Gye v Laughton

Supreme Court of NSW|2019-02-01

Judgment

HER HONOUR: By notice of motion filed 7 September 2018, the plaintiff seeks that leave be granted to file a second amended summons in or substantially in the form annexed to his affidavit dated 12 September 2018.
The plaintiff is Clement Anthony Gye. The first defendant is Gregory Allan Laughton. For convenience, I shall refer to him as the defendant, as he is the only active defendant. The second defendant is Michael William Robinson. The third defendant is John Bartos. They were the two members of the Appeal Panel. The fourth defendant is the Manager of Costs Assessment of the New South Wales Supreme Court. Mr Gye was cross examined at the hearing.
The plaintiff relied Court Book 10 (Ex A). The defendants relied upon their Court Book Volume 1 (Ex 1).

The Appeal Panel

On 26 June 2017, Mr Gye applied for a review of the decisions of the costs assessor. On 8 August 2017, Mr Laughton also applied for a review.
On 20 September 2017, the Appeal Panel issued its reasons concerning the review of the costs assessment. The Appeal Panel upheld parts and disagreed with others of the costs assessor's reasons, but ultimately upheld the costs assessor's determination of the fees properly payable to, and recoverable by, the defendant from the plaintiff.
On 11 April 2018, Mr Laughton filed a notice of motion seeking to set aside the summons on the basis that the Court did not have jurisdiction in respect of the subject matter. That notice of motion was heard on 17 April 2018. The notice of motion was dismissed.
On 14 May 2018, Mr Gye filed an amended summons.
On 2 July 2018, Campbell J, following an application by Mr Gye, ordered a stay of the judgment in proceeding 2018/00003028 until the disposition of this proceeding, on condition that the amount of that judgment, being $19,620.07, was paid into the Registry. That sum has been paid into Court. In his ex tempore judgment, Campbell J stated at [6] and [7]: "6. I should also say that in dismissing Senior Counsel's application for summary dismissal, Adams J proceeded on the basis, which is no longer in dispute, that any statutory appeal from the review panel's decision should have been instituted in the District Court under s 384 or s 385 of the former Act, rather than in this Court under the provisions of the Legal Profession Uniform Law Application Act 2014 (NSW). 7. Her Honour, however, declined to dismiss the proceedings commenced in this Court on the basis that, notwithstanding the statutory right of appeal to the District Court, this Court retained its constitutional supervisory jurisdiction over the review panel. Notwithstanding the discretionary nature of relief under s 69 Supreme Court Act 1970 (NSW), and the significance of the availability of a statutory appeal to the exercise of that discretion, the proceedings had not been shown to be relevantly untenable."
On 14 September 2018, the Registrar noted that the hearing of the notice of motion filed 7 September 2018 was to be treated as the simultaneous hearing of the proposed second amended summons.
This present application by the plaintiff contends that the Appeal Panel decision is based upon errors of law, and/or has misconstrued the costs agreement. The plaintiff seeks orders setting aside the Appeal Panel decision and consequential orders.

The second amended summons

The second amended summons seeks the following: firstly, an order pursuant to rule 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") extending the time for the plaintiff to institute these proceedings until the date of the filing of the summons on 29 March 2018; secondly, an order setting aside the whole of the decision of the Appeal Panel in proceedings 2016/269176 dated 20 September 2017; thirdly, an order remitting the application for assessment made in 2016/269176 to the Manager Costs Assessment to be allocated to a costs assessor not previously involved in this costs assessment process, to be assessed consistently with this Court's decision and the reasons therefor; and fourthly, an order that the first defendant pay the plaintiff's costs of the assessment process in 2016/269176 to the date of the order.
The grounds of review are as follows: (1) The Appeal Panel misconstrued the costs agreement (para 7.11), and was thereby wrong in law to conclude that the costs agreement did not have the meaning and effect that it covered and applied to legal services in connection with the institution and conduct of court proceedings estimated to cost $100,000, and that the scope of the legal services covered by the costs agreement was never changed. (2) The Appeal Panel misconstrued the costs agreement (para 7.11), and was thereby wrong in law to conclude that because the costs agreement "refers to negotiations" (albeit not as part of the description of the legal services to which the costs agreement applied), the costs agreement was therefore necessarily applicable to anything that might be described as "negotiations". (3) The Appeal Panel, having erroneously concluded that the costs agreement was applicable to anything that might be described as "negotiations", was wrong in law in failing to determine that the work to which the fees claimed by the defendant related was work to which the costs agreement, in its terms, did not apply, with the consequence that there was no costs agreement applicable to such work. (4) The Appeal Panel was wrong in law (para 8.30, 8.31), and failed to comply with s 380 of the Legal Profession Act 2004, when it arbitrarily determined the period of 25 hours as "reasonable" for the changes made to the draft letter to NSW Department of Primary Industries (Water). The changes in fact actually made were pursuant to the plaintiff's email dated 29 December, and there was no evidence on the basis of which the Appeal Panel could rationally determine that such changes reasonably required 25 hours of work by a professional person claiming remuneration at $1,200 per hour. (5) The Appeal Panel was wrong in law (para 8.40) in failing to allow the plaintiff his costs of the assessment of the defendant's legal costs (s 369(3)(a) and (c) of the LPA), when the plaintiff had qualified for an award of his costs on the ground that "a lot of his arguments about the nature of the brief, quality of the work" were rejected.

