New South Wales Supreme Court CITATION : WOLLONGONG COUNCIL v SMITH [1999] NSWSC 473 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 12827/1998 HEARING DATE(S) : 14 MAY 1999 JUDGMENT DATE : 21 May 1999 THE COUNCIL OF THE CITY OF WOLLONGONG PARTIES : v DENNIS SMITH JUDGMENT OF : Master Malpass LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 90686/98 LOWER COURT JUDICIAL OFFICER : C R FITZSIMONS COUNSEL : PLAINTIFF: MR C W McEWEN/MR A PICKLES DEFENDANT: N/A SOLICITORS : PLAINTIFF: PEEDOM BRODIE & WARD DEFENDANT: IN PERSON - UNREPRESENTED CATCHWORDS : Appeal as to a matter of law arising in assessment proceedings; such proceedings are for assessment of costs payable in respect of legal services; costs of litigant in person providing professional services as a surveyor to his client not recoverable under order for party and party costs. ACTS CITED : Legal Profession Act 1987, s 48E, s 208L. Supreme Court Rules 1970, Pt. 52A. CASES CITED : Cachia v Hanes & Anor (1994) 179 CLR 403. DECISION : SEE PARAGRAPHS 16-17 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS FRIDAY 21 MAY 1999 12827/1998 THE COUNCIL OF THE CITY OF WOLLONGONG v DENNIS SMITH JUDGMENT 1 The defendant is a consulting surveyor and a member of the Institute of Surveyors New South Wales (Incorporated). Spaceline Engineering Pty Ltd (the client) was his client in relation to Development Applications made to the plaintiff. The Development Applications were made in the name of the defendant. The applications were approved subject to the imposition of a condition. The condition was unacceptable and it was decided to appeal to the Land and Environment Court. The defendant was instructed to act as applicant/agent in the making of the applications to that Court. 2 The applications were made by the defendant as applicant. The appeal was successful. 3 The practice of that Court in relation to such applications is for each party to pay its own costs. Costs are awarded only in exceptional circumstances. An application was made by the applicant for costs on the basis that exceptional circumstances existed in this case. The Court found that the Council had acted so as to impose an ad hoc condition, an opportunistic condition and an inconsistent condition and that those findings constituted exceptional circumstances. An order was made that the respondent (the plaintiff) pay the costs of the applicant. The effect of this order was that costs were payable on a party and party basis. 4 The defendant prepared Bills of Costs which claimed inter alia fees (calculated at an hourly rate) charged to the client in respect of the defendant's conduct of the application before the Land and Environment Court. Fees for work done on behalf of the client fall within items 1 to 105 of the bill. Items 106 and 107 related to disbursements (filing fees and miscellaneous). Item 108 relates to a disbursement for the preparation of the Bill of Costs. ($1055.87). 5 The defendant applied to this Court for an assessment of those costs. This was an application for assessment of party/party costs pursuant to s 202 of the Legal Profession Act 1987 (the Act). I should observe at this stage that this assessment process has application only to costs payable in respect of legal services (which means work done or business transacted in the capacity of a barrister or solicitor). The application was referred to a Costs Assessor (Mr Fitzsimons ). He received a notice of objections and responses from the parties. On 29 September 1998, he issued a Certificate as to Determination of Costs. The application determined the amount of costs to be paid by the plaintiff as being in the sum of $11,183.48. 6 These proceedings were commenced by Summons filed on 26 October 1998. The Summons brings an appeal pursuant to s 208L of the Act. 7 The hearing took place on 14 May 1999. The plaintiff was represented by counsel. The defendant appeared in person. 8 The Court had before it an affidavit sworn by the defendant and inter alia material placed before the Costs Assessor (including the Bill of Costs). 9 The plaintiff does not dispute that the defendant is entitled to recover the disbursements claimed in items 106 and 107 (the total of these two items is $995). It contends that there was error in law on the part of the Costs Assessor in allowing items 1 - 105 and 108. 10 In opposing the appeal, the defendant stresses that his role was that of agent acting on behalf of a client. The Land and Environment Court does allow parties to be represented by an agent. Unfortunately for the defendant and his client, because of the manner in which the proceedings were constituted, he could not be said to be an agent representing a party. As I have said, the application for development consent was made in his name. He was the applicant in the Land and Environment Court proceedings. The client was not a party. The order for costs was made in favour of the applicant (the defendant) and not the client. 11 The case for the plaintiff is a simple one. Unfortunately for the defendant and his client, the principal thrust of the appeal is also irrefutable. The Court has no option but to grant relief to the plaintiff. The Court has great sympathy for the plight of the defendant and his client. The order for costs had been made in the light of the findings of exceptional circumstances (the plaintiff had inter alia sought to impose an "opportunistic" condition). The applicant had been forced to bring an appeal to the Land and Environment Court and the client incurred his professional costs in the conduct of that appeal. It could be expected that the intended object of the costs order was to provide compensation for that expense. At the time, minds may not have been directed to the potential problems and the object has largely failed. The result may have been different (at least to some extent) if the client had been a party to the proceedings (certain additional disbursements may have been recoverable). 12 It was common ground that the defendant did not have the qualifications to provide legal services. He was providing services as a surveyor. In becoming the party to the proceedings he placed himself in the position of a litigant in person. This Court is bound by Cachia v Hanes & Anor (1994) 179 CLR 403 at 409-413. As the law presently stands, a litigant who is not a lawyer cannot recover compensation for time spent in the preparing and conducting of his case. Costs are confined to money paid or liabilities incurred for professional legal services. (see Part 52A of the Supreme Court Rules). The litigant in person is entitled to be reimbursed only for costs paid out of his pocket. Costs recoverable under the order for party and party costs do not include profit costs incurred for the providing of professional services by a surveyor. This means that most, if not all, of the costs claimed in the bill are not recoverable under the order. The Court was not taken to the detail of the items claimed and it may be possible that at least some areas could give rise to a claim in the nature of a disbursement. 13 I should add that in fact the defendant was not seeking to recover costs in respect of which he had a liability but the costs incurred by the client. However, I put this consideration aside as it was not canvassed before me (and may not have been canvassed in the submissions and objections with the Costs Assessor). 14 The plaintiff says that item 108 was unnecessary. This item was the subject of limited argument. At the very least, the quantum of the item cannot be sustained. Perhaps, there remains a possibility of some entitlement to a part of the amount claimed. 15 The plaintiff did rely on an alternative ground of appeal that there was a breach of section 48E of the Act. This provision prohibits the doing of any general legal work for a fee unless the person is a barrister or solicitor. The ground was not fully argued and it is not necessary to give it further consideration in this case. 16 In the circumstances, the Court is unable to affirm the Costs Assessor's decision. The Certificate as to Determination is set aside. Unless the parties can reach agreement, the application is remitted back to the Costs Assessor for re-determination. 17 Finally, I turn to the remaining question of the costs of these proceedings. Costs are in the discretion of the Court. However, the rules provide that costs should follow the event, except where it appears that some other order should be made (rule 11). This is a case in which the Court has great sympathy for the plight of the defendant and his client. However, in the circumstances of this case, I do not feel that the interests of justice would be best served if the Court was to make some other order. The plaintiff has been substantially successful in the appeal. Accordingly, the defendant is to pay the costs of the Summons. ********** Last Modified: 05/21/1999 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.