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[2013] NSWDC 218
District Court of NSW
2013-11-15
Philip J
Original judgment source is linked above.
Table of Contents Summons [1] - [3] Factual background [4] - [13] Issues [14] - [16] Evidence [17] - [20] Summary of submissions [21] - [26] Consideration [27] - [36] Disposition [37] Costs [38] Orders [39]
Summons 1This is an appeal brought by way of summons filed by the plaintiff applicant, Ms Celia Cavar, on 7 August 2013. Ms Cavar, who has legal qualifications from overseas, was self-represented in these proceedings, and declined the opportunity to seek legal assistance. 2The subject matter of the summons raises, first, an appeal as of right from the decision of a costs assessor given on 5 June 2013 concerning his assessment of an order for indemnity costs that Ms Cavar has been ordered to pay as a result of a decision made in underlying proceedings in the Local Court on 16 August 2012, and secondly, an application for leave to appeal that decision. 3The beneficiaries of the costs order made in the Local Court, Manda Gombovic and Matija Pedisich, the defendants and respondents to these proceedings, were the successful parties in the underlying Local Court proceedings, which were heard on 28 and 29 June 2012. Bankwest was another party to those proceedings, however, Ms Cavar has settled her claim against that entity.
Factual background 4The underlying dispute concerned the entitlement of the parties to certain bank deposit funds. Ms Cavar claimed that her funds had been mis-appropriated from her bank accounts by the respondents. She was aggrieved at the result of the proceedings in the Local Court and sought to pursue an appeal in the Supreme Court in relation to the result of those proceedings. 5On 1 May 2013, in the Supreme Court, Ms Cavar's amended summons seeking to appeal the Local Court decision was struck out, and an order was made denying her leave to re-plead that summons unless a further grant of leave was made by a registrar of that court: Exhibit "1". 6In the meantime, there had been no stay obtained in relation to the underlying orders of the Local Court made on 16 August 2012, including the cost orders made on that date. Accordingly, in respect of those proceedings, as costs applicants, the respondents proceeded to obtain an assessment of those costs. 7On 11 December 2012, the respondents, as costs applicants, forwarded to Ms Cavar an application for the assessment of costs of the Local Court proceedings. Ms Cavar raised no objections to the bill of costs for assessment, although she did advise the present respondents that the decision dated 16 August 2012 in the underlying matter would be the subject of an appeal, and she therefore objected to that costs assessment proceeding until the appeal had been determined. That stance represented an erroneous view of the appropriate procedure for seeking to pursue her rights in those circumstances. 8On 22 January 2013, the respondents filed an application for assessment of costs. In his reasons for decision concerning that application, the costs assessor noted that in the absence of an order staying the orders made by the Local Court on 16 August 2012, the present respondents, as costs applicants, were entitled to proceed with their application for the assessment of their costs. 9On 5 June 2013, the costs assessor determined that the fair and reasonable amount of Ms Cavar's liability for costs in the Local Court proceedings was in the sum of $12,593.58, including an amount of $1144.87 for GST. 10In arriving at that assessment, the costs assessor noted that the only position that Ms Cavar had taken in relation to the costs assessment was that the assessment should not proceed pending her appeal to the Supreme Court. 11The present summons seeks orders that were confusingly formulated. Ms Cavar sought to have the judgment or order of the court below set aside. That remedy was not available to her in this appeal. She was also seeking to have the costs issue re-determined in her favour, and as I read her document, in the alternative, she sought an order for the costs assessment to be re-determined. 12The grounds relied upon by Ms Cavar in respect of the appeal as of right pursuant to s 384(1) of the Act, were prolix, convoluted, and sought to raise irrelevant matters. It is a sufficient summary of those grounds to say that essentially, she was seeking to re-litigate the matters that had already been decided in the underlying proceedings. 13In doing so, Ms Cavar was alleging criminal behaviour on the part of others, as well as misconduct on the part of the solicitor for the respondents to these proceedings, as well as by the costs assessor. It was not possible to form any reasonable view of the merits of such allegations on the material that was tendered, and they must therefore be regarded as mere allegations, albeit serious ones, for which no evidence has been produced.
Issues 14In these proceedings, Ms Cavar claims that the costs assessor had made a decision as to a matter of law, and that she is dissatisfied with that decision. That is the only ground upon which Ms Cavar's present appeal may proceed in this court as of right: Legal Profession Act 2004, s 384)(1). 15The real question to be decided in these appeal proceedings is whether, in the absence of an order staying the orders made by the Local Court on 16 August 2012, the costs assessor was entitled to proceed with his assessment of costs. 16Ms Cavar also sought to raise an appeal by leave based on s 385(1) of the Act. That claim will be analysed in the course of these reasons for decision.
Evidence 17In support of her appeal generally, Ms Cavar relied upon her affidavit affirmed and filed on 25 September 2013, along with bundles of documents that were tendered in the series Exhibits "A" to "G". With the exception of Exhibit "A", essentially, those documents had little to do with the issues that were before the costs assessor, and seemed to relate to the merits of the underlying issues that had already been decided in the Local Court proceedings. 18Ms Cavar was not required for cross-examination on her affidavit. By consent, and for expediency, the statements she made from the bar table prior to the commencement of final addresses, were treated as if that material comprised oral evidence in the appeal. She was not required for cross-examination on those statements, which were essentially in the nature of submissions. The respondents took an expedient course and raised no objections to the form, content or relevance of Ms Cavar's affidavit and the materials that she had tendered. 19Exhibit "A" of Ms Cavar's materials comprised a St George Bank Fraud Report dated 8 October 2013. She pointed to that document as new evidence in support of an appeal by leave pursuant to s 385(1) of the Act. That document recorded that Ms Cavar claimed the sum of $39,453.46 had been stolen from her account with that bank. 20The respondent called no evidence apart from tendering an extract of the orders made by the Supreme Court on 1 May 2013, to show that Ms Cavar's amended summons of appeal from the Local Court proceedings had been struck out in that court: Exhibit "1".
