New South Wales Supreme Court CITATION : Bouras v Grandelis [2004] NSWSC 1117 HEARING DATE(S) : 22 November 2004 JUDGMENT DATE : 25 November 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass at 1 DECISION : The summons is dismissed; the plaintiff is to pay the costs of the summons. CATCHWORDS : Appeal from panel of costs assessors - order for payment of solicitor/client costs - not indemnity costs - ambit of appeal - not the same as error of law - does not include deficiency in statement of reasons. District Court Rules 1973, Pt 39A r13, r25(4) LEGISLATION CITED : Legal Profession Act 1987, ss208A, 208B, 208F(3), s208H(2), 208JAA, 208L, s208M Supreme Court Rules 1970, r 33 PARTIES : Lily Bouras (Plaintiff) Antonia Elizabeth Grandelis (Defendant) FILE NUMBER(S) : SC 13072 of 2004 COUNSEL : Mr P D Gray-Grzeszkiewcz (Plaintiff) Mr D P O'Dowd (Defendant) SOLICITORS : Bechara & Company (Plaintiff) Keddies Solicitors (Defendant) LOWER COURT Costs Assessment Review Panel JURISDICTION : LOWER COURT 92098 of 2003 FILE NUMBER(S) : LOWER COURT Mr J McGuther, Mr I Dwyer JUDICIAL OFFICER : - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Master Malpass 25 November 2005 13072 of 2004 Lily Bouras v Antonia Elizabeth Grandelis JUDGMENT 1 Master: The plaintiff brought a claim in the District Court for damages arising out of personal injury. She obtained judgment against the defendant in a sum in the order of $180,000. The defendant was ordered to pay the costs of the plaintiff on a "solicitor/client" basis. 2 In the making of that order, the court had in mind the provisions of Part 39A rule 25(4) of the District Court Rules (the Rules). The plaintiff obtained a judgment that was more favourable than an offer of compromise made by her. The rule speaks of costs "assessed on a solicitor and client basis". 3 The plaintiff applied to have the costs assessed pursuant to the Legal Profession Act 1987 (the Act). The application was referred to a costs assessor (Mr Lancken). The defendant filed a notice of objection. The plaintiff filed a response to the notice of objection. The assessment process took place. 4 The costs assessor approached his task on the basis that he was required to consider what costs were reasonable as between solicitor and client that should be paid by the other party. 5 On 10 March 2004, the costs assessor issued a certificate as to determination. The determination saw a reduction in the amount claimed by the plaintiff. Costs were allowed in the sum of $73,015.10. 6 The plaintiff applied to have the determination reviewed by a panel. A review then took place by a panel constituted by Messrs McGuther and Dwyer. 7 The panel approached the task on the basis that Pt 39A r 13 of the Rules had no application. The panel looked to the provisions of ss208A and 208B of the Act. The panel referred to costs "awarded on a solicitor and own client basis". 8 On 24 August 2004, the panel issued a certificate as to determination. The panel further reduced the costs and substituted the sum of $70,204.33 as the amount to be allowed. 9 By summons filed on 21 September 2004, the plaintiff brings a challenge to the determination made by the panel. The summons contains grounds of appeal. The grounds make it clear that the challenge is brought pursuant to s208L of the Act only. 10 The appeal was heard on 22 November 2004. An amended summons was filed in court. 11 Section 208L provides a narrow avenue of appeal. The appeal is restricted to cases where there is a decision as to a matter of law arising in the assessment proceedings. The plaintiff bears the onus of satisfying the court that there is such error and that it justifies the disturbing of the determination. 12 The distinction needs to be drawn between what is regarded as error of law and the narrow avenue of appeal provided by s208L. There has to be a decision. The decision has to be as to a matter of law. The matter of law has to arise in the assessment proceedings. 13 The grounds of appeal argued were:- 1. The Review Panel erred in law, in assessing costs by determining whether those costs were fair and reasonable pursuant to s208A and/or s208F(1) and (2 ) of the Legal Profession Act 1987 (LPA). The Review Panel should have assessed costs in accordance with the test in Part 39A rule 13 of the District Court Rules (indemnity costs) pursuant to s208F(3) LPA. 2. The Review Panel erred in law, in determining charges for incoming facsimiles, by not taking into account the Costs Agreement, pursuant to the prohibition in s208H(2) LPA. Section 208H(2) has no application to an assessment of indemnity costs. 3. The Review Panel erred in law, in failing to give reasons, as to why the following items were not allowed: (a) Multiple letters to the Plaintiff from her Solicitor. (b) Multiple attendances on the Plaintiff by her Solicitor. (c) The Costs of the Plaintiff's solicitor reviewing the file. (d) Multiple letters requesting monies for medico-legal reports to the Plaintiff from her solicitor. 14 I turn to the first ground of appeal. In my view, Pt 39A r 13 of the District Court Rules has no application to the costs order made in this case. This provision applies to indemnity costs only. The order made by the court was that the costs be payable on a solicitor/client basis. 15 The history of the matter has seen the use of different terminology. The plaintiff has addressed argument to this question. In my view, it is of no importance for present purposes. 16 The Rules do not define what is meant by costs awarded on a solicitor and client basis. Apart from r 25, the expression does not otherwise appear in the Rules. It appears to be an anomaly. It may be a product of error and needs rectification. 17 The Rules do provide a definition of indemnity costs. The definition is to be found in Pt 39A r 13. 18 In this Court, the expression appeared in Pt 52 of the Supreme Court Rules 1970. It was defined in r 33. These provisions had application prior to 1 July 1994. 19 The definitions reveal that whilst there may be similarity, costs awarded on a solicitor and client basis and indemnity costs are not identical. Accordingly, I do not accept the submission that the order made by the District Court should be treated as an order for indemnity costs. Further, I do not consider that s208F(3) of the Act should have application in the present case. 20 Even if the submissions of the plaintiff had been accepted, I am not satisfied that a different result should have been reached on this ground of appeal. I am not satisfied that a significantly larger sum would have been assessed had the assessment process proceeded on an indemnity basis. 21 The costs have been assessed by three experienced costs assessors. I am not satisfied that an increase in the amount assessed (if any), would justify the further expense of another review. 22 I now move onto the second ground of appeal. In my view, even if it was made out, it would not justify a disturbing of the decision of the panel. 23 This ground was but briefly argued. It does not concern any significant amount. The Act has headings which are either erroneous or misleading. On what has been argued, I am not presently satisfied that s108H(2) does not apply to an assessment of costs ordered by a court on an indemnity basis. 24 I now proceed to the remaining ground of appeal. In my view, what was disclosed by the panel sufficiently revealed its reasoning process. Further, I do not consider that this ground falls within the ambit of s208L. 25 The panel was dealing with questions of fact. What was disallowed was clearly regarded as being excessive and unreasonable. 26 A failure to give reasons or sufficient reasons does not entitle the bringing of an appeal pursuant to s208L. I need not repeat what has been earlier said as to the ambit of the appeal. The matter of reasons is now a subject of statutory obligation (inserted in 1998). There is a statutory requirement that a statement of the reasons for the determination should accompany the determination (s208JAA). The section requires that the statement of reasons must be given in accordance with the regulations. If any breach of that obligation does give rise to an appellate remedy, it can only be by way of s208M. 27 In my view, the plaintiff has failed to discharge the requisite onus. The appeal fails. 28 The summons is dismissed. The plaintiff is to pay the costs of the summons. ********** Last Modified: 11/29/2004 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.