Khorramdel v RG Macaulay and a Saivanidis trading as Pryor Tzannes & Wallis Solicitors

[2016] NSWDC 293

District Court

New South Wales

Medium Neutral Citation:	Khorramdel v RG Macaulay and A Saivanidis trading as Pryor Tzannes & Wallis Solicitors [2016] NSWDC 293
Hearing dates:	4 November 2016
Date of orders:	08 November 2016
Decision date:	08 November 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Summons dismissed. (2) Plaintiff pay defendant’s costs. (3) Liberty to restore in relation to costs, such liberty to be exercised by Friday 2 December 2016. (4) Exhibits retained for 28 days.
Catchwords:	COSTS – costs appeal under s 384 Legal Profession Act 2004 (NSW) – plaintiff appeals Review Panel determination dismissing all but one of his claims – whether Review Panel erred in determining that the costs assessor had not denied the plaintiff procedural fairness – whether Review Panel erred in determination of costs of the costs assessor and the Panel – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Legal Profession Act 2004 (NSW), ss 302, 309, 322, 328, 329, 359, 367, 368, 369, 379, 381, 384 and 385
Cases Cited:	B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 CSR Ltd v Eddy (2008) 70 NSWLR 725 eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 Khorramdel v Macaulay and Saivanidis trading as Prior Tzannes & Wallis (NSW Civil and Administrative Tribunal, 15 December 2015, P Boyce Senior Member) Khorramdel and Secretary, Department of Social Services [2015] AATA 383 Lang v Kirkness (New South Wales Supreme Court, Harrison M, 22 October 1997) London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872
Category:	Principal judgment
Parties:	Plaintiff: Siavash Khorramdel Defendant: RG Macaulay and A Saivanidis trading as Pryor Tzannes & Wallis Solicitors
Representation:	Counsel: Plaintiff: In person Defendant: Mr P Crane (solicitor)   Solicitors: Plaintiff: In person Defendant: RG Macaulay and A Saivanidis trading as Pryor Tzannes & Wallis Solicitors
File Number(s):	2016/223674
Publication restriction:	None

Judgment

The application before the court

1. This is an appeal from a determination of the Review Panel dated 23 May 2016. The Summons was not filed until 23 July 2016, which is more than 28 days after the Review Panel’s determination, but this delay was not referred to by either of the parties.

The Summons

2. The plaintiff is a self-represented litigant. The Summons he has drafted contains major pleading problems:

1. There is no reference to either s 384 or s 385 Legal Profession Act 2004 (NSW) (“the Act”), the now-repealed legislation which applies to the work the subject of the costs assessment.

2. The orders sought include orders the court is not empowered to make.

3. The grounds of appeal do not distil the errors of law the subject of appeal and are discursive in nature.

3. As a result of these difficulties, it is necessary to set out the orders and grounds as pleaded. The orders sought are:

1. Appeal allowed.

2. Court set aside review panel certificates forms 10 and 11.

3. Court orders assessor to accept applicant’s own submission and evidences [sic].

4. Court orders assessor to accept applicant to make amendment to cost [sic] assessment application dated 6/8/2015.

5. Court orders assessor to comply with the meaning of fix cost [sic] under LPA 2004 sections 302, 309, 322, 329.

6. Court orders respondent to pay $4,700 to applicant as result of loss brought to applicant.

The grounds of appeal

4. The plaintiff’s grounds of appeal are:

1. I requested original assessor for 1 week extension so I can provide my descriptive submission plus evidences [sic] but he refused me 1 week extension. Assessor restricted me to provide short answers and just one supporting evidence. Applicant made “Denial of Procedural Fairness” claim but review panel refused applicant [sic] claim. It is applicant [sic] contention that Assessor/Review Panel misguided themselves about meaning [sic] of LPA section 352. Applicant also wanted to make amendments to his original application dated 6/8/2015 that assessor refused to accept.

