Preston v Nikolaidis

Preston v Nikolaidis - [2017] NSWSC 1527 - NSWSC 2015 case summary — Zoe

[7]

Overview of the Dispute

The plaintiff, Mr John Preston, was a client of the defendants, who represent a former firm of solicitors, Nikolaidis & Co ("the Firm"). Between April 1984 and October 1992, Mr Preston and companies he controlled ("the Preston interests"), retained the Firm to provide them with legal services. When the Preston interests terminated the Firm's retainer in October 1992, the Firm sent Mr Preston a letter enclosing a summary of 22 final accounts for fees rendered between February and October 1992. The letter claimed that the Preston interests owed $95,749.40 to the Firm for legal professional costs. The letter claimed a lien over the files relevant to work performed for the Preston interests but did not include itemised bills of costs.
The Taxation of Costs - 1993 to 1996. By July 1993 the Firm had not served itemised bills of costs or commenced proceedings for its fees and the Firm's files had not been returned to the clients. In August 1993, Mr Preston, as first plaintiff, together with Western Suburbs Constructions Pty Ltd ("Constructions"), a Mr Preston-controlled company as the second plaintiff, commenced these proceedings by Summons (proceedings no. 1993/23395), seeking the delivery of client files and bills of costs and the referral of the bills to taxation under the Legal Profession Act 1987, ss 199, 200 and 208, together with an account of all payments made to the Firm.
In November 1993 the Court ordered the delivery of itemised bills of costs. By mid-December 1993, the Firm delivered bills of costs in 16 disputed matters. The Court referred these bills of costs to taxation, and made costs orders against the Firm. In February 1994, the Court made procedural orders for the taking of accounts in relation to payments which the Preston interests had made to the Firm. Then in June 1994, the Court referred the taking of those accounts out to a referee for inquiry and report.
After the commencement of the July 1994 amendments to the Legal Profession Act 1987, the taxation needed to be reconstituted as a costs assessment. That costs assessment did not commence for another two years. But as these reasons show, it was never completed.
In November 1994, the Preston interests indicated to the Firm and the Court that they no longer sought to pursue the part of the reference requiring the taking of accounts. In February 1995 the Court dismissed the Summons, except in so far as orders (including costs orders) had been previously made, and made no additional order as to costs.
By April 1995, the Preston interests had served their objections to the bills of costs under assessment. In early 1996 the Firm raised an issue in the costs assessment about the terms of the client's retainer of the Firm. The Firm contended that a costs assessor did not have the power to make a determination as to the existence of, or the terms of any retainer. In mid-1996 the Firm also moved for an assessment of the costs orders that had originally been made against the Firm in December 1993, and the consolidation of that costs assessment with the assessment of the Firm's 16 bills.
Reference to Costs Assessment - 1996 to 2002. In July 1996 the Court formally ordered the reference of the bills of costs for assessment pursuant to Legal Profession Act 1987-1994, s 206(1). The Court also took the apparently efficient course of referring the question of the terms of the Firm's retainer by the Preston interests to the same costs assessor, but in the additional capacity of referee, for inquiry and report.
The original 1993 bills of costs needed to be amended to conform with the formal requirements for assessment under Legal Profession Act 1987-1994. The procedure under the 1994 Act required a costs assessment application to be filed for the assessment of the costs for each of the bills of costs. By January 1997, the Firm had filed applications for the costs assessment of the 16 bills of costs at the Registry of the Court.
In January 1997 sealed copies of the Firm's costs assessment applications, together with the bills of costs, were served on the Preston interests. In February 1997 the Preston interests completed the filing of objections against the 16 bills of costs in the Court's Registry.
Between April 1997 and May 2010 no steps were taken in the costs assessment to quantify the 16 bills of costs. As will be seen for eight years of that period, from 2002 to 2009, these proceedings were stayed.
Between 1997 and 2002 the parties were pre-occupied with procedural disputes. During 1998 and 1999 the parties contested the question of the terms of the Firm's retainer by the Preston interests.
The material that the Firm advanced to the costs assessor contained a carbon copy of a letter apparently dated 19 April 1984. The costs assessor invited submissions on the letter and indicated that upon their receipt he would soon be in a position to conclude each assessment and issue a certificate of determination for the costs assessments.
But the costs assessor hesitated to undertake the role of referee with which he had been invested. In November 1998 the Court decided to revoke the appointment of the costs assessor as referee on the issue of the terms of the retainer. Instead the Court ordered that Points of Claim and Points of Defence be served to isolate the issues joined between the parties about the terms of the retainer.
The Preston interests moved by Motion in July 2000 for leave to amend the Summons to add 11 new plaintiffs, to add Mr Zwar as a defendant, and for other orders. The Motion was dismissed. The Court decided in April 2001 that it was impractical to remit the matter back to the existing costs assessor, or a new costs assessor, without determining the retainer issues. In June 2001 the Court decided that it would determine the issues about the terms of the retainer. In April 2002 the Preston interests filed Further Amended Points of Claim alleging fraud on the part of the second defendant in relation to the creation of the 19 April 1984 letter. This was followed by a forensic examination of the letter in question. The hearing of the retainer issues were fixed for February 2003.
The Stay Period - 2002 to 2009. But the proceedings were stayed in 2002 and the listed February 2003 hearing was vacated. When these proceedings were first commenced, Mr Mitrofanis Nikolaidis, the father of the second defendant Mr Leon Nikolaidis, had been joined as the first defendant. Mr Mitrofanis Nikolaidis established the Firm. When he died in July 2002 his wife, Mrs Doreen Philomene Nikolaidis, his executrix, continued to represent his estate in the proceedings, until she also died in June 2012.
Mr Leon Nikolaidis, the second defendant, is the executor of his mother's estate and thereby in 2012 became the executor of his father's estate. Thus, Mr Leon Nikolaidis now defends these proceedings in two capacities: as the first defendant in a representative capacity, as executor of his father's estate, and personally, as the second defendant.
Mr Leon Nikolaidis was until 2007 a principal of the Firm. But in 2002 he was charged under Crimes Act 1900, s 300(1) with one count of making a false instrument, namely the 19 April 1984 letter that he had used in the costs assessment. This criminal charge resulted in these proceedings being stayed from November 2002 until the second defendant's criminal trial was concluded and relevant criminal appeal periods expired. He was convicted in 2007 of the Crimes Act, s 300(1) count and sentenced to imprisonment for one year. The same year, his name was struck from the roll of legal practitioners. The stay was formally discharged in May 2009 and action in these proceedings resumed.
The third defendant, Mr Michael Zwar, was a principal of the Firm when the Firm undertook the legal work in issue. The Firm dissolved when the criminal charges were brought against Mr Leon Nikolaidis. Mr Zwar has since joined another firm but remains a defendant in this matter.
After the Stay - 2009 to 2015. Shortly after the stay was discharged, in June 2009, the plaintiffs filed a Statement of Claim alleging fraud. On the Firm's Motion in May 2010 the Statement of Claim was struck out, but the Firm's Motion to dismiss the proceedings was itself dismissed. The Court also granted leave to the plaintiffs to amend the Summons by adding Mr Zwar as a defendant, which Amended Statement of Claim was filed in the proceedings in June 2010.
The Court also made clear in May 2010 that the April 2002 Further Amended Points of Claim represented the extant portion of the proceedings which were a "coherent but confined claim" by the Preston interests, which was to proceed to trial.
In October 2010 the Preston interests ultimately abandoned further attempts to file new pleadings. Instead, the Preston interests raised for the first time the issue of the application of Limitation Act 1969, ss 14 and 63 to the Firm's recovery upon its bills of costs. The Preston interests then alleged for the first time that the applicable limitation period had expired by 1998 and the proceedings had become futile.
The April 2002 Points of Claim that the Preston interests filed were listed for hearing in August 2011. But some of the issues for hearing (namely, the hourly rates applicable to the provision of the Firm's legal services) were settled at mediation. In September 2011 the Court determined that, contrary to his denial of liability, the first plaintiff Mr Preston was personally liable in respect of all the bills rendered by the Firm.
In September 2011 the Court directed the Manager, Costs Assessment, to refer the assessment of the Firm's bills of costs to an accredited costs assessor pursuant to the 1994 Act, s 206. This order was in lieu of the Court's July 1996 orders referring the bills of costs for assessment under the 1994 Act, s 206(1). This September 2011 referral assumed the terms of the retainer as found by the Court and as agreed during the mediation. The Preston interests' application for leave to appeal against the September 2011 orders was dismissed in March 2012. The Preston interests' various subsequent interlocutory applications in the Court of Appeal were also dismissed.
But it emerged in August 2012 that the original bills of costs, applications for costs assessment and supporting documentation could not be located by the Court. And by December 2013 it was clear that the missing material had been administratively destroyed. In May 2013 the Court ordered the parties to agree on what had constituted these documents so that the costs assessment could proceed. In February 2014 the Court noted that the parties had agreed on the substance of the bills of costs and directed the parties to take steps to reproduce the form of those bills.
The Preston interests subsequently advanced Statements of Issues concerning the remaining issues for determination in these proceedings. These included the present Limitation Act issues.
In February 2015, the Preston interests filed a Motion seeking a declaration that the Firm's entitlement to costs the subject of the bills of costs was extinguished by the Limitation Act. Between March and June of that year, the parties filed Points of Claim and Points of Defence in relation to the Limitation Act issues.
During the initial hearing of the Motion in October 2015, because it was evident that it was seeking final rather than interlocutory relief, the Court directed that the Motion be converted into a Summons, which was duly filed in December 2015. From time to time throughout these reasons the proceedings so commenced in 2015 are sometimes referred to as "the 2015 proceedings" in a way that distinguishes them from the earlier proceedings.
The Parties' Contentions. The parties' contentions may be briefly summarised. The plaintiff, Mr Preston and his company, Constructions, contend that the Firm has not sued them for the legal fees claimed. They seek a declaration, initially propounded by motion, and then by leave through the filing of an Amended Summons: that by the operation of Limitation Act, ss 14 and 63, any entitlement the defendants may have once had to the payment of the Firm's costs has been extinguished. Ordinarily, the Preston interests would be taking such a limitation point in the role of defendants. But after the Preston interests filed their Summons seeking bills of costs and other relief, as earlier indicated, the Firm did not commence separate proceedings, a circumstance that led to the present Limitation Act argument.
The defendants raise several answers to the Limitation Act issue. First, they contend that no pleaded limitation point has been raised either in the proceedings, or in the costs assessments. Secondly, they contend that raising the limitation issue now, some 16 years after the claimed expiry of the applicable limitation period, is an abuse of process. Thirdly, they submit Mr Preston and Constructions elected not to raise, or alternatively have waived their right to rely upon, the expiry of the limitation period. Fourthly, the defendants assert, that the operation of the alleged limitation period is displaced by one or more of three separate species of estoppel: an issue estoppel; a common assumption estoppel; or, an estoppel by encouragement, election or waiver.
Mr J. Svehla of counsel, instructed by Diamond Conway Lawyers, appears for the plaintiffs. Mr B. Zipser of counsel, instructed by Livingstone & Company Lawyers, appears for the defendants. The Court has been much assisted on the present application by the careful submissions of the counsel and solicitors on both sides. Their diligent work has simplified the gathering and recording of the relevant history of this matter.

[12]

Relief Sought in the Summons

The Summons sought orders as follows: "1. ORDERS pursuant to section 208 of the Legal Profession Act 1987, that Bills of costs be delivered by the Defendants to the Plaintiff: (a) In respect of the matters set out in Schedule A hereto; (b) Alternatively, in respect of such of the matters set out in Schedule A hereto wherein accounts were rendered by the Defendants to the Plaintiff within twelve (12) months of the commencement of these proceedings. 2. ORDERS pursuant to section 199 and section 200 of the Legal Profession Act 1987, that there be referred for taxation: (a) The matters set out in Schedule A; (b) Alternatively, such of the matters set out in Schedule A as the court deems appropriate. 3. AN ORDER pursuant to section 208 of the Legal Profession Act 1987, that the Defendants deliver up to the Plaintiffs, on such terms, if any, that the Court deems appropriate, the Plaintiff's documents in the matters of: (a) P R & L M Moore T/as Sunrise Pools v. John Preston (b) Western Suburbs Constructions Pty Ltd v. Monier Ltd and Anor. (c) J C Preston Pty Ltd (In Liquidation) and Others v. Geoffrey K Strong - Supreme Court (NSW) (d) J C Preston Pty Ltd (In Liquidation) v. Neil King - Supreme Court (NSW). 4. AN ORDER that accounts be taken: (a) Of payments made to the Defendants for Defendants' costs, and the disbursement or application of such payments, in respect of the matters set out in Schedule A, from 1 January 1989 to 30 October 1992; (b) Of the payment of $50,000.00 into the Defendants' trust account, in or about July 1989 and the disbursement or application hereof, in respect of the matter Western Suburbs Constructions Pty Limited (formerly Preston Erections Pty Limited) and G K N Australia Limited. 5. That for the purposes of the orders sought in paragraph 4 above, directions be given as to the manner of taking the said accounts. 6. AN ORDER that the matters referred to in paragraphs 4 and 5 above be referred to the Master, Equity Division, to take accounts, and make inquiries to enable such accounts to be taken."
Schedule A annexed to the Summons listed twenty client assignments undertaken by the defendants for the plaintiffs and other persons.
The statutory framework within which the Summons was filed principally comprised: 1. Legal Profession Act 1987 (NSW) ("1987 LPA"), Part 11 prior to the repeal and substitution of Part 11 with effect from 1 July 1994; and 2. The Supreme Court Rules 1970, Part 52 Division 7.

