Stubberfield v Lippiatt & Co[2003] QDC 34

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 7 June 2002 John Richard Stubberfield (Mr. Stubberfield) filed in this court a Notice of Appeal Subject To Leave seeking leave to appeal against the whole of the decision and orders made by the Magistrate at Brisbane dated 9 October and 19 November 1998.

2. [2]
   The Magistrate had adjudged that Mr. Stubberfield was liable to pay Lippiatt & Co (the solicitors) $11.314.95 for fees owing to the solicitors for acting for Mr. Stubberfield in bankruptcy proceedings brought by Paradise Grove Pty Ltd in the Federal Court of Australia. The Magistrate ordered Mr. Stubberfield pay the costs of the proceedings before the Magistrate being a sum of $6,865.25 and interest on the solicitors’ claim in the sum of $3,509.17. The total judgment was $21,689.37.

3. [3]
   On 24 June 2002 His Honour Judge McGill S.C. (His Honour) heard Mr. Stubberfield’s application to extend the time within which to appeal against the Magistrate’s decision and order. His Honour dismissed Mr. Stubberfield’s application and ordered that Mr. Stubberfield pay the solicitors their costs of the application to be assessed.

4. [4]
   An appeal by Mr. Stubberfield to the Court of Appeal against His Honour’s decision was dismissed by the Court of Appeal on 25 October 2002.

5. [5]
   On 11 July 2002 the solicitors filed in this court an application to the Registrar to have the solicitors’ costs ordered by His Honour and to be paid by Mr. Stubberfield, assessed. The application was accompanied by a costs statement (the costs statement) in the form approved under the Uniform Civil Procedure Rules (the UCPR). The costs statement contained the solicitors’ bill of costs. Mr. Stubberfield filed his objections to the costs statement on 20 August 2002 (the objections).  The solicitors replied to those objections.  The Registrar completed the assessment on 16 September 2002.  Mr. Stubberfield filed further objections to the costs assessed by the Registrar on 7 October 2002 (the further objections).  The Registrar reconsidered the costs assessed.  His reasons upon reconsideration were filed on 16 December 2002, although dated 17 December 2002 (the Registrar’s decision). 

6. [6]
   The result of the assessment by the Registrar after reconsideration was:

Total Amount Claimed$7,268.89

Less Reductions:$2,951.06

Sub-Total$4,317.83

Additional Allowances$ 863.70

Sub-Total$5,181.53

Assessment Fee$442.00

Final Amount Allowed$5,623.53

7. [7]
   On 2 January 2003 Mr. Stubberfield filed an application in this court for the review of the decision of the Registrar on reconsideration (the application). On 7 January 2003 Mr. Stubberfield filed another application in this court for the review of the decision of the Registrar on reconsideration (the amended application).

8. [8]
   On 31 January 2003 the solicitors filed an application in this court to have Mr. Stubberfield’s applications dismissed.

9. [9]
   Reference to a rule in these reasons is a reference to a rule in the Uniform Civil Procedure Rules (UCPR).

10. [10]
    The court’s power to review the decision of the Registrar is provided for by r.742. That rule provides:

“742 (1)A party dissatisfied with the decision of the registrar on reconsideration under rule 741 may apply to the court to review the decision.

3. (2)
   The application must list –

1. (a)
   the number of each item in the costs statement for which the party objects to the decision of the registrar;  and

2. (b)
   specific and concise grounds and reasons for objecting to the decision;  and

3. (c)
   the decision sought from the court in relation to each objection.

3. (3)
   The party must file the application and serve it on all other parties to the assessment within 14 days after the decision of the registrar on reconsideration under rule 741.

3. (4)
   On a review, unless the court otherwise directs –

1. (a)
   the court may not receive further evidence; and

2. (b)
   a party may not raise any ground of objection not stated in a Statement of Objection or raised before the registrar. 

3. (5)
   Subject to subrule (4), on the review the court may –

1. (a)
   exercise all the powers of the registrar in relation to the items of the costs statement under objection;  and

2. (b)
   set aside or vary the decision of the registrar;  and

3. (c)
   return any item in the costs statement to the registrar for reconsideration, whether with or without directions to the registrar;  and

4. (d)
   make any other order it considers appropriate.

3. (6)
   Unless the court orders otherwise, the review does not operate as a stay of the registrar’s decision”

11. [11]
    The solicitors submit the application does not comply with r.742(2) as the application did not list specific and concise grounds and reasons for objecting to the Registrar’s decision.

12. [12]
    In my opinion, the application does not comply with r.742(2) in that it does not list specific and concise grounds and reasons for objecting to the Registrar’s decision.

13. [13]
    On the hearing of these applications, Mr. Stubberfield conceded that the application did not comply with r.742. However, he relies upon the amended application. The amended application contains an endorsement that it was amended pursuant to r.378. Rule 378 provides:

“Before the filing of the request for trial date, a party may, as often as necessary, make an amendment for which leave from the court is not required under these rules.”

14. [14]
    The solicitors submit that the purported amendment of the application pursuant to r.378 is invalid, void and of no effect. The solicitors submit the circumstances envisaged by r.378 are not appropriate, and did not apply to those in which Mr. Stubberfield was placed. Mr. Stubberfield submitted that even if he could not amend the application for whatever reason, he should be given leave to rely upon the amended application in any event.

15. [15]
    Mr. Stubberfield referred me to rule 5 which provides:

“(1)The purpose of these rules is to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense.

3. (2)
   Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.”

16. [16]
    Rule 371 provides:

“(1)A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.

3. (2)
   Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may –

1. (a)
   set aside all or part of the proceedings;  or

2. (b)
   set aside a step taken in the proceedings or order made in the proceedings;  or

3. (c)
   declare a document or step taken to be ineffectual;  or

4. (d)
   declare a document or step taken to be effectual;  or

5. (e)
   make another order that could be made under these rules (including an order dealing with the proceeding generally as the court considers appropriate);  or

6. (f)
   make such other order dealing with the proceeding generally as the court considers appropriate.”

17. [17]
    Rule 375 provides:

“(1)At any stage of a proceeding, the court may allow or direct a party to amend a claim, anything written on a claim, a pleading, an application or a document in a proceeding in the way and on the conditions the court considers appropriate.

3. (2)
   Subject to r.376, the court may give leave to make an amendment even if the affect of the amendment would be to include a cause of action arising after the proceeding was started.”

18. [18]
    On the hearing of these applications the solicitors did not take any point as to the time within which the application was filed. However, the solicitors submitted the application could not be amended pursuant to r.378, and that the amended application was also deficient as it did not list specific and concise grounds and reasons for objecting to the Registrar’s decision. Further, Mr. Stubberfield required the leave of the court to make the amendments to the application and the solicitors had been deprived of an opportunity to be heard on whether leave ought to be granted to Mr. Stubberfield to make the amendments to the application.

19. [19]
    On the hearing of these applications Mr. Stubberfield submitted leave was not required to permit him to file the amended application. I raised the question whether the application was an originating process. Mr. Stubberfield submitted it was not. Rule 377 provides:

(1)An originating process may not be amended except –

1. (a)
   if the amendment is a technical matter – with the leave of Registrar or the court;  or

2. (b)
   otherwise – with the leave of the court. 

(2)Subrule (1) does not apply to a pleading or particular included in an originating process.

20. [20]
    Rule 8(3) provides an application in, about or pending the trial, hearing or outcome of a proceeding is not an originating process.

21. [21]
    In my opinion the application to review the decision of the Registrar was part of the proceedings for the assessment of the costs. Therefore, the application was not an originating process. Therefore, r.377 is not relevant to the question of whether Mr. Stubberfield required the leave of the court to make the amendments to the application. However, that does not mean r.378 authorised Mr. Stubberfield to file the amended application. Rule 378 provides that the amendments to be made are amendments for which leave of the court is not required under the rules. There is no rule that permits amendments to be made to an application without leave of the court. Rule 375(1) provides that the court may allow or direct a party to amend an application. In my opinion r.378 did not permit Mr. Stubberfield to file the amended application. However, that does not mean he could not apply to the court for leave to amend the application, or, for that matter, file another application for review of the decision of the Registrar and seek leave from the court to rely upon that further application, even though it may have been filed after the 14 day time limit. It seems to me the debate about the amended application has arisen because it has been described as an amended application and contains an endorsement that it was filed pursuant to r.378.

22. [22]
    Therefore, if the application could not be amended pursuant to r.378 and the amended application was filed out of time and is deficient as submitted by the solicitors, in my opinion the question remains whether the amended application should be declared effectual.

23. [23]
    The solicitors further submit Mr. Stubberfield raises grounds of objection not stated in a Statement of Objection or raised before the Registrar.

24. [24]
    It is to be noted that r.742(4) provides that the court on a review may direct a party may raise a ground of objection not stated in a Statement of Objection or raised before the Registrar.

25. [25]
    Mr. Stubberfield represented himself before His Honour, before the Registrar, and before me.

26. [26]
    Mr. Stubberfield and the solicitors have filed many affidavits in support of the applications before me. Mr. Stubberfield’s affidavits and his written submissions contain many allegations made by Mr. Stubberfield against Mr. Lippiatt including an allegation that Mr. Lippiatt had been guilty of fraudulent conduct. These allegations have been made by Mr. Stubberfield against Mr. Lippiatt in other proceedings between the parties in other courts, including the Court of Appeal. The Court of Appeal regarded the allegations to be “quite baseless” and the material relied upon by Mr. Stubberfield was “plainly incapable of supporting such a claim”. Justice Cullinane said:

“Apart from the bare assertion that the respondent acted fraudulently, there is nothing to support the serious allegations the applicant makes in relation to these matters throughout the proceedings.”

27. [27]
    Mr. Lippiatt has, on oath, denied the allegations Mr. Stubberfield has made against him.

28. [28]
    In his written submissions filed on 19 February 2003, Mr. Stubberfield raised three initial jurisdictional points of law.

29. [29]
    Firstly, at the time of reviewing his determination on the assessment to the best of Mr. Stubberfield’s knowledge and belief, the Registrar was no longer a Registrar of the court but in private legal practice, and thus was not independent but susceptible to commercial interests. Therefore, Mr. Stubberfield submits the review was improper and invalid in law and he was thus being deprived of a process for which the rules provide. However, the Registrar in his reasons for reconsideration stated he had been recalled as Registrar to complete this reconsideration. There is no evidence that the Registrar was not duly appointed to perform the assessment at all times. As was pointed out by Latham CJ and McTierman J in R v. Brewer (1942) 66 CLR 535 at 548:

“Acting in a public office is evidence of due appointment to that office, not only in civil proceedings but also in a criminal proceeding”.

Even if it had appeared that there was some defect in the appointment of the Registrar, (which is not the case) it is a principle of the common law that where an office exists but the title to it of a particular person is defective, the “acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office” (See G J Coles & Co Ltd v. Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 525 per McHugh JA). Therefore, this point raised by Mr. Stubberfield provides no basis to set aside the assessment.

30. [30]
    Secondly, the matter concerned an appeal from a judgment of a Magistrate, subject to leave. Therefore, the costs should have been determined by His Honour under r.685(2)(c) and Schedule 2 item 100. Although His Honour’s order as filed was that the applicant pay the respondent’s costs of the appeal to be assessed, pursuant to r.388 I ordered that the word “appeal” be deleted and in lieu thereof the word “application” be inserted. I made that order as His Honour’s reasons show that His Honour ordered the applicant pay the respondent’s costs of the application to be assessed. As that error in His Honour’s order as filed was corrected by my order, item 100 in Schedule 2 is not relevant to assessment of the solicitors’ costs.

31. [31]
    Thirdly, His Honour failed to determine two founding grounds of the appeal, paramount in Mr. Stubberfield’s case argued before His Honour.

32. [32]
    As to this point, His Honour was prepared to assume that Mr. Stubberfield may have had grounds of appeal for the purpose of the application for leave to appeal. His Honour did not decide that there was any merit in the grounds of appeal. His Honour dismissed Mr. Stubberfield’s application for leave to appeal because His Honour found that Mr. Stubberfield was responsible for the delay in filing his appeal as he chose to go and live in New South Wales, and, in effect, disregarded the proceedings being taken in Queensland. It was on that ground that the application for leave to appeal against the Magistrate’s decision was dismissed by His Honour. It was therefore unnecessary for His Honour to decide the merits of Mr. Stubberfield’s grounds of appeal. Further, His Honour was under no obligation to do so.

33. [33]
    Therefore, this point raised by Mr. Stubberfield provides no basis to set aside the assessment.

34. [34]
    Rule 703(1) requires the Registrar to assess the costs on the standard basis. Further, r.703(2) requires the Registrar to allow 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. Rule 690(1) and r.690(2)(b) provide that when assessing costs on the standard basis, a solicitor is entitled to charge and be allowed the costs under the scale of costs for the District Court - Schedule 2. The scale that applied at the time of the assessment was that which commenced on 31 July 2001.

35. [35]
    In the amended application, Mr. Stubberfield objects to 21 items in the bill of costs, and in addition objects to two items of the additional costs, these being, the photocopying allowance and the assessment fee allowed by the Registrar.

36. [36]
    Of the 21 items, Mr. Stubberfield’s objections to items 104 and 105 are the more substantial in monetary terms.

37. [37]
    For item 104 the solicitors claimed for counsel’s fees $2,200. The Registrar reduced this by $660 to $1,540.

38. [38]
    For item 105, the solicitors claimed $1,200. The Registrar reduced this by $36 to $1,164. Item 105 is in these terms:

“General care, skill and conduct having regard to the complexity of the matter, the difficulty and novelty of the questions raised in the proceedings, the importance of the matter to the parties and the amount involved, skill, labour, specialised knowledge and responsibility involved on the part of the solicitor for the respondent, number and importance of the documents prepared, perused or researched without regard to length, or time spent by the solicitor researching questions of law and of fact.”

39. [39]
    Rule 717(2)(c) provides that a Notice of Objection to a costs statement must 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. Subrule (3) of r.717 provides the reasons for the objection may be in abbreviated note form but must be understandable without further explanation. The requirement in r.742(2)(b) that the application must list specific and concise grounds and reasons for objecting to the decision is not expressed in the same terms as the requirement for the Notice of Objection. Although it may be inconvenient to repeat the contents contained in a Notice of Objection in an application to review a decision of the Registrar, this may be what is required to satisfy the rule.

40. [40]
    For many of the items objected to in the amended application, Mr. Stubberfield has used the phrase “not necessary or proper charge”. His objections and the further objections express in more detail the reasons why the amount claimed for an item should not be allowed.

41. [41]
    The approach by a Registrar to a charge that is objected to as being “not necessary or proper” has been the subject of judicial decision. Asprey J in W & A Gilbey Ltd v. Continental Liquers Pty Ltd (1964) NSWR 527 at 533 said:

‘In applying the test it is necessary to bear in mind the distinction between the word ‘necessary’ and the word ‘proper’, an important distinction which has at times, as the cases show, been overlooked.  The words ‘necessary’ and ‘proper’ … are not interchangeable terms.

And at 534-5, his Honour said:

‘It is clear that the appearance of the words “or proper” in the phrase “necessary or proper” connote a wider ambit of charge than the word “necessary” … In determining whether an item of costs is “necessary” or “proper” the taxing officer would have regard to the facts in issue between the parties to the litigation, as disclosed by the pleadings, and to all facts which render probable the existence or non-existence of the facts in issue including those matters which would affect the weight or credibility of any of such facts.  But, in making his decisions upon these matters, the taxing officer should place himself in the position of the solicitor sitting in his office chair engaged in the task of preparing the case for trial and, to use the words of Sachs J in Francis v Francis & Dickerson [1956] P 87 at 96 “… in particular care must be taken not to be affected by what is colloquially termed ‘hindsight’”.

42. [42]
    The expression “necessary or proper” appears in r.703(2) referred to earlier. However, in my opinion, the use of the expression “not necessary or proper” in a Notice of Objection, or, an application to review the decision of the Registrar, without more, does not comply with the requirements of r.717(2)(c) and (3), nor r.742(2)(b). One of the objections in the amended application does comply with r.742(2)(b). That objection is to item 76. The objection to this item is “patently a short letter fixed by scale item 95(4). The Registrar had a duty to reduce that item to the scale charge, as held in ­“Dalrymple Holdings case ….”  Further, the objection to item 105 in part is “… not allowed by Schedule 2 rules or scale”.  That objection could be understood to mean exactly what it says.  However, this is an objection not made by Mr. Stubberfield in his Statement of Objection nor before the Registrar.  Mr. Stubberfield’s written submissions for the hearing of the applications before me make it clear Mr. Stubberfield is objecting to this item on the basis that a claim for general care, skill and conduct is not allowed by the UCPR or the scale at all.   

43. [43]
    In my opinion, through a combination of reading the amended application, the objections, the further objections, Mr. Stubberfield’s written submissions filed herein on 19 February 2002, the costs statement and the scale, an understanding of what Mr. Stubberfield is objecting to or more accurately, what are the specific and concise grounds and reasons for objecting to the decision of the Registrar can be arrived at.

44. [44]
    It is through this combination I conclude Mr. Stubberfield objects to item 104 on the ground that the application was an application for leave to appeal from the decision of the Magistrate and there was nothing complex about the application. Therefore, counsel’s fees, if allowed at all, ought to have been allowed under item 84(2) – “to oppose a standard application - $377”.

45. [45]
    Further, Mr. Stubberfield objects to item 105 on the ground that the scale does not allow a solicitor to claim for general care, skill and conduct et cetera, at all. Alternatively, if pursuant to r.690 the Registrar concluded the case could come within subrule (5) (which Mr. Stubberfield would deny that the case could) the Registrar may allow an increase of not more than 30% of the solicitors’ costs allowed on the assessment of the costs of the proceeding.

46. [46]
    Mr. Stubberfield relied upon the decision of His Honour in McCoombes v. Curragh Queensland Mining Ltd [2001] QDC 142, where at paras. 10 and 13 His Honour said:

“These provisions show that the Registrar is not just adjudicating on the particular dispute raised by the parties;  her duty under the rules is to assess the costs in accordance with the rules and the scale.”

…

“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 the 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 amount 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.”

47. [47]
    The Court of Appeal dismissed an application for leave to appeal from His Honour’s decision in that case [(2001) QCA 379]. Although the Court of Appeal did not expressly approve of His Honour’s observations regarding the duty of the Registrar, the court did not interfere with His Honour’s exercise of his discretion upon the review of the costs assessed by the Registrar. I respectfully agree with His Honour’s observations regarding the duty of the Registrar.

48. [48]
    I set out below each of the items objected to, and underneath each item details of the objection taken in the amended application (AA), what was stated about that item in the objections (O), and in the further objections (FO).

Item 65

AA – Not necessary or proper charges

O  -  Not necessary caused by tactic of Lippiatt to serve material as late as possible

FO – Should have been disallowed on grounds stated by objection to the bill, the solicitors’ ploy of delivery of material at the last possible hour is clearly intended to prejudice the party, being costs not necessary or proper for the attainment of justice shall not be allowed. 

RSC.O.91 r.81;  though this rule is not replicated in the UCPR it is submitted it is still a rule of common law which justice requires be applied to the facts. 

Item 66

A – is over charged

O – not referred to in O

FO – not referred to in FO

Item 67

AA – is over charged

O – improper charge reeks of collusion and cost building fraud

FO – these items were left during assessment for later review, there is no indication that this review ever ensued.  The costs relate to a practice direction given to Lippiatt & Co by the Registrar of the District Court, rather than comply, the solicitors and counsel entered upon a three way dialogue to avoid compliance, this was achieved finally by the ploy of “burying” his outline of argument in material served on applicant in court during hearing of the application on 24 June.  Thereby depriving me knowledge of and ability to rebut, statements therein that again were false.  Costs of such activity, being not costs necessary or proper for attainment of justice, but to frustrate, should not have been allowed to the party.

Item 68

AA – not necessary or proper charges

O – same as for item 67

FO – same as for item 67.

Item 70

AA – not necessary or proper charges

O – same as for item 67

FO – same as for item 67

Item 71

AA – not necessary or proper charges

O – same as for item 67

FO – same as for item 67

Item 74

AA – not necessary or proper charges

O – not necessary or proper charge:  see item 65 above

FO – same as for item 65

Item 75

AA - not necessary or proper charges

O – same as for item 74

FO – same as for item 65

Item 76

AA – this item was patently a short letter fixed by scale item 95(4), the Registrar had a duty to reduce that item to the scale charge, as held in Dalrymple Holdings case, cited by McGill DCJ in McCoombes v. Curragh Queensland Mining Ltd [2001] QDC 142 at [8] - [19]. 