2. Assessor used section 382 to assign amount of $2752.75 for his cost [sic] assessment fee and then assigned it to applicant by using section 369 which assessor cost [sic] does not satisfy any of 369-1(a, b, c) [sic]. Review panel disallowed applicant pays assessor cost [sic] of cost [sic] assessment. Assessor also used same method to raise amount of $990 as wages of respondent on sending few emails to cost [sic] assessment manager. Assessor again assigned $990 to applicant to pay to respondent by issuing certificate under section 367(1) and 368 which again this cost [sic] does not satisfy these LPA sections. Review panel did not allow cost [sic] assessment manager mistake as appeal error about not attaching applicant’s letter dated 4/4/16 to review panel application. Cost [sic] assessment process is a small dispute resolution and parties are not entitled to claim wages/out of pocket expenses.

3. It is applicant [sic] contention that assessor misguided himself with meanings of fix cost [sic] under LPA 2004 sections 302, 309, 322, 329 [sic]. As result respondent caused loss to [sic] amount of $4,700 to applicant as applicant had to pay second solicitor to finish the work.

5. Although the plaintiff’s appeal appears to be brought under ss 384 (in relation to procedural fairness) and 385 (in that he seeks a rehearing of the whole of his costs assessment), he restricted his grounds of appeal to issues of law under s 384, for the reasons set out more fully below.

The work the subject of the costs assessment

6. The plaintiff’s appeal arises from the Review Panel’s determination of an application for review of a solicitor/client costs assessment by an assessor.

7. The circumstances in which the fees were incurred were as follows. The plaintiff retained a firm of solicitors (“the defendant”) to act on his behalf in proceedings brought against him by the Department of Social Security for repayment of approximately $51,000 of benefits paid to the plaintiff at a time when the plaintiff was working. A partner in the firm named Mr Macaulay, on behalf of the defendant, reached an agreement with the plaintiff that the respondent would charge $8,800 to represent him in the Administrative Appeals Tribunal and a fixed sum costs agreement to this effect was signed by the plaintiff, who paid the sum in question.

8. Shortly before the hearing, Mr Macaulay was hospitalised with a serious injury. At the defendant’s expense, Mr Wallis of counsel was retained to appear on the plaintiff’s behalf in the hearing, but nothing turns on this.

9. The Department of Social Security had brought the claim against the plaintiff based on documents it had refused to provide on the basis of confidentiality. However, on the day of the hearing, the Department said it would now make these documents available which “effectively undid the basis of [the plaintiff’s] case” at the Tribunal (Khorramdel v Macaulay and Saivanidis trading as Prior Tzannes & Wallis (NSW Civil and Administrative Tribunal, 15 December 2015, P Boyce Senior Member) at [25](j); see also Khorramdel and Secretary, Department of Social Services [2015] AATA 383 at [14]). After a conversation between the plaintiff and counsel which included a foreshadowing of further legal costs, the plaintiff agreed to the offer of an adjournment to consider his position. When the barrister retained by the defendant to replace Mr Macaulay told the plaintiff that a further $4,400 would be required for the additional legal work involved, the plaintiff refused to pay and the defendant terminated the retainer on 29 August 2014.

10. The plaintiff retained other lawyers to advise him in relation to the claim. Whether by settlement or by a hearing, he lost the case and was ordered to pay the full sum sought by the Department of Social Security (see Khorramdel and Secretary, Department of Social Services at [104]).

11. I pause to note that there is no submission that this result arose as a result of inadequate representation. The plaintiff accepted that, once the tax documents were provided, the evidence showed he was working while receiving government benefits. The sole issue to which the continuation of the proceedings goes is that the plaintiff raised the objection, on assessment, that there was duplication of work after he changed solicitors. It was for this reason that the assessor told the plaintiff to provide the invoices from the new solicitors, so that his overlapping costs argument could be determined by the assessor.

12. The plaintiff did not immediately seek to challenge the defendant’s memorandum of costs for the fixed sum. First, he made a complaint to the Legal Services Commissioner on 12 November 2014, which was rejected. Next, on 10 April 2015, commenced proceedings in the Civil and Administrative Tribunal of New South Wales (“NCAT”) to recover the sum he had paid to the defendant ($8,800, including GST). Finally, just short of a year after the bill had been sent, on 11 August 2015, he made the application for costs assessment which led to the appeal now before me.

