Federal Court of Australia

Pekar v Jess (Trustee) (No 3) [2021] FCA 466

ORDERS

THE COURT ORDERS THAT:

1.    The Certificate of Taxation issued in VID81/2017 be set aside and in lieu thereof the Respondent be awarded his costs in the sum of $11,693.05.

2.    Subject to Order 3 the Respondent pay the Applicant’s costs of this application in the sum of $2,000.00.

3.    If either party seeks an order in the alternative to that provided for in Order 2 they must file and serve submissions in support limited to no more than 2 pages no later than 4:00pm on 12 May 2021. A party wishing to file any responsive submissions limited to no more than 2 pages must do so no later than 4:00pm on 19 May 2021. The Court will determine that question on the papers.

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

REASONS FOR JUDGMENT

KERR J:

1    These reasons concern an application for review of a taxation of costs by a Registrar of this Court brought by the Applicant, Ms Pekar. This matter has required the Court not only to give attention to the merits of Ms Pekar’s application but also the nature of the jurisdiction engaged when such a review is sought. The unfortunate and complex circumstances in which this application has come before the Court (which justify no criticism of the Registrar) are set out below.

2    I have concluded that Ms Pekar’s application must succeed but only to a limited extent.

Background

3    Ms Pekar’s application arises in the aftermath of two proceedings: proceeding MLG932/2015 in the Federal Circuit Court of Australia, and proceeding VID81/2017 in the Federal Court of Australia. The latter proceeding was an appeal brought by Mrs Pekar from the decision of Judge Burchardt in MLG932/2015.

4    No costs orders had been made in proceeding MLG932/2015. However, on 30 May 2017, Justice Tracey in proceeding VID81/2017 dismissed Ms Pekar’s appeal. His Honour made orders requiring Mrs Pekar to pay the Respondent’s costs both in the appeal and in proceeding MLG932/2015.

5    On 31 January 2018, the Respondent’s solicitors (Rothwell Lawyers) lodged for filing a single bill of costs applying to both matters. The Registry did not permit the filing of that bill of costs, on the basis that it impermissibly had combined the Respondent’s costs in proceedings VID81/2017 and MLG932/2015. The relevant correspondence is exhibited (as TPR-1) to the affidavit of Ms Tracey Rothwell dated 17 October 2020 as read in these proceedings. In that correspondence the Respondent was informed that their bill in the form it had been lodged could not be assessed or taxed. It had been “laid aside”. The Respondent was advised as follows:

A separate bill will need to be filed in each proceeding confined to the costs incurred in that proceeding only.

6    On 22 October 2018, in purported or intended compliance with that direction the Respondent’s solicitors filed separate bills of costs in each proceeding. Unfortunately although separate bills were filed no or insufficient attention had been given to the need to separate out and confine the charges to be costed against the two proceedings. Each of those bills included a not insignificant number of duplicated charges for the same legal services that had been rendered.

7    By way of correspondence dated 13 January 2019 and 12 March 2019, a taxing officer gave notice (in accordance with r 40.20(3) of the Federal Court Rules 2011 (Cth)) to the parties of estimates of the approximate totals for which certificates of taxation would be likely to issue in each proceeding.

8    In those circumstances, Mrs Pekar raised various objections in relation to the Respondent’s bills of costs. Relevantly, the principal basis on which she objected was that there had been duplications across the two bills such that they were not each “confined to the costs incurred in that proceeding only”.

9    Orders were made in the taxation for a timetable for objections and responses in proper form. It is uncontentious that those orders were not complied with. The Applicant filed further correspondence alleging fraud. The Respondent for its part indicated that it was content to rely on the estimates and did not seek to make responsive submissions.

10    With the consent of the parties (Ms Pekar earlier having made an express request that the taxation be determined on the papers) and having regard to the then COVID-19 restrictions on attendances in person, Registrar Allaway dispensed with compliance with the rules not only as they prescribed the form in which objections were to be made and responded to but also as they prescribed the manner (in person) in which such a taxation was to be conducted.

11    Registrar Allaway thus conducted the taxation of both bills in the absence of the parties but having regard to the submissions that had been made on behalf of Mrs Pekar.

12    On 20 July 2020, Registrar Allaway’s Legal Case Manager sent Mrs Pekar and the Respondent copies of certificates of taxation in each proceeding that the Registrar had caused to issue on that date. The parties were also provided with a copy of Registrar Allaway’s reasons accompanied by copies of the bills of costs as he had taxed them in each proceeding. Those taxed bills revealed, item by item, the amounts Registrar Allaway had taxed off.

13    With respect to the asserted duplications, Registrar Allaway’s reasons for taxing the bills of costs as he had were as follows:

5.    … On 7 January 2020, Mrs Pekar filed further submissions in which she asserted that the charges claimed in the bill of costs in VID81/2017 duplicated charges in the bill of costs in MLG932/2015 and was therefore misleading and fraudulent.

