Casaceli v Morgan Lewis Alter & Anor [2001] NSWSC 211 | Case summary

13377 of 2000 JOHN CASACELI v MARK EDWARD JAMES MORGAN, LESLEY LEWIS, PETER MAURICE ALTER & JOHN GRIMBLE PRACTISING AS MORGAN LEWIS ALTER & ANOR JUDGMENT 1 The plaintiff seeks to challenge a determination made by a Costs Assessor (Mr Hattersley). Subdivision 4A of the Legal Profession Act 1987 (the Act) makes provision for a review of such a determination by a panel. Section 208KA provides that a party to an assessment who is dissatisfied with a determination of a Costs Assessor, may, within 28 days after the issue of a certificate, apply to the Proper Officer of the Supreme Court for a review of the determination. Section 208KB provides that if an application for a review is duly made, the Proper Officer is to refer the application to a panel. Subdivision 4B makes provision for appeals. The provisions of s 208L and s 208M are to be found in that subdivision. Section 208L enables an appeal where there is a matter of law arising in the proceedings to determine the application for assessment. Section 208M enables the granting of leave to appeal. 2 The plaintiff firstly seeks either leave to apply for a review out of time or alternatively an extension of time in which to make application for a review. Both of the alternatives are misconceived. 3 The Act does not confer any power enabling the granting of leave. The Act does not contain any provisions enabling an extension of time. The Supreme Court Rules 1970 (the rules) do have provisions enabling time to be extended. However, the rules do not override the provisions of the Act. In any event, the rules only have application to proceedings in the court. Neither the assessment by the Costs Assessor nor its review by a panel involves a proceeding in this Court. Both of these processes are governed by the Legal Profession Regulation 1994. 4 It may be thought that the terms of the Act throw up some ambiguity as to whether or not sections 208L and 208M provide remedies that offer an alternative to a review. Although it was not so argued in this case, there may be a plausible view which favours the stance that sections 208L and 208M only become available to a party to an assessment after the review process has been undertaken. 5 Whatever be the position, the review process is provided by the Act as an effective procedure for challenging what has been done by a Costs Assessor. It can be used to ventilate questions of law and/or of fact. It was intended that it afford the parties an informal, expeditious and less expensive process to correct errors made by a Costs Assessor. Generally speaking, it seems to have been intended as the primary avenue of challenge to an assessment to relieve this Court of the workload that had been borne for some years in dealing with applications by way of appeal from decisions of Costs Assessors. Hitherto, this seems to have been the practice. However, recently, there have been a number of cases where the court has been approached under either sections 208L or 208M in circumstances where a party has failed to apply for a review within time. 6 For present purposes, I shall proceed on the assumption that the court can grant relief under either of the sections without the having of a prior review. This is a case where, because of error or oversight, the plaintiff failed to apply for a review within the prescribed time. Although the relevant documentation had been prepared within time, for reasons that the solicitor has been "unable to determine", it was filed out of time. Generally speaking, the court may be reluctant to extend time in those circumstances to enable the plaintiff to propound relief under either sections 208L or 208M. No doubt, the interests of justice may require relief to be granted in appropriate cases. Each case has to be looked at in the light of its own particular circumstances. 7 It is now appropriate to look at the matters relied on by the plaintiff by way of challenge to the determination. It is said that the determination was invalid and a nullity. It is said that there was a contravention of s 208 and the principles of natural justice in that the plaintiff was deprived of the opportunity of having submissions considered by the Costs Assessor. 8 I shall now look at the relevant facts. The application related to a bill of costs given to the plaintiff. The assessment proceeded over a period of about nine months. During that time, the plaintiff had made detailed objections (in the order of 107) and there had been a detailed response to those objections. 9 By facsimile transmitted on 16 October 2000, the Costs Assessor informed the solicitors for the plaintiff that he had sufficient material upon which to proceed to conclude the assessment and that if any final submissions were to be made that they should be received by the Costs Assessor before 4.00 pm on 27 October 2000. Inadvertently, the Costs Assessor issued his Certificate of Determination on 25 October 2000 (together with a statement of reasons). 10 The plaintiff had not made final submissions at the time of the issue of the certificate. Indeed, submissions were not made inside the deadline imposed by the Costs Assessor. The evidence from the plaintiff as to what was in fact done is less than satisfactory. The material calls for explanation which has not been provided. 11 By facsimile transmitted on 26 October 2000, the solicitors for the plaintiff asked the following of the Costs Assessor:- "Please explain to me how you have concluded your assessment when submissions are not yet closed".