O – not referred to

FO – Item 76 was a short letter only, by Schedule 2 r.95(4), and should have been reduced in any event;  Dalrymple Holdings v. GOHL [(1992) 34 FCR].

Item 77

AA – not necessary or proper charges

O – same as for item 74

FO – same as for item 65

Item 79

AA – not proper charges;  the document concerned bogus

O – not necessary or proper charge;  irrelevant;  in any event relates to brief elsewhere charged for

FO – not proper costs;  the document concerned was bogus; unauthenticated; undated and fundamentally flawed; neither an opinion of Mr. Lumb or any other person.

Item 80

AA – not proper charges; the document concerned bogus

O – same as for item 79

FO – same as for item 79

Item 81

AA – not proper charges; the document concerned bogus

O – same as for item 79

FO – same as for item 79

Item 82

AA – not proper charges;  the document concerned bogus

O – same as for item 79

FO – same as for item 79

Item 94

AA – not necessary or proper charges

O – not proper charge.  See items 65; 74-75 and 77 above

FO – Same as for item 65

Item 95

AA – not proper charges; the document concerned bogus

O – not necessary or proper;  irrelevant and erroneous material ;  served in court

FO – same as for item 79

Item 96

AA – not proper charges;  the document concerned bogus

O – same as for item 89

FO – same as for item 79

Item 97

AA – not proper charges;  the document concerned bogus

O – same as for item 95

FO – same as for item 7 9

Item 104

AA – the allowance is overcharged by scale and not justified

O – Overcharged;  maximum fee appears to be $1,278.00 submitted not justifiable on the facts of this case where:

1. i)
   the only serious argument of Counsel related to his submission that the application was incompetent;

1. ii)
   which occupied about 45 minutes of court time, and the judge dismissed by separate judgment on grounds as set out at [1] of my Written Argument. Respondent claims to have perused but plainly neglected his duty to research.

1. iii)
   despite items 83-85 above, the point was not taken in Respondents Outline of Argument served in Court;

1. iv)
   Counsel put forward no argument as to the two key issues relied on by appellant ie. Fraud and perjury of F.W. Lippiatt and failure of the Magistrate to comply with peremptory requirements of the Evidence Act invalidating his judgment;

1. v)
   his attendance was singularly ineffective see above, and the judges acceptance that there was a prima facie case to found an appeal, failing to mention fraud; and see item 105 below.

FO -  The initial objection to the item is reasserted and should be read with this submission; the matter was an application for an extension of time to appeal the decision of a Magistrate;  by Schedule 2 r. 81 in the circumstances where a Plaintiffs costs are assessed at not more than $50,000 the maximum allowance fee is $1,278.00. on all the facts of this case the maximum allowance ought not to be allowed, where the assessed recovered costs are $6,000.00 or  thereabouts.  Failure of the Registrar to provide a transcript of proceedings on the file, prevented the assessing officer from determining the extent and calibre of Counsels involvement and thus it’s true value, a necessary part of cost assessment.  I submit Counsels involvement was an exercise in evasion of the issues and time wasting, that does not justify the full prescribed fee be allowed as costs.  Lippiatt & Co failed to provide a voucher for Counsels fees, which I wish to pursue.

Item 105

AA – the charge is improper, not allowed by Schedule 2 rules or scale; in any event excessive;  inclusion of perusing improper.

O – The matter before the court was an application to extend time to appeal the Judgment of a Magistrate.  The law relating to such an application is well determined and easily determined.  The applicants case relied on two primary grounds as fully set by written argument filed and served in good time those grounds being:

1. 1.
   The Magistrates judgment was tainted by deceit, fraud and perjury of Mr. Lippiatt in material sworn on oath by him, filed and relied on ink the mags and two sc interlocutory applications. By UCPR r.667(2)(b) and common law authority a party effected has a vested right to have such a judgment re-opened, by way of appeal or action; Mr Lippiatt by his counsel:

1. a)
   put forward no argument or evidence to rebut the conclusive evidence of his unprofessional and criminal acts in court proceedings, nor could he, being damned by his own sworn and filed statements.

1. b)
   no argument or evidence to rebut the evidence of his deceit and fraud of applicant his client, owing a duty of care and being in a fiduciary relationship.

1. c)
   no argument of law is presented seeking to excuse such conduct; nor could be.

1. 2.
   The Magistrates judgment and orders were in law void ab-initio due to failure to have regard, or give due effect to, peremptory requirements of the

Evidence Act

1. a)
   again no argument of fact or law was presented at trial or by outline of Argument to rebut the evidence and law clearly presented before the Court and respondent by Written Argument in good time, again nor could he, the Magistrates failure appears on the face of his judgment, the applicable law is authoritatively determined and unarguable.

1. 3.
   Faced with his dilemma Respondents Outline of Argument, as said served at the last possible moment before trial, in Court, in order that applicant have no time to read the document or opportunity to respond to it, utilises it to present false unsworn statements of fact to the Court; I shall set them out here and depose by affidavit to them in due course:

1. (a)
   The Chronology prepared by Counsel is fundamentally flawed and false from paragraph 3 and thus thereafter, in that the declarations sought applied also to the appeal referred to in par. 2. as Lippiatt well know;

1. (b)
   his submissions at [3] are unsustainable on the fact of fraud and law of Cosgrove v Johnsas cited in applicants Written Case;

1. (c)
   again as Lippiatt must be aware the appeals alluded to by his paragraphs 8 & 9 were in relation to maters in train prior to his obtaining his illegal sequestration Order, that at 9 pursued in any event by Paradise Grove and Baker Johnson it’s lawyers, notwithstanding the Order, to which I successfully responded;

1. (d)
   the submission at [14] is deceptive and false the sequestration Order in fact grounded on the two judgments and bankruptcy notices to my knowledge.

1. (e)
   as to [15] again the claim no complaint made to the law society is false; a complaint was so made, also taken to the legal ombudsman, Queensland Police and Queensland Parliament by Petition, all such complaints being then “whitewashed” are now being reactivated. All allegations are proven beyond doubt by his own sworn material as referred to before McGill DCJ on 24/06/02 proven by transcript

1. (f)
   the submission at [17.3] is false to the knowledge of F.W. Lippiatt.

1. (g)
   the submission at [18] is again false on the facts and law as both Lippiatt and his counsel must be aware.

1. (h)
   again the submission at 21 is again false as stated above.

