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LOSING PARTY FILES AN APPLICATION FOR LEAVE TO APPEAL THE ASSESSMENT OF COSTS ALLEGING NEGLIGENCE OF COUNSEL
Craig v Johnson [2021] NSWSC 90 (17 February 2021)
This is an application for leave to appeal from the decision of the costs review panel where the applicants assert negligence by the solicitors.
Facts:
This is an application for leave to appeal by Ms Loretta Craig and others from a determination of a review panel (the panel) made on 27 July 2020 with regard to an assessment of costs ordered by the New South Wales Court of Appeal.
The panel affirmed an earlier determination of a costs assessor that had been certified on 4 March 2020 finding that costs in the amount of $58,505.58 were payable by the applicants. That assessment called upon the applicants to pay the legal costs in a certain sum of the respondents. The applicants were represented by JWS and senior and junior counsel.
The applicants sought review of the determination by the review panel. The applicants’ submissions to the review panel was that it was the duty of JWS to inform the Court of the absence of the subject matter of the appeal, and its failure to do so contravened the civil procedure principles under S.56 of the Civil Procedure Act 2005. An important part of that claim was that JWS should have advised the applicants to accept the offer of settlement, but did not, which allegedly resulted to a breach of contract and negligence, breach of implied warranty, and misleading and deceptive conduct.
On 27 July 2020, the review panel affirmed the decision of the costs assessor. The applicants now seeks for a leave to appeal the determination of the review panel.
Issue: Should the leave to appeal and the appeal itself be granted?
Law:
Analysis:
The legislation that governs the actions of the assessor and the panel, and the application to this Court, is Part 7 of the Legal Profession Uniform Law Application Act 2014 (the Act). As can be seen, S.89(1)(b) of the Act imposes a requirement for leave that applies in this case, because the quantum of the costs in dispute is less than $100,000. As can also be seen from the same section read as a whole, an appeal such as this can be “on matters of law and fact”, is by way of a rehearing, and can feature fresh or additional or substitutional evidence by way of leave.
As counsel for JWS submitted before the court, the quantum involved here is not enormous; no question of public importance is raised and Parliament has imposed an important fetter upon matters such as these requiring determination of a judge of this Court.
To be weighed against that resistance is the fact that almost $60,000 is a very large sum to ordinary citizens. It is obvious that the applicant feels that she has been the subject of an injustice; to refuse leave would be, in a sense, to shut the door of the Court in the face of an unrepresented litigant; the matter was fully argued in any event, and on one view it does raise some unusual questions about costs.
In all of those circumstances, the court hereby propose to grant leave.
Nevertheless, the appeal should be dismissed.
As a matter of statutory interpretation, S.76 of the Act calls upon a costs assessor (and thereafter, a review panel, and thereafter, if leave to appeal is granted, this Court) to “determine what is a fair and reasonable amount of costs for the work concerned”. It is the court’s opinion that the Parliament is speaking of an evaluative judgment about quantum, not in any sense the merits of the costs order already made by a court. Any other objective intention underpinning the legislation would be extremely surprising. In my view, it does not permit an assessor, a panel, or me, to denude a costs order of efficacy; even more so, in the case of a costs order made by a court above it in the judicial hierarchy.
The court does not accept that it was unreasonable for the solicitors for JWS to commence and continue work on resisting the putative appeal of the applicants. For that reason, the court rejects the submission of the applicants that the costs order made many months ago by the Court of Appeal should be robbed of its force.
Conclusion: Hence, the appeal is hereby dismissed.
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