr 341A(1)(b), 341B, 341C, which commenced 21 June 1996.

[8] Although item 1214 is dated 8 June 1999, that would have been the date the brief was delivered; the fee note is dated 7 July 1999.

[9] Under the Uniform Civil Procedure Rules there is now also the consideration that the Court or the registrar has a discretion to allow up to 30% above scale if “the nature and importance, or the difficulty or urgency of a proceeding and the justice of the case justify it”: r. 690(5).

[10] Calderbank v. Calderbank [1976] Fam 93; AMEV Finance Ltd v. Artes Studios Thoroughbreds Pty Ltd (1988) NSWLR 486.

Editorial Notes

Published Case Name:
McCoombes v Curragh Queensland Mining Limited
Shortened Case Name:
McCoombes v Curragh Queensland Mining Limited
MNC:
[2001] QDC 142
Court:
QDC
Judge(s):
McGill DCJ
Date:
14 Jun 2001

Appeal Status

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
AMEV Finance Ltd v Artes Studios Thoroughbreds Pty Ltd	View on:NSWLR(1988) NSWLR 486	1 citation Jump To Cite 1 - (1988) NSWLR 486
Anderson v Commonwealth	(1938) 121 SW 2d 46	1 citation Jump To Cite 1 - (1938) 121 SW 2d 46
Calderbank v Calderbank	View on:ICLRUK(1976) Fam 93	1 citation Jump To Cite 1 - (1976) Fam 93
Cameron v Nominal Defendant	[2001] 1 Qd R 476; [2000] QCA 137	1 citation Jump To Cite 1 - [2000] QCA 137
Dalrymple Holdings Pty Ltd v Gohl	(1991) 34 FCR 397	2 citations Jump To Cite 1 - (1991) 34 FCR 397 Cite 2 - (1991) 34 FCR 397
Dooley v Ward	[2001] 2 Qd R 436; [2000] QCA 493	1 citation Jump To Cite 1 - [2000] QCA 493
Garrard v Email Furniture Ltd	View on:NSWLR(1993) 32 NSWLR 662	2 citations Jump To Cite 1 - (1993) 32 NSWLR 662 Cite 2 - (1993) 32 NSWLR 662
Grant v Australian Knitting Mills	[1937] SASR 113	1 citation Jump To Cite 1 - [1937] SASR 113
Interchase Corporation Limited v ACN 010 087 573 Pty Ltd	[2003] 1 Qd R 26; [2001] QCA 191	1 citation Jump To Cite 1 - [2001] QCA 191
John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (in liq)	[1995] 2 Qd R 591	1 citation Jump To Cite 1 - [1995] 2 Qd R 591
Jones v Persal & Company (a firm)	[2000] QCA 386	1 citation Jump To Cite 1 - [2000] QCA 386
Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners	(1908) 14 ALR 37	1 citation Jump To Cite 1 - (1908) 14 ALR 37
Nelson v BHP Coal P/L	[2000] QCA 505	1 citation Jump To Cite 1 - [2000] QCA 505
R v Jones; ex parte McClintock	[1996] 1 Qd R 524	1 citation Jump To Cite 1 - [1996] 1 Qd R 524
Re Bain Gasteen & Co's Bill of Costs	[1990] 1 Qd R 412	2 citations Jump To Cite 1 - [1990] 1 Qd R 412 Cite 2 - [1990] 1 Qd R 412
Re Feez Ruthning's Bill of Costs	[1989] 1 Qd R 55	2 citations Jump To Cite 1 - [1989] 1 Qd R 55 Cite 2 - [1989] 1 Qd R 55
Re Flower & Hart's Bill of Costs	[1969] QWN 41	1 citation Jump To Cite 1 - [1969] QWN 41
Re Moylan	(1908) 30 ALT 10	1 citation Jump To Cite 1 - (1908) 30 ALT 10
Re Skinner & Smith's Bills of Costs (No 2)	[1990] 1 Qd R 180	1 citation Jump To Cite 1 - [1990] 1 Qd R 180
Ricks v White	[1995] 2 Qd R 302; [1994] QSC 59	1 citation Jump To Cite 1 - [1995] 2 Qd R 302
Wylie v ANI Corporation Ltd	[2002] 1 Qd R 320; [2000] QCA 314	1 citation Jump To Cite 1 - [2000] QCA 314

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
A & K Barham Enterprises Pty Ltd v Tweddle	[2005] QDC 329	1 citation
Civil Mining & Construction Pty Ltd v Wiggins Island Coal Export Terminal Pty Ltd	[2024] QSC 28	2 citations
Dale v Nichols Constructions Pty Ltd	[2004] QDC 26	1 citation
Henley v State of Queensland	[2005] QDC 94	1 citation
Hennessey Glass and Aluminium Pty Ltd v Watpac Australia Pty Ltd	[2007] QDC 57	1 citation
Radich v Smith & Anor	[2012] QMC 17	1 citation
Stubberfield v Lippiatt & Co	[2003] QDC 34	3 citations

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McCoombes v Curragh Queensland Mining Limited[2001] QDC 142