Foundas v Wengel

[2024] NSWSC 128

Supreme Court

New South Wales

Medium Neutral Citation:

Foundas v Wengel [2024] NSWSC 128

Hearing dates:

28 November 2023

Date of orders:

20 February 2024

Decision date:

20 February 2024

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The decision of the Manager, Costs Assessment be set aside.

(2) The application to review the costs assessor’s decision dated 24 May 2022 be referred to a Review Panel.

(3) The defendants are to pay the plaintiff’s costs.

Catchwords:

CIVIL PROCEDURE – Manager, Costs Assessment – Registrar’s decision – Application filed in time.

Legislation Cited:

Legal Profession Uniform Law Application Act 2014 (NSW) ss 83 and 93B

Legal Profession Uniform Law Application Regulation 2015 (NSW) cl 45

Supreme Court Act 1970 (NSW) s 69

Uniform Civil Procedure Rules 2005 (NSW) r 49.19

Cases Cited:

Adam PBrown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170

Alhalek v Kellsthe Lawyers [2021] NSWSC 205

Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78

Boesnsch v Bingham [2022] NSWSC 1432

Re the Will of FB Gilbert (1946) 46 SR (NSW) 318

UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558

Voicu v The Owners – Strata Plan No 1624 [2020] NSWSC 296

Category:

Procedural rulings

Parties:

Bill Foundas (Plaintiff)
Sean Wengel (First Defendant)
Robert Witton (Second Defendant)
Manager, Costs Assessment (Third Defendant)

Representation:

Counsel:
B. Foundas (Self-represented)
S. Chen (Defendants)

Solicitors:
William Roberts Lawyers (First and Second Defendants)
Crown Solicitors Office (Third Defendant)

File Number(s):

2023/184338

JUDGMENT

1. The judgment involves a review of a decision of a Manager, Costs Assessment. The plaintiff’s amended summons dated 27 July 2023 seeks to have the out of time reversed and allow the review of a cost assessment to proceed.

2. The plaintiff is Bill Foundas. The first defendant is Sean Wengel. The second defendant is Robert Witton. The third defendant is the Manager of Costs Assessment. The plaintiff is self-represented. The first and second defendants were represented by S. Chen. The third defendant filed a submitting appearance. The parties relied on a Court Book (‘Ex 1’). In addition, the plaintiff relied on various affidavits and exhibits A, B and C at the hearing. The defendant’s relied on Ex 2, being a Costs Assessment Rules Committee Guideline dated 24 October 2023 (this document came into existence after the cost assessor had made his determination).

3. At the hearing, I ordered a stay of the execution on the examination order filed 19 September 2022 in the Local Court until further order of this Court.

4. On 30 December 2021, the first and second defendants, Sean Magnus Wengel and Robert William Whitton, filed an application for assessment of ordered costs in the Supreme Court of New South Wales. This application was given assessment number 2022/00003527.

Background

5. On 17 April 2022, the costs assessor allocated to the matter to Patrick Gerard Ferguson (‘the costs assessor’), who determined the application for assessment of ordered costs.

6. On 29 April 2022, the costs assessor emailed the certificates of determination together with a statement of reasons to the parties.

7. On 5 May 2022, the costs assessor emailed amended certificates of determination together with an amended statement of reasons to the parties, correcting the first name of the first defendant from “John” to “Sean” (‘amended certificates’).

8. On 22 May 2022, a copy of the cost assessor’s decision was forwarded to the parties.

9. I shall refer to the plaintiff’s lodging of this application to review the costs assessor decision, he followed-up letter dated 6 June 2022 of his application for the postponement of filing fees and the subsequent orders of the Registrar later in this judgment.

10. On 7 June 2022, the amended certificates of determination were registered and took effect as a judgment in Local Court of New South Wales, 2022/00164855 (‘Local Court Proceedings’).

11. On 16 September 2022, examination orders were made requiring the plaintiff to attend and be examined in the Local Court Proceedings.

12. On 17 January 2023, the plaintiff emailed an unsealed application for review of determination(s) of a costs assessor with a date of ‘24th May 2022’ and further handwritten notes on page 5 with a date of “16-01-23”. The amended certificates and annexures to the documents (being documents the plaintiff had previously submitted to the costs assessor). I shall discuss this issue in more detail later in this judgment.