…

8.    … By letter dated 14 May 2020, Mrs Pekar reaffirmed her position as set out in her submissions of 7 January 2020. Further communications were received from Mrs Pekar on 2 June and 9 June 2020, although they largely repeat submissions raised in her earlier communications or include matters that I consider are not relevant to the taxation. Rothwell Lawyers [the Respondent’s lawyers] subsequently advised my assistant that they would not be filing submissions or affidavits and would rely on the estimates and I note that no submissions or affidavits have been filed on Mr Holden’s behalf.

…

Observations

12.    The marked up copies of the bills indicate the items I have disallowed or reduced on taxation and I do not propose to detail my rulings in relation to each such item. I will, however, make some brief observations about my approach to taxations having regard in particular to the objections and submissions filed by Ms Pekar.

13.    Firstly, I do not accept Ms Pekar’s broad assertion that the charges in the bills are false, fraudulent and misleading. As I have indicated, the costs order made by Justice Tracey in respect of both VID81/2017 and MLG932/2015 remains in force and Mr Holden is entitled to recover his costs in accordance with that order. But as suggested by Mrs Pekar, I have paid close attention to each charge in the bills. When I consider the charge for an item is unjustified or excessive according to the Court’s scale, bearing in mind the costs in this instance are taxed on a as between party and party basis, I have taxed off the charge in whole or in part. As rightly contended by Mrs Pekar, only those costs associated with each proceeding are recoverable, and where I consider an item is not a cost of the proceeding in either instance, I have disallowed it. Examples of charges I have disallowed on this basis are items 375 to 382 and 387 to 498 in MLG923/2016 and items 72 to 77 and 79 to 86 in VID81/2017 …

(Footnotes omitted; emphasis added).

14    The outcome of the taxation, as is reflected in the two certificates of taxation, was that the Respondent was found to be entitled to $14,377.16 for costs and disbursements in VID81/2017, and $61,721.38 for costs and disbursements in MLG932/2015. In proceeding VID81/2017, $14,780.38 had been claimed as costs and $4,076.22 had been taxed off. In proceeding MLG932/2015, $70,152.65 had been claimed as costs and $22,244.22 had been taxed off.

Application for review of taxation

15    On 7 August 2020, Mrs Pekar, who was and remains self-represented but has been permitted to make submissions with the assistance of her husband, filed in proceeding VID81/2017 an application for review of Registrar Allaway’s taxation. In her application, Mrs Pekar challenged “all the items allowed by [the] Registrar” and sought “dismissal of the whole bill” in VID81/2017 on the basis that all costs in that bill duplicated costs in the bill for MLG932/2015. Mrs Pekar filed an accompanying affidavit. Her affidavit did not further illuminate the basis of her application.

16    Mrs Pekar’s application was docketed to me. The parties first came before me for a case management hearing on 8 October 2020. As the file then stood in isolation from any information about matter MLG932/2015 it was impossible for the Court to comprehend what was in issue. To assist in understanding Mrs Pekar’s contentions, the Court on that date made the following orders:

1.    The Applicant file and serve a list identifying each of the alleged duplicated items by reference to the number in which that item appears in the bill of costs in proceeding VID81/2017 and the number in which the allegedly same item appears in the bill of costs in proceeding MLG932/2015, on or before 4:00pm on Thursday 22 October 2020.

2.    The enforcement of costs in proceeding VID81/2017 be stayed until further order.

3.    Liberty to apply.

17    On 13 October 2020, Mrs Pekar filed a list in compliance with Order 1. That list consists of a marked up copy of the bill of costs for proceeding VID81/2017. It matches each cost claimed in that proceeding to a claim number in the bill of costs for proceeding MLG932/2015. By way of example, the first row is as follows (formatting altered for the purposes of this judgment):

18    On 6 November 2020, Mr Jack Blaskovic of Rothwell Lawyers filed an affidavit on behalf of the Respondent. The affidavit simply exhibited the copies of the marked up bills of costs in each matter (as identified where items had been taxed off) that Registrar Allaway had made available to the parties on 20 July 2020. It did not descend to further explain the position.

19    On 6 November 2020, the parties came before me for a further case management hearing. I indicated to Mr Blaskovic who then appeared for the Respondent that the import of his affidavit was not clear. Mr Blaskovic then conceded that the items on Mrs Pekar’s list did “appear to be replicated in both bills”. However, he indicated that the Registrar had in almost all instances addressed that issue:

So the import of exhibiting that bill, your Honour, being that it wouldn’t be in this proceeding, it would be only in the – before the 2015 proceeding, is that there has not been – there has been no duplication, your Honour. The items that Mr Pekar alleges were duplicated were taxed off in their entirety from the first proceeding bill – and the certificate of taxation that was signed by Registrar Allaway in that proceeding was done so and the amount that was arrived at does not include any of those amounts – or, at least, that’s how the marked up bill of costs provided by the registrar appears.

…

Your Honour, I was just going to mention, just so as to not mislead the court, all but three items were … taxed off in their entirety.

