33Subdivision 6 of Division 11 of the Act is headed Appeals. Sections 384 and 385 are to be found in that subdivision and are in the following terms:
"384 Appeal against decision of costs assessor as to matter of law
(1) A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the District Court, appeal to the Court against the decision.
(2) After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor's decision:
(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or
(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.
(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
385 Appeal against decision of costs assessor by leave
(1) A party to an application for a costs assessment relating to a bill may, in accordance with the rules of the District Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.
(2) A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.
(3) The District Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5) After deciding the questions the subject of the appeal, the District Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor."
34Although Ms Cameron has nominated s 385 of the Legal Profession Act in the details of her appeal, that section would not appear to be of assistance to her in this Court for obvious reasons. Elsewhere in her summons Ms Cameron has specified the type of claim as "Administrative Law - Review Decision UCPR 45.3(1)(d) Schedule 8." UCPR 45.3(1)(d) provides as follows:
"45.3 The Administrative Law List
(1) The following proceedings in the Supreme Court are to be entered in the Administrative Law List:
...
(d) proceedings in appeals or applications to the Court in respect of decisions of a public body or a public officer under any enactment specified in the rules for the purposes of this subrule."
35Schedule 8 deals with the assignment of business in the Supreme Court. The Legal Profession Act 2004 is not notified as legislation in Column 1 of that schedule.
36It is difficult in the circumstances to appreciate precisely what is the nature of Ms Cameron's application in the first proceedings. She has not sought orders in the nature of prerogative relief pursuant to s 69 of the Supreme Court Act 1970. No appeal lies to this Court pursuant to s 385 of the Legal Profession Act.
37Ms Cameron referred me to George Nassour v Anthony Mark Malouf [2011] NSWSC 356. That was a case in which her Honour Harrison AsJ considered the application of s 208L and s 208M of the Legal Profession Act 1987. Those sections are the effective equivalent of s 384 and s 385 of the 2004 Act. Her Honour set aside the decision of the Costs Review Panel in that case and determined that the fair and reasonable costs payable to the solicitor was nil. The main issue in the proceedings was whether the Costs Review Panel had provided adequate reasons on certain aspects of its decision.
38In Levy v Bergseng [2008] NSWSC 294; (2008) 72 NSWLR 178 at [50], Rothman J held that the issue of the denial of procedural fairness was a ground of appeal that raises decisions as to a matter of law arising in the proceedings as follows:
"[50] The four major grounds, upon which the plaintiff in these proceedings relies, (together with the ground raised by the defendant in its cross-claim) are, at least in part, questions of law. Certainly the issues going to the denial of procedural fairness, the absence or inadequacy of reasons, the construction of the Costs Agreement, and the jurisdiction of the Review Panel are grounds which raise decisions as to a matter of law arising in the proceedings..."
39That was also a case in which the equivalent provisions in the 1987 Act applied. There was no question in either of those cases that the Supreme Court was the proper court for the commencement of proceedings by way of appeal of the type for which s 384 and s 385 of the 2004 Act provide. However, such an appeal now lies to the District Court and not to this Court.
40On the one hand it would obviously be preferable if I were able to determine this matter on some basis other than a jurisdictional issue. On the other hand, if this Court is without jurisdiction to determine the matter, comments by me upon the hypothetical merits of Ms Cameron's claims may be potentially inimical, even though entirely irrelevant, to any consideration of her claims by the District Court. Be all that as it may, it seems to me that howsoever viewed, both Ms Cameron's original submissions and the latest ones filed by her are not directed to the point currently in issue. That is, whether or not the decision of the Costs Review Panel on 17 August 2012 is somehow vulnerable to either being set aside or otherwise effectively challenged.
41It is fairly clear that that is what Ms Cameron wants, but it is by no means clear why she says it should happen. It is not without significance to observe that neither set of submissions filed by Ms Cameron refers to that decision in any particular detail at all and neither brings forward any reasoned assault upon it. There is no suggestion based on evidence that Ms Cameron was denied procedural fairness of that the Costs Review Panel's reasons were somehow inadequate. Having regard to the grounds upon which Ms Cameron sought to challenge the original costs assessment by Mr Gulley, the Costs Review Panel's reasons were on one available view commendably informative. I put aside entirely the question of whether or not a matter of law arising in the proceedings has been identified.
