Fordyce v Leung

Case •

[2022] NSWCA 55

•

12 April 2022

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Fordyce v Leung [2022] NSWCA 55
Hearing dates: 10 February 2022
Date of orders: 12 April 2022
Decision date: 12 April 2022
Before: Basten JA at [1];
White JA at [15];
Beech-Jones JA at [111]
Decision:

(1) The application for leave to appeal from the order of 15 July 2021 in District Court proceeding 2021/00018135 be dismissed with costs.

(2) The further amended summons dated 6 December 2021 be dismissed.

(3) Subject to order (1), the costs of the further amended summons be costs in the applicant’s summons in District Court proceedings 2021/00087811.

Catchwords:

ADMINISTRATIVE LAW — Bias rule — Actual or apprehended

ADMINISTRATIVE LAW — Procedural fairness

ADMINISTRATIVE LAW — Judicial review — whether primary judge’s order was a final order

CIVIL PROCEDURE — section 127 of the District Court Act 1973 (NSW) — “action”

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 56, 133

District Court Act 1973 (NSW), s 127

Legal Profession Act 2004 (NSW), ss 367A, 368, 372, 384, 385

Supreme Court Act 1970 (NSW), s 69

Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59

Uniform Civil Procedure Rules 2005 (NSW); 36.10, 36.15, 36.16, 50

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Calandra v Murden [2015] NSWCA 231

Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Doyle v Hall Chadwick [2007] NSWCA 159

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Ferella v Stomo [2017] NSWCA 268

Re Frieda and Geoffrey [2009] NSWSC 133; (2009) Fam LR 608

Frumar vThe Owners of Strata Plan 36957 [2010] NSWCA 174

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44

Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522

Leung v Fordyce (No 2) [2019] NSWSC 175

Leung v Fordyce [2019] NSWSC 18

NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559; [2001] NSWSC 494

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98

Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128

Trad v Harbour Radio Pty Ltd [2016] NSWCA 80

Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52

Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170

Category:Principal judgment
Parties:

Proceedings 2021/300567:
Paul Fordyce (Appellant)
Claudia Leung as trustee for the estate of the Late Robert Ho (First Respondent)
Rhodium NSW Pty Ltd (Second Respondent)
District Court of New South Wales (Third Respondent)

Proceedings 2021/295887:
Paul Fordyce (Appellant)
Claudia Leung in her capacity as Executrix of the Estate of the Late Robert Ho (First Respondent)
Rhodium Pty Ltd (Second Respondent)
Representation:

Counsel:
Appellant unrepresented
Lee Corbett (Respondents)

Solicitors:
Appellant unrepresented
HWL Ebsworth Lawyers (Respondents)
File Number(s): 2021/300567; 2021/295887
 Decision under appeal 
Court or tribunal:
District Court of NSW
Date of Decision:
15 July 2021
Before:
J Smith DCJ
File Number(s):
2021/18135

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2014 Claudia Leung (as executrix of a deceased’s estate) and Rhodium Pty Ltd commenced proceedings in the Equity Division against Paul Mervyn Fordyce and his law firm. Those proceedings related to costs agreements relied upon by Mr Fordyce in acting for Ms Leung in relation to the administration of the estate. Mr Fordyce and the law firm were unsuccessful and costs orders were made in favour of the plaintiffs on 20 November 2015 and 1 March 2019.

Ms Leung sought costs assessments in respect of those orders. On 19 January 2021 certificates were released. On 21 January 2021 Ms Leung arranged for the filing of the certificates in the District Court. The certificate is taken to be a judgment of that court for the amount of unpaid costs.

On 8 July 2021 Mr Fordyce filed a notice of motion seeking to have the judgment entered on 21 January 2021 set aside. An order was made by J Smith DCJ on 15 July 2021 refusing the application to set aside the judgment. The order sought to be challenged in this Court is the order by J Smith DCJ.

The principal issues before this Court were:

(i) whether the primary judge’s order was a final order that gives rise to a res judicata that would preclude a judge determining an appeal under s 384 or s 385 of the Legal Profession Act2004 (NSW) from reaching a different conclusion;

(ii) whether the filing of the notice of motion seeking the setting aside or stay of the judgment commenced an action within the meaning of s 127 of the District Court Act 1973 (NSW);

(iii) whether the primary judge’s decision should be quashed on the grounds of denial of procedural fairness or actual or apprehended bias;

(iv) whether the claim for judicial review should be dismissed; and

(v) who should pay the costs of the proceedings.

Held, dismissing the appeal (per Basten JA, White JA, and Beech-Jones JA).

As to issue (i) per Basten JA

Given the separate appeal in relation to the costs assessments resulting in the judgment the subject of the notice of motion, it is clear that refusal of the relevant order sought on the notice of motion did not dispose of the challenges to the costs assessment in matter 2021/00018135: at [8].

As to issue (i), per White JA and Beech-Jones JA

The primary judge’s order was not a final order that gives rise to a res judicata which would preclude a judge determining an appeal under s 384 or s 385 of the Legal Profession Act2004 (NSW) from reaching a different conclusion: at [70], [110].

Doyle v Hall Chadwick [2007] NSWCA 159; Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 174; Calandra v Murden [2015] NSWCA 231; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 cited.

As to issue (ii), per Basten JA and White JA (Beech-Jones JA agreeing)

The filing of the notice of motion seeking the setting aside or stay of the judgment did not commence an action within the meaning of s 127: at [12], [76], [112].

Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 cited.

As to issue (iii) per White JA (Basten JA and Beech-Jones JA agreeing)

The primary judge’s decision should not be quashed on the grounds of denial of procedural fairness or actual or apprehended bias: at [10], [96], [112].

Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 cited.

As to issue (iv) per Basten JA

The further amended summons for judicial review filed on 8 November 2021 should be dismissed: at [14].

As to issue (iv) per White JA (Beech-Jones JA agreeing)

The claim for judicial review should be dismissed because an alternative avenue of appeal was available, namely, statutory appeal under ss 384 or 385 of the Legal Profession Act: [102], [103], [104], [112].

As to issue (v) per Basten JA

Order that the applicant pay the costs of the respondents (other than the District Court) in this Court: at [14].

As to issue (v) per White JA (Beech-Jones JA agreeing)

The applicant should pay the respondents’ costs of the application for leave to appeal but the costs of the summons for judicial review should be costs in the statutory appeal brought by the applicant in the District Court.

Judgment

  1. BASTEN JA: On 10 February 2022 the Court heard two related proceedings involving the same matter, namely an order made in the District Court on 15 July 2021. The applicant in each matter, Paul Mervyn Fordyce, was, at material times, a solicitor practising in New South Wales through an incorporated law firm known as PMFPL Pty Ltd.

