Gurwinder Singh v Slater and Gordon
[2018] VSC 574
•1 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COSTS COURT
S CI 2017 01986
| GURWINDER SINGH | Applicant |
| v | |
| SLATER AND GORDON | Respondent |
---
JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 September 2018 |
DATE OF JUDGMENT: | 1 October 2018 |
CASE MAY BE CITED AS: | Gurwinder Singh v Slater and Gordon |
MEDIUM NEUTRAL CITATION: | [2018] VSC 574 |
---
COSTS – Application for review of the decision of an Associate Justice to uphold the order of the Costs Court – Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 63.57 – Whether the decision of the Associate Justice was attended by legal, factual or discretionary error – No arguable case for review – Application dismissed – Hobsons Bay City Council v Viking Group Holdings Pty Ltd [2010] VSC 286 (26 August 2010) – Schweppes Limited v Archer (1934) 34 SR (NSW) 178 – Weingart v Leanne Cain & Associates (No 2) [2018] VSC 245 (18 May 2018).
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | G Singh (in person) | |
| For the Respondent | S Cherry | Slater & Gordon |
HIS HONOUR:
The applicant, Mr Singh, was injured in a transport accident in 2011. He brought proceedings in this Court claiming damages for his injuries. Mr Singh was represented in that proceeding by the respondent, Slater and Gordon.
After the proceeding completed, Mr Singh filed a summons for taxation of the respondent’s costs, following which the respondent filed a bill of costs in taxable form (the ‘bill’). With the consent of the parties the bill was assessed in accordance with the procedure in r 63.88 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the ‘Rules’), which involves the Costs Court making an estimate of the approximate total at which the bill would be taxed without making any determination of the individual items in the bill. In December 2017 an order was made on the taxation for the amount of that estimate (the ‘Costs Court Order’).
Mr Singh applied to review the Costs Court Order on the grounds that he objected to a number of disbursements included in the bill. After a contested hearing an Associate Justice found against Mr Singh in relation to each objection, and dismissed his application. Mr Singh has now applied to review the order made by the Associate Justice.
Procedural matters and the nature of Mr Singh’s application
After a jury trial in the personal injury proceeding, judgment was entered for Mr Singh on 2 March 2017 in the following terms:
1.The defendant pay the plaintiff $1,314,238.70.
2.The defendant pay the plaintiff’s costs of the proceeding, including reserved costs, on the standard basis.
3.There be a certificate for two counsel.
4.There be a certificate for:
(a)senior counsel’s fee on brief at $7,700 per day for 12 days, plus three days of preparation at $7,700 per day, plus four hours of special conferences at $770 per hour;
(b)junior counsel’s fee on brief at $3,850 per day for 11 days, plus three days of preparation at $3,850 per day, plus four hours of special conferences at $385 per hour.
The costs recoverable from the defendant resolved in April 2017 for approximately $485,000.
Mr Singh filed a summons for taxation of the respondent’s costs on 25 May 2017. In June 2017 the respondent filed the bill, claiming professional costs of $312,210.05 and disbursements of $339,204.67, being a total of $651,414.72. After allowing for the costs recovered from the defendant, that bill would have left Mr Singh with responsibility to pay costs of approximately $167,000.
With the consent of the parties the Costs Court determined to assess the bill in accordance with the alternative procedure in r 63.88, which provides:
(1)The Costs Court, in the absence of the parties and without making any determination on the individual items in the bill, may make an estimate of the approximate total for which, if the bill were to be taxed, an order on taxation under Rule 63.56 would be likely to be made.
(2)The Costs Court shall notify in writing each party of an estimate made under paragraph (1).
(3)Within 21 days after the date of the issue of a notice under paragraph (2), a party may file and serve on each other party a notice of objection to the estimate.
(4)If no notice of objection is filed under paragraph (3), the Costs Court may make an order on taxation under Rule 63.56 for the amount of the estimate.
The parties were notified of the estimate of costs made under r 63.88(1) on 27 November 2017. Neither party filed within 21 days a notice of objection to the estimate and on 15 December 2017 the Costs Court made an order on taxation under r 63.56 for the amount of the estimate, allowing $217,253.50 for professional costs and $335,805.24 for disbursements, being a total of $553,058.74. The respondent then refunded Mr Singh the difference between the bill and the Costs Court Order.