20    I indicated to Mr Blaskovic that those matters would need to be addressed in an affidavit. I ordered, inter alia, that:

2.    On or before 4:00pm on Friday 27 November 2020, the Respondent file and serve (by way of Australia post to the Appellant’s address for service in these proceedings) on the Appellant an affidavit disclosing fully all of the circumstances whereby orders for the assessment of costs were sought, contended for and obtained in these proceedings, including to the extent necessary to address the Appellant’s case that costs so assessed were double charged explaining how an assessment of costs was sought, contended for and obtained in proceeding MLG932/2015.

21    On 17 November 2020, two affidavits were filed on behalf of the Respondent.

22    The first was an affidavit of Ms Tracey Rothwell dated 17 October 2020, which I was informed had earlier been filed in proceeding MLG932/2015. That affidavit has been read as evidence in this review. In it Ms Rothwell addresses the circumstances in which the Respondent had filed the two separate bills of costs containing duplications. Ms Rothwell deposes that in view of the orders made by Tracey J on 30 May 2017 she had engaged a costs consultant to prepare a bill in taxable form. After the single combined bill had been rejected for filing, she had instructed the same costs consultant to prepare two separate bills. She relevantly deposes that:

13.    … [i]t took some months for [the costs consultant] to prepare the Bills due to the complexity of the format the Federal Court requires for Bills of Costs. I don’t intent to exhibit any email correspondence passing between myself and [the costs consultant], on grounds that this correspondence is privileged and so not relevant to the application on foot.

23    The second affidavit was an affidavit of Mr Blaskovic dated 17 November 2020 that exhibited a table. The table identifies each item claimed in the bill of costs for proceeding VID81/2017, and what Mrs Pekar’s list had identified as a duplicated item claimed in the MLG932/2015 bill. The table then identifies whether the duplicated item had been taxed off in either proceeding. By way of example, the first row of the table is as follows (formatting altered for the purposes of this judgment):

24    Mr Blaskovic deposes that the table demonstrates that:

9.     … there are only 3 instances where “the same item” was allowed in both bills. Item 7 demonstrates that an allowance was made for perusing the letter from Counsel in both actions. Item 120 demonstrates the Registrar allowed one letter on each file to instruct the costs consultant to draw the bill. Item 121 demonstrates that one allowance was made to deliver each file to the costs consultant to draw the respective bills. The Trustee submits that allowance of the three items in both bills is a proper exercise of discretion.

25    As to the circumstances in which two bills containing duplications had been submitted for taxation, Mr Blaskovic deposed only as follows:

4.    I refer to an affidavit sworn by Tracey Pauline Rothwell on 17 October 2020 in the 2015 Proceeding. The deponent provides an account of the events regarding the filing of bills of cost in taxable form in both proceedings. Insofar as it is required, I seek leave on behalf of the trustees to file and rely on this affidavit in this proceeding.

5.    The circumstances regarding the filing of the bills of cost in both proceedings are also concisely set out in paragraph 3 of Registrar Allaway’s Taxation Decision in Exhibit JMB 3.1

26    Both of the above affidavits were later read into evidence in the review.

27    Mindful of the allegations of fraud pressed by the Applicant at a further case management hearing I directed that the Respondent file further affidavit material as would explain the circumstances in which two bills of costs containing duplications had been prepared and filed. With respect to the claim of legal privilege Ms Rothwell had made, I indicated that:

… facially, there would appear to be none as would prevent compliance with the orders of the Court as would fully disclose the circumstances whereby orders for the assessment of costs were sought, contended for and obtained in these proceedings.

28    On 21 December 2020, in response to that direction the Respondent filed a further affidavit of Ms Rothwell dated 15 December 2020 exhibiting the email correspondence that had passed between the Respondent and the costs consultant after the Registry had declined to accept a single combined bill of costs and had advised that two separate bills were required. That correspondence was as follows:

    On 7 June 2018, a paralegal at Rothwell Lawyers emailed the costs consultant as follows:

Hi Sergey,

Back last year we got you to do a bill on the above file. The taxing registrars have interpreted as the filed needs to be split in two as in accordance with the files.

I attach a copy of the bill of costs.

    On 7 June 2018, the costs consultant responded as follows:

Dear Amanda

I do not understand your reference to “split into 2”.

I drafted the bill of costs as per instructions from your office. If any further work needs to be done, please note, that I will have to charge $250.00 per hour, not sure how many hours it will take, as I do not have proper instructions as to what needs to be done.

Secondly, I am on leave from 23 June till 19th July and is not [sic] in a position to do anything prior to 23 June because of current work load.

    On 8 June 2018, the same paralegal emailed the costs consultant as follows:

Apologies Sergey, that wasn’t overly clear.

The Court has requested that the bill be split into two in accordance with the two separate proceedings. Even though the files were the same, there were 2 separate proceedings.

I have CCed Tracey into this email who will be able to explain it better.

29    As to the absence of any further correspondence, Ms Rothwell deposed as follows:

7.    I have caused searches of Rothwell Lawyers file to be conducted by my staff. Save for the email chain identified as TPR3, there is no further correspondence on file with Mr Sizenko [the costs consultant] concerning the Bills of Costs which would enable myself to answer His Honour’s query.

