Chambers v Solicitor General

[2006] NZCA 51

IN THE COURT OF APPEAL OF NEW ZEALAND

CA23/05

BETWEENKENNETH ALEXANDER CHAMBERS

Appellant

ANDTHE SOLICITOR-GENERAL FOR NEW ZEALAND

First Respondent

ANDBRETT LIONEL ALLISON

Second Respondent

Hearing:13 February 2006

Court:O'Regan, Goddard and Chisholm JJ

Counsel:Appellant in Person

M D Downs and E V Lamont-Messer for First Respondent

Judgment:28 March 2006 

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

(Given by Goddard J)

[1] This is an appeal against a judgment of Williams J, given on 22 December 2004, determining an application by the appellant for the payment of fees, said to be owing to him, out of funds held by the Official Assignee under the Proceeds of Crime Act 1991 in Brett Lionel Allison’s name. The appellant is a qualified lawyer although he does not hold a practising certificate and the fees claimed are said to represent services the appellant rendered to Mr Reece, trial counsel retained by
Mr Allison in his defence of charges of manufacturing methamphetamine, conspiring to supply methamphetamine and money laundering.  Two High Court trials were held in relation to the methamphetamine charges, with Mr Allison ultimately convicted at the conclusion of the second trial.  The fees in issue in this appeal concern the assistance the appellant gave at the first trial and in the preparation of the money laundering trial heard subsequently by Williams J sitting alone.  At the retrial of the methamphetamine charges Mr Allison was represented by Mr Henry and the appellant has apparently been paid in full for assistance he gave at that trial.

[2]        The issue arising on this appeal is whether Williams J correctly determined the quantum of fees owing to the appellant and to be paid out of Mr Allison’s funds held by the Official Assignee.  A further issue is whether the appellant was afforded a fair hearing by Williams J in determining that quantum.  Another matter raised was whether the order for payment to him should be confined to those funds still held by the Official Assignee or whether Williams J ought to have directed Mr Reece to pay the appellant out of funds already released to him. 

History

[3] On 27 January 2004 the appellant filed his application in the High Court for an order that Mr Reece pay him the sum of $92,500 as a “specified debt” in terms of s 42(2)(d) of the Proceeds of Crime Act. A one line undetailed fee note in the sum of $100,000 plus GST (less $20,000 received from Mrs Allison) to a total of $92,500 was attached to the application. In a supporting affidavit the appellant attested that at all material times he was acting on the instructions of Mr Reece who, along with Mr Allison, had agreed to pay him a fee of $200 per hour plus GST from the proceeds of sale of Mr Allison’s restrained property. Reference was also made in the affidavit to approval having been given by Paterson J in August 2002 for payment to Mr Reece from Mr Allison’s restrained funds for past and future legal representation, including Mr Reece’s fees for the pending trial of the methamphetamine charges.

[4]        At a 17 March 2004 telephone conference (at which the appellant was represented by counsel) Williams J directed that the appellant must provide a detailed invoice for the work he claimed to have done for Mr Allison on Mr Reece’s instructions. 

[5]        On 14 April 2004, Williams J issued a Minute recording inter alia the following outcomes of that 17 March telephone conference:

[3]       At the time of the conference Mr K A Chambers had not rendered a detailed account to Mr Reece.  An account has now been filed with the Court and, at Mr Reece’s request since it covers matters which may be germane to the forthcoming money-laundering trial, has been sealed and marked “Not To Be Opened Without Leave of a Judge”.

…

[7]       There will be a timetable for the filing and service of documents relating to Mr Chambers’ application as follows:

[a]Any notice of opposition, including any challenge to
Mr Chambers’ standing and any affidavits in answer by
17 May 2004.

[b]Any affidavits in reply by 24 May 2004.

[6]        The “detailed account” referred to by Williams J in the above Minute was filed by the appellant on 30 March with an accompanying memorandum.  Similar memoranda were subsequently filed by him on 7 April and 21 May 2004 annexing reissued versions of the invoice, which was stated to encompass trial preparation for the first methamphetamine trial, the money laundering trial and miscellaneous matters.

