Lange v Back & Schwartz

[2009] NSWDC 180

CITATION:	Lange v Back & Schwartz [2009] NSWDC 180
HEARING DATE(S):	07/05/09, 08/05/09
JUDGMENT DATE:	12 June 2009
JURISDICTION:	Civil
JUDGMENT OF:	Norrish QC DCJ
DECISION:	1. Application for extension of time for filing Summons granted 2. Summons filed 5 January 2009 dismissed 3. The plaintiff pay the defendants’ costs.
CATCHWORDS:	LEGAL PROFESSION - Costs - Appeal from Costs Assessor's decision - procedural fairness - ss384 and 385 Legal Profession Act
LEGISLATION CITED:	Legal Profession Act 2004 Uniform Civil Procedure Rules 2005
CASES CITED:	Currabubula and Paola Holdings Pty Ltd v State Bank of NSW [2000] NSWSC 232 Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196 Forman v Rattray [2006] NSWSC 260 Adamson v Miller [2005] NSWSC 971 Levy v Bergseng [2008] NSWSC 294 CSR v Eddy (2008) 70 NSWLR 725 Wentworth v Rogers (2006) 66 NSWLR 474 Hutchison v RTA [2001] NSWCA 332 Freeman v McNally & Anor [2003] NSWSC 780 Wende v Horwath (NSW) Pty Ltd [2008] NSWSC 124
PARTIES:	Paul John Lange - Plaintiff Francis Joseph Back, Tony Schwartz (t/as Back, Schwartz, Vaughan Solicitors) - Defendants
FILE NUMBER(S):	0006/09
COUNSEL:	Mr Waterstreet with Mr Lange - Applicant Mr Harris - Respondent
SOLICITORS:	Mr P Lange - Applicant Back Schwartz Vaughan - Respondent

JUDGMENT
Introduction

1 Paul Lange (“the plaintiff”) by Summons filed on 5 January 2009, makes application for an extension of time to file a summons so as to appeal the costs assessment made by Mr John McIntyre, Costs Assessor, on 28 July 2008, in a Certificate of Determination of Costs, issued pursuant to ss 367, 368 Legal Profession Act 2004 (“LPA”), in favour of the defendants. An extension of time is required pursuant to r 50 (Uniform Civil Procedure Rules) as the plaintiff was required to file the summons within 28 days or no later than 31 July 2008. The decision by the Costs Assessor was generally founded on the basis that the plaintiff had retained the defendants to provide legal services pursuant to a ‘costs agreement’, that the costs claimed were ‘fair and reasonable’ and that the full amount, less monies already paid towards costs, was owed, plus interest and fee for the application.

2 If the application for extension of time is granted the plaintiff wishes to appeal the assessment of costs pursuant to s 384 LPA. Alternatively, or additionally, he seeks leave to appeal pursuant to s 385 LPA. The grant of an extension of time is opposed by the defendants who also oppose the applications made by the plaintiff pursuant to ss 384, 385 LPA. Appeal from the Costs Assessor’s determination lies only pursuant to the provisions of Part 3.2, Division 11 LPA.

Background to the matter

3 I make the following factual findings on the evidence available at this time. The defendants, Messrs Back and Schwartz, traded as Back Schwartz Vaughan Solicitors, in partnership at relevant times. That firm of solicitors was approached by the plaintiff for legal advice and other legal services concerning liquor licensing matters on 8 September 2006, in respect of the proposal of Pschorr (Aust) Pty Ltd (the “corporation”) to commence a business to be known as the ‘Bavarian Beer Hall’ in Hickson Road, Sydney. Various legal work was done at the request of the plaintiff over a period of time. The critical period of time as to events giving rise to the claims for legal expenses, or costs, from the plaintiff was from about 8 September 2006 until 18 October 2006. At relevant times Paul Lange was the “General Manager” of the corporation.

