Giuseppe Portale v Law Society of New South Wales

LEGISLATION CITED: Legal Profession Act 1987 Legal Profession Act 2004 s 354(2), s 384

Attorney General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 CASES CITED: Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681 Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321 Randall Pty Ltd v Willoughby City Council [2009] NSWDC 118

PARTIES: Giuseppe Portale Law Society of New South Wales

SOLICITORS: Mr Portale in person Mr Pierotti for the defendant

On 11 February 2010 I gave an earlier judgment in these proceedings. I set out the general background to the proceedings in that judgment. The purpose of this judgment today is to dispose of the remaining appeal grounds which are set out in Mr Portale's summons commencing an appeal filed on 9 June 2009. His grounds of appeal are set out in that document very clearly and they are also set out in his written submissions and I do not propose to recite the detail of each ground.

I have been assisted by Ms Webster of counsel, who appears for the defendant Law Society, and by Mr Portale, who appears for himself, as to the relevant authorities and legislation by which I need to determine this summons.

A convenient course will be to make reference to relevant passages and principles from those authorities before examining the detail of this case so that the principles which apply to me are clear.

The Court of Appeal has examined provisions which correspond to the law which I am asked to apply in this case. That occurred in a case named Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321. The principal judgment was delivered by Giles JA with whom Beazley and Ipp JJA agreed.

His Honour referred to a law introduced into the New South Wales Parliament in 1993 which changed the approach which would be made to challenges about legal costs. His Honour referred to a judgment in another case of the Court of Appeal in Attorney General (NSW) v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729. Giles JA extracted from the judgment of Priestley JA in that case passages from the Second Reading Speech delivered by the Attorney General when introducing those changes to the law in 1993.

Priestley JA quoted the Attorney General saying that what was needed by way of a change was a "faster, easier and cheaper system of review of bills of costs". That passage appears at [32] of Giles JA's judgment. Costs assessors who were qualified and experienced legal practitioners were to replace taxation officers who were employed by the courts.

Once again by reference to Attorney General v Kennedy Miller Television at [43] Giles JA said, with reference to costs assessors, that "the extent of their duties must take into account the different nature of their task and their roles as legal practitioners bringing to bear their experience and judgment in evaluation of what work was reasonable and what is a fair and reasonable amount of costs." His Honour also referred to their duties being "moulded by the basis for the obligation to give reasons." That obligation, which was first established at common law, is now the subject of statute and regulation. Giles JA said that such reasons given by a cost assessor "must be such that a party dissatisfied with the costs assessor's or panel's determination 'should have a real and not largely illusory right of appeal'." That appears at [44] of his Honour's judgment.

In the following paragraph his Honour refers to what was said by Meagher JA in Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 at 444 that the balancing act in considering the sufficiency of a statement of reasons "involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal."

Giles JA then went on to examine the particular assessment which was the subject of the appeal in that case. It was a matter concerning party/party costs. His Honour observed at [50] that the assessor had made an adjustment to professional costs and that some of the "internal memos, meetings and overlap is not fair and reasonable". The assessor had also referred to "some excesses" in reporting to the client. Noting at [58] that the assessor in that case had from his own experience determined a fee which he considered fair and reasonable Giles JA went on to say the following: " But he did not accept that all the legal services in the bill of costs were reasonably provided, in the areas of supervision and internal memos and meetings and whatever was meant by 'overlap' ('coordination work'), and of reporting to the client ('reporting work')." Those were references to the items which I referred to in the extracts which Giles JA had made from the assessor's reasons.

His Honour went on to say in the following paragraph that it could not be seen from the costs assessor's reasons "what work in items in the bill of costs, being coordination work or reporting work or perhaps other work, was thought by the costs assessor to have been unreasonably carried out." His Honour concluded that paragraph by saying that it could not be seen "what work the costs assessor thought was or was not reasonable work to be carried out, including by way of coordination work and reporting work, or its relationship to the work in the items in the bill of costs." His Honour concluded at [62] by saying that if either party wished to appeal they could not do so when they did not know: "(a) whether the panel's assessment had been by taking the itemised bill of costs and allowing, disallowing or adjusting items, or by coming to its own view of work reasonable to be carried out; (b) if the former, what items had been allowed, disallowed or adjusted and whether as to hourly rate or reasonable times or for some other reason; or (c) if the latter, what work the panel thought reasonable and how it costed the carrying out of the work." 11. Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681 was a decision of Davies J sitting in the Common Law Division of the Supreme Court delivered on 23 July 2009. That was an appeal under the former legislation - which is in all relevant respects the same - from a solicitor/client assessment. His Honour made reference to the authorities, including Frumar, and then came to examining the bill in that particular case. His Honour referred to the assessor's reasons and criticised them for certain items which he described as "shrouded in the generality of such statements as: 'I have disallowed a number of items' of duplication." His Honour also referred to descriptions such as disallowing items relating to settling correspondence or some attendances. Those references were at [58] of his Honour's judgment. At [61] his Honour said that the plaintiffs did not know from the reasons of the costs assessor which instances of duplication had been disallowed or which items entitled "settling correspondence" were disallowed or which items entitled "attendances to security for costs" were disallowed. His Honour also noted that the parties would not know which items in relation to excessive time, concerning some attendances, were disallowed and what the reductions were in relation to certain conferences and attendances and how much the bill was reduced by.

