District Court New South Wales Medium Neutral Citation: MANGANO v BULLEN [2023] NSWDC 321 Hearing dates: 27 July 2023 Date of orders: 27 July 2023 Decision date: 27 July 2023 Jurisdiction: Civil Before: Dicker SC DCJ Decision: (1) The Summons filed 2 June 2023 is dismissed. (2) There be no order as to the costs of the proceedings. (3) Liberty to the plaintiff to apply to vacate Orders 1 and 2 above within 14 days by way of Notice of Motion with supporting affidavit Catchwords: COSTS – appeal – from single assessor to District Court – whether Court has jurisdiction Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law Application Regulation 2015 Uniform Civil Procedure Rules 2005 Cases Cited: Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309 Category: Principal judgment Parties: Silvana Maria Mangano (Plaintiff) Rosemary Anne Bullen (Defendant) File Number(s): 2023/00176447 Publication restriction: No JUDGMENT – ex tempore 1. Before the Court for directions today is matter number 5 in the list of Mangano v Bullen. The file reveals that on 2 June 2023, the plaintiff filed a Summons commencing an appeal under Part 50 of the Uniform Civil Procedure Rules 2005. On the face of the Summons, the appeal purports to be from a decision of a single costs assessor, CJ Plummer. The plaintiff appeals from the whole of the decision of the costs assessor and seeks that the appeal be allowed and that the determination of the costs assessor be set aside. The appeal grounds are that the cost assessor erred by issuing certificates of determination without reasons attached. On the basis of that, it appears that the certificates of determination have been issued by a single costs assessor but the reasons for the determination have not been provided to the appellant. 2. The matter was listed for directions on 6 July 2023 at 9.30am before the then List Judge her Honour Olsson DCJ. Her Honour noted that the defendant had not yet been served with the Summons and made orders in chambers on 5 July, vacating the directions hearing and listing the directions before the Civil List Judge on 27 July 2023 at 9.30am. 3. Earlier this week, I reviewed the file and noted an email sent to the Registrar on 5 July 2023 by the plaintiff seeking that the matter be stood over in order to enable service to occur or an application for substituted service to be made. I also noted an email, forwarded by the plaintiff to the Sydney civil registry on 24 July 2023 at 2.08pm, indicating that the plaintiff was of the view that she had to apply for an order for substituted service as personal service "has proven impossible". A request was made by the plaintiff to have the proceedings adjourned until 24 August 2023 at 9.30am. Upon my direction, my Associate forwarded an email to the plaintiff the next day indicating that the Summons filed on 2 June 2023 seemed to be an appeal from the decision of a single costs assessor and that the usual appeal process was to appeal to a Costs Review Panel and not to the Court. Various sections of the Legal Profession Uniform Law Application Act 2014 (NSW) were referred to in the email. The following was stated: "Accordingly, your appeal commenced by Summons may be the inappropriate process to seek the relief you may be entitled to. In those circumstances, the directions hearing on 27 July 2023 at 9.30am may be required." 4. On 26 July 2023, my Associate forwarded an email to the plaintiff indicating that the matter was listed this morning and that there may be in‑person or telephone attendances. When the matter was called this morning, there was no appearance in the matter by or for the plaintiff. Following that, at my direction, my Associate forwarded an email at 9.44am to the plaintiff indicating that I was currently hearing the civil list and requesting the plaintiff to appear either by telephone or in person and indicating the telephone number. That followed the receipt, from the plaintiff, of the following email: "The costs assessor has not issued his determination and reasons. Yet, I understand the assessment process has been completed. As the determination has not been issued, I am told that the review process is not available and I can only proceed through the District Court." 5. I note, immediately, that the email purports to suggest that the costs assessor has not issued his determination and reasons. This should be compared to the Summons, filed on 2 June 2023, indicating that the costs assessor erred by issuing certificates of determination. There is a fundamental inconsistency in the email and the Summons. 6. Following that, and at my direction, my Associate sent a further email at 10.08am today indicating the lack of appearance and also indicating that if there was no telephone appearance by 10.30am this morning that I may dismiss the Summons filed by the plaintiff for want of jurisdiction. That is, that she had no right of appeal, at present, to the District Court. The bundle of correspondence I have referred to I will make Exhibit A on the directions hearing. 7. It is a fundamental obligation of the Court to ensure that it has jurisdiction to determine a matter. The plaintiff, in my view, has been given a full opportunity to appear and is aware of the issue relating to a potential problem with jurisdiction. 