Stephen Rae v Ross Hill & Associates [2004] NSWSC 595

New South Wales Supreme Court

CITATION : Stephen Rae v Ross Hill & Associates [2004] NSWSC 595 HEARING DATE(S) : 5 July 2004 JUDGMENT DATE : 7 July 2004 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : Appeal dismissed

CATCHWORDS : Appeal against determination of costs assessor - no question of principle LEGISLATION CITED : Legal Profession Act 1987 PARTIES : Stephen Rae Ross Hill & Associates FILE NUMBER(S) : SC 12820/03 COUNSEL : Plaintiff: In person Defendant: Mr J Trevallion SOLICITORS : Plaintiff: Defendant: Ross Hill & Associates

LOWER COURT Costs assessment JURISDICTION : LOWER COURT 90187/03 FILE NUMBER(S) : LOWER COURT Mr P Scammell JUDICIAL OFFICER :

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

Master Malpass

7 July 2004

12820/03 Stephen Rae v Ross Hill & Associates

JUDGMENT 1 Master: The plaintiff is in custody (Lithgow Correctional Centre). He appears in person. 2 He pleaded guilty to a charge of causing grievous bodily harm with intent to murder. He was convicted and sentenced. An appeal against the severity of sentence was dismissed. The plaintiff informs the Court that he has now taken steps to have that appeal re-opened. 3 The defendant is named as "Ross Hill & Associates". Mr Hill acted for the plaintiff in his appeal. 4 The costs of the appeal were referred by the plaintiff to a costs assessor (Mr Scammell). The application for assessment put into dispute the whole of the bill (a sum of $21,580). In fact, what was in dispute was no more than part of the bill (including an amount of $5,000). The costs assessor made a determination. His certificate was issued on 8 August 2003. The sum of $21,364.20 was determined as a fair and reasonable amount of costs. 5 The plaintiff did not seek a review by the panel. Instead, he has brought an appeal to this court. He seeks relief pursuant to both ss208L and 208N of the Legal Profession Act 1987 (the Act). 6 Section 208L enables the court to intervene only where there is a matter of law. Section 208N enables the court to grant leave where it is in the interests of justice to do so. 7 The plaintiff has sworn an affidavit. He relies on that affidavit as setting forth the basis of his appeal. 8 He has supplemented the contents of his affidavit by both written and oral submissions. In his oral submissions, he addressed certain specific matters which appear to be those matters which he regarded as of being important in his case. 9 I have carefully read both the affidavit and the written submissions. I have carefully listened to the oral submissions. In my view, there is nothing in this material which discloses any matter of law or any matter justifying the grant of leave. In my view, the appeal is misconceived. 10 During the course of submissions, some reference was made to referring the appeal to a panel. In view of what has been earlier said, there would be no utility in that course. 11 Whilst I have already dealt with the appeal in a general sense, I shall now proceed to briefly make specific mention of certain of the matters that were the subject of oral argument. There were presented as matters entitling him to relief. 12 An amount of $5,000 was paid to the defendant for psychiatric reports. It seemed to be common ground that the defendant gave advice in respect of those matters (which was initially accepted by the plaintiff) and received instructions to use those moneys for other purposes. Subsequently, the plaintiff changed his view on that advice and now remains unhappy with it. 13 He has referred the court to the provisions of s208D (which relates to unjust costs agreements) and to the provisions of s208P (which deals with liability of barrister or solicitor for costs). The plaintiff acknowledges that he did not raise the provisions of s208P in any of his submissions to the costs assessor. 14 Subsequent to the determination of the assessment, the plaintiff forwarded two further reports to the costs assessor. The costs assessor declined to consider that material. 15 The costs assessor has provided written reasons for his determination. He considered the matters that were put to him by the plaintiff. In my view, he correctly rejected those arguments. 16 Whilst I take the view that it is not now open to the plaintiff to raise the matters that were not put to the costs assessor, it matters not because there is no substance in any of them. 17 The plaintiff bears the onus of demonstrating an entitlement to relief. In my view, he has failed to discharge that onus. Accordingly, the appeal fails. 18 The summons is dismissed. The plaintiff is to pay the costs of the summons.