Davies J referred to another decision of a Supreme Court judge in Cassegrain v CTK Engineering [2008] NSWSC 457, a decision of White J. In Cassegrain at [58] his Honour noted a degree of uncertainty as to whether any reductions were made for particular costs at attending a court hearing. His Honour also observed that it was not possible to say by what amounts there had been a reduction from the costs in respect of attendances to file documents or at conferences or for particular associated proceedings or related to non-urgent facsimile transmissions or preparations for the bill of costs.

Finally, I am also assisted by a decision of his Honour Judge Johnstone in this court in Randall Pty Limited v Willoughby City Council [2009] NSWDC 118. At [59] his Honour observed that it was a matter for a costs assessor to decide how much detail was required in any particular assessment. His Honour said that his own views, based on the decided cases, were these. It is necessary, his Honour said, to assess the whole of the costs which would involve the need for an explanation as to how the overall assessment was dealt with. It is, his Honour observed, preferable that items in a bill that are disallowed or reduced be identified or cross referenced by number. His Honour said that lengthy or elaborate reasons were not required, even a word or two may suffice in most cases. His Honour noted that a determination involving substantive relief, for example a decision that a provision in a costs agreement was unjust, would require a more fulsome explanation.

I turn now to the assessor's reasons in this case. The assessor was Mr John Sharpe of counsel and his reasons were dated 3 November 2008. With two or three exceptions which I will come to in due course the reasons are, with respect, careful and comprehensive. Mr Sharpe notes the notices of objection and generally summarises them. He refers to the correct applicable statutory law in [16 ]and [17]. From [19] to [26] Mr Sharpe deals specifically with a particular objection taken by Mr Portale concerning the nature of "legal services" which was the subject of my earlier judgment. At [27] he deals specifically with the entitlement to retain counsel and gives reasons at [28] about an issue raised by Mr Portale regarding access to documents and files. He expresses the view at [29] that the rates claimed for the legal practitioners were fair and reasonable.

Over [30] to [33] he disallows work regarding certain prior proceedings with clear reasons and clearly identifying the items which he was disallowing. Although he does not identify at [34] which of the work performed before the commencement of the relevant proceedings would be directly related to the relevant proceedings, that would, it seems to me, be clear from the dates of particular items and the descriptions of what was allowed.

At [35] he expresses a view about the use of claiming costs on the basis of six minute units and indicates that he will not assess on that basis but on the basis of fair and reasonable attendances. At [38] he indicates that costs have been assessed on a fair and reasonable basis.

He makes it clear in [40], a passage criticised by Mr Portale, where he has not referred to a particular objection by Mr Portale then it can be taken that he assessed the costs on the basis that he accepted submissions made by the costs applicant. I do not see any particular problem with that way of expressing the point. A dissatisfied party can look at an objection which he thinks has not been dealt with and then cross-reference it to a submission of the other party.

He made reference to the fact that he had regard to the whole of the Law Society's bill of costs in assessing the matter as a useful guide as to the assessment of the costs, but that he had not assessed costs on an item by item basis as if the assessment were a taxation.

I will return to making comments about some of the remaining paragraphs.

Mr Portale asked for a review of Mr Sharpe's assessment, and this was undertaken by a review panel comprising two experienced solicitors, Messrs Stephen Lanken and Robert Webley. The reasons for that review were issued on 14 March 2009 and the assessor's assessment was affirmed.

I turn now to examining Mr Portale's submissions as to the remaining grounds set out in his summons, namely grounds 3 through to and including 11.