Judicial review

The judicial remedies available under s 69 of the Supreme Court Act are discretionary.
In Craig v State of South Australia (1995) 184 CLR 163 at 179, the High Court stated that an administrative tribunal falls into error if it makes an error of law: "…which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion…"
In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190, McDougall J at [158] referred to Kirk v Industrial Relations Commission [2010] HCA 1: "The majority pointed out (at [71]) that '[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error'. However, by reference to the decision in Craig v South Australia (1995) 184 CLR 163 at 177-178, the majority identified three categories of jurisdictional error (at [72]): (1) The mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers; (2) Entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context; (3) Proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. (Of this last example, it was said in Craig at 178 that 'the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.')."
It is not necessary for the Tribunal to make findings with respect to each piece of that evidence. The failure of the Tribunal to refer to each piece of evidence does not, in and of itself, constitute a legal error: see Applicant A169 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 8 at [24] and [28]; Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630; [2003] FCAFC 184 at [47]; and Collins v Urban [2014] NSWCATAP 17.
It is common ground between the parties that their relationship was governed by the LPA. As a result, it was open to Mr Gye under ss 382 and 384 of the LPA to appeal the decision of the Appeal Panel, in respect of matters of law, to the District Court. He has not done so.
The parties agree that, pursuant to rule 59.10(1) of the UCPR, these proceeding should have been instituted by 20 December 2017, more than three months before it was actually instituted.

Should leave to extend time be granted?

UCPR 59.10 reads: "59.10 Time for commencing proceedings (1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision. (2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1). (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following: (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. (4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings. (5) This rule does not apply to any proceedings in which the setting aside of a decision is not required."
In Dyason v Butterworth [2015] NSWCA 52 at [65], McColl JA (with Gleeson JA agreeing) stated: "UCPR 59.10 became effective on 15 March 2013. It has not been the subject of extensive judicial consideration. As is apparent from Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 (at [9]), in addition to the factors to be considered pursuant to UCPR 59.10(3), other relevant factors include those relevant to extension of time applications in contexts such as UCPR 51.16(2). These include the length of the delay, the reason for the delay and whether the applicant has a fairly arguable case: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 (at [55])."
The above paragraph was referred to with approval in O'Connor v State of New South Wales [2017] NSWCA 335 at [23] per curiam.

(i) Any particular interest of the plaintiff in challenging the decision

The plaintiff submitted that if his application for judicial review should be successful, he will not be obliged to pay $19,620.07.

(ii) Possible prejudice

The additional delay caused by this proceeding being commenced out of time has already extended the period of time for which the defendant has been deprived of the proceeds of the decision of the Appeal Panel. It has also meant that the defendant has incurred additional cost in obtaining a judgment in respect of the decision of the Appeal Panel and taking steps to attempt to recover money from the plaintiff in respect of that judgment, which the defendant would not have incurred if this proceeding was commenced on time.

(iii) When the plaintiff should have and became aware of the decision

Mr Gye became aware of the decision of the Appeal Panel on 21 November 2017.

(iv) Any relevant public interest

No matter of public interest is raised by these proceedings.

