New South Wales Supreme Court CITATION : HEWITT v THE MANAGER, SUPP0RT SERVICES OF THE SUPREME COURT OF NSW & 1 ORS [2001] NSWSC 518 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 30034/01 HEARING DATE(S) : 19 June 2001 JUDGMENT DATE : 19 June 2001 Christopher Michael Hewitt (Plaintiff) PARTIES : v The Manager, Support Services of the Supreme Court of New South Wales (First defendant) Hugh Stanley McKensey, Victor John Lewis and Peter Charles Hicks (Second defendant) JUDGMENT OF : Adams J at 1 Mr A G Rogers (Plaintiff) COUNSEL : Mr I K Linwood (First Defendant) Mr T A Alexis (Second Defendant) Hewitt's Commercial Lawyers (Plaintiff) SOLICITORS : Ian Knight ( First Defendant) Harris Wheeler (Second Defendant) CATCHWORDS : Application for review of costs - assessment - whether giving notice is jurisdictional prerequisite - notice only relevant to costs of review LEGISLATION CITED : Legal Profession Act 1987 DECISION : The application for review is to be referred to a review panel. ; Order that the proper officer is to pay the costs except as to 25 percent of the plaintiff's costs of today which are to be paid by the second defendant. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADAMS J TUESDAY 19 JUNE 2001 030034/01 CHRISTOPHER MICHAEL HEWITT v THE MANAGER, SUPPORT SERVICES OF THE SUPREME COURT OF NSW & 1 ORS JUDGMENT 1 HIS HONOUR: This is a matter in which there was a determination of costs. The plaintiff was unhappy with that determination and proposed to seek a review. An application for review of determination was provided for by s 208KA of the Legal Profession Act 1987 (the Act). Section 208KA(1) of the Act requires that an application must be made within 28 days after the issue of a certificate under s 208J of the Act setting out the determination of the cost assessor. The determination of the cost assessor in this case was made on 5 October 2000. An application for review was filed on 27 October 2000 and accordingly within the prescribed time limit. However s 208 KA(5) provides - "A party who applies for a review under this Subdivision must ensure that notice of the application is given to the other parties to the assessment not less than 7 days before the application is made or as prescribed by the regulations." 2 Section 208KB provides that where the application for a review "is duly made, the proper officer of the Supreme Court is to refer the application to a panel." The proper officer declined to refer the application to a panel, being of the view that proper notice had not been given. The plaintiff seeks a declaration that the application was duly given and consequential relief. 3 It is submitted on behalf of the second defendant that notice within the meaning of s 208KA(5) was not given. The plaintiff has tendered correspondence which, it is submitted, amounts to such notice. There is an argument as to whether sufficient notice was given as the correspondence is somewhat ambiguous. If it were necessary for me to do so I would conclude that, in the circumstances, it sufficiently conveyed the message that it was proposed to apply for review. However, I am of the view that it is unnecessary for the proper officer of the Supreme Court to ascertain whether, indeed, adequate notice is given under s 208KA(5) before referring the application to a panel. 4 I do not consider that the giving of notice goes to the jurisdiction of the panel to review the determination of a cost assessor. The provisions of s 208KA(5) are designed to encourage settlement, if possible, of the cost dispute before an application is made. The consequence of failing to give notice may be taken into account on the question of costs by the panel exercising its jurisdiction under s 208KH of the Act. 5 In the circumstances, I do not think it appropriate for the Court to make orders to its proper officer. The expectation will be that the proper officer will act in accordance with the judgment. 6 I order that the proper officer is to pay the costs except as to 25 percent of the plaintiff's costs of today which are to be paid by the second defendant. ************* Last Modified: 06/25/2001 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.