Ballard v Carlisle Attorneys Pty Ltd

Attard v James Legal [2004] NSWSC 478 CASES CITED : Brierley v Reeves [2000] NSWSC 305 Diemasters Pty Ltd v Meadowcorp Pty Ltd (unreported, Supreme Court of NSW, Macready M 16 July 2003)

PARTIES : David Ballard Carlisle Attorneys Pty Ltd

COUNSEL : Ms J McDonald - for the Plaintiff P Carlisle - Solicitor for the Defendant

SOLICITORS : Sagacious Legal Pty Ltd - for the Plaintiff Carlisle Attorneys Pty Ltd - for the Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2010/74261 - DAVID BALLARD V CARLISLE ATTORNEYS PTY LTD TRADING AS CARLISLE ATTORNEYS

1 HIS HONOUR: These proceedings relate to three contentious costs assessments currently before an assessor, Mr John Sharpe. The first two assessments were commenced by the defendant. The third was commenced by the plaintiff. 2 The plaintiff is a former client of the defendant. He has now engaged other solicitors to represent him in litigation brought by him against Multiplex in the Commercial List of this court. The estimate of the length of the Commercial List hearing is four weeks and a date for that hearing will soon be allocated.

3 The plaintiff commenced these proceedings by summons filed on 24 March 2010. He sought orders and a declaration that the defendant deliver to his new solicitors his documents that were being held by the defendant. He also sought a declaration, the effect of which is that he be entitled to have assessed certain bills issued by the defendant that were arguably out of time.

The Consent Orders 4 On 26 March 2010 consent orders were made which dealt with the plaintiff's claim to have his documents delivered to his new solicitors. The orders provided relevantly as follows:

The Court orders: 1. The defendant make available forthwith for collection by the plaintiff's solicitors, all documents to which the plaintiff is entitled in the files held by the defendant relating to Supreme Court proceedings No 2666587 of 2007 including the plaintiff's discovered documents (including privileged documents) and a copy of all documents stored electronically (emails, word, PDF and excel formats), but not unprinted drafts and provided always that the defendant be permitted to keep copies, made at the defendant's expense, of all correspondence to the plaintiff, counsel's advices and copies of the file notes. The Court directs: 1. Liberty to be granted to apply on two days notice. The Court notes: 1. The undertaking of the plaintiff and Sagacious Legal Pty Limited to the defendant: (a) that they will provide access at the offices of Sagacious Legal to the defendant to the Records to enable the defendant to properly conduct the practitioner/client costs assessment and any further assessment proceedings that either the defendant or the plaintiff may commence. 5 The remaining substantive relief on the summons is the claim for a declaration concerning the bills that are arguably out of time together with an alternative claim designed to achieve the same result. This involves a question of law which is already before the assessor. The defendant seeks to have the summons dismissed, or at least the remaining claims for relief, because there is said to be no utility in maintaining that part of the original claim. 6 That is because it must inevitably be decided by the assessor. When he does so there are procedures provided for in the Rules and in the governing legislation which facilitate appeals and challenges to decisions of the assessor. It is not in the interests of justice to allow the hearing and determination of that dispute to proceed in a bifurcated manner. There seems to me to be no point in allowing the plaintiff to maintain the remainder of its summons in relation to that particular claim. Its effect is to result in duplicity, potential oppression and unnecessary expenditure. I will return to this issue.

Amended Notice of Motion 7 The defendant moves for relief on its amended notice of motion filed on 2 July 2010. It seeks the following orders: 1. An order that upon the conclusion of Proceedings No 2666587 of 2007 (formerly Proceedings No 50207 of 2007), Order 4 made and entered on 26 March 2010 be vacated and the plaintiff deliver to the defendant all documents delivered by the defendant to the plaintiff pursuant to Order 4 made and entered 26 March 2010 ("the Delivered Documents"). 2. An Order that pending delivery to the defendant of the documents previously delivered by the defendant to the plaintiff pursuant to Order 4 made and entered 26 March 2010: (a) the Assessment Proceedings No 2010/120653 be stayed; (b) the Costs Assessor, John Sharpe, be restrained and is hereby restrained from conducting and making an Assessment of Costs in Assessment Proceedings No 2010/20653. 2A. An Order that in the alternative to Orders 1 and 2 above: (a) the plaintiff provide to Mr John Sharpe, Costs Assessor, all documents or copies thereof comprised within the Delivered Documents referable to each item of work that is the subject of the plaintiff's Application for Assessment, filed in Proceedings No 2010/120653 for which the plaintiff asserts he has been provided insufficient information; (b) the plaintiff provide to Mr John Sharpe, Costs Assessor, all documents or copies thereof comprised within the Delivered Documents referable to an item of work that is asserted by the plaintiff to have not been properly particularised as to sufficiency of information and is nominated by the defendant. 3. An Order that the proceedings be dismissed. 3A. Such further other Order as the Court deems fit. 4. Costs.

