New South Wales Supreme Court CITATION : Falamaki v Wollongong City Council [2009] NSWSC 871 HEARING DATE(S) : 6 August 2009 JURISDICTION : Civil JUDGMENT OF : McClellan CJatCL EX TEMPORE JUDGMENT DATE : 6 August 2009 DECISION : 1. Plaintiff's appeal dismissed 2. Plaintiff to pay defendant's costs. CATCHWORDS : APPEAL - Local Court - matter of law - costs certificate - filing of an affidavit - appeal dismissed Civil Procedure Act 2005 LEGISLATION CITED : Legal Profession Act 2004 Local Court Act 2007 PARTIES : Dr Masood Falamaki (plaintiff) Wollongong City Council (defendant) FILE NUMBER(S) : SC 12878/09 COUNSEL : D Knaggs (plaintiff) D Shoebridge (defendant) SOLICITORS : Convenience Legal (plaintiff) FCB Lawyers and Consultants (defendant) LOWER COURT JURISDICTION : Local Court LOWER COURT FILE NUMBER(S) : 117/09 (North Sydney) 3643/09 (Downing Centre) LOWER COURT DATE OF DECISION : 29 January 2009 (Local Court North Sydney) 4 May 2009 (Local Court Downing Centre) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION McCLELLAN CJ at CL THURSDAY 6 AUGUST 2009 12878/09 FALAMAKI v WOLLONGONG CITY COUNCIL JUDGMENT – Appeals from the Local Court 1 HIS HONOUR: This is an appeal from two judgments in the Local Court. The first judgment appealed is that of 29 January 2009 made by the Local Court at North Sydney which entered judgment in the defendant's favour in the sum of $10,287.22 plus court costs of $72. That judgment was founded upon an undisputed certificate as to the determination of costs pursuant to s 368 of the Legal Profession Act 2004 in the defendant's favour in the sum of $10,287.22. That certificate reflected costs which had not been paid in respect of the plaintiff's unsuccessful Court of Appeal action in respect of otherwise unrelated and long running proceedings. 2 The validity of the certificate is not in question. 3 The second judgment appealed from is that of the Local Court made on 4 May 2009 which dismissed the plaintiff's notice of motion seeking to set aside the judgment of 29 January 2009. 4 There is an appeal from a decision of the Local Court to this Court pursuant to s 39(1) of the Local Court Act 2007 which confines the appeal to a question of law. The defendant accepts that there is a question of law raised by the plaintiff in the present proceedings. There is before me, (and I should mark it as exhibit one in these proceedings) a copy of the document entitled Registration of Certificate of Determination of Costs which was filed in the Local Court. That document is in the form provided by Form 45 of the forms contemplated by the Uniform Civil Procedure Rules and is the mechanism by which a party applies, pursuant to UCPR rule 36.11, for the entry of a judgment of the court. Section 368 of the Legal Profession Act 2004 is in the following terms: "(1) On making a determination of costs referred to in Subdivision 2 or 3 of this Division, a costs assessor is to issue a certificate that sets out the determination. (2) A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process. (3) However, any such certificate may not set out the costs of the costs assessment within the meaning of section 369. Note. Section 369 makes provision for the recovery of the costs of costs assessments relating to costs to which either section 317 (Effect of failure to disclose) or 364 (Assessment of costs—costs ordered by court or tribunal) applies. The section requires a costs assessor to issue a separate certificate setting out the costs of such costs assessments. That section also makes provision for the effect of such a certificate. (4) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction. (5) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed. (5A) The costs assessor must forward the certificate or a copy of the certificate to: (a) the Manager, Costs Assessment, and (b) each party to the assessment, unless subsection (6) applies. (6) If the costs of the costs assessor are payable by a party to the assessment as referred to in section 369, the costs assessor must: (a) forward a copy of the certificate to the Manager, Costs Assessment only, and (b) advise the parties that the certificate has been so forwarded and will be available to the parties on payment of the costs of the costs assessor. (7) Subsection (6) does not apply: (a) in respect of a certificate issued before the completion of the assessment process under subsection (2), or (b) in such circumstances as may be prescribed by the regulations." 5 As is apparent, s 368(5) provides in relation to an amount of costs that has not been paid that the certificate, when filed, is taken to be a judgment of the relevant court for the amount of unpaid costs. In the present case, the certificate was filed together with the form to which I have earlier referred with the consequence that the certificate becomes a judgment of the Local Court being the court in which it was filed. Section 368(5) provides that it becomes a judgment for the amount of unpaid costs. 