I will deal first with ground 3 under which Mr Portale makes many of his substantial points. One of the arguments that he advances more than once is that the costs assessor did not have access to the Law Society's files in undertaking his assessment. Mr Portale argued in his submission that the "only conclusion that can be drawn is that he made his assessment entirely based on what was stated in the bills" and did "not check, peruse or corroborate the documents."

I think it is important to recall in that context the history to the change in approach by Parliament concerning the law for assessment of legal costs and, as Giles JA said, the reliance on legal practitioners who would bring to bear their experience and judgment in evaluation of what work was reasonable and what was a fair and reasonable amount of costs. The new process introduced did not involve a line by line or item or item taxation of costs by officers employed by the courts, but an assessment of costs by experienced legal practitioners.

As Ms Webster pointed out in her submissions, it is a matter for each assessor as to what is required to perform their statutory task. An assessor can ask for additional documents and information and require it to be produced. Ms Webster pointed out that the legislation provides for access by the assessor to a solicitor's file but does not require it. She referred to s 354(2) of the Legal Profession Act 2004. Mr Sharpe himself said, so far as an argument by Mr Portale that he required access to the documents, including the files, that those documents "have little if anything to do with the present assessment of costs".

I do not regard the fact that the assessor in this case has not had access to the files as pointing to some legal error. I say that because the nature of the appeal which Mr Portale is undertaking is provided for in s 384 of the Legal Profession Act and the appeal is to be on the basis of dissatisfaction with a "decision of a costs assessor as to a matter of law arising in the proceedings". The fact that the costs assessor in this case deemed it unnecessary to examine the files, a decision clearly based upon his experience, does not involve in my opinion any error so far as a matter of law is concerned.

Under ground 3 Mr Portale also refers to what he calls transparency and argues that the costs assessor's reasons "do not provide sufficient detail to adequately identify the assessor's decision". He argues that they are not detailed enough to inform the parties why the decision was made "in relation to any items and does not provide a dissatisfied party with a real, and not illusory, right of appeal on questions of law and fact".

Subject to what I have to say on a number of items, to my mind Mr Sharpe's reasons are with respect clear and articulated. He provides reasons for rejecting arguments or propositions advanced by Mr Portale so that Mr Portale was in a position to assess the adequacy of those reasons and challenge them if necessary. A criticism by Mr Portale that Mr Sharpe had rounded out the assessment to the nearest $100 I do not regard as a matter amounting to an error of law. Mr Portale criticised the review panel for not inspecting any of the Law Society's files but I repeat the observations I made concerning the need to inspect files and I reject that submission.

I should have noted when I was making reference to the review panel's reasons for its determination that it agreed with and adopted the assessor's reasons in [29] through to [45] as to what were fair and reasonable costs for work recently performed. That appears in [30] of the panel's reasons.

In assessing the costs, Mr Sharpe was dealing with two bills which concerned broadly two sets of proceedings, one at first instance and the other by way of review or appeal. Mr Sharpe reduced the profit costs and disbursements in each case. Those reductions appear in [45] of his reasons. So far as the profit costs of the first instance proceedings were concerned, profit costs which had been assessed by the Law Society in the region of $18,000 were reduced to some $7,500. A substantial part of that reduction is clearly referable to the items which Mr Sharpe had disallowed because they concerned work performed before the commencement of the relevant proceedings. However by a rough assessment some $2,000 or $3,000 of the reduction in profit costs is not clearly referable to any particular reduction or non allowance referred to earlier by Mr Sharpe.

In [36], [37] and [39] he referred to three particular items. In [36] he said that perusals had been allowed on a reasonable time basis rather than a minimum unit basis so as to reflect the fair and reasonable amount payable. In [36] he said that claims for attendance for review and file reviews had not been allowed because they were in the nature of administrative expenses. In [39] he made reference to where documents were standard documents, the costs of it have been allowed on a reasonable time basis rather than a minimum unit basis to reflect the fair and reasonable amount payable by Mr Portale. I should have included [35] which was the paragraph dealing with the claimed costs on the basis of six minute units. Instead of adopting that system Mr Sharpe, as I earlier said, assessed the costs on the basis of fair and reasonable attendances.

Mr Portale challenges each of those paragraphs as not clearly identifying the items. I agree with him so far as those challenges are concerned. With respect to Mr Sharpe's otherwise clear and articulate set of reasons, it seems to me that [35], [36], [37] and [39] fall short of what would appear to me - from the authorities which I quoted at the commencement of this judgment - to be a fairly high and exacting standard so far as the need for assessors to identify work which they regard as reducing a bills of costs.

