JUDGMENT
1 Master: Mr and Mrs Sweeney brought proceedings in this court. The claim arose out of a building dispute. The proceedings were unsuccessful. Short minutes of orders were prepared (there seems to be an assertion that the orders were not formally taken out, but the matter was left unexplained in the conduct of the case). One of the orders required Mr and Mrs Sweeney to pay the costs of Wholohan Grill & Partners Pty Limited (the fourth defendant).
2 Mr and Mrs Sweeney brought an appeal to the Court of Appeal. The appeal was unsuccessful. Mr and Mrs Sweeney were ordered to pay the fourth defendant's costs of the appeal.
3 The fourth defendant applied to the court for an assessment of costs. A costs assessor was appointed (Mr Green). An assessment proceeded ex parte. Two certificates of determination were issued by the costs assessor. The total of the amount assessed was in the order of $118,000 (of which about $10,000 related to the costs of the appeal).
4 The certificates were filed in this court pursuant to s208JA of the Legal Profession Act 1987 (the Act). Under that section, a certificate is taken to be a judgment of the court for the amount of unpaid costs.
5 Notices of motion were filed in the names of both Mr and Mrs Sweeney. The relevant applications are now as set forth in the amended notices of motion both of which were filed on 13 August 2004. One is filed in the proceedings in this division. The other is filed in the Court of Appeal proceedings.
6 Generally speaking, relief is sought pursuant to ss208L and 208M of the Act as well as the setting aside of the judgments. For completeness, it is observed that the appellate relief which is sought should have been pursued by way of summons.
7 The applications were specially fixed for hearing to take place on 8 October 2004. The applications were heard on that day and the hearing occupied most of the day. Mr Sweeney (the applicant) is of senior counsel. He appeared by counsel. There was no appearance for Mrs Sweeney. The amended notice of motion presents as having been brought on behalf of the applicant only. This was confirmed by counsel as being the case. The application was defended by the fourth defendant.
8 Before proceeding further, I should mention that the judgment entered in the Court of Appeal has been set aside. The reasons for that happening are immaterial for present purposes.
9 At the time of the allocation of the special fixture, the court had been informed on behalf of the applicant that, in the conduct of the application, he would be relying only on the two affidavits sworn by his solicitor Mr Kelly. The fourth defendant had nominated an affidavit sworn by Mr Judd.
10 Successful objection was taken to part of the affidavit material presented by Mr Kelly. Part of it was clearly inadmissible and was not pressed. Largely, what remained and was admitted was correspondence passing between the parties. It is difficult to comprehend that the two affidavits from Mr Kelly could have been regarded as being sufficient for the purposes of presenting the applicant's case. Counsel for the applicant then sought to tender the affidavit sworn by Mr Judd in his own case. This was objected to by the fourth defendant. Mr Judd was unavailable for cross-examination (as was required by the fourth defendant). The tender of the affidavit was then rejected. Subsequently, over objection, the annexures to Mr Judd's affidavit were tendered on behalf of the applicant (Exhibit A). An adjournment application on behalf of the applicant for the purposes of having recourse to this material had been earlier rejected.
11 There was no attempt to adduce any evidence by way of affidavit from either the applicant or his wife.
12 The basis of the application can be perhaps loosely expressed as one of non-service. It is alleged on behalf of the applicant that he was not served with various documents (including the orders made for costs and the assessment application).
13 His application is to have the certificates of determination set aside pursuant to either s208L or s208M and the judgment set aside pursuant to Pt 40 r 9 of the Supreme Court Rules (the Rules).
14 Section 208L confers a narrow avenue of appeal. It is available in respect of a matter of law arising in the proceedings to determine the application. The court has a discretionary power pursuant to s208M to grant leave to appeal. The power is exercised having regard to the relevant circumstances of the particular case before the court and so that the interests of justice are best served. Part 40 r 9 confers a similar discretion. In respect of each head of relief, the onus rests with the applicant.
15 As I understand the first argument relied upon by the applicant, it is to the effect that the whole assessment process has been nullified from the outset by reason of a failure to serve formal costs orders.
16 The first problem for the applicant is that there is no evidence led on his behalf to demonstrate that there was no service of the formal orders.
17 The next problem arises from the inability of his counsel to point to any provision in the Act or the Legal Profession Regulation (the Regulation) or the Supreme Court Act 1970 or the Rules which require the service of a formal order for present purposes.
18 The argument was not developed (inter alia there was no reference to any provision) and it was but feebly pressed. In my view, it was devoid of substance. There is now what is taken to be a judgment. It remains valid until set aside.
19 The Supreme Court Act 1970 provides that any inter alia failure to comply with the Act or the Rules is to be treated as an irregularity (s81).
20 I now turn to the alleged failure to serve the application. This argument suffers from similar evidentiary deficiencies.
21 Before further consideration is given to this argument, it is necessary to briefly refer to relevant provisions of the Act and Regulation.
22 Section 204 of the Act provides that "The Manager, Costs Assessment" (the manager) is to take such steps as are reasonably practicable to provide a copy of an application for assessment to any barrister, solicitor or client concerned or any other person whom the proper officer thinks it appropriate to notify.
