Gilles v Palmieri

[2018] NSWSC 350

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Gilles v Palmieri [2018] NSWSC 350

Hearing dates:

9 February 2018

Date of orders:

21 March 2018

Decision date:

21 March 2018

Before:

Harrison AsJ

Decision:

The Court makes an order:

 

(1) In the nature of certiorari removing into the Court the decision of the costs assessor in matter number 2016/242676 made on 26 June 2017 and quashing that decision.

 

The Court further orders:

 

(2) The matter is remitted to the manager of costs assessment to be determined according to law.

 (3) There is no order as to costs.

Catchwords:

ADMINISTRATIVE LAW - Judicial Review – whether plaintiff entitled to jurisdictional relief in the form of certiorari quashing the decision of the costs assessor pursuant to s 69 of the Supreme Court Act - whether plaintiff entitled to declaratory relief pursuant to s75 of the Supreme Court Act - whether costs assessor was wrong in not determining the issues raised by the application – whether error of law on the face of the record
COSTS – whether plaintiff entitled to the costs of the proceedings – whether client liable for costs up to the time of submitting appearance – whether plaintiff entitled to a certificate under the Suitors Fund Act 1951

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law 2015 (NSW)
Suitors Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272
Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) [1985] 2 NSWLR 239
Allianz Australia Insurance Limited v Habib (No 2) [2015] NSWSC 1870
China Shipping (Aust) Agency Co Pty Ltd v D V Kelly Pty Ltd (No 2) [2010] NSWSC 1557
Craig v State of South Australia (1995) 184 CLR 163
Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Doyle v Hall Chadwick [2012] NSWCA 175
Gillies & Elaides v Vince Palmieri [2017] NSWDC (unreported 27 February 2017)
Gilles v Palmieri [2017] NSWCA 320
Griffith v Australian Broadcasting Corporation & Ors [2013] NSWSC 750
Hall Chadwick Pty Ltd v Doyle [2006] NSWSC 1195
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480
Mahenthirarasa v State Rail Authority (No 2) (2008) NSWLR 273
Nyman v Valmas [1997] NSWCA 235

Category:

Principal judgment

Parties:

Joseph John Gilles (First Plaintiff)
Gregory George Eliades (Second Plaintiff)
Vince Palmieri (First Defendant)
DJZ Constructions Pty Limited (Second Defendant)
John Bartos (Third Defendant)

Representation:

Counsel:
L Fermanis (First & Second Plaintiffs)

  Solicitors:
Giles Payne & Co (Plaintiff)
Submitting Appearances (First, Second & Third Defendants)

File Number(s):

2017/291528

Publication restriction:

Nil

Judgment

1. HER HONOUR: The plaintiff seeks judicial review of a costs assessor’s decision. This dispute has had a long history.

2. By summons filed 26 September 2017, the plaintiffs seeks orders firstly, in the nature of certiorari to quash, on the ground of error on the face of the record, the determination dated 26 June 2017 made by the third defendant; secondly, in the nature of certiorari to quash the determination on the ground that the third defendant had jurisdiction to determine the first and second plaintiffs’ application for costs assessment dated 19 August 2015; thirdly, in the nature of mandamus that the third defendant consider and determine the first and second plaintiffs’ application for costs assessment dated 19 August 2015; and fourthly, that the matter of the costs assessment be remitted to the third defendant for further consideration and determination according to law.

3. The first plaintiff is Joseph John Gilles. The second plaintiff is Gregory George Eliades. The first defendant is Vince Palmieri. The second defendant is DJZ Constructions Pty Limited. The third defendant is John Bartos (“the costs assessor”). All defendants have filed submitting appearances and have filed submissions in relation to costs.

4. The plaintiffs relied upon two affidavits of Paula Louise Becker, the plaintiffs’ solicitor dated 26 September 2017 and 7 February 2018.

Short background

5. I gratefully acknowledge the plaintiffs’ counsel’s submissions and have adopted some of them. This litigation concerning costs has had a troubled history.

