Can the appeal be brought under s 384 of the Act?
26Leaving aside the considerable injustice afforded to the defendant by having to meet a s 384 appeal when it was framed specifically under s 385, the hearing of this appeal under s 384 creates real difficulties in terms of the evidence to be received. In McCausland v Surfing Hardware International Holdings Pty Ltd, Johnstone DCJ notes at [30]-[32] a series of decisions (Madden v New South Wales IMC [1999] NSWSC 196, Johnson v Madden [2000] NSWSC 463 and Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145) concerning the circumstances in which fresh evidence should be received on an appeal where the issues are issues of law. Johnstone DCJ concluded at [47]-[49]:
"47. In my view appeals under s 384(1) are strict appeals, where the duty of the Court is to determine whether error has been shown in the decision being appealed and it is not the Court's task "to decide where the truth lies as between competing versions of evidence or whether some further evidence may have lead to a different conclusion": see Fox v Percy [2003] HCA 22 at [32]; see also East West Airlines Limited v Turner [2010] NSWCA 53 at [76].
48. The proper construction of s 384(1) requires a consideration of the totality of the provisions of ss 384 and 385. In my view, these provisions as a whole create a scheme for appeals in respect of costs assessments and reviews. Section 384(1) provides for a narrow, limited avenue of appeal as of right as to a matter of law decided in the proceedings. It is not concerned with the facts except to the extent that the decision is based on the facts found. It is not the purpose of an appeal under s 384(1) to ascertain whether the facts were wrongly decided, incorrect, inadequate or incomplete. The Court is not concerned with absent facts, undisclosed facts or undiscovered facts. It is not contemplated that the facts upon which the matter of law was decided will be reviewed, complemented, varied or added to. The appeal is concerned with the decision as to the matter of law. If a party wishes to introduce fresh evidence or further evidence the sections provide alternative avenues of appeal: Firstly, leave may be sought from the Court or tribunal which made the costs orders in the case of party/party costs, under s 385(2); or in the case of practitioner/client costs, from the District Court under s 385(1). If on the other hand the party is able to persuade the District Court in an appeal under s 384(1) on the material before the review panel, and the District Court does not affirm the decision of the review panel on the matter of law, two options emerge under s 384(2): the Court can determine the application itself or it may remit the decision on the question of law to the review panel to re-determine the application. But there is in my view a further twist. The Court may not receive further evidence under s 384(3) if it decides to determine the matter itself. If it decides to determine the application itself it must do so on the evidence that was before review panel. It is only the review panel that can receive further or additional evidence under s 384(3) on a re-determination. This twist arises from use of the word determination in s 384(2) and the word re-determination in s 384(3).
49. I do not agree that the reference in s 384(1) to the rules of the District Court (i.e. the UCPR) changes the nature of the appeal contemplated by that subsection. Insertion of the words referring to the rules is to guide the prospective appellant as to the procedure and process for making the appeal. They do not change the limited of nature of the appeal or somehow enlarge the scope of the appeal. Rule 50.16 does not relate to the making of the appeal. It relates to the conduct of the appeal, once made."
27The affidavit of Mr Altaranesi includes material which was not before the costs assessor. It is hard to say how much of the material is fresh evidence. However, the real problem for the plaintiff, whether or not he is permitted to rely upon the material in this affidavit (which I am prepared to do, to avoid further delay), is that despite the grounds of appeal set out in the Summons, the principal ground he raised before the assessor, and before me, is that the charges made by the barrister are too high. Whether or not fresh evidence is required, the plaintiff is asking the court to rehear issues of fact, and not law, in relation to his requests to re-assess the bill and to take into account his financial hardship.
28Three of the appeal grounds raised by the plaintiff do, however, give rise to issues of law. The first is the claim of "actual bias" and the second is the allegation of lack of procedural fairness. I will deal with each of these as follows:
(a)Actual bias
The basis for this (see page 57 of Mr Altaranesi's letter of 6 February 2011 to Mr Sharpe) is firstly that Mr Sharpe and the counsel whose bill is the subject of the costs assessment have offices in the same building, and that correspondence about the costs assessment had been sent to this barrister instead of the solicitor whose name appeared on the costs assessment application. The plaintiff also complains that the applicant must have answered his letter of objection and that, if so, a copy of that letter had not been sent to him. In addition, an objection was made on the basis that both Mr Sharpe and the barrister whose bill was the subject of the costs assessment were members of the New South Wales Bar Association, which the plaintiff submits is further evidence of bias.
