Croker v Commissioner of Taxation

[2001] NSWSC 188

CITATION:	Croker v Commissioner of Taxation [2001] NSWSC 188
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 10270 of 2001
HEARING DATE(S):	21 March 2001
JUDGMENT DATE:	21 March 2001
PARTIES :	Clayton Robert Croker (Plaintiff) v Commissioner of Taxation of The Commonwealth of Australia (Defendant)
JUDGMENT OF:	Master Malpass

LOWER COURT JURISDICTION :	Costs Assessment
LOWER COURT FILE NUMBER(S) :	91448 of 2000
LOWER COURT JUDICIAL OFFICER :	Greg Walsh

COUNSEL :	N/A
SOLICITORS:	In Person (Plaintiff) Australian Government Solicitor (Defendant)
CATCHWORDS:	Court is not empowered to review a determination of a Costs Assessor - the review process - leave to appeal.
LEGISLATION CITED:	Legal Profession Act 1987, s 208KA, s 208L, s 208M.
CASES CITED:	N/A
DECISION:	See Paragraph 11.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

WEDNESDAY 21 MARCH 2001

10270 OF 2001 CLAYTON ROBERT CROKER v COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA

JUDGMENT


1   These proceedings were commenced by Summons filed on 31 January 2001. The plaintiff now proceeds on an Amended Summons which was filed on 12 March 2001.

2   He is a litigant in person. This Court has made costs orders against him. These proceedings arise out of a determination of a Costs Assessor (Mr Walsh) made on 2 November 2000. The assessed costs are in the order of $8,000.

3   The relief sought in the Amended Summons is as follows:-
“1. An order that the Supreme Court of New Wales (sic) review and dismiss the determination of the Costs Assessor dated the 2nd day of November in the year 2000;
2. An order that the Supreme Court Rules 1970 - Sect 51A.3. (1) be dispensed with;
3. An order that the Leave to appeal be granted to Applicant;
4. An order that the Legal Profession Act (NSW) 1987 - Sect 208KA (1) be dispensed with;
5. An order that the Legal Profession Act (NSW) 1987 - Sect 208KA (5) be dispensed with;
6. An order that the Respondent pay damages for intimidation of the Applicant;
7. An order that the Respondent pay cost in the cause.”

4   The Legal Profession Act 1987 (the Act) makes provision for a review of a determination made by a Costs Assessor (s 208KA). The process involves a review by a panel (as opposed to a review by this Court). This Court has no power to review a determination made by a Costs Assessor.

5 It appears that an attempted application for a review by a panel was unsuccessful (non-compliance with the requirements of s 208KA(5) ). The plaintiff is now out of time for making such an application and the court has no power to extend that time.

6   The review process was intended as a relatively informal, expeditious and less expensive process for the challenging of determinations. It was intended to relieve this Court of the workload that had been borne for some years in dealing with applications by way of appeal from decisions of Costs Assessors.

7 The question of whether or not this Court has jurisdiction to entertain applications under either sections 208L or 208M in the absence of a prior review by a panel, may be a matter of contention. If it does have power, generally speaking this Court could be expected be loath to entertain such application in cases where a plaintiff fails to take advantage of an effective remedy (the review process) for the challenging of a determination.

8 In any event, in so far as the plaintiff brings an application for leave to appeal (see s 208M), such application is also out of time. The grounds upon which the plaintiff relies are set forth in an affidavit sworn by him. Largely, they are irrelevant (including his capacity to pay the costs). I may add that there is nothing before the court which would suggest that there is any basis arising from the merits of the case which would justify either the granting of leave or an extension of time to bring an application for leave. The delay in the bringing of these proceedings is left unexplained.

9 The plaintiff seeks to have the court order that the provisions of s 208KA be dispensed with. The court has no power to grant such relief.

10   I am satisfied that the plaintiff has failed to demonstrate any basis for disturbing the determination. I am satisfied that he has failed to demonstrate any basis for the other relief sought in his process (including the claim for damages).

11   Accordingly, the proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.
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Last Modified: 03/21/2001