New South Wales Supreme Court CITATION : Caballero v Andrew Fegent & Co; Andrew Fegent & Co v Caballero [1999] NSWSC 1117 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11258/99; 12087/99 HEARING DATE(S) : 16 November 1999 JUDGMENT DATE : 19 November 1999 No 11258/99 Jean Caballero (Plaintiff) Andrew Fegent & Co (Defendant) PARTIES : No 12087/99 Andrew Fegent & Co (Plaintiff) Jean Caballero (Defendant) JUDGMENT OF : Master Harrison COUNSEL : N/A No 11258/99 Mr K Ramrakha (Plaintiff) Mr D Mereghello (Defendant SOLICITORS : No 12087/99 Mr D Mereghello) (Plaintiff) Mr Ramrakha (Defendant) CATCHWORDS : Appeals against a costs assessor ACTS CITED : Legal Profession Act 1987 (NSW) (as amended) Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729 CASES CITED : Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996 Master Greenwood) Larsen v Vile [1999] NSWCA 397 DECISION : See para 12 6 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER HARRISON FRIDAY, 19 NOVEMBER 1999 11258/99 - JEAN CABALLERO v ANDREW FEGENT & CO 12087/99 - ANDREW FEGENT & CO v JEAN CABALLERO JUDGMENT (Appeals against a costs assessors decision) 1 MASTER: Both parties have appealed the decision of costs assessor Leonard S Hattersley dated 29 April 1999. By summons filed 25 May 1999 Ms Caballero seeks leave to appeal the decision of the costs assessor pursuant to s 208A (1)(b) of the Legal Profession Act 1987 (NSW) (as amended) (the Act). By summons filed 24 August 1999, Andrew Fegent & Company seeks firstly, that leave to appeal out of time be granted and secondly, leave to appeal the certificate as to determination of costs. 2 Ms Caballero sought an adjournment on the morning of the hearing which was refused (see separate judgment). Mr Fegent a solicitor (the former solicitor) acted for Ms Caballero in a personal injury matter until his instructions were terminated and another solicitor took over carriage of the matter. It is the former solicitor's costs and disbursements incurred in the personal injury matter which are the subject of the bill of costs that was assessed. Mr Ramrakha appeared on behalf of Ms Caballero as a solicitor and amicus curie. He submitted that Ms Caballero was seeking leave to appeal pursuant to s 208M of the Act not s 208A(1)(b) as indicated in the summons. The Ms Caballero relied on her affidavit sworn 3 August 1999. There are no annexures attached to that affidavit. The former solicitors Andrew Fegent & Company relied on the affidavits of Daniel Meneghello sworn 17 September 1999 and 20 August 1999. Mr Fegent's application for an extension of time to appeal 3 The court has a wide discretion when considering whether or not to extend time to appeal. The ultimate test is to do justice between the parties. As a general rule, time will be extended if there is no prejudice to the other party and appropriate orders for costs or the imposition of other terms of the extension adequately protect their position. 4 The costs assessor gave no reasons for his decision on 29 April 1999 and it would appear that he was not asked for the - see Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729. The summons was not filed until 24 August 1999, about three months out of time. No explanation was given for the delay. Accordingly, Mr Fegent's application for an extension of time to appeal is refused. If I am wrong in this, I turn to consider whether leave to appeal should be granted. Applications for leave to appeal by both Mr Fegent and Ms Caballero 5 Section 208M of the Act provides: "(1) A party to an application relating to a bill of costs may, in accordance with the rules of the Supreme Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor. (2) A party to an application relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor. (3) The Supreme Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal. (4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given." 6 In seeking to appeal under s 208M the applicant requires material, other than, or in addition to, a point of law in order to be successful. This section provides that such an application requires leave in accordance with the rules of the court. 7 I have read Master Greenwood's decision in Busuttil v Holder & Anor (NSWSC, unreported 9 August 1996). In particular I agree with his comments on the applicable test for leave. He says: "Thus whilst each application for leave to appeal is to be determined on its merits and I heed the statement of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 that it is "unnecessary and unwise to lay down rigid and exhaustive criteria" for the grant of leave to appeal, as the circumstances of different cases are "infinitely various"" I can see nothing in what is before me that leads me to a conclusion that I ought to look to the question of leave other than to apply the criteria of an obvious error on the face of the record and substantial injustice done to the plaintiff if the determination of the costs assessor is allowed to stand." 8 Neither party put the costs assessor's reasons for his decision in evidence. Mr Fegent complained that the costs assessor disallowed a considerable number of items (totaling $3,836) which the costs assessor found principally related to legal services performed in the conduct of proceedings under the Workers Compensation Act and in respect of which no recovery is permitted from the defendant in the personal injury matter. Mr Fegent submitted that the costs assessor erred in his reasoning and that he was entitled to charge for perusal of medical reports, correspondence, statements and other work done to do with previous workers compensation proceedings in furtherance of the common law proceedings. Mr Fegent also complained that the costs assessor reduced profit costs in the sum of $2,657 by reducing charges rates for an employed solicitors from $250 per hour to $160 per hour and paralegal rates from $150 per hour to $70 per hour. Mr Fegent says that the costs assessor did not pay due regard to the experience level of the employed solicitor engaged on the file or the skill and experience level of the paralegal also working on the file. 9 Mr Fegent does not dispute disbursements as allowed by the costs assessor in his certificate of determination of costs, nor items 1 to 53 in the bill of costs. Mr Fegent says that from the date of taking instructions on 7 July 1995 to the date instructions were terminated on or about 1 May 1997, he undertook all reasonable and necessary steps to prepare Ms Cabarello's case for hearing. Ms Cabarello complains that her former solicitor filed an incorrect statement of claim, arranged a medical appointment when she was not available, did not prepare the matter for hearing properly, and charge for items that were not referrable to the common law proceedings. The Court of Appeal in Larsen v Vile [1999] NSWCA 397 has recently considered whether the costs assessor erred in attributing costs to workers compensation proceedings or common law proceedings. 10 The bill of costs sought that Ms Cabarello pay Mr Fegent the sum of $24,803.74. This sum was reduced by the costs assessor to $15,427.80. Without the costs assessor's reasons it is difficult to discern whether the costs assessor has erred. It is my view that there is no obvious error on the fact of the record nor will there be substantial injustice done to either party if the determination of the costs assessor is allowed to stand. Ms Cabarello and Mr Fegent's applications for leave to appeal are refused. The costs assessor's determination of 29 April 1999 is affirmed. The summonses are dismissed. Each party is to pay his/her own costs. 11 The order I make in proceedings 12087/99 is: (1) Mr Fegent's application for an extension of time to lodge an appeal is refused. 12 In both matters: (2) The application for leave to appeal is refused. (3) The decision of the costs assessor of 29 April 1999 is affirmed. (4) The summons is dismissed. (5) Each party is to pay his/her own costs. ********** Last Modified: 11/22/1999 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.