Donnelly and anor. v Ross Mining NL

[1999] NSWSC 960

CITATION:	Donnelly & anor. v Ross Mining NL [1999] NSWSC 960
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	11274/99
HEARING DATE(S):	6/9/99; 9/9/99; 16/9/99
JUDGMENT DATE:	23 September 1999
PARTIES :	Andrew Donnelly and David Mundine Ross Mining NL
JUDGMENT OF:	Sully J

COUNSEL :	Mr. Oshlack (for Donnelly) Mr. Mundine (in person) Mr. Skinner (defendant)
SOLICITORS:	Blake Dawson Waldron (defendant)
CATCHWORDS:
ACTS CITED:	Legal Profession Act 1987 (NSW)
CASES CITED:	Alister v The Queen [1984] 154 CLR 404 at 414
DECISION:	As to Summons filed 26/5/99 - claim for relief in para 1 dismissed; claim for relief in para 2 struck out; appellants to pay costs. As to Notice of Motion filed 5/8/99 - dismissed with costs. As to Amended Summons filed 13/9/99 - dismissed with costs. As to Notice of Motion filed 19/8/99 - struck out with no order as to costs.

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

23 September 1999

11274/.99 - Andrew DONNELLY & David MUNDINE v ROSS MINING NL

JUDGMENT

1   HIS HONOUR: Before the Court are the following applications:

1. An application by way of Summons filed on 26 May 1999.

2. A Notice of Motion filed on 5 August 1999.

3. A Notice of Motion filed on 19 August 1999.

4. An Amended Summons filed on 13 September 1999.

2   In the Summons filed on 26 May 1999 Mr. Andrew Donnelly and Mr. David Mundine, (to whom I shall refer for the sake of convenience as “the appellants”), seek against Ross Mining NL, (to which entity I shall refer for the sake of convenience as “the respondent”), relief expressed as follows:

“1. A declaration that the solicitors for the Appellants for the purposes of the Costs assessment had acted with unsatisfactory conduct in breach of section 127(1) of The Legal Professions Act 1985.

2. An order granting the appellants Leave to Appeal for the court to hear and determine the appeal.”

3   Such a summons is subject to the requirements of SCR Pt 51A. Part 51A Rule 2(6) requires that such a summons shall be accompanied by a statement setting out the nature of the case which it is sought to make on the projected appeal; the questions involved in the projected appeal; and the reasons why leave should be given for the projected appeal. 4   Presumably in conformity with that requirement of the Rules, a document was filed on 29 July 1999. A photocopy of the document is attached, for ease of reference, to this judgment. 5   The notice of motion filed on 5 August 1999 seeks, at the instance of the appellants, the following relief:

“1 The appellants seek leave to amend the Notice of Appeal for an order that the payment of the costs being appealed from the decision of the costs assessor be stayed until the leave to appeal is determined or until further order.
2. Costs reserved.”

6   The notice of motion filed on 19 August 1999 is that of the respondent. The notice of motion seeks the following relief:

“1. The Appellants’ Notice of Motion dated 5 August 1999 and returnable on 19 August 1999 amending the Appellants’ Notice of Appeal dated 26 May 1999 be dismissed.
2. The Appellants’ Notice of Appeal and Summons dated 26 May 1999 be struck out as disclosing no reasonable cause of action.
3. The Appellants’ Notice of Appeal and Summons dated 26 May 1999 be dismissed as being out of time.
4. Costs.”

7   The Amended Summons filed on 13 September 1999 seeks at the instance of the appellants the following relief:

“1. An order pursuant to part 51A rule 3(3) extending the time for the lodgement of this appeal.
2. An order granting the applicants leave to appeal pursuant to section 208M of the Legal Profession Act 1987 from the determination of Ross Graham Pannifex costs assessor, dated the 16th of April 1999 in matter no. 92674 of 98.
3. Any other order which the court deems fit.
4. Costs of this summons.”