8.    I believe the redrafted bills were collected from Mr Sizenko when my staff attended to collected (sic) my file. This would explain the absence of any further emails.

30    Ms Rothwell was not required for cross examination and that affidavit was read as evidence in the review.

Allegation of fraud and other allegations

31    Mrs Pekar’s initiating application for review (and her accompanying affidavit) refers only to the issue of duplication. However, in her later filings she raised other concerns including the allegation of fraud which she had frontally advanced on the taxation.

32    In her written submissions filed on 25 November 2020, Mrs Pekar contends that the matter before the Court is whether the conduct of the Respondent or its representatives constitutes fraud and/or professional misconduct. She submits that in view of the obvious duplications and her having advised the Respondent of that issue prior to the taxation, it can be inferred that Rothwell Lawyers had fraudulent intent. She indicates as follows:

8.     I also wanted to make clear to this court, that I seek orders not mentioned in the original application in accordance with rule 1.32 of the Federal Court Rules 2011 due to the seriousness of the offences committed by “ROTHWELL LAWYERS” and the effect it had on me.

33    In those written submissions, Mrs Pekar refers to numerous other concerns regarding items in the bill in proceeding VID81/2017 unrelated to the alleged duplication. She submits that:

16.    …the bill is full of deceptive charges overlooked during the taxation process by Registrar ALLAWAY which had to be taxed off, on the bases, that they are not related to the proceeding, or deceptive.

34    Those matters alleged were as follows:

17.     Before I will outline those cost I wish to drew the courts attention to the following facts

FIRSTLY - the court must be aware, that I was not a bankrupt, was never involved in any way to the bankruptcy of my husband FIMA PEKAR, therefore all cost allegedly related

to the question of the bankruptcy or annulment of the bankruptcy had to be taxed off they had no relation to me or the proceeding.

SECONDLY- I was not legally represented and yet, the bill contain numerous charges for contacts with KCL LAW despite the fact, that I was not legally represented by any lawyers.

18.    The proceeding was finalized by an order by JUSTICE TRACEY on 30.05. 2017, after which no charges for cost related to the proceeding could be made, which was not the cases

(i)    The bill contain 54 charges appearing in the bill under numbers 67 to 121 totaling $3,389,00 for charges allegedly incurred long after the proceeding was finalized.

(ii)    The bill has 8 charges totaling $372 under numbers 1,6,17,20,25,33,36,62, from the former trustee MR. Holden related to matters of bankruptcy or annulment of the bankruptcy of my husband which have nothing to do with me or the proceeding, and had to be taxed off.

(iii)    The bill has 5 charges under numbers 17,22,23,24,27, totaling $416 arising from alleged contacts with "Foreman business centre" who was not plying any part in the proceeding, and had to be taxed off.

(iv)    The bill has 8 charges under numbers 10,11,13,14,19,35,38,67 totaling $490 which had to be taxed off, arising from alleged contacts with "RICKARDS LEGAL" who was a creditor in my husband bankruptcy, and had nothing to do with the proceeding or me, and had to be taxed off, I repeat I was not bankrupt.

(v)    The bill has 9 charges under numbers 7,8,9,34,39,40,51,54,55, totaling $178 for letters from counsel, which had to be taxed off, no counsel was acting in the proceeding

(vi)    The bill has a charge under number 61 for $576 for Perusal of a letter from my husband FIMA PEKAR, no such letter was ever send, and the charge had to be taxed of

(vii)    Letter from my husband to the trustee under num.28 for $96 which has nothing to do with me or the proceeding, and had to be taxed off

(viii)     The bill has charge under num 26 for $580, for attendance before JUSTICE TRACEY on 21.03.2017 which is false, it was no hearing on 21.03.2017, it was a direction hearing on 20.03.2017 one day yearly and the charge for it appears separately under number 15 of the bill, which proves a double charging and had to be taxed off.

19.    In summary the bill contain 87 false and misleading charges totaling (sic) $6097,00 outlined by me in par 15( I -viii)

20.    False claims by "ROTHWELL LAWYERS" related to disbursement cost

(I)    Claim under number 8 for $1750,00 related to alleged counsel advice, is false, no counsel was involved in the proceeding, the alleged advice has been never presented to court, and the substance of the alleged advice is not know not to the court or to me, and therefore had to be taxed off

(II)     Claim under number 9 for $1508,00 for alleged payment to cost assessor is also False, under section 191 of the Victorian Legal profession uniform application act 2015, such bill must be provided free of charge, a legal practice is prohibited to charge for such a bill, and the cost had to be taxed off.