1. (i)
   again the submissions at 24 are false to the knowledge of F.W. Lippiatt my familles funds were extorted by his orchestrated fraud and perjury

1. (j)
   the assertions at [25] are unsustainable on the evidence before the courts

1. (k)
   the assertions at [26] well demonstrates the contempt for truth of the author the quantum being $220,750.00; extorted by fraud and perjury of solicitor F.W. Lippiatt, the answer to his falsity was stated by the Court of Appeal in Cosgrove v Johns [2000] QCA 157 at [95] & [99]; as set out in applicants affidavit filed and sworn 6 august 2002 at page 2 [3]. JRSIO

  FO – Again the initial objection should be considered, the sum allowed was excessive having regard to the facts and circumstances of the application.  If as appears to be the case perusals have been included in this sum the exercise is improper and vitiates the allowance.  Perusals must be particularised to assertion that they are proper and within the cap of r.37.  The sum allowed is manifestly excessive.

Item 117

AA -  the charges improper;  the Registrar erred in interpretation of scale item 37.

O – not referred to in O

FO – improperly allowed in isolation, must be considered pursuant to the cap applied by r.37

Item 119

AA – allowance of the total time spent on taxation given the sum disallowed of about 40% was an improper exercise of discretion

O – not referred to in O

FO  – the allowance of $598.50 to the solicitor for attendance of costs assessment is improper, the item should be reduced in proportion to the claim disallowed, as time wasted by the solicitor.

Photocopying

 AA – the charges are excessive

O – where quantities of photocopying is undertaken a charge of 10 cents per copy only should be allowed due to availability commercially of copying at that rate.

FO – total allowed was 321 copies calculated at $302.80 according to scale under r.36 [my calculation $315.90] total amount claimed at items 12;  27; 30; 31; 59; 61; 102; 109; 113; by my calculation the total claim was $842.40 not the sum of $416.80 as the assessing officer calculated, if my calculations are correct the sum overclaimed by which the bill needs to be adjusted is $526.50, not the $114 allowed.

Assessment Fee

AA – the Registrar has erred in law in the exercise of his discretion in that he has failed to take into account relevant matters and established common law, and erred in taking into account irrelevant matters

O – not referred to in O

FO – under the preceding legislations a bill of costs was reduced by one fifth the party claiming paid costs of taxation.  By UCPR r.694(2) the court Registrar has a discretion as to costs of assessment, and a duty to exercise the discretion.  In the subject case where about 40% is being disallowed on assessment, it is submitted under the common law a proper exercise of the discretion by the Registrar would be that the solicitor pay the costs of assessment.

49. [49]
    In my opinion, except for item 76, the amended application does not contain specific and concise grounds and reasons for objecting to the decision. Further, Mr. Stubberfield seeks to raise grounds of objection not included in the Statement of Objection or raised before the Registrar.

50. [50]
    In my opinion the following questions arise:

1. (a)
   Should I dismiss the amended application or declare the amended application effectual;

2. (b)
   If I am prepared to review the assessment, should I direct that Mr. Stubberfield can raise the further grounds of objection;

3. (c)
   Further, should I direct I will receive further evidence on the review.

51. [51]
    In my opinion, there are a number of considerations that arise relevant to answering these questions:-

1. (a)
   Mr. Stubberfield is unrepresented.  I note Justice Moynihan said Mr. Stubberfield “… although a lay person, is an experienced and determined litigator and these applications (872/97 and 5555/97) are far from his first foray into the field of the taxation of costs.”  (In the matter of Lippiatt & Co (A Firm) Bill of Costs OS 5555/97, Moynihan J – judgment delivered 4 November 1997). I found Mr. Stubberfield has some ability in the area of taxation of costs, more than I would expect from a lay person. Be that as it may, Mr. Stubberfield’s ability is not equivalent to what I would expect from a solicitor experienced in the area of assessment of costs.  

2. (b)
   Mr. Stubberfield has made clear to the solicitors his intention to contest the costs statement;

3. (c)
   Mr. Stubberfield has asked for leave to rely upon the amended application;

4. (d)
   a combined reading of the amended application, the objections, the further objections, the costs statement, the scale and Mr. Stubberfield’s written submissions does provide, as deficient as the amended application is overall, an understanding of his grounds of objection.

5. (e)
   the solicitors’ bill of costs to date has been reduced by the Registrar before additional allowances and the assessment fee, by at least 40%;

6. (f)
   There was a duty upon the Registrar to assess the costs in accordance with the rules and the scale and the Registrar was not confined by the Notice of Objection; 

7. (g)
   the prejudice to the solicitors is to possibly lose a claim to costs which the solicitors may not be entitled to by law;

8. (h)
   it is arguable counsel’s fees should have been determined by the Registrar under item 84 of the scale whereas it appears the Registrar allowed counsel’s fees under item 81(1) “on trial or hearing” $1,278 and allowed counsel fees for drawing and settling Mr. Lippiatt’s affidavit and correspondence. Mr. Stubberfield may have contributed to the Registrar’s decision.  Mr. Stubberfield conceded in his objections the maximum fee appeared to be $1,278.00.

1. (i)
   it is arguable the scale does not allow for a general item of care and consideration whereas item 105 appears to be a claim to that effect;

10. (j)
    if item 104 is disallowed in part and all of item 105 is disallowed, that possibly could have an impact on the additional allowances and upon the assessment fee.

10. (k)
    there has been no delay on Mr. Stubberfield’s part in that he did file his application (although deficient) on 2 January 2003 and the amended application (again deficient) on 7 January 2003;.

52. [52]
    Having regard to these considerations, in the exercise of my discretion, I declare the amended application effectual. I direct pursuant to r.742(4) that Mr. Stubberfield can raise grounds of objection not stated in the Statements of Objection or raised before the Registrar.

53. [53]
    Regarding the receipt of further evidence, the solicitors object to Mr. Stubberfield’s affidavit sworn 19 February 2003, his written argument signed by him on 18 February 2003 (this appears to be dated 18 March 3003 whereas the document is stamped as filed on 19 February 2003) and Exhibits JRS 12A and JRS 12B to the affidavit sworn 19 February 2003.

54. [54]
    Mr. Lippiatt, despite the objection to the receipt of further evidence on the review has responded in an affidavit to the affidavit of Mr. Stubberfield and his written submissions.

55. [55]
    In my opinion, Mr Stubberfield’s affidavits and written submissions do contain many allegations, assertions and argumentative statements which have been repeated by Mr. Stubberfield on a number of occasions in other forums.

56. [56]
    In my opinion, these allegations are irrelevant to the assessment of the costs in these proceedings.

57. [57]
    Mr. Stubberfield’s argument is that if Mr. Lippiatt had not done what Mr. Stubberfield alleges against him, there would not have been a judgment against Mr. Stubberfield in the Magistrates Court, and there would not have been an application for leave to appeal which was dismissed by His Honour with costs to be assessed. I do not accept that is valid reasoning for the purpose of the application before me to review the Registrar’s decision.

58. [58]
    To the extent Mr. Stubberfield’s affidavits contain evidence, on the same basis as I declared the amended application effectual and directed Mr. Stubberfield could raise the further grounds of objection, I direct I will receive further evidence on the review.

