Roane-Spray v State of Queensland
[2018] QDC 93
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- Unreported Judgment
- Roane-Spray v State of Queensland[2018] QDC 93
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Roane-Spray v State of Queensland[2018] QDC 93
Roane-Spray v State of Queensland[2018] QDC 93
DISTRICT COURT OF QUEENSLAND
CITATION: | Roane-Spray v State of Queensland [2018] QDC 93 |
PARTIES: | MOIRA BRIDGET ROANE-SPRAY (Plaintiff) v STATE OF QUEENSLAND (Defendant) |
FILE NO/S: | BD4097/14 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court of Brisbane |
DELIVERED ON: | 25 May 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 5 March 2018 |
JUDGE: | O'Brien CJDC |
ORDER: |
|
CATCHWORDS: | COSTS – COSTS ASSESSMENT – APPOINTMENT OF COSTS ASSESSOR – whether Registrar erred in exercising discretion to appoint a particular costs assessor – whether Registrar’s decision to appoint particular costs assessor should be set aside Uniform Civil Procedure Rules 1999 r 791 House v R [1936] 55 CLR 499 Lessbrook Pty Ltd (in liq) v Whap & Ors [2014] QCA 63 M J Arthurs Pty Ltd v J H K Legal Australia Pty Ltd [2017] QDC 70 Sommerfield & Anor v O'Keefe & Ors [2017] QDC 190 |
COUNSEL: | Mr M P Williams for the plaintiff respondent Mr R B Dixon for the defendant applicant |
SOLICITORS: | McInnes Wilson Lawyers for the plaintiff Crown Solicitor for the defendant |
- [1]This is an application pursuant to r 791 of the Uniform Civil Procedure Rules 1999 brought by the defendant for leave to have the plaintiff’s application for a costs assessment reheard by this Court. That application was filed on 25 January 2018 and decided by the Registrar on 20 February 2018 when Mr Edward Skuse was appointed to conduct the costs assessment. The present application now seeks for Ms Therese Tonkin to be appointed to carry out the costs assessment in lieu of Mr Edward Skuse.
- [2]Rule 791 provides as follows:
“791Rehearing after decision of judicial registrar or registrar
(1)A party to an application who is dissatisfied with a decision of a judicial registrar or registrar on the application may, with the leave of the court, have the application reheard by the court.
(2)If the court grants leave, it may do so on condition, including for example a condition about—
- (a)the evidence to be adduced; or
- (b)the submissions to be presented; or
- (c)the nature of the rehearing.
(3)This rule does not apply to a review under Rule 742.
- [3]It is accepted by the parties that the wording of r 791 contemplates a rehearing de novo and the defendant concedes that it bears the onus of establishing that the interests of justice warrant interference with the Registrar’s decision.
Background
- [4]On 21 December 2016 in this Court Judge McGill SC gave judgment for the plaintiff in a personal injuries action for an amount of $557,669.79. The defendant was ordered to pay the plaintiff’s costs of the proceedings on the indemnity basis.
- [5]The defendant appealed that decision to the Court of Appeal and that appeal was dismissed on 20 October 2017. The defendant was ordered to pay the plaintiff’s costs of the appeal on the standard basis.
- [6]In the Court of Appeal, the plaintiff applied for the appointment of a costs assessor. That application was heard by the President on 14 February 2018 when Ms Therese Tonkin was appointed to assess costs in the Court of Appeal matter. As it has since transpired, the issue of costs in the Court of Appeal has now settled and no costs assessment will therefore be undertaken in relation to that matter.
- [7]Meanwhile, on 24 December 2017, the solicitors for the plaintiff had delivered two costs statements to the defendant – one for the amount of approximately $800,000.00 relating to the District Court judgment, the other (subsequently settled) relating to the judgment of the Court of Appeal. On 22 December 2017, the solicitors, though indicating a willingness to consider an informal compromise of costs, had proposed either of Mr Edwin Skuse or Mr Michael Hogan as being appropriate costs assessors for the District Court matter.[1]After some delay, on 8 January 2018 the solicitors for the defendant advised that they did not consent to the appointment of either of the nominated assessors.[2]
- [8]Subsequently on 25 January 2018 the plaintiff’s solicitors filed an application seeking to have a costs assessor appointed to undertake the assessment. A Consent to Appointment as Costs Assessor of Mr Edwin Skuse was filed on that same day. On 31 January 2018, the defendant’s solicitors caused a Consent to Appointment as Costs Assessor of Mr Glenn Walter to be filed in the Registry.