Summary of submissions 21In support of her appeal under s 384(1) of the Act, Ms Cavar presented unstructured and confused submissions that were intermingled statements, and which invoked vague concepts of justice by which she largely sought to revisit matters that had apparently been litigated in the Local Court. 22I advisedly use the term apparently in respect of the Local Court proceedings because the transcript and the reasons for decision in the underlying proceedings in that court were not tendered in evidence at the hearing of the summons. 23Therefore, it was not possible to determine what had actually been decided in those underlying proceedings. Ms Cavar had the onus of proving that matter. 24In essence, the response of the respondents to those arguments was to submit that the appeal was without merit, and that the absence of a stay of the Local Court proceedings was fatal to the appeal succeeding. It was further submitted that under the guise of this appeal Ms Cavar was simply trying to re-litigate matters that had already been decided by the Local Court. 25In support of her application for leave to appeal under s 385(1) of the Act, Ms Cavar argued that Exhibit "A" constituted new evidence, which she argued justified the grant of leave to appeal pursuant to that section. The respondents to the appeal directed no specific arguments in response to that submission, which will be addressed shortly. 26Ms Cavar accepted that it was possible that her summons proceedings under present consideration might be unsuccessful. She indicated that in such an event, she would pursue a further appeal from any decision by which she was unsuccessful.
Consideration 27In respect of the claim to an appeal as to a matter of law, pursuant to s 384(1) of the Act, for the reasons that follow, I consider that no matter of law has been relevantly identified by Ms Cavar. 28The costs assessor had acted properly and according to law in all the respects that were required of him. He had before him a properly constituted costs assessment. He gave all parties the opportunity to make submissions, he had no notice of a stay of the cost orders for assessment, and he had been given no justification for deferring his assessment whilst an appeal was pursued to the Supreme Court. He correctly stated that any such appeal, of itself, does not operate as a stay of the orders. There were no objections placed before him on individual matters in the bill of costs for assessment. He also noted that Ms Cavar had elected not to make submissions. In those circumstances, he proceeded to make his assessment of the fair and reasonable costs due to the beneficiary of the costs order that he was required to assess. 29In those circumstances, it cannot be reasonably said that on the face of the reasons of the costs assessor, any matter of law of the kind contemplated by s 384(1) of the Act has been identified. 30In respect of the claim for leave to appeal pursuant to s 385(1) of the Act, in my assessment that claim must fail because it has been brought in the wrong court. This conclusion arises because of the way in which s 385(1) of the Act must be interpreted. 31An application for leave to appeal under that section should be made to the court that made the order for costs. In that regard, I propose to follow other decisions to that effect: Randall Pty Limited v Willoughby City Council 2009 NSWDC 118 at [30]; McCausland v Surfing Hardware International Holdings Pty Limited [2010] NSWDC 222, at [22] to [23]. It follows that the application for leave to appeal pursuant to s 385(1) of that Act should have been made in the Local Court. 32In case I be wrong in that interpretation, I will proceed to consider the new evidence invoked by Ms Cavar in support of an application for leave to appeal under s 385(1) of the Act. 33An examination of Exhibit "A" reveals that the document in question is a St George Bank form that is designed to record a claim of fraudulent misappropriation from a customer account with the bank, and in fact it records such a claim. The form records the fact that Ms Cavar has accused persons named Amka Pavicic, Manda Gombovic and Matija Pedisich of fraud, and of stealing her money. 34The form does not constitute proof of the allegations made by Ms Cavar to the effect that these persons had in fact acted fraudulently, and had in fact stolen her money. 35Furthermore, from the terms of the form and the nature of the allegation made in the annexures to Ms Cavar's affidavit of 25 September 2013, I infer that the matters recorded in the form which comprises that exhibit, have already been judicially determined between the parties in the decision of the Local Court. 36In those circumstances, the material relied upon is not new material in the relevant sense, and therefore the claim for leave to appeal under s 385(1) of the Act would be bound to fail, irrespective of which court in which the application for leave to appeal pursuant to that section was brought.
Disposition 37It follows from the foregoing reasons that Ms Cavar's appeal and her application for leave to appeal has been unsuccessful.
Costs 38As a consequence of the unsuccessful appeal, Ms Cavar must pay the respondent's costs of the appeal on the ordinary basis, unless a party is able to show an entitlement to some other order.
Orders 39I make the following orders: (1)The summons filed by the plaintiff applicant on 7 August 2013 is dismissed; (2)The plaintiff applicant is ordered to pay the costs of the respondent defendants on the ordinary basis unless otherwise ordered; (3)The exhibits may be returned provided a copy of those exhibits is left on the court's file; (4)Liberty to apply on 7 days notice if further orders are required.
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: 15 November 2013
Cavar
Gombovic & Anor