Amirbeaggi v EB

1. [1]

   KIRK JA: I agree with Basten AJA.

2. [2]

   SIMPSON AJA: I agree with Basten AJA.

3. [3]

   BASTEN AJA: This matter involves an application in this Court’s supervisory jurisdiction to review a decision of the District Court dismissing an appeal from a decision of a review panel dealing with an assessment of costs.

Circumstances of review application

1. [4]

   The applicant, Farshad Amirbeaggi, is a solicitor with Yates Beaggi Lawyers. The applicant was the subject of a costs order made in proceedings in the Protective List in the Equity Division in September 2020. (The names and true initials of the respondents have been omitted because of the nature of the orders made in the Equity Division.)

2. [5]

   The respondents obtained a costs order against the applicant. In May 2021, they filed an application for assessment of costs with the Manager, Costs Assessment. On 5 July 2021, the Manager provided the parties with two certificates. The first, in an amount of $23,709.93, covered the costs ordered by the Court, together with interest on costs and the filing fee, all of which were to be paid by the applicant as the “costs respondent”. The second certificate, involving an amount of $1,802.63 covered the remuneration of the costs assessor and was also to be paid by the applicant.

3. [6]

   On 4 October 2021, the applicant filed an application for review of each determination of the costs assessor. The application sought to have the primary certificate reduced by an amount of $7,780.44 (the largest item being for the professional costs of the costs applicants who are the present respondents). The applicant also challenged the obligation to pay the second certificate, being the costs assessor’s fee. Thus, the total variation sought was an amount of $9,583.07.

4. [7]

   A review panel was constituted and the application for review determined, unfavourably to the applicant. On 11 October 2021, the Manager, Costs Assessment forwarded to the parties two certificates of the Review Panel. The primary certificate included an amount of $557.84 comprising the filing fee for the costs assessment and the amount of the costs applicants’ (that is the present respondents’) costs of the assessment. Some of the items included in the party/party costs were identified by the Review Panel as costs of the assessment. Otherwise, the certificate made entirely minor variations to the amount of costs assessed and the interest payable. The result was a reduction in the total amount payable by the applicant of $5.93. Unsurprisingly given the outcome of the review, the second certificate required the applicant to pay the fees of the Review Panel, in an amount of $4,598.

5. [8]

   On 8 November 2021, the applicant filed an appeal in the District Court seeking to have the certificates of the Review Panel (and the certificates of the costs assessor) set aside and seeking orders that the respondents pay the costs of the costs assessment and the application to the Review Panel, including the applicant’s costs of the costs assessment.

6. [9]

   In the District Court, Gibson DCJ determined that the applicant required leave to appeal from the decision of the Review Panel. By a judgment delivered on 10 August 2022 leave was refused and the appeal dismissed. [1] Leave was required because the costs in dispute did not reach the statutory threshold ($25,000) for an appeal as of right under s 89(1)(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) (“Application Act”).

Proceedings in this Court

1. [10]

   It was not in dispute that a judgment of the District Court on appeal from a certificate issued by a review panel in relation to a costs assessment is not an “action” for the purposes of s 127(1) of the District Court Act 1973 (NSW). Accordingly, there is no appeal from that judgment. [2] In order to challenge the judgment, the applicant needed to invoke the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW), which he did. The matter in this Court proceeded on an amended summons filed on 13 February 2023. The summons identified the decision under review in the following terms:

2. [11]

   Shortly prior to the hearing, on 3 May 2023, the applicant provided a draft further amended summons and sought leave to rely upon it at the hearing. Leave was not opposed and accordingly the matter proceeded on the basis of the grounds set out in that document, which was in the following terms:

3. [12]

   By way of introduction, a number of observations should be made with respect to this ground.

4. [13]

   First, although it referred to both “error of law on the face of the record” and “jurisdictional error”, the applicant’s submissions addressed an alleged misunderstanding by the judge of the District Court’s function and thus jurisdictional error. The reasons of the primary judge played a limited role in the submissions establishing that ground. Thus, little was said about the chapeau to the ground which referred to the Court misconstruing s 89(1)(a) of the Application Act. As will be explained shortly, the reason for that was that there was no explanation in the judgment as to the basis upon which it was said that leave was required.

5. [14]

   Secondly, pars (a) and (b) were, in effect, to be read together. There were three determinations [3] which were said to be the subject of the appeal, so that the question for the primary judge had been whether their “consolidated effect” gave rise to a realistic prospect that the amount in dispute was at least $25,000. In this Court, the applicant accepted that such a prospect arose only if the applicant’s claim for his professional costs of the costs assessments were taken into account. Further, as the Review Panel had no power to award a party its costs of the review, the only relevant claim was for costs of the initial assessment.