- [9]On 7 February 2018 the Registrar gave directions requiring the parties to make submissions in relation to the appointment of either Mr Skuse or Mr Walter. The defendant at that stage contended for the appointment of Mr Walter as costs assessor[3]and it is clear that the defendant’s principal objection, at that stage, to the appointment of Mr Skuse arose from certain observations made by Daubney J in the case of Waiora v Ford & AnorSCQ No. 11068/2002 24 July 2014.[4]Following those directions, the defendant’s solicitors filed three further Consent to Appointment as Costs Assessors of Mr McLelland, Mr Robinson and Ms Tonkin and, thereafter, on 14 February 2018 the solicitors for the defendant provided supplementary submissions drawing the Registrar’s attention to the fact that on that day, in the Court of Appeal Ms Tonkin had been appointed as cost assessor. The solicitors submitted that in the event that the court was not inclined to appoint Mr Walter as cost assessor for the reasons outlined in the defendant’s earlier submissions, then Ms Tonkin would be an appropriate appointee because:
- (a)Assessment of the plaintiff’s costs of the District Court proceeding would provide Ms Tonkin with better understanding of the plaintiff’s (respondent’s) costs of the appeal and vice versa; and
- (b)The appointment of the same costs assessor in the District Court as has been appointed in the Court of Appeal would ensure a more “streamlined” and, in turn, “time and cost efficient” assessment process.[5]
- [10]On 20 February 2018 the Registrar provided reasons for the appointment of Mr Skuse as Costs Assessor. Those reasons were as follows:
“The plaintiff has nominated Edward Skuse to conduct the assessment at an hourly rate of $240.00 per hour plus GST. The defendant has nominated Glenn Walter at the rate of $275.00 inclusive of GST. Alternatively the defendant has nominated James McLellan, Graham Robinson or Therese Tonkin.
I note that the assessment involves costs of approximately $800,000.00 and a costs statement of approximately 546 items and a large number of objections. Experience and skill is therefore my first consideration.
When looking at the resumes provided, I am unable to draw any real distinction between the level of skill and experience of Mr Skuse, Mr Walter and Mr McLellan. Mr Skuse was a barrister and solicitor in Western Australia from 1971 and has been a solicitor since 1988 in Queensland and has consideration experience in assessing costs. I note the point raised by the solicitors for the defendant that he is presently not a full-time costs assessor, however I still deem him to possess considerable experience. Mr Walter was admitted as a solicitor in New South Wales in 1977 and has also demonstrated in his curriculum vitae that he possesses considerable experience in the assessment of costs. Mr McLellan was admitted in 1979 and has specialised in the area of legal costs since 1983. He also possesses considerable experience. The fact that each assessor has been approved by the Supreme Court of Queensland as a costs assessor for a long period of time also affirms their suitability to conduct this assessment. As I am unable to draw any real distinction between the three (all commencing in the 1970’s), I must proceed to look at additional factors in order to make a determination.
When considering the costs of the assessment, I note there is little disparity between Mr Skuse and Mr Walter ($264.00 per hour and $275.00 respectively). Mr McLellan is slightly more expensive at $330.00 per hour. I acknowledge the point raised by the defendant that a lower hourly rate does not necessarily mean that the total fees for carrying out the assessment will be lower, but in a case where all nominated assessors are highly skilled and experienced, I deem it reasonable to expect that the total cost of the assessment process to be similar, although it would be reasonable to assume that Mr McLellan’s assessment will be more expensive.
Looking at availability as another deciding factor on information provided, I note that Mr Skuse, at the time of making submissions, was available to commence within three business days whilst Mr Walter would commence within seven days. I am therefore satisfied that both assessors would be expedient and effective in carrying out the assessment.
After considering a number of factors to draw a distinction between the nominated assessors (experience, skill, diligence, availability and cost), I have concluded that I cannot really draw that distinction to any great extent on the evidence provided. Therefore the only option available to me is to rule in favour of the party with the costs order in their favour. I therefore appoint Mr Skuse to conduct this particular assessment.”
Defendant’s Submissions
- [11]Given that the costs of the Court of Appeal matter have now been settled it can no longer be argued that there is merit in having the same assessor appointed for the District Court assessment. It is however argued that the Registrar erred in failing to expressly deal with the fact of the appointment of Ms Tonkin by Sofronoff P notwithstanding the fact that that had been brought to the Registrar’s attention in the supplementary submissions of 14 February. It is therefore argued that the Registrar has not taken into account material facts with the consequence that the discretion of the Registrar has miscarried.
