Alhalek v Kells the Lawyers

Supreme Court of NSW|2021-02-23

Judgment

HER HONOUR: This is an application to review a decision of the Manager, Costs Assessment ("the Manager").
By amended summons filed 17 September 2020, the plaintiff seeks: 1. That the decision of B Bellach Manager Costs Assessment made on 17 July 2020 in Out of Time Costs Assessment Review numbered 2019/242728 be quashed. 2. That the applicant have leave to provide further evidence on the summons. 3. That additional time to lodge the review application for costs assessment be granted to the applicant.
The plaintiff is Kyled Alhalek. The defendant is Kells the Lawyers ("Kells"). The parties relied upon a court book.
The underlying dispute between the parties concerns the quantum owed by the plaintiff under an itemised bill of costs issued by Kells on 12 June 2019. Kells was retained by the plaintiff to prosecute certain proceedings on his behalf in the Local Court during 2018. The total amount of the bill was $37,587.55 (excluding $10,000 that had already been paid by the plaintiff) comprising some 172 individual items.
The precise nature of the plaintiff's complaints in relation to the bill has evolved over time. By the time that the amended summons came to hearing, the complaints focused on nine individual items: six in relation to which the plaintiff alleges he was charged for work not actually performed (those items not appearing in individual invoices issued to the plaintiff from time to time), and three for work performed on days different to the relevant invoice. I will refer to these nine items cumulatively as the "Disputed Items". The total amount of the Disputed Items is $616.00.

Nature of the application

At the time of filing the amended summons, the plaintiff was self-represented (as he had been before the Manager). The amended summons is styled as a "judicial review" application and, in accordance with the usual procedure for such applications, names the Manager as the second defendant (see Kerr v Commissioner of Police and Crown Employees Appeal Board [1977] 2 NSWLR 721 at 724-5).
At the hearing of the amended summons on 23 February 2021, the counsel for the plaintiff and the defendant agreed that the application should be treated in substance as one for review of a registrar's decision made under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR").
Rule 49.19 of the UCPR relevantly reads: (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit.
In Voicu v The Owners - Strata Plan No 1624 [2020] NSWSC 296 ("Voicu"), Basten J (sitting at first instance in the Common Law Division) considered a case with similar circumstances to that in these proceedings. Mr Voicu, who was also self-represented, filed a summons seeking judicial review of the Manager's decision to refuse an extension of time to file an application for review of a costs assessor's decision.
His Honour noted (at [15]) that under s 93B(1) of the Application Act, the Chief Justice may appoint a registrar of this Court as "the Manager, Costs Assessment". By sub-section (3) of that provision, the "acts and decisions of the Manager, Costs Assessment are reviewable by the Supreme Court in the same manner as acts and decisions of other registrars are reviewable by the Court". His Honour stated that the effect of s 93B(3) of the Application Act is to engage UCPR 49.19.
His Honour stated (at [19]) that because the plaintiff was self-represented, he was prepared to treat the summons beneficially to the plaintiff's interest as an application for review under UCPR 49.19, notwithstanding that it was originally styled as a judicial review proceeding.
Given the factual similarities, and taking note of the parties' agreement at the hearing, I will proceed on the same basis in these proceedings.
A review pursuant to UCPR 49.19 is not an appeal and is not subject to the restrictions that apply to appeals: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 ("Tomko"). It is not incumbent upon the applicant for review to demonstrate a material error of either fact or principle in the registrar's judgment under review: Solarus Projects Pty Ltd v Vero Insurance Ltd [2013] NSWSC 328 at [34]-[40]. However, the applicant must show that there is a reason to depart from the registrar's decision: Tomko at [7].
It is also relevant to note that in circumstances where the power of the Manager to grant an extension of time to file a review of a costs assessment is a matter of practice and procedure, there is a natural inhibition against overturning the Manager's decision: Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638 at 640-641; Voicu at [20].
On review, this Court is to make its own decision, having regard to the material that was before the registrar and such further evidence as the Court permits be adduced: Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 115.
Hence, the approach I should take is that I should inform myself of the registrar's decision, along with all of the material before the registrar at the time it was made. I should then make my own decision based on the material before me, with the benefit of counsel's submissions.