6. In about 2005, the first and second plaintiff, trading as Giles Payne & Co Solicitors and Public Notaries (“the firm”), in respect of professional negligence proceedings brought by the defendants (“the clients”) against their former solicitor, Mr Paul Pritchard.

7. On 7 June 2005, the clients executed a costs agreement with the firm. This is the date that the firm was first instructed by the clients. The assessment of costs is therefore governed by Part 11 of the Legal Profession Act 1987 (NSW).

8. The firm issued three statements of accounts to the clients for outstanding fees, on 28 November 2008 for the sum of $27,438.33 outstanding; on 20 March 2009 for the sum of $62,876.80; and on 5 June 2009 for the sum of $25,077.55.

9. In about April or May 2009, the clients terminated the retainer with the firm.

10. On 27 November 2014, the firm commenced proceedings in the District Court (“the first District Court proceedings”) for the recovery of its fees.

11. On 19 August 2015, the firm applied to have its costs assessed on a solicitor/client basis as against the clients.

12. The manager for costs assessment appointed the costs assessor, Mr John Bartos, to determine the application.

13. On 4 December 2015, Gibb DCJ in the first District Court proceedings heard the clients’ notice of motion that the proceedings de dismissed on the basis that service occurred after the expiration of the requisite period of time as set out in Rule 6.2 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”). His Honour dismissed the first District Court proceedings.

14. On 23 August 2016, the Court of Appeal allowed an appeal by the firm (in part) on the issue of costs ordered by Gibb DCJ. The Court of Appeal did not disturb Gibb DCJ’s order dismissing the proceedings commenced in the District Court.

15. On 21 October 2016, the firm commenced proceedings in the District Court against the clients for recovery of fees. (“the second District Court proceedings”).

The clients’ application for summary dismissal of the second District Court proceedings

16. On 18 November 2016, the clients filed a notice of motion seeking an order to summarily dismiss the proceedings commenced by the firm.

17. On 27 February 2017, Robison DCJ in Gillies & Elaides v Vince Palmieri [2017] NSWDC (unreported 27 February 2017) dismissed the second District Court proceedings commenced by the firm.

18. The relevant facts are on 7 June 2005, Mr Palmieri (the first defendant) entered into a costs agreement with the firm. In May 2015, the firm served on the clients a bill of costs dated 1 May 2015 in assessable form in respect of costs for the period 1 July 2008 to 27 March 2009. On 19 August 2015, the clients filed an application for costs assessment headed “Legal Profession Act 2004”. On 21 October 2016, the firm filed the statement of claim by which they sued the clients to recover costs due pursuant to the retainer.

19. Robison DCJ decided that the Legal Profession Act 2004 (NSW) applied to the situation before him and was persuaded that cl 18 as a whole provides that pt 11 of the Legal Profession Act 1987 does not govern the procedure and mechanisms for a costs assessment of a Legal Professional Act 1987 matter when an application for costs assessment of a Legal Profession Act 1987 matter is referred for assessment after the commencement of the Legal Profession Act 2004 on 1 October 2005.

20. Robison DCJ noted that the application for assessment was not made and could not have been made “during the currency of” the Legal Profession Act 1987. His Honour stated:

“… no other process to be engaged other than a costs assessment to be dealt with under the costs assessment procedure and mechanisms of the Legal Profession Act 2004 which is precisely what the respondents’ solicitors did. They engaged the provisions of that Act in order to commence the costs assessment process.”

21. Robison DCJ reasoned, in part, that, unless cl 18(3) was construed in the way that commended itself to him, it would add nothing to cl 18(1) and would therefore have no work to do.

22. His Honour decided that it was prohibited by a specific statutory provision, being s 533(b) of the Legal Profession Act 2004. He rejected the proposition that the governing legislation was the Legal Profession Act 1987. On 27 February 2017, an order was made that the second District Court proceedings be dismissed pursuant to UCPR 13(4)(i)(c).