The costs assessor’s determination

13. The hearing of the costs assessment application had to be deferred until the NCAT decision, which was handed down on 15 December 2015. On 4 February 2016 the costs assessor wrote to the parties setting out an administrative program for the costs assessment to proceed. The strictness of this timetable is relevant to the first ground of appeal, namely the refusal of the costs assessor to grant an extension of time for the plaintiff to comply with this timetable.

14. At the time this program was proposed, the costs assessor already had the plaintiff’s complaint to the Law Society, the NCAT decision, the file, the defendant’s account of the costs for the fixed sum (set out at paragraph 25 of the judgment). On 4 February 2016 (not 2015 as set out in the costs assessor’s determination at paragraph 32) the costs assessor required the client to identify any clause of the agreement which he alleged was not fair and reasonable (see Table A set out in paragraph 32 of the determination) and the costs asserted not to be fair and reasonable (see the Table B costs totalling $5,127.50 and the references to overlap with the new solicitor’s work at paragraphs 44 – 46 of the determination).

15. These objections were provided under protest. On 10 February 2016 the plaintiff wrote to the costs assessor as follows:

“…Your below [sic] letter in page 4 under “The Application” there [sic] is a line “I will assess the whole of the costs as payable unless there are general or specific objections made. I don’t believe justice is going to be served by the way of providing short answers to questions 9, 10, 11 and I need to provide comprehensive [sic] with supporting evidence to you otherwise anything else is going to be vague and fruitless.

I request [sic] extension of time so I can prepare my above answers until Friday 19/2/2016.”

16. On the same day the costs assessor replied refusing the extension, stating that the directions “require only short answers and do not require lengthy responses and it would be possible for him [sic] to prepare the tables (even if only in writing) and attach any invoices received by the solicitors he later retained.”

17. The plaintiff accordingly filled out the relevant information, including the schedule of challenged costs totalling $5,127.50 and attached four invoices from Proctor & Associates, telling the costs assessor he claimed the whole of this sum:

“Any new solicitor has to start from scratch on any new legal case. Applicant and solicitor had to go through the same material, similar meetings to discuss the case, similar correspondences and telephone conversations which already had done [sic] them with PTW. I have attached 4 invoices from Proctor & Associates to the amount of $4,700. Applicant used the same method of fixed cost for [sic] Proctor retainer”.

18. The costs assessor rejected all the challenges to the reasonableness of the $8,800 memorandum of costs. He also rejected the claim that the Proctor & Associates costs should be deducted, remarking:

“[47] This proposition is to be tested by identifying which of the costs charged by Proctor & Associates had already been charged by the Practitioner. The Client has not identified any specific items in both tax invoices, and I should not be required to guess which of the claims comes within his objection. In the absence of any assistance from the Client I find that there are no costs claimed by the Practitioner which should be disallowed as not being fair and reasonable.

[48] In addition, the Client’s costs incurred for a new solicitor arose because he would not concede that the work to be done after 19 August 2014 was additional work outside the scope of the Agreement. I have determined this issue against the Client, and the Practitioner cannot be held responsible for the Client’s cost of instructing a new solicitor.”

19. The plaintiff’s principal claim of denial of procedural prejudice is that the assessor restricted the applicant’s objections, particularly as to the quality of the work and degree of overlap, because of lack of evidence and restrictions as to the documents in support.

20. The costs assessor also made orders as to the defendant’s costs ($990) and an additional costs order of $2,752.25.

The plaintiff complains to the Manager, Costs Assessment

21. After the costs assessor gave his determination, the plaintiff wrote to the Manager, Costs Assessment, on 4 April 2016, stating:

“I emailed [the costs assessor] on 10 February 2016 to request for 1 week extension to provide my comprehensive submission mainly about his questions pages 9 – 10. He refused me 1 week extension and directed me to provide short answers and restricted me to one supporting document which was second solicitor invoices”

22. The plaintiff went on to say:

“The purpose of my comprehensive submission was to make withdraw/amend [sic] and omit some paragraphs and parts of my application filed on 11/8/2015. As you can appreciate information becomes available and changes to legal applications during legal proceedings are ordinary practice…

I purposely wanted to withdraw paragraph 2 of my application about s 328 but however had issues also how [sic] respondent complied about contents of costs agreement. There were other changed I needed to make within my application too. This is mainly because of NCAT and other matters. As you can appreciate there was [sic] significant amount of time between lodgement date and assessment date of my application.

