HIS HONOUR: Before me is notice of motion filed on 23 February 2006. The first prayer in the notice of motion is this:
"Pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW), the subpoena filed by the appellant on 16 February 2015 be set aside."
Prior to the luncheon adjournment, I granted leave to the respondent to amend that prayer so that it now reads thus:
"Pursuant to r 33.4 of the Uniform Civil Procedure Rules 2005 (NSW) cl (3) of the schedule to the subpoena filed by the appellant on 16 February 2016 be set aside."
To understand the nature of the dispute currently before me it is important to bear in mind the background to the current proceedings. These proceedings were commenced by a summons commencing an appeal filed on 18 September 2015. Under the heading "Details of Appeal" are cited the following matters:
"(1) this appeal is brought under the Legal Professional Act 2004,
(2) the appellant has filed and served a notice of intention to appeal, which was served on the first and second respondents on 20 August 2015,
(3) the appellant appeals from the whole of the decision below."
The decision below was a determination of a costs review panel made on 7 September 2015.
The first thing to note is that the Legal Profession Act 2004 was repealed with effect from 1 July 2015. The relevant right of appeal lies under the Legal Professional Uniform Law Application Act 2014. Under the Legal Profession Act 2004 s 384 provided that a party to an application for a costs assessment who was dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application might, in accordance with the rules of this Court, appeal to this Court against the decision. The same provision applied to a determination of a costs review panel. Under s 384 of the former Act, the right of appeal was limited to a matter of law. However, s 385 of the same Act provided that a party to an application for a costs assessment relating to a bill might, in accordance with the rules of the District Court, seek leave of the Court to appeal to this Court against the determination of the application made by the costs assessor. In other words, an appeal under s 385 was not limited to error of law but what would be an appeal against a question of fact as well law but such an appeal required the leave of this Court.
Giles Payne & Co v Penson [2016] NSWDC 72 | Case summary | Zoe
Section 89 of the Legal Profession Uniform Law Application Act 2014 provides, in subs (1), this:
"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."
Section 89 provides a right of appeal on matters of both law and fact, provided that the amount of costs in dispute is $25,000 or more.
From what I shall shortly state, it is clear that the current appellant has a right of appeal from the determination of the costs review panel and does not require the leave of the Court. However, not everything can be agitated on appeal to this Court. It is important to note the grounds of the appeal. However before I go to them it is necessary, in my view, to consider background or facts.
There were proceedings in the common law division of the Supreme Court of New South Wales. The plaintiffs in those proceedings were the current appellant, Shirley Penson, and Aquaqueen International Pty Ltd. The defendants in the action were Joseph John Gilles and Gregory George Eliades trading as Giles Payne & Co, a firm of solicitors. On 24 September 2013 Adams J made certain costs orders against the current appellant in favour of the current first and second respondents. On the day after his Honour made those orders the plaintiffs wrote to his Honour seeking liberty to raise, again, the question of costs on the ground that certain relevant facts were not brought to his attention at the hearing. The matter then proceeded on the papers and on 4 December 2013 his Honour made a further costs order against the then plaintiffs and published his reasons: [2013] NSWSC 1796. Those two costs orders were orders made in interlocutory proceedings in the substantive action.
On 27 November 2014 an application was made by Giles Payne & Co for an assessment of costs. That was sent by the Manager, Costs Assessment, to John Sharpe Esq who is a costs assessor. On 4 March 2015 Sharpe Esqassessed the costs as being $24,437.25. His reasons were published on the same day. The current appellant, the costs respondent, was ordered to pay the costs of the applicant for the costs assessment in the sum of $3,140. That sum, together with the costs assessed, exceeds $25,000.
The current appellant filed on 29 May 2015 an application for review of the costs application made by Sharpe Esq. The review panellists appointed were Robert G Webley, a solicitor of Wollongong, and John Levingston Esq. The review panel, on 24 July 2015, affirmed the certificate of determination of the costs assessor, Sharpe Esq, issued on 4 March 2015. An order was made that the costs incurred in the course of their review, on a party-party basis, were $1,116.15 and were to be paid by the costs review applicant, namely, the current appellant.
Many of the grounds dealt with by the review panel constitute, in essence, the grounds of appeal to this Court. In essence the review panel held that there had been no denial of natural justice, there had been no denial of procedural fairness, and there had been no demonstrable prejudice to the appellant in what had occurred.
