Fordyce v Fordham & Anor

The relevant statutory provisions 9 Section 384 of the Legal Profession Act 2004 (NSW) reads: "Appeal against decision of costs assessor as to matter of law

(1) A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision.

(2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or

(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application. (3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given." 10 And s 385: "Appeal against decision of costs assessor by leave

(1) A party to an application for a costs assessment relating to a bill may, in accordance with the rules of the Supreme Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.

(2) A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.

(3) The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.

(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.

(5) After deciding the questions the subject of the appeal, the Supreme Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor." 11 Sections 384 and 385 apply to decisions or determinations of a Review Panel - see s 382(1). 12 The approach that should be taken by the court in an appeal from a costs assessor was set out in Larsen v Vile [1999] NSWCA 397. This is equally applicable to a costs review panel. An appeal under s 384 is confined to law. An appeal under s 385 (provided leave is granted) is a complete new hearing (at para 31).

The decision of the Review Panel 13 On 29 May 2007, the Review Panel in its written decision confined itself to two issues, namely that the Costs Assessor misdirected himself in allowing 50% of the disbursement costs for experts' reports and all of the legal costs in relation to the preparation of those reports in the Supreme Court proceedings; and that if the review application was successful that the Review Respondent should pay the costs of the original assessment. 14 Ms Fordyce's first ground of appeal was that there was no evidence or insufficient evidence to support the Review Panel's decision in relation to the experts' reports. The Review Panel had the following documents before it. The application for Review of Determination of a Costs Assessor filed on 14 February 2007; the Assessor's Form 2 Certificate of Determination of Costs issued on 12 January 2007; the Assessor's Form 4 Certificate of Determination of Costs of Costs Assessment issued on 12 January 2007; the Assessor's State of Reasons; the Assessor's file; and correspondence to the Review Panel by both the parties. The experts' reports of Mr Plaister and Mr McMillan were before the Review Panel. 15 The Review Panel stated at 5.3(i): "In relation to ground (1) the Panel notes that the parties are neighbours. The Review Respondent considered that there were difficulties with a retaining wall and some trees. In October 2004 they commenced proceedings in the Supreme Court for damages for nuisance and access to their neighbour's property. A short time later, they also commenced proceedings in the Local Court seeking access. During the course of those proceedings which were running contemporaneously for the most part, various experts' reports were obtained. Most of the reports refer to both proceedings and in the opinion of the Review Panel are relevant or likely to be relevant in both proceedings. Whether they were filed and relied on in a particular set of proceedings is not conclusive of whether or not the cost of obtaining the report is a proper disbursement in one or the other set of proceedings. The circumstances that applied were unusual but in all the circumstances the Panel agrees with the commonsense approach adopted by the Assessor in apportioning the cost of the expert reports on a 50/50 basis between the 2 sets of proceedings. It has applied the same approach in its assessment." 16 In my view there was sufficient material before the Review Panel to support its decision in relation to the experts' reports. The Review Panel was entitled to adopt the common sense approach to unusual circumstances and apportion the costs of the experts' reports on a 50/50 basis between the two sets of proceedings. This ground of appeal fails. 17 Counsel for Ms Fordyce submitted that the approach of splitting costs of the experts' reports offends the doctrine of res judicata or issue estoppel. It is not clear that this issue was raised before the Costs Assessor and the Review Panel. This Court does not have a copy of the submissions made to the Review Panel. However, Ms Fordyce's submission is that this appeal, against the implicit finding of the Costs Assessor and Review Panel between the same parties, has been decided in one court (the Local Court) and that for it to be decided in another court (the Supreme Court) is contrary to the principles of res judicata, issue estoppel or Anshun estoppel all, of which were considered in Port Melbourne Authority v Anshun Pty Ltd (1981) 36 ALR 3; (1981) 147 CLR 589. It appears that the issue estoppel and res judicata arguments were neither raised before the Costs Assessor, nor the Review Panel. If it was not raised before the Review Panel, it cannot be raised here. 18 In any event, it was Ms Fordyce who instituted concurrent proceedings in the Local Court and in the Supreme Court. The claim in the Supreme Court was framed in nuisance and access. The nuisance was said to arise from tree roots, in particular roots emanating from a fig tree and two umbrella trees that are located close to the boundary. The orders sought in the Local Court were for access to the property owned by the Fordhams in order to remove the existing retaining wall and to restore an access strip 5 metres along the western boundary under statutory provisions namely, the Access to Neighbouring Land Act 2000 (NSW). 19 The matters that the Local Court had to be satisfied were those set out in ss 11 and 15 of the Access to Neighbouring Land Act. They read: "11. Jurisdiction to make neighbouring land access orders