The costs assessor

23. On 19 June 2017, the costs assessor advised the firm and the clients by correspondence that it was his intention to return the matter to the manager for costs assessment.

24. The costs assessor relevantly stated:

“I have made my position on the limitation issue clear, namely that whilst that issue is before the court it would be inappropriate for me to seek to decide that issue.

However, I have not until their letter of 15 June 2017 been provided with a copy of the judgment by Judge Robison dated 27 February 2017.

That judgement in my view raises a more fundamental issue in relation to the application for assessment.

The application for assessment stated that the Costs Applicants retained the Costs Respondents in relation to the matter that is the subject of the assessment on or about June 2005.

At that time the relevant legislation was the Legal Profession Act 1987 (“1987 Act”). It was repealed on 1 October 2015 by the Legal Profession Act 2004 (“2004 Act”).

The transitional provisions in respect of the 2004 Act provided in Schedule 9, Part 2, at clause 18(1):

“Subject to subclauses (2) and (3), Part 3.2 of this Act applies to a matter if the client first instructs the law practice on or after the commencement day, and Part 11 of the old Act continues to apply to a matter if the client first instructed the law practice in the matter before that day.”

…

Clearly the 1987 Act continued to apply in respect of the present application.

The 2004 Act was in turn repealed by sec 367 (a) of the Legal Profession Uniform Law Application Act 2014 with effect from 1 July 2015.

Schedule 4 of the Legal Profession Uniform Law (NSW) No 16a, Clause 18 provides:

“18 Client information and legal costs

(1) Subject to subclause (2)

…

(b) the provisions of the old legislation relating to legal costs (other than provisions prescribed by the local regulations) continue to apply to a matter if the client first instructed the law practice in the matter before the commencement day.”

The “old legislation” is defined by Clause 1 of the Schedule as:

“[T]he statutory provisions repealed by the Legal Profession Uniform Law Act of this jurisdiction.”

The way I read the judgment is that His Honour held that an application that was relevantly made under the 1987 Act, even though it was expressed to be under the 2004 Act was no longer valid as the transitional provisions of the Legal Profession Uniform Law (NSW) only apply to the 2004 Act and the application was made only after the 2004 Act was repealed.

If that is the case the application is ultra vires and I don’t have jurisdiction to deal with it.

Whilst I appreciate that the judgment is under appeal, that does not alter the present legal position.

In the circumstances unless I hear from you within 7 days that my interpretation of His Honour’s judgment is incorrect I intend to return the matter to the Manager Costs Assessment.”

25. On 26 June 2017, the costs assessor having not heard from the parties advised the firm and the clients that the application was incompetent; and he returned the application to the manager for costs assessment.

The decision of the Court of Appeal

26. On 12 December 2017, in Gilles v Palmieri [2017] NSWCA 320 (“Gilles”), Barrett AJA (with McColl and White JJA substantially agreeing) upheld the firm’s appeal from Robison DCJ’s decision to dismiss the proceedings commenced by the firm in the second District Court proceedings.

