Case: Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629
Outcome: followed
Factors which have been considered when exercising the discretion to make such an order include . where the delay, expense and inconvenience of taxing costs in the normal manner would be unduly protracted or unduly expensive: Beach at 120; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629 ( Charlick ); Foyster v Foyster Holdings (2003) 44 ACSR 705; and . where the financial capacity of the party liable to pay costs is such that the additional cost of taxation will impose a significant burden on the party in whose favour costs are ordered without real prospects of recovering those costs: Hadid v Lenfest Communications Inc [2000] FCA 628 ; Sparnon v Apand Pty Ltd (unreported, von Doussa J, 4 March 1998); Sony Entertainment (Australia) Ltd v Smith (2005) ALR 788. There are other considerations to which the Court has had regard, but they are not said by any party to arise in the present matter. 41 Mr Chapman then made an adjustment or reduction of 20 per cent on the amount he had arrived at. He did so firstly to reflect that some of the work carried out might not be regarded as recoverable on a party/party basis although it would properly be recoverable as solicitor/client costs. He used the figure approved in Charlick of 15 per cent as a guide. Secondly, the reduction was to reflect his caution that he may not have detected all work done for other related matters and that there may be further work done by various solicitors on the file which may not be regarded as recoverable on a party/party basis. There is no direct evidence in this matter that the 'usual' or common difference between party/party costs and solicitor/client costs on taxation is 15 per cent. Mr Chapman has not addressed that. The difference sometimes arises because there are different chargeable rates allowed on taxation on different bases. That does not arise here, as the scale hourly rates have been applied. Allowance should nevertheless be made for the fact that some work properly carried out for the purposes of solicitor/client taxation may be excluded for the purposes of party/party taxation. I have reached the view that Mr Chapman's reduction of 20 per cent is a proper one. No matters were put to him in cross-examination to suggest some other overall reduction should be made. Nor was any submission made by Mr Dunstan that some other specific deduction should be made on this aspect. That reduction represents a conservative approach, in Mr Dunstan's favour, as the weeding out process by Mr Chapman should have excluded most of the items which should not be included in party/party costs on this matter. I propose, however, to increase that reduction to 30 per cent to allow, again in Mr Dunstan's favour, for the possibility that calculating costs on an hourly scale rate might result in the costs being higher than those which would be allowed on normal taxation. The 30 per cent reduction covers that contingency, as I consider the 20 per cent deduction proposed by Mr Chapman for the other factors he has referred to is generous to Mr Dunstan. 42 Mr Chapman has added an allowance for the general care and conduct of the matter, pursuant to item 41 of the Second Schedule to the Rules. In my view, some allowance for general care and consideration should be made in respect of the costs to be allowed for the Commonwealth respondents. They were confronted with claims for three separate causes of action requiring extensive documentary review and proofing of witnesses. The factual issues extended over a lengthy period. Mr Dunstan's allegations in his pleadings and affidavits were very detailed, descending into the minutiae of communications and relying often upon subtle nuances of meaning of communications. That is not said as a criticism of him; that was in part the foundation of his claims. It nevertheless required extensive and very careful investigation and consideration of the responses of the various persons involved, the preparation of their affidavits of evidence, and of course the mastering of all that material for the purpose of briefing counsel and giving instructions at the hearing, as well as for giving advice to the Commonwealth respondents from time to time. 43 I do not think the amount of the care and consideration allowance should be determined by benchmarking against other cases. The comparison is too difficult. It may be unreliable without a detailed knowledge of the respective cases. Mr Chapman has allowed 17.5 per cent in this matter, but by a benchmarking process. I think that allowance is an appropriate one, but for the reasons I have given rather than simply by a form of benchmarking.