Gazecki v McCabes Lawyers Pty Ltd

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, John Christopher Gazecki, sought to challenge an assessment of legal fees payable to his former lawyers, McCabes Lawyers Pty Ltd. The original determination was made in June 2018. The amount assessed was $36,243. A review panel declined to vary that assessment on 18 March 2019. He had a right of appeal under s 89(1) of the Legal Profession Uniform Law Application Act 2014 (NSW). However, the Uniform Civil Procedure Rules 2005 (NSW), r 50.3 (1), provided for an appeal to be lodged within 28 days. Time expired on 15 April 2019. The court had power to extend time. On 15 May 2019 the applicant filed a summons in the District Court, seeking an extension of time within which to appeal the determination. The application was filed 30 days late. On 11 October 2019, the primary judge, Weber SC DCJ, refused the application for an extension of time and dismissed the summons with costs. The applicant sought leave to appeal under s 127 of the District Court Act 1973 (NSW) and judicial review under s 69 of the Supreme Court Act 1970 (NSW), both of which challenging the primary judge's decision. The Court (Basten JA, Leeming JA, Simpson AJA) dismissed the applications and held:

1. The application for leave to appeal under s 127 of the District Court Act 1973 (NSW) was incompetent. It is well established that there is no appeal to the Court of Appeal where the District Court is exercising statutory appellate jurisdiction with respect to decisions of other courts or tribunals: [5]; [46]; [47]. Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170, applied.
2. The proposed grounds of review did not reflect the limitations of the supervisory jurisdiction reflected in s 69 of the Supreme Court Act 1970 (NSW). The admissibility of evidence depends on a clear statement of the available grounds. An allegation of non-jurisdictional error of law on the face of the record does not permit evidence beyond the record. In contrast to tribunals and administrative decision-makers, a court will usually have jurisdiction to determine questions of law: [11]-[15]; [46]; [47]. Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, discussed.
3. There was no relevant error of law in the primary judge's assessment of the dispositive matters relevant to delay: [16]-[22]; [46]; [47]. Nor, in the circumstances, did the trial judge err in observing that dismissing the summons would remove the possibility of an abuse of process constituted by two sets of proceedings: [23]-[24]; [46]; [47]. Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369, applied.
4. The nature of a costs appeal requires the court exercising jurisdiction under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) to pay close attention to the terms of that statutory power and not to adopt statements from earlier cases dealing with different, repealed statutory powers, unless persuaded that they remain applicable: [43]; [46]; [47]. Noting the differences brought about by the introduction of s 89, however, the legislative history and case law can provide some guidance as to the standard of scrutiny applicable in a particular costs appeal: [43]; [46]; [47]. Schweppes' Ltd v Archer (1934) 34 SR 178; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25; Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52, discussed.

Judgment

1. BASTEN JA: The applicant, John Christopher Gazecki, seeks to challenge an assessment of legal fees payable to his former lawyers, McCabes Lawyers Pty Ltd. The original determination was made in June 2018. The amount assessed was $36,243. Being dissatisfied with the assessment, the applicant sought a review. The Review Panel declined to vary the assessment. It provided a certificate of determination dated 18 March 2019.
2. Pursuant to s 89(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act) the applicant had a right of appeal from the decision of the Review Panel to the District Court. The appeal was governed by Pt 50 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provided that the appeal must be lodged within 28 days from the date on which notice of the decision of the Review Panel was given to the applicant. [1] Time expired on 15 April 2019.
3. The applicant did not file his summons in the District Court until 15 May 2019, some 30 days out of time. Accordingly, he required an extension of time from the District Court, which had power to grant such an extension pursuant to r 50.3(1)(c).
4. On 11 October 2019 the primary judge, Weber SC DCJ, refused the application for an extension of time and dismissed the summons. The applicant was ordered to pay the defendant's costs of the proceedings in the District Court.

