Johnston v Boyd

1. [1]

   By summons filed on 1 September 2022, the plaintiff, Daryl Lindsay Johnston, seeks judicial review of the decision of a costs assessor made on 1 June 2022. The sole ground of review, implicit in the relief claimed and from the plaintiff's submissions, is that the plaintiff was not afforded a reasonable opportunity to complete and submit his objections to the bill of costs that was under assessment. The assessor was bound by s 69(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) to give the plaintiff “a reasonable opportunity to make submissions to the costs assessor in relation to the application, and give due consideration to any submissions so made”.

2. [2]

   The plaintiff is self-represented. The first defendant is Ms Abigail Boyd who was the costs applicant before the assessor. Ms Boyd is represented by solicitors and counsel. The second defendant is Christopher David Harris who was a costs respondent before the assessor. He is also self-represented. The third defendant is the Manager Costs Assessment who has filed a submitting appearance.

3. [3]

   The relief claimed in the summons may be paraphrased as follows:

   1. (1)

      A declaration that the plaintiff was not afforded a reasonable opportunity to complete and submit his objections to the bill of costs.

   2. (2)

      An order that the plaintiff have a further 14 days from the orders of this Court to deliver completed objections and submissions to a substitute assessor appointed under the Court’s direction.

   3. (3)

      Orders that the certificates of assessment, issued on 1 June 2022, of the applicant's costs and of the costs of the assessment, be suspended.

   4. (4)

      An order that the certificate of determination of costs in favour of the costs applicant be cancelled, and a new assessment be commenced de novo.

   5. (5)

      A declaration that the assessor denied procedural fairness, in particular, by withdrawing a seven day time limit that she had initially allowed.

   6. (6)

      An order that the Manager Costs Assessment appoint an alternative costs assessor to consider the plaintiff's further objections and submissions, to be filed under the order of the Court.

   7. (7)

      An order that the assessment be referred to a costs assessment review panel and that the plaintiff's objections and submissions be considered by that panel on the material that was available to the assessor.

4. [4]

   Although not stated in the summons, some of these claims for relief are obviously alternatives to each other. The costs applicant before the assessor, who is now the first defendant Ms Boyd, opposes judicial review. Mr Harris, the second defendant, raised the following points in a response to the summons:

   1. (1)

      He would like two bills of costs created, one for the costs applicant's claims against him and another for the costs applicant's claims against the plaintiff. He has not filed any cross-summons and he has no proceeding on foot pursuant to which he might seek such an order. In any event, the order of the Court under which the costs were assessed by the assessor was made against the two costs respondents, Messrs Johnston and Harris, jointly. As a Divisional judge, I would have no jurisdiction to vary that order. Hence, what Mr Harris asks for could not in any event be granted.

   2. (2)

      Mr Harris seeks an order, of some nature, to preserve his position in the event that the Court should order referral of the proceedings to a review panel and if that review panel should increase the amount of assessed costs.

   3. (3)

      Mr Harris seeks an order that he have leave to make a submission to a review panel if the assessment should be so referred.

Background to the assessment

1. [5]

   The plaintiff and Mr Harris were, in March 2019, members of the Greens NSW, an incorporated association and a registered political party. The two of them brought a proceeding in the Equity Division against The Greens and seven members of the party, one of whom was Ms Boyd. Ms Boyd and some of the other defendants to that proceeding had been pre-selected to be nominated by The Greens as candidates at an election for the New South Wales Legislative Council to be held on 23 March 2019.

2. [6]

   The plaintiff and Mr Harris disputed the manner in which The Greens had determined the sequence of the names of the pre-selected candidates as they were to appear on the party's nomination of endorsed candidates as a party group, or ticket. The claims of the plaintiff and of Mr Harris were dismissed by Robb J on 1 March 2019: Johnston v The Greens NSW [2019] NSWSC 215. On 26 June 2020, his Honour ordered that the plaintiff and Mr Harris pay the costs of the proceedings incurred by The Greens, by Ms Boyd and by one other defendant. His Honour ordered that those costs be assessed so far as they had been incurred from 19 February 2019: