New South Wales Supreme Court CITATION : Kells v Waters [2007] NSWSC 885 HEARING DATE(S) : 30 March and 29 June 2007 JUDGMENT DATE : 13 August 2007 JUDGMENT OF : Harrison J DECISION : See paragaph 93 CATCHWORDS : APPEAL – Local Courts Act s 73(2) – decision of Assessor – whether denial of natural justice or excess of jurisdiction - failure to give reasons – question of appropriate relief Legal Profession Act 2004 - ss 175, 302, 309, 322(4), 350, 367 LEGISLATION CITED : Local Courts Act 1982 - ss 70, 73(2), 74, 75, 76 Uniform Civil Procedure Rules 2005 - r 50.16 Ex parte Merchant Banking Company of London; Re Durham (1881) 16 Ch D 623 Gould v Kok (Young J, 23 May 1994, unreported) HG v The Queen (1999) 197 CLR 414 House v The King (1936) 55 CLR 499 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 CASES CITED : Pavey & Matthews Pty Ltd v Paul (1986) 162 CLR 221 National Companies and Securities Commission v News Corporation Limited & Ors (1984) 156 CLR 296 R v The War Pensions Entitlement Appeal Tribunal and Anor; Ex parte Bott (1933) 50 CLR 228 The Queen v The Commonwealth Conciliation and Arbitration Commission; ex parte The Angliss Group (1969) 122 CLR 546 Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251 Wakim v Matthew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405 Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156 John Jervis Kells (plaintiff) PARTIES : Janice Waters (first defendant) Glenn Waters (second defendant) FILE NUMBER(S) : SC 15537 of 2006 COUNSEL : Mr P Hill (plaintiff) Defendants in person SOLICITORS : John J Kells Defendants in person LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 1125/06 LOWER COURT JUDICIAL OFFICER : Assessor Connelly LOWER COURT DATE OF DECISION : 17 October 2006 - 39 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION PROGRESSIVE LIST HARRISON J 13 August 2007 15537/06 John Jervis Kells v Janice Waters & Anor JUDGMENT 1 HIS HONOUR: This is a very unfortunate matter. It came before me for the first time on 30 March 2007. I referred it to mediation. The mediation was unsuccessful. The matter came back before me for hearing on 29 June 2007. I reserved my judgment on that day. 2 The plaintiff is a solicitor. He has acted for the defendants from time to time. A dispute arose as to the payment of $5964.20 (plaintiff's written submissions par 19 and Local Court statement of claim), which the plaintiff claimed as his fees for acting for the defendants on their appeal to the District Court of New South Wales from the decision of a Magistrate in the Children's Court. The defendants refused to pay the fees. The plaintiff lodged a claim in the Small Claims Division of the Local Court at Parramatta. Assessor Connelly heard the claim on 17 October 2006. She awarded the plaintiff $1000 plus interest, $126 for filing and service fees and $455.50 professional costs. 3 The plaintiff appealed to this Court. By his Amended Summons filed 4 April 2007 the plaintiff sought orders setting aside the assessor's findings, a verdict and judgment for $6801.91 (said to be the amount of the claim in the Local Court), additional interest from 17 October 2006, plus costs in this Court and in the court below. 4 The plaintiff's grounds of appeal are manifold. They have the potential to raise for consideration a series of complicated legal and factual propositions. This litigation has both highlighted and created acrimony, rancour and suspicion between the plaintiff and the defendants. These things were in any event evident at the time of the hearing of the plaintiff's claim before Assessor Connelly, as a reading of the transcript of those proceedings clearly reveals. It is important for those reasons at least, if for no others, accurately to record the bases of the plaintiff's complaints in this Court. The grounds of appeal are as follows: - (1) The Assessor erred in law in that she exceeded the jurisdiction granted by s 350 and s 367 of the Legal Profession Act 2004 to decide applications for costs assessment by deciding: (a) issues of credit between the parties; (b) whether or not a costs agreement was in existence; (c) in the face of the plaintiff's allegation that the defendants' actions in trying to evade payment were fraudulent she continued to hear and determine the cost assessment; (d) to refuse to cease hearing the proceedings and refer them to a magistrate on the plaintiff's application that she do so. (2) The plaintiff has been denied natural justice. (3) The Assessor erred in law in the principles to be applied pursuant to s 322(4)(b) and (c) of the Legal Profession Act 2004 in finding: (a) "certainly there is nothing in writing, there is no fee agreement in writing" on which plaintiff could rely; (b) that the bill was not in proper form. (4) The Assessor erred in law in the principles to be applied pursuant to s 309 of the Legal Profession Act 2004 in finding that the defendants had not been properly informed of their rights under that Act. (5) The Assessor's discretion miscarried within the principles of House v R when she declined to accept evidence from the plaintiff in response to issues raised for the first time by the defendants in their submissions. (6) The Assessor failed to give adequate reasons for reaching her decision. * (*This ground was not included in the amended summons but is referred to in the plaintiff's submissions filed on 23 April 2007. In the circumstances, I have treated it as an elaboration of Ground 2). 5 The plaintiff appeals pursuant to s 73(2) of the Local Courts Act 1982 ("the Act"). That section provides as follows: - 73(2) A party to proceedings under this Part who is dissatisfied with the judgment or order of a Court sitting in its Small Claims Division may appeal to the Supreme Court against the judgment or order, but only on the ground of lack of jurisdiction or denial of natural justice. 6 The Attorney General's Second Reading speech to the Legislative Assembly on 22 November 1990 contained the following passage relating to s 73(2): - "There will be no appeal of any kind from the decisions of the Small Claims Division other than for lack of jurisdiction or denial of natural justice. The prohibition of appeals is quite necessary if a party is to be able to litigate in the division without the risk of suddenly escalating costs. It is also fair to argue that if the taxpayer is to fund a forum for people who decide to litigate over small matters, it should be a once-only forum and the public purse should not have to contribute the immense cost of providing an appellate procedure." 7 At least one preliminary matter requires attention. In his lengthy written submissions Mr Hill of counsel, who appeared for the plaintiff, said at par 20 that the present appeal was "an appeal as of right by virtue of s 73(2) of the Local Courts Act 1982 and by leave of the Court pursuant to s 74, granted by His Honour Justice Harrison on 30 March 2007". The first part of that submission is correct. The second part is not. The relevant portion of the transcript is as follows: - "HIS HONOUR: . . . While Mr and Mrs Waters are reading that, Mr Hill what section of the Act are you appealing under? HILL: Does your Honour mean the Uniform Civil Procedure Act? HIS HONOUR: Don't you have a section under the Local Courts Act? Do you have an appeal as of right or do you need leave? HILL: We appeal on the grounds of procedural unfairness. I think it is an appeal as of right. HIS HONOUR: Under section 73 of the Act? HILL: Yes. In addition that there has been an error of or [sic] under section 73. HIS HONOUR: Section 73(2) gives you two grounds of lack of jurisdiction and denial of natural justice - not that this appeal is incompetent. I was wondering what your reference was about a point of law? HILL: The argument is that the assessor erred in law in her analysis of the Legal Profession Act in the position she took in relationship to that Act. HIS HONOUR: Do you raise that as a jurisdictional matter or a denial of natural justice matter; or do you say that is something that is erroneous in point of law? HILL: I think that she exceeded her jurisdiction and misinterpreted what she was allowed to do under the Legal Profession Act; she was really there to do a costs assessment. HIS HONOUR: My point is directed to the distinction between two grounds of appeal set out in section 73. HILL: Under 73(1) we argue that there was an error of law. HIS HONOUR: Is this an appeal from the General Division or the Small Claims Division? HILL: 73(2) would be denial of natural justice. HIS HONOUR: I understand. What I want to know is: Do you say your claim falls within section 73(1) or (2)? HILL: 73(2). HIS HONOUR: There is no allegation of her decision being erroneous in point of law. Do I understand it is limited to allegations of either lack of jurisdiction or denial of natural justice? HILL: The amended summons addresses an error of point of law. HIS HONOUR: I see that in paragraph 3. Do you say that you have a right of appeal under 73(1)? HILL: Correct. HIS HONOUR: Was this a claim in the General Division or the Small Claims Division of the Local Court? HILL: Small Claims Division. HIS HONOUR: Enlighten me how you have a right of appeal under 73(1)? Have I missed something? HILL: I think you are right, your Honour." 