24 In reaching his decision, the Magistrate had regard both to the strike-out provisions and the statutory scheme.
25 The form of the order made by the Magistrate brought about a striking out of the plaintiff's notice of motion. Be that as it may, the effect of what was done was to refuse the application to set aside the judgment.
26 Thereafter, the plaintiff brought proceedings in this Court. The Summons was filed on 16 October 2006. At the time of the filing of the Summons the plaintiff was not legally represented. Later, the plaintiff came to be legally represented and an Amended Summons was filed on 4 December 2006. The plaintiff proceeds on that Amended Summons.
27 The relief sought by the plaintiff is somewhat unwieldy. Firstly, relief provided by the statutory scheme is pursued. Relief is sought pursuant to ss 384 and 385 of the Legal Profession Act 2004. Section 384 gives an appeal as a right where there is error as to a matter of law arising in proceedings to determine the application. The error as to matter of law must be material to the decision of the panel and justify the disturbing of it. Section 385 enables application to be made for leave to appeal. The Court has a discretionary power to grant such leave. The exercise of the discretion has regard to the dictates of justice. In addition to this relief, there is also a challenge made to the decision of the Magistrate. The decision of the Magistrate has been regarded by the parties as being interlocutory in nature. Accordingly, leave is required to appeal against the decision. In addition to these matters, there were also questions agitated as to the need for an extension of time. For present purposes, I shall put these matters aside. It seems to me that I should look at the merits of the claims for relief under the statutory scheme and I can later return to the other matters should there be a need to do so.
28 There seems to be no dispute that, should the plaintiff be unsuccessful on its application for relief pursuant to ss 384 and 385, there is no need to address the challenge to the decision of the Magistrate.
29 Broadly speaking, the claims for relief pursuant to ss 384 and 385 fall into three areas.
30 The first area concerns the alleged failure to comply with regulation 561(a). The second area concerns the question of service. The third area concerns allegations of denial of natural justice.
31 In my view, it is unnecessary to determine whether or not there was a breach of the regulation and a failure to strictly comply with the service provisions of the Legal Profession Act 1987 and the Regulations. I have come to this view by reason of the conduct of the plaintiff in respect of both the original assessment and the review by the panel. Such conduct made these matters irrelevant.
32 It is common ground that the plaintiff received both a copy of the application and of the bill of costs during the course of the assessment. It had the opportunity to make submissions in respect of both documents. It chose to restrict its submissions to matters which have been described by the panel as "technical arguments". It was open to the plaintiff to bring a challenge in this Court to the decisions made by the costs assessor on these matters. Instead of doing so, the plaintiff continued to participate in the assessment and allowed the costs assessor to proceed to his determination. Following that determination, it did not seek relief in this Court. Rather, it further invoked the assessment process by seeking a review and participated in that review.
33 For completeness, I should mention that the assessment process involved in this case did not require a bill of costs. The decisions made by the costs assessor as to the irrelevance of the complaints to the bill that was given are well founded. The lack of merit in the complaints as to the bill of costs is well illustrated by the fact that the plaintiff did not challenge any item in the bill of costs and did not make any submissions concerning the quantum of the claim advanced by the defendant.
34 In the course of argument, the court was referred to a number of decided cases (Brierly v Reeves [2000] NSWSC 305; Diemasters Pty Ltd v Meadowcorp Pty Ltd NSWSC unreported, Macready M, 16 July 2003). The facts of the present case make those cases distinguishable. In Brierly, the costs assessor decided that he had no jurisdiction and did not proceed with the assessment. Diemasters was a no service case, there was a finding that service of the application had not been effected on the respondent to the application.
35 It is curious that the plaintiff should seek to rely on Diemasters as supporting its present case. In my view, what was said does not assist the plaintiff. Master Macready (as he then was) observed as follows:
"29 I turn to a consideration of the purpose of the regulation. The form that is required to be served certainly gives sufficient notice that the person giving it proposes to invoke the procedures for assessment of costs and the amount that will be claimed in that assessment. The regulation requires a certain period of notice to have expired before the application maybe lodged with the proper officer of the Supreme Court. Having regard to the terms of s 203(3), it is apparent that the question of settlement of the amount of costs by mediation would have to be addressed by the applicant prior to lodging the application. This indicates the purpose of this procedure is to put the parties into a situation where they consider some compromise by mediation of the amount claimed.
30 It is to be noted that under subreg (e) a copy of the application is to be sent by the proper officer to the person liable for payment of the costs. Objections may be made later because the regulation contemplates that any objections made after the application is lodged with the proper officer are to be sent to the costs assessor.
31 Although mediation and the avoidance of the additional costs incurred in the assessment process are worthwhile objects the failure to activate that process would I have thought not be so important as to make that process a condition of non compliance which would mean that the subsequent assessment process was invalid."