On 21 February 2018 Mr Singh filed a document objecting to certain items in the bill. In that document Mr Singh purported to rely on r 63.56.2 of the Rules, which governs reconsideration by a Judicial Registrar of a costs order allowing or disallowing, wholly or in part, any item in a bill, or allowing some amount in respect of any item.
Making an estimate of costs in accordance with r 63.88 does not involve the Costs Court allowing or disallowing any item or particular amount in a bill. Accordingly, when Mr Singh’s notice of objection came before the Associate Justice, each objection made to the bill was determined in accordance with r 63.88(3).
Mr Singh has applied under r 63.57 to review the order of the Associate Justice dismissing his objections to the bill. Rule 63.57 governs review by a judge of an order of the Costs Court under r 63.56.1(5) or r 63.56.4(7). The respondent submitted the order of the Associate Justice was not made under either of these rules and therefore the r 63.57 procedure does not apply to Mr Singh’s application.
Mr Singh has the right to appeal the determination of the Associate Justice.[1] The respondent submitted that Mr Singh’s application should be treated as an appeal in accordance with r 77.06,[2] and argued that this would make no material difference to consideration of the matters raised by Mr Singh in his application.
[1]Supreme Court Act 1986 (Vic) ss 17(3) and 171.
[2]Tomasevic v Nowicki Carbone & Anor [2016] VSC 501 (29 August 2016) [19] (‘Tomasevic’).
In Tomasevic,[3] Dixon J identified that the purpose of the procedures in r 63.57 was ‘to ensure that detailed reasons are provided where a challenged item has been allowed, disallowed or varied as to quantum in the first instance without elaboration.’[4] In this case the Associate Justice provided comprehensive reasons for dismissing each objection to costs raised by Mr Singh in the application filed by him in February of this year. Thus, the purpose of r 63.57 has been satisfied. The respondent did not argue that Mr Singh’s application should be defeated because of some irregularity in the process which led to it coming before me. In my view it is appropriate to dispense with the requirement of r 63.56.1 or r 63.56.4, and to treat Mr Singh’s application as properly brought under r 63.57. However, I agree with the submission of the respondent that consideration of the grounds of objection raised by Mr Singh in the application is the same whether the appeal against the Associate Justice’s ruling is brought under r 63.57 or r 77.06.
[3]Ibid.
[4]Ibid [20].
Principles
The nature of the hearing before me is the same whether it is treated as an application for review under r 63.57 or an appeal under r 77.06. In either case my task is to conduct a rehearing, rather than a hearing de novo.[5] To succeed, Mr Singh must establish that the decision of the Associate Justice was attended by legal, factual or discretionary error.[6] The principles which govern a costs appeal were considered by Osborne J in Hobsons Bay City Council v Viking Group Holdings Pty Ltd:[7]
[5]Oswal v Carson [2013] VSC 355 (19 July 2013) [11] (Ferguson J).
[6]Tomasevic [2016] VSC 501 (29 August 2016) [25]; AJH Lawyers v Matheson Nominees Pty Ltd & Anor [2015] VSC 37 (16 February 2015) [118]; AJH Lawyers v Matheson Nominees Pty Ltd [2015] VSCA 227 (26 August 2015).
[7][2010] VSC 386 (27 August 2010); see also Spotless Group Ltd v Premier Building & Consulting Pty Ltd & Anor [2008] VSCA 115 (18 June 2008) [10]–[11].
13 The fundamental question raised by the appeal is whether it was open to the Court to exercise its discretion as it did. The general principles governing appeals from the exercise of discretion as to costs were expressed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth:[8]
..the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King[9]....
14 His Honour went on to endorse the following statement by Jordan CJ in Schweppes Limited v Archer:[10]
In appeals as to costs, the principles to be applied are these. The Court will always review a decision of a Taxing Officer where it is contended that he has proceeded upon a wrong principle, for the purpose of determining the principle which should be applied; and an error in principle may occur both in determining whether an item should be allowed and in determining how much should be allowed. Where no principle is involved, and the question is, whether the Taxing Officer has correctly exercised a discretion which he possesses and is purporting to exercise, the Court is reluctant to interfere. It has undoubted jurisdiction to review the Taxing Officer's decision even where an exercise of discretion only is involved, and will do so freely on a proper case, using its own knowledge of the circumstances, but it will in general interfere only where the discretion appears not to have been exercised at all, or to have been exercised in a manner which is manifestly wrong; and where the question is one of amount only, will do so only in an extreme case. (Citations omitted)
[8][1953] HCA 25; (1953) 94 CLR 621, 627.
