Nikolaidis v Chippindall

The relevant legislation 4 Legal Profession Act 2004, section 384(2) provides: "After deciding the question the subject of the appeal, the District 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 questions to the costs assessor and order the costs assessor to re-determine the application." Section 385(5) provides: "After deciding the questions the subject of the appeals the District Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor."

The defendant's submissions 5The defendant's position is encapsulated in [9] of Mr Ashhurst SC's submission: "As the "question the subject of the appeal" has not yet been determined then it follows that the Court is not yet in a position to "affirm" or "make such determination" as it considers appropriate. It follows therefore that the Court is not yet in a position to set aside the determinations of cost assessors as those determinations may yet be affirmed by the judge who determines the nature of the agreement between the parties and then the "questions the subject of the appeal"." The defendant goes on to submit that my decision of 30 May 2012 did not decide the issue raised by the appeals (i.e. the nature of the retainer of the defendant by the plaintiff) but a "preliminary issue" (i.e. what has to be done to allow the Court to decide that issue - in respect of each of the five matters, whose position is correct, the plaintiff's or the defendant's?). Mr Ashcroft has drawn my attention to the reasons of Einstein J in Currabubula and anor v State Bank of NSW [2000] NSWSC 232 at [76] - [82].

The plaintiff's submissions 6The plaintiff's submissions are based on the terms of the 1987 Act, rather than the 2004 Act. However, s 208L(2) of the 1987 Act is in the same terms as section 384(2) of the 2004 Act and s 208M(5) of the 1982 Act is in the same terms as section 385(5) of the 2004 Act. Mr Svehla, in his submission of 21 June 2012, pointed out that the Court has three alternatives open to it: "Once the court has made this decision in respect of the subject matter of section 208L(1) of the 1987 LP Act (this is what "After" means), section 208L(2) of the 1987 LP Act provides the court with three alternatives: (a)affirm the decision of the costs assessor: "unless it affirms the costs assessor's decision" - section 208L of the 1987 LP Act. (b) deciding the application: "make a determination in relation to the application as, in its opinion, should have been made by the costs assessor" - section 208L(2)(a) of the 1987 LP Act. (c)remit the application to the costs assessor on certain terms: "remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application" - section 208L(2)(b) of the 1987 LP Act." He goes on to say this: "The court did not, and could not, affirm the relevant decision of the costs assessor, as the court found in its reasons for judgment of 30 May 2012 that the costs assessor's decision as to a matter of law, namely, to proceed with the application for costs assessment without deciding the terms of the costs agreement(s) between the parties and making the "determination" and issuing the certificate in each costs assessment, was contrary to the legislative regime in the 1987 LP Act. As the court could not affirm this decision of the costs assessor, the court was required to proceed to one of the alternatives in section 208L(2)(a) or (b) of the 1987 LP Act: see paragraph 7(b) and (c) above. Both of the alternatives in section 208L(2)(a) and (b) of the 1987 LP Act required [there] to be a fresh determination of the application." 7In [9] of his submissions of 21 June 2012, Mr Svehla points out that, unless the determinations of the costs assessor and of the Review Panel are set aside, the certificates issued may be used to obtain judgments against the plaintiff which can be enforced. 8In his submissions in reply, Mr Svehla referred me to Wentworth v Rogers [2006] NSWCA 145, Consumer Trader and Tenancy Tribunal Act 2001 and Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [23] - [24]. I note that this Wentworth v Rogers decision suggests to me that I may have erred in allowing appeals under section 384 / 208L and that I ought to have allowed all the appeals under section 385 / 208M. However, that is of no practical importance at this time.