8. In Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309, I set out in paragraphs 12 and following, a summary of the legislative regime applicable in this State in relation to the assessment and review of costs. I refer, in particular, to paragraphs 12 to 24 of that judgment. As indicated in that judgment, the regime for the review of costs is primarily set out in the Legal Profession Uniform Law Application Act 2014 (NSW). Also relevant is the Legal Profession Uniform Law Application Regulation 2015 which provides greater detail in relation to the machinery as to costs assessment; see Part 6 in that regulation. What that legislation makes clear is that depending whether the costs are costs involved in curial proceedings on the one hand or costs involved otherwise than in curial proceedings on the other hand, there are different procedures to adopt. However, where a costs assessment is sought by a person, provided the procedural steps are satisfied, the Manager, Costs Assessment must refer the matter to an assessor for determination. It appears that the plaintiff, in the present case, is complaining about the lack of production of determinations by the cost assessor or, as there is an inconsistency, perhaps the failure by the assessor to give reasons for determination. Under reg 41(1), a cost assessor must provide a statement of reasons for the cost assessor's determination. 9. That takes me back to the Legal Profession Uniform Law Application Act. Under s 93C of the Act, the Chief Justice of New South Wales may appoint persons to be costs assessors. However, if there is any dispute in relation to a costs assessment, the appropriate person is not to join the Chief Justice to the proceedings but a person may institute proceedings against "The Manager, Costs Assessment" as the nominal defendant: section 93C(6). As I previously indicated, the Manager, Costs Assessment, has the job of allocating disputes to costs assessors for determination. Under reg 39 of the Legal Profession Uniform Law Application Regulation 2015, the Manager, Costs Assessment is to refer applications for assessment of costs to the most suitable costs assessor having regard to a number of factors set out in that regulation. 10. Under the Legal Profession Uniform Law Application Act which provides for costs assessments, it is clear that the procedure is, first, to have an initial costs assessment by a single assessor and then, if appropriate, and a party wishes to appeal, for that appeal to be determined by a Review Panel. Section 82 establishes Review Panels under the cost assessment rules and provides, in s 83, for an application for a party for review of an assessment. The following sections deal with the conduct of reviews. 11. Under s 89 of the Legal Profession Uniform Law Application Act 2014, a party to a costs assessment that has been the subject of a review under the Part may appeal against a decision of the Review Panel concerned to either the District Court or the Supreme Court. Whichever court hears it has all the functions of the Review Panel. The appeal is to be by way of rehearing but as I explain in the decision of Gadd, referred to above, "rehearing" has a special meaning in the section. 12. What is clear is that an appeal to this Court by a party to a costs assessment can only occur if it has been the subject of a review under the relevant part of the 2014 Act. On the face of the Summons and in the various emails, it is clear that a review has not occurred. The plaintiff seems to have been told that the relevant person to complain to, where a determination either has not been handed down or reasons for it have not been handed down, is this Court. In my view, that is incorrect. If the plaintiff has a complaint about the delays of the assessment, she can complain to the Manager, Costs Assessment and if there are further issues she could, of course, commence proceedings against the Manager, Costs Assessment in the Supreme Court which may result in a different assessor being appointed. I am satisfied, for the reasons given above, that this Court does not have jurisdiction to consider an appeal from a single assessor which is what the plaintiff seeks to do in the present case. 13. Normally, I would allow a period of time for a plaintiff to consider the propositions which I have indicated and to obtain advice. However, in the present case, the plaintiff has been told of the difficulties with jurisdiction and has decided not to turn up at the directions hearing today. 14. In all those circumstances, where, on the face of the Summons, the Court does not appear to have jurisdiction, in my view, the appropriate step to take is to dismiss the Summons. The orders I make are as follows: 1. The Summons filed 2 June 2023 is dismissed. 2. There be no order as to the costs of the proceedings. 1. It seems to me that the plaintiff may, possibly, have got her description of what has occurred wrong. In those circumstances, I will give the plaintiff one last opportunity to make any application. Accordingly, the third order I make is liberty to the plaintiff to apply to vacate Orders 1 and 2 above within 14 days by way of Notice of Motion with supporting affidavit. 2. The Court has, on the face of the Summons, no jurisdiction to hear the plaintiff's appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2023