Ghosh v Miller

The history of the pleadings

1. The adequacy of the amended summons as a proper pleading and the concern of this Court that the plaintiff appreciate her obligations as a litigant under the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), including her obligation to adhere to orders made by the Court in accordance with s 56 of the Civil Procedure Act 2005 (NSW), has been the subject of consideration by other judges of this Division. It is not necessary for me to refer to any of those judgments in detail. Suffice to note that in an ex tempore judgment of 6 February 2015, upon granting a stay of execution of all costs orders made by the Local Court in the proceedings of which the application for leave to appeal the decision of the Review Panel formed part, including the costs orders made on 8 December 2014, Garling J directed that the plaintiff take all necessary steps to ensure the appeal from those orders was heard and disposed of expeditiously. I also note that in an ex tempore judgment delivered on 18 May 2015, Button J considered it precipitous to strike out the summons for want of prosecution (an application brought by the defendant founded on the proposition that the plaintiff had not complied with the order of Garling J that the appeal be prosecuted expeditiously), but instead imposed orders the effect of which was to require the plaintiff's strict compliance with UCPR 50, in particular that she file a copy of the transcript of proceedings and the judgment from which the appeal is brought.
2. On 23 June 2015, Beech-Jones J heard a further application by the defendant that the summons be struck out on the basis of non-compliance with the orders of Button J made on 18 May 2015. On that occasion, the plaintiff was represented by counsel. It was put on her behalf that she had addressed the directions of Button J by ordering a sound recording of the Local Court proceedings on 3 November 2014, but had not ordered a transcript of proceedings on all occasions the matter was before the Local Court because of a misunderstanding of the extent of her obligations under UCPR 50. With some hesitation, his Honour found that the plaintiff had not deliberately disobeyed the court's orders, and extended the timeframe for the plaintiff to file and serve her evidence to 7 July 2015.
3. On 3 August 2015, in the course of hearing a further notice of motion filed by the plaintiff concerning a gross sum costs order made by Beech-Jones J on 17 July 2015 in the defendant's favour, his Honour again ordered the plaintiff to file and serve her supporting affidavit annexing the transcript of the Local Court on or before 19 September 2015. He also listed the matter before the Registrar on 23 October 2015 for directions and to obtain a hearing date.
4. On 4 September 2015, the Registrar made an instalment order consequent upon the gross sum costs order made by Beech-Jones J on 17 July 2015. The matter was next before the Registrar on 22 September 2015 in respect of the same issue. She was represented by counsel on that occasion. On that date, the Registrar also ordered that the plaintiff file and serve her affidavit pursuant to UCPR 50.14, annexing a copy of the transcript of proceedings of the Local Court at Newcastle for the relevant dates on or before 20 October 2015 and stood the matter over until 27 October 2015.
5. On 22 October 2015, the plaintiff filed an affidavit annexing the transcript of the Local Court proceedings on 13 October 2014, 27 October 2014, 3 November 2014, 17 November 2014, 1 December 2014 and 8 December 2014. In that affidavit, she claimed that the transcript of 3 November 2014 had been "altered by the Court". She was unable to substantiate that assertion at the hearing of the summons. She also claimed she was unable to provide "a judgment or reasons" of the Local Court as none were "published, entered or provided", despite the Magistrate's reasons for refusing leave forming part of the transcript of proceedings on 3 November 2014 and the lump sum costs order in the defendant's favour making the order being recorded in the transcript of proceedings on 8 December 2014.
6. On 27 October 2015 (it would seem as a precautionary measure), the Registrar directed that the Local Court forward to the Supreme Court a complete copy of the file in the matter.
7. On 30 November 2015, the matter was again before the Registrar for directions. On that occasion the plaintiff was represented by counsel. The Registrar ordered general uplift access to the Local Court file and listed the matter for a one day hearing on 24 March 2016. He also ordered that a Court Book be filed by 4 March 2016.
8. On 3 February 2016, the matter was before Rothman J again in respect of the gross sum costs order made by Beech-Jones J on 17 July 2015. That morning, the plaintiff contacted the Registrar and Rothman J's associate via email requesting an adjournment due to counsel's unavailability, her physical tiredness, personal illness and a loss of documents of some unspecified kind. The adjournment was refused and the hearing proceeded in the plaintiff's absence.
9. On 7 March 2016, the defendant filed a Court Book consisting of three lever arch volumes, including the transcript of the Local Court proceedings and all relevant correspondence between the defendant's lawyers and the plaintiff consequent on the plaintiff commencing proceeding against the defendant by the service of the original statement of claim for damages. I am satisfied the plaintiff was served both in hard copy and electronically with a copy of the Court Book on 4 March 2016. A further copy of the Court Book was also provided to the plaintiff in the course of the hearing.
10. As I have already noted, it was in the early hours of 24 March 2016 that the plaintiff emailed my Associate to request an adjournment of the hearing on grounds of counsel's unavailability and late service of the defendant's written submissions served the previous day. Although there was no order that the parties file written submissions, I understand that the defendant filed submissions in the legitimate expectation they would assist the Court to resolve the issues in dispute given the history of the proceedings in this Court and the Local Court and in circumstances where the plaintiff had been unrepresented from time to time. The defendant's submissions served that purpose.