I could not possibly fulfil my intentions through short answers and had to be comprehensive with supporting documents as per my email page 9. My submission had to be complete enough to assessor/respondent could understand and particularly assessor to be convinced to make changes to his original letter and directions. Even in reply I could not do it as he put limited circumstances to right of reply.”

23. The plaintiff initially sought a review by the Manager, Costs Assessment. On 6 April 2016 the Manager replied advising that the appropriate course was to apply for judicial review from the Supreme Court or to lodge an application for review by the Review Panel by 14 April 2016. The application for review was lodged on 13 April 2016.

The issues before the Review Panel

24. The plaintiff outlined the following issues for the Review Panel:

“2) On 4/2/16 assessor sent me letter and gave direction to provide short answers for my submission until 12/2/16.1 emailed him on 10/2/16 and asked him for 1 week extension so I can provide him with supporting evidence and comprehensive/descriptive explanation to information he was seeking. He refused me 1 week extension and repeated his direction to provide short answers and restricted me to 1 supporting evidence which was second solicitor invoices. Pages 9-10

Application Amendments

3) I needed to withdraw paragraph 2(b) of my application due to NCAT decision or jurisdiction objection by respondent which was referred to assessor. I originally filed my application on 11/8/2015 but it was put on hold because of NCAT proceedings. I received NCAT decision on 17/12/15 and decision was made by MCA on 15/1/16. (page 13) to refer the matter to assessor for jurisdictional objection of respondent [sic]. As you can appreciate this was coincided with Christmas/New year holiday period which legal community are mainly away. By the time I could find someone through community base legal adviser my application was referred to assessor. There is no application amendment procedure/regulation and in these circumstances the reasonable course of action was to wait for assessor appointment and make my submission all together at one goes. Assessor dictated to me on format, amount of information and restricted me to just one supporting evidence while put no restriction on respondent. He held me responsible for submission which he dictated to me and raised costs against me on the basis of dictated submission. Objections are made to contents of application and not to piece of blank application page. It is for me to make my submission and withdraw/amend contents of my application paragraphs. I can be hold responsible for my own submission and not assessor dictated submission. Assessor had a copy of NCAT decision and knew applicant (Siavash Khorramdel) represented himself so applicant is capable of writing his own submission. Applicant could use assessor format as guideline but not to be dictated and restricted to one supporting evidence.

4) I needed to remove contents of paragraph 4 and ask for itemised invoices to be assessed. I needed to amend further reasons to paragraph 5 with supporting evidences. I also needed to withdraw paragraph 6(a) of my application and replace it with 6(b) with figure of $5,127.5. As you can see my amendments were reducing work load and hence cost assessment. I could not possibly fulfil my intentions through short answers with assessor format and had to be comprehensive with supporting documents as per my email page 9. My submission had to be complete enough so assessor/respondent could understand and particularly assessor to be convinced to make changes to his original letter and directions. Even in reply I could not do it as he put limited circumstances to right of reply. However after assessor reply I had to comply as below paragraph from supreme court [sic] website: [URL removed]

“Failure by a party to comply with the directions of a Costs Assessor may result in the Costs Assessor declining to deal with the application. Alternatively, the Costs Assessor may continue to deal with the application on the basis of the information provided. Failure by a party to comply with the direction of a Costs Assessor may be an offence punishable by a fine.

Failure by a legal practitioner to comply with the directions of a Costs Assessor without reasonable excuse is capable of being professional misconduct “

Denial of Procedural Fairness

5) Assessor accepted respondent initial jurisdictional objection submission pages 11-12 and addressed them in his assessment but denied same opportunity to applicant. Assessor restricted applicant to one supporting evidence which was second solicitor invoices. Applicant made contention mainly about quality of solicitor work in page 9 (Table A, item 2) of assessor decision. Assessor rejected contention because of lack of evidence page 12 paragraph 39 of assessor decision It is applicant submission that assessor even failed his own instructions about procedural fairness and submitted applicant to Denial of Procedural Fairness by restricting applicant to just one supporting evidence.