(III)    Loading fees in the sum of$ 1927,88 must be also taxed off as wrongly calculated and had to be taxed off

21.    Therefore in conclusion , the whole bill is nothing but "Fraud" , the real cost arising from the proceeding VID 81/2017 must be not $12,852,50 allowed by the tax master but$12,852 --$ 6097,00 false and misleading charges--$ 3258,00 falsely claimed in disbursement cost --$1927,88 wrongly calculated loading fee, which brings the true amount to$ 1569.62, plus 15% lading fee which is $235,35 plus $450 courts fees all together $ 2254,97 not $18,453,38 which "ROTHWELL LAWYERS" claimed

35    I listed Mrs Pekar’s application for hearing on 21 April 2021.

The nature of the hearing

36    On 16 March 2021 a Full Court of this Court gave reasons in Bechara v Bates [2011] FCAFC 34 (Bechara) in which it reaffirmed that there is a constitutional imperative requiring that a review of a registrar’s decision be undertaken de novo.

37    On 29 March 2021 my Associate communicated with the parties as follows:

Kerr J has asked me to draw your attention to the recent decision of the Full Court of the Federal Court of Australia in Bechara v Bates [2021] FCAFC 34 (16 March 2021). That decision makes it clear that in a review of a decision of a Registrar the whole issue determined by the Registrar comes back before the Court for judicial determination. For that reason the proceeding is necessarily prosecuted by the party having the onus of establishing a disputed entitlement—in this instance the Trustee in respect of his claimed entitlement to costs. For that purpose the Court will have regard to the original materials as were in evidence before the Registrar and any additional evidence adduced in the review.

Kerr J advises that in planning for the hearing the parties should expect to be heard in the following order: (1) The Trustee will open the Respondent’s case and will adduce any further evidence upon which the Trustee seeks to rely; (2) The Applicant (Mrs Pekar) will open her case and adduce any further evidence upon which she seeks to rely; (3) The parties will then be entitled to make submissions (in the same order) with the Trustee having a right of reply. If necessary the Court will impose time limits on those submissions.

Any application for Mr Pekar to represent Mrs Pekar in the hearing will be determined at the outset.

38    In response the Respondent filed written submissions that Bechara was to be distinguished on the basis that the decision of a taxing officer was not an exercise in delegated judicial power (at [27]) and that both its exercise and upon review the process was subject to the strict constraints provided for in the Federal Court Rules 2011.

39    I put to one side the inconvenient fact that in these proceedings at the outset Registrar Allaway, by consent, had dispensed with those strict requirements. In any event, at the outset of the hearing, having heard from Mr Lapirow on behalf of the Respondent by reference to those submissions, I rejected, for reasons I then indicated I would later give, that Bechara was open to be distinguished. These are my reasons.

40    Mr Lapirow is correct that in Australian Coal and Shale Employees Federation v Commonwealth (1953) 94 CLR 621 Kitto J had rejected the necessity for a de novo enquiry. However the jurisprudence since enunciated by the High Court with respect to Ch III of the Constitution has greatly evolved beginning with the landmark decision in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 267. It involves no disrespect to Kitto J to acknowledge that some propositions his Honour articulated in 1953 must now be viewed as superseded.

41    In that regard it is uncontentious that pursuant to r 40.32(2) a certificate of taxation, once it has been sealed, has the force and effect of an order of the Court. It is that factor which invokes the constitutional imperative that a decision having such force and effect must be subject to de novo consideration by a judge of the Court.

42    I acknowledge that the authorities that were referred to me by Mr Lapirow reveal that the nature of a review of a taxation decision in the past has been the subject of differences in view as between single judges of this Court. It is unnecessary to explore those differences. None of the single judge cases cited by Mr Lapirow in support of the proposition that a de novo hearing is not required were decided after the decision in Coshott v Crouch [2017] FCAFC 135 (Coshott) in which Allsop CJ spoke on behalf of the Full Court in relation to a review of a registrar’s decision on a taxation as follows;

41.    The circumstances in which his Honour was placed by the appellants was that they did not participate in the proceedings before the Registrar. Nevertheless, the proceeding before the primary judge was a de novo review of the Registrar’s determination, as his Honour, on a number of occasions, made clear he understood. A de novo review is conducted on the record that was before the earlier decision-maker, supplemented by any further materials propounded legitimately by the parties and admitted by the court conducting the review. In conducting a de novo review, the Court undertakes the decision-making process afresh, but in the context and understanding of the matters to which I have already referred.

43    That a review of a decision of a Registrar (as taxing officer) must be determined on review de novo does not render irrelevant what the rules, if not waived, may have confined the original dispute to, nor does it disentitle a judge on such a review from giving significant regard to the decision of a taxing officer and being alive to the caution appropriate before a court will interfere with a registrar’s decision: see Coshott at [44]. Thus the Chief Justice in reasoning concurred in by Kerr and Farrell JJ, stated:

48.    Although demonstration of error is not a precondition in a de novo hearing, if no plausible reason of principle or error of calculation has been articulated and there is material which enables a Registrar and a Judge on review to assess it (as Bromwich J did here), both the interests of justice as between the parties and the efficient utilisation of the resources of a Court require rejection of any submission that it is the duty of a Judge conducting a review of a Registrar’s determination either to refer the determination to an expert assessor for a second opinion or himself go through the determination line-by-line as if the Registrar had not undertaken that primary task, unless there is material placed before him that leads to the view that those courses should be undertaken

44    As a single judge I am bound by the reasoning in Bechara and Coshott. I accordingly rejected the submissions that had been advanced on behalf of the Respondent.