The adjournment application

1. The plaintiff's application to adjourn the proceedings until an unspecified date was principally, as I understood it, so she could be legally represented. She also complained that the hearing had been listed for hearing on a date when her choice of counsel was unavailable. I have already noted she was represented by a member of counsel when the matter was listed for hearing. When I enquired as to what steps she had taken to secure alternate representation in the interim, the plaintiff said that at some time in the preceding fortnight she had asked a barrister (the same barrister who had represented her before the Registrar on 30 November 2014) to represent her and that she provided him with an electronic copy of the Court Book. It would appear that member of counsel was approached directly, there being no indication in the amended summons or in the plaintiff's affidavit that she had instructed solicitors to act on her behalf in briefing counsel. She said that sometime in the week preceding the hearing, counsel informed her he was not able to represent her.
2. In deciding whether an application to adjourn proceedings should be granted, I am conscious of the mandatory requirement in s 58 of the Civil Procedure Act that the Court is to act "in accordance with the dictates of justice". Although it is desirable that a litigant be legally represented in curial proceedings, the interests of a defendant in having proceedings heard and determined without delay are also entitled to considerable weight. Even if counsel who appeared for the plaintiff on the date the matter was listed for the hearing of the summons did not hold the brief to appear (as to which the Registrar's notes are silent), the plaintiff has had many months to secure representation in the interim should she wish to be legally represented.
3. In my view, an adjournment on the date of the hearing would be contrary to the interests of justice, as it would be to the overriding purpose in s 56 of the Act to facilitate the just, quick and cheap resolution of the issues. In this case, the only issue is whether the Magistrate erred in refusing leave under s 385(2) of the Legal Profession Act (since repealed) to appeal the decision of the Review Panel and whether she erred in the exercise of her discretion to make an award for costs in a lump sum in the defendant's favour. These issues are not in themselves complex. Having been served with the defendant's submissions, and being sufficiently seized of the issues the plaintiff would need to address on the appeal, some of which she addressed in her written submissions, and having had four months to consider her position, I was satisfied that the adjournment application should be refused.

Background

1. By amended statement of claim filed on 15 April 2013, the plaintiff commenced proceedings against seven defendants in the Local Court claiming loss of rent, loss of income and damages to property. The causes of action alleged the tort of trespass, "deceit defamation and other". The defendant was named as the sixth defendant in the statement of claim.
2. On 21 June 2013, the defendant filed a notice of motion seeking that the statement of claim be dismissed pursuant to UCPR 13.4 or struck out pursuant to UCPR 14.28, being, inter alia, beyond the jurisdiction of the Local Court.
3. On 11 July 2013, Cheetham LCM ordered that the statement claim as against the sixth defendant be struck out and that the plaintiff pay the defendant's costs. The proceedings as against the remaining defendants were adjourned until 18 July 2013. They have since been transferred to this Court. One of the orders sought in the plaintiff's written submissions prepared by her for the hearing of the summons, although not an order sought in the summons, is that these proceedings be joined with those proceedings. There is nothing to justify making that order.
4. On 23 July 2013, the defendant's solicitors sent an email and letter to the plaintiff requesting payment of $3,770 in full and final settlement of the costs order in his favour. The defendant's solicitors received no response.
5. On 6 September 2013, the defendant's solicitors applied to this Court for an assessment of costs, advising the plaintiff of that application via email on that date. On 4 December 2013, the Costs Assessor issued a Certificate of Determination of Costs in the sum of $5,496.94.
6. On 26 February 2014, the defendant's solicitors received an email from Blue Ribbon Legal Costing acting on behalf of the plaintiff, providing notice that an Application for Review of the Costs Assessor would be filed in "due course". A Certificate of Determination of Costs by the Costs Review Panel dated 1 August 2014 confirmed the assessment of costs by the Costs Assessor.
7. On 1 September 2014, by summons filed in the Local Court, the plaintiff sought leave to appeal the decision of the Review Panel.
8. On 3 November 2014, Atkinson LCM refused leave to appeal. She delivered her reasons ex tempore - one of the decisions the subject of the appeal. On 8 December 2014, the Magistrate ordered the plaintiff pay the defendant's costs by way of a lump sum order. That decision is also the subject of the appeal to this Court.