27. The Court of Appeal at [37]–[39] stated:

“37 Any instinctive unease there may be about the proposition that costs the subject of an application for assessment made in August 2015 after the commencement of the Uniform Law (on 1 July 2015) are governed by and to be dealt with according to the 1987 Act despite its repeal in 2005 is resolved when one has regard to clause 18(1) of schedule 4 to the Uniform Law. Being a provision of the Uniform Law as brought into operation by the 2014 Application Act, clause 18(1) of schedule 4 is in force today. It states that Part 4.3 of the Uniform Law (which deals with costs disclosure, costs assessment and related matters) “applies to a matter if the client first instructs the law practice on or after the commencement day”. Part 4.3 therefore does not apply to the matters in contention here. Clause 18(1) also states (so far as relevant) that “the provisions of the old legislation relating to legal costs . . . continue to apply to a matter if the client first instructed the law practice in the matter before the commencement day” (that is, 1 July 2015). By virtue of a definition in clause 1 of schedule 4, “old legislation” means “the statutory provisions repealed by” the 2014 Application Act. The provisions so repealed were those of the 2004 Act (and the Legal Profession Regulation 2005 (NSW)) [10] but not provisions of the 1987 Act (that Act was repealed by the 2004 Act [11] ). It follows that, while clause 18(1) of schedule 4 to the Uniform Law does not operate in a direct way to give continuing force to Part 11 of the 1987 Act, it achieves that result indirectly by continuing the operation of clause 18(1) of schedule 9 to the 2004 Act (being a provision of the 2004 Act “relating to legal costs” in a matter where the client first instructed the law practice before 1 July 2015) notwithstanding the repeal of the 2004 Act by the 2014 Application Act. In this way, a provision of the Uniform Law in force today (clause 18(1) of its schedule 4) preserves and sustains the operation of a provision of the repealed 2004 Act (clause 18(1) of its schedule 9) which, in turn, preserves and sustains the operation of the provisions of Part 11 of the repealed 1987 Act relevant to the costs issues between the present parties.

Conclusion on the construction question

38 In my opinion, the primary judge was, as a matter of statutory construction, in error when he concluded that the 2004 Act applied to assessment of the applicants’ costs and related issues concerning those costs and, therefore, that s 355(b) of that Act precluded the action that the applicants sought to pursue in the District Court. His Honour should have held that the applicable provisions were those in Part 11 of the 1987 Act which, as has been noted, contain no provision comparable with s 355(b).

39 It should also be noted that s 198(7) of the Uniform Law does not operate to preclude court action to recover the costs in question. Section 198(7) is within Part 4.3 of the Uniform Law. For the reason stated at [37] above, the fact that the client instructed the law practice before 1 July 2015 means that none of the Part 4.3 provisions applies to the “matter” involving the costs at issue in this case.”

28. The Court of Appeal set aside the orders of Robison DCJ and in lieu thereof relevantly made orders that the defendant’s notice of motion filed 18 November 2016 be dismissed and an order that the defendants pay the plaintiffs’ costs of the notice of motion.

Jurisdictional relief in the nature of certiorari

29. The plaintiff now seeks relief in this Court in the nature of certiorari quashing the costs assessor’s decision.

30. The Supreme Court retains its supervisory powers recognised by s 69 of the Supreme Court Act 1970 (NSW).

31. Section 69 of the Supreme Court Act relevantly reads:

“(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.

(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.”

32. Relief in the nature of certiorari is not an appellate procedure enabling either a general review of the order or decision, or substitution of the order or decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia (1994-1995) 184 CLR 163 at 175-176.

33. In Craig v State of South Australia (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals:

“If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.”

34. Also its power to entertain an application for declaratory relief is confirmed by s 75 of the Supreme Court Act. However, all of these forms of relief are discretionary. One established case in which such relief will be refused as a matter of discretion is where there is in existence an adequate scheme for review available to the aggrieved party: see Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552 and Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) [1985] 2 NSWLR 239 at 247 to 248 per Kirby P. In so far as declaratory relief is concerned, another basis for refusing relief on discretionary grounds is that the relief sought is premature or may be futile.

35. The firm submitted that there is no other scheme for review other than the relief sought by it. They say that strictly speaking, no mechanism for review exists given the position adopted by the costs assessor in deciding to return the application and not await the decision of the Court of Appeal in Gillies.

36. According to the firm, the costs assessor was wrong in refusing to determine the issues raised by the application. He identified the following as his reason for considering that the application was ultra vires when he stated:

“The way I read the judgment is that His Honour held that an application that was relevantly made under the 1987 Act, even though it was expressed to be under the 2004 Act was no longer valid as the transitional provisions of the Legal Profession Uniform Law (NSW) only apply to the 2004 Act and the application was made only after the 2004 Act was repealed.”

