Gorczynski v AWM Dickinson & Son

Supreme Court of NSW|2005-03-31|Before: Mr J

Background 8 The solicitor delivered the two bills of costs bills in January and February 2003. On 14 January 2003, the solicitor provided a bill of costs to Mr Gorczynski for professional services from 8 November 2002 to 8 January 2003. The total claimed by the bill was $2,226.89. On 14 January 2003, the solicitor provided copies of invoices from Mr Papallo of counsel to Mr Gorczynski totalling the sum of $1,485.00. On 3 February 2003 the solicitor delivered to Mr Gorczynski "final memorandum of our fees for payment". The bill itemises for professional services for the period 10 January 2003 to 24 January 2003. The total claimed by the bill was $821.70. Both of these bills contained a statement by the solicitor that in that bill of costs "If the amount of the bill is disputed, we reserve the right to withdraw the bill and substitute a further higher itemised bill." Thus the bills were conditional upon the terms stated above. Mr Gorczynski disputed the amounts in the bills. 9 On 29 May 2003 the solicitor subsequently delivered a further bill covering these two periods of work claiming $10,294.29. This was the bill upon which the application for assessment was made by the solicitor.

The Review 11 On 6 November 2003, Mr Gorczynski filed for review of costs in which he certified that this application was made within 28 days after issue of the certificate of determination to be reviewed. Technically, as the certificate was issued on 7 October 2003, the application for review should have been filed by 4 November 2003. Nevertheless, Mr Gorczynski made this certification. What this means is that had this been drawn to the attention of the Review Panel by the solicitor, the Review Panel would not have had power to conduct the review. If the application for review is not lodged within time, there is no power to grant such an extension (see Croker) and hence no review would have taken place. Thus, Mr Gorczynski gained an advantage by making an incorrect certification. 12 Section 208L reads: "208L Appeal against decision of costs assessor as to matter of law (1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision. (2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application. (3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given." 13 By virtue of s 208KI of the Act this appeal provision and s 208M apply to the Review Panel. 14 The approach that now should be taken by the court in an appeal from a costs assessor (and Review Panel) was set out in Larsen v Vile [1999] NSWCA 397 and Chapmans. It is incumbent upon the applicant to establish, in relation to any relief claimed under s 208L of the Act that there has been some error of law in respect of the determinations made by the costs assessor and subsequently the costs review panel. As such, an appeal under s 208L of the Act is confined to law. 15 The Review Panel set aside the costs assessor's decision and determined that a fair and reasonable amount or costs to be paid to the solicitor was the sum of $8,900.50 and this amount was to be substituted for the amount determined by the costs assessor. 16 Much of the Review Panel's reasons cover the approach taken by the costs assessor issuing a certificate for the whole amount of the bill when he was on notice that Mr Gorczynski was objecting to the whole of the bill although no objections had been filed within the time stipulated. This part of the reasoning does not form part of this appeal. The Review Panel allowed Mr Gorczynski to file objections and stressed that time was of the essence. Nevertheless Mr Gorczynski did not comply with the timetable but the Review Panel considered his notice of objections and submissions despite them being lodged out of time. 17 The first issue raised on appeal before this court was whether the solicitor should be bound to claim only the amounts of the earlier bills. Those being for a lesser amount than the bill of costs submitted for assessment. Mr Gorczynski's counsel spent much time traversing the authorities on this topic from 1899 onwards. All of these authorities relate to the taxation of costs. A different regime of assessment has been in place for some time. The last relevant case on taxation of costs in New South Wales on this topic is Florence Investments Pty Ltd v H G Slater & Co [1975] 2 NSWLR 398 at 407, where Helsham J held that: "…upon taxation of the detailed bill regard may and, indeed, should, be paid to the earlier gross sum bill as one of the circumstances in the case. It does not appear to me to be sensible or practicable to exclude it from the consideration of the taxing officer. This view is consistent with the decision of the Full Court in Re Macnamara's Costs (1884) 5 LR (NSW) 342 and with the history of our provisions.