(v) Reasons for and length of the delay

It is the plaintiff's responsibility to commence a proceeding on time and in the appropriate manner, particularly as he is a solicitor of 40 years standing. He has briefed counsel in at least 50 matters.
Mr Gye filed his summons seeking judicial review on 29 March 2018. As previously stated, these proceedings should have been instituted by 20 December 2017. As such, they were instituted three months out of time.
Mr Gye's reasons for delay are set out in his three affidavits dated 15 July 2018, 12 September 2018 and 21 December 2017. He was briefly cross examined.
On 6 December 2017, Mr Gye returned from holidays. On that day, he received several messages and correspondence asking him to undertake tests and medical review of a serious nature. These were undertaken during much of the week prior to 6 December 2018.
On 14 November 2017, he wrote to the Executive Director of the Supreme Court, seeking: "… indulgences on reopening and commencing full assessment of my Objections and my Application for Review, both on the grounds of denial of natural justice and apprehended bias; I cite Lord Dennings' rule of nemo iudex in causa sua and audi alteram partem which I believe was not afforded to myself."
There is no power for the Executive Director to reopen and commence a full assessment of objections and application for review. The plaintiff's application was misconceived.
On 19 December 2017, the plaintiff says that he completed the paperwork to file a review application of the decision of the Appeal Panel. On 21 December 2017, he attended the Supreme Court registry to file his application for review. He had a conversation with a registry clerk, where he was told that he could not file these documents because he had written to the Executive Director. Apparently, he was advised that nothing was able to be done with the file until Prothonotary Kenna had carried out a "review".
On 17 January 2018, the Executive Director replied to Mr Gye.
On 29 January 2018, judgment was entered in proceedings 2018/3028 in respect of the decision of the Appeal Panel.
On 12 February 2018, a bankruptcy notice addressed to Mr Gye was issued in respect of the judgment.
From February to March 2018, Mr Gye explained as follows (Aff 15/7/2018 [10]): "My file notes indicate that I spent considerable hours on almost every second day during February 2018 and March 2018 with little or no help or support in drafting the Summons and the three lengthy affidavits. It was also necessary to collate a large volume of materials commencing with 2014 correspondence, reviewing the two separate folders of documents and submissions as filed by the First Defendant in December 2016 and in February 2017 and then the considerable volume of correspondence with MCA in August 2017 and September 2017."
On 5 March 2018, Mr Gye emailed Mr Laughton (Ex 2). It reads: "I (sic) accordance with the recommendation of the Executive Officer, I have drafted and intend filing this week a Summons seeking Judicial Review in the Administrative Law list. Please confirm that you will accept service of documents electronically. Bankruptcy Threat I am in receipt of your letter of 21 February 2018, received 24 February 2018. I do not accept your expiry date as contained in that correspondence. You have my acknowledgment. Notwithstanding, should it become necessary, I will produce this letter in any forum to commence separate proceedings setting aside any bankruptcy application."
On 19 March 2018, a creditor's petition was filed by Mr Laughton in respect of the bankruptcy notice.
Despite advising Mr Laughton that he was going to file his summons "this week", the plaintiff did not do so.
In my view, the plaintiff's explanation for delay is unsatisfactory. He had no real excuse for not filing his application for judicial review within the requisite time period. The impetus for the plaintiff to lodge an application for judicial review was to attempt to stave off the impending bankruptcy proceedings.

(vi) Whether Mr Gye has a fairly arguable case

The plaintiff submitted that he has a fairly arguable case. The defendant submitted that the plaintiff does not have a fairly arguable case.
The first issue is whether the Appeal Panel provided adequate reasons.

