FEDERAL COURT OF AUSTRALIA

Innes v AAL Aviation Limited (No 2) [2018] FCAFC 130

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant pay the Respondent a lump sum of $61,548.47 comprised of $21,125 for solicitors’ costs, $37,000 for counsel fees and $3,423.47 for disbursements.

2.    The Appellant pay the Respondent $2,500 for the Respondent’s costs incurred in making the interlocutory application together with the Court’s filing fee for the filing of the interlocutory application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT ORDERS THAT:

1.    The Appellant pay the Respondent a lump sum of $61,548.47 comprised of $21,125 for solicitors’ costs, $37,000 for counsel fees and $3,423.47 for disbursements.

2.    The Appellant pay the Respondent $2,500 for the Respondent’s costs incurred in making the interlocutory application together with the Court’s filing fee for the filing of the interlocutory application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

TRACEY, BROMBERG AND WHITE JJ:

Introduction

1    This judgment concerns applications by the Respondent for the Court to fix lump sum costs following its dismissal of the Appellants’ appeals.

2    In the proceedings at first instance, the Appellants (Mr Innes and Mr Hunter but together the Appellants) had pursued separate claims against the Respondent for damages. They alleged that, in the 1970s, each had been given incorrect advice and information about their ability to join the advantageous superannuation schemes available to employees of Trans-Australia Airlines (TAA) with consequence that their superannuation entitlements following their retrenchments from TAA’s successor, in 2012 and 2005 respectively, were less than they would otherwise have been.

3    Mr Innes and Mr Hunter had sought damages from the Respondent on the basis of multiple causes of action, including negligent misstatement, negligence generally, misleading or deceptive conduct, unconscionable conduct, breach of their contracts of employment and deceit. Their claims, along with that of another former employee (Mr Brewer) were the subject of a single trial. All the claims failed: Brewer v AAL Aviation Limited [2016] FCA 93.

4    In their appeals to this Court, the Appellants contended that the primary Judge had erred in his conclusion on only two of their causes of action, namely, the claims of negligent misstatement and negligence generally. They also contended that the Judge had erred in giving an indication that, if he had been required to assess damages, he would have found that each of them had failed to mitigate his loss by not entering into the TAA superannuation scheme as at 30 June 1981.

5    By Notices of Contention filed in each appeal, the Respondent contended that the primary Judge should also have found that the Appellants’ claims were statute barred, because they had been brought outside the applicable limitation period.

6    In the judgment delivered on 12 December 2017 (Innes v AAL Aviation Limited [2017] FCAFC 202), the Court was unanimous in dismissing the appeal of Mr Hunter and, by majority, it dismissed the appeal of Mr Innes. The Court was unanimous in concluding that the limitation defence raised by the Respondent’s Notice of Contention in Mr Innes’ appeal should be rejected. It was not necessary for the Court to address that defence in relation to Mr Hunter’s appeal, although the Court’s reasons indicated that, had it been necessary for the matter to be considered, that defence would also have failed.

7    When judgment was delivered on 12 December 2017, the parties accepted that the costs of both appeals should follow the event. The Appellants did not seek any split order for costs having regard to the Respondent’s lack of success on its Notices of Contention. Accordingly, the orders in each appeal were that the Appellant was to pay the Respondent’s costs of the appeal.

The applications for lump sum costs

8    By an interlocutory application filed on 18 May 2018 in the Innes appeal, the Respondent seeks the following substantive orders:

1.    The Costs Respondent pays the Costs Applicant $287,778.94 for its costs incurred in the proceedings in satisfaction of order 2 of the Orders dated 12 December 2017.

2.    Alternatively to 1 above, the Costs Respondent pays the Costs Applicant $241,928.07 for its costs incurred in the proceedings in satisfaction of order 2 of the Orders dated 12 December 2017.

3.    The Costs Respondent pays the Costs Applicant $10,000 for its costs incurred in making this Application.

9    By an interlocutory application also filed on 18 May 2018 in the Hunter appeal, the Respondent seeks the following substantive orders:

1.    The Costs Respondent pays the Costs Applicant $241,852.79 for its costs incurred in the proceedings in satisfaction of order 2 of the Orders dated 12 December 2017.

