Nikolaidis v Chippindall

Judgment 1HIS HONOUR: This is an appeal pursuant to s 384 and, in the alternative, s 385 of the Legal Profession Act 2004. The matter proceeds ex parte as the defendant, Mr John Chippindall, a barrister, has filed a submitting appearance. Learned counsel for the plaintiff raised at the commencement of the hearing a question as to this Court's jurisdiction. It is convenient that I dispose of that issue at the current time. The matter was sent to me with an estimate of a day or less and I only commenced the matter after the morning tea adjournment, but I have a special fixture for tomorrow, which is part heard, and is due to run for three days. In other words, my time is circumscribed and it is best that I deal with the preliminary issue and that the determination of the substantive matter, if the Court have a jurisdiction to entertain it, be reserved for a further occasion. 2The appeal concerns five assessments of costs. At the relevant time Mr Nikolaidis was a solicitor. At all material times Mr Nikolaidis retained Mr Chippindall to appear for him. The first matter can be conveniently described as Nikolaidis ats Preston, in which a conference was held, being the first item Mr Chippindall's fee note, on 20 September 1993. The second matter can be described as Liberty Holdings Pty Limited ats Goodacre Developments Pty Limited, in which the first item of work done by Mr Chippindall was providing an advice on 14 July 1995. The third set of proceedings can be conveniently described as Nikolaidis ats Legal Services Commissioner, being proceedings in the Administrative Decisions Tribunal. The first item in Mr Chippindall's fee note was a conference held on 29 October 2003. The fourth matter can be described as Mazri and Ors v Perpetual Nominees, for which the first item in Mr Chippindall's fee note in a conference held on 20 May 2004. The final matter can be conveniently described as Nikolaidis v Legal Services Commissioner, proceedings in the Court of Appeal, on appeal from the Administrative Decisions Tribunal. The first item charged by Mr Chippindall in his fee note was for the perusal of documents on 21 September 2005. 3One must note that the first item in each of Mr Chippindall's five fee notes was for work done before 1 October 2005 and therefore establishes his being retained by Mr Nikolaidis prior to 1 October 2005 and therefore prior to the commencement of the Legal Profession Act 2004. That was acknowledged by Mr Chippindall, who made an application for an assessment of costs, pursuant to the provisions of the Legal Profession Act 1987, which clearly governed the work done by him in the five matters for which he was retained by Mr Nikolaidis. The five bills were sent for assessment to Mr Robert Fox. Mr Fox assessed and issued a certificate of assessment of the current defendant's costs on 6 December 2010. Four of the Certificates of Assessment were sent out by the Manager, Costs Assessment on 25 February 2011, one having been sent earlier on 23 December 2010. Each of the certificates was pursuant to provisions of the Legal Profession Act 2004. Each of the Certificates of Determination of Costs of the Costs Assessment were also issued under the Legal Profession Act 2004. 4Mr Nikolaidis, the current plaintiff, made an application for review of the decisions of Mr Fox by a Review Panel. Messer's Sharpe and Dyson were appointed as the members of the Review Panel. The plaintiff's application for review was withdrawn from the panel by the Manager, Costs Assessment, prior to the Panel's making any determination. There have been numerous administrative errors and contortions in the interim and that have left the current plaintiff in the position of having to seek leave to appeal from the decision of the cost's assessor in the matter of Liberty Holdings Pty Limited v Goodacre Developments Pty Limited. In respect of the remaining four applications for review, the Panel gave a Certificate on 30 November 2011 and that Certificate was sent by the Manager, Cost Assessment on 19 December 2011. Each of those Certificates was also under the Legal Profession Act 2004. 5I am required to consider the provisions of the Legal Profession Act 2004, Sch 9, Pt 2, which provides savings, transitional and other provisions consequential upon the enactment of the Legal Profession Act 2004. Clause 18(e) is headed, "Client information and Legal Costs". It is in these terms: "(1) Subject to subclauses (2) and (3), Part 3.2 of this Act applies to a matter if the client first instructs the law practice on or after the commencement day [1 October 2005] and Pt 11 of the old Act [Legal Profession Act 1987] continues to apply to a matter if the client first instructed the law practice in the matter before that day. (2) Part 3.2 of this Act does not apply in respect of a law practice that is retained by another law practice on behalf of a client on or after the commencement day in relation to a matter in which the other law practice was retained by the client before that day, and in that case Pt 11 of the old Act continues to apply. (3) If: (a) an application for assessment of costs was referred to a costs assessor for assessment under Pt 11 of the old Act, and (b) the assessment was not commenced or completed before that day, the application may be dealt with under that Part as if that Part had not been repealed." 