New South Wales Supreme Court CITATION : FIRTH v WESTBURY [1999] NSWSC 372 CURRENT JURISDICTION : COMMON LAW FILE NUMBER(S) : 10692/98 HEARING DATE(S) : 25 March 1999 JUDGMENT DATE : 22 April 1999 STEPHEN PAUL FIRTH PARTIES : v TAMMY WESTBURY JUDGMENT OF : Master Malpass LOWER COURT JURISDICTION : Costs Assessor LOWER COURT FILE NUMBER(S) : 90728/96 LOWER COURT JUDICIAL OFFICER : Mr L S Hattersley COUNSEL : PLAINTIFF: MR R GOODRIDGE DEFENDANT: N/A SOLICITORS : PLAINTIFF: FIRTHS DEFENDANT: HOGAN GEIKIE POOLE CATCHWORDS : APPEAL; decision as to matter of law arising in the proceedings to determine the application for assessment; reasons. ACTS CITED : Legal Profession Act, 1987, 175, 178, 188, 188 (1) (b), 208C, 208L, 208M. CASES CITED : Bacha v Pettersen (3 December 1998). Madden v NSW IMC (1999) NSWSC 196. DECISION : SEE PARAGRAPH 27 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS March 1999 10692/98 - Firth v Westbury JUDGMENT 1 The plaintiff is a solicitor. His firm acted for the defendant in two District Court proceedings. Claims for damages were made in respect of two motor vehicle accidents. 2 The plaintiff presented the defendant with a proposed costs agreement for each of the proceedings. There was a lengthy conversation had concerning the proposed agreements. It appears that the proposed agreements were not acceptable to the defendant. She prepared her own agreement. It is set forth in a letter dated 11 March 1995. It contained provision for costs on the following basis:- "Your firm pays all future disbursements. If the verdict is against me, then I do not pay anything; if the verdict is for me, then from whatever the Court awards me: Firstly, you pay me $717.50 for disbursements I have paid thus far for these 2 cases (for police reports, Section 12 & 36 Certificates, medical report fees, Police accident report fees, District Court filing fees, Process Service fees etc) Secondly, you reimburse your firm for disbursements paid on my behalf (this is not to include office type expenses such as photocopying, postage, stationery, phone calls, misc) Thirdly, you pay your firm for acting on my behalf, an amount less than or equal to half the balance of whatever the Court awards less the two disbursement items above (this amount you are paid for your services includes the office type expenses noted above) You pay me the balance. ie whatever the Court awards less the three items above (this is at least half the balance of whatever the Court awards less the 2 disbursements items above)." 3 The plaintiff advised that he was prepared to proceed on the basis of the fee agreement set out in the letter. 4 I should digress to say at this stage that it was argued by the plaintiff that this agreement should, to put it broadly, be seen as an amendment of the proposed agreements. I do not accept that submission. 5 The two District Court proceedings were settled. In one of the proceedings, the plaintiff obtained judgment in the sum of $35,000 (inclusive of costs). In the other proceedings, there was judgment for the defendant and no order was made as to costs. 6 Prior to the settlement, an authority to settle was given by the plaintiff. It contained, inter alia, the following:- "15. In that document the defendant in her own hand has written: 'As per our fee agreement $717.50 is paid to me. You then reimburse yourselves for your disbursements on my behalf. Julia has said that this is $880. Another $190 is paid for outstanding medical expenses. The balance of $35,000 rounded is $16,600 which you may charge for acting on my behalf as maximum as agreement. Comcare, being as yet an unknown figure, can be taken out of my amount.' " 7 A Memorandum Of Fees And Disbursements was prepared in respect of each of the proceedings. Both were dated 30 August 1995. In each of the proceedings, the amount charged was $8,053.75. The payment of each account was effected by the transfer of moneys from trust to general account. 8 The defendant (who was the plaintiff in those proceedings) applied for an assessment of costs under the Legal Profession Act, 1987 (the Act). There was a reference to a Costs Assessor (Mr Hattersley). Thereafter, submissions were made to Mr Hattersley. The plaintiff submitted, inter alia, that reliance was placed on section 208C of the Act and that the Costs Assessor should decline to assess the bill of costs. 9 By letter dated 18 March 1997, Mr Hattersley informed the plaintiff, inter alia, as follows:- "I take the view that the agreement made by you with Ms Westbury is void and is of no effect (see Section 188 of the Legal Profession Act 1987). In these circumstances it seems to me that there is no costs agreement in existence between you and your client and there has been a failure by you to comply with Sections 175 and 178 of the Act. The applicant is entitled to an assessment of your costs and disbursements in accordance with Section 208A and 208B of the Act and I therefore require that you furnish to me two detailed bills of costs relating to the legal services provided by you to Ms Westbury for which you charged her the fees paid to you in the amounts specified in your two lump sum memoranda of fees dated 30 August 1995." 