New South Wales Supreme Court CITATION : McCammont v Mills & Anor [2000] NSWSC 454 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12416 of 1999; 12417 of 1999 HEARING DATE(S) : 4 May 2000 JUDGMENT DATE : 29 May 2000 Loretta Margaret McCammont by her next friend Deborah McCammont (Plaintiff) v James Edward Mills (First Defendant) Craig Eric Gallagher (Second Defendant) PARTIES : Deborah McCammont (Plaintiff) v James Edward Mills (First Defendant) Craig Eric Gallagher (Second Defendant) JUDGMENT OF : Master Malpass LOWER COURT Costs Assessment JURISDICTION : LOWER COURT 91376 of 1998 FILE NUMBER(S) : 91377 of 1998 LOWER COURT Mr L S Hattersley JUDICIAL OFFICER : COUNSEL : Mr P Kennedy-Smith (Plaintiffs) Mr M W Robinson (Defendants) SOLICITORS : Hayes Partners (Plaintiffs) Mills Cameron Gallagher (Defendants) CATCHWORDS : Determination of Costs Assessor - leave to appeal and extension of time - no question of principle. LEGISLATION CITED : Legal Profession Act 1987, s 208A, s 208B, s 208L, s 208M. CASES CITED : N/A. DECISION : See paragraph 26. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS MONDAY 29 MAY 2000 12416 of 1999 LORETTA MARGARET McCAMMONT By Her Next Friend DEBORAH McCAMMONT v JAMES EDWARD MILLS & ANOR 12417 of 1999 DEBORAH McCAMMONT v JAMES EDWARD MILLS & ANOR JUDGMENT 1 Two proceedings have been brought in this Court by Deborah McCammont (one on her own behalf and the other on behalf of her daughter.) They have been listed for hearing together. The approach has been adopted by the parties of asking the court to simply hear one of the two matters (No 12417 of 1999 which is the proceeding brought by Deborah McCammont on her own behalf). It is common ground that the result in those proceedings will similarly determine the other proceedings. 2 The Summonses were filed on 5 October 1999. On their face, both sought leave to appeal against a determination of a Costs Assessor which is relief conferred by s 208M of the Legal Profession Act 1987 (the Act). These proceedings went through the usual screening processes to ensure that they were ready for hearing before being allocated a special fixture. They were set down as applications for leave to appeal for a hearing to take place on 4 May 2000. 3 A number of affidavits had been filed in these proceedings. An inspection of this material revealed that the parties had been labouring under misapprehension. It appeared that they were proceeding on the basis that applications for leave enabled a hearing de novo which was conducted on material substantially different from what had been placed before the Costs Assessor. The matter was re-listed on 27 April 2000 to enable a resolution of this problem and to ensure that time would not be wasted on the date fixed for the hearing. It appears that the listing proved to be largely abortive. The court found itself confronted by an unnecessary debacle and much time was wasted on the hearing date sorting out evidentiary and other problems. This exercise revealed a blatant disregard by the plaintiffs of the undertakings given on the obtaining of the special fixture. 4 At the outset of the hearing, counsel for the plaintiff sought both to mount an appeal pursuant to s 208L and to alter the grounds of the application. In addition to these new matters, a Notice of Motion and supporting affidavit were also produced. It appears that it had been very recently realised that the application for leave was out of time and the purpose of the Notice of Motion was to seek an extension of time for the bringing of the application for leave. After the preliminary skirmishing which saw the waste of so much court time, by consent, the court commenced to hear the applications for leave together with the applications for extension of time. The attempt to also agitate an appeal pursuant to s 208L and to rely on the altered grounds was not pressed. 5 Many of the filed affidavits were not tendered. The hearing saw the plaintiff tendering Exhibit A and reading two affidavits. The first affidavit was sworn by Mr Hayes on 22 February 2000. The second was sworn by Deborah McCammont on 26 April 2000. During the course of submissions, counsel for the plaintiff sought leave to re-open to tender a further document. This was a document which had not been before the Costs Assessor. The defendant consented to the tender and it was received as Exhibit B. 6 It is now convenient to refer to some of the factual background. The defendant was instructed to act for the plaintiffs in two proceedings brought in the District Court. The original process did not embrace any claim for exemplary or aggravated damages. Following an application to the court, leave was given to file amended process alleging exemplary and aggravated damages. Although particulars of such damages were furnished, no amended process was in fact filed. The granting of leave led to a vacation of the original hearing date. Subsequently, the proceedings came on for hearing (10 days had been set aside for the hearing). The matter of exemplary and aggravated damages was raised during the opening by counsel. The material throws up some uncertainty as to what happened in relation to it. A reading of the transcript suggests that counsel for the other party reserved his position in relation to that matter and that the question of entitlement to rely on the claim was put to one side. There appears to have been a short adjournment of the proceedings (for reasons unrelated to the parties). On the second day, the proceedings were settled. 7 Prior to the settlement, Deborah McCammont signed a document dated 20 January 1998. A copy of that document forms part of Exhibit A. It records inter alia that she elected to accept the advice of her counsel (that it was a reasonable settlement) rather than have her case decided by the court. It records that she was told inter alia that the solicitors' costs would be in a maximum of $63,500. Also, it records that she was not satisfied about the fees and wanted to negotiate further about them. It also records that if she was unable to reach agreement with her solicitors as to costs and disbursements, she would abide by any decision made by a Costs Assessor. 8 It appears that the initial bills were not acceptable. Subsequently, further bills for lesser amounts were given. Application was made to this Court for the assessment of the costs. The application was referred to the Costs Assessor (Mr Hattersley). He received objections from the present plaintiffs (inter alia there were objections to items which related to exemplary and aggravated damages). He heard submissions from the parties. In May 1999, he issued Certificates of Determination. This determination saw the rejection of objections to the items which related to exemplary and aggravated damages. Deborah McCammont made a further payment in the sum of $25,000. The certificates were amended following complaint made by her as to mathematical errors. The amended certificates were issued in September 1999. She raised further complaint as to mathematical error (and not as to any other matter). These were not accepted by the Costs Assessor. 