8 Somewhat later the following exchange took place: - "HILL: In terms of mixed law and fact, seeking the leave of the court under section 74 - how would you deal with that in this circumstance? Having come into this at the very last moment I am somewhat at a disadvantage. HIS HONOUR: If the matters of law complained of are limited to paragraphs 3, 4 and 5 - without binding myself - my inclination would be to grant leave but I think we can put that aside for the moment." 9 The plaintiff has no right of appeal under s 74 of the Act. The plaintiff's only right of appeal from a decision made in proceedings in the Small Claims Division of the Local Court is that given by s 73(2) of the Act. Accordingly, no grant of leave to appeal under that section could have been extended to the plaintiff and no such leave was granted. The plaintiff's grounds of appeal, therefore, need to be scrutinised closely, having regard to the limited nature of the appeal, which is given by s 73(2) of the Act. 10 Section 75 of the Act describes the powers of this Court in determining appeals made under Division 3 of the Act. It is in the following terms: - 75 The Supreme Court may determine an appeal made under this Division: (a) by varying the terms of the judgment or order, or (b) by setting aside the judgment or order, or (c) by setting aside the judgment or order and remitting the matter to the Court for determination in accordance with the Supreme Court's directions, or (d) by dismissing the appeal. 11 Rule 50.16 UCPR governs the present appeal. It is as follows: - 50.16 (1) If the decision on the appeal has been given after a hearing, the appeal is to be by way of rehearing. (2) The higher court has the powers and duties of the court, body or other person from whom the appeal is brought, including powers and duties concerning: (a) amendment, and (b) the drawing of inferences and the making of findings of fact, and (c) the assessment of damages and other money sums. (3) The higher court may receive further evidence. (4) Despite sub-rule (3), where the appeal is from a judgment after a trial or hearing on the merits, the higher court may not receive further evidence except on special grounds. (5) Sub-rule (4) does not apply to evidence concerning matters occurring after the trial or hearing. (6) The higher court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made. 12 Having regard to these matters, s 70 of the Act also needs to be borne in mind. It is in the following terms: - 70 Procedure generally in Small Claims Division (1) The jurisdiction conferred by or under this Act on a Court sitting in its Small Claims Division is to be exercised by a Magistrate or an Assessor. (2) Proceedings in a Court's Small Claims Division are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (3) The rules of evidence do not apply to proceedings being heard or other proceedings in a Court's Small Claims Division. (4) Witnesses may not be cross-examined except in circumstances in which, and to the extent to which, the cross-examination of witnesses is authorised by a practice note. (5) An Assessor or Magistrate exercising the jurisdiction of a Court sitting in its Small Claims Division may inform himself or herself on any matter relating to proceedings being heard or other proceedings in the Small Claims Division in such manner as he or she thinks fit. 13 I have been provided with a full transcript of the proceedings before Assessor Connelly on 17 October 2006. It will be necessary to refer in detail to that transcript in due course. The nature of the dispute in the Local Court 14 The proceedings were commenced by statement of claim filed in the Local Court some time towards the end of May 2006. The plaintiff alleged that he acted for the defendants in the Children's Court and in accordance with s 175 of the Legal Profession Act he delivered a Fee Agreement to them dated 31 March 2005. The defendants signed the agreement. Its terms included a term providing for the plaintiff's professional hourly rate of $180 and a daily court attendance fee of $1000. The defendants paid the plaintiff's fees for that matter in full. 15 The plaintiff alleges, further, that the defendants were not satisfied with the outcome in those proceedings and wished to appeal to the District Court of New South Wales. The plaintiff alleges that at a conference between himself and the defendants it was agreed that his previous fee disclosure would apply to the appeal, with the exception that he would only charge $800 per day in court. 16 The plaintiff posted an itemised bill of costs to the defendants on 18 May 2006 with respect to the work performed by the plaintiff on the appeal. The defendants did not pay the plaintiff's costs. 17 On 30 June 2006 the defendants filed their defence. The defendants appeared before me unrepresented. The defence that they filed in the Local Court also appears to have been prepared without the benefit of legal assistance. The document commences with the words, "We have no intention to pay John Kells the amount he requests due to the following circumstances". Thereafter the defendants list 15 matters by way of complaint about the plaintiff. Having regard to the manner in which the matter proceeded before Assessor Connelly, at least the following complaints made by the defendants should be recorded: - "1. John Kells had fallen asleep in court whilst he was so called representing us. 5. No agreement was made for John Kells to represent us in the District Court, as we had absolutely no confidence in him. 8. We had told John NOT to turn up in any court hearings, as he was no longer our solicitor – but he continued to turn up. 9. John Kells had not represented us in any professional manner. 12. He absorbed very little information as he rarely had his hearing aids on." 18 The nature and extent of the plaintiff's retainer, if any, and his ability to establish that he had provided the defendants with a costs disclosure in proper form, constituted the significant points of difference between the parties. 19 It is uncontroversial that the plaintiff's costs and disclosure letter dated 31 March 2005 contained a final paragraph in the following terms: - "You may accept this offer by signing a copy of this letter and returning it to me or alternatively if I am instructed to continue to conduct this matter it is to be taken as acceptance". Whether or not those words formed part of any new costs agreement with the defendants, or if they did, whether the plaintiff was able to satisfy Assessor Connelly that they did, were central to the issues in the dispute. 20 The plaintiff submitted that there has never been any dispute between the parties as to the terms of the original engagement, and the defendants raised no objection with respect to the account rendered by the plaintiff at the conclusion of the matter in the Children's Court. Nor did the defendants take any objection to the form or content of the relevant costs and disclosure letter and the relevant account was paid in full. 21 The defendants argued that they did not enter into an agreement of any sort with the plaintiff for the work undertaken by him in the District Court of New South Wales. Alternatively, the defendants argued that they terminated any agreement between them and the plaintiff that came into existence. 22 By the time the matter came before Assessor Connelly, the defendants' position was different. The defendants continued to maintain that there was never any written agreement with the plaintiff but that there was a verbal agreement for the plaintiff to "put in the appeal, until we could get to the barrister". A slightly different version of this was that the plaintiff was to "put in the appeal, and for him to get us in contact with the barrister": see transcript p 23. The plaintiff submitted that the implication from this was that the defendants instructed counsel direct and became direct access clients. However, according to the plaintiff, he continued to represent the defendants in their District Court appeal until the date that judgment was handed down on 5 April 2006. Some preliminary matters before Assessor Connelly 23 Because the plaintiff alleges that Assessor Connelly lacked jurisdiction or alternatively denied him natural justice, it becomes helpful to review the manner in which she dealt with some preliminary matters when the matter came before her. Earlier on in the proceedings it became apparent that the plaintiff wished to rely upon a document, which arguably had been served on the defendants late. The assessor said to the plaintiff;- "Sorry, Mr Kells, in this division we don't take evidence filed on the day, unless it's by consent or I've got a really good reason. In this division what happens is that the directions are made, as I think you would all, I think you're all . . ." (transcript p 2). 