2.    The Costs Respondent pays the Costs Applicant $10,000 for its costs incurred in making this Application.

10    As can be seen, the costs sought by the Respondent in respect of Mr Hunter’s appeal are very similar to the costs sought in the alternative formulation of the costs in Mr Innes’ appeal.

11    The parties asked the Court to determine both applications on the papers. In doing so, the Court has had regard to the affidavits of Ms Dransfield, the Partner in the firm of Johnson Winter & Slattery who had the conduct of the appeals on the Respondent’s behalf and from Ms Shoemark, the solicitor in the firm of Snedden Hall & Gallop who had the principal responsibility (under the supervision of a partner) for the carriage and conduct of both appeals for the Appellants. In addition, the Court has had regard to the outlines of submissions provided in relation to each of the costs applications.

Applicable principles

12    The general power of the Court to award costs is found in s 43(1) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Section 43(3)(d) contains an express power to award a party costs “in a specified sum”. In addition, r 40.02 of the Federal Court Rules 2011 (Cth) (the FCR) permits a person entitled to costs to apply for an order that the costs “be awarded in a lump sum, instead of, or in addition to, any taxed costs”. The purpose of these provisions is the avoidance of the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Paciocco v Australia and New Zealand Banking Group Ltd (No 2) [2017] FCAFC 146; (2017) 253 FCR 403 at [15].

13    The Court’s wish to avoid parties incurring substantial expense in taxations of costs is evident in the Costs Practice Note (GPN-COSTS) issued by the Chief Justice on 25 October 2016. Paragraph [3.3] of GPN-COSTS states:

[T]he Court will seek to adopt, and will encourage parties to utilise, the appropriate use of sophisticated costs orders and procedures, including lump-sum costs orders, consolidated costs orders, estimate of costs processes and Alternative Dispute Resolutions (“ADR”). Taxation of costs hearings should be the exception and be confined to those matters that have genuinely been unable to be otherwise resolved or determined.

14    Paragraph [4.1] states:

The Court’s preference, wherever it is practicable and appropriate to do so, is for the making of a lump-sum costs order.

15    In Paciocco, the Full Court noted a number of matters concerning the making of lump sum costs orders, including:

(a)    although the Court may assess the costs on a lump sum basis, this does not preclude it from undertaking a close assessment of the costs relating to a particular issue or a particular category of costs, should the Court consider it appropriate to do so, at [18]; and

(b)    the making of a lump sum order may be especially appropriate in a large and complex commercial matter, having regard to the time, trouble, expense and aggravation of a taxation, and with a view to achieving early finality, at [20].

16    In Fewin Pty Ltd v Burke (No 3) [2017] FCA 693 at [10]-[14], Markovic J summarised a number of matters bearing upon the exercise of the Court’s power to award lump sum costs. These included (in addition to those mentioned in Paciocco):

(a)    the discretion to award lump sum costs is unconfined and may be exercised whenever the circumstance is warranted;

(b)    the financial capacity of the party liable to pay the costs is pertinent because of the prospect that the additional costs of a taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of that party recovering those costs; and

(c)    the complexity of the proceedings may make it more efficient for the judge hearing the matter to determine the issue of costs rather than leaving it to a taxation before a Registrar.

17    Many of the authorities have recognised that the starting point for the fixing of lump sum costs is the charges rendered by the costs applicant’s solicitors. However, the authorities also recognise that the costs fixed should be proportionate to the nature, including the complexity, of the case: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18] (Kenny J). See also Hislop v Paltar Petroleum Ltd (No 4) [2017] FCA 1632 at [7] (Gleeson J).

18    Finally, we respectfully agree with the statement of Markovic J in Fewin v Burke (No 3) at [61] that, in assessing quantum, “the Court is entitled to take into account the evidence that is before it; its own observations of the proceedings and the judge’s own assessment experience”. As will be seen, these are particularly important considerations in the present case.