13. On 19 January 2023, the matter was listed for an examination in the Local Court proceedings.

14. On 6 March 2023, the plaintiff emailed to the defendant’s solicitor a sealed copy of the following:

1. an ‘affidavit of service’ of Bill Foundas sworn 16 January 2023 and eFiled with the Supreme Court of New South Wales on 17 January 2023; and

2. an ‘application for review of determination(s) of a costs assessor’ eFiled on 17 January 2023 bearing the date of ‘24th May 2022’ and further handwritten notes on page 5 with a date of ‘16-01-23’.

15. On 5 May 2023, the Manager, Costs Assessment made a determination refusing to extend time for the plaintiff to lodge a review application, with reasons for determination provided to the parties.

16. On 31 May 2023, the plaintiff says that he commenced these proceedings by filing a summons with an affidavit in support of the application that appears to have been sworn on 31 May 2023.

17. On 11 July 2023, a directions hearing took place in these proceedings before Registrar Jones (‘the Registrar’), the Registrar made an order that the plaintiff is to file and serve an amended summons joining the Manager, Costs Assessment to the proceedings by 25 July 2023.

18. On 18 July 2023, orders were made in the Local Court Proceedings to adjourn, by consent, until 18 January 2024, pending a determination in these proceedings.

19. On 27 July 2023, the plaintiff filed an amended summons in the proceeding, together with affidavit in support sworn on 25 July 2023.

The law

20. Section 93B(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) reads:

93B   Manager, Costs Assessment

…

(3)  The acts and decisions of the Manager, Costs Assessment are reviewable by the Supreme Court in the same manner as acts and decisions of other registrars are reviewable by the Court.

21. In Voicu v The Owners – Strata Plan No 1624 [2020] NSWSC 296 (‘Voicu’), Basten JA stated that:

1. The Manager, Costs Assessment is a registrar appointed to the position of Manager by the Chief Justice, and that the acts and decisions of the Manager, Costs Assessment are reviewable by the Supreme Court in the same manner as acts and decisions of other registrars are reviewable by the Court, engaging r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’): see Voicu at [15] and s 93B(3) of the Application Act;

2. Given Mr Voicu was a self-represented litigant, the appropriate circumstances in that case (even where a summons was filed pursuant to section 69 of the Supreme Court Act 1970 (NSW)), was to treat the summons, beneficially to his interests, as seeking a review under r 49.19 of the UCPR: see Voicu at [19]. A similar approach was taken by Harrison AsJ in Alhalek v Kellsthe Lawyers [2021] NSWSC 205 (‘Alhalek’).

22. In this present case, the plaintiff is a self-represented litigant. In accordance with Voicu and Alhalek the plaintiff’s application will be treated as a review under r 49.19 of the UCPR. That means that the Court should inform itself of the Manager, Costs Assessment’s determination, together with all the material that was before the Manager, Costs Assessor, and such further evidence that the Court permits to be adduced. The Court then makes its own decision with the benefit of submissions.

23. Recently, in Boesnsch v Bingham [2022] NSWSC 1432 (‘Boesnsch’), Chen J stated at [43]—[44](4):

[43]    It is apparent, from what is set out at [31]-[32], above, that the Manager, Costs Assessment, generally approached the question of whether an extension of time should be granted by reference to four criteria: (a) the grounds of review; (b) the explanation for the delay in seeking a review; (c) prejudice to either party; and (d) the strength, or merit, in the application for review. It should be noted that neither side suggested that this approach was erroneous.

[44] It is appropriate to refer to the reasons of the Manager, Costs Assessment, albeit, as I mentioned, neither party did so: Wily at [26]. The following matters should be noted:

…

(4)   Fourthly, in my view, although broadly identifying the correct principles, there were clear statements that, in my view, suggest that a different test was applied. In particular, the following references were made by the Manager, Costs Assessment, reflecting the approach taken: “When considering an application for additional time, compelling submissions addressing the grounds of review are required. Also, fresh supporting material substantiating the grounds of review” (see [31], above). Contrary to those statements, I do not consider these matters are requirements that condition the exercise of the discretion.

24. In UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558 (‘UTSG’) by Robb J at [33] to [35] set out the applicable principles:

[33]    A comprehensive summary of the principles that are to be applied by the court has been set out by Hallen J in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935, which I respectfully adopt:

39.   Relevant principles drawn from authorities relating to the nature of a review are:

(a)    The review power conferred is not an appeal and, accordingly, is not subject to the limitations that apply to proceedings by way of appeal: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [50], [52]; Al-Shennag v Statewide Roads Pty Ltd [2009] NSWSC 210 per Hall J at [44]–[46]; it is “not restricted“ to a reconsideration of the primary material before the Registrar: Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10].

