TSEKOURAS v XENOS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER JA and STEIN JA 2 February 1998 [1998] NSWCA 239 Sheller JA. This is an application by the claimant, Mr Con Tsekouras, for leave to appeal from a decision of his Honour Barr J of 5 August 1997 and leave to appeal out of time. The summons was filed on 11 December 1997 and I would understand that what I have just quoted from the summons is directed to an extension of time to seek leave to appeal. The application is opposed by the opponent, Mr John Xenos. The claimant had applied for an order that his application for assessment of costs dated 6 December 1995 and the memorandum of costs of 13 October 1994 and 15 August 1994 be assessed. The application was apparently based on the provisions of s 199 of the Legal Profession Act 1987. The period prescribed by cl 25 of the regulations for such an application is twelve months after the bill was given to the client. It is accepted that the application for assessment had been made after the expiration of this period. In his reasons for judgment Barr J accepted that he had a discretion to extend that twelve month period up to and including the time in December 1995 when the application was made. However, in the exercise of his discretion his Honour dismissed the application. The claimant seeks leave to appeal from that decision. In this case, it seems to me that the claimant is faced with the insuperable obstacle of a discretionary judgment. A number of factors were referred to by Mr Crowley, who appeared for the claimant, which might be said to support an extension of time. These were matters which no doubt were referred to his Honour. One of which is the somewhat informal way in which the two bills of costs were furnished. Other matters referred to were the fact that the bills followed upon the discontinuance of the services of Mr Xenos who had been acting for the claimant on a matter which led to an application for special leave to the High Court. It was said that for some period of time the claimant hadbeen taken up with the preparation of that application. However, that application was dismissed on 17 February 1995. Reference was also made to complaints which the applicant made to the office of the Legal Services Commissioner. The complaint was dismissed in August 1995 and on 31 August 1995 an application to review that decision was dismissed. The submissions made by the claimant are set out in his Honour's judgment. In the course of his reasons his Honour said that Mr McQuillan, who was then acting for the claimant, was invited to make submissions as to why the claimant had not made an application under s 199(2) within the period limited by reg 25. The claimant's affidavits were silent about this. His Honour observed that no evidence had been put forward as to the part if any that the claimant was required to play in bringing on and maintaining the application for special leave to appeal to the High Court of Australia. He 2 UNREPORTED JUDGMENTS assumed, in the absence of any such evidence to the contrary, that the claimant had no direct part to play. His Honour said there was no evidence that the claimant was not aware of his rights under s 199 (2) and he had not explained why he took no steps to secure them for over a year. His Honour concluded: None of the evidence of the things he did during that period suggests to me that he did not have any opportunity of doing so. The evidence shows that he is assiduous in ascertaining his rights and pursuing them. The form of application for assessment was simple and designed for applicants without legal representation. The process of application was quick and simple. In all the circumstances I am not satisfied the discretion of the court should be exercised in favour of the plaintiff. The summons is dismissed. As I said, the claimant faces the almost insuperable task of seeking to set aside an exercise by his Honour of a discretion. It was submitted by reference to well-known authority that in this case there had been an error of principle or that his Honour had acted on irrelevant considerations or given insufficient weight to relevant considerations such as the form of the bills that were presented by Mr Xenos. However, I am not persuaded that the claimant has made out any case to suggest that there was any error by his Honour in the exercise of his discretion. Accordingly, in my opinion any appeal from his Honour's decision would be bound to fail. In my opinion, on that basis this application for leave to appeal should be refused as should the application for an extension of time. Accordingly, I would propose that the summons be dismissed with costs. Stein JA. I agree with Justice Sheller and the orders he proposes. The judgment does not appear to be attended by any error of principle nor any other error so as to justify leave to appeal being granted. Sheller JA. Accordingly, the order of the Court is the summons is dismissed with costs. Orders accordingly.