36 The observations were made in respect of the procedure set up by the regulation which was then in force (of which regulation 26C formed a part). The provisions of regulation 56(1)(a) succeed regulation 26C. The procedure is described as being one before application for assessment of party / party costs. It appears to have been had in mind that the prospects of mediation should be explored before the proposed application is served. The purpose of the notice is to afford the opportunity to make both objection "to the application" and response to any objection (see paragraph 15 of Turner v Pride [1999] NSWSC 850).
37 No guidance is given as to the nature of the objection that is contemplated by the regulation. However, it would seem that it was intended that it be referable to some matter that may disentitle the making of the application. The absence of the notice would be of no importance in this case as there is nothing to suggest that the plaintiff could advance any argument that would disentitle the bringing of the application.
38 The third area initially involved allegations of bias and denial of natural justice. The allegations of bias were abandoned and the challenge founded on denial of natural justice was restricted to an alleged failure by the panel to give sufficient reasons.
39 The legislation requires the panel to accompany its certificate with a statement of reasons. The panel provided a statement of reasons. Whilst it may be said that the disclosure of reasoning process in the statement of reasons was not expansive, it seems to me that what was said sufficed in the circumstances of this case.
40 What the panel did was to confirm the certificate of the costs assessor and adopt his reasoning process. The panel was dealing with procedural matters that did not require any expansive response.
41 I should also refer to another matter that was but briefly agitated during the hearing. It concerned the question of how the costs assessor came to deal with the costs of the assessment. There was reference to the provisions of s 208J(4) of the 1987 Act.
42 In my view, whether or not there could have been said to be error by the costs assessor in respect of this matter, what was involved was the small sum of $616.00. Whilst I do not consider that the amount involved would justify the granting of relief, there is a further relevant consideration. What has been done does not bring about any injustice to the plaintiff. The defendant has paid the whole of the costs of the assessment to the Manager and it was done to bring about payment of the liability had by the plaintiff to pay half of the costs.
43 Leaving aside what has already been said on the matter, the argument put on behalf of the plaintiff appears to ignore provisions contained in s 208F of the 1987 Act. This section falls within subdivision 3 which is headed "Assessment of party/party costs". Subsection (iv) of s 208F is in the following terms:-
"The costs assessed are to include the costs of the assessment (including the costs of the parties to the assessment, and the costs assessor). The costs assessor may determine by whom and to what extent the costs of the assessment are to be paid."
44 For completeness, I shall make certain observations concerning the provisions of s 208J(4). The function of subs (4) is in the nature of a definition. It serves the purpose of defining "unpaid costs". The definition is provided for the purpose of subs (3).
45 The plaintiff has also made complaint about the order made by the review panel concerning costs of the assessment. This complaint excited little argument.
46 There seemed to be an assumption made by the plaintiff that this order involved some error on the part of the review panel. If that be the case, it is an error of no significance in this case.
47 There remains the question of the challenge to the decision of the Magistrate. In view of what has been said in respect of the merits of the relief sought under ss 384 and 385, this question does not have to be pursued.
48 Despite this being so, for the assistance of the parties, I will make the observation that it seems to me that the Magistrate reached the right result.
49 It seems to be common ground that in dealing with the Notices of Motion the Magistrate had in mind the provisions of r 36.15 of the Local Court Rules. The relevant part of that rule is as follows:-
"(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith."
50 This provision confers a discretionary power to set aside a judgment falling within its ambit. The discretionary power cannot be exercised until the threshold requirements contained therein are first satisfied. The exercise of the discretionary power depends on the court being satisfied that sufficient cause has been shown that the judgment was made irregularly, illegally or against good faith.
51 At all times, the plaintiff has been in a position where it was unable to discharge the onus of satisfying that threshold requirement.
52 The certificate was binding on all parties at the time the Magistrate dealt with the notices of motion. The determination of the review panel came to pass subsequent to the decision of the Magistrate. The review panel confirmed the determination of the costs assessor. Further, this court has come to the view that the challenge to the certificate is unmeritorious.
53 There remains the matter of the erroneous date of the judgment. I do not accept the contention that it gives rise to an irregularity.
54 It seems to me that the error is nothing more than an inconsequential clerical mistake. It is not a mistake in respect of which default on the part of the defendant is involved. It is clearly an accidental slip by the Court and is remediable.
55 In my view it is a mistake that can be corrected by operation of the slip rule (see r 36.17 of the Uniform Civil Procedure Rules).
56 Before concluding this judgment, it is appropriate to make certain observations concerning the plaintiff and its conduct throughout the assessment processes and these proceedings. Since about the middle of 2005, the plaintiff has persisted with pressing trivial technical arguments which were devoid of merit. At no stage does it seem to have been concerned with the quantum of the costs claimed against it. The quantum of the claim was relatively modest (in the order of $20,000). Such an amount does not justify the money and time that has been expended in dealing with the plaintiff's trivial and unmeritorious complaints. The proceedings in this Court have seen numerous court attendances and a disproportionate amount of valuable court time being devoted to their resolution. The purpose of the exercise seems to have been no more than to frustrate the efforts of the defendant to recover the costs of the original proceedings before Campbell J.
57 In the circumstances the claims for relief made by the plaintiff fail. The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits may be returned.