[9][1936] HCA 40; (1936) 55 CLR 499, 504–505.
[10](1934) 34 SR (NSW) 178, cited in Australian Coal and Shale Employees’ Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 628-9.
Grounds of appeal/review
Professional costs
Mr Singh did not object to the assessment of professional costs. In the application filed in February 2018 he stated:
I would like to object certain items in bill which I believe were unreasonably charged to me. I would also like to make it clear the disbursement part that I am objecting. I am satisfied with costs assessed in relation to solicitor/client which was payable to Slater and Gordon.
However, Mr Singh did make the following submissions in relation to professional costs. First, because the respondent failed to comply with costs disclosure obligations in the Legal Profession Uniform Law Application Act 2014 (Vic) (LPUL),[11] and had breached its contract with him by overcharging, it should not be entitled to recover more than the amount of the estimate of costs it provided to him two months before the trial commenced.
[11]The Legal Profession Uniform Law is set out in sch 1 of The Legal Profession Uniform Law Application Act 2014 and, under s 4 of that Act, applies as if it were an act.
In December 2016 the respondent estimated Mr Singh’s total costs to the end of a 10–12 day trial at $345,000. On 10 February 2017, the business day before the trial commenced, that estimate was increased to a range of $532,000 to $548,000. Mr Singh argued costs payable to the respondent should be limited to the amount of the earlier estimate, that is $345,000.
The Judicial Registrar who made the estimate of costs in accordance with r 63.88 explained in reasons which accompanied the estimate that the two costs agreements between the parties were likely to be void because of uncertainties in the terms of each agreement, and because of the respondent’s failure to comply with costs disclosure obligations in div 3 of pt 4.3 of the LPUL. Mr Singh relied on these reasons as the basis of his submission that costs should be capped at $345,000.
This argument was not made to the Associate Justice, but is a new argument first raised in the application to me. Mr Singh did not identify legal, factual or discretionary error by the Associate Justice relevant to this argument. Even if the argument was open to Mr Singh on appeal, it was not supported by the reasons of the Judicial Registrar. The effect of the costs agreements being void was that costs were not required to be paid until they had been assessed and any costs dispute determined.[12] Consistent with the provisions of the LPUL, costs have now been assessed and determined by the Costs Court at $553,058.84. The main reason the bill was reduced was that professional costs were assessed on scale rather than in accordance with the costs agreements. Mr Singh did not point to a provision of the LPUL or any other principle which would require or justify a further reduction of costs below the figure assessed to the amount of an earlier costs estimate.
[12]Legal Profession Uniform Law Application Act 2014 (Vic) s 178(1).
I also note that when the respondent provided the costs estimate in December 2016, Mr Singh was advised that the estimate of costs not recoverable from the defendant at the end of the trial was in the range $154,000 to $184,000. After recovery of costs from the defendant, the total costs which would have been payable by Mr Singh, had the bill been approved, were within that range. In fact, after reduction of the bill on taxation the non-recoverable costs payable by Mr Singh reduced to a figure of about $65,000, which was far lower than the amount he was advised by the respondent he should anticipate having to pay. In other words, Mr Singh was not misled by the estimate provided in December 2016 into believing his costs exposure was less that it turned out to be.
Second, Mr Singh made wide-ranging allegations of negligence, misrepresentation, duress, undue influence, fraud, unethical conduct and charging of unreasonable costs against the respondent. Mr Singh submitted that as punishment for this conduct, the respondent should not be entitled to any costs. The Associate Justice determined that allegations of this nature could not be considered as part of the review of the quantum of the bill of costs, and added:
Individuals have the option of taking conduct concerns to the Legal Services Commissioner and from the material filed it is apparent that [Mr Singh] has already exercised this right on 29 April 2017 when he made wide-ranging allegations of negligence, misrepresentation, duress, undue influence, fraud, unethical conduct and the charging of unreasonable costs. The material filed included a letter dated 19 April 2017 from the respondent which appears to attempt to discourage the applicant from initiating this proceeding. Conduct issues are matters for the Legal Services Commissioner.
Mr Singh has not pointed to any error by the Associate Justice. I reject Mr Singh’s submission that the Associate Justice erred by failing to take into account the allegations of misconduct which he made against the respondent when exercising discretion in relation to costs. Accordingly this argument fails.
