Lawrence v Sammut

Supreme Court of NSW|2023-11-16|Before: Lonergan J, Schmidt AJ

JUDGMENT

Amongst other obtuse and irrelevant relief sought in Mr Lawrence's amended notice of motion filed on 22 September 2023, is an application for review of the decision of the Common Law Registrar dated 10 July 2023. That decision ordered that Mr Lawrence pay the defendants' costs of the proceedings on a gross sum basis in the amount of $115,000.00 including disbursements.
There is no purpose in my referring to the other forms of relief claimed in the amended notice of motion (or the initiating notice of motion filed on 7 August 2023) other than to note that they were either incomprehensible, not available at this stage of the now completed proceedings, or irrelevant other than for the purposes of making orders about further (wasted) costs.
It became evident at the hearing on 23 October 2023 that there was a question to consider - namely the adequacy of reasons contained in the Registrar's 10 July 2023 judgment - that had not been articulated by Mr Lawrence in any of his filed material. For that reason, the hearing was adjourned to 16 November 2023 to allow for the necessary evidence to be filed and to provide an opportunity to the defendants' counsel to prepare for and deal with this newly articulated basis for review.
For the reasons that follow, I decline to set aside or vary the decision of the Registrar. Although the Registrar's reasons could have better dealt with the problems and fatal inadequacies of the report and evidence of the costing expert relied on by Mr Lawrence, having examined the record of the evidence presented to the Registrar, it was correct for the Registrar to take the approach that she did and I confirm her decision.

Principles that apply

Section 121(3) of the Supreme Court Act 1970 (NSW) provides for the power to set aside a Registrar's order: 121 Powers (1) In this section officer means a registrar, taxing officer, or other officer of the Court. (2) An officer may exercise such powers of the Court as are, by or under this or any other Act, conferred upon the officer. (3) A judgment given or an order made by an officer may be set aside or varied by the Court. (4) Subject to subsection (3), a judgment given or an order made or direction given by an officer shall have effect as a judgment or order or direction of the Court, whether or not the judgment, order or direction is within the powers mentioned in this section of the officer. (5) An officer shall constitute the Court for the purpose of the exercise of the powers mentioned in subsection (2).
Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 49.19 provides for the way in which a review of any judgment or order made by a Registrar is to be approached: 49.19 Review of registrar's directions, certificates, orders, decisions and other acts (1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. (2) ….
The relevant principles have been set out by Barrett J in Wily re LED (South Coast) Pty Ltd (2009) 76 NSWLR 428; [2009] NSWSC 946 at [23] to [26]: "[23] The established procedures and practices of this court to which regard must be had are those to which I have already referred. They concern review of a decision of a registrar of the court as envisaged by s 121(3) of the Supreme Court Act and rule 49.19 of the Uniform Civil Procedure Rules. Their essential nature may be gathered from the judgments of Basten JA and Hodgson JA in Tomko v Palasty (No 2) (above). Basten JA noted (at [52]) that a review, unlike an appeal, "does not require" demonstration of error and "is not restricted" to reconsideration of the material before the primary decision maker; authorities with respect to the conduct of appeals against the exercise of discretionary points, such as House v The King [1936] HCA 40; (1936) 55 CLR 499 "do not in terms apply to a review", although "similar policy considerations may arise in relation to a review" to make a court "less inclined to intervene" or "more inclined to intervene"; and, although the court should, on a review, "exercise afresh" the relevant power, "it does not follow that the reasoning of the Registrar should be ignored, or that variations in the materials presented to him and the evidence adduced in this Court are irrelevant". [24] Hodgson JA observed (at [7] and [8]) that the process of review involves a discretion, including a discretion whether and, if so, how to intervene; also that the person seeking review has an onus to make out a case for intervention. His Honour added that this will "normally require at least demonstration of an error of law, or a House v The King error, or a material change of circumstances, or evidence satisfying the strict requirements for fresh evidence". [25] Ipp JA agreed with both Hodgson JA and Basten JA. [26] It is made clear by the judgments in Tomko v Palasty (No 2) that review, in the relevant sense, involves discretionary intervention. The starting point for the court is therefore the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. While it is for the court to make the relevant decision afresh, it will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review."
Counsel for the defendants Mr Spencer also drew my attention to the decision of Basten and Gleeson JJA in Sebie v Krejci (No 3) [2023] NSWCA 221 ("Sebie") at [15] and [16]: "[15] The nature of a review of a decision of a Registrar of the Court under s 121(3) of the Supreme Court Act and the UCPR, r 49.19 was considered by this Court in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [4]-[10] (Hodgson JA, Ipp JA agreeing), at [52]-[53] (Basten JA). In summary, a review of a decision of the Registrar is not an appeal and in such a review, the Court must exercise its own discretion. This discretion extends to a discretion as to whether and, if so, how to intervene. [16] The onus is on the applicant seeking to have the Court set aside or vary a Registrar's decision to make out a case that the Court, in the interests of justice, should exercise its discretion to do so: Dae Boong International Co Pty Ltd v Gray [2009] NSWCA 11 at [18] (Hodgson JA). With respect to a decision on practice or procedure, this will normally require at least a demonstration of error of law or error of the kind referred to in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40."