  2. The active defendants in the two proceedings, Claudia Leung (as executrix of a deceased’s estate) and Rhodium Pty Ltd, had been the plaintiffs in proceedings in the Equity Division commenced in 2014 against Mr Fordyce and his law firm. Those proceedings related to costs agreements relied upon by Mr Fordyce in acting for Ms Leung in relation to the administration of the estate. Mr Fordyce and the law firm were unsuccessful and costs orders were made in favour of the plaintiffs on 20 November 2015 and 1 March 2019.

  3. Ms Leung sought costs assessments in respect of those orders. On 28 October 2020 a costs assessor completed a preliminary assessment of part of the costs in amounts totalling some $280,000. On 19 January 2021 certificates were released, upon payment of the appropriate fee. On 21 January 2021 Ms Leung arranged for the filing of the certificates in the District Court. Pursuant to s 368(5) of the Legal Profession Act 2004 (NSW) (being the legislation governing the assessment of costs at the relevant time) upon filing, the certificate is “taken to be a judgment of that court for the amount of unpaid costs”.

  4. The filing of the certificate resulted in a District Court case number being allocated, namely 2021/00018135. The order for payment was made in favour of the plaintiffs in the Equity Division against the two defendants, Mr Fordyce and his incorporated law firm.

  5. On 8 July 2021 Mr Fordyce filed a notice of motion, purporting to be in the proceedings 2021/00018135, seeking to have the judgment entered on 21 January 2021 set aside. He also sought to have a garnishee order made on 19 March 2021 set aside and an unrelated payment of money into court paid out to his wife, Mrs Louise Fordyce. The order sought to be challenged in this Court is an order by J Smith DCJ made on 15 July 2021 refusing the application to set aside the judgment entered on 21 January 2021.

  6. There is a large question as to whether a deemed judgment of this kind is properly set aside by way of a notice of motion in the “proceeding” said to be constituted by the filing of a certificate. If that can be done, there will be an issue as to whether the judgement can only be varied in accordance with the Uniform Civil Procedure Rules 2005 (NSW), possibly pursuant to r 36.16(2), the order having been entered. (There might also have been a question in the present case whether it was appropriate to make such an order on a notice of motion to which not all persons affected by the judgment were parties.) The answers to these questions may depend in part on the grounds on which the judgment is sought to be set aside. In the present case, one ground relied upon was that the certificates related to part only of the costs the subject of the orders made in the Equity Division and were invalid for that reason. There were also separate challenges made to the fairness of the process before the assessor.

  7. Perhaps anticipating these difficulties, Mr Fordyce commenced a separate proceeding in the District Court challenging the assessor’s determinations. On 29 March 2021 Mr Fordyce filed in the District Court a summons commencing an appeal in relation to the determination of the costs assessor in matter 2019/00236020, which was the matter in which the costs certificates filed on 21 January 2021 were issued. It identified the determinations as made on or about 28 October 2020, being the date of the relevant determinations. The summons sought an order setting aside the determination of the costs assessor and setting aside of the judgment entered in proceedings 2021/00018135 on 21 January 2021 (proposed order 6).

  8. Given the separate appeal in relation to the costs assessments resulting in the judgment the subject of the notice of motion, it is clear that refusal of the relevant order sought on the notice of motion did not dispose of the challenges to the costs assessment in matter 2021/00018135. As the respondents noted, the dismissal of the order in the notice of motion avoided a potential abuse of process.

  9. Unless it can be said that the opinions expressed by the primary judge in refusing to set aside the judgment entered on 21 January 2021 preclude the applicant from raising those matters in his appeal against the determination of the costs assessor, it cannot be said that the refusal of the order has any legal effect on the rights and interests of the applicant. It was not submitted that any such effect flowed from the refusal. Accordingly, orders in the nature of certiorari quashing the decision are not available, in accordance with the principles established in Ainsworth v Criminal Justice Commission,[1] and Hot Holdings Pty Ltd v Creasy. [2] It is therefore not necessary to determine whether the reasons for refusing to make the order demonstrated error of law on the face of the record, which record included the reasons of the primary judge.

    1. (1992) 175 CLR 564 at 580; [1992] HCA 10.

    2. (1996) 185 CLR 149 at 159 (Brennan CJ, Gaudron and Gummow JJ); [1996] HCA 44.

  10. The challenges to the decision in the District Court based on procedural unfairness and bias must be dismissed for the reasons given by White JA.

  11. Two other matters should be noted. First, the further amended summons filed in the judicial review proceedings in this Court on 8 November 2021 sought a declaration that there was “no judgment in the court below on 15 July [2021]” because the orders had not been entered. The proposed declaration was based on a false premise: the orders entered by the District Court on 15 July 2021 on the computerised records of the Court (JusticeLink) included two relevant orders, namely (i) that Mr Fordyce had leave to amend the notice of motion filed on 8 July 2021 to correct the date on which the certificate was filed, and (ii) an order refusing to set aside the judgment entered on 21 January 2021.

  12. Secondly, an amended summons filed on 18 October 2021 seeking leave to appeal from the same order of the District Court should be dismissed as incompetent. The only right of appeal from a judgment or orders of the District Court lies with a party who is dissatisfied with a judgment or order “in an action”, as provided by s 127(1) of the District Court Act 1973 (NSW). The filing of a costs certificate pursuant to s 368(5) of the Legal Profession Act did not constitute a judgment or order in an action. It follows that an application to set aside such an order is not relief sought “in an action”. Indeed, as explained in Wende v Horwath (NSW) Pty Ltd,[3] even were the order made in the statutory appeal from the determination of the costs assessor, it would not have been an order in an action.

    3. (2014) 86 NSWLR 674; [2014] NSWCA 170 at [20].

  13. There is a question as to the appropriate costs order to be made in this case. Because each summons must be dismissed, the usual order would be that costs should follow the event. The only basis upon which such an order might be resisted in respect of the judicial review proceedings is that neither party objected to the course taken by the judge in dealing with the application to set aside the judgment pursuant to the notice of motion of 8 July 2021. That may be so, but it was nevertheless an application maintained by the applicant despite seeking such an order in the appeal challenging the determination of the costs assessor. If the applicant had inquired whether the respondents would seek to have the appeal proceedings dismissed on the grounds that the issues had been determined as between the parties by the order of 15 July 2021, it might have been appropriate for the applicant to bring the judicial review proceedings to keep his contentions alive. However no such indication was obtained; rather the respondents relied in this Court on the continuing availability of relief in the appeal proceedings in the District Court to demonstrate that the proceedings in this Court were an abuse of process. The respondents have been put to expense to which, as the Court has held, they should not have been put. Costs should follow the event.

  14. In my view the Court should make the following orders:

  1. Dismiss the amended summons seeking leave to appeal from the refusal of the District Court to set aside the judgment of 21 January 2021.

