LANG v KIRKNESS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, HANDLEY and POWELL JJA 25 February 1998, 30 June 1998 [1998] NSWCA 128 COSTS — assessment — appeal from decision of assessor — requirement of assessor to give reasons — issues for separate determination effect of costs order on balance of proceedings Supreme Court Rules Pt31, r6(c) and Pt8, r6. COSTS — assessment — appeal from decision of assessor — requirement of assessor to give reasons — issues for separate determination — effect of costs order on balance of proceedings — Supreme Court Rules Pt31, r6(c) and Pt8, r6. The claimants sought leave to appeal from the decision of a Master which dismissed the claimants' appeal from the decision of a costs assessor. They alleged the assessor had made certain errors of law: the awarding of costs to the opponents when they had been acting for themselves; failure to give adequate "short" reasons for the decision; refusal to supply "full" reasons for the decision; and the allowance of costs in a past matter contrary to the orders of the Court of Appeal. HELD: Dismissing the summons: (1) The arguments alleging the opponents had acted for themselves had been dismissed by the Master due to lack of evidence. Appeal on this question did not involve any error of law and so established no basis for the grant of leave. (2) The allegation that the assessor's "short reasons" were inadequate failed as these reasons were supplied to the opponents who made the claim for costs. The opponents would only be interested in the reasons for rejecting of claims. The argument relating to "full reasons" failed as there was no evidence of the alleged refusal to supply reasons adduced before the Master. (3) The claimants alleged that the assessor's allowance of costs under an order of Windeyer J contravened orders of the Court of Appeal. In fact the matter heard by the Court of Appeal was limited to issues the trial Judge had earmarked for separate determination (SCR Pt31, r6(c) and Pt8, r6). The order of Windeyer J related to that part of the proceedings which had not been separately determined and was therefore totally valid. Kennedy Miller Television Pty Ltd v S J Lancken (unreported, CA, 1/8/97). Priestley, Handley and Powell JJA This is a summons for leave to appeal from a decision of Master Harrison who dismissed an appeal by the claimants from a decision of Mr Dwyer, a costs assessor. The appeal to the Master, brought as of right under s208 L of the Legal Profession Act 1987, was limited to questions of law. The grounds of appeal stated in the summons which were argued before the Master alleged errors of law by the assessor in that - (a) He allowed costs to the opponents, Mr & Mrs Kirkness, for court appearances when they were acting for themselves in the original litigation; (b) Allowed witness expenses to the opponents for court appearances when they were acting for themselves; (c) Allowed costs for general skill, care and responsibility for work done by the opponents when they were acting for themselves; (d) Allowed costs in the original litigation for work done between 24 June 1992 and 6 July 1993, contrary to the orders of the Court of Appeal of 16 August 1994. 2 UNREPORTED JUDGMENTS The appeal was heard by the Master on 3 October 1997 after the decision of Sperling J in Kennedy Miller Television Pty Ltd v S J Lancken (unreported 1 August 1997) that costs assessors are bound, on request, to give reasons for their decisions. The Master gave judgment in the appeal on 22 October rejecting all the grounds argued. The summons for leave to appeal states eight grounds for the grant of leave which relevantly are that the "short" reasons given by the assessor were inadequate, that the assessor erred in refusing to give "full reasons" despite a request to that effect from the claimants contrary to the decision of Sperling J, and error in rejecting the four grounds of appeal argued before the Master. The assessor gave short reasons for his decision to disallow a substantial part of the costs claimed by the opponents in a letter of 19 March 1997 to their solicitors but, unsurprisingly, gave no reasons in that letter for his decision to allow the balance of the costs claimed. The claimants cannot complain of the failure of the assessor to give reasons to the opponents for allowing the claims that he did because they would only be interested in his reasons for rejecting their claims. The first ground therefore fails. The second ground is that the assessor declined, despite their request, to give the claimants "full reasons" for his decision to allow the balance of the costs. There is no evidence before the Court of this request or refusal which apparently were verbal but this is not surprising because the point was not raised before the Master. This and related grounds must also fall. The next three grounds in the summons allege that the Master erred in rejecting the grounds of appeal argued before her because her decisions were based on "inadequate evidence" or "a total lack of evidence" as to the reasons of the assessor. These grounds, in terms, fail to allege any error of law. Moreover the claimants, as the appellants before the Master, had the onus of placing before the Court the necessary evidence which would enable the errors of law they relied upon to be identified. If the evidence before the Master did not enable this to be done, the appeal would necessarily fall. These grounds therefore establish no basis for the grant of leave. We have read the Master's reasons for rejecting the first three grounds of appeal argued before her and it does appear that there was sufficient evidence to enable the alleged errors of law to be identified. The Master concluded that the assessor had not committed any error of law in arriving at the decisions in question. As to these grounds, the appeal to the Master failed on its merits and no attempt has been made in the summons, or in the written submissions filed on behalf of the claimants, to establish error in this part of her decision. The remaining ground in the summons alleges error in allowing costs to the opponents under an order of Windeyer J of 13 September 1993 contrary to the orders of this Court of 16 August 1994. The orders of Windeyer J were made in proceedings commenced by the opponents by summons in the Equity Division (3114/92). In June 1992 Brownie J heard issues which he had ordered to be separately determined pursuant to SCR Pt31. He delivered his reserved judgment on 6 July 1993 and made orders in respect of the issues raised by paral-para3 of the summons. The order for separate determination was varied to exclude an issue he had not determined (Blue appeal book 16) and he directed that the remaining issues be determined by another Judge or by a Master. The issues separately determined were brought on appeal to this Court which, on 16 August 1994, reversed the decision of Brownie J, set aside his orders, and ordered that "the proceedings be dismissed with costs" (Blue appeal book 31-43). URJ LANG v KIRKNESS (Priestley, Handley and Powell JJA) 3 In the meantime the balance of the original proceedings were being heard in the Equity Division. On 13 September 1993 Windeyer J made orders declaring the rights of the opponents, noted an agreement between them for the carrying out of building works on the right-of-way, and made an order (O5) that the claimants pay the opponents' costs "from the hearing in June before his Honour Mr Justice Brownie to the date of taking out of these orders" (above, 18-21). There can be little doubt that the hearing in June referred to was the hearing in June 1992. These orders of Windeyer J have been passed and entered. As orders of the Supreme Court, a superior court of general jurisdiction, they are binding on the parties unless and until set aside and they cannot be questioned in collateral proceedings such as the assessment of costs. There is no substance in the claim that these orders were set aside by the order of this Court of 16 August 1994. The Court had heard and determined an appeal from questions separately determined by Brownie J, and the remaining questions raised by the summons were not before the Court of Appeal, and were not dealt with or disposed of by the appeal. The order dismissing "the proceedings" with costs made by this Court, construed in the light of the order for the separate determination of the issues raised by prayers 1-3 of the summons, is simply an order dismissing those parts of the proceedings (SCR Pt31, r6(c) and Pt8 r6). The balance of the proceedings remained on foot, as did the orders of Windeyer J of 13 September 1993. This ground in the summons also fails. The summons should therefore be dismissed with costs. Summons dismissed with costs. Counsel for the appellant: S C Churches Solicitors for the appellant: Envirolawyers, Newtown Counsel for respondent one and two: P Lowson Solicitors for the respondent: McDonald & Matters