Stephen Paul Firth v John Hutchinson

[2005] NSWSC 479

CITATION:	Stephen Paul Firth v John Hutchinson [2005] NSWSC 479
HEARING DATE(S):	18 May 2005
JUDGMENT DATE :	26 May 2005
JURISDICTION:	Common Law Division
JUDGMENT OF:	Master Malpass at 1
DECISION:	The appeal is allowed; the decision made by Mr Hattersley, to the extent that it allows a re-agitation of what was determined by Mr Browne, is set aside; the decision of this Court is remitted to the costs assessor for determination of the application; the defendant is to pay the costs of the summons.

CATCHWORDS:	Determination made by costs assessor is binding on all parties to the application - possible need for legislative amendment.
LEGISLATION CITED:	Legal Profession Act 1987, ss208L, 208K
PARTIES:	Stephen Paul Firth (Plaintiff) John Hutchinson (Defendant)
FILE NUMBER(S):	SC 10840/05
COUNSEL:	Mr R Goodridge No appearance
SOLICITORS:	Firths (Plaintiffs) N/A (Defendants)

LOWER COURT JURISDICTION:	Costs Assessor
LOWER COURT FILE NUMBER(S):	2004/92051
LOWER COURT JUDICIAL OFFICER :	L Hattersley

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

26 May 2005

10840 of 2005 Stephen Paul Firth v John Hutchinson

JUDGMENT

1 Master: The plaintiff is a solicitor. He was retained to act for the defendant in respect of a personal injury claim in the District Court. The parties entered into a costs agreement.

2 A dispute arose between the parties and the retainer was terminated. The plaintiff made a claim for costs and disbursements. It was disputed by the defendant.

3 The plaintiff commenced proceedings in the Local Court to recover those costs and disbursements. The proceedings were defended. The Local Court successfully encouraged the parties to take their dispute for resolution by way of the costs assessment process.

4 The application was referred to a costs assessor (Mr Browne). The issue raised before him was whether or not the costs agreement was unjust. He concluded that the costs agreement was not unjust. He then determined the application and issued a certificate on 1 July 2004.

5 The parties returned to the Local Court. Again, they were successfully encouraged to have the plaintiff’s claim assessed by a costs assessor.

6 This application was referred to another costs assessor (Mr Hattersley). The matter of the unjustness of the costs agreement came to be re-agitated again before him.

7 The costs assessor reached the following decision:-

For the purposes of the present application I have decided that the determination of Mr Darryl I Brown dated 30 June 2004 issued in application No. 90490 of 2000 between the same parties as are parties to this application No. 2004/92051 now before me for determination does not estop or otherwise inhibit the costs respondent John Hutchinson from putting in issue should he so wish to do so any matters concerning the unjustness or enforceability of any of the terms of the costs agreement relied on by you in the course of this assessment application.

8 On 9 March 2005, the plaintiff filed a summons in this Court. It seeks to propound an appeal pursuant to s208L of the Legal Profession Act 1987 (the Act) against the decision of Mr Hattersley.

9 I assume that some consensus was reached between the parties and Mr Hattersley to the effect that no further steps were to be taken in the costs assessment process pending the determination of the appeal.

10 The parties were given a special fixture for the hearing of the appeal on the basis that it would be a contested hearing. The allocated hearing date was 18 May 2005.

11 When the matter came on for hearing, the defendant did not appear. Counsel for the plaintiff sought to file in Court a notice of ceasing to act prepared by the solicitor who had been acting for the defendant. The Court was also informed that the solicitor for the plaintiff had been notified that the defendant intended to file a submitting appearance.

12 The appeal then proceeded ex parte. The Court had before it an affidavit sworn by Mary Louise Whelan (a solicitor in the employ of the plaintiff) filed on 9 March 2005.

13 Section 208L of the Act enables the bringing of an appeal by a party who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application. The appellate avenue is a narrow one. Despite that narrowness, it seems to me that the decision which is the subject of the appeal in this case, comfortably falls within the statutory ambit.

14 It may be thought that the decision of Mr Hattersley could be seen to throw up interesting and complex questions. Questions as to the application of principles such as those of estoppel to the costs assessment process could be expected to be relatively unexplored.

15 However, for present purposes, it does not seem to me that the Court needs to pursue any such questions. I consider that the relief sought by the plaintiff in this case has been provided for in the Act.

16 Division 6 of the Act deals with assessment of costs. One of the provisions contained in that Division is s208K. It is in the following terms:-

Determination to be final
A costs assessor’s determination of an application is binding on all parties to the application and no appeal or other review lies in respect of the determination, except as provided by this Division.

17 It could be expected that it had been intended by the legislature that the costs assessment process should produce finality (whether by way of decision or determination). It seems to me that such intention was manifested by the provisions of s208K. It accords with public policy. It is in the public interest that the resolution of a dispute should produce finality.

18 I bear in mind that s208K is directed only to a “determination” and it may be that legislative amendment is required.

19 Both the terms “determination” and “decision” appear in the provisions of the Division. Whilst the terms may not be mutually exclusive, it appears to have been intended that they have a different meaning.

20 In this case, that question does not require further exploration. Mr Browne made a determination.

21 I am satisfied that Mr Hattersley erred in the making of his decision. The determination made by Mr Browne is binding on both the plaintiff and the defendant. For that reason, the question of the unjustness of the costs agreement cannot now be agitated once again by the defendant in the application before Mr Hattersley.

22 Initially, an application was made to have the application remitted to Mr Browne. Ultimately, it was not pressed. It seems to me that not only would it have been inappropriate to do so, it was outside the power of the Court. Section 208L requires the Court to remit its decision to “the costs assessor” (which in this case is Mr Hattersley).

23 The appeal is allowed. The decision made by Mr Hattersley, to the extent that it allows a re-agitation of what was determined by Mr Browne, is set aside. The decision of this Court is remitted to the costs assessor for determination of the application. The defendant is to pay the costs of the summons.

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