The course of the appeal proceedings

19    Both appeals were commenced on 9 March 2016. There was substantial, although not entirely exact, equivalence between many of the grounds in the two notices of appeal, although Mr Innes’ Notice of Appeal contained five grounds which were specific to the circumstance of his claim, and Mr Hunter’s Notice of Appeal contained five grounds which were specific to the circumstances of his claim. Parts A and B of the single Appeal Book, containing the materials for both appeals, were filed on 18 May 2016. Likewise, Part C of the Appeal Book (comprising a single volume) contained the material for both appeals.

20    The appeal was heard in Canberra on 8 and 9 August 2016. The Appellants were represented at that hearing by Mr R Douglas QC and Mr J Gordon. The Respondent was represented by Mr J Lockhart SC and Mr C Colquhoun. By part-way through the afternoon of 9 August 2016, Mr Lockhart had completed the submissions on all issues other than the limitation issue raised by the Respondent’s Notices of Contention. He indicated then that he would not be able to complete the submissions on that issue in the remaining time available that day. In that circumstance, the Court acceded to counsels’ suggestion that Mr Douglas QC make his reply on the submissions advanced to that time by the Respondent and that the hearing of the appeals be adjourned to a date to be fixed for the making of the submissions with respect to the limitation issue. That hearing took place on 17 November 2016, again in Canberra, and occupied half a day. At that hearing, the Respondent was represented by Mr B Walker SC, Mr J Lockhart SC and Mr C Colquhoun. The Appellants were represented on 17 November 2016 by Mr R Douglas QC.

21    In the period between 9 August 2016 and 17 November 2016, the parties participated in a mediation in an unsuccessful attempt to resolve both appeals by agreement.

The claim for indemnity costs in Mr Hunter’s appeal

22    It is convenient to address at the outset the Respondent’s claim for indemnity costs in Mr Hunter’s appeal. The claim is based on a letter from the Respondent’s solicitors to Mr Innes’ solicitors dated 5 June 2013. The Respondent sought to characterise this letter as a Calderbank offer, namely, an offer of the kind attracting the principles discussed in Calderbank v Calderbank [1975] 3 All ER 333.

23    Rule 40.01 of the FCR provides (relevantly):

40.01    Party and party costs

If an order is made that a party or person pay costs or be paid costs, without any further description of the costs, the costs are to be costs as between party and party.

As can be seen, an order for costs is to be regarded as an order for costs as between party and party unless the Court makes some additional order. The Respondent did not, when judgment was delivered and the costs orders were made, seek costs other than on a party and party basis. Prima facie, this makes inappropriate the Respondent’s present application to have its costs in Mr Innes’ appeal assessed on a different basis.

24    It may be arguable that, despite this circumstance, r 40.02 permits the Respondent’s present application for indemnity costs. We consider that it is unnecessary to express any view about that, as it is plain that the application for indemnity costs should be rejected on its merits.

25    A properly framed Calderbank letter (by which we mean a letter making an offer in settlement of an action accompanied (at least usually) by an indication that the offering party will rely upon the letter in relation to costs should that become necessary) may give rise to a circumstance in which it will be appropriate for the Court to depart from the usual position that costs be paid on a party and party basis. In that circumstance, the Court has regard, in particular, to whether the recipient party’s refusal of the offer was unreasonable.

26    Ms Dransfield deposed that, on 15 January 2013, the Respondent had received a draft Statement of Claim from Mr Innes’ solicitors. We infer that this was provided with a view to exploring the potential for a negotiated settlement before the commencement of proceedings. The Respondent’s solicitors responded to that letter on 5 June 2013, having made investigations about the matters raised in the draft Statement of Claim. The letter set out at some length why it was considered that Mr Innes’ claim would fail, and concluded with the statement:

In the circumstances, our client does not consider it appropriate for Mr Innes to commence proceedings of the kind foreshadowed in your letter. Our client reserves its right to rely on this letter in respect of any application for indemnity costs if proceedings are commenced.

27    We make two observations about this letter. First, it did not contain any offer of settlement of the kind discussed in Calderbank v Calderbank and in the cases which have applied the principle. The letter was in substance no more than a response to Mr Innes’ foreshadowed claim.