6) Section 359 of LPA is using the word “MUST” and not “May, Should, Can”. The word “MUST” remove any ambiguity or opportunity to impose denial of procedural fairness. Assessor clearly failed to follow above rule or if he did but definitely misguided himself to the meaning of the word “MUST”. There is nothing unreasonable for asking 1 week extension from non-legal person, providing descriptive submission rather short answers and supporting evidences.

Conclusion:

7) Assessor raised costs of costs assessment under LPA328 but issues certificate under 369 which does not satisfy any of 369-1 (a,b,c). Applicant should not be issued Form 3 in the first place. There is no warning in client application for incurring costs and my application was reviewed few times by CAM and at no time any warning was given to me for any assessment liability. I further request as assessor made gross error of law applicant (Siavash Khorramdel) must not be liable for any amount for review panel costs. This is a process which has essential “Fair and Reasonable” principal as its root otherwise this “Costs Assessment Scheme is turned to Costs Assessment Scam”.

8) I have calculated total costs payable under 379(3) as $12,542.75. If review panel has different figure then could you please contact me under 375-3(a, b, c) so I can provide you with further information/evidences.”

The decision of the Review Panel

25. The Review Panel set aside the costs order of $2,752.25 made against the plaintiff, which they noted had been erroneously charged as this was a solicitor/client assessment, but affirmed the costs assessor’s determination in all other respects. The Review Panel also made an order that the plaintiff pay costs of $1,200 in relation to its own costs.

26. The Review Panel noted the difficulties they had in distilling the plaintiff’s grounds for review, identifying seven separate issues which (apart from the challenge to the $2,752.25) related to the claim of lack of procedural fairness.

27. Dealing with the specific complaint in relation to the refusal of the one-week adjournment in ground 1 of the Summons filed in these proceedings, the Review Panel noted that the request for information and refusal of an adjournment needed to be viewed in context, in that the assessor already had “extensive correspondence” and “significant material” (at [7]) and that, in those circumstances, the plaintiff had been given a reasonable opportunity to make submissions.

28. The Review Panel noted that the plaintiff had in fact made the submissions about the fixed sum costs and attached the invoices for the sum paid to the new solicitors, and these claims had been considered and rejected. The Review Panel did not accept the plaintiff’s complaint that the assessor had “dictated to me on format, amount of information and restricted me to just one supporting evidence” (at [8]), as the parties had put very considerable material to the assessor and the correspondence complained about by the plaintiff was only one in a series of such submissions and letters. The assessor had rejected the plaintiff’s submissions about overlap because the plaintiff had not identified a single overlapping issue in the two sets of solicitors’ fees. As to the plaintiff’s general complaints of lack of procedural fairness, such as that he was prevented from amending paragraph 4, the Review Panel considered that both parties had been given ample opportunity to put relevant material, and had in fact done so. Although the plaintiff was self-represented, he had understood the issues.

29. However, the plaintiff’s submissions in relation to the costs of the assessment were accepted. The Review Panel stated that it “does not agree with the costs assessor as to the proper application of section 369” (at [12]). Accordingly, the Review Panel set aside the Form Certificate (the costs being accordingly paid by the Scheme).

30. However, the Review Panel went on to say (at [14]) that it proposed to charge the plaintiff the costs of the review because the plaintiff had only improved his position by approximately 12% and not 15% (as to which, see s 379 of the Act). Although not immediately apparent from the plaintiff’s grounds of appeal (because it refers to the sum set aside by the Review Panel), the plaintiff’s challenge to this additional charge is the second ground of the appeal before me.

31. The third ground of appeal is that the costs assessor misconceived “fixed costs”. This is not referred to in the plaintiff’s application for review or in the Review Panel’s determination, and was raised for the first time before me.