[13]

9 November 1993: Orders made by Hulme J for the Defendants to deliver the Plaintiffs Bills of Costs

On 9 November 1993, Hulme J delivered reasons for judgment ("Hulme J November 1993 Judgment"); and made orders ("Hulme J November 1993 Orders") as follows: "1. I order that the defendants do deliver to the plaintiffs on or before Thursday 10 November bills of costs in respect of the matters numbered three, four, five, seven, ten, thirteen, fourteen and fifteen on the document entitled 'Summary of accounts owing' initialled by me and placed with the papers. 2. I order that the defendants do deliver to the plaintiffs on or before Tuesday, 30 November, bills of costs in respect of the other matters or groups of matters in that summary of accounts owing. 3. I direct that the defendants within fourteen days serve on the plaintiffs an affidavit annexing a copy of their office and trust account records of the matters listed in schedule A to the summons herein."
The document entitled "Summary of accounts" initialled by Hulme J referred to in order 1 of the Hulme J November 1993 Orders was a photocopy of the "Summary of Accounts" which was attached to the 16 October 1992 letter from the Firm to Mr Preston referred to above ("Hulme J November 1993 Schedule").
Table 1 below identifies the 16 matters in the Hulme J November 1993 Schedule: A B C D Hulme J November 1993 Schedule No. Matter Amount of each unpaid Firm invoice in the matter Total amount of all unpaid Firm invoices in the matter 1 Elwens Matter $100 $100 $9,286.50 2 State Bank Matter $5,084 $17,370.50 $3,000 3 King Matter $10,884.90 $13,102.90 $2,218 4 Roach Matter $1,199 $1,836 $637 $6,142 5 Four M.J. Matter $1,175 $10,395 $3,078 6 Lombe Matter $2,032 $2,032 7 Skygram Matter $2,050 $2,050 8 Sunrise Matter $1,535 $1,535 9 Sandman Matter $1,998 $1,998 10 Mevon Matter $25,898.50 $25,898.50 11 Constructions Matter $727.50 $727.50 12 Strong Brown Matter $13,335 $13,335 13 Favelle Matter $1,005 $1,005 14 Fred Jeffrey Trucks Matter $776 $776 15 Hekeik Matter $1,760 $1,760 16 Hume Computers Matter $1,028 $1,028 Total $95,749.40

[19]

9 June 1994: The Hon. D. Needham QC Appointed Referee to take Accounts

After several extensions of the timetable set on 3 February 1994, the matter came before Hulme J on 9 June 1994 and his Honour dealt with a notice of motion filed by the defendants on 27 May 1994 seeking the appointment of a referee: "to take accounts of payments made to the defendants for the defendants' costs, and the disbursements or application of such payments, in respect of the matters set out in Schedule A to the summons dated the 17th of September 1993".
Upon the hearing of that notice of motion, Hulme J made a number of orders ("Hulme J June 1994 Orders") , including for the appointment of the Hon. D. Needham QC (formerly Needham J) to be appointed referee for the purpose of the taking of such accounts: "Pursuant to Part 72, r(2)(1) refer to Mr G D Needham, QC the account and objections referred to in paragraph 3 below for inquiry and report."
It is clear from the reference in order 1 of the Hulme J June 1994 Orders to "paragraph 3 below" - and from the terms of the notice of motion dated 27 May 1994 of the defendants - that the referee was to take an account of receipts and payments as between the plaintiffs and the defendants named in the Summons and that these orders were made by reference to the claims in paragraphs 4, 5 and 6 of the Summons.
At the end of 1994, therefore, the matter of preparation of bills of costs and taxation of costs had become the subject of the Hulme J November 1993 Orders and the Hulme J December 1993 Orders; while the matter of an account had become the subject of the reference out ordered in the Hulme J June 1994 Orders.
The first aspect, arising under paragraphs 1, 2 and 3 of the Summons, had been dealt with by orders for the preparation of bills of costs in relation to the relevant solicitor-client matters, an order for taxation of those bills and an order allowing access to the defendants' files to a "costs expert" retained by the plaintiffs, no doubt to assist the plaintiffs in preparing their case in anticipation of proceedings before a taxing officer.
The second aspect, concerning the taking of an account, covered by paragraphs 4, 5 and 6 of the Summons, had been referred out to a referee, namely Needham QC, for the taking of the relevant accounts.
After the Hulme J June 1994 Orders were made, the defendants, although not envisaged or required by the Hulme J June 1994 Orders, commissioned Armstrong Wily, chartered accountants, to prepare the D.R.A.W. Report. The D.R.A.W. Report calculated that the plaintiffs were indebted to the defendants in the amount of $116,168.55.

[22]

15 November 1994: Plaintiffs no longer pursue the reference before the Hon. D. Needham QC

On about 15 November 1994, the plaintiffs informed the defendants that the Plaintiffs no longer pursued the reference before the Hon. Needham QC for taking of accounts by a letter dated 15 November 1994, from Mr Torrence Edward Kitamura, solicitor of Osborne Kitamura Lawyers ("Kitamura"), the then solicitor for the plaintiffs in the Proceeding, to the Firm ("Kitamura/the Firm 15 November 1994 Letter").
The Kitamura/the Firm letter dated 15 November 1994 letter read, in part, as follows: "I confirm my telephoned advice on 11th November 1994 that, in consequence of the books of your firm being made available pursuant to the orders made on 9th June 1994, confirmed on 12th October 1994, my clients' accountants have been able to reconcile payments made by my clients to your firm with particular accounts for professional work. It is quite apparent that, in the absence of this examination such reconciliation would have been impossible. Because the reconciliation was effected it will now be unnecessary for the parties to incur the expense of pursuing the reference. Would you please let me know by return that I may inform Mr Needham QC accordingly. With reference to paragraph 2 of your letter dated 7th November 1994 I confirm Mr Zwar's advice on 11th November 1994 that the document headed 'Confirmation of retainer' is the only document evidencing an agreement as to a fee rate between your firm and my clients. I expect to be filing and serving objections to your bills of costs shortly. They are now in the final stages of preparation."
The plaintiffs contended, and the defendants disputed, that the agreed narrative should at this point include words to the following effect "The Kitamura letter expressly states that the plaintiffs' accountants have been able to reconcile payments made by the plaintiffs to the Firm only". But the Court declines to include these words in the findings as the Kitamura/Firm 15 November 1994 letter speaks for itself.
As a consequence of the matters stated in the Kitamura/Firm 15 November 1994 Letter, at a practical level, the taking of accounts and reference before the Hon. D. Needham QC was at an end, although the orders revoking the reference were not made until mid-1996.

[24]

28 February 1995: Orders and judgment of Hulme J

On 28 February 1995: 1. there was a hearing before Hulme J; 2. Hulme J delivered reasons for judgment ("Hulme J February 1995 Judgment"); 3. Hulme J made orders to give effect to the Hulme J February 1995 Judgment ("Hulme J February 1995 Orders").
The Hulme J February 1995 Orders were: "(1) I confirm existing orders for costs. (2) Except insofar as orders have previously been made thereon, I dismiss the summons. (3) I make no order as to costs."
The Hulme J February 1995 Orders were made in the context of the Hulme J February 1995 Judgment. At the commencement of the Hulme J February 1995 Judgment, Hulme J stated: "By summons filed on 24 August 1993 the plaintiffs sought orders against their former solicitors firstly for the delivery of bills of costs in respect of identified matters, and secondly that those bills be referred for taxation, thirdly for the delivery up of the plaintiffs' documents in four specified matters, and fourthly an order for the taking of accounts. The summons contained ancillary prayers."
In relation to the first two orders in the Summons (delivery of Bills and referral of them for taxation), Hulme J stated: "The plaintiffs were successful in respect of prayers 1 and 2 in the summons…". and: "It was on 16 December 1993 that I ordered that there be referred for taxation the defendant's bills of costs, I having, prior to that time, ordered the production of such bills."
In respect of prayer 3 in the Summons (delivery up of certain of the plaintiff's Documents), Hulme J stated that he had dealt with this in the hearing on 9 November 1993: "On the topic of order 3 the plaintiff sought the unconditional delivery of files; the defendants resisted that unless they were paid their costs. The conclusion at which I arrived was that the plaintiff should pay something of the order of a third of the sum claimed, or a little more, and provide security for another third, or a little more. I regard the plaintiffs as the losers on that application as it was debated…".
In relation to prayer 4 of the Summons (taking of accounts), Hulme J stated: "The fourth order sought was for the taking of accounts. That issue arose in the context of a claim by the defendants that the plaintiffs were indebted to them in the sum of some $97,000 and the plaintiffs were denying in effect any indebtedness, although the taking of accounts was directed to ascertain the situation. Ultimately orders were made for the production by the defendants of a detailed statement of financial transactions with their clients, for the inspection of the defendant's files by or on behalf of the plaintiffs, and for the reference of the question of accounts to Mr Needham QC. Consequent upon the interlocutory orders made, the defendants engaged Armstrong Wily & Co to prepare a report analysing the various financial transactions which had occurred between the parties. The conclusion at which that firm arrived was that the defendants [should read plaintiffs] were indebted to the plaintiff [should read defendants] on those accounts - which I interpolate did not reflect any taxation of bills - in an amount of some $116,000, an amount which will be noted exceeds that which the defendants were claiming. The sum of $116,000 seems to have been arrived at after holding against the defendants the absence of some records of matters which the accountants would have expected. Following upon the plaintiffs' receipt of that report and consideration of the matter by accountants or other persons engaged on their behalf, the plaintiffs indicated they would no longer pursue the topic of their reference before Mr Needham. I think the only proper inference to be drawn from the plaintiffs' conduct in this regard is that the plaintiffs were conceding that the defendants' claim for some $97,000 was, on the basis which was then advanced, correct. Again I interpolate, this is without any taxation."
In relation to Hulme J's statement that "the plaintiffs were conceding that the defendants' claim for some $97,000 was ... correct", Mr Preston's position is that he did not make, and never made, such a concession. Mr Preston's position then and now is that he is not liable for the monies claimed by the defendants. The defendants dispute Mr Preston's denial. This issue is dealt with later in these reasons.
Finally, Hulme J stated: "The issues on prayers 3 and 4 of the summons as they have been raised before me, do not depend upon the ultimate result of taxation."

[25]

Barrett J explains the legal effect of the Hulme J December 1993 Orders, Hulme J June 1994 Orders and Hulme J February 1995 Orders in the Barrett J March 2010 Judgment

One of the questions which Barrett J had to consider, which was the subject of the hearing before his Honour in December 2009, and formed part of the Barrett J March 2010 Judgment, was: "Whether orders made in the past disposed of the proceedings in their entirety, so that there is nothing left requiring adjudication."
In order to determine this question his Honour reviewed, and considered in detail, the history of the Proceeding from its commencement until the making of the Hulme J February 1995 Orders. In the Barrett J March 2010 Judgment, his Honour considered and interpreted the effect of the: 1. Hulme J December 1993 Orders; 2. Hulme J June 1994 Orders; and 3. Hulme J February 1995 Orders, in the Barrett J March 2010 Judgment at [56]-[61]: "56 In relation to the first of these questions, I am of the opinion that orders made in the past disposed of the proceedings in part but not in their entirety. It is true that the orders made by R S Hulme J on 28 February 1995 included the following: 'Except in so far as orders have previously been made thereon, I dismiss the summons.' 57 At an earlier point, however, his Honour had made two orders of significance. On 16 December 1993, he ordered that 'there be referred for taxation' the identified bills of costs. On 9 June 1994, he referred to a referee 'for inquiry and report" what were described as "the account and objections referred to in paragraph 3 below'. That paragraph 3 contained directions for the preparation of a detailed account of moneys received by 'the Defendants' from 'the Plaintiffs' and of the disbursement of and dealings with those moneys, with provision for "the Plaintiffs" to notify their objections and 'any items in dispute'. 58 The effect of those two orders was to set in train two separate processes directed towards a final determination of the state of the account between the plaintiffs and the solicitors. This was obviously with a view to the determination of the claims advanced by the summons, as set out at paragraph [4] above. The need to determine those claims remained extant when R S Hulme J made the orders of 28 February 1995. Order (2) of that date quoted at paragraph [17] above was, by its terms, in the nature of a residual order - in the sense that it dealt with matters not already dealt with in some other way. It therefore did not operate to cut across the processes that had already been set in train to determine the liability of the plaintiffs to the defendants for costs and the state of account between the plaintiffs and the defendants as their solicitors. 59 It is clear that there was an expectation on the part of R S Hulme J that the processes set in train by his orders would determine both those matters - subject, of course, to adoption by the court of the report to be prepared by the referee in respect of the second matter; and with the possibility that the court might decline to adopt the report or might adopt it with modifications. As at 28 February 1995, however, his Honour stated that a position had been reached where the taxation of costs was proceeding but neither party wished to pursue the reference to the Honourable G D Needham QC; also that the plaintiffs had conceded, in respect of paragraph 4 of the summons (that is, the claim for an order that accounts be taken), that the defendants' claim for "some $97,000" was "correct" (with the question of taxation of costs still left to one side). The letter of 15 November 1994 referred to at paragraph [18] above supported the conclusion that the parties had reached a compromise on the account aspect. 60 The court thus noted on 28 February 1995 that agreement between the parties had produced a result where the plaintiffs were to pay a stated sum to the defendants and there was no need for an account. It was that conclusion that led R S Hulme J to say, "the plaintiffs have lost the issue raised by order 4 in the ultimate". The order than made dismissing the summons "[e]xcept in so far as orders have previously been made" must therefore be taken to have extended to the claim in paragraph 4 of the summons, that is, the claim for an order than accounts be taken. That part of the proceedings was, at that time, concluded and the claims in the summons were, at least to that extent fully adjudicated. 61 What is perfectly clear, however, is that the adjudication of 28 February 1995 did not touch upon or affect the part of the relief claimed in the summons that was concerned with the quantification of solicitor-client costs. When R S Hulme J made what was, in a sense, a residual order of dismissal on that day, the orders of 9 November 1993 and 16 December 1993 were extant with respect to the question of quantification of costs. As a consequence, the proceedings remained alive in relation to the claims in paragraphs 1 and 2 of the summons. I say this because of the effect the orders of 9 November 1993 and 16 December 1993 actually had, having regard to the statutory scheme then in force."
In relation to Barrett J's reference at [59] to a concession made by the plaintiffs, Mr Preston's position is that he never made such a concession. In relation to Barrett J's statement at [60] that "the plaintiffs were to pay a stated sum to the defendants", Mr Preston disagrees that he had to pay a stated sum to the defendants. Mr Preston's position then and now is that he is not liable for the monies claimed by the defendants. The defendants disagree with Mr Preston's position. This disagreement reflects with one of the issues in the proceedings, an issue dealt with in the reasons below.
Also, following the hearing in the Proceeding on 25 and 26 August 2011 before Black J, his Honour delivered reasons for judgment on 13 September 2011 ("Black J September 2011 Judgment"). Black J stated at [12]: "As Barrett J observed in paragraphs [57]-[59] of the 2010 judgment, the matters that remained in the proceedings were, from 28 February 1995 on, only the taxation of costs. Barrett J also noted that the dismissal of the balance of the proceedings on 28 February 1995 did not affect that part of the relief claimed in the Summons that was concerned with quantification of solicitor-client costs ie the orders sought pursuant to LPA s 208 (as to delivery of Bills of Costs to Mr Preston) and pursuant to LPA ss 199-200 (as to the reference of those bills to taxation) (at [61])."