Duty of Appeal Panel to give reasons

The Appeal Panel's duty to give reasons for determination is set out in s 380 of the LPA. It reads: "380 Reasons for determination (1) The panel must ensure that a certificate issued under section 378 (Certificate as to determination of panel) or 379 (Recovery of costs of review) that sets out the determination of the panel is accompanied by: (a) a statement of the reasons for the panel's determination, and (b) such supplementary information as may be required by the regulations. (2) The statement of reasons must be given in accordance with the regulations."
In BVT v Office of Children's Guardian [2017] NSWSC 1763 ("BVT") at [99]-[101], Beech-Jones J made the following observations in relation to the limits of the statutory obligation to provide reasons: "99 The first is that the obligation to provide reasons is primarily directed to facilitating a party's appeal rights such that if an appeal is limited to points of law, the obligation to provide reasons for findings of fact is limited (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273A per Mahoney JA and 280G per McHugh JA). Thus, in Wingfoot at [55], the High Court explained that the reasons 'must explain the actual path of reasoning" of the decision maker and must do so "in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law'. 100 The second is that an allegation of a failure to provide adequate reasons is not established by pointing to matters raised by a party that were said to be not addressed by the decision maker. Instead, as explained by Basten JA in Insurance Australia Ltd t/a NRMA Insurance v Milton [2016] NSWCA 156 at [8] to [10], such complaints may involve a failure to afford procedural fairness, a failure to take into account relevant considerations or a constructive failure to exercise jurisdiction. 101 Third, where the ultimate conclusion of the decision maker involves an 'evaluative judgment, it may well not be practicable to provide a detailed articulation as to how specified (and conflicting) factors have been weighed in the balance' (Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v Secretary of the Treasury [2014] NSWCA 112 at [46] per Basten JA) ('Public Service Association v Secretary of the Treasury')."
In Thang Van Pham v NRMA Insurance Limited [2014] NSWCA 22; 66 MVR 152 at [29], Leeming JA stated: "29 The approach to be adopted is stated in Allianz Ltd v Kerr at [53]. The obligation upon the assessor to give reasons is less than that imposed on courts. In particular, irrespective of whether it is said that the reasons disclose error of law or jurisdictional error, 'the limitations of the obligation to give reasons must be kept firmly in mind by a judicial officer accustomed to a higher obligation'."

The Appeal Panel's reasons

The Appeal Panel in its reasons at 6.8 to 6.20 stated: "6.8 On 8 December 2014 Mr Laughton provided to Mr Gye a costs agreement. 6.9 The costs agreement set out Mr Laughton's rates and estimate of his fees. 6.10 The costs agreement also relevantly provided: '2.2.3 I will perform 50% the work on a "no win no fee basis". A "win" will constitute delivery of water to HWFT [Trout Farm] and is going to involve complex considerations about: 1. Obtaining a license or licenses to pump water either out of a dam or the Murray River; 2. Obtaining permission or declaration of right of the pipe infrastructure; 3. Negotiations about the use of electricity, at the time or times pumping is necessary, given that ideally, taking water from the dam involves a gravity fee; 4. Possible application to the Supreme Court of NSW for the declarations of the rights of the Gye companies and applications to the Supreme Court or the Federal Court about the administrative decisions which are made by the Government authorities." 6.11 Sometime in May or June 2016, Mr Gye terminated Mr Laughton's retainer. By that stage Mr Laughton provided a number of advices. The last piece of work was a draft letter dated 13 January 2016 to the Director General, Department of Primary Industry Water. 6.12 By that time Mr Laughton rendered fees of $102,520.00 at his full rates. 6.13 Mr Gye paid $ 27,500 of that amount. 6.14 On 7 September 2016 Mr Laughton applied for assessment of his costs. 6.15 The matter was referred to the Costs Assessor. 6.16 The Costs Assessor made his determination on 17 May 2017. 6.17 He determined that based on the provisions of the costs agreement Mr Laughton was only entitled to recover 50% of his fees as charged and allowed. 6.18 He allowed all the items claimed, save that in relation to entries where 'full day' or 'half a day' were claimed at $12,000 and $6,000 respectively, he determined that 'full day' or 'half a day' referred to 8 hours and 4 hours respectively and allowed 50% of $9,600 and $4,800 respectively. 6.19 Accordingly, the costs assessor allowed Mr Laughton's fees at $45,320. 6.20 He also determined that as Mr Laughton failed to comply with the disclosure requirements of the Act, he was to pay the costs of the assessment."
So far as disclosure is concerned, the Appeal Panel had this to say at 7.5 to 7.13: 7.5 Accordingly, the relevant disclosure requirements are as per s 310. That section provides, on so far as is material: "310 Disclosure if another law practice is to be retained (1) It a law practice intends to retain another law practice on behalf of the client, the first law practice must disclose to the client the details specified in section 309 (1) (a), (c) and (d) in relation to the other law practice, in addition to any information required to be disclosed to the client under section 309. (2) A law, practice retained or to be retained on behalf of a client by another law practice to is not required to make disclosure to the under section 309, but must disclose to the other law practice the information necessary for the other law practice to comply with subsection (1). 7.6 Mr Laughton was therefore only required to disclose to Mr Gye such information as Mr Gye was required to disclose to Fine Foods under s 310(1). 7.7 Mr Laughton did disclose his rates and basis of charging, the estimate of his costs and when he would render the costs. 7.8 In the Panel's view if Mr Gye thereafter required further information from Mr Laughton, the onus was on him to request that information from Mr Laughton. 7.9 Having said that, the costs agreement also contains clause 3 that provides: "3. I am not prepared to accept the retainer for a fixed sum, and I do not presently know the amount which will be charged by me in the matter. At present, for the purpose of complying with the Act, I am assuming that performance of the retainer will include the work and attendances set out in Item 2 of the schedule. I estimate that the likely amount of the costs of legal services to be provided by me pursuant to the retainer is the amount set out in Item 3 of the schedule. I will notify you from time to time of any significant increase in the then current estimate. The actual amount of my fees will depend upon the time spent and work performed pursuant to the retainer. As you would be aware, such estimates can prove to be wildly inaccurate depending upon how the matter unfolds. The estimate (and any updating estimates) are furnished solely for the purpose of complying with the provisions of the Act and should not be relied upon for any other purpose." 7.10 The costs estimate provided by Mr Laughton was $100,000 plus GST. By the time he did the last item of work, that is, the draft letter of 13 January 2016, his fees were $93,200 plus GST, that is, $102,520. 7.11 The Panel disagrees with Mr Gye's submission that Mr Laughton was specifically briefed to institute proceedings. There were no documents produced to the Panel to support it, despite the Panel's request on 27 July 2017. Mr Laughton's costs agreement clause 2.2.3 refers to negotiations and then presumably if not successful: (Emphasis added) 'Possible applications to the Supreme Court of NSW for the declarations of the rights of the Gye companies and applications to the Supreme Court of NSW or the Federal Court about the administrative decisions which are made by the Government authorities.' 7.12 The letter needed some more information from Mr Gye to be completed. It may have produced the desired result or it may not have. If it did not and Fine Foods wished to proceed to litigation a further updated estimate would have been required. This was not shown to have been required. 7.13 In the circumstances, the Panel disagrees with the Costs Assessor in respect of his analysis of the disclosure requirements that Mr Laughton was required to satisfy and his conclusions in that regard, and the Panel finds that Mr Laughton was not in breach of his disclosure obligations."
The Appeal Panel set aside the determination of costs made by the costs assessor. It determined the application by assessing legal costs in the amount of $43,800 (the same amount as the costs assessor) to be fair and reasonable, and at this amount by reducing the amounts for the hours of work performed and claim in the invoices by 50%, in accordance with clause 2.2.3 of the costs agreement.
To understand the plaintiff's grounds of appeal, I include "A" of the statutory disclosure and costs agreement for counsel's fees. It states: "A Retainer: The proposed retainer by as set out in Item 1 of the schedule. … And Item 1 stipulates: Item 1: Retainer (see clause 1) Draft documents and appear on achieving the rights of Hume Weir Trout Farm to obtain water from the Hume Weir or the Murray River; use existing pipeline infrastructure and obtain electricity. $ 12,000.00 per day $ 1,200.00 per hour Plus GST"
Mr Gray of counsel for the plaintiff referred to clause A where it says "the proposed retainer is set out in Item 1", and Item 1 itself (set out above).