10 The correspondence reveals that the plaintiff contemplated the bringing of an appeal against the decision made by the Costs Assessor. However, no appeal was then brought and the assessment proceeded. The plaintiff made the decision to prepare detailed bills of costs as required by the Costs Assessor (this was done "under protest and without prejudice to our right to appeal" - see letter dated 24 April 1997). The detailed bills were then furnished to Mr Hattersley. These purported to be prepared in accordance with the District Court scale. The defendant raised objections and the plaintiff responded to those objections. A determination was made by the Costs Assessor. 11 A Certificate As To Determination Of Costs was issued on 23 February 1998. The Certificate allowed the costs in the sum of $9,309.50. The Certificate was forwarded under cover of a letter dated 23 February 1998. The letter contains material relevant to the reaching of this determination. 12 On 17 March 1998, the plaintiff filed a Summons. It purports, inter alia, to be an appeal from the Certificate issued on 23 February 1998. The Summons contains "Grounds of Appeal". These grounds, inter alia, seek to challenge the decision made as to the costs agreement prepared by the defendant. It asserts error as a matter of law. 13 The appeal was heard on 25 March 1999. At the conclusion of the hearing, judgment was reserved. Later that day, a facsimile from counsel for the plaintiff was transmitted to the Court (the original facsimile). The facsimile made reference to inter alia certain decided cases. It provoked a flurry of further facsimiles. On 26 March 1999, there were two facsimiles from the solicitor for the defendant (inter alia; the opportunity to make further short submissions was sought). On the same day, there was a facsimile from the defendant herself and it requested that contact be made with her (not her solicitor) when judgment was to be delivered. This facsimile sought to canvass matters other than those raised by the references contained in the facsimile from counsel for the plaintiff. Also on that same day a further facsimile was received from counsel for the plaintiff. It enclosed a photocopy of a page from the Law Society Journal. 14 It was in these circumstances, that steps were taken by the Court to have the matter relisted. It was set down for further hearing on Thursday 22 April 1999. Notice of this hearing date was given to counsel for the plaintiff, the solicitor for the defendant and the defendant herself. On that day, the parties were given the opportunity to make submissions on matters arising out of the references mentioned in the original facsimile (being the facsimile from counsel for the plaintiff transmitted on 25 March 1999). 15 Following the completion of those submissions, counsel for the plaintiff made an application for leave to reopen and adduce further evidence. The initial application contemplated the adducing of oral evidence from the solicitor for the defendant (Mr Geikie). As this course may have involved an adjournment of the proceedings and the defendant employing other legal representation it was subsequently sought to tender documentation only (which appears to have concerned the matter of Mr Geikie's retainer). 16 The granting of such leave is discretionary. I was not satisfied that the plaintiff had demonstrated an entitlement to leave (inter alia on the grounds that I was not satisfied that the proposed evidence was admissible in the appellate proceedings). 17 I now return to the subject matter of the appeal itself. The Act contains two appellate provisions. Section 208L of the Act provides an avenue of appeal where there is dissatisfaction with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application for assessment. Section 208M enables the seeking of leave to appeal against the determination of the application made by the Costs Assessor. The plaintiff does not seek relief under section 208M. 18 The case for the plaintiff is that the Costs Assessor should have declined to assess the costs because there was a costs agreement that satisfied the requirements specified in section 208C. It is common ground that the approach taken by the Costs Assessor involved a rejection of the plaintiff's contention. 