(b)    It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review. On the review, the court may exercise its powers regardless of error. However, review, in the relevant sense, involves discretionary intervention: Tomko v Palasty (No 2) at [52]; Lollback v Brakepower Pty Ltd at [13]; the discretion extends to a discretion whether, and if so, how, to intervene.

(c)   The conduct of the review is at large and in the discretion of the Court. Notwithstanding the foregoing, the review is not accurately described as a hearing de novo: Perpetual Ltd v Barghachoun [2010] NSWSC 108 at [3], although it involves many of the features of a hearing de novo.

(d)   There is an onus on a person seeking to have a court set aside, or vary, a registrar’s decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar.

(e)   Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24]–[26]. The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Ltd at [47].

(f)   What will be required to make out a case for intervention will vary depending upon the nature of the registrar’s decision under review: Groeneveld v Wollongong City Council [2009] NSWLEC 149 (2009) 168 LGERA 260, per Preston CJ at [12]. However, the court should inform itself of the material before the registrar at the time when he, or she, made the decision, should consider the reasons for the decision, and then should make its own decision based on the material before it after having the benefit of the submissions of each party.

(g)   It is proper for the Court to exhibit a natural inhibition against the unrestrained substitution of the reviewing Court’s views for those of the registrar: Westpac Banking Corp v Abemond Pty Ltd; Westpac Banking Corp v Cameron (NSWSC, 3 November 1994, unreported).

(h)   When it comes to matters of practice and procedure, there should be a natural inhibition against overturning a registrar’s decision: Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638 at 640–641. However, where substantive error is established, then the Court would consider reviewing the registrar’s decision and would make such other order as it is authorised to make: Al-Shennag v Statewide Roads Pty Ltd at [46].

(i)   In the case of a decision which finally determines a party’s rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a Court may be more willing to intervene. It may permit further evidence to be led that does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R [1936] HCA 40; (1936) 55 CLR 499 error is shown, again if it is satisfied that the interests of justice require this: Tomko v Palasty (No 2) at [5]–[9], [50], and [52].

(j)   If fresh, or additional, evidence, is produced, it may be received by the court and taken into account (Fenwick v Wambo Coal Pty Ltd [2011] NSWSC 176, per White J, at [46]), or the court may refer the matter back to the Registrar for consideration as a fresh application: Portal Software v Bodsworth [2005] NSWSC 1115 at [17]. The court may be more inclined to intervene on a review based on fresh evidence, changed circumstances, or where error is demonstrated in the decision under review: Tomko v Palasty (No 2) at [52].

(k)   The decision of the registrar stands until it is set aside: Lawteal Pty Ltd v Ofo [2005] NSWSC 984, per Malpass AsJ at [19].

(l)   The registrar must give sufficient reasons for his, or her, decision: Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74 per Malpass AsJ at [9]–[16].

[34] This statement of principle was adopted by Kunc J in Re Estate of Falco; Falco v Lambert (No 3) at [43]. A similar summary of the principles applicable to the review by the court of a determination by a registrar was given by Lindsay J in Re Estate of Gowing; Application for Executor’s Commission [2014] NSWSC 247 at [100] to [107].

[35] Both Kunc J at [44] and Lindsay J at [108] emphasised the need for the court to have regard on a review to the guiding principles set out in Part 6 Division 1 of the Civil Procedure Act 2005 (NSW).

25. In this current review, I permitted both parties to rely on additional evidence. The plaintiff relied on Exs A, B and C. The defendant relied upon Ex 2. Neither party objected to the tender of additional documents.

26. That means that the Court should inform itself of the Manager, Costs Assessment’s determination, together with all the material that was before the Manager, Costs Assessment, and such further evidence that the Court permits to be adduced. The Court then makes its own decision with the benefit of submissions.

The plaintiff’s explanation for delay

27. The costs assessor’s decision is dated 5 May 2022. The costs assessor’s determination and certificate was forwarded to the parties on 22 May 2022. The application was filed in time. The plaintiff deposed that he lodged his application for a review of the costs assessor’s decision, two days later being 24 May 2022. The plaintiff had 30 days to lodge his application as from 24 May 2022. If the plaintiff did in fact lodge his application for review within 2 days of being served with the costs assessor’s decision, it was lodged well in time.

28. On 3 June 2022, the plaintiff forwarded follow up email dated 3 June 2022 to the Manager, Costs Assessment referring to the review being filed on 24 May 2022. The 3 June 2022 email was also sent within the 30-day period and purported to annex the grounds for making the application for review were attached.