[7]        In his memorandum of 21 May 2004, the appellant complained that no documents “in proper form” had yet been filed and served by Mr Allison or
Mr Reece in opposition to his application, despite the timetable orders made by Williams J.  The appellant also referred to his reissued invoice in the following terms:

Re-issued Invoice DR003 (to Mr Reece) prepared on 20 March 2004 contains a detailed description of work carried out by the applicant for Mr Reece and the fee charged (per agreed formula) for each portion of the work.  In the absence of any evidence of a release from the other parties involved (identities have been available to Mr Reece via Mr Allison), the applicant respectfully submits that further detailing of the applicant’s investigation of the financial affairs of Mr Allison between 1993 and mid 2000 would be a clear breach of various rights to lien, to privacy and to confidentiality.  [emphasis added]

[8]        The application came before Williams J for hearing on 23 June 2004.  Prior to the hearing, both Mr Reece and Mr Allison had challenged the appellant’s standing to bring an application for payment out of funds held by the Official Assignee on Mr Allison’s behalf, when the employment was claimed to have been by Mr Reece and not by Mr Allison.

[9]        In his judgment issued on 30 June 2004, Williams J recorded that all fees due to Mr Reece (other than ongoing fees) had already been met “though that … was subject to Mr K Chambers’ application”.  He noted also that the appellant’s fees for the second trial (at which Mr Henry had been counsel) had since been paid out of
Mr Allison’s funds held by the Official Assignee, albeit as a disbursement to
Mr Henry’s account.

[10]     The issue of the appellant’s standing to bring his application appears to have been resolved by agreement, Williams J recording that following discussion during an adjournment the appellant’s fees could by agreement be paid indirectly to him through Mr Reece, as an addition of Mr Reece’s own fees, after the claim had been assessed by the Court.  The relevant extract from the judgment is as follows:

[15]     … after the adjournment earlier mentioned, Messrs Reece and Allison on the one hand and Mr Paul Chambers [the appellant’s then counsel] on the other, agreed that, additional to the fees paid to Mr Reece, there could be paid from the sum held by the Official Assignee on Mr Allison’s behalf the reasonable fees due to Mr K Chambers with those fees being as assessed by the Court. To the extent it may be necessary, there will be an order in that regard.  [emphasis added]

[11]     In relation to the question of quantum Williams J noted that both the quantum and the adequacy of the invoices filed by the appellant was challenged by both
Mr Reece and Mr Allison:

[16]     Turning to quantum, the accounts filed by Mr K Chambers contain a reasonable amount of detail of the work done. All Mr K Chambers’ attendances were charged at $200 per hour. The amount sought, $92,500 plus GST, was the balance of a fee initially calculated at $131,200 net of GST but discounted to $100,000 with a payment received directly by
Mr K Chambers of $20,000 being deducted from that sum.

[17]     It must immediately be said that Mr Reece advised (and his submissions were supported by Mr Allison when he addressed the Court) that a number of the attendances claimed were challenged either as to whether they took place or as to the time claimed to have been utilised. The hourly rate was also challenged.

[18]     It is unfortunate that this matter cannot be concluded at this point, but it is impossible to resolve those matters without a further hearing.

[19]     Mr K Chambers having filed an affidavit sworn on 27 January 2004 setting out the work he claims to have done for Mr Reece attaching a one line fee note, a fee note which was later amplified in the detail exhibited to his memoranda filed on 24 and 30 March, 7 April and 21 May 2004, it is now for Mr Allison to justify his opposition to Mr K Chambers’ claim.  [emphasis added]

[12]     Williams J then made timetable orders for the filing and service of an affidavit by the appellant to justify his charge-out rate of $200 per hour and an affidavit by Mr Allison in reply detailing his objections to the appellant’s claims for both his attendances and the hourly rate. 

[13]     On a 30 July 2004 the appellant filed a memorandum annexing a new invoice for the work he claimed but at a reduced rate of $100 per hour plus GST, in the total sum of $73,800 including GST.  In the accompanying memorandum he pointed out that Mr Allison had not complied with the timetable orders by filing or serving any documents detailing his objections to the appellant’s claims.

[14]     On 12 August 2004 Williams J issued a Minute in which he noted that
Mr Allison and Mr Reece had not complied with the timetable orders made “because they had been quite distracted” by the money laundering trial heard (by Williams J) that very week.  Williams J referred to the revised invoice filed by the appellant in the sum of $73,800, and made amended timetable orders: first for the filing and service by Mr Allison by 27 August 2004 of any detailed objections to the appellant’s invoice and “in particular detailing those matters charged which he claims did not occur and the detail of what he claims were over-charges in terms of time for challenged attendances”; and by the appellant in reply by 10 September 2004.