If Mr Portale wished to challenge the assessment by reference to those items as a matter of fact by a review then it seems to me that he would not be in a position to clearly discern from the reasons by what amount the bill of costs was reduced because of the reductions and alterations made by Mr Sharpe and referred to in those paragraphs.

I appreciate that he has elected to come to this court on a matter of law but the test to be applied is the test concerning his capacity to exercise his right of appeal and, as I said, what would appear to be the fairly exacting standards required of costs assessors and set out by the authorities. In due course I will give Mr Portale some relief in respect of those particular paragraphs.

Before departing from ground 3 I should indicate that I reject his argument that the Law Society's work in prosecuting him in the Administrative Decisions Tribunal was in some way all administrative and not legal. These were proceedings which required the expertise of legal practitioners. Such practitioners were employed by the Law Society and it was legal work.

Turning to ground 4, Mr Portale argues that the hourly rate of charge for the in house solicitors was not fair and reasonable and that the costs assessor did not provide reasons for accepting them. He said that the costs assessor should have referred to independent research or market statistics. I do not accept that argument. Once again, as Ms Webster points out, the reason that experienced legal practitioners are selected as costs assessors is because they know what are reasonable rates so far as the market place for legal services is concerned their knowledge is current and up to date. There is, as she points out, no need for market research.

I reject the argument of Mr Portale that there is no differentiation drawn between solicitor/client rates and party/party rates. It was clear from Mr Sharpe's reasons for his assessment, and references to the legislation, that he knew that he was dealing with a matter involving costs ordered by a tribunal rather than the costs of a solicitor's bill.

Ground 5 complains that both Mr Sharpe and the review panel failed to provide reasons justifying the in house solicitor's charge out rate. That is not so, for the reasons I gave in my earlier judgment. The law in this State is that it is appropriate for an organisation employing solicitors such as the Law Society in this case to charge the appropriate rate allowable normally in costs bills when rendering a party/party bill.

Ground 6 complains that there was an error in failing to provide reasons distinguishing between the non chargeable administrative duties and the chargeable legal services undertaken by in house solicitors. That was the reason I referred to the rejection of the argument about the role of the Law Society. The only administrative duties may have been incidental. There is no argument available that the overall role of the Law Society was statutory and therefore administrative. The work undertaken was substantially legal work.

Ground 7 complains that the costs assessor or the panel did not have access to the files, and I reject that ground for the reasons which I have already given.

Ground 8 complains that there were no reasons justifying why they did not ask for, or inspect, various documents, including practising certificates. It is a matter for a costs assessor to determine what documents they need to comply with their task, and I am satisfied in this case that Mr Sharpe engaged in correspondence about the documents that he required and gave reasons for documents that it was suggested he have, but did not require. I do not think it is an error to fail to inspect practising certificates to see that they are current.

Ground 9 deals with a failure to provide reasons about whether the costs assessor panel had enquired as to the past legal experience, or how they had assessed as fair and reasonable the hourly rates. That is a matter which as I have indicated before is very much within the experience of the costs assessor.

Ground 10 provides that the costs assessor failed to provide reasons about making reasonable enquiries as to whether the Law Society had insurance and legal liability for its in house solicitors so that they could be entitled to engage them. I do not regard that as a reasonable enquiry for a costs assessor, or one that a costs assessor needs to make, and it reveals no error of law.

The final ground complains that the cost reviewers have erred in not disclosing their prior recognition, knowledge and dealings with Mr Portale which would have disqualified them. Mr Portale focuses his submission on Mr Stephen Lanken, who was a member of the Council of the Law Society from 21 March 2002 t o 17 October 2002. Mr Portale argues that that was the time of litigation between the parties. That is indeed correct, although the first instance decision by the Administration Decisions Tribunal had been made and the result of a review or appeal was not yet known. He complains that both review panellists were members of the Law Society. He had some contact with Mr Lanken in previous professional dealings and said that these matters should have been disclosed.

Ms Webster deals with these in two sets of written submissions and points out, which I accept, that the information about Mr Lanken had been disclosed at various stages and that Mr Portale did not object to Mr Lanken being a member of the costs review panel when the opportunity for such an objection arose when he was advised by the Supreme Court about who was on the panel.

I also accept a submission that any personal objection by way of prior professional association should have been communicated by Mr Portale earlier. It appears that Mr Lanken filled a casual vacancy on the Law Society Council for a few months in 2002. He was not on the council at the time that these proceedings were instituted, and there was is no evidence that he had any personal dealings so far as the prosecution of Mr Portale is concerned. I do not regard the fact that both review panellists were members of the Law Society as something which would disqualify them. I have no doubt that very many, if not all persons eligible to be members of a costs review panel are members of the Law Society. That would be a normal attribute of a legal practitioner who practises as a solicitor.

Accordingly under s 384(2)(b) of the Legal Profession Act 2004 I remit my decision on the questions raised by Mr Portale to the costs review panel and I order him to redetermine the application insofar as I have indicated that paragraphs 35, 36, 37 and 39 of his reasons require elaboration in the ways that I have specified.

Where do we go from here? WEBSTER: Your Honour, two matters when your Honour is revising the transcript that I thought I should draw to attention, if I might?

WEBSTER: Your Honour referred to what was said by the costs review panel in agreeing and adopting certain paragraphs of the costs assessor's reasons, that appearing at paragraph 30 of the review panel's judgment.

HIS HONOUR: I should have said, thank you. Yes, that's correct.

WEBSTER: Lest there be any confusion factually as to the chronology of matters relating to Mr Lanken's membership of council, the Society's submissions, both sets of them, that were provided refer to Mr Lanken's membership of council being advised to Mr Portale, that is in correspondence in the year 2009 after commencement of these proceedings, but not at any earlier time, your Honour.

WEBSTER: Perhaps if I just indicate the precise paragraph of the earlier submissions?

WEBSTER: I appreciate he's not here, and for that reason I would wish, if there were any confusion, to clear that up now before your Honour proceeds.

HIS HONOUR: I see what you mean, yes. But I was right about the Supreme Court advising the identity.

WEBSTER: Yes your Honour. That is the letter of 9 January.

HIS HONOUR: And there is no objection taken before then. Before the panel was constituted.

WEBSTER: Or after the advice of the constitution of the panel was received based on the prior personal association your Honour.

In light of what Ms Webster has just drawn my attention to, I record that I regard it as a sufficient reason reject Mr Portale's argument on ground 11, amongst any other reasons, that the Supreme Court advised him as to the identity of the costs review panel by letter dated 9 January 2009 and there is no evidence that Mr Portale communicated any concern about that membership before the panel determined the matter.

HIS HONOUR: All right, thanks Ms Webster, is there anything else?

WEBSTER: No. those are the two matters I noted for your Honour.

HIS HONOUR: All right. Now I think I have made the order - I think the form of the order I think accords with the statute but--

WEBSTER: Yes. Is your Honour not in fact formally remitting it to the costs review panel?

WEBSTER: The reference to costs assessor is to be read as a reference to a costs review panel because it is from the costs review panel's determination that the appeal formally was brought.

HIS HONOUR: Yes the reference - which I'll tidy up when revising the judgment - to remitting the decision should be to the costs review panel. And I order the costs review panel to re-determine the application. Is that right? WEBSTER: That appears to follow from the nature of the--

HIS HONOUR: Appears to be right. What's that provision regarding the--

WEBSTER: 382 provides that sub-division 6 applies in relation to the determination of a costs review panel as in references--

WEBSTER: They just make two sets of provisions for appeals it would appear your Honour.

HIS HONOUR: Good, good. So I think with those corrections I've just made to the form of order, the references in the form of order to assessor should be to the costs review panel?

WEBSTER: Yes. Practically speaking would your Honour wish the Society to take out that order rather than Mr Portale? Or will it be recorded in your Honour's judgment?

HIS HONOUR: Oh it will be in my - it will be in my judgment.

HIS HONOUR: Yes it will be towards the end of the judgment.

WEBSTER: The only other issue then your Honour would be costs of the summons.

WEBSTER: Oh I'm reminded your Honour, I should say that Mr Portale's notice to produce which had prompted our notice of motion. In light of what's been said your Honour, the Society has succeeded in relation to the bulk of the matter for subject of this appeal. Mr Portale's success has been limited in my submission, it would disentitle us to our costs of these proceedings particularly given the matters of law occupying the first day and giving rise to the first judgment but I'm conscious of the fact that Mr Portale is not present here.

HIS HONOUR: So am I yes. And I don't think he seeks relief regarding that, it's you who are seeking relief isn't it? It's your - you're seeking relief by way of your notice of motion to set aside the notice to produce, am I right?

WEBSTER: That's right but it hasn't been called on further after your Honour's initial judgment.

WEBSTER: Now it may be that that just forms part of the whole of the costs of the proceedings. The costs incurred in relation to that notice to produce and our notice of motion.

