These proceedings comprise an appeal under section 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) from a determination of a Costs Review Panel dated 25 February 2021. The appeal was commenced by Summons filed 1 March 2021. At that time the plaintiff had a solicitor acting for him, Mr Hedges of Walker Hedges. The Summons seeks various orders associated with determinations of the costs assessor and Costs Review Panel. The costs arose from proceedings in Equity heard by Henry J in 2019.
The matter was listed before me on 11 February 2022, however the plaintiff informed the Court that his lawyer had in the last few days ceased acting for him, and so he was at a disadvantage. He had prepared no Court Book and there was no clarity as to the purpose of the listed hearing or the orders for which the plaintiff was pressing at that hearing.
There was no Notice of Ceasing to Act filed and there seemed to be some ambiguity about the position of Mr Hedges' retainer. I took the view that the hearing could not proceed as the plaintiff was not ready. He asserted that his lawyer had "just dropped him in the last few days", he thus had no legal representation and wanted to obtain a lawyer. He did not appear to be otherwise able to articulate the orders he planned to seek.
Counsel for the defendants, Ms McDonald, gave an outline of the history of the matter which included a referral to a costs referee (by consent) which was one of the alternative orders sought in the Summons. That referee provided a report in August 2021 assessing the "fair and reasonable" costs. That assessment was approximately $20,000 less than the amount affirmed by the Costs Review Panel.
The defendants wish to argue that this Court should simply affirm the decision of the Costs Review Panel because the difference is minor, (less than 10% of the total costs figure), and the jurisdictional limit is not met and so the plaintiff requires leave, there is a lack of proportionality and so the matter should not proceed any further.
Lawrence v Sammut [2022] NSWSC 344 | Case summary | Zoe
I was informed that there had been some discussions between the parties to try and resolve their differences but to no avail.
I decided that the question of Mr Hedges' retainer needed to be clarified and so the matter had to be adjourned.
It was in this context that I was asked by Ms McDonald to consider the position regarding two notices to produce that had been issued by the plaintiff in October 2021 and February 2022.
I was asked by Ms McDonald to suspend compliance with those notices, pending evidence being filed in support of an application to set them aside.
I acceded to that request and made directions for affidavits in support of and in response to the defendants' proposed application and adjourned that issue to 10 March 2022.
On 10 March 2022, having read the affidavit material, I set aside those notices to produce. These are my reasons.
[2]
The proceedings
Part 7 Division 6 of the Legal Profession Uniform Law Application Act 2014 (NSW) provides for appeals. Section 89 provides:
89 Appeal on matters of law and fact
(1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to -
(a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or
(b) the Supreme Court, in accordance with the rules of the Supreme Court, but only with the leave of the Court if the amount of costs in dispute is less than $100,000.
(2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel.
(3) The Supreme Court may, on the hearing of an appeal or application for leave to appeal under this section, remit the matter to the District Court for determination by that Court in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court thinks fit.
(3A) The Supreme Court may, before the conclusion of any appeal or application for leave to appeal under this section in the District Court, order that the proceedings be removed into the Supreme Court.
(4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.
On 13 July 2021, Davies J made orders to manage the proceedings, including a referral out to a costs referee, John Bartos, and that upon his report being submitted, the matter would be listed before the Court:
"… to give consideration as to what is to occur with regard to the existing certificates and determinations and whether they are to be affirmed, set aside and/or substituted, as well as who is to pay the costs of the reference and this appeal."
On 27 August 2021 the Registrar listed the matter for hearing on 11 February 2021 "as to adoption, variation or rejection of the referee's report and the final orders to be made".
[3]
The plaintiff's notices to produce
The first notice to produce dated 7 October 2021 was served upon the defendant's solicitor seeking production, presumably by the solicitor, of the following:
"Project application form for home builders warranty insurance certificate number HBCF 18027758 builder name S &T Cavallaro licence 198199C single dwelling alterations and additions structural description of work".