24 A little later the assessor, still dealing with the same topic, said this: - "If you say that something in the defendants' statement is something that you were not aware of or took you by surprise, or was not part of anything originally within the scope of your knowledge and you needed to deal with that, then I'll hear you on that, but in respect of any statement that deals with the defence, if [sic] you've got a very good reason for why it wasn't filed in time, I wouldn't be allowing it on the day, but I'll hear from you." 25 Then later the assessor made the following comments: - "In relation to what your statement addresses that you couldn't have addressed until you got the defendants' statement, I hear from you in relation to that date and that's paragraph 7 of the defendants' statement. All right, is there anything else that you couldn't have dealt with before? . . ." ***** "In relation to the defence, what's noted in the defence, those are the only issues that I will be taking into account. New issues raised by the defendants will not be matters that I will be taking into account. But in terms of the date, I would agree with you, that the date is now specified, you should be given an opportunity to deal with that". ***** "You [i.e. the plaintiff] have addressed some of the issues that have been raised and if that is a new issue that's been raised, I either let you respond to it or it doesn't form part of relevant evidence before me, because you're bound by your pleadings; the defendants are bound by theirs. So, even though the defence is not in the usual form, I would consider the defendants bound by the issues they've raised there. Now the defendants have not raised the issue of asking you on numerous occasions to introduce to the barrister, as far as I can see. Whether or not that would even be an issue, I don't know, but it's not raised in the defence. So the fact that it's raised in the statement, means that it's not something that I'm going to be taking into account, because your defence to the claim has to be pleaded. All those issues are issues I have regard to. Everything that is on your defence. You can't raise new issues". 26 On one view, these passages are indicative of the balanced way in which Assessor Connelly approached the matter generally. She appears to my mind to have been fair, even-handed and patient. However, the plaintiff makes a complaint about this material. This is dealt with later in these reasons. 27 There are other examples to similar effect. The plaintiff at one stage suggested to the assessor that a particular topic of discussion was "a non-issue". Assessor Connelly responded, "That's exactly right. You can't bring up new issues if you haven't already raised them in the pleadings. So that is a non-issue, that's right". 28 A little later an issue arose about the extent to which a statement from the barrister who appeared for the defendants in the District Court appeal would be admitted as evidence in the proceedings. Assessor Connelly heard submissions from the parties "to do with whether or not [she] should allow [the barristers] affidavit in late". The learned assessor had this to say about the matter: - ". . . the barrister has a statement there that deals with a number of things, but of the matters that have been put to me, the only one that I say is fair for her evidence to go in, is about the date that you say [the plaintiff] was asleep. In relation to other issues, some of the issues that you've raised are not issues in the defence, they don't form part of the defence as far as I'm concerned, but in relation to that one issue it seems to be reasonable to look at what [the barrister] says about that date. Is there any reason that couldn't have been served upon the defendants before today?" 29 Some discussion then ensued and Assessor Connelly continued as follows: - "No, just let me finish. Mr Kells, let's just stay with [the barrister's] affidavit. You say to me that she deals with some things that she's had to respond to the defendants' statement. Now in this division, statements are exchanged, that's the way we do it. Sometimes issues are raised on either side and in fairness, I need to let evidence in late, but my big concern is prejudice on both sides. Prejudice to you in not allowing you to put on something to correct a statement you say is wrong, prejudice to the defendants in getting new evidence on the day of the hearing. What I said to you was that, is there any reason why you couldn't have served this statement of [the barrister] earlier? Now what I understand you to be saying to me is that once you had the defendants' statement that you read it, you went to [the barrister], you asked her for a statement which she's prepared and has given you. Is that right?" ***** "Mr Kells do you understand my difficulty today? You've turned up with a new affidavit." 30 The plaintiff then responded as follows: - "I'm sorry, I'm getting the feeling I'm not going to get a fair hearing here. I'm sorry, I apologise for having to say it, but that's what I feel." 31 Assessor Connelly then replied as follows: - "I'm trying to work out Mr Kells why I should let the statement from [the barrister] in. I'm trying to understand why it's late. I hear what you say to me . . ." ***** ". . . would you like to have a break, because I just need your answer to some very simple questions. The rule here is, if it isn't filed by the due date, it doesn't go in. Okay, that's basically the rule. Part of my job as a decision maker, is to consider if documents aren't filed on time, why they're filed late and if there is a prejudice to either side whether I let them in or whether I don't. Now that's part of the decision I'm trying to make today. You have asked me to look at a new statement which has only just been – it hasn't in fact been served upon the defendants at all . Now I have to consider from you, why you want that late evidence in, whether I should allow it in. I have to consider what the prejudice is to the defendants with you serving a statement late and the prejudice to you if I don't allow it in and that's why I'm trying to work out why it's late and what it goes to." (emphasis added) 32 Shortly after this Assessor Connelly was moved to make the following statement: - "I'd like to remind you of the appropriate conduct for people participating in matters in the Court. I'm doing my best to move this matter along sir and you are not concentrating on the questions I'm asking you. If you are saying [the barrister's] – I understood you to be saying to me [the barrister's] evidence was not filed in accordance with the directions because it needed to respond to matters that the defendants raised. Now if that is so, then that may be a legitimate reason to allow late material in, but I've asked you to take me exactly to the issues that you're concerned about. One about the sleeping, you have raised. I would agree with you. It's not particularised. The other issues, matters raised in the defence, the defence has been known to you for some time, that is no excuse for a late decision. So anything that's been raised in the defence, as far as I'm concerned, is a matter that you were on notice of at the time of the pre-trial review. That is not an excuse of [the barrister] putting on a late statement. So do you understand the distinction I am drawing sir?" ***** "So in relation to a new issue, or a clarification that's raised in the defendants' statement, then I think as a matter of fairness, I should look at that part of [the barrister's] statement. In relation to other matters that go to the defence , I don't think it's fair to allow the statement in and that's what I'm trying to puzzle through. If you are saying the statement is so important that it must be in then maybe we need to look at showing it to the defendants and talk about an adjournment. But certainly my job is to weigh up everybody's point of view here and the interests of justice. It's a matter to you whether you press her statement going in." (emphasis added) 33 The assessor then asked the defendants whether there was anything they wanted to say about the late service of the document upon them and whether they agreed to it going in or not. They did not agree. Even so, the assessor referred the matter to the plaintiff again for his comment. This is what she said: - "All right, do you want to say anything else to me Mr Kells about that statement, whether it should be in or not? I've heard everything you've had to say, it's a matter for you whether you want to add anything." 