Grounds of Appeal

1. I have distilled the 32 "grounds of appeal" in the amended summons (ignoring those that are either tendentious or repetitious) with a view to identifying what might be construed as a ground or grounds of appeal on a question of law only, as to which the following might be said: 1. Grounds 3 and 4 appear to complain that her Honour failed to give any, or any adequate, reasons for refusing the grant of leave; 2. Grounds 5, 8, 12, 21 and 24 appear to complain that her Honour took into the account irrelevant material in refusing leave and/or there was insufficient evidence to support that finding; 3. Grounds 6, 7, 8 and 9 appear to complain that the plaintiff was denied procedural fairness when the Magistrate took into account material that the plaintiff was not afforded an opportunity to address in the hearing of her application of leave to appeal; and 4. That the Magistrate's conduct of proceeding demonstrated actual bias against the plaintiff.
2. The balance of the grounds, as pleaded, do not, on any available construction, identify an error of law which might attract this Court's intervention under s 38 of the Local Court Act. I am conscious that in construing the "grounds of appeal" in the way that I have, some grounds, considered individually, might involve a question of mixed fact and law which would require a grant of leave under s 40(1) of the Local Court Act. For reasons which will follow, irrespective of whether the grounds are construed as giving rise to a pure question of law or a question of mixed fact or law, I am satisfied that error has not been demonstrated and the summons should be dismissed. Similarly, even were the judgment or order of the Magistrate the subject of the appeal to be construed as an interlocutory judgment, thereby invoking s 40(2)(a) of the Act (a question I do not need to resolve on this appeal), again for the reasons which follow the summons should be dismissed.

Conduct of the proceedings below

1. The summons seeking leave to appeal from the decision of the costs Review Panel was filed in the Local Court on 15 August 2014. It raised six grounds of appeal. These grounds were identical to the grounds considered by the Review Panel on the plaintiff's application. They are as follows: 1. The Costs Assessor erred in failing to consider all objections raised in the correspondence of the review applicant (the plaintiff) dated 29 November 2013. In the alternative he erred in failing to give sufficient weight to the objections raised; 2. The Costs Assessor erred in failing to correctly interpret the costs order made by Cheetham LCM; 3. The Costs Assessor erred in failing to respond to the review applicant's request for further particulars of the bill of costs as filed; 4. The Costs Assessor erred in failing to address the fact that the costs agreement post-dated the work undertaken; 5. The Costs Assessor failed to assess the bill of costs on a party/party basis and did not deduct items which represented solicitor/client costs; and 6. The Costs Assessor erred in determining that the review applicant should pay the costs of the costs assessment.
2. The summons in the Local Court was first returned before that Court on 13 October 2014. On that occasion the matter was adjourned to 27 October 2014 on the plaintiff's application, counsel for the plaintiff having only been briefed that day.
3. On 27 October 2014 the plaintiff appeared in person. She claimed that she had not been served with the evidence upon which the defendant intended to rely. The Court confirmed that the plaintiff had in fact been served with: 1. The affidavit of Anthony Patrick Maher, sworn 11 October 2014; 2. The affidavit of Anthony Patrick Maher, sworn 17 October 2014; 3. The affidavit of service of John Daly, affirmed 21 October 2014; and 4. The affidavit of Anthony Patrick Maher, sworn 23 October 2014.
4. The Court ordered that any additional evidence from Mr Maher be served by 31 October 2014 and adjourned the proceedings to 3 November 2014 for hearing.
5. The only evidence served by the plaintiff in support of the summons in the Local Court was an affidavit of 20 October 2014. That affidavit merely recited the grounds of appeal in the summons, in turn, a repetition of the grounds relied upon for a review of the costs, as assessed, by the Review Panel.
6. On 3 November 2014 the plaintiff again appeared in person. On that occasion, she objected to material relied upon by the defendant that was served after 20 October 2014, despite her Honour having dealt with that issue on 27 October 2014.
7. In oral submissions, the plaintiff repeated her claim that the costs assessor (and the Review Panel) had misinterpreted Cheetham LCM's decision when granting the orders the defendant sought by Notice of Motion filed in the substantive proceedings. She also asserted that the grounds relied upon in the review process were overlooked by the Panel, or that they were not given sufficient importance or they were ignored.
8. On the question of leave, the defendant advanced oral submissions to the effect that the matters raised on the application for leave to appeal the Review Panel's decision had already been considered in detail as part of the review process; that no fresh evidence had been served by the plaintiff which might attract a grant of leave and, that there was no other irregularity in the review process or in the Panel's reasons affirming the cost assessment to justify leave being granted. In arguing that leave should be refused, the defendant also relied upon the modest sum the subject of the costs assessment, the history of the proceedings in the Local Court and the need for there to be some finality to the proceedings in the interests of justice.