Preliminary observations concerning the grounds of appeal

32. I make the following observations as to each of the grounds of appeal:

1. Ground 1 is a general complaint of lack of procedural fairness in refusing an extension of one week for the plaintiff’s submissions, which includes issues of unfairness not put to the Review Panel. A number of additional issues were raised in the course of oral submissions. I have dealt with as many as I have been able to identify, but these are largely outside the grounds of appeal.

2. Ground 2 consists of two complaints about costs. The first is not a complaint about the assessor’s costs of $2,572.75, which was set aside by the Review Panel, but because the Review Panel made a costs order for the review of $1,200, and needs to be read in this light. The plaintiff says that because the $2,572.75 costs order was set aside, he won, and no costs should be charged to him at all. Examination of the Review Panel judgment shows that this was, however, only one of many issues raised by the plaintiff, and that he was not successful in relation to the others. In particular, he did not recover 15% or more of the costs, which is the threshold for s 379 of the Act.

3. The appeal in relation to the second sum referred to in Ground 2, namely the sum of $990, relates to the Review Panel’s refusal to deal with this issue (raised in correspondence) as it was not one of the grounds for review of the assessor’s decision (which are set out behind tab F in Exhibit 1). The plaintiff’s argument (which is misconceived, for the reasons set out below) is that the Review Panel has to consider every issue in the assessment, and not merely what is in the grounds for review.

4. Ground 3 is a complaint about the costs assessor’s approach to the issue of fixed costs and an asserted failure to interpret the provisions of ss 302, 309, 322 and 329 in this regard. Mr Crane points out that this was not a complaint put before the Review Panel, and thus ought not to be the subject of appeal to me.

33. In his affidavit in support, the plaintiff also challenges the decision of the NCAT (Khorramdel v Macaulay and Saivanidis trading as Prior Tzannes & Wallis (NSW Civil and Administrative Tribunal, 15 December 2015, P Boyce Senior Member)). Other issues he raised during submissions include allegations of bias against the costs assessor.

34. These difficulties were added to by the unclear nature of the orders the plaintiff seeks. For example, is the plaintiff seeking the difference between the $8,800 he paid to the defendant and the $5,127 he challenged on assessment as excessive? The plaintiff eventually conceded that he was not challenging the $8,800 costs assessment and simply seeking reimbursement for the $5,127 he paid to Proctor & Associates.

35. The final issue of difficulty is whether the grounds of appeal are brought under s 384, s 385, or both. The plaintiff told me that he was unable to proceed with his application under s 385 because a judge conducting the general list had made a ruling against him having a “rehearing”, which he interpreted as striking out any s 385 appeal. I explained to the plaintiff that this was not correct, as the judge’s associate had merely written to him to explain his summons was listed for hearing on 4 November 2016. His response was, however, that he was content for his appeal to be brought only under s 384, and that he did not wish to tender any additional evidence not given to the Review Panel or assessor. I have accordingly determined this appeal on that basis.

36. Before considering each of the grounds I first note some of the relevant principles of law in relation to appeals from a determination by the Review Panel.

The nature of the appeal before the court

37. A right of appeal on an issue of law under s 384 of the Act is “narrow”: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 at [12]; Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. It is not open to the court to consider the justice of the case generally: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481. If no question of law can be identified, the appeal should be dismissed: Lang v Kirkness (New South Wales Supreme Court, Harrison M, 22 October 1997).

38. While considerable latitude is given to litigants in person, the Review Panel is not required to investigate outside the parameters of the grounds for review identified by the parties, other than in very limited circumstances: eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284 at [43] – [50]. Nor is the Review Panel required to set out in detail its reasons for supporting the reasoning of the assessor where it has essentially confirms the assessor’s reasoning.

39. For a s 384 appeal to succeed, legal error alone may not be insufficient. In Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd, Johnstone DCJ stated at [16]:

"[16] Not only must a party who is appealing under s 384(1) establish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. Thus it has been said by Associate Justice Malpass:

The onus borne by the plaintiff is not merely to demonstrate error as to a matter of law arising in the proceedings to determine the application but also to demonstrate that any such error is material to the determination": Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439 at [24].

… while there has been an attack on the expression of the reasoning process, it has not been shown that the determination itself was erroneous and should be disturbed … The onus borne by [the plaintiffs] has not been discharged": Skalkos v Assaf [2002] NSWSC 1221 at [17]-[18]."

