By a Summons filed on 14 April 2022, the plaintiff, Mr Robert Francis Kerrison, seeks pursuant to s 93B(3) the Legal Profession Uniform Law Application Act 2014 ("the Application Act") a review by this Court of the decision of the Manager, Costs Assessment, who is a Registrar of the Court, made on 16 March 2022 in these terms:
"The [Manager, Costs Assessment] has not extended the time for filing the review application."
[2]
Applicable Legal Principles
In Tomko v Palasty (No 2) [2007] NSWCA 369, Basten JA, with whom Hodgson and Ipp JJA agreed, said at [50] in respect of a review from the Registrar of the Court of Appeal that the applicant "was under no obligation to demonstrate error on the part of the Registrar and that the Court must exercise its own discretion on the material before it".
At [52] his Honour said this:
"It follows that the proper approach to an application in relation to a decision of the Registrar is as follows:
(1) the application should be treated as a "review", pursuant to s 121(3) of the Supreme Court Act and UCPR r 49.19;
(2) a review, unlike an appeal, does not require demonstration of error, nor is it restricted to a reconsideration of the material before the primary decision-maker;
(3) authorities with respect to the conduct of appeals against the exercise of discretionary powers, such as House v The King, do not in terms apply to a review;
(4) nevertheless, similar policy considerations may arise in relation to a review, including:
(a) a court may be less inclined to intervene in relation to a decision concerned with the management of an on-going proceeding, as opposed to one which terminates the proceeding or prevents its commencement;
(b) different factors may need to be addressed in relation to breach of time limits in relation to the commencement of proceedings, as compared with breach of time limits for steps to be taken in the course of proceedings properly commenced, and
(c) a court may be more inclined to intervene on a review based on fresh evidence, changed circumstances or where error is demonstrated in the decision under review."
Further, at [53] his Honour said:
"Although on review this Court should exercise afresh the power to extend time, it does not follow that the reasoning of the Registrar should be ignored, or that variations in the material presented to him and the evidence adduced in this Court are irrelevant. However because the matter now before this Court must be treated as an original application for an extension of time within which to appeal, arguably those matters should be entirely put to one side."
I note that Barrett JA in Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946, followed this decision: see [23] and [24].
I will proceed in accordance with these authorities. Accordingly, it will be a matter for this Court to determine, on the basis of the materials before it, whether the time for the filing of an application for review of a costs assessment certificate should be extended.
[3]
Factual Background
It is necessary to give a short chronology of the relevant events.
Following the termination by the first defendant in these proceedings, Studio B Hair Design Pty Ltd ("Studio B"), of the retainer which it had with the plaintiff Mr Kerrison, a solicitor's dispute arose as to the solicitor and client costs payable by Studio B to Mr Kerrison. That dispute made its way through the costs assessment process.
On 8 November 2021, the Costs Assessor issued his Certificate of Determination in each assessment matter. On 13 December 2021, the Manager, Costs Assessment sent the Assessor's Certificates and reasons to the parties.
In accordance with the provisions of s 83(1) of the Application Act, a party to such a costs assessment is entitled, within 30 days after the Certificate of Determination by the Costs Assessor being forwarded to the parties, to apply for a review of that determination.
I observe in the course of noting this chronology that a significant part of that 30-day period allowed from 13 December 2021 would be occupied by the usual Christmas vacation of legal practitioners in this State.
The plaintiff filed an application for review of the costs assessor's decision on 24 January 2022. Such an application is required to be made in accordance with a pro forma known as Form A4, entitled "Application For Review of Determinations of Costs Assessor". The application was completed by the plaintiff and filed. It was accompanied by each of the documents which were required to accompany it by the relevant Regulation.
At that point, so far as it appears from the material before me, the application was 12 days late. It required an extension of time to be granted for that short period. It is that extension of time which the Manager, Costs Assessment in his decision on 16 March 2022 declined to grant.
As is apparent from the materials referred to in the reasons given after 24 January 2022 by the Manager, Costs Assessment for declining to extend time, the plaintiff informed the Manager on 4 February 2022, that he wished to amend the application for review by adding further grounds to it. The plaintiff informed the manager that he had briefed a barrister and that it may be appropriate to hold off appointing the review panellists until that amended application had been completed. Various directions were made with respect to the filing of further documents. The consequence is that it was not until 15 March 2022, that in fact the finalised form of the amended application was provided to the Manager, Costs Assessment and served on the other party. This procedure, all of which occurred subsequently to 25 January 2022, was amongst the matters to which the Manager, Costs Assessment had reference in coming to his decision.
[4]
Discernment
The proceedings in this Court, as I have earlier said, do not require demonstration of error in the decision of the Manager, Costs Assessment. The evidence that was placed before this Court consisted of the affidavit of the plaintiff and an additional document. The first defendant placed no evidence before this Court.
The explanation given by the plaintiff for the delay in filing the application for review relied upon two matters. Firstly, that the time of the year, involving as it did the usual Christmas vacation and involving a period of lockdown relating to the COVID pandemic, combined with the fact that the plaintiff himself was infected with COVID-19 and accordingly isolated for a period of time, provided a sufficient explanation for the delay in filing the review and for an extension of time.
The first defendant in these proceedings by its counsel accepted that the combination of these matters constituted a reasonable excuse for the delay in the filing of the document. Such acceptance was in my respectful view correct. The time period required by the extension is relatively short, being 12 days. As well, there was no evidence put before this Court that the first defendant would suffer any prejudice by an extension of time for a period of 12 days sufficient to enable the application for a review of the costs assessor's decision to be filed and thereby commence a costs review process.