The Magistrate's decision of 3 November 2014

1. After considering the submissions of the parties and the evidence upon which the application for leave fell to be determined, her Honour gave reasons, ex tempore, for refusing leave. Those reasons extended over four and a half pages of the transcript of proceedings on 3 November 2014. It is not necessary to set the reasons for decision out in detail. What follows is a summary of her Honour's reasons.
2. After referring to s 385(2) of the Legal Profession Act and the nature of the orders sought in the summons, her Honour noted that none of the grounds alleged that the Review Panel's decision was infected by legal error. She then set out, in a summary way, the history of the proceedings to which the costs order related, the course of the cost assessment and the review of that assessment of the Review Panel. As to the bill of costs, she observed that it was in a modest sum and that the legal services provided to the defendant were itemised, including a line item for counsel's fees.
3. The Magistrate emphasised that an appeal under s 385(2) of the Legal Profession Act is to be decided on its merits as to which there is no fixed or exhaustive criteria. She did observe, however, that commonly there is contention by an applicant for leave that the amount assessed is unreasonable or that the applicant has in some way been denied procedural fairness. The Magistrate went on to note that the grounds of appeal the plaintiff sought to agitate on the appeal, were leave to be granted, were a repetition of the same grounds the Review Panel were invited to consider on her application for review. The Magistrate then dealt with each of those matters, albeit briefly, satisfying herself that each had been addressed by the Review Panel as reflected in the reasons for review in the evidence tendered by the defendant. In particular, the Magistrate expressed her agreement with the views of the Review Panel that, in the matter under consideration, there was no impediment to an order that costs follow the event and that in circumstances where the defendant moved promptly for an order that the statement of claim be dismissed as against him, thereby extracting him as a defendant in proceedings, the assessment of costs was both fair and reasonable. In her reasons for decision, the Magistrate repeated, as she had emphasised in the course of hearing submissions, that although the plaintiff claimed that she had applied for the review on legal advice, the advice was not exhibited in the proceedings such as might have permitted the Magistrate to make some assessment of it, in some relevant way on the question of leave.
4. In the result, the Magistrate resolved to the view that there was no merit in the challenge to the Review Panel's decision, being satisfied that the Panel had given consideration to all matters raised by the plaintiff and had delivered reasons in the review process. Accordingly, the application for leave to appeal that decision was not, in her assessment, in the interests of justice and leave was refused.

Applicable principles

1. What must be accorded proper focus for the purposes of this appeal is that the decision appealed from is the Magistrate's refusal to grant leave to appeal the decision of the Review Panel. It is a matter of settled principle that where an appeal is subject to a leave requirement, it serves the function of ensuring that the Court exercises appropriate control over the work in which the proceedings are to be heard and, critically, as a mechanism for avoiding injustice by ensuring that litigation is not extended beyond a legitimate enquiry into issues of fundamental principle, despite litigants being imbedded in a particular cause. It is also a matter of settled principle that subject to the question raised by the appeal being an issue of principle, leave will be refused where the costs of the appeal are assessed to be disproportionate to the amount the subject of dispute between the parties. Notably in this case, the costs the subject of review by the Review Panel was assessed in the amount of $5,496.94.
2. Additionally, and no less importantly, the question whether leave should have been granted by the Magistrate called for the exercise of discretion, thereby attracting principles in House v The King HCA 40; 55 CLR 499.

