TURNER v PRIDE [1999] NSWSC 850

New South Wales Supreme Court CITATION : TURNER v PRIDE [1999] NSWSC 850 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 10921/1999 HEARING DATE(S) : 22 July 1999 JUDGMENT DATE : 26 August 1999

Ian Charles Turner PARTIES : v Neale Dennis Pride JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 92273/1998 LOWER COURT JUDICIAL OFFICER : J M Goodman

Mr M J Cohen (Plaintiff) COUNSEL : N/A (Defendant) Dr C Birch ( Amicus Curiae on behalf of the Attorney General of NSW) SOLICITORS : Smallwood Cathcart (Plaintiff) In Person (Defendant) CATCHWORDS : Assessment of costs (where there is an order for the payment of an unspecified amount of costs); Costs Assessor is obliged to comply with statutory requirements; compliance may require assessment of costs not the subject of objection; bias. ACTS CITED : Legal Profession Act 1987, S 173, s 199 - s 202, s 206 - 208, s 208A - s 208I, s 208L, s 208M. Legal Profession Regulation 1994, Division 3 clauses 25-26A, Division 4 clauses 26B - 26D, Division 5 clauses 26E - 26I. CASES CITED : Galea v Galea (1990) 19 NSWLR 263. Law Society of New South Wales v Gallagher [1999] NSWADT 8. DECISION : See paragraph 49

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 26 AUGUST 1999

10921/1999 IAN CHARLES TURNER v NEALE DENNIS PRIDE JUDGMENT 1 The Court has been told that there were earlier proceedings in this Court between the plaintiff and the defendant. Largely, what is known comes from material provided by the plaintiff. There had been an advance of $75,000.00 by the plaintiff to the defendant. There had been documentation entered into between the parties (a Deed of Trust which gave the plaintiff a beneficial interest in a property owned by the defendant). The plaintiff lodged a caveat against the title to the property. Proceedings were brought by the plaintiff for an extension of that caveat. 2 There was interlocutory activity. The proceedings were set down for hearing. The plaintiff had briefed junior counsel. The proceedings were settled on the first day of the hearing. The plaintiff obtained payment in the sum of $105,000.00. By consent, an order was made that the defendant pay the plaintiff's costs. 3 The plaintiff prepared a "Party/Party Bill of Costs". It was in the order of $79,000.00. There was dispute as to the quantum of the costs. The plaintiff made application to this Court for an assessment of the costs. The application stated that "The amount of costs in dispute is the whole bill". The application was referred to a Costs Assessor (Mr Goodman). 4 An "Objection to Bill of Costs of Plaintiff" (the objection) came before the Costs Assessor. The total of the items identified in the objection was in the order of $27,000.00. There were communications between the parties and with the Costs Assessor. 5 The Costs Assessor issued a Certificate of Determination. He determined the costs payable in an amount in the order of $30,000.00. Subsequently, the Costs Assessor was asked to provide reasons for his determination. The Costs Assessor responded by letter dated 9 April 1999 (the letter). 6 On 19 April 1999, the plaintiff filed a Summons. Relief is sought pursuant to either s 208L or s 208M of the Legal Profession Act 1987 (the Act). 7 The hearing took place on 22 July 1999. The evidence comprised an affidavit from Mr Smallwood (the solicitor for the plaintiff) and documentation tendered on behalf of the plaintiff. The plaintiff was represented by counsel. By leave, counsel appeared on behalf of the Attorney General (there was no opposition to an appearance as Amicus Curiae). The defendant appeared in person. 8 Counsel for the plaintiff has prepared written submissions. On behalf of the plaintiff, two principal submissions are made. One has been referred to as a jurisdictional matter. This was founded on s 208A (5) and the fact that the Costs Assessor had reduced the bill by more than the sum total of the objections. In support of this submission, the plaintiff sought comfort in what had been said in Law Society of New South Wales v Gallagher [1999] NSWADT 8 (G B Molloy - Judicial Member). The other was a matter of bias. The plaintiff says that there was either actual or perceived bias. There were a few other matters agitated. I will expressly refer to some of them in due course. 9 At this stage it is convenient to look at some of the provisions of the Act which deal with the matter of assessment of costs (Division 6). The starting point is the distinction drawn in the Act between applications for assessment of costs in relation to "a bill of costs" (which is defined in s 173) and applications for assessment of costs that result from an order (made by a court or a tribunal). Whilst the expression "bill of costs" might be thought to be of general application, it does not appear in the provisions dealing with costs that result from an order. 10 The entitlement to make an application is conferred by Subdivision 1. Sections 199 - 201 enable applications to be made in relation to "a bill of costs". Section 202 enables an application to be made where the costs are payable as a result of an order (any "order for the payment of an unspecified amount of costs"). It has the erroneous heading "Application for assessment of party/party costs". 11 Section 206 - 208 are of general application to all assessments. Section 206 requires the Proper Officer of the Court to refer each application to a Costs Assessor to be dealt with under the Division. Section 207 empowers the Costs Assessor inter alia to make requirements in respect of the production of documents and the furnishing of particulars. Section 208 is headed "Consideration of applications by costs assessors". Subsection (1) prohibits the determination of an application unless the Costs Assessor has complied with the requirements thereof. 12 Subdivision 2 (which comprises sections 208A - 208E) prescribes the assessment process applicable when the Costs Assessor is dealing with an application relating to "a bill of costs". Subdivision 3 (which comprises sections 208F - 208I) prescribes the assessment process applicable where the Costs Assessor is dealing with an application relating to costs payable as a result of an order. 13 When the assessment takes place pursuant to Subdivision 3, the Costs Assessor must comply with the requirements of s 208F (inter alia he must consider the matters specified in subsection (1) and he must make a determination in accordance with subsection (2)). In assessing what is a fair and reasonable amount of costs, he may have regard to any or all of the matters enumerated in s 208G. 14 Section 208L provides an avenue of appeal where there has been a decision of a Costs Assessor as to a matter of law arising in the proceedings to determine the application. Whilst "decision" is undefined, it would seem to be intended that it contemplated a "determination". 15 Section 208M prescribes the avenues for leave to appeal. Where there has been an application relating to "a bill of costs", the section enables the seeking of leave to appeal in this Court. Where there has been an application relating to costs payable as a result of an order, the section enables the making of the application for leave to the court or tribunal that made the order. 16 In addition to the provisions of the Act, there is the Legal Profession Regulation 1994 (the Regulation). Division 3 (clauses 25-26A) of the Regulation has application where there is an assessment of a bill of costs. Division 4 (clauses 26B - 26D) therein has application where there is an assessment of "party/party costs" under s 202 of the Act. Division 5 (clauses 26E - 26I) is of general application. 17 There are prescribed forms for the making of an application for assessment. In the case of "party/party costs" Form 3 has application. Paragraph 5 of that form makes provision for the providing of information relating to the matter (one of the contemplated ways of providing that information is by attachment of a copy of a bill of costs). 18 Clause 26C prescribes a procedure to be complied with before the application is made and referred to the Assessor. It affords the opportunity to make both objection to the application and response to any objection. There is no prescribed form for either the objection or the response. 19 Clause 26G is in the following terms:- "A costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties if during the course of the assessment the parties notify the costs assessor that they have agreed on the amount of those costs."