[28]

February to July 1996: Application by Plaintiffs for Assessment of Interlocutory Costs Orders in their Favour and Consequential Events

As part of the Hulme J December 1993 Orders, Hulme J ordered: "Order the Defendants are to pay the Plaintiffs' costs of the appearance on 10 December 1993 and of today [16 December 1993] on a solicitor/client basis."
After the Hulme J February 1995 Orders were made, the plaintiffs took steps to have these costs order and some other costs orders in their favour assessed. On 16 February 1996, the plaintiffs served a bill of costs on the defendants as a step towards having their costs assessed.
On 14 March 1996, the defendants filed a notice of motion ("Defendants' March 1996 Motion") in the Proceeding seeking an order: "That the application for assessment of Party/Party Costs presented by the First and Second Plaintiffs on or about 16th February 1996 be consolidated with the taxation of all bills rendered by the Defendants to the First and Second Plaintiffs and filed in these proceedings herein."
The language used by the defendants in this notice of motion reflected the fact that, in respect of the defendants' bills of costs, orders had been made for the bills to be taxed under a system of taxation which existed up until 30 June 1994, while the plaintiffs' application for assessment of some interlocutory costs orders in their favour was made under the system of assessment which commenced on 1 July 1994.
The third defendant, Mr Michael Zwar swore an affidavit on 13 March 1996 in support of the defendants' March 1996 Motion ("Zwar March 1996 Affidavit").
The Zwar March 1996 Affidavit indicated that the defendants sought an order that the plaintiffs' assessment of some interlocutory costs orders in their favour "be consolidated" with the taxation of the 16 Bills and be "dealt with before a taxing master".
The Zwar March 1996 Affidavit, inter alia, stated: "The Defendants have sought taxation of bills of costs rendered to the First and Second Plaintiffs and filed during the course of the proceedings. Objections have been received from the Plaintiffs and in order to finalise the taxation, it will be necessary to determine as a preliminary issue the retainer between the parties in connection with work done on behalf of both the First and Second Plaintiffs and other companies associated with the First and Second Plaintiffs."
On 3 May 1996 Kitamura swore an affidavit in relation to the Defendants' March 1996 Motion. He stated, inter alia: "I refer to the affidavit filed in support of the motion by Michael John Zwar sworn 13 March 1996. I agree that as part of the taxation of the Bills of Costs it will be necessary to determine as a preliminary issue the retainer between the parties. No date has been allocated for the determination of this preliminary issue although this issue will in all likelihood be determined by a Judge of the Court rather than a Taxing Officer."
On 17 May 1996, Mr Zwar swore a further affidavit in support of the Defendants' March 1996 Motion ("Zwar 17 May 1996 Affidavit"). Mr Zwar stated, inter alia: "The Defendants have requested this Honourable Court to undertake taxation of the Bills of Costs presented by the Defendants to the Plaintiffs in December 1993 and January/February 1994. Annexed hereto and marked with the letter 'A' is a true copy of a letter dated 22nd March 1996 to the Taxing Officer of the Supreme Court of New South Wales. At present it appears that the cost division of this Honourable Court is reluctant to undertake taxation of files due to amendments to the Legal Profession Act which took effect from July 1994. I am advised by the Taxation Registry that no further taxations are being conducted by the Court. An order was made by His Honour, Mr Justice Hulme on that the Bills filed in Court be taxed. Annexed hereto and marked with the letter 'B' is a true copy of His Honour's order dated 16th December 1993."
In May 1996, Mr Leonard Hattersley, solicitor, the assessor who had been appointed to conduct the assessment of the plaintiffs' costs awarded in the Proceeding in the plaintiffs' favour, up to 28 February 1995, when the Hulme J February 1995 Order was made, sent written communications to the parties stating he was proceeding with the assessment.
On 10 May 1996, Mr Hattersley wrote a letter to the Firm stating: "The Proper Officer of the Supreme Court of New South Wales has assigned to me pursuant to the Legal Profession Act 1987 the determination of the application for assessment of costs filed by Messrs Thomas Osborne Kitamura Solicitors on behalf of the applicants…"
As at May 1996, Mr Hattersley was a "costs assessor" within the meaning of section 173(1) of the 1987 LPA, namely: "a person appointed as a costs assessor under Division 6".
To be a costs assessor, Mr Hattersley had to be appointed a costs assessor by the then Chief Justice of the Supreme Court of New South Wales.
On 30 May 1996, the defendants filed and served a notice of motion in the Proceeding seeking an order that Mr Hattersley "be restrained until further order from conducting any further assessment in connection with the Bill of Costs delivered by the first and second respondents [plaintiffs] dated 13 March 1996." The Motion was returnable before Hulme J on 31 May 1996.
In the meantime, on 31 May 1996, Mr Hattersley informed the defendants' solicitor that he had completed the assessment and he issued a certificate of determination in respect of his assessment.
Around 4 June 1996 the defendants served an amended notice of motion ("Defendants' Amended May 1996 Motion") seeking an order that "the enforcement of any judgment taken out by the applicants [plaintiffs] be stayed until further order of the taxation of the respondents' bills of costs delivered to the applicant in December 1993 and January 1994 be concluded".
In support of the Defendants' Amended May 1996 Motion, Mr Zwar swore an affidavit dated 31 May 1996 ("Zwar May 1996 Affidavit").
The parties filed and served further affidavits in relation to the Defendants' Amended May 1996 Motion, including the following affidavits: 1. Mr Zwar sworn 4 June 1996; 2. Kitamura sworn 3 July 1996; 3. Michelle Castle, solicitor and costs consultant, sworn 4 July 1996; 4. Mr Zwar sworn 17 July 1996; 5. Kitamura sworn 24 July 1996.

[29]

25 July 1996: Hearing, Reasons for Judgment and Orders of Young J

The Defendants' Amended May 1996 Motion came before Young J as duty judge for hearing on 25 July 1996. After a contested hearing, Young J: 1. delivered reasons for judgment ("Young J July 1996 Judgment"); and 2. made orders ("Young J July 1996 Orders").
In the Young J July 1996 Judgment, his Honour stated: "As I understand it, there are orders for costs both ways. The costs which are due to Mr Preston or his enterprises are finalised and are either a judgment of the court or about to be a judgment of the court. The costs that may be payable the other way are still to be determined. Because of delay, and it would seem principally the delay of the solicitors, the bill was not in such a form that an application was made before 1 July 1995 for taxation Regulation 80 under the Legal Profession Act probably operates to amend the order that was made by Hulme J before 1 July 1994 as to taxation, so that under regulation 80(3) the costs that are to be assessed in accordance with the new Pt 11 of the Act, but the former taxation principles apply. Mr Sirtes, for the plaintiff client, says that that causes injustice unless "principles" are defined as including procedures. Mr Sirtes argued for that construction but, with great respect, it is an almost impossible argument. Principles of taxation are well understood and they do not include the method of hearing, or the procedures involved. It refers to the matters of law and to substantive practice which have been applied by taxation experts and are set out in Mr Saddington's book and other places. Mr Sirtes then says that if regulation 80(3) applies his client will suffer additional expense because the new procedures are far more expensive than the ones under the previous legislation. If that is so, and it may well be, then that is a result of a deliberate decision of the legislators and the executive government, rather than anybody else's fault. … The … bills of costs now have to be considered by the appropriate official. They will need to be dealt with by assessment and the assessor will apply the principles of taxation."
Young J's reasons for judgment concerning this issue were given effect to by order 3 of the Young J July 1996 Orders, namely: "3. Direct the proper officer of the court to refer to Mr L Hattersley solicitor the Defendants' Bills of Costs for assessment pursuant to section 206 of the Legal Profession Act 1987."
Young J made order 3 of the Young J July 1996 Orders in the context of the 1987 LPA, s 206(1), which provided: "The proper officer of the Supreme Court is to refer each application for assessment to a costs assessor to be dealt with under this Division."
Young J directed "the proper officer of the court" to refer the 16 Bills for assessment pursuant to section 206 of the 1987 LPA to Mr Hattersley as Mr Hattersley was: 1. a "costs assessor" within the meaning of the 1987 LPA; and 2. the costs assessor to whom the plaintiffs' application for assessment of their costs in respect of costs ordered in their favour by Hulme J had been referred.
The Young J July 1996 Judgment also dealt with the issue of the terms of the retainer between the plaintiffs and the defendants which had arisen by this time, as referred to in the Zwar March 1996 Affidavit, amongst others, in the following terms: "There is an issue between the parties not that the solicitors were retained by the client, but as to the terms of the retainer. It seems sensible to isolate that issue and refer it to the decision of the same person who makes the assessment of costs."
Young J gave effect to this in orders 4, 5 and 6 of the Young J July 1996 Orders which provided: "4. I refer the question of the terms of the Defendants' retainer by the Plaintiff to Mr L Hattersley for inquiry and report. 5. Liberty to the Referee and the parties to approach the court for directions under Part 72 Rule 8 on three days' notice. 6. The Defendant undertakes to provide the Plaintiffs' solicitors and its costs assessors with access to the files on reasonable notice for a period of 6 weeks."
Thus, the issue of the question of the terms of the defendants' retainer by the plaintiffs was referred to Mr Hattersley, not as a costs assessor under the then new Part 11 of the 1987 LPA, but as a referee under Supreme Court Rules 1970, Part 72 rule 8.
Young J also granted the defendants the restraining order they sought. Order 1 of the Young J July 1996 Orders was: "1. Order that the Plaintiffs be restrained until further order of the court from enforcing or seeking to enforce the certificate of Mr L Hattersley in relation to the costs payable pursuant to orders of Hulme J."

[31]

November 1996 to March 1997: Filing of Bills and Referral to Costs Assessor

At the very end of October 1996 or on 1 November 1996, Mr Zwar, on behalf of the defendants, prepared Bills in 10 of the 16 matters as follows: 1. a coversheet was prepared which complied with the Form then applying in relation to assessment of costs arising from the 1994 amendments to the 1987 LPA, which replaced taxation of costs with assessment of costs, which took effect on or about 1 July 1994; 2. the coversheet: 1. identified the parties as the plaintiffs and the defendants, conformable with the way in which this was done for a proceeding filed in the Court at that time; 2. provided for filing with the Court in the 1996 year by stating in the top left hand corner "1996"; 3. left a space before "1996" for the Registry of the Court to hand write in the matter number, in accordance with the then practice in the preparation of a court document, initiating a proceeding with the Court; 1. the coversheet did not identify which of the 16 matters the assessment of costs related to as the pro forma cover sheet was used for each of the 16 matters; 2. sufficient copies of the coversheet were printed so that there was one coversheet for each of the 10 of the 16 matters: 3. Mr Zwar signed each coversheet; and 4. behind each coversheet were attached the Bills in 10 of the 16 matters which had been served on the plaintiffs on 15 December 1993. On paragraph 2(a) of each of the coversheets was typed: "The costs which are the subject of this application were included in my bill of costs dated 15 December 1993 a copy of which is attached. The bill was given to the client on 15 December 1993 in the following manner: Forwarded to new solicitor".
On 1 November 1996, the defendants attended and filed with the Registry of the Court the defendants' Bills in 10 of the 16 matters identified in Table 2 below, in respect of which the defendants paid the applicable filing fee and a separate costs assessment file number was entered by the Registry of the Court in respect of each of the 10 matters, as identified in Table 2:

[34]

Table 3: Applications, with attached Bills, in the remaining 6 of the 16 Matters A B C D E F Item No. Cost assessment file number Division Matter Filing Fee Hume November Schedule 1993 No.

   90104/1997                   CL        Mevon Matter                $288        10

   90112/1997                   CL        Elwens Matter               $100        1

   90113/1997                   CL        State Bank Matter           $176        2

   90114/1997                   CL        Sandman Matter              $100        9

   90115/1997                   CL        Fred Jeffrey Trucks Matter  $100        14

   90116/1997                   CL        Hekeik Matter               $100        15
   Total                                                              $864

[37]

1998 and 1999: Dispute concerning terms of retainer

There was a very live issue between the plaintiffs and the defendants in relation to the question of the defendants' retainer by the plaintiffs. In the period from 27 February 1998 to 22 October 1998, there were a series of written communications between Mr Hattersley and the legal representatives for the parties on the question of the retainer. In a letter from Mr Hattersley to the legal representative for the plaintiffs dated 27 February 1998, Mr Hattersley stated that, during an inspection of some files at the offices of the Firm, he had come across a copy of a letter dated 19 April 1984 which appeared to assist the defendants' position on the dispute between the parties concerning the retainer ("19 April 1984 Letter"). Mr Hattersley suggested in his letter that, subject to receiving submissions from the parties in relation to the 19 April 1984 Letter, he was "in the position where I will be able to conclude each assessment and to issue a Certificate of Determination as to Costs in each matter".
In his letters dated 6 April 1998 to the legal representatives for the parties, Mr Hattersley observed that the process undertaken by a costs assessor was "totally paper driven" and that there were "no avenues available for me [Mr Hattersley] to hear and see any witnesses giving evidence scrutinised and tested through cross‑examination". Mr Hattersley then wrote: "Accordingly I would encourage the parties or one of them to seek directions and declarations from the Court so as to establish what were the precise terms and conditions of the solicitors' retainers from time to time. As a costs assessor appointed for the purposes of Part 11 of the Act I do not have any authority or entitlement to myself commence proceedings in the Supreme Court to seek directions, declarations or judicial advice. … However, as I have previously indicated I believe this case is one where the directions and declarations of the Court are essential for the just resolutions of the disputes. …"
On 4 November 1998, Mr Nikolaidis swore an affidavit in the Proceeding ("Mr Nikolaidis' November 1998 Affidavit").
Mr Nikolaidis' November 1998 Affidavit annexed a letter dated 12 June 1998 from the Firm to Mr Hattersley which, inter alia, stated: "As you know Justice Young some considerable time ago referred to you certain questions for determination. It has always been our understanding that the reference to you of these issues was as a referee pursuant to the provisions of Part 72 of the Rules. It had nothing to do with the Court's assignment to you of the taxation of costs pursuant to the Legal Profession Act. Accordingly as a referee you enjoyed the powers and authorities which Part 72 of the Rules conferred on referees. … As a referee appointed by the Court if you had any doubt about your role or position you are entitled to approach the Court for directions or alternatively seek to have the appointment of you as a referee determined and other referees appointed. The appointment of you as a referee to determine the retainer issue has nothing to do with your ultimate assessment as to the reasonableness or otherwise of the costs. It follows accordingly the issues raised in the fourth paragraph of your letter to Messrs Wheelers of 6 April do not seem to be relevant. You may determine your own procedure. …."
Mr Nikolaidis' November 1998 Affidavit annexed a further letter dated 21 October 1998, from Mr Hattersley the plaintiffs' then solicitors, Wheelers, copied to the Firm for the defendants. In this letter, Mr Hattersley referred to various correspondence from Wheelers between 24 June and 28 August 1998, and then, inter alia, stated: "… Having spent a considerable number of hours endeavouring to progress each one of the above assessments [identified as applications for assessment of costs numbers 91255/96 to 91257/96, 91259/96 to 91264/96, 90112/96 to 90116/96 inclusive and 90104/96] to the stage where they are now all held in abeyance, I found it difficult to revisit the files. Suffice it to say, each one of the above assessment applications requires a decision to be made as to what were the terms of solicitors' retainers, when was such retainer made, between whom it was made and so forth. Bills of costs have been prepared and I believe I have inspected most if not all of the solicitors' files. … I reported the present state of each of the assessments to the Proper Officer of the Supreme Court of New South Wales on 1 June 1998 in the following terms: 'Each one of the "Preston" assessment applications raises the question "what were the terms and conditions of the retainer by Preston (or any one of his various entities) of the Nikolaidis firm to provide legal services and upon what basis was the firm to be remunerated for providing services? I am hopeful that one day the court will make some declaratory orders dealing with the retainer whereupon I will be able to conclude these assessment applications.'"
The Proceeding was listed before Young J on 5 November 1998, at which time, inter alia, Mr Nikolaidis' November 1998 Affidavit was read.
As a consequence of the difficulties which Mr Hattersley faced, on 5 November 1998, Young J ordered ("Young J November 1998 Orders") that: "The order of 25 July 1996 referring to [sic] question of retainer to Mr Hattersley for inquiry and report be set aside."
As part of the Young J November 1998 Orders, Young J: "directed that the plaintiffs file and serve points of claim "on the issue of the terms of the retainer by 25 November 1998, that points of defence be filed and served by 9 December 1998", and that any affidavits to be relied on by the defendants in the matter of the terms of the retainer be filed and served by 23 December 1998, with any affidavits of the plaintiffs in reply to be filed by 10 February 1999."
The Proceeding came back before Young J on 18 February 1999. His Honour extended the timetable set on 5 November 1998 with respect to determination of the terms of the retainer so that the deadline for the final step was 7 June 1999 and the matter was to come back to court for mention on 17 June 1999. On that date, the timetable was extended to a date in September 1999 and the Proceeding was stood over to 27 September 1999 for mention. There was yet another extension of the timetable so that the last step was due to be taken by 6 December 1999 and the matter was to come back to court on 13 December 1999.
There were also a number of affidavits filed in the Proceeding in relation to the question of retainer, including the affidavits of: 1. Russell Clark Wheeler, solicitor of Wheelers, the then solicitor for the plaintiffs, sworn on 15 September 1998; 2. Mr Nikolaidis sworn on 15 October 1998; 3. Mr Nikolaidis' November 1998 Affidavit.