4 A ‘costs agreement’ and ‘costs disclosure’ document from the defendants was addressed to, and received by, the Plaintiff dated 8 September 2006. By email, sent about 10.47 am on 13 September 2006, the plaintiff ‘accepted’ the terms of the agreement, except as to certain details as to disbursements, particularly the cost of photocopying. Ultimately, on 26 September 2006 the plaintiff provided the defendants by direct deposit with $2,000 from his own funds, to be held in trust on account of costs and disbursements. On 19 October 2006 a tax invoice, constituting a memorandum of costs and disbursements, was forwarded to the plaintiff and the corporation, requiring the payment in the sum of $12,166.46. A transfer was made of the sum of $2,000 from the trust account towards costs allegedly outstanding. Demands were made for the payment of the costs outstanding which were unanswered by the plaintiff and the corporation.

5 On 2 April 2007, by Statement of Claim, an action was commenced by the defendants against the plaintiff (as first defendant) and the corporation (as second defendant) for a sum outstanding, including costs of the action. Ultimately the action was discontinued, although in the meantime the sum of $850.40 was paid by cheque drawn by Pschorr (Sydney) Pty Ltd, on or about 20 June 2007. I am informed that the corporation is a shareholder in the company that paid that sum. I have had regard to the pleadings and evidence filed in the Local Court proceedings, as requested by the plaintiff.

6 On 31 January 2008 an application was made by the defendants to the Costs Assessment Section of the Supreme Court of New South Wales for the sum of $10,232.34 for professional fees and interest, allegedly in dispute. The plaintiff and Pschorr (Aust) Pty Ltd were the respondents to the application.

7 Objections to the amount claimed were separately lodged with the ‘Manager Costs Assessment’ of the Supreme Court by the plaintiff and on behalf of the corporation dated 21 February 2008. The objections were in identical terms. The only objection articulated by the plaintiff was raised under the heading ‘Charges Not Instructed or Not Reasonably Incurred’. The sum of $4,800 was the subject of specific objection. Although I note that the objection was phrased “purely with regard to the amount of costs claimed …”. There was no objection to items the subject of ‘qualification’ or comment in the acceptance by the plaintiff of the terms of the agreement in his correspondence of 13 September 2006. All objections, in the letter of 21 February 2008, were as to timed legal work, such as “attendances”, drafting and the like.

8 I am satisfied the Costs Assessor forwarded to the plaintiff, the corporation and the defendants requests for further and better particulars by correspondence dated 27 March 2008 and 26 May 2008. The defendants responded on 9 April 2008 and 27 May 2008. There was other follow up correspondence addressed to the plaintiff and the corporation dated 4 June 2008. The Costs Assessor did not receive ‘submissions’ from the plaintiff dated 11 April and 11 June 2008, which I have read, (the latter identical to the former, but allegedly sent with a fresh covering letter) which he claims he sent on or about those dates. The plaintiff did not forward copies of those submissions to the defendants, as he was required to do. Neither did the Costs Assessor receive the ‘objection’ of the plaintiff dated 21 February 2008.

9 On 28 July 2008 a ‘Statement of Reasons’ was issued by Mr McIntyre. He determined in the ‘Certificate’ issued with that ‘Statement’ that the amount of costs and disbursements for providing legal services determined to be fair and reasonable was $12,116.46. Taking into account monies already paid to the defendants the amount payable by the plaintiff, but not the corporation, was $9,387.22 (including the fee payable for the application), with interest payable on that amount less the application fee. The ‘Statement of Reasons’ gives explanations as to the basis on which the costs were assessed, explanation as to how the submissions, or information, received were dealt with and other reasons ‘to clarify’, or justify, the determination.