28    Secondly, it is commonplace for a prospective respondent to articulate before the commencement of proceedings a basis upon which a foreshadowed claim will be defended. That circumstance has not been regarded in the authorities as a reason, by itself, for departing from the usual rule as to costs. We would not wish to foreclose the possibility that there may be a case in which an applicant, who has been informed of the basis upon which a foreshadowed claim will be defended, persists so unreasonably and/or imprudently in commencing and pursuing the claim that a departure from the usual rule as to costs may be appropriate. However, such cases are likely to be rare. The Respondent did not suggest that circumstances of this kind pertained in Mr Innes’ case (and given the differing views on the Court as to the fate of his appeal, it would have been difficult to do so). As we have said, the exchange of correspondence upon which the Respondent relies amounts to no more than an articulation of a claim followed by an articulation of a defence.

29    Accordingly, the Respondent’s claim for indemnity costs in the case of Mr Innes is refused.

The costs claimed

30    The costs claimed by the Respondent in the two appeals (exclusive of GST) are as follows:

31    While this table separates counsel fees from the other disbursements, the Respondent claimed those fees as part of the overall disbursements incurred in connection with the appeals.

32    Ms Dransfield deposed that, in relation to Mr Innes’ appeal, the solicitors’ fees of $125,581.13 had been derived by applying an hourly rate calculated by reference to cl 1.1 of Sch 3 to the FCR (Costs allowable for work done and services performed), and then applying a discount of 15%. The solicitors’ fees claimed in relation to Mr Hunter’s appeal have been calculated in a like manner. No discount had been applied to any of the disbursements (including counsel fees) incurred in relation to either appeal.

33    Ms Dransfield deposed that account has been taken in the Respondent’s claims for costs of the work and disbursements which were common to both appeals. In her affidavit filed in support of the costs in relation to Mr Innes’ appeal, she deposed:

Separate files and cost records (for both solicitors’ fees and disbursements) were maintained for each of the two Appeal Proceedings and any work which was common to both appeals was shared and split evenly across the matters. Thus the costs incurred by AAL and sought in this application relate only to the Appeal Proceedings and not to the Hunter Appeal Proceedings.

The affidavit which Ms Dransfield made in support of the costs claimed in Mr Hunter’s appeal, contains a counterpart paragraph expressed in (relevantly) identical terms. This means that neither Mr Innes nor Mr Hunter would be entitled to an offset in respect of his liability if the Respondent recovers all of the costs ordered to be paid by the other.

34    The effect is that the Respondent is seeking lump sum costs of just under half a million dollars. This is an astonishingly large amount for two appeals which were heard together over two and a half days. It indicates that close attention is required to the constituent elements of the two claims.

Should lump sum orders be made?

35    Both Appellants submitted that the making of lump sum orders was inappropriate. This was so, they submitted, because on the evidence, the Court could not be satisfied as to the fairness and reasonableness of any lump sum amount.

36    Despite that opposition, we consider that it is appropriate to proceed with the lump sum assessment. This will achieve the advantages to which the authorities have referred. Further, we consider that the parties have provided sufficient detail to permit the Court to make assessments on a lump sum basis.

The assessment of the lump sums

37    The Dictionary in Sch 1 of the FCR defines “costs as between party and party” to mean only the costs that have been “fairly and reasonably” incurred by the party in the conduct of the litigation. The assessment of whether claimed costs should be so characterised should take account of a number of factors, including the nature and complexity of the litigation, the conduct of the parties in the litigation and the requirements of the Court. Proportionality is an important consideration.

38    In the present case, a number of matters indicate that the costs claimed by the Respondent cannot be regarded as fair and reasonable.

39    First, there is the nature of the litigation in which the costs were incurred. These were appeals in which, subject to a qualification to be mentioned later, the parties were represented by the same solicitors and the same counsel who had conducted the trial. Those legal representatives must have been familiar with the issues raised by the grounds of appeal, as well as the evidence and law concerning them. This was not litigation in which the legal representatives had to commence a fresh analysis of the issues, the law or the evidence. In this respect, we note that Ms Dransfield has deposed that the retention of trial counsel who were familiar with the subject matter of the proceedings “ultimately delivered significant cost savings”. That is as one would expect. However, it is not readily apparent that account has been taken of this consideration in the formulation of the Respondent’s costs claims.