The hearing of the review

The issues identified by the Court

45    In the facts of this review the original dispute initiated by Mrs Pekar’s objection to the assessment was not confined by the rules. Those rules had been dispensed with, entirely properly in light of the circumstances, by the taxing officer. I therefore proceeded on the basis that in conducting a de novo review of the taxing officer’s decision I would, at the threshold, require Mr Lapirow to address three groups of items in the Respondent’s bill which, at least on at first impression, appeared to the Court to require consideration.

46    The first group of such items are as referred to in the passage of Mr Blaskovic’s affidavit set out at [24] above in which he deposes that notwithstanding that many items had been duplicated in the two bills that his research had satisfied him that there were only three instances in the same charges had been allowed both in the taxation of MLG932/2015 and this matter. Those were items 7, 120 and 121.

47    I have independently given close attention to the two bills as were submitted in MLG935/2015 and this proceeding and to the various amounts taxed off by the Registrar in each and I am satisfied that Mr Blaskovic is correct in his conclusion that those were the only three items common to the bills and in respect of which the costs claimed in duplicate were not taxed off in one of the two proceedings. I did not take Mr Pekar (whom I had given leave to appear on behalf of his wife) ultimately to dispute that—but in any event I so find.

48    The duplicated items for which costs were allowed in both proceedings are 7 (for perusing a document; $32.00), 121 (letter instructing to prepare a bill of costs; $42.00), and 122 (an attendance to deliver the costs file which I am satisfied, having regard to Exhibit TPR-3 was delivered as a single unit as that was undertaken prior to the court advising that separate bills were required; $33.00).

49    Mr Lapirow submits that it was properly open to the Registrar to have allowed those costs in both proceedings. He submits I should conclude, having regard to the taxing officer’s reasoning as set out in bold at [13] above, that Registrar Allaway had concluded that the Respondent was entitled to charge for those items in both matters.

50    I reject that submission. In my view the more likely explanation is that in the confused state of the bills, in the absence of the parties and unassisted by any detailed analysis on either of their parts to assist him, although the Registrar carefully and diligently applied himself to identifying all of the items which overlapped and had taxed off almost all of those where that had occurred he missed those three.

51    In any event given this is a de novo hearing it is for the Court to apply an independent mind to whether those amounts as were also included in the bill submitted by the Respondent in MLG935/2015 (and neither then nor later taxed off in review proceedings of a like nature in the Federal Circuit Court in respect of MLG932/2015) should now be taxed off.

52    I reject the relevance of Mr Lapirow’s submission that had the Respondent been separately represented in each proceeding those costs could been claimed by each of his solicitors. The Respondent was not separately represented in these proceedings. I am satisfied the Respondent’s lawyers were not entitled to double charge for perusing or delivering the same document(s) on that counter factual basis.

53    I will therefore tax off those duplicated amounts in the sum of $107.00.

54    The second group of items to which I drew Mr Lapirow’s attention were those at 35 ($32.00) and 68 ($64.00). Each of those items appear to relate to the solicitors for the Respondent giving attention to correspondence in respect of different proceedings in which orders were being sought for Mr Pekar to be declared a vexatious litigant (which I note he has since been). Mr Pekar however is not a party to these proceedings—his wife is the Applicant. I put to Mr Lapirow that facially there appeared to be no entitlement to charge Mrs Pekar for those costs. I intend no disrespect to Mr Lapirow in stating that I was unpersuaded his submissions to the effect that some unarticulated and unidentified relationship might justify those items being charged for in these proceedings.

55    I will therefore tax off those amounts in the total of $96.00.

56    The third of what I have referred to as groups of items is in fact a single item in the bill. It appears at Part E Disbursements in which at 9 the Respondent claims for the costs of fees paid to Victoria Legal Costs Assessors for drawing and engrossing a bill of costs. The date referrable to that item is 28 September 2017. It is in the sum of $1,508.00 explained as derived from the bill being 29 folios charged at $52.00 per folio.

57    Having regard to the date I am entitled to infer that item was claimed in respect of the original bill as was later rejected for filing.

58    Mr Lapirow submits that the cost per folio claimed is reasonable and that the taxing officer was entitled to allow that sum: whatever the defaults in it and as may have later been demonstrated in the bills filed later which contained the problematic duplications, the amount was reasonable on taxation.

59    I reject that submission. Mrs Pekar should not have to pay the costs of a bill self-evidently properly rejected for filing. The grounds it was rejected should have been anticipated by any reasonably competent solicitor let alone a firm of cost assessors to whom such a task might be assigned.