29. The plaintiff deposed that an application to review form A4 the Costs Assessment was filed by him on the 22 May 2022. The grounds for making the application for review are as follows:

1. The Cost Assessor has taken information from the applicant without sufficient evidence. He has taken this evidence on the assumption of it being facts without showing any indications or solid proof.

2. The reduction of this Cost Assessment is greater than the limited allowance and hence should be of question if indeed these Costs are of substance of facts. Legal Profession Uniform Law (NSW) s 204(2)(c).

3. The timeline and the facts that the Cost Assessor gives reason on and for the Cost assessment application are not reflective of the cause of and the initiation of the application of the Applicants. This is not a fair and reasonable outcome. The Cost Assessor has NOT taken the facts and he has NOT taken on the evidence before him rather what was indicative to him.

30. For the reasons that follow, it is more likely that these grounds of review were not filed until January 2023.

The plaintiff’s evidence – explanation of delay

31. The plaintiff explains that this application took a long time for it to be administratively processed in Court Registry. Hence, there were delays and unfairness. Straight after on the 7 June 2022 the judgment was entered against him in the Local Court by the defendant without notice or without his application for a review being acknowledged. An opportunity taken by the applicants at the time and quickly processed it without his presence. He says that the Manager for Costs knew of his application and knew of his timeline that he was not out of time. The Manager knew that an application was being filed and processed. So why was the applicant at the time allowed to unfairly take advantage of the situation and file for a judgment?

32. On 3 June 2022, the plaintiff sent an email to the Cost Manager. It stated:

“I have sent this review through to you on the 24^th May 2022. I am wanting confirmation as the deadline is nearing and I do not want to be unnecessarily disadvantaged. I have reattached this application. Please advise.”

33. The Manager, Costs Assessment states that the certificate of assessment was forwarded to the parties on 22 May 2022.

34. On 6 June 2022, he received a response by the Clerk. The next day he had judgment entered against him when he says the Costs Manager could have extended his time given he had placed his documents in within the time allocated. I do not have a copy of the costs manager’s response.

35. The plaintiff says that he was later dragged around the Local Court Sydney with an examination Order that I have referred to this earlier in my judgment.

36. The plaintiff waited for an outcome at some length while dealing with other matters involving the first and second defendants with the assistance of his partner Ms Cassiani.

37. In the New Year 2023, once Courts opened again and allowed people to enter the Registry, he attended Level 5 in person. He followed up again on the 16 January 2023 to inquire about the Review application. He says that the Officer he spoke to went to the back of house of the Registry. On that day, he says that he was advised that the Protonotary and a manager were asked and they both agreed that if he places his documents in a now amended form he would be allowed to have his Application for Review actioned.

33. COVID-19 also hampered him. At this time, he says it was difficult to follow through as Courts were on and off with accepting emailed documents. He has provided two medical certificates that relate, but they refer to the period after March 2023.

34. The plaintiff now seeks that he be granted an extension of time to review the costs assessor’s decision being reviewed by an appeal panel. He understands that as per Registrar’s Orders that he was not to include any evidence, but rather only on why he was late in his application. He hopes that with his limited English the Court could see his points of view. He is financially in hardship hence it took a further 2-3 months for the Finance Department of the Courts to approve his application. He has had more delays than someone who knows the inner workings of the Court with accounts and the like to process fillings quickly.

35. On 3 March 2023, the plaintiff was advised by the registry in case 2022/003527 entitled “postponed fee notice” that the filing fee for the costs review application had been postponed. It then stated “the application has been considered and approved payment of the fee is postponed until the proceedings have been concluded (Ex A). The plaintiff explains that he interpreted this as that the application to review the costs assessor’s review application had been approved.

36. He says that he will file evidence, as to why he seeks a Review of Costs once he has been granted leave. He has included some timeline evidence and emails of conversations with his submissions. He hopes that he will get a fair go.

37. He says that without professional help, this process took him a long time to research and evaluate. As for fresh evidence one may require, he says that the evidence and hardship he received was unjust and prejudiced.

Summary of the first and second defendant’s submissions

43. The defendants’ grounds of opposition to the plaintiff’s application are as follows:

1. There is no proper or adequate explanation for the significant delay in lodging the review application. This is so even if the further evidence of the plaintiff is permitted to be adduced (which is not admitted);

2. There is no merit to the review application or its grounds of review;

3. There is prejudice to the first and second defendants if there is no finality to this matter and if there are further delays and costs incurred;

4. There is no error in the Manager, Costs Assessment’s determination and in fact it is a well-reasoned and supported determination that ought not be disturbed on review;

5. There is no relevant change of circumstances to warrant setting aside the Manager, Costs Assessment’s determination;

6. Ultimately, it is not in the interests of justice to set aside the Manager, Costs Assessment’s determination and extend time for the plaintiff to lodge the proposed review application.