37. In Griffith v Australian Broadcasting Corporation & Ors [2013] NSWSC 750, Beech-Jones J held [46] that (in the context of the Legal Profession Act 2004):

“46 [I]t is the cost assessor’s duty and function to determine as best he or she can such issues of fact and law as arise on the cost assessment in order to discharge their function under s 367 of the Act. If a cost assessor were to refuse to do so, then relief in the nature of mandamus would be available to require them to do so.”

38. The equivalent provisions for this current costs assessment are found within subdivision 2 of Part 11 of the Legal Profession Act 1987.

39. The firm submitted it must follow that firstly, the task of the costs assessor is to assess according to the provisions made applicable by statute to the particular case; secondly, it was always open to the costs assessor to determine whether the assessment process applicable to the application fell within Part 11 of the Legal Profession Act 1987 or Part 3.2 of the Legal Profession Act 2004; and finally, while the costs assessor made a decision as to his interpretation as to the applicable assessment process, by reason of the decision in Gilles he was plainly wrong.

40. The firm submitted that notwithstanding the decision in Gilles, the costs assessor is not an administrative officer exercising judicial power and as such is not bound by a decision of the District Court. I do not agree with this submission.

41. In Hall Chadwick Pty Ltd v Doyle [2006] NSWSC 1195 Rothman J at [73] stated:

“73 … The Costs Assessor is dealing with an administrative task and creating rights rather than enforcing them. The rights created by the Costs Assessor are dependent upon the Costs Assessor’s determination of what is fair and reasonable and the public interest and are not determined by the lawfulness of conduct or of a costs agreement. …”

42. In my view, the costs assessor should not have returned the application to the manager of costs assessments while there was an appeal from Robison DCJ extant. Given the Court of Appeal decision in Gilles, there is no longer any impediment to the costs assessment being carried out. Hence, I make an order in the nature of certiorari to quash, on the ground of error on the face of the record, the costs assessor’s determination dated 26 June 2017.

Costs

43. The plaintiff seeks its costs of the proceedings or alternatively, submitted that as a minimum the clients should be liable for costs up to the time of service of the submitting appearance and not thereafter. The clients submitted that in the circumstances it would be unjust and unreasonable to impose any costs order against them other than an ordinary costs order that they pay costs incurred in the proceedings prior to the filing of the submitting appearance. The costs assessor submitted that pursuant to s 208SA of the Legal Profession Act1987 precludes the making of a costs order against him.

44. The starting point is s 98(1) of the Civil Procedure Act 2005 (NSW) which provides that, subject to the Act and rules of court, costs are in the discretion of the court. UCPR 42.1 provides that, subject to that part of the rules, the court is to order that costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs.

45. All defendants in this matter filed submitting appearances pursuant to UCPR 6.11. It reads:

“6.11 Defendant may submit to judgment by notice of appearance

(cf SCR Part 11, rule 4 (3), (4) and (5))

(1) A defendant who intends to take no active part in proceedings may include in the defendant's notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, to which may be added the words, “save as to costs”.

(2) Except by leave of the court, a defendant who has filed a notice of appearance containing a statement referred to in subrule (1) may not file a defence or affidavit or take any other step in the proceedings.”

46. Although UCPR 6.11 does not expressly stipulate the consequences of the filing of a submitting appearance for the costs of the proceedings, it is implicit that a submitting party will not ordinarily be liable to costs order in respect of any costs incurred in the proceedings subsequent to the filing of the submitting appearance: see China Shipping (Aust) Agency Co Pty Ltd v D V Kelly Pty Ltd (No 2) [2010] NSWSC 1557 (“China Shipping (No 2)”), Rein J at [8].

47. There are circumstances in which the Court’s general costs discretion under UCPR 42.1 may be exercised against the party that has filed a submitting appearance depending on “the role adopted by [that party] in the proceedings.” see Mahentirarasa v State Rail Authority (No 2) 2008 72 NSWLR 273 at [7].