Submissions

Mr Lawrence's arguments were difficult to follow and consisted of non-sequiturs, arid complaints about the form of documents and complaints based on an apparent misunderstanding of the decisions of Schmidt AJ.
Mr Lawrence submitted that the difference between what was claimed by the defendants for costs of over $132,000.00, and what Mr Gordon suggested was appropriate, $54,000.00, is a "big difference" and the Registrar did not explain her decision.
Mr Lawrence submitted that he should not have to pay the costs of the whole proceedings. I interpolate that Mr Lawrence appears not to understand or refuses to accept the effect of Schmidt AJ's findings at [52], [53] and [67] to [70] of Lawrence v Sammut (No 4) [2022] NSWSC 1033 and the orders that she made. Her Honour made specific findings that Mr Lawrence's conduct of the proceedings should be classed as misconduct that caused the costs of the proceedings to be increased. Her Honour concluded at [70] that Mr Lawrence must bear all of the costs of the proceedings. The "proceedings" involved a dispute about adoption of a referee's report about costs to be paid by him for previous proceedings in the Equity Division. Schmidt AJ's findings and orders are clearly stated and explained in her judgment and are not the subject of any appeal.
Mr Spencer argued that the Registrar's decision was in the nature of a decision on practice and procedure and so based on the approach the Court of Appeal approved of in Sebie, this Court could and should take a pragmatic approach and in the absence of a legitimate issue properly identified by Mr Lawrence that necessitates the Court taking a full review of the Registrar's decision, the Court should simply decline to intervene.
I am not convinced a gross sum costs order is a decision confined to practice and procedure but based on the material filed by Mr Lawrence up to 23 October 2023, the pragmatic approach was certainly a legitimate one for the defendants to advocate. However in answer to a question from the Court on 23 October 2023, the basis for the request for review was for the first time articulated by Mr Lawrence in a comprehensible way and so I determined that the pragmatic approach could not apply and I would need to review the evidence that was before the Registrar, in particular Mr Gordon's affidavits, which on the face of the Registrar's judgment, did not appear to have been dealt with other than by a reference to their existence.
Given that Mr Lawrence had failed to file any relevant material, and to ensure that there was no further unnecessary delay, I requested the defendants' solicitor to provide to Chambers the evidence tendered before the Registrar so that I could carry out a review.
There is no doubt that Mr Lawrence should have filed with this notice of motion Mr Gordon's affidavits or at least prior to the hearing on 23 October 2023. He failed to do so. Mr Lawrence also should have properly articulated in the notice of motion and submissions this basis for the application for review. He did not. These failures meant that argument could not proceed and the Court and defendants' counsel and solicitors' time on 23 October 2023 was entirely wasted.
Mr Lawrence stated that he also sought a "stay" of the Registrar's orders although he provided no basis for this request, other than, I infer, that he was unhappy with the outcome and does not want to pay the ordered costs.