The letter serving the notice to produce was not much more enlightening as to the relevance of the documents to the remaining proceedings before this Court. The letter stated:
"Please find enclosed a notice to produce the current proceedings I'm seeking production a copy of the application for the homeowners warranty insurance. I'm also seeking production of copy of the expert's report (in the alternative refund the cost you claimed in your bill of costs as I've not seen the report. Bill of cost item 234 date 20/12/2017 letter re-attaching tax invoice for report Donald Cant Watts Corke all and report item 1216 date 20/12/2017 Donald Cant Wats Corke preparation of report as per instructions per quotation $3200 plus GST."
The second notice to produce dated 7 February 2022 was completed as if it was directed to Wayne Lawrence, but seems to require documents from Karen McLean, solicitor for the defendants:
"1. Copy up (sic) the controlled money's account that Karen McClain what's the trustee for as per the consent orders 12 October 2018.
2. To avoid doubt it's identified in your bill of costs add item 697, page 89 & 94 including all the items 743 through to 754 19/12/18 including the midway account and the settlement of the midway account documents".
This notice to produce was forwarded by Walker Hedges Solicitors on 7 February 2022. In the accompanying email, a Ms Bristow, solicitor, stated, somewhat enigmatically:
"While we are in the process of filing the Notice of Change of Solicitors, we attach herewith correspondence received from Mr Lawrence and the documents referred to in that correspondence…".
[4]
Defendants' submissions
The defendants contend that given the limited basis of the remaining part of the plaintiff's proceedings, the Court should simply note the contents of the referee's report, consider whether the Certificates of Determination should be set aside given the contents of the report, and make final orders. They maintain that the Court should exercise its discretion to otherwise dismiss the Summons, because the amount in issue is so minor, only $20,000 or so difference between the Panel's determination when compared with the referee's assessment in his report.
The proceeding is not a hearing de novo of the costs review conducted by the Costs Review Panel or the assessor, nor is it an appeal from the referee's report.
If the plaintiff is dissatisfied with the referee's report, he needs to show an error of law on the part of the referee. There is nothing in the material served that does so. There is nothing in the documents sought by the notices to produce that would shed any light on the issues remaining.
The defendants should not have to be put to the additional expense of having to respond to and produce documents which are irrelevant to determining what orders should be made following receipt of the referee's report, and what final orders should be made to resolve the proceedings.
Given the above considerations, the defendants are entitled to an order under the Uniform Civil Procedures Rules 2005 (NSW) ("UCPR") r 21.11(1) that the Court "otherwise orders", so that they can be relieved of any requirement to comply with those notices to produce.
[5]
Plaintiff's submissions (in his affidavit of 21 February 2022)
In his affidavit sworn on 21 February 2022, the plaintiff makes subjective evaluative comments about the referee's report and matters of history in the Equity proceedings. A significant amount of the material in the affidavit is argumentative and difficult to follow. The affidavit appends schedules and extracts and references to material deployed in the Equity proceedings and the merits of arguments made there.
[6]
Decision
Without any criticism of Mr Lawrence, who has clearly drafted these notices and his affidavit without legal assistance, the range, relevance or purpose of each of the notices, is frankly almost incomprehensible. To the extent the notices can be understood, there is nothing in the description of the documents sought that has any relevance to the limited issues that remain live before the Court.
Every application of the powers of this Court under the UCPR must facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56 Civil Procedure Act 2005 (NSW). Setting aside notices to produce that seek irrelevant material facilitates that overriding purpose. To require those notices to be complied with or to allow them to remain operative, has the opposite effect of introducing prolixity, delay and irrelevance into the proceedings.
The content of the plaintiff's affidavit of 21 February 2022 suggests a misunderstanding of the end-stage proceedings that remain before this Court. It is not a relitigation of costs issues and debates that have already been determined by the costs assessor, the Costs Review Panel and the referee. It is a much more confined exercise.
The notices to produce are set aside as they seek material that is irrelevant to the proceedings before this Court.
[7]
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Decision last updated: 01 April 2022