Vaughan v Driver
[1999] NSWSC 766
•30 July 1999
CITATION: VAUGHAN v DRIVER [1999] NSWSC 766 CURRENT JURISDICTION: COMMON LAW FILE NUMBER(S): 11084/1999 HEARING DATE(S): 15 July 1999 JUDGMENT DATE:
30 July 1999PARTIES :
MICHAEL JOHN VAUGHAN
v
ROBERT FULTON DRIVERJUDGMENT OF: Master Malpass
LOWER COURT JURISDICTION: Costs Assessment LOWER COURT FILE NUMBER(S) : 90513/1997 LOWER COURT JUDICIAL OFFICER: G G Buckworth
COUNSEL : PLAINTIFF: MR A CLOUT
DEFENDANT: MISS E COHENSOLICITORS: PLAINTIFF: JOHNSTON VAUGHAN
DEFENDANT: de MESTRE & COMPANYCATCHWORDS: Application for extension of time and for leave to appeal against determination of Costs Assessor; question of statutory construction; delay and prejudice (loss of documentation). ACTS CITED: Legal Profession Act 1987, s 208L, s 208M.
Workers Compensation Act 1987, s 122.CASES CITED: N/A DECISION: SEE PARAGRAPH 25
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER MALPASS
FRIDAY 30 JULY 1999
11084/1999 MICHAEL JOHN VAUGHAN v ROBERT FULTON DRIVER
JUDGMENT
1 The Court has been informed that this is the third of three proceedings brought in this Court between these parties. This is the second of two proceedings that have come before me. Both have involved a challenge to a determination of a Costs Assessor by the present plaintiff. Both have involved modest sums.
2 In this case, the Certificate of Determination was issued on 5 June 1997. The Costs Assessor was Mr Buckworth.
3 The plaintiff is a solicitor. The defendant is a barrister. The defendant had been briefed by the plaintiff in respect of a number of matters. At some stage, there was an acrimonious falling out between the parties. The defendant rendered Memoranda of Fees in respect of a number of matters. There was non-payment.
4 The defendant made application to this Court for the assessment of his fees in respect of a number of matters. The Certificate of Determination allowed fees in the sum of $12,835.00 in respect of those matters. For present purposes, the Court is only concerned with two of the matters. The first of them is that of Camilleri. The second, is that of Cucchiaro. In each of the matters, fees were rendered in the sum of $340.00. The Costs Assessor allowed in full the fees in each of those matters. In each of those matters, the defendant had been briefed in relation to proceedings in the Compensation Court.
5 These proceedings were commenced by Summons. The Summons was not filed until 6 May 1999. The Summons purports to mount a challenge to the whole of the determination. It contains prayers for relief which would appear to contemplate that the Summons had been brought pursuant to both sections 208L and 208M of the Legal Profession Act 1987 (the Act).
6 The Summons came on for hearing on 15 July 1999. Both parties were represented by counsel. The plaintiff has relied on two affidavits. The parties have tendered documentation (Exhibits A and 1).
7 The Court has been told that all fees have been paid save for those rendered in the matters of Camilleri and Cucchiaro. Accordingly, the dispute now only involves the exceedingly modest sum of $680.00. The Court has been informed that the plaintiff now seeks relief under section 208M of the Act only. This is a provision which allows the Court to grant leave to appeal in an appropriate case. The Court has a discretionary power and the power is exercised in those circumstances where it is just to do so. The onus of demonstrating an entitlement to relief rests with the plaintiff.
8 In this case, the summons has been brought well out of time (in the order of nearly two years). Accordingly the plaintiff needs an extension of time to bring the application for leave.
9 There is no formal process seeking an extension of time. Despite this, the Court was asked to embark on a hearing of both the application for extension and the application for leave. By consent, both applications were heard together.
10 The Court has a discretionary power to extend time. It is exercised having regard to the relevant circumstances of the particular case before it. Three relevant circumstances were agitated in argument. Firstly, there was the question of utility in the granting of leave. Secondly, there was the question of delay and the explanation offered for that delay. Thirdly, there was the question of prejudice occasioned by that delay.
11 The question of utility involved the consideration of one point only. It involved the construction of section 122 of the Workers Compensation Act 1987. Although this section has now been repealed, it was in force at the relevant time. The provisions of the section were as follows:-
“(1) The solicitor or agent of a person claiming compensation under this act is not entitled
(a) to recover from the person any costs in respect of the claim; or
(b) to claim a lien in respect of those costs on, or deduct those costs from the sum awarded, ordered or agreed as compensation,
unless those costs are awarded by the Compensation Court.
(2) Any such award may be made on the application either of the person claiming compensation or the person’s solicitor or agent.