It may be suggested that this view is inconsistent with what was said by their Lordships in Re Taxation of Costs; Re Solicitors [1943] KB 69. If their Lordships in their remarks were intending to deal with this point, which is not entirely clear, I think in the circumstances I should follow Re Macnamara's Costs : see Robins v. National Trust Co [1927] AC 515.

The point is not of much importance. The obligation of the taxing officer in taxing the detailed bill will be to consider each item according to the circumstances which apply to it. It is difficult to see that it will be of much assistance to him in discharging that task to know that an earlier gross sum bill was delivered for an amount smaller then [sic] the total of the detailed items in the bill before him. At most it would seem it might lead him to scrutinize the detailed bill with especial care." 18 Under the current assessment regime, Master Malpass in Bowen & Ors t/as Duffield & Duffield Solicitors v Campbell & Anor (NSWSC, 2 December 1997, unreported) dealt with this topic. In Bowen the solicitor rendered an account to the client for work done in the sum of $274.89. Later a revised account was rendered in the sum of $1,971.40. Master Malpass stated: "It seems to me that this material makes it clear that the Costs Assessor has misdirected himself by taking the view that, in the circumstances of this case, the plaintiffs were precluded from rendering the revised Account." 19 The position has not changed from Florence Investments. The costs assessor will assess the bill of costs submitted to him or her by way of application and will consider each item according to the circumstances that apply to it. Regard may be paid to the earlier bills as one of the circumstances of the case. It may be a very detailed regard. There was material evidencing the earlier bills of costs before the assessor. The review panel did not accept the submission that only the total sum of costs in the earlier bills could be recovered. 20 In relation to the actual matters raised in Mr Gorczynski's material placed before it, the Review Panel stated: "The Review Panel certifies that it has taken into account all matters which it must and may take into account in accordance with the provisions of the Legal Profession Act 1987 and the discharge of its function and in accordance with Paragraph 68 of the Legal Profession Regulation 2002 thew Review Panel states as follows:- (i) the total amount of costs for providing legal services determined by the Review Panel to be fair and reasonable is the amount of $7,218.20 (including GST); (ii) the total amount of disbursements determined by the Review Panel to be fair and reasonable is the amount of $1,682.39 (including GST); (iii) No disbursement was varied by the determination of the Panel; (iv) in respect of the disputed costs the basis on which the costs were assessed and manner in which submissions made by the parties were dealt with is as is set forth above this Statement of Reasons." 21 Mr Gorczynski submitted that insufficient reasons were provided by the Review Panel as to the items that were disallowed. As Master Malpass stated in Madden v NSW IMC [1999] NSWSC 196 (15 March 1999) at paras [16] and [17]: "Since the decision of Attorney-General of NSW & Anor v Kennedy Miller Television Pty Ltd (1997-8) 43 NSWLR 729, there is binding authority that a costs assessor should provide reasons. The Court has been referred to authorities containing dicta concerning the matter of what will discharge an obligation to give reasons (including Kennedy Miller and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247). It must be borne in mind that the Court is dealing with a decision made by a costs assessor and not a judicial officer. Many of the cases concern the discharge of the duty owed by a judicial officer. In the cases, observations have been made as to what is required of a decision maker. It has been said that lengthy or elaborate reasons are not required; in most cases, a word or two may suffice and it is necessary that the essential ground upon which the decision rests should be articulated. Whilst there is a plethora of dicta, it may be that ultimately the question has to be dealt with on a case by case basis.

