Sweeney and Vandeleur Pty Limited v Angyal

[2006] NSWSC 246

CITATION:	Sweeney & Vandeleur Pty Limited v Angyal & Ors [2006] NSWSC 246
HEARING DATE(S):	5 April 2006
JUDGMENT DATE :	12 April 2006
JURISDICTION:	Common Law
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	The proceedings are dismissed; the plaintiffs are to pay the costs of the proceedings.
CATCHWORDS:	Role of costs assessor - matters such as validity of the costs order and a breach of a Bar regulation do not fall within his or her task - no matter of law.
LEGISLATION CITED:	Legal Profession Act 2004, ss384, 385 New South Wales Barristers' Rules, r87
CASES CITED:	Furber v Gray [2002] NSWSC 1144
PARTIES:	Sweeney & Vandeleur Pty Limited (First Plaintiff) Charles Sweeney (Second Plaintiff) Robert Angyal (First Defendant) Robert Kaye (Second Defendant) Paul Fury (Third Defendant) John Scott Wheelhouse (Fourth Defendant) Lewis De Vere Tyndal (Fifth Defendant) Michelle Painter (Sixth Defendant) Sixth Floor, St James Hall Pty Limited (Seventh Defendant)
FILE NUMBER(S):	SC 14868/05
COUNSEL:	Mr M Eirth (Plaintiffs) Mr M L Brabazon (Defendants)
SOLICITORS:	Noel F Bracks & Co (Plaintiffs) Macquarie Legal Practice (Defendants)
LOWER COURT JURISDICTION:	Costs Assessor
LOWER COURT FILE NUMBER(S):	91177 of 2005
LOWER COURT JUDICIAL OFFICER :	Mr R G Webley

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

12 April 2006

14868 of 2005 Sweeney & Vandeleur Pty Limited & Anor v Robert Angyal & Ors

JUDGMENT

1 His Honour: The plaintiffs are the service company of a barrister (Charles Sweeney QC) and the barrister himself. The defendants are a group of barristers. Dispute arose from arrangements between them for the lease and sub-lease of chambers.

2 The plaintiffs brought proceedings in the Industrial Relations Commission of New South Wales (the Commission). The defendants brought proceedings by way of prohibition in the Court of Appeal. The defendants were successful in the Court of Appeal proceedings. An order for costs was made against the plaintiffs.

3 The costs came to be assessed (on the application of the defendants). The application was referred to a costs assessor (Mr Webley). He received submissions and documentation from the parties. His certificate as to determination was issued on 23 September 2005. It was accompanied by a statement of reasons. He allowed costs in the sum of $29,671.74.

4 The plaintiffs have brought proceedings in this court to challenge the determination. The relief now sought is certain of that claimed in a further amended summons filed on 17 January 2006.

5 This process claims relief pursuant to either of ss384 or 385 of the Legal Profession Act 2004 (the Act). Section 384 provides a narrow avenue of relief, where a matter of law arises in the proceedings to determine an application. Section 385 empowers the court to grant leave to appeal. This is a discretionary power which is exercised having regard to the dictates of justice.

6 The hearing took place on 5 April 2006. The plaintiffs were represented by Mr Eirth of counsel. The defendants were represented by Mr Brabazon of counsel.

7 The process recites ten grounds of appeal. They are as follows:-

1. Junior Counsel was not entitled by the Bar Rules to accept the brief.
2. By operation of statute, the Court of Appeal was precluded from making the orders which it made and the Assessor was therefore precluded from making any Assessment of Costs based upon the orders of the Court of Appeal.
3. A total bill of $36.524.55 for a hearing for less than one day in an uncontested matter was excessive.
4. The point in the Court of Appeal was not different to the point in the Industrial Relations Commission.
5. The Assessor rejected or failed to give effect to the submissions of fact and law made on behalf of the Plaintiffs.
6. The Assessor took into account Costs Agreements not provided to the Plaintiff’s [sic] or in respect of which the Plaintiffs were not afforded an opportunity to make submissions.
7. Fees for two Counsel should not have been allowed.
8. Costs and Disbursements of 29,306.50, allowed by the Assessor are excessive.
9. The Submissions made in the Court of Appeal duplicated those made previously in the Industrial Relations Commission.
10. The Plaintiffs should not have been ordered to pay the Defendants costs in the Court of Appeal.

8 Counsel for the plaintiffs relied on written submissions. He informed the court that these had been prepared by his instructing solicitors. Counsel for the defendants also relied on written material and responded orally.

9 During the course of the submissions, counsel for the plaintiffs informed the court that his clients were seeking relief pursuant to s384 of the Act only. There may have been some question as to whether or not the predecessor of the current costs regime had application, but this was put to one side by reason of the similarity of the respective provisions.

