Kioussis & Anor v M D Nikolaidis & Co & Anor

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10532 of 2001 ANGELA KIOUSSIS & ANOR v M D NIKOLAIDIS & CO & ANOR JUDGMENT 1 These proceedings were commenced by Summons filed on 23 February 2001. The plaintiffs now proceed on an Amended Summons filed on 15 March 2001. 2 The Amended Summons seeks relief pursuant to s 208L of the Legal Profession Act 1987 (the Act). The plaintiffs have been clients of the defendant. Application was made to this Court for an assessment of ten bills of costs. The assessment was carried out by a costs assessor (Mr Menlove) and he completed that task by issuing a Certificate of Determination on 1 February 2001. The certificate was an enclosure to a letter dated 5 February 2001. This letter provided a statement of the reasons for the determination. The Amended Summons asks that the determination be set aside and that the bills of costs be referred to a Master for re-determination. 3 The plaintiffs were not represented during the assessment. This was also the case during this appeal. Largely, the conduct of the appeal was in the hands of the daughter of the first named plaintiff. 4 The plaintiffs have produced a prodigious volume of paper work and seek to agitate numerous alleged grounds of appeal. All of them are presented as being errors of law. 5 Before proceeding further, it is convenient to briefly refer to the scheme provided by the Act enabling challenge to be made to what has been done by a costs assessor. 6 Subdivision 4A of the Act makes provision for a review of a determination by a panel. Section 208KA provides that a party to an assessment who is dissatisfied with a determination of a costs assessor, may, within 28 days after the issue of a certificate, apply to the Proper Officer of the Supreme Court for a review of the determination. Section 208KB provides that if an application for a review is duly made, the Proper Officer is to refer the application to a panel. Subdivision 4B makes provision for appeals. The provisions of s 208L and s 208M are to be found in that subdivision. Section 208L enables an appeal against a decision as to a matter of law arising in the proceedings to determine the application for assessment. Section 208M enables the granting of leave to appeal where there has been a determination. 7 The Act does not define either "decision" or "determination". However, the Act does draw a distinction. Section 208L has application only where there has been a "decision" in the relevant sense. Apart from references to a "determination", the word "determine" also appears in the Act. There are references to "determination" in relation to an application for assessment of costs (ss 208A and 208F). Such a determination requires the issue of a certificate (s 208J) and it has to be accompanied by inter alia a statement of reasons (s 208JAA). The term "determine" appears in a number of sections (inter alia ss 208A, 208D, 208E and 208F). Sections 208D and 208E empower a costs assessor to determine the matters referred to therein. 8 In this case, the plaintiff has not sought to take advantage of the review process provided by Subdivision 4A. Instead, there has been a direct approach to the court pursuant to s 208L. It follows a disturbing recent trend experienced in this Court. 9 The review process was introduced into the Act for a number of purposes. It was intended to relieve this Court of the work load that had been borne for some years in dealing with applications by way of appeal from decisions or determinations made by costs assessors. It was intended as a primary avenue of challenge that provided the parties with an informal, expeditious and less expensive process which was not a proceeding in this Court. It was intended as an effective procedure for challenging a determination by a costs assessor. It is available to enable the panel to conduct a review which allows the ventilation of inter alia questions of law and/or of fact. It provides a wide avenue of challenge. 10 Section 208L provides a narrow avenue of challenge. It has application where there has been a "decision" (as opposed to a "determination"). It has to be a decision as to a matter of law arising in the proceedings to determine the application for assessment. The mere demonstration of error itself does not necessarily mean that the plaintiff is thereby entitled to relief. There is an onus of satisfying the court that the decision itself should be disturbed. The power to grant the relief conferred by subsection (2) is a discretionary one (it arises after the court has decided the question which is the subject of the appeal). 11 In a number of recent cases, where the review process has been leapfrogged, the court has expressed concern as to matters of jurisdiction ( Firth v Kasumovic [2001] NSWSC 341). At the outset, the concern of the court was made known to the parties and they were informed that the court may deal with the question of jurisdiction in the judgment. The parties were given the opportunity to make submissions on this question. 12 In my view, this appeal is misconceived. Section 208L does not provide an avenue of challenge which can be regarded as an alternative to either a review under Subdivision 4A or an application for leave to appeal under s 208M. In the circumstances of this case, these two latter provisions provided an avenue of challenge to the determination. Subdivision 4A provided the primary avenue of challenge. This was the avenue that should have been pursued by the plaintiffs. If there had been a need to do so, they could have then looked to s 208M as an avenue of appeal from the determination of the panel. 