The law on costs assessments

44. Section 83 of the Legal Profession Uniform Application Act 2014 (NSW) reads:

83   Application by party for review

(1)  A party to a costs assessment may, within 30 days after the certificate of determination by the costs assessor has been forwarded to the parties in accordance with the regulations or the costs assessment rules, apply for a review of the determination.

(1A)  The Manager, Costs Assessment may extend the period for lodging an application.

(2)  Subject to this section, an application for a review is to be made in accordance with the costs assessment rules.

(3)  An application for a review must—

(a)  be filed with the Manager, Costs Assessment, and

(b)  be accompanied by the fee (if any) prescribed by the local regulations, and

(c)  be served on the other parties to the costs assessment concerned in accordance with the costs assessment rules.

(4)  The Manager, Costs Assessment may waive or postpone payment of the application fee either wholly or in part if satisfied that the applicant is in such circumstances that payment of the fee would result in serious hardship to the applicant or his or her dependants.

(5)  The Manager, Costs Assessment may refund the application fee either wholly or in part if satisfied that it is appropriate because the application is not proceeded with.

45. Clause 45(5)(a) of the Legal Profession Uniform Law Application Regulation 2015 (NSW) states:

45   Application for review of determination

…

(5)  An application for a review of a determination of a costs assessor is to be accompanied by the following:

(a)  an affidavit that a copy of the application has been given to the other parties,

46. It is now convenient that I set out the decision of the Manager, Costs Assessment dated 5 May 2023.

The Manager, Costs Assessment’s Decision dated 5 May 2023 (CB102)

This is a request for additional time to lodge a review application which has. been reached for consideration. A review application was lodged on 17 January 2023 with a request for additional time. The certificates of determination were sent to parties on 22 May 2022. Under section 83 of the Legal Profession Uniform Law Application Act (NSW) 2014 ("the Act"), a review application is to be lodged within 30 days of the certificates being forwarded to the parties.

If a review application is properly lodged within time it is automatically referred to a review panel.

…

Is this Review Application in time

The review applicant asserts this application is in time.

Mr Foundas makes this claim in his submissions, saying this review application was lodged within the statutory time frame.

Having said that, Mr Foundas has not attached to either his submissions or to the review application a copy of any correspondence in May or June 2022, that attempted to lodge his review application.

However, when considering this costs assessment application in its current form, it is difficult to see how this application was made prior to know, or in time This is evident from the supporting affidavit of Mr Foundas dated 16 January 2023, a day before the review application was lodged for processing.

Not only is that affidavit dated 16 January 2023, the contents of the affidavit affirm that the legal representatives for the review respondents were served with a copy of the review application on 17 January 2023. Despite the obvious discrepancy between both those dates, it is clear that this review application was not served until January 2023, and not in May or June 2022, as he asserts.

Again, whilst Mr Foundas makes the claim that he lodged his review application in time, he has not provided any supporting emails to substantiate the exact date and time in which it was sent. The failure of Mr Foundas to do so, fails to support his assertion that this application is in time.

So to does, clause 45(5)(a) of the Legal Profession Uniform Law Application Regulation (NSW) C2015. It clearly states the need for a review applicant to accompany their review application with a supporting affidavit. This statutory requirement is absolute. From Mr Foundas' own affidavit, I support his review application, was not complete until he had served his review application the review respondents, and he completed the necessary affidavit. Again that, was not until January 2023, and only upon doing so, was his review application complete and able to be processed.

With those comments in mind Mr Foundas' application is late, requiring an exercise of discretion from the MCA [Manager Courts Assessment] as to where an extension of time ought to be granted, if, it is to be deferred to a review panel for determination.

…

The review applicant then seems to assert that the costs assessor failed to properly consider their submissions/objections and in doing so, did not providing sufficient reasons for their determination.

In response the review respondent submits that all the parties were afforded procedural fairness by the costs assessor. The assessor in applying the relevant criteria under the Act quantified the amount of reasonable legal costs in their determination, providing sufficient reasons for doing so. Also, they allege this review application is unmeritorious as the grounds of review do not demonstrate or establish merit.