6The first two subclauses are tolerably clear. It would appear that if a client retained a solicitor prior to 1 October 2005, that any question about client information and legal costs was to be determined under the 1987 Act. If a client retained a solicitor on or after 1 October 2005, the question of, inter alia, legal costs, was governed by the 2004 Act. If, for example, a solicitor retained a barrister, the relevant time was not the time that the barrister was retained by the solicitor but rather at the time that the client retained the solicitor for which client the solicitor retained the barrister, that is, the barrister's right to legal costs was governed by the time that the client instructed the solicitor rather than at the time the solicitor retained the barrister. 7However, subclause (3) is, perhaps, unnecessary. It appears to refer to an application for assessment of costs referred to a costs assessor prior to 1 October 2005. That is gleaned from the use of the past tense in (a) of the subclause and by the use of "that day", which appears to refer to the "commencement date" although it does not say so. The operative part of the sub-clause then uses the verb "may", which normally should be interpreted as being facultative, but such an interpretation here would be otiose. It appears to me, as has been submitted by Mr Svehla, for the plaintiff, that in this case the word "may" ought be interpreted as the word "shall". In addition to the regime which appears to be mandated by subclauses (1) and (2), subclause (3) indicates that an assessment of costs made after the commencement date should be dealt with under the 1987 Act. 8That brings me to clauses 22 and 22A. The first sub-clause of cl 22, which relates to "Pending appeals or reviews", is this: "(1) An appeal or a review that was pending under or in relation to any matter under the old Act immediately before 1 October 2005 is to be dealt with as if this Act had not been enacted, except insofar as a direction of the Supreme Court, or the President of the Tribunal, as the case requires, under this clause otherwise provides." It is common ground that the current defendant's applications for the assessments of costs, and the current plaintiff's applications for review, and the current plaintiff's appeal, were not pending before 1 October 2005. 9Clause 22A is headed, "New appeals or reviews about old matters". The first four sub-clauses are these: (1) A matter arising under the old Act may be the subject of an appeal or review made or applied for on or after 1 October 2005 if the appeal or review could have been made, or applied for, had this Act not been enacted. (2) The appeal or review may be made or applied for under the provisions of either the old Act, or this Act (even if the matter could not otherwise be the subject of appeal or review under this Act if the matter had arisen on or after 1 October 2005). (3) The appeal or review may be dealt with under this Act (even if the matter could not otherwise be the subject of appeal or review under this Act if the matter had arisen after 1 October 2005), except insofar as a direction of the Supreme Court or the President of the Tribunal [Administrative Decisions Tribunal], as the case requires, under this clause otherwise provides. (4) The Supreme Court or the President of the Tribunal, as the case requires, may direct that the appeal or review proceedings be dealt with in accordance with the provisions of: (a) the old Act, or (b) the old Act and this Act as regards different aspects of the proceedings, as indicated in the direction. Those provisions apply accordingly, and so apply with any necessary adaptations." Subclause (2) seems to indicate that an appeal or review can be dealt with either under the 1987 Act or the 2004 Act, even though it is properly the subject matter of the 1987 Act. However, subclause (3) and (4) then permit the Supreme Court, or the President of the Tribunal, to exercise a discretion as to whether to apply the old Act, the new Act, or both; the new Act might apply, for example, to procedural matters, and the old Act might apply to substantive matters, although one would not expect any court to direct the opposite, that is, that the old Act apply to procedural matters, and the new Act apply to substantive matters although one can never be surprised at the outcome of litigation. 10The complicating factor, of course, is that under the 1987 Act an appeal only lay to the Supreme Court. Under s 208L of the 1987 Act, a party to an application who was dissatisfied with a decision of a costs assessor as to a matter of law had a right to appeal to the Supreme Court. Under s 208M of the same Act, a party to an application relating to a bill of costs had the right, in accordance with the rules of the Supreme Court, to seek the leave of that court to appeal to it against the determination of an application made by a costs assessor. Other provisions of the Act made those two sections apply not only to decisions made by a costs assessor but also to decisions made by a Review Panel. The essence of ss 208L and 208M was retained in the 2004 Act. 11Section 384 permitted a party to an application for a costs assessment, who was dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings, to make an application to the Supreme Court against that decision. Section 385 provided that a party to an application for a costs assessment relating to a bill might, in accordance with the rules of the Supreme Court, seek the leave of that Court to appeal to the Court against the determination of an application made by a costs assessor. The same rights were applicable to decisions made by a Review Panel. 