8   At all stages of the proceedings before this Court, the respondent has been represented by counsel; Mr. Donnelly has been represented by Mr. Oshlack, to whom the Court granted leave to appear as agent for Mr. Donnelly; and Mr. Mundine has appeared for himself. 9   The background to the proceedings in this Court is provided by antecedent proceedings in the Land and Environment Court. The material before this Court as to the nature of, and the course of, the proceedings in the Land and Environment Court, is incomplete. It appears, nonetheless, that there were proceedings instituted in the Land and Environment Court by the appellants against two companies of which the present respondent was one. The essence of the proceedings was a claim by the appellants to an entitlement, the nature and extent of which is not clear from the evidence before this Court, to native title over certain land. 10   On 2 June 1998 Talbot J of the Land and Environment Court gave judgment in favour of the two companies. The effect of that judgment was either to dismiss or to strike out essential parts of the claim as formulated in the Land and Environment Court by the appellants. Those who were then advising the appellants appear to have taken the view that what was left of the appellants’ claims could not succeed; and so the undismissed balance of the claims as originally formulated in the Land and Environment Court was discontinued. 11   In the wake of those developments, it became necessary for Talbot J to consider the question of costs. This his Honour did in a judgment published on 9 July 1998. His Honour ordered that the applicants pay, so far as is at present relevant, the costs of the respondent of the proceedings in the Land and Environment Court. Talbot J, in the course of giving his Honour’s reasons for judgment, observed that the legal issues raised before the Land and Environment Court “were all comparatively clear”. His Honour added: “This case cannot be regarded as a ‘test case’ of difficult or novel legal issues”. 12 The effect of the costs order made by Talbot J entitled the respondent to make an application pursuant to s.202 of the Legal Profession Act 1987 (NSW), [“the Act’]. That section, so far as is at present material, provides as follows:

“(1) A person …………… who is entitled to receive …………… costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs.”

13   In due course the respondent made such an application; and Mr. Ross G. Pannifex, a costs assessor for the purposes of the Act, had the respondent’s application referred to him for assessment. In due course Mr. Pannifex determined that the respondent was entitled to recover from the appellants a sum of costs assessed at $87,504. 14   Mr. Pannifex was required by the Act to proceed, thereupon, in manner provided by s.208J of the Act. So far as is at present material, that section provides as follows:

“(1) On making a determination, a costs assessor is to issue to each party a certificate that sets out the determination. …………………………………
(3) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs……………………………………………………………………….. “

15   Mr. Pannifex’s certificate as to his costs assessment has been filed in the Land and Environment Court. This has had the effect, pursuant to s.208J(3) of the Act, of making the appellants liable to the respondent, as though upon an enforceable judgment of the Land and Environment Court, for a judgment debt of $87,504 as stipulated in Mr. Pannifex’s certificate. 16   The appellants wish to dispute their liability to pay that judgment debt. In order to do so, it is necessary for them to go behind Mr. Pannifex’s certificate. In order to do that, the appellants must have recourse to either or both of ss 208L and 208M of the Act. Section 208L makes provision for an appeal to this Court “as to a matter of law” by a party who is dissatisfied with a determination of a costs assessor. Section 208M provides that such a dissatisfied party may seek leave of this Court to appeal against the determination of the costs assessor, there being no restriction of such an application for leave to an application made “as to a matter of law”. 17 It was not contended by any party to the proceedings in this Court that s.208L applied in the case of the present appellants. The present appellants seek, rather, to bring their case within s.208M of the Act. The relevant provisions of s.208M are as follows:

“(1) A party to an application relating to a bill of costs may, in accordance with the Rules of the Supreme Court, seek leave of the court to appeal to the court against the determination of the application made by a costs assessor.
(2) [not applicable in the case of the present appellants]
(3) The Supreme Court ………………….. may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5) After deciding the questions the subject of the appeal, the Supreme Court …………… may, unless it affirms the cost assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.”

18 As I have earlier noted, SCR Part 51A is applicable to an application, made pursuant to s.208M of the Act, for leave to appeal to this Court against a determination of a costs assessor. More particularly, Pt 51A, R 2(3) provides that the summons for leave to appeal “shall be filed within 14 days after the material date or within such extended time as the court may fix”. As to an extension of time under Rule 2A(3), it is provided by Rule 2A(5) that the Court may extend time under sub-rule (3) “at any time”. 19   The application in any particular case of r.2A(3) depends, obviously, upon the correct definition of “the material date”. This expression is itself defined in R.2 of Part 51A. So far as is at present material, it is there provided that “material date” means “the date on which notice of the decision was given to the person who wishes to appeal by or on behalf of the person who made the decision”. 20   A copy of the certificate issued by the costs assessor is in evidence. It bears the date 16 April 1999; and there is no reason to think that it was in fact issued on any other date. 21   As to the giving to the appellants of notice of the certified decision of the costs assessor, there is before this Court evidence in the form of a letter written on 9 September 1999 by Mr. Pannifex, the costs assessor, to the solicitors for the respondent. That letter reads, formal parts omitted, as follows:

“I refer to a telephone conversation with Rebbecca Mohr on 9th September 1999 and note you have my letter of 15th April 1999 written to both parties and the certificate in Forms 3 and 4 which were enclosed with it.
I note the certificates were each dated 16th April 1999, and confirm my recollection is that I prepared the letter to both parties on 15th April and prepared and signed the certificates on 16th.
While I have no postage book or recollection independently of my file, my invariable practice is to post the letters and certificates to all parties as soon as possible after the same have been prepared.
I note 16th April 1999 was a Friday. I am sure that the above letter directed to both parties and enclosed certificates were posted by me to both parties either on that day, or the following Monday 19th April 1999.”

