Boris Reznitsky v District Court of New South Wales & State of New South Wales

Background

1. The applicant and his mother, Mina Reznytska, commenced separate proceedings against the respondent by Statement of Claim filed on 2 December 2009. Finnane QC DCJ ordered verdicts for the respondent in both matters and ordered the applicant and his mother to pay the respondent's costs on an ordinary basis until 16 March 2011 and on an indemnity basis thereafter. [2]
2. The applicant's complaints concern the costs assessment process consequent upon the adverse costs order.
3. The chronology is set out in the primary judgment. [3] It provides the background to the primary judge's critical findings.
4. The respondent filed an application for costs assessment in the applicant's matter in the Supreme Court of NSW on 5 February 2013. On 24 April 2013, Maxwell Connery, Costs Assessor, wrote to both parties advising that he was calling for objections from the plaintiff within 21 days and stating, "unless I call for further material I will then proceed with my determination and not receive any further written submissions from either party". It appears the applicant submitted a notice of objection dated 10 May 2013. By May 2013 a new costs assessor had assumed conduct of the assessment. On 14 May 2013 the Crown Solicitor's Office wrote to that costs assessor contending the issues the applicant raised in his notice of objection were not relevant to the assessment. [4]
5. Thereafter correspondence ensued. On 24 May 2013 the costs assessor advised both parties that she "intend[ed] to proceed with this application". In a separate letter of even date she advised the applicant that "any further objections whatsoever to the bill" they should be notified within 14 days. [5]
6. On 5 June 2013 the applicant wrote to the Costs Assessor asking "how the [State] would justify, that the expenses or costs actually occurred at that time, as it [sic] mentioned in the bill?" He also asked for a copy of the bill in electronic form so that he could verify it. He said his "health conditions required him to work 'at small pace [sic]' and indicated he would reply to the application for assessment 'within 5 - 6 weeks'." [6]
7. On 17 June 2013 the Costs Assessor wrote to the applicant "providing some general statements of advice … but advising that the assessor's role did not include the provision of advice or information". On 25 June 2013 the State provided information to the applicant in response to his letter to the Costs Assessor, including the names of the solicitors working on the file. [7]
8. On 28 June 2013 the Costs Assessor again wrote to the applicant referring to the correspondence from the Crown Solicitor's Office and stating he "would need" to provide any "further specific objections in relation to the bill" within 21 days of the date of her letter. The applicant replied stating that he would be able to reply "at about 28 of July 2013". [8]
9. On 22 July 2013, the Costs Assessor wrote: "Thank you for your letter dated 15 July 2013. There has already been ample time in which to file responses. However I look forward to receipt of final responses no later than Monday 5 August 2013. Would the applicant kindly let me have any response they wish to make within 14 days thereafter." (Annexure P, Exhibit 1.) (Emphasis added.) [9] The reference to "applicant" was to the State.
10. Thereafter the applicant asked for an extension to 19 August 2013 on the basis that he had medical certificates which would cover the period up to 9 August 2013. On 11 August 2013 the applicant wrote "stating that only 10-15% of the entries in the bill of costs could be justified, that the entries were 'defective' and that the amounts claimed by the costs applicant had 'no ground [sic]'." He sought further particulars from the State and stated "once we received the reply, we would be able to provide your [sic] with our submissions/the objections to the bill of costs." According to the primary judge, "that was replied to, albeit somewhat briefly, on 27 August 2013." [10]
11. On 2 September 2013, the Costs Assessor wrote to the applicant referring to what "purports to be 'a request for particulars' addressed to the [costs assessment] Applicant". The letter advised that the "[a]pplication was received by me on 21 May 2013 and is overdue for completion." It explained what steps the Costs Assessor proposed to take in order to "determine whether or not the work was "'fair and reasonable' and whether or not the time charges are 'fair and reasonable'", [11] and concluded: "Subject to the above comments, the Applicant may wish to respond to the Respondent's final objections dated 11 August 2013. Could the Respondent do so within twenty one (21) days of the date hereof, or earlier if possible. Would the Applicant thereafter let me have their file in order that I might finalise this matter." [12]
12. By letter dated 16 September 2013, the applicant "foreshadowed further submissions and requested until 23 September to do so." [13] On or about 23 September 2013 he filed submissions in the Supreme Court which were sent to the Costs Assessor on 25 September 2013. The applicant's 23 September document was apparently entitled "Respondent's objections (part 1)" (the "Part 1 document").
13. However, by that time, the Costs Assessor had prepared the Certificate of Determination and reasons dated 25 September 2013. She advised the parties by letter dated 25 September 2013 that in accordance with s 369 of the Legal Profession Act 2004 (NSW) (the "LPA"), those documents had been forwarded to the Manager, Costs Assessment. The letter also advised that as the Costs Assessor was "now functus officio" any further correspondence should be addressed to the Manager. [14] It appears the Supreme Court forwarded the Certificate of Determination and reasons to the parties on 13 November 2013.
14. The applicant appealed to the District Court of New South Wales against the decision of the Costs Assessor pursuant to s 384(1) of the LPA. Such an appeal lies where a party to an application for a costs assessment is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application. [15] Gibson DCJ entered judgment for the respondent with costs.

