Rahman v Kent [2019] NSWDC 694

District Court New South Wales

Medium Neutral Citation: Rahman v Kent [2019] NSWDC 694 Hearing dates: 30 August 2019 Date of orders: 30 August 2019 Decision date: 30 August 2019 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: (1) Make orders 1 and 3 of the defendant's notice of motion filed 31 May 2019. (2) Order the plaintiff to pay the costs of the proceedings. (3) Dismiss the other motions in the proceedings. Catchwords: CIVIL PROCEDURE — pleadings — amendment – summons for leave to appeal CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch – non-compliance with directions – notice to produce – "fishing expedition" Legislation Cited: Legal Profession Uniform Law Application Act 2014, s 89 Cases Cited: Ferella v Stomo [2017] NSWDC 34 Category: Procedural and other rulings Parties: Fahmid Rahman (plaintiff) Rodney John Kent (defendant) Representation: Counsel: Mr Duc (plaintiff)

Solicitors: MIC Lawyers (plaintiff) Kent Attorneys (defendant) File Number(s): 2018/228861 Publication restriction: None

Judgment 1. The plaintiff, Fahmid Rahman, applies to file an amended summons. The defendant, Rodney Kent, applies to dismiss the proceedings for want of prosecution and for defaults in respect of directions, and alternatively, for the setting aside of a notice to produce issued by Mr Rahman. 2. Mr Rahman has filed a summons for leave to appeal and an appeal against a decision of a review panel upholding an assessment of costs in the amount of $12,215.50. The summons was filed more than a year ago in July 2018. Since then the matter has come before this Court before today on nine occasions, where directions have been made. On several occasions, Mr Rahman has not complied with directions, although sometimes those obligations have been superseded by subsequent directions. 3. In submissions, Mr Rahman conceded that the proposed amended summons does not fairly and adequately raise his real complaint about the review panel's decision nor is there evidence on this application as to the real dispute. 4. The real dispute appears to be as follows: Mr Rahman says that several fixed price agreements in respect of costs were entered orally between him and Mr Kent and that Mr Rahman paid the moneys required under those agreements. According to Mr Rahman, Mr Kent allegedly said that certain amounts were payable for past costs, that amount was then paid in cash by Mr Rahman and thus Mr Rahman says past costs were fixed in the amount that had been paid. Mr Rahman submitted that this amount was in the order of $12,000. 5. Accordingly, there appears not to be a substantial dispute about the amount of costs of $12,215.50 determined by the review panel. But Mr Rahman says that the review panel did not take into account the fixed price agreements, nor the payments that he alleges he made. 6. These proceedings are for an amount less than $25,000. In those circumstances, s 89 of the Legal Profession Uniform Law Application Act 2014 permits an appeal only with the leave of the Court. Whether Mr Rahman should be given leave to amend his summons thus depends, in part, on whether he has arguable prospects of obtaining leave to appeal. 7. The difficulties with Mr Rahman obtaining leave to appeal in these proceedings are manifold. 8. First, the proceedings involve, at most, a very modest amount of costs. The amount is significantly less than that the subject of the decision of Gibson DCJ in Ferella v Stomo. [1] There the learned judge listed several factors mitigating against a grant of leave, including the modest sum of costs in dispute, the need for finality in litigation, the need for proportionality between the amount in issue and the amount of costs likely to be incurred in the proceedings, [2] and whether the issues in dispute were raised before the costs assessor or the review panel. 9. There is nothing before the Court to indicate that fixed sum oral agreements or the payment of costs in the order of $12,000 were raised before the costs assessor or the review panel. These issues were not raised in these proceedings until part way through the hearing today. 10. The matter has been before the Court now on ten occasions. This underlines the absence of proportionality between the amount in issue and the amount of costs being incurred in these proceedings. The amount of costs at stake in these proceedings is modest, being at most the sum of about $12,000 of costs. This fact and the existence of decisions of the assessor and the review panel raise the consideration of the need for finality. 11. Thus, each of the factors mentioned above applies in this case and applies more strongly against a grant of leave than they did in Ferella. 12. At this stage of the proceedings, there is no document that sets out the grounds that are intended to be pursued, nor the reasons why leave should be granted to the plaintiff. In my view, the failure of the plaintiff to advance a coherent and fully particularised challenge to the review panel's decision, even now, leaves the Court with no confidence that any future amended summons will raise an arguable case. The application is further weakened by the circumstance that no challenge was made in submissions to the findings of the cost assessor, where the cost assessor stated: "The role of the costs assessor is to assess fair and reasonable costs under the relevant provisions of the Act and in this case in accordance with the costs agreements. Once a determination is issued a certificate of costs can then be filed as a judgment of the Court and enforced against the costs respondent. Where there is a dispute as to what payments have been made and the liability for the costs, this is a matter for a different forum such as the Local Court and does not restrain my duty to assess the reasonable costs in this matter." [3] If payments were or were not made, this procedure currently before the Court is not the proper way to ventilate that dispute, at least not without a challenge to that finding of the assessor. 1. No affidavit or other evidence was read by the plaintiff to explain his failure over the last 13 months to advance an arguable case. 2. In these circumstances, I am not minded to allow further time for Mr Rahman to get his case in order. 3. As to the notice to produce, the plaintiff claims that the defendant may have documents showing that the plaintiff made payments and how much he paid. He is unable to identify the particular amounts other than that they totalled something in the order of $12,000. He put forward no evidence to indicate that such documents exist and, as a result, the notice to produce appears properly to be regarded as a fishing expedition, "trawling the pond" in the hope of finding a relevant document but having no evidence and making no submission that such a document likely exists. I would be minded to relieve production of the documents sought in those circumstances were the proceedings otherwise to proceed. 4. All of these matters persuade me that I should not grant further time for the plaintiff to draft, serve and argue over a different and as yet unavailable amended summons than is the subject of the motion, and that the orders in Mr Kent's motion should be granted. 5. The orders of the Court are: 1. Make orders 1 and 3 of the defendant's notice of motion filed 31 May 2019. 2. Order the plaintiff to pay the costs of the proceedings. 3. Dismiss the other motions in the proceedings.