34 A little later the assessor gave a short judgment on the admissibility of the statement. In my opinion, that judgment casts some light upon the manner in which Assessor Connelly approached her task. For that reason I set out the terms of what she had to say in full: - "In relation then to the first matter I need to deal with which is the late statement by [the barrister], I've heard nothing that convinces me that there is a good reason why almost all of that statement couldn't have been filed in accordance with the directions of the Court made at the pre-trial review. Those directions are made for all the reasons that we've talked about today and in the interests of justice, so people turn up understanding the case before them, it is not appropriate to turn up with new evidence or new statements, new documents, on the day of the hearing and expect people to be able to deal with it. The only issue that I am convinced, on the basis of what's before me, that Mr Kells couldn't have dealt with prior to today, is the date that he was alleged to have fallen asleep. I think it's appropriate to allow [the barrister's] statement in and to read only the paragraph that deals with the date of 15 February 2006. I say that because [the] defence doesn't set out the date, once the date is put there, Mr Kells is entitled to respond to that." 35 Assessor Connelly then invited the parties to her address her on the issues in question. She prefaced that opportunity with the following remarks: - "Now that that's been dealt with, what I propose to do is give you both a brief opportunity to make any oral submissions. These matters are supposed to be over and done with in half an hour, we've already taken at least that amount of time just getting to this stage. I would ask you to use this as an opportunity to make short oral submissions on your own case and certainly on the material before me. You can't tell me new things, you can only make submissions on what's before me. It's the plaintiff case to prove on the balance of probabilities. Please don't interrupt each other, just make a note if there's anything you want to say and when it's your turn you can speak. So I'll ask Mr Kells to speak, I'll give you an opportunity to speak and then I'll give you right of reply Mr Kells. All right, what would you like to say to me?" 36 Significantly in my opinion, neither party made, or persisted, with any complaint to Assessor Connelly about what she did or failed to do up to this point. Neither party requested an adjournment. The assessor's approach was evidently judicial and relevantly unexceptionable. Proof of the bill 37 The first difficulty that confronted the plaintiff before Assessor Connelly is revealed in the transcript commencing at page 19. It concerns the plaintiff's attempts to prove his bill of costs and what its terms were. It is as follows: - "ASSESSOR: Mr Kells, just direct me to what documents I should be looking at. Is that an annexure to somebody's statement? PLAINTIFF: That piece wasn't given to you. I've got a spare copy of it here, I think. DEFENDANT J. WATERS: We handed it in as annexure C, from us. If that will help. ASSESSOR: I have that, it is annexure C to the . . . PLAINTIFF: The balance of that bill is that page and that's got the notice which the legal - under the Legal Profession Act 2004 requires the following advice be given. Interest may be charged, etc, etc, you have a right to have this bill assessed and all the rest of it. We're required . . . ASSESSOR: I'm sorry, I just don't - I don't have that. PLAINTIFF: I know you don't. ASSESSOR: Well then I'm not accepting any more of your documents. I don't - why isn't . . . PLAINTIFF: They've had ample opportunity, if they felt that I was overcharging them, they've had ample opportunity to have them assessed. ASSESSOR: Okay. PLAINTIFF: And they've always had that. If I didn't put that notice on it, this bill to them is invalid. It's as simple as that. We have to, by law, put a notice on about interest, as we do in our annexure that I have on my one for the annexure D, you'll see a place somewhere in there about pay - charging interest. If we don't put those things in our disclosure document, we can't charge them interest. ASSESSOR: I have no proof before me that you have put that on this bill. You haven't provided me with a copy of any of your invoices. The copy of the invoice provided to me by the defendant, does not contain the information that you say. I have only annexure C to the defendants' statement. It's a one-page document . . . PLAINTIFF: But you've got the . . . ASSESSOR: . . . it doesn't have a second page that contains that disclosure. PLAINTIFF: Anyway, at the end of the day, I believe my bill was fair and it was reasonable. All I ask is to be paid. ASSESSOR: All right, you say to me if it doesn't contain that disclosure notice, then it's not valid and you're not entitled to be paid, but I don't have a copy of that notice. PLAINTIFF: I'm sorry? ASSESSOR: You said to me if your bill does not contain that sentence that you read to me, that it is not a valid bill and that I do not have - no bill has been filed with the Court containing that. You didn't file it with your documents, it's not been filed by the defendant. PLAINTIFF: That is the full bill that they received, notice and all." ***** "ASSESSOR: In this division everything's got to be filed in advance, so you can't show me new documents on the day, unless that's by consent. So in terms of your own case, which is you are suing on an invoice, you haven't provided me with a copy of that invoice. I have a copy from the defendants, but your own evidence to me is that you are not entitled to charge that money unless you have that note on it about the Legal Profession Act. I don't have a copy of a document with that on it before me. That's a difficulty I can see with your case. It's a matter for you. PLAINTIFF: They have had the full bill with that notice on. ASSESSOR: There's no evidence before me of that. All right, is there anything else you want to say Mr Kells? PLAINTIFF: What can I say? I just wish to be paid. Done a lot of work." 38 Assessor Connelly returned to this matter at page 29 of the transcript: - ". . . Mr Kells I don't have a second page of your invoice. I don't have the statement that you say must be there before I can make an order that you be paid. I don't know whether you've got the second page, but it's certainly not in evidence before me." 39 Then again, at page 35 of the transcript, Assessor Connelly reiterated her understanding of the position: - ": . . . Secondly, the only invoice I have that you are suing on, only contains one page, it does not have the disclosure that is required under the Legal Profession Act. If that disclosure is not there, advising that the defendants have an opportunity to have the costs assessed, you tell me Mr Kells that that means you've got no right relation to that bill. I don't have a bill that has that one had. That's an issue for me." ***** "But you haven't provided - there is no copy of the original invoice in evidence. All I've got is the reminder bill here. I don't have - you haven't provided me with a copy of the original invoice. That's a major difficulty with the matter." 40 The plaintiff does not appear to have satisfied the assessor on this issue. What influence this had on the ultimate outcome of the proceedings, however, is subject to considerable doubt. Arguably it appears to have had no influence at all. This is discussed in more detail below. Did the defendants retain the plaintiff to act for them? 41 The defendants made submissions before Assessor Connelly that there was no agreement for the plaintiff to act for them in the District Court appeal. Mr Waters said, "there was never any written agreement". The assessor reminded the defendants that the plaintiff had said that he had had a discussion with them. The following extract from the transcript reveals what happened next: - "MRS WATERS: Okay, sorry there was one - sorry, the husband just said there was a verbal agreement for him to - what did you say? MR WATERS: Put in the appeal, until we could get to the barrister. MRS WATERS: Put in the appeal, and for him to get us in contact with the barrister, which I was going to talk about now. MR WATERS: That's all Mr Kells was supposed to do in the District Court. ASSESSOR: So just to put in the appeal, you say. I see. I'm just trying to - and you say it's a verbal agreement? MRS WATERS: Yes it was, yes, there was never any written agreement, because we couldn't afford a solicitor and barrister, because I am supporting a family of five, which is myself, my husband and our three children, and all we are receiving is the blind pension, which isn't even $400 a fortnight. So, we're feeding a family of five and supporting a family of five on that. We could not afford a solicitor and barrister full stop, which Mr Kells was aware of all that." ***** "ASSESSOR: So in terms of what you say the agreement was, I can see there is a costs agreement in relation to the Children's Court proceedings, but you say that in relation to the District Court appeal, there was no written agreement. There was an agreement only that you instructed Mr Kells just to lodge the District Court appeal and find a barrister. MRS WATERS: Yes. ASSESSOR: Is that right? MR WATERS: Yes. ASSESSOR: And you say, because you couldn't afford to do both. MRS WATERS: Yes." 42 With respect to this issue the plaintiff relied upon what were described as contemporaneous file notes made at the time he received the defendants' instructions. These file notes were in evidence before Assessor Connelly. The first of those file notes is as follows: - "22/8/05 Waters appeal Conference with Janice & Glenn Waters. Took instructions to go ahead with appeal to District Court against Children's Court decision. Agreed the original fee agreement would continue but amended to $800 per day in Court because counsel would be retained. Nothing said in Children's Court hearing about 1. DoCS lies. 2. Lying to children and parents 3. Proof of Riddles assault on Janice. 4. Contact. 5. Lies told by Starkey about what children said to her. ½ hr" 43 The second of those file notes is as follows: - "Waters matter 26/8/05 Telephone call to Glenn Waters - re: Appeal to Dist. Court. Instructed to go ahead and prepare and file the appeal papers. Instructed to go ahead and obtain counsel. Check out Diane Starkey, worked for Old Toongabbie School. 