Basis of the application for extension of time

10 The plaintiff is required under the rule to commence proceedings in this Court to review the Costs Assessor’s Determination, set out in his Statement of Reasons, within 28 days of the date of delivery of those reasons. Although nothing turns on this, the parties agreed that it can be assumed to be 31 July 2008 at the latest. Although the Summons in this matter is some months ‘out of time’, it is submitted that the plaintiff should be granted leave for the appeal to proceed because he has acted in good faith in relation to this matter and expeditiously pursued his remedies as he understood his rights. The plaintiff on 30 September 2008, in response to a letter from the defendants enclosing a copy of the Statement of Reasons of the Costs Assessor (dated 25 September 2008), filed a Notice of Motion in the Downing Centre to set aside the judgment obtained by the defendants on 8 August 2008 in the sum of $9,881.61. Thereinafter, between 30 September 2008 and 18 December 2008, the plaintiff prosecuted what he believed, or was advised, were his interests in the Local Court. On that later date Magistrate Madgwick in the Local Court ‘stayed’ enforcement of the judgment, on condition that an appeal to this Court be instituted by 6 January 2009. The summons in this matter was filed within the time fixed by her Honour.

11 The plaintiff argues that he has taken all reasonable steps in the circumstances to pursue his rights of appeal and there is no prejudice to the defendants by a grant of leave as required under r 50.

The bases of the ’appeal’ of the plaintiff

12 By reference to the Statement of Reasons, it is argued that there is ‘a matter of law’ arising from the reasoning, or determination, of the Costs Assessor, such as to invoke s 384 Legal Profession Act. The claimed “matter of law” is that the plaintiff has been denied “procedural fairness” by the failure of the Costs Assessor to take into account relevant submissions that were claimed to have been forwarded to him by the plaintiff, or which ought to have been provided to the Costs Assessor. Alternatively, it is submitted the merits of the matter are such, as evidenced in the material contained within the affidavits filed in this matter by both the plaintiffs and defendants, that this Court ought grant leave pursuant to s 385 Legal Profession Act to rehear the matter, or remit the matter to a panel of Costs Assessors (s 389 LPA).

Proceedings before this Court

13 The plaintiff has filed a thirty eight paragraph affidavit with over one hundred pages of annexures, the defendants have filed an affidavit from Tony Schwartz, for the partnership, with one hundred and twenty nine pages of annexures. Both the plaintiff and Mr Schwartz have been cross-examined upon their affidavits. Some objections have been made to some of the detail of the respective affidavits, ultimately as the case has been argued, nothing ultimately turns upon matters that are the subject of objection. The proceedings were conducted by the parties over two successive afternoon sessions of the Court on 7 and 8 May 2008. The plaintiff supplemented oral submissions with 30 paragraphs of written submissions dated 13 May 2009. The defendants supplemented their oral submissions with 26 pages, or 113 paragraphs, of written submissions. If as much effort had been put into dealing with the Costs Assessor I doubt the matter would have proceeded to the point now reached, with each of the parties incurring costs in total, if not individually, most likely equal to, or exceeding, the amount subject of the Certificate issued by Mr McIntyre.

14 Some findings of fact I have already made. I do not propose to summarise the evidence of the respective parties, except in so far as I need treat the relevant evidence from the parties for the purposes of determining the issues raised by them. However, I note that the plaintiff in giving his evidence was a most unsatisfactory witness, prevaricating and obfuscating in many of his answers to questions asked of him by the defendants’ representative. Mr Schwartz was somewhat unsure of himself in relation to some aspects of the matter, particularly explaining why costs assessments were sought in respect of both the plaintiff and the corporation. I have taken into account this aspect, as well as all submissions made by the parties. Generally speaking however, Mr Schwartz was a much more impressive witness than Mr Lange. I do not accept that his credibility is adversely affected by issues raised by or on behalf of the plaintiff on critical issues concerning his dealings with the plaintiff, or his reasons for believing that Mr Lange was personally liable for costs incurred.

Relevant legislation

15 The Legal Profession Act 2004 makes provision for the requirement that a costs agreement be entered into between a client and a ‘law practice’ (here the defendants) retained by the client. The requirements relating to cost disclosure, assessment and related matters, including enforcement, are set out in Part 3.2 LPA. Legal costs are only recoverable in accordance with this Part of the Act. There must be costs disclosure by the ‘law practice’ and a costs agreement entered into by the client with the practice in accordance with Divisions 3 and 5 of the Part.

