Boral Window Systems Ltd v Rolfe

[2010] QSC 246

SUPREME COURT OF QUEENSLAND

CITATION:	Boral Window Systems Ltd v Rolfe & Anor [2010] QSC 246
PARTIES:	BORAL WINDOW SYSTEMS LTD ACN 004 069 523 (plaintiff/applicant) v RICHARD JOHN ROLFE (first defendant/not a party to the application)
MARISSA LOUISE ROLFE (second defendant/not a party to the application)
CSR BUILDING PRODUCTS LIMITED ACN 008 631 356 (third party to the application)
DEPUTY REGISTRAR (third party to the application)
FILE NO/S:	SC No 14271 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 July 2010
DELIVERED AT:	Brisbane
HEARING DATE:	9 July 2010
JUDGE:	Chief Justice
ORDERS:	1. That there be an assessment of the costs of CSR

Building Products Limited referred to in the order of

White J made 22 March 2010;

2. That Adam Bloom of D G Thompson Legal Costs

Consultants be appointed as costs assessor for the

assessment; and

3. That the plaintiff Boral Window Systems Ltd pay CSR

Building Products Limited’s costs limited to the
hearing before me, to be assessed as necessary on the

standard basis.

CATCHWORDS:	COSTS – Costs assessment by assessing Registrar, not appointed practitioner assessor – when appropriate
COUNSEL:	C Yam for the applicant/plaintiff D M Tooth for CSR Building Products Limited I Enright for the Deputy Registrar
SOLICITORS:	James Conomos Lawyers for the applicant/plaintiff Scoglio Law for CSR Building Products Limited The Deputy Registrar appeared on his own behalf

1. CHIEF JUSTICE: On 22 March 2010, the plaintiff was ordered to pay the costs of CSR Building Products Limited, assessed on the standard basis. CSR delivered a costs statement and the plaintiff delivered a notice of objection. On 16 June 2010, the plaintiff applied to the Registrar “for an assessment of” the costs statement.

2. The Registrar dealt with the matter on the papers, as is customary, on 21 June 2010, noting that no costs assessor had been nominated, and no consent form filed.

3. On 29 June 2010, CSR filed its own application for the appointment of an appointed practitioner assessor, Mr Bloom, to carry out the assessment. On 6 July 2010, the Registrar wrote to the solicitors for the plaintiff indicating his preparedness to appoint Mr Bloom should the plaintiff agree, and confirming his preference to deal with the matter on the papers.

4. On 7 July, the solicitors for CSR wrote to the plaintiff’s solicitors pointing out that costs assessments are ordinarily carried out by appointed practitioner assessors, and not by a registrar, and again seeking the plaintiff’s consent to the appointment of Mr Bloom.

5. The plaintiff’s solicitors then wrote to the Registrar, asserting a right to an assessment by an assessing registrar, not consenting to the appointment of Mr Bloom, and requesting an oral hearing. They copied that letter to CSR’s solicitors.

6. The Registrar proceeded to refer the matter to a Judge, under Rule 982(1) of the Uniform Civil Procedure Rules. Appearing for CSR, Mr Tooth sought the appointment of Mr Bloom, and the costs of the hearing before me.

7. For the plaintiff, Mr Yam sought the appointment of an assessing registrar, or alternatively, that CSR be directed to submit the names of three practitioner assessors for the plaintiff’s consideration. Mr Yam referred to Rule 713, and submitted that absent agreement, a panel of names would ordinarily be submitted. But in this case, no basis of objection to the appointment of Mr Bloom was ever articulated. The plaintiff’s position has always been that an assessing registrar should be appointed, not because there is no appropriate practitioner assessor, but because the rules contemplate assessment by a registrar, and the plaintiff is entitled therefore to an assessment on that basis.

8. Under Chapter 17A of the Uniform Civil Procedure Rules, the term “costs assessor” includes an assessing Registrar. Under rule 713, the Registrar could appoint an assessing Registrar to carry out a costs assessment. But there is good reason why the Registrar should not have done so.

9. There is an established panel of lawyers appointed as costs assessors under rule 743L. Currently there are 25, including practitioners in regional centres: 6 on the Gold Coast, 2 in Maryborough, 1 in Mackay, 1 in Townsville, and 1 in Cairns.

10. Where parties cannot agree on who should carry out the assessment, the Registrar appoints, and I am told this is regularly done ‘on the papers’. There can be no suggestion there is not a sufficient supply of assessors who may be relied on for objectivity – through lack of prior association with the parties. No doubt in making the appointment, the Registrar has regard also to considerations of timelines and expense.

11. I understand that since the introduction of the new costs assessment regime, a Registrar has not carried out an assessment: all have been done by practitioner assessors. This has relieved Registrars of what had become a substantial burden. It has also injected into the assessment process a level of awareness drawn from day to day practice.

12. There should be no need to trouble Registrars with costs assessments save in exceptional cases. The possibility of a Registrar assessment was retained with only that in mind. What could be exceptional? I offer this example. Assessment by a practitioner assessor in a regional centre may not be appropriate because of actual or perceived conflict of interest, and where the cost of having the assessment carried out by a practitioner assessor from elsewhere may not be justified (if, say, an oral hearing were exceptionally required). But that would be a highly unusual case.

13. As to expense, I note that practitioner assessors’ charges have been reasonable, around the $250-$280 per hour basis I am informed, and there has been no need for me to make a limiting practice direction under rule 743O. I understand the new system, also, has led to generally more timely assessments.

14. The end point is that save in exceptional cases, Registrars should not be diverted from their other serious responsibilities into costs assessments, and they should be carried out by appointed practitioner costs assessors.

15. There being no suggested basis for any objection to the appointment of Mr Bloom to carry out this task, he should in these circumstances now be appointed.

16. I turn to the issue of the costs of the hearing before me. The current costs regime has been in operation since 7 December 2007 and is well established. I would have thought it well known by now that assessments are ordinarily carried out by appointed practitioner assessors. Mr Yam told me that he was unaware of the practice, which explains how this matter escalated to the point where there was reference to a judge. The solicitors for CSR alerted Mr Yam to the practice on 7 July. The hearing before me could have been avoided had the plaintiff then accepted that Mr Bloom should be appointed, yet the plaintiff persisted with its claim to the appointment of a registrar. It is unfortunate that misapprehension as to the practice may have fed the plaintiff’s persistence to the point of coming before a judge, but the circumstances combine to warrant my ordering now that the plaintiff pay CSR’s costs of the hearing before me.

17. There will be orders:

1.	that there be an assessment of the costs of CSR Building Products Limited referred to in the order of White J made 22 March 2010;
2.	that Adam Bloom of D G Thompson Legal Costs Consultants be appointed as costs assessor for the assessment; and
3.	that the plaintiff Boral Window Systems Ltd pay CSR Building Products Limited’s costs limited to the hearing before me, to be assessed as necessary on the standard basis.