Christopoulos v Angelos [2005] NSWSC 1029

New South Wales Supreme Court

CITATION : Christopoulos v Angelos [2005] NSWSC 1029

HEARING DATE(S) : 12 October 2005

JUDGMENT DATE : 19 October 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Associate Justice Malpass at 1

DECISION : The summons is dismissed; the plaintiffs are to pay the costs of the summons.

CATCHWORDS : Determination made by costs assessor - abortive application for review - certificate filed in District Court - judgment not set aside - challenge to determination in this court brought out of time - lack of merit and of explanation for default and delay.

CASES CITED : Katingal Pty Limited & Anor v Amor & Ors [2004] NSWSC 36

Theodoros Christopoulos (First Plaintiff) PARTIES : Sotiria Christopoulos (Second Plaintiff) Nicholas Angelos (Defendant)

FILE NUMBER(S) : SC 13330/05

In person (Mr Christopoulos for the Plaintiffs) COUNSEL : Mr T Dawson (Defendant)

In person (Plaintiffs) SOLICITORS : Phillips Fox (Defendant)

LOWER COURT JURISDICTION : Costs Assessor

LOWER COURT FILE NUMBER(S) : 91311/04

LOWER COURT JUDICIAL OFFICER : Mr I Dwyer

- 5 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Associate Justice Malpass

19 October 2005

13330 of 2005 Theodoros Christopoulos & Anor v Nicholas Angelos

JUDGMENT 1 His Honour: These proceedings were commenced by summons filed on 23 July 2005. The plaintiffs are not legally represented. The first plaintiff purports to appear on behalf of both of them. 2 These proceedings represent a further attempt to continue and persist with litigation that has occupied the courts of this country for many years. Hopefully, their disposition can see it come to an end. 3 Initially, the litigation was spawned by a contest concerning a disputed right of way. It has now reached the stage where the dispute mainly concerns questions of costs. 4 Although the plaintiffs had experienced earlier success, the defendant was successful in the last bout of proceedings. He obtained orders for costs in his favour (inter alia, in the District Court). The costs were assessed by a costs assessor (Mr Dwyer). At that stage, the plaintiff had legal representation. The legal representatives participated in the costs assessment process (inter alia, they took objections and made submissions). The certificate as to determination was filed in the District Court. As such, it is taken to be a judgment of that court. 5 The judgment has not been set aside (no application was made prior to the commencement of these proceedings). The plaintiffs unsuccessfully sought a stay of that judgment. The plaintiffs unsuccessfully sought a review of the determination. This was rejected by the acting costs assessment manager (on the basis of, inter alia, the decision in Katingal Pty Limited & Anor v Amor & Ors [2004] NSWSC 36). 6 I put aside any relevant questions concerning power and validity of the decision of the acting manager on this matter (there is an obligation to refer a duly made application to the panel). Such questions were not argued before me and the application for review was doomed for other reasons. 7 The application for review was also brought out of time and no extension of time was granted by the manager, costs assessment. 8 The summons seeks the following relief:- 1. An order extending the time to appeal against the costs assessment of Ian Dwyer of Gray Perkins Lawyers ("the Costs Assessor") dated 22 March 2005. 2. An order that Phillips Fox, solicitors acting for the defendant, furnish to the Plaintiffs, an Itemised Bill of Costs referred to in paragraph 1 of the accompanying affidavit of Theodoros Christopoulos. 3. An order pursuant to Section 208L of the Legal Profession Act 1987 (NSW) ("the Act") that the Costs Assessor made an error of law when making his Costs Assessment in this matter. 4. Leave to appeal against the determination of the Costs Assessor pursuant to Section 208M of the Act. 9 The defendant has responded with a notice of motion. It seeks to have the summons dismissed (inter alia, on a summary basis). 10 It can be seen from the relief sought in the summons that having failed in an attempt to have the determination reviewed, the plaintiffs now seek to challenge the determination in this court. The challenge has not been brought within the prescribed time. Also, it does not comply with the rules of court (there is no specific statement of the grounds relied upon by the plaintiffs). For these reasons alone, the proceedings are confronted with problems. 11 As the challenge to the determination is presently incompetent, it can only proceed if an extension of time is granted. The court has a discretionary power to extend time. However, the plaintiffs bear the onus of satisfying the court that an extension should be granted. 12 Generally speaking, such an onus can only be discharged by the plaintiffs adducing evidence that satisfactorily explains the default and the delay. Also, the court usually looks at the merits of the proposed appeal. It would be an exercise in futility to extend time if the proposed challenge had no prospects of success. I shall shortly come to the questions of what merits (if any) are had by the challenge. 13 The proceedings were heard on 12 October 2005. Because of his limited English, the first plaintiff was assisted by an interpreter. He relied on the voluminous material that had been filed in support of the summons (most of which was not relevant). The defendant was represented by counsel, who opposed the granting of the relief sought. The stance was taken that for a variety of reasons the proceedings were doomed to failure. 14 Before proceeding further, I should mention certain other matters that took place prior to the hearing. The summons came before Associate Justice Harrison on 10 August 2005. It advanced to a part heard stage. The court has been informed that her Honour indicated to the plaintiffs that she was minded to follow her decision in Katingal. On the application of the plaintiffs, the hearing was stood over to enable them to make an application in the District Court for the setting aside of the judgment. Such an application was subsequently made in the District Court. It was heard and dismissed on 2 September 2005. On 30 September 2005, the proceedings were given the present hearing date. 15 Whatever prospects these proceedings may have initially had, they well and truly disappeared following the dismissal of the plaintiff's application to set aside the judgment. Be that as it may, it was not the only problem confronting the plaintiffs. 16 A regular judgment stands in the District Court. It cannot be set aside in these proceedings. 17 The application for review was dealt with administratively. There has been no challenge to the decision. 18 If the certificate as to determination can still be challenged in this court, what is available to the plaintiffs is a narrow source of relief. It has to be viewed in the context that there are no specified grounds of challenge. It needs to be borne in mind that the plaintiffs bear the onus of determining an entitlement to relief. 19 The material does not suggest that there is any decision as to a matter of law that falls within the ambit of s208L of the Legal Profession Act 1987 (the Act). Any relief that could be available under the discretionary power conferred by s208M of the Act has to be sought in the court that made the order for costs (other courts do not have jurisdiction). The power is exercised having regard to the dictates of justice. In any event, no alleged error has been shown and no other basis for the granting of leave has been demonstrated. The case for the plaintiff presents as being an attempt to have the costs assessment process re-litigated. 20 There is a lack of evidence to justify an extension of time. The default and delay has not been satisfactorily explained. In any event, there would be no utility in making such an order. The proceedings are doomed to failure. 21 For completeness, I should mention a remaining matter. Leaving aside questions of the power to do so in these proceedings, no purpose would be served by the granting of the relief sought in prayer 2. 22 The summons is dismissed. The plaintiffs are to pay the costs of the proceedings. **********