16 Section 352 of the Act provides that a law practice that has ‘given a bill’ of costs may apply to the Manager, Costs Assessment, for an assessment of the whole or any part of the legal costs to which the bill submitted relates. This occurred in this matter on or about 31 January 2008. The Manager, Costs Assessment is to refer each application for costs to a Costs Assessor to be dealt with in accordance with Div 11 of the relevant Part of the Act. This was done, the task falling to Mr John McIntyre, a solicitor.

17 The Costs Assessor, after receiving relevant material, particulars and the like from interested parties, must issue a Certificate as to determination (s 368) and must provide a ‘statement of the reasons’ for the determination and any such supplementary information as may be required by the Regulations. This was done by Certificate issued and Statement of Reasons delivered by the Assessor on 28 July 2008. No issue is taken as to the ‘form’ of the Certificate issued and the ‘Statement of Reasons’.

18 In considering an application a Costs Assessor must give both the applicant for assessment (the law practice) or any client or other person concerned “a reasonable opportunity to make written submissions to the Costs Assessor in relation to the application and give due consideration to any submissions so made”. The Costs Assessor is not bound by rules of evidence and may inform him or herself on any matter in such manner as he or she thinks fit” (s 359). A dissatisfied party may apply, within 30 days after the certificate as to determination has been forwarded to it, to the Manager, Costs Assessment for a review of the determination and that review may be referred by the Manager, Costs Assessment to a panel constituted by two Costs Assessors (ss 373, 374, 375 LPA).

19 A party to an application for a costs assessment who was dissatisfied with the decision of the Costs Assessor “as to a matter of law” arising in the proceedings may, in accordance with the rules of the District Court (Uniform Civil Procedure Rules), appeal to the Court against the decision (s 384(1)). Unless the Court affirms the Costs Assessor’s decision the District Court may:

(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or

(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application (s 384(2)).

On a redetermination pursuant to the section the Court may receive “fresh evidence” in addition to or in substitution of evidence received by the costs assessor (s 384(3) of the Act).

20 Alternatively, a party to an application for a costs assessment relating to a memorandum of costs may, in accordance with the Rules of the District Court, seek the leave of the Court to appeal to the Court against the determination of the application made by the Costs Assessor (s 385(1)). Leave may be granted to hear and determine the appeal, the appeal being by way of “new hearing” and fresh evidence, or evidence in addition to, or in substitution of, the evidence received previously, may be given (s 385(3)(4)). After deciding the questions the subject of the appeal the District Court may, unless it affirms the Costs Assessor’s decision, make such determination in relation to the application as, in its opinion, should have been made by the Costs Assessor (s 385(5)). If an appeal is made under s 385 against a determination of a Costs Assessor, and the determination which the appeal relates has not been reviewed by a panel, the Court may refer the appeal to the Manager, Costs Assessment for a review by a panel under the Subdivision (s 389 LPA).

Consideration

The extension of time issue

21 Most principles relevant to the grant of an extension of time to commence proceedings pursuant to r50 Uniform Civil Procedure Rules are set out in Einstein J’s judgment Currabubula and Paola Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232, particularly at [87]. I have had regard to the principles articulated therein. I need not dilate upon them given my decision to grant leave but dismiss the summons.

22 The defendants assert that the delay in filing the appeal is significant and that it is unexplained. It is further submitted that the proceedings in the Local Court were without foundation and that the plaintiff had the opportunity of getting proper advice concerning the need to appeal pursuant to ss 384 or 385 Legal Profession Act 2004 within the time permitted to lodge an appeal. Reference is made to the explanations given by the plaintiff in his evidence before this Court as unsatisfactory and that the defendants had not contributed in any way to delay on the part of the plaintiff. There has been loss claimed by the defendants in dealing with the Local Court proceedings as well as delay in the defendants gaining access to the “fruit” of the assessment.

