Remely v Vandenberg

HOLMES JA: On the 13th January 2009, the applicant, Mr Remely, filed an application entitled "Application for review of decision in cost certificates." It relates to three costs assessments, the first concerning costs ordered by the President, Justice Fraser and Acting Justice of Appeal Mackenzie on the 20th May 2008, the second relating to an order of Justice Keane on the 20th May 2008 and the third an order made by Justice Martin in the Trial Division on 28th May 2008. Issues related to the third were thought more appropriately dealt with in the Trial Division. I understand the application so far as it concerns that certificate is presently listed to be dealt with in the Trial Division on the 2nd March 2009.

Today Mr Remely sought an adjournment of his application together with a further application, also listed for hearing today, for orders for disclosure of files provided to the costs assessor by the solicitor for the respondents, the solicitor/client agreement between the respondents and their solicitor and proof of payments to counsel. He said that he had not had time to prepare or to formulate his outline of argument. He conceded in his affidavit in support of his application for an adjournment, however, that he was informed that the two matters were set down for today on either the 4th or 5th of February, leaving a time space of at least 11 days.

I refused the application for an adjournment and indicated that I would proceed with the substantive applications. Mr Remely has left the Court and has, it seems, not wished to be heard on the substance of those applications. Mr Dickson, for the second respondents, has made submissions.

The "Application for review of decision in costs certificates" as it is entitled, seeks two orders in the first instance, that a new costs assessment be carried out in compliance with Uniform Civil Procedure Rule 703(3), and that a different costs assessor be appointed to carry out the new assessment. An alternative order is sought: that the costs assessor be directed to provide reasons as required under Rule 738 of the Uniform Civil Procedure Rules.

The application for disclosure, as I have already indicated, seeks material before the costs assessor. Taking that application first, Rule 209 applies the disclosure rules to a proceeding started by claim or ordered to continue as if started by claim, or if the Court directs, a proceeding started by application. This proceeding, that is to say, the appeal, was started by a notice of appeal which does not meet any of those descriptions. It does not seem that the application for disclosure as brought under the Rules is competent.

On the other hand, Rule 742(6) of the Uniform Civil Procedure Rules gives me power, on an application for review of a decision included in a costs assessor's certificate of assessment, to give any direction I consider appropriate, which could extend to orders for provision of documents.

It is appropriate, therefore, to turn to the application for review filed by Mr Remely to consider whether any order for production of documents might be made in that context. That application, as I have said, seeks a new costs assessment carried out by a different assessor.

Mr Remely in the reasons justifying his application says that his objections as served on the respondents' solicitors under Rule 706 "referred to numerous items having been charged well above those permitted by the scale of fees and amounts that can be charged on a client/solicitor basis. These items are too numerous to object to on an individual basis and a new assessment should be ordered".

In his affidavit, Mr Remely asserts that Rule 712 and Rule 713 contemplate appointment of a different costs assessor.

This application does not, in my view, constitute an application for review of a decision included in a costs assessor's certificate. Mr Remely does not seek review of any particular decision included in the costs assessor's certificate, but merely that this Court, without further inquiry, order an entirely fresh assessment by a newly appointed costs assessor.

That is not an application within the meaning of Rule 742. This should not be a matter of surprise to Mr Remely, who has previously had an application for appointment of an alternative costs assessor dismissed by this Court. It was pointed out to him on that occasion that Rule 712 and Rule 713 relate to the position before assessment, respectively where parties agree on an assessor or apply to the Registrar for appointment of a costs assessor, and have no application to the position after the certificate of assessment has been filed.

I should comment briefly on the alternative order sought, which was for written reasons for decision from the costs assessor. I do not have the application made to the costs assessor for those reasons before me, but I do have his response, which declines to provide written reasons until Mr Remely pays the costs assessor's fees. I have some doubt that the obligation in Rule 738(2) upon the costs assessor to provide written reasons upon request is contingent on the obligation in subsection (3) for the party requesting reasons to pay his costs.

However, there are two points to be made. The first is that I suspect from the costs assessor's response that he may have been asked for reasons at large rather than reasons for particular decisions in relation to particular matters. Rule 738(1) does not give a party a right to seek reasons in general in relation to a certificate of assessment. Instead, it permits a request for reasons for any decision included in the certificate.

Secondly, whatever the obligation on the costs assessor, he is not a party to this application, which, in my view, is not in any event a valid application within Rule 742: it does not seek in its terms an application for review of any decision included in a costs assessor's certificate and it seeks an appointment beyond the power of this Court, of a newly appointed costs assessor to carry out a fresh assessment.

There may be a hiatus in Rule 742 in that no mechanism is provided where a costs assessor refuses to provide reasons, while on the other hand it would seem unfair to expect him to do so unpaid. However, that is not a matter for resolution now. Neither application, that for review or that for disclosure, is properly made. They are dismissed.

HOLMES JA: The second respondents are entitled to the costs of the applications for disclosure and for review of the costs certificate. They seek to have those costs assessed on the indemnity basis.

These applications are part of a series of applications made by Mr Remely. These particular applications were not properly brought. In part they were founded on a basis which has previously been explained to Mr Remely to be untenable.

The futility of the applications is compounded by the fact that on the 5th February 2009, the second respondents' solicitors wrote to Mr Remely offering to settle his applications, in effect, on the basis that the second respondents would accept 90 per cent of the amounts assessed by the costs assessor. Because Mr Remely never descended into any particular of just what it was he was really objecting to in the costs certificates, it's difficult to know how much he had anticipated being deducted, but whatever that was, it is clear that he would have achieved a much more favourable outcome had he simply have accepted the offer.

In all the circumstances, I am satisfied that it is an appropriate case in which to make an order for indemnity costs and I would adopt the phrasing of Justice McMeekin in Remely v O'Shea [2008] QSC 218: it is a case in which there has been "undue prolongation of the case by groundless contentions and an imprudent refusal of an offer to compromise".

I order that the applicant pay the second respondents' costs of and incidental to both applications on the indemnity basis.

HOLMES JA: If I haven't done so, I make it clear that I formally dismiss the applications.