8 The defendant's claim that the summons be dismissed is the fourth prayer for relief in the notice of motion. I have already expressed a view about that issue. By the first prayer for relief, the defendant seeks, effectively, to vary order 4 made on 26 March. Although the documents of the plaintiff to which the order relates have been handed over to the plaintiff's new solicitors and the defendant is entitled, pursuant to the plaintiff's undertaking, to access those documents to enable it to properly conduct the assessments, it seeks to improve its position in relation to access. Access to Documents 9 The current regime provides for access to the defendant at the offices of the plaintiff's solicitors. I am satisfied that the access regime is not working wholly satisfactorily from the defendant's perspective. There are 60 lever arch files that make up the documents. The defendant wishes to have the documents back but is content to wait until the conclusion of the Commercial List proceedings commenced by the plaintiff against Multiplex. 10 In argument before me the defendant stated that access for seven days would be sufficient. I can see no prejudice to the plaintiff if I grant that relief. I have the power to do so. The orders made on 26 March included a grant of liberty to apply on two days' notice. Liberty to apply encompasses an application such as this where the original orders and undertakings have encountered unforeseen difficulties or complications. 11 The plaintiff made submissions and led evidence in order to demonstrate that the defendant's complaints about the unsatisfactory nature of the access regime were unfounded. In the exercise of my discretion, I allowed two affidavits of Paraskevi Frangakis to be read, even though the deponent was in Greece and unavailable for cross-examination. 12 I did so partly because I am satisfied that the notice given by the plaintiff requiring the deponent's attendance for cross-examination was inadequate. Nonetheless, although I have placed marginally less weight on her evidence than I might otherwise have done, I regard the evidence of Miss Frangakis as inherently plausible and not unreasonable. 13 Valerie Higinbottom, an experienced costs assessor, also gave evidence. The effect of it was that the work that the defendant says it needs to do (for which the current regime for access is allegedly inadequate), goes beyond what is truly necessary. I do not propose to finally resolve that factual issue on this application. It is not necessary to do so other than to say that the evidence satisfies me that there is a reasonable factual basis for varying the order made on 26 March.

Conduct of Assessment Proceedings 14 The second and third prayers for relief seek orders which relate to the conduct of the assessment proceedings. Even if I had power to make orders staying assessment proceeding number 2010/120653, or restraining the assessor from making an assessment of costs in that proceeding, or requiring the plaintiff to provide certain categories of documents to the assessor, I would not do so in the exercise of my discretion. 15 The assessor is experienced in the conduct of costs assessments. He knows, better than I do, the content of the issues for determination before him. He is in command of all of the usual subsidiary issues that can arise in a costs assessment hearing. Those subsidiary issues include matters such as the need to ensure that each party has sufficient access to documents in order that its claim may be adequately presented. The overriding considerations are fairness, coupled with the necessity to ensure a just and expeditious resolution. 16 It would be invidious if I interfered in the extra curial procedural processes over which the assessor has control. I am quite satisfied that the assessor is in a position to make appropriate decisions about the conduct of the three assessments before him. He will do so, no doubt, having regard to my acceptance that the defendant should have, in addition to the access recorded in the orders made 26 March, the further access for a period of seven days that I will order.

Nature of Costs Assessment Proceeding 17 A costs assessment is an administrative procedure external to the court and is not a proceeding in this court within the meaning of the Rules. The plaintiff contended therefore that the court had no power to grant a stay of the third assessment. I acknowledge the correctness of the proposition that a costs assessment is not a proceeding within the Rules and an assessor is not, of course, an officer of the court: Diemasters Pty Ltd v Meadowcorp Pty Ltd (unreported, Supreme Court of New South Wales, Macready M, 16 July 2003; Brierley v Reeves [2000] NSWSC 305 at [21] - [24]. 18 But there may well be circumstances when the interests of justice require that an order be made restraining a party or parties from proceeding with a costs assessment. The decision of Bell J in Attard v James Legal [2004] NSWSC 478 is an example. The source of the power to do so was not specifically dealt with in the judgment in that case but I would regard the reference to "or other injury" in section 66(1) of the Supreme Court Act as covering a multitude of possibilities in an appropriate case. This is not however an appropriate case. The Remaining Issue 19 I have already explained that it is inappropriate for the sole remaining issue on the summons to remain outstanding while the same issue is properly before the assessor for determination. I have explained that issue in paragraphs [5] and [6] above.

20 On 6 May 2010, Palmer J was inclined to think that it was useful to keep these proceedings alive in relation to that issue. However, I have now heard lengthy submissions from the parties and am in a position to gauge the entrenched positions which each has taken. I have reached the view that it is in the interests of the parties, and in the interests of the administration of justice, that there be finality. As I have said, it is oppressive for the issue to be ventilated in two places at the same time. It also a waste of the resources of the court and may be productive of unnecessary expense and additional disputation. It is contrary to principle to allow a party to advance his case before one tribunal to see how he goes while leaving open the possibility of trying again in another forum. 21 There is no reason why the process of adjudication by the assessor, possibly followed by review and possibly followed by appeal to the Court of Appeal, cannot achieve a satisfactory outcome for the parties. I have therefore concluded that the claim for declaratory relief in prayer 4 of the summons and the related alternative claim in prayer 5 should be dismissed.

Orders 22 I will make the following orders: (a) I order that upon the conclusion of the Commercial List proceedings 2666587 of 2007, order 4 made on 26 March 2010 be varied so as to require the delivery by the plaintiff to the defendant, for a period of seven days, of all documents previously delivered by the defendant to the plaintiff pursuant to that order. (b) I order that the prayers for relief in paragraph 4 and 5 of the summons dated 24 March 2010 be dismissed. (c) The Amended Notice of Motion filed on 2 July 2010 is otherwise dismissed. (d) I order the plaintiff to pay 50 percent of the defendant's costs on the motion. (e) Exhibits may be returned.

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