23 The plaintiff, whilst acknowledging the requirement of leave and the relevant delay, points to the fact that the plaintiff had sought to set aside the judgment in the Local Court, to forestall a threat of bankruptcy proceedings by the defendants and also to enable the issues claimed by the plaintiff relevant to whether he is indebted to be ventilated given that the Costs Assessor did not have regard to his submissions. Reliance is made by the plaintiff to the requirement of this Court to have regard to the merits of the matter on a substantive basis, explanation for delay and the absence of any strong case of prejudice to the defendants occasioned by the delay, in favouring a grant of leave.

24 I note that no cogent or acceptable explanation has been given for the failure of the plaintiff to lodge any relevant appeal or review of the Assessor’s determination available pursuant to the Legal Profession Act, within the time allowed. It is clear from the plaintiff’s evidence and the objective facts that he took a ‘wait and see’ attitude until such time as he was threatened with the issue of a bankruptcy notice. He had ample opportunity in my view to get legal advice. His brother is a barrister, who appeared for him in this application, led on the second day of the proceedings by Charles Waterstreet of Counsel. Complaint is made that the Certificate and/or Statement of Reasons of the Costs Assessor did not provide information about his options. I do not accept this excuse. It is but one concrete example of the unsatisfactory and/or unconvincing evidence of the plaintiff in these proceedings. The Certificate states that it is taken to be a judgment of a Court with jurisdiction to order the payment of the amount of money certified, if filed in that Court with no further action (s 368(5) LPA). It is clear as to its effect. The plaintiff’s options under the LPA are clearly stated in that Act. The plaintiff was well aware of the terms of the LPA, he referred to it in some detail in his letters purportedly sent on 11 April and 11 June 2008.

25 Notwithstanding this, and even though it may be that the proceedings in the Local Court by the plaintiff were misguided or without merit, the facts of the matter are that the proceedings are before this Court as a direct consequence of the Local Court concluding that it would not determine the merits of the plaintiff’s action until he pursued his appeal rights under the Legal Profession Act, which he did within the time prescribed by that Court. In the circumstances of the matter, apart from any extra time it took for this Court to hear and determine all the issues raised, which were heard together as they were so intermingled, no inconvenience to the defendants arises from a grant of leave under r 50 UCPR to the plaintiff. Ultimately, no injustice is done to the defendants to determine the issues litigated on their merits. Given the view I have taken of the merits of the substantive appeal issues, to deny leave, as sought by the defendants, would strike down the plaintiff on a needless ‘technicality’, although the absence of merit I concede could militate against a grant of leave pursuant to r 50. Here it does not. I thus grant leave for an extension of time to file the summons so that the ‘appeal’ issues can be determined as requested by the plaintiff. The determination of the leave issue on extension of time, adverse to the defendants, has not substantially added to the time taken to hear the matter.

Appeal pursuant to s 384 LPA

26 The defendants’ position is that a matter of law does not include “procedural unfairness”. Reference is made to some judgments of the then Master (and later Associate Justice) Malpass in decisions such as Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196 at [24], Forman v Rattray [2006] NSWSC 260 at [19-20] and Adamson v Miller [2005] NSWSC 971, at [10], [18]. I have had regard to those judgments, but both the plaintiff and the defendants referred also to the decision of Rothman J in Levy v Bergseng [2008] NSWSC 294, particularly at [49], [50], [73] – [76].