Decision

I have reviewed the evidence tendered before the Registrar and focussed specifically on Mr Gordon's affidavits.
Mr Gordon's first affidavit comprises a kind of hybrid expert report and costs assessors' determination. He is critical of the affidavit material tendered for the defendants and approaches the task as if it is a costs assessment under s 76 of the Legal Profession Uniform Law Application Act 2014 (NSW). This fundamentally misapprehends the task of the Registrar in respect of the issue referred to her by Schmidt AJ which allows a broad-brush approach and is not to be treated as a formal costs assessment: Auspine Limited v Australian Newsprint Mills Limited (1999) 93 FCR 1; [1999] FCA 673 at [16]; Penson v Titan National Pty Limited (No. 3) [2015] NSWCA 121 at [7].
Mr Gordon stated a number of unattributed and unfounded assumptions and references to what is "normally done" in some places and what is the "usual practice in NSW" and uses these assumptions as a basis to argue various charges should be not allowed. For example Mr Gordon says that any work by junior solicitors should not be charged because they are "learning their craft". With respect, this is a somewhat idiosyncratic view.
Assumptions seems to have been made regarding a number of events and court appearances to the effect that the solicitor and/or barrister have misrepresented the time spent by examining things such as the timing on a court transcript which of course only covers the time the matter was specifically before the judge, not the discussions before about what is to be said and after about what was said and what needs next to be done. This indicates a very limited understanding of the reality of what occurs at court.
Similar unreality infected the approach of Mr Gordon in his second affidavit which proceeded on the basis that because Ms McLean as the solicitor instructing counsel during AVL hearings referred to herself as "observing", this meant that she was not entitled to charge any fees for any of those appearances. This of course entirely misapprehends the need for counsel to be instructed by a solicitor remotely during COVID-19 affected times when parties were not permitted to attend Court. The term "observing" simply denoted that Ms McLean would have a non-speaking role and that position was conveyed to the Court hearing the matter so that it could be understood to whom reference should be made to seek submissions and responses during the hearing. Counsel still needed to appear instructed by an available solicitor with knowledge of the matter. This is standard expected practice.
Ultimately the Registrar found Mr Lawrence's position, which obviously included Mr Gordon's evidence and opinions, unpersuasive. A broad-brush approach of that nature is contemplated by the nature of any gross sum costs order determination.
The plaintiff has not made out a case for intervention. The Registrar's approach to assessing the appropriate sum for the gross sum costs order was unexceptional and in accordance with principle and practice.
It would have been preferable if the Registrar had articulated with more precision why she was unpersuaded by and effectively rejected Mr Gordon's opinions except where specific error had been identified by him and was conceded by Ms McLean, but very obviously the vast majority of Mr Gordon's evidence was misguided comment based on ill-informed and incorrect assumptions.
As previously noted, both Mr Lawrence's notice of motion and amended notice of motion failed to articulate in a proper fashion any other intelligible claim for relief and so the balance of those motions are dismissed with costs.

Costs

Mr Lawrence's application for review fails and so he must pay the defendants' costs.
To avoid further costs being wasted in the proceedings, the Court will consider in Chambers any application for a gross sum or other specified costs order arising from this application for review of the Registrar's decision.
Any application should be made by affidavit with brief written submissions no more than 3 pages in length on or before 6 December 2023. Any submissions in reply to any such costs application (not more than 3 pages in length) must be filed and served on or before 13 December 2023.

Orders

I make the following orders: 1. The decision of the Common Law Registrar of 10 July 2023 is confirmed. 2. Both the notice of motion filed on 7 August 2023, and the amended notice of motion filed on 22 September 2023 are otherwise dismissed. 3. The plaintiff is to pay the defendants' costs of the notice of motion and amended notice of motion including counsel's fees. 4. Any application by the defendants for any gross sum or specified costs order should be made by filing, serving and providing to Chambers by email affidavit(s) and written submissions of no more than 3 pages in length on or before 6 December 2023. 5. Any submissions in reply to any such costs application of not more than 3 pages in length must be filed, served and provided to Chambers by email on or before 13 December 2023.

Amendments 13 December 2023 - Par 24, line 5: typographical error corrected 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: 13 December 2023

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