(i) Whether there was a denial of procedural fairness by the Review Panel
60Mr Nassour submitted that Mr Malouf's grounds for review argued and made representations as to facts, as well as recited the ground or error said to arise from the Costs Assessor's assessment. Mr Nassour submitted that the Review Panel failed to allow him to respond to the submissions contained in the grounds of appeal and therefore he was denied procedural fairness.
61By letter dated 7 April 2009, the Review Panel requested Mr Nassour's solicitor provide copies of documents relating to any verdict, award or settlement entered into by Mr Nassour and Dr Pouw in relation to the District Court proceedings. The Review Panel advised Mr Nassour's solicitor that:
"It is the present intention of the Review Panel to determine the Application for Review as soon as is possible after 21 st April 2009, on the material that was placed before the Assessor and the additional material (if provided) referred to above."
62By letter dated 16 April 2009, Mr Nassour's current solicitors, Legal Aid NSW, responded to the Review Panel by providing it with a copy of the Authority to Settle executed by Mr Nassour dated 12 October 2005. This letter advised the Review Panel that they did not have any documents the Review Panel had requested nor did the new solicitors. In lieu, the solicitors sent a copy of an authority to settle.
63The content of Legal Aid's letter only addressed the points raised in the Review Panel's letter. The solicitors were not asked to and did not make any further submissions in response to Mr Malouf's further submissions.
64On 24 April 2009, the Review Panel issued its Certificate of Determination and Reasons. The Review Panel set aside the Certificate of Determination issued on 18 November 2008 by the Costs Assessor on the basis that, Mr Malouf, by his letter dated 29 October 2003, did not waive its right to and was not estopped from claiming the costs and disbursements contained in the Bill of Costs dated 9 September 2004.
65The Review Panel then listed the nine grounds of appeal submitted by Mr Malouf that were contained in the Application for Review. At paragraph 8 of the grounds for review, Mr Malouf submitted to the Review Panel that:
"The amount of costs set out in [Mr Malouf's] bill dated 9 September 2004 was fair and reasonable in terms of section 208A of the Legal Profession Act 1987 and the Costs Applicant is entitled to the full amount of their costs set out in the said bill of costs."
66At paragraph 34 of its Reasons, the Review Panel held:
"Accordingly, in determining this application for review the Review Panel has had regard to the necessity for it to carry out its own review as opposed to conducting an appeal and has acted accordingly."
67At paragraph 35 the Review Panel determined that "having reviewed the whole of the material in this matter" there was no waiver or estoppel.
68At paragraph 36 the Review Panel stated:
"Thus it falls upon the Review Panel to determine [Mr Malouf's] fair and reasonable costs."
69The Review Panel determined that the fair and reasonable costs Mr Malouf was entitled to were $19,945.91.
70In Levy v Bergseng [2008] NSWSC 294; (2008) 72 NSWLR 178, Rothman J considered his previous decision in Hall Chadwick v Doyle [2006] nswsc 1195 and at [50] held that the issue of the denial of procedural fairness was a ground of appeal that raises decisions as to a matter of law arising in the proceedings . In Levy v Bergseng the relevant facts were:
(a) A costs assessor assessed that the defendant ("Bergseng") owed the plaintiff ("Mr Levy") the sum of $420,139.19 (including interest).
(b) Bergseng applied for the decision of the Costs Assessor to be reviewed by a Costs Review Panel.
(c) The grounds for making the application for review were set out in the application for review.
(d) The Review Panel stated in its reasons that it did not determine to receive any submissions from the parties and carried out the review on the basis of the documents before the Assessor. The Review Panel therefore did not consider submissions lodged by Mr Levy in response to the submissions lodged by Bergseng in its application for review.
(e) The Review Panel set aside the Certificate of Determination of the Costs Assessor.
(f) One of the grounds upon which Mr Levy appealed the determination of the Review Panel was on the basis that he was denied procedural fairness in not having his submissions in reply considered by the Review Panel.