42It goes without saying that I have had particular regard to the wealth of both relevant and not altogether relevant evidence filed by Ms Cameron in support of the summons in the hope of possibly discerning there some material putting the validity of the Costs Review Panel decision in doubt in a way that is justiciable before me. However, there is nothing of that nature to be found anywhere in that material. There is by way of contrast a considerable amount of material in which Ms Cameron complains yet again about the circumstances attending the settlement on 1 February 2008 and about the conduct of those involved who Ms Cameron clearly sees as having both cheated and bullied her into a settlement, which on her case she neither wanted nor should have expected. That issue and Ms Cameron's protestations about it have by now well and truly run their course and constant reagitation of these matters does not helpfully or reliably inform the present application.
43As will be apparent, I have examined the reasons of the Costs Review Pane in detail. They refer to all of the grounds for review cited by Ms Cameron and provide reasons why in the opinion of the members of the Costs Review Panel they were without merit. I have not had drawn to my attention in any way at all why those reasons were inappropriate or inadequate or in breach of some or any obligation imposed upon the members of the Costs Review Panel to give adequate or sufficient reasons for their determination. It has not been suggested that they acted upon some wrong principle or took account of irrelevant matters, or conversely that they failed to have regard to some relevant matters.
44The Costs Review Panel referred in terms to s 375(1) of the Legal Profession Act providing that the Panel may review the determination of the costs assessor and may either affirm the costs assessor's determination or set it aside and substitute such determination in relation to the costs assessment as in their opinion should have been made. The Costs Review Panel also referred to s 375(2) providing that it has all the functions of a costs assessor and is to determine the application for review in the manner that a costs assessor would be required to determine an application for assessment of costs in the first instance. The Costs Review Panel also referred to s 375(3) providing that the review is to be conducted on the evidence that was received by the costs assessor and, unless it otherwise determines, the Panel is not to receive submissions from the parties to the assessment or receive any fresh evidence.
45The Costs Review Panel also clearly had regard to the terms of s 364 of the Legal Profession Act, which it reproduced in its Statement of Reasons for Determination of Review. That section provides as follows:
"364 Assessment of costs-costs ordered by court or tribunal
(1) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider:
(a) whether or not it was reasonable to carry out the work to which the costs relate, and
(b) whether or not the work was carried out in a reasonable manner, and
(c) what is a fair and reasonable amount of costs for the work concerned.
(2) In considering what is a fair and reasonable amount of legal costs, a costs assessor may have regard to any or all of the following matters:
(a) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(b) the complexity, novelty or difficulty of the matter,
(c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,
(d) the place where and circumstances in which the legal services were provided,
(e) the time within which the work was required to be done,
(f) the outcome of the matter.
(3) An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs and any relevant regulations.
(4) If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal and relevant regulations."
46The Costs Review Panel indicated in terms that "to the extent considered relevant", the matters referred to in s 364 "have been taken into account."
47The Costs Review Panel expressly rejected the allegation that the bills had already been paid and that the claims for costs were being made deliberately and falsely. There was nothing in any of the material before the Panel to indicate any duplication. The Panel perceived that Ms Cameron was in several respects asking it to go behind the original costs orders, which the Panel steadfastly declined to do. It otherwise determined that the costs assessor's conclusions were correct and that the costs assessments made by him were fair and reasonable.
48Nothing presented to me by Ms Cameron in her evidence or in her submissions has provided the slightest reason to suspect, far less to conclude, that the decisions of the Costs Review Panel should be set aside or otherwise dealt with to some similar effect. Ms Cameron's claim for a judicial review of the Costs Review Panel's decision is wholly without substance. I would not have been satisfied that Ms Cameron had made out a case based upon a denial of procedural fairness, or any other case either, if I had otherwise had jurisdiction to consider the matter.
