D Attorneys and Sresbodan

[2017] FamCA 404

FAMILY COURT OF AUSTRALIA

D ATTORNEYS & SRESBODAN [2017] FamCA 404

FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of decision – Where the registrar refused to assess an itemised costs account – Hearing de novo – Where the account was prepared by an expert costs assessor – Where there is no obvious problem with the account – Application allowed – Order for the itemised costs account to be assessed.

Family Law Rules 2004 (Cth) rr 19.19, 19.22, 19.37, 19.43, Sch 3, Sch 4

APPLICANT: Mr E and Mr D trading as  D Attorneys

RESPONDENT: Mr Sresbodan

FILE NUMBER: SYF 4345 of 2006

DATE DELIVERED: 8 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 8 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr E Solicitor

SOLICITOR FOR THE APPLICANT: D Attorneys

FOR THE RESPONDENT: No appearance

Orders

1. That the itemised costs account filed by  D Attorneys on 27 April 2017 be assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym D Attorneys & Sresbodan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4345 of 2006

Mr E and Mr D trading as D Attorneys

Applicant

And

Mr Sresbodan

Respondent

REASONS FOR JUDGMENT

1. By an Application in a Case filed on 12 May 2017 Mr E and Mr D trading as  D Attorneys seek the review of a registrar’s decision not to assess an itemised costs account filed by them on 27 April 2017. 

2. Mr Sresbodan did not appear today but I was satisfied that he had been served with the application and given notice of today’s hearing date.

3. In these proceedings I made a costs order in favour of D Attorneys against Mr Sresbodan on 20 September 2016, which was amended on 27 September 2016. In due course an itemised costs account was prepared and served upon Mr Sresbodan. He did not file a notice disputing the account and, accordingly, D Attorneys sought an assessment of the itemised costs account under r 19.37 of the Family Law Rules 2004 (Cth) (“the Rules”).

4. On 5 May 2017 a registrar declined to assess the itemised costs account and returned it to D Attorneys. In a letter dated that day, the registrar referred to r 19.22(1) of the Rules, which requires itemised costs accounts to specify each item of cost and expense, and that each item be numbered and described in sufficient detail to enable the itemised costs account to be assessed. The registrar also indicated that the itemised costs account did not appear to have been prepared in accordance with the scale of costs in Sch 3 of the Rules for the relevant periods.

5. Pursuant to r 19.19(2) of the Rules, the maximum amount of costs that a person may recover for fees is an amount calculated in accordance with Sch 3 and Sch 4 of the Rules.

6. A review of the decision of a registrar is not an appeal. It is a hearing de novo and I must consider for myself whether or not the itemised costs account should proceed to assessment or not.  It is not a question of looking to the registrar’s decision or reasons to see whether there has been an error. 

7. The itemised cost account contains 551 numbered entries, each of which bears a date, a description of the entry and the amount claimed. It seems to me to comply with the rules for the preparation of an itemised account.

8. Sch 3 of the Rules sets out the various amounts that can be claimed under r 19.19. It has been amended from time to time so that different iterations of the schedule apply at different periods; thus, in respect of a bill that covers more than one period, different iterations of Sch 3 will have to be applied.

9. The itemised costs account was prepared by Ms KK, who is a legal practitioner and principal of a legal costs consultancy company. It is clear, therefore, that she has expertise in costs assessment. Her opinion is that, save for one entry, the costs claimed comply with various iterations of Sch 3 that have applied from time to time. The one item that might cause some difficulty is item 10 of the costs account, which Ms KK opines whilst falling within item 106 of the schedule nonetheless requires the exercise of a discretion under r 19.43 of the Rules for there to be an allowance of the claim at a higher rate.

10. For myself, I have picked a number of entries in the itemised costs account covering a number of different dates and each of the ones that I found (and I am not pretending at all to have looked at any considerable number) complied with the relevant version of Sch 3 at the time.

11. Taking these matters into account, I am unable to see why the itemised costs account was not accepted for assessment.  If, of course, an item is claimed in an itemised cost account which is not in accordance with the schedule or is otherwise not reasonable, the registrar can, of course, disallow or amend the claim.  That is the very point of assessment.

12. Further, if significant parts of the itemised costs account have been claimed in accordance with the wrong iteration of the schedule, then I am of the opinion that it is reasonable for a registrar to require the account to be amended to comply with the schedule rather than have to themselves assess and alter every entry.  However, as I have said, that is not the position here. 

13. On the last occasion that the matter was before me, I adjourned it so as to enable Ms KK to attempt to speak to the registrar to try and ascertain what, in fact, the difficulty was.  It appears that Ms KK’s understanding of the discussion with the registrar was that the registrar thought that the correct scale had not been used for the relevant time periods. Ms KK assured the registrar that she thought they were correctly claimed and the registrar indicated that the matter would be relisted to review the costs in chambers in the next few days. 

14. It may, therefore, be that this application is now otiose but, given that it has been brought and given that the matter has not yet been finalised, it is appropriate to deal with it.  As I have indicated, I can see no bar to the assessment proceeding.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 8 June 2017.

Associate: 

Date:  9 June 2017