It is convenient now to turn to the grounds of appeal. Those grounds are these:
"(1) the appellant was not served [with] the costs assessment application and was not notified of her rights in respect of the costs assessment and as such, was deprived of natural justice and procedural fairness;
(2) the appellant was not provided any information in all material time [sic] in respect of the costs claimed against her;
(3) the appellant acted for Aquaqueen International Pty Ltd (the Company) in the Court proceedings below prior to 11 February 2015 and the company was placed in liquidation since that time, of which occurrence was known to the first and second respondents who should have acted accordingly with respect to the costs assessment application;
(4) the appellant did not act for herself or the company in respect of the costs determined on 4 March 2015;
(5) the appellant was not given an opportunity to make submissions before or after the filing the application to review;
(6) the appellant denies liability for the costs claimed and determined on 4 March 2015 and accordingly affirmed on 24 July 2015."
Paragraph 6, which I have just quoted, is merely a traverse of liability: it is not a ground of appeal at all. Grounds of appeal numbered (1) and (2) are in essence the same, a denial of procedural fairness, a denial of natural justice. I have some difficulty with the third ground of appeal because it is unclear to what the appellant is referring. However it is to be noted that it is clear from the intitulement of the judgment of Adams J, which I have cited above, that the current appellant was a plaintiff in the Supreme Court proceedings in question. Furthermore, where there are two plaintiffs and a costs order is made against them, each is jointly and severally liable for the payment of any costs. I cannot see that the third ground is a ground of appeal. The fourth ground appears to me merely to reiterate the allegation of a denial of natural justice or procedural fairness in respect of the initial assessment of costs made by Sharpe Esq. The same can be said of the fifth ground of appeal.
The relief sought is that the determinations of Sharpe Esq and the review panel be set aside and the matter be remitted for a fresh determination. If the appellant does establish a denial of natural justice or procedural fairness, as alleged by her, it appears to me axiomatic that the relief claimed by her would be granted; that is, the determinations be set aside and the matter be remitted for fresh determination by a costs assessor.
I turn now to deal with what I have to deal with, the notice of motion. The subpoena in question was filed by leave granted by Elkaim DCJ. The subpoena was issued at the request of the appellant and is addressed to the first and second respondents, the partners in the firm Giles Payne & Co. Clause 3 of the schedule to the subpoena contains this material:
"All documents of payments in relation to the payments you have made to your employed solicitors and support staff and/or retained representatives, consultants and services providers in respect of the costs claimed and/or determined in the costs assessment determinations and reviews under reference in the above para (1)."
Clause 1 calls for all documents dealing with the costs assessment initially undertaken by Sharpe Esq. If the appellant be successful in her appeal then the matter will be remitted to a costs assessor to be determined according to law. At the hearing before the costs assessor the appellant will have the ability to tender any evidence she wishes to tender and to make any submissions she wishes to make. She can, and she tells me she wishes to do, challenge the various charges made by the solicitors.
Clearly, documents are kept electronically which are summarised and recorded in the "statement of account" that was forwarded to Mr Sharpe and would, in the days where costs were taxed by the Courts, have been called the "bill of costs". It shows a date and a time, the work done, the time spent doing the work and then a charge based upon the charge out rate for each person dealing with the matter. It is charged in six minute increments, which is the usual method of charging in this State in recent times, in fact, probably for more than 25 years.
There is nothing unusual or irregular about the "bill of costs", as I prefer to call it. However, it appears the appellant wishes to look at each electronic document which records each piece of work done by each practitioner or employee in the respondent firm. That can be done before a costs assessor but cannot be done in this Court because, as I said, if this Court allows the appeal it is inevitable, as indeed the plaintiff seeks in the notice of appeal, that the matter would be remitted for fresh determination according to law. The category of documents which the appellant seeks in cl 3 of the subpoena in question is completely irrelevant and extraneous to the matter currently before this Court, the appeal from the determination of the review panel.
Despite the respondents' limiting their application of setting aside to only one clause of the schedule to the subpoena the appellant complained at some considerable length that she did not accept statements made in an affidavit of Paula Louise Becker, a solicitor, sworn 22 February 2016. Ms Becker has been a legal practitioner since April 2003, in other words, she is coming up to the 13th anniversary of her admission to practice. She has the day to day carriage of the current proceedings, at Giles Payne & Co. Paragraph 8 of her affidavit is this:
"With respect to the whole of the subpoena, I say that the relevant documents have been produced as an exhibit to my affidavit sworn 28 January 2016, with the exception of those documents in sch 3 of the subpoena. This affidavit was sent to Mrs Penson by express registrar post on 5 February 2016. The affidavit and submissions were collected by Mrs Penson from the post office on 19 February 2016, according to tracking records available from Australia Post's website. Annexed hereto and marked with a letter A is a copy of the relevant tracking record."
