BRIERLEY v REEVES

The Master's Reasons . 26 By a summons filed in the Common Law Division, the appellant claimed:- "1. In place of a determination of the Costs Assessor in proceedings number C/L 92577/1998 that the Plaintiff's Application was not made until the filing fee was waived on 19 February 1999 and, therefore, such Application was made out of time, a declaration that the Application was made on 9 December, 1998." 27 Consequential relief was sought and, under the heading "Statement of Grounds Relied Upon", it was stated:- "1. The Costs Assessor erred in law in construing the meaning of s 203(1) of the Legal Profession Act 1987 as amended and in so doing failed to take into account relevant considerations and/or took into account irrelevant considerations". 28 The Master traced the course of the proceedings and stated that the "nub" of the dispute was whether the application had been brought out of time. He noted, in par 10, that many arguments were advanced on behalf of the appellant. It is unnecessary, because of the way in which the matter was argued in this Court, to recite them. However, on the points argued before us, the Master determined that the language of s 203(1) was unambiguous and couched in mandatory terms. He said that the waiver or postponement is discretionary when the Proper Officer is satisfied as to "serious hardship" and continued that the mere receipt of the prescribed form by the Proper Officer on 9 December 1998 did not bring about the making of an application. He did not consider that an application was made "until all of the relevant statutory requirements" had been satisfied. In par 21 he continued:- "It would seem that the Proper Officer has in practice accepted and filed the application form and other documentation in the manner of the filing of documents in proceedings in the Court. Neither the Act nor Regulation provide any foundation for this practice". 29 He concluded, par 29, that in the circumstances the appellant had failed to satisfy him that there was any basis justifying disturbing the costs assessor's determination and that the appeal must fail.

A Consideration of the Appellant's Submissions. 30 I have set out the principal matters argued before us. There was argument before the Master and a suggestion in the grounds of appeal that the appellant wished to submit that there had been a waiver by the Proper Officer of the requirement that there be an application, based on "serious hardship", to waive the payment of the fee. Mr Taylor stated that no such submission would be made, although he proposed to submit that there had been an application by the appellant for a waiver and an acceptance of that application by the Proper Officer prior to the expiration of the twelve months. Of course, had that occurred, there would have been no need to pay any filing fee. 31 I find it convenient to deal with the submission that there was a waiver before the expiration of the twelve months' period first. 32 In my opinion it must be rejected. First, there was no evidence that as at 9 December 1998 the payment of the filing fee would cause any serious hardship and, at that time, Mr Heckenberg was willing and able to pay it. Secondly, I do not consider that anything in his conversation with the Proper Officer on 9 December 1998, to which he deposed in his affidavit of 6 April 2000, showed that the Proper Officer waived the filing fee. As Mr Heckenberg said he was instructed to request her to accept the application and either waive the filing fee or accept it on the basis that a reasonable filing fee be paid on completion of the assessment. The Proper Officer's response did not indicate that she was waiving the filing fee in the statutory sense, but rather allowing the application to be filed and, at least strongly impliedly, leaving the question as to what should be done in the future for further consideration. Thirdly, there is no evidence that the Proper Officer was aware when the requirements for making the application had to be met to satisfy the time requirements. Fourthly, the Proper Officer had no authority to waive the filing fee, other than pursuant to subs (4), and that required her to be satisfied that the condition in subs (4) had been met. Prior to 19 February 1999, no material was available to her to reach the conclusion that the requirements of subs (4) were met. 33 The facsimile transmission of 14 December 1998, in my opinion, carried the matter no further. The substantial allegation, which repeated that of 9 December 1998, was that the fee was "unjust" and therefore the request was made that it either be waived or that a "reasonable" fee be paid on completion by the party unsuccessful in the matter. 34 In all these circumstances there was not, in my opinion, any basis upon which the Proper Officer could have exercised her power to waive the fee prior to the expiration of the twelve months' period, and there is no evidence that she purported to do so. Mr Heckenberg's frank concession that no such application had been made, no doubt led to the filing on 19 February 1999 of the appellant's application, which brought about the response from the Proper Officer of 12 March 1999. That, in my opinion, was the waiver and it was made, according to the letter of that date, on the basis of the material furnished in the application of 19 February 1999. For all these reasons, I reject the submission that there was a waiver by the Proper Officer prior to the expiration of the twelve months' period. 35 The next question involves the issues of statutory construction. Mr Taylor conceded that he knew of no case where a statutory waiver has been held to have a retrospective effect. One can conceive that statutory provisions may so provide. However, when one has regard to the requirements of s 203(1) they point away from any retrospectivity. The clear words require, subject only to subs (4), that the application for assessment is to be accompanied by, i.e. have with it, the prescribed fee. It is the making of the application in the form required together with, once again subject to subs (4), the required fee that enlivens the jurisdiction under the Act to have the assessment referred to a costs assessor to be dealt with under the Act. All the requirements of subs (1) must be met within the time limited by the Regulations. There is no provision in either the Act or the Regulations for the granting of any extension of time. 36 Further, it seems to me that on a proper construction of s 203(4) an application to the Proper Officer for waiver or postponement "either wholly or in part" must be made before the period has expired. Unless it has been, the applicant does not know whether he or she is obliged to pay any or some of the fee with the application, or whether some or all of the fee has been postponed until some date specified by the Proper Officer. The application to the Proper Officer may have three results which would call for payment in whole or in part. The application may be refused, or a waiver or postponement may be granted in part obliging the payment of the balance. 