48. In Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47, Bignold J at [51] and [52] stated:

“51 Similarly, this Court will not ordinarily make declarations by consent, or without there being a proper contradictor, or at least where as in the present case, the Respondent has filed a submitting appearance, without the claimant establishing its entitlement to the relief claimed. As Megarry VC said in Metzger v Department of Health and Social Security (1977) 3 All ER 444 at 451:

The Court does not make declarations just because the parties to litigation have chosen to admit something. The Court declares what it has found to be the law after proper argument, not merely after admissions by the parties. There are no declarations without argument: that is quite plain.

52 Accordingly, there can be no legitimate complaint from the Applicant that costs would have been avoided if the Respondent had entered into consent orders, because the Court would not have made, by consent, the declarations claimed, especially since the Court’s orders would probably have the effect of a judgment in rem: see P E Bakers Pty Ltd v Yehuda (1988) 15 NSWLR 437.”

49. As previously stated, relief claimed by the plaintiff in these proceedings is by way of exercise of the Supreme Court supervisory powers contained in s 69 of the Supreme Court Act and also an application for declaratory relief pursuant to s 75 of the Supreme Court Act. All of these forms of relief are discretionary and not rights that could be declared by “consent orders” as submitted by the firm. It is a matter for the Court to determine whether relief should be granted.

The Suitors Fund

50. The plaintiff accepts that s 6 of the Suitors Fund Act 1951 (NSW) has no application here.

51. In Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480, Beazley P (with whom Tobias AJA agreeing) stated at [57]:

“57 There is a further problem with the application of s 6 in the circumstances of this case, in that the proceedings before the primary judge were not by way of an appeal, but were by way of judicial review pursuant to the Supreme Court Act, s 69. Judicial review proceedings would, however, fall within the meaning of "other proceedings" within the meaning of s 6C.”

52. In AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272 (“AAI Limited”), Schmidt J took a contrary position. Her Honour at [28] stated:

“28 ...it seems to me that notwithstanding the views expressed by Beazley P in Henderson v QBE Insurance (Australia) Ltd, given what was decided in Ex parte Parsons; Re Suitors Fund Act, it must be concluded that the Court's judicial review powers, now under s 69, involves proceedings "in the nature of an appeal.”

53. In Allianz Australia Insurance Limited v Habib (No 2) [2015] NSWSC 1870, Beech-Jones J followed what Beazley P said in Henderson and declined to follow what Schmidt J said in AAI Limited. In Allianz, Beech-Jones J stated at [20] and [21]:

“20 However, with respect to her Honour, I do not consider that the statements by Beazley P in Henderson v QBE can be merely described as “views”. As I have stated, Tobias AJA agreed with Beazley P. It is true that Henderson did not consider the above passage from Ex parte Parsons, but that criticism, if it is a valid one, is not one for judges at first instance to act upon.

21 It seems to me that the statements in Henderson and Parsons are difficult to reconcile. Nevertheless, there having been a recent statement by the majority of the Court of Appeal on a question which is much closer to the circumstances of this case than that considered in Parsons, I feel that I am obliged to give effect to the decision in Henderson. It seems to me that I must act on the position stated in Henderson and find that proceedings under s 69 of the Supreme Court Act are not proceedings that answer the description of an “appeal” for the purposes of s 6(1) of the Suitors’ Fund Act.”

54. The costs assessor is exercising administrative power.

55. Further, by reason of s 208S(4) of the Legal Profession Act 1987, the costs assessor is not an officer of the Court when acting as a costs assessor. For these reasons I agree that the firm is not entitled to a certificate under the Suitors Fund Act 1951.

The firm’s submissions

56. The firm says that the issue here is whether the firm should be deprived of the prima facie entitlement for costs. While it might be said that the established practice is to make no order for costs against a costs assessor, the firm submitted there is no statutory prohibition that would displace the prima facie position as to costs.

