Grounds of appeal
21The grounds of appeal are essentially the absence of procedural fairness afforded to the plaintiff by reason of the Costs Assessor having failed to consider the document "Respondent's objections (part 1)" and the asserted unexpected finalisation of the assessment. For the purposes of these proceedings, the defendant agrees that the issue of lack of procedural fairness should be considered as a "matter of law" for the purposes of s 384 Legal Profession Act 2004 (NSW) and accordingly it is unnecessary for me to consider the controversy as to whether an appeal should be brought under s 384 or s 385.
22The plaintiff has not established to my satisfaction that the Costs Assessor received the document entitled "Respondent's objections (part 1)" and made a decision to ignore it. The dates of the correspondence make it clear that, to put the plaintiff's case at its highest, his belated submissions would have crossed with the reasons for determination given by the Costs Assessor, and that in those circumstances, given the repeated request from the Costs Assessor for the plaintiff to provide objections and the plaintiff's failure to keep to previous proposed timetables he had proposed, the Costs Assessor would not have been expecting the provision of these submissions.
23The plaintiff did refer to an intention to submit further objections in his letter to the Costs Assessor dated 16 September 2013. However, he had proposed such timetables to the Costs Assessor in previous correspondence and failed to comply with them. The Costs Assessor was entitled to determine the application without waiting to see if submissions would be sent by this further date. The application had been before the Costs Assessor for over seven months, and I am satisfied, having regard to the correspondence set out above, that the plaintiff had been given ample opportunity, notwithstanding his health problems, to submit objections. In addition, over this period, the plaintiff supplied submissions and objections to the Costs Assessor as well as a lengthy request for particulars.
24The Costs Assessor has set out a history of the costs assessment procedure in her reasons for determination and these disclose each of the objections and submissions made by the plaintiff. It is clear from the content of the reasons for determination that these matters have been addressed, although the relevance of much of this material is tenuous. "Due consideration" (s 359 Legal Profession Act 2004 (NSW)) need only be given to submissions made within the "reasonable opportunity" period. Seven months is an ample period, notwithstanding the plaintiff's health.
25In the course of conducting the appeal, the plaintiff identified the following complaints about the costs assessment procedure which related to issues of procedural unfairness:
(1)The itemised bill was not served for 18 months.
(2)The costs assessment should have been deferred until the criminal proceedings were finalised.
(3)The costs orders were invalid as the conviction has been set aside.
(4)There was no need for the claimed work to be performed.
(5)The Costs Assessor did not consider the plaintiff's objections to the items charged.
(6)The Costs Assessor failed to take into account that fact that the plaintiff's submissions on many issues were unopposed.
(7)There was no need for the claimed work to be performed.
(8)The Costs Assessor did not consider the plaintiff's objections to the items charged.
(9)The Costs Assessor failed to take into account that fact that the plaintiff's submissions on many issues were unopposed.
(10)The plaintiff was not given an opportunity to object to the second half of the bill.
(11)The defendant failed to provide a costs disclosure or to set out how the bill was calculated.
(12)The Costs Assessor failed to comply with s 363 Legal Profession Act 2004 (NSW).
(13)The Costs Assessor failed to comply with s 359 Legal Profession Act 2004 (NSW).
(14)The Costs Assessor failed to comply with s 371 Legal Profession Act 2004 (NSW).
(15)The Costs Assessor erred in failing to take into account the costs respondent's indigence.
26The plaintiff also submitted that his ill health should have been taken into account, and that he should have been granted the further extension sought.
The nature of a costs appeal
27A right of appeal under s 384 of the Act has been described as "narrow": Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 at [12]; Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. An error of law, as opposed to an error of fact or mathematics, must be established. The Court of Appeal explained, in Arnott v Glissan [2013] NSWCA 316 at [6], that "[a] challenge to the assessment in terms of its quantification, either in totality or in respect of certain items would rarely, if ever, give rise to a matter of law".
28This means that the plaintiff's objections to the amounts allowed by the Costs Assessor (which I apprehend to be his principal complaint) cannot be challenged under s 384 merely on the basis that they are excessive. In particular, it is not open to the court to consider the justice of the case generally, or to take into account factual matters of the kind raised by the plaintiff, such as the defendant's alleged delay in serving the bill, or whether the plaintiff was successful in other claims or proceedings: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481. If no question of law can be identified, the appeal should be dismissed: Lang v Kirkness (New South Wales Supreme Court, Harrison M, 22 October 1997).
29The onus lies on the plaintiff to establish the evidence necessary for a finding of procedural unfairness. The defendant submits that this means the plaintiff must establish that the Costs Assessor received the document entitled "Respondent's Objections to the Bill (part 1) and made a decision to ignore it, and to proceed to assessment without it. However, procedural unfairness may occur where there is no fault by the fact finder, but merely inadvertence: Lang v Back & Schwartz [2009] NSWDC 180 at [30].