37 Mr Taylor submitted that an applicant has the full period within which to bring the application. From that he submitted that it was therefore inappropriate to require an applicant to seek a waiver or postponement prior to the expiration of that period. I do not agree. The application must be filed within the twelve months' period and, subject to any dispensation allowed by the application of subs (4), it must be accompanied by the fee prescribed by the regulations. Thus, unless an applicant takes the steps necessary to determine whether he or she is entitled to the benefit of some or all the relief provided by subs (4), he or she does not know what must accompany the application. However, he or she cannot assume that an application when made will be successful and remains, therefore, under an obligation, if there is to be compliance with the section, to pay the prescribed fee. 38 This construction is strengthened, in my view, by the consideration that if it is unnecessary to pay the fee or any part of it with the application, there is no work for the words "waive" and, perhaps more particularly, "postpone" payment "in whole or in part" to do. The applicant simply makes a unilateral decision that he or she will not pay the fee or, will postpone payment until a time suitable to him or her. There is no statutory justification for any such view. 39 In these circumstances, I am satisfied that unless the prescribed fee or a lesser fee determined by the Proper Officer, pursuant to the exercise of the power conferred by subs (4), is paid with the application, the application is not made pursuant to subs (1) if it is filed without such fee unless, of course, the fee has been either wholly waived or postponed before the application is made. 40 I do not accept Mr Taylor's submissions as to the proper construction of s 203. To have a bill of costs referred to a costs assessor, in the circumstances of the present case, an application "is to be made" pursuant to the section, which requires a form of application prescribed by the Regulations "accompanied" by the prescribed fee, unless or to the extent to which that requirement is varied pursuant to subs (4). This involves doing two things: making the application and paying the prescribed fee unless or to the extent to which dispensation has been achieved. That dispensation must be achieved within the prescribed period. There is no provision for extending the time. If the requirements are not met within the specified time then there is no jurisdiction for the Proper Officer to exercise. 41 There is, in my opinion, one exception to this conclusion, which arises on a matter of statutory construction. If, prior to the application being made, the applicant has sought a waiver or postponement and the Proper Officer has failed to deal with it, then it seems to me that on the authority of Braganza v Minister for Immigration and Multicultural Affairs (2001) FCA 318 (28 March 2001), the applicant may well be able to argue that subject to giving an undertaking to comply with the requirements of s 203(1) either in its terms or as modified pursuant to a determination by the Proper Officer under s 203(4), the provisions of s 203 had been duly met. As was said in Braganza (pars 50 and 51):- "50. It will be recalled that the narrower argument accepts that the applicant for review must do something about the prescribed fee within the prescribed period, but contends it is sufficient that the applicant for review has sought waiver of the fee. 51. In our view this argument should be accepted. The effect of doing so is to hold that where an applicant for a visa makes an application for a waiver of the prescribed fee in accordance with Regulation 4.13, and that application is made within the prescribed period, the application for review may be entertained; provided that the fee is either eventually waived, or paid within a reasonable time after the application for waiver is rejected. That is, s 347(1)(c) should be read as being subject to the qualification that, provided an application for a waiver of the fee has been made within the prescribed period , the MRT is not prevented from considering the application for review merely because the prescribed fee has not been paid within the prescribed time". (My emphasis.) 42 That, in my opinion, provides an appropriate construction consistent with the authorities on statutory construction requiring effect to be given to the intendment of the legislation. However, it is to be borne in mind that in Braganza, unlike this case, the necessary steps had been taken before the relevant time expired. Their Honours, notwithstanding the view to which they came, expressly refused to overrule an earlier decision of Lehane J in Kirk v Minister for Immigration and Multicultural Affairs (1998) 87 FCR 99 where the necessary steps had not been taken in time and, on that basis, distinguished Braganza from Kirk. 43 A number of authorities on the question of statutory construction were gathered in the judgments of this Court in Helman v Byron Shire Council & Anor (1995) 87 LGERA 349 and in Botany Bay City Council v Remath Investments No 6 Pty Limited (2000) NSW CA 364. In Remath this Court was concerned with the proper construction of s 77 of the Environmental Planning & Assessment Act 1979, ("EPA Act"). Stein J referred to s 77(3)(b) as providing that a development application shall be made "in the prescribed form and manner". He referred to the "manner" of making such an application and said that he did not consider the word to be devoid of content or mere surplusage. He continued:- "In the context of the various requirements of subs (3) it means the way in which something is done, the mode of action or procedure ..." . 44 In par 13 his Honour said that he saw no warrant:- "... for splitting the requirements of a development application between it being made in the prescribed form and the documents necessary to accompany it, as well as the payment of the fee. I cannot accept that the latter requirements may be hived off so as not to be requirements for the making of the development application". 45 His Honour concluded that a development application could not be seen as "made" unless and until there had been substantial compliance with all of the requirements of s 77(3) and, until then, it was ineffective and incomplete. 46 Fitzgerald JA set out the relevant facts and referred to certain authorities. In par 47, his Honour said:- "Whether or not it is technically correct to say that a development application is 'invalid' while the requirements of s 77 of the unamended Act are not substantially complied with, references to 'invalidity' which can be 'cured' are capable of suggesting that a 'cure' is retrospective. If a development application in respect of which there has been substantial compliance with the requirements of s 77 is accurately described as incomplete and ineffective until there is substantial compliance, it becomes obvious that it is only then that a development application is completely or effectively 'made'". 47 In par 48, his Honour continued:- "Subsection 77(3)(b) requires that a development application be 'made' not only in the prescribed form but in the prescribed manner . A development application in the prescribed form which is not 'made' in the manner prescribed by s 77(3)(c) or (d) and (e) is not 'made' in the prescribed manner ". 48 When one returns to the words of s 203(1) there is a requirement for the way in which the application "is to be made" and of the fee by which it is to be accompanied. The absence of such a fee, unless one can call in aid subs (4) at the time of making the application, which, for the reasons to which I have referred, I do not consider one can in this case, means, in my opinion, that there has been such a failure to comply with the section that no application has been made. 49 In his written submissions Mr Taylor said that there is a critical difference between the Act and cl 11 of the Environmental Planning and Assessment (Savings and Transitional) Regulation. He submitted that in relation to the latter the statutory purpose necessarily contemplated an arbitrary point of distinction between the two regimes, and that it would be reasonably arguable that the ultimate statutory purpose was to provide an amplitude of operation for the new legislative provisions, which would justify a "purposive" interpretation of the transitional provision "which would require it to be construed as having a limited scope". On the other hand he submitted that the statutory purpose of ss 199 and 203 of the Act was to confer a right to apply for a costs assessment. He continued that they were empowering and entitling provisions which should be construed as fully as their language and apparent purpose of the legislation permitted. He relied heavily upon the existence of the "waiver" power in s 203 as providing a fundamental point of distinction and supporting the proposition that payment of the fee is not a pre-condition to the making of the application. I have stated why I reject this submission 50 His further submissions were that the wording of s 77(3)(b) pointed far more to a mandatory requirement than s 203(1). He relied upon the fact that the transitional provisions declared that the amendment to s 203 applied to "applications made" before the commencement of the amendments, and:- "This, given the nature of the amendment, necessarily means that the legislature intended an application had been 'made' even though no fee had accompanied the form of application". 51 Mr Grieve's written submission was that the supposed distinguishability of Remath was illusory because both statutes required certain steps to be taken by a certain time and in each, one was not; that the provisions which follow s 203 impose obligations on various parties, and that the application under s 203(1), with payment of the prescribed fee, is a pre-requisite to the incidence of those obligations, unless s 203(4) has operated; and that in the present case the Proper Officer was not provided with any information, which would enable a determination as to the condition in s 203(4) to be met within the prescribed time. 52 In my opinion, Mr Grieve's submissions are correct. There is no difference in substance between the requirements that an application be made and, for that to happen, all the statutory requirements must be met. 53 The amendments to s 203, which were made by the Legal Profession (Amendment Costs Assessment) Act 1998 and came into operation in September 1999, inserted in subs (4) the words "or postpone". 54 Mr Taylor relied upon the fact that in Schedule 8 to the last mentioned Act it was provided that the power to postpone or refund fees extended to applications made prior to the amendments to s 203, so that after the application had been made there could be a postponement or refund. It seems to me, with respect, that the amending Act was doing nothing more than placing postponements and refunds in the same category as waivers. But this does not alter the simple submission that for a postponement to apply it must be obtained or, in the type of case to which I have referred, sought before the expiration of the statutory period. In my opinion, the necessity perceived by the Legislature to provide for the right to postpone is contrary to Mr Taylor's submissions because, as I have said, that would not have been necessary if one was not obliged to pay with the application, but rather at some future date. This is emphasised by the fact that the Act does not provide for postponement to a date certain. Rather the postponement is within the Proper Officer's discretion. 55 Mr Taylor relied, essentially in the same way, upon the transitional period provision in relation to s 208U(2). It seems to me that that does nothing more than clarify the position in relation to fees, which may have been postponed and received after the relevant commencing date, but that it does not change the substantive position in relation to the requirement that the obligations imposed by s 203(1) be met within the time specified by the Regulations.

Conclusions . 56 In my opinion, the appeal must be dismissed with costs. 57 FITZGERALD AJA: The detailed judgment of Rolfe AJA enables me to state my reasons briefly. 58 The respondent, Anthony Charles Reeves (the "solicitor"), is a solicitor who practices under the name Kaplin, Reeves and Co. The solicitor acted for the appellant, Simon Brierley, (the "client") in litigation which was settled for the sum of $5,000,000.00, inclusive of costs. The solicitor's final Bill of Costs, dated 23 December 1997, was paid by the client. 59 By section 199(1) of the Legal Profession Act 1987, the client was entitled to "apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs." Because the costs had been paid, the application was required by s 199(2) "to be made within the period prescribed by the regulations..". Clause 25 of the Legal Profession Regulation 1994 provides that, for the purposes of section 199(2) of the Act, "the prescribed period for making an application for an assessment of a bill of costs is a period of twelve months after the bill was given to the client." 60 On 9 December 1998, the client lodged an application for an assessment of the solicitor's costs with the Registry of the Supreme Court and the application was stamped as filed. Obviously, that step was taken within the prescribed period. 61 Nonetheless, the Costs Assessor (Mr Hattersley) to whom the application was referred and Master Malpass in a decision delivered on 12 April 2000 have held that the client's application for assessment was not made within the prescribed period. 62 This appeal is brought by leave from the decision of Master Malpass. 63 As its heading suggests, s 203 of the Legal Profession Act prescribes how an application for assessment is to be made. Section 203 provides: " s 203 How is an application to be made? (1) An application for assessment is to be made in the form prescribed by the regulation and is, subject to subsection (3), to be accompanied by the fee prescribed by the regulations. (2) The application must authorise a costs assessor to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any barrister or solicitor concerned, in respect of the matter to which the application relates. (3) The application must contain a statement by the applicant that there is no reasonable prospect of settlement of the matter by mediation. (4) The proper officer of the Supreme Court may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants. (5) The proper officer of the Supreme Court may refund the fee paid under this section either wholly or in part if satisfied that it is appropriate because the application is not proceeded with." 64 It is common ground that the client's application for assessment was in the form prescribed by the regulations and contained the authorisation required by s 203(2) and the statement required by s 203(3). However, the application for assessment was not "accompanied by the fee prescribed by the regulations", as is required by s 203(1) "subject to subsection (3)". It is common ground that s 203(1) intended to refer to "subsection (4)". 65 The client's primary argument was that an application for an assessment is "made" for the purpose of s 199(2) when a prescribed form is lodged, and that payment of the prescribed fee is not essential for that purpose even when s 203(4) is inapplicable. 66 The requirement in s 199(2) of the Legal Profession Act that an application for assessment "be made within the period prescribed" plainly enough requires that it be "made within the prescribed period" in accordance with the Act; i.e., in the form and manner prescribed by the Act. Section 203(1) requires that "subject to subsection (4)", the application must be "accompanied by the prescribed fee". 67 Taken together, s 199(2) and s203(1) clearly indicate that, "subject to subsection (4)", an application for assessment is not "made" in accordance with the Act if the prescribed fee is not paid: cf Helman v Byron Shire Council (1995) 87 LGERA 349 and Botany Bay City Council v Remath Investments No. 6 Pty Limited [2000] NSWCA 364. Any tenuous indication to the contrary in the Legal Profession (Amendment and Costs Assessment) Act 1998 or cl 26H of the Legal Profession Regulations is insufficient to support the client's argument. 68 The proper officer's power under s 203(4) to waive payment of the fee formed the basis of the client's alternative argument, which was formulated in different ways at different times. The argument seemed to encompass propositions that the proper officer waived payment of the prescribed fee within the period prescribed by Reg. 25, or after that period on the basis of an application made during that period, or after that period on the basis of an application made after that period, and, perhaps, a proposition that it is still open to the proper officer to waive payment of the prescribed fee. 69 However, it was not argued that a proper officer has power to waive payment of the prescribed fee except under s 203(4), that a proper officer has power to waive payment under that subsection although not "satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants", that a proper officer can expand his or her power by mistakenly purporting to waive or postpone payment when that condition is not fulfilled or that the proper officer gave a direction to which s 121(4) of the Supreme Court Act 1970 is applicable. 70 On the evidence, the proper officer could not have been satisfied that serious hardship would result from payment of the prescribed fee and did not even consider that question, and there is no evidence that that requirement could be satisfied now. 71 I agree that the appeal should be dismissed, with costs.

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