59. [59]
    However, the further evidence I am prepared to consider deals with what was involved in the work done by the solicitors and counsel opposing the application for leave to appeal the Magistrate’s decision.

60. [60]
    Further, Mr. Lippiatt submits the affidavits and written submissions contain scandalous or oppressive matters. In my opinion, Mr. Stubberfield has repeated many of the allegations he has made in other forums. The Court of Appeal has pronounced upon those allegations in Mr. Lippiatt’s favour. In those circumstances I do not consider it is necessary for the removal of documents and for the striking out of parts of documents on this file.

61. [61]
    Mr. Stubberfield submitted the solicitors should not be allowed any professional fees in the costs assessment. For that submission he relied upon Adamson v. Williams (2001) QCA 38.  In my opinion, the Court of Appeal did not rule in Adamson that on no occasion can a solicitor recover professional fees when acting for himself in litigation.  The occasions when professional fees may be disallowed to a solicitor include an action where there is potential for a conflict between interest and duty when a solicitor on the record is a witness on a controversial issue.  In my opinion that is not the case in this instance.  That is because the controversy between Mr. Stubberfield and Mr. Lippiatt has been resolved in other forums in Mr. Lippiatt’s favour.  The application before His Honour did not require the resolution of any controversial issue between Mr. Stubberfield and Mr. Lippiatt.  What His Honour had to resolve was whether leave should be granted to Mr. Stubberfield to appeal the Magistrate’s decision.  His Honour assumed for the purposes of the application without deciding there may have been some aspect of the Magistrate’s decision justifying an appeal to the District Court.  His Honour did not decide that there was some aspect of the Magistrate’s decision justifying an appeal to the District Court, nor that there was any validity in Mr. Stubberfield’s allegations.  His Honour was not under any obligation to do so.

62. [62]
    In the circumstances I will review the Registrar’s decision. However, in doing so I proceed on the basis that it is necessary for me to ask myself whether the Registrar erred in principle or where an exercise of discretion is involved, whether the discretion was exercised at all, or exercised in a manner which was manifestly wrong and where the question is one of amount, I will interfere only in an extreme case. (Australian Coal and Shale Employees Federation & Anor v. The Commonwealth & Ors (1953) 94 CLR 621, 627-8;  Adsett v. Berlowis & Anor (unreported) de Jersey J (as he then was) 783/91, decision 15 June 1994;  Snider v. The Commonwealth of Australia (1947) VLR 285;  Kalamalka Constructions Pty Ltd v. Imamovic (1977) Qd.R. 29, 30). 

63. [63]
    In Australia Coal Shale Employees’ Federation v. The Commonwealth at p.628-9, Kitto J adopted the summary of the law by the New South Wales Full Court in Schweppes Limited v. Archer (1934) 51 WN (NSW) 71:

“… error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed.  Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the court is reluctant to interfere …even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances: …, but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong;  and where the question is one of amount only, will do so only in an extreme case.”

64. [64]
    Mr. Stubberfield submitted that the photocopying allowances made by the Registrar should be reduced to commercial rates (Re: Central Developments Pty Ltd (1998) 2 Qd.R. 476.)  However, in my opinion although the application of commercial rates may be justified in special circumstances where there is a substantial amount of photocopying to be performed, in the present matter there was no occasion for the application of commercial rates.

Item 65

65. [65]
    This is a claim by the solicitors for attending, phoning counsel and discussing with him the need of personal service of Mr. Lippiatt’s affidavit upon Mr. Stubberfield, if the hearing on the Monday next was not to be endangered from delay of service or non service, to which counsel agreed. The application for leave to appeal against the Magistrate’s decision and order was served on Mr. Lippiatt on 7 June 2002. The return date was 24 June 2002. In my opinion, it was a question for Mr. Lippiatt how quickly he could prepare his affidavit, file and serve it, to ensure all of that was done before the return date rather than ask counsel for counsel’s opinion. If there was insufficient time, that may have necessitated an application for an adjournment which would then have had to be resolved by His Honour. In my opinion, it is an error of principle to allow the solicitors’ costs for seeking advice from counsel upon an unnecessary matter. Therefore, the $13.30 claimed is disallowed.

Item 66

66. [66]
    This is a claim for attending the District Court and filing the affidavit of Mr. Lippiatt. The claim is for $26.50. Reference to the scale under the heading “Attendances” provides under item 41 – attending at the office of the Registrar, bailiff or an opposite party – if not otherwise provided for - $22.50. I note this is an item not raised before. The only other item for which $26.50 is allowed is under item 40 for attending to file final judgment. Therefore, this item is reduced by $4.00.

Item 67

67. [67]
    This is for “attending the Deputy Registrar of the District Court when he left with us a reminder stating we were to file an outline of argument by 5 July 2002, this seemed appropriate.” The obligations for outlines of argument are referred to in the practice direction. Although the Registrar would inform the parties of the dates for outlines of argument, in this instance any outline of argument from the solicitors on the hearing of the application before His Honour would have had to have been prepared before the return date to be used on the return date. It would only be relevant in the event leave to appeal were granted for the solicitors to prepare another outline due by 5 July 2002. In my opinion it is an error of principle to allow the solicitors’ costs for the Registrar giving the solicitors notice that an outline of argument was required by 5 July 2002, which must have been speculative as that would depend upon whether the appeal proceeded further. Therefore, the $26.50 claimed is disallowed.

Item 68

68. [68]
    Item 68 is attending upon counsel advising of item 67 when counsel requested a copy to fax to him. For the reasons item 67 was disallowed, the $13.30 claimed for this item is disallowed.

Item 69

69. [69]
    This relates again to the reminder notice from the Registrar about an outline of argument being filed by 5 July 2002. For the same reasons, the $28 claimed is disallowed.

Item 70

70. [70]
    This again relates to sending a response to the Registrar about the outline of argument. I disallow the $28 claimed.

Item 71

71. [71]
    This relates to the postage for the letter to the Registrar about the outline of argument. The claim of $0.45 is disallowed.

Item 74

72. [72]
    This relates to Mr. Lippiatt phoning process servers and seeking their assurance that his affidavit could be served. In my opinion this is a justifiable claim for the solicitor to determine if the service of his affidavit could be perfected in time so that he could judge whether a request for an adjournment may have to be sought. Therefore, I allow the $13.30 for that attendance.

Item 75

73. [73]
    This relates to a letter to the process server enclosing the affidavit with instructions to serve. No amount is claimed. Therefore, nothing more need be said about it.

Item 76

74. [74]
    This relates to a letter to Mr. Stubberfield enclosing a copy of the affidavit of Mr. Lippiatt by way of service. The claim is for $24.50. However, when reference is made to the scale under the heading “Letters and Miscellaneous”, although it may be said to be a matter of judgment as to whether a particular claim comes within a particular item, the amount claimed is $24.50 and Item 95 refers to four types of letter with a monetary amount allowed. It is only for an ordinary letter before proceeding that an amount of $24.50 is allowed. This was not expressed to be an ordinary letter before proceeding. In my opinion, looking at the descriptions of the letters, the correct item is Item 95(4), namely a short letter of a formal nature sent or received forwarding documents without comment or a letter to the like effect. The amount under the scale is $10.40. In my opinion, it was an error of principle for the Registrar to allow $24.50 in the circumstances. Therefore, this item is reduced by $14.10.