The second proceedings
49Ms Cameron's summons in these proceedings once again invoked UCPR 45.3(1)(d) and Schedule 8.
50With respect to the second proceedings, s 373(1) of the Legal Profession Act would appear to be relevant. It is as follows:
"373 Application by party for review of determination
(1) A party to a costs assessment who is dissatisfied with a determination of a costs assessor may, within 30 days after the certificate under section 368 (Certificate as to determination) or 369 (Recovery of costs of costs assessment) has been forwarded to the parties that sets out the determination of the costs assessor or within such further time as the Manager, Costs Assessment may allow, apply to the Manager, Costs Assessment for a review of the determination."
51Ms Cameron is concerned with the decision made by James Howard, communicated by his letter dated 5 October 2012. Mr Howard was at that time the Manager, Costs Assessment. Mr Howard indicated in his letter that he had "determined not to extend the time to lodge a review" and set out his reasons for coming to that decision. Those reasons were as follows:
"Reasons
When considering an application to extend time to lodge a review I consider the delay, the explanation for the delay, the merits of the application and any prejudice or what is just and fair in the circumstances.
Background
The application was finalised by Mr Gulley on 23 November 2011;
I sent the certificates to the parties on 7 December 2011;
The review applicant lodged her application for review on 4 May 2012 having notified the review respondent of its [sic, her] intention to apply for a review.
Delay
The delay is approximately five months.
Explanation for Delay
The explanation for the delay is not rational, it covers some time period on or around late November 2011 to early December 2011, but does not explain why no further steps were taken to make an application for review until late April/early May 2012.
The review application was only filed due to the intervention of the Associate Justice it seems in raising the possibility, but it also seems the review applicant was aware this was possible in any event.
There is not an acceptable explanation for the delay.
Prejudice
No prejudice to the parties has been identified, other than there are current proceedings concerning judgments as result of registered certificates and it is in the interest of parties generally to resolve the issue of any costs as early as possible.
Merits Review Application
I do not understand what is asserted to be the merits of the applications. The submission 'To right the wrongs done to the injured plaintiff' do not have any particulars that relate to costs or the unreasonableness of the costs incurred.
The submissions mostly relate to allegations of negligence in the provision of legal services, not to any matters in Mr Gulley's reasons.
A costs assessor's role does not include reviewing and determining allegations of professional negligence.
Just and Fair in the Circumstances
On balance, it seems to me that despite the inadequate explanation for the delay, the question of the extending time depend upon the merits of the review application, which I believe do not have any prospects of succeeding.
It appears just and fair in the circumstances to me not to extend the time.
Appeal/Review
Please note under the Legal Profession Act 2004 there is no appeal against a determination of the Manager, Costs Assessment made under s 373 of the Legal Profession Act 2004. However, a determination of the Manager, Costs Assessment is able to be judicially reviewed by filing a summons in the Common Law - Administrative Law Division of the Supreme Court of NSW."
52The second proceedings are therefore proceedings for judicial review of Mr Howard's decision to refuse to extend the time for Ms Cameron to bring her application for review of costs assessor Gulley's assessment dated 23 November 2011.
53Ms Cameron has in the context of this decision once again failed to provide any reasoned or sound basis for criticising Mr Howard's conclusions. The decision appears on its face to deal with her application in a fair and ordered way. Ms Cameron has not suggested that Mr Howard took account of irrelevant matters or failed to take account of any relevant ones. She does not suggest that she was not given an opportunity to be heard. Ms Cameron has paid lip service to the concept of a denial of natural justice but has in no way fleshed out that suggestion with any sensible content. She has not provided a basis to conclude that she was denied procedural fairness necessitating some different outcome or result.
54The modern statement of the hearing rule appears in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584-5 as follows:
"The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention...
In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...
When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?"
55Nothing proffered by Ms Cameron in her evidence or her submissions appears to identify or trigger the finding of any failure by Mr Howard to conform to the constraints of what the High Court said in that case. Nor has anything else that has come to my attention caused me to consider that Ms Cameron's plea for a judicial review of his decision has even a faint prospect of success.