Maureen Mary Young v Wayne Vincent Annis-Brown t/as Lincoln Smith & Company

Judgment 1These proceedings are brought by way of appeal under section 208L of the Legal Profession Act 1987 (the Act), which provides as follows: 208L Appeal against decision of costs assessor as to matter of law (1) A party to an application who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the Supreme Court, appeal to the Court against the decision. (2) After deciding the question the subject of the appeal, the Supreme Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application. (3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given. 2The Plaintiff, Maureen Mary Young, appeals against the costs assessment made and issued by Ian Francis Dwyer (the Costs Assessor) on 4 March 2011. The proceedings were commenced on 24 March 2011 by the filing of a Summons under Part 50 of the Uniform Civil Procedure Rules 2005 (the Rules). The costs assessment is in respect of Equity Division proceedings (the Equity proceedings) in which Wayne Vincent Annis-Brown trading as Lincoln Smith & Company (the solicitor), sought to recover legal costs from the plaintiff for services rendered between 2001 and 2005 in relation to court proceedings the plaintiff had commenced against the New South Wales Maritime Authority. Pursuant to orders made in the Equity proceedings on 9 November 2010 the solicitor lodged an application for those legal costs to be assessed which resulted in the costs assessment, the subject of the appeal. The solicitor is the first defendant to these proceedings. 3The application to join the Costs Assessor as the second defendant was heard on 4 May 2011 when Mr J Jobson, of counsel, appeared for the plaintiff, Mr MJ Stevens, of counsel, appeared for the solicitor and Mr M Musico, solicitor, appeared for the Costs Assessor. The balance of the orders sought in the Summons has been adjourned to the Registrar's List for case management to prepare the matter for final hearing. 4The relief sought in the Summons is for: an order joining the Costs Assessor as the second defendant; an order that the costs assessment be set aside; a declaration that the plaintiff is under no liability to the solicitor for legal costs pursuant to a "Conditional Costs Agreement" dated 14 March 2001; and an order that a "Tripartite Agreement" between the plaintiff, the solicitor and Bryan Gorman, be set aside on the basis of lack of consideration. This last order appears to be beyond the relief available under s 208L of the Act, however this was not the subject of any argument on this application. 5The Summons also includes claims that the Costs Assessor erred in law by: embarking on an analysis of the Tripartite Agreement and making findings when such a process required evidence, cross-examination and "other normal curial procedures outside the scope" of the Costs Assessors powers under the Act; drawing inferences where no such inferences should have been drawn and in circumstances where evidence was necessary to determine the relevant issues; and making findings without due regard to a particular deed. 6Part 50 of the Rules includes the following: 50.5 Parties (1) Each person who is directly affected by the relief sought in the appeal or is interested in maintaining the decision under appeal must be joined as a defendant. (2) If the court below is a person or body that is not a court, the person or body must be joined as a defendant. (2A) Subrule (2) does not apply to the extent to which a provision of these rules, or of any other Act or law, provides to the contrary. (3) The court may order the addition or removal of any person as a party to an appeal. (4) A person must not be made a plaintiff in the appeal without his or her consent. 7The term "court below" is defined as "the court in which, or the person or body by whom, the decision to which the appeal relates was made": Part 50.2(1). The costs assessment process under the Act is not a court proceeding: Brierley v Reeves t/as Kaplan Reeves & Co [2000] NSWSC 305 at [24]; Furber v Gray [2002] NSWSC 1144 at [14]. A costs assessor is not an officer of the Court: O'Connor v Fitti [2000] NSWSC 540 at [38]. In the circumstances the plaintiff submitted that pursuant to Part 50.5(2) the Costs Assessor "must be joined" to the proceedings. 8Mr Musico submitted that Part 50.5(2) does not apply because there is a provision in the Act that "provides to the contrary" as that term in Part 50.5(2A) is to be understood. In this regard he relied on s 208NA of the Act which provides: 208NA Assessor can be a party to appeal A costs assessor can be made a party to any appeal against a determination or decision of the costs assessor only by the Supreme Court. 9Accordingly it was submitted that the statutory discretion provided in s 208NA is contrary to the provision of Part 50.5(2) that provides that the party "must" be joined. I agree. 10I am of the view that Part 50.5(2) does not apply to the present matter and therefore does not require the joining of the Costs Assessor as the second defendant. 11The plaintiff also sought the joinder of the Costs Assessor pursuant to s 208NA of the Act. Mr Musico submitted that I should not join the Costs Assessor under section 208NA of the Act because the present proceedings are a statutory appeal, not judicial review proceedings, and as a general rule the decision maker should not be named as a party. In support of this submission Mr Musico relied upon the following passage of Basten JA's judgment (with whom Allsop P and Handley AJA agreed) in Dobell v Blue Haven Pools and Spas Pty Ltd [2009] NSWCA 77 at [19] Although it is appropriate and necessary to join the decision-maker in proceedings seeking judicial review, it is neither necessary nor appropriate to join the decision-maker to an appeal, absent statutory provision to the contrary. 12That was not a case in respect of a costs assessor and there was no mention of Part 50.5 of the Rules. 13Mr Jobson submitted that the relief sought in the Summons includes the prospect of the Court's decision being remitted to the Costs Assessor and therefore the Costs Assessor should be joined to the proceedings. In support of this submission Mr Jobson relied on Cassegrain v CTK Engineering; Cassegrain v Cassegrain [2008] NSWSC 457 (White J) (Cassegrain) and Lyons v Wende [2007] NSWSC 100 (Cooper AJ) (Lyons) from which the following principles emerge: (a)A costs assessor may only be joined as a party to proceedings by order of the court: Cassegrain at [132]; (b)Whether a costs assessor is to be joined to the proceedings "will depend upon the relief sought or the relief which the court considers may be granted": Cassegrain at [132]; (c)It is necessary to join a costs assessor in circumstances where an order is sought against the costs assessor "in their personal right", for instance in respect of an allegation of impropriety: Lyons at [3]-[4]; (d)A costs assessor should be joined as a party "if relief is sought requiring further steps to be taken by the costs assessor" and includes "if that relief includes remitting the decision to the costs assessor": Cassegrain at [132]-[133]. 14There is no application in the Summons for the Court to remit its "decision on the question" to the Costs Assessor and order the Costs Assessor to re-determine the application. It is possible that the power may be exercised by the Court irrespective of the absence of such a claim in the Summons. However there is nothing in the evidence on this application that establishes a serious issue that this would be the probable outcome. Indeed, absent the Court exercising such power, there is no relief sought in the Summons that would require the Costs Assessor to do anything further. 15The plaintiff has not established any proper reason for the Costs Assessor to be joined as the second defendant to these proceedings. Order 1 of the Summons is dismissed. Mr Musico did not seek costs. I make no order as to costs.