The procedural background

On 6 February 2018, Kells was retained to act on behalf of the plaintiff in respect of Local Court proceedings 2018/20386, 2018/25115 and 2018/42782 ("the Proceedings"). The plaintiff had commenced the Proceedings as a litigant in person, but retained Kells after the defendant filed her defences. By those Proceedings, the plaintiff alleged that he lent certain sums of money to the defendant, with whom he was in an intimate relationship at the relevant times, and then sought recovery of that sum.
Kells acted on behalf of the plaintiff between 6 February 2018 and 27 August 2018. In late August 2018, the plaintiff withdrew his instruction for Kells to act two or three days before the final hearing of the Proceedings.
On 12 June 2019, Kells served the plaintiff with an itemised bill of costs in connection with the Proceedings claiming a total of $27,587.55, comprising $34,089.55 in professional fees and $3,498 in disbursements, less $10,000 on account of monies already received.
On 5 August 2019, Kells filed an application for assessment of its bill of costs. The Manager sent a letter to the plaintiff notifying him that Kells had made an application for assessment of its costs and requested that any objections to the application be lodged in writing and in triplicate with the Manager by 26 August 2019, following which Kells would be given an opportunity to respond.
On 26 August 2019, the plaintiff sent an email to the Court containing an objection to the costs assessment application. In summary, the plaintiff: 1. asserted that the "$47,000 billed" [sic] is excessive when considering that the "body of work and material for [the Proceedings] was researched and drafted by [the plaintiff], for review and tidying up by Kells only", that the Proceedings never came on for a final hearing, and that an excessive amount of hours were spent on the Proceedings by a junior solicitor; 2. asserted that the retainer with Kells was terminated three days out from the hearing because Kells was "neither ready nor had done sufficient preparation" to run the plaintiff's case; and 3. set out a chronology of the procedural steps taken in the course of the Proceedings to illustrate that Kells had overcharged for the amount of work actually done.
On 13 September 2019, Kells filed submissions in response on the costs assessment application. In summary, Kells submitted that: 1. contrary to the plaintiff's assertions, Kells was ready and prepared to appear at the scheduled final hearing of the Proceedings; 2. the Proceedings were complex due to the alleged loan agreement not being documented in writing and the limited availability of objective evidence to support the plaintiff's contentions; 3. the Proceedings were vigorously defended which increased the amount of work required; 4. contrary to the plaintiff's assertions, Kells did not simply perform "tidying up" work, but pointed to the inadequacies in the initial pleadings filed by the plaintiff which required Kells to draft and file amendments; 5. the plaintiff's conduct in contacting the defendant in the Proceedings and her legal representatives resulted in collateral interaction and correspondence between Kells and the defendant's legal representatives; and 6. the billable hours were at all times reasonable given the imprecision and reactiveness of the plaintiff's instructions, which was a major factor requiring Kells to carry out incidental work.
On the same day, Kells provided its original file in respect of the Proceedings to the costs assessor for review.
On 22 September 2019, the plaintiff filed a further submission in response on the costs assessment application. In those submissions, the plaintiff: 1. rejected "the bulk of [Kells' submissions]" and submitted that they were attempting to "obfuscate the situation" and that their submissions were not supported by "any additional body of works" in the absence of any "thorough brief, case chronology nor a case submission"; and 2. directed the costs assessor to certain emails sent by the plaintiff shortly prior to the final hearing in the Proceedings which were said to show that Kells was unprepared to prosecute the plaintiff's claims at the final hearing.
On 8 November 2019, a certificate of assessment of costs was issued in the amount of $31,322.50. In the reasons that accompanied the certificate, the costs assessor addressed the various submissions made by the parties. The costs assessor said: "6. The tenor of the [plaintiff's] Objection is that the quantum of the bill is excessive, that the main body of work was carried out by the [plaintiff] himself, the matter never went to Hearing nor was any Barrister ever engaged, that the matter was delegated to a Junior Lawyer…whose rate is $320.000 per hour and that the number of hours is not supported. It was also asserted that Kells were terminated 3 days out from Hearing because of insufficient preparation but also as the [plaintiff's] integrity was questioned. 7. [Kells] takes issue with that and denies the assertions, says that the Objection does not address the true nature of the instructions or the issues and outlines the work and inter alia stated that the Barrister was briefed on the [plaintiff's] instructions noting that no Senior Counsel would have accepted a Brief in this matter. [Kells] countered those assertions, re-asserted that no preparation had been done and that he had never met Counsel before terminating the instructions 3 days before the scheduled Hearing. 