27 Associate Justice Malpass saw “matter of law” as being more restrictive than the concept of “question of law”. Justice Rothman analysed the matter to the contrary (at [49]). Insofar as this Court is bound by decisions of superior Courts, I would have thought that I was bound by Justice Rothman’s judgment rather than those of Associate Justice Malpass, with no disrespect to him. In any event I find Rothman J’s reasoning more persuasive. Justice Rothman’s approach on this matter both as to the interpretation of ‘a matter of law’ and the issue of ‘procedural fairness’ giving rise to a matter of law is supported by a range of authority, to which he refers, such as giving rise to prerogative relief when ‘procedural fairness’ is not given, or identified as ‘error of law’ for other purposes. It is also supported expressly or implicitly in other authority referred to by the plaintiff (CSR v Eddy (2008) 70 NSWLR 725 (at [38] – [39]), Wentworth v Rogers (2006) 66 NSWLR 474, per Basten JA (at [194] – [198])). I do not regard the decision of Hutchison v RTA [2000] NSWCA 332, to be to the contrary, but rather authority for the proposition that procedural unfairness may not involve ‘a question of law’ having regard to the circumstances of the unfairness.

28 The ‘onus’ is on the plaintiff to establish certain matters justifying intervention pursuant to s 384. Irrespective of the onus I have come to certain firm conclusions, on the evidence, as to matters of fundamental importance to consideration of this matter. I am satisfied that the Costs Assessor did not receive the submissions claimed to have been sent by the plaintiff on or about 11 April and 11 June 2008. There was good reason for that. I have doubts that they were in fact sent. Principally, I have difficulty accepting the plaintiff’s word on the matter given his most unsatisfactory presentation as a witness and his failure to provide copies of the documents he claimed he sent to Mr McIntyre to the defendants, when he knew he was required to do so. It is unfortunate that the Assessor would not receive submissions or objections by email. He makes claims otherwise that are demonstrably untrue or unreliable, such as his lack of appreciation of the consequences of the issue of the Certificate on 28 July 2008. His email(s) of 4 June do not establish that the “submission” of 11 April was sent, notwithstanding the claim to that effect. They do establish an arrogant, petulant and disdainful attitude to the process in which the Costs Assessor was engaged. There was no procedural unfairness in not having regard to the identical ‘submissions’ of 11 April and 11 June because the Costs Assessor was for good reason unaware of their existence. On the evidence available to this Court I do not believe those submissions would have changed the determination of the Assessor in any event. His denial in those ‘submissions’ of a personal retainer was (and is) against the weight of evidence then available to the Assessor. The claim the plaintiff made on 11 April and on 11 June of failure to ‘deliver’ a costs disclosure document is untrue and/or mistaken. There can be no procedural unfairness if there was nothing for the Assessor to consider. The material would not have changed the Assessor’s determination or show it to be unreasonable.

29 In relation to the Costs Assessor’s determination in his Statement of Reasons, he only referred to the ‘objection’ taken on behalf of the corporation. He clearly did not receive the objection of the plaintiff, in identical terms, sent to the Costs Assessment Section of the Supreme Court. To summarize the Statement of Reasons, the Costs Assessor made findings that the plaintiff had instructed the defendants on 8 September 2006 (not the corporation), the defendants had forwarded the plaintiff a “costs agreement” on the same date, that document described the work to be done, and it was “accepted by the conduct of the client continuing to instruct the Law Practice after receipt of the costs agreement and the payment of the sum of $2,000 being the retainer requested by the Law Practice”. He noted that the costs agreement made no reference to the corporation other than in the address and the Costs Assessor was not satisfied that the corporation was a client of the ‘Law Practice’. He accepted that the solicitor of the Law Practice understood that he was dealing with Mr Lange personally. He noted that the retainer was part paid by the personal cheque of Mr Lange. He was satisfied that the ‘Law Practice’ had complied with the requirements of the Legal Profession Act in relation to disclosure and that there was a costs agreement entered into by the client with the Law Practice. He noted that the plaintiff did not submit that the costs agreement was unfair, there was no application to have the agreement or part of it set aside, none of the costs claimed by the Law Practice were costs associated with the preparation of the bill or the making of disclosure or the making of a costs agreement with the client. Mr McIntyre concluded that the costs claimed were in accordance with the costs agreement and that the work was carried out in a reasonable manner for reasonable amounts. The Assessor noted that the “only submission” he received was from a Director of the corporation. He referred to that submission and said that as the corporation was not a client he did not have to make any determination in relation to the submission however, “had it been necessary for me to do so, I do not accept that the solicitor was not instructed to do the work nor do I accept that the charges were unreasonably incurred” (emphasis added).