Grounds 5, 8, 12, 21 and 24

1. From my consideration of the transcript of proceedings on 3 November 2014, and her Honours reasons for refusing leave, I am unable to identify where she took into account any irrelevant matters in considering whether leave should be granted or where she failed to consider evidence and/or argument that was relevant to that question.
2. As I have already noted, although the plaintiff relied upon an affidavit sworn for the purposes of the leave application, and that, from the Bar Table, she claimed she relied upon legal advice before applying for review of the costs assessment to substantiate her challenge to the bill of costs as unreasonable, she did not adduce evidence of the content of that advice or direct any submission as to how the advice might have any relevant bearing upon the grant of leave.
3. I am satisfied that her Honour properly confined her consideration to relevant evidence and gave careful consideration to the submissions advanced by the parties and the applicable law.

Grounds 6, 7, 8 and 9

1. On the hearing of the appeal in this Court, no submissions were advanced by the plaintiff in support of the complaint that she was denied procedural fairness or that the Magistrate conducted the proceedings in a way even faintly suggestive of any actual bias. I am satisfied that these grounds of appeal are without any evidential basis.

Failure to give (adequate) reasons

1. The adequacy of her Honour's reasons for refusing leave need to be assessed in the context of the way in which the parties conducted the proceedings inclusive, in this case, of the obligation on the plaintiff's part to bring to her Honour's attention those matters upon which she relied such as might properly attract a grant of leave.
2. I am satisfied that the plaintiff's submissions before the Magistrate, even those submissions that did not directly bear upon the question of leave per se, namely her allegation that the orders of Cheetham LCM had been misrepresented, a complaint that party-party costs were disallowed and a complaint about the insufficiency of the costs bill, were the subject of express reference by her. I am well satisfied that despite the pressures to which her Honour was subject to in a busy local court list, she identified, with commendable clarity, the issues in dispute, the evidence bearing upon those issues, and a clear path of reasoning to the conclusion that leave should be refused.

Hearing of the summons in this Court

1. The plaintiff's primary submission was based upon her contention that no judgment was published or entered on 3 November 2014 as no judgment (or order) was entered on the computerised record system of the Court. She referred me to UCPR 36.11, which provides: (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system.
2. As I understand that submission, the plaintiff claims that there has been no valid determination of her application for leave under s 385(2) of the Legal Profession Act. In addition to this being another ambit claim by the plaintiff, as to which there is no evidence, counsel for the defendant submitted, correctly in my view, that the order of the court in refusing leave was regularly made and delivered in the proceedings as reflected in the transcript of the proceedings exhibited on the appeal. He submitted that the plaintiff had misinterpreted UCPR 36.11, that being a rule directed to the entry of orders (of the Local Court) and not what constituted the making of an order.
3. The plaintiff also submitted that in February 2015, Garling J had granted leave to appeal and had allowed this appeal. On any reading of his Honour's reasons for judgment on either or both of 6 February 2015 or 13 February 2015, that submission is wholly misconceived.

The lump sum costs order made on 8 December 2014

1. On 8 December 2014, the defendant made an application under s 98 of the Civil Procedure Act for a lump sum costs order, the application for leave to appeal to the decision of the Review Panel having been refused. The costs application was stood over from 3 November 2014 on the plaintiff's application. The plaintiff did not appear on 8 December 2014, having notified the Magistrate by email that morning that she was not available. The solicitor for the defendant suggested that the plaintiff be telephoned to alert her to the application being heard ex parte should she not intend to appear. After that call was made, the Magistrate confirmed that there was no appearance by the plaintiff and determined the application in her absence.
2. The defendant relied upon affidavit evidence in support of the costs application, reading the affidavit of Anthony Patrick Maher of 17 October 2014, 28 October 2014 and 8 December 2014.
3. After considering that evidence, her Honour again delivered ex tempore reasons, this time extending over four and a half pages of transcript, before resolving to make a lump sum costs order in the amount of $10,500.
4. Although an order is sought in the amended summons setting aside that order, no ground of appeal identifies any error save for a general challenge to it being "incorrect at law" and "against the weight of the evidence" and "not fair or equitable".
5. Having considered her Honour's reasons, and noting her Honour's correct identification of the principled approach to the exercise of discretion under s 98 of the Civil Procedure Act and the case law specific to the power to make a lump sum order, together with her Honour's careful consideration of the defendant's evidence, I am well satisfied that there is no error of any kind such as might invalidate that decision. I repeat, no submissions were directed to the terms of the judgment or her Honour's reasons and no submissions directed to any relevant law.

Orders

1. Accordingly, the amended summons dated 17 December 2014 is dismissed.

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: 15 April 2016