(3) Any sum so awarded is subject to assessment in accordance with Division 6 of Part 11 of the Legal Profession Act 1987.
(4) This section prevails to the extent of any inconsistency with Part 11 of the Legal Profession Act 1987.
(5) A person must not:
(a) claim a lien that the person is not entitled to claim because of subsection (1); or
(b) deduct costs from a sum awarded, ordered or agreed as compensation that the person is not entitled to deduct because of subsection (1).
Maximum penalty: 50 penalty units.
(6) A person who has paid an amount in respect of costs to another person that the other person was not entitled to recover because of subsection (1) is entitled to recover the amount paid as a debt in a court of competent jurisdiction or by proceedings in the Compensation Court.
(7) A reference in this section to a claim includes a reference to a prospective claim (whether or not the claim is ever actually made).”
12 The Court has been informed that the term “agent” is not defined in the legislation. Further, it was informed that counsel were unaware of any decided case which dealt with the matter of the construction of the section. Accordingly, I was not referred to any authority to assist in its construction.
13 It appears to be common ground that the defendant had been briefed in and had performed work in both of the Camilleri and Cucchiaro matters. The matter of Camilleri had been finally disposed of prior to the determination of the Costs Assessor. By consent, an award had been made in favour of the respondent. In the case of the matter of Cucchiaro, it remained extant at the time of the determination. It appears that the matter of Cucchiaro was disposed of just recently prior to this hearing. The Court has been informed that it had been struck out by reason of non-appearance of the applicant.
14 The task of scrutinising what has been done by the Costs Assessor is now a matter of some difficulty. The delay has seen the loss of relevant documentation. It is common ground that the Costs Assessor’s file is no longer available. Presumably, it was disposed of some time after the appeal period had elapsed. Largely, the defendant’s documentation is no longer available. In the circumstances, there has to be uncertainty as to what took place during the cost assessment process (inter alia, the communications involving the parties and the Costs Assessor, which would have included the relevant submissions, are not all available).
15 It is common ground that the matter of section 122 was raised by the plaintiff. There is a copy of a letter dated 29 April 1997 from the defendant to the Costs Assessor. It may be seen as having the effect of raising submissions contrary to whatever was the proposition put by the plaintiff in relation to the application of section 122.
16 The terms of section 122 (1) disentitle the solicitor or agent of a person claiming compensation under the legislation from recovering from that person any cost in respect of the claim unless those costs are awarded by the Compensation Court.
17 In the present case, the Costs Assessor was concerned with a bill of costs given by a barrister to a solicitor (section 201). The relevant relationship was one between solicitor and barrister (not a relationship between the applicant and his solicitor or agent).
18 Section 122 does not purport to regulate arrangements made as to costs between a solicitor and a barrister. The material is silent as to what arrangements were made between them in the matters of Camilleri and Cucchiaro and what was put to the Costs Assessor by the plaintiff (if anything) in relation to the existing arrangements. It has not been argued and there is nothing to suggest that the defendant had accepted the brief on a no win/no fee basis.
19 In the circumstances, I am of the view that the Costs Assessor made a determination in respect of both matters which was open to him. I am not satisfied that there was any error on his part which justifies disturbing the determination.
20 Clearly, no good purpose would be served by the granting of an extension of time in this case. The application for leave would be doomed to failure. Whilst this matter alone would suffice to dispose of both applications, I shall now turn to the remaining questions.
21 The delay is substantial. It is not satisfactorily explained. The material offered is parsimonious. I shall specifically refer to a couple of matters.
22 By July 1997, the defendant had made it abundantly plain to the plaintiff that he would be proceeding to recover the costs allowed under the determination (if they were not paid by the stipulated date). He had brought the plaintiff’s attention to the appellate provisions contained in the Act. It should have then been obvious to the plaintiff that if he desired to disturb the determination in some way it was up to him to use that appellate process. Instead of taking that course, at some unspecified time thereafter he chose to make a complaint to the Bar Association. Apparently, it was not disposed of until March 1999. Enforcement action taken in the Local Court by the defendant, led to the making of an application in that Court. The plaintiff was given a stay for a period of two months. The Summons was not filed until that two month period was about to expire.
23 The delay has occasioned prejudice. I have already adverted to the difficulty that has been caused by reason of loss of documentation. The documentation may have contained material which would have been of assistance to the defendant on the hearing of these applications. It is certainly now difficult to give the parties a fair hearing in relation to the present applications.
24 In my view, the plaintiff has failed to satisfy the Court that he should have either an extension of time to bring the application for leave or leave itself. In these circumstances, both applications fail.
25 I dismiss the Summons. The plaintiff is to pay the costs of the Summons. The exhibits may be returned.
**********
0
0
0