District Court New South Wales Medium Neutral Citation: Rahman v Sharpe (No 1) [2012] NSWDC 48 Hearing dates: 5 April 2012 Decision date: 05 April 2012 Jurisdiction: Civil Before: Judge Peter Johnstone Decision: John Sharpe and James Howard are removed as defendants. The originating process as against the 1st & 2nd defendants is set aside. No order as to costs. Catchwords: COSTS ASSESSMENT - appeal from assessment by a costs assessor of party/party costs payable pursuant to court orders - inappropriate joinder of the costs assessor and the Manager Costs Assessment Legislation Cited: Legal Profession Act 2004 Uniform Civil Procedure Rules 2005 (UCPR) Cases Cited: Cassegrain v CTK Engineering [2008] NSWSC 457 Dobell v Blue Haven Pools and Spas Pty Limited [2009] NSWCA 77 Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 Lions v Wende [2007] NSWSC 100 Randall Pty Limited v Willoughby City Council [2009] NSWDC 118 Young v Annis-Brown [2011] NSWSC 475 Category: Interlocutory applications Parties: Mohammad Tabibar Rahman (Plaintiff) John Sharpe (1st Defendant) James Howard (2nd Defendant) Paul Baram (3rd Defendant) John Hartigan (4th Defendant) Shirley Alexander (5th Defendant) Rosalind Dubs (6th Defendant) Representation: Plaintiff in person Ms Z Hannaford (1st & 2nd Defendants) Ms Ormond (3rd, 4th, 5th & 6th Defendants) File Number(s): 2012/69814 Publication restriction: None REASONS FOR Judgment 1The plaintiff has appealed to the District Court from an assessment of party/party costs made by a costs assessor under the Legal Profession Act 2004 (the LPA 2004). The matter has come before me today for directions on the return of the Summons Commencing an Appeal filed on 2 March 2012. The matter was referred to me by the List Judge in accordance with the usual procedures in this Court and I am charged with dealing with it; giving directions and otherwise making appropriate determinations relevant to the first return date in such proceedings. 2Mr Rahman, the plaintiff, appears before me unrepresented. Upon enquiry he has advised me that he does not wish to have legal representation. Indeed, he says he does not need legal representation, as he is sufficiently skilled and experienced in legal matters to represent himself. 3A motion was filed in Court before me on behalf of the first and second defendants which seeks the following orders: (1) Grant leave for this motion to be filed in court at the hearing of this matter on 5 April 2012, that the time for service be abridged and that the motion be returnable instanter. (2) Under UCPR r 12.11(1)(a), that the originating process, as against the first and second defendant, is set aside. In my view it is appropriate to give leave for that motion to be filed in court today and for this court to proceed to hear and determine those issues. 4The underlying costs dispute arises out of an order made by the Supreme Court on 4 April 2011 in proceedings No 298024 of 2009, by which the plaintiff was required by Registrar Bradford to pay the costs of Ms Dubs in those proceedings, which he dismissed. Ms Dubs was the defendant (the only defendant) in those proceedings, in which Mr Rahman was the plaintiff. Pursuant to that order Ms Dubs applied under the LPA 2004 for an assessment of her entitlement to costs pursuant to that order. An assessment was undertaken by a costs assessor duly appointed under the LPA 2004, Mr John Sharpe. 5The costs assessor issued certificates of determination on 25 January 2012, together with a statement of reasons (see Exhibit A), by which he determined: (i) that a fair and reasonable amount of costs to be paid by Mr Rahman to Ms Dubs was $12,159.13. (ii) that the costs of the costs assessment be paid by Mr Rahman in the sum of $891.59. 6Mr Rahman appeals from these determinations by way of a Summons filed in this Court, to which I have referred. There are various problems concerning the Summons in particular and the appeal in general. In order to put these problems in context it is appropriate that I briefly state the nature of the Court's jurisdiction to hear costs assessment appeals. 7Appeals from the determinations of costs assessors are governed by s 384 and s 385 of the LPA 2004. Section 384(1) provides for appeals as a right from "a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application". Not only must a party who is appealing under s 384 establish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at 22. 8In all other situations leave to appeal is required and the application for leave is to be brought pursuant to s 385 of the LPA 2004. If leave is granted, the appeal proceeds by way of a new hearing. Evidence in addition to or in substitution for the evidence received at the original proceedings may be given. 