[38]

2000 to 2002: Plaintiffs' Notice of Motion and Continuing Dispute Concerning Terms of Retainer

On 26 July 2000, Mr Preston filed a notice of motion seeking leave to amend the Summons. The proposed amendments appeared from a form of amended summons annexed to the notice of motion which, in the usual way, showed the amendments by underlining. There were three proposed amendments, namely, the addition of eleven new plaintiffs (as third to thirteenth plaintiffs), the addition of Mr Zwar as a defendant and the addition of a prayer for an order "that any sums found, by virtue of the taxation and accounts referred to herein, to have been overpaid by any or all of the plaintiffs to the defendants be repaid".
The amendment application was heard and determined by Master McLaughlin on 25 August 2000. After referring to the parties and the relief sought by the Summons as originally filed, the Master said: "9. I have been informed that on 28 February 1995 final orders were made by Hulme J in the terms of prayers 1 and 2 in the summons, and that otherwise the summons was dismissed. I have not been informed as to whether his Honour's order was ever entered. 10. There is a most voluminous file in this matter, the contents of which were the subject of comment by Young J on 25 July 1996, when his Honour said: 'It is really absurd that it should have taken the amount of paper that has been created and the amount of delay that has occurred.' 11. Since the matter came before Young J more than four years ago a considerable quantity of additional paper has been created in the matter. From what I have been told -- and I would emphasise that no evidence has been placed before the Court by affidavit or otherwise in support of the present notice of motion - the plaintiffs were formerly clients of the defendants, who are solicitors. It would appear from the judgment of Young J on 25 July 1996 that there is a dispute (described by his Honour as 'a squabble') between solicitor and client as to costs. 12. The amended summons (which by the notice of motion presently before me the first plaintiff seeks to file) seeks the relief sought in the original summons together with a further prayer for relief which is consequential upon the earlier prayers for relief originally sought. That additional prayer for relief is 'an order that any sums found by virtue of the taxation and accounts referred to herein to have been overpaid by any or all of the plaintiffs to the defendants be repaid'. 13. More significantly, however, is the fact that the amended summons includes upon its entitlement the names of eleven additional plaintiffs (being described as referring to one to thirteen plaintiffs respectively) and the name of an additional natural person included in the description of the defendants. I have been informed by Counsel for the defendants that the additional person was in fact joined as a defendant many years ago at an early stage in the proceedings and that such additional joinder at this stage is not necessary. More significantly to the present application if the proposed joinder of the eleven additional plaintiffs. 14. The first plaintiff seeks to ground his present application upon the provisions of Part 20 rule 1 of the Supreme Court Rules. That rule relates to amendment of any document in the proceedings. It does not expressly relate to the joinder of parties. The addition of parties is the subject of express provision in Part 8 of the Rules, in particular Part 8 rule 8. 15. The defendants oppose the present application. The ground for the opposition essentially is that the relief sought in the summons has now been the subject of final orders by Hulme J on 28 February 1995. His Honour granted the relief sought in prayers 1 and 2 in the summons. His Honour otherwise dismissed the summons. 16. In those circumstances it is the submission of the defendants that the proceedings have been brought to a conclusion and that what the first plaintiff now seeks to do is in effect to resurrect proceedings that have been totally and finally dealt with. 17. The fact that the processes of conducting the taxation and the assessment, the subject of orders 1 and 2 in the summons may not yet have been brought to a conclusion does not in my view in any way affect the validity of the foregoing submission on the part of the defendants. It seems to me that what the applicant is attempting now to do is to reinstate proceedings which, if they should have been instituted at all, should have been instituted no later than the making of the final orders by Hulme J five and a half years ago. 18. To accede to the present application would in my view be verging upon an abuse of the processes of the Court. In any event, no evidence whatsoever has been placed before the Court which would have the effect of justifying the Court in adding the eleven additional plaintiffs to the proceedings. 19. The applicant has chosen not to disclose to the Court firstly why those entities and persons should now be joined, and secondly, why they were not joined at an earlier stage in the proceedings. Although the defendants do not rely upon this submission in their present opposition to the relief sought in the notice of motion, I observe that Part 8 rule 8 provides, in subrule (2) to thereof, that a person shall not be added as a plaintiff without his consent, and that there is no consent presented to the Court in respect to the proposed additional eleven plaintiffs. However, as I say, although this matter was originally raised in opposition by the defendants, the defendants no longer rely upon non-compliance with that provision of the rules. 20. I have no hesitation whatsoever in dismissing the present notice of motion."
In the meantime, progress concerning the parties' dispute in relation to the terms of the retainer was slow. On 11 April 2001, Bryson J stated in reasons for judgment of that date: "It seems to me that assessment of costs (as has been ordered in accordance with the claims in the Summons that certain bills rendered by the defendants should be taxed) cannot as a matter of practicality be sent back to Mr Hattersley as assessor or to some new assessor without first determining the issue which the plaintiffs have raised relating to the nature of the retainer." [Emphasis added].
Following the case management of the Proceeding undertaken by Bryson J, on 25 June 2001, Windeyer J made orders in the Proceeding in relation to the determination of the question of the retainer as follows ("Windeyer June 2001 Orders"): "1. Order the question of the terms of the retainer so far as costs are concerned be determined by the court. 2. Direct the plaintiff to file any amended points of claim on the retainer issue … to identify any matters in respect of which Mr Preston claims he would not be liable. 3. Direct the defendant to file amended points of defence on that issue, such document to clearly state the basis of any retainer claim alleged by the defendants ... 4. Direct the plaintiff to file any response to the points of defence",
The last step in the Windeyer/June 2001 Orders was to occur by 20 August 2001.
Amended points of claim were filed on 13 July 2001. Amended points of defence were filed on 16 August 2001. On 27 August 2001, Windeyer J directed that the matter be placed in the next Registrar's call over on 12 September 2001 for the appointment of a hearing of two to three days. On 14 November 2001, the Registrar fixed the proceedings for hearing by Santow J on 29 April 2002 with an estimate of two days. That fixture was afterwards vacated.
On 15 April 2002, pursuant to leave granted by Gzell J, the plaintiffs filed further amended points of claim ("April 2002 Points of Claim") in relation to the retainer issue, which contained allegations of fraud by Mr Nikolaidis, including allegations of fraud in relation to the 19 April 1984 Letter.
On 14 June 2002, there were further directions concerning examination of the carbon copy letter by forensic experts. There were similar directions on later occasions.
A hearing of the question of the terms of the retainer was fixed for 17 and 21 February 2003.

[39]

Late 2002 to April 2009: Mr Nikolaidis Charged and Stay of Proceedings

By November 2002, Mr Nikolaidis had been charged with a single count under the Crimes Act, s 300(1) of making a false instrument, namely, the carbon copy of the 19 April 1984 Letter, with the intention of using it to induce another person, namely, Mr Hattersley, to accept it as genuine and because of that acceptance to do some act to the prejudice of Mr Preston.
On 21 November 2002, orders were made in the Proceeding that the: 1. hearing of the Proceeding in relation to the terms of the retainer fixed for 17 and 21 February 2003 be vacated; 2. save for incidental steps in relation to costs issues, the Proceeding be stayed: "until the conclusion of the criminal trial against Leon Mr Nikolaidis, and the elapsing of any appeal time following the conclusion of that trial, or until further order of the Court."
On 11 December 2003, the stay order was varied so as to cause the stay to operate until 27 February 2004. The stay was later extended to 7 December 2004 and subsequently to 1 March 2005. While Mr Nikolaidis criminal proceedings and the appeal were in progress, the Proceeding remained in abeyance. It is not clear that any stay was in place beyond 1 March 2005.
Mr Nikolaidis stood trial in the District Court in late 2007 and was convicted on a single count under Crimes Act, s 300(1) of making a false instrument with the intention of using it to induce another person to accept it as genuine and because of that acceptance to do some act to the prejudice of Mr Preston. Mr Nikolaidis was sentenced to a term of imprisonment. The sentencing remarks of Judge Knox SC appear in a written judgment of the District Court in its criminal jurisdiction dated 23 November 2007 (the defendants dispute that this sentence should be included in the agreed narrative but it is factually correct and is not a matter that is in serious dispute and therefore has been included here). An appeal against both conviction and sentence was dismissed on 17 December 2008: Nikolaidis v R [2008] NSWCCA 323. Thereupon, Mr Nikolaidis was incarcerated and was released from imprisonment in December 2009.

[44]

2 March 2010: Plaintiffs' June 2009 Statement of Claim struck out but the Proceeding not dismissed

On 2 March 2010, Barrett J made orders, including the following in relation to the Defendants' October 2009 Motion: "1. Order that the statement of claim filed on 19 June 2009 be struck out. 2. Order that the defendants' claim by notice of motion filed on 2 October 2009 for an order that the proceedings be dismissed be itself dismissed."
Barrett J stated: "… the proceedings as now constituted are not as indicated by the statement of claim filed on 19 June 2009 but, rather, as indicated by the further amended points of claim of 15 April 2002, it is apparent that there remains extant a coherent but quite confined claim by the plaintiffs related to ascertaining the terms of the retainer which cannot be said to be affected by any of the rule 13.4 vices and which ought to be allowed to proceed to trial, assuming that the plaintiffs still wish to see it come to trial."
Barrett J stated that in the April 2002 Points of Claim, the claim for declaratory relief (prayer 2) in the April 2002 Points of Claim as to: "… the allegedly fraudulent character of the letter of 19 April 1984 goes to the validity or enforceability of the defendants' retainer and therefore the right to remuneration the quantification of which is the sole remaining purpose of these proceedings."
A few paragraphs earlier in the Barrett J March 2010 Judgment, his Honour stated (at [72]): "The tangled history of this case warrants a conclusion that, immediately before the orders of 12 May 2009 were made, the plaintiffs' claims were those in the further amended points of claim of 15 April 2002 (see paragraph [50] above). Those claims went entirely to the question of the terms of the retainer, that being a question that, pursuant to the order made by Windeyer J on 25 June 2001, was to be determined by the court in order that the matter of quantification of solicitor-client costs raised by the summons filed on 24 August 1993 might be properly addressed in the light of the consequences of the operation of the transitional measures under the Legal Profession Reform Act 1993 upon the orders of 9 November 1993 and 16 December 1993. The question of fraud was raised by the further amended points of claim of 15 April 2002 and bore a direct relationship to the aspect of the retainer in which the letter of 19 April 1984 was said to play a part. The question of the effect of any such fraud upon the retainer and therefore the right of the defendants to recover costs for the legal services rendered by them to the plaintiffs was clearly within the scope of the necessary inquiry into the terms of the retainer."

[51]

21 October 2010 to 4 November 2010: Correspondence between the Plaintiffs and the Defendants in relation to the Limitation Act (NSW)

On 21 October 2010, Mr Preston's solicitor wrote to the defendants' solicitor and in that letter, inter alia, stated: "Limitation period issue The cause of action against our client in respect of the claim for money recorded in the invoices issued in October 1992 and the months following accrued, at latest, at the time the invoices were issued. Unless there is a provision of the Legal Profession Act 1987 (NSW) which provides otherwise, it appears that:- 1. Pursuant to s 14(1) of the Limitation Act 1969 (NSW) an action on the cause of action in respect of each invoice is not maintainable if brought after the expiration of a limitation period of six years running from the date of the invoice. 2. The limitation period expired by the end of 1998. 3. As a result, the proceedings, to the extent they concern the invoices issued in October 1992 and the following months, have been rendered futile by consequence of the passing of time. We are not aware of a provision of the Legal Profession Act which provides otherwise. We invite you to comment on this issue concerning a limitation period, following which our client will consider his position. Next steps This matter is listed for directions tomorrow. We propose that the matter stand over by consent for two weeks so that you can consider and respond in writing to the questions in this letter."
On 4 November 2010, the defendants' solicitor replied to this letter and relevantly stated: "2. Limitation period issue Given that bills in taxable form were issued by the firm (pursuant to Orders made in the proceedings) in the calendar years 1993 and 1994 and indeed have been the subject of proceedings ever since, we cannot understand on what possible basis it is said that the right to recover outstanding fees is in any way statute barred. As you are well aware these proceedings have been on foot since August 1993 and remain to be completed. It is our intention on the next occasion to press for a final hearing date."