  2. Dismiss the further amended summons for judicial review filed on 8 November 2021, seeking to set aside the decision of the District Court on 15 July 2021 refusing to set aside the judgment of 21 January 2021.

  3. Order that the applicant pay the costs of the respondents (other than the District Court) in this Court.

  1. WHITE JA: This is an application for leave to appeal from, and a summons for judicial review of, an order and decision of the District Court of 15 July 2021. The primary judge was dealing with an amended notice of motion filed by the applicant (Mr Fordyce) in which, amongst other relief, Mr Fordyce sought an order that a judgment entered on 21 January 2021 be set aside. His Honour refused that application and gave ex tempore reasons for doing so. Those reasons are not available on Caselaw.

  2. The judgment of 21 January 2021 arose from the filing in the District Court of a certificate of a costs assessor’s determination of the fair and reasonable amount of disbursements payable by Mr Fordyce as a result of an order of the Supreme Court in earlier proceedings between the parties (Legal Profession Act 2004 (NSW) ss 367A, 368(1) and (5)). On the filing of the certificate, and with no further action, the certificate is taken to be a judgment of the Court for the amount of unpaid costs (s 368(5)).

  3. A chronology of the key events follows.

Costs orders and costs assessment

  1. The costs order was made in the Supreme Court on 1 March 2019 in proceedings commenced on 1 October 2014 (Leung v Fordyce [2019] NSWSC 18 at [6]; Leung v Fordyce (No 2) [2019] NSWSC 175 at [44]).

  2. Because the proceeding in which the costs order was made was commenced before 1 July 2015, the Legal Profession Act 2004 (NSW) applies to the costs assessment determinations and the rights of appeal from those determinations (Legal Profession Uniform Law Application Regulation 2015 (NSW), reg 59; Ferella v Stomo [2017] NSWCA 268; Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52). Because the repealed Act continues in force in respect of this application I will refer to its provisions using the present tense.

  3. In June 2019 the first respondent, Ms Leung, applied for an assessment of disbursements only.

  4. That application was referred to a costs assessor, Mr Eades. He declined to make the assessment. He said:

“An assessment of disbursements without the professional costs is totally inappropriate. Further, it would be impossible to consider the appropriateness of the disbursements without understanding how they came about in the absence of the professional costs also being assessed. I doubt that the provisions of section 172 of the Act could be properly considered without both sets of charges available at the same time.”

  1. On 17 August 2020 the application for costs assessment (of disbursements only) was reassigned to a new costs assessor, Mr Wall.

  2. On 28 October 2020 Mr Wall issued what he described as a “pre-completion certificate of determination of costs” (assessment number 2019/236020). He certified that the amount payable to Claudia Leung in her capacity as Executrix of the Estate of the late Robert Ho and Rhodium NSW Pty Ltd and the Trading House Pty Ltd (costs applicants) by the applicant (Mr Fordyce) and PMFPL Pty Ltd, as part of the costs payable under the order of 1 March 2019, subject to allowance for such payments if any as may have been made, was $273,192.64. The certificate stated that it was issued before completion of the assessment.

  3. In the accompanying statement of reasons, Mr Wall stated: “I have completed the bulk of the work in assessing the expenses claimed in this assessment. I have issued a Pre-Completion Certificate of Determination in respect of those costs. I note that this is not a final certificate”.

  4. He also said:

“9.6 … subsection 353(1) of LPA 2004 provides that 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 ... may apply ... for the assessment of the whole of, or any part of, those costs."

…

9.7 As those words appeared in LPA 2004 (as indeed they appear in the Uniform Legislation), I am of the view that because the receiving party in respect of a costs order can apply for assessment of part of those costs, it follows that I must be empowered to assess part only of those costs.

…

9.10 I can assess only part of the costs, for example the expenses claimed. With LPA 2004 empowering me to assess part of the costs, the remaining issue is whether I should do so.

…

9.14 The Fordyce parties submit that there would be severe prejudice to them by allowing assessment of expenses only, because if it was subsequently found when assessing fees that an expense item ought to have been disallowed or reduced, the opportunity to do that would have passed. The assessment could not then be altered. In addition, the submission is that assessment of fees can depend on assessment expenses and vice versa. As an example, an issue may arise as to whether a solicitor's rate is reasonable (which objection relates to fees), but the approach taken to expenses (such as barrister's charges) may affect the reasonable rate for fees - if a solicitor does little of the legal work and engages barristers to do most of it, it may be that the appropriate rate for the solicitor is lower than it would otherwise have been.

9.15 I accept that there can be an interrelationship between assessment of fees and assessment of expenses, as in the example given immediately above.

9.16 In answer to the objection that the opportunity to disallow or reduce costs would have passed if I assess expenses, I will issue a pre-completion certificate in relation to expenses. That certificate is enforceable, but the amount could be either increased or decreased when I complete the assessment of expenses. I can complete the assessment of expenses and issue a final certificate after I complete assessment of fees. In the unlikely event that assessment of fees is assigned to a different assessor, I can take the result of that assessment into account when I issue a final certificate.

9.17 I note an application has been made now to assess the fees pursuant to the two costs orders. The Manager Costs Assessment indicates the matter will be assigned to me. I can make any needed adjustments to any pre-completion certificate in relation to expenses when I complete assessment of fees.

9.18 Thus the prejudice that might have arisen will not now arise. Even if I were to assess expenses, issue a certificate, if the Ho parties filed that certificate and it became a judgment of a Court, and that amount was subsequently paid, the likelihood is that the amount of fees will be significant, and considerably outweigh any reduction that might be later made to the amount of expenses. Thus, in a practical sense, no prejudice to the Fordyce parties arises.” (Underlining added)

  1. Section 368(2) of the Legal Profession Act provides that:

“A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process.”

  1. Section 372 provides:

“A costs assessor's determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination, except as provided by this Division.” (Underlining added)

District Court proceedings

  1. On 21 January 2021 judgment was entered in the District Court on the “Pre-Completion Certificate of Determination of Costs” dated 28 October 2020 and a further “Pre-Completion Certificate of Determination of Costs” also dated 28 October 2020 in the sum of $4,950 being described as a further sum that was part of the costs payable under the order of the Supreme Court of 20 November 2021. Judgment was entered for the sum of $284,099.31 and the District Court allocated a “case number” 2021/00018135.

  2. On 19 March 2021 the District Court issued a garnishee order to a Mrs Rhonda Slattery. Mrs Slattery was a judgment debtor of Mr Fordyce for costs payable to him in a separate matter. The garnishee order required Mrs Slattery to pay the amount attached to the named judgment creditor, namely the respondents.

  3. On 22 March 2021 Mr Fordyce filed a notice of motion in the District Court seeking a stay of the judgment (Proceedings 2021/18135). Mr Fordyce’s notice of motion of 22 March 2021 was not reproduced in the appeal papers, but is available on JusticeLink. It sought:

“1.    That the notice of motion for stay of proceedings be dealt with on an urgent ex-parte basis, in chambers returnable forthwith.