30 I am prepared to accept the ‘procedural unfairness’ is a ‘matter of law’ and may arise even if there is no fault on the part of fact finder, rather inadvertence. Here, the Assessor was not provided with the relevant documents it seems. Be that as it may, bearing in mind that the letter of objection from the plaintiff was identical to that submitted by a Director of the corporation, raising as it did an objection to part of the costs claimed but not the character of the retainer, and given the findings of the Costs Assessor that the costs, in accordance with the costs agreement, were reasonably incurred, there was no procedural unfairness occasioned to the plaintiff by a failure to advert to his submission of 21 February 2008. It is quite clear that it would not have changed any ultimate determination made by the Assessor. He had the identical contention from the corporation with which he was clearly unimpressed. The objection of the plaintiff lacked any detail as to which costs claimed were not incurred or were unreasonable, nor specifically challenged the existence of the retainer. It was open to the Costs Assessor to determine the matter favourably to the defendants as to work performed and the quantum claimed. The Costs Assessor could not on the material available to him come to any other conclusion than the one he ultimately reached, nor would he have reached another decision with the plaintiff’s February submission or objection.

31 If ‘procedural unfairness’ has been demonstrated by not expressly adverting to the plaintiff’s objection the appeal should not be granted in any event because the decision of the Assessor was inevitable, notwithstanding the terms of the objection, (CSR v Eddy (at [38]-[40]) per Basten JA). Assuming a matter of law arises it has not been demonstrated to vitiate, or call into question, the ultimate determination of the Assessor or to suggest that the Assessor’s determination would have been any different to that ultimately made even if he had considered directly the plaintiff’s objection of 21 February 2008. In Levy v Bergseng, Rothman J pointed out unless the material not taken into account had, or would have no effect, if there was error, that should be remedied under the legislation [76]. Here the material not taken into account would have had no effect. No ‘practical injustice’ is demonstrated or shown (CSR v Eddy ibid). Further, a discretion may be exercised against making an order by this Court would otherwise come to the same view on issues of law and fact as the fact finder appealed. Both objectively, and by regard to the finding of the Costs Assessor, the defendants have satisfied the Court that the submission of 21 February 2008 would have had no effect. If the plaintiff bears the ‘onus’ to establish the objection would have had an effect, clearly then the plaintiff has failed to discharge it.

Appeal pursuant to s 385 LPA

32 Leave pursuant to this provision may be granted where there has been demonstrated error of law, or error of fact, on the part of the Costs Assessor, or if it has formed an opinion (other than that formed by the Assessor) that the Assessor ‘should’ have made (s 385(5) LPA). One would have thought the terms of s 385 permitted appellate review in the District Court notwithstanding the failure to avail the review process provided for the by Act by a review ‘panel’. In the context of the defendants submissions, Master Malpass’ contention in Freeman v McNally & Anor [2003] NSWSC 780 at [8] – [10] that, “(T)his Court may have to give serious consideration to dismissing appeals of this nature on the ground that the challenge should have been brought before a panel”, reflects no statutory mandate or imperative, but rather consideration of discretionary matters that arise for determining whether or not to grant ‘leave’. I do not believe that leave should not be granted because the plaintiff did not avail himself of the review procedure to which the Master was referring. The application for leave has more fundamental difficulties for the plaintiff than technical issues, such as the failure by the plaintiff to seek a review from a panel by the Manager of Costs Assessment for the Supreme Court before pursuing applications.