[57]

16 September 2011: Orders made by Black J following the Black J August 2011 Hearing

On 16 September 2011, Black J made orders to give effect to his Honour's decision in the Black J September 2011 Judgment ("Black J September 2011 Orders").
The Black J September 2011 Orders, inter alia, gave effect to the Street Mediation Agreement in the following terms: "1. Pursuant to order 1 of the orders of Windeyer J of 25 June 2001, and having regard to the agreement reached between the parties [the Street Mediation Agreement] and recorded in Schedule "A" hereto the Court determines that, in relation to the bills of costs rendered in the matters listed in schedule "A" hereto [the 15 Matters], the terms of the retainer between the plaintiffs and defendants, so far as costs are concerned, are as set out in schedule "A" hereto."
The Black J September 2011 Orders also referred the Bills in the 16 matters for assessment to an accredited costs assessor in the following terms: "2. In lieu of order 3 of the orders made by Young J on 25 July 1996, direct the Manager, Costs Assessment to refer to an accredited costs assessor the defendant's bills of costs for assessment pursuant to section 206 of the Legal Profession Act 1987."
The Black J September 2011 Orders do not refer to Mr Hattersley. According to the records of the Law Society of New South Wales, Mr Hattersley's current Australian practising certificate granted by the Law Society of New South Wales expired on 30 June 2007. Mr Hattersley ceased to be an accredited costs assessor either under the provisions of the 1987 LPA or the Legal Profession Act 2004 (NSW).
Once Mr Hattersley ceased to hold a current Australian practising certificate, Mr Hattersley ceased to be eligible to be a costs assessor.
The Chief Justice of New South Wales did not reappoint Mr Hattersley as a costs assessor from 1 October 2005. It is currently the usual practice for the Chief Justice of New South Wales to consent to costs assessors who are not to be reappointed to be permitted to finalise outstanding costs assessments. It is not known if this occurred with respect to Mr Hattersley. Thus, Mr Hattersley ceased to be a costs assessor, at the earliest, on 1 October 2005 and, at the latest, on 30 June 2007, when Mr Hattersley ceased to hold a current Australian practising certificate.
On 15 December 2011, Mr Preston made an application, by Summons, seeking leave to appeal to the New South Wales Court of Appeal ("NSWCA") ("Mr Preston's Amended Leave to Appeal Summons") in relation to: "(a) The order made by Black J on 16 September 2011 to direct the Manager Costs Assessment to refer to an accredited costs assessor the defendant's bills of costs for assessment ("the Order"); and (b) The findings in paragraphs 44 and 45 of the decision dated 13 December 2011 in support of the Order."
The findings in the Black J September 2011 Judgment at [44]‑[45] concern whether the claims by Mr Preston concerning fraud and that he had already paid for some work in the bills of costs could be referred to a referee and, if not, whether Mr Preston could raise the issues before the relevant costs assessor.

[63]

17 May 2013: The Young AJ May 2013 Orders

On 17 May 2013, in circumstances where the Applications, attached Bills and Objections in relation to the 16 matters filed in the period 1 November 1996 to 20 February 1997, could not be located by the Court and neither the plaintiffs nor the defendants had filed copies of all of these documents, Young AJ made orders for the parties to agree on what constituted these documents or for this matter to be determined by the Court ("Young AJ May 2013 Orders").
Orders 1 to 3 of the Young AJ May 2013 Orders provided: "1. By 23 May 2013 the defendants provide the plaintiff a folder(s) (Folder) which contains separate tabs for each of the 15 NSWSC Costs taxation proceedings (Taxation Proceedings) and in that folder are: 1.1 The bills of costs filed or which the defendants contend are copies of the bills of costs filed by the defendants in the separate proceedings commenced on 1 November 1996 (1996 Taxation Proceedings) and the further proceedings commenced by the defendants on 20 January 1997 (1997 Taxation Proceedings) less the proceeding which the defendants had previously indicated to the plaintiff the defendants were not pressing (15 Bills). 1.2 The plaintiff's notices of objection to each of the 15 Bills (15 Objections). The defendants to include in each tab in the Folder what the defendants contend is a copy of the relevant one of the 15 Objections. 2. By 30 May 2013 the plaintiff will indicate in writing to the defendants whether the plaintiff agrees or disagrees that each of the documents in the Folder is a copy of the filed 15 Bills and filed 15 Objections. If the plaintiff disagrees then the plaintiff will provide by this time to the defendants what the plaintiff considers is a copy of the relevant filed document or what the plaintiff contends the position otherwise is. 3. Unless the NSWSC Registry (Registry) is able to locate the filed 15 Bills and/or the filed 15 Objections, the documents in the Folder either be agreed between the parties or failing agreement determined by the Court are to be copies of the filed 15 Bills and 15 Objections."

[67]

13 February 2014: Darke J February 2014 Orders

In preparation for the hearing on 13 February 2014, the defendants undertook searches and inquiries for further documents and, as a consequence of further documents becoming available, Mr Zwar swore the Zwar February 2014 Affidavit, which was served on the plaintiffs on that day.
The Zwar February 2014 Affidavit amended the Zwar February 2013 Affidavit and provided more complete evidence as to what constituted the Applications, attached Bills and Objections in relation to the 16 matters filed in the period 1 November 1996 to 20 February 1997. Exhibited to the Zwar February 2014 Affidavit were: MJZ‑3 (pages 1-216); MJZ‑4 (pages 1-750); MJZ‑5 (pages 1-270); and MJZ‑6 (pages 1-107).
On 12 February 2014, the defendants served on the plaintiffs an A4 ring binder folder titled "Amended Folder" which comprised 16 tabs and 45 pages, which the defendants contended comprised copies of the Applications, attached Bills and Objections in relation to the 16 matters filed in the period 1 November 1996 to 20 February 1997.
On 13 February 2014, following receipt by the plaintiffs of the Zwar February 2014 Affidavit and the "Amended Folder", the matter for hearing before Darke J on 13 February 2014, namely order 3 of the Young AJ May 2013 Orders, was resolved by the parties agreeing that the documents in the "Amended Folder" served by the defendants upon the plaintiffs on 12 February 2014 contained copies of the Applications, attached Bills and Objections thereto, filed in the 16 matters in the period 1 November 1996 to 20 February 1997. As a consequence, the parties agreed to consent orders in relation to order 3 of the Young AJ May 2013 Orders.
The defendants tendered the "Amended Folder" subject to the agreement which was marked by Darke J as "Exhibit A".
On 13 February 2014, Darke J made orders to give effect to the agreement reached between the parties and for amended Bills to be prepared which gave effect to the hourly rates the subject of the Street Mediation Agreement given effect to in order 1 of the Black J September 2011 Orders ("Darke J February 2014 Orders").
The Darke J February 2014 Orders provided that: "(a) The Court notes the agreement of the parties [Mr Preston and the Defendants] that the folder of documents comprising 16 Tabs and pages 1 to 456 (so numbered in the bottom right hand corner of each page) ("Folder"), which Folder is marked Exhibit "A" on the issue for determination by the Court today, namely, orders 2(a) and 2(b) made by the Court on 19 July 2013 contains: (a) the applications for assessment of costs (which, inter alia, included the Bill(s) of Costs) filed by the defendants [Defendants] with the Court on 1 November 1996 (10 such applications) and on 20 January 1997 (6 such applications), by which the defendants [Defendants] commenced the costs assessment proceedings identified in the Table below. The first plaintiff's [Mr Preston's] notices of objection filed by the first plaintiff [plaintiff] with the Court in each such cost assessment proceeding identified in the Table below on 11 December 1996 (in respect of the 10 applications filed with the Court on 1 November 1996) and on 17 February 1997 (in respect of 6 applications filed with the Court on 20 January 1997)": Date application filed Cost assessment proceeding number Folder (Exhibit A) Tab and pages 20 January 1997 90113/1997 Tab 2 pages 11 to 34 1 November 1996 91263/1996 Tab 3 pages 35 to 106 1 November 1996 91259/1996 Tab 4 pages 107 to 132 1 November 1996 91261/1996 Tab 5 pages 133 to 167 1 November 1996 91260/1996 Tab 6 pages 168 to 179 1 November 1996 91258/1996 Tab 7 pages 180 to 195 1 November 1996 91262/1996 Tab 8 pages 196 to 207 20 January 1997 90114/1997 Tab 9 pages 208 to 225 20 January 1997 90104/1997 Tab 10 pages 226 to 274 1 November 1996 91257/1996 Tab 11 pages 275 to 284 1 November 1996 91256/1996 Tab 12 pages 285 to 338 1 November 1996 91255/1996 Tab 13 pages 339 to 406 20 January 1997 90115/1997 Tab 14 pages 407 to 423 20 January 1997 90116/1997 Tab 15 pages 424 to 440 1 November 1996 91264/1996 Tab 16 pages 441 to 456

[68]

The Court made Orders 2 to 8: "2. Apart from costs orders previously made, each party bear its own costs between 9 August 2013 and today of and incidental to the hearing listed for today. 3. By 24 March 2014 the defendants will provide the plaintiff annotated copies of the bills of costs in the Folder (Exhibit A) which will: 3.1 Identify a designated code, whether each item of work described in each bill was undertaken by a partner, solicitor, secretary or paralegal (being the four categories in the mediated agreement). 3.2 Identify the name(s) of the partner, solicitor, secretary or paralegal and which items by number each such named person performed the work for (eg. "in this Bill [P] where appearing in annotated items 1‑10 means partner and in items 1‑7 the partner who performed the work was Leon Nikolaidis and in items 8‑10 the partner who performed the work was Michael Zwar"). 3.3 Amend the amount (if required) on each item in each bill to reflect the amount which should be charged for work performed by that designated person for the time recorded in that item at the hourly rate in the mediated agreement (eg if the hourly rate for a partner in the mediated agreement for the matter is $160 per hour and the item records 0.5 hrs then the amount charged should be $80.00 and if the amount recorded on the bill in that item is $100.00 then the amount appearing for that item on the bill will be amended by ruling through $100.00 and writing in $80.00 beside),(Annotated Bills). 4. By 7 April 2014 the plaintiff will notify the defendants in writing whether the plaintiff disputes in any of the Annotated Bills the amount recorded for any item on a mathematical basis only and, if so, correct it and resubmit it to the defendants (eg, for a rate of $X for a paralegal in the applicable matter if 15 minutes was recorded the amount should be $Z not the $Y proposed by the defendants). 5. By 14 April 2014, the parties will by this means correct any mathematical errors (Revised Annotated Bills). 6. By 23 April 2014 the defendants will prepare and serve on the plaintiff a further folder(s) which contains the Annotated Bills or the Revised Annotated Bills, which are paginated, such that the Annotated Bills or the Revised Annotated Bills can be inserted into the parties' copies of the Folder (Exhibit A) and in the Folder (Exhibit A) itself, immediately after the last page of the bill to which the Annotated Bill or Revised Annotated Bill is an annotation of. For example, if the bill is at pages 109 to 110 of the Folder (Exhibit A), then the Annotated Bill or Revised Annotated Bill shall be paginated with the numbers 110.1 and 110.2. 7. By 24 March 2014 the plaintiff will serve on the defendants a statement of issues with the plaintiff's position in summary form in respect of each issue and any notice of motion. 8. By 7 April 2014 the defendants will serve on the plaintiff an amended statement of issues which includes the defendants' position in summary form in respect of each issue (Amended Statement of Issues)."

[70]

14 August 2014: Mr Preston's Statement of Issues

On 14 August 2014, the plaintiffs served on the defendants their Statement of Issues with the plaintiffs' position in summary form in respect of each issue in compliance with order 7 of the Darke J February 2014 Orders ("Mr Preston's August 2014 Statement of Issues").
The Mr Preston's August 2014 Statement of Issues raised the following matters: "1. An issue is whether the plaintiff, in the course of the resumed costs assessment: a) may make objections or submissions concerning the defendants' bills of costs in addition to the objections prepared and filed in the 1990s; and b) inspect the defendants' original files to prepare the objections and submissions. The plaintiff's position is that he may prepare and provide to the costs assessor additional objections or submissions, and inspect the defendants' original files to prepare the objections and submissions. 2. If the answer to issue 1(a) is "yes", the plaintiff wants to consider whether, following the termination of the retainer between the parties in October 1993, the defendants created documents and placed them in relevant files to provide evidence of work claimed to have been done but which was not in fact done. The plaintiff's position is: a) The plaintiff is entitled to have a document examiner engaged by the plaintiff examine the defendants' original files, and the defendants must make the files available for this purpose. b) The plaintiff may provide to the costs assessor, as evidence, a report of the document examiner in support of a submission to the costs assessor that, following the termination of the retainer between the parties in October 1992, the defendants created documents and placed them in specified files. 3. If the answer to issue 1(a) is "yes, the plaintiff wants an opportunity to submit to the costs assessor that, in respect of certain items of work in the defendants' bills of costs: a) work claimed to be done was not done; b) time claimed to have been spent on the work was not spent; c) work was done without the plaintiff's authority or instructions; and d) work was duplicated by the defendants. The plaintiff's position is that he may make these submissions to the costs assessor. 4. Many of the defendants' bills of costs include disbursements for counsels' fees. If the defendants have not paid the counsels' fees, the defendants should not be able to recover the claimed disbursement from the plaintiff. The plaintiff's position is that he is entitled to investigate and raise this issue during the resumed costs assessment. 5. If the answer to issue 1(a) is "yes", the plaintiff wants an opportunity to make the following submission to the costs assessor. Between 1984 and the weeks before the termination of the retainer in October 1992, the defendants issued many accounts to the plaintiff and the plaintiff paid the accounts ("the Paid Accounts"). For any item in the defendants' bill of costs which claims for an item of work previously charged for in a Paid Account, the plaintiff is not liable to pay a second time for the item of work. 6. At the time of the termination of the retainer in October 1992, there was, or should have been but for the defendants' wrongdoing, an amount of the plaintiff's money in the defendants' trust account to pay for further work. If the costs assessor issues a determination in a certain amount at the conclusion of the costs assessment process and the defendants attempt to enforce the determination, the plaintiff will seek appropriate relief from the court."

[75]

17 June 2015: Paragraph 1 of the Preston February 2015 Motion fixed for hearing

On 17 June 2015, Registrar Walton fixed paragraph 1 of the Preston February 2015 Motion for hearing from Monday 26 October 2015 to Wednesday 28 October 2015, together with other pre-trial directions.
The hearing of the February 2015 Motion commenced on 26 October 2015 and continued until 28 October 2015, after which a series of directions were made for further procedural steps to be taken, further investigations to be pursued, and further submissions to be made. These various matters were attended to between October 2015 and October 2016.
During the hearing the Court raised with the parties that it was inapt for the Motion before the Court to claim final relief such as the declaration being sought under Supreme Court Act, s 75. Rather than give leave to amend the February 2015 Motion in the 1993 proceedings, the scope of which proceedings were in contest, the Court decided to give directions to turn the February 2015 Motion into fresh proceedings. In consequence, on 28 October 2015, the Court made the following orders: "8. The Court notes it is desirable to avoid procedural complications by permitting the plaintiff to file a Summons in parallel proceedings but this is a matter in which because of these circumstances it is open for the fees for the filing of the additional Summons be waived or remitted under Civil Procedure Regulation 2012, r 11. But the Court further notes the decision in the NSW Court of Appeal in Maxwell-Smith v Hall & Anor [2012] NSWCA 205 that the matter of remitting filing fees under that regulation is a matter for the Registrar in the first instance and so the Court will merely make the direction below. 9. I direct the plaintiff to file any Summons to give effect to what the Court has here noted within 7 days and to approach the Registrar in respect to that Summons as to the issue of waiving or in remission of that filing fee. 10. Once that Summons is filed I direct the plaintiff to prepare and jointly execute with the defendant consent orders, in those proceedings, for the evidence in these proceedings to be evidence in those proceedings."
Pursuant to the 28 October 2015 orders, the plaintiffs filed on 11 November 2015 a Summons which created the proceedings number 2015/331795, the 2015 proceedings. On 3 December 2015, the Court made orders that proceedings 2015/331795 be heard together with the proceedings number 1993/23395, the 1993 proceedings, and that evidence in one be evidence in the other.