57. The firm accepts that the costs incurred by it have been limited by the absence of opposition from the other parties. The firm submitted that at a minimum, the clients should be liable for costs up to the time of service of the submitting appearance and not thereafter. However, this is not the end of the enquiry. The true position is that the question should be approached not by reference to prima facie expectations but according to an appraisal of the circumstances of the case.

58. The firm referred to Nyman v Valmas [1997] NSWCA 235, where Beazley JA (with Mason P and Priestley JA agreeing) stated:

“In my opinion, the filing of a submitting appearance does not denote consent to the orders sought. A submitting appearance (both at first instance and in this Court) may be filed for a variety of reasons. The typical situation is where a party has no vested interest in the outcome of proceedings. This typically occurs in statutory appeals where a necessary respondent is the Court or Tribunal from which the appeal is brought. Another is where a party holds funds as a stakeholder or on trust. However, the occasions where a submitting appearance is filed are by no means limited to such obvious circumstances. A party might submit where the costs of appeal outweigh the amount in dispute so that it was too prohibitive or simply not worth the while of a party to contest the matter. The procedure provided by the submitting appearance is a means of facilitating notice to the Court that the party does not propose to put any argument to the court.”

59. According to the firm, the filing of a submitting appearance by a party occupying a true adversarial position in a commercial dispute and concerned with nothing but its own economic welfare cannot be allowed to operate as some form of insulation from the costs consequences of requiring the firm’s claim to proceed to curial determination rather than cooperating in a consensual resolution of it. Furthermore, the use of the words “save as to costs” contained in each defendant’s notice of submitting appearance must be read as contemplating that they would have a potential liability for costs notwithstanding the non oppositional position taken by them.

60. The firm submitted and I have agreed that the stance adopted by the clients did not relieve the firm of the need to establish that it was appropriate for the Court to grant the relief sought by them. However, the firm then submitted that the clients had consented to the grant of relief sought by the firm, it is respectfully submitted that the firm would have been relieved of that need. The effect is that the “submitting” parties required the firm to persuade the Court of the correctness of their position. There was nothing to prevent any of the defendants from consenting to the relief sought by the firm.

61. According to the firm there are effectively two points in time in which the clients ought to have consented to the relief sought by the firm. They are firstly that upon receipt and consideration of the firm’s summons and affidavit in support, regardless of the correctness of Robison DCJ’s decision in the District Court upon which the costs assessor relied in determining to return the application for costs assessment to the manager for costs assessment, the costs assessor was plainly wrong when he concluded that he had no jurisdiction to proceed with the assessment: Clause 18 of Schedule 4 of the Legal Profession Uniform Law 2015 (NSW); or secondly, after delivery of judgment by the Court of Appeal making orders and delivery of judgment in Gilles.

62. As the firm succeeded on appeal in Gilles, it ought to have been obvious to the clients that the firm would succeed in being granted the orders sought in their summons. The decision by the costs assessor in deciding that he had no jurisdiction to conduct the costs assessment (regardless of the applicable legislation for that task) was made after consideration of submissions received by the “cost parties”. It was necessary for the firm to make all pre-hearing preparations, to brief counsel and to present their case to the court. It may well be that the lack of active opposition meant that the firm’s task was less onerous than it would otherwise have been. But effort and expenditure were incurred beyond that which would have been necessary had the clients’ consented.

63. Finally, the firm says that there can be no criticism of their conduct of the firm that would justify depriving them of an order for costs.

The clients’ submissions

64. The clients say they put submissions to the costs assessor via correspondence dated 15 June 2017 and that it is for a costs assessor to proceed to determine the issues of fact and law as they arise on the costs assessment in order to discharge his function. The clients submitted that they played no role whatsoever in trying to persuade the costs assessor that he did not have jurisdiction to deal with the issues which have ultimately been held to be an incorrect decision.