Plaintiff’s Submissions
- [12]The defendant had originally contended for the appointment by the Registrar of Mr Walter as costs assessor and has only raised Ms Tonkin’s name following the proceedings in the Court of Appeal. The fact that Ms Tonkin had been appointed as the assessor for the Court of Appeal matter provided no reason for her appointment for the District Court matter. The appeal involved an issue of statutory interpretation with costs awarded on the standard basis whereas the trial involved a complicated personal injuries claim, an area in which Mr Skuse possessed greater experience than Ms Tonkin, and the award of costs on an indemnity basis. The Registrar has not been shown to have erred in the exercise of her discretion.
Court of Appeal
As indicated above, application had been made before the Court of Appeal for the appointment of a costs assessor in respect of those proceedings. That application was heard, not by a Registrar, but by Sofronoff P on 14 February 2018. Sofronoff P appointed Ms Therese Tonkin to assess the costs in the Court of Appeal matter. The defendant objected to the appointment of Mr Skuse as assessor raising again the observations made by Daubney J in Waiora. The transcript of the proceedings in the Court of Appeal[6]includes the following:[7]
“MR WILLIAMS:Has Your Honour read the reasons of Justice Daubney?
THE PRESIDENT:Yes.
MR WILLIAMS:Ok. There is nothing, in my submission, in those reasons which points to any misconduct or otherwise of Mr Skuse.
THE PRESIDENT:No. And I wouldn’t act on that to - - -
MR WILLIAMS:Exclude him.
THE PRESIDENT:- - - think that there was anything wrong with that gentleman.
MR WILLIAMS:No findings were ever made against him. As I understand it he remains on the register of costs assessors, therefore, in my submission, he remains an appropriate appointment…
THE PRESIDENT:- - - since your client so strongly objects to Mr Skuse - - -
MR DICKSON:Yes.
THE PRESIDENT:- - - a person about whom I’m not going to make any findings or a person whom I’m not going to reject upon the basis of matters about which I can draw no conclusions, and I certainly have no adverse views about him on the basis of the material before me, and I should emphasise that I apprehend that your client has an objection, obviously reached in good faith, to his appointment, and I make no inquiry about the validity of that objection.”
- [13]It is clear from a reading of the transcript of proceedings before Sofronoff P that Ms Tonkin was effectively appointed as a matter of compromise. Sofronoff P expressly declined to make any findings adverse to Mr Skuse. Because objection was taken however, the President indicated that he proposed to appoint Mr Walter. It was at that stage that counsel for the plaintiff indicated a preference for Ms Tonkin over Mr Walter. In those circumstances it cannot be properly said that the plaintiff was indicating a preference for Mr Tonkn over Mr Skuse. The ruling of Sofronoff P, in my view, provides Ms Tonkin with no advantage over Mr Skuse and the fact that the Court of Appeal costs issue has since settled places her in no advantageous position so far as the District Court assessment is concerned.
Consideration
- [14]It appears to be common ground between the parties that the wording of r 791 provides for a rehearing de novobut ultimately the question on this application becomes one of whether the discretion exercised by the Registrar is shown to have miscarried. In that situation, as the Court of Appeal observed in LessbrookPty Ltd (in liq) v Whap & Ors[2014] QCA 63 at [23] the applicable principles are those set out in the judgment of Dixon, Evatt and McTiernan JJ in House v R[1936] 55 CLR 499 at 504 – 505:
“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.”
- [15]In Lessbrook the Court of Appeal referred to factors such as expense, skill, diligence, expedition, availability and rate of charge as being among the considerations relevant to the appointment of an appropriate costs assessor.
- [16]In Sommerfield & Anorv O'Keefe & Ors[2017] QDC 190 Smith DCJA made reference to the judgment of Muir JA (Gotterson JA and Daubney J agreeing) in Lessbrookat [25] – [31] and to the decision of McGill SC DCJ in M J Arthurs Pty Ltd v J H K Legal Australia Pty Ltd [2017] QDC 70 before expressing the view that Lessbrookis authority for the proposition that, although experience, diligence, skill, expedition, availability and the hourly rate are all relevant considerations, one or more of them may be of greater importance depending upon the circumstances of the particular case. I would respectfully agree with that view.
