Coshott v Barry & Anor

Judgment 1These proceedings arise out of a dispute over legal costs claimed from the plaintiff by the defendants. The costs in question have been assessed in six separate certificates of assessment. The plaintiff seeks relief in the nature of prerogative writs in respect of those assessments. On 27 July 2012, I gave judgment in respect of part of the relief sought by the plaintiff, which Buddin J had been ordered to be determined separately: Coshott v Barry [2012] NSWSC 850. I found that, as to four of the certificates under challenge, the defendants' right and title to the costs in question was extinguished: at [53]. 2The remaining two assessments had been filed in the registry of a court in accordance with the procedure contemplated by s 208J(3) of the Legal Profession Act 1987 (now repealed). As to those assessments, I held that the two judgments were properly obtained and were not liable to be set aside: at [44]. 3The proceedings were re-listed before me yesterday to hear argument as to costs. However, before addressing that issue, the plaintiff sought leave to reopen the hearing to enable me to reconsider my findings concerning the two certificates of assessment that had become "judgments". The basis of the application was the fact that my attention was not drawn by either party to the decision of the Court of Appeal in Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172. 4The Court has power in a proper case to re-open proceedings after reasons for judgment have been given but before the entry of orders. The occasion for exercise of the power is more likely to arise in the ultimate Court of Appeal or an appellate court from which an appeal lies only by leave, but the existence of the power in a single judge is not in doubt: see generally Autodesk v Dyason [No 2] (1993) 176 CLR 300; De L v Director General, New South Wales Department of Community Services [No 2] (1997) 190 CLR 207; Wentworth v Wentworth [1999] NSWSC 638; New Cap Reinsurance Corporation Ltd v AE Grant & ors, Lloyds Syndicate No 991 [2009] NSWSC 950; Celemajer Holdings Pty Ltd v Kopas [2011] NSWSC 304. 5Those authorities discuss the position where a judgment determining the matter between the parties has been given but orders have not yet been entered. That was the implicit premise of the present application. In fact, the orders have been entered in accordance with my earlier reasons. Rule 36.11 of the Uniform Civil Procedure Rules 2005 provides that, unless the court orders otherwise, an order is taken to be entered when it is recorded in the court's computerised court record system. That was done by my Associate on the day on which judgment was given. 6In any event, I would not have granted leave to the plaintiff to reopen her case, for the following reasons. 7In my earlier judgment at [44], I said: In my view, however, the position of the solicitor is plainly protected upon the filing of a certificate of assessment in accordance with s 208J(3). I have concluded that the two judgments were properly obtained and are not liable to be set aside. The procedure allowed for is to file the certificate "in the office or registry of a court having jurisdiction to order the payment of that amount of money". The effect of filing is that, without further action, the certificate is taken to be a judgment of that court for the amount of unpaid costs determined by the costs assessor. 8Mr Griscti, who now appears for the plaintiff, submitted that, since I was not referred to the decision of the Court of Appeal in Frumar, there would be a miscarriage of justice in the event that the orders were made because those orders would not be based on an application of the relevant legal authority. 9Mr Griscti relied in particular on the statement of Handley JA in Frumar at [42] where his Honour said: The validity of that part of [rule 36.10 of the Uniform Civil Procedure Rules] which authorises the entry of judgment must be doubtful in view of s 208KF(2)(b) of the Legal Profession Act 1987 (and its successor s 368(5) of the 2004 Act) dealing with the effect of filing "with no further action", and s 133(2)(b) of the Civil Procedure Act which only provides for entry of the certificate in accordance with the rules. Accepting, for present purposes, that the rule is valid, it is nevertheless clear that the entry of judgment on a filed certificate is a ministerial act. It makes the certificate enforceable as a judgment but otherwise does not alter its legal effect. 10Mr Griscti submitted that the effect of the decision is to make clear that, even after being filed in the registry in accordance with s 208KF(2)(b) of the Legal Profession Act 1987 (which in this respect is not relevantly different from s 208J), a certificate of assessment stands only as the quantification of a debt. He submitted that, in the result, if an action is not brought on the cause of action for that debt within the limitation period, the person's right and title to the debt are extinguished upon the expiration of the limitation period, with the result that the judgment is not enforceable after that date. 11With great respect to Mr Griscti, whose submissions were both thoughtful and succinct, I think that contention misconceives the import of the remarks relied upon. 12The contest in Frumar arose in the context that the determination underlying the certificate which had been filed in the registry of the District Court had been set aside by the Court of Appeal and the application remitted to a review panel. The status, in that circumstance, of the judgment obtained upon the filing of the certificate was relevant to the construction of a settlement agreement between the parties. 13In that context, Handley JA was prompted (in [42] set out above) to observe that, although an assessment certificate that has been filed in a registry is "taken to be a judgment", it derives from a ministerial act (Macfarlan JA agreeing at [20]). 14Whilst dissenting as to the outcome, Giles JA expressed a similar view as to the standing of a filed certificate, noting that "so-called judgments under s 208J(3)" have a distinct nature and that "while reference to them as judgments is convenient...they take their force from the statute and are not judgments of the court" (at [8]). 15However, it is implicit in the judgments of both Giles JA and Handley JA that the effect of the statute is to deem the certificate to be enforceable as if it were a judgment. Indeed, Handley JA expressly accepted at [42] that the filing of a certificate makes it "enforceable as a judgment". Handley and Macfarlan JJA took a different view from Giles JA as to the impact on such a judgment of the setting aside of its underlying assessment. 16The question is whether, by the reasoning adopted by the majority, such a judgment would be liable to be set aside, not immediately, but upon the expiration of the limitation period in respect of the underlying debt. I do not think it would. 17In my view, the decision in Frumar does not derogate from the force of s 208J of the Legal Profession Act 1987, which has the effect that a certificate duly filed is "taken to be a judgment". The significance of that provision is that it does not matter whether the underlying debt is subsequently extinguished by the exfluxion of time, since the defendants have no need to maintain or commence a cause of action on that cause of action. They have only to enforce their (deemed) judgment. 18That was the thinking that informed my conclusion at [44] of my earlier judgment. I am not persuaded that I proceeded on a misapprehension as to the law in that respect. I should note, however, that the discussion at [45] to [48] of my earlier judgment may well have been better informed by a consideration of the principles stated by Handley JA in Frumar and in Doyle v Hall Chadwick [2007] NSWCA 159 at [49] to [52], to which his Honour referred at [44]. In the circumstances, however, it is not necessary to revisit that issue. 19For the foregoing reasons, even if the orders had not been entered, I would not have acceded to the plaintiff's application.