FIRTH v WESTBURY

The applicant is entitled to an assessment of your costs and disbursements in accordance with Section 208A and 208B of the Act and I therefore require that you furnish to me two detailed bills of costs relating to the legal services provided by you to Ms Westbury for which you charged her the fees paid to you in the amounts specified in your two lump sum memoranda of fees dated 30 August 1995."

10 The correspondence reveals that the plaintiff contemplated the bringing of an appeal against the decision made by the Costs Assessor. However, no appeal was then brought and the assessment proceeded. The plaintiff made the decision to prepare detailed bills of costs as required by the Costs Assessor (this was done "under protest and without prejudice to our right to appeal" - see letter dated 24 April 1997). The detailed bills were then furnished to Mr Hattersley. These purported to be prepared in accordance with the District Court scale. The defendant raised objections and the plaintiff responded to those objections. A determination was made by the Costs Assessor. 11 A Certificate As To Determination Of Costs was issued on 23 February 1998. The Certificate allowed the costs in the sum of $9,309.50. The Certificate was forwarded under cover of a letter dated 23 February 1998. The letter contains material relevant to the reaching of this determination. 12 On 17 March 1998, the plaintiff filed a Summons. It purports, inter alia, to be an appeal from the Certificate issued on 23 February 1998. The Summons contains "Grounds of Appeal". These grounds, inter alia, seek to challenge the decision made as to the costs agreement prepared by the defendant. It asserts error as a matter of law. 13 The appeal was heard on 25 March 1999. At the conclusion of the hearing, judgment was reserved. Later that day, a facsimile from counsel for the plaintiff was transmitted to the Court (the original facsimile). The facsimile made reference to inter alia certain decided cases. It provoked a flurry of further facsimiles. On 26 March 1999, there were two facsimiles from the solicitor for the defendant (inter alia; the opportunity to make further short submissions was sought). On the same day, there was a facsimile from the defendant herself and it requested that contact be made with her (not her solicitor) when judgment was to be delivered. This facsimile sought to canvass matters other than those raised by the references contained in the facsimile from counsel for the plaintiff. Also on that same day a further facsimile was received from counsel for the plaintiff. It enclosed a photocopy of a page from the Law Society Journal. 14 It was in these circumstances, that steps were taken by the Court to have the matter relisted. It was set down for further hearing on Thursday 22 April 1999. Notice of this hearing date was given to counsel for the plaintiff, the solicitor for the defendant and the defendant herself. On that day, the parties were given the opportunity to make submissions on matters arising out of the references mentioned in the original facsimile (being the facsimile from counsel for the plaintiff transmitted on 25 March 1999). 15 Following the completion of those submissions, counsel for the plaintiff made an application for leave to reopen and adduce further evidence. The initial application contemplated the adducing of oral evidence from the solicitor for the defendant (Mr Geikie). As this course may have involved an adjournment of the proceedings and the defendant employing other legal representation it was subsequently sought to tender documentation only (which appears to have concerned the matter of Mr Geikie's retainer). 16 The granting of such leave is discretionary. I was not satisfied that the plaintiff had demonstrated an entitlement to leave (inter alia on the grounds that I was not satisfied that the proposed evidence was admissible in the appellate proceedings). 17 I now return to the subject matter of the appeal itself. The Act contains two appellate provisions. Section 208L of the Act provides an avenue of appeal where there is dissatisfaction with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application for assessment. Section 208M enables the seeking of leave to appeal against the determination of the application made by the Costs Assessor. The plaintiff does not seek relief under section 208M. 18 The case for the plaintiff is that the Costs Assessor should have declined to assess the costs because there was a costs agreement that satisfied the requirements specified in section 208C. It is common ground that the approach taken by the Costs Assessor involved a rejection of the plaintiff's contention. 19 I do not accept the plaintiff's submission to the effect that a decision in the relevant sense was not made on this matter until the issue of the Certificate of Determination. It seems to me that the terms "decision" and "determination" are not intended to be synonymous. There are significant differences in the terminology used in the two appellate provisions. In the case of section 208L, the appeal lies in respect of a decision (not "against the determination of the application") arising in the proceedings to determine the application. It has in contemplation a "decision" made at any stage during those proceedings. The questions thrown up by these matters were not fully argued and can be put aside for another day. For present purposes, it suffices to say that the resolution of an issue raised pursuant to section 208C may constitute a decision of a costs assessor as a matter of law arising in the proceedings to determine the application for assessment. In this case, I consider that he made a decision in the relevant sense. 20 I consider that the time for the bringing of an appeal against that decision ran from the date of its making. I have had regard to the material referred to in the original facsimile and the further submissions made in respect of it. I do not consider that the material assists in the resolution of the questions raised in this case. The material mentions inter alia two cases which came before Ireland J on 31 July 1996 (involving Boris Ganke and Peter Andrew Somerset & Co). The parties have not been able to locate a copy of the judgment delivered in respect of those cases. The Court has merely been shown a copy of an article written by Susan Pattison in the Law Society Journal. The article contains some discussion concerning those cases. 21 It seems to me that these proceedings are doomed to failure. The appeal is not competent. It is brought well out of time. The decision which the Summons seeks to challenge was made in March 1997. The appeal which the plaintiff now seeks to maintain was not brought until 17 March 1998. Instead of bringing an appeal within the prescribed time, the plaintiff proceeded with the determination of the application by way of the assessment process required by the Costs Assessor in his letter dated 18 March 1997 (in the present circumstances, I do not regard the protest and attempt to reserve rights of appeal as being of moment). The Costs Assessor proceeded with the assessment bearing in mind the provisions of sections 208A and 208B. He assessed the bills prepared by the plaintiff having regard to the submissions made to him (including the defendant's objections and the plaintiff's response to those objections). In this case, it is not necessary to dwell on the consequences of the plaintiff's participation in the assessment process. 22 For completeness, it may be of assistance if a few further observations are made. The mere identification of error may not bring about an entitlement to relief. There needs to be utility in the exercise. It was open to the Costs Assessor to reject the submission founded on section 208C (without having regard to the provisions of section 188). The agreement prepared by the defendant does not satisfy, inter alia, the requirements of (1)(b). If this agreement does offend the prohibition contained in section 188, the inconsistency extends only to a part of it. In respect of this part, the plaintiff merely says that it was for the benefit of the defendant and placed a cap or maximum on the amount of costs payable by her. If this is the case, from the plaintiff's point of view, the validity of this part of the agreement is probably immaterial. It does not otherwise provide for, inter alia, the professional fees payable by the defendant. The professional fees in fact rendered by the plaintiff in August 1995 do not appear to be calculated having regard to any specified rate and the total of the fees and disbursements approached the maximum. 23 To the extent that there was a challenge to the sufficiency of the disclosure of the reasoning process between the decision to reject the plaintiff's contention, I am not satisfied that the challenge can be maintained. 24 For completeness, perhaps I should make reference to what was said in paragraphs 16 and 19 of Madden v NSW IMC (1999) NSWSC 196 and in the earlier judgment delivered in Bacha v Pettersen (3 December 1998). 25 The plaintiff may well feel that events have unfolded somewhat unfairly. It is a state of affairs that may merit some sympathy. However, he does appear to have unwittingly been the maker of at least some of the problems. 26 The onus showing an entitlement to relief rests with the plaintiff. In my view, that onus has not been discharged. 27 The Summons is dismissed. The plaintiff is to pay the costs of the Summons.