8. I have had the opportunity with the aid of the Solicitor's File of considering the assertions by [the plaintiff] in detail but find against him. The matter was certainly not simple. The loans asserted were always going to be difficult to establish in light of the personal relationship and other factors running throughout the evidence. [The plaintiff's] position that [Kells] only needed to tidy up the main body of work is totally contrary to the material that I have before me and [the plaintiff's] Objections have no merit. 9. I have determined that the Costs other than as set out below are fair and reasonable within the terms of the Act and are proportionate to the claims subject to the adjustments I have made (details of which appear below). Those items not specifically referred to are determined to be fair and reasonable within the terms of the Act. 10. For the record I note that there is a signed Costs Agreement dated 23rd of February 2018 which followed upon instructions on or about 7th of February 2018. It estimated costs at $29,898.00 and provided for Rates for the service providers which are reflected in the hourly rates claimed…There was no Application to set aside the Costs Agreement."
In paragraph 11 of his reasons, the costs assessor sets out a list of individual items that appear in the bill of costs which were either disallowed or reduced. None of the Disputed Items appear in that list. It can be inferred from paragraph 10 of the costs assessor's reasons that he determined the Disputed Items to have been fair and reasonable.
On 18 November 2019, the certificate of costs assessment was registered as a judgment of this Court.
On 23 March 2020, the plaintiff sent an email to the Manager in which he stated that the "assessment result was sent to an old address" and requested that it be sent to him via email as "a matter of urgency", as Kells had "obtained a judgment without [his] knowledge". The urgency appears to have related to a bankruptcy notice that was served on the plaintiff pursuant to the debt created by the judgment obtained by Kells when the certificate of determination of assessment of costs was registered on 18 November 2019.
On 26 March 2020, the plaintiff sent the following email to the Manager: "This is the first time I have received and seen this certificate. I never received any copies prior to this email. The assessment contains errors and I want to have it reviewed. Please file it for review. I have copied in the Law Society should that be the correct forum for review. May the correct party please respond back. The respondent is also copied into this email."
On 27 March 2020, the Manager sent the following email in response to the plaintiff: "If you are seeking to review the costs assessor's determination, you will need to prepare and lodge your review application with the Supreme Court. The Review Application form and additional information about the review process, including the additional costs that are available on the Supreme Court's website."
On 28 March 2020, the plaintiff sent an email in response to the Manager attaching an application for an extension of time to request a review of the costs determination.
On 3 April 2020, a senior clerk in the costs assessment section of the registry wrote back to the plaintiff advising that if an affidavit in support of the application seeking an extension of time was not filed in 7 days, the application would be closed. On 17 April 2020, the senior clerk emailed the plaintiff advising that the application was closed as no supporting affidavit had been filed.
On 15 May 2020, the plaintiff served on Kells a completed Form A4 "Application For Review of Determination(s) of A Costs Assessor" along with reasons for seeking an extension dated 28 March 2020 and two unsealed affidavits in support dated 20 April 2020 and 15 May 2020.
In those reasons, the plaintiff stated: "1. At all material times I was unaware that a certificate of determination had been issued back in November of 2019… 2. I first became aware when of the determination on the 20th of March 2020 upon receiving an email from Kells The Lawyer containing a judgment and bankruptcy notice… 3. On the 23rd of March 2020 I emailed the Supreme Court's costs assessment division for a copy of the certificate… 4. Note that at all material times I kept a look out for any mail from the Court/Assessor at both my old and new addresses. No mail was received. 5. The Registrar responded and emailed me a copy of the certificate. 6. I found several material errors in the assessment. 7. On the 26th of March 2020 I emailed back that the assessment contained errors and I requested a review… 8. On the 27th of March 2020 the Deputy Registrar advised me to file this application for extension of time seeking a review… 9. I requested this extension because at all material times I was unaware that the certificate was issued back in November of 2019 thus I was unable to respond in a timely manner, nor was there any contact or communication from the respondent in relations the certificate prior to their email of the 20th of March 2020. 10. Your consideration and grant of my request will be greatly appreciated, equitable and in the interest of justice."