The law relating to judicial bias is comprehensively analysed by the Hon Grant Hammond, Judicial Recusal: Principles, Process and Problems (Hart Publishing, 2009). Hammond also notes (at p.32) that the rule for bias for judges must perforce be applied to tribunals and other administrative decision-making processes (citing R v Gough [1993] AC 646 (HL)).At p. 5 the author notes the ease with which litigants perceive bias as follows:
"From the point of view of individual litigants, it is almost impossible to persuade a losing party that a judge's prior involvement with the subject matter of the litigation or somebody involved in it did not have at least something to do with his or her decision."
However, the "apprehension of bias" test laid down by the High Court of Australia in Ebner v Official Trustee in Bankruptcy (2001) 205 CLR 337 at [6] makes it clear that the test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the case.
The facts relied upon by the plaintiff to establish "actual bias" are tenuous. The principal complaint is that the costs assessor and the barrister have offices in the same building, and are both members of the Bar Association. The bystander at the back of the court (or the doorway of the costs assessor's office) would, however, be aware of the practical realities of litigation in a country with a small population, where many lawyers have offices in the same building or street, for convenience to the court.
The other basis for objection - that the costs assessor sent correspondence concerning the barrister's memorandum of fees to the barrister rather than to Ms Whalan at the Sydney Local Health District - is unreasonable. The plaintiff in fact wrote to Ms Whalan refusing to deal with her, and saying he would only deal with the barrister. It was entirely proper for the costs assessor to write to the barrister - his bill constituted the entirety of the costs claimed on assessment.
The allegations of bias are fanciful and should be rejected.
(b)Lack of procedural fairness
The plaintiff complains that the costs assessor had made an assessment on 12 January, which was before the plaintiff's final comments on the costs were received (page 56 and 57 of the affidavit).
However, the letter of 12 January (at page 56) is in fact a letter identifying costs assessor's fees of $577.50. The costs assessor's assessment was issued on 2 February 2012, and sent on 23 February 2012, after receipt of the plaintiff's further comments.
At the time this letter of 12 January was sent, both parties had already provided what the costs assessor regarded as "detailed correspondence". The costs assessor sent his bill, but invited further correspondence within 14 days, following which he proposed (in the absence of further submissions) to issue his assessment for the sum indicated ($577.50).
Following this letter being received, the plaintiff exercised his entitlement to respond to the application in accordance with the invitation of the assessor dated 12 January 2012. Those submissions were received on 30 January, as is noted in the costs assessment. This ground of lack of procedural fairness is misconceived.
Secondly, the plaintiff complains that he was not forwarded any further reply by the costs respondent to the assessor's invitation to the parties for further submissions. However, the costs respondent did not exercise his right of reply, nor was the costs respondent given any right of reply to the further submissions of the plaintiff. The plaintiff's concerns that these documents might exist, and not have been forwarded to him, are without foundation. This ground of lack of procedural fairness is also misconceived.
The plaintiff's third ground of complaint was that he did not receive a copy of the costs respondent's reply of 11 January 2011, referred to in paragraph 5 of the assessment. However, according to the costs assessor, the costs applicant provided detailed submissions on 30 January 2012 dealing with the matters raised by the costs respondent. There is no reference in the assessment to any other correspondence being received by the costs respondent. In those circumstances, it would appear that all correspondence forwarded to the costs assessor by the costs respondent was in fact made available to the costs assessor, since the sole correspondence about this comparatively small bill was the costs respondent's letter of 11 January 2011, to which the costs applicant replied in detail. This ground is also misconceived.
The plaintiff also invited me to infer that the costs assessor had not read any documents sent to him, given the speed with which he produced his assessment, although the plaintiff had sent him "twelve or thirteen pages" of material. I reject this submission as being evidence of lack of procedural fairness.