22   Miss Mohr, to whom reference is made in Mr. Pannifex’s letter, is the solicitor having carriage, on behalf of the respondents, of the proceedings in this Court. Miss Mohr has sworn an affidavit dated 10 September 1999 to which she has annexed, among other things, copies of two letters. One of them is a copy of the letter from Mr. Pannifex and to which I have referred. The other is a copy of a letter, also written by Mr. Pannifex, but dated 15th April 1999. It is a letter addressed by name both to the solicitors for the respondent and to the solicitors for the appellants. It sets out various matters explanatory of the ultimate decision reached by the costs assessor and certified by him in the certificate dated 16 April 1999. Miss Mohr deposes to the fact that a copy of that letter reached the office of the respondents’ solicitors on 19 April 1999. 23   Miss Mohr was not required for cross-examination on her affidavit. There is no other reason to doubt the reliability of the matters to which she has deposed in her affidavit; and I accept, accordingly, the contents of that affidavit evidence. Mr. Pannifex was not subpoenaed either by the appellants or by the respondent to give evidence or to produce documents; with the result that the Court has had no assistance from Mr. Pannifex save the bare assistance afforded by him in his letter dated 9 September 1999. There is no reason that I can see to doubt the veracity of what Mr. Pannifex says in his letter; and I accept, therefore, as reliable the statements contained in his letter. 24   The position of the appellants respecting their receipt of notice of the certificate of the costs assessor is, to say the least, imprecise. 25   Mr. Mundine, who appeared, as previously noted, unrepresented, addressed the Court during the course of the recent hearing. What Mr. Mundine then said conveyed with complete clarity the continuing dissatisfaction and sense of grievance which he bears in connection with anything and everything concerned with the proceedings in the Land and Environment Court, including the assessment of the costs of the proceedings in that Court. It is equally clear that Mr.Mundine feels, and feels very strongly indeed, that such legal representation as he has hitherto had, has been both incompetent and ineffective. If I have understood Mr. Mundine correctly, he is strongly of the view that some at least of the things done by his former solicitors were done without his instructions. I am not sure whether Mr. Mundine’s final position is that he has never seen the certificate; or whether his final position is that he has seen it, but only in very recent times, and then well after the date of issue of the certificate. Mr. Mundine did not give evidence before this Court; nor did he call other oral evidence or tender any documentary evidence. 26   Mr. Donnelly’s position is marginally clearer. On 13 September 1999 Mr. Donnelly swore an affidavit in connection with the hearing before this Court. In paragraph 5 of that affidavit, Mr. Donnelly says that the first he knew of the costs assessment or of its ultimate outcome was when Mr. Oshlack showed him, on or about 18 May 1999, a copy of the determination: (by which I take him to mean a copy of the certificate dated 16 April 1999). In paragraph 6 of that affidavit Mr. Donnelly deposes as follows:

“I received no communication at all from Craddock, Murray and Neumann about the costs assessment while it was in progress. Nor did I have any knowledge that I had a right to take part in any way with the process of the costs assessment. If I had know that I had such a right, and that an assessment was in progress, I would have wanted to take part in it.”

27   Mr. Donnelly had sworn, on 6 September 1999, another affidavit in connection with the hearing before this Court. In that affidavit he sought leave to refer to, among other paragraphs, paragraph 6 of an affidavit that he had sworn on 19 May 1999 in connection with the proceedings in the Land and Environment Court. In paragraph 6 of that affidavit in the Land and Environment Court proceedings, Mr. Donnelly deposes as follows:

“Annexed to this affidavit and marked with the letter D is a copy of the Certificate As To Determination Of Costs and say that I have not seen this document before.”