The plaintiff expanded on his contentions regarding the "material errors" in the costs assessor's determination in his unsworn affidavit of 15 May 2020. He stated: "It seems the cost assessor misunderstood my complaint or adapted the wrong methodology in assessing the cost. [In paragraph 6 of the Application For Review of Determination(s) of A Costs Assessor], I stated, 'I found several material errors in the assessment'. I will expand on this for clarification, my concern is with the methodology adapted by the cost assessor, in that it does not take into account the 'case to workload ratio' but simply accepts on face value that the work was done. A practitioner who repeatedly asks the same questions over in over again via endless phones, emails and conferences should not be allowed to double dip and charge twice or three times for the same work. Nor should I be asked a question for a junior lawyer only to be followed by a call from the senior lawyer asking the same question and be charged twice. These are either deliberate acts to pad the bills or due to gross ineptness, I should not have to pay for either. And after all that, I had to terminate their services because they were still asking questions 3 days before the hearing that were previously clarified. When questioned on this they retorted 'Oh we are just testing you to make sure you're ready' when in fact I was being unconscionably rebilled for matters already dealt with. The 'bookkeeper' methodology adapted in this instance is incorrect and this cost should be redone." (the plaintiff's emphasis)
On 19 May 2020, the Manager sent to the plaintiff and Kells an email acknowledging receipt of the plaintiff's application for an extension of time to file the review of the costs assessor's determination. It continued: "To assist in that request for an extension of time being provided, the parties are requested to provide the following: The [plaintiff] is requested to provide details of what his grounds of review are, together with any additional submissions to those made in the costs assessment application, they want to make addressing the criteria the Manager needs to consider by 9 June 2020. That criteria includes: the length and reason for the delay, any prejudice to either party and the what is just and fair in the circumstances. [Kells] is then requested to provide a response to the request for an extension of time by 26 June 2020."
On 27 May 2020, the plaintiff filed his submissions. As they are relevant to this review, it is necessary to set out those submissions in full: "I have two grounds for your consideration- 1) Firstly, you will find attached, a letter and invoice dated 4th of September 2018, this was the final invoice issued by the respondent being the total of $25,699.40, please note, it is detailed yet at no point does it credit the 10,000 I had paid Kells in February of 2018, in fact up until this point Kells had never provided any documentation, invoices or statements that evidenced my payment of 10,000 to their firm. Also attached is the purported final Bill of Costing issued on the 12th of June by Kells for 37,585.55, this was given to the cost assessor for the purpose of the cost assessment. You will note that not only had the quantum increased by over $10,000.00 but for the first time they actually evidenced the $10,000 payment I paid their firm. In fact, subsequently, the Kells partner excused this anomaly by stating under oath, see affidavit attached, that the final bill in September was in fact $35,699.40 which means by inference, that he had 'invisibly' factored in the $10,000 payment into September of 2018 invoice without recording it, I find that excuse to be totally absurd. In fact, prior to the June 2019 Bill of Costing Kells never acknowledged nor evidenced my payment of $10,000 anywhere. To my mind the difference in the quantum was a deliberate and untoward inflation of the original 4th of September [invoice] designed to deliberately defeat and mitigate my $10,000 payment. This act in itself voids the whole cost assessment. 2) My second ground for review is my concern with the methodology used by the cost assessor, notwithstanding my concerns raised at ground 1, it seems he used the 'bookkeeper' methodology whereby he accepted their billings at face value and then just 'chopped away'. I believe the correct method is to use the 'case to workload' methodology which gives prime consideration to what a reasonable and able lawyer would had taken to do the same work. This will avoid hidden double charging which occurs when the respondent calls and asks the same questions over and over yet charging me for it each time. It also avoids double charging that occurs when a junior lawyer calls me with a question and then shortly after the Senior Lawyer calls and asks the same question, in this manner I am charged twice for the same work. My point is, I want the cost assessment to take into account and defeat all these unfortunate and unscrupulous tricks of the trade."
On 26 June 2020, Kells filed its submissions in response.
On 27 June 2020, without leave, the plaintiff sent two emails to the Manager enclosing further submissions in reply to Kells' submissions. Kells objected to those further submissions being considered in an email sent to the Manager on 29 June 2020. However, the Manager sent an email to the parties on 1 July 2020 acknowledging that although the plaintiff's emails were sent without leave, they would be taken into account.