15 mins" 44 After listening to the defendants' submissions, Assessor Connelly attempted to summarise her understanding of this issue in the following passage at page 25: - "No, no, no, I understand what you're saying to me. I'm just trying to be very clear about what you understand the agreement to be because Mr Kells has a different version of what the agreement is and I'm just trying to be very clear. So you say to me it was that, and I can see Mr Kells' notes here at annexure E, he says, "I took instructions to go ahead with the appeal in the District Court against the Children's Court decision. Agreed the original fee agreement would continue, but amended $800 per day in Court because counsel would be retained." So he, Mr Kells' contemporaneous note records something slightly different, that he's got instructions to go ahead with the appeal and that's a file note on 22/08. There's one on 26/08 saying, "Instructed to go ahead and prepare and file appeal papers. Instructed to go ahead and obtain counsel". Which I guess is more consistent with what you say to me now, but the first one on 22 August Mr Kells' notes they agree the original fee agreement would continue. But you don't agree with that?" 45 Part of the evidence before Assessor Connelly was an affidavit from the defendants. Paragraph 8 of that affidavit said, "We had told John not to turn up in any court hearings as he was no longer our solicitor, but he continued to turn up". 46 The plaintiff took advantage of an opportunity given to him by Assessor Connelly to respond to the way in which the defendants put their case. It is important to record what the plaintiff had to say on this topic: - ". . . Ma'am, I said to them and this is basically what I said to them at the conference, that was not the 28th on there by the way, it was the 22nd, that conference. I don't know how I got - it was an error on my part, it was actually the 22nd, that conference that was had with them. We talked about the - me acting for them. They never ever once, neither then or thereafter suggested that they were asking me to find counsel. I can tell this Court right now that counsel that I have in mind, would not have acted without an instructing solicitor. She tells you, she would tell you that in the statement that I brought in today, but that's out. I said to them, and because we were going to get counsel, that I would reduce the bill, we would stay with the documents that I put in in my statement, in my thing, and they said, "Okay". I said, I will change the thousand dollars to $800 a day because the thing, as I explained before. They said they can't afford a barrister and a solicitor, well either they have to find another barrister who'd do it on their own, and there are a few around, but not a lot, but I don't know how well you'd get one that would do this sort of thing on their own. But I know that [the barrister] wouldn't have done it on her own. Neither [the barrister], myself, nor anybody else that I know of, involved in this thing, this matter, through the District Court, was ever informed - I mean when I appeared they never went up to the table and said, "What are you doing here? We told you not to come". They never told me not to come. I went there with counsel each morning and I sat at the bar table, except for the 16th when the court excused me for the time to go down to draft a subpoena and file it and pay the $57." 47 Assessor Connelly subsequently responded in the following way:- "Was there an agreement between the parties at all? . . . There's a real dispute about what the agreement was in relation to the District Court. You say, continue on, but at $800 a day. You say, no, lodge the appeal, find me a barrister, that's it. There's nothing in writing, there's your contemporaneous file note recording what you say. There's also a file note recording a version that approximates closer to what the defendants say. There's no new fee agreement. So that's my first* difficulty." (*The assessor dealt with the second matter in the passage quoted at para [39] above). 48 Assessor Connelly expressed the following preliminary view at page 35 of the transcript: - ". . . It seems to me that notwithstanding the decisions I might have to make, it just seems to me that there is an agreement, that the very least there was an agreement that Mr Kells commenced the District Court appeal and find you a barrister." ***** "It seems to me as a matter of fairness that, at the very least, from your part that should be a cost you're willing to bear." 49 Mrs Waters agreed. 50 In the end result, the assessor was satisfied that the agreement made between the plaintiff and the defendants was that the plaintiff would only commence the appeal and locate a barrister to appear for the defendants on the appeal. The "fraud" issue 51 One of the issues that were agitated before me by the plaintiff concerns the way in which Assessor Connelly dealt with an application by the plaintiff, in effect, to terminate the proceedings before her so that the plaintiff could transfer the matter to a magistrate in order to permit him to allege fraud. It was the plaintiff's contention that the manner in which the defendants had responded to his claim amounted to fraud. The transcript reveals that the issue arose in the following way: - "ASSESSOR: I guess there's a couple of issues here that jump out at me. If you are complaining about how he performed his work, then that's something you need to take to somewhere like the Legal Services Commission, that's not a matter that I can deal with, all right. PLAINTIFF: Ma'am, please, I'm going to allege fraud, and I know because I tried it with Mr Roberts, so I suggested it, he said, "Hold it right there. I can't hear a fraud. This will have to go to a Magistrate". Ma'am, this has got to go to a Magistrate. This is over, because I'm alleging that this is a fraudulent claim to get out of my work. It's a litany of lies, half-truths and no truths. So that's the end. We'll have to put this up to the General Division. It's a fraud claim." 52 A further discussion took place between the plaintiff and the assessor. At one point the assessor said this to the plaintiff: - "ASSESSOR: Mr Kells, on the basis of the claim before the Court, you make no allegation of fraud. I don't know what it is that you're saying to me. If you are discontinuing your claim, well then that's a matter for you. But I see no reason to transfer this to the General Division. I don't know what fraud you are alleging." 53 The plaintiff would appear at this stage to have become somewhat heated. This emerges from what is recorded as Assessor Connelly's response to some of the plaintiff's submissions on this topic: - "Mr Kells, you need to calm down. I don't know on what basis you allege fraud. You say to me you were instructed, the defendants say, yes to lodge only and find a barrister. That's their evidence, yours is something different. I don't know - I can't see the fraud in that. I can't see a basis for agreeing to a transfer. If you can bring something . . . " ***** "My job is really just to look at the contractual arrangements between the parties and make a decision about whether or not there was an agreement in place. Whether Mr Kells has fulfilled his obligations as solicitor, performed the work according to instructions, etc." 54 It should also be noted that the plaintiff made no application to terminate or stay the proceedings before Assessor Connelly after this. In my opinion, this issue is a false issue. It is considered further in the context of the plaintiff's submissions in support of Ground 1. Ground 1 55 The plaintiff submitted that, contrary to the powers vested in her by virtue of ss 350 and 367 of the Legal Profession Act 2004, Assessor Connelly erroneously decided issues of credit between the parties as to the existence or otherwise of an agreement. The plaintiff submitted that she exceeded the jurisdiction "granted by" these sections in doing so. Those sections are as follows: - 350 Application by client or third party payers for costs assessment (1) A client may apply to the Manager, Costs Assessment for an assessment of the whole or any part of legal costs. (2) A third party payer may apply to a costs assessor for an assessment of the whole or any part of legal costs payable by the third party payer. (3) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid. (3A) If any legal costs have been paid without a bill, the client or third party payer may nevertheless apply for a costs assessment. (4) An application by a client or third party payer for a costs assessment under this section must be made within 12 months after: (a) the bill was given or the request for payment was made to the client or third party payer, or (b) the costs were paid if neither a bill was given nor a request was made. (5) However, an application that is made out of time, otherwise than by: (a) a sophisticated client, or (b) a third party payer who would be a sophisticated client if the third party payer were a client of the law practice concerned, may be dealt with by the costs if the Supreme Court, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period. (6) If the third party payer is a non-associated third party payer, the law practice must provide the third party payer, on the written request of the third party payer, with sufficient information to allow the third party payer to consider making, and if thought fit to make, an application for a costs assessment under this section. (7) If