71Rothman J held that there was a denial of natural justice because the Review Panel took into account submissions by Bergseng, despite making it clear that it would not receive any submissions, but did not allow Mr Levy an opportunity to deal with those submissions and his Honour stated at [52]:
"Jurisdiction of the Costs Assessor and Review Panel
[52] Counsel on behalf of Mr Levy originally submitted that neither the Costs Assessor nor the Review Panel had jurisdiction to determine the construction of the costs agreement. He also submitted that they did not have jurisdiction to determine the question raised in the cross-claim, namely, whether GST is payable. Counsel relied upon comments of mine in Hall Chadwick v Doyle (at [72]) and following. There are at least two reasons why that submission is not open. The first, and most obvious, is that to the extent that my judgment in Hall Chadwick takes the view that the Costs Assessor and/or Review Panel does not have jurisdiction to decide the construction of the contract and/or issues of law of that kind, it was overturned by the judgment of the Court of Appeal in Doyle v Hall Chadwick . Secondly, the passage on which the plaintiff relies was not, notwithstanding its infelicitous terminology, intended to expose a view that construction of documents, or questions of law, could not be decided by Costs Assessors. The very terms of s 208L of the 1987 Act would suggest otherwise. It was rather that, in the context of a submission that the Costs Assessor's Determination was final and could not be overturned by the Supreme Court, that the assessment of the Costs Assessor on the question of law was not a final determination but rather a determination in the course of the exercise of jurisdiction conferred by the Legal Profession Act as to the amount of the costs that could be charged, what were reasonable and/or what were not unjust. In other words, the passage upon which the plaintiff relies in the proceedings from my earlier judgment in Hall Chadwick was a passage confined to the question of the jurisdiction of a costs assessor to determine finally a question of law, in the face of an appeal to this Court."
72His Honour continued at [64] to [68]:
"[64] Those "grounds" from time-to-time used the term "submissions" to describe the document. The applicant for review used the term "costs review applicant submits" or "it is submitted" or "in addition to the submission above" etc. The reliance on those words, if the nature of the document were otherwise, would not itself make the attachment a submission. But the attachment made representations, put argument, and made representation as to facts, as well as reciting the ground or error said to arise from the assessment. An analysis of the entirety of the attachment to the application for review of costs assessment is that it represents, predominantly, a submission by MBP as to the manner in which the error of the Costs Assessor, otherwise identified briefly, has been made and how it ought be rectified.
[65] The Determination of the Review Panel does not suggest that the document was not, in its entirety, taken into account. Even if the Review Panel were to have discounted any reliance upon the submission, there would be an appearance of unfairness and a real, if subconscious, risk of prejudice: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629.
[66] The Review Panel, in a little less than two pages, extracted the true grounds of appeal. In order to extract those grounds, the Review Panel would have been required to read the whole of Attachment A, including the submissions in support of the application. The Appeal Panel does not, expressly or impliedly, disavow any regard to the remainder of the Attachment. As a consequence, it is a necessary inference that Attachment A was read and taken into account. Attachment A is a submission.
[67] The provisions of subs 208KC(2) of the 1987 Act provide that the review is to be conducted on the evidence that was before the Costs Assessor and, "unless the Panel determines otherwise, the Panel is not to receive submissions from the parties to the assessment" or receive fresh evidence.
[68] A proper analysis of the character of Attachment A to the application is that it is, predominantly, a submission. The Panel has not determined to receive submissions and it was not entitled to take account of Attachment A."
73Turning to the appeal proceedings before this Court, the Review Panel did not say that it would consider submissions from the parties but it did say that it would seek further evidence. In its letter dated 7 April 2009, the Review Panel stated that it intended to determine the application on the material that was placed before the costs assessor and it requested evidence of any verdict, award, settlement, deed of agreement, or correspondence. The Review Panel also stated, "Please note that the Review Panel does not require any further submissions from either of the parties."
74Counsel for Mr Nassour submitted that if Mr Malouf's grounds of appeal can be construed as submissions then natural justice will have been denied if Mr Nassour was not given an opportunity to reply to those submissions (see Levy v Bergseng at [74] to [75]).
75The letter dated 16 April 2009 from Legal Aid NSW shows that Mr Nassour 's solicitors could not strictly comply with the request from the Review Panel for documents relating to any relevant verdict, award or settlement entered into. However, the letter quoted the terms of settlement letter dated 12 October 2005. I do not consider that supplying details of the terms of settlement at the request of the Review Panel amounts to a submissions being made on behalf of Mr Nassour.