Item 77

75. [75]
    This relates to attending the process servers when they advised that the papers had been served on Mr. Stubberfield late yesterday. The amount of $20.50 is claimed. The only item in the scale for which $20.50 is allowed under the heading “Attendances” is Item 63 namely “attending a witness to arrange his or her attendance at court without subpoena”. This item was allowed by the Registrar. In my opinion, the correct item is Item 62(3), namely, “any necessary or proper attendance by telephone - $13.30”. If it were said the process servers attended in person one would wonder why that would be necessary. In my opinion the assumption ought to be made it was by telephone. In my opinion, it was an error of principle for the Registrar to allow the sum of $20.50 for this item. Therefore, this item is reduced by $7.20.

Item 79

76. [76]
    This relates to attending counsel by telephone and discussing with him the documents prepared by Mr. Lumb of counsel on 2 December 1994 when he requested that a copy be dispatched to him. Again under the heading of “Attendances” the only item for which $26.50 is allowed is under Item 40 for attending to file final judgment. In my opinion the correct item was Item 62(3) which provides a sum of $13.30. In my opinion, it was an error of principle for the Registrar to allow the sum of $26.50 for this item. This item is reduced by $13.20.

Item 80

77. [77]
    This relates to a letter to counsel enclosing copies of submissions of Mr. Lumb. The claim is for $24.50. The amount of $24.50 is allowed for an ordinary letter before proceeding under Item 95. The sum of $24.50 is not allowed for any other item. This was not an ordinary letter before proceeding. In my opinion the correct item is Item 95(3) which provides for any necessary letter sent or received – a sum of $19.70. In my opinion, it was an error of principle for the Registrar to allow the sum of $24.50 for this item. Therefore, this item is reduced by $4.80.

Item 81

78. [78]
    This relates to the facsimile fee paid for the letter. That is permitted under Item 95(5) and is therefore allowed.

Item 82

79. [79]
    This relates to attending counsel when he phoned and advised that a short affidavit be prepared by Mr. Lippiatt exhibiting a copy of Mr. Lumb’s advice. In my opinion that should be allowed under Item 62(3) which provides for any necessary or proper attendance by telephone - $13.30. In my opinion it appears to have been a necessary or proper attendance by telephone.

Item 94

80. [80]
    This relates to a letter from the process servers confirming that they had served Mr. Stubberfield and enclosing their invoice. In my opinion this is covered under Item 95(3) as a necessary letter sent or received - $19.70. In my opinion it is appropriate to receive a letter from the process servers confirming service and the date thereof and enclosing their invoice. Therefore, this amount is allowed.

Item 95

81. [81]
    This relates to the drawing of the short affidavit of Mr. Lippiatt exhibiting the Outline of Submissions of Mr. Lumb of 2 December 1994. In my opinion this was necessary and supported by Item 34(1) of the scale and is allowed.

Item 96

82. [82]
    This is for engrossing the copy of the affidavit. It is covered by Item 31 which allows for engrossing each folio, brief or other necessary document - $1.60. Therefore, the $4.80 is allowed.

Item 97

83. [83]
    This relates to attending serving copy thereof on the applicant. No amount is claimed in the costs statement.

Item 104

84. [84]
    This relates to paying counsel fees as per his invoice in the sum of $2,200. The invoice describes the services as follows:

“To drawing and settling affidavit of Frederick Walton Lippiatt;  to drafting proposed correspondence to the appellant, to drawing and settling notice of address of service, to all telephone conferences with instructing solicitors and to attend upon application for an extension of time within which to appeal before McGill QC DCJ (full day) $2000  plus GST $200  Balance due $2,200.”

85. [85]
    The proceeding His Honour heard was an application to extend the time within which to appeal. It was not the hearing of an appeal. The costs for an appeal from the Magistrates Court are provided for under Item 100 of the scale. That provides for the first day – the amount that the court fixes (including counsel’s fees). Clearly the court did not fix any fees in this instance. In the scale, fees for counsel are allowed on trial or hearing under Item 81 - $1,278. The application before His Honour was not a trial. Chapter 13 of the UCPR provides for the listing of applications for hearing. Rule 467 in Part 2 of Chapter 13 distinguishes between proceedings commenced by application and those commenced by claim. Depending on the relief or remedy sought a proceeding may be commenced by claim. However, there will be cases where the proceeding has been commenced by an application and the matter is too complex or because of the need for cross-examination and the testing of evidence, the matter cannot be dealt with at the daily hearing of applications. Those complex or lengthy matters can, under the UCPR, be set down for trial at a callover or by a judge (see r.466). In that way the hearing of an application could be categorised as a “hearing”. The application for leave to appeal before His Honour was heard in the daily hearing of applications. I would accept that on some occasions a complex or lengthy matter may be heard by a judge on a day for the hearing of applications, the applications day. That may occur if the applications’ judge has the time available on that day to hear the application.

86. [86]
    In his reconsideration the Registrar said:

“At assessment an amount of $1540.00 was allowed for counsel fees. This sum was determined to reflect a credit for a full days hearing, as well as drawing and settling an affidavit of Mr. Lippiatt, and correspondence to the appellant.

There is nothing before me now that would dissuade me from granting this allowance.

In the ongoing atmosphere of acrimony between the parties, counsel was able to assist with a more objective approach.

OBJECTION DISMISSED.

Note – Proof is to be presented of payment of counsel fees before any formal order for costs is to be issued.”

87. [87]
    Therefore, the Registrar acted on an allowance for “a full day’s hearing” and not on the item for applications, Item 84, which allows to oppose a formal application $160, to oppose a standard application $377 and to oppose a complex application $677.

88. [88]
    In my opinion, a “full day’s hearing” fee could have been allowed by the Registrar if the application had been set down for trial at a callover or by a judge. However, it would be an error of principle for the Registrar on an assessment of the costs to allow a “full day’s hearing” fee for the hearing of an application when that application has not been set down for trial at a callover or by a judge, unless some other consideration justified doing so.

89. [89]
    That is, in my opinion, when an application is heard by a judge on the day for hearing of applications, the applications day, in principle on an assessment of the costs the Registrar ought to first of all consider the scale fees for applications, namely in this case Item 84, and having determined whether the application was either a formal application or a standard application or a complex application, then go on to consider once having made that decision whether the Registrar ought to allow a higher amount the Registrar then considers reasonable. In principle, allowing a higher amount the Registrar considers reasonable might be justified if in the circumstances although the application was not set down for trial at a callover or by a judge, nevertheless the applications’ judge on the applications day was prepared to hear the application and some aspect or aspects of the application justified allowing, say in the case where the Registrar determines the application was a complex application, $677 and then allowing some higher amount the Registrar considers reasonable.