12However, ss 384 and 385 were amended by the Courts and Crimes Legislation Amendment Act 2008, being Act No 53 of that year. The relevant amendments are contained in Sch 14 to that Act, which commenced on 1 September 2008. The words "Supreme Court" were removed from ss 384 and 385 and replaced with the words "District Court". Section 387 was amended by omitting, "only by the Supreme Court" and by inserting instead, "by the District Court". The same Schedule of the amending Act inserted cl 34 in Sch 9 to the Legal Profession Act 2004. Clause 34 is headed, "Pending appeals" and is in the following terms: "An appeal to the Supreme Court for which a hearing date had been allocated before the commencement of sch 14 to the Courts and Crimes Legislation Amendment Act 2008 is to be determined as if that Act had not been enacted". However, that clause was itself amended by being replaced by a new clause inserted by Act No 77 of 2009, which commenced on 3 November 2009. The current cl 34 is in these terms: "(1) An appeal to the Supreme Court for which a hearing date had been allocated before the commencement of schedule 14 of the Courts and Crimes Legislation Amendment Act 2008 is to be determined as if that Act had not been enacted. (2) The reference to an appeal in subclause (1) extends to an appeal made to the Supreme Court under s 208L (Appeal against decision of a costs assessor as to matter of law) of the Legal Profession Act 1987." Whilst the original cl 34 commenced on 1 September 2008, the new cl 34 commenced on 3 November 2009. The clear inference to be drawn from the original cl 34 is that the Supreme Court retained jurisdiction to hear appeals provided that a hearing date had been fixed by the Supreme Court. The inference to be drawn, therefore, is that this Court had jurisdiction to hear any appeal commenced before or after 1 September 2008, provided that the Supreme Court had not fixed a hearing date. It would appear to me that the new cl 34 was inserted to remove a doubt as to whether this Court could hear appeals under the 1987 Act. 13Under the 1987 Act, as I have pointed out, the appeal lay only to the Supreme Court. Prima facie, one would think that that Court would retain jurisdiction to entertain appeals under the 1987 Act, and it did retain such jurisdiction at least until 1 September 2008. The clear import of the new cl 34 is that this Court can entertain an appeal under s 208L of the 1987 Act, provided that no hearing date for it had been fixed by the Supreme Court prior to either 1 September 2008 or 3 November 2009. 14The matter is not, however, without difficulty. For example, there is express reference in the new cl 34 to s 208L, but no reference at all to s 208M. However, if it were the Legislature's intention to transfer jurisdiction to determine a question of law on an appeal as of right to this Court, one would think that it was equally the intention of Parliament to transfer to this Court leave to appeal on a question which was not really one of law, but it may have been of mixed law and fact or purely of fact. 15The other difficulty I perceive is that, given the amendments made by the Courts and Crimes Legislation Amendment Act 2008, there ought also have been consequential amendments to cll 22 and 22A of Sch 9 Pt 2 of the Legal Profession Act 2004 to remove reference there to the Supreme Court and replace it with a reference to this Court. If I may be so bold to say, the standard of the draftsmanship is of such quality that I would have thought the person would be well qualified to continue making amendments to the Workers Compensation Act 1987. 16There is also some authority, which does assist. The decision in question is that of Rothman J in Levy v Bergseng [2008] NSWSC 294. The plaintiff in that case was a senior counsel. The defendant was a firm of solicitors. The senior counsel was retained by the solicitors to act for a client in a personal injury matter. The senior counsel was retained on 18 October 2001. Therefore the cost arrangement between counsel and the solicitor was governed by the 1987 Act. At [35], Rothman J said this: "MBP [the defendant] submit that the Review Panel had conducted its review, referring to the 2004 Act, and that the appeal to this court should be conducted as if the 2004 Act applied. The 2004 Act commenced on 1 October 2005. The original costs assessment issued after the commencement of the 2004 Act. Of necessity, the application for review was made after the commencement of the 2004 Act and the review decision was issued after the commencement of the 2004 Act." The factual background in Levy was the same as the factual background in the current matter. His Honour went on to consider clauses 3, 18, 22 and 22A of Schedule 9 Part 2 of the 2004 Act. Commencing at [41], his Honour said this: "[41] The costs assessment, for which application was made on 15 June 2005, was governed by the provisions of the Legal Profession Act 1987 because it was a costs assessment in relation to a matter in which the law practice was first instructed prior to the commencement date of the Legal Profession Act 2004. The certificate determining the costs was issued by the costs assessor after the commencement date of the Legal Profession Act 2004 