DUBOW v MILLER GODDARD [1999] NSWSC 465

New South Wales Supreme Court CITATION : DUBOW v MILLER GODDARD [1999] NSWSC 465 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 11683/1998 HEARING DATE(S) : 13 May 1999 JUDGMENT DATE : 20 May 1999

PARTIES : YOLANDE VICTORIA FRANCES DUBOW v MILLER GODDARD JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 90209/1998 LOWER COURT JUDICIAL OFFICER : Mr Leonard S Hattersley

COUNSEL : Not Applicable SOLICITORS : PLAINTIFF: IN PERSON - UNREPRESENTED DEFENDANT: MILLER GODDARD CATCHWORDS : No question of principle involved ACTS CITED : Legal Profession Act 1987 s 208L, s 208M. CASES CITED : Kennedy Miller Television Pty Limited v Lancken (1 August 1997). DECISION : SEE PARAGRAPH 20

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 20 MAY 1999

11683/1998 YOLANDE VICTORIA FRANCES DUBOW v MILLER GODDARD

JUDGMENT 1 In 1996, the plaintiff instructed the defendant (a firm of solicitors) to act on her behalf in relation to a property settlement matter. Proceedings were instituted and set down for hearing to commence on 8 December 1997. Counsel was briefed (Mr Brereton). The matter was resolved by compromise. 2 The compromise was effected on the first day of the hearing (8 December 1997). The parties executed a Deed. In substance, the compromise saw the plaintiff receiving the sum of $50,000.00 inclusive of costs. There is material to support the contention that the settlement was reached on the basis that the plaintiff's costs would be about $20,000.00. 3 It appears that initially an estimate in the sum of about $10,000.00 for costs may have been given. Later, the plaintiff was informed that the sum of $20,000.00 was a more realistic figure. At about the time of the execution of the Deed the plaintiff signed a written acknowledgment in the following terms:- "I also acknowledge that the amount payable pursuant to the said deed of $50.000.00 includes payment of your costs and disbursements of acting for me less amounts previously paid pursuant to agreement dated 12 April 1996 which costs are approximately $20.000.00. but not in excess of that amount." 4 The defendant rendered a Memorandum of Costs and Disbursements in the sum of $19,623.50. It was dated 5 January 1998. 5 The plaintiff applied to this Court for an assessment of the defendant's costs. The Court appointed a Costs Assessor (Mr Hattersley). He received submissions (including a detailed objection from the plaintiff and a response from the defendant). On 15 June 1998, he issued a Certificate of Determination assessing the costs in the sum of $18,732.50. The certificate noted a credit to be given to the defendant for the sum of $11,900.00 paid on account. The plaintiff was to pay the sum of $6,832.50. 6 These proceedings were commenced by Summons filed on 9 July 1998. The Summons sought relief pursuant to inter alia sections 208L and 208M of the Legal Profession Act 1987 (the Act). Section 208L provides a limited avenue of appeal where there is a matter of law arising in the proceedings to determine the application for assessment. Section 208M enables the making of an Application for Leave to Appeal. The Summons contains what is described by the plaintiff as a "brief but specific statement of the grounds of appeal". 7 The relief sought pursuant to s 208L has been determined by Master Harrison. It was argued that the Costs Assessor had failed to provide reasons and that there was a reasonable apprehension of bias. The Master delivered a reserved judgment on 30 September 1998. The Master was not satisfied that the Costs Assessor had erred in law and dismissed the appeal. The Application for Leave to Appeal was stood over generally. The Court has been informed that this was done because the plaintiff was not then ready to argue the application for leave. 8 Subsequently the application for leave was fixed for hearing. The hearing took place on 13 May 1999. The plaintiff has relied on a number of affidavits. It was common ground that this material should be received on the basis of the evidentiary rulings made by Master Harrison. The plaintiff tendered the documents which comprise Exhibit A. This material had been placed before the Costs Assessor (submissions and response). The defendant relied on the affidavit sworn by Mr Miller. In addition to this material, the Court had placed before it detailed documentation prepared by the plaintiff by way of submission. This material considerably expands what is set forth as "the grounds of appeal" in the Summons. 9 Subsequent to the judgment of Master Harrison a request for reasons was made to the Costs Assessor. He responded by letter dated 19 October 1998 (a copy is annexed to one of the plaintiff's affidavits). 