2.    That the court grant a stay of proceedings in this matter forthwith.

3.    That the order granting this stay be entered forthwith,

4.    That the stay be granted until the final determination of all costs assessments between the plaintiffs and the defendants in costs assessment matters, including all appeals to the costs assessment review panel and to the District Court in the following matters:

a.    Cost Assessment: Claudia Leung as the executrix of the estate of the late Robert Ho (Cost Applicant) v Paul Mervyn Fordyce trading as Pmf Legal and PMFPL Pty Ltd in matter NSW Supreme Court Common Law Division No.2014/180287 and No.2014/180275.

b.    Review of Costs Assessment: Application by Claudia Leung as the executrix of the estate of the late Robert Ho (Cost Applicant) for the review of the costs assessment made in matter 2014/180287 dated 9 February 2021

c.    Appeal from Costs Assessment to the District Court: The appeal to the District Court to set aside the determination in costs assessment 20143/180287 in proceedings 2021/38080 and to re-determine the assessment.

d.    Cost Assessment: Claudia Leung as the executrix of the estate of the late Robert Ho (Cost Applicant) v Paul Mervyn Fordyce trading as Pmf Legal and PMFPL Pty Ltd (Costs Respondents) in matter NSW Supreme Court Common Law Division No.2019/236020

e.    Cost Assessment: Paul Mervyn Fordyce trading as Pmf Legal and PMFPL Pty Ltd (Costs Applicants) v Claudia Leung as the executrix of the estate of the late Robert Ho (Cost Respondent) in matter NSW Supreme Court Common Law Division No.2020/313928.

5   That costs be costs in the cause.

6   Such other orders as the court thinks fit.”

  1. On 29 March 2021 Mr Fordyce filed a summons in the District Court (case number 2019/0087811) appealing or, to the extent necessary, seeking leave to appeal from the costs determination of 28 October 2020. In the summons he also sought an order setting aside the judgment entered on 21 January 2021 in case number 2021/00018135. The grounds of appeal were that he had been denied procedural fairness, by not having been given certain documents that related to the respondent’s interim claim for disbursements and by not having been provided with the claims for professional costs rendered to the respondents by their solicitors which were said to be “intricately intertwined” with the assessed claim for disbursements but had been provided to him after the determination of 28 October 2020 had been completed. He claimed that he had been denied the information to determine the objections he could have made to the disbursements claimed in the interim claim for disbursements determined by Mr Wall and thereby had been denied procedural fairness.

  2. On 21 May 2021 Mr Wall issued a further “Pre-Completion Certificate of Determination of Costs” in the amount of $240,000. He certified that that was the amount payable to the respondents as part of the costs payable under the order of 1 March 2019 subject to allowance for any payments that might have been made and was in addition to the amounts the subject of the two certificates dated 28 October 2020. In his reasons for that determination, Mr Wall stated:

“5.19 Given the nature of the proceedings, recited in those pre-completion reasons, the claim for expenses in the 020 assessment, and the claim for fees in this assessment, it is extraordinarily unlikely that the total amount I will allow for expenses in the related assessment 020 on a pre-completion basis, and fees and expenses in this assessment will be less than the total of the pre-completion certificates. As I have indicated I have deliberately set the amounts on a pre-completion basis low, to try to ensure that does not happen.” (Italics in original)

  1. On 25 May 2021 Mr Fordyce filed a summons appealing, or to the extent necessary seeking leave to appeal, from the costs determination of 21 May 2021. He also sought a stay of the determination of the costs assessment. Both of the certificates were issued on an interim basis.

  2. The summonses filed on 29 March and 25 May 2021 have not been determined and no directions have yet been made to enable that to be done.

  3. Mrs Slattery paid moneys into court pursuant to the garnishee order.

  4. Mr Fordyce’s notice of motion filed on 22 March 2021 was returnable before the primary judge on 27 May 2021.

  5. At the hearing on 27 May 2021 the primary judge said that because Mr Fordyce contended that the judgment entered was wrong, the appropriate application was not for a stay of the judgment but to set it aside. Neither Mr Fordyce, nor counsel then appearing for Ms Leung, took issue with that statement.

  6. At the hearing on 27 May 2021, the primary judge was told of the filing of the summons and had it before him. He correctly identified the summons as claiming a denial of procedural fairness. The primary judge said that the issues raised by the summons were raised in proceeding 18135 and had to be determined. a

  7. The primary judge said:

“It seems to me, Mr Fordyce, that in order to regularise these proceedings, you need in 18135 to apply to set aside the judgment. You can't do that in other proceedings. It seems that that application will be determinative of that… So, the application, any application on (sic: by) Mr Fordyce to set aside the judgment should be accompanied by and determined at the same time as the notice of motion for the release of those funds…”

  1. In response to submissions of Ms Dulhunty, counsel then appearing for the respondent, Ms Leung, the judge said:

“…there is an application on an issue raised by Mr Fordyce for this judgment to be set aside. It has to be made in the proper forum, in the proper way, and that way is to be done in proceedings 18135 where the judgment resides. That's the proper way to do it. That will raise the issues relied upon today on Mr Fordyce, in his application for stay, except for the set off type arguments.

Because if he doesn't set it aside, then his argument that the money will disappear, pending determination of that outcome - that decision just falls away. The other matters then can travel together and be determined as questions of law in the first instance. I say it in that way broadly speaking because in each case, it appears, what is argued at least, that the Court has the power to enter into the assessment of costs itself…I think it's unlikely it's, I'm told, available. But the preliminary issues should be able to be dealt with without much more evidence…”

  1. It appears from this that his Honour intended to deal with the issues arising in the summons on the hearing of an amended notice of motion that he directed be filed to set aside the judgment. The notice of motion filed 22 March 2021 was stood over part heard to 15 July 2021.

  2. The judge also ordered:

“Three, the first defendant is to do the following by 17 June:

a. File and serve any motion, any notice of motion and supporting affidavit, seeking to set aside the judgment in this matter

b. File and serve any affidavit in response to the plaintiff's motion on 18 May 2021

c. Written - file and serve a written outline of submissions, including a chronology of relevant events in respect of both his - sorry, any motions on foot; that is - withdraw that. His motions of 22 of March and any motion filed in accordance with these orders, and the plaintiff's motion of 18/5/2021.

Order four, by 1 July - make it 8 July 2021, the plaintiffs are to file and serve any of the following:

a. Affidavits in relation to any motion filed by the first defendant in accordance with these orders

b. And a written outline of submissions, including a chronology relating to its motion of 18 May 2021, the defendant's motion of a22 March, and any motion filed by the first defendant in accordance with these orders.

Order five, costs of today are reserved. Six, the matter is listed for directions at 9.30am on 15 July 2021.”

