Furber v Gray
[2002] NSWSC 1144
•29 November 2002
CITATION: Furber v Gray [2002] NSWSC 1144 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S): SC 13150 of 2001 HEARING DATE(S): 27 November 2002 JUDGMENT DATE: 29 November 2002 PARTIES :
Helen Munro Furber (Plaintiff)
v
Pauline Henrietta Gray (Defendant)
JUDGMENT OF: Master Malpass
LOWER COURT
JURISDICTION :Costs Assessment LOWER COURT
FILE NUMBER(S) :90760 of 2001; 90761 of 2001; 90762 of 2001
LOWER COURT
JUDICIAL OFFICER :M W Robinson
COUNSEL : N/A (Plaintiff)
Mr V R Gray (Defendant)SOLICITORS: William Purdon (Plaintiff)
Gye Associates Lawyers (Defendant)
CATCHWORDS: appeal from assessment of costs payable pursuant to orders of the court - alleged expiry of limitation period and application of Barristers' Rules to disentitle recovery of counsel's fees - nature of the assessment process - an application is not a proceeding in this Court. LEGISLATION CITED: Dividing Fences Act 1991.
Legal Profession Act 1987, s 202 s 208L,
s 208M.
Limitation Act 1969, s 14, s 17.
Suitors' Fund Act 1951.
New South Wales Barristers Rules r 87, r 87 (f).CASES CITED: Brierley v Anthony Charles Reeves T/as Kaplan Reeves & Co & Ors [2000] NSWSC 305.
O'Connor v Fitti [2000] NSWSC 540.DECISION: See Paragraph 24.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMaster Malpass
Friday 29 November 2002
JUDGMENT13150 of 2001 Helen Munro Furber v Pauline Henrietta Gray
1 MASTER: There were proceedings in the Local Court between the late Dr James Furber and the defendant. The proceedings concerned a matter under the Dividing Fences Act 1991. The defendant was the unsuccessful party in those proceedings.
2 An appeal was brought against the decision of the Local Court. The defendant was the successful party on the appeal. Three costs orders were made by this Court during the course of the proceedings. The first one was made on the 31 October 1994. The second one was made on 17 February 1995. The third one was made on 23 May 1995. All of these orders were made in favour of the defendant. On 23 May 1995, the court also ordered that the defendant in the appeal be granted a certificate under the Suitors’ Fund Act 1951.
3 The late Dr Furber died on 1 August 2000. A Grant of Probate was made to his wife (Mrs Furber) on 4 December 2000. She is the plaintiff in these proceedings.
4 Subsequently, application was made for assessment of the costs payable under the orders. This took place during 2001. The matter of the assessment was referred to a Costs Assessor (Mr Robinson). He made a determination of the costs payable under each of the orders. He delivered written reasons.
5 On 5 October 2001, Mrs Furber filed the Summons that commenced these proceedings. It purports to challenge the determinations made by the Costs Assessor. Primarily, the claim for relief was made under s 208L of the Legal Profession Act 1987 (the Act). The Summons also contains reference to the seeking of relief under s 208M, in the event that there be a need for leave.
6 It is unnecessary to give any further consideration to s 208M, because if there is any substance in what was put on behalf of the plaintiff s 208L was the relevant provision.
7 This provision enables a narrow avenue of challenge to a decision made by a costs assessor. It is restricted to a challenge as to a matter of law arising in the assessment proceedings.
8 At the time of the commencement of the proceedings and during the hearing, the plaintiff was represented by Mr Purdon. At other times during the proceedings, she had acted in person.
9 The material placed before the court comprised tendered documentation (Exhibits A, B, 1 and 2).
10 It is somewhat unclear as to what issues were actually ventilated before the Costs Assessor. For present purposes, I propose to put that matter to one side and proceed on the assumption that the arguments pressed during the appeal were in fact put to the Costs Assessor.
11 Mr Purdon handed up written submissions. These were supplemented orally.
12 Generally speaking, it may be said that in essence three arguments were propounded in the appeal. The first concerned the Limitation Act 1969. The second concerned provisions of the New South Wales Barristers Rules (the Rules). The third concerned the Suitors’ Fund Act 1951.
13 It was said that by reason of the provisions of s 14 of the Limitation Act 1969 the application for assessment was brought out of time. This is a provision which imposes a limitation period of six years in respect of an action on certain causes of action. In my view, this provision has no relevance to the assessment process performed under the Act and the submission is misconceived.
14 An application for assessment is not a proceeding in this Court. (see inter alia Brierley v Anthony Charles Reeves T/as Kaplan Reeves & Co & Ors [2000] NSWSC 305 and O’Connor v Fitti [2000] NSWSC 540). It is not an action on a cause of action in the sense contemplated by s 14. It is an application to “The Manager Costs Assessment” and is made in the form prescribed by the Regulations.
15 In the present case, there were existing orders for the payment of the costs. The defendant was merely utilising the assessment process as a means of quantifying the amount payable under those orders. This is a process that replaced the previous regime which saw a taxation of costs. Section 202 enables an application to be made where there is an order for the payment of an unspecified amount of costs made by a court or a tribunal.
16 Counsel for the defendant drew the attention of the court to s 17 of the Limitation Act 1969. This is a provision which imposes a limitation period of twelve years in respect of an action on a cause of action on a judgment. It was said that if this provision had application, then the relevant limitation period was one of twelve years and that the application for assessment had been brought within that period. In the light of what has been earlier said, I need not pursue this matter.
17 Both in the earlier proceedings in this Court and in this appeal the counsel appearing for Mrs Gray was her husband. It was said that r 87 (f) of the rules disentitles her from recovering his fees.
18 Rule 87 is a provision which requires a barrister to refuse a brief on instructions to appear before a court in certain specified circumstances. The circumstances specified in (f) are as follows:-
- “the barrister has a material financial or property interest in the outcome of the case, apart from the prospect of a fee in the case of a brief under a conditional costs agreement;”
19 It was said that Mr Gray had a material financial or property interest in the outcome of the earlier proceedings in this Court. The only material advanced in support of this submission was said to be the fact that Mr Gray was the husband of Mrs Gray. I consider that, there is no substance in these contentions.
20 In my view, there is no evidence to support a contention that Mr Gray had a material financial or property interest in the outcome of that case. In addition, at first glance, it may be thought that r 87 lacks relevance to a question of an entitlement of counsel to recover fees. As this question was not fully argued, I put it aside.
21 The remaining matter concerned the question of the Suitors’ Fund Act 1951. Neither the contents of the Summons nor the argument advanced during the appeal threw much light on the basis of this submission. It appeared to be intertwined with the misconception had as to the application of the Limitation Act 1969 and involved the suggestion that entitlement to the certificate has now been lost. In my view, the submission was devoid of any substance.
22 The plaintiff has an order under the Suitors’ Fund Act 1951. Nothing has been said which could support a contention that such an order is no longer enforceable. The Limitation Act 1969 has no relevance to that matter. So far as the question of enforcement of the order is concerned, it seems to me that the plaintiff is in a position similar to that of the defendant seeking to enforce the costs orders.
23 The plaintiff bears the onus of demonstrating an entitlement to relief. This involves her satisfying the court that there has been requisite error justifying a disturbing of what has been done by the Costs Assessor. In my view, the plaintiff has failed to discharge that onus.
24 The Summons is dismissed. The plaintiff is to pay the costs of these proceedings. The Exhibits may be returned.
3
2
6