[78]

The Firm's Submissions

The Firm argues that no limitation issue now arises. The Firm submits that the existing proceedings sustain their claim upon the bills of costs, which were commenced within time. After the Hulme J February 1995 Judgment, and the Hulme J 1995 Orders, the Firm submits only one issue remained to be determined in the proceedings: the quantification of the account between the plaintiffs and the defendants. The Firm submits that the Young J July 1996 Orders, referring the bills of costs out for costs assessment, were made in that context: namely, the quantification of the amount that the Preston interests owed to the Firm on the final state of the account between the parties, as would ultimately be found by the Court.
The Firm elaborated upon this argument. The defendants submitted that through the Young J July 1996 Orders the disputed question of the Firm's retainer was referred to the costs assessor, Mr Hattersley, for inquiry and report under Supreme Court Rules, Pt 72, r 8, so that issue would be determined in the proceedings as part of the quantification of the state of the account between the Firm and the Preston interests.
The defendants argue that the referral of these several bills of costs out to costs assessment and then the subsequent remission of the issue of the terms of the retainer back to the Court, followed by the Black J September 2011 Orders, giving effect to the Mediation Agreement about the hourly rates, were all directed to the quantification of the account between the plaintiffs and the defendants. The Firm submits that by this quantification, the Court would determine how much the Preston interests owed to the Firm.
The Firm submits that the Proceeding as constituted by the Summons and the reasons for judgment, commencing with the Hulme J November 1993 Judgment and proceeding through to the Black J September 2011 Judgment (and associated orders) have all been conducted on the basis that the justiciable controversy in the proceedings has been to determine the state of the account between the Preston interests and the Firm.
The Firm submits that following the Preston interests considering in the second half of 1994 the accounting report commissioned by Armstrong Wiley & Co, there was no need to determine the state of the account, or for any accounting. The Firm submits that it was agreed instead that the plaintiffs were liable to the defendants in an amount of $97,000, subject to the precise quantification of that liability by the referral to taxation or costs assessment, which it was subsequently agreed would be undertaken on the basis of the hourly rates being applied to the 16 matters agreed through the Mediation Agreement.
The Firm contends that given the above matters, together with the application of the principles of res judicata or issue estoppel to the prior judgments in the proceedings, the action to state the account between solicitor and client can proceed and no limitation is now able to be raised.

[79]

Submissions of the Preston Interests

The Preston interests put several answers to those submissions. The Preston interests contest the Firm's assertion that the issue which remained to be determined in the proceedings after the Hulme J 1995 Orders was the quantification of the liability of the state of the account between the plaintiffs and the defendants.
The Preston interests submit that Hulme J's December 1993 Orders indicate that the only issue which remained to be determined was a taxation of the Firm's bills of costs. The Preston interests submit that at the conclusion of a taxation of these bills of costs under the 1987 LPA, s 203, that a taxing officer might well have concluded that the amount to be paid in respect of each bill of costs was nil. This could have been for any number of possible reasons: the Firm did not do any work; the work done was outside the retainer; the work had previously been billed and paid for; the retainer was an entire contract and the work was not completed; payment for the work was conditional upon contingencies which had not occurred; or, the work was done and claimed for more than six years previously and the right to payment had already been extinguished under Limitation Act, s 63.
The Preston interests submit that Hulme J's December 1993 Orders did not prevent them from fielding one or more of these objections to a taxing officer, in support of a submission under the 1987 LPA, s 206(1) that the amount to be paid in respect of each bill of costs was nil.
The Preston interests submit that the Firm's argument that no limitation issue now arises really amounts to a contention that Hulme J's Orders involved: either, (a) a finding that the Preston interests were liable to the Firm for a sum of money, and that the remaining issue for determination was merely the quantification of that sum; or, (b) an admission by the Preston interests that they were liable to the Firm for a sum of money and that the only remaining issue was one of the quantification of the liability.
The Preston interests submit that the Firm has misconstrued Hulme J's orders. They submit: (1) that Hulme J made no such finding as in (a) above, and (2) that the Preston interests made no such admission, as in (b) above.
The Preston interests submit that the Firm's argument appears to turn upon the following words in the Hulme J February 1995 Judgment: "Following upon the plaintiffs' receipt of that report and consideration of the matter by accountants or other persons engaged on their behalf, the plaintiffs indicated they would no longer pursue the topic of the reference before Mr Needham. I think the only proper inference to be drawn from the plaintiffs' conduct in this regard is that the plaintiffs were conceding that the defendants' claim for some $97,000 was, on the basis which was then advanced, correct. Again I interpolate, this is without any taxation". [Emphasis added]
The Preston interests submit that Hulme J simply inferred from the material to which he referred in his decision that their prior conduct involved the specified concession. But the Preston interests submit that Hulme J's statement in the February 1995 judgment that they had made this concession: did not involve any finding of liability during a contested hearing on that issue and did not involve, the recording of any actual admission by the Preston interests. They contest that they made any such voluntary admission.
The Preston interests further submit: that even if it were found that such an admission had been made, it would have been made in 1993 or 1994, at a time when any cause of action on the bills of costs had not been extinguished by Limitation Act, s 63; that the concession Hulme J found did not involve a promise by the Preston interests not to rely later on Limitation Act, s 63; and, that Hulme J expressly qualified the admission with the words that it was "without any taxation", which indicate Hulme J was accepting that during the taxation the Preston interests were entitled to raise any matters they wished.
The Preston interests submit that, if they had made a concession, it was insufficiently specific to found an estoppel against the Preston interests now relying on Limitation Act, s 63 and there is no evidence that the Firm relied on the concession.
Moreover, the Preston interests submit that examination of the letter dated 15 November 1994 from their then solicitors and their conduct until February 1995, does not show any admission that the Preston interests were liable to the Firm for a sum of money.
The Preston interests observe that the concept expressed in the Firm's argument of "the quantification of a stated amount" comes from Barrett J's 2010 Judgment (at [58]), in which Barrett J was considering whether the orders made by Hulme J between 1993 and 1995 disposed of the proceedings in their entirety. The Preston interests submit that it is preferable to focus on the actual orders Hulme J made rather than Barrett J's later comments in 2010, as the former presents the issues for present determination and the latter were addressed to a different purpose. The Preston interests say that when Hulme J's orders are examined, it is clear that the controversy that remained was merely the taxation of the Firm's bills of costs.
The Preston interests further submit that the Firm's argument appears to assume that once Hulme J made orders between 1993 and 1995 that the Preston interests could no longer rely upon Limitation Act, ss 14 and 63 during the taxation process. But they submit that this cannot be right. They submit for example, if the Firm's bills of costs, which were initially served in late 1993, had included claims in respect of work done more than six years earlier than when the taxation took place, then the plaintiff could in objections subsequently served still have objected to payment for that work on the basis that the liability for it was by the time of the taxation statute-barred.

[80]

The Firm's Submissions in Reply

The Firm replies. The Firm submits: that the costs assessor will make a determination in the costs assessment in each of the 16 matters; and that that determination will then be set out in the certificate that the costs assessor issues to both the Preston interests and to the Firm: 1987 LPA, s 208J, as in force on 1 July 1994 (the new Part 11). The Firm says that it is then open to the Firm to file "a certificate in the office or the registry of the Court having jurisdiction or for the payment of the amount of money". Once the certificate is filed it is "taken to be a judgment" of that court for the amount of unpaid costs: the 1987 LPA (amended by the 1994 Amendments), s 208J(3).
The Firm submits: that the Firm's right to an amount of money will not arise until the account is finally stated and its quantum determined, when the costs assessment is completed. The Firm submits, in the alternative, that when the 10 applications for the attached bills on 1 November 1996, and 6 applications with attached bills on 20 January 1997, were lodged for assessment, the Firm commenced the costs assessment under the 1987 LPA, applying "taxation principles" as at 30 June 1994, conformable with the Young J 1996 Orders to determine the quantum of the Preston interests' liability to the Firm, in respect of all 16 matters. In so doing, the Firm should be taken to have commenced an "action" within the meaning of Limitation Act, s 11(1), a provision which defines "an action" as including "any proceedings in a court". The Firm submits that for Limitation Act, ss 14 and 63 purposes, this inclusive definition of "an action" in s 11(1) shows that "an action" can encompass something other than "proceedings in a court".
The Firm submits: the filing of the 16 applications for costs assessment with attached bills with the Court registry, paying a filing fee and engaging the Court's administrative process for the quantification of those bills qualifies as a Limitation Act, s 11 "action". The process that follows upon the filing of the applications for costs assessment has quasi-judicial characteristics: the costs assessor is an experienced legal practitioner, appointed by the Chief Justice, performs statutory functions, gives reasons for determinations, is subject to review, and produces a certificate capable of becoming a judgment upon filing.
The Firm submits: the costs assessor (and any review panel engaged later to conduct a review) carry out quasi-judicial functions, determining the legal rights which give rise to an enforceable judgment debt: Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 739.
The Firm submits: the innovation of a statutory costs assessment regime is "an action" within the meaning of Limitation Act, s 11: Windsurf Holdings Pty Ltd v Leonard; Carlson v Leonard; Wyvill v Leonard [2009] NSWCA 6 at [105] - [107] (per Sackville J) ("Windsurf Holdings"). The commencement of the 16 applications were an action for a cause of action in contract, as the Firm was seeking to have quantified the amount which they were entitled to be paid under their contracts of retainer, pursuant to which the legal services were provided.
The Firm submits: to the extent that McCallum J in Coshott v Barry [2012] NSWSC 850 ("Coshott v Barry") held that the lodging of applications for cost assessment does not amount to the bringing "an action" on a cause of action within the meaning of Limitation Act, s 11, the case is wrongly decided.
The Firm alternatively submitted that once the costs assessments are completed, and the costs assessor issues certificates, the Firm's right to register the certificates as judgments of a court of appropriate monetary jurisdiction gives rise, to "a cause of action to recover money recoverable by virtue of an enactment within the meaning of Limitation Act, s 14(1)(d). The commencement of that proceeding to register the judgment is "an action" within the meaning of Limitation Act, s 11(1).
The Firm's further alternative argument is that once the quantum of the account stated is ascertained through the costs assessments, having regard to the Hulme J 1993 Orders (as modified by the Young J July 1996 Orders and as further modified by the Black J September 2011 Orders), that even such "quantification of the account stated" gives rise to a "cause of action to recover money recoverable by virtue of an enactment" within Limitation Act, s 14(1)(d).
The Firm argues that no Limitation Act, s 63 extinguishment has occurred. The Firm submits that Limitation Act, s 63(2) enables the defendants to proceed with the "action", namely the existing costs assessments, so as to have their right or title to the monies established by the costs assessments and to have the quantification of the account stated, to determine the amount for which the Preston interests are liable to the Firm.
Moreover, the Firm submits that one of the "purposes of the action" (see Limitation Act, s 63(2)(a)) is to enable the Firm ultimately to file a certificate as to judgment. The Firm's right or title to the monies is established in the costs assessment "action", which may then be given effect by the filing of a certificate as a judgment. The Firm submits that none of these steps are statute-barred.
The Firm submits that even if Coshott v Barry is held to be correctly decided, the costs assessments do not lack utility and should still proceed. Their continuing purpose is to quantify the liability of the Preston interests to the Firm as part of the account sought to be stated in the proceedings to give effect to the Black J September 2011 Orders, which varied the Young J 1996 Orders, which in turn varied the Hulme J 1997 Orders.
Finally, the Firm submits that the quantification of the liability of the Preston interests to the Firm through the costs assessment provides the basis for the defendants to maintain their solicitors' lien over the original files. The Firm submits the costs assessment should proceed and is not beyond the power of the costs assessor: Coshott v Barry at [55].

[81]