The plaintiff raised other matters, such as claims that he was not given the barrister's fee agreement, proof of GST entitlement, the failure of the costs assessor to refer to his submissions in his reasons, and refused to permit oral submissions, referring to CSR Ltd v Eddy [2008] 70 NSWLR 725.
The fee agreement is identified in paragraph 5(d) of the Application for Assessment (page 27 of the plaintiff's affidavit). The barrister's ABN is on his letterhead. The costs assessor is not obliged to refer to the parties' submissions in his reasons (see Levy v Bergseng [2008] NSWSC 294 at [78] - [81]). The costs assessor was not obliged to permit oral submissions given the size of the costs under consideration and the narrow ambit of issues in dispute.
The claim of lack of procedural fairness is not made out.
(c)The claim that the bill is "uncertain"
The plaintiff explained, in oral submissions, that the reference to "uncertain" meant that he challenged the validity of the barrister's memorandum of fees because, contrary to s 332(2) of the Act, the barrister had not signed his bill.
The provisions of s 332(2) do not require barristers to sign their bills for them to be accepted on assessment. The barrister's bill, addressed to the defendant, was sent to the plaintiff under cover of a letter from a Ms Whalan on 6 May 2011, which offered to accept a reduced sum of $2,548. That offer was rejected on 9 May 2011. (The plaintiff also told Ms Whalan that he was not prepared to deal with anyone other than the barrister who had appeared in the Court of Appeal: page 18 of the plaintiff's affidavit). On 23 August 2011, the Department sent to the plaintiff an application for assessment for party/party costs. That application is signed (page 30 of the affidavit of the plaintiff) and this is sufficient to comply with s 332(2).This claim is also not made out.
(d)The financial hardship of the plaintiff
This is not a matter of law, but I note in any event that plaintiff did not provide me with any particulars concerning his financial hardship, such as lack of assets or employment.
In support of this submission the plaintiff did, however, provide a detailed breakdown of the objections to the size of the barrister's fees.
The fees are as follows:
(a) 1 March 2011 - Read Materials (1 hr 30 minutes) - $450.00 GST
(b) 5 April 2011 - Research (2 hrs) - $720.00 GST
(c) 6 April 2011 - Mention (1 hr 30 mins) - $450.00 GST
(d) 12 April 2011 - Settle Submissions (2 hrs) - $720.00 GST
(e) 18 April 2011 - Hearing (1/2 day) - $1,300.00 GST
The plaintiff, in support of his submission that this was an error of law, drew my attention to the policy directive of New South Wales Health concerning the engagement of external providers for legal services. He complained firstly that the counsel who appeared was not on the panel. However, an examination of the panel members revealed that these are firms of solicitors. There is no panel for barristers. The policy directive permits the briefing of counsel, both by solicitors and directly by the Department. The Department directly briefed the barrister who appeared. No charge was ever made for their services.
This last point is relevant to the next argument. The plaintiff complains that the Department never provided its GST information. However, the only charges covered by the provision of this costs assessment were the fees of counsel, and counsel's ABN number is displayed prominently on his letterhead.
The plaintiff also raised a series of objections to the manner in which the bill was structured, such as the provision of an hourly rate for research and drafting and the provision of a daily rate for the appearance in the Court of Appeal on a half-day basis. For example, he stated that he had measured the distance between counsel's chambers and the court, and that it was 230 metres, which would take a few minutes to walk. The plaintiff acknowledged that it had been necessary to remain in the Registrar's callover list until the hearing was called on in the Court of Appeal, but stated that the hearing was short and that Handley JA's judgment (one and a half pages long) was even shorter. He considered a reasonable fee for two hours of work in the Court of Appeal, excluding GST, was $410 or, if inclusive of GST, $600.
The costs assessor noted that, in assessing costs, he had regard to "the question of proportionality", not only in terms of the quantum of the costs, but also in terms of the complexity of the matter, the conduct of the parties, the importance of the proceedings to the parties and the orders eventually made by the court (paragraph 7(iv) of the assessment).
The plaintiff raised similar objections to each of the amounts claimed by counsel in his memorandum of fees. In each case, I consider that the costs assessor's determination not only is not capable of being the subject of any error of law, but also is both fair and reasonable.
29This brings me to the issue of the merits of the appeal under s 385.