65. The clients referred to China Shipping (No 2), Rein J at [12] stated:

“12 … An important factor in the Court’s decision in Mahenthirarasa (No 2) was the fact that the SRA was required to act as a model litigant in accordance with the principles enunciated and had appeared not to have applied those principles and that it had put submissions to the Registrar of the Workers Compensation Commission that the statute’s preconditions for an appeal in respect of the levies had not been met which was held to be an erroneous decision: see [12]-[13] and [21]-[23] of Mahenthirarasa (No 2), and Mahenthirarasa v State Rail Authority of New South Wales [2008] NSWCA 101; (2008) 6 DDCR 61.”

66. Mahenthirarasa (No 2) does not refer to a decision of a costs assessor. A more relevant decision that involves a costs review panel is Doyle v Hall Chadwick [2012] NSWCA 175 (“Doyle”), referred to by the costs assessor.

The costs assessor’s submissions

67. The costs assessor submitted that he could not deal with the application for assessment was clearly undertaken for the purposes of the administration of Part 11 of the Legal Profession Act 1987. As a consequence, the costs assessor can only be liable for costs in the current proceedings if it is shown that his decision was not taken in good faith.

68. In Doyle, the Court of Appeal considered the operation of s 391 of the Legal Profession Act 2004, which is in identical terms to s 208SA of the Legal Profession Act 1987. Section 208SA of the Legal Profession Act 1987 provides:

“208SA Protection From Liability

A matter or thing done or omitted to be done by … the manager, Costs Assessment or a costs assessor does not, if the matter or thing was done or omitted to be done in good faith for the purpose of administration of this Part, subject …, the Manager, Costs Assessment or any costs assessor personally to any action, liability, claim or demand.”

69. In Doyle, the Court of Appeal was asked to address a claim that a costs review panel should be liable for costs on the basis that it had acted improperly in conducting the relevant review. Basten JA (with MacFarlan JA and Sackville AJA agreeing) observed that such a claim “falls squarely within the scope of the protection provided by s 391.” Accordingly, “[w]hether or not the protection was available depended upon whether the review was conducted ‘in good faith for the purpose of the administration of’ Part 3.2 of the Legal Profession Act”. Doyle at [56].

70. While the firm contended that the costs assessor’s conclusion that he did not have jurisdiction to conduct the assessment was plainly wrong, the costs assessor submitted that it could not be said that he was motivated by some ulterior purpose or otherwise did not act in good faith. The costs assessor reviewed Robison DCJ’s decision, considered the conclusion expressed and concluded that he was precluded from proceeding with the assessment. The costs assessor says that this conclusion was shown to be incorrect but mere error, even an egregious error does not demonstrate a lack of good faith: see Doyle at [58]-[59]. As there was no lack of good faith, s 208SA of the Legal Profession Act precludes the making of a costs order against him.

Conclusion

71. It is my view, that the costs assessor reviewed the decision of Robison DCJ, considered the conclusion expressed and came to the decision that he was precluded from proceeding with the costs assessment even though he was aware there was an appeal extant from the decision of Robison DCJ. As it turned out the decision of Robison DCJ was overturned on appeal and the costs assessor’s decision not to proceed with the costs assessment was incorrect. However, it cannot be said that the costs assessor did not act in good faith. As there was no lack of good faith s 208SA of the Legal Profession Act precludes the making of a costs order against the costs assessor.

72. So far as the clients are concerned, I do not agree with the firm’s argument that the clients should be liable for costs because this Court does not grant jurisdictional relief on the basis of consent of the parties. It is for the Court to be satisfied that it should grant jurisdictional relief. Whether or not the clients consented would have made no difference to the Court’s decision. The clients did all they were required to do and that was to file submitting appearances. In these circumstances no order for costs should be made.

The Court makes an order:

(1)   In the nature of certiorari removing into the Court the decision of the costs assessor in matter number 2016/242676 made on 26 June 2017 and quashing that decision.

The Court further orders:

(2)   The matter is remitted to the manager of costs assessment to be determined according to law.

(3)   There is no order as to costs.

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Amendments

21 March 2018 - Typographical error paras [68] & [70]

Decision last updated: 21 March 2018