Application for leave to appeal from District Court

1. Having served a timely notice of intention to appeal, on 9 January 2020 the applicant filed a summons in this Court seeking leave to appeal from the judgment of the District Court. He sought to bring the appeal pursuant to s 127 of the District Court Act 1973 (NSW). That application was incompetent. Section 127 confers a right of appeal from a judgment or order in "an action"; this Court has held in a series of decisions that there is no appeal where the District Court is exercising a statutory appellate jurisdiction with respect of decisions of other courts or tribunals. That principle has been applied in relation to costs assessments: Wende v Horwath (NSW) Pty Ltd. [2] The point was taken by the respondent. [3] Accordingly, the summons seeking leave to appeal must be dismissed. The applicant must pay the respondent's costs of the summons.

Application for judicial review

1. On 7 January 2020 the applicant filed a summons in the supervisory jurisdiction of the Court seeking judicial review of the judgment and orders of the District Court. That summons, being filed within three months of the date of the decision to be reviewed, was within time. [4] However, the application invoking the jurisdiction reflected in s 69 of the Supreme Court Act 1970 (NSW) is limited to cases of jurisdictional error, or error of law on the face of the record.

(a) nature of application

1. The grounds of review sought in the summons were not drafted with a careful eye to the limits of the Court's jurisdiction; rather, they ranged across supposed errors of the primary judge in the exercise of his discretionary function.
2. Ground (1) in the summons referred to "the matters in sub-paragraph H above". Within H were 11 further paragraphs, some of which had internal subparagraphs. One of these, subpar (k), which alleged that the judge had incorrectly assessed the prospects of the appeal, contained nine particulars.
3. Unpromisingly, paragraph H commenced with the following proposition: "The principles which govern the grant by the Court of an extension of time, are not in dispute. However, the learned Appeal Judge in weighing up the competing principles, did not properly weigh up those principles because had his Honour done so, his Honour ought to have found that the extension of time ought to have been granted…."
4. In substance, the complaint was that the judge's determination of (i) the reasonableness of the explanation for the delay, (ii) the prospects of success in the appeal from the Review Panel, (iii) the prejudice suffered by the respondent and (iv) reliance on the applicant's alternative legal remedies, resulted in a legally unreasonable determination.
5. The respondent appropriately took issue with the inclusion in the white folders filed in both proceedings of, not merely the initiating process and judgment in the District Court (which formed part of the record of that Court), but also the whole of the material before the primary judge. That material, it was submitted, correctly, went well beyond the material available to support an allegation of error of law on the face of the record. An assessment of the grounds of review should not be allowed to slide into a review of the merits of the application before the primary judge.
6. There is merit in requiring a strict approach in relation to pleadings and evidence, the proceedings in the supervisory jurisdiction being in the original jurisdiction of this Court. A difficulty arises, however, where the primary ground of review is legal unreasonableness. In Minister of Immigration and Citizenship v Li, [5] the joint reasons stated: [6] "Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."
7. Having inferred that such an error occurred, the joint reasons concluded that, "[t]he Tribunal did not conduct the review in the manner required by the Migration Act and consequently acted beyond its jurisdiction." If that reasoning is applied in relation to judgments of a court of record, such as the District Court, [7] it is not possible to limit the relevant evidential material to the record of the court, even in its expanded form as provided in s 69(4) of the Supreme Court Act to include the reasons for decision.
8. This reasoning may appear to assume a number of debatable propositions. First, because a jurisdictional error involves a disregard of the legal boundaries of power, it must be an error of law. Frequently jurisdictional error will be apparent on the face of the record. However, Edelman J explained in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [8] that error of law on the face of the record must refer to "non-jurisdictional" errors of law on the face of the record. The history of the supervisory jurisdiction supports this approach. Secondly, the reasoning assumes that there can be jurisdictional error of law on the part of a court which, except to the extent that its jurisdiction was constitutionally or statutorily limited to particular kinds of matters, would ordinarily have implied authority to determine questions of law. Thirdly, and as a consequence, care must be taken in importing into the exercise of the Supreme Court's supervisory jurisdiction with respect to inferior courts, statements of principle from cases dealing with tribunals or administrative decision-makers. [9]
9. Rather than engage with these difficulties, it was convenient to note the respondent's objection to the reliance on the material before the District Court, and allow the applicant, appearing without representation, to develop his arguments within the confines of the grounds identified in the summons.