[15]     On 27 August 2004 Mr Allison filed an affidavit in which he confirmed that he had instructed the appellant to assist Mr Reece in the preparation of his trials on the methamphetamine and money laundering charges, and that it had been agreed the appellant would be paid from the proceeds of sale of his assets held by the Crown “once his fee and his account had been approved as reasonable by a Judge of the High Court”.  Mr Allison went on to state however that:

At no stage was it intended by me or Mr Chambers that David Reece would be responsible for the payment of Mr Chambers’ account.  I have always intended to pay Mr Chambers for the work he did for me provided that it was reasonable and approved by the Court.

[16]     Mr Allison then went on to state that he was “astounded at the hours” that the appellant was claiming to have spent on various matters and provided various examples giving rise to this astonishment:

… the section of Mr Chambers’ account dealing with the verification of asset accretion transactions, beginning with “food trucks” and ending with “Cash held by NZ police”.  The time Mr Chambers says he spent on these various matters totals some 370 hours which amounts to 9 weeks at forty hours per week.  This is a grossly inflated figure and cannot have been expended by him over the time period in question.

For example he says he spent 24 hours on the food truck matter.  I have no idea who he visited in Paihia and Kaipara.  This was simply the purchase of a truck and was not a complicated matter.  I have not been shown a brief of evidence or detailed time sheets in regard to this matter.

He says he spent 18 hours on the whitebait venture.  I have no idea who he visited in Wellington nor did I give him any instructions to travel there once, let alone twice.  I have not been shown a brief of evidence or detailed time sheets in regard to this matter.

He says he spent a week on “miscellaneous income” which again I find to be an excessive claim.  I have not been show a brief of evidence or detailed time sheets in regard to this matter.

In regard to the purchase of the various properties I owned, Mr Chambers says he perused the files and talked to a few witnesses, I have never seen any witness briefs he prepared for these or any of the other witnesses he said he interviewed.  The conveyancing files are easily read by someone who knows what they are doing by going to the settlement statement on each file.  He says he spent over 100 hours looking at these files which again is a ridiculous assertion.

In summary I dispute all the time claims in this “verification” section of the accounts.  I have been shown nothing by Mr Chambers that relates to a brief of evidence nor have I seen any detailed time sheets.

[17]     On 7 September 2004 the appellant filed a memorandum “concerning the affidavit of Brett Lionel Allison”.  In this memorandum he complained that
Mr Allison’s affidavit of 27 August 2004 contained “glaring inconsistencies” with previous documents filed by him and with submissions made on his behalf, and he also complained that Mr Allison had failed to comply with the various timetable orders made.  He invited the Court to conclude that Mr Allison’s affidavit was “simply another attempt to delay resolution” and that it had deprived him yet again of a fair opportunity to reply.  He concluded as follows:

The applicant again respectfully invites Your Honour to make appropriate orders:

a.Entirely rejecting the affidavit of Mr Allison dated 27 August 2004; and

b.For payment of fees as sought in the applicant’s Memorandum dated 30 July 2004, pursuant to the terms of paragraph 15 of Your judgment dated 30 June 2004.

[18]     On 9 September 2004, Williams J issued a Minute in response in which he recorded that:

[2]       Despite the Court’s direction in its Minute of 12 August 2004 (para [5] [b]) Mr Chambers’ memorandum [of 7 September 2004] does not set out to answer Mr Allison’s affidavit nor is it on oath.

[3]       That notwithstanding, the Registrar is now to set down Mr K Chambers’ application for fees for hearing before Williams J.  Because cross-examination may be required, at least a half day fixture should be allocated.  Within a fortnight of being advised of the hearing date, Mr K Chambers is to file and serve an affidavit meeting the matters raised by
Mr Allison in his affidavit.  If he files such an affidavit, Mr Allison is to have one week to file an affidavit in reply.