40    Secondly, although involving two separate actions, the two appeals proceeded substantially as one. As already noted, there was a single appeal book and there was a single hearing. There was substantial overlap between the grounds in the two Notices of Appeal. Some indication of the extent to which the two appeals raised common or similar issues is seen in [54] of the reasons in which the majority identified the issues to be determined on the appeal. Another indication is seen in the Outline of Submissions which the Respondent provided for the appeal hearing. Six paragraphs concerned Mr Innes’ appeal and eight paragraphs the appeal of Mr Hunter. The remaining 65 paragraphs were common to both appeals. This means that costs should not be awarded on the basis that the appeals were conducted as free standing actions. Yet the size of the costs claimed suggests that the Respondent’s formulation has been made on this basis.

41    Thirdly, there is the Respondent’s status in the appeals. As the Respondent, it did not have the primary carriage of the appeals. Amongst other things, it did not have to incur the costs of preparing the appeal books or attend to payment of the Court hearing fees. One would expect therefore that the work which was necessary and reasonable for it to perform would (putting to one side the Notice of Contention) be less than that which was necessarily required of the solicitors for the Appellants.

42    Fourthly, while the Court was much assisted by the submissions of Mr Walker SC, we are not satisfied that the costs incurred by the Respondent in retaining him were incurred fairly or reasonably. Mr Walker was retained only to present the argument raised by the Respondent’s Notice of Contention concerning the limitation issue and he appeared only at the hearing on 17 November 2016. Ms Dransfield deposed that Mr Walker had been briefed because of his familiarity with the subject matter arising from his involvement as counsel in Commonwealth of Australia v Cornwell [2007] HCA 16; (2007) 229 CLR 519 and Innes v Commonwealth [2015] ACTA 33. However, there is no apparent reason why the submissions on the Notice of Contention could not have been presented by Mr Lockhart SC and Mr Colquhoun. They had made the submissions on the limitation of actions issue at trial and had been prepared to present the submissions on the issue at the hearing on 8 and 9 August 2016. Had the Court been able to complete the hearing on these days, they would have done so. There has been no suggestion that Mr Lockhart SC and Mr Colquhoun were not able to present that argument. In those circumstances, we do not accept the Respondent’s submission that the limitation issue “demanded specialist knowledge” making reasonable the retention of Mr Walker SC. We disallow the whole of the fees incurred by the Respondent in retaining Mr Walker SC. This includes the disbursement to Mr Walker in respect of his fees and the solicitors’ costs in retaining him.

43    Fifthly, with respect to counsel fees, we note that Mr Lockhart SC and Mr Colquhoun charged daily rates of $9,000 and $3,750 respectively. The rate charged by Mr Lockhart exceeds the range of fees for senior counsel contained in this Court’s National Guide to Counsel Fees (the Guide) for a fee on brief ($2,100-$7,650), whereas Mr Colquhoun’s rate is towards the middle of the range for junior counsel ($1,275-$5,100). Mr Lockhart’s fees also exceed the alternative daily rate range of fees in the Guide ($2,060-$6,400) and Mr Colquhoun’s rate is at the upper end of the equivalent range for junior counsel ($900-$4,200).

44    Using the rates charged, it can be seen that Mr Lockhart SC has charged for the equivalent of about five and a half days in relation to each appeal (total 11 days). Mr Colquhoun has charged for about 9.4 days for each appeal (total 18.8 days). While we do not doubt that Mr Lockhart and Mr Colquhoun devoted time of this order to the appeals, we do not accept that such time was fairly and reasonably required, or that it should be remunerated on a party and party basis at the rates claimed. Some of the time for preparation for a hearing is encompassed by the fee on brief and refresher fees. But more fundamentally, both counsel were counsel at trial and can be taken to have been familiar with the issues, evidence and the applicable law. Further, the material for the appeals was not voluminous. Part C of the Appeal Book common to both appeals comprised a single volume of modest proportions.

45    Based on the Court’s own experience, we would have thought that approximately 7-8 days in total would be a fair and reasonable assessment of the time required for both senior and junior counsel for these appeals. That time would include counsels’ preparation and settling of the outlines of submissions filed in each case and their participation in the mediation.

