Hirsch v Marchlewski

[2004] NSWSC 942

CITATION:	Hirsch & Ors v Marchlewski & Anor [2004] NSWSC 942 revised - 21/10/2004
HEARING DATE(S):	11 October 2004
JUDGMENT DATE:	20 October 2004
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The determination of the costs assessment panel is set aside in part (being the finding made in 8.1 of the reasons); the decision of this court is remitted to the panel and the panel is ordered to redetermine the said part of the application; the defendants are to pay the costs of the summons; if so entitled, the defendants are to have a certificate under the Suitors' Fund Act 1951; the exhibits may be returned.
CATCHWORDS:	Conditional costs agreement - statute requires that it set out circumstances constituting successful outcome - misdirection by panel.
LEGISLATION CITED:	Legal Profession Act 1987
PARTIES :	David Hirsch & 16 others as named in the schedule of plaintiffs attached to the summons (Plaintiffs) Roman Marchlewski (First Defendant) Lamphud Marchlewski (Second Defendant)
FILE NUMBER(S):	SC 11200 of 2004
COUNSEL:	Mr M Brabazon (Plaintiffs) Mr R Marchlewski (In person) (Defendants)
SOLICITORS:	Maurice Blackburn Cashman (Plaintiffs) N/A (Defendants)

LOWER COURTJURISDICTION:	Costs Assessment Panel
LOWER COURT FILE NUMBER(S):	92204 of 2001
LOWER COURT JUDICIAL OFFICER :	Mr I F Dwyer, Mr C P Wall

- 4 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

20 October 2004

11200 of 2004 David Hirsch & Ors v Roman Marchlewski & Anor

JUDGMENT

1 Master: The plaintiffs are a firm of solicitors. They provided legal services for the defendants in respect of inter alia a coronial inquiry and subsequent common law proceedings.

2 The coronial inquest took place in October 1993. Both defendants brought a claim for damages in this court. There was a ten day trial before Dowd J during February 1998. In judgments delivered later that year, he made awards for damages in favour of both defendants (including an award for aggravated damages). There was an appeal to the Court of Appeal against the awards. The appeal was partly successful (inter alia there was a reduction of damages by disallowing inter alia the aggravated damages).

3 There were two costs agreements made between the parties. One was made in 1993. The other was made in 1996.

4 The defendants applied for an assessment of the plaintiffs’ bill of costs. The assessment was referred to a costs assessor (Mr McNally). He made a determination. The plaintiffs sought a review of the determination. It was referred to a review panel (Messrs Dwyer and Wall). The panel made a determination and delivered a statement of reasons. This took place on 31 March 2004.

5 The plaintiffs have brought an appeal from that decision. The appeal was heard on 11 October 2004.

6 The plaintiffs were represented by counsel. The defendants appeared in person. The first defendant presented himself as being the spokesman for both defendants. At times, he addressed the court directly. At times, he purported to use the services of an interpreter.

7 He adopted a role that did not assist the court in dealing with the issues raised by the appeal. Despite requests to do so, he would not address those issues. He gave the impression of wanting to disrupt the hearing, to cast aspersions against all and sundry and to cause as much annoyance as possible. There seemed to be an obsession with a vendetta against the court.

8 I now turn to the appeal itself. The matter raised by the plaintiffs falls within a short compass.

9 For present purposes, the court is concerned with the 1996 agreement. It was intended to be a conditional costs agreement. It was expressed to be contingent on the successful outcome of the matter in which the legal services were provided. In relation to both profit costs and disbursements, the agreement provided that “Successful outcome means the recovery of any compensation or damages or costs whether by way of judgment, settlement or otherwise” (see clauses 1.3 and 2.3).

10 In 8.1 of the reasons, the panel made inter alia the following finding:-

The 1996 agreement was not a conditional costs agreement, because it did not comply with the Act by setting out the circumstances constituting a successful outcome of the matter. MBC [which is a reference to the plaintiffs] are therefore not entitled to the premium of 25% claimed …

11 Section 186(4) of the Legal Profession Act 1987 (the Act) provides as follows:-

A conditional costs agreement must set out the circumstances constituting the successful outcome of the matter.

12 The reasons of the panel but briefly address the matter that led to the finding.

13 The question was disposed of with the following words:-

The Legal Profession Act requires that an agreement providing for payment of a premium must set out “the circumstances constituting the successful outcome of the matter”. The agreement does not do that, so it cannot be a conditional costs agreement entitling MBC to a premium of 25%.

Nothing further was said by the panel on that question.

14 The finding is the only matter challenged by the plaintiffs in these proceedings. The proceedings are brought by way of appeal pursuant to s208L of the Act. A narrow avenue of appeal is available under that provision (as to a matter of law arising in the proceedings to determine the application).

15 The reasons fail to disclose the process that led the panel to the finding that was made. There is no reference to the content of clauses 1.3 and 2.3 of the agreement. The matters of the conditional agreement and these provisions were raised in the application for review. Whilst it may seem surprising, it appears that the panel may have misdirected itself by overlooking these provisions.

16 The clauses purport to set out the circumstances which are said by the plaintiffs to constitute what a successful outcome means. The task confronting the panel was to address those provisions for the purposes of determining whether or not the statutory provisions had been satisfied.

17 As it appears that this has not been done, the matter needs to go back to the panel so that there provisions can be addressed and the task performed according to law.

18 In the circumstances, the court is not able to affirm in whole the determination made by the panel. Accordingly, the determination is set aside in part (being the finding made in 8.1 of the reasons), the decision of this court is remitted to the panel and the panel is ordered to redetermine the said part of the application.

19 The defendants are to pay the costs of the summons. If so entitled, they are to have a certificate under the Suitors’ Fund Act 1951.

20 The exhibits may be returned.

******

Last Modified: 10/22/2004