- [17]In this case, I accept that the taxation would likely involve some complexity. There are some 546 items identified in the costs statement. There are some 66 items of objections in the Notice of Objections. The defendant’s objections are “forcefully put”[8]and comprise objection to almost 50 per cent of the costs claimed. Ms Tonkin does provide a cheaper rate than does Mr Skuse but that should not be the determinative factor in this case. Indeed in the defendant’s solicitor’s initial submissions to the Registrar of 13 February 2018, made at a time when the defendant was contending for the appointment of Mr Walter as cost assessor, it was contended that, although Mr Skuse’s hourly rate was lower than that of Mr Walter, given the amount involved and the level of skill required, the hourly rate should not be the determining factor. It was argued for the defendant that the amount which was contested by way of objection in this case was “of more moment to the parties than the hourly rate of the costs assessor, a minimal component of the final result”.[9]The solicitors went on to make the sound observation that the fact that one cost assessor’s hourly rate may be lower than another does not necessarily mean that the total fees for carrying out the assessment will be lower.
- [18]In any event, there is evidence that Mr Skuse’s rate of charge, though higher than Ms Tonkin is amongst the lowest of the costs assessors identified in the Register of Approved Costs Assessors.[10]
- [19]It is clear from the Registrar’s decision that she was aware of the nomination of Ms Tonkin as well as Mr Skuse, Mr Walter, Mr McLelland and Mr Robinson. So much is made clear in the defendant’s submissions of 13 February 2018[11]and from the very wording of the Registrar’s decision. The Registrar correctly identified that the defendant’s primary position had been for the appointment of Mr Walter. She did not expressly refer to the appointment of Ms Tonkin by Sofronoff P in the Court of Appeal but that is a matter which was brought to her attention on 14 February 2018 and it is accepted by counsel for the defendant that, on the afternoon of 14 February, the solicitors received from the Registrar an acknowledgement of having received that supplementary submission. I am not prepared to accept that the Registrar was unaware of Sofronoff P’s appointment but, in any event, for the reasons set out above, there is nothing in the Court of Appeal proceeding which served to provide any advantage for Ms Tonkin over Mr Skuse.
- [20]The Registrar had regard to all relevant considerations and ultimately felt unable to draw a distinction between “the nominated assessors”, ultimately ruling in favour of the party who was favoured with the costs order.
- [21]The curriculum vitae’s of Mr Robinson, Mr Walter and Ms Tonkin are exhibited to the affidavit of Alison Margaret Coogan filed 9 February 2018; that of Mr McLelland to her affidavit of 26 February 2018. Mr Skuse’s resume is exhibited to the affidavit of Emily Anne Billiau filed 31 January 2018.
So far as can be determined from these documents, and from the other material contained within the affidavits, there is no obvious basis for distinguishing between the nominated assessors in the area of expertise, skill, diligence and availability, although as between Ms Tonkin and Mr Skuse, the material suggests that the latter may have greater experience with personal injury matters.
As I have earlier indicated, although there is variation in the rate of charge, the issue of cost is not the decisive factor in this case. As I have also earlier indicated I am of the view that the fact of Ms Tonkin’s appointment in the Court of Appeal does not in this case provide her with any particular advantage. Moreover, like Sofronoff P, I would not be prepared to form any adverse view of Mr Skuse’s entitlement to be appointed on the basis of comments made in the case of Waiora.
- [22]In my view the discretion exercised by the Registrar in this case has not been showed to have miscarried and on a de novoconsideration of the curriculum vitaes of the nominated assessors, Mr Skuse remains the appropriate assessor in this case.
- [23]In the result I order that the application to set aside the Order of the Registrar made on 20 February 2018 should be dismissed.
Footnotes
[1]Exhibit 3 to the affidavit of Emily Anne Billiau filed 2 March 2018.
[2]Exhibit 7 to the affidavit Emily Anne Billiau filed 2 March 2018.
[3]Affidavit of Alison Margaret Coogan filed 29 January 2018.
[4]Affidavit of Alison Margaret Coogan filed 9 February 2018 and Exhibit 1 thereto.
[5]Exhibit 3 to the affidavit of Alison Margaret Coogan filed 26 February 2018.
[6]A full transcript of the proceedings before Sofronoff P was provided by agreement between the parties at the conclusion of argument in this matter.
[7]State of Queensland v Roane-Spray CA 387/2017 14 February 2018 -T1-10 ll 28 – 34 and T1 – 12 ll 16 – 25.
[8]Affidavit Emily Anne Billiau filed 31 January 2018.
[9]Exhibit 2 to the affidavit of Alison Margaret Coogan filed 26 February 2018.
[10][12] to Emily Anne Billiau filed 31 January 2018.
[11]Exhibit 2 to the affidavit of Alison Margaret Coogan dated 9 February 2018.