…

Returning to this matter, the costs assessment application itself identifies the amount sought by the then costs respondents as $43,658.53. The amount determined by the costs assessor as being reasonable was in the figure of $32,453.00. The difference equates to a reduction of 25%.

As the costs assessor has reduced the amount of legal costs claimed by 25%, it the view of the MCA that Mr Foundas' grounds of review appear to lack merit. Whilst Mr Foundas in his grounds asserts "[t]his is not a fair and reasonable outcome", the backdrop of this costs dispute is Court litigation, where legal services were provided. There can be no question or doubt about that.

The question that solely requires answering is the amount.

Mr Foundas' has had the benefit of an assessment that resulted in a sizeable reduction to the amount claimed. He clearly disputes that amount, most likely also his liability to pay the review respondents any amount, but the issue of liability was determined by the Court who made the costs Order. The costs assessor or review panel cannot overturn his liability to pay the reasonable legal costs incurred by the review respondents.

In light of that, the MCA accepts the review respondents claim of prejudice, given the high probability that a review panel will not further reduce the amount determined by the costs assessor by an additional 15% or more, having the effect of making the review applicant liable for the costs of the review panel. Also, the likely possibility that the costs of the review panel's assessment being equivalent to what, if any, reduction is made. Noting as a guideline only, costs of a review panel assessment are generally within the range of $4,000.00 - $8,000.

Then is the potential that the review respondents prejudice could be extended until such time Mr Foundas pays the costs of the review panel to facilitate the panels, Certificate of determination being released. That would not occur until the MCA has received payment of the panels costs, as the costs assessment scheme is a user pays system, requiring the parties to meet the cost of it. Furthermore, should Mr Foundas not pay the costs of the review panel, the review applicants would then have to meet payment of these costs, themselves before the Determination is released.

l conducting the assessment the role of an assessor, or review panellist, is to consider what legal costs are reasonable for the work identified in the invoices provided and, whether that work was done in a reasonable manner. In the opinion of the MCA that has occurred.

To be successful in obtaining an extension of time, a review applicant must provide compelling submissions addressing their grounds of review. Furthermore, fresh supporting material substantiating them. Mr Foundas needs to appreciate that dissatisfaction with the Certificate of Determination issued by the costs assessor or his desire for a review; are insufficient to establish or demonstrate merit in support of the delay.

As this review application can best be described as a generalised objection to the assessor's 'determination, it is difficult for MCA to see what merits this review application has, or how a review panel could reach a materially different outcome to that of the original costs assessor.

Regardless of whether or not an extension is given, one party will experience some form of prejudice. Given the MCA's above comments, the greater prejudice would appear to be experienced by the review respondent, if an extension of time was granted, causing ongoing delay to the costs dispute, noting the need for the parties to have certainty in the outcome aid finality of their costs dispute.

Having considered the available material, the MCA is not satisfied, that it would be just and fair in the circumstances to grant an extension of time for filing the review application.

The defendant’s submissions

47. The Manager, Costs Assessment stated:

1. that there was a discrepancy between the date of the affidavit in support, being 16 January 2023, when the review application was served on the first and second defendants on 17 January 2023 (and not in May or June 2022);

2. that the plaintiff did not comply with the statutory requirement to serve a supporting affidavit to the review application until January 2023, which obligation is an absolute one;

3. no correspondence was served in support of the assertion that Mr Foundas attempted to lodge his review application in May or June 2022;

4. that there would be prejudice to the plaintiff if a review application were not to proceed, and prejudice to the first and second defendants if the review application were to proceed, in the form of further delay and additional costs (including paying a review panel to release a determination if the plaintiff is unwilling to pay for the certificates);

5. that the delay was significant, being seven months;

6. that each party to the costs assessment had been afforded a reasonable opportunity to participate in the assessment;

7. that there can be no doubt that legal services were provided, in Court litigation;

8. that the costs assessor or review panel cannot overturn the plaintiff’s liability to pay reasonable legal costs the subject of a Court order;

9. that the review application can best be described as a generalised objection to the assessor’s determination, and accordingly it is difficult to see what merits the review application had;

10. with a sizeable reduction of 25 per cent of costs already, it would be difficult to see how a review panel could reach a materially different outcome;

11. that it would not be just and fair in the circumstances to grant an extension.

48. There is no error in the Manager, Costs Assessment’s findings, nor is there any demonstrated reason to depart from the Manager, Costs Assessment’s determination. The determination is well-reasoned and available on the evidence.