28   It will be observed that there is a conflict between what Mr. Donnelly has sworn in paragraph 5 of his affidavit of 13 September 1999, and what he had earlier sworn in his affidavit of 19 May 1999, as to the date upon which he first had notice that there had been a costs determination and that a certificate of its outcome had issued from the costs assessor. This discrepancy is not without significance in proceedings which turn, in a very real sense, upon the proper determination of the relevant “material date”. The discrepancy stands, however, entirely unexplained by Mr. Donnelly. Mr. Donnelly, like Mr. Mundine, gave no evidence before this Court. 29   The appellants relied, among other affidavits, upon an affidavit which Mr. Oshlack had sworn on 26 May 1999. Annexures “A” and “B” to that affidavit are copies of documents addressed to, and apparently communicated to, the Registrar of the Land and Environment Court. One document pertains to Mr. Mundine; and the other to Mr. Donnelly. The documents give notice that Mr. Oshlack is appointed as representative in connection with the proceedings in the Land and Environment Court. Mr. Mundine’s document is dated 29 April 1999. Mr. Donnelly’s document is dated 18 May 1999. I think that it is reasonable to infer from those documents, and I do infer accordingly, that Mr. Neumann remained on the record until 29 April 1999 as Mr. Mundine’s solicitor; and until 18 May 1999 as Mr. Donnelly’s solicitor. 30   Such a state of affairs prompts, obviously, an inquiry as to what Mr. Neumann might have to say about the date of any receipt by him of the letters written by Mr. Pannifex on 15 and 16 April 1999. It is, however, the case that the Court has no evidence whatsoever of Mr. Neumann’s stance on that all-important question. No attempt was made by the appellants, so far as I can see, to subpoena Mr. Neumann to give evidence; or, if that were thought too risky from a forensic point of view, to subpoena the production of his relevant office file. 31   At the hearing before this Court, evidence was admitted of a letter written and delivered on 13 September 1999 to Mr. Neumann by the respondent’s solicitors. That letter sought, put simply, the assistance in various respects of Mr. Neumann in connection with the proceedings then current before this Court. As I understand the fact, no response was received to this letter. 32   Given the foregoing tangled, imprecise and generally unhelpful state of affairs, this Court must do its best on the probabilities, given the evidence as it actually stands. Approaching the matter on that basis, I am satisfied on the probabilities of the following things: first, that Mr. Pannifex did forward by pre-paid post to Mr. Neumann, and in accordance with what Mr. Pannifex says in that regard in his letter of 9 September 1999, both a copy of his letter dated 15 April 1999 and a copy of his certificate dated 16 April 1999; secondly, that such documents were received in Mr. Neumann’s office either on, or not later than, Monday 19 April 1999; and thirdly, that, as at such date of receipt, Mr. Neumann continued to hold instructions from both of the appellants to represent them as their legal representative in connection with all aspects of the proceedings in the Land and Environment Court, including the aspect of the implementation of the costs order of Talbot J. 33   The foregoing findings entail that the “material date” for present purposes is 19 April 1999. That entails, in turn, that the 14 day period fixed by Pt 51A Rule 2A(3) expired on 3 May 1999. As is noted in the chronology at the commencement of the present judgment, the first notification of an intention to seek leave to appeal was the filing of a Summons on 26 May 1999; and that document was not only out of time, but was irregular in form in that it was not accompanied by such a statement as is required by Rule 2A(6), such statement not having been filed until 29 July 1999. 34   The foregoing findings entail that there is an onus cast upon the appellants to show cause why they should have, in accordance with Pt 51A Rule 2A(3) and (5), an extension of time in which to apply for leave to appeal. In discharging that onus, the appellants are required, conformably with well established principle, to answer the following questions:

1. Why was a Summons seeking leave to appeal not filed on or before 3 May 1999?

2. Why was such a Summons not filed after 3 May 1999 but sooner than 26 May 1999?

3. Is there practical utility in granting an extension of time for the filing of an application for leave to appeal; that is to say, if such an extension of time be granted, is it reasonably “on the cards” - (to adopt the expression used by Gibbs CJ in Alister v The Queen [1984] 154 CLR 404 at 414) - that leave to appeal will be granted?

35   In my opinion, the answer to question 1 is, plainly: no. In the absence of any evidence about what Mr. Neumann did or did not do in connection with the costs assessment and the resulting certificate of the costs assessor, I do not consider the appellants to have given any, let alone any sufficient, answer to this question. 36   The answer to question 2, also, is in my opinion: no. 37   As to question 3, I have come to the conclusion that it, too, should be answered: no. Subject to one proviso, I cannot find in the evidence before this Court any, let alone any coherent, formulation of the complaint(s) that the appellants have about the rulings and the associated calculations of the costs assessor. The proviso concerns that part of the statement lodged pursuant to Rule 2A(6), being that part of the document commencing with the words “Matters that should have been raised in submissions to the costs assessor would include ………..”. It suffices to say that there is not, in the material before this Court, a scintilla of evidence to support either of the propositions there advanced; or, more importantly, to establish that either or both of those propositions, if established in point of fact, might reasonably be supposed to entail a revision of substance to the costs assessment. 38   I can now summarise, as follows, the conclusions to which I have come:

As to the Summons Filed on 26 May 1999:

1. I dismiss the claim for relief in paragraph 1. It is not relief of a kind contemplated by s.208M of the Act.

2. I strike out the claim for relief in paragraph 2 as being a claim made out of time.

3. I order the appellants to pay the costs of the respondent of this Summons.

As to the Notice of Motion filed on 5 August 1999:

There is no utility remaining to this Notice of Motion. I dismiss it with costs.