46    Sixthly, we are satisfied that the Respondent’s claim with respect to its solicitors’ fees cannot be regarded as fair and reasonable. The Respondent’s solicitors provided a breakdown of the work done by members of its firm, the principal elements of which are as follows:

47    In addition to the hours set out in these columns, work was performed by other members in the Respondent’s solicitors’ firm, but the hours involved were modest (totalling 5.6 hours in Mr Innes case and 4.4 hours in Mr Hunter’s case) and need not be detailed separately.

48    The hours performed by Ms Dransfield in relation to the two appeals total 220.17, the hours of the first Associate total 349.8, and the hours of the second Associate total 68.8. Overall, the Respondent’s claim is that its solicitors spent 649.3 hours on the two appeals.

49    Ms Dransfield set out in her affidavits the categories of work performed by the solicitors.

50    In relation to Mr Innes’ appeal, the categories of work and Ms Dransfield’s estimate of the proportion of total costs claimed for each category are set out in the following table:

51    In relation to Mr Hunter’s appeal, the estimated proportions of total costs for each category are identical to those given in relation to Mr Innes’ appeal.

52    Although Ms Dransfield has described the proportions as estimates, we note that each is given to one decimal point.

53    Applying Ms Dransfield’s estimates to the hours set out earlier, it is apparent that the Respondent claims in relation to the two appeals, some 76.6 hours of solicitors’ time for “corresponding and dealing with clients”, some 50 hours for “reviewing client and other documents”, some 116 hours for “attendance on counsel and preparing briefs”, some 63.6 hours for “conferring with the Appellant regarding appeal book index and preparation of appeal books”, some 76.6 hours in “correspondence with Appellants’ lawyers”, some 60.4 hours in “preparing for hearing”, some 104.5 hours in “preparation of submissions and chronology” and some 51.3 hours for “preparation at mediation”. It is not necessary to quantify the hours for the remaining claimed categories of work as these are of smaller proportions.

54    Of course some work by the solicitors was reasonably necessary for the proper defence by the Respondent of the appeals. However, it is just not realistic, having regard to the matters identified earlier, to think that the amount of work claimed by the Respondent’s solicitors as just summarised was fairly and reasonably required in connection with the appeals and the mediation so as to warrant the Appellants having to meet its cost. Even allowing for some concurrency, based on a 40 hour week, the Respondent is claiming that each appeal required the equivalent of eight weeks of solicitors’ work, and that together they required 16 weeks’ work. Those figures have only to be stated for their unreasonableness to be apparent.

55    In our view, the hours claimed for each category or work summarised above are excessive when one has regard to the nature of the litigation and the object of achieving the just resolution of disputes according to law but “as quickly, inexpensively and efficiently as possible” – see s 37M(1) of the FCA Act.

56    We mention in particular the claim that some 104.5 hours (on the basis of a 40 hour week, the equivalent of 2½ weeks) was devoted to the preparation of submissions and chronologies. Plainly, this is an excessive amount of time for these tasks. Normally, the Court would expect outlines of submissions to be prepared by the counsel who will present the submissions. The preparation of an outline is an incident of counsel’s preparation work. While solicitors may have some involvement, the work they do in preparing an outline will usually be much less than that of the counsel retained in the matter. We have taken account of the time needed for the preparation of outlines of submissions in the present appeals in the assessment of time which we consider fair and reasonable for counsel to have expended, on a party and party basis, as indicated above.

57    We accept that counsel may have requested the solicitors to prepare the chronologies. However, in the context of an appeal, this is usually a straightforward task. We would expect also that the preparation of the chronologies would have replicated work already performed in relation to the trial.

58    Some indication of the lack of proportionality in the Respondent’s claims is seen by comparing them with the costs incurred by Mr Innes and Mr Hunter. Ms Shoemark has deposed that the Appellants incurred costs (exclusive of GST) as follows:

59    We understand the disbursements in each case to include counsel fees.

60    The significant disparity between these costs and those claimed by the Respondent is readily apparent.

61    The Respondent submitted that any comparison of its costs with those incurred by Mr Innes and Mr Hunter is inappropriate, because the Court had not been provided with the primary records of the amounts constituting the costs to which Ms Shoemark referred. We accept that that is so, but note that the Respondent has not provided primary records either. We accept, however, that the Appellants have not provided the Court with particulars of the derivation of the costs figures set out above.