Counsel’s fees
Trial fees were charged at a daily fee of $9,900 for senior counsel, and $4,950 for junior counsel. After recovery from the defendant of fees certified by the trial judge, there was a shortfall payable by Mr Singh of $2,200 per day for senior counsel and $1,100 per day for junior counsel.
The estimate of costs provided to Mr Singh in December 2016 included trial disbursements of $160,000. Counsel’s trial fees must have formed a part of this estimate but were not separately particularised. Counsel’s trial fees were particularised as part of the cost estimate provided to Mr Singh just prior to trial. Mr Singh gave the respondent written instructions to proceed to trial shortly after receiving the December cost estimate. He submitted first, by the time he was informed about counsel’s trial fee it was too late, and accordingly he should not be obliged to pay the shortfall in counsel’s fees. Second, his instructions to the respondent, if he beat the defendant’s offer, were to recover all of his costs, including counsel’s fees, and competent lawyers would have followed those instructions. Third, counsel had agreed to certification at the lower daily fee, and he should not be responsible for payment of the higher fee charged.
The Associate Justice reasoned that Mr Singh’s determination to run his proceeding to judgment was uninfluenced by the daily rates of counsel fees, and that he was on notice of the potential shortfall between what he was to be charged and what could be recovered from the defendant. Further, the amounts which counsel charged for representing Mr Singh at trial was a separate matter from the amounts certified for counsel’s fees recoverable from the defendant.
Mr Singh was first advised of the amount of counsel’s daily fee on the business day prior to trial. However, as I stated above, two months before trial Mr Singh was advised to expect a shortfall on recoverable costs to the end of trial in the range of $154,000 to $184,000. It is clear that counsel’s trial fees formed part of the costs estimate given to Mr Singh at that time. Within days of receiving that costs estimate Mr Singh confirmed, in very definite terms, his instructions to proceed to trial. I agree with the conclusion of the Associate Justice that Mr Singh’s decision to proceed to trial was unlikely to be influenced by knowledge of the daily rate of counsel’s fees.
The defendant in the personal injury proceeding was ordered to pay Mr Singh’s costs on a standard basis. There was no basis on which the respondent could apply for an indemnity costs order. The respondent explained to Mr Singh in December 2016, and again just before trial, that if he beat the defendant’s offer he would not be entitled to recover all of his costs.
Certification of counsel’s fees by the trial judge was relevant to the amount of costs recoverable by Mr Singh from the defendant. No doubt counsel for Mr Singh thought it was important to obtain an order certifying fees in order to maximise his cost recovery. However, I agree with the Associate Justice that certification did not govern the quantum of fees counsel were entitled to charge for representing Mr Singh at trial.
Mr Singh also complained that he had been charged the full daily fee for a number of days when counsel were only occupied in court for half the day. The Associate Justice concluded that counsel was entitled to charge a full day when they have held themselves available for the day and were likely to have spent the time preparing for trial. Further, the trial judge certified a full day’s fee for each of these days. There is no substance to Mr Singh’s complaint.
Mr Singh has not demonstrated error by the Associate Justice in allowing counsel’s fees as claimed. This ground of review fails.
Cost consultant’s fees
The bill included two disbursements for cost consultant fees. Mr Singh argued these fees were incurred unnecessarily and he should not have to pay them. The first was for an assessment of costs for the purposes of the mediation held in December 2016. The second was a fee for an updated assessment and costs conference relating to the resolution in April 2017 of costs recoverable from the defendant. The Associate Justice reasoned, first, that the respondent was obliged to be in a position at mediation to provide a reasonable estimate of costs and of the likely contribution towards those costs from another party. Second, it was reasonable to engage a costs expert for the purpose of maximising costs recovery from the defendant in April 2017. Resolution of costs recovered from the defendant obviated the necessity for a full taxation which would have involved further delay and cost. Third, had the respondent not engaged the costs expert to undertake these tasks, it would have been obliged to perform the tasks in-house, and Mr Singh would have been responsible for the costs incurred. There was no error by the Associate Justice in the exercise of discretion to allow the cost consultant fees. This ground for review fails.
Fees of medical expert to attend to give evidence
A treating orthopaedic surgeon charged a fee of $10,000 to attend to give evidence at the trial. Mr Singh objected to the fee on the grounds it was unreasonable and excessive given the doctor gave evidence for only part of one day. Mr Singh submitted it was not necessary to call the surgeon as he was not the current treating orthopaedic specialist.