As to the Amended Summons filed on 13 September 1999:

1. I refuse the relief sought in paragraphs 1, 2 and 4.

2. There being no other utility to the Amended Summons, I dismiss it with costs.

As to Notice of Motion filed on 19 August 1999:

Given the foregoing orders, there is no purpose to be served in making orders particular to this Notice of Motion. I strike it out with no order as to costs.

39   I make formal orders in accordance with the foregoing summary. The exhibits may be returned.

********** 15

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

23 September 1999

11274/.99 - Andrew DONNELLY & David MUNDINE v ROSS MINING NL

JUDGMENT

1   HIS HONOUR: Before the Court are the following applications:

1. An application by way of Summons filed on 26 May 1999.

2. A Notice of Motion filed on 5 August 1999.

3. A Notice of Motion filed on 19 August 1999.

4. An Amended Summons filed on 13 September 1999.

2   In the Summons filed on 26 May 1999 Mr. Andrew Donnelly and Mr. David Mundine, (to whom I shall refer for the sake of convenience as “the appellants”), seek against Ross Mining NL, (to which entity I shall refer for the sake of convenience as “the respondent”), relief expressed as follows:

“1. A declaration that the solicitors for the Appellants for the purposes of the Costs assessment had acted with unsatisfactory conduct in breach of section 127(1) of The Legal Professions Act 1985.

2. An order granting the appellants Leave to Appeal for the court to hear and determine the appeal.”

3   Such a summons is subject to the requirements of SCR Pt 51A. Part 51A Rule 2(6) requires that such a summons shall be accompanied by a statement setting out the nature of the case which it is sought to make on the projected appeal; the questions involved in the projected appeal; and the reasons why leave should be given for the projected appeal. 4   Presumably in conformity with that requirement of the Rules, a document was filed on 29 July 1999. A photocopy of the document is attached, for ease of reference, to this judgment. 5   The notice of motion filed on 5 August 1999 seeks, at the instance of the appellants, the following relief:

“1 The appellants seek leave to amend the Notice of Appeal for an order that the payment of the costs being appealed from the decision of the costs assessor be stayed until the leave to appeal is determined or until further order.
2. Costs reserved.”

6   The notice of motion filed on 19 August 1999 is that of the respondent. The notice of motion seeks the following relief:

“1. The Appellants’ Notice of Motion dated 5 August 1999 and returnable on 19 August 1999 amending the Appellants’ Notice of Appeal dated 26 May 1999 be dismissed.
2. The Appellants’ Notice of Appeal and Summons dated 26 May 1999 be struck out as disclosing no reasonable cause of action.
3. The Appellants’ Notice of Appeal and Summons dated 26 May 1999 be dismissed as being out of time.
4. Costs.”

7   The Amended Summons filed on 13 September 1999 seeks at the instance of the appellants the following relief:

“1. An order pursuant to part 51A rule 3(3) extending the time for the lodgement of this appeal.
2. An order granting the applicants leave to appeal pursuant to section 208M of the Legal Profession Act 1987 from the determination of Ross Graham Pannifex costs assessor, dated the 16th of April 1999 in matter no. 92674 of 98.
3. Any other order which the court deems fit.
4. Costs of this summons.”

8   At all stages of the proceedings before this Court, the respondent has been represented by counsel; Mr. Donnelly has been represented by Mr. Oshlack, to whom the Court granted leave to appear as agent for Mr. Donnelly; and Mr. Mundine has appeared for himself. 9   The background to the proceedings in this Court is provided by antecedent proceedings in the Land and Environment Court. The material before this Court as to the nature of, and the course of, the proceedings in the Land and Environment Court, is incomplete. It appears, nonetheless, that there were proceedings instituted in the Land and Environment Court by the appellants against two companies of which the present respondent was one. The essence of the proceedings was a claim by the appellants to an entitlement, the nature and extent of which is not clear from the evidence before this Court, to native title over certain land. 10   On 2 June 1998 Talbot J of the Land and Environment Court gave judgment in favour of the two companies. The effect of that judgment was either to dismiss or to strike out essential parts of the claim as formulated in the Land and Environment Court by the appellants. Those who were then advising the appellants appear to have taken the view that what was left of the appellants’ claims could not succeed; and so the undismissed balance of the claims as originally formulated in the Land and Environment Court was discontinued. 11   In the wake of those developments, it became necessary for Talbot J to consider the question of costs. This his Honour did in a judgment published on 9 July 1998. His Honour ordered that the applicants pay, so far as is at present relevant, the costs of the respondent of the proceedings in the Land and Environment Court. Talbot J, in the course of giving his Honour’s reasons for judgment, observed that the legal issues raised before the Land and Environment Court “were all comparatively clear”. His Honour added: “This case cannot be regarded as a ‘test case’ of difficult or novel legal issues”. 12 The effect of the costs order made by Talbot J entitled the respondent to make an application pursuant to s.202 of the Legal Profession Act 1987 (NSW), [“the Act’]. That section, so far as is at present material, provides as follows:

“(1) A person …………… who is entitled to receive …………… costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs.”

