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Sir Terence O'Rort
22 May, 2007  
Taxing officer snatches it and bolts

Bob Houghton, the Queensland Supreme Court’s long serving costs guru, has taken early retirement, leaving the registry in chaos. Apparently, the assaults on his customer protection policy just got too much

imageChampagne corks popped and savouries were snaffled as Brisvegas shysters celebrated the “retirement” of long-serving Supreme Court taxing officer Bob Houghton, whose 34-year public service career drew to a close last week.

During Houghton’s tenure as taxing officer he discovered that there were more sharks cruising the waters of the local legal caper than in Moreton Bay.

Houghton had long been a thorn in the side of the gougers in the profession because he brought an independent eye to the supervision of their “bills”.

In earlier times the Supreme Court was the last bastion of protection for the punters who had been victims of fee ramping.

Houghton brutally dismembered bills that bore a closer relationship to the monthly fee budget than the real costs of the files. He frequently reduced bills by more than 30 to 40 percent.

This rankled a few of the local warlords, including the various costs committees of that citadel of goodness and fairness, the Queensland Law Society.

Ultimately they got the ear of that splendid jurist Denver Beanland, and a deal was hatched. The QLS would wear that years’ reduction in the budget allocation if the Bean removed the solicitor and client taxations from the Supreme Court.

Mr Bean’s Civil Justice Reform Act became law on July 1, 1998. Solicitor-client taxations were abolished and from then on any disputes were handled by external assessors appointed by the old Solicitors Complaints Tribunal which, apart from a few token lay members, was staffed by former QLS types.

Not surprisingly, the new Act and the system of assessment have turned out to be a disaster for the customers.

See Tulkinghorn’s recent take on all this.

However, this still left the Supreme Court and Houghton with jurisdiction to assess party-and-party bills, including bills ordered to be paid on an indemnity basis.

Houghton continued to cut a swathe through the local practitioners. He was particularly savage on some of the larger law shops who commonly adopted the post-box style of practice – get barristers to do everything including such complex tasks as settling letters and appearing on adjournments and consent orders.

The bar kept charging and the hapless clients generally coughed-up without too much protest.

Things sometimes got awkward when clients, who had the benefit of party-and-party orders, became upset when their refunds paled into fractional insignificance compared to what their own lawyers trousered.

Under the rules if a litigant filed and served a costs statement and then the other party failed to turn up at the directions hearing, then the taxing officer had the option of simply rubber-stamping the bill as delivered and allowing it in full.

Houghton insisted that if he saw something in a bill that was obviously a gouge he had the power to disallow it when undertaking a default assessment.

This infuriated the legal hierarchy and an anti-Houghton change to the Uniform Civil Procedure Rules was brought in on the recommendations of the Supreme Court rules people, whose members included District Court Judge John McGill – noted local train and plane spotter.

The new rule said that the registrar in a default assessment must assess the costs “without considering each item”, however there was a proviso that allowed the registrar to disallow items that were “obvious errors”.

Houghton promptly construed the exception very widely to give himself jurisdiction to disallow items claimed that he regarded as not recoverable between parties as they were solicitor-client items and as such must have been inserted in the bill as an “obvious error”.

This really was the last straw and a campaign against Houghton was masterminded by apoplectic but shadowy interests.

Trainspotter McGill drove the final nail into Houghton’s coffin in his judgment in Hennessey Glass & Aluminium Pty Ltd v Watpac Pty Ltd.

He banged-on about the regard in which taxing officers have always been held and how loath he was to interfere in their decisions, but …

“it seems to me that there is a great deal in the reasons of the registrar which was wrong, or involved a wrong principle, or which produced a result which was just manifestly unreasonable. Indeed, more than once I have noted that, in relation to some particular aspect of his reasons, I considered that those reasons actually reflect badly on the registrar. His reasons on this reconsideration do not inspire in me the sort of confidence which traditionally courts have displayed for the work performed by taxing officers. I have not heard argument as to whether in such circumstances the traditional approach to decisions of a registrar on review should be modified, and as I say I have assumed that it should not, but it seems to me that in the light of these reasons that assumption may be questioned.

The practical significance of this is that this is the reason why, when I concluded that it was necessary for some items to be reassessed, I reassessed them myself rather than sending the matter back to the registrar…”

Earlier this month Houghton was offered a voluntary early retirement after suggestions were made that he would be re-assigned a different role within the registry.

He elected to take the VER but in a final act of defiance departed within two weeks, leaving the registry in havoc with unfinished assessments and reconsiderations. He even refused the traditional “morning tea” that is accorded registry retirees.

Unfortunately, no-one calculated what would happen if Houghton left promptly.

Chaos reigns with assessment lists booked until October and a shortage of appropriately qualified staff to undertake the assessments. Appointments for assessments are now only being given if insisted upon, as the registry staff wait for imagesome solution to issue from the Trainspotter and his pals.

CJ Daphnis de Jersey’s (pic) response was to issue Practice Direction No.3 of 2007, which is based on the fantasy that there is no need for a taxing officer because from now on everybody is just going to have a few cups of tea and agree on everything.

The brilliance of Daphnis’ direction is that it contemplates practitioners delivering estimates, making responses and having settlement discussions – all before the appeal period expires.

In the meantime customers get robbed, monthly law shop budgets are met, BMWs are leased and members of the Bar n’ Grill look sleeker with each passing day.

Sir Terence O’Rort reporting


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