60    Mr Lapirow made no submission that an allowance should in any event be made in respect of preparing the later separate bill—no doubt because no such costs were ever claimed—but in any event I reject that such an allowance ought to be made. The two bills later separately submitted were significantly deficient (to put it neutrally) in that the costs claimed in each included a plethora of unjustified items by way of unidentified duplications of the other—which but for the professional and careful way in which Registrar Allaway took care to disentangle the two would have resulted (subject only to review) in a wholly unjustified windfall to the Respondent’s lawyers. Moreover the form in which those later bills were submitted gave rise, entirely understandably, to the perception in the Applicant that that a fraud was being perpetrated on her. As I state later I reject that conclusion but I would not think it appropriate to award any costs in relation to the preparation of those bills.

61    I will tax off charges for that disbursement in the sum of $1508.00.

As additionally contended for by Mrs Pekar

Fraud

62    As will be apparent from the above Mrs Pekar submits that the whole of the Respondent’s bill should be rejected as an instrument of fraud—that is as one filed with the intention of securing for the solicitors representing the Respondent sums which they were not lawfully entitled. The claim of fraud was made before the Registrar and is pressed in this review.

63    Given the uncontentious fact that there were many duplicated items in those bills that there can be no occasion for criticising an unrepresented litigant for initially pressing that claim. Further, I am sceptical that it was unreasonable of Mrs Pekar not to have been disabused of that notion after the bills had been taxed and many duplicated items had been taxed off. The taxing off of those duplicated items does not assist in reaching a conclusion that there had been such an intent. It might mean no more than that the intended fraud had not succeeded.

64    I do not doubt that Mrs Pekar’s apprehension of intentional fraud on the part of Rothwell Lawyer was heightened after she read and gave attention to the affidavit of Ms Rothwell as sworn on 24 March 2021 in which it was revealed that the firm had claimed $1,750.00 as a disbursement to counsel when the bill from Ms Gobbo she exhibited at TPR-5 was in a significantly lesser sum. Mr Pekar raised that inconsistency in his oral submissions. He submitted that the excessive claim was proof of the false and misleading fraud committed by the respondent’s lawyers—and in any event that particular item should be taxed down to the lesser amount of $350.00 as the fee note for Ms Gobbo provided.

65    Because that specific allegation of alleged fraud had not been identified earlier Mr Lapirow applied for, and I granted, leave to the respondents to file and serve any affidavit as would explain the discrepancy. That was effected by way of a further affidavit as sworn by Ms Rothwell on 22 April 2021. In her affidavit of that date Ms Rothwell deposes:

2.    The contents of this affidavit are true and correct and I make it knowing that a person making a false affidavit may be prosecuted for the offence of perjury.

3.    I refer to my affidavit sworn 24 March 2021 in this proceeding (my 24 March Affidavit) .

4.    It has been brought to my attention that exhibit TPR-5 to my 24 March Affidavit was incorrect. I failed to notice that the fee slip from Ms Gobbo as marked for the exhibit did not relate to the present proceedings, but it related to the bill in MLG932 of 2015. That particular fee can be found in the disbursements section of the bill in MLG 932 of 2015 as item 7. Item 7 was claimed (and allowed) on taxation at $318.18 which is the GST exclusive amount shown on Counsel's tax invoice.

5.    The error took place as my staff sough to obtain a copy of the relevant invoice from Ms Gobbo by accessing the copies of invoices filed with this Honourable Court through the Federal Court Portal (Portal).

6.    The Federal Court Portal demonstrated that the disbursement invoices for the bills of costs in MLG 931 of 2015 and in VID 81 of 2017, were attached to the bill of costs which sought taxation of both actions on the one Summons and with the one bill of costs. When my client was directed to, and did, file separate bills for the two actions, no further copy of the disbursements was filed.

7.    Now produced and shown to me and marked TPR-7 is the full copy of the disbursement information held on the Federal Court file. There are 9 pages in this exhibit.

8.    The correct fee slip being the proof of the disbursement claim in item 8 for the bill for VID 81 of 2017 is reproduced at page 6 of TPR-7.

9.    Item 8 is the fee slip from Ms Gobbo's Clerk issued for a total of $1,925.00 and bearing an invoice number INVCFG668. That invoice included GST, and it appeared in the bill that was taxed and allowed for the net amount (excluding GST) of $1,750.

66    Ultimately I accept that tortured explanation. It is supported by the relevant fee notes. However, the original error as required explanation and correction should never have been made. If Ms Rothwell had taken reasonable care to review her affidavit and to satisfy herself of the accuracy of its contents she would immediately identified that inconsistency. Rothwell Lawyer’s reliance on that affidavit in the form it was filed reflects an entire insufficiency of care on its part in responding to the orders the court had made requiring an explanation of circumstances in which this proceeding had to address—that of the duplication of costs in their bill with those claimed in another proceeding—asserted by the applicants to be those of fraud.

67    More generally I observe that many of the difficulties (and the considerable time costs incurred) in this proceeding are self-inflicted and flow from Rothwell Lawyer’s initial disdain of any need to explain what had happened.