(b) dispositive matters

1. The judge identified and considered each of the following matters: 1. the length of the delay; 2. any explanation for the delay; 3. whether the applicant had a fairly arguable case; and 4. the extent of any prejudice suffered by the respondent to the application.
2. With respect to (1), the primary judge noted that the delay was itself for a period greater than the appeal period and considered that it should be considered by reference to the explanation given for it. [10] That proposition was not challenged, although the applicant submitted that the delay was not in fact significant.
3. With respect to (2), the reasons for the delay were identified in an affidavit by the applicant, key passages of which were set out by the primary judge. Noting that the applicant was a former practising solicitor, the judge reviewed the conduct set out by the applicant in his affidavit and concluded that the explanation was inadequate. He considered that the applicant "afforded the task of attending to the appeal, little or no priority." [11] Given that 10 days of the appeal period had been spent on a family camping trip, there was nothing unreasonable in that conclusion.
4. With respect to (3), the judge had regard to the prospects of the proposed appeal noting that "if the applicant seeking the Court's indulgence provides a less than satisfactory explanation for delay, it becomes incumbent on that party to demonstrate that his or her appeal prospects are more substantial than merely being described as arguable." [12] That approach followed the reasoning of Hodgson JA in Tomko v Palasty (No 2). [13] The judge then set out in some little detail the nature of a costs appeal, in terms to which it will be convenient to return below. He then noted that the primary argument before the Review Panel had been that the applicant was not personally liable for the costs, which should have been payable by his company. The judge considered the nature of the retainer and the costs agreement, the latter being directed to both the applicant and the company and requiring an acknowledgment from him that he was accepting it on behalf of both himself and the company, which was to be placed in liquidation. [14] He described the prospects of success in relation to that point as "very limited". [15]
5. The judge then considered a second group of grounds which alleged failure to give further disclosures as the scope of the retainer changed. The judge noted there was evidence of further costs estimates and observed that even if the costs agreement was not enforceable under s 178 of the Legal Profession Uniform Law (NSW), that merely meant that the costs could not be recovered until they had been assessed, which had occurred. [16] He concluded that the prospects of success were "most limited."
6. With respect to (4), prejudice to the proposed defendant, the judge rejected that as a material consideration in the circumstances. [17]
7. The four matters identified above which formed the dispositive reasoning did not, subject to one matter requiring further discussion, reveal legal error, nor anything in the nature of legal unreasonableness in the assessment of the evaluative factors governing the application for an extension of time. Nor did the actual determination manifest unreasonableness.

(c) other issues - abuse of process

1. There are two other issues which may be noted, but which did not affect the outcome of the application in the District Court.
2. First, the judge observed that the applicant had commenced proceedings against the defendant for professional negligence and for misleading and deceptive representations. The representations concerned the costs the subject of the application before him. [18] The judge noted that there was a potential abuse of process in that the appeal sought to have the costs assessment set aside, while the professional negligence proceedings sought to recover damages, apparently on the assumption that the costs were due and payable. While the judge was correct to identify that possibility, it is apparent that it did not constitute a significant factor in his refusal of the extension of time. The judge merely stated that the order he was about to make "will also have the tangential benefit of removing the possibility of an abuse constituted by the two sets of proceedings." [19]