9If the application for leave to appeal relates to a costs assessment in respect of party/party costs payable as a result of a costs order, as is the case here, the application for leave must be made to the court or tribunal that made the costs order and, should leave be granted, the appeal is to be heard in that other court or tribunal: Randall Pty Limited v Willoughby City Council [2009] NSWDC 118 at 30. This means that a party who is dissatisfied with the determination of the costs assessor is put to an election whether to appeal to the District Court under s 384 or to another court under s 385, if that other court made the order for costs. 10The Summons filed by Mr Rahman in this appeal is expressed to be an appeal brought under s 384 on the basis of alleged errors with respect to decisions as to matters of law arising in the costs assessment. 11To understand the Summons requires some appreciation of the Supreme Court proceedings that gave rise to the costs order the subject of the assessment, and the structure of the costs assessment itself. 12In the Supreme Court proceedings in which the order for costs was made, the parties were, as I already stated, Mr Rahman as plaintiff and Ms Dubs as the defendant. As a result of the costs order in her favour, Ms Dubs was the applicant for a costs assessment. The only parties to that cost assessment were Ms Dubs and Mr Rahman. As far as I can tell from what I have read it appears that Ms Dubs was the former Registrar of the University of Technology, which Mr Rahman complains infringed his educational rights in some way in the Juris Doctor course at that university. 13The Summons purports to join six defendants. 14Ms Dubs, the party having the benefit of the costs order against Mr Rahman in the Supreme Court proceedings, is the sixth defendant. 15The first defendant is Mr John Sharpe, the costs assessor who conducted the costs assessment from which this appeal is brought. Section 367 of the LPA 2004 provides: "367 Assessor can be party to appeal A costs assessor can be made a party to any appeal against a determination or decision of the costs assessor by the District Court." 16Thus, a plaintiff in a costs assessment appeal may only join a costs assessor with the leave of this Court, for which there must be an appropriate basis. No such order has been made in this appeal. As the submissions handed up on behalf of the first and second defendants by Ms Hannaford set out, there are a number of decisions of the superior courts that are relevant to this matter. The first is Dobell v Blue Haven Pools and Spas Pty Limited [2009] NSWCA 77 where Basten JA held that as a general rule the decision-maker should not be named as a party to an appeal. See his Honour's comments at [19] where he said: "Although it is appropriate and necessary to join the decision-maker in proceedings seeking judicial review, it is neither necessary nor appropriate to join the decision maker to an appeal absent statutory provision to the contrary." In Young v Annis-Brown [2011] NSWSC 475 at [13], Bergin CJ in Eq approved the following principles stated by White J in Cassegrain v CTK Engineering [2008] NSWSC 457 in relation to when a costs assessor might be joined to an appeal, namely that the joinder of a costs assessor, requiring an order of the court, will depend upon the relief sought or the relief which the court considers may be granted. It would only be necessary to join a costs assessor in circumstances where an order is sought against a costs assessor in their personal right, for example in respect of an allegation of impropriety: Lions v Wende [2007] NSWSC 100 at [3] - [4]. Or, a costs assessor might be joined as a party if relief is sought requiring further steps to be taken by the costs assessor and if that relief includes remitting the decision to that costs assessor, see Cassegrain at [132] - [133]. 17In this case, Mr Rahman has sought to join the costs assessor without leave. No order has been made for joinder of the costs assessor. No material has been put before me that would justify the making of such an order, nor has any basis emerged in the oral submissions today that suggest an appropriate basis for joinder of the costs assessor. 18I therefore order that Mr Sharpe be removed as a defendant. 19The second defendant is Mr James Howard, the Manager Costs Assessment. I can see no rationale or appropriate basis for his joinder as a party to the appeal. 20I therefore order that Mr Howard be removed as a defendant. 21The motion filed in Court today on behalf of the first and second defendants has therefore succeeded and I order that the originating process as against those defendants be set aside. 22The first and second defendants make no application for costs. In relation to the costs of the motion filed on their behalf, therefore, I make no order as to costs with the intent that each party bear their own costs of that motion and of the Summons as it relates to the first and second defendants. 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. Decision last updated: 24 April 2012