Judicial review - Ground 1

Ground 1 has been set out more fully earlier in this judgment.
Counsel for the plaintiff submitted that in the disclosure of estimated costs (clause 3), the barrister says near the middle, "I will notify you from time to time of any significant increase in the then current estimate." At page 186, the then current estimate was $100,000. There was no evidence that it was ever changed (T30.44-50; T31.1). The Appeal Panel fully addressed this issue at 7.5 to 7.13 of its reasons, which have been set out earlier in this judgment.
The Appeal Panel disagreed with the costs assessor in respect of his analysis of the disclosure requirements set out in s 310 of the LPA. In brief, the Appeal Panel did disclose rates and basis of charging, the estimate of his costs, when Mr Laughton would render the costs, and referred to clause 3 of the costs agreement where it commences, "I am not prepared to accept a retainer for a fixed sum, and I do not presently know the amount which will be charged by me in the matter." Nevertheless, the costs estimate provided by Mr Laughton was $100,000 plus GST. By the time he did the last item of work (the draft letter of 13 January 2018) his fees were $93,200 plus GST, that is, $102,520.
Mr Laughton was required to satisfy and give conclusions in that regard, and the Panel finds that Mr Laughton was not in breach of his disclosure obligations.

Conclusion

For the reasons explained by the Appeal Panel above, the defendant was not in breach of his disclosure obligations. The Appeal Panel did not make an error of law on the face of the record nor did it make a jurisdictional error.

