Valassis v Bernard
[2001] NSWSC 316
•12 March 2001
CITATION: Valassis v Bernard [2001] NSWSC 316 revised - 30/04/2001 FILE NUMBER(S): SC 12965/00 HEARING DATE(S): 12/03/01 JUDGMENT DATE:
12 March 2001PARTIES :
Dennis Valassis (Plaintiff)
Eric Bernard (Defendant)JUDGMENT OF: Bell J at 1
COUNSEL : Plaintiff - In Person
Mr S.A. Kerr (Defendant)SOLICITORS: Dennis Valassis (Plaintiff)
Gray Perkins Solicitors (Defendant)CATCHWORDS: Leave to appeal - determination of costs assessor see 208M Legal Profession Act 1987 LEGISLATION CITED: Legal Profession Act 1987 CASES CITED: Chapmans Limited v Yandel (1999) NSW CCA 361
Kennedy Miller Television Pty Limited v Lancken (unreported) NSWSC 1 August 1997DECISION: Leave to appeal refused ; Summons dismissed; Plaintiff to pay the defendant's costs
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONBELL J
MONDAY, 12 MARCH 2001
12965/00 - DENNIS VALASSIS v ERIC BERNARD
JUDGMENT
HER HONOUR:
1. This is an application for leave to appeal against the determination of costs assessor PR Brewster made on 20 September 2000 in respect of proceedings in the Common Law Division No. 10079/88 heard on 30 March 1998 and proceedings in the Court of Appeal No. 40204/88. The application is brought pursuant to section 208M of the Legal Profession Act 1987 (“the Act”).2. The matter was argued before me upon the basis that the principles governing the grant of leave to appeal pursuant to s 208M of the Act invite consideration of whether there is an obvious error on the face of the record and substantial injustice to the appellant if the determination by the assessor were allowed to stand. I was referred to the judgment of Sperling J in Kennedy Miller Television Pty Limited v Lancken (unreported) NSWSC 1 August 1997 in which his Honour considered, without deciding, that the test may be more liberal than that applicable to appeals by leave to an appellate court from an interlocutory judgment.
3. Mr Kerr, who appeared on behalf of the defendant, drew my attention to the observations of Fitzgerald J in Chapmans Limited v Yandell (1999) NSW CCA 361 (with which the President and Davies AJA agreed), namely it is important to keep in mind the purpose of a requirement for leave to appeal. It is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought with the demands which that places upon the resources of the court, the burden upon other parties and the delays which may be caused to other litigants.
4. The plaintiff identifies two bases upon which he submits that substantial injustice would be done were the determination of the costs assessor to stand. Firstly, the assessment was based upon a revised bill of costs submitted on behalf of the defendant which is annexure “A” to the affidavit of Margaret Ellen Olsen sworn on 30 January 2001. It is the plaintiff's evidence that he did not receive this revised bill of costs and, accordingly, that he did not submit a notice of objection to it. The plaintiff received earlier bills of costs to which he lodged notices of objection which were before the costs assessor. In his submission the failure to supply him with the revised bill and his consequent inability to lodge a notice of objection to it worked substantial injustice.
5. The second basis on which the plaintiff contended I would grant him leave to appeal was that the assessment made by the costs assessor was too high. As he developed the submission, the plaintiff explained that had the assessor had access to the objections which he would have submitted to the revised bill, he considered that the assessment would have been less by an amount of $3,500 or so. As I understood it, the second ground for the grant of leave was a development or extrapolation of the first.
6. The defendant relied on the affidavit of Ms Olsen sworn on 30 January 2001. Ms Olsen deposes to having forwarded a copy of the revised bill of costs to the plaintiff by letter dated 1 June 2000. By affidavit sworn on 7 February 2001 the plaintiff took issue with that assertion, stating that the bill of costs was not enclosed with Ms Olsen's letter of 1 June 2000. He went on to assert that until receipt of Ms Olsen's affidavit he had not been served with the revised bill of costs. He was cross-examined upon this paragraph of his affidavit and maintained that account.
7. The defendant submitted that even if I were of the view that the plaintiff had not received the revised bill of costs, I would nonetheless decline to grant leave to appeal and dismiss the summons, there being no substantial injustice.
8. In this respect, the plaintiff relies upon a letter of the costs assessor dated 24 August 2000. That document was sent to both Gray and Perkins and the plaintiff. It drew attention to the circumstance that two bills, referred to as “the old bills” had been served on the plaintiff on 24 February 2000. Together those bills totalled the sum of $8,662. Subsequently, a bill described by the assessor as a new bill was placed before the assessor, it totalling $8,955.12, there being thus a difference of approximately $300.00 between the two. The assessor went on to note that the plaintiff had prepared objections specifically relating to the old bills which had been sent to Gray and Perkins in March 2000. The objections had been sent by the plaintiff to the costs assessor under cover of a letter dated 2 August 2000. In that portion of his letter addressed specifically to the attention of the plaintiff, the costs assessor stated:
"There appears to be no great difference between the old and the new bills quantum-wise, and I believe your objections to the items in the old bills can be transposed to relate to the new material and dealt with in that way; (see F. Turner v Pride (1999) NSWSC 850, which is a recent case, the principle of which may have some application to the present situation). In that way I believe I can be conversant with the basis and thrust of your objections to the material in the new bill; also cost/inconvenience/delay et cetera relating to possible preparation of additional objection material on your part may be avoided, including (possibly) a reply thereto.
