(In the correspondence to which I have referred the plaintiff also complained that item 8 was incomplete, in that it did not specify his address for service. That matter was not pressed in submissions.)
10 In all these respects, Mr Skinner submitted, the application of 9 June failed to comply with s354 of the Act, subs(1)(a) of which provides that an application for costs assessment "must be made in accordance with the regulations …". He also submitted that no step taken after the purported referral of the matter to Mr Mallik on 21 June could cure lack of service under reg 125(1)(a) or the formal defects in the application, because the legislation confers no power upon the Manager or a costs assessor to dispense with any of the statutory requirements or to cure any irregularity.
11 Mr Skinner relied on the decision of the Court of Appeal in Brierley v Reeves (2001) 51 NSWLR 689, a case dealing with the procedure for costs assessment under the predecessor to the present Act, the Legal Profession Act 1987. In that case the appellant had applied for assessment of costs and the matter had been referred to an assessor. The assessor had determined that he had no jurisdiction to deal with the referral because of a procedural defect in the application. The appellant appealed against that determination under s208L of the 1987 Act, but Master Malpass (as he then was) dismissed the appeal. An appeal against that decision was, in turn, dismissed by the Court of Appeal.
12 The appellant had applied for assessment of costs under s199 of the 1987 Act, which required the application to be made within the period prescribed by the regulations. That period was twelve months. At issue was s203 of the Act, the effect of which was that the application for assessment was to be in the prescribed form and was to be accompanied by the prescribed fee, subject to a discretion conferred by subs (4) on the proper officer of the Supreme Court to waive or postpone payment of the fee, wholly or in part, in certain circumstances. There is no need to recount the subsequent history of the pursuit of the application. It is sufficient to say that the appellant made the application within the twelve month period, but it was not accompanied by the prescribed fee and the proper officer had not waived or postponed payment of it in accordance with s203 (4).
13 The Court of Appeal held that in the circumstances the application was invalid. The leading judgment was delivered by Rolfe A-JA. Speaking of s203, his Honour said (at 695):
The clear words require, subject only to s203(4), that the application for assessment is to be accompanied by, that is have with it, the prescribed fee. It is the making of the application in the form required together with, once again subject to s203(4), the required fee that enlivens the jurisdiction under the Act to have the assessment referred to a costs assessor to be dealt with under the Act.
14 Mr Trebeck, for the Council, submitted that I would be satisfied that the application had been served in accordance with reg 125(1)(a), although he contended that for the purpose of these proceedings the plaintiff bore the burden of proving that he had not. He argued that, in any event, there is nothing in the Act which provides that an application is vitiated by a failure to comply with that regulation. The requirement in s354(1)(a) that the application be made in accordance with the regulations, he said, is a reference to the form of the application, not to the preliminary processes set out in reg 125. He referred to reg 124(1), which provides:
For the purposes of section 354(1)(a) of the Act, an application for assessment of party/party costs under section 353 of the Act is to be made in the approved form.
15 As to the defects in the application of 9 June, Mr Trebeck pointed out that the prescribed form had been used and that the only complaint was that it was neither signed nor dated and that it did not set out all the required information. The information which was not supplied could be gleaned from the bill of costs itself or would have been within the knowledge of the plaintiff. That being so, he argued, there had been substantial and, hence, sufficient compliance with the prescribed form: s80(1) of the Interpretation Act 1987. He also relied upon the fact that a completed application, duly signed and dated, was subsequently lodged and served.
16 While I can see the force of these arguments, it is neither necessary nor desirable to decide them because I am persuaded by Mr Trebeck's alternative submission that the relief the plaintiff seeks in the summons is inappropriate. I have referred to Mr Mallik's letter to the plaintiff of 4 August 2006 in which he conveyed his decision to continue with the assessment, and his conclusion that any defect in the application on 9 June had been cured by the subsequent application and that any failure to serve the application under reg 125 had been remedied by service of the amended application and the allowance of time to make any objection. Mr Trebeck argued that the present proceedings are effectively a challenge to that decision or determination by Mr Mallik, and that the plaintiff should pursue one or other of the remedies available to him under the Legal Profession Act.