62    Having regard to our own experience and to the same matters concerning the nature of the litigation mentioned earlier, we would regard the costs incurred by Mr Innes and Mr Hunter as being at the top end of the range of costs assessed on a solicitor and own client basis to be expected in litigation of the present kind.

Miscellaneous matters

63    The appeal was commenced in the Registry of the Court in the Australian Capital Territory. This meant that, in accordance with the usual practice of the Court, the appeals would be heard in Canberra (as had the trial).

64    The Respondent submitted that it should be entitled to recover the costs of its solicitors and counsel travelling from Sydney (where they are based) to Canberra as well as their accommodation while in Canberra for the purposes of the appeals. However, the Respondent did not seek to show that there were not available solicitors and counsel in Canberra with the competence and experience to conduct the appeals. In those circumstances, we do not consider that the travelling, accommodation and taxi expenses incurred by the Respondent should be regarded as having been incurred fairly and reasonably. The fact that the Respondent’s solicitors had sought the agreement of the Appellants to the appeals being heard in Sydney does not alter that conclusion.

65    For similar reasons, we do not regard the costs of office hire incurred by the Respondent during the hearing in August as being a fair and reasonable expense.

66    The Respondent has not identified any basis upon which it was reasonably necessary for it to incur expert consultant fees in relation to the appeals. We do not allow that item.

67    The Respondent claims a total of $4,272.91 for in-house photocopying and printing. At $0.30 per page (which is a very reasonable rate for bulk photocopying), that represents over 14,200 pages. We do not accept that the copying or printing of that order could fairly and reasonably have been required, especially as the Appellants had the responsibility for preparation of the appeal books. We allow a total of $1,000, noting that, at $0.30 per page, this represents some 3,300 pages.

Assessment

68    For the reasons set out earlier, based on our experience with appeals together with a comparison of the costs incurred by the Appellants, we consider that the solicitors’ hours which could fairly and reasonably have been required in relation to these appeals would not exceed 130. At eight hours per day, this is equivalent to 16.25 days of work. As an indication of reasonableness, we note that this number of days exceeds the time which we would allow for both counsel.

69    We apportion 70% of the hours to an Associate and 30% to a solicitor at Partner level.

70    Ms Dransfield indicated in her affidavit the hourly charge rates which the Respondent’s solicitors had applied to her work and for the two Associates. Those rates had been effectively reduced having regard to the rates set out in Sch 3 to the FCR and, as noted earlier, the Respondent’s solicitors had then applied a further discount.

71    We allow solicitors’ fees as follows:

72    The rate for the Associate is an average rate which we consider reflects appropriately the years of experience of the persons involved. We apportion the sum of $42,250 equally between the two appeals.

73    In relation to counsel fees, we consider that eight days is appropriate for both senior and junior counsel. Accordingly, we allow $50,000 and $24,000 respectively, making a total of $74,000. We apportion this sum equally between the two appeals.

74    We award disbursements as follows:

75    All of these amounts are exclusive of GST.

Summary

76    For the reasons set out above, in relation to Mr Innes’ appeal, we order Mr Innes to pay the Respondent a lump sum of $61,548.47, comprised as follows: solicitors fees $21,125, counsel fees $37,000 and disbursements $3,423.47.

77    In relation to the appeal by Mr Hunter, we order Mr Hunter to pay lump sum costs to the Respondent of $61,548.47, which sum is comprised in the same way as is the lump sum in the case of Mr Innes.

78    As noted at the commencement of these reasons, the Respondent sought a payment of $10,000 from each of Mr Innes and Mr Hunter in respect of the application for lump sum costs. It has not provided any particulars of the way in which that lump sum has been calculated. Having regard to the relatively straightforward way in which the claims for lump sum costs were made, we regard this sum as excessive. We allow $2,500 in each case, together with the Court fees associated for the filing of the respective interlocutory applications.

Associate:

Dated:    15 August 2018