10 The written submissions relied on by the plaintiffs were as follows:-

1. In the submissions made to the cost assessor, there was a number of significant issues raised by the costs respondent and which were the subject of submissions from the costs applicants and submissions in reply from the costs respondent.
2. In none of them did the costs assessor give reasons. Instead he identified himself as satisfied on each count of the correctness of the costs applicants position.
3. A cost assessor has a duty to give reasons. The reasons mush [sic] show not only what he decided but why he decided. The reasons of the cost assessor in this case fail that test repeatedly.
4. The major issues and the parties positions are identified in the submissions to the costs assessor.
5. On the breach of the Bar Rules point, the submissions of the costs applicants admit the breach. It was a clear one. The proposition is that no costs are properly incurred in respect of representation which is prohibited by the Bar Rules. It is submitted that it extends to the whole team not just the person in breach because an adverse party is entitled to expect that he will not be faced with a legal team which is tainted. It is impossible to say later what decisions were made in tainted circumstances and what were not. The only position consistent with policy is to say that no costs incurred by such a team are reasonably incurred.
6. It is not correct to say that the breach is merely a matter for the Bar’s own disciplines. The rule reflects the public policy requirement of the courts that only disinterested advocates can be relied upon by the courts. The Bar Rule reflects the court’s requirements in this regard, not the other way around.
7. It was a particularly unfortunate breach here where the subject matter was life in chambers. Just as Mr Sweeney could not appear as counsel, neither could anyone else. Junior counsel also had a conflict of interest.
8. The argument about the Court of Appeal being precluded by s1179 of the Industrial Relations Act is more difficult at the level of a costs assessor. Nevertheless, he quite failed to address it. The point is that once the statute is raised, every judicial officer or person acting in a quasi judicial capacity is obliged to apply the law as it is known at the date of decision. Here the Court of Appeal completely overlooked the point, because it was not put to the judges.
9. The submission that the same point had been argued in the Industrial Relations Commission by the same senior counsel was not given a reasoned analysis by the assessor.
10. It is submitted that the reality was that the same point was put to the Court of Appeal and it was a foregone conclusion that they would accept it, provided that their attention was not drawn to the problem inherent in the fact that Haylen J had embarked upon the matter and therefore s179 operated to preclude the Court of Appeal from playing any supervisory role. As we have already submitted, this point was not drawn to the Court’s attention.
11. It is an affront to a sense of reasonable accessibility to the justice system that a litigant should have to pay more than the price of a new car for a hearing that lasts less than an hour in respect of a point that had been previously determined by the same court, as the judgment of the Court of Appeal holds. In broad terms, It is submitted that a reasonable rule of thumb would be to double the time spent in court for a total of court time and preparation. Any more might be a manifestation of the inefficiencies of time charging where the less competent are better rewarded.
12. The detailed submissions made to the costs assessor are relied upon here without being repeated in this outline.

11 It can be seen from the content of the submissions that certain of the grounds of appeal recited in the further amended summons have now been abandoned.

12 It is unnecessary to deal with the grounds (or the submissions made in respect of certain of them) individually. The matters of complaint mainly fall into groups. Certain of the grounds are repetitious.

13 Complaint is made concerning the disclosure of reasoning process by the costs assessor. In my view, that complaint has not been made out.

14 I consider that the costs assessor has provided a statement of reasons that complies with the Act and the Legal Profession Regulations 2005.

15 Largely, the submissions failed to identify the “significant issues” which were dealt with without disclosure of reasoning process. This complaint falls outside the scope of the grounds of appeal (which do not raise any question of inadequacy of reasoning process). In these circumstances, I do not consider that the plaintiffs are entitled to make the submissions.

16 Dealing with this area of complaint may be concluded by the observation that I am not satisfied that there has been any inadequate disclosure of reasoning process.

17 Complaint is also made that junior counsel briefed by the defendants was not entitled under the New South Wales Barristers’ Rules to accept the brief. The plaintiffs rely on Rule 87. In Furber v Gray [2002] NSWSC 1144, I expressed a preliminary view that this Rule lacked relevance to the question of an entitlement to the recovery of fees. I see no reason to change that view.

18 It seems to me, that its ambit lies in the area of disciplinary proceedings. The question of breach of such a provision does not concern a costs assessor when performing his or her task of assessing costs under the Act. The costs assessor did not err in dismissing the plaintiffs’ submissions as being irrelevant to his task.

19 It is argued that the Court of Appeal lacked jurisdiction to make the costs order. Again, that is not a question that concerns a costs assessor in the assessment process. His task is to assess the costs that are payable pursuant to the order made by the court in accordance with the statutory regime. Any jurisdictional challenge has to be made by way of appeal in a higher court. Again, the costs assessor did not err in dismissing these submissions as irrelevant considerations.

20 What has been described as the “duplication argument” is also ill-founded. It is factually flawed. Whilst there may have been some overlapping between the issues before the Commission and the Court of Appeal, significantly, the issues were different. The costs assessor did not err in dealing with this question.

21 Such other grounds of appeal as are now being pursued (including those that go to the quantification of the costs allowed by the costs assessor) are also devoid of substance. No error on the part of the costs assessor has been demonstrated.

22 Hitherto, I have addressed the grounds of appeal on a merits basis. It needs to be further observed that none of them concern a matter of law arising in the proceedings to determine the application. If it had been now relevant to visit the question of whether or not leave to appeal should have been granted, I would have been of the view that no such entitlement had been demonstrated.

23 As the plaintiffs have failed to discharge the onus of demonstrating a basis for the disturbing of any decision of the costs assessor or the determination, the proceedings must fail.

24 Before disposing of the proceedings, I should mention that the further amended summons claims declaratory relief in relation to a number of matters. These proceedings are brought pursuant to ss384 and 385 of the Act. Those sections prescribe the relief that may be granted by this court pursuant to them. Such relief does not include relief of a declaratory nature.

25 The proceedings are dismissed. The plaintiffs are to pay the costs of the proceedings.

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