That annexure shows the parcel of goods in question being received by Australia Post at 5.04pm on Friday 5 February 2016. Australia Post attempted to deliver the goods at noon on Monday 8 February but were unable to gain access to the appellant's premises. The parcel in question was returned to the:
"Alexandria Business Hub" at 1.29pm on Monday 8 February 2016 to await collection. It was in fact delivered to the appellant at 12.02pm on Friday 19 February 2016.
The appellant can complain as much as she likes about her concern about the adequacy of the documents that have been produced. However there is a way that a person, who is dissatisfied with the documents actually returned, can pursue the matter further but the appellant has not pursued that course. As I understand it, the appropriate remedy is to require the deponent of the affidavit in this case, Ms Paula Louise Becker for cross-examination but the appellant has not done so.
The appellant appears to believe that for her to successfully pursue her appeal she has to know everything, that everything has to be checked and proven to her satisfaction. Things only need to be proved to the satisfaction of the Court, not to the satisfaction of a litigant. However the fact remains that on the current appeal, bearing in mind what the grounds of appeal are, the appellant cannot agitate in this Court the quantum of charges made or indeed whether the service alleged to have been provided was so provided. Paragraph 3 of the schedule to the subpoena is irrelevant and it is therefore oppressive.
For those reasons I set aside cl (3) to the schedule of the subpoena for production, sealed on 16 February 2016, issued at the request of the appellant and addressed to the first and second respondents in these proceedings.
The remaining issue concerns the costs of the notice of motion. Costs follow the event. The appellant complains that she came here today to argue about all of the subpoena for production and the notice of motion was amended to challenge only the third clause of the schedule to the subpoena. However it ought to have been clear to any reasonable person reading the affidavit of Ms Becker, sworn on 22 February 2016 and filed on 23 February 2016, that the only real dispute was about the third clause to the subpoena.
Furthermore, the appellant seems to have believed that she could come here and complain about the adequacy of the return to the subpoena but did not follow the correct procedure for doing so; that is, insofar as she came here to complain about the adequacy of the return to the subpoena, she has wasted her time, the respondents' time and the Court's time by not following the appropriate procedure.
I wholly accept that litigants in person are at a disadvantage in conducting proceedings. However a litigant in person must act reasonably, must act rationally, must act coherently and must read carefully the material presented to that litigant in person. If the appellant had closely read the affidavit of Ms Becker she would know what was actually in dispute between the parties to these proceedings, as far as this notice of motion was concerned, and should have realised that what she wished to complain to this Court about; that is, the adequacy or the reply to the subpoena, was not raised by the respondents' notice of motion but rather required an application by her.
Unfortunately the appellant has, by still pursuing matters which she ought not to have pursued, caused lawyers to be present to answer her application and the longer they are present in Court the greater the costs incurred by those who retain the lawyers to act for them. The appellant has to realise that insofar as she continued to persist with irrelevant matter she might waste time and therefore increase the costs incurred.
It appears to me that costs ought follow the event. I order the appellant to pay the respondents' costs of the notice of motion filed on 23 February 2016. That, however, is not an order for interim taxation.
On 11 March 2016 the current motion was before the Judicial Registrar. There was no appearance by or on behalf of the appellant after she had been called three times outside the Court. The Judicial Registrar then granted the relief sought in the notice of motion. It transpires that the appellant, on that day, was suffering from diarrhoea; attended upon a medical practitioner, obtained medication for that condition and obtained a certificate of incapacity. I wholly accept the appellant was unable to attend Court on that day. However, the fact remains that no notice of her absence had been given to the respondents and counsel for the respondents turned up before the Judicial Registrar. In other words, the respondents incurred costs not caused by any fault of their own. In the circumstances, the costs of that day must be the respondents' costs in the notice of motion.
The appellant now complains that Mr Fermanis did not do then what he sought to do today; that is, to amend the notice of motion but one can understand counsel not doing something in the absence of the other party and the Judicial Registrar granted him the relief sought when there was no appearance by or on behalf of the respondent to the notice of motion, the current appellant. I therefore rule that the costs thrown away on 11 March 2016 are the respondents' costs in the notice of motion.
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Decision last updated: 13 May 2016