6. [15]

   Thirdly, in the applicant’s affidavit dated 27 July 2022 (referred to in the “particulars”) was evidence that the applicant had been billed by his own firm an amount of $38,962 for the costs assessment proceedings. In broad terms, that figure was broken down into two parts, namely $21,549 for costs with respect to the initial assessment, and the balance being costs of the review.

7. [16]

   Fourthly, there was no challenge to the determination of the primary judge that, if leave were required, leave should not be granted. Accordingly, the discrete point upon which the proceeding in this Court turned was the need for leave to appeal.

Was leave to appeal required?

1. [17]

   The respondents resisted the proposition that the applicant’s professional costs of the costs assessment could be taken into account in determining whether leave was required. In broad terms, that issue turned on two questions, both deriving from the statutory scheme for costs assessment and appeals therefrom.

2. [18]

   First, it is convenient to set out the appeal provision in s 89 of the Application Act:

3. [19]

   The first issue which arose from the language of subs (1)(a) was whether the phrase “the amount of costs in dispute” referred to the costs the subject of the court order the subject of the assessment or the amount stated in the certificate, which included the costs of a party to the assessment.

4. [20]

   There was a second issue upon which the respondents relied, both before the primary judge and in this Court. The submission was that an amount could not be determined for the professional costs of the applicant because no amount had been sought by him either before the costs assessor, or before the Review Panel. Accordingly, no amount was included in the certificate issued by the Review Panel. The scope of the appeal given by s 89(1) was limited to an appeal “against a decision of the review panel”. It followed that an issue which had not been raised before the Review Panel could not be raised in the District Court. If the respondents succeed on the first issue, this second issue does not arise.

5. [21]

   Relevantly for present purposes, the legislative scheme is as follows. The basis for the dual certificates is found in ss 70 and 71 of the Application Act:

6. [22]

   It is convenient to refer to the certificate issued under s 70 as the “primary certificate” and the certificate under s 71 as the “secondary certificate”.

7. [23]

   A party’s costs of the costs assessment are addressed in s 78:

8. [24]

   Finally, as has been noted, the only provision for costs of an assessment are the costs incurred before the costs assessor, in accordance with s 78(1). There is no provision for the inclusion of any professional costs incurred on an application to a review panel. Consistently with that scheme, the Review Panel made no award of costs of either party before it.

9. [25]

   The judgment of the District Court did not address the issue of statutory construction raised above. The reason appears from the following passage in the judge’s reasons:

10. [26]

    Earlier in the judgment the judge had identified the nature of the concession in the following terms:

11. [27]

    In written submissions, the applicant contended that no such concession had been made: “[r]ather the submission was that leave was not required, but if the court were against the plaintiff, the plaintiff’s counsel would address the court on the application for leave”. [4] That submission correctly noted part of the exchanges in the District Court hearing, but was incomplete. At the hearing on 28 July 2022 counsel for the applicant stated: [5]

12. [28]

    Shortly thereafter, the discussion returned to the issue of the costs of the assessment at which stage Ms McDonald (counsel for the respondents) intervened to note that there had been no application for such costs and no documents of the kind annexed to Mr Amirbeaggi’s affidavit (being bills prepared by his firm) had been provided to either the costs assessor or the Review Panel. [6] The judge then asked if that statement were correct: Mr Fernon confirmed that it was.

13. [29]

    Ms McDonald then interposed a submission that the Review Panel had no power to award costs of the review before it, an observation apparently responding to Mr Fernon’s earlier statement that the applicant sought “the costs that were incurred … in relation to the assessment and the review”. [7] That led to the following exchange: [8]

14. [30]

    Ms McDonald then made further submissions, and referred to authorities. The discussion ended with the following exchange: [9]

15. [31]

    It may have been unfortunate that Mr Fernon accepted the concession in those unqualified terms. In this Court, counsel submitted that he was driven to it by an insistent judge who would not brook contradiction. That submission cannot be accepted, but to understand why, it is necessary to go back in the course of the hearing in the District Court. As appears from a lengthy discussion in the transcript, Mr Fernon took the judge through the various amounts allowed or disallowed in relation to the costs assessment process and the review. Part of that analysis demonstrated that the amount of the party/party costs ordered by the Supreme Court judge and the subject of the assessment did not give rise to a dispute as to $25,000. Counsel for the applicant continued: [10]

16. [32]

    The discussion then turned briefly to the original summons before counsel returned to the question of the need for leave, stating: [11]

17. [33]

    The context of the concession by counsel for the applicant is readily apparent from these exchanges. Both he and the primary judge understood that she had made a ruling to the effect that in calculating “the amount of the costs in dispute” for the purposes of determining whether leave were required under s 89(1)(a), an award of the costs of the costs assessment should not be taken into account. As a factual matter, there was (and is) no dispute that on that basis leave was required.

