Johnston v Boyd [2023] NSWSC 194

Supreme Court New South Wales

Medium Neutral Citation: Johnston v Boyd [2023] NSWSC 194 Hearing dates: 2 March 2023 Date of orders: 2 March 2023 Decision date: 02 March 2023 Jurisdiction: Common Law - Administrative Law Before: Fagan J Decision: (1) The plaintiff's summons is dismissed. (2) The plaintiff is to pay the costs of the first defendant. Catchwords: ADMINISTRATIVE LAW – discretion to refuse relief on judicial review where statutory avenue of review and appeal available – costs assessment – alleged denial of procedural fairness – reconsideration by review panel not sought – review by panel an adequate and preferrable remedy – summons dismissed Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757 Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 Macksville District Hospital v Mayze (1987) 10 NSWLR 708 Category: Principal judgment Parties: Daryl Lindsay Johnston (plaintiff) Abigail Boyd (first defendant) Christopher David Harris (second defendant) Representation: Counsel: Ms M Castle with Ms V Chan (First defendant)

Solicitors: Self-represented (Plaintiff) Deutsch Miller (First defendant) Self-represented (Second defendant) File Number(s): 2022/00264349-1 Publication restriction: Nil

JUDGMENT (Delivered Orally – Revised) 1. By summons filed on 1 September 2022, the plaintiff, Daryl Lindsay Johnston, seeks judicial review of the decision of a costs assessor made on 1 June 2022. The sole ground of review, implicit in the relief claimed and from the plaintiff's submissions, is that the plaintiff was not afforded a reasonable opportunity to complete and submit his objections to the bill of costs that was under assessment. The assessor was bound by s 69(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) to give the plaintiff "a reasonable opportunity to make submissions to the costs assessor in relation to the application, and give due consideration to any submissions so made". 2. The plaintiff is self-represented. The first defendant is Ms Abigail Boyd who was the costs applicant before the assessor. Ms Boyd is represented by solicitors and counsel. The second defendant is Christopher David Harris who was a costs respondent before the assessor. He is also self-represented. The third defendant is the Manager Costs Assessment who has filed a submitting appearance. 3. The relief claimed in the summons may be paraphrased as follows: 1. A declaration that the plaintiff was not afforded a reasonable opportunity to complete and submit his objections to the bill of costs. 2. An order that the plaintiff have a further 14 days from the orders of this Court to deliver completed objections and submissions to a substitute assessor appointed under the Court's direction. 3. Orders that the certificates of assessment, issued on 1 June 2022, of the applicant's costs and of the costs of the assessment, be suspended. 4. An order that the certificate of determination of costs in favour of the costs applicant be cancelled, and a new assessment be commenced de novo. 5. A declaration that the assessor denied procedural fairness, in particular, by withdrawing a seven day time limit that she had initially allowed. 6. An order that the Manager Costs Assessment appoint an alternative costs assessor to consider the plaintiff's further objections and submissions, to be filed under the order of the Court. 7. An order that the assessment be referred to a costs assessment review panel and that the plaintiff's objections and submissions be considered by that panel on the material that was available to the assessor. 1. Although not stated in the summons, some of these claims for relief are obviously alternatives to each other. The costs applicant before the assessor, who is now the first defendant Ms Boyd, opposes judicial review. Mr Harris, the second defendant, raised the following points in a response to the summons: 1. He would like two bills of costs created, one for the costs applicant's claims against him and another for the costs applicant's claims against the plaintiff. He has not filed any cross-summons and he has no proceeding on foot pursuant to which he might seek such an order. In any event, the order of the Court under which the costs were assessed by the assessor was made against the two costs respondents, Messrs Johnston and Harris, jointly. As a Divisional judge, I would have no jurisdiction to vary that order. Hence, what Mr Harris asks for could not in any event be granted. 2. Mr Harris seeks an order, of some nature, to preserve his position in the event that the Court should order referral of the proceedings to a review panel and if that review panel should increase the amount of assessed costs. 3. Mr Harris seeks an order that he have leave to make a submission to a review panel if the assessment should be so referred. The last two points raised by Mr Harris do not arise in view of the way in which I consider that the summons should be determined.