[4]       Failing the filing and service of those further affidavits,
Mr Chambers’ application for fees will be determined solely on the affidavits filed to date in this matter, with any cross-examination that may be permitted. [emphasis added]

[19]     The appellant’s counsel responded to the 9 September Minute of Williams J on 13 October 2004, explaining that service of the 12 August 2004 Minute had not been effected on either him or the appellant until recently because the Court Registry had been using a disused facsimile number.  Reference was also made to the fact that five timetable orders had not been complied with by Mr Allison.  The memorandum concluded with the following:

These matters are raised to ensure the Court is aware of all matters preliminary to resolution of Mr Chambers’ application, including his chagrin at having to deal with the contents of Mr Allison’s recent affidavit.

It may be that His Honour shares Mr Chambers’ concern that this issue of service has resulted in a possible miscarriage of justice in terms of the expeditious resolution of this matter and Mr Chambers’ reimbursement for work now (apparently) claimed by his counsel, sufficient to reconsider the matter and approve payment of Mr Chambers’ bill without further expenditure of Court time before His Honour.

If, however, the Court requires this matter to proceed to a hearing a half day for argument, at most, is estimated by counsel as required.

[20]     Accompanying the memorandum was the appellant’s affidavit in reply, sworn on 4 October 2004.  In it the appellant referred to the urgency and full-time nature of the work that had been required of him; said that he had understood that it would be necessary for him to give evidence at Mr Allison’s trial but that he was expressly instructed by Mr Reece not to prepare a brief of his evidence; said that most of those he had interviewed on Mr Allison’s instructions would not discuss matters over the telephone but had required personal attendances; and said that
Mr Allison’s financial records were either non-existent or a “disorganised shambles”.  There were however no references in the affidavit to time sheet recording or to any record of the statements apparently taken from witnesses and no such documents were tendered as annexures to the affidavit.

[21]     The application was set down for hearing on 29 October 2004.  At the commencement of the hearing Mr Reece applied to cross-examine the appellant and was granted leave to do so.  A series of challenges were then put to the appellant in cross-examination.  It is unnecessary to detail all aspects of that cross-examination but of particular material consequence was the appellant’s inability to justify his various claims for time and attendances by reference to time sheets.  The following passage from the cross-examination is illustrative:

Going back to that figure of $18,400 do you have time-sheets in relation to that figure? … I have a summary time sheet which is recorded in this invoice.

Did counsel for Mr Allison ever ask you for copies of those time sheets? … Not before 2004.

Were you asked this year by counsel for Mr Allison for those time sheets? … Yes.

Why didn’t you provide them? … Because they add nothing to the invoice.

Isn’t that for counsel for Mr Allison to ascertain? … Not if you haven’t seen them, Mr Reece.

Well that is precisely the case.  I haven’t seen them.  I suggest to you that they don’t even exist.  What do you say to that? … I disagree.

Are they here in Court today? … No sir.

Where are they? … They’re in the file, which is voluminous.

Where is the file? … In New Plymouth.

Whereabouts in New Plymouth? … At our beach house.

Where do you actually live, Mr Chambers?  Do you actually live at Mangere Bridge? ... Yes, at 23 Kiwi Esplanade, Mangere Bridge.

That’s your parents’ address isn’t it? … Yes.

You live with your parents? … Yes I do.

And these documents are in New Plymouth? … Yes they are.

Does your counsel, Mr Chambers, have a copy of them? … No sir.

[22]     At the conclusion of the hearing Williams J adjourned the application part-heard to enable counsel to file further submissions if they wished.  The appellant’s counsel took the opportunity to file further submissions in which he again emphasised Mr Allison and Mr Reece's tardy compliance with the time tabling orders made prior to the hearing and submitted that Mr Allison's affidavit detailing his objections and challenges to the appellant's claim was "nothing more than a series of assertions without substantiation of any form" … and were "nothing more than inadmissible hearsay statements".  Counsel further submitted that Mr Chambers' 4 October affidavit in reply (referred to in [20]) substantiated the extent of his involvement in Mr Allison's trial preparation and was supported by "a number of recorded and undisputed evidentiary examples" such as a report by a firm of forensic accountants.  However, no opportunity was taken to adduce any time sheets or other proper record of time and attendances as part of the submissions.  Rather, there was a complaint that the appellant had been required for cross-examination and no formal notification had been given under the Rules.  The remainder of the submissions were directed to the effectiveness of the cross-examination of the appellant who counsel pointed out had "re-iterated that his invoice was correct and denied the ineffectual assertions that the work was not done and, therefore, the sums were false". 