23 Clause 26C of the Regulation requires that before the application is made, the person proposing to make the application is to inter alia send a copy of the application to the person liable to pay the costs. Clause 26H of the Regulation provides that inter alia an application for assessment of costs may be made or given by a party to the application, the manager or a costs assessor in the same way as a bill of costs may be given under s195 of the Act (s195 enunciates various ways in which a bill of costs may be given to a person).
24 The effect of these provisions is that the fourth defendant was required to send a copy of the unlodged application to the applicant and the manager was to do what was required to be done under s204 in respect of the lodged application.
25 Before proceeding further, I should mention that the assessment process is a non-curial one. An application for assessment is not a proceeding in this court (Brierley v Anthony Charles Reeves [2000] NSWSC 305). The rules have no application.
26 The onus of demonstrating non-compliance is borne by the applicant. No onus is borne by the fourth defendant to advance evidence of service. The applicant has the position of one being able to lead the best evidence of non-compliance. It appears that a decision has been made to run this case without relying on any evidence from him. It has not been suggested that he is unable or unavailable to give evidence in support of the application. Instead of relying on the best evidence, the applicant seeks the drawing of inferences from the material contained in Exhibit A.
27 Whatever has to be done in relation to providing a copy of the lodged assessment is an obligation that falls on the manager. It could be expected that the manager has a usual practice that is followed in applications for assessment. No evidence has been placed before the court as to any such practice.
28 Indeed, no evidence whatsoever has been placed before the court as to what may have been done by the manager in this particular case. It was open to both parties to lead any such evidence. Neither took that course. If the applicant had not been given a copy of the lodged application he was in the best position to say so.
29 The costs assessor proceeded on the assumption that the manager had done what was required under s204. However, because he had concern, he ultimately made orders in the nature of substituted service. It is said on behalf of Mr Sweeney that the assessor lacked the power to make those orders. I shall return to that matter in due course.
30 Exhibit A contains material which may give rise to an inference that the applicant, who had been a practicing barrister, was then working overseas, having left about two years ago.
31 Prior to 8 March 1999, solicitors (James A Moustacas & Co) had been acting for the applicant. Exhibit A may give rise to the inference that at least the bill of costs and a draft application for assessment had been given to those solicitors. They advised that they "no longer act" for the applicant. They requested that all further correspondence be forwarded to Level 6, St James' Hall Chambers. It would seem that these may have been the chambers occupied by the applicant prior to his departure overseas.
32 Exhibit A may also give rise to the inference that there was an arrangement on foot between the applicant and his former clerk (Michelle Kearns) for the forwarding to him of documents left with her. She had a "contact phone number". She would not disclose either that number or his overseas address.
33 The fourth defendant sought to utilise that arrangement by leaving documents with her in purported compliance with the orders for substituted service.
34 The question of whether or not the costs assessor was empowered to make orders for substituted service does not need to be determined in this case. In my view, a costs assessor by implication has powers that are necessarily incidental to the implementation of his statutory functions. If the orders were indeed made without power, in my view, that does not assist the applicant in this case. Whatever had to be done in relation to the providing of a copy of the lodged application was a task that was borne by the manager. The applicant has not said that the manager failed to send him the relevant copy documentation. Whatever was done by the costs assessor and by the fourth defendant (in pursuit of compliance with those orders) merely had the potential for increasing the possibility of the applicant having notice of the application.
35 A setting aside of the judgment is dependent on a disturbance of the determinations made by the costs assessor. The applicant bears the onus of demonstrating that those determinations should be disturbed. I am not satisfied that he was not given a copy of both the unlodged and lodged application. Indeed, I am of the view that he did have notice of the same and could have participated in the assessment process had he wished to do so. Whether or not there has been compliance with the relevant provisions, there needs to be some utility shown in disturbing the determinations.
36 The court has been told that the applicant accepts that he is bound to make payment under the costs orders. It is said that he merely wants the opportunity to participate in the assessment process.
37 Despite that assertion, nothing has been put forward to suggest error in either assessment. It was open to the applicant to lead evidence or raise matters which may have challenged either assessment. He has not done so. The matter has not even been raised by way of submissions from the bar table.
38 In the circumstances, I am not satisfied that there would be any utility in disturbing the determinations.
39 For completeness, I should mention that the fourth defendant has submitted that the applications under ss208L and 208M have been brought out of time and are incompetent. This may have been raised for the first time during submissions by counsel. Although the matter was responded to by counsel for the applicant in reply, no application for extension of time has yet been made. For present purposes, the matter can be put aside as the application can be otherwise disposed of.
40 I reject the appeal brought pursuant to s208L. I refuse the application for leave to appeal under s208M. In these circumstances, the application to set aside the judgment is doomed to failure.
41 There was issue between the parties as to whether or not Pt 40 r 9 provided redress where the judgment had been obtained pursuant to s208JA. That is another matter that does not need to be determined in these proceedings.
42 The notice of motion is dismissed. The applicant is to pay the costs of the notice of motion. The exhibit may be returned.