13   In due course the respondent made such an application; and Mr. Ross G. Pannifex, a costs assessor for the purposes of the Act, had the respondent’s application referred to him for assessment. In due course Mr. Pannifex determined that the respondent was entitled to recover from the appellants a sum of costs assessed at $87,504. 14   Mr. Pannifex was required by the Act to proceed, thereupon, in manner provided by s.208J of the Act. So far as is at present material, that section provides as follows:

“(1) On making a determination, a costs assessor is to issue to each party a certificate that sets out the determination. …………………………………
(3) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs……………………………………………………………………….. “

15   Mr. Pannifex’s certificate as to his costs assessment has been filed in the Land and Environment Court. This has had the effect, pursuant to s.208J(3) of the Act, of making the appellants liable to the respondent, as though upon an enforceable judgment of the Land and Environment Court, for a judgment debt of $87,504 as stipulated in Mr. Pannifex’s certificate. 16   The appellants wish to dispute their liability to pay that judgment debt. In order to do so, it is necessary for them to go behind Mr. Pannifex’s certificate. In order to do that, the appellants must have recourse to either or both of ss 208L and 208M of the Act. Section 208L makes provision for an appeal to this Court “as to a matter of law” by a party who is dissatisfied with a determination of a costs assessor. Section 208M provides that such a dissatisfied party may seek leave of this Court to appeal against the determination of the costs assessor, there being no restriction of such an application for leave to an application made “as to a matter of law”. 17 It was not contended by any party to the proceedings in this Court that s.208L applied in the case of the present appellants. The present appellants seek, rather, to bring their case within s.208M of the Act. The relevant provisions of s.208M are as follows:

“(1) A party to an application relating to a bill of costs may, in accordance with the Rules of the Supreme Court, seek leave of the court to appeal to the court against the determination of the application made by a costs assessor.
(2) [not applicable in the case of the present appellants]
(3) The Supreme Court ………………….. may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5) After deciding the questions the subject of the appeal, the Supreme Court …………… may, unless it affirms the cost assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.”

18 As I have earlier noted, SCR Part 51A is applicable to an application, made pursuant to s.208M of the Act, for leave to appeal to this Court against a determination of a costs assessor. More particularly, Pt 51A, R 2(3) provides that the summons for leave to appeal “shall be filed within 14 days after the material date or within such extended time as the court may fix”. As to an extension of time under Rule 2A(3), it is provided by Rule 2A(5) that the Court may extend time under sub-rule (3) “at any time”. 19   The application in any particular case of r.2A(3) depends, obviously, upon the correct definition of “the material date”. This expression is itself defined in R.2 of Part 51A. So far as is at present material, it is there provided that “material date” means “the date on which notice of the decision was given to the person who wishes to appeal by or on behalf of the person who made the decision”. 20   A copy of the certificate issued by the costs assessor is in evidence. It bears the date 16 April 1999; and there is no reason to think that it was in fact issued on any other date. 21   As to the giving to the appellants of notice of the certified decision of the costs assessor, there is before this Court evidence in the form of a letter written on 9 September 1999 by Mr. Pannifex, the costs assessor, to the solicitors for the respondent. That letter reads, formal parts omitted, as follows:

“I refer to a telephone conversation with Rebbecca Mohr on 9th September 1999 and note you have my letter of 15th April 1999 written to both parties and the certificate in Forms 3 and 4 which were enclosed with it.
I note the certificates were each dated 16th April 1999, and confirm my recollection is that I prepared the letter to both parties on 15th April and prepared and signed the certificates on 16th.
While I have no postage book or recollection independently of my file, my invariable practice is to post the letters and certificates to all parties as soon as possible after the same have been prepared.
I note 16th April 1999 was a Friday. I am sure that the above letter directed to both parties and enclosed certificates were posted by me to both parties either on that day, or the following Monday 19th April 1999.”