there is an associated third party payer for a client of a law practice: (a) nothing in this section prevents: (i) the client from making one or more applications for assessment under this section in relation to costs for which the client is solely liable, and (ii) the associated third party payer from making one or more applications for assessment under this section in relation to costs for which the associated third party payer is solely liable, and those applications may be made by them at the same time or at different times and may be dealt with jointly or separately, and (b) the client or the associated third party payer: (i) may participate in the costs assessment process where the other of them makes an application for assessment under this section in relation to costs for which they are both liable, and (ii) is taken to be a party to the assessment and is bound by the assessment, and (c) the law practice: (i) must participate in the costs assessment process where an application is made under this section by the associated third party payer in the same way as the practice must participate in the process where an application is made under this section by a client, and (ii) is taken to be a party to the assessment and is bound by the assessment. (8) If there is a non-associated third party payer for a client of a law practice: (a) nothing in this section prevents: (i) the client from making one or more applications for assessment under this section in relation to costs for which the client is liable, and (ii) the non-associated third party payer from making one or more applications for assessment under this section in relation to costs for which the non-associated third party payer is liable, and those applications may be made by them at the same time or at different times but must be dealt with separately, and (b) the client: (i) may participate in the costs assessment process where the non-associated third party payer makes an application under this section in relation to the legal costs for which the non-associated third party payer is liable, and (ii) is taken to be a party to the assessment and is bound by the assessment, and (c) the law practice: (i) must participate in the costs assessment process, and (ii) is taken to be a party to the assessment, and (d) despite any other provision of this Division, the assessment of the costs payable by the non-associated third party payer does not affect the amount of legal costs payable by the client to the law practice. (9) In this section: "client" includes the following: (a) an executor or administrator of a client, (b) a trustee of the estate of a client. "third party payer" includes the following: (a) an executor or administrator of a third party payer, (b) a trustee of the estate of a third party payer. ****** 367 Determinations of costs assessments (1) A costs assessor is to determine an application for a costs assessment relating to a bill by confirming the bill or, if the assessor is satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs an amount that, in the assessor's opinion, is a fair and reasonable amount. (2) The costs assessor may include an allowance for any fee paid or payable for the application by the applicant. (3) A costs assessor may not determine that any part of a bill that is not the subject of an application is unfair or unreasonable. (4) A costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties if during the course of the assessment the parties notify the costs assessor that they have agreed on the amount of those costs. 56 Section 302 of the Legal Profession Act 2004 defines "costs assessor" as a person appointed as a costs assessor under Division 11. By way of comparison, s 76 of the Local Courts Act 1982 defines assessors as follows: - 76 Appointment of, and qualifications for, Assessors (1) The Minister may appoint any qualified person to be an Assessor. (2) The appointment of an Assessor may be on a full-time or part-time basis. (3) A person is qualified to be appointed as an Assessor if the person is an Australian lawyer. (4) If appointed on a full-time basis, an Assessor is to devote the whole of his or her time to the duties of the office of an Assessor. (5) Schedule 2 has effect with respect to Assessors. 57 The matter came before Assessor Connelly in her capacity as an Assessor appointed under s 76 of the Local Courts Act 1982 and not in any capacity she may have had as a costs assessor as defined in s 302 of the Legal Profession Act 2004. 58 The plaintiff submitted that, "contrary to the provisions of" ss 350 and 367 of the Legal Profession Act 2004, the assessor decided issues of credit between the parties. The plaintiff did not elaborate upon that submission. However, the submission is in any event misconceived. Assessor Connelly was not exercising jurisdiction under those sections. She was obviously exercising jurisdiction conferred upon her as an Assessor appointed under the Act. In the circumstances of the case before her, this would have included a jurisdiction conferred by s 70 of the Local Courts Act 1982. The plaintiff makes no complaint before me that Assessor Connelly exceeded her jurisdiction under that or any other section of the Act. 59 The plaintiff also submitted that Assessor Connelly's apparent preference for the evidence of the defendants was contrary to overwhelming evidence provided by the plaintiff, which was excluded, ignored or downplayed. This submission was made by the plaintiff in support of Ground 1. Made in that context, it is somewhat difficult to follow. If the plaintiff intended to make a House v R submission, the plaintiff provided no elaboration of the submission in a way that permitted me to make sense of it. It is not immediately apparent to me how the submission lends support to the plaintiff's first ground of appeal. A similar submission is made in support of Ground 5. This is dealt with below. 60 The plaintiff also submitted that Assessor Connelly exceeded the jurisdiction granted to her by the quoted sections by deciding whether or not a costs agreement was in existence. The only submission made by the plaintiff in this respect was that one costs agreement existed throughout the Children's Court proceedings and the District Court appeal and that was never terminated. The plaintiff's submission entirely avoided any attempt to promote that contention to one supporting the proposition that the assessor exceeded her jurisdiction in any way at all. 61 The plaintiff robustly submitted that Assessor Connelly exceeded her jurisdiction in the face of the plaintiff's allegation that the defendants' actions "in trying to evade payment" were fraudulent and for as long as she continued to hear and determine the matter. In my opinion, this submission is wholly misconceived for a number of reasons. 62 First, no relevant question of fraud was involved. It is true that the plaintiff asserted that the version of events propounded by the defendants was false, but that gave rise to no more than a contest before the assessor of who was telling the truth on disputed issues of fact. It was open to the assessor to decide that issue without the need to form the view that one or other of the versions before her was somehow tainted by fraud. The fact that the plaintiff formed the view that the defendants were lying is not co-extensive with the proposition that the assessor was required to make a decision about whether or not they were fraudulent. 63 Secondly, as the transcript to which I have referred reveals, the plaintiff did not make an application to terminate the proceedings before the assessor or to transfer them to the General Division. The plaintiff's statement, "We'll have to put this up to the General Division. It's a fraud claim" was not such an application, and in my opinion there is no doubt that the plaintiff continued with the proceedings before the assessor without at any time making such an application. Indeed, this is tacitly accepted by the plaintiff in written submissions upon which he relied, which included the submission that the assessor "should have immediately exercised her discretion correctly and allowed the plaintiff to tender additional material to rebut the new issues raised by the defendants". 64 Thirdly, this is not in any event a matter that supports a contention by the plaintiff that Assessor Connelly exceeded her jurisdiction or denied the plaintiff natural justice. It is no more and no less than a complaint by the plaintiff that Assessor Connelly did not prefer the plaintiff's version of events. 65 Finally, the plaintiff reiterates a submission that the assessor exceeded her jurisdiction by refusing to cease hearing the proceedings and to refer them to a magistrate on the plaintiff's application that she should do so. I have already dealt with this submission. In my opinion, the plaintiff made no such application, or if he did so, his conduct demonstrates that he withdrew it and that he was content to proceed with the hearing. Ground 2 66 A significant proportion of the written submissions upon which the plaintiff relied in this respect consisted of a series of principles stated by reference to relevant authority. None of the principles stated is controversial. For example, the plaintiff relies upon well-known principles emerging from cases such as R v The War Pensions Entitlement Appeal Tribunal and Anor; Ex parte Bott (1933) 50 CLR 228 at 249-250; HG v The Queen (1999) 197 CLR 414; Wakim v Matthew Pty Ltd t/as Dove Migration Services [2002] NSWSC 405; National Companies and Securities Commission v News Corporation Limited & Ors (1984) 156 CLR 296 at 312; The Queen v The Commonwealth Conciliation and Arbitration Commission; ex parte The Angliss Group (1969) 122 CLR 546. 