Kiwi Munchies P/L v Thai Airways International - [2004] NSWSC 89 - NSWSC 2004 case summary — Zoe

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Kiwi Munchies P/L v Thai Airways International

[2004] NSWSC 89

Supreme Court of NSW|2004-02-19|Before: Kiwi Munchies P, Mr J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2004-02-19

Before

Kiwi Munchies P, Mr J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Background 4 These proceedings arise out of local court proceedings heard at the Downing Centre. On 2 March 2001, the defendant's solicitors wrote to the plaintiff advising that the local court proceedings were defective. Following the plaintiff's refusal to discontinue proceedings. The defendant filed a notice of motion and affidavit in support seeking to have the plaintiff's claim against the defendant dismissed pursuant to Part 1 OA Rule 3(1)(a) of the Local Court (Civil Claims) Rules 1998 on the basis that plaintiff's claim was not pleaded under the correct act, namely the Civil Aviation (Carriers Liability) Act 1959 (Cth). 5 On 7 June 2001, the matter came before Dillon LCM at the Downing Centre local court. The magistrate made orders dismissing 6 of the 7 claims brought by the plaintiff. On 25 October 2001, the magistrate ordered that the plaintiff pay the defendant's costs in relation to the parts of the proceedings dismissed on 7 June 2001 in a sum agreed or assessed on an indemnity basis. 6 On 11 December 2001, the plaintiff filed an appeal against the decision of Dillon LCM. By notice of motion filed on 24 January 2002 the plaintiff sought an extension to file out of time to lodge an appeal against the decision of Dillon LCM. In response to the plaintiff's summons, the solicitor for the defendant filed a notice of contention and a notice of motion seeking security for costs together with relevant affidavits in support its claim. 7 On 11 February 2002 before Sully J, the plaintiff filed an amended summons. The matter was stood over for hearing to 15 February 2002. Justice Sully ordered the plaintiff to serve the amended summons by 4.00 pm on 11 February 2003 as the hearing on 15 February 2002 was intended to deal with both the notice of motion seeking an extension of time and the amended summons should the notice of motion for an extension of time be successful. 8 On 15 February 2002, Sully J heard the extension of time motion. On 22 February 2002 Sully J gave judgment in favour of the defendant and the plaintiff was refused leave to file the amended summons out of time and was ordered to pay the defendant's costs. 9 On 4 March 2003, an application for an assessment of party/party costs (Supreme Court proceedings 90329 of 2003) was filed on behalf of the defendant in relation to the costs order of Sully J made on 22 February 2002. 10 On 31 March 2003, Wendy Strathdee, the cost assessor, was appointed to assess the party/party costs. A bill of costs, fee agreements and related information was forwarded to the cost assessor by the defendant's solicitors. The plaintiff filed a notice of objection to the defendant's bill of costs. The defendant filed submissions in response. 11 On 30 June 2003, the cost assessor provided reasons in respect to the assessment of party/party costs and disbursements. 12 Section 208L of the Legal Profession Act 1987 (the Act) provides: "Appeal against decision of costs assessor as to matter of law

[5]

(1) The assessor erred in law in failing to allow the plaintiff access to the costs agreement 13 On 3 April 2003, the costs assessor wrote to the both parties stating that the applicant should within 21 days forward, inter alia, any fee agreement and any fee agreement with counsel. On 17 April 2003, the defendant's solicitor wrote to the costs assessor stating that as requested they provided the following information and then listed correspondence. As part of paragraph (c) the defendant stated that "it is our understanding that correspondence between ourselves and our client's cost consultants is subject to legal profession privilege and accordingly, we have not included copies of such correspondence." 14 On 19 May 2003, the plaintiff wrote to the defendant's solicitor and requested copies of fee agreements dated 11 April 1988, 16 February 2001, 17 September 2001 and 2 June 2002 which have been made available to the costs assessor in the interest of natural justice. On 22 May 2003, the defendant's solicitor replied that the costs agreement was confidential and they were not prepared to release it to them. 15 The costs assessor, in her reasons dated 30 June 2003 stated that she had had regard to the costs agreement between the costs applicant and its solicitors and she was satisfied that the costs applicant is only recovering its solicitor's costs to the extent that it is required to pay and that the indemnity principle has not been breached. The costs assessor also noted the extensive submissions by the costs respondent asking her to compel the cost applicant to produce the agreement to them. She stated that as it was a confidential document, the costs respondent is not entitled to access it. In support, she cited James Hardie and Co v Yeomans (2000) NSWSC 539. 16 Counsel for the plaintiff submitted that the expression "should" in the costs assessor's letter read together with the plaintiff's reply (which forwarded the fee agreement which did not refer to the fee agreement but did refer to other documents where privilege had been claimed,) meant that the defendant had in fact waived confidentiality. As the costs assessor correctly points out, the issue of whether confidentiality still remains with the fee agreement was addressed by Master Malpass in Yeomans. 17 Section 207 of the Act provides: "(1) A costs assessor may, by notice in writing, require a person (including the applicant, the barrister or solicitor concerned, or any other barrister, solicitor or client) to produce any relevant documents of or held by the person in respect of the matter.

[23]

(g) a statement of any determination under section 208E of the Act that interest is not payable on the amount of costs assessed or, if payable, of the rate of interest payable. (3) A statement of reasons to which this clause applies may be accompanied by such further information as the costs assessor concerned considers is necessary to clarify the determination of the application for a costs assessment ." 24 The plaintiff submitted that the costs assessor allowed costs that were incurred solely in relation to the appeal and not in relation to the motion for an extension of time to appeal. There would however, be some overlap in the work done, for example as a solicitor could not appear to defend the motion if he or she was not cognisant with whether the grounds of appeal had any chance of success. The costs assessor stated: "I have had regard to the Cost Respondent's submissions as to the narrow ambit of the order, however the order relates to the costs of the motion not just that days hearing. There was no submission on behalf of the Cost Respondent that those costs should be restricted to any particular day. I have allowed some of the Cost Applicant's claims in relation to work done in preparation of the hearing of the motion. To the extent that various amounts have been varied, I find that that was the fair and reasonable amount." 25 The costs assessor limited the work done and disbursements incurred to the notice of motion to extend the time to file an appeal. There is no error of law. 26 The defendant submitted that the plaintiff should have been obliged to have its complaints determined by the Review Panel prior to lodging this appeal. I agree with the comments of Master Malpass in Freeman v McNally & Anor [2003] NSWSC 780 at paragraph [8] where he stated: "8. The appeal does not raise any novel or difficult questions of law. It seeks to ventilate questions which a panel of experienced practitioners could be considered more than well equipped to handle. It was the intention of the legislature that cases such as this (if a challenge must be brought), should be taken to the panel." 27 That forum is best placed to determine the type of complaints raised here. 28 The appeal is dismissed. The decision of the costs assessor dated 30 June 2003 is affirmed. The amended summons is dismissed. 29 Costs are discretionary. Costs normally follow the event. The plaintiff is to pay the defendant's costs on a party/party basis up until 31 July 2003 and then on an indemnity basis from 1 August 2003. Orders 30 The court orders that:

Kiwi Munchies P/L v Thai Airways International

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Judgment (27 paragraphs)

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