22   Miss Mohr, to whom reference is made in Mr. Pannifex’s letter, is the solicitor having carriage, on behalf of the respondents, of the proceedings in this Court. Miss Mohr has sworn an affidavit dated 10 September 1999 to which she has annexed, among other things, copies of two letters. One of them is a copy of the letter from Mr. Pannifex and to which I have referred. The other is a copy of a letter, also written by Mr. Pannifex, but dated 15th April 1999. It is a letter addressed by name both to the solicitors for the respondent and to the solicitors for the appellants. It sets out various matters explanatory of the ultimate decision reached by the costs assessor and certified by him in the certificate dated 16 April 1999. Miss Mohr deposes to the fact that a copy of that letter reached the office of the respondents’ solicitors on 19 April 1999. 23   Miss Mohr was not required for cross-examination on her affidavit. There is no other reason to doubt the reliability of the matters to which she has deposed in her affidavit; and I accept, accordingly, the contents of that affidavit evidence. Mr. Pannifex was not subpoenaed either by the appellants or by the respondent to give evidence or to produce documents; with the result that the Court has had no assistance from Mr. Pannifex save the bare assistance afforded by him in his letter dated 9 September 1999. There is no reason that I can see to doubt the veracity of what Mr. Pannifex says in his letter; and I accept, therefore, as reliable the statements contained in his letter. 24   The position of the appellants respecting their receipt of notice of the certificate of the costs assessor is, to say the least, imprecise. 25   Mr. Mundine, who appeared, as previously noted, unrepresented, addressed the Court during the course of the recent hearing. What Mr. Mundine then said conveyed with complete clarity the continuing dissatisfaction and sense of grievance which he bears in connection with anything and everything concerned with the proceedings in the Land and Environment Court, including the assessment of the costs of the proceedings in that Court. It is equally clear that Mr.Mundine feels, and feels very strongly indeed, that such legal representation as he has hitherto had, has been both incompetent and ineffective. If I have understood Mr. Mundine correctly, he is strongly of the view that some at least of the things done by his former solicitors were done without his instructions. I am not sure whether Mr. Mundine’s final position is that he has never seen the certificate; or whether his final position is that he has seen it, but only in very recent times, and then well after the date of issue of the certificate. Mr. Mundine did not give evidence before this Court; nor did he call other oral evidence or tender any documentary evidence. 26   Mr. Donnelly’s position is marginally clearer. On 13 September 1999 Mr. Donnelly swore an affidavit in connection with the hearing before this Court. In paragraph 5 of that affidavit, Mr. Donnelly says that the first he knew of the costs assessment or of its ultimate outcome was when Mr. Oshlack showed him, on or about 18 May 1999, a copy of the determination: (by which I take him to mean a copy of the certificate dated 16 April 1999). In paragraph 6 of that affidavit Mr. Donnelly deposes as follows:

“I received no communication at all from Craddock, Murray and Neumann about the costs assessment while it was in progress. Nor did I have any knowledge that I had a right to take part in any way with the process of the costs assessment. If I had know that I had such a right, and that an assessment was in progress, I would have wanted to take part in it.”

27   Mr. Donnelly had sworn, on 6 September 1999, another affidavit in connection with the hearing before this Court. In that affidavit he sought leave to refer to, among other paragraphs, paragraph 6 of an affidavit that he had sworn on 19 May 1999 in connection with the proceedings in the Land and Environment Court. In paragraph 6 of that affidavit in the Land and Environment Court proceedings, Mr. Donnelly deposes as follows:

“Annexed to this affidavit and marked with the letter D is a copy of the Certificate As To Determination Of Costs and say that I have not seen this document before.”