30This brings me to the relevant issue of fact in relation to procedural unfairness. First, I am satisfied that, following a series of generous extensions given in the correspondence set out above, a final date given by the Costs Assessor, this being "within twenty one (21) days of the date hereof, or earlier if possible", namely prior to 23 September. When that date arrived, the Costs Assessor proceeded with the assessment, which was completed on 25 September.
31It is unclear why the plaintiff's objections were delivered to the Supreme Court on 23 September rather than directly to the Costs Assessor. The defendant received a copy of the plaintiff's objections from the Supreme Court on 25 September, and the likelihood is that the Costs Assessor received them on or about the same date, which was not only after the cut-off date given by the Costs Assessor, but also, I am satisfied, after completion of the assessment.
32Additionally, as the name of the plaintiff's document makes clear, the document he sent to the Supreme Court on 23 September was by no means the complete list of objections. It was only "part 1". It is unclear to me how many more parts were to follow. Even if the document had reached the Costs Assessor in time, it would only have dealt with some of the issues for determination, and further extensions of time would be necessary.
33The costs assessment process is "neither wholly judicial, nor wholly adversarial, as there are strong elements of an inquisitorial nature involved": Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd, supra, at [31]. In the Legal Profession Reform Bill, 1993 Second Reading Speech (Hansard, 16 September 1993, p. 3227), the Attorney-General explained that the reason for the replacement of the taxation of costs system was to avoid the "unnecessarily complex and artificial" system of costs assessment with "a faster, easier and cheaper system of review of bills of costs". The reference to "faster" is of some relevance here, given that the costs assessment procedure had been commenced on 5 February 2013 by the defendant, and the plaintiff was still asking for extensions of time on 16 September 2013, despite having been given four opportunities to provide documents, instead of which he supplied three separate submissions or objections to the Costs Assessor (as well as the "part 1" document he submitted on 23 September 2013).
34The requirement for the Costs Assessor to give "due consideration" under s 359 to the submissions of the parties envisages that these will be made during the "reasonable opportunity" period. While the plaintiff did write on 16 September 2013 asking for an extension to 23 September, I am satisfied that the documents he delivered to the Supreme Court on that day did not reach the Costs Assessor until after that date, and that even if they had, the documents manifestly did not deal with all the objections.
35I am satisfied that the Costs Assessor was entitled to give a final date to the plaintiff and, when the plaintiff did not comply with that date, to proceed to assessment. The plaintiff had already been afforded a series of reasonable opportunities to lodge his objections and there was no requirement for the Costs Assessor to delay further the determination of the application to allow the plaintiff to continue to present additional submissions. The Costs Assessor gave a final date for submissions and was entitled to do so, and by proceeding to perform the assessment task after the expiry of that date did not deny the plaintiff procedural fairness. Accordingly, there having been no procedural unfairness either in failing to take into account the 23 September 2013 submissions, or in proceeding to hand down the assessment to the parties, the plaintiff's appeal must fail.
36I further note the submission of the defendant that, having regard to the contents of the "part 1" document, its contents would not have altered the outcome of the assessment as it consisted largely of repetition of previous complaints, such as that the work was not necessary and the plaintiff disputed the manner in which the costs were calculated (see Exhibit 1, pages 130 - 131). The plaintiff did not answer the defendant's submission (written submissions, paragraph 38) that there was nothing new in the "part 1" document. Although the basis of his objections to the remainder of the items in the bill was never specified, I am satisfied that those objections would have been of a similar nature.
37This additional finding is of relevance to the requirement that the party who establishes an error of law must also establish that the error made justifies disturbing the assessment.
Legal error alone is insufficient
38An additional problem arising in relation to s 384 appeals is that legal error alone is insufficient. In Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd, supra, Johnstone DCJ stated at [16]:
"[16] Not only must a party who is appealing under s 384(1) establish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. Thus it has been said by Associate Justice Malpass:
The onus borne by the plaintiff is not merely to demonstrate error as to a matter of law arising in the proceedings to determine the application but also to demonstrate that any such error is material to the determination": Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439 at [24].
... [whilst there has been an attack on the expression of the reasoning process, it has not been shown that the determination itself was erroneous and should be disturbed ... The onus borne by [the plaintiffs] has not been discharged": Skalkos v Assaf [2002] NSWSC 1221 at [17]-[18]."
39The defendant submits that it would not be in the interests of justice for the court to intervene in circumstances where there would be no substantially different outcome. Accordingly, if I have erred in holding that there was no procedural unfairness, I would alternatively have found that the error of law would not justify disturbing the assessment.
40The appeal is accordingly dismissed with costs.