40. The concept of proportionality plays no part of the assessment process (eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd at [117]) and is largely irrelevant to costs appeals as well. The fact that a costs appeal may relate to a modest sum of money (in the present case, less than $7,000) does not mean that the issues should not be looked at on their merits. The fact that one, or both, parties are representing themselves should not result in disadvantages or unfairness.

41. However, the principles set out in s 56 Civil Procedure Act 2005 (NSW) apply to all proceedings, including disputes over small claims involving self-represented litigants. In particular, the parties to such litigation should endeavour to assist the court by setting out the relief sought clearly and succinctly and by providing material which is of assistance to the court, such as a chronology and bundle of relevant documentation in date order. The defendant took these steps, but these really are matters which should have been attended to by the plaintiff.

Ground 1

42. The plaintiff complains that he was given only one week to set out the basis of his objections to the bill, and submits that this was not a “reasonable opportunity” for the purposes of s 359 of the Act.

43. What constitutes a “reasonable opportunity” to make or respond to submissions is generally an issue of fact in the circumstances of the case. In the present case, as is set out above and as is discussed at some length in the costs assessment, the parties had, most unusually, already litigated these issues in the NCAT. In fact, the defendant sought to argue that the findings in the firm’s favour constituted estoppel (an argument the assessor rejected).

44. The relevant principles for procedural fairness are set out in CSR Ltd v Eddy (2008) 70 NSWLR 725 at [34] – [42]. The party bringing the complaint must be able to establish not only that some document or opportunity was not provided, but also that the failure to do so caused “practical injustice” (at [38]). If unfairness is established but the decision was inevitable, a claim of procedural unfairness is unlikely to be made out (at [39]). For these reasons, questions of whether procedural unfairness has occurred tend to turn on their facts.

45. The plaintiff does not point to any error of law of the Review Panel in relation to its finding that there was no procedural fairness. He submits that the assessor’s decision was itself unfair, not the Review Panel, but without pointing to any error of law by them in considering this issue.

46. On the factual background as set out above, I am not persuaded, on the balance of probabilities, that there was any procedural unfairness afforded to the plaintiff either in refusing an extension of one week for submissions or in relation to the assessment generally. As the review panel noted, there was extensive documentation put before the costs assessor by both parties, both during the costs assessment process and as a result of the proceedings in the NCAT (which had resulted in a lengthy judgment). The plaintiff had had the defendant’s itemised list for a long period of time. The items in that list were not lengthy or difficult to respond to, and the plaintiff had no difficulty doing this. Nor would it have been a lengthy task to set out those items which were asserted to overlap with the costs paid to Proctor & Associates.

47. Nor was there “practical injustice”, as the outcome of the proceedings would be the same, by reason of the assessor’s correct analysis of the nature of the fixed sum costs agreement. The plaintiff’s belief that the figure of $8,800 was the “once and for all” maximum sum that the defendant could ever charge, even if there were significant changes to the nature and length of the proceedings, is misconceived.

48. As to the more generalised claims of procedural fairness, where these were not the subject of the grounds for review, these issues do not fall for determination by the court: eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd.

49. Ground 1 of the summons is dismissed.

Ground 2

50. The Review Panel set aside the order for costs under s 369 on the basis that this was a solicitor/client and not a party/party memorandum of costs. The reference to the $2,752.75 in Ground 2 is misleading; what the plaintiff is really objecting to the failure to remove the amount of $990 and to the Review Panel imposing their own charges of $1,200 on the basis that the plaintiff had not been 15% or more successful (s 369(3)(c)).

51. The plaintiff submitted that he had been entirely successful before the Review Panel, and that in those circumstances, he should not have been charged any costs, let alone the sum of $1,200 that the Review Panel charged.

52. The plaintiff wrote a large number of emails to the Manager Costs Assessment on a variety of issues. In relation to several issues, one of which was the costs charged, the plaintiff wrote to the Manager Costs Assessment after the Review Panel hearing complaining that the Review Panel had not considered s 381 (inadvertent error) and his earlier correspondence. In her email in reply the Manager Costs Assessment pointed out:

“You have attached to your review application a number of emails etc so it is hard to accept that you did not appreciate that any material that you wanted the panel to consider would be included or attached by you to the review application.

