District Court New South Wales Medium Neutral Citation: Preston v Commissioner for Fair Trading [2012] NSWDC 81 Hearing dates: 4 May 2012 Decision date: 04 May 2012 Before: P Taylor SC DCJ Decision: Proceedings dismissed Plaintiff to pay the Defendant's costs Catchwords: Enforcement of Costs order - costs ordered in other proceedings need for assessment Legislation Cited: Uniform Civil Procedure Rules 2005 rule 3.4(1)(b) Legal Profession Act 2004 part 3.2; Div11; s.366 Legal Profession Regulations 2005 reg 125 Cases Cited: Preston v Commissioner for Fair Trading [2011] NSWCA 40 Wentworth v Rogers [1999] NSWCA 403 Category: Principal judgment Parties: Stephen Frederick Preston - Plaintiff Commissioner for Fair Trading - Defendant Representation: Mr Preston in person Mr Newton I V Knight; Crown Solicitor - Defendant File Number(s): 2012/95157 Judgment 1HIS HONOUR: In this matter the plaintiff, Stephen Preston, obtained in other proceedings between the parties an order from the Court of Appeal of New South Wales in the following terms: "Order the respondent to pay to the appellant the amount of out-of-pocket expenses of a type that would have been recoverable as disbursements if the appellant had been legally represented, that the appellant has actually and reasonably incurred concerning the present appeal". 2See Preston v Commissioner for Fair Trading [2011] NSWCA 40. 3The amount of the expenses that fall within the ambit of the order of the Court of Appeal has been the subject of correspondence between the parties. The parties have not been able to agree as to the appropriate amount to which the plaintiff became entitled by reason of that order, nor has there been any assessment of those costs or expenses. 4On 26 March 2012 the plaintiff commenced proceedings in this Court seeking to obtain the sum of $471,978, which included a claim of $396,000 for costs that fell within the order of the Court of Appeal, plus interest and other fees. 5On 20 April 2012 the defendant put on a defence, paragraph 9 of which asserts that: "(a) Unless the defendant agrees to an amount, no money is payable under the costs order until the costs order has been assessed in accordance with Pt 3.2 Div 11 of the Legal Profession Act. (b) The defendant has not agreed to the amount claimed by the plaintiff or any amount with respect to the costs order. (c) The proper forum for determining the amount payable under the costs order is an assessment in accordance with Pt 3.2 Div 11 of the Legal Profession Act. (d) The District Court does not have jurisdiction to hear the plaintiff's claim." 6The defendant on the same date filed a notice of motion seeking an order that the proceeding be dismissed pursuant to r 13.4 (1) of the Uniform Civil Procedure Rules 2005, and some alternative orders, and an order that the plaintiff pay the defendant's costs in the proceedings. 7Both of the parties have provided written submissions to the Court. The substance of the submissions prepared on behalf of the plaintiff is that the order of the Court of Appeal demonstrates that the plaintiff is entitled to recover costs and that this was an appropriate proceeding to bring, not one that should be dismissed summarily. In oral submissions Mr Preston referred to a letter to the defendant dated 2 February 2012, which is in evidence, where he stated: "This is not meant as legal advice but my understanding is that under the Legal Profession Act 2004 which I believe your Senior Legal Officer would be aware of gives you the right to apply to the Supreme Court: a) To have your invoice assessed for its fair and reasonableness by a New South Wales costs assessor; b) Forms about assessment are available from the Supreme Court of New South Wales, GPO Box 3, Sydney, NSW, 2001 or Telephone 02 9230 8111. 8I now notify you politely that this is my final request for payment. If you disagree with the bill you are quite entitled to have it assessed." 9And the letter makes the request at its conclusion: 10"Please kindly forward payment for costs in the above matter immediately". 11Mr Preston submits that the defendant's failure to act, during February and most of March, after receiving that letter amounts to a waiver by it of an entitlement to an assessment and, he submits, it follows that he is entitled to the sum claimed of $394,000. 12In Wentworth v Rogers [1999] NSWCA 403 at 54 the Court of Appeal said: "The present practice of the Court requires that costs, if not agreed upon, must be assessed, not taxed as was formerly the case. Reference may be made to s 76(1)(c) of the Supreme Court Act and to Pt 11 of the Legal Profession Act 1987." 13The current regime for the assessment of costs is contained in Pt 3.2 Div 11 of the Legal Profession Act 2004. Regulation 125 made under that Act provides the procedure whereby either party may make an application for assessment of party/party costs. It appears that the entitlement of the plaintiff arising from the order of the Court of Appeal is that his expenses be assessed on a party/party basis, subject to the limiting words of the order of the Court of Appeal consequent on him being a self-represented litigant. 14Mr Preston was unable to point to any provision which might entitle him, without the process of assessment, to enforce or obtain judgment for a specific sum in respect of the costs order. He did refer to s 366 of the Legal Profession Act 2004 which provides: "This division does not limit any power of a Court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis". 15I do not understand that provision to give this Court the power to determine the amount of costs payable under an order of the Court of Appeal which does not specify a sum. Some other provision must be looked to for such a power and none was identified to me. 16Accordingly, it is necessary to undertake the procedure provided by Pt 3.2 of the Act and, in particular, under reg 125 of the Legal Profession Regulations 2005 in order to convert the order of the Court of Appeal in Mr Preston's favour into a liquidated sum that can be enforced by means of a judgment. It follows that the proceedings in this Court to litigate afresh the quantum of the order of the Court of Appeal are misconceived and do not constitute a reasonable cause of action under r 13.4(1)(b) of the Uniform Civil Procedure Rules 2005. 17Accordingly, I propose to make an order that the proceedings be dismissed under that rule. 18As to the costs of these proceedings, the plaintiff referred to the correspondence between the parties as a reason why a costs order should not be made in favour of the defendant. The general rule is that costs must follow the event unless the Court is satisfied that some other order for costs should be made. I do not regard the conduct of the defendant as disclosed by the correspondence as being of such a character that would warrant a departure from the ordinary rule. 19Accordingly, the orders of the Court shall be that the proceedings be dismissed and that the plaintiff pay the defendant's costs of the proceedings. 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: 01 June 2012