  1. The “matter” referred to in order [6] may have been a reference to the summons in proceeding 2021/87811. That summons was not listed for hearing on 15 July 2021.

  2. The “plaintiff’s motion dated 18 May 2021” sought an order for the payment out to Ms Leung of moneys paid into court by Mrs Slattery pursuant to the garnishee order.

  3. Pursuant to the judge’s directions Mr Fordyce filed an amended notice of motion seeking:

“1. The judgment entered on 21 October January 2021 be set aside.

2. That the garnishee order made on 19 March 2021 be set aside.

3. That the sum of $63,389.40 paid into the Court in this matter by Rhonda Slattery on or about 1 April 2021 be paid to Mrs Louise Fordyce.”

  1. He also filed written submissions dated 17 June 2021 and 14 July 2021, the latter in reply to the respondent’s submissions of 8 July.

  2. Mr Fordyce’s submission of 17 June 2021 was headed “Defendants’ submissions on stay of garnishee”. His submissions covered multiple grounds. Two are significant. He submitted that although a costs assessor could issue multiple certificates, each certificate had to be a final assessment of the part of the costs with which it dealt. He submitted that the “Disbursement Cost Assessment” thereby miscarried because of error of law and the certificate and judgment entered on the certificate should be set aside.

  3. Mr Fordyce also submitted that he had been denied procedural fairness by Mr Wall. He submitted that Mr Wall’s decision was based on materials selectively provided by the plaintiffs which excluded significant materials which he alleged would show significant micromanagement by the plaintiff, Ms Leung and by a Mr Wong. In a part of the submission that alleged apprehended bias on the part of Mr Wall, Mr Fordyce complained that while Mr Wall acknowledged there could be a link between the solicitor’s claim for costs and disbursements, he went ahead with his “pre-completion” assessment of disbursements without waiting for the receipt of material for the assessment of solicitor’s costs.

  4. The respondents submitted that:

“The jurisdiction to "set aside" the judgment entered on 21 January 2021 resides in UCPR 36.15(1), which provides as follows:

A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

The threshold question is whether there has been "sufficient cause" shown by the Fordyce Parties. The Ritchie UCPR commentary provides:

This limitation is consistent with the fundamental principle of the general finality of judgments: Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2) (2009)78 NSWLR 190; [2009] NSWCA 387; BC200910737at [32]– [33] and [45]. It precludes exercise of the power for slight, or merely contentious, reasons: Kendell v Carnegie (2006) 68 NSWLR 193; BC200608855; [2006] NSWCA 302 at [45] per Bryson JA.”

  1. In his written submissions in reply Mr Fordyce did not take issue with the respondents’ contention that the issue was whether the judgment could be set aside pursuant to UCPR r 36.15(1). He advanced reasons as to why that rule was engaged, including that there had been a denial of procedural fairness and apprehended bias on the part of Mr Wall. He also submitted that the respondents had acted irregularly, illegally and against good faith so as to engage UCPR r 36.15.

  2. No order had been made listing the summons filed on 28 March 2021 and the parties made no reference to the summons, either in their written submissions or at the adjourned hearing of 15 July 2021.

  3. The primary judge delivered ex tempore reasons on 15 July 2021. He identified the application to set aside the judgment as being based on three grounds:

  1. that Mr Eades had already made a determination or exercised the power to determine costs. It was said that Mr Eades had determined that it would be a denial of procedural fairness to determine at one particular time only part of the costs claimed pursuant to the order;

  2. that Mr Wall was functus officio, or was wrong to proceed on the basis that he could properly assess costs in different tranches;

  3. because Mr Wall assessed one aspect of costs before proceeding to another, it might reasonably be apprehended that he was biased.

  1. The primary judge said:

“…the question remains for me to determine whether an application for costs must be determined in one go.

It appears to me that the answer is that it may be determined in bits and pieces. Section 367A is the overarching obligation to determine the costs assessment. The consequence of a determination or determinations under s 368 which provided that: ’On making a determination … a costs assessor is to issue a certificate that sets out the determination.’ Importantly, however, subs (2) provides that: ’A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process’.

That reference to ’different stages of the assessment process‘ envisages, in my view, that the assessor, acting under the Legal Profession Act, has a fair degree of procedural discretion as to how best to proceed to assess costs and thereby to fulfil his or her duty under s 367A of the Act. Of course, there are requirements including in s 359 which go to the fairness of the procedure, but once subject only to that provision, the procedure to be adopted, including the procedure of determining certain aspects of the costs claimed in different tranches is one that is left by the legislator up to the costs assessor.

…

The second argument is that Mr Wall, who was finally reassigned with the matter, was functus and/or it was wrong to proceed on the basis that he could properly assess costs in different tranches. Effectively, that relies upon the statement by Mr Wall in his reasons for assessment (see para 9.17, which is p 78 of exhibit PMF6).

However, for the reasons I have given, it was completely open to Mr Wall to determine the process by which he made a determination pursuant to s 368 to issue different certificates throughout the process. The fact that one later certificate might be affected by an earlier certificate is neither here nor there. What is important is that the whole process of determination not only allowed for separate stages and for separate certificates to be issued, but was a matter overall to be determined by the costs assessor. Simply because a costs assessor applies him or herself to one aspect of costs initially and then moves on and assesses a later aspect of the costs that might have an impact upon the first matter does not matter. It is the whole overall determination with which he or she is tasked.

…

The third and final basis is that the assessor, Mr Wall, by proceeding in the manner that he did, namely to assess one aspect of the costs before proceeding to another, it may reasonably be apprehended that he was biased. Reliance is placed upon the decision of the High Court in CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76. That case did no more than, relevantly, recite the earlier decisions of the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Isbester v Knox City Council (2015) 255 CLR 135, and Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427.

What is important is that in order to make out a case of actual bias, what needs to be ascertained, is a two stage process. First is, what is the conduct or matter relied upon and, secondly, that that conduct or matter gives rise to the reasonable apprehension in a fair-minded lay observer that the decision-maker may have reached a conclusion or prejudged the matter. In this case, there is no indication about any prejudgment or potential prejudgment of any matter other than the procedural way in which Mr Wall proposed to deal with the determination.”

  1. These reasons did not engage with Mr Fordyce’s submission that although a costs assessor could issue multiple certificates, each certificate had to be a final assessment of the part of the costs or disbursements for which the certificate was issued. Nor did the reasons engage with Mr Fordyce’s submission that he had been denied procedural fairness for the reasons summarised at [48] above.

  2. The primary judge’s order was that:

“The application to set aside the judgment entered on 21 January 2021 is refused.”