However … I will accept on this occasion that you may have had the misapprehension that emails to the Manager Costs Assessment sent after the assessor determination but before the Review application, might be sent to the review panel.

Although you refer to the previous s 371 LPA request made of the assessor, I cannot locate where you have previously asked for s 381 inadvertent error to be considered by the panel (as opposed to asking questions about the decision and querying that an email complaint was not considered by the panel). I will always forward any request for consideration of any inadvertent error under s 381 LPA – but this did not appear to be the nature of your request on 16 June.

Unfortunately we have many emails from you so please confirm if it is the letter sent to MCA dated 4 April 2004 [sic] attached below that you wanted the review panel to consider (in addition to your review application) so that we can forward for panel consideration as to any inadvertent error under s 381…

I state again that you had a copy of all emails and the usual procedure would be that if you wanted a review panel to consider them they should have been attached to your review application.

I note that if the panel spends more time on this review, they may need to add to their costs and one of the parties may be found liable for this additional cost.” (Email 17 June 2016, Exhibit 1, Tab 29)

53. The Review Panel was entitled to charge the sum of $1,200 in circumstances where the plaintiff had sent so many emails to the Manager Costs Assessment that it created these additional costs, as she warned in her correspondence above.

54. As to the $990 (which is another ground which the plaintiff stated in oral submissions was another matter the Manager Costs Assessment did not send on to the Review Panel as requested), this was the costs order made by the assessor for the costs of the defendant (the costs respondent) under s 328(9). The plaintiff claims that this should have been set aside for the same reason as the setting aside of the $2,752.75.

55. The Review Panel described the plaintiff’s grounds of appeal as being “not set out in an intelligible form” (at [12]). There is no reference to the $900 in those grounds of appeal, or in the subsequent correspondence from the plaintiff to the Review Panel, and certainly no identification of the basis upon which these costs were charged.

56. If the plaintiff’s application was made under s 381, it was misconceived as it was not an inadvertent error. The assessor clearly states in his assessment at [55] that this sum relates to s 328. The problem seems to be that there is a reference to ss 367(1) and 368 on the certificate, but the basis for the assessor’s award of this sum is clear.

57. For these reasons, Ground 2 of the Summons must be dismissed.

Ground 3

58. There is substantial overlap between Ground 3 and Ground 1 of the appeal, in that the real basis of the challenge to the fixed sum costs is the refusal to allow the offset of the Proctor & Associates costs. The plaintiff in the course of submissions made it clear he abandoned any actual challenge to the $8,800 fixed sum on any other basis. In those circumstances, I note:

1. This was not the subject of any application for review (other than on the subject of the Proctor & Associates offset);

2. The plaintiff’s submission that the Review Panel had to determine this issue whether or not he raised it is misconceived (eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd at [43] ff).

59. This ground of appeal must also be dismissed.

Costs

60. Mr Crane sought an order for costs. The plaintiff challenged the entitlement of the plaintiff to costs as Mr Crane is an employee of the defendant (the solicitor on the record in these proceedings).

61. I referred the plaintiff to London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 and to the recent consideration of these principles in Bechara trading as Bechara and Company v Bates [2016] NSWCA 294, indicating that I would grant liberty to apply in relation to costs, but that costs must follow the event. It is a telling indication of the level of sophistication of the plaintiff, in relation to legal issues, that he would be familiar with the Chorley principle.

62. Accordingly, the order I have made is that the plaintiff is to pay the defendant’s costs but with liberty to apply. That liberty must be exercised by Friday 2 December 2016 by written application to my associate, such application to contain an outline of submissions, and includes any application for variation of the costs order by the defendant, if such is to be made.

Orders

1. Summons dismissed.

1. Plaintiff pay defendant’s costs.

2. Liberty to restore in relation to costs, such liberty to be exercised by Friday 2 December 2016.

3. Exhibits retained for 28 days.

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Decision last updated: 18 May 2018