Katingal P/L & Anor v Amor & Ors

PARTIES : Barry Charles Amor (First Defendant)

Karen Faye Amor (Second Defendant)

Parkard Computers Pty Limited (Third Defendant) FILE NUMBER(S) : SC 11836/2003 Mr M Ashhurst (Plaintiffs) COUNSEL : Mr R A Dick (Defendants) Peter Kemp Solicitors (Plaintiffs) SOLICITORS : Phillips Fox (Defendants

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JUDGMENT (Dismiss proceedings and set aside notice to produce; costs assessment) 1 MASTER: By notice of motion filed 26 August 2003 the defendants seek firstly, that these proceedings be dismissed and secondly, that the plaintiffs' notice to produce addressed to the defendants be struck out or set aside. By summons filed 24 July 2003 the plaintiffs seek an order extending time to appeal against the costs assessment dated 28 April 2003 of Costs Assessor Robert Benjamin in relation to the application for costs assessment No. 91273 of 2002 to 31 July 2003. If leave is granted the plaintiffs seek to appeal against the decision of the costs assessor pursuant to s 208L of the Legal Profession Act 1987 (NSW) (the LPA). 2 The plaintiffs relied on the affidavits of Royce Ritchie sworn 22 July 2003. The defendants relied on the affidavits of Judith Mary Healy sworn 26 August 2003, 12 September 2003 and 13 October 2003. The first plaintiff is Katingal Pty Ltd, the second plaintiff is Paul Boyce Pty Ltd. The first defendant is Barry Charles Amor, the second defendant is Karen Faye Amor and the third defendant is Parkard Computers Pty Ltd. 3 On 28 April 2003 the costs assessor Mr Robert Benjamin issued a certificate as to determination of costs between Barry Charles Amor, Karen Fay Amor and Parkard Computer Pty Limited as cost applicants and Katingal Pty Limited, Paul Boyce Pty Limited and Flexible Manufacturing Systems Pty Limited as cost respondents [see - Ex RBR 14]. The application was determined by assessing as a fair and reasonable amount of costs to be paid to the cost applicants the sum of $184,252.70. 4 On 21 May 2003 a judgment was entered in this court that the cost respondents pay to the costs applicants the sum of $184,252.70. 5 The defendants seek that the proceedings be dismissed on the grounds that firstly, an appeal against the costs assessment is not possible because the certificate of determination of costs under s 208L of the LPA was entered as a judgment of the Supreme Court of New South Wales; and secondly, under s 101(2)(q) of the Supreme Court Act 1970 (NSW) an appeal from a judgment of this court with respect to the assessment of costs "…shall not lie to the Court of Appeal, except by leave of the Court of Appeal…" 6 The plaintiff has sought to appeal against the costs assessor's decision on the basis of an error of law. Section 208L of the LPA refers to a determination of a costs assessor and not a judgment. The enforcing party has to take an additional step once the determination has been made to have that determination become a judgment of the court.

Where a certificate is registered as a judgment 7 According to the Butterworths Australian Legal Dictionary, 1997, at 647 a "judgment" is: "1. The determination of a court in legal proceedings. 2. Any order of the court for the payment of an amount of money or costs or otherwise: for example (NSW) District Court Act 1973 s 84. A judgment also includes a decree or order, whether final or interlocutory, or a sentence: (CTH) Federal Court of Australia Act 1976 s 4." 8 The process by which a certificate becomes a judgment of this court is set out in s 208J(3) of the LPA and Part 40 r 12 of the Supreme Court Rules (SCR). 9 Pursuant to s 208J(3) of the LPA states that if the amount of costs has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs. 10 Part 40 r 12 provides that a certificate filed in the court under s 208J(3) or section 208JA(4) or s 208KF(2)(b) or s 208KH(6) of the LPA shall be filed in the common law division. Where a certificate and affidavit are filed in the court, the registrar may file and seal a minute of the resulting judgment without a direction of the court or request of a party. 11 The plaintiff referred to Advanced Management v Beech [2003] NSWSC 638 where Master Macready considered whether a reference to a review panel of a determination of a costs assessor operates as a stay of judgment. In relation to s 208KE Master Macready stated: "13 I accept His Honour's analysis of the matter and the cases to which he has referred but the question which has to be considered, in this case, is whether there is a suspension of the judgment. It can be seen that section 208 KE refers to a suspension of the determination. It does not refer to a suspension of the judgment that was entered pursuant to it. The provisions of section 208 KF sub-paragraph (2)(c) would also seem to support the construction that it is only the determination that is suspended. The sub-section specifically considers and allows for the fact that the judgment has continued in effect with enforcement of the judgement taking place prior to the Costs Assessor's certificate ceasing to have effect as a result of the determination of the review panel.

14 There is, of course, scope for the operation of section 208 KE because it could well have effect where a determination of a Costs Assessor has been issued but no application to court for judgment pursuant to that determination has been made. The suspension would prevent an application for judgement based upon it. It seems that it is a somewhat limited suspension in section 208 KE." 12 Relevantly, Barwick CJ in Bailey v Marinoff (1971) 125 CLR 529 at 530-31 stated:

"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed." 13 Menzies J also stated at 531-2: "This appeal is not concerned with the power of a court to alter orders in pending litigation. It is concerned with the power of a court to make an order in litigation which, without any error or lack of jurisdiction, has been regularly concluded and is no longer before the court. To recognize the problem is, I think, to solve it. However wide the inherent jurisdiction of a court may be to vary orders which have been made, it cannot, in my opinion, extend the making of orders in litigation that has been brought regularly to an end." 14 It is my view that this appeal has been filed after judgment had been entered. An appeal lies only against a determination of a costs assessor. Once a court's judgment has been entered there has been a final disposal of the matter. This appeal has been filed after judgment had been entered and is incompetent. If an appeal is to be competent, the judgment to which it relates must have been property set aside. 15 The appeal is also incompetent because the plaintiff has not complied with Part 51A(5) of the SCR which states: "Statement of ground The plaintiff shall file and serve with or subscribe to the summons instituting the appeal a brief but specific statement of the grounds relied upon in support of the appeal and as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below." 16 No such grounds have been supplied.

The notice to produce 17 The documents sought in the plaintiffs' notice to produce dated 11 August 2003 could only become relevant if there was a right to appeal pursuant to s 208L. At this stage there is no such right, I set aside the notice to produce issued by the plaintiffs to the defendants. The summons filed 24 July 2003 is dismissed. 18 Costs are discretionary. Normally costs follow the event. The plaintiffs are to pay the defendants' costs as agreed or assessed. 19 The court orders:

(1) The summons filed 24 July 2003 is dismissed. (2) The plaintiffs' notice to produce dated 11 August 2003 is set aside.

(3) The plaintiffs are to pay the defendants' costs as agreed or assessed. **********

Last Modified: 02/19/2004 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.