The Costs Assessor responded by facsimile transmitted at 10.15 am on 27 October 2000. In that facsimile the plaintiff was invited to put any proposed final submissions before him. He exhorted that this be done without delay. 12 On the afternoon of 1 November 2000, the Costs Assessor received from the solicitors for the plaintiff a letter dated 23 October 2000 together with various attachments. This material had been transmitted by facsimile. In the light of the evidence (or lack of it), presumably the material could have been transmitted on the date that it bears. There is no explanation as to why this material (which was dated 23 October 2000) was not given to the Costs Assessor until 1 November 2000. I should add that the plaintiff has not placed a copy of it before the court. 13 By facsimile transmitted on 3 November 2000, the Costs Assessor advised the solicitor for the plaintiff that he had read and considered all of the material and the submissions. Further, in substance he advised that nothing in that material had the effect of him wanting to change in any respect the determination that he had made on 25 October 2000. The Costs Assessor did not accede to a subsequent request to issue a new certificate (to be dated 3 November 2000). 14 I should add also that I see no reason why the court should not fully accept what the Costs Assessor has said in relation to the documentation dated 23 October 2000. 15 I do not accept the contention that the certificate was invalid and a nullity. In my view, the certificate remains valid and enforceable until it is set aside by the court (see inter alia s 208K). 16 If it be established that there has been some non-compliance with a statutory provision or a departure from natural justice, that does not necessarily lead to a setting aside of a determination. In exercising its powers the court has regard to the interests of justice between the parties. It would be loath to set aside a determination if the doing so was an exercise in futility. To engage in such an exercise would simply put the parties to further needless expense. 17 Section 208 (1) provides inter alia that a Costs Assessor must not determine an application for assessment unless he has given a party a reasonable opportunity to make written submissions and has given due consideration to any submissions so made. 18 In this case, the plaintiff was given such a reasonable opportunity. It seems that he was in a position to make final submissions prior to the issue of the certificate but for unexplained reasons he did not do so. Although the plaintiff did not make submissions within the deadline fixed by the Costs Assessor, the Costs Assessor gave due consideration to the submissions that were subsequently made. These submissions could only have effectively related to what had been put in issue (and canvassed) in the objections. 19 Certain other matters were put on the basis that it was said that they demonstrated error of law. The submissions on these matters may be found in Part C of an Outline of Submissions that the plaintiff handed up to the court (these related to what was said to be instructions given by and work performed for a Mr Howlin). These matters were dealt with by the Costs Assessor in his reasons. I am not satisfied that any of those submissions demonstrate either an error of law or an error justifying the disturbing of the determination. Indeed, I am of the view that the approach taken by the Costs Assessor was open on the material that he had before him. If there had been any substance in the matters agitated in these submissions, the review process was appropriate for their ventilation. 20 In this case the plaintiff does not seek relief under s 208M. Accordingly, the only remaining matter is whether or not he is entitled to relief under s 208L. Without an extension of time, he has no locus standi to bring an application. 21 The court has a discretionary power to extend time. It is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The plaintiff bears the onus of satisfying the court that he has an entitlement to relief. 22 In the circumstances of this case, it is relevant to take into consideration the matters that the Act provided an effective procedure (the review process) for the challenge which was intended to be made to the determination and that the plaintiff failed to take the opportunity to exercise that procedure. It may also be observed that the legislature made no provision for an extension of time to make such an application for a review. 23 At this stage, I should mention for completeness that the plaintiff has advanced what is described as a fall back position. He wants the determination set aside so that he can enliven his prospects of a review. In the light of what is said elsewhere herein, that matter can be put aside. 24 For present purposes, the other relevant discretionary considerations include the matters of whether or not the plaintiff has an arguable case, the length of the delay in the making of the application and the explanation offered for that delay. 25 In this case, I have reached the view that there is no arguable case. That matter of itself suffices to defeat the application for extension of time (it would be an exercise in futility). However, it may be added that whilst the delay is not of great magnitude, (nearly two months) there are deficiencies in the explanation offered for it. 26 In my view, the plaintiff has not demonstrated any entitlement to relief. Accordingly, the Summons is dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned. **********

Casaceli v Morgan Lewis Alter & Anor

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