(d) other issues - nature of costs appeal

1. Secondly, it is convenient to return to the reasoning of the judge with respect to the nature of a costs appeal. It may be dealt with briefly because the reasoning did not appear to have a significant bearing on the outcome of the application and was addressed only in passing in this Court. As the applicant correctly noted, the judge's view as to a constrained approach to the exercise of the power of review conferred on the District Court did not apply to the issues raised by the applicant. [20] No doubt for that reason, it did not form a ground of appeal. Nor can it be said that the approach adopted by the primary judge was necessarily wrong.
2. It is necessary to commence by setting out the relevant provisions of s 89 of the Application Act: "89 Appeal on matters of law and fact (1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to - (a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or (b) the Supreme Court, in accordance with the rules of the Supreme Court, but only with the leave of the Court if the amount of costs in dispute is less than $100,000. (2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel. … (4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.
3. Two features of this provision are directly applicable. First, with respect to an amount of or above $25,000 there is an appeal as of right, being an appeal "by way of a rehearing". Secondly, in respect of such an appeal, there is a leave requirement, but only as to the adducing of fresh evidence or other evidence not before the review panel or costs assessor.
4. Relying on the judgment of Jordan CJ in Schweppes' Ltd v Archer, [21] the primary judge accepted that while the court would always review a decision of a taxing officer where it was contended that the officer proceeded "upon a wrong principle", the court would otherwise be "reluctant to interfere". [22] Jordan CJ stated that, absent an error of principle, the court "will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will only do so in an extreme case." [23]
5. Although the primary judge stated that "there is no distinction between the costs assessment regime and older regimes of costs taxation", [24] that was not entirely correct. The Costs Rules, 1915, applied in Schweppes' provided for a review in the following terms: [25] "64 When any party applies for an order for review, he shall serve upon the taxing officer a copy of the notice of motion or summons to review. 65 Such application shall be heard and determined by the court or judge upon the evidence which has been brought in before the taxing officer, and no further evidence shall be received upon the hearing thereof, unless the court or judge otherwise directs."
6. As the primary judge also noted, the statement of Jordan CJ in Schweppes' was adopted by Kitto J (sitting alone) in Australian Coal and Shale Employees' Federation v The Commonwealth. [26] However, the High Court rule engaged in that case was one which provided for review of a decision of a taxing officer, but only as to an item or part of an item to which objection had been taken. [27] In both Schweppes' and Australian Coal and Shale the rules provided for itemised costing, where most items were to be allowed according to a prescribed schedule of charges. This exercise was far removed from the current forms of assessment according to costs agreements between lawyers and their clients.
7. The primary judge also referred to the Queensland authority, applying Queensland law. [28] There is authority dealing with related provisions in the Full Court of the Federal Court. [29] However, for present purposes it is sufficient to confine attention to the legislative regime for review of costs assessment in New South Wales.
8. When Schweppes' Ltd was decided the statutory power to review a taxation of costs was conferred by s 35(2) of the Legal Practitioners Act 1898 (NSW). Neither statute nor rules made provision for the manner of conducting such a review. In the absence of statutory or rule-based criteria, the courts developed principles for the classification of decisions distinguishing between cases where the taxing officer appeared to have acted upon an erroneous principle and those in which there was a challenge to a discretionary allowance. [30] Different rules applied in different jurisdictions within the Supreme Court until a general set of rules with respect to costs was prescribed in Pt 52 of the Supreme Court Rules 1970 (NSW), which applied to both taxation of costs the subject of a court order and a taxation as between solicitor and client under the Legal Practitioners Act. The rules provided for a dissatisfied party to seek a reconsideration of a certificate issued by a taxing officer; [31] a party could then request the court to "review the decision of the taxing officer on reconsideration." [32] No criteria were specified with respect to the nature of the "review".
9. The first major change in the statutory regime with respect to review of costs assessments came with the insertion by the Legal Profession Reform Act 1993 (NSW) of new provisions in the Legal Profession Act 1987 (NSW). These provided direction as to how a costs assessor was to assess "what is a fair and reasonable amount of costs." [33] They also introduced two provisions relating to appeals from decisions of costs assessors. The first, s 208L, provided an appeal as of right to the Supreme Court on a decision of a costs assessor as to a matter of law. If the costs assessor's decision were not affirmed, the Court had power to redetermine the application. In that case, s 208L(3) provided: "(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. The second provision, s 208M, provided for an appeal with leave from a determination by a costs assessor. The appeal was said 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": s 208M(4).
11. This regime was in force from 1 July 1994 until 1 October 2005, when the 1987 Act was repealed by the Legal Profession Act 2004 (NSW). However, the provision for appeals, then found in ss 384 and 385 of the 2004 Act, maintained the regime in force since 1994. From 1 September 2008 these provisions were amended to provide for an appeal to the District Court, rather than the Supreme Court. [34]
12. The 2004 Act continued in forced until 1 July 2015 when it was repealed by the Application Act. [35] The terms of s 89 are set out at [26] above. The new regime made a number of substantial changes to the earlier provisions.
13. First, whilst it maintains an appeal as of right, that appeal is not restricted to questions of law; rather, it depends upon the amount of the assessment. An appeal from an assessment of less than $25,000 requires leave, whatever may be the ground.
14. Secondly, again dependent upon the amount in issue, appeals can be brought either in the District Court or in the Supreme Court.
15. Thirdly, no appeal was permitted from a determination by a costs assessor, but only from a decision of a review panel.
16. Fourthly, the language of a "new hearing" (as in s 208M of the 1987 Act) has been abandoned and all appeals are "by way of a rehearing".
17. Fifthly, although there is an opportunity for the applicant to provide fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor, that can only occur with leave of the court: s 89(4).
18. Sixthly, the court is not given specific powers, but rather is said to have "all the functions of the review panel." The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing "the determination of a costs assessor": s 85(1). For that purpose, the review panel has "all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment": s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal "by way of a rehearing".
19. No submissions were made in this Court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the Court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of the statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters.

