Peter Francis Gorczynski v Leichhardt Council & Anor [2007] NSWSC 202

New South Wales Supreme Court

CITATION : Peter Francis Gorczynski v Leichhardt Council & Anor [2007] NSWSC 202

HEARING DATE(S) : 5 March 2007

JUDGMENT DATE : 13 March 2007

JURISDICTION : Common Law Division

JUDGMENT OF : Hidden J at 1

DECISION : Summons dismissed

CATCHWORDS : COSTS: - application for assessment - challenge to validity of application - summons for declaratory relief - statutory avenues of appeal - whether declaratory relief available

Legal Profession Act 1987 LEGISLATION CITED : Legal Profession Act 2004 Legal Profession Regulation 2005 Interpretation Act 1987

CASES CITED : Brierley v Reeves (2001) 51 NSWLR 689 Currabubula v State Bank of NSW [2000] NSWSC 232

Peter Francis Gorczynski (plaintiff) PARTIES : Leichhardt Council (1st def) Robin Peter Mallik (2nd def)

FILE NUMBER(S) : SC 2006/30113

COUNSEL : B Skinner (plaintiff) J Trebeck (1st defendant)

Norman Waterhouse Lawyers (plaintiff) SOLICITORS : Pike Pike & Fenwick (1st defendant) I V Knight, Crown Solicitor (2nd defendant - submitting appearance)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINSTRATIVE LAW LIST

HIDDEN J

Tuesday 13 March 2007

2006/30113 Peter Francis Gorczynski v Leichhardt Council & Anor

JUDGMENT 1 HIS HONOUR: The plaintiff, Peter Francis Gorczynski, was involved in litigation with the first defendant, Leichhardt Council, in the Land and Environment Court and the Court of Appeal. A number of costs orders were made against him and, as a result, the Council is claiming costs in an amount in excess of $200,000. On 9 June 2006 the Council lodged with the Manager, Costs Assessment an application for costs assessment under s353 of the Legal Profession Act 2004. On 21 June 2006, pursuant to s357 of that Act, the Manager referred the application to a costs assessor, Mr R P Mallik. Mr Mallik is the second defendant in the present proceedings, and has entered a submitting appearance. 2 Regulation 125(1)(a) of the Legal Profession Regulation 2005 requires that, before an application is made to the Manager, it should be sent to the person liable to pay the costs with a notice informing that person that any objection to the application must be lodged with the applicant within 21 days after receipt of the notice. Any objection received is to be attached to the application before it is lodged with the manager or, if no objection is received, the applicant must certify to that effect before lodging the application: pars (b) and (c). The application may not be lodged until after any objection is received or the 21 day period during which objection may be made expires, whichever first occurs: par (d). 3 It is the Council's case that, in compliance with reg 125(1)(a), the plaintiff was personally served with the application on 17 March 2006. The plaintiff denies this, contending that the first he knew of the application was after it had been lodged with the Manager. I received evidence on this issue. The plaintiff also contends that the application lodged on 9 June 2006 was defective in form, in that it was neither signed nor dated and a number of items in the prescribed form were not completed. 4 Between June and August 2006 the plaintiff wrote on a number of occasions to the Council's solicitors, to the Manager and to the assessor, Mr Mallik, complaining about these matters and challenging the validity of the application. Over that same period the following steps, relevant to the proceedings before me, were taken: (a) On 22 June the Council's solicitors wrote a letter to the plaintiff which was said to enclose the application (that is, the prescribed form of application and the bill of costs). The plaintiff says that he received the bill of costs but not the application itself. (b) On 27 June the Council's solicitors forwarded to the Manager a formal application which was signed, dated 26 June, and appropriately completed. This document does not appear to suffer from any of the defects of which the plaintiff complained in the original application of 9 June. (c) On 28 June the Manager forwarded to the plaintiff what appears to be a copy of the original application. (d) On 4 August Mr Mallik forwarded to the plaintiff a copy of the application which the Council's solicitors had sent to the Manager on 27 June. 5 By summons, the plaintiff seeks declarations that neither the original application of 9 June nor any of the other documents to which I have referred was made in accordance with the Legal Profession Act and that each of them is of no legal effect. 6 In the letter of 4 August to which I have referred, Mr Mallik noted the plaintiff's complaints that the application had not been served on him before it was lodged on 9 June and that the document lodged on that day was defective in form. However, he expressed his conclusion that those complaints had been addressed by the subsequent filing and service of an application, appropriately completed. As I have said, he enclosed a copy of that application with the letter, and he expressed his intention to deal with the application upon the basis that any defect in it had been cured. He also allowed the respondent until 1 September to file and serve any objection he wished to make (clearly a reference to objections under reg 125). 7 The plaintiff also seeks the declarations to which I have referred "in place of the determination" by Mr Mallik that the form of application forwarded by the Council's solicitors to the Manager on 27 June and by Mr Mallik to him on 4 August cured the defects in the other documents. 8 Counsel for the plaintiff, Mr Skinner, argued that the application lodged with the Manager on 9 June was invalid and that the jurisdiction of the Manager to refer the matter to an assessor, purportedly exercised on 21 June, had not been enlivened. He argued that service of the application upon the plaintiff before its lodgement with the Manager, as required by reg 125(1)(a), was an essential prerequisite to the invocation of that jurisdiction, because the application could not be lodged until an objection had been received or the time to make one had expired: reg 125(1)(d). The application lodged on 9 June purported to certify, in accordance with par (c), that no objection had been received from the plaintiff. However, it is obvious that that certification would be nugatory, and the requirement of par (d) could not be met, if the application had not been served. 9 Mr Skinner also argued that the application lodged on 9 June was invalid because it was defective and that, for that reason alone, the statutory jurisdiction had not been enlivened. As I have said, the defects are said to be the failure to complete relevant parts of the prescribed form. The application was not signed or dated. (Nor, it is said, was the attached bill of costs.) In addition, the following items in the prescribed form were not completed: (a) Item 4, which requires the amount of costs in dispute to be specified; (b) Item 5, which requires the total amount of costs payable to be set out; (c) Item 6, which requires the date on which the application was sent to the respondent to be specified.