HIS HONOUR: Yes. So are you talking about costs or - did I dispose of the notice of motion?

WEBSTER: No. Your Honour hasn't made a formal order dealing with that.

HIS HONOUR: That's right. I'm just concerned that it's - it sounds as though I might have to hear you and Mr Portale on costs doesn't it?

WEBSTER: Well perhaps your Honour might wish to do that by written submissions rather than--

WEBSTER: I don't know whether that would be a course that would appeal giving that your Honour said that your Honour would be sitting--

HIS HONOUR: I'll be in Parramatta for the next six weeks.

WEBSTER: And the costs of this matter - further hearing days might be seen as disproportionate to be rationally involved in these proceedings.

WEBSTER: Perhaps if we put on submissions as to what costs orders we press and Mr Portale replies.

HIS HONOUR: Yes you're reading my mind, I had that in mind. How much time do you want? A week, two weeks? Ten days?

WEBSTER: Ten days your Honour. Something of that nature.

All right, I direct the defendant Law Society to serve written submissions concerning the costs of the summons on Mr Portale on or before Wednesday 10 March 2010 and to deliver them by email to my associate by 4pm on that day. I direct Mr Portale to serve on the Law Society any submissions on the costs of these proceedings on or before Wednesday 24 March 2010 and to email such submissions to my associate by 4pm on that day. I direct the Law Society to serve on Mr Portale within the same timeframe submissions on the disposal of its notice of motion filed 14 December 2009 including any associated costs orders. I direct Mr Portale to serve on the Law Society within the same timeframe his submissions regarding the disposal of that notice of motion and any costs orders each of them within the same time frame and is to deliver such submissions to my associate by email by 4pm on those days.

WEBSTER: Your Honour, might it assist in view of all of the circumstances including the fact that he's not here if my solicitors for the society were to write to Mr Portale confirming that timetable and what is required?

HIS HONOUR: Yes. But what I'll do is, my associate will produce to me in the next twenty minutes or so in chambers a document for me to sign which sets out the orders and the timetable and I will ask her to email that document to you or your client and then to Mr Portale so you've got the order that I've signed. Now--

WEBSTER: Would your Honour wish to be in a position to propose to deliver a written judgment on a costs or deal with it by a tender?

HIS HONOUR: You can probably tell by now, I avoid written judgments. I do so because you'll never get them. Where I've set a date, you get a judgment earlier rather than later.

WEBSTER: I don't know whether your honour's going to have any time in Sydney before your Honour comes back from crime.

HIS HONOUR: Yes, no. Once I've got the submissions I'll look at them and then indicate to the parties that I propose to deliver judgment on a particular day which would probably be at Parramatta.

WEBSTER: And might we have liberty to communicate with your Honour's associate if the day proposed caused particular difficulties?

HIS HONOUR: Oh of course. See I'm not sitting in civil again till--

WEBSTER: This timetable would take the matter through to 24 March your Honour and your Honour would then I think on my calculations be in crime for a week or two after that.

HIS HONOUR: Yes I am. You're right. In fact till the middle of April.

WEBSTER: So it may be depending on timing that I thought your Honour might be back in Sydney before your Honour was in a position to be delivering judgment.

HIS HONOUR: Look it might be that I'm in Sydney on 8 April and if not I might see if I can get into Sydney on 8 April.

WEBSTER: I had apprehended that Mr Portale may be in more difficulties attending at Parramatta than Sydney. That my be completely mistaken on my part.

HIS HONOUR: Yes. I might ask Mr Salvatore Portale, do you know whether your brother, is it easier for him to come here to Sydney or to go to Parramatta? Does he work in the city?

HIS HONOUR: Okay. We well tentatively have in mind Thursday 8 April and perhaps at ten o'clock here. I'm listed for Parramatta crime but it might be that I can get into here for the morning or get in here for the day.

WEBSTER: Or the afternoon possibly your Honour if crime was only in the morning.

HIS HONOUR: Yes that's right. All right, anything else?

As I said earlier I direct a transcript of this judgment be taken out and made available to me on or before Monday 8 March 2010. I will revise it and get copies to the parties. HIS HONOUR: All right, it's nearly quarter to five, I have a court officer here who hasn't complained nor did I ask her, so my thanks for staying on, my associate and the green light indicates there's a monitor somewhere listening to all this three-quarters of an hour beyond what they expected to be and I thank them.

ADJOURNED TO THURSDAY 8 MARCH 2010 FOR JUDGMENT ON COSTS

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