Green v Browne & Co & Anors [2004] NSWSC 240 | Case summary

JUDGMENT 1 MASTER: The first defendants are the partners of a firm of solicitors carrying on business under the name of Browne & Co. The second defendants are members of a review panel. 2 The plaintiff gave instructions to the first defendants for the performance of legal services. Legal services were performed and bills of costs were rendered. The sum of $26,673.42 was paid. In effect all costs were paid save for a sum of $570.35. 3 The plaintiff sought an assessment of those costs (the whole of the bills was put in issue). The court appointed a Costs Assessor (Mr McNally). He assessed the costs and made a determination. His certificate issued on 2 May 2003. He assessed the costs in the sum of $14,069.96. This assessment required the first defendants to repay a sum of $13,876.61 (it included a sum of $1,000 in respect of the plaintiff's costs of the assessment). The first defendants were also required to pay the costs of the Costs Assessor. 4 The Costs Assessor had given notice to the plaintiff that if costs of the assessment were sought, the plaintiff should provide his bill by a stipulated time. An extension of time was sought by the plaintiff. In effect, it was not granted. A bill was forwarded to the Costs Assessor within the stipulated time. Unfortunately, the bill did not come to the attention of the Costs Assessor until after he had completed the assessment. 5 The bill for the plaintiff's costs of assessment was in the sum of $26,727.34 (a sum which seems to be grossly disproportionate to what was in dispute). As has been earlier said, the Costs Assessor allowed the sum of $1,000 only. When the bill came to his attention, the Costs Assessor took the view that he was "now functus". 6 A review of that determination was sought. The review was conducted by the second defendants. The certificate and reasons of the panel were issued on 10 October 2003. The panel affirmed the determination of the Costs Assessor and decided that the costs of the review were to be paid by the plaintiff (a separate certificate was issued). 7 The plaintiff commenced these proceedings by Summons filed on 7 November 2003. The Summons brings an appeal against the determination made by the second defendants. It seeks to have the determination set aside, and, if successful in that application, it seeks to have other orders made in respect of matters of costs. 8 The appeal is brought pursuant to s 208L of the Legal Profession Act 1987 (the Act). This section enables a narrow avenue of challenge to a decision. The challenge is confined to a decision as to a matter of law arising in the proceedings to determine the application. 9 It can only be brought when certain features are present. There has to be a decision. It has to be as to a matter of law which has to arise in the proceedings to determine the application. 10 The expression "matter of law" is not defined in the Act. It may not be easy to define. It may be easier to ascertain what it is not. Clearly, it picks up decisions involving questions of law relevant to the determination of the application. 11 Broadly speaking, the position of the plaintiff is that he says he was denied procedural fairness by the Costs Assessor and that the panel in its review failed to address that question. It is, in this sense, that it is said that the appeal concerns a matter of law. 12 I may digress at this stage to observe that It would be open to a party to seek relief of that nature pursuant to s 208M of the Act (by way of leave to appeal). 13 The parties were unable to point to any other decision concerning an appeal from a decision on a question of costs of the assessment. I shall first deal with the matters argued on the appeal. I will then mention matters which came to my mind thereafter. 14 The Costs Assessor, the panel and the parties appear to have proceeded on the basis that the first defendants had a liability to pay the costs of the assessment by reason of the provisions of s 182 (3) and s 208A (4). 15 Section 182 is one of the statutory provisions which deal with the matter of disclosure of matters relating to costs. It purports to deal with the effect of non-disclosure. Subsection (1) provides that when there has been relevant non-disclosure, the client need not pay the costs of the legal services unless the costs have been assessed under Division 6. Subsection (2) provides that in such circumstances the barrister or solicitor may not maintain proceedings for the recovery of the costs unless the costs have been assessed under Division 6. Subsection (3) provides that the costs of any assessment referred to under the section are payable by the barrister or solicitor seeking to recover costs. 16 Section 208A appears in Division 6. It has application where a costs assessor is assessing a bill given by a barrister or a solicitor to the client. Subsection (4) thereof provides that if the barrister or solicitor is liable under s 182 (3) to pay the costs of the costs assessment, the costs assessor is to determine the amount of those costs. 17 By way of contrast it may be observed that where the costs assessor is dealing with an application relating to costs payable as a result of an order made by a court or a tribunal, the costs assessor has the powers and duties conferred by s 208F (4) in relation to the costs of the assessment. The assessment of such costs is treated as part of the assessment process. 18 Sixteen grounds were articulated for the purposes of the review application. During argument attention was focused on Ground 1. It is as follows:- "1. The Assessor erred by: (a) failing to consider the applicant's actual costs of the assessment; and (b) determining an amount for the applicant's costs without regard to the applicant's actual costs of the assessment; and (d) (sic) determining an amount for the applicant's costs which was not the applicant's actual costs of the assessment; as required or contemplated by sections 208A and 182(3) of the Legal Profession Act 1987." 19 The language of denial of procedural fairness was not raised in the grounds. Rather, what was put to the panel inter alia had the presentation of a failure to take into account what was said to be the actual costs of the assessment. 20 By way of completeness it should be added that it may be erroneous to speak of "actual costs". What was submitted to the Costs Assessor was probably no more than a proposed bill. 21 At some length, the panel did address the ground in the terms that it had been so presented. It did not expressly approach it on the basis that there was being said to be a denial of procedural fairness. 22 The panel took the view that the statute required the Costs Assessor to make a determination as to what was fair and reasonable and that is what he did. The plaintiff has not suggested that this was not the appropriate test. The panel perceived no error in what it regarded as being a mere task of quantification. 23 Section 208A (4) forms part of a section which sets out inter alia what a costs assessor must consider when considering an application relating to a bill of costs. These matters are set out in (a), (b) and (c) of subsection (1). 24 I am not satisfied, that the plaintiff ventilated a ground of denial of procedural fairness before the panel. For that reason alone, if it be assumed that it made a decision as to a matter of law, I do not consider that he should now be allowed to ventilate such a ground in this Court. 25 However, leaving that reason aside, I am not satisfied that there is a decision as to a matter of law that arose in the proceedings to determine the application for the purposes of these proceedings. It seems to me that what is presently sought to be ventilated does not fall within the ambit of s 208L. 26 The substance of what is sought to be ventilated in this Court is the question of whether or not the plaintiff should have been allowed a very much larger sum than it was allowed for the costs of the assessment before the Costs Assessor. In the circumstances of this case, I do not consider that such a question throws up any matter of law that was decided by the panel in the relevant sense. 27 It may be that a larger sum could have been allowed. Whether or not that should be the case is not to the point. 28 The plaintiff has chosen to challenge the determination of the panel by proceedings brought pursuant to s 208L (and not pursuant to s 208M). Therefore, the proceedings necessarily must be dealt with in accordance with s 208L. 29 The plaintiff bears the onus of satisfying the court that it has an entitlement to relief under s 208L. As appears from what has been earlier said, it is my view that such onus has not been discharged. 30 Before concluding this judgment, I will now mention the matters which later came to mind. 31 In the process of preparing these reasons I became concerned that it may have been erroneous to proceed on the basis that the first defendants were liable to pay the plaintiff's costs of the assessment before the Costs Assessor. 32 The view could be taken that such an assessment was not "any assessment" referred to in s 182. Section 182 deals with an assessment that is required to enable the barrister or solicitor to enforce payment and/or to maintain proceedings. In the present case, payment had been largely made and it was the client who had applied for the assessment. 33 I take these considerations no further as they have neither been argued nor raised in any way by the parties.

Green v Browne & Co & Anors

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