Legal framework

1. The following provisions of the LPA are relevant: "359 Consideration of applications by costs assessors (1) A costs assessor must not determine an application for assessment unless the costs assessor: (a) has given both the applicant and any law practice or client or other person concerned a reasonable opportunity to make written submissions to the costs assessor in relation to the application, and (b) has given due consideration to any submissions so made … … 363 Criteria for costs assessment (1) In conducting an assessment of legal costs, the costs assessor must consider: (a) whether or not it was reasonable to carry out the work to which the legal costs relate, and (b) whether or not the work was carried out in a reasonable manner, and (c) the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 361 or 362 applies to any disputed costs …."
2. On making a determination of costs, a costs assessor is to issue a certificate that sets out the determination. [16] The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs. [17]
3. Section 371(1)(a) empowers a costs assessor to make a new determination in substitution for the previous determination "for the purposes of correcting an inadvertent error in the determination".

Primary Judgment

1. The grounds the applicant identified in his summons were set out in a narrative form. It would appear that through a process of questioning the applicant and accepting the respondent's construction of the applicant's summons, the primary judge determined that he advanced two grounds of appeal: 1. that the document entitled 'Respondent's objections (part 1)' was not considered by the Assessor; and 2. that because of the unexpected finalisation of the assessment, he was precluded from submitting further objections. [18]
2. The primary judge in essence described the applicant's complaint as one of the absence of procedural fairness by reason of the Costs Assessor having failed to consider the document 'Respondent's objections (part 1)' and the asserted unexpected finalisation of the assessment. [19]
3. The primary judge was not satisfied that the Costs Assessor received the Part 1 document and made a decision to ignore it. Rather, her Honour found that the dates of the correspondence made it clear that: "[T]o put the plaintiff's case at its highest, his belated submissions would have crossed with the reasons for determination given by the Costs Assessor, and that in those circumstances, given the repeated request from the Costs Assessor for the plaintiff to provide objections and the plaintiff's failure to keep to previous proposed timetables he had proposed, the Costs Assessor would not have been expecting the provision of these submissions." [20]
4. Her Honour found it was likely the Costs Assessor received the Part 1 document "on 25 September … which was not only after the cut-off date given by the Costs Assessor, but also … after completion of the assessment." [21]
5. The primary judge also observed that the Part 1 document "was by no means the complete list of objections [but] only 'part 1'", so that "[e]ven if the document had reached the Costs Assessor in time, it would only have dealt with some of the issues for determination, and further extensions of time would be necessary." [22]
6. Her Honour observed that: "[23] The plaintiff did refer to an intention to submit further objections in his letter to the Costs Assessor dated 16 September 2013. However, he had proposed such timetables to the Costs Assessor in previous correspondence and failed to comply with them. The Costs Assessor was entitled to determine the application without waiting to see if submissions would be sent by this further date. The application had been before the Costs Assessor for over seven months, and I am satisfied, having regard to the correspondence set out above, that the plaintiff had been given ample opportunity, notwithstanding his health problems, to submit objections. In addition, over this period, the plaintiff supplied submissions and objections to the Costs Assessor as well as a lengthy request for particulars. [24] The Costs Assessor has set out a history of the costs assessment procedure in her reasons for determination and these disclose each of the objections and submissions made by the plaintiff. It is clear from the content of the reasons for determination that these matters have been addressed, although the relevance of much of this material is tenuous. 'Due consideration' (s 359 Legal Profession Act 2004 (NSW)) need only be given to submissions made within the 'reasonable opportunity' period. Seven months is an ample period, notwithstanding the plaintiff's health."
7. The primary judge listed a number of complaints the applicant advanced about the costs assessment procedure which the applicant contended exposed issues of procedural unfairness. Those included complaints that the costs assessor had failed to comply with ss 359, 363 and 371 of the LPA as well as matters relating to criticisms of the Costs Assessor's analysis of the competing contentions about the costs claimed.
8. Her Honour referred to the limited nature of an appeal under s 384 of the Act by reason of it being confined to a decision with respect to a matter of law. The effect was, in substance, that her Honour would not consider mere factual challenges to the assessment. [23]
9. The primary judge was satisfied that, "following a series of generous extensions given in the correspondence … a final date [sic, was] given by the Costs Assessor, this being 'within twenty one (21) days of the date hereof, or earlier if possible', namely prior to 23 September. When that date arrived, the Costs Assessor proceeded with the assessment, which was completed on 25 September." [24]
10. Her Honour was also satisfied that the Costs Assessor was entitled to give a "final date" to the applicant and, when he failed to comply with it, "to proceed to assessment". He "had already been afforded a series of reasonable opportunities to lodge his objections and there was no requirement for the Costs Assessor to delay the determination further in order to allow [him] to continue to present additional submissions." Her Honour concluded that the Costs Assessor did not deny the applicant procedural fairness by either "failing to take into account" the Part 1 document or in handing down the assessment to the parties. [25]
11. Alternatively, the primary judge found that if she had erred in holding there was no procedural fairness, the error would not have justified disturbing the assessment as her Honour accepted the respondent's submission (which the applicant did not controvert), that "there was nothing new in the 'part 1' document." [26]

Applicant's Submissions

1. The applicant's primary complaints, which he describes as the "common grounds in the application for judicial review", are that the primary judge denied him procedural fairness, failed to take into account relevant considerations and made decisions which were contrary to the evidence.
2. The applicant's submissions were not structured so as to identify into which of these categories of complaint they fell. In essence, however, he appears to have rehearsed the submissions he made before the primary judge and complains that her Honour either failed to deal with them or reached the wrong conclusion.
3. The applicant identified five complaints he contended he had made in relation to the costs assessment, all of which he complained the primary judge had failed to deal with.
4. These were first, that the Costs Assessor erred in rejecting or failing to consider or take into account what he described as "the unopposed Plaintiff's objections to the Bill/or his submission … in support of an outcome of the costs assessment in his interest." This appears to be a complaint that the costs assessor failed to consider his Part 1 document.
5. Secondly, he complained that the Costs Assessor erred in failing to comply with LPA, s 371 in failing to "review her decision, renew the certificate" after the arrival of the Part 1 document on 25 September 2013.
6. Thirdly, he complained that the Costs Assessor failed to afford him procedural fairness in completing the assessment not only without taking the Part 1 document into account, but also in considering the State's files which were not available to him.
7. Fourthly, he complained that the Costs Assessor failed to reduce the State's costs by an amount of 30 - 35%, that being a reduction for which he had apparently contended in his Part 1 document.
8. Finally, he complained that the Costs Assessor failed to afford him procedural fairness in a manner which, again, appears to relate to the costs assessor not continuing to entertain submissions which, he contended, could have been submitted "well before 13 November 2013, when the Certificate of Determination, issued on 25 September 2013 … was served on [him]." I assume this relates to the further iterations of his objections to the bill of costs presaged by the heading "Part 1" on the 25 September document.
9. In addition to complaining that the primary judge had failed to deal with these five matters, the applicant complained that her Honour erred in determining that he had had seven months to object to the State's bill, in failing to consider the "focal point" (which appears to refer to his complaint that it was the State which caused "unnecessary delays during the costs assessment proceedings") and also in failing to consider the "focal point" which, on this occasion, appears to be a reference to LPA, s 371.
10. The applicant also complains that the primary judge failed to take into account "all relevant matters: not only submitted as … favourable to the State, but also those that were submitted by the [applicant]" and, too, that her Honour failed to take into account the fact that the costs assessment application "was filed and proceeded by the State without leave and well after (years after) the limitation period."

Respondent's Submissions

1. The respondent submitted that the applicant had failed to identify any jurisdictional error or error on the face of the record that would warrant the intervention of this Court. It also contended that the applicant's submissions ventilate those which were before the primary judge, which her Honour addressed within the narrow context of statutory appeal for which s 384(1) of the LPA provides.

Consideration

1. Judicial review is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior courts thinks should have been made. [27]
2. To succeed on his application for judicial review, the applicant must establish an error of law on the face of the record of the court below or jurisdictional error. These are alternative bases of relief. Not every error of law is a jurisdictional error, but a jurisdictional error is not necessarily confined to an error of law appearing on the face of the record. [28] However, to attract s 69 relief, it is not sufficient to point to some error of fact or miscarriage of discretion. [29] Thus, in the present context, as Beazley JA said in Arnott v Glissan, "[a] challenge to the assessment [of costs] in terms of its quantification , either in totality or in respect of certain items would rarely, if ever, give rise to a matter of law". [30]
3. There will be jurisdictional error where a decision-maker ignores relevant material. [31] Failure to afford procedural fairness also constitutes jurisdictional error. [32] Procedural fairness requires "a fair hearing, not a fair outcome". Accordingly, in an inquiry as to whether procedural fairness was accorded, the relevant question is about the decision-making process, not the actual decision. The statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires; the particular content to be given to the requirement to accord procedural fairness depends upon the facts and circumstances of the particular case. [33]
4. In my view the applicant has not established that the primary judge erred in any of the respects for which he contended in seeking judicial review.
5. It must be borne in mind that the Court is conducting a judicial review of how the primary judge dealt with the applicant's s 384(1) appeal, not a review of the costs assessment process itself.
6. The primary judge examined the Costs Assessor's approach to the assessment she was required to undertake. Her Honour determined, having regard to the requirements of LPA, s 359, that the Costs Assessor had given the applicant a reasonable opportunity to make his submissions and, further, that it was apparent from the Costs Assessor's reasons that she had considered the applicant's objections.
7. Insofar as her Honour found that the Costs Assessor had not considered the Part 1 document, that was because it had been received after the deadline of 23 September 2013 that the Costs Assessor had, and had been entitled, to set. Further, in any event, the primary judge was satisfied that had the Costs Assessor been obliged to consider the Part 1 document, and, in failing to do so, failed to accord the applicant procedural fairness, her Honour concluded that document would not have altered the Costs Assessor's decision.
8. Insofar as the applicant complained about a number of factual controversies he contended the Costs Assessor ought to have determined, the primary judge sufficiently dealt with those propositions by concluding that on an examination of the Costs Assessor's reasons she was satisfied that the Costs Assessor had taken the applicant's objections into account. It was not, however, as her Honour had pointed out, a matter for her to resolve a factual controversy such as whether the State's costs were "fair and reasonable".
9. Further, the primary judge's conclusion that the Part 1 document was received after the Costs Assessor had completed the process of assessment effectively answered the applicant's s 371 submission. The Costs Assessor considered the materials she was required to consider, reached her conclusion and issued her certificate of determination. Failure to consider a document belatedly received after the time for undertaking that process had expired did not constitute an "inadvertent error" which would attract the operation of LPA, s 371.
10. It was a matter for the primary judge to determine the period of time during which the applicant had been afforded the opportunity to deal with the State's application for costs assessment. Her Honour determined that on her examination of the papers, the applicant had been afforded the "reasonable opportunity" referred to in LPA, s 359. That finding undoubtedly encompassed her Honour's consideration of the exchanges of correspondence as between the various parties to which she had referred in the chronology of communications. It is clear that she concluded that to the extent there had been delays, those which were relevant were attributable to the applicant, critically the late submission of the Part 1 document. These were findings of fact it was open to the primary judge to make for the purpose of considering the applicant's procedural fairness complaint. The applicant has not identified any error of law on the face of the record or jurisdictional error in this respect.
11. In his oral argument during the hearing in this Court, the applicant also complained that the Costs Assessor should not have assessed him as liable for costs in relation to what he described as the "first motion". This apparently related to an issue concerning his liability for the costs of an amendment to his pleadings, presumably in the proceedings before Finnane QC DCJ. He contended he had raised this complaint before the primary judge. On the assumption that he did, the question of his liability for that item of costs would have involved an issue of fact rather than a matter of law. Accordingly it would not have been within her Honour's jurisdiction to determine pursuant to LPA, s 384(1). [34]
12. In my view the applicant has not demonstrated any denial of procedural fairness, failure to consider a relevant consideration or decision made by the primary judge which was contrary to the evidence.
13. I propose that the applicant's summons be dismissed with costs.
14. WARD JA: I agree with the order proposed by McColl JA for the reasons her Honour has given.
15. BALL J: I agree with McColl JA.

Endnotes

1. Reznitsky v State of New South Wales [2014] NSWDC 143.
2. Boris Reznitsky v State of New South Wales (District Court (NSW), Finnane QC DCJ, 24 May 2011); Mina Reznytska v State of New South Wales (District Court (NSW), Finnane QC DCJ, 7 June 2011).
3. Primary judgment (at [6] - [20]).
4. Primary judgment (at [7]).
5. Primary judgment (at [8] - [9]).
6. Primary judgment (at [10]).
7. Primary judgment (at [11]).
8. Primary judgment (at [12] - [13]).
9. Primary judgment (at [14]).
10. Primary judgment (at [16] - [17]).
11. Cf LPA, s 363.
12. Primary judgment (at [18]).
13. Primary judgment (at [19]).
14. Primary judgment (at [20]).
15. Section s 384(1), LPA.
16. s 368(1), LPA.
17. s 368(5), LPA.
18. Primary judgment (at [2]).
19. Primary judgment (at [21]).
20. Primary judgment (at [22]).
21. Primary judgment (at [31]).
22. Primary judgment (at [32]).
23. Primary judgment (at [28]).
24. Primary judgment (at [30]).
25. Primary judgment (at [35]).
26. Primary judgment (at [36] - [37], [39]).
27. Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (at 175).
28. AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 (at [50]) per Sackville AJA (Adamson J agreeing).
29. "V V" v District Court of New South Wales [2013] NSWCA 469 (at [10]) per Barrett JA (Ward and Leeming JJA agreeing). The applicant sought to rely on principles concerning judicial review explained in Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79. In some respects, that case does not afford an appropriate reference point for consideration of this Court's jurisdiction on the application as it involved an application for judicial review in respect of a judicial officer exercising the District Court's criminal jurisdiction. In that respect the ambit of judicial review was somewhat circumscribed by s 176 of the District Court Act 1973 (NSW): see Reznitsky v Director of Public Prosecutions (NSW) (at [8]) per Emmett JA.
30. [2013] NSWCA 138 (at [6]); the primary judge referred to this quotation (at [27]), albeit by reference to the medium neutral citation the case had when before three members of this Court: Arnott v Glissan [2013] NSWCA 316.
31. Craig v South Australia (at 179); see also Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 (at [82]) per McHugh, Gummow and Hayne JJ.
32. Reznitsky v Director of Public Prosecutions (NSW) (at [37]), see also Wang v Farkas [2014] NSWCA 29; (2014) NSWLR 390 (at [41]) per Basten JA (with whom Bathurst CJ and Beazley P agreed).
33. SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006 228 CLR 152 (at [25] - [26]) per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.
34. See primary judgment (at [28]). 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: 13 July 2015