76The Review Panel stated at [29] to [34] of its reasons for determination:
"[29] [Mr Malouf] provided a number of grounds of appeal which may be summarised as follows:
(a) [Mr Malouf] provided legal services from 12 April 1999 to 7 September 2004 as set forth in the Bill of Costs dated 9 September 2004.
(b) [Mr Malouf] terminated his retainer on the basis that there was a failure to provide adequate instructions and/or indication that [Mr Malouf] had lost the confidence of the Client in that the Client would not accept [Mr Malouf's] advice to obtain an opinion from a plastic surgeon. It is asserted that termination in accordance with clause 13 overrode the no win/no fee provisions of the agreement.
(c) [Mr Malouf] did not waive his entitlement to costs.
(d) [Mr Malouf] did not, either by waiver or estoppel, lose his entitlement to costs.
(e) [Mr Nassour] had the benefit of legal services provided by [Mr Malouf] as set out in the bill.
(f) The costs claimed by [Mr Malouf] were not unfair or unreasonable.
(g) That after 20 May 2002 the costs were governed by the costs agreement, which is binding under s208C of the Legal Profession Act 1987 .
(h) The amount of costs set out in [Mr Malouf's] bill dated 9 September 2004 was fair and reasonable in accordance with s208A
(i) [Mr Nassour's] submissions to the Assessor should have been accepted.
[30] The Review Panel had before it the whole of the Assessor's file, the Certificates of Determination and Reasons of the Assessor, the application for review and affidavit of service. The Client has not produced the Practitioner's file, which is still said to be with Benjamin & Khoury.
[31] Section 375(3) of the Act provides that the review is to be conducted on the evidence that was received by the Assessor, unless the panel otherwise determines.
[32] In the present case, the Panel determined to seek further evidence... However, the following information was provided [the Review Panel inserted an excerpt of the plaintiff's settlement letter].
[34] Accordingly, in determining this application for review the Review Panel had regard to the necessity for it to carry out its own review as opposed to conducting an appeal and has acted accordingly."
77Following Levy v Bergseng , the grounds of appeal submitted by the defendant were submissions because they " put argument, and made representation as to facts". In order to extract Mr Malouf's grounds of appeal, the Review Panel would have been required to read the whole of Mr Malouf's application for review, which included submissions. It also raised a more elaborate expos as to the principles of estoppel and waiver and their applicability. Mr Nassour should have been given an opportunity to meet them. He was not given that opportunity. Therefore, i t is my view that there has been a denial of procedural fairness and the decision of the Review Panel should be set aside.
78The reasons for determination issued by the Review Panel failed to comply with Clause 68(1)(d)(ii) of the Legal Profession Regulation 2002 in that it failed to contain an explanation of how the Review Panel dealt with Mr Nassour's contention that Mr Malouf, by his letter dated 29 October 2003, waived its right to and is estopped from claiming its costs and disbursements. Fo r the purpose of s 208L of the Act , the Review Panel's failure to give adequate reasons in respect of its finding that Mr Malouf did not waive his right to, and is not estopped from claiming, his costs and disbursements is an error as to a matter of law arising in the proceedings.
79The Review Panel in so far as abandonment and waiver are concerned stated at [35]:
"35 The Review Panel having reviewed the whole of the material in this matter determines that:
(i) [Mr Nassour] did obtain a successful outcome in the settlement that was made in his favour.
(ii) There was no waiver of [Mr Malouf's] fees by the Practitioner.
(iii) There is no estoppel which might affect [Mr Malouf's] recovery of his fees and [Mr Malouf] is entitled to his fees on a fair and reasonable basis until the Retainer and Costs agreement was signed in May 2002, and thereafter is entitled to his fees in accordance with the terms of the Retainer and Costs Agreement which appears to have been completed by [Mr Nassour] on 20 May 2002."
80The Review Panel then went on to determine Mr Nassour's fair and reasonable costs. The Review Panel did not provide any further reasons in relation to the issues of waiver and estoppel.
Whether the matter should be remitted?
81Rather than remit this matter to the Review Panel for redetermination I will pursuant to s 208L(2)(a) make a determination available to the Review Panel.