New South Wales Supreme Court CITATION : VAUGHAN v DRIVER [1999] NSWSC 680 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 11676/1998 HEARING DATE(S) : 18 June 1999 JUDGMENT DATE : 7 July 1999 MICHAEL JOHN VAUGHAN PARTIES : v ROBERT FULTON DRIVER JUDGMENT OF : Master Malpass LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 91226/96 LOWER COURT JUDICIAL OFFICER : Gordon A Salier COUNSEL : PLAINTIFF: MR ALEX CLOUT DEFENDANT: MISS E COHEN SOLICITORS : JOHNSTON VAUGHAN de MESTRE & COMPANY CATCHWORDS : Application for extension of time and for leave to appeal against determination of Costs Assessor; Failure of plaintiff to demonstrate entitlement to relief. ACTS CITED : Legal Professional Act 1987, s 208M. CASES CITED : N/A DECISION : SEE PARAGRAPH 27 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS WEDNESDAY 7 JULY 1999 11676/1998 MICHAEL JOHN VAUGHAN v ROBERT FULTON DRIVER JUDGMENT 1 A Summons was filed on 7 July 1998. It seeks relief by way of appeal from a determination of a Costs Assessor (Mr Salier) issued on 6 March 1998. An Amended Summons was filed on 17 September 1998. 2 The plaintiff is a solicitor. He was retained by Mr Kelly (inter alia in respect of proceedings brought in this Court). The defendant is a barrister. He was briefed inter alia to appear in those proceedings. It appears that there was no marked brief. He performed certain work (including appearing on three days at a hearing during June 1995). A brief had been first delivered in about November 1994 and the first work was done on 25 November 1994. The defendant rendered a Memorandum of Fees dated 31 August 1995. The total of fees claimed was $8,000.00. He has been paid $3,000.00 (two payments of $1,500.00 were made in July 1995). 3 A dispute arose as to the unpaid balance of the fees rendered by the defendant. The plaintiff claimed that there had been an agreement to the effect that the fees would not exceed $3,000.00. 4 The defendant made application to this Court for an assessment. Mr Salier was appointed as the Costs Assessor. The Costs Assessor heard from the parties (he received inter alia a Notice of Objection, a response thereto and numerous submissions). He then made a determination in the sum of $7,250.00. The certificate was issued on 6 March 1998. 5 The plaintiff made a complaint to the Legal Services Commission regarding the conduct of the defendant. The complaint was considered at a meeting held on 18 February 1999. The Council resolved that the complaint be dismissed. The plaintiff was notified of this decision by letter dated 2 March 1999. 6 On 24 September 1998 these proceedings had been stood over generally with liberty to restore on 7 days notice. This was done to abide the hearing of other proceedings. The other proceedings were disposed of on 17 September 1998. 7 The proceedings have been brought out of time (about 2 months). Accordingly, they cannot be maintained unless an extension of time to bring them is first granted by the Court. 8 On 11 March 1999, the defendant filed a Notice of Motion. It sought a dismissal of the proceedings for want of prosecution. 9 On 5 May 1999, a special fixture was allocated at the request of the parties. A hearing took place on 18 June 1999. 10 The plaintiff identified s 208M of the Legal Professional Act 1987 (the Act) as the source for the relief claimed by him. This is a provision which enables a court to give leave to appeal in an appropriate case. The Court has a discretionary power. It is exercised having regard to the circumstances of the particular case before it and so that justice is best served between the parties. The onus of demonstrating an entitlement to such relief rests with the plaintiff. 11 The plaintiff conceded that it needed an extension of time for the bringing of the application for leave. By consent, the application for extension of time and the application for leave were heard together. 12 Apart from some affidavit material, the Court had before it the Costs Assessor's file (Exhibit A) and a letter dated 28 August 1998 from the Costs Assessor (Exhibit B). 13 It appears that the Costs Assessor did not deliver reasons as such at the time of the issue of the certificate. The certificate had been issued at a time when the prevailing view was that a Costs Assessor was not required to give reasons. Subsequently, the defendant made a request for reasons. The reasons were provided in the letter dated 28 August 1998 (Exhibit B). 14 Initially, the plaintiff had proceeded to present a case on the basis that there had been a failure to give reasons. When the contents of Exhibit B had been brought to the attention of the plaintiff, there was a change of stance and the parties proceeded on the basis that reasons had been given. Later, there was some muted challenge to the sufficiency of the disclosed reasoning process. In my view, this was a contention lacking in merit. 