Consideration

The defendants advance as a candidate to qualify as "an action" having been brought on their behalf, the filing of applications for bills of costs in each of the 16 matters that occurred in October and November 1996 after the Young J July 1996 referral Orders. The defendants' primary contention turns on the characterisation of these applications, which are described in full in the factual narrative above.
The applications were lodged to conform with the requirements for an assessment of costs under the 1987 LPA after the commencement of the 1994 Amendments on 1 July 1994.
In my view, authority is clear that such applications are not an "action" for the purposes of the Limitation Act, s 11 but are the mere initiation of an administrative process conducted by Court-appointed officials. The filing of these applications in October/November 1996 did not constitute "an action" that was "brought on the cause of action" before the expiration of the limitation period fixed under Limitation Act, s 14: see Limitation Act, s 63(2).
Whilst it is true as the defendants point out, that in Limitation Act, s 11(1) "action" is defined as follows, "action" includes any proceedings in a Court", thereby contemplating the possibility that non Court proceedings may be an action, authority of this Court makes clear that a lodged application for costs assessment under the 1994 Amendments to the 1987 LPA does not constitute the bringing of an "action" before the expiration of a limitation period or a claim in contract, or quantum merit, for legal costs: Coshott v Barry [2012] NSWSC 850.
But before considering the position when these applications were made in late 1996, it is useful first to make clear by reason of the conduct of these parties that this issue should be determined, as the parties regarded it at the time, as a referral out entirely within the regime of the 1994 Amendments. There was some discussion in submissions about the statutory taxation regime which applied under the 1997 LPA before the 1994 Amendments. But the Young J July 1996 Orders and the lodging of the relevant applications in October and November 1996 all take place after the 1994 Amendments. The unamended 1987 LPA can be ignored. This consistent with the findings of Barrett J in the March 2010 Judgment, at [66], to the following effect: "A change of course occurred as a consequence of the alteration of the statutory scheme with effect from 1 July 1994. As I have noted, the plaintiffs acted outside the scope of these proceedings by resorting to the new system of assessment of costs introduced by the Legal Profession Reform Act 1993. That prompted the move by the defendants, by notice of motion filed on 14 March 1996, to have the taxation that was already in train and the subsequently instituted assessment process "consolidated". That in turn led to the decision of Young J on 25 July 1996 the effect of which was to halt the 1993 steps directed towards taxation and to allow the assessment under the new regime to go ahead (his Honour noted that transitional provisions were to the same effect in any event). By that time, the question about the terms and scope of the retainer had arisen in stark form and was before the court. The court, by the orders of Young J, brought that question within the confines of this proceeding and referred it out to a referee, being the costs assessor in whose hands the assessment task already was (see order 4 at paragraph [27] above)."
The 1987 LPA after the 1994 Amendments relevantly provided for system of costs assessment which could properly be described as an administrative process. The 1994 Amendments to the 1987 LPA in Part 11, Division 6 provided an administrative regime for the assessment of costs through a new officer created within the Court, the Manager, Costs Assessment within the Court's administrative structure, the Manager, Costs Assessment. Applications for assessment of costs in bills of costs could be made by clients (s 119), by one legal practitioner instructing another (s 200), by a barrister or solicitor giving a bill of costs (s 201), and the process also allowed for the assessment of party/party costs arising in proceedings (s 202).
The legislation set out in s 203 how the application was to be made: "203 How is an application to be made? (1) An application for assessment is to be made in accordance with the regulations and is, subject to subsection (4), to be accompanied by the fee prescribed by the regulations. (2) The application must authorise a costs assessor to have access to, and to inspect, all documents of the applicant that are held by the applicant, or by any barrister or solicitor concerned, in respect of the matter to which the application relates. (3) The application must contain a statement by the applicant that there is no reasonable prospect of settlement of the matter by mediation. (4) The Manager, Costs Assessment may waive or postpone payment of the fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants. (5) The Manager, Costs Assessment may refund the fee paid under this section either wholly or in part if satisfied that it is appropriate because the application is not proceeded with."
Once received, the Manager, Costs Assessment refers each application for assessment to a costs assessor to be dealt with under Division 6 (s 206). Costs assessors are required (by s 208) to give a degree of procedural fairness by way of written submissions but are otherwise not bound by the rules of evidence and may inform themselves as they see fit (s 208).
Division 6, subdivision 4 provides for the enforcement of the assessment through a process of giving certificates of determination under s 208J, which relevantly provides as follows: "208J Certificate as to determination (1) On making a determination, a costs assessor is to issue to each party a certificate that sets out the determination. (1A) A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process. (2) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction. (3) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed. …"
The Legal Profession Regulation 1994 in Regulation 80(3) relevantly provided for the application of the new Part 11 after the 1994 Amendments in respect of applications made after 1 July 1994, as follows: "80 Bills or orders before 1 July 1994 … (3) If, however, application is made on or after 1 July 1995 (whether for the taxation or assessment of the costs), the costs are to be assessed in accordance with new Part 11 of the Act. However, the former taxation principles apply to any such assessment and that Part is to be construed accordingly."
After Young J's referral to costs assessment in the Young J July 1996 Orders, the assessment was clearly being conducted under Regulation 80(3) as a costs assessment but to the extent that "former taxation principles" might have borne upon the process of assessment they were to be applied.
In Coshott v Barry [2012] NSWSC 850 (at [43]), McCallum J concluded that the making of an application for costs assessment under the 1987 LPA as it operated after the 1994 Amendments "does not immunise the right and title of a solicitor to bring a claim in contract for unpaid legal fees from the application of the Limitation Act". Her Honour's logic in reaching this conclusion, is compelling and I see no reason to disagree with it.
In Coshott v Barry her Honour was considering a situation which in my view was on all fours with the present case. There the clients, the Coshotts, had retained solicitors, Messrs CKB Partners but terminated their retainer in about August 2003 as a result of which legal costs charged by CKB Partners remained unpaid. No legal proceedings were ever commenced by CKB Partners to recover those costs. But in six separate matters CKB Partners applied for an assessment of their costs under the 1994 Amendments, s 201. Each application was determined by a costs assessor and a certificate of determination was issued as contemplated by s 208J(1). But in only two of the matters the certificates had been filed to take effect as judgments as contemplated by s 208J(3) (one in the Local Court and one in the District Court). CKB Partners sought to enforce the six costs assessments but the clients contended that both the filed and unfiled certificates were statute-barred by a combination of Limitation Act, ss 14(1)(a) and 63.
It was common ground that the two certificates were filed to take effect as judgments within six years of the date on which the defendants solicitors' cause of action first accrued. As to the remaining four certificates it was common ground that no legal proceedings were commenced and no judgment obtained within six years of the date on which the cause of action contract first accrued. But it is equally evident from her Honour's judgment that it was common ground that applications for costs assessment had been made within the limitation period in respect of all six certificates.
Her Honour concluded (at [58]) that the four certificates that had not been filed related to extinguished debts and should not be filed in the Registry, but the two judgments already obtained were enforceable.
Her Honour reached this conclusion by a reasoning which in my view is directly applicable to the present proceedings.
Under the heading "Does the Costs Assessment System Sit outside the Reach of the Limitation Act?" her Honour said the following at [30]- [43]: "Does the costs assessment system sit outside the reach of the Limitation Act? [30] As already noted, it was submitted by the defendants that the effect of the Legal Profession Reform Act was to provide solicitors with a choice as to the means of recovering unpaid legal costs. They could either sue or seek an assessment and have the certificate of determination filed in the Registry. In that context, the defendants submitted: 'It is significant as a matter of statutory interpretation that Parliament made no reference to any limitation issue as to the right of a legal practitioner to seek assessment of costs. In fact the only limitation provision relating to the costs assessment system is that contained in s 199 which limits the time in which a client who has paid some or all of the costs, may seek an assessment.' [31] Mr Turner noted the terms of s 68A of the Limitation Act, which provides: (1) Where in proceedings before a judicial tribunal a question arises as to extinction under this Division of a right or title, a party to the proceedings shall not have the benefit in those proceedings of any such extinction of that right or title unless, as part of the proceedings, the party has pleaded or otherwise appropriately claimed in accordance with the procedures of the tribunal that the right or title has been so extinguished. (2) In subsection (1), a reference to proceedings before a judicial tribunal is a reference to proceedings before a court or person authorised by law or by agreement to bind the parties to the proceedings by a decision on a question arising in the proceedings as to whether or not a right or title has been extinguished under this Division. [emphasis added] [32] Mr Turner submitted that, since the costs assessment system introduced by the Legal Profession Reform Act did not make provision for the Limitation Act to be raised as a defence or plea in bar to the registration of an assessment certificate as a judgment, it must have been intended to provide a new procedure for recovery of costs which would not be subject to the Limitation Act. [33] It is certainly difficult to articulate a coherent analysis of the operation of the costs assessment system without giving some oxygen to that argument. Section 68A of the Limitation Act presupposes the existence of a procedure, in the relevant judicial tribunal, for determining the issue whether the right or title underlying the cause of action sought to be pursued has been extinguished. Yet s 208J(3) of the Legal Profession Act 1987 operates as a deeming provision (upon the filing of a certificate in the Registry) and so affords no practical opportunity to invoke any such procedure. The logic of the legislation is unsatisfactory to that extent. [34] However, the conclusion that the recovery of legal costs by means of the costs assessment system attracts no statutory time bar is even more problematic, in my view. In the first instance, it does not sit very comfortably with the decision of the Court of Appeal in Coshott v Lenin [2007] NSWCA 153, considered below. [35] Mr Turner placed reliance on a different judgment involving the same parties: Lenin v Coshott[2007] NSWSC 630. That was a decision of Bell J published on 21 June 2007 (when her Honour was a puisne judge of this court). It may be acknowledged that, at first blush, the decision appears to provide some support for the position of the defendants in the present case. However, that impression does not survive a careful reading of her Honour's judgment. In that case, it was Mr Coshott who was in the position of being a solicitor pursuing unpaid legal costs. Mr Lenin had been his client. Mr Lenin sought to restrain Mr Coshott from proceeding with applications for the assessment of legal costs incurred some 14 years earlier. [36] It was submitted on behalf of Mr Lenin that "the costs assessment proceedings" were statute barred by operation of the Limitation Act and that any right entitling Mr Coshott to bring the applications for costs assessment was extinguished before the applications were filed: see [16]. However, the judgment records (at [17]) that counsel appearing for Mr Lenin advanced no submissions in support of that contention. Counsel referred to the decision of Kirby J in Ryan (cited above), which he acknowledged was against the contention that the costs assessments were time barred. [37] It is difficult to judge whether that concession was properly made in the circumstances. The reference to the decision in Ryan suggests that the concession was directed to the question of the costs assessor's powers. It may have been intended to acknowledge that a costs assessor has no power (and therefore no occasion) to determine whether the relevant right has been extinguished by the statute. However, the decision in Ryan did not establish that the costs assessment system allows a claim in contract to be pursued after the expiration of six years. In Ryan, the solicitors had commenced proceedings in the Local Court (well within the limitation period) to recover the legal costs which Mr Ryan had refused to pay. The decision does not otherwise appear to have any bearing on the limitation issue. [38] In any event, apparently in light of the concession made, Bell J did not consider the Limitation Act argument in Lenin v Coshott. Her Honour made reference to the existence of separate proceedings commenced by Mr Coshott against Mr Lenin in the District Court seeking to recover his costs from Mr Lenin on the basis of a claim in quantum meruit. In those proceedings, Neilson DCJ dismissed Mr Coshott's claim: Coshott v Lenin [2006] NSWDC 139. His Honour stated at [53]: Accordingly, if I may succinctly state what my reasoning process is. Firstly, that the cause of action alleged by the plaintiff does not exist. Secondly, if it did exist it is only still the remedy that was formerly called quantum meruit. Thirdly, that even if it did exist it would still be caught be s 14(1)(a) of the Limitation Act 1969. [39] In disposing of Mr Lenin's application regarding the costs assessment proceedings, Bell J noted that Mr Coshott had appealed against the decision of Neilson DCJ. In fact, the appeal had been determined on 20 June 2007, the day before Bell J published her decision. The Court of Appeal dismissed the appeal: Coshott v Lenin [2007] NSWCA 153. That is the decision relied upon by the plaintiff in the present case. The court held that Mr Coshott's belated claim for remuneration, "however packaged", was barred by the Limitation Act: at [14] per Mason P; Spigelman CJ and Campbell JA agreeing at [1] and [19] respectively. [40] The decision of the Court of Appeal ought to have been brought to the attention of Bell J before her Honour published her decision the following day. Ironically, the result appears to be that, whilst Mr Coshott succeeded in defeating Mr Lenin's application to restrain the costs assessments process as being based on extinguished debts, Mrs Coshott's present application to restrain a like process is not defeated by that line of jurisprudence. [41] In my view, the defendants' submissions in the present case misconceive the juridical foundation of the costs assessment system. A solicitor's entitlement to lodge an application for a costs assessment is not a source of right or title in itself. It is an aspect of the regulation of the legal profession under the Legal Profession Act 1987. The Act creates an administrative mechanism for quantifying legal costs in a variety of circumstances, some of which raise no limitation issue (such as costs ordered by a court). To the extent that it provides for the assessment of costs payable under contract, I do not think it alters the fundamental nature of the right and title to those costs. [42] Support for that view may be found in the decision of the English Court of Appeal in Coburn v Colledge [1897] 1 QB 702 at 705-706, where Lord Esher MR said: Before any enactment existed with regard to actions by solicitors for their costs, a solicitor stood in the same position as any other person who has done work for another at his request, and could sue as soon as the work which he was retained to do was finished, without having delivered any signed bill of costs or waiting for any time after the deliver of such a bill. Then to what extent does the statute alter the right of the solicitor in such a case, and does the alteration made by it affect or alter the cause of action? It takes away, no doubt, the right of the solicitor to bring an action directly the word is done, but it does not take away his right to payment for it, which is the cause of action. The Statute of Limitations itself does not does not affect the right to payment, but only affects the procedure for enforcing it in the event of dispute or refusal to pay. Similarly, I think s 37 of the Solicitors Act, 1843, deals, not with the right of the solicitor, but with the procedure to enforce that right. [43] I have concluded that, subject to s 208J(3), the making of an application for a costs assessment under the Legal Profession Act 1987 does not immunise the right and title of a solicitor to bring a claim in contract for unpaid legal fees from the application of the Limitation Act."
The Court agrees with her Honour's conclusion at [43]. Her Honour then turned to the procedure for filing a certificate of assessment which she considered at [44] - [49] as follows: "Procedure for filing a certificate of assessment [44] In my view, however, the position of the solicitor is plainly protected upon the filing of a certificate of assessment in accordance with s 208J(3). I have concluded that the two judgments were properly obtained and are not liable to be set aside. The procedure allowed for is to file the certificate "in the office or registry of a court having jurisdiction to order the payment of that amount of money". The effect of filing is that, without further action, the certificate is taken to be a judgment of that court for the amount of unpaid costs determined by the costs assessor. [45] It is necessary also to consider the provisions of the Civil Procedure Act and the Uniform Civil Procedure Rules. Section 133 of the Civil Procedure Act provides that a judgment may not be enforced until it has been entered in accordance with the rules. The section expressly extends to any award of which a certificate may be filed or registered in the court under any other Act or law. Accordingly, the combined effect of s 208J(3) of the Legal Profession Act 1987 and s 133 of the Civil Procedure Act is that a certificate, upon filing in the registry of a court, is taken to be a judgment of the court but is not enforceable until it has been entered in accordance with the rules. [46] Rule 36.10(1) of the Uniform Civil Procedure Rules provides: A costs assessor's certificate: (a) may be filed in the proceedings to which it relates, or (b) may be filed in fresh proceedings, whether in the same court or another court. [47] In my view, the sensible reading of those provisions, taken together, is that in a case where there is no existing proceeding to which the certificate relates, the filing of the certificate is taken to be or to commence a fresh proceeding (in which the only step required to render the judgment enforceable is for it to be entered in accordance with the rules). [48] As already noted, the problem remains that there is no occasion for the client to plead the limitation defence, and that is an anomaly. It may be noted, however, that s 208J(3) applies "in the case of an amount of costs that has not been paid". In my view, an implicit premise of its application is the existence of a binding obligation to pay (which would not include a debt that had been extinguished under the Limitation Act due to the passage of time). [49] The practical solution is that the client has the opportunity to raise the limitation point during the assessment and, if it is not accepted by the assessor, to seek review or appeal." "
Somewhat similar issues arose in this case concerning the pleading of the taking of the limitation point but it has squarely been taken both by the Points of Claim served early in 2015 and by the filing of the February 2015 Motion and the commencement of the 2015 proceedings. Those processes satisfy the requirements of Limitation Act, s 68A to the requirement to plead the limitation point.
McCallum J then considered the question "Have the defendants brought an action on the cause of action?" and at [50] - [52] her Honour said as follows: "Have the defendants brought an action on the cause of action? [50] The defendants submitted, in the alternative, that if costs assessments are subject to the Limitation Act, it is sufficient compliance that the application for assessment is lodged within six years of the cause of action occurring to the solicitor. It was noted in that context that the definition of "action" in the Limitation Act is an inclusive definition: s 11(1). [51] Separately, Mr Turner submitted that s 68A(2) of the Limitation Act assists, since it refers to a judicial tribunal as including a court or person authorised to bind the parties to proceedings by a decision on a question arising in the proceedings. That submission overlooks the remaining words of s 68A(2). A "judicial tribunal" within the meaning of that section must be authorised to bind the parties by a decision as to whether or not a right or title has been extinguished under division 1 of Pt 4 of the Limitation Act. Mr Turner did not submit that a costs assessor has power to bind the parties by a decision as to that issue. I do not find any support for Mr Turner's submission in s 68 A. [52] The short answer to that contention is that it is the underlying right and title to the debt, and not the cost assessment process, which is subject to the Limitation Act. Mr Turner acknowledged that a costs assessment is a non-curial proceeding. I am not satisfied that the lodging of an application for a costs assessment amounts to bringing an action on a cause of action within the meaning of the Limitation Act."
I respectfully agree with her Honour's conclusion in [52]. This case, in my view, is indistinguishable in principle from the facts McCallum J considered in Coshott v Barry: there were no proceedings commenced by the defendants within the applicable limitation period (apart from the costs assessment applications) and the costs assessments were not complete to the point of resulting in the entry of judgment.
Her Honour then drew her conclusion, at [53], that the solicitors' right and title to the debts quantified in the four certificates that had not been filed was extinguished. But her Honour rejected the argument that the certificates issued by the costs assessors are ultra vires or that the costs assessors had no jurisdiction to issue them. Her Honour concluded that the certificates may serve broader purposes than enforcement of a debt: they may be relevant to the enforcement of a lien claimed by the client's files. But her Honour did indicate that in respect of an incomplete assessment in respect of an extinguished debt "a costs assessor could properly decline to undertake the assessment" (at [55]).
Her Honour's observations that the costs assessment is not ultra vires may have relevance in these proceedings to questions of the further assessment of costs of the assessment and what consequential relief is appropriate in this case. These are matters for future debate after the parties have had an opportunity to consider these reasons.
The Firm seeks to repel the application of Coshott v Barry in part by reference to observations of Sackville AJA in Windsurf Holdings at [105] - [107]. There the Court of Appeal was considering the definition of "action" in the Limitation Act (Qld), s 5 which is in substantially similar terms to the definition in the Limitation Act, s 11. Where his Honour said in a judgment (agreed by Beazley JA (as her Honour then was) and Bell JA (as her Honour then was)): "[105] The definition of "action" in s 5 of the Limitation Act (Qld) is broad, in that it includes "any proceeding in a court of law". This definition was taken from s 31 of the Limitation Act 1939 (UK) ("Limitation Act (UK)"). The English Court of Appeal has attributed the inclusion of this definition to the fact that many of the proceedings dealt with by the Limitation Act (UK), such as actions for foreclosure and redemption, were commenced by originating summons and not by the filing of a writ: WT Lamb & Sons v Rider [1948] 2 KB 331at 335 and 338 per curiam; Tonkin v Johnson [1999] 1 Qd r 318 at 325 per McPherson JA (with whom Williams and Cullinane JJ agreed). [106] Whatever the historical reasons for including the definition of "action" in the Limitation Act (UK), it has received a broad construction. Thus in China v Harrow Urban District Council [1954] 1 QB 178, the Court of Appeal held that the issue of a distress warrant as a means of recovering rates was an "action" within the definition. This was so notwithstanding that it was settled law that no action lay for the recovery of rates and that the only method for recovery was that laid down in the Poor Relief Act 1601, namely by application to the justices for a distress warrant: at 183 per Lord Goddard CJ. The language used in the definition showed that it was intended to apply to proceedings "to which the term 'action' would be inapplicable": at 185 per Lord Goddard CJ. The Court was not troubled by the apparent inaptness of the expression "cause of action" in the equivalent to s 11 of the Limitation Act (Qld), when applied to proceedings for a distress warrant to enforce an obligation to pay rates. Although there was no cause of action in the usual sense, there was a "cause of proceeding in a court of law": at 187 per Sellers J. [107] The approach taken in China v Harrow UDC is consistent with Lord Denning MR's observation, in another context, that "any application to the court, however informal, is a 'proceeding'": Harkness v Bell's Asbestos and Engineering Ltd [1967] 2 QB 729 at 735. It was held in that case that an application for leave to extend time was "a proceeding" in its own right and thus attracted a power to cure irregularities in "proceedings"."
But the Court of Appeal in Windsurf Holdings was not considering the point in issue both in this case and in Coshott v Barry. Sackville AJA's observations seem to be predicated upon an action or a proceeding taking place "in a Court". But the point in McCallum J's analysis is that a costs assessment is an administrative process, not an application in the Court.
This deals with the Firm's primary argument that the defendants have commenced "an action" within time under the Limitation Act. But the defendants pursued a number of secondary arguments that in my view are not persuasive but require brief analysis and consideration.