A costs assessor is bound to issue a certificate. He is not required to deliver a determination in the nature of a judgment. There is no prescribed format for the disclosure of the reasoning process. It has been done in conjunction with the prescribed form of the Certificate. The Costs Assessor may deal with it in correspondence. In some instances, the reasoning process may be discernible from a combination of sources." 22 From the reasons of the Review Panel, counsel's fees and disbursements were allowed in full. The Review Panel disallowed a sum of $1,393.70 which equates to $1,267.00 once GST is deducted. The solicitor submitted that this sum is comprised of items 181 to 226 which represent attendances after 23 January 2003 and item 6 in the bill. Both of these are referred to in Mr Gorczynski's objections at page 7. It is my view that the Review Panel could have given more detailed reasoning in relation to items it disallowed but I am not satisfied that there is any error of law that would justify disturbing the determination. Nor should leave be granted under s 208M. 23 In the amended notice of appeal, Mr Gorczynski submitted that he was denied procedural fairness. In my view the Review Panel gave him every opportunity, indeed, leniency to put on submissions. He should not have been afforded a further opportunity. 24 This is another matter where the court has spent half a day carefully listening to submissions. The amount involved in this case is less than $10,000.00. This however is not unique. The majority of appeals concern small sums and questions lacking in any complexity. Many of the cases involve sums of less than $10,000.00 and the court is asked to put aside at least half a day to hear them. To some, it may seem farcical that the court retains jurisdiction to deal with these disputes when matters involving an exercise of unlimited jurisdiction are now being litigated in another court. The parties incurred expense before the costs assessor and also before the Review Panel. There should be a monetary threshold before these appeals can be brought to this court. Otherwise the costs incurred in costs assessments, review panels and in this court far outweigh the actual sum in dispute. There is no proportionality. 25 The appeal is dismissed. Leave to appeal is refused. The determination of the Costs Review Panel dated 9 September 2003 is affirmed. The amended summons filed 3 December 2004 is dismissed. 26 Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs as agreed or assessed.

(3) The determination of the Costs Review Panel dated 9 September 2003 is affirmed.

(4) The amended summons filed 3 December 2004 is dismissed.

(5) The plaintiff is to pay the defendant's costs as agreed or assessed. **********

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.

Legal Profession Act 1987(NSW)s 208L

CITATION : Gorczynski v AWM Dickinson & Son [2005] NSWSC 277

Bowen & Ors t/as Duffield & Duffield Solicitors v Campbell & Anor (NSWSC, 2 December 1997, unreported) CDJ v VAJ [1998] HCA 67 Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361 Coulter v Regina (1988) 164 CLR 350 CASES CITED : Croker v Commissioner of Taxation [2001] NSWSC 188 Florence Investments Pty Ltd v H G Slater & Co [1975] 2 NSWLR 398 Larsen v Vile [1999] NSWCA 397 Madden v NSW IMC [1999] NSWSC 196

Leave for an extension of time to lodge an appeal 4 In Chapmans Ltd v Yandell (t/as Yandells) [1999] NSWCA 361, Fitzgerald JA (with whom Mason P and Davies AJA agreed) stated that it is important to keep in mind the purpose of a requirement of leave to appeal. It is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought with the attendant demands which that places upon the resources of the court and the burden which it places upon other parties and the delays which it causes to other litigants [11] - see Coulter v Regina (1988) 164 CLR 350 at 359. 5 Fitzgerald JA also stated that in considering whether leave to appeal should be granted, it is important to ascertain whether there is some other matter which in justice requires that leave to appeal be granted to allow that matter to be relitigated, the party seeking leave to appeal obviously bears the burden of establishing that justice does require that leave to appeal be granted. Further, when considering whether to grant leave to appeal, the Master obviously has a very wide discretion [12] - see CDJ v VAJ [1998] HCA 67 (per McHugh, Gummow and Callinan JJ). 6 The determination was made on 9 September 2003. Mr Gorczynski received the determination on 14 September 2003. The appeal should have been lodged by 11 October 2003. On 14 October 2004 the summons seeking leave to appeal was filed. The appeal was lodged three days late. The explanation is that the appeal was sought to be filed with the incorrect fee. Mr Gorczynski did not comply with a timetable set by the costs assessor nor the timetable set by the Review Panel. This is yet another occasion when Mr Gorczynski did not comply with a time period. 7 The solicitor submitted that the application should have been filed by 4 November 2003 and that the court has no power to extend time - see Croker v Commissioner of Taxation [2001] NSWSC 188, Master Malpass. Croker refers to an appeal to extend time to lodge to the Review Tribunal. This does not apply to an appeal under s 208L. I accept that Mr Gorczynski certified that the review was lodged in time when it was not. However, the solicitor did not raise this before the Panel. I shall refer to this in more detail later in this judgment. As it was not raised before the Review Panel, it is too late to raise it now. It is a borderline decision, but in my view an extension of time should be granted.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (10 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (8)