  1. No order was made as to the costs of that application.

  2. The primary judge went on to consider competing applications concerning to whom the moneys paid into court by Mrs Slattery pursuant to the garnishee order should be paid out. On 8 October 2021 his Honour ordered that the moneys be paid to Mrs Louise Forsythe. His Honour stayed that order pending any appeal or application for leave to appeal. (Leung in her capacity as Executrix of the Estate of the late Robert Ho v Fordyce [2021] NSWDC 522). This court was advised that no such appeal or application for leave to appeal has been filed.

  3. No order was made concerning the summons filed by Mr Fordyce on 29 March 2021. The respondent’s solicitor deposed that on 3 November 2021, the judicial registrar advised that the proceedings 2021/87811 required judicial case management but no advice had been provided as to who would be managing those proceedings.

  4. On 6 December 2021 Mr Wall advised that he had completed his assessment of costs on the application no 2019/236020 (the disbursements application). He advised that his certificates and a statement of reasons had been provided to the Manager, Costs Assessment and would be sent to the parties on payment of the costs of the costs assessment amounting to $12,790.80. This Court was informed that neither party has paid those costs and the final certificate and statement of reasons has not been provided to either party.

What power did the judge exercise?

  1. It is necessary to identify the power the primary judge was exercising or purportedly exercising.

  2. Sections 384 and 385 of the Legal Profession Act provide:

“384    Appeal against decision of costs assessor as to matter of law

(1)    A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the District Court, appeal to the Court against the decision.

(2)    After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor’s decision:

(a)    make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or

(b)    remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.

(3)    On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.

385    Appeal against decision of costs assessor by leave

(1)    A party to an application for a costs assessment relating to a bill may, in accordance with the rules of the District Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.

(2)    A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.

(3)    The District Court or court or tribunal 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 District Court or court or tribunal may, unless it affirms the costs assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.”

  1. The court has power under s 386 to suspend the operation of the determination or the decision until the appeal is determined.

  2. The Legal Profession Act does not expressly confer jurisdiction on the District Court to set aside a judgment that has been entered on the filing of the assessor’s (or review panel’s) certificate of determination of costs if an appeal from that determination is allowed. Nonetheless it is settled that if on appeal under ss 384 or 385 the District Court determines that the assessor’s (or review panel’s) decision should be set aside and a different determination made, or the decision be remitted, the District Court can set aside a judgment that has been entered pursuant to s 368(5). The power to do so is found in UCPR r 36.16(2)(a), (3) and (4) or is otherwise necessarily implied from the appeal provisions of the Legal Profession Act, to enable the court properly to exercise its jurisdiction including by correcting its records (Doyle v Hall Chadwick [2007] NSWCA 159 at [48]-[53]; Frumar vThe Owners of Strata Plan 36957 [2010] NSWCA 174 at [44]; Calandra v Murden [2015] NSWCA 231 at [21]; Trad v Harbour Radio Pty Ltd [2016] NSWCA 80 at [38]-[47]).

  3. This power could only be exercised following a successful appeal from Mr Wall’s determination.

  4. A second source of power is UCPR r 36.15, which provides:

“36.15    General power to set aside judgment or order

(cf DCR Part 13, rule 1, Part 31, rule 12A; LCR Part 11, rule 1, Part 26, rule 3)

(1)   A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

(2)   A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.”

  1. An example of the exercise of this power is Calandra v Murden where a party filed a certificate of determination of costs as a judgment after having released the opposite party from liability. That fact was not disclosed when the certificate was filed. No unpaid costs were due. The magistrate’s order setting aside the judgment for having been entered against good faith was upheld on appeal.

  2. It is important to identify the source of power the primary judge was purportedly exercising in order to determine whether the order is final. If the judge had determined the summons by refusing the relief sought in the notice of appeal to set aside the judgment, then an order in the nature of certiorari would undoubtedly lie if error of law on the face of the record or jurisdictional error were established. But if it remains open to Mr Fordyce to challenge Mr Wall’s determination and the judgment entered pursuant to it, then there are strong discretionary reasons for refusing prerogative relief, having regard to the statutory avenue of appeal.

  3. There are indications in the transcript of the hearing of 27 May 2021 that the primary judge considered that on a motion to set aside the judgment, all grounds going to the validity of the costs assessor’s determination could be determined. Thus his Honour’s observation that it was inappropriate to seek a stay of the judgment (that led to the abandonment of the claim for that relief) appears to have been based on the assumption that the determination of the application to set aside the judgment would resolve that question one way or the other. That would only be so if refusal of the application to set aside the judgment was a final order that would preclude such relief, even if the appeal against the assessor’s determination succeeded. His Honour may have been of the view that an order setting aside the judgment could not be made in the appeal proceeding even if the appeal were successful because the Legal Profession Act does not expressly so provide. This might be the reason for his Honour’s observation quoted at [39] above that Mr Fordyce could not obtain that relief in other proceedings.

  4. However the nature of the primary judge’s judgment of 15 July 2021 is not determined by the judge’s observations during the course of argument. It is clear from the record that the judge did not determine the summons filed in proceeding 2021/00087811 appealing or seeking leave to appeal from the costs assessor’s determination of 28 October 2020. The only order made was to refuse the applicant’s application to set aside the judgment entered on 21 January 2021. That order was made on the applicant’s amended notice of motion dated 8 July 2021 that sought an order setting aside that judgment. A notice of motion is the appropriate process where an interlocutory or procedural order is sought.

  5. The parties were correct in treating the application as having been made under UCPR r 36.15.

  6. Two consequences follow. First, the judge’s order refusing to set aside the judgment of 21 January 2021 was not a final order that gives rise to a res judicata that would preclude a judge determining an appeal under s 384 or s 385 of the Legal Profession Act from reaching a different conclusion.

  7. Secondly, if an appeal lay, it would have to be determined through the lens of UCPR r 36.15. The question would be whether the judgment was entered irregularly, illegally or against good faith. Mr Fordyce’s complaint is that the costs assessor had no power to make an interim determination that could be subject to later revision and he was denied procedural fairness by the manner in which the assessor determined to proceed. Whatever objections there might be to the validity of the costs assessor’s determination, Mr Fordyce points to no irregularity, illegality or bad faith in the respondents’ filing the certificate of his determination as a judgment.

Application for leave to appeal

  1. By an amended summons filed on 30 September 2021 Mr Fordyce sought leave to appeal from the order of 15 July 2021 refusing to set aside the judgment entered on 21 January 2021. He sought an order that that judgment be set aside.

  2. An appeal lies to this court under s 127 of the District Court Act 1973 by a party who is dissatisfied with a Judge’s judgment or order “in an action” (s 127(1)). “Action” is defined in s 4 as “action in the court, but does not include any proceedings under Division 8 of Part 3 or under Part 4”. Section 44 confers jurisdiction on the District Court to hear and dispose of specified actions. Not all proceedings in the civil jurisdiction of the District Court are “actions”. An appeal under ss 384 or 385 of the Legal Profession Act is not an action within the meaning of s 127 (Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [20]).