9 For completeness it may be added that no proceedings founded on negligence have been brought against the solicitors. 10 For present purposes, it suffices to devote attention to the bill given to Deborah McCammont (the other bill was given in a much smaller amount). It was in the total sum of $58,249. She made objections to it in the sum of $40,640. The certificate allowed costs and disbursements in the sum of $46,631.06. 11 It is maintained by her that there was error by the Costs Assessor to the extent of $40,640. It has been said that the Costs Assessor misdirected himself and that he should not have allowed that part of the bill. The principal argument put in oral submission at the opening of the case is, as I understand it, that the failure to file the amended process saw the throwing away of costs in that sum. Later, there was reference to negligence, failure to comply with instructions and provisions of sections 208A and B. 12 Whilst there are also complaints about mathematical errors, I am not asked to deal with any of those matters. Counsel have reached agreement to pursue the resolution of those matters independently. 13 The court has a discretionary power to extend time. The power is exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The onus rests with the applicant to demonstrate an entitlement to relief. In dealing with such an application, apart from considerations such as the extent of the default and the explanation offered for that default, the court is concerned with the merits of the substantive application. Similarly, the court has a discretionary power to grant leave to appeal. It is also exercised having regard to the relevant circumstances and the interests of justice and the onus rests with the plaintiff. It would be futile to grant an extension of time, if no arguable basis for disturbing the decision of the Costs Assessor was demonstrated. 14 The case advanced on behalf of the plaintiffs tends to be somewhat of an elusive quarry. There were changes in presentation. I have already referred to how it was opened and then later presented. It was often difficult to relate the arguments to what happened before the Costs Assessor. 15 It is perhaps helpful to appreciate the perspective Deborah McCammont had of her District Court claims. There seems to have been a strong sense of outrage over the conduct of the party being sued. There seems to have been an unreal expectation as to what would be recoverable by way of exemplary and aggravated damages. There seems to have been an unwillingness to accept the legal advice she kept receiving (which gave little support to that expectation). 16 In a documentary presentation of the plaintiffs' case it was said that the solicitor did work negligently for which the Costs Assessor improperly awarded costs and that the application involved a question of whether a solicitor can charge for work performed due to his own negligence. 17 In opening, this negligence was identified as the failure to file the amended process. Some change in stance was introduced following the tender of Exhibit B. It is a copy of a letter dated 24 January 2000 from David Maddox. He was the counsel who appeared on behalf of the plaintiffs in the District Court proceedings. Exhibit B makes various comments on what had been said by Deborah McCammont in an affidavit. It was prepared some time after the relevant events from memory and without having the benefit of his brief. It suggests that the trial judge would not allow an amendment to add the claims for exemplary and aggravated damages. 18 If it be necessary to make a finding as to what in fact happened in the proceedings, I prefer what appears from the transcript. It would seem that the better view is that the question of entitlement to advance the claims for exemplary and aggravated damages was not resolved adversely to the plaintiffs prior to the settlement taking place. Indeed, on one view, there seemed to be good prospects of having the problem resolved favourably. 19 Ultimately, it seems to me that the resolution of that question is not of great significance. Neither the transcript nor Exhibit B were placed before the Costs Assessor. Any such question was not ventilated before him. The submission put to the Costs Assessor was to the effect that the case had been aborted and that the solicitors not only failed to file documents with the court but were negligent in incorrectly attending to other matters. 20 In dealing with these applications, it is unnecessary to pursue considerations of whether or not there was any negligence on the part of the solicitors. The material does not support the contention that the case was aborted. It does not support the contention that costs were thrown away because of failure to file the amended process. 21 The material supports the view that Deborah McCammont acted on advice from counsel to the effect that the settlement was reasonable. There is material in Exhibit B which suggests that any amendment of process may not have had any substantial effect on the amount recoverable in the proceedings. Mr Maddox appears to reject the contention that his advice to settle was based mainly on failure to file the amended process. His views are expressed in paragraph 26 of that document. It records that his advice was based on such matters as, inter alia, the prospects of success. An advice given by him in December 1997 also suggests that he had real reservations as to whether any exemplary and aggravated damages would be recovered. 22 There were a number of other heads of damages (including general damages, out-of-pocket expenses, and past and future economic loss). The exemplary and aggravated damages component did not seem to be regarded by legal advisers as the major component of the claim. The proceedings had been on foot for some considerable time before this component was raised. 23 There has been no helpful analysis of the sum total of the objections. It was first said that the amount of $40,640 related to all of the preparation costs for the whole of the case. This was later qualified. It was then said that it related mainly to the preparation costs for the claim for exemplary and aggravated damages. No real attempt was made to substantiate this assertion. I am not satisfied that it is maintainable. 24 After having fully considered all of what was put on behalf of the plaintiffs, I am not satisfied that the plaintiffs have demonstrated any arguable case for the disturbing of the determinations. In my view the determinations were open to the Costs Assessor in the light of what he had before him. 25 This finding suffices to dispose of both proceedings. It would be futile to grant an extension of time in such circumstances. I might add that whilst the default is not significant, the explanation offered for it is less than satisfactory. 26 I dismiss the Notices of Motion. In the absence of an extension of time, the applications for leave are incompetent. I dismiss both Summonses. The plaintiffs are to pay the costs of the proceedings. The Exhibits may be returned. ********** Last Modified: 09/26/2000 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. 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