As I understand the submissions of the first defendant, opposing the extension of time sought, and arguing that this application for review of the decision of the Manager, Costs Assessment should be dismissed, it submitted on the basis that, first, having regard to the events which occurred, after the application was filed there would be no merit in this Court extending the time and, secondly, that the sums of money involved were modest and that accordingly the combination of those matters meant that this Court should not exercise its discretion to extend time.
The first submission that was made was that the fact that the plaintiff sought in a substantial way to amend the grounds upon which the application for review was made had the effect that the Court would conclude that the plaintiff had in substance abandoned the original application and that it was seeking to make a new application on substantially different grounds. In those circumstances it was submitted the Manager, Costs Assessment had no power to permit such an amendment and, accordingly, the Manager was correct not to extend time in respect of the earlier application which had, in substance, been abandoned.
It was also submitted that the consequence of this was that the Court ought not be persuaded that the original application when filed was complete for the purposes of the ordinary procedures engaged in by the Manager, Costs Assessment and, accordingly, the Manager was correct to decline to extend time.
I do not accept these submissions. The first thing to observe is that the grounds upon which a costs assessment review are sought are not the equivalent of a pleaded cause of action. Rather, they describe the bases upon which the costs assessment is said to have been wrong. In my assessment, the plaintiff's statement of amended grounds of review do nothing more, in substance and in effect, than further particularise matters which were available to be the subject of argument and submission on the basis of the original grounds nominated in the application for review filed on 24 January 2022. There was nothing incomplete about that application and I certainly cannot conclude that there has been any abandonment by the plaintiff of that application. On the contrary, it seems to me that the amended grounds of review which were filed do nothing more than to demonstrate that the plaintiff wishes to proceed with the costs review application and has not abandoned it. The plaintiff simply seeks to do that by further articulating the bases which were originally nominated.
I accept that in producing this application and the amended grounds of review the plaintiff did not comply with the times fixed by the Manager, Costs Assessment, and I accept that that is a matter to which it is proper to have regard. I further accept that there may well be costs incurred by the first defendant in the period between when the application was filed on 24 January 2022 and these amended grounds of review were provided on 15 March 2022. However, there is no evidence that establishes what the amount of those extra costs is, if any. There is no evidence that establishes that any wasted work has been undertaken by the lawyers for the first defendant and, accordingly, whilst I accept as a general proposition that there may be some prejudice, I am unable to give that matter any great weight.
I accept that it is important that parties comply with timetables, and I accept that this is a matter in which the plaintiff has in at least two respects failed to comply with timetables: first, the time within which the application should have been filed; and, secondly, time for the filing of further documents. However, having regard to the fact that there is a reasonable excuse for the first delay and the fact that the plaintiff had properly engaged counsel to advise on and prepare the amended grounds for review, I am not persuaded that a delay between 4 February 2022 and 15 March 2022 is of such significance as would count against an extension of time for the original application.
Finally, the first defendant contends that the sum in issue is modest and would tend to count against the exercise of the Court's discretion. The parties have not agreed specifically on what is the precise sum in issue - variously estimating it as between $5,000 and $8,000. However, the fact is that the sum in issue is likely to be modest on any review is not, in my assessment, a determinative factor standing against the undertaking of a review following upon an extension of time. That is because the costs rules surrounding a review provide that if an adjustment of greater than 15% in favour of the applicant for the review is not achieved, then, subject to any further order, ordinarily the costs applicant pays the costs of the review. In those circumstances and having regard to the fact that the Review Panel has a discretion as to how those costs are to be ordered, it seems to me that the risk being taken with respect to the modest sum of money is one which falls on the applicant for the costs review, who is the plaintiff in this proceeding. I am not persuaded that the modest sum of money is a reason to decline to exercise the Court's discretion.
Taking all of the matters of evidence into account that have been put before the Court, I am persuaded that the Court should set aside the decision of the Manager, Costs Assessment and extend time for the lodging of the application for review.
It is not a matter for me to express any view as to whether the amended application should or should not be permitted to be put before the Review Panel. That is a matter which the Manager, Costs Assessment did not decide and would be a matter in any event to be decided, if not by the Manager, Costs Assessment, then by the Review Panel.
[5]
Orders
Accordingly, I make the following orders:
1. Order that the decision of the Manager Costs Assessment dated 16 March 2022 made in Costs Assessment Application for Review No.2021/159273, which was first lodged on 24 January 2022, be set aside in whole pursuant to s 93B(3) of the Legal Profession Uniform Law Application Act 2014 and Uniform Civil Procedure Rules r 49.19(1).
2. Order that the time for lodgement of the costs assessment Application for Review be extended up to and including 24 January 2022.
[6]
Costs
The plaintiff applies for the costs of these proceedings, relying upon the fact that he has been successful in having the Registrar's decision set aside and obtaining an extension of time within which to file the application for review. The first defendant opposes an order for costs, first submitting that these proceedings have been brought about in the context of the plaintiff's delay needing to be the subject of a remedial order for extension of time; secondly, that the plaintiff has not succeeded on all of the orders sought and, in fact, that the orders obtained are less than the relief sought in the Summons; and, thirdly, that the first defendant should not be ordered to pay these costs in circumstances where in substance the plaintiff is seeking an indulgence for continued delay.
I am satisfied that the first defendant, when asked what its attitude to the extension was by the Manager, Costs Assessment, indicated that it opposed an extension of time. It set out various reasons in correspondence for that to happen. It opposed the relief sought in the Summons in this Court. The first defendant mounted arguments contained both in written submissions and subsequently in oral submissions to the effect, that the Court ought not exercise its discretion to set aside the Registrar's order and extend time.
In my view the plaintiff has been successful, and I see no reason that costs should not follow the event.
Accordingly, I order the first defendant to pay the plaintiff's costs of the proceedings.
[7]
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: 05 April 2023