67 Relying upon these authorities the plaintiff contended that Assessor Connelly "erroneously exercised the discretion vested in her in a number of ways". In the context of the present ground of appeal, I will treat that as a submission that the assessor denied the plaintiff natural justice. These ways included the following: - 1. She should have disregarded/struck out the irrelevant matters in the "defence" and defendants' "witness statement". 2. She persistently interrupted the plaintiff while he presented his case. 3. She refused to allow the plaintiff to tender the facsimile from the barrister, which answered the new matters raised by the defendants. 68 With respect to the first of these propositions, the following transcript references are relevant. At page 28 of the transcript Assessor Connelly made the following comment: - "See these are all matters that in relation to those sorts of issues, as I was saying, there are other places to go. Like the claim before me doesn't relate to that. Those sorts of matters are dealt with in the Legal Services Division, claims about misconduct of solicitors etc." 69 The assessor returned to the theme later at page 35 of the transcript as follows: - "Now in relation to the other issues about misconduct etc, as I say, I'm not going to make a comment on those, that's not my job to do that. In relation to them forming a basis for why you won't pay, then that is a very blurred line then, because what you're saying to me is there's a breach of the agreement to act in you know, a professional manner and perform the obligations. But there is difficulties here for me in working out which part of the obligations has been affected by what you say is the conduct you're not happy with with Mr Kells. It would seem to me the best way of resolving it would be for the two of you to come some sort of compromise, which I know I pushed before and you said you'd talk." 70 Finally on this point, Assessor Connelly also adverted to this subject matter in her judgment at page 40 of the transcript. This is what she said:- " . . . In addition to that there are numerous problems with [the plaintiff's] conduct in relation to that matter and his running of the matter. In relation to the arguments before me about how Mr Kells conducted himself and the matter, I can't really make any comment in this forum. I don't think it's appropriate for me to, on the basis of what's before me, to draw any conclusions except that the defendants were not happy with the plaintiff's conduct." 71 Assessor Connelly clearly disregarded these irrelevant matters. Her statement, quoted above, that "New issues raised by the defendants will not be matters that I will be taking into account" lends support to this. A failure by the assessor formally "striking out" offending material should not be permitted to deflect attention from the course that she adopted in fact. 72 The second proposition is without substance. The proceedings before the assessor were difficult. The transcript reveals that the parties were engaged in what, to some extent, amounted to a running dialogue that she was required to referee. At one point the plaintiff referred to the defendants by saying, "You're a pair of thieves". The assessor responded by saying, "Mr Kells, your conduct is really something you should look at". A little while later the assessor effectively reprimanded the plaintiff by saying "This is absolutely inappropriate for you to behave like that . . . You're a solicitor of this Court and I expect better of you. I won't tolerate people being spoken to like that". In my opinion, any fair reading of the transcript reveals that Assessor Connelly permitted the plaintiff as well as the defendants each to put their respective cases in a reasonable fashion. She did not unreasonably interrupt either of them. I reject this submission. 73 The third proposition is also without substance. The assessor was required to do justice between the parties. She referred in terms to her obligation to do precisely that. Prior to the hearing before her, the matter had been the subject of what amounted to a form of case management. The timetable for the preparation and service of evidence upon which each of the parties intended to rely had been set. The plaintiff's application to lead new evidence was dealt with by the assessor in the context of that timetable. She treated both parties equally. It is clear that she was not prepared to allow evidence to be tendered which had not been served and to which the opposing party had not had a proper opportunity to respond, unless it was consented to. The defendants, for their part, refused to consent to the late tender of material upon which the plaintiff sought to rely. I am not satisfied that the plaintiff was denied natural justice in this respect. 74 As the authorities to which the plaintiff referred reveal, the requirements of natural justice are not fixed and the content fluctuates, with the overarching requirement being fairness. Equally, the requirements of natural justice depend upon the particular circumstances of the case. The principles of natural justice are not located in any fixed body of rules that have to be applied inflexibly, but depend on the nature of the enquiry, the rules under which the particular tribunal is acting and the subject matter being dealt with. To achieve fairness between the parties, the assessor had to act judicially, deal with the matter before her without bias, allow each party adequately to present its case, and observe the procedural and other rules provided for in the relevant statute and in turn arrive at her decision with a sense of responsibility that is a necessary accompaniment of the duty to do justice. Having regard to these matters, and to the plaintiff's submissions in support of Ground 2, I am not satisfied that this ground is made out. 75 There are, however, some matters that trouble me. These are the matters of which the plaintiff complains under Ground 6. It is convenient to deal with that ground at this stage. Ground 6 76 The plaintiff made only two submissions that Assessor Connelly had failed to give adequate reasons in support of Ground 6. Those submissions in full are as follows: - "114. It is apparent in perusal of the transcript at pages 41 [sic] that the Assessor failed to give adequate reasons for reaching her decision. 115. If there is a right of appeal than a judge should give reasons that are sufficient to enable an appellate court to determine the precise findings of fact and law upon which the judgment is based. Ex parte Merchant Banking Co of London; Re Durham (1881) 16 Ch D 623 at 635." 77 The requirements of natural justice extend to the obligation to give reasons for the finding which a magistrate or assessor is making: see Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378; Yates Property Corporation Pty Ltd (In Liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156. This obligation extends to the Smalls Claims Division: see Gould v Kok (Young J, 23 May 1994, unreported). 78 Assessor Connelly's judgment commences at page 39 of the transcript. Although the judgment is relatively short, it seems to me fairly to have discussed and balanced the issues before her, which I have attempted to identify earlier in these reasons. It is necessary to refer to a portion of her judgment at pages 40 - 41 of the transcript as follows: - "Now further complication with this matter is that the plaintiff has not provided me with a copy of the invoice that he says he sent, so I do not have the statements that should be on that under the Legal Profession Act with the advice about having the costs assessed. The defendants have provided me only with a copy of the document that they have, which is the overdue bill. So I have difficulty in being certain that the appropriate disclaimers were put on the bills. In fact I can't be sure at all that the appropriate disclaimer appeared on that bill, because all I have is a copy. I have suggested to the parties a number of different ways of proceeding today, but at the end of the day the matter's been left for to me to determine. Taking everything into account, I would be satisfied that in relation to this bill that the defendants instructed the plaintiff to commence the proceedings in the District Court and find them a barrister. Beyond that there is a dispute about the work done, certainly there is nothing in writing, there is no fee agreement in writing. We have the plaintiff's word against the defendants' word and we have a dispute about what flowed from that." 79 Assessor Connelly then observed that the plaintiff's bill was for $5500. She continued as follows: - "It seems to me that if I can find, on the material before me, that that is the basis for the agreement, that the word [sic] was agreed to be performed up to that date, then what the defendant should pay for is the work that was performed by the