Coshott v Woollahra Municipal Council [1999] NSWSC 1145

New South Wales Supreme Court CITATION : Coshott v Woollahra Municipal Council [1999] NSWSC 1145 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 11513/1999 HEARING DATE(S) : 2 November 1999 JUDGMENT DATE : 26 November 1999

Robert Gilbert Coshott (Plaintiff) PARTIES : v Woollahra Municipal Council (Defendant) JUDGMENT OF : Master Malpass

LOWER COURT JURISDICTION : Costs Assessment LOWER COURT FILE NUMBER(S) : 90585/99 LOWER COURT JUDICIAL OFFICER : John Bartos

COUNSEL : N/A (Plaintiff) N/A (Defendant) SOLICITORS : In Person (Plaintiff) Deacons Graham & James (Defendant) CATCHWORDS : Appeal against decision of a Costs Assessor; sufficiency of reasons; no matters of law. Legal Profession Act 1987, s 208L. ACTS CITED : Legal Profession Amendment (Costs Assessment) Act 1998. Legal Profession Amendment (Costs Assessment) Regulation 1999. Moray v Lane (Allen J, unreported, 26 February CASES CITED : 1993). Re Morris Fletcher & Cross' Bill of Costs (1997) 2 Qd. R 228. DECISION : See paragraph 17.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 26 NOVEMBER 1999

11513/1999 ROBERT GILBERT COSHOTT v WOOLLAHRA MUNICIPAL COUNCIL JUDGMENT 1 The plaintiff brought proceedings in the Court of Appeal against the defendant. The appeal was set down for hearing. The proceedings were settled shortly prior to the hearing date. A consent order was made which required the plaintiff to pay the defendant's costs of the appeal. 2 The defendant prepared a Bill of Costs. It claimed costs and disbursements in a total amount of $19,618.78. It is a detailed document containing some 155 items (of which 142 were items of profit costs). The profit costs were in the order of $8,000. The disbursements were in the order of $11,000 (mainly counsels' fees). The bill provided information as to each profit cost item (it gave the item number, the date, a narrative of the work done (including a figure for the time engaged) and the amount charged). 3 The defendant applied to this Court for assessment of the costs. The application was referred to a Costs Assessor (Mr Bartos). He proceeded with assessment of the costs. 4 The plaintiff provided him with a Notice of Objections (there was an objection to $12,194.32 of the bill). The defendant provided the Costs Assessor with a Notice of Concessions and Specific Replies. Correspondence passed between the Costs Assessor and the parties. 5 On 31 May 1999, the Costs Assessor issued a Certificate of Determination. He assessed the sum of $18,868.72 as a fair and reasonable amount of costs to be paid by the plaintiff. The certificate was accompanied by other documentation. One document was in the following terms:-

"It may assist the parties to note that:- 1. The assessment of costs includes the filing fee of $194.25. 2. It is my practice to allow fax and photocopying charges at $1 per page for the first five pages and subsequent pages at 20 cents per page. I have allowed such charges on that basis. I do not propose to list the individual items affected and the amended charges. 3. I have accepted or partially accepted some of the respondents' objections. The items which have been disallowed or reduced are set out in the Appendix. I have indicated my reasons. 4. The applicant claimed extra $25.00 in relation to item 130. I did not allow this additional claim, as it seemed to me that the initial claim for this item was appropriate. 5. In relation to the argument about the use of "blocks of six minutes", as is obvious from my assessment I have accepted the applicant's submissions in this regard, except in relation to some attendances as noted in the Appendix."

The other document was the Appendix. The Appendix identified the items that had either been disallowed or reduced. It specified the amount either disallowed or reduced and set forth the reason for the disallowance or reduction. 6 On 28 June 1999, the plaintiff commenced these proceedings by the filing of a Summons. He seeks relief pursuant to s 208L of the Legal Profession Act 1987 (the Act). This provision provides a restricted avenue of appeal against a decision of a Costs Assessor ("as to a matter of law arising in the proceedings to determine the application"). 7 The appeal was heard on 2 November 1999. The plaintiff has sworn an affidavit. The defendant has relied upon an affidavit sworn by Mr O'Rourke. The affidavit material provides the documentation that was made available to the Costs Assessor. 8 The submissions of the plaintiff raise three areas of challenge to the decision of the Costs Assessor. The first area was said to be that the assessor had allowed a large number of items claimed on the basis of 6 minute minimums or on the basis of 6 minute units. The second area was said to be that the assessor did not give reasons. The third area was said to be that the assessor allowed counsels' fees on an indemnity basis (this was in fact a somewhat erroneous presentation of a contention that he erred in allowing the fees in the full amount claimed). 9 It is common ground that the Legal Profession Amendment (Costs Assessment) Act 1998 and the Legal Profession Amendment (Costs Assessment) Regulation 1999 do not have application to the matter in dispute in these proceedings. 10 It was common ground that as a matter of general law the Costs Assessor was obliged to give reasons in the sense indicated in the authorities. The judicial observations express a need to give specified detail in relation to items that have been reduced. 11 It was plainly erroneous to submit that the Costs Assessor had failed to give reasons. The only challenge open to the plaintiff was as to the sufficiency of the disclosure of the reasoning process. The argument ultimately put was that he had failed to express the reasoning process for the allowing of the six minute block items and the counsels' fees. In my view, the Costs Assessor has sufficiently disclosed his reasoning process. 12 What will be required by way of expression of reasoning process will vary from case to case. It must be borne in mind also that some deficiency in the expression of the reasoning process may not of itself lead to a disturbing of the Costs Assessor's decision. Some good basis for the disturbing of it must be shown. 13 In this case, the submissions made to the Costs Assessor clearly identified the issues raised as to the matters of the six minute blocks and counsels' fees. It is obvious from the documentation produced by the Costs Assessor that in allowing items he was accepting submissions made on behalf of the defendant and not accepting the submissions made on behalf of the plaintiff in respect of these matters and that the items were allowed as they had been assessed as fair and reasonable. 14 The onus rests on the plaintiff to demonstrate an entitlement to relief under the Act. In my view the plaintiff has fallen well short of discharging that onus. 15 I am not satisfied that there was error on the part of the Costs Assessor in allowing either the items claimed on a six minute block basis or the disbursements for counsels' fees. It seems to me that the Costs Assessor reached a result which was open on the material that was available to him. In any event, I am not satisfied that the challenge made in respect of these items involved any matter of law. 16 There was an attempt to present the first area of challenge as involving a matter of law. Reference was made to Moray v Lane (Allen J, unreported, 26 February 1993) and Re Morris Fletcher & Cross' Bill of Costs (1997) 2 Qd. R 228. In each of those cases, observation was made as to the potential for error where a minimum charge is imposed. I am not persuaded that these observations give rise to any matter of law which can be called in aid by the plaintiff to disturb the decision of the Costs Assessor. 17 The Summons is dismissed. The plaintiff is to pay the costs of the Summons. **********

Last Modified: 11/29/1999 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.