(1) A Local Court may make a neighbouring land access order if it is satisfied that, for the purpose of carrying out work on land, access to adjoining or adjacent land is required and it is satisfied that it is appropriate to make the order in the circumstances of the case.

(2) The Local Court must not make a neighbouring land access order unless it is satisfied: (a) that the applicant has made a reasonable effort to reach agreement with every person whose consent to access is required as to the access and carrying out of the work, and

(b) if the requirement to give notice has not been waived, that the applicant has given notice of the application in accordance with section 10 and section 34 (if applicable). 15. Matters to be considered by Local Court Before determining an application for an access order the Local Court is to consider the following matters: (a) whether the work cannot be carried out or would be substantially more difficult or expensive to carry out without access to the land the subject of the application,

(b) whether the access would cause unreasonable hardship to a person affected by the order.": 20 In the Local Court proceedings the parties entered into consent orders. The Supreme Court proceedings were discontinued by Mrs Fordyce. It had been anticipated that both parties would require expert evidence in both sets of proceedings - see Ex C, Aff P Fordyce, 21/03/2005 [11]-[14]. The Fordhams' experts' reports were prepared in November 2004 when both proceedings were on foot.

Issue estoppel and res judicata 21 In Henderson v Henderson (1843) 67 ER 313, Wigram VC said at p 319:

"In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The pleas of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time." 22 A more often quoted case on the topics of res judicata and issue estoppel is that of the High Court in Port Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 at 597, where Gibbs CJ, Mason and Aickin JJ said:

"The distinction between res judicata (in England called 'cause of action estoppel') and issue estoppel was expressed by Dixon J in Blair v Curran [(1939) 62 CLR 464, at 532] in these terms: "in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.'

The distinction was restated by Fullagar J in his dissenting judgment in Jackson v Goldsmith [(1950) 81 CLR 446, at 466]. His Honour expressed the rule as to res judicata by saying: 'where an action has been brought and judgment has been entered in that action, no other proceedings can thereafter be maintained on the same cause of action. This rule is not, to my mind, correctly classified under the heading of estoppel at all. It is a broad rule of public policy based on the principles expressed in the maxims " interest reipublicae ut sit finis litium " and " nemo debet bis vexari pro eadem causa ".' His Honour went on to discuss issue estoppel, citing the comment of Dixon J in Blair v Curran: 'A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.'

The rule as to res judicata comes into operation whenever a party attempts in a second proceeding to litigate a cause of action which has merged into judgment in a prior proceeding." 23 As previously stated, the Fordhams' expert reports by Plaister and McMillan were prepared in late 2004. The report by Mr Plaister referred to documents filed in both the Supreme Court and the Local Court. These reports could have been relied upon in either or both proceedings. The Local Court proceedings were commenced on 18 October 2004 and the Supreme Court nuisance proceedings were commenced on 7 November 2004. The Fordhams did not seek to litigate a cause of action in either the Local Court or the Supreme Court proceedings. The causes of action are not the same. The Fordhams are merely seeking to recover their costs in relation to a matter which has been finalised. Those costs are not subject to the doctrine of res judicata or issue estoppel. This ground of appeal fails. The costs order made by the Review Panel flows from its decision. There is no error of law. The costs order made by the Review Panel dated 29 May 2007 is affirmed. 24 The appeal is dismissed. There is no utility in seeking leave under s 348. The amended summons filed 24 July 2007 is dismissed. 25 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendants' costs as agreed or assessed.

(2) The application that leave be granted pursuant to s 348 of the Legal Profession Act 2004 (NSW) is refused.

(3) The decision of the Review Panel dated 29 May 2007 is affirmed.

(4) The amended summons filed 24 July 2007 is dismissed.

(5) The plaintiff is to pay the defendants' costs as agreed or assessed. **********

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