18. [34]

    Counsel should properly have ensured that the basis of his concession was recorded, as well as the fact of the concession. Had there been a challenge to the failure of the judge to give reasons for the ruling, which there was not, the concession might well have provided a sufficient justification for the matter not being dealt with in the judgment. However, in this Court counsel for the respondents relied upon the concession as an abandonment of the claim that leave was required. Thus, it was submitted, Mr Fernon did not read Mr Amirbeaggi’s affidavit of 27 July 2022, and eschewed any reliance upon the amount of the costs incurred by Mr Amirbeaggi as set out in the affidavit. That might provide a difficulty for establishing the materiality of the error if it were shown to be error for the judge to disregard the costs of the costs assessment. However, neither the acceptance of the concession as formulated by the primary judge, nor the failure to read the affidavit, preclude the applicant from challenging the legal basis of the judge’s interpretation of s 89(1)(a).

19. [35]

    For these reasons, counsel for the applicant was correct in saying that the confined issue in this proceeding was the proper construction of s 89(1)(a). However, the judge may well have intended to accept the respondents’ additional objection that even if professional costs could be covered in the “dispute” as identified in s 89(1)(a), that could not avail the applicant where no application had been made for professional costs, either before the costs assessor or before the Review Panel. It will be necessary to return to that matter in due course.

20. [36]

    Perhaps because of the way the ruling was made, and the lack of further consideration in the judgment below, the submissions in this Court as to the proper construction of s 89(1) were confined. It was, however, common ground that there was no authority dealing with the specific issue, and accordingly there were no distractions from dealing with the text, having regard to matters of context and the apparent purpose of the legislative scheme.

21. [37]

    The assessment of legal costs is dealt with in Pt 7 of the Application Act, commencing with the definitions in s 63. These relevantly include the distinction between what are commonly called party/party costs and practitioner/client costs:

22. [38]

    Part 4.3, Div 7 of the Uniform Law deals with costs assessment, within which s 196 provides that the Division “applies to legal costs payable on a solicitor-client basis”. Section 65 of the Application Act extends those provisions to “legal costs of a barrister briefed directly by a client”.

23. [39]

    Section 64 of the Application Act provides that Pt 7 applies to both Uniform Law costs and ordered costs. Section 66 then states:

24. [40]

    The professional costs of a solicitor involved in the costs assessment process do not fall within either of the sets of costs identified in s 64(1). They are not unique in that respect. Thus, s 71 and s 88 refer to “the costs incurred by the costs assessor and the Manager, Costs Agreement” and to “costs related to the remuneration of the costs assessor” (or the assessors who constitute the review panel). Part 7 of the Application Act therefore deals with costs which may be the subject of a costs assessment, namely Uniform Law costs and ordered costs, but also allows the costs assessors to determine amounts which are not the subject of an assessment.

25. [41]

    Part 7 further provides:

26. [42]

    The Part provides for the assessment of “ordered costs” in Div 3. As stated in s 76, the standard criterion for an assessment of ordered costs is “what is a fair and reasonable amount of costs for the work concerned”. Division 5 provides for review of a costs assessment by a review panel, which undertakes a review “in the manner that a costs assessor would be required to determine an application for costs assessment”: s 85(2). In Div 6, dealing with appeals, the District Court or the Supreme Court is said to have “all the functions of the review panel”: s 89(2). However, an appeal is “by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with leave of the court, be given on the appeal”: s 89(4).

27. [43]

    The sequential order in which these various steps in the process operate indicates that the subject of assessment is, at each stage, an assessment of the Uniform Law costs or the ordered costs to which the Part applies. If that is correct, the reference to “the amount of costs in dispute” refers to the amount of the Uniform Law costs or the ordered costs which remains in dispute following the first two stages of the process of assessment. (The appeal is only provided from the determinations of a review panel.) The identity of those costs does not increase at each stage of the assessment, so that what is the subject of an appeal to the District Court or the Supreme Court is a different set of costs from those the subject of assessment by the costs assessor at stage 1.

28. [44]

    It is undoubtedly true that both the review panel and the court may vary a determination of the costs assessor as to the amount of the professional costs which may be allowed and as to which party is to pay those costs and the costs the subject of a secondary certificate. Similarly, the District Court may award costs of the appeal to it, but those costs will, if necessary, become the subject of a separate costs assessment, and do not form part of the original costs assessment, although they are themselves “ordered costs”.

29. [45]

    This analysis leads to the conclusion that the “costs” referred to in s 89(1)(a) and (b) are the “ordered costs” or the “Uniform Law costs”, as the case may be, which formed the subject matter of the initial application for a costs assessment. That conclusion is consistent with the approach to other legislation imposing thresholds on appeals as of right, including s 127(2) of the District Court Act 1973 (NSW) and s 101(2) of the Supreme Court Act. The right to appeal in each case turns on so much of the original claim remains in dispute. In the case of s 89, the point is blurred by the fact that the subject matter of the original claim is itself costs. However, as in the case of the other statutory provisions, and as the primary judge forcefully observed, to include in the phrase “costs in dispute” any costs subsequently incurred in the course of the dispute would tend to reduce the threshold to insignificance. The better view is that the phrase “amount of the costs in dispute” refers to the subject matter of the costs assessment still in dispute, and does not include the “costs of the costs assessment”.