Judicial review - Grounds 2 and 3

Counsel for the plaintiff submitted, in a nutshell, that in a contract retainer between a solicitor and a barrister to "draft documents and appear", those documents relate to court proceedings for which the barrister will thereafter be retained to appear for the client. "Draft documents and appear" can have no other meaning (T30.3342) ("the nutshell argument"). Judicial grounds 2 and 3 have been set out more fully earlier in this judgment.
According to counsel for the plaintiff, the work for which this payment was claimed came under the heading of "negotiations", that is, drafting this letter. Counsel for the plaintiff submitted it is singularly significant that the word "negotiations" nowhere appears in the scope of the retainer at page 186 and, on the contrary, where it does appear in clause 2.2.3 on page 184, it is negotiations about the use of electricity, not about obtaining water. In the plaintiff's submission, the defendant has clearly demarcated precisely what the cost disclosure is to cover, and what it is not (T31.35-44).

Conclusion

It is my view that the nutshell argument is not only not fairly arguable, it is wrong. The words in schedule 1 are clear. It reads, "Draft documents and appear on achieving the rights of Hume Weir Trout Farm to obtain water from the Hume Weir or the Murray River; use existing pipeline infrastructure and obtain electricity". It does not say "Draft court documents". If the work was only to relate to court documents, Item 1 of the schedule would have included the word "court". It does not. The word court cannot be read into schedule 1.
The Appeal Panel disagreed with Mr Gye's submission that Mr Laughton was specifically briefed to institute proceedings. There were no documents produced to the Appeal Panel to support it, despite the Appeal Panel's request on 27 July 2017. Mr Laughton's costs agreement clause 2.2.3 refers to negotiations, and then presumably if not successful, "Possible applications to the Supreme Court of NSW for the declarations of the rights of the Gye companies and applications to the Supreme Court of NSW or the Federal Court about the administrative decisions which are made by the Government authorities" (Appeal Panel's reasons at 7.11 & 7.12).
The Appeal Panel has provided adequate reasons in relation the construction of the costs agreement (the nutshell argument). There is no error of law on the face of the record. Nor is there any jurisdictional error. These grounds of judicial review fail.

Judicial review - Ground 4

Ground 4 of judicial review has been set out more fully earlier in this judgment. It concerns whether the Appeal Panel failed to comply with s 380 of the LPA when it arbitrarily determined the period of 25 hours as reasonable for charges made to a draft letter, when the charges were actually made by the plaintiff.
At 8.29 to 8.31, the Appeal Panel stated: "8.29 The invoice of 13 January 2016 records that on 12 and 13 December 2015 Mr Laughton spent 1.5 days on the submissions and furthers 2 days on 7 and 8 January 2016. According to Mr Laughton that is 35 hours. Mr Laughton conceded that the entry of 8 January 2016 is incorrect in that the work must have taken place on either 6 or 9 January 2016. 8.30 There is no doubt that further substantial work did go into the submissions between 4 December 2015 and 13 January 2016. However, in the Panel's view it is difficult to see why 35 hours was required or could be justified. 8.31 The Panel has determined to allow 25 hours as reasonable."
The Appeal Panel referred to the invoices dated 13 January 2016 which record that further substantial work did go into the submissions between 4 December 2015 and 13 January 2016. The Appeal Panel, made up of costs assessors relying on their experience and skill, determined 35 hours could not be justified and determined that 25 hours was reasonable. The Appeal Panel has provided adequate reasons. Not only is this ground of judicial review not fairly arguable, it is wrong. This ground of judicial review fails. The panel did not make an error of law on the face of the record, nor did it make a jurisdictional error.

Judicial review - Ground 5

The last ground of judicial review is that the Appeal Panel was wrong in law in failing to allow the plaintiff his costs of the assessment of the defendant's legal costs.
Section 379 of the LPA provides: "379 Recovery of costs of review (1) A panel that conducts a review of a costs assessor's determination under this Subdivision is to determine the costs of the review and may, subject to this section, determine by whom and to what extent those costs are to be paid. (2) If the panel affirms the determination of the costs assessor, the panel is to require the party who applied for the review to pay the costs of the review. (3) If the panel sets aside the determination of the costs assessor, and makes a determination in favour of the party who applied for review, the panel is to require the party who applied for the review to pay the costs of the review if the determination of the panel increases or decreases the total costs payable (as assessed by the costs assessor) by an amount that is less than 15 per cent (or such other percentage as may be prescribed by the regulations) of the total costs payable as assessed by the costs assessor. (4) Subject to subsections (2) and (3), the panel may require any party to the assessment that is reviewed to pay the costs of the review or may determine that the costs of the review are to be shared between the parties in any manner that the panel considers. …"
Mr Gye improved his position slightly, but by less than 15%, and Mr Laughton has somewhat worsened his position. In the circumstances, the Appeal Panel determined that the costs of the review were to be shared by the parties equally.