15 Perhaps, at this stage, I should digress to observe that a mere failure to express reasons as such may be of no moment. There will be cases where the reasoning process is sufficiently disclosed from the certificate and other material (including communications passing between the Costs Assessor and the parties). This was certainly one of those cases (inter alia, in correspondence the Costs Assessor refers to "a clear issue which had developed"). This matter does not need to be further pursued because in this case the reasoning process has been expressly disclosed (both in Exhibit B and in a letter dated 10 July 1998 addressed to the Legal Services Commissioner). In my view, this material more than sufficiently discloses the reasoning process. 16 The plaintiff contends that an agreement was reached with the defendant that his fees would not exceed $3,000.00 in total. It was said to have been made in a conference when inter alia the client was present. This was the matter agitated before the Costs Assessor. This was the matter agitated before this Court. 17 The relationship between the parties is acrimonious. The defendant has vigorously disputed that any such agreement was made. He made submissions in support of that view. In those submissions, he drew attention to documentation and other matters which supported his stance. 18 The plaintiff has placed great stress on three Statutory Declarations (one of which was made by the plaintiff). The defendant did not provide any Statutory Declaration (it does not appear that he was asked to provide one). The plaintiff has adopted the stance that these declarations therefore conclusively established that the agreement as alleged was made in conference with the defendant. 19 This stance fails to address the shortcomings of the declarations and the body of other material which presents a different picture. The Statutory Declarations were short on detail and inter alia failed to identify the date of the alleged agreement (despite a request from the Costs Assessor that this matter be addressed). In presenting his case to the Costs Assessor conflicting dates appear to have been advanced as the date on which the relevant conference was said to take place (initially it was said that the agreement was reached prior to any work being undertaken). The defendant has a record of only one conference at which the plaintiff may not have been present. For present purposes, I need not dwell on other unsatisfactory features of these documents. 20 The Costs Assessor had a formidable body of material placed before him. Apart from the Statutory Declarations he had the plaintiff's file, the Notice of Objections and response thereto together with submissions and other documentation. 21 The Costs Assessor gave the plaintiff opportunity to deal with specific matters which gave him concern (see letter dated 19 January 1998). The Statutory Declarations were provided in an endeavour to deal with these matters. The Costs Assessor has expressly stated that he took these declarations into account. It is also clear that he did not prefer their contents to what was thrown up by other material. The material placed before the Costs Assessor disclosed circumstances and documentation (including the plaintiff's own documentation) which either did not support or stood in conflict with the alleged agreement. He had material which supported a finding that the defendant had agreed to appear at the rate of $1,500.00 per day. 22 In the light of all of the material, the Costs Assessor decided that on balance the issue agitated between the parties should be determined in favour of the defendant (the agreement alleged by the plaintiff could not be substantiated notwithstanding the Statutory Declarations). In my view, not only was that view open to him, it was the correct decision. 23 In my view, the plaintiff has failed to demonstrate either an error of law or any other basis which would justify the granting of relief. 24 There is clearly no utility in granting an extension of time to maintain these proceedings. In these circumstances, it is unnecessary to explore the question of whether or not a sufficient explanation has been provided for the failure to bring the proceedings in time. However, I will assist by observing that little is offered by way of explanation and it falls short of being satisfactory. 25 Accordingly, I refuse both the application for extension of time and the application for leave. I might add that the delay and the inadequacy of the explanation for the delay in bringing these proceedings to a hearing may of themselves have sufficed to justify a dismissal of the Summons. 26 For completeness, I should observe that these proceedings appear to have generated costs which are grossly disproportionate to the modest amount in dispute (in the order of $4,000.00). 27 Accordingly, I order that the proceedings be dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits are to be returned. ********** Last Modified: 07/07/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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