If you wish me to deal with the matter on that basis, please advise me forthwith; alternatively, please advise me if you wish to amend/supplement your present objection material in any way to cover any distinctions between the old and the new material, or whether you wish to start from scratch and prepare a new set of objections/submissions/other material. You may assume in both cases that I will be taking into account the objection material you have provided to me to date, and relating it to the subject application.
Please understand that if I do not hear from you on or before Friday 1 September 2000 subject to any submissions which I may receive I will proceed to completion of the assessment on the basis of the material then before me, probably without further contact with the parties."
9. By letter dated 1 September 2000 the plaintiff responded to the costs assessor advising that he had not received the new documents with the applicant's application for assessment of party/party costs and that he was, as he put it, "in the dark". He said that he would appreciate receiving the new documents and that he would then be in a position to lodge objections or submissions. Thereafter, without further exchange of correspondence, the assessor proceeded to make his determination as he had foreshadowed in his correspondence of 24 August 2000. On 20 September 2000 he made his determination in the sum of $8,607.84.
10. At pages 4 and following of the affidavit of the plaintiff sworn on 8 November 2000 are annexed copies of the old bills of costs. At pages 34 and 35 of that affidavit the plaintiff's grounds of objection are set out. As I have noted, annexure A to the affidavit of Ms Olsen is a copy of the new bill of costs. I consider there is force to Mr Kerr's submission that the variations as between the old bills and the new bill are of a relatively minor nature and that, as the costs assessor observed, it was a matter of no great difficulty to relate the objections submitted by the plaintiff to the revised bill. I would be inclined to the view that no substantial injustice had been done to the plaintiff were I to accept that he had received the revised bill and had not been afforded an opportunity to lodge objections to it. However, in the view I take of the matter, it is not necessary to give that submission further consideration.
11. I am satisfied that the plaintiff did receive a copy of the revised bill of costs. In this regard I note the following matters. Firstly, by letter dated 1 June 2000 Ms Olsen wrote to the plaintiff stating "we enclose by way of service application for assessment of party/party costs together with a notice to lodge objections". Attached to that letter appears the application for assessment of party/party costs. Paragraph 5 of that document is in these terms:
"The following information relating to this matter is provided as per the bill of costs annexed hereto which forms part of this application."
12. As I have earlier noted, Ms Olsen deposes to the circumstance that she attached the bill of costs to that letter. She was not cross-examined upon her affidavit and no challenge is made to her belief that a copy of the revised bill was attached to her letter of 1 June. However, as I understand the plaintiff's case, he leaves open the possibility that by omission, the revised bill of costs was not included with the covering letter. However, I note that on 14 July 2000 the plaintiff was served with the application for assessment of party/party costs which had been filed in the Registry on 23 June 2000. Attached to that document was the file copy of the application for assessment. Again I note paragraph 5 refers to "the following information relating to this matter is provided as per the bill of costs annexed hereto, which forms part of this application". Mr Kerr invites me to consider that in the ordinary course that the bill of costs would have been annexed to the application. An officer of the Registry might be expected to have noted if the annexure to paragraph 5, a standard form document, was not attached. I accept the force of that submission.
13. Further, I notice that by letter dated 3 July, Gray and Perkins wrote to the plaintiff advising:
"We advise that the bill of costs prepared by Patterson Hardman and served under our letter dated 1 June 2000 is a revised bill and you are required to lodge objections pursuant to clause 26C of the regulations."
14. It is to be noted that the plaintiff did not respond to this letter in terms consistent with a view that he had not received the revised bill of costs.
15. Further, by letter dated 1 September 2000 addressed to the costs assessor Gray and Perkins asserted that the plaintiff had been served with the revised bill on costs of 1 June 2000. A copy of that letter was sent to the plaintiff. Again I note that this did not produce any response from the plaintiff consistent with the assertion made, namely that he had not received the revised bill.
16. I am satisfied that the plaintiff did receive the revised bill of costs and, accordingly, that he had the opportunity to lodge further objections pursuant to clause 26C of the Regulations. I am in any event satisfied that the comprehensive objections lodged by him to the old bills adequately addressed the subject matter of the revised bill. For these reasons, I am of the view that leave should not be granted under section 208M of the Act and I decline so to do. I dismiss the summons.
17. I propose to make an order for costs against you. Is there anything you wish to say on that, Mr Valassis?
18. PLAINTIFF: Well, I been - whatever I have to say, I did with my evidence and I don't feel I am responsible for the cost.
19. HER HONOUR: Is there anything further you wish to put?
20. I order the plaintiff to pay the defendant's costs.
22. HER HONOUR: I should note in this matter that the summons for leave to appeal was filed out of time by something of the order of seven days. The defendant did not submit that he was prejudiced by that delay and I granted leave extending time at the commencement of the proceedings.21. KERR: There is one further matter, your Honour. I am not sure if your Honour has already done so, but would your Honour formally note that your Honour extended time?
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