Conclusion

The Appeal Panel stated that Mr Gye improved his position, but by less than 15%. Therefore s 379(3) does not apply. It also stated that Mr Laughton had somewhat worsened his position. In these circumstances, the Appeal Panel determined in accordance with s 379(4) that the costs were to be shared by the parties equally. There is no error of law on the face of the record, nor is there a jurisdictional error. This ground of judicial review fails.

Conclusion - Leave to appeal

So far as leave to appeal is concerned, in challenging the Appeal Panel's decision, the plaintiff had a modest financial burden to pay $19,620.07. The defendant suffered additional delay in receiving the proceeds of the decision of the Appeal Panel, and incurred expense in proceedings to bankrupt the plaintiff. The plaintiff became aware of the decision on 21 November 2017. There is no public interest raised by these proceedings. There is also no explanation as to why the plaintiff did not pursue an appeal in the District Court. However, during the time period in which he might have filed his summons for judicial review, he misguidedly wrote to the Executive Director of the Supreme Court requesting that his application for review be reopened and a full assessment be carried out. It should have been clear to an experienced practitioner that the Executive Director could not review a decision of an Appeal Panel.
In my view, there was no real explanation for failing to initiate an application for judicial review within the requisite time period. Rather, it is apparent that the plaintiff was attempting to stave off bankruptcy proceedings, as set out in his letter to the defendant dated 5 March 2018. As to whether the plaintiff has an arguable case, I have briefly considered the grounds of judicial review and concluded they cannot succeed. In these circumstances and in the exercise of my discretion, the interests of justice favour leave being refused. I make an order that leave to extend time to commence proceedings for judicial review is refused.
Finally, if I am wrong, the final consideration to be taken into account is a discretionary factor.

Discretionary factor

Counsel for the defendant submitted, consistent with the observations at [25] of Basten JA (with whom Beazley P relevantly agreed) in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170: "25 … If an appeal were taken to the District Court, it would be an abuse of process to invoke a similar but less extensive jurisdiction under s 69 of the Supreme Court Act, whilst the appeal remained on foot. If no appeal were taken to the District Court, but a challenge to the decision of the panel was brought to the Supreme Court, relief might well be refused on the basis that the statutory appeal right should properly be invoked, where available, rather than the supervisory jurisdiction under s 69. Further, an application under s 69 of the Supreme Court Act with respect to a decision of a review panel would not come to this Court, but would go to a judge in the Common Law Division."
Counsel for the plaintiff submitted that Parliament has provided in s 69 of the Supreme Court Act 1970 (NSW) that any person has a free choice between the two. At the relevant time that Mr Gye initiated his application for judicial review, he did not have a right to appeal to the District Court. The reason that he did not have a right to appeal was that he let the time period for the appeal expire.
There are no proceedings on foot in either the District Court or this Court, so there was no abuse of process. There was no reason given for not commencing an appeal in the District Court, and in the exercise of discretion, this provides yet another reason for relief on the basis that the statutory appeal right should have been exercised in the District Court.

Costs

Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the defendant's costs on an ordinary basis.
I also make an order that in these proceedings, the sum of $19,620.07 that was paid into Court by the plaintiff (together with interest accrued) be paid out to the defendant.

The Court orders that: (1) Leave to extend time for the plaintiff to file an application for judicial review is refused. (2) The plaintiff is to pay the defendant's costs on an ordinary basis. (3) In these proceedings, the sum of $19,620.07 that was paid into Court by the plaintiff (together with interest accrued) be paid out to the first defendant.

Amendments 25 February 2019 - Typographical errors: Para [7] "January 2018" amended to read "January 2016" Para [8] "January 2018" amended to read "January 2016" Para [56] "counsel for the defendant" amended to read "counsel for the plaintiff" 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: 25 February 2019

Legal Profession Act 2004(NSW)

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