Conclusion

1. The summons seeking judicial review should be dismissed; the applicant must pay the costs of the first respondent, McCabes Lawyers Pty Ltd.
2. The Court should make the following orders: 1. In matter 2019/344193 (leave to appeal): 1. Dismiss the summons filed on 9 January 2020; 2. Order that the applicant pay the respondent's costs of the summons. 1. In matter 2020/5071 (judicial review): 1. Dismiss the summons for judicial review filed 7 January 2020; 2. Order that the applicant pay the first respondent's costs in this Court, other than the costs of the application for leave to appeal.
3. LEEMING JA: I agree with Basten JA.
4. SIMPSON AJA: I agree with Basten JA.

Endnotes

1. UCPR, r 50.3(1)(a); r 50.2(1) material date.
2. (2014) 86 NSWLR 674; [2014] NSWCA 170 at [20].
3. Written submissions, 1 May 2020, par 70.
4. UCPR, r 59.10(1).
5. (2013) 249 CLR 332; [2013] HCA 18.
6. Li at [76] (Hayne, Kiefel and Bell JJ).
7. District Court Act, s 8(2).
8. (2018) 264 CLR 1; [2018] HCA 4 at [85], [91]ff.
9. See M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) at [4.360].
10. Judgment at [7].
11. Judgment at [14].
12. Judgment at [15].
13. (2007) 71 NSWLR 61; [2007] NSWCA 369 at [14] (Ipp JA agreeing).
14. Judgment at [19].
15. Judgment at [22].
16. Judgment at [27].
17. Judgment at [34].
18. Judgment at [35].
19. Judgment at [37].
20. Applicant's submissions in reply, 14 May 2020, par 24.
21. (1934) 34 SR 178. (Harvey CJ in Eq and Street J concurring).
22. Schweppes' at 183.
23. Schweppes' at 183-184.
24. Judgment at [16(4)].
25. NSW Rules, Regulations and By-Laws, 1914-1916, p 267 at 278; Parker, The Practice in Equity (NSW) (LawBook Co, 1930), p 340.
26. (1953) 94 CLR 621 at 628-629; [1953] HCA 25.
27. Australian Coal and Shale at 625-626.
28. See Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65 at [8], [9] (Fraser JA, McMurdo P and Douglas J agreeing); Farrar v Julian-Armitage [2015] QCA 289 at [15] (Henry J; McMurdo P and Morrison JA agreeing).
29. See Coshott v Crouch (2017) 253 FCR 413; [2017] FCAFC 135 (Allsop CJ; Kerr and Farrell JJ agreeing) at [44], [47]-[48].
30. See Saddington, Taxation of Costs Between Parties (LawBook Co, 1919), Ch V.
31. Supreme Court Rules, Pt 52, rr 60, 61.
32. Supreme Court Rules, rr 62(1).
33. Legal Profession Act 1987 (NSW), ss 208F and 208G.
34. Courts and Crimes Legislation Amendment Act 2008 (NSW), Sch 14 [1]; [2].
35. Application Act, s 167 (as enacted); see generally, Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 at [22]-[29].

Amendments 12 October 2020 - [35] Changed s 395 to s 385. [40] Changed 2004 Act to 1987 Act. 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: 12 October 2020