The Manager's decision

On 17 July 2020, the Manager issued his reasons for refusing to grant to the plaintiff an extension of time to file the review application.
At the outset, the Manager listed the material that was before him for consideration. It included the review application, the plaintiff's proposed grounds of review, the plaintiff's submissions received on 27 May 2020, the two emails from the plaintiff on 27 June 2020, Kells' submissions of 26 June 2020 and the email from Kells on 29 June 2020. The Manager also stated that he relied on the plaintiff's affidavit of 26 May 2020. While an affidavit by the plaintiff of that date is not before me, I infer that this is a reference to one of the two affidavits that were served on Kells by the plaintiff on 15 May 2020. It does not appear that the plaintiff's file in relation to the Proceedings, which includes the invoices issued by Kells, was before the Manager.
In his reasons, the Manager identified the plaintiff's grounds of review from his submissions of 27 May 2020. Those grounds were summarised by the Manager as an assertion that Kells had in the bill of costs engaged in "a deliberate and untoward inflation" of an invoice that was prepared on around 29 August 2018 and issued by Kells on 4 September 2018 which was "designed to defeat and mitigate" the $10,000 payment that the plaintiff had made to Kells on account of legal costs at an earlier time. The Manager then identified that, by his proposed review application, the plaintiff wanted "the costs assessment to take into account and defeat all these unfortunate and unscrupulous tricks of the trade".
The Manager described the plaintiff's four-month delay in seeking to file the proposed review application as "significant". He noted the plaintiff's explanation for the delay, being that he did not receive notice of the costs assessor's determination (which was issued on 8 November 2019) until sometime in March 2020 when he was served with a bankruptcy notice and a copy of the judgment obtained by Kells upon registration of the certificate of determination of costs on 18 November 2019. The Manager expressed some doubt about this explanation, noting that the costs assessor's determination was sent to the same address previously used in the assessment process and that none of the correspondence sent to that address was returned as being unsuccessfully delivered. However, it seems that the Manager accepted the plaintiff's explanation but noted that it is only one, and not the only, factor that the Manager was required to take into account in deciding whether to grant leave.
The Manager also stated that both parties would likely experience some form of prejudice if the application for an extension of time was decided against their interests. It was noted that the plaintiff was "obviously" prejudiced if an extension of time was refused as he would not be able to review of the costs assessor's determination, but also that Kells would experience prejudice if an extension was granted as it would delay the finality of the costs dispute between the parties and increase the expenses associated with recovering those costs from the plaintiff.
The decisive factor for the Manager was the merits of the proposed review application. The Manager stated: "From the grounds of review identified above it would seem [the plaintiff's] dissatisfaction appears to stem from the amount of costs he has been charged, for the work performed. That view is not uncommon. Besides addressing the claim of excessive charging, it is also evident the costs assessor has considered the issue of costs disclosure making the determination he did. In addition, [the plaintiff] makes generic allegations about errors made by the costs assessor, without substantiation or the necessary supporting documentation. With the review applicant appearing to rely on the same, if not similar, concerns and objections already made, and considered by the original costs assessor, without fresh supporting material, this review application can best be described as a generalised objection to the assessor's determination. Once more, the costs assessor has considered the objection raised. Doing so in great detail. Having said that, it is difficult to see what, if any, merits this review application has or how a review panel could reach a different outcome to that of the original costs assessor, considering the same available material. Likewise, how in those circumstances, [the plaintiff] would not be liable for the costs of the review panel's assessment. Without additional material being provided to support the claims they make, this review application seems to lack merit. In conducting the assessment the role of an assessor, or review panelist, is to consider what legal costs are reasonable for the work identified in the invoices provided and, whether that work was done in a reasonable manner. Clearly, the costs assessor has examined the material provided, in accordance with the relevant criteria, resulting in numerous reductions to the items claimed. The MCA notes the costs assessor considered the relevant criteria in undertaking his assessment. This lead to various items claimed by the law practice, being reduced or disallowed in light of the objections provided. That is set out in paragraph 11 of the assessor's Statement of Reasons ("SORs"). That step undertaken by the costs assessor, but also his comments within paragraph 6 of the SOR's demonstrates the material provided by the parties, specifically [the plaintiff], and his claim of excessive charging was clearly considered. Having examined the documentation provided by [the plaintiff], the costs assessor made the findings he did, clearly setting out his view of [the plaintiff's] submissions. This demonstrates the opportunity the review applicant had to provide the documentation required to substantiate his claims, and the material [the plaintiff] did provide was clearly considered. That is demonstrated in paragraph 6 of the SOR's, where the costs assessor specifically mentions the objections made by him including the claim of excessive charging. That appears to lead to an underlying concern of weight the costs assessor gave towards his objections, which is an exercise of discretion and judgment for the assessor in conducting their assessment. Given [the plaintiff's] objections were considered, and this led to the review respondent's bill/invoice being "...reduced by 15%." That does not support [the plaintiff's] request for additional time. In making that finding the costs assessor determined [the plaintiff] was liable for the costs of the assessment. It is important for [the plaintiff] to appreciate that such a result is unlikely on review. Those costs are commonly in the range of $4,000.00 - $8,000.00 and may be more. Either party could be liable for these costs, especially [the plaintiff], if they were unable to vary the costs assessors' determination by 15% or more. Such an outcome would appear highly unlikely given the costs assessor's reduction of 15% on the amount claimed. That too, does not support the Mr Alhalek's request for an extension of time. …"
The Manager considered that when regard was had to the merits of the proposed review, Kells would suffer from the "greater prejudice" compared to the plaintiff if an extension of time was granted. As such, the Manager did not consider it just and fair in the circumstances of the case to grant the extension of time.