13 Section 208L provides for an appeal against a decision. It provides a discrete remedy restricted to a decision as to a matter of law. Subsection (2) speaks of "the question the subject of the appeal". It may be a decision that arises at any stage in the proceedings to determine the application for assessment. A decision may be made without any determination. A determination may not involve any decision as to a matter of law. 14 Even if a different view had been taken on these matters, it seems to me that there are other reasons why the application should fail. 15 As I have said, the power to grant relief conferred by s 208L (2) is a discretionary one. Even assuming that the section had application in the circumstances of this case, the court may not have proceeded to grant relief pursuant to s 208L (2). An effective facility had been made available to them to challenge the determination by way of review and they had deliberately chosen not to use it. 16 Although what has already been said suffices to dispose of these proceedings, I shall briefly refer to a narrative of some events and to some other matters which were argued during the course of this very long hearing. 17 The application was made on 17 March 2000. The bills that had been given had a generality of form. An itemised list of complaints had been provided with the application. 18 During the course of the application, the Costs Assessor exercised his powers under s 207 (inter alia he required particulars as to the bills). The exercise of these powers brought about the preparation by the defendant of more detailed bills. The preparation of these bills took some months and as a consequence there was significant delay in the progress of the assessment. The plaintiffs were given a copy of each of these documents. 19 The plaintiffs were given the opportunity to make further objections in relation to the detailed bills. A specific request was made to redraw part of the earlier list of complaints so that those complaints could be made referable to the detailed bills (see letter dated 22 November 2000). By letter dated 5 December 2000, a response was made to that letter. In that response the plaintiffs refused to comply with the request (insisting that they would only work from the original bills). Rather than elaborate on "all the costs", they expressed a wish to have the matter finalised as quickly as possible. 20 The plaintiffs had the opportunity to present their evidence and to be heard on the merits. A full hearing took place on the question of whether or not there was any error of law justifying the disturbing of the determination. 21 It is unnecessary to individually enunciate the many and various grounds of appeal that were put forward and ventilated. These grounds are identified in the Affidavit sworn by Harry Kioussis and Penny Kioussis sworn on 14 March 2001. Many of them were the subject of detailed and extensive argument during exchanges between the court and the parties. 22 There were grounds which were founded on misconception. There were grounds which were simply not factually sustainable. There were grounds which related to matters which had not been ventilated before the Costs Assessor. There were grounds that had no bearing on either the assessment process or the determination itself. In addition to these problems, there was an insurmountable difficulty. There was a total failure to demonstrate any error of law, let alone one which would have justified disturbing the determination or any decision made during the application. 23 A substantial part of what the plaintiffs sought to agitate in this appeal was devoted to the product of considerable effort that had taken place subsequent to the determination (involving detailed examination of the bills). This product proved to be of little avail to the plaintiffs because largely it related to matters that had not been ventilated in the assessment itself. The assessment may have taken a different course if this work had been performed prior to the determination and submissions relating to it put to the Costs Assessor. 24 Generally speaking, courts exercising appellate jurisdiction do not permit departure from the course adopted at first instance. Accordingly, generally speaking, parties are not permitted to agitate in the appeal points not taken at first instance ( Chilcotin Pty Ltd & Anor v Cenelage Pty Ltd & Ors [1999] NSWCA 11). 25 Where a costs assessor is considering an application relating to a bill of costs (as opposed to an assessment of costs resulting from an order), he is obliged to comply inter alia with the provisions of s 208A (2). It is in the following terms:- "(2) A costs assessor is to determine the application by confirming the bill of costs or, if the assessor is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in his or her opinion, is a fair and reasonable amount." 26 The operation of this provision has the effect of prescribing and restricting what the Costs Assessor can do. What he can disallow or reduce is restricted to disputed costs ( Turner v Pride [1999] NSWSC 850; O'Connor v Fitti [2000] NSWSC 540). In this case the complaints and objections would be looked to for the purposes of identifying the disputed costs. 27 This is a case in which the plaintiffs have chosen the wrong avenue of challenge. If there be any errors of fact, the chosen avenue is not the one in which they could obtain relief. Any errors of fact may have been rectified by the panel. It may still be possible to rectify any inadvertent error pursuant to s 208JB. 28 Accordingly, the Summons is dismissed and the plaintiffs are to pay the costs of the proceedings. **********

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