49. Findings (a) to (c), and (f) are ascertainable from reviewing the materials before the Manager, Costs Assessment.

50. As to finding (e), those dates are ascertainable from the materials before the Manager, Costs Assessment. In relation to the delay being significant, Chen J considered that a delay of around 5 months, on its own, would not favour the grant of an extension of time: see Boesnch at [49].

51. As to finding (g), this was in the materials before the Manager, Costs Assessment, but is in any event verifiable based on the published judgment in Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78.

52. As to finding (h), were it otherwise, then this would be impugning the costs order made by the Court.

53. As to the percentage reduction on costs made by the costs assessor in finding (j), this was also in the material before the Manager, Costs Assessment. It would be open to the Manager, Costs Assessment based on experience and knowledge of costs assessments and the knowledge and experience of the costs assessor engaged to further make the balance of this finding.

54. The balance of the findings are open on the materials before the Manager, Costs Assessment, and are otherwise, it is submitted, based on a correct application of the law. There is therefore no error on the part of the Manager, Costs Assessment.

55. The evidence of the plaintiff, to the extent is it accepted by the Court, does not suggest that there is any change in the circumstances of the plaintiff.

56. Noting further that this is a matter of practice and procedure, there should be a natural inhibition against overturning a registrar’s decision: see UTSG at [33]. As noted in InRe the Will of FB Gilbert (1946) 46 SR (NSW) 318, repeated with approval in Adam PBrown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, the Court will not readily interfere with directions given as a matter of practice and procedure, instead exercising great restraint. Further, this was a discretionary decision of the registrar, on the exercise of the discretion of the costs assessor, meaning there is all the more reason not to disturb the determination unless there is an exceptional reason to do so. It is submitted there is none in the present circumstances.

57. The discretion conferred on the Manager, Costs Assessment under section 83(1A) of the Application Act is broad and unconfined by statutory limitations: see Alhalek at [57]-[58]. A range of relevant factors may inform the exercise of the discretion, including but not necessarily limited to, the reasons for the delay in making the application; the merits of the proposed review; and any relevant prejudice experienced by the parties: see Alhalek at [58].

58. Similarly, in Boesnch at [43] and [44(4)], Chen J confirmed that, broadly, the general principles concerning whether an extension of time should be granted to lodge a review application involve making reference to the following factors:

1. the grounds (or proposed grounds) of review;

2. the explanation for the delay in seeking a review;

3. prejudice to either party; and

4. the strength, or merit, in the application for review.

59. See also Voicu at [26], [31] and [35], in which a similar approach taken by the Manager, Costs Assessment was considered by Basten J, with no error identified in that approach.

Explanation for delay deficient

60. Despite the additional evidence being submitted by the plaintiff, should it be accepted by the Court (not being material before the Manager, Costs Assessment at the time and subject to objections as to admissibility), the explanation for the delay in lodging the review application is still deficient. It does not adequately explain the delay.

61. There is no email showing the lodging of the application on 24 May 2022. Even accepting that the plaintiff in fact did so (which is not admitted), and that he sent emails on 3 and 4 June 2022 (being the 29th and 30th day afterwards) to follow up on the processing of the lodgement (which is not admitted), and assuming that the time commenced from the forwarding of the amended certificates of determination rather than the date of provision of the original certificates of determination, there is still no explanation (or no proper explanation) of why there was a delay between the purported events taking place in June 2022 and 16 January 2023. This is a period of at least seven months (noting the period to lodge a review application is 30 days).

62. It seems that the plaintiff, after sending an email on the 30th day after receiving the amended certificates and noting a concern about not wanting to be late, that he, by his own admission at [13] of his written submissions dated 19 September 2023, did nothing further for those seven months.

63. In this regard, it seems that the plaintiff only took action again once the matter was listed for examination on 19 January 2023 in the Local Court Proceedings.

64. The application was not served, sealed or unsealed, on the review respondents around May or June 2022, instead being provided, unsealed, on 17 January 2023 and with a seal on 6 March 2023.

65. It is submitted that this is an insufficient explanation for such a lengthy delay, and this weighs heavily against disturbing the determination made by the Manager, Costs Assessment.

No grounds of review; No merit in any event; Prejudice

66. Even were, notwithstanding the above, the matters in the plaintiff’s submissions accepted (which are denied) at their highest, they only attempt to partially explain the delay in lodging the Review Application.

67. They do not cure or address the other deficiencies in the Review Application. In particular, the lack of merit in the Review Application (and the futility of continuing the application in such circumstances) is sufficient, of itself, to refuse the extension application. Generalised objections and dissatisfaction with the result provides no proper grounds for review. The Manager, Costs Assessment’s findings in this regard are apposite.