  3. Section 368(1) and (5) of the Legal Profession Act provide:

“368    Certificate as to determination

(1)   On making a determination of costs referred to in Subdivision 2 or 3 of this Division, a costs assessor is to issue a certificate that sets out the determination.

…

(5)   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, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed.”

  1. The filing of the certificate was a ministerial act creating what is taken to be a judgment of the court which, on being entered, can be enforced as such (Civil Procedure Act 2005, s 133; Uniform Civil Procedure Rules r 36.10). The filing of the certificate setting out Mr Wall’s determination did not commence an action.

  2. Having regard to its statutory context, “action” in s 127 refers to those “actions” for which jurisdiction is conferred on the District Court by that Act, or by other legislation which confers jurisdiction on that court in an “action”. The filing of the notice of motion seeking the setting aside or stay of the judgment did not commence an action within the meaning of s 127.

  3. No appeal lies under s 127 from the order of 15 July 2021 even with leave.

Summons for Judicial Review

  1. By a further amended summons filed on 18 November 2021, described as an amended summons for judicial review, Mr Fordyce sought an order that the decision of 15 July 2021 be set aside or be determined to be of no force or effect. In substance he sought an order in the nature of certiorari quashing the decision, (Supreme Court Act 1970 (NSW) s 69).

  2. The summons for judicial review did not address the grounds upon which the primary judge refused the application to set aside the judgment entered on 21 January 2021.

  3. The summons for judicial review described the costs assessor’s decision as a purported costs assessment determination. Para 5 of the summons, under the heading “Details of Decision” in substance raised as a ground of review that the costs assessor’s determination upon which the judgment was founded was beyond power because it was not a final assessment of the costs that was the subject of the determination. The other grounds of review alleged that Mr Fordyce had been denied procedural fairness in the District Court and that the primary judge had displayed actual or apprehended bias.

  4. In so far as Mr Fordyce sought to quash the primary judge’s decision of 15 July 2021 on the ground of error of law on the face of the record, it may be doubted that the record would extend to the transcript of argument before the primary judge. Neither party made any submissions as to what constituted the record for this purpose. In the absence of any submissions on the question, I prefer to express no concluded opinion, although, in the light of the High Court’s decision in Craig v South Australia ((1995) 184 CLR 163; [1995] HCA 58) and the limited extent to which Parliament responded to that decision with the enactment of s 69(4) of the Supreme Court Act 1970 (NSW), it may be doubted that the record extended so far.

  5. Mr Fordyce did not argue that the primary judge committed jurisdictional error by purportedly deciding a ground for relief claimed in the summons in proceeding 2021/00087811, although that summons was not fixed for hearing before him. Nor did he submit, at least in terms, that the judge committed jurisdictional error by failing to address a substantial and well-articulated argument.

Procedural fairness and bias

  1. Because the complaints of actual or apprehended bias and of denial of procedural fairness go to the validity of the judge’s decision, they should be addressed first (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577, [2006] HCA 55 at [2], [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9]).

  2. Neither contention should be accepted.

  3. Mr Fordyce’s first submission that he was denied procedural fairness was based upon his assertion that he had been told by the Registry that his notice of motion had not been fixed for hearing on 15 July 2021.

  4. Mr Fordyce was present in court when the primary judge stood over his notice of motion part heard to 15 July 2021 ([41] above). Mr Fordyce filed written submissions. He also filed written submissions in reply to the written submissions of Ms Leung on the evening before the hearing on 15 July 2021. The judge allowed him to rely on those submissions. The judge noted that he had been present in court when he had stood over the notice of motion part heard to 15 July. There was no denial of procedural fairness in his Honour proceeding with the hearing on that day.

  5. The second ground on which Mr Fordyce said that he had been denied procedural fairness was that he was not able to inspect a probate file of the Supreme Court regarding the estate of the late Robert Ho whose production he had requested before the District Court. Mr Fordyce did not demonstrate the relevance of that file to the issue to be decided by the judge. That ground must be rejected.

  6. The third ground upon which Mr Fordyce contended he had been denied procedural fairness concerned the judge’s judgment of 8 October 2021 where the judge upheld the contentions of both Mr Fordyce and Mrs Fordyce that the moneys paid by Mrs Slattery into court pursuant to the garnishee order should be paid out to Mrs Fordyce. Mr Fordyce’s complaint was that his Honour made no order as to costs on that application and ordered a stay of the proceeding pending any appeal or application for leave to appeal.

  7. The orders made by the primary judge on 8 October 2021 are irrelevant to the question as to whether Mr Fordyce was denied procedural fairness on 15 July 2021. Nor would those matters suggest any denial of procedural fairness.

  8. A claim that a judge was actuated by actual bias is a grave allegation that should not be made lightly and requires clear and cogent proof (Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68]).

  9. The first ground for the allegation of both actual and apprehended bias was that the primary judge forced Mr Fordyce on to a hearing of his notice motion. That ground is manifestly insufficient to establish either actual or apprehended bias.

  10. The other ground for alleging actual bias on the part of the judge was based on comments made by the judge on 16 July 2021, after the judge made the order on 15 July 2021 refusing to set aside the judgment of 21 January 2021. On 16 July 2021 the judge was part heard on the notices of motion and was dealing with Mr Fordyce’s claim that the money paid into court by Mrs Slattery be paid to Mrs Fordyce. Mrs Fordyce was not then a party to that application. The judge said:

“Ms Fordyce is to appear in her own right, she may instruct a solicitor or barrister to appear for her, I will not give you leave to appear for her. If she files any affidavit, I need to be satisfied of the identity of the person swearing the affidavit before I will accept it, do you understand that?”

  1. Mrs Fordyce had filed an affidavit dated 15 July 2021 in which she deposed to having made loans to Mr Fordyce and to having taken from Mr Fordyce security for the loans by an assignment of any amount owed to Mr Fordyce. That claim was upheld by the primary judge in his judgment of 8 October 2021.

  2. The judge was clearly right to say that Mrs Fordyce should be a party to the application that she should be the beneficiary of the moneys paid into court by Mrs Slattery. His Honour’s statement that he would need to be satisfied of her identity before accepting the affidavit apparently made by her showed caution, but not bias.

  3. Nor do these matters show a ground for apprehended bias. A reasonable bystander would not have apprehended that the judge might not have brought an impartial mind to bear on the issues raised on Mr Fordyce’s application to set aside the judgment of 29 January 2021. The question concerning the authenticity of Mrs Fordyce’s affidavit had no logical connection with the issues raised on that application (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [8]).

  4. For these reasons I would reject Mr Fordyce’s submission that the judge’s decision of 15 July 2021 should be quashed on the grounds of denial of procedural fairness or actual or apprehended bias.