10 The letter from the Costs Assessor dated 19 October 1998 informs as to a number of matters. I shall mention a few of them. It informs that he had reviewed the material before him at the time of the making of his determination. It informs that he had taken the submissions and objections into account in reaching that determination. It informs that he deducted the sum of $900.00 in aggregate from the costs and disbursements claimed by the defendant. It identifies the items in respect of which the adjustments were made. It informs that as to the other items he considered that the costs charged in respect of each of them were fair and reasonable and were allowed on that basis. 11 Section 208M confers a discretionary power on the Court. There was some conflict between the parties as to the basis upon which leave is granted. There was reference to passages in the judgment of Sperling J in Kennedy Miller Television Pty Limited v Lancken (1 August 1997). In my view, the power is exercised having regard to the relevant circumstances of the particular case before the Court. Leave may be granted in those cases where it is considered that the best interests of justice are served by so doing. The applicant for leave bears the onus of satisfying the Court that relief should be granted. 12 At this stage, I should mention a few matters. The plaintiff has informed the Court that an appeal has been lodged against the judgment delivered by Master Harrison. She has further informed the Court that the matter will be proceeding to the Court of Appeal. The amount in dispute is less than $7,000.00. This Summons alone has gone to a hearing on two days. 13 The plaintiff appears in person. In her material, she describes herself as inter alia a fully qualified legal practitioner who has appeared for clients in this Court. (However, I note that she also describes herself in the material as "the lay person in this instance" and as a person holding a senior position in this Court). The defendant is represented by Mr Miller (he is the solicitor who had the conduct of her property settlement matter). 14 The stance taken by the plaintiff was that her case was as set forth in the written submissions. She did make oral submissions. However, these merely stressed a few of the matters raised in the written material. I do not propose to embark on a process of devoting exhaustive and detailed attention to each of the many matters sought to be agitated in the written submissions. This application can be dealt with without taking that course. 15 I have read the submissions made by the plaintiff. I have given them careful consideration. I shall make some general observations as to what is agitated in this material. There are matters which are of no relevance to this application. There are matters which are lacking in factual foundation. There are matters which were not put in issue before the Costs Assessor. There was an attempt to re-agitate matters which had been dealt with by Master Harrison. There were other matters which (if they had been arguable) may be said to fall within the category of errors of law which had not been argued when the matter was before Master Harrison. In my view, none of the matters agitated had merit. 16 Before proceeding further, I should mention one matter. It may be that the Court does not have before it all of the material given to the Costs Assessor. The file in application proceedings was not before the Court. The plaintiff has made reference to an unsigned bill of costs dated 20 January 1998. It has not been put before me. The material before the Court suggests that the plaintiff's application proceeded as an assessment of the signed Memorandum of Costs and Disbursements dated 5 January 1998 and that this was the bill assessed by the Costs Assessor. 17 I am not satisfied that the plaintiff has demonstrated an entitlement to the grant of leave pursuant to s 208M. In my view, justice is best served between the parties by dismissing the application. 18 I should add that in performing the assessment task, the Costs Assessor was confronted with a significant volume of material concerning a bill claiming a reasonably modest sum. During this hearing, the Court was not taken to the detail of this material. On what has been put by the parties, I am not satisfied that he did not have regard to submissions and objections made to him. The Costs Assessor allowed what he regarded as being fair and reasonable. If it be that there has been some oversight, I do not consider that it would give rise to any question (if sustained) of sufficient magnitude to justify the granting of leave and putting the parties to the hearing of an appeal and perhaps a further determination. I am not satisfied the Costs Assessor has done other than perform his task in accordance with the statutory requirements. 19 The costs and court time now consumed by these proceedings is manifestly disproportionate to the amount said to be in issue. The defendant contends that these proceedings are vexatious. It seems to me that there is force in that contention. I observe that the plaintiff has informed the Court that other litigation is also contemplated. 20 I dismiss the Summons. The plaintiff is to pay the cost of the Summons. The exhibit may be returned. **********