[82]

(2) The Character of the 1993 Proceedings?

Drawing upon paragraph [58] of the Barrett J March 2010 Judgment the Firm submits that the whole context and purpose of the 1993 proceedings was "directed towards a final determination of the state of the account between the plaintiffs and the solicitors". The submission is put in a number of different ways but in substance amounts to a contention that the 1993 proceedings themselves together with the Young J July 1996 Orders referring the bills of costs for assessment were in substance a kind of action for an account stated upon which the defendants, the Firm, could now maintain and rely upon as an action brought within the applicable limitation period. In my view there are several flaws with this argument.
The 1993 proceedings were not brought by the defendants. They were brought by the plaintiffs. The 1993 proceedings are not an action "brought on the cause of action" such that the "expiration of the limitation period does not affect the right or title of the plaintiff to the debt, damages or other money" (emphasis added) within Limitation Act, s 63(2). Limitation Act, s 63(2) contemplates, as might be expected, that the person with the cause of action must bring the action in question, as a plaintiff. That is not what has happened here and the Firm cannot claim the benefit of Limitation Act, s 63(2).
The Firm's submissions somewhat blur the procedural reality of these proceedings by suggesting that really the Court is considering a kind of cause of action in account stated of the well-known type: Camillo Tank SS Co Ltd v Alexandria Engineering Works (1921) 38 TLR 134. But this is not such a case and never was. As Barrett J comprehensively analysed in the Barrett J March 2010 Judgment ([56] - [61]), all that remained of these proceedings after their general dismissal was the quantification of solicitor/client costs, the subject of paragraphs 1 and 2 of the Summons. The referral out had been cancelled. The client was no longer asserting that any of the bills of costs had been paid on mutual account. The sole issue remaining was a process of administrative quantification. But that process was incomplete when the Firm's cause of action in contract expired without the Firm having commenced its own proceedings.
This is not an unjust result. It was open to the Firm to put on a Cross-claim for legal fees in the proceedings pending the outcome of the costs assessment.
The Firm's argument that the Hulme J February 1995 Judgment involves some kind of finding that the plaintiffs owed the defendants $97,000 is in my view a misconstruction of the Hulme J February 1995 Judgment. In the controversial sentence in question "I think the only proper inference to be drawn from the plaintiffs conduct in this regard is that the plaintiffs were conceding that the defendants' claim for sum $97,000 was, on the basis which was then advanced, correct" is merely in my view a recording of the obvious fact in context that the Preston interests were no longer seeking on an account to contend that they had partly paid some of these bills on a running account. It is not a finding that $97,000 is then owing from client to solicitor. The statement is clearly qualified by his Honour's observation that his statement is made on the basis "this is without any taxation" which mean that all of the relevant arguments may be fielded on taxation to reduce the amount owing potentially even to nil.
Nor can it be said that there is any admission on the Preston interests path that they owed $97,000 to the Firm. The only possible evidentiary basis for such an admission is the letter of 15 November 1994 which in my view contains no such admission. In any event Hulme J does not appear to be expressly referring to that letter but is simply referring to the plaintiff's withdrawal from the reference before the Hon. D. Needham QC.

[84]

(4) Ancillary issues

Two ancillary issues arise. The first is whether in the further consideration of the residue of these proceedings a costs capping order can be made. The second issue is whether these proceedings are suitable for the making of a specific gross sum costs order.
Costs Capping. The parties have each expended substantial financial and personal resources in the proceedings. The parties estimated in oral submissions that the amount spent on each side over the past 24 years may even be $1.5 million. The Firm initially sought $95,749.40 from the Preston interests. The parties' conduct in the proceedings has been far from proportionate.
The Court asked the parties whether a costs capping order should be made under Uniform Civil Procedure Rules 2005 ("UCPR"), r 42.4. The Court may under UCPR, r 42.4, either on a party's application or at its own motion, specify the maximum costs recoverable by one party from another. UCPR, r 42.4 provides: "42.4 Power to order maximum costs (1) The court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another. (2) A maximum amount specified in an order under subrule (1) may not include an amount that a party is ordered to pay because the party: (a) has failed to comply with an order or with any of these rules, or (b) has sought leave to amend its pleadings or particulars, or (c) has sought an extension of time for complying with an order or with any of these rules, or (d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap: (i) progress of the proceedings to trial or hearing, or (ii) trial or hearing of the proceedings. (3) An order under subrule (1) may include such directions as the court considers necessary to effect the just, quick and cheap: (a) progress of the proceedings to trial or hearing, or (b) trial or hearing of the proceedings. (4) If, in the court's opinion, there are special reasons, and it is in the interests of justice to do so, the court may vary the specification of maximum recoverable costs ordered under subrule (1)."
The object of that rule is to keep the legal costs that parties expend on litigation proportionate to the importance and complexity of the matters in issue. Civil Procedure Act 2005 ("CPA"), s 60 reinforces that purpose. CPA, s 60 states that in any proceedings, "the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute". The function of this provision is to "put in the Court's hands a brake on intemperate and disproportionately expensive conduct of proceedings": Sherborne Estate (No. 2):Vanvalen v Neaves [2005] NSWSC 1003; 65 NSWLR 268 ("Sherborne Estate") at [29] (Palmer J). The effect of the provisions (CPA, s 60 and UCPR, r 42.4) together is to endorse proportionality as central to the just and efficient conduct of civil proceedings: Lownds v Home Office [2002] 4 All ER 775.
In Sherborne Estate at [24], Palmer J concluded that UCPR, r 42.4(1) allowed an order capping the maximum costs recoverable to be made only in advance of a hearing, but not after the hearing. His Honour concluded that on the basis that subrules (2)-(4) only make sense upon that construction. But the Court of Appeal in Nudd v Mannix [2009] NSWCA 327 ("Nudd") held that the Court did have the power to make an order capping costs at the end of a hearing. Handley AJA (with whom McColl JA and MacFarlan JA agreed) said that that power to make an order capping costs, even retrospectively, was expressly conferred by UCPR, r 42.4(1).
The jurisdiction to make retrospective costs capping orders should be carefully exercised. The parties will have a general expectation that, if successful in the proceedings, they will be able to substantially recover their costs. But that expectation must be tempered by a recognition that UCPR, r 42.4 powers have long been available and may be exercised.
The Court may not be precluded from making an order under UCPR, r 42.4 even at this late stage, if such an order would serve a useful purpose. Neither party sought such an order at the hearing. But now the Court has given judgment the position may have changed. The Court grant of liberty to apply encompasses one or other party seeking to put submissions on this issue.
Specific Gross Sum Costs Orders. This application was carefully argued but strongly contested. As these proceedings already show, these parties have immense capability to protract arguments about costs assessment. Costs orders have not yet been made; they are a matter for further argument. It is desirable for the parties to bring these proceedings to an end. If final costs orders were to be made after this judgment, further arguments may be reduced if the Court were to make a specified gross sum costs order under CPA, s 98(4)(c).
The principles for the making of specified gross sum costs orders instead of assessed costs are now well settled. CPA, s 98(4)(c) is expressed in general terms and is not limited to cases of a particular class or type: Australasian Performing Rights Assoc Ltd v Marlin [1999] FCA 1006. The power to award a CPA, s 98(4)(c) specified gross sum instead of assessed costs is exercised whenever circumstances warrant its exercise; the purpose of the rule is to avoid the expense, delay and aggravation arising out of taxation: Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119.
Such orders are not uncommonly made in situations, where the party against which costs orders have been made is not of financial substance and substantial further costs would be expended in assessing the costs orders so made: Hamod v New South Wales [2011] NSWCA 375 at [816] - [818].
This is not obviously such a case. But this jurisdiction is potentially apt here for other reasons. The Court has just given judgment on a costs assessment that has lasted a generation. Generating another costs assessment between these parties carries clear risks.
Therefore, if and when costs orders are made, the Court would consider making a gross sum costs order under CPA, s 98(4)(c). The Court has not decided it will make such an order, or indeed what costs orders it will make. One or other party may seek a special costs order. But either side may wish to apply to take advantage of the Court's useful CPA, s 98(4)(c) jurisdiction in due course.

[85]

Conclusions and Orders

For the reasons given above, the Court has decided to make the declarations the plaintiffs seek in the 2015 proceedings. That should be enough to bring the 1993 proceedings to an end. Any further steps on the costs assessment would be futile. Even if the costs assessments were allowed to proceed, the defendants can neither bring them to completion in the form of a judgment, nor bring any further action for recovery of any final quantification of their 1992 bills of costs on assessment, as any such action would be barred by Limitation Act ss 14 and 63.
The plaintiffs also seek the return of their files to them. Whether that order is still pressed and, if so, how it should be formulated are unclear. The files may have no significance any more. The Court will give the parties an opportunity to see if they can yet agree on consequential orders for the return of the plaintiffs' files or on some other mutual resolution of this issue. If they cannot agree, the Court will consider any remaining contest on this issue.
The plaintiffs have been substantially successful. Costs would normally follow the event. And the plaintiffs seek costs and interest on costs. But this case has its unique features and, as mentioned above, one or other party may seek a special costs order. So the Court will provide an opportunity to hear the parties' submissions about costs.
The Court therefore makes the following declarations, orders and directions: 1. Declare that the defendants' entitlement to costs the subject of the bills of costs referred to in the orders made by the Court on 13 February 2014 in proceedings No 1993/23395 is extinguished by the operation of Limitation Act 1969, ss 14 and 63. 2. Direct the parties to consult and to bring in further short minutes of order to deal with any consequential relief and otherwise to give effect to these reasons; 3. If the parties cannot agree on a form of short minutes of order to meet the requirements of order (2), then they are ordered to provide their respective draft orders to the Court by 5.00pm on 6 December 2017; 4. Appoint 8 December 2017, or such other mutually convenient date as the parties arrange with my Associate, for further directions in relation to hearing argument about any consequential orders and issues of costs; and 5. Grant liberty to apply.

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