but was issued under part 11 of the Legal Profession Act 1987. Likewise the provisions for an appeal to the Review Panel and/or an appeal from either the Costs Assessor or the Review Panel to this Court are dealt with under Part 11 of the Legal Profession Act 1987. The appeal to and the Determination of the Review Panel is not covered by Clause 22 of Schedule 9 because it is not an appeal or a review that was pending immediately prior to 1 October 2005. The application for review and the determination of the Review Panel may be subject to Clause 22A of Schedule 9 of the Legal Profession Act 2004. Such a review is a matter arising under the 'old Act' that 'could have been made or applied for had [the Legal Profession Act 2004] not been enacted'." Clause 22A allows the appeal to be instituted under either Act and dealt with under the 2004 Act, subject to a contrary order of the Court or Review Panel. The Review Panel seems not to have turned its mind to the issue. No criteria are adumbrated upon which the Supreme Court would direct that the matter be dealt with in accordance with the provisions of the 1987 Act. [42] It may be that the provisions of Clause 22A of Schedule 9 have been inserted as a matter of abundant caution. On that basis, the provisions of Clause 18 are the leading provisions and Clause 22A provides a mechanism that the Court may adopt where there is difficulty with the application of clause 18. For example, notwithstanding the application of Clause 18 and the provisions of the Legal Profession Act 1987, there may no longer be panels established under the relevant provisions of the 1987 Act and it would be necessary to make directions that any appeal be heard by a panel established under the 2004 Act. [43] To the extent necessary, it seems, given its primary effect, that Clause 18 renders Part 11 of the Legal Profession Act 1987 of continuing effect to apply to matters in which the client first instructed the law practice before October 2005 (or counsel was briefed prior to that time) and, therefore, the 1987 Act ought continue to apply. Further, to the extent that rights and obligations are altered by the promulgation of the Legal Profession Act 2004, it seems appropriate that the Legal Profession Act 1987 ought continue to apply. "[44] MBP refer to, and seek to distinguish, the judgment of the Court of Appeal in Doyle v Hall Chadwick [2007] NSWCA 154, on the basis that, in that matter, it made no difference to the rights of the parties whether the 1987 Act or the 2004 Act applied. Nevertheless, the judgment of the Court of Appeal is unambiguous and determines that the assessment "is required to be dealt with in accordance with the 1987 Act": Doyle v Hall Chadwick [2007] NSWCA 159 at [35]. The Court of Appeal did not determine whether any different result would be occasioned by the application of the 2004 Act, although that was the conclusion at first instance: see Hall Chadwick v Doyle [2006] NSWSC 1195 at [28], [29]. [45] If I be wrong and Clause 18 of the Schedule to the 2004 Act does not make the 1987 Act applicable, I would direct, pursuant to the terms of Clause 22A of the Schedule, that at least the substantive rights and obligations of the parties in the 1987 Act apply. The Court will hereafter deal with the matter on the basis of the 1987 Act and its provisions are the relevant provisions for the purpose of the determination of this appeal." 17Clearly his Honour could use his power under cl 22A(3) and (4) to make the 1987 Act the applicable law. I do not have such a power. However, his Honour points out that in essence the statutory provisions in the Legal Profession Act 2009 Sch 9 indicate that if a review or appeal is determined after 1 October 2005, it is determined pursuant to 2004 Act. However one can read, as I would read, cll 18, 22 and 22A as covering different fields. Clause 18, in my view, makes the applicable law relating to costs that provided by the 1987 Act. Clauses 22 and 22A merely establish a mechanism, a procedural mechanism, for the determination of reviews and appeals that had not been finalised or even commenced prior to 1 October 2005. In other words, cl 18 governs substantive law and cl 22A governs the procedure to be adopted, and if there be any difference the Supreme Court or the President of the ADT could give directions but, unfortunately, the draftsman has failed to give this Court the relevant power to make directions. However, I am persuaded that this Court does have jurisdiction to hear an appeal which in substance must be governed by the 1987 Act because of the amendments made to the 2004 statute and, in particular, as pointed out, by the amendments made to cl 34 of Sch 9 of the 2004 Act. I therefore rule that this Court may continue to hear the current plaintiff's appeal. 18Finally I just point out a question of form. The transitional provisions all refer to reviews and appeals being dealt with under the 2004 legislation. A Review Panel decision might be dealt with under the 2004 Act and accordingly a Review Panel decision might be intituled under the 2004 Act. An appeal to this Court from the Review Panel may carry a similar intitulment, that is, still be an appeal under the relevant section of the 2004 Act. However, there is nothing in the transitional provisions which permit a costs assessor, who is required to make an assessment under the 1987 Act, to make an assessment of costs under the 2004 Act.