30. [46]

    A different result could have been achieved if the reference to “the amount of costs in dispute” had instead been “the amount of the determination in dispute”. This is a distinction which is found within Pt 7 of the Application Act. Thus, in dealing with the contents of a certificate, s 70(1) (set out at [21] above) requires that “the amount of costs determined” and “the amount of any costs of the costs assessment” be separately identified. That distinction is important and, if it were not intended to be maintained in s 89, that intention could have been made clear.

31. [47]

    As the primary judge rightly noted, the introduction of a novel claim that some amount was payable for professional costs, which had not been the subject of consideration by either the costs assessor or the tribunal from which the appeal was brought (the Review Panel) caused practical as well as legal difficulties. These were raised by the respondents but not explored in the hearing because a different course was taken, as has been explained. If the conclusion as to the construction of s 89(1) set out above is correct, this issue need not be resolved. However, it is appropriate to explain briefly why the secondary issue should also be resolved against the applicant as it was the subject of extensive submissions.

32. [48]

    First, the subject matter of the appeal pursuant to s 89(1) was the “decision of the review panel”. The grounds of review, set out in the application for review, were restricted to a challenge to certain items claimed by the respondents, and to the finding of liability for the respondents’ costs of the costs assessment (and the costs in the secondary certificate). No amount was sought for the applicant’s costs of the costs assessment. Accordingly, the Review Panel did not rule upon any application that the respondents pay the applicant’s costs of the costs assessment.

33. [49]

    That was unsurprising, because the applicant had not sought his costs of the costs assessment from the costs assessor. He had filed objections to the bill filed by the respondents, being the subject of the costs assessment, but made no claim for his own costs of the costs assessment. It followed that there was no evidence before the costs assessor as to what his costs may have been.

34. [50]

    In the applicant’s written submissions in reply, the procedural matters just noted were challenged. However, the issue is not what primary facts should be found by this Court on an application for judicial review, but rather whether there were material errors demonstrated in the approach of the District Court. As noted at [28] above, there was no dispute before the primary judge as to those matters. Accordingly, the only basis upon which to assess the applicant’s costs of the costs assessment was evidence contained in the affidavit of Mr Amirbeaggi himself. It is quite unclear as to whether that affidavit was in fact read by his counsel in the District Court, but even if it were taken as read, there were several disavows of reliance upon the evidence as to the amount of costs incurred by Mr Amirbeaggi’s firm in preparing for the costs assessment.

35. [51]

    In short, this Court should work on the premise that not only did the applicant make no claim for his professional costs before the costs assessor, but he put no evidence before the costs assessor as to what those costs might be. (That position was in stark contrast to the circumstances of the respondents, who both claimed costs of the costs assessment and put on evidence as to their costs.) Whether or not the Review Panel could have considered an application for the applicant’s costs of the costs assessment is not a question which needs to be addressed in this case, because no such application was made (and there was no evidence of those costs) before the Review Panel.

36. [52]

    Although the appeal to the District Court is an appeal by way of rehearing, and one for the purposes of which further evidence may be adduced, it is nevertheless necessary for an appellant to demonstrate error on the part of the review panel. [12] Unless there is a question of jurisdiction, which may always be an issue, whether raised or not, there will generally be no appeal from a review panel with respect to an issue which was simply not raised before it. If a ground of appeal in the District Court were to raise such a matter, the likely response of the Court would have been that the review panel cannot have been in error in failing to deal with the matter which it was not asked to address.

37. [53]

    It follows that even were the professional costs of a party to a costs assessment relevant to identifying the amount in issue in any dispute the subject of an appeal to the District Court, no such amount could be relied upon in the present case.

38. [54]

    Thus, if the reference to “costs in dispute” in s 89(1) could include a parties’ costs of the costs assessment, there was no legal error, let alone jurisdictional error, in the judge declining to take such costs into account in the present case.

39. [55]

    For these reasons, and assuming that it is appropriate to review the ruling of the primary judge which was the subject of the concession, no error of law has been demonstrated.

Conclusions

1. [56]

   The applicant not having demonstrated error in the ruling of the primary judge with respect to the need for leave to appeal the determination of the review panel, the further amended summons must be dismissed with costs.

2. [57]

   The Court should make the following orders:

   1. (1)

      Dismiss the further amended summons seeking to review the orders made in the District Court on 10 August 2022.

   2. (2)

      Order that the applicant pay the respondents’ costs in this Court.