The alleged errors

The plaintiff relied upon four grounds of review in his amended summons. They are that the Manager: 1. failed to afford procedural fairness to the (unrepresented) by requiring that he make submissions on the merits of the review application on his application for leave to extend time; 2. failed to afford procedural fairness to the plaintiff by failing to inform him that he had to identify the specific instances where he had been overcharged and make submissions; 3. failed to take into account a relevant consideration, being the contemporaneous invoices, in determining whether the work recorded in the bill of costs dated 12 June 2019 was actually performed; and 4. failed to take into account a relevant consideration, being the plaintiffs requests to Kells to give evidence of the work that was performed.
These grounds reflect some of the traditional bases for judicial review. However, as noted above, in a review of a registrar's decision it is not necessary for the plaintiff to establish an error (jurisdictional or otherwise) before the Court will intervene: see Tomko at [52]; Voicu at [19]. As such, I have treated these grounds not as judicial review grounds but as contentions which, if made out, would provide a reason to depart from the Manager's decision.
I will consider first the grounds alleging denial of procedural fairness, followed by those alleging failure to take into account relevant considerations.

The plaintiff's submissions

The first two grounds allege that the plaintiff was denied procedural fairness when the Manager did not inform him that the Manager would consider the merits of his proposed review, such that he should set out the particular instances where he was allegedly overcharged.
The plaintiff did not develop these grounds much further in written submissions. The plaintiff appeared to contend that he was not put on notice that the Manager would take into account the nature of the evidence that the plaintiff proposed to rely upon on the substantive review in the exercise of his discretion as to whether to grant an extension of time. At the hearing of these proceedings, the plaintiff's counsel made no reference to any denial of procedural fairness.

Kells' submissions

Kells submitted that the ways in which the plaintiff formulated the grounds in respect of the alleged denial of procedural fairness were imprecise and embarrassing. Kells noted that the plaintiff appeared to submit that the Manager did not provide advice as to the nature and contents of his proposed review application.
Kells accepted that the Manager had a duty to provide procedural fairness to the plaintiff, the content of which included an obligation to ensure the plaintiff had an opportunity to be heard. However, Kells submitted that the plaintiff did not point to any evidence to support his contention that the Manager denied to him procedural fairness. At the hearing of these proceedings, counsel for Kells pointed to other evidence which suggested that the plaintiff was directed to exactly what the Manager would take into account in an application for an extension of time. Reference was made to the Manager's email to the plaintiff on 27 March 2020 in which the plaintiff was directed to the section of the Court's website dealing with a review of costs assessment. Kells pointed to a part of that section styled "FAQs about reviewing costs determinations" which outlines what requirements an application for an extension of time should address, one of which includes "the merits of the application".
Kells further submitted that the Manager had no duty to provide the plaintiff with advice, legal or otherwise, on the relevant details and grounds that his application should contain, merely because he was unrepresented.