68. In addition to the above, the prejudice to the first and second defendants has not been addressed by the applicant’s submissions. Any extension further prejudices the first and second defendants, particularly in circumstances where the costs orders were made on 19 March 2021, more than two and a half years ago. This weighs against disturbing the Manager, Costs Assessment’s determination.

Other Considerations

69. The references to the Legal Profession Act and sections of that Act, Part 50 of the UCPR, and statutory appeals are irrelevant. That is, [5] to [9] of the plaintiff’s written submissions dated 19 September 2023 are not relevant to the present proceedings. Assuming the matter is proceeding as a review of a registrar’s decision, then references to Part 59 of the UCPR are likewise irrelevant.

70. The plaintiff’s written submissions otherwise provide no cogent reason to set aside the Manager, Costs Assessment’s determination, nor to extend time to lodge the review application.

Resolution

Was the application for the review of the costs assessor’s decision lodged in time?

71. The plaintiff is a self-represented litigant. On 22 May 2022, the decision of the costs assessor was forwarded to the parties. Pursuant to s 83(1) of the Legal Profession Uniform Application Act 2014 (NSW), a party to a costs assessment has 30-days from when the costs assessor’s decision was forwarded to them to apply for a review application. I accept that the plaintiff lodged his application seeking a review within 2 days. However, it is debatable whether or not he attached his reasons for review to the application.

72. The original summons was lodged on 24 May 2022. On 3 June 2022, the plaintiff sent an email addressed to the Cost Manager that relevantly reads:

Dear Cost Manager,

I have sent this Review through to you on the 24^th May 2022. I am wanting a confirmation as the deadline nearing and I do not want to be unnecessarily disadvantaged. I have reattached this application. Please advise.

Bill Foundas.

73. At the hearing, the plaintiff tendered an email to [email protected] dated 4 June 2022 in relation to this matter, where he says:

“Dear Officer,

I have been waiting for a response from the Manager of Cost Assessments. I am a pensioner in hardship and have filed a fee waiver before. As stated below my Review Form A4 is yet to be processed. Could you please mention if this is the correct email to send this to as it claims on the website of the Supreme Court of NSW that the Cost assessment email address as the preferred method. My online account has no option for Cost Assessment Review. Awaiting your urgent response please. I do not want this Review application to be classed as out of time because of such events or even my ignorance.”

74. I am prepared to accept that the plaintiff lodged the application for review of the costs assessor’s decision within a 28-day period. In other words, this application was lodged in time. As noted earlier it is unclear is whether the plaintiff had set out his grounds of appeal. While the Manager, Costs Assessment criticised the plaintiff’s failure to file submissions, it is not to the point: see Boesnsch at [44](4) referred to earlier in this judgment.

75. On 6 June 2022, the received a response from the Manager, Costs Assessment. I do not have a copy of that letter. On the next day on 7 June 2022, the defendants took immediate action to register it as a judgment in the Local Court and enforce that judgment by way of an examination order. As at 6 June 2022, the plaintiff was still in time to lodge his application for review of the costs assessor’s decision. On 7 June 2022, it is clear that the defendant’s were aware that the plaintiff had lodged an application for review of the costs assessor’s decision with the Supreme Court.

76. On 11 July 2023, a directions hearing took place in these proceedings before the Registrar, where an order was made that the plaintiff is to file and serve an amended summons joining the Manager, Costs Assessment to the proceedings by 25 July 2023.

77. On 27 July 2023 (two days late), the plaintiff filed an amended summons in the proceeding, together with affidavit in support sworn on 25 July 2023.

78. It is my view that in these circumstances, the plaintiff should be given an opportunity to have the decision of the costs assessor dated 2 May 2022 reviewed. With the advantage of fresh evidence and reviewing the Manager, Costs Assessment decision, I have come to a different view to that of the Manager, Costs Assessment. I set aside the decision of the Manager, Costs Assessment dated 5 May 2023.

79. The application for the review of the costs assessor’s decision dated 2 May 2022 is to be referred to a review panel.

80. Costs usually follow the event. The defendants are to pay the plaintiff’s costs.

THE COURT ORDERS THAT:

1. The decision of the Manager, Costs Assessment be set aside.

2. The application to review the costs assessor’s decision dated 24 May 2022 be referred to a Review Panel.

3. The defendants are to pay the plaintiff’s costs.

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Decision last updated: 20 February 2024