208N Effect of appeal on application
(1) If a party to an application has appealed against a determination or decision of a costs assessor, either the costs assessor or the court or tribunal to which the appeal is made may suspend, until the appeal is determined, the operation of the determination or decision.
(2) The costs assessor or the court or tribunal may end a suspension made by the costs assessor. The court or tribunal may end a suspension made by the court or tribunal.
48 Section 208S provides for the appointment of Costs Assessors by the Chief Justice and it further provides that when acting as a Costs Assessor, such person is not an officer of the Court. Schedule 7 of the Act relates to Costs Assessors and provides, inter alia, that the persons eligible for appointment as such are barristers or solicitors of at least five years standing.
49 The Supreme Court Rules provide that any appeals in accordance with such rules must be instituted within 28 days or within such extended time as the Court may fix: Pt 51A r 3; and that an application for leave to appeal is to be filed within 14 days or such extended time as the Court may fix: Pt 51A r 2(3).
50 The plaintiff therefore requires an extension of time to appeal under s 208L on a matter of law and an extension of time to seek leave to appeal generally (not limited to questions of law) under s 208M; and if such latter extension of time is granted, he still requires leave to appeal under the latter section. On either appeal, the Court can receive fresh evidence: ss 208L(3), 208M(4).
51 In considering an application for leave to appeal under s 208M it is important to bear in mind that the purpose of the requirement for leave is to act as a filter to ensure that unsuitable appellant proceedings are not brought which have no prospects of success, but it is also important that s 208M be considered in the context of s 208L which provides for an appeal as of right on a matter of law, and it is appropriate to consider if no matter of law is involved, whether there is some other matter which in justice requires that leave be granted to allow the matter to be relitigated; Chapmans Limited v Yandells [1999] NSWCCA 361 at [11]-[12].
52 In considering whether an extension of time should be granted, the Court must look at the whole of the circumstances, including whether there is an adequate explanation for the delay, but the refusal of relief to an applicant is not automatically justified because he has failed to establish such adequate explanation for the delay; such a failure must be considered in the light of all the circumstances, including what if any, prejudice will flow to the other party by the grant of such extension; and if merits are shown the Court will not prima facie desire to let a judgment pass on which there has been no proper adjudication: Adams v Kennick Trading (International) Ltd (1986) 4 NSWLR 503 at 506 citing Evans v Bartlam [1937] AC 473 at 489.
53 It is not the case that delay MUST be satisfactorily explained before discretion can be exercised in favour of an applicant, and gross negligence does not necessarily prevent the exercise of the discretion, but only causes the court to examine more closely the question whether there really is a triable issue going to the merits: Cohen v McWilliam (1995) 38 NSWLR 476 at 479 per Priestley JA and cases cited including his Honour's quotation from the judgment of Griffiths CJ in Rowe v Australian United Steam Navigation Co Ltd (1909) 9 CLR 1 at 6,
"(that) the right of every man to a fair hearing before he is condemned lies at the root of the tree of justice".
54 Under the process introduced by the 1993 Act, the assessment of costs is entrusted to "assessors" appointed by the Chief Justice being barristers or solicitors of at least 5 years standing. An "assessor" is one who assesses, taxes or estimates the value of property (or work), whilst "assess" means to "fix amount" or "estimate value": Concise Oxford Dictionary, 6th ed (1976). See also Macquarie Dictionary (1981) at 141-2. In construing a covenant in a lease, "assessed" was said to mean "reckoned on the value": Floyd v Lyons [1897] 1 Ch 633. The essential quality of such an assessor is to fix an amount or to put a value on something such as property or services. There is another type of assessor such as nautical assessors in Admiralty cases, called in to assist and advise the judge on technical matters, but without any deliberative voice: Jowitt: Dictionary of English Law (1959) at 162; but such assessors are irrelevant to the present discussions.
55 A Costs Assessor under the Act is not an officer of the Court when acting as such; s 208(4), is not part of the Supreme Court and has no power to take sworn evidence or resolve conflicts of evidence: Ryan v Hansen [2000] NSWSC 354, 49 NSWLR 184.
56 Having regard to the status and powers of Costs Assessors and the ordinary meaning of the word "assessor", I am satisfied that the powers of Costs Assessors are limited to determining the value of the work done or services rendered in circumstances where there is no dispute that costs are payable and the only issue is as to the amount. It is no part of their function to determine whether or when such costs are payable. The matters set out in s 208A which they must, and in s 208B which they may, take into account are all matters relevant to putting a value on the work done or services rendered and the fairness or justice of the amount claimed; but are not matters which relate to the terms of a costs agreement (particularly if oral) and whether any conditions precedent to payment have been fulfilled. The determination of such questions requires the reception of sworn evidence, which can be tested by cross-examination, and an assessment of such evidence. Costs Assessors do not have the power to deal with such matters.
57 For similar reasons it has been held that a Costs Assessor has no power to hear a cross-claim by a client against a solicitor based on negligence, nor to award damages: Ryan v Hansen, supra per Kirby J; or to make an assessment when no costs are presently due and payable: Lace v Younan [1999] NSWSC 1072 per Master Harrison (no bill of costs rendered); Baker v Kearney [2002] NSWSC 746 per Master Malpass (judgment in District Court that applicant for assessment not entitled to costs). I am therefore satisfied that on being notified of the dispute as to the plaintiff's liability to pay the costs, the Costs Assessor should have declined to make a determination or issued a certificate unless and until such issue was resolved.
58 It could never have been the intention of the legislature that where the liability for a debt for costs was disputed, a party to the dispute could render the other party to the dispute liable for the debt without any judicial determination of the disputed issues between them simply by having the value of the work assessed by a Costs Assessor and the certificate of determination registered as a judgment in a court of competent jurisdiction. Yet this is precisely what the defendant has sought to do in the present case.
59 In his judgment of 14 July 2000 in no 12152/99 at [13] Davies AJ appears to have taken a different view and indicated that the plaintiff's contentions as to the agreement and otherwise were matters to be determined in the first instance by the Costs Assessor and then be dealt with by this Court on appeal pursuant to s 208L or 208M, although para [4] of the judgment suggests that the issue now under consideration was not raised in that case. With all respect to his Honour, for the reasons already given, I take a different view.
60 In any event the judgment of Davies AJ, not having been upset on appeal, is binding as between the present parties; but it follows from what I have already said that I consider the plaintiff has reasonable grounds to appeal under s 208L on the question of law namely whether when the liability for costs is disputed and there has been no curial determination of liability to pay, it is open to Costs Assessor to make a determination or issue the relevant certificate.
61 I am also satisfied that there is a bona fide dispute on the facts as to the terms of the retainer, and in particular whether it was contingent on success in the relevant proceedings and the sale of the patent, and if so, whether the transfer of the patent to one of the three clients as consideration for her taking over the debts of one of the other parties who was insolvent, and which therefore did not generate any additional funds, constitutes a "sale" of the patent in the context of such agreement.
62 If the question of law sought to be raised under s 208L were decided adversely to the plaintiff, these matters would be appropriate for an appeal generally under s 208M, on which the plaintiff would at least have an arguable case, particularly as, in a letter to the Law Society of New South Wales dated 20 July 1998, the defendant wrote:
I can only reiterate that in the ARX, Koopman, Mather matters that these four people came together for the first time at the first conference. That Robert (the deceased) is not here to say what took place but that he told me he was owed approximately $40,000, that this was a contingency matter that required the case to be won and the patent to be sold. Both these conditions have been fulfilled" (LCM 1 at 37).