6 Before a judgment may be enforced it must be entered in accordance with the relevant rules. Section 133 of the Civil Procedure Act 2005 is in the following terms: "(1) A judgment or order of the court may not be enforced until it has been entered in accordance with the uniform rules. (2) This section extends to: (a) any judgment, order, determination or decree of a court, and (b) any adjudication or award of a person having authority to make an adjudication or award, that may be filed or registered in the court, or of which a certificate may be filed or registered in the court, under any other Act or law. (3) In subsection (2), law includes: (a) a law of the Commonwealth, and (b) a law of another State or Territory, and (c) in relation to the Supreme Court, a law of a foreign country." 7 The rules make provision for the filing of a costs assessor's certificate and otherwise make provision for the entry of judgment. UCPR rule 36.10 is in the following terms: "(1) A cost assessor's certificate: (a) may be filed in the proceedings to which it relates, or (b) may be filed in fresh proceedings, whether in the same court or another court. (2) If, in relation to proceedings in which a cost assessor's certificate is filed, there is also filed an affidavit, sworn not earlier than 14 days before it is filed, stating: (a) if the affidavit is filed with the certificate, how much of the amount of costs included in the certificate has not been paid, and (b) otherwise, the amount of the costs included in the certificate that, at the time the certificate was filed, had not been paid, the registrar may enter judgment for the amount of the costs that have not been paid, without a direction of the court or request of a party." 8 In the present case the defendant did not file an affidavit when it filed the cost assessor's certificate. I understand that it is not the practice of the Local Court to require that an affidavit be filed. Rule 36.10(1) enabled the filing of the certificate. Once filed, rule 36.11 operated and required that the certificate, being taken to be a judgment of the court, must be entered. Rule 36.11 is in the following terms: "(1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. (2A) If the court directs that a judgment or order be entered forthwith, the judgment or order is taken to be entered: (a) when a document embodying the judgment or order is signed and sealed by a registrar, or (b) when the judgment or order is recorded as referred to in subrule (2), whichever first occurs. (3) In this rule, a reference to a judgment or order of the court includes a reference to any judgment, order, determination, decree, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in section 133 (2) of the Civil Procedure Act 2005. (4) This rule does not limit the operation of rule 36.10." 9 The plaintiff, relying on the power of the court to set aside a judgment provided by UCPR 36.15(1), submitted that there was an irregularity attached to the steps taken in the Local Court which justified the judgment being set aside. The irregularity was said to be found in the fact that when the certificate was filed it was not accompanied by an affidavit verifying that the amount shown on the certificate had not been paid. There is no issue between the parties that it has not been paid, but the plaintiff contended that UCPR rule 36.10(2) required that an affidavit be filed before there could be an entry of judgment. 10 I do not accept the submission. In my opinion it is founded upon a misunderstanding of UCPR rule 36.10(2). 11 Rule 36.10(2) provides that if an affidavit is filed which verifies the amount of the costs which have not been paid, then the registrar may enter judgment for that amount without a direction of the court or request of a party. The plaintiff contended that it followed that if an affidavit was not provided there was no power in the court to enter judgment. The plaintiff's argument identified the capacity of the registrar to enter judgment when an affidavit has been filed. However, it overlooked the fact that the sub rule merely authorises the entry of judgment in that circumstance without there being a direction of the court or request of a party. The rule does not say anything as to the steps which are required if an affidavit has not been filed. All that sub rule (2) provides is that the filing of an affidavit relieves the party seeking a costs order from obtaining a direction of the court or itself lodging a request for entry of judgment. 12 In the present case as I have indicated, a request was made by the defendant as evidenced by the registration of the certificate. In those circumstances, s 368 of the Legal Profession Act operated and judgment was properly entered pursuant to UCPR rule 36.11(1). 13 Accordingly, there being no suggestion otherwise that the entry was irregular, illegal or against good faith, it being accepted by the plaintiff that no moneys have been paid in respect of the certificate of costs, the entry of judgment was properly made and may, accordingly, be enforced. It follows that the plaintiff's appeal to this Court must be dismissed and I so order. (Argument re costs) 14 The defendant seeks an order for costs to which it is plainly entitled. Rather than again venture upon the assessment process an order is sought in the sum of $4,500 inclusive of GST. There is nothing which the plaintiff can say in opposition to that sum which seems to me to be, in the circumstances of this case, modest. Accordingly, I order the plaintiff to pay the defendant's costs assessed in the sum of $4,500, and I provide that that sum is to be paid on or before 5 November 2009. ********** 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.