17 Subdivision 5 of Div 11 of the Act provides for review of a cost assessor's determination by a panel of two assessors. Subdivision 6 provides for appeals to this Court against decisions or determinations of an assessor. Section 372 provides:
A costs assessor's determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division.
18 Mr Trebeck submitted that Mr Mallik's letter of 4 August amounted to a "determination", as that expression is used in Div 11 of the Act. In particular, he argued that it was a determination for the purposes of s373, the section enabling an application for review under Subdivision 5. By s373(1), the right to apply for a review is conferred upon a "party to a costs assessment who is dissatisfied with a determination of a costs assessor…". He relied in part upon the fact that in the plaintiff's summons, as I have said, Mr Mallik's letter is referred to as a "determination".
19 Whether the letter was a determination in the relevant sense is a matter of statutory construction, which is not assisted by any apparent admission by the plaintiff. I doubt that it was. In the context of Div 11, it seems to me that the expression "determination" in s373 is a reference to the final disposition of an application for assessment, rather than a decision made in the course of dealing with it. This was accepted to be the case in Currabubula v State Bank of New South Wales [2000] NSWSC 232 at [76]. That was a decision of Einstein J under the 1987 Act, in which his Honour was considering provisions for appeal to this Court from decisions or determinations of a costs assessor identical to those in Subdivision 6 of the present Act.
20 Of course, the issues raised by the plaintiff in his summons are at the threshold of the Council's application. If they were to be resolved in the plaintiff's favour, the application could proceed no further. Obviously, it would cause great inconvenience and expense if they could not be dealt with until Mr Mallik had completed his assessment. However, that is not the case under the legislation and, in the event, I find it unnecessary to express a firm conclusion about the scope of the term "determination".
21 Subdivision 6 begins with s384, which confers a right of appeal to this Court against "a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application". Section 385 provides for an appeal by leave of the Court against the "determination" of an application by a costs assessor. It was the predecessors of those provisions, respectively ss208L and 208M of the 1987 Act, which Einstein J was considering in Currabubula v State Bank of New South Wales. At [70] - [80] his Honour examined authorities on the meaning of the word "decision", which establish that the scope of the expression is to be gleaned from its statutory context. He concluded that s208L contemplated an appeal from a ruling made by an assessor in the course of assessment and prior to final disposition of it. As he put it at [80]:
To my mind, the Act clearly contemplates that a decision is something different from and anterior to a determination of the assessment. The use of the present tense in s208L(1) - 'arising in the proceedings to determine' - rather than the past tense - 'arose in the proceedings to determine' - demonstrates that the statute intended to create an appeal right while proceedings to determine the application were extant.
22 I respectfully agree with his Honour's reasoning and with his conclusion. It follows that in the present case Mr Mallik's decision of 4 August would be appealable under s384, quite apart from any right of appeal or review which might be pursued upon completion of the assessment. The question whether the plaintiff was served with the application on 17 March 2006 is one of fact, but that is not to the point. Mr Mallik's decision was that any irregularity relating to service of the application or the form of it was cured by steps subsequently taken and, clearly, that is a matter of law.
23 Let me return, then, to s372, which confines any appeal or other assessment "in respect of" a determination to the procedure provided by Div 11. In Currabubula Einstein J examined the predecessor of that provision, s208K of the 1987 Act, at [54] - [61]. His Honour considered the declaratory jurisdiction of this Court, together with authorities on the approach to legislation which purports to limit the exercise of that jurisdiction. He expressed his conclusion at [61] as follows:
Despite the strength of the presumption against this Court being deprived of its declaratory jurisdiction, I see no escape from the conclusion that this is the effect of s208K. The germane words of the section are simple: 'no appeal lies in respect of a determination, except as provided by this Division.'