19 I do not accept the plaintiff's submission to the effect that a decision in the relevant sense was not made on this matter until the issue of the Certificate of Determination. It seems to me that the terms "decision" and "determination" are not intended to be synonymous. There are significant differences in the terminology used in the two appellate provisions. In the case of section 208L, the appeal lies in respect of a decision (not "against the determination of the application") arising in the proceedings to determine the application. It has in contemplation a "decision" made at any stage during those proceedings. The questions thrown up by these matters were not fully argued and can be put aside for another day. For present purposes, it suffices to say that the resolution of an issue raised pursuant to section 208C may constitute a decision of a costs assessor as a matter of law arising in the proceedings to determine the application for assessment. In this case, I consider that he made a decision in the relevant sense. 20 I consider that the time for the bringing of an appeal against that decision ran from the date of its making. I have had regard to the material referred to in the original facsimile and the further submissions made in respect of it. I do not consider that the material assists in the resolution of the questions raised in this case. The material mentions inter alia two cases which came before Ireland J on 31 July 1996 (involving Boris Ganke and Peter Andrew Somerset & Co). The parties have not been able to locate a copy of the judgment delivered in respect of those cases. The Court has merely been shown a copy of an article written by Susan Pattison in the Law Society Journal. The article contains some discussion concerning those cases. 21 It seems to me that these proceedings are doomed to failure. The appeal is not competent. It is brought well out of time. The decision which the Summons seeks to challenge was made in March 1997. The appeal which the plaintiff now seeks to maintain was not brought until 17 March 1998. Instead of bringing an appeal within the prescribed time, the plaintiff proceeded with the determination of the application by way of the assessment process required by the Costs Assessor in his letter dated 18 March 1997 (in the present circumstances, I do not regard the protest and attempt to reserve rights of appeal as being of moment). The Costs Assessor proceeded with the assessment bearing in mind the provisions of sections 208A and 208B. He assessed the bills prepared by the plaintiff having regard to the submissions made to him (including the defendant's objections and the plaintiff's response to those objections). In this case, it is not necessary to dwell on the consequences of the plaintiff's participation in the assessment process. 22 For completeness, it may be of assistance if a few further observations are made. The mere identification of error may not bring about an entitlement to relief. There needs to be utility in the exercise. It was open to the Costs Assessor to reject the submission founded on section 208C (without having regard to the provisions of section 188). The agreement prepared by the defendant does not satisfy, inter alia, the requirements of (1)(b). If this agreement does offend the prohibition contained in section 188, the inconsistency extends only to a part of it. In respect of this part, the plaintiff merely says that it was for the benefit of the defendant and placed a cap or maximum on the amount of costs payable by her. If this is the case, from the plaintiff's point of view, the validity of this part of the agreement is probably immaterial. It does not otherwise provide for, inter alia, the professional fees payable by the defendant. The professional fees in fact rendered by the plaintiff in August 1995 do not appear to be calculated having regard to any specified rate and the total of the fees and disbursements approached the maximum. 23 To the extent that there was a challenge to the sufficiency of the disclosure of the reasoning process between the decision to reject the plaintiff's contention, I am not satisfied that the challenge can be maintained. 24 For completeness, perhaps I should make reference to what was said in paragraphs 16 and 19 of Madden v NSW IMC (1999) NSWSC 196 and in the earlier judgment delivered in Bacha v Pettersen (3 December 1998). 25 The plaintiff may well feel that events have unfolded somewhat unfairly. It is a state of affairs that may merit some sympathy. However, he does appear to have unwittingly been the maker of at least some of the problems. 26 The onus showing an entitlement to relief rests with the plaintiff. In my view, that onus has not been discharged. 27 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. ********** Last Modified: 05/03/1999 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.