Resolution 9I accept that the Court has three alternatives under section 384 / 208L and two alternatives under section 385 / 208M: (a)affirmation of the costs assessor's / Review Panel's decision; (b)making a determination that ought to have been made; (c)remitter to the costs assessor / Review Panel to make a determination in accordance with this Court's decision (section 384 / 208L only). Clearly, I have not adopted the first alternative. It is equally clear that I have not adopted the third alternative as neither the costs assessor nor the Review Panel has jurisdiction to do what needs to be done, according to my ruling of 30 May 2012. However, I have not made a determination of the relevant issue (the nature or terms of the retainer of the defendant by the plaintiff). If the Court accept the terms of the retainer propounded by the defendant, then each of the costs assessor and the Review Panel were correct and the appropriate order would be to affirm the original decisions. If the Court accept the terms of the retainer propounded by the plaintiff, then a new determination must be made. I accede therefore to the submission put to me by Mr Ashhurst SC that my decision of 30 May 2012 was a "preliminary" or interim decision which will lead to this Court ultimately making a final order in accordance with one of three alternatives I have listed. This decision is consistent with the reasons of Einstein J in Currabubula and with the reasoning of Basten JA in Wentworth v Rogers [2006] NSWCA 145. 10The contention recited in [7] above is of no moment. Any final decision of this Court, either civil or criminal, is valid, operative and enforceable unless set aside or varied on appeal. In civil litigation, a party aggrieved by a decision of this Court can seek a stay of proceedings either in this Court or in the Court of Appeal. Often, there is an agreement inter partes not to seek to enforce a judgment or order until finalisation of the appeal process. Such, I understand, is the position in the current matters.

Other grounds of appeal? 11In [12] of his submissions in reply, Mr Svehla said: "His Honour also noted that Nikolaidis had not yet made any specific objections to the 5 bills of costs and that this would be a step which Nikolaidis would take if the terms of the costs agreements were determined adversely to Nikolaidis." I noted that, because that is what Mr Svehla told me. The summons filed on 13 January 2012 is based in substance purely on the question of the terms of the retainer of the defendant by the plaintiff. The grounds of appeal numbered 4 and 5 are: "Mr Fox erred in his determination set out in the Chippindall Section 368 Certificates in circumstances in which he issued certificates under Section 368 without determining the terms of the retainer between Nikolaidis and Chippindall in each matter. The Panellists erred in failing to set aside the Section 368 Certificates issued by the costs assessor on the basis they were of no legal effect until the terms of the retainer between Nikolaidis and Chippindall were determined." On 30 May 2012 I granted the plaintiff leave to file an amended summons. That document has 59 pages. The grounds of appeal commence at page 20. However, I read the substance of that document as raising only the same grounds of appeal. 12The question arises as to why the plaintiff did not take specific objections to items in the five bills in the first place. I hazard the observation that he may say that he did not do so as he had a "knock out blow", that the cost assessor could not proceed to a determination of the costs unless and until the question of the terms of the retainer was resolved. However, it is a fundamental principle of our litigious process that a party brings forward all his alleged causes of action or claims in one set of proceedings and that the other party puts forward all his defences and set-offs in the same proceedings, even if the causes of action and or defences are alternatives: interest rei publicae ut finis sit litium. To permit the plaintiff now to raise specific objections to items in the bills infringes on this principle. If the plaintiff wants to pursue this course, then he would need leave to file and serve a second amended summons and would need to explain now why he did not do then what he ought to have done.

Orders 13I make the following orders: (1)Pursuant to UCPR 36.16, I set aside the orders made on 30 May 2012. (2)I grant leave to the plaintiff to file in Court on 30 May 2012 an amended summons. (3)I grant leave to the plaintiff to appeal the decision of Costs Assessor Fox of 6 December 2010 in the matter of Liberty Holdings Pty Ltd at Goodacre Developments Pty Ltd. (4)I allow the appeals from the determinations of the Review Panel of 30 November 2011 in each of: (a)Nikolaidis ats Preston, (b)Nikolaidis ats Legal Services Commissioner, (c)Mazri and ors v Perpetual Nominees, (d)Nikolaidis v Legal Services Commissioner. (5)I allow the appeals from the determinations of the Cost Assessor Fox of 6 December 2010 in the matter of Liberty Holdings Pty Ltd ats Goodacre Developments Pty Ltd. (6)I direct that the issue as to the terms of the retainer of the defendant by the plaintiff in respect of each of the five matters that are the subject of the costs assessments that are the subject of these appeals be determined by another Judge of this Court. (7)I reserve to that Judge the final orders to be made by this Court. (8)I direct the defendant to serve any evidence to be relied upon by him by 5pm on 17 August 2012. (9)I direct the plaintiff to serve any evidence in reply by 5pm on 31 August 2012. (10)I direct the matter be listed before the List Judge on 10 August 2012 at 9.30am to fix a hearing date for one day, after 31 August 2010. (11)I reserve to the trial judge the question of the costs of the appeal up to and including 30 May 2012. As the defendant has succeeded on his motion, which has been actively defendant by the plaintiff, the defendant ought have his costs of the motion. (12)I order the plaintiff to pay the defendants costs of the motion, notice of which was filed on 8 June 2012.

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