90. [90]
    There is no record on the court file how long the hearing of the application for leave to appear occupied the parties in court. The only evidence before me how long the parties were in court is the evidence of Mr Stubberfield. He said the time in court was about 45 minutes. However, the time spent in court does not necessarily determine the quantum of the fee to be allowed for counsel’s fee. Some of counsel’s work is performed outside court.

91. [91]
    In my opinion, the ongoing atmosphere of acrimony between the parties could not justify allowing fees to counsel.

92. [92]
    From what the Registrar said in his reconsideration I conclude the Registrar did not start with the fee to oppose a complex application and then allow a higher amount he considered reasonable. Further, in my opinion the Registrar took into account an irrelevant consideration, namely the acrimony between the parties.

93. [93]
    Therefore, as I consider the approach the Registrar took to the assessment of this item reveals an error of principle, I have considered the affidavits and written submissions filed for the hearing of the application for leave to appeal (which were before the Registrar). Having done so, and considering all the circumstances, I allow counsel’s fees at $667 for a complex application under Item 84(3) and for settling an affidavit $120, a total of $797. I do not accept the circumstances of the application before His Honour justifies allowing a higher amount. Therefore, Item 104 is reduced from $2,200 to $797, a reduction of $1,403. As the Registrar reduced this item by $660, I further reduce this item by $743.

Item 105

94. [94]
    This relates to the general care, skill and conduct claim of $1200 which was reduced by the Registrar by $36, leaving an amount of $1,164. In my opinion there has been an error of principle by allowing any amount for this item when the scale does not provide for such an allowance. The Registrar did not express in his reconsideration that he was allowing an amount calculated as a percentage up to 30% pursuant to r.690(5). The Registrar did not express what percentage was used, if any was used to arrive at $1164 for this item. The costs statement merely shows he deducted $36 from the claim. The Registrar said in his reconsideration:

“Considerable effort was required to counter or prepare to deal with assertions and arguments of Mr. Stubberfield.  Some of these assertions directly went to the integrity of Mr. Lippiatt, with allegations of deceit, fraud and perjury.

**  see comments of Moynihan SJA below in reference to “Assessment Fee”.

OBJECTION DISMISSED.”

Although I allow counsel’s fees on the basis of a complex application as I accept for counsel the application was complex, I do not accept there was such complexity, difficulty or novelty in the matter for the solicitors to justify an increase of up to 30% on the professional fees.  I consider in the circumstances the matter was personal to the solicitors. I can understand the solicitors considered it was important to the solicitors that Mr. Stubberfield proceeded no further with his appeal.  However, in my opinion, the solicitors had a good command of the history of the matter which would have permitted them to oppose the application with ease. In my opinion, the circumstances relevant to the hearing of the application before His Honour would not justify the Registrar allowing an increase on the solicitors’ professional fees.  Therefore, this item is reduced by  $1,164.

Photocopying

95. [95]
    In my opinion, the Registrar was correct to allow photocopying in the amount allowed upon the reconsideration of the assessment. That led to an adjustment of $114. I do not accept that in this instance the Registrar was obliged to apply commercial rates for photocopying. There is no error of principle demonstrated.

Item 117

96. [96]
    This relates to perusing the enclosed objections. The Registrar allowed a sum of $25.60. In my opinion there was no error of principle on the part of the Registrar in allowing this item. This item is allowed.

Item 118

97. [97]
    This relates to an attendance before the Registrar on the directions hearing (engaged 15 minutes). The sum allowed was $66.50. However, the scale item is item 41 – attending at the office of the Registrar – if not otherwise provided for - $22.50. $66.50 appears to be half of $133 which is an amount for other items for different activities. In my opinion there is an error of principle demonstrated. Therefore, this item is reduced by $34.

Item 119

98. [98]
    This relates to subsequent attendance on assessment of costs statement (2 hours). The amount allowed by the Registrar was for 4.5 hours. In his reasons for reconsideration the Registrar said in relation to Item 119: -

“Whilst Mr. Stubberfield has achieved success in reducing the amounts alleged in a number of areas, he has attempted to infuse topics of debate in the course of the assessment, that have in some respects unnecessarily lengthened the process.  On balance I provide allowance for Mr. Lippiatt for his attendance at assessment for a period of 4.5 hours. 

OBJECTION DISMISSED.”

99. [99]
    The Registrar reduced the claim by $2,951.06. That was a reduction of 40% before the addition of the allowances and the assessment fee. Mr. Stubberfield could have, but did not, make an offer to settle the costs (r.721). Nevertheless, the solicitors were allowed 4.5 hours (at $133 per hour) for attendance on the assessment of the costs statement because of a conclusion by the Registrar that Mr. Stubberfield attempted to infuse topics of debate in the course of the assessment that in some respects unnecessarily lengthened the process. In my opinion, the number of items and the amounts thereof that were reduced must have accounted for time taken on the assessment. In my opinion, the Registrar in the exercise of his discretion failed to give adequate weight to the time taken to reduce the claim which was a reduction of 40% of the claim. In my opinion, the solicitors ought to have been allowed under Item 61(1) two hours for attending on the assessment of costs, namely a sum of $266.

100. [100]
     In any event, as a result of this review the claim, before the addition of the allowances and the assessment fee, has been reduced by 68%. On that basis I consider 2 hours only for attending on the assessment of costs ought to be allowed.

101. [101]
     The Registrar in providing 4.5 hours for attendance at the assessment, allowed under Item 119 an amount of $598.50. As stated above, in my opinion, the solicitors ought to have been allowed two hours for attending on the assessment of costs, namely a sum of $266. Therefore, this item is reduced by $332.50.

Assessment Fee

102. [102]
     In my opinion, in the circumstances, the Registrar in the exercise of his discretion should not have required Mr Stubberfield pay the assessment fee. In any event, as the amount claimed has been reduced by 68% as a result of this review, Mr Stubberfield ought not be required to pay the assessment fee.

103. [103]
     I set out a summary of the review:

104. [104]
     Therefore, consequent upon my review of the decision of the Registrar the following is the result:

Total Amount Claimed $7,268.89

Less Reductions ($2,951.06 by the Registrar

+ $,2059.85 on the review)$5,010.91

Sub-total$2,257.98

Additional Allowances

($863.70 by the Registrar 

Less the $34 and $332.50 on the review)$497.20

Sub-total$2,755.18

Final Amount allowed$2,755.18

105. [105]
     I dismiss the application. I dismiss the solicitors’ application filed herein on 31 January 2003.

106. [106]
     I order the final amount allowed by the Registrar on the assessment of the costs ordered to be paid by Mr. Stubberfield to Lippiatt & Co (a firm) be varied from $5,623.53 to $2,755.18.

107. [107]
     I order the solicitors pay the assessment fee of $442.

108. [108]
     I will hear the parties on the question of the costs of these applications.