The Associate Justice correctly observed that the decision as to which witnesses to call at trial was in the purview of the legal practitioners, who in this case obviously came to the conclusion that it was helpful to Mr Singh’s case to call the orthopaedic surgeon who had treated him contemporaneously with the accident. His Honour concluded the jury verdict was testament to the value of the witnesses called. The Associate Justice noted the fee charged by the surgeon took account of the need to be available to give evidence on two days, the first day being rescheduled because of an adjournment of the trial caused by Mr Singh’s ill health. The Associate Justice concluded:
There is no reason for the respondent to be penalised and have its cost entitlement reduced just because [Mr Singh] is dissatisfied with the charge by the doctor supporting his case.
That conclusion was open and, in my view, correct. Mr Singh has not established error by the Associate Justice for allowing the fee for attendance charged by the treating orthopaedic surgeon.
Costs charged for statutory benefit claims
Mr Singh was charged separately by the respondent for legal costs relating to statutory benefit claims. He objected to those costs on the basis there was no costs agreement between him and the respondent in relation to that aspect of his claim, he was told by his solicitor costs that those matters would be charged jointly with his personal injuries claim, the costs were unnecessarily incurred, and there was a statutory prohibition on recovery of those costs.
The fees charged by the respondent in relation to the claim for statutory benefits were not part of the bill and are not the subject of the summons for taxation. Those fees are outside the scope of this proceeding. Further, Mr Singh did not raise objection to these fees with the Costs Court or the costs judge on the earlier review. Accordingly, this ground fails.
Interest
As a result of the order made by the Costs Court on 15 December 2017, the respondent was obliged to refund Mr Singh $121,756.34. Mr Singh submitted he was entitled to interest on that sum, and on any other amount required to be refunded to him as a consequence of this application for review, for the period those amounts were held by the respondent.
Mr Singh did not articulate a legal basis for his claim for interest. The costs judge determined, in conformity with his earlier decision in Weingart v Leanne Cain & Associates (No 2),[13] that Mr Singh was not entitled to interest on the refund to the costs order. In Weingart,[14] his Honour reasoned:
[13][2018] VSC 245 (18 May 2018) (‘Weingart’).
[14]Ibid.
(a) there was no provision of the Legal Profession Act 2004 (Vic) relating to interest on a costs overpayment which was required to be refunded after a successful costs review;
(b) a review of costs under the Legal Profession Act 2004 (Vic) is not a proceeding to recover a judgment debt so as to enliven s 58 or 60 of the Supreme Court Act 1986 (Vic); and
(c) section 101(1) of the Supreme Court Act 1986 (Vic) applies so that interest runs from the date of the Costs Court order and that in a Costs Court matter interest is only payable from quantification of the refund.
Mr Singh has not identified any error of principle in his Honour’s reasoning in relation to interest. I agree, for the reasons stated in Weingart, that interest does not run on the amount of the refund of costs to Mr Singh to the date of the Costs Court Order. Interest does run from that date as a matter of right pursuant to s 101(1) of the Supreme Court Act 1986 (Vic).
Costs of the proceeding
Mr Singh submitted he had invested a significant amount of time since April 2017 in the costs dispute, and because he was successful in having the costs significantly reduced on assessment by the Costs Court, he should be entitled to recover something for the time he spent on the dispute. In oral submissions Mr Singh raised for the first time the question of recovery of disbursements incurred by him in relation to the costs dispute, such as the cost of travel by public transport or car. However, he declined to provide any detail of those costs.
The Associate Justice determined, in accordance with the decision of the High Court in Cachia v Hanes,[15] that Mr Singh, as a self-represented litigant, was not entitled to remuneration for time spent in preparing or presenting his case. That conclusion is clearly correct.
[15](1994) 179 CLR 403.
In oral argument before me, Mr Singh raised for the first time the question of disbursement or out of pocket expenses incurred by him in relation to the costs dispute. Mr Singh did not provide any detail or proof of amounts he sought to claim. I accept the submission of the respondent that there is no evidence of any disbursements or out of pocket expenses incurred by Mr Singh and, even if there were, Mr Singh cannot succeed having first raised the issue on appeal. Accordingly, this ground fails.
Conclusion
I find against Mr Singh in relation to each ground raised by him in his written application for review and in oral argument. Mr Singh’s application will be dismissed. I will hear from the parties as to any consequential orders.
0
8
0