33 There is authority indicating that, in general, leave should only be granted under s 385 where the Assessor has made some error of principle (Wende v Horwath (NSW) Pty Ltd [2008] NSWSC 124). I do not believe I need determine the application for leave on this restricted basis. Assuming, for the purposes of this decision, that I should have regard to all the material presented to me by the parties, be it fresh evidence, additional evidence or ‘evidence’ available the Costs Assessor (as contended by the plaintiff but opposed by the defendants), conclude that leave ought not be granted, because the essential evidence relevant to fundamental questions such as whether:

(i) the plaintiff retained the defendants,

(ii) there was a valid costs agreement,

(iii) the costs assessed by the Costs Assessor were reasonable,

and related matters, are issues that ultimately I am compelled to determine in favour of the contentions of the defendants.

34 There is not revealed in the findings of the Assessor any error of fact, or law for that matter, that vitiates his ultimate conclusion that the plaintiff was personally liable for the costs and that the costs were reasonable. The fundamental facts are that the costs agreement and disclosure were addressed to the plaintiff, with his address given as that of the corporation. It is reasonable to conclude given the terms of his response on 13 September 2006 that the plaintiff personally accepted the retainer and the conditions of the retainer as disclosed by the defendants. Ultimately such qualifications or ‘conditions’ of acceptance did not affect the integrity of the final costs assessment, given the costs actually claimed by the defendants. The primary evidence in this matter, the costs agreement and disclosure in their terms are strong evidence that the plaintiff was in fact regarded as the client by the defendants, perhaps as representative of the corporation, and that the plaintiff thereafter acknowledged that he was the client given the terms of his acceptance of the agreement with minor adjustments on 13 September 2006. Furthermore, in the dealings with the client which involve the incurring of relevant costs, the plaintiff was providing instructions directly to the defendants, confirming in the minds of the defendants that he was relevantly the client. Notwithstanding the evidence of the plaintiff to the contrary, the contemporaneous documentation and subsequent conduct of the plaintiff up until the time that a ‘bill’ of costs was rendered in the form of a ‘Tax Invoice’ is entirely consistent with a reasonable basis for the defendants to believe that the plaintiff was personally liable for the fees.

35 There is evidence that the defendants at various times sought to recover from both the plaintiff and the corporation. They may have been of the belief that they were jointly and severally liable, but this belief does not detract from the reasonableness of the conclusion reached by the Costs Assessor that the plaintiff personally owed the defendants the costs claimed. Particularly given the terms of the Costs Agreement. That finding is strengthened by the fresh or additional evidence, of the character of the dealings of the plaintiff with the defendants.

36 As earlier indicated, the plaintiff was a most unimpressive witness, his explanations and his interpretation of the character of the retainer I do not accept where they are in conflict with the documentary material and the additional material presented by the defendants. This clearly led them to believe they were dealing personally with the plaintiff, albeit that he was an executive of a corporation. Given the character of the work performed, the extent of contact with the plaintiff and the surrounding circumstances of the retainer and subsequent work performed in accordance with the costs agreement/disclosure it was reasonable for the defendants to believe that the plaintiff was personally liable and for the Assessor and this Court to conclude likewise. This conclusion is not weakened by the payment of costs incurred for legal services delivered in part by Pschorr (Sydney) Pty Ltd, nor by the manner of addressing the ‘bill of costs’. The evidence here reveals promises to pay from sources other than the plaintiff after the ‘bill of costs’ was forwarded. Some other person indemnifying the plaintiff, or promising to do so, does not negate his personal liability under the costs agreement to pay the costs assessed by Mr McIntyre.

37 There is no utility in granting leave pursuant to s 385 LPA or referring the matter to the Manager, Costs Assessment for referral to a panel of assessors (s 389), even taking into account the further material now available from the plaintiff, but not available to the Assessor. The claimed bases of the appeal are without merit on that evidence.

ORDERS

1. Application for extension of time for filing Summons granted

2. Summons filed 5 January 2009 dismissed

3. The plaintiff pay the defendants’ costs.