plaintiff in relation to the District Court appeal. I don't have other evidence before me from other people about what their understanding was. [The barrister] clearly has acted and has been paid, there's no argument about that. But that is the best that I can do on the material before me and it seems to me, taking everything into account on the basis of what the parties say to me, that the basis for the agreement, all that I can be certain of is that, on the material before me, that the defendants agreed to pay the costs of kicking off the District Court appeal and finding a barrister. It seems to me that those costs would amount to no more than $1000. I cannot make any comment, it's not my job to go through and divide up bills, that is a matter for other bodies, but without the proper notification on the bill to start with, the defendants have not been properly informed of their rights under the Legal Profession Act. " (emphasis added) 80 The first, and perhaps most obvious, matter is how it is that the assessor was able to award the plaintiff any costs at all if the formal impediment, consisting of the plaintiff's admitted failure to comply with the regulations about notifying the defendants of their rights, was, or should have been, taken into account. It is entirely unclear to me precisely what Assessor Connelly did, having regard to the emphasised portion of her judgment last quoted. The plaintiff makes a specific complaint that the assessor failed to give reasons for her decision. I agree. It seems to me that in this last mentioned, but important, respect, that is precisely what she did. The learned assessor failed, in my opinion, to rationalise or to explain the tension between the plaintiff's concession that, "If I didn't put that notice on it, this bill to them is invalid" on the one hand, and the assessor's statement, "I have no proof before me that you have put that on this bill" on the other hand. 81 The second, and perhaps equally obvious, matter is the total absence of any reasoned explanation of the way in which the learned assessor arrived at the sum of $1000. Her statement, "It seems to me that those costs would amount to no more than $1000" is wholly unadorned with any reasoning process that permits any assessment of its accuracy to be made. Having apparently accepted that it was not her role "to divide up bills", the learned assessor appears to have embarked upon precisely that task. 82 With respect to the first point, I note that the defendants have not filed a cross appeal which takes issue with the way in which Assessor Connelly dealt with it. The defendants made no submissions before me that the judgment against them was flawed, either upon the basis of an acceptance by the assessor of the plaintiff's concession that the bill delivered to them was (in the plaintiff's words) invalid, or that the plaintiff had not proved that he had delivered the bill to the defendants in a proper form. On the contrary, the defendants conducted the matter before me upon the basis that they were satisfied with the judgment but disputed the plaintiff's entitlement to claim more. The defendants made no complaint before me that they had been denied natural justice by reason of the fact that no proper or adequate reasons for this decision had been given. 83 The same would appear to apply to the second point. The defendants did not seek to argue by way of cross appeal or otherwise that Assessor Connelly's calculation of $1000, as the value of the work that they agreed the plaintiff had been retained to perform, was inaccurate, excessive or unreasonable. The defendants made no complaint before me that they had been denied natural justice by reason of the fact that no proper or adequate reasons for this decision had been given. Grounds 3 and 4 84 In my opinion these grounds are incompetent having regard to the terms of s 73(2) of the Act. 85 However, even assuming that the plaintiff were entitled to agitate some argument about the way in which the assessor appears to have understood and applied these sections, or either one of them, it is not apparent to me what complaint the plaintiff wishes to make having regard to the fact that the assessor appears clearly to have ignored the provisions entirely in forming her views about the matter. It may have been otherwise if the assessor had proceeded to find for the defendants upon the basis of some formal non-compliance by the plaintiff with these or any other provisions of the Legal Profession Act 2004. 86 The plaintiff also made a one-line submission that he was entitled to rely upon a quantum meruit. Even assuming that such a claim could avoid the consequences of s 73(2) of the Act, which it cannot, there is an unchallenged finding, upon which the plaintiff relies, that a contract existed between him and the defendants. The obligation to make restitution will not arise where there is a subsisting enforceable contract between the parties for the performance of the services in question: see Pavey & Matthews Pty Ltd v Paul (1986) 162 CLR 221 and Update Constructions Pty Ltd v Rozelle Child Care Centre Ltd (1990) 20 NSWLR 251. There is no doubt that Assessor Connelly accepted - indeed found - that a valid and enforceable contract existed between the plaintiff and the defendants, even though she was not prepared to find that the plaintiff was entitled to remuneration beyond the sum of $1000 for services provided in accordance with it. Ground 5 87 This ground is largely, if not exclusively, supported by submissions which amount to a re-argument of matters raised in support of Ground 2 above. The plaintiff relies upon the well-known passage from House v R (1936) 55 CLR 499 at 504-505. Having regard to what I consider to be the careful, measured and balanced approach taken by Assessor Connelly to the reception of evidence from the plaintiff, I am not satisfied that she acted upon any wrong principle, allowed extraneous or irrelevant matters to guide or affect her, made any mistake as to any relevant facts or failed to take into account some material consideration. It is patently clear that the plaintiff feels that a substantial wrong has occurred. However, in my opinion, there is no demonstrable connection between any wrong of which the plaintiff complains and any failure on the part of Assessor Connelly. Conclusion 88 In my opinion the plaintiff has established that Assessor Connelly denied the parties natural justice in the two ways that I have identified. First, in failing to give reasons which explain how she was able to find that the plaintiff had made out a claim for any sum at all having regard to her apparent acceptance (either because the plaintiff conceded it or because his evidence was deficient) that the plaintiff had not rendered a bill to the defendants in proper form. Indeed, Assessor Connelly has failed clearly to indicate her view on this issue in any way other than by her finding in favour of the plaintiff. Secondly, Assessor Connelly has failed to give reasons that elucidate the manner in which she arrived at her calculation of the sum of $1000 as the plaintiff's entitlement. 89 In the absence of any submissions more detailed than those identified at par [76] above, it is somewhat difficult to understand the precise extent to which the plaintiff takes issue with the assessor's identified failures. For example, unaided by argument, it seems to me that the plaintiff would not wish to revisit, or would not wish to have Assessor Connelly revisit, the favourable decision made by her that he was entitled to any sum at all. The same cannot necessarily be said with respect to Assessor Connelly's calculation of the sum of $1000. 90 I have had regard to the terms of s 75 of the Act. It seems to me that I am in no better position than the assessor to form a view about the appropriate sum to which the plaintiff may have become entitled in respect of the work that Assessor Connelly found the plaintiff had done for the defendants. I am not satisfied that there is sufficient material before me which would permit me to vary the terms of the judgment. 91 The plaintiff has not asked for an order setting aside the judgment. It may be that an appropriate order is to set aside the judgment and remit the matter to the Local Court for determination in accordance with certain directions. However, if this course were to be adopted, my present inclination would be to limit any such directions to the issue of how the assessor calculated the sum of $1000. In the way of things, it is difficult, if not impossible, to predict whether or not such an approach would ultimately be fruitful from the plaintiff's point of view. 92 Having regard to the very small sum of money with which these proceedings are concerned, and taking account of the wisdom expressed in the Attorney-General's Second Reading speech to which I have already referred, it is unfortunate that these proceedings have been commenced in this Court at all. It is undoubtedly preferable that I make orders, if possible, which fully and finally dispose of the matter. 93 Bearing these things in mind, the parties ought in my opinion to be invited to make submissions upon the form of any final orders I should make when they have had an opportunity to consider these reasons. ********** 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.