68    Had Rothwell Lawyer’s frankly acknowledged in a straightforward way at the first Case Management Hearing that they had made mistakes in the preparation of Mrs Pekar’s bill, apologised to her for the duplication of many items having created understandable suspicions on her part, and undertaken to provide a full explanation this review could have been concluded in much shorter time and with much less ill-will.

69    It was only after repeated orders of the court had been made that the full context in which the bills had been prepared, grudgingly, was made apparent. That was the explanation I refer to at [28] above.

70    Notwithstanding the unfortunate prior history I have referred to above, in light of that unchallenged evidence I reject that the fraud Mrs Pekar alleges is proven.

71    However, what is inescapable in the alternative is that Rothwell Lawyers must be concluded to have been both professionally remiss and careless of Ms Pekar’s interests. I am satisfied that Rothwell Lawyers submitted bills for taxation, prepared by a third party costs assessor in circumstances in which the costs assessor had expressed at least some doubt about its instructions, without checking that the items charged for in those bills as had been prepared fairly reflected their entitlements.

72    In my view that conclusion warrants the Court taxing off the loading for “skill care and responsibility” allowed by the taxing officer calculated in the amount of $1,927.88 as claimed by Rothwell Lawyers less $954.77 as was earlier taxed off by Registrar Allaway.

73    I will tax off the sum of $973.11 on that basis.

74    If it needs be said having regard to my findings at [66] I reject that I have any basis for referring Rothwell Lawyers’ alleged fraudulent conduct to the legal regulators. If Mrs Pekar wishes to refer my reasons as refer to what I have accepted to be a falling short by Rothwell Lawyers of the professional standards that she was entitled to expect of them to the regulator she may do so. In my opinion there is sufficient likelihood, and I trust it will be the fact, that the publication of these reasons and the cost consequences of this decision will be sufficiently salutary as to not require that step on my part.

Other claims by Ms Pekar

75    Mrs Pekar makes a multitude of further claims as set out at [34] above. They take issue with whether a large number of particular services claimed for by Rothwell Lawyers were actually provided and whether, if so, those services had sufficient relevance to these proceedings.

76    I take it to be material to my decision in respect of those further claims that in response to a belated request from Mrs Pekar to be provided with copies of documents relating to every specific item of in their bill of costs as she had sought to put in dispute, she was advised that Rothwell Lawyers would make its entire file relating to this proceeding available for inspection.

77    Despite having had that opportunity what was still pressed at the hearing on Mrs Pekar’s behalf remained no more than unsupported broad allegations.

78    Coshott establishes that while a review must be conducted de novo that does not disentitle a judge on such a review from giving significant regard to the professional judgments of the taxing officer. Registrar Allaway rejected a number of items and reduced the amount awarded in others.

79    In the context of this review I am entitled to accept Registrar Allaway’s conclusions as to all of those matters in the absence of a sound foundation to the contrary. I reject that the Applicant has established that such a foundation exists. I have given attention to the items claimed. Save in respect of the matters I have addressed at [53]-[54] I apprehend there to be no reason to substitute my views to those of the Registrar in those regards.

80    I would dismiss the application in so far as it seeks review of those conclusions.

No good deed goes unpunished

81    In the course of these reasons I have taken the occasion to state that the outcome should not be understood to reflect adversely on the conduct and professionalism of the taxing officer. I reinforce that with some concluding observations.

82    It is most unfortunate that the then applying COVID-19 restrictions prevented the hearing of this taxation being conducted with Mrs Pekar and a representative of Rothwell Lawyers in attendance. Had that been possible I have no reason to doubt that Rothwell Lawyers would have had to give an account of the duplication of many items in its bills in this proceeding and MLG932/2015. Whether that would have dispelled all or most of Mrs Pekar’s concerns as have been agitated in this review is unknowable, but it may well have.

83    However that option was not available to the Registrar. Both parties sought a hearing “on the papers”.

84    In the circumstances dispensing with the rules as the Registrar did and proceeding to a taxation on the basis of the materials before him was the only practical course open to the taxing officer.

Orders and disposition

85    For the reasons given I have concluded that Mrs Pekar’s application is to be upheld and that certain further amounts must be taxed off the award of the taxing officer. Those amounts amount to the sum of $2,684.11.

86    The Registrar’s certificate awarded costs in the sum of $14,377.16. Reduced by the amount I have identified I am satisfied that I should, in substitution, order that in matter VID81/2017 the Respondent be awarded his costs in the sum of $11,693.05.

87    In respect of the costs of this review I indicated to the parties during the hearing that, on the assumption that the application was to succeed, it would be appropriate to order that the parties respectively bear their own costs. I took the parties to assent to that proposition. However on reflection my foundational assumption that Mrs Pekar as an unrepresented litigant had no entitlement to an award of costs (and should not be awarded costs of disbursements for the unfortunately often prolix documents she had filed) failed to take into account that in order to commence these proceedings she had incurred a filing fee of $2000.00.

88    I am therefore presently minded to award the successful applicant, Ms Pekar, costs in this application in the sum of $2000.00.

Associate:

Dated:    6 May 2021