28   It will be observed that there is a conflict between what Mr. Donnelly has sworn in paragraph 5 of his affidavit of 13 September 1999, and what he had earlier sworn in his affidavit of 19 May 1999, as to the date upon which he first had notice that there had been a costs determination and that a certificate of its outcome had issued from the costs assessor. This discrepancy is not without significance in proceedings which turn, in a very real sense, upon the proper determination of the relevant “material date”. The discrepancy stands, however, entirely unexplained by Mr. Donnelly. Mr. Donnelly, like Mr. Mundine, gave no evidence before this Court. 29   The appellants relied, among other affidavits, upon an affidavit which Mr. Oshlack had sworn on 26 May 1999. Annexures “A” and “B” to that affidavit are copies of documents addressed to, and apparently communicated to, the Registrar of the Land and Environment Court. One document pertains to Mr. Mundine; and the other to Mr. Donnelly. The documents give notice that Mr. Oshlack is appointed as representative in connection with the proceedings in the Land and Environment Court. Mr. Mundine’s document is dated 29 April 1999. Mr. Donnelly’s document is dated 18 May 1999. I think that it is reasonable to infer from those documents, and I do infer accordingly, that Mr. Neumann remained on the record until 29 April 1999 as Mr. Mundine’s solicitor; and until 18 May 1999 as Mr. Donnelly’s solicitor. 30   Such a state of affairs prompts, obviously, an inquiry as to what Mr. Neumann might have to say about the date of any receipt by him of the letters written by Mr. Pannifex on 15 and 16 April 1999. It is, however, the case that the Court has no evidence whatsoever of Mr. Neumann’s stance on that all-important question. No attempt was made by the appellants, so far as I can see, to subpoena Mr. Neumann to give evidence; or, if that were thought too risky from a forensic point of view, to subpoena the production of his relevant office file. 31   At the hearing before this Court, evidence was admitted of a letter written and delivered on 13 September 1999 to Mr. Neumann by the respondent’s solicitors. That letter sought, put simply, the assistance in various respects of Mr. Neumann in connection with the proceedings then current before this Court. As I understand the fact, no response was received to this letter. 32   Given the foregoing tangled, imprecise and generally unhelpful state of affairs, this Court must do its best on the probabilities, given the evidence as it actually stands. Approaching the matter on that basis, I am satisfied on the probabilities of the following things: first, that Mr. Pannifex did forward by pre-paid post to Mr. Neumann, and in accordance with what Mr. Pannifex says in that regard in his letter of 9 September 1999, both a copy of his letter dated 15 April 1999 and a copy of his certificate dated 16 April 1999; secondly, that such documents were received in Mr. Neumann’s office either on, or not later than, Monday 19 April 1999; and thirdly, that, as at such date of receipt, Mr. Neumann continued to hold instructions from both of the appellants to represent them as their legal representative in connection with all aspects of the proceedings in the Land and Environment Court, including the aspect of the implementation of the costs order of Talbot J. 33   The foregoing findings entail that the “material date” for present purposes is 19 April 1999. That entails, in turn, that the 14 day period fixed by Pt 51A Rule 2A(3) expired on 3 May 1999. As is noted in the chronology at the commencement of the present judgment, the first notification of an intention to seek leave to appeal was the filing of a Summons on 26 May 1999; and that document was not only out of time, but was irregular in form in that it was not accompanied by such a statement as is required by Rule 2A(6), such statement not having been filed until 29 July 1999. 34   The foregoing findings entail that there is an onus cast upon the appellants to show cause why they should have, in accordance with Pt 51A Rule 2A(3) and (5), an extension of time in which to apply for leave to appeal. In discharging that onus, the appellants are required, conformably with well established principle, to answer the following questions:

1. Why was a Summons seeking leave to appeal not filed on or before 3 May 1999?

2. Why was such a Summons not filed after 3 May 1999 but sooner than 26 May 1999?

3. Is there practical utility in granting an extension of time for the filing of an application for leave to appeal; that is to say, if such an extension of time be granted, is it reasonably “on the cards” - (to adopt the expression used by Gibbs CJ in Alister v The Queen [1984] 154 CLR 404 at 414) - that leave to appeal will be granted?

35   In my opinion, the answer to question 1 is, plainly: no. In the absence of any evidence about what Mr. Neumann did or did not do in connection with the costs assessment and the resulting certificate of the costs assessor, I do not consider the appellants to have given any, let alone any sufficient, answer to this question. 36   The answer to question 2, also, is in my opinion: no. 37   As to question 3, I have come to the conclusion that it, too, should be answered: no. Subject to one proviso, I cannot find in the evidence before this Court any, let alone any coherent, formulation of the complaint(s) that the appellants have about the rulings and the associated calculations of the costs assessor. The proviso concerns that part of the statement lodged pursuant to Rule 2A(6), being that part of the document commencing with the words “Matters that should have been raised in submissions to the costs assessor would include ………..”. It suffices to say that there is not, in the material before this Court, a scintilla of evidence to support either of the propositions there advanced; or, more importantly, to establish that either or both of those propositions, if established in point of fact, might reasonably be supposed to entail a revision of substance to the costs assessment. 38   I can now summarise, as follows, the conclusions to which I have come:

As to the Summons Filed on 26 May 1999:

1. I dismiss the claim for relief in paragraph 1. It is not relief of a kind contemplated by s.208M of the Act.

2. I strike out the claim for relief in paragraph 2 as being a claim made out of time.

3. I order the appellants to pay the costs of the respondent of this Summons.

As to the Notice of Motion filed on 5 August 1999:

There is no utility remaining to this Notice of Motion. I dismiss it with costs.

As to the Amended Summons filed on 13 September 1999:

1. I refuse the relief sought in paragraphs 1, 2 and 4.

2. There being no other utility to the Amended Summons, I dismiss it with costs.

As to Notice of Motion filed on 19 August 1999:

Given the foregoing orders, there is no purpose to be served in making orders particular to this Notice of Motion. I strike it out with no order as to costs.

39   I make formal orders in accordance with the foregoing summary. The exhibits may be returned.

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Last Modified: 09/23/1999