Consideration

The starting point for consideration is the nature and scope of the Manager's discretion to grant an extension of time to file a review from a costs assessor's determination. That discretion is conferred by s 83(1A) of the Application Act which states that "[the Manager] may extend the period for lodging an application".
This discretion is broad and unconfined by statutory limitations. A range of relevant factors may inform the exercise of this discretion, including (but not necessarily limited to) the reasons for the delay in making the application, the merits of the proposed review, and any relevant prejudice experienced by the parties. Those were the factors that were taken into consideration by the Manager in the present case. There was no suggestion by either party before me that the Manager's reasons concerning the plaintiff's delay (including the explanation for the delay) and the potential prejudice to the parties was infected by any relevant error. In my view, having independently reviewed the material that was before the Manager, the conclusions with respect to those factors were well open. In addition, neither party suggested that in the absence of error there was any reason on the material before me to depart from the Manager's conclusions in respect of those factors.
Instead, the plaintiff's complaint revolves around the Manager's reasons for characterising the proposed review application as appearing to "lack merit". The first basis for the complaint is that the plaintiff was not given an opportunity to formulate his proposed grounds of review with precision, including identifying the specific instances of alleged overcharging.
It is my view that this ground has no merit. The plaintiff was given ample opportunity to frame the grounds of his proposed review of the costs assessment in a way that was most advantageous to his interests. On 27 March 2020, prior to the filing of the review application, the Manager put the plaintiff on notice about the review application process by pointing him to the relevant page on this Court's website. That page contained information as to what was involved in a review of a costs assessment and included information as to what he needed to address in an application for an extension of time to file the proposed review. One of the requirements that the plaintiff was asked to address was "the merits of the application" for review.
The plaintiff was given a further opportunity to formulate his grounds when, on 19 May 2020, the Manager sent an email to the parties requesting that the plaintiff "provide details of what his grounds of review are". The plaintiff's response to this email was to file submissions which, in summary, complained about how the bill of costs inflated an invoice that was prepared on 29 August 2018 and issued to the plaintiff on 4 September 2018 to "deliberately defeat and mitigate [his] $10,000 payment" and that the costs assessor ought to have used a "case to workload" methodology.
Given that the plaintiff was directed at least two times to the relevant considerations that the Manager would be required to consider, it is not surprising that the plaintiff did not develop his contention that he was denied procedural fairness in his written or oral submissions. Rather, at its core, I accept Kells' submission that the plaintiff's real complaint is that the Manager should have provided him with more assistance as to what were the salient grounds in a proposed review application given his status as an unrepresented litigant.
It can be accepted that the Manager, as a repository of statutory power conferred by s 83(1A) of the Application Act, has an obligation to afford procedural fairness to the plaintiff in the course of exercising his statutory power. It may also be accepted that, in the context of an unrepresented party, the content of that duty may include ensuring that the he had sufficient information about the process to put them in a position to conduct his own case. However, at no point did that duty extend to the Manager advising precisely how the plaintiff should conduct his own case: see Hamod v New South Wales [2011] NSWCA 375 at [309]-[312].
For those reasons, I reject the contentions that the Manager denied procedural fairness to the plaintiff.

The plaintiff's submissions

The plaintiff that the Manager did not take into account the individual invoices which related to the Disputed Items. The plaintiff acknowledged, however, that those invoices were not provided to the Manager and that he bore responsibility for this failure. However, he submitted that this oversight "did not take away from the utility of his application" because one would not expect Kells to add such items in the bill of costs without explaining why they did not appear in previous invoices. It was submitted that these items had been added by Kells to "pad the bill", a submission made before the costs assessor and before the Manager.
The plaintiff referred to emails sent on 4 and 13 September 2018 to a legal secretary employed at Kells in which he requested proof that Kells had performed the work claimed. He submitted that Kells' failure to respond supported an inference it was indeed "padding the bill" with items for work not performed. It was submitted that the Manager did not take these emails into account.

