Wende v Horwath

Judgment

1. On 22 December 2015 the Court of Appeal set aside previous orders of this Court and ordered: "(3) Remit the proceedings to the District Court for that Court to make final orders with respect to the applicants' appeal, including, if thought appropriate - (a) orders remitting the assessment of costs to the Manager, Costs Assessment, for determination according to law; (b) orders as to the costs of the parties in the District Court in relation to proceedings subsequent to the first judgment of this Court; (c) an order specifying the amount of any costs payable in the District Court, including pursuant to order (2) made on 23 October 2014." [1]
2. In respect of order 3(a), both parties seek that the relevant matter be remitted to Ms K Dulhunty, the original costs assessor. The reasons which favour this course are: 1. the discretion granted to this Court by the Court of Appeal in specifying "if thought appropriate"; 2. that s 384(2)(b) of the Legal Profession Act 2004 provides for the Court to "remit…to the costs assessor"; 3. the common position of the parties that the remittal should be to the original assessor (and not to the review panel, although the review panel is embraced within the term "costs assessor" in s 384(2)(b) by s 382(1)); 4. that the original costs assessor is to perform the role of a costs assessor; and 5. that the matter may be substantially shorter and cheaper before the original costs assessor.
3. I am persuaded by these reasons that the form of the order should refer to the original costs assessor rather than the Manager, Costs Assessment.
4. A remaining matter of dispute between the parties in relation to the form of the remittal order or orders is whether I should remit "the question of the determination of costs", as the plaintiffs seek, or the "proceedings...for further determination...of only the disaggregation of [the Costs Assessor's] prior determination of the amount of costs", as the defendant seeks.
5. The relevant order made by the Court of Appeal referring to "orders remitting the assessment of costs…for determination according to law" accords more with the form of order proposed by the plaintiffs. Nothing in the Court of Appeal decision indicated a more confined order. The only remarks that may bear upon this question were made by Basten JA, who stated: "99 One aspect of the case run by the applicants as to the effect of the orders setting aside the certificates should be noted. (It may be relevant both to the assessment of costs in the District Court and in relation to the further determination of the amounts payable under the various costs orders.) It was that, the certificates having been set aside, the determinations underlying the certificates had no legal force or effect. That submission should not be accepted in its terms. While it is true that the determinations are legally unenforceable in their present form, the exercise required to make determinations which may be the subject of appropriate certificates does not require the costs assessor to disregard the decisions already taken as to the fairness and reasonableness of individual items. In that sense, the approach adopted in the District Court on the remitter was not open to criticism. It might be expected that the costs assessor will ultimately adopt a similar approach. Indeed, the costs assessor would be entitled to admit the same affidavit as to disaggregation relied on by the respondent in the District Court, with the outcome that the final liability of the applicants may be substantially the same as was first determined. 100 That is not to say that the future conduct of the proceedings is bound to adhere to those views; rather, it is merely to say that it would be open to both the District Court (in determining costs) and the costs assessor to adopt such an approach if they saw fit, and for their own purposes." [2]