  5. As noted above, Mr Fordyce did not submit that the judge’s decision should be quashed on the ground of jurisdictional error because his Honour misapprehended the jurisdiction he was exercising by purportedly determining the consequential claim for relief claimed in the summons filed in proceeding 2019/0087811 (being the appeal or application for leave to appeal from the costs assessor’s determination) in dealing with the notice of motion that could only properly have been based upon a contention that the judgment obtained was entered irregularly or against good faith (UCPR r 36.15). He did not expressly submit that there was jurisdictional error because the judge failed to deal with his submissions referred to at [47] and [48] above, although he complained that those submissions had not been addressed.

  1. The judge’s order was not a final order. No submissions were made as to whether for that reason certiorari would not lie because it was not an ultimate determination of the parties’ legal rights and liabilities. The order had an immediate effect on the parties’ legal rights and obligations. The judgment remains enforceable against him. I am prepared to assume that certiorari may lie if error of law on the face of the record or jurisdictional error were established (Re Frieda and Geoffrey [2009] NSWSC 133; (2009) Fam LR 608 at [34] – [35]).

  2. Assuming, without deciding, that the record is confined to the amended notice of motion, the reasons of the judge, and the order made, no error of law on the face of the record is demonstrated. His Honour was clearly right in relation to the grounds he addressed in his reasons.

  3. The ground advanced by Mr Fordyce in his submissions before the primary judge, referred to at [47] above, namely that although a costs assessor can issue a certificate for only part of the costs or disbursements assessed, a certificate in respect of that part of costs or disbursements must be final and not subject to later reassessment, may be in a different category. But no submissions were advanced as to whether the judge’s failure to deal with that issue was jurisdictional error. For the reasons below, I find it unnecessary to express any concluded view on that question.

  4. Certiorari is a discretionary remedy. In the District Court the applicant has brought an appeal and application for leave to appeal from the costs assessor’s determination and has sought, as consequential relief in that summons, an order setting aside the judgment of 21 January 2021.

  5. The respondents submitted before the judge that the appeal was out of time, but time can be extended (Uniform Civil Procedure Rules 2005 r 50(1)(c)). On appeal, the respondents submitted that the claim for judicial review should be dismissed because the avenue of appeal was available.

  6. I agree. The ordinary and intended avenue for review of a costs assessor’s determination is by statutory appeal under ss 384 or 385 of the Legal Profession Act. On an appeal under s 384 it will be open to Mr Fordyce to maintain his complaints that the costs assessor erred in his decision as to a matter of law, although it may be arguable that leave to amend his grounds of appeal may be required in order to advance his argument based on s 372 of that Act.

  7. Where the alternative avenue of appeal is available, certiorari will usually be refused on discretionary grounds (eg NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal (2001) 53 NSWLR 559; [2001] NSWSC 494 at [14]-[19] and cases cited).

  8. I take into account the requirement of s 56 of the Civil Procedure Act 2005 (NSW) that the real issues be decided justly, quickly and cheaply. If the real issue were simply whether Mr Wall’s costs determination was valid because it was not a final determination then I would think that that issue should be decided by this court. But, in the absence of a right of appeal, that is not the real issue. The real issue on the summons for judicial review might have been whether the judge committed jurisdictional error by not deciding that question. That issue was not raised on the summons and no submissions were made about it.

  9. For these reasons I propose that the Further Amended Summons filed 8 November 2021, encompassing both the application for leave to appeal and the summons for judicial review be dismissed.

  10. On the question of costs, the applications leading to proceedings in this court arose from the understandable desire of the judge, in dealing with busy duty lists to get to the heart of the parties’ dispute. On the hearing of 27 May 2021, neither party raised any difficulties with the course his Honour proposed. If no application had been filed in this court there would have been an unresolved question as to the finality of the judge’s order. As it is, the application to this court at least resolves the status of the judge’s order refusing to set aside the judgment entered on 21 January 2021 in case number 2019/00018135. That is for the benefit of both parties.

  11. In these circumstances the usual order as to costs should not be made, save in relation to the application for leave to appeal which was misconceived. In relation to the summons for judicial review (being part of the relief claimed in the further amended summons dated 6 December 2021) I propose that the costs of that application be costs in the applicant’s summons in the District Court in proceedings 2021/00087811.

  12. I propose the following orders:

  1. The application for leave to appeal from the order of 15 July 2021 in District Court proceeding 2021/00018135 be dismissed with costs.

  2. The further amended summons dated 6 December 2021 be dismissed.

  3. Subject to order (1), the costs of the further amended summons be costs in the applicant’s summons in District Court proceedings 2021/00087811.

  1. BEECH-JONES JA: I have read the judgment of White JA. As noted by his Honour, Mr Fordyce’s principal contention in the District Court, or at least one of his principal contentions, was that a costs assessor does not have the power to assess a claim for a particular portion of costs on an interim basis but instead may only issue a certificate recording a final assessment of those costs with which it deals. I regard that contention as reasonably arguable. However, it is not necessary to resolve it on this application especially as it was not fully debated.

  2. I agree with White JA, for the reasons his Honour gives, that the primary judge’s order of 15 July 2021 was interlocutory. It follows that Mr Fordyce is not precluded from agitating or reagitating the above contention at the hearing in the District Court of his summons seeking leave to appeal from the costs determination made on 28 October 2020. I agree with White JA that there is no basis for Mr Fordyce’s claim of apprehended or actual bias on the part of the primary judge. I also agree with his Honour that the availability to Mr Fordyce of a means of having his principal contention dealt with on a final basis in the District Court, as opposed to it being determined in judicial review proceedings, is matter that supports the dismissal of his judicial review proceedings on a discretionary basis. This is especially so because in this Court he has not sought to clearly identify a case of error of law on the face of the record or jurisdictional error that somehow corresponds with the contention noted above.

  3. An additional matter supporting the dismissal of the judicial review proceedings in this Court on a discretionary basis is the approach he has taken to the garnishee order. After the primary judge refused to set aside the judgment of 21 January 2021, Mr Fordyce submitted to his Honour that the funds paid by Mrs Slattery in response to the garnishee order should be paid out to his wife. In so submitting he sought to rely on, and not attack, the judgment of 21 January 2021 that was in turn based on the costs assessment issued on 28 October 2020. In his judicial review proceedings in this Court, Mr Fordyce now seeks to set aside the judgment of 21 January 2021 without seeking to undo the payment of funds to his wife out of the funds paid into Court by Mrs Slattery.

  4. I otherwise agree with White JA and the orders his Honour proposes.

**********

Endnotes

Decision last updated: 12 April 2022

Most Recent Citation
Cases Cited

28

Statutory Material Cited

6

Ainsworth v Criminal Justice Commission [1992] HCA 10
Martin v Taylor [2000] FCA 1002
Ainsworth v Criminal Justice Commission [1992] HCA 10