Cameron v Stephen Paul Firth (Trading As Firths The Compensation Lawyers)

[2006] NSWSC 610

CITATION:	Cameron v Stephen Paul Firth (Trading As Firths The Compensation Lawyers) [2006] NSWSC 610
HEARING DATE(S):	19 June 2006
JUDGMENT DATE :	29 June 2006
JURISDICTION:	Common Law Division
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	Summons dismissed. Plaintiff is to pay the costs of the Summons.
CATCHWORDS:	Appeal from panel - no appeal as of right - no basis for the granting of leave.
LEGISLATION CITED:	Not applicable
PARTIES:	Rita Cameron (Plaintiff) Stephen Paul Firth (t/as Firths The Compensation Lawyers) (Defendant)
FILE NUMBER(S):	SC 11191/06
COUNSEL:	In person (Plaintiff) Mr D E Shoebridge (Defendant)
SOLICITORS:	Not represented (Plaintiff) Firths - The Compensation Lawyers (Defendant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 6941/01
LOWER COURT JUDICIAL OFFICER :	Arbitrator E C Bramble
LOWER COURT DATE OF DECISION:	12 August 2002

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

Thursday, 29 June 2006

11191/06 Rita Cameron v Stephen Paul Firth (t/as Firths The Compensation Lawyers

JUDGMENT

1 His Honour: The Defendant is a solicitor. He had acted for the Plaintiff in respect of proceedings brought by her in the District Court. The parties had entered into a Costs Agreement.

2 The retainer of the Defendant came to an end. The parties fell into dispute as to the quantification of the costs payable to the Defendant.

3 The Defendant made an application for an assessment. The assessment was referred to a Costs Assessor (Mr Castle). A bill of costs dated 13 August 2003 was placed before him. He dealt with the application. He determined that the bill of costs was unjust. This was later treated as a setting aside of the costs agreement.

4 The assessment of costs on a fair and reasonable basis came to be dealt with by another Costs Assessors (Mr Salier). He had a detailed bill of costs before him. He was provided with objections to that bill and responses to the objections. He carried out the assessment and determined that costs were payable in the sum of $28,602.61.

5 In the making of the assessment he dealt with all of the objections (including objections as to exaggeration of time spent on work and over-charging).

6 The Plaintiff applied to the Panel for a review of that assessment. The application was referred to a Panel (Messrs. Boyd-Boland and Scammell). The Panel affirmed the determination of the Costs Assessor.

7 The written reasons provided by the Panel contained the following:-

“4. Determination
4.1 The costs assessor clearly considered the specific objections and other items and we agree with his assessment.
4.2 The assessed profit costs are fair and reasonable on a global basis for the work done.
4.3 Many of the specific objections lack substance even on a mere reading of the bill. Many others lack substance when considering the natural course of the matter. Others make no sense.
4.4 We reviewed the disbursements and agreed with the assessor’s determination in relation to disbursements.
4.5 We determined to confirm the costs assessor’s determination.
5. Grounds for review

1. the costs assessor’s reasons and his notation on the bill show that the costs assessor did not disregard the matters referred to,
2. the Review Respondent must pay the witnesses expenses when assessed,
3. evidence in support of the claimed disbursements is satisfactory,
4. there was no evidence of overcharging for the services referred to,
5. the material presented in support of the allegation did not support the allegation and the allegation is not relevant to the assessment,
6&8. although clearly unfortunate for the Review Applicant, her medical condition is not relevant to the assessment of costs,
7. neither the costs assessor nor the panel has authority to require the Review Respondent to pay the debits of the Review Applicant or to compensate her for “Defamation, Breach of Duty of Care and Negligence”.”

8 On 10 March 2006 the Plaintiff filed a Summons in this Court. She is a litigant in person. The relief claimed in the Summons is as follows:-

“1. I would like to make a request to the Court to Set Aside the Determination Of Costs a total of $28,602.61 made by the Review Panel.
2. A total of not more than $5,000 should only be paid to the Defendant.”

9 The grounds of appeal are said to be as follows:-

“1. The total amount is unfair, unjust and unreasonable.
2. A payment of $2,042.70 has already been paid to Mr Firth the Defendant before the 11 September 2003.
3. The Defendant did not provide receipts or invoices of proof of payments.
4. I strongly believe the defendant and his solicitors did less than $5,000.00 worth of work.
5. The Defendant has continuously overcharged me for certain units.”

10 The proceedings were heard on 19 June 2006. The Plaintiff appeared in person. The Defendant was represented by Counsel.

11 The legislation provides a narrow ambit of challenge to a determination by the Panel. There is an appeal as of right where there has been a decision as to a matter of law arising in the proceedings to determine the application. A party may also make an application for leave to appeal. The Court has a discretionary power to grant leave. It is exercised so that justice is best served.

12 The Plaintiff bears the onus of satisfying the Court of an entitlement to relief. A basis that justifies the disturbing of the determination must be shown.

13 Whilst the Summons does not identify the basis of the application, it is clear from the grounds that the challenge does not relate to a decision as to matter of law.

14 The Plaintiff has sworn affidavits in the proceedings. I have read that material and have had regard to that which is relevant to the proceedings before this Court. I have inter alia read the reasons provided both by Mr Salier and the Panel. The grounds now relied on by the Plaintiff have been fully addressed by both the Costs Assessor and the Panel. I am not satisfied that there has been any error by either of them.

15 The second ground refers to a sum of $2,042.70. This would appear to be a typographical error. Presumably, it relates to a sum of $2,096.76 ($1,840 plus interest) which was paid for the release of a file. The principal has been taken into account by the costs assessors and credit is to be given for it by the Defendant.

16 Accordingly, there is no appeal as of right and no case has been made out for the granting of leave.

17 It is appreciated that the Plaintiff may be very unhappy about the result produced by way of costs assessment. However, it needs to be appreciated that dissatisfaction with such a result is not a basis for challenge. I should add that in this case the assessment process has been in the hands of three very experienced Costs Assessors who have subjected the bill of costs to close scrutiny.

18 As no basis has been demonstrated for the disturbing of the determination, the appeal must fail.

19 The Summons is dismissed. The Plaintiff is to pay the costs of the Summons.

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