Kells' submissions

Kells submitted that the plaintiff is merely repeating the allegations regarding the alleged overcharging by Kells that were advanced before the costs assessor and the Manager, which they rejected.
Kells submitted that the plaintiff was misconceived in his contentions that the time entries which may have been omitted from the relevant invoices could not be further included in a formally drawn bill of costs to form part of the legitimate work considered in a costs assessment process. Kells noted that the Disputed Items were in fact included in the bill of costs and considered by the costs assessor to be fair and reasonable.
Kells submitted that no adverse inference should or could be drawn against it for the failure to include some of the Disputed Items in invoices previously issued. This is because the monetary amounts of the items in issue had no material impact on the quantum of the bill of costs and, in any event, were considered and allowed by the costs assessor.
Kells submitted that it was not the function of the Manager in an application for an extension of time to embark upon a forensic examination of the legal work underlying the assessed bill of costs. This, it was submitted, was the function of the review panel. In any event, the Manager was not presented with new evidence by the plaintiff in the application before him and, as a result, was confined to the reasons provided by the costs assessor.
In his oral submissions, counsel for Kells acknowledged that there was no email response to the plaintiff's emails sent on 4 and 13 September 2018 but submitted that sending the bill of costs on 12 June 2019 constituted a formal response sufficient to answer the plaintiff's request.

Consideration

So far as the plaintiff's contentions concern the failure to consider the individual invoices and the plaintiff's emails sent to Kells on 4 and 13 September 2018, it is difficult to see how the Manager failed to take the invoices into account when, as the plaintiff acknowledged, all except for one of those invoices were not before the Manager for consideration. The sole exception is the invoice prepared by Kells on 29 August 2018 and issued to the plaintiff on 4 September 2018. This invoice was attached to the submissions sent by the plaintiff to the Manager on 27 May 2020. Only three of the Disputed Items in the bill of costs appeared in that invoice. I note that those are items which the plaintiff now complains were performed on different days than as stated on the bill of costs. The emails of 4 and 13 September 2018 were not before the Manager.
However, it is clear from the proposed grounds of review that the Manager was not asked to compare all of the different invoices issued by Kells with the itemised bill of costs. The grounds of review were limited to, firstly, an allegation that Kells engaged in an "untoward inflation" of the final bill issued on 4 September 2018, and, secondly, an expression of "concern" about the "methodology" employed by the costs assessor in conducting his functions. The plaintiff did not identify any particular errors. In his reasons, the Manager took the view that the plaintiff's grounds of review could be characterised as a "generalised objection to the assessor's determination" and that, without additional material being made available, the proposed review application would "seem to lack merit". The Manager then went on to state that the costs assessor clearly considered the material provided by the parties, which included the plaintiff's file that was produced by Kells, and made disallowances and reductions of certain items where appropriate. The Manager did not consider that the approach taken by the costs assessor was inconsistent with the statutory requirements under the Application Act.
For these reasons, it is my view that the Manager took into account the material that was relevant to how the proposed grounds of review were framed before him.
As noted above, this Court is not restricted to reconsideration of the material or submissions that were before the Manager: Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10]. As this is not an appeal, it is open to me to consider the invoices and emails in light of how the plaintiff now frames his contentions, notwithstanding that they were framed in different terms before the Manager.
However, even if regard is had to the invoices issued to the plaintiff from time to time throughout the Proceedings (which were annexed to the plaintiff's affidavit filed on 17 September 2020 and read at the hearing before me), I am not satisfied that the plaintiff has demonstrated that a review of the costs assessor's determination would have any merit. The plaintiff's submissions did not rise higher than allegations that certain work was not performed, or was performed on dates different to that stated on the invoices. As noted above, those items were specifically considered by the costs assessor and were allowed as fair and reasonable in the costs assessor's exercise of his discretion. The plaintiff's written and oral submissions before me did not identify any basis on which to impugn the reasons or general approach taken by the costs assessor. I should add, for completeness, that I have considered the plaintiff's emails sent to Kells on 4 and 13 September 2018, but I do not think that Kells' failure to respond to those emails takes the plaintiff's allegations any further.
While I accept the plaintiff's explanation for the delay in bringing the review application, the plaintiff has not demonstrated arguable grounds of review which would warrant an extension of time being granted in the circumstances of this case.
For these reasons, the amended summons filed on 17 September 2020 should be dismissed.

Costs

Costs are discretionary. Costs usually follow the event. The appropriate order is that the plaintiff who has been unsuccessful should pay Kells' costs on an ordinary basis.

The Court orders that: 1. The amended summons filed on 17 September 2020 is dismissed. 2. The plaintiff is to pay the defendant's costs of the proceedings on an ordinary basis.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 March 2021

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