Wentworth v Rogers

CATCHWORDS : Civil procedure - application to set aside assessments of costs - permanent stay.

LEGISLATION CITED : Legal Profession Act 1987 s 208L, s 208M

CASES CITED : Wentworth v Rogers; Wentworth & Russo v Rogers [2006] NSWCA 145

Katherine Wentworth (First plaintiff) PARTIES : Salvatore Russo (Second plaintiff) Gordon Rogers (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13492/01 Wentworth v Rogers 13494/01 Wentwoth & 1 Other v Rogers

JUDGMENT 1 HIS HONOUR: By notices of motion, Ms Wentworth seeks orders setting aside assessments of costs issued on 24 October 2001. The assessments in proceedings 91247/00 are for $25,300.50 and $4,292.75 payable by Ms Wentworth and the assessment in proceedings 91248/00 is for $147,085.03 payable by Ms Wentworth and Mr Russo. Mr Russo joins Ms Wentworth in the application to set aside this cost assessment. Both cost assessments were made in favour of Mr Rogers. 2 The motions were listed for hearing on 30 October 2007. Mr Cotman SC appeared for the plaintiffs and there was no appearance by or on behalf of Mr Rogers. The hearing proceeded in his absence and judgment was reserved. 3 It seems that Mr Rogers regards himself as not having an interest in the proceedings. In a letter dated 23 July 2007 addressed to the "Chief Registrar". Mr Rogers wrote: "I wish to bring to the Court's attention that on 9 October 2006 I assigned absolutely cost orders awarded in the Supreme Court in my favour, amounting to $25,300.50 (91247/00) and $147,085.03 (91248/00) to Virginia Lydiard, Gayle Preston and Richard Licardy. As such I cannot see how I am referred to as the 'defendant' when I have no beneficial interest in the matter".

A copy of what is stated to be a letter of Assignment to Ms Lydiard is attached to the letter to the Registrar. 4 Ms Lydiard, Ms Preston and Mr Licardy are not parties to the motions. They, however, have an interest in the proceedings. It was their professional fees which were the subject of the cost assessments. Moreover, the Court has been informed by Mr Rogers of an assignment of the cost orders to them. 5 As the orders sought adversely impact upon their interests I had the motions re-listed before me on 1 November 2007. On that day I directed that Ms Lydiard, Ms Preston and Mr Licardy be notified of the orders sought and of the failure by Mr Rogers to appear. I further directed that an enquiry was to be made of each of them as to whether they wished to participate in the proceedings in opposition to the orders sought. I stated that should any of them express the desire to oppose the motions consideration might then be given to joining that person as a party in the proceedings. Should no such interest be expressed, I would proceed to give judgment on the motion on the evidence and argument advanced during the ex parte hearing. The motions were stood over for further mention today. 6 In accordance with my directions, Ms Lydiard, Ms Preston and Mr Licardy were notified of the orders sought in the motions and of Mr Roger's failure to appear. By a letter dated 8 November 2007 addressed to the Registrar, Mr Licardy advised that he and both counsel had not accepted any assignment and did not intend to become parties to the proceedings. Mr Licardy further stated that he would be sending Mr Rogers a copy of his letter. 7 Neither the Court nor the plaintiffs, I am informed, have subsequently heard from Mr Rogers. 8 I will accordingly proceed to give judgment on the motions. 9 The background to the present proceedings may be briefly stated:

On 28 August 1997 Sperling J made an order that Ms Wentworth pay Mr Rogers's costs on an indemnity basis in proceedings 9127/00. The Court of Appeal confirmed these orders on 29 October 1998. Mr Dwyer, a cost assessor, made assessments of costs in favour of Mr Rogers for $25,300.50 and $4,292.75 which were payable by Ms Wentworth. These assessments are evidenced by certificates of assessment issued 24 October 2001. 10 Costs orders in proceedings 91248/00 were made by the Court of Appeal on 12 June 1997 and on 21 October 1998 in favour of Mr Rogers against Ms Wentworth and Mr Russo. The cost assessor, Mr Dwyer, made an assessment of costs in favour of Mr Rogers for $147,085.03 which was payable by Ms Wentworth and Mr Russo. This assessment is evidenced by a certificate of assessment issued 24 October 2001. 11 Central to the assessments was the cost assessor's determination that Mr Rogers's legal representatives were acting for him on a "no win no fee" basis as opposed to acting on a purely pro bono basis (that is, for free and without any payment or any expectation of payment in the public good). 12 Ms Wentworth and Mr Russo contended that the cost assessor had no jurisdiction or power to make this determination. 13 On 15 August 2002, Barrett J refused leave to appeal the determinations of the cost assessor under s 208M of the Legal Profession Act 1987. Having refused leave under s 208M, Barrett J disqualified himself from hearing the s 208L appeal (appeal on the matter of law) which was subsequently heard and dismissed by Patten AJ. 14 The plaintiffs appealed to the Court of Appeal and were successful: Wentworth v Rogers; Wentworth & Russo v Rogers [2006] NSWCA 145. The Court of Appeal, shortly stated, allowed the appeal, set aside the orders made and granted the plaintiffs leave to appeal to the Court from the determinations of the costs assessor issued on 24 October 2001. The appeals were remitted to the Common Law Division for determination. The Court of Appeal determined that as a result of the proposed orders, a Common Law Judge would first have to ascertain what is the content and proper interpretation of the arrangements governing costs and disbursements between Mr Rogers and his legal advisers. This could be best clarified by resort to oral evidence tested in cross-examination from those directly involved: Wentworth v Rogers per Santow JA at [2] and [62]. Santow JA at [65] stated: "This review should be carried out so that it deals only with the matters identified, and in an expeditious manner. It must be remembered that considerable delay and cost has already attended the costs orders originally made. Furthermore, any appeal must be pursued by the appellants with all reasonable expedition." 15 The affidavit of Mr Russo sworn on 18 July 2007 details the extensive steps which he and Ms Wentworth have taken to pursue the appeals without delay. It is evident that Mr Rogers has failed to comply with Court orders for the filing of affidavits, the provision of verified discovery and of answers to interrogatories. Indeed, an order was made on 1 June 2007 that if Mr Rogers failed to answer the interrogatories within 28 days, upon the expiration of a further 14 days, his claim for costs be permanently stayed. This order, it appears, has not been complied with. It seems that Mr Rogers has no intention of complying with the orders made by the Court. It further appears that he has no interest in the appeals being heard. 16 In the present proceedings orders are sought that the certificates of assessment be set aside and in lieu thereof certificates in the amount of nil dollars be issued. In the alternative a permanent stay of the certificates of assessment is sought. 17 Mr Cotman SC contends that the certificates of assessment may be set aside as the onus is on Mr Rogers to prove that he was entitled to an assessment of costs in his favour. The issue of Mr Rogers's entitlement, he submits, was raised in the summons which originally commenced these proceedings and once raised Mr Rogers bears the onus. For this submission, Mr Cotman SC points to what was said by Basten JA in Wentworth v Rogers [at 200]: "To the extent that questions of onus arise, the better view is that, once an issue of entitlement has been raised, the onus lies on the party seeking to establish a legal liability to prove the elements necessary for success. For present purposes, however, there is no need to reach a final conclusion in relation to that issue." 18 To my mind the issue is not raised merely by the originating summons. There must be some evidentiary material before the Court before the onus can be said to lie with Mr Rogers. In any event Basten JA did not reach a final conclusion on the issue of onus of proof. 19 The plaintiffs seek to set aside the certificates of assessment made by the cost assessor. Those certificates of assessment, in my opinion, may not be set aside simply by raising the issue in the pleadings. In the present proceedings, there is no evidence upon which orders setting aside the certificates of assessment might be made. The appropriate remedy is to grant a permanent stay. 20 Accordingly, I make the following orders in case number 13492 of 2001:

(1) The certificates of assessment issued in Assessment no 91247/00 be permanently stayed. (2) The defendant is to pay the plaintiff's costs of the motion. 21 I make the following orders in case no 13494 of 2001:

(1) The certificates of assessment issued in Assessment no 91248/00 be permanently stayed. (2) The defendant is to pay the plaintiffs' costs of the motion. **********

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