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Sir Terence O'Rort
17 August, 2007  
Taxation of costs - northern style

Queensland is to keep all costs assessments secret and privileged. Daphnis overturns the High Court


imageAmong the problems for expensive solicitors under the pre-1998 costs regime in Queensland were nosy Bowen Hills Bugle reporters Paul Whittaker (now editor of the Oz) and Hedley Thomas (also now with the Oz).

They had a penchant for checking out the results of former taxing officer Bob Houghton’s anti-gouging campaign by burrowing into the court files for completed taxations. All of this made great fodder for the Bugle but was very inconvenient for the serial fee inflaters in Brisvegas, such as Baker Johnson, etc.

Justice Michael McHugh was the source of another problem when in Giannarelli v Wraith (No.2) he found that if a gouger produced a document to the taxing officer, the gougee was entitled to see the document.

imageThis caused all sorts of problems, because there might have been some very upsetting documents that would otherwise never have seen the light of day, but for McHugh’s (pic) ruling.

What to do? Simple. Do a deal with one of the greatest jurists in Commonwealth history, the then Queensland attorney general, Denver Beanland.

The deal worked like this: the Queensland Law Society would accept lesser funding from the government in exchange for the Bean agreeing with the QLS’s wish list, which later found its way into the Civil Justice Reform Act 1998.

Section 48T of the Act was in the following terms:

“Privilege attaching to a document or thing, including, for example, legal professional privilege, continues despite disclosure of the document or thing to a costs assessor.”

That fixed the High Court.

But there was the other annoyance of the Bugle poking around the assessed files getting fodder for more attacks on fee bloaters.

The Bean put a stop to that with section 48S of the Act, which requires all assessments under the new regime to be kept secret so that the reptiles of the press could no longer see the amounts taxed off.

Despite all that excellent spade work, there remained the problem that the legislation only dealt with solicitor-client costs and did not apply to party-and-party costs assessed by Bob Houghton and his mates at the Supreme Court.

The public could still search the files and see what Houghton had disallowed and that could prove awfully disturbing even on a party-and-party basis, especially where indemnity costs were concerned.

Given that Peter Bjelke-Beattie has a majority of about a million in State Parliament, CJ Daphnis de Jersey, Trainspotter McGill et al are lining up to fix the problem for party-and-party costs.

As Daphnis told the Central Queensland Law Association Conference in Yeppoon on the weekend (Aug. 11):

“For a long time we have been concerned about the assessment of party-and-party costs in the Supreme and District courts, especially because of the protracted and expensive nature of the process. There are considerable delays in the Brisbane registry. Any backlog is intolerable.”

imageWhat Daphnis (pic) failed to mention was that the backlog was caused when the registrar was directed to vacate all appointments for assessment of party-and-party costs after Houghton had gone and it became clear that the one remaining assessing registrar could simply not cope with the pending assessments.

Daphnis waxed on:

“The rules committee is exploring, in an active, and proactive, way, establishing a regime under which accredited costs assessors will be available to assess costs. We envisage the accreditation of appropriately experienced members of the legal profession. They will be statutorily accorded, we expect, appropriate immunity and protection.”

Cleverly concealed in the Land Court Amendment Bill 2007 are clauses 38-40, which propose to amend the Supreme Court of Queensland Act 1991.

Guess what we find in clauses 93LB and 93LC? The equivalent of the anti-McHugh preservation of privilege and the secrecy clause used in the Civil Justice Reform Act.

So when the bill is rammed through the House by the Bjelke-Beattie Government Queensland law consumers should be grateful. The details of both solicitor-client and party-and-party fee gouging will be secret and there will be no embarrassing stories reported in the gutter press.

The last word belongs to Daphnis who told the Yeppoon congregation:

“As you may gather from this two-pronged approach to the costs assessment issue, we are determined to modernise this area of the registry and court administration, so that it better serves the interests of litigating parties.”

And their lawyers!

Sir Terence O’Rort reporting