Judgment of Williams J

[23]     In his judgment issued on 22 December 2004 Williams J traversed the background history of the application and then made the following reference to the appellant’s failure to produce any time sheets notwithstanding the hearing had been adjourned part-heard for further submissions to be filed:

[13]     Although Mr Chambers claimed he had detailed time sheets to support the accounts, he did not produce them, claiming they were in Taranaki or on a computer since sold and he had received only 15 minutes notice that he was required for cross-examination at this hearing. It is difficult to accept that evidence from a lawyer knowing of a fixture where his claim for fees was the matter in issue and knowing of Mr Allison’s affidavit evidence challenging the extent of the work he did. To such a person, it would seem axiomatic that detailed time sheets would be required, prepared regularly as the work was done so as to justify the fees charged and meet any complaint. At the conclusion of the hearing, the application was adjourned part-heard for submissions to be filed. But even at that stage there was no application by Mr Chambers for leave to put his time sheets in evidence. This application must accordingly be determined on the basis that Mr Chambers has no documentary material to support his claim other than the various accounts mentioned.  [emphasis added]

[24]     In relation to the payment already made to the appellant for the assistance he had given Mr Reece on the Crown’s proceeds of crime application in the sum of $200 per hour, Williams J did not accept a submission from the Crown that there ought to be an adjustment of any further approval of fees at $100 per hour to take account of that earlier payment at a higher rate.

[25]     The next aspect considered by Williams J was the improbability of the amount of time claimed by the appellant.  On this aspect Williams J said:

[14]     It is to be noted that the account is for work done over a 106 day period. If the gross amount of the 15 December 2002 account is taken, that amounts to a fee of over $943 per day. Simple division suggests
Mr Chambers claims to have spent nearly 7 hours on Mr Allison’s work on every day during the period. On a 5-day week those figures, of course, rise substantially. If the whole of the detailed bill extending up to 27 February 2002 is taken into account, even including Christmas Day and the traditional vacation, Mr Chambers claims to have billed almost $730 worth of work or three and a half hours on every day. In default of time sheets, that seems improbable. Indeed, in an affidavit sworn on 27 January 2004,
Mr Chambers asserted he charged up to 45 hours per week in August, September, October and the first week of November 2002 but his workload then fell away to a total of 38 hours during the period 15 November 2002 to the end of February 2003.

…

[18]     As far as the 24 individual items are concerned, Mr Allison made the point that the individual claims totalled $71,800 which, if Mr Chambers claimed a chargeout rate of $200 per hour, suggests he spent 359 hours on that work or nearly nine complete 40 hour weeks. Given the duration of the account and the fact other work was said to have been done by Mr Chambers for Mr Allison, that, too, seems improbable. [emphasis added]

[26]     Williams J was critical also of a claim by the appellant for work done on a severance application, a claim that had already been the subject of a successful complaint to the Auckland District Law Society; and critical of a claim for research on elementary legal matters that should generally be within counsel’s expertise.

[27]     In relation to chargeout rate, Williams J concluded that $100 per hour plus GST was the appropriate rate at which the appellant was to be paid.  He noted that the narrative nature of the appellant’s invoices were of little help in fixing an appropriate fee, however, as they did not clearly identify what fee was charged for what work and it was difficult to see any great correlation between the narrative and many of the fee claims.  Williams J found significant weight in the criticisms made of the amount of time the appellant claimed to have spent on items and noted again that the “lack of timesheets is a major hurdle for Mr Chambers’ claim and his excuse for not having them at the hearing was unconvincing”.

[28]     Against that, however, Williams J accepted that the appellant’s assistance to Mr Reece during the first methamphetamine trial would have been a positive contribution and have provided a certain measure of value to Mr Allison and to counsel.  Williams J was therefore able to conclude that it was appropriate for some allowance to be made to the appellant for his fees during that period.  However, as he went on to state:

[34]     The difficulty, of course, in light of all that has been said, is calculating what that fee should be. In default of evidence on which a definite calculation may be made, the best result in order to achieve finality is for the Court to assess a proper fee on a quantum meruit basis though acknowledging that to be more a “guesstimate” than a precise calculation. In terms of the Proceeds of Crime Act 1991 s 42(2) what must be determined is Mr Allison’s “reasonable expenses” of his defence. [emphasis added]

[29]     Proceeding on the basis of the evidence available to him Williams J reached the following conclusions:

[35]     The Court concludes that Mr Chambers should be paid:

a)$4,000 plus GST being approximately one-quarter of the fee paid to the accountants for work on the Crown’s source and disposition statement in relation to the money laundering counts. This is justified by Mr Chambers’ claimed expertise in relation to money laundering and the accountants’ memorandum of 4 November 2002 which said that they had “worked closely with Ken Chambers who has assisted with the gathering of documentary evidence” and that “we have met regularly with Mr Chambers” in the furtherance of the work; and

b)$100 per hour plus GST for a quarter of the number of hours Nicholson J sat in open court or court for chambers during the first “Operation Flower” trial after 1 September 2002 as a rough estimate of the value Mr Chambers’ trial assistance may have given Messrs Reece and Allison.

c)Leave is reserved to the parties to apply further if they are unable to agree on the result that calculation produces. Leave is granted to inspect the Crown Book under supervision of Court staff in the event that proves necessary.

Grounds of appeal

[30]     The three broad grounds of appeal are as outlined in [2] above.

[31]     The specific grounds advanced in relation to the primary issue of quantum were essentially directed to the onus of proof.  The appellant’s firm view is that once he had filed his detailed invoices, the onus was on Mr Allison to prove that his claims for time and attendances were not justified and that Williams J had wrongly shifted the onus of substantiating his claim to him.  This firm view was reflected in a number of the appellant’s written submissions, which focused on what he contended were inconsistencies between statements in Williams J’s judgment of 30 June 2004 (dealing with preliminary matters) and findings in his substantive judgment of
22 December 2004.  For example, the appellant selected and pointed to Williams J's reference to the parties’ agreement that “reasonable fees due to the appellant” could be paid from the funds held by the Official Assignee “with those fees being as assessed by the Court” and it being for Mr Allison to “justify his opposition” to the quantum of fees claimed by the appellant, as inconsistent with the ultimate findings that the appellant had substantiated his claim only to the extent reflected in the orders set out in [29] above.

[32]     Further complaints by the appellant under this head related to various findings of Williams J as erroneous in fact and law, such as his finding that there was considerable doubt as to exactly what work the appellant claimed to have done; when it was performed; the amount of the fee he was claiming for that work; and the finding that it was "difficult to see any great correlation between the narrative and the claims".

[33]     The argument advanced in support of the second broad ground of appeal, relating to fairness of process, centred on two aspects: first Williams J’s permitting of extensions of time to Mr Allison in which to justify his opposition to the appellant's claim (said to have denied the appellant a just, speedy and inexpensive determination of his claim); and denying the appellant a fair hearing by ordering that he be cross-examined in the absence of formal notice that he was required for cross-examination.

[34]     The third ground of appeal was essentially directed to whether the appellant was a creditor of Mr Reece or a creditor of Mr Allison, and also whether the application fell to be determined under s 42(2)(c) or s 42(2)(b) or s 47 Proceeds of Crimes Act.  That third limb of argument did not assume any prominence in the hearing before us and essentially fell away.  We simply note that the mechanism for payment of the net sum ordered by Williams J out of the funds held by the official assignee to Mr Reece in the first instance and for immediate onward transmission to the appellant was proper in the circumstances and in the appellant's best interests.  Approaching the exercise as an application under s 42(2)(c) of the Act as a determination of Mr Allison’s reasonable expenses incurred in defence of the charges he was facing, was the correct approach and the fees, once assessed, were by agreement able to be paid out to the appellant as a disbursement to Mr Reece's fees.  Furthermore the order was made in accordance with the agreement reached between Mr Allison, Mr Reece and the appellant’s own counsel in respect of mode of payment (as recorded by Williams J in [15] of the 30 June 2004 judgment).

[35]     The contention by the appellant that Williams J ought to have ordered some further payment to him out of funds already released to Mr Reece prior to the hearing was not raised before Williams J and cannot be part of the appeal before us.

Discussion

[36]     Only the first two grounds of appeal require discussion.

[37]     The quantum of reasonable fees owing could only be determined on the basis of the extent to which the appellant was able to substantiate his claims, given the robust challenges in Mr Allison’s affidavit of 27 August 2004 and his repeated references to the total absence of any briefs of evidence or time sheets to support or justify the attendances claimed by the appellant.  The onus was therefore on the appellant throughout to establish whether or not the quantum he claimed was fair and reasonable.  As the fees were to come out of funds held by the Official Assignee and which might ultimately pass into Crown ownership, quantum was properly for the Court to assess, as noted by Williams J (in [12] and [15] of his 30 June 2004 judgment) and acknowledged by Mr Allison. 

[38]     It is notable that throughout the history of the appellant's application he consistently failed to substantiate his claims by reference to time or attendance records.  He attempted to justify this failure on the basis of confidentiality attaching to persons he interviewed on Mr Allison's behalf.  However, any privilege attaching to those interviews belonged to Mr Allison, who expressly waived privilege in his affidavit of 27 August 2004.  It was for Mr Allison to assess whether there was any confidential aspect of the information obtained through those interviews, and any sensitivity in that regard appears to have been adequately covered in the 14 April 2004 Minute of Williams J, referred to in [5] above.  If some other protection were necessary, no doubt the Judge would have made orders to provide for it if he had been asked to.

[39]     In summary, the fundamental need for the appellant to substantiate his claim by reference to time sheets or similar records was consistently made clear to him throughout:  in the judgment of 30 June 2004 the assessment of any fees owing was expressly to be “assessed by the Court” and the impossibility of resolving the challenges to the number of attendances claimed and the hourly rate “without a further hearing” was noted; in his affidavit of 27 August 2004 Mr Allison made clear that he did not accept the number of hours claimed by the appellant, describing the claim as “grossly inflated” and repeatedly stating that he had not been shown any briefs of evidence nor any detailed time sheets to support the claims; in his
9 September 2004 minute, Williams J noted that the appellant’s memorandum purporting to reply to Mr Allison’s affidavit did not set out to answer the matters contained in it, nor was it on oath, and he directed the Registrar to set the application down for a hearing, noting that at least a half day fixture should be allocated “because cross-examination may be required".  As evident from this summary, it was clearly indicated to the appellant that a hearing to assess his fees claim was required; that his claim could not simply be determined on the papers; that his invoices were challenged both in relation to time and attendances and lack of supporting records; and that cross-examination “may be required”. 

[40]     Following the hearing, Williams J accorded a further opportunity to the appellant to produce substantiating records by permitting the filing of further submissions.  Notwithstanding the appellant still did not attempt to adduce any time sheets in evidence.  Further submissions filed by his counsel contained no reference whatsoever to time sheets.  Williams J’s determination therefore necessarily had to be made “in default of evidence on which a definite calculation may be made”.  Even in preparation for this appeal the appellant did not seek leave to produce any time records nor to argue that there was any ‘fresh evidence’ basis on which he could do so.  It is only in response to comment by us at the appeal, about the complete absence of any time records, that the appellant has belatedly seen fit to file a memorandum seeking leave to adduce time sheets in evidence.

[41]     There is however no basis for allowing such evidence to be admitted.  The evidence cannot be ‘fresh’ on any basis and its notable absence from the case has already been the subject of adverse findings in the High Court.  This appeal can only be determined on the basis of the material that was before Williams J in the High Court and on an assessment of Williams J’s approach to determining quantum.

[42]     Given the complete absence of any substantiating material to support the appellant's claims for time and attendances (claims which Williams J found appeared improbable on any analysis) there was little more that could be done other than to attempt to calculate a reasonable fee on what Williams J acknowledged was more of a “guesstimate” basis than a precise calculation.  The conclusion reached by Williams J was one open to him and there is no discernible error of fact or law in either his approach or his conclusion.

[43]     Turning to the second ground of appeal (directed to fairness of process) Williams J was entitled to grant such extensions of time for the filing of documents as he saw fit.  The appellant was represented by counsel throughout the process and there is no merit in this complaint.

[44]     Finally, the appellant was not denied a fair hearing on the basis that Williams J permitted cross-examination of him in the absence of any formal notice having been given under the High Court Rules.  Both he and Mr Allison were present at the hearing before Williams J and were therefore available for cross-examination if required.  In view of the challenge to his fees’ claim the appellant cannot have been surprised that leave was sought to cross-examine him.  Having been well aware of that likelihood it is inconceivable that he would not have brought his records with him to justify his claim, had any such records existed.  As Williams J observed “it is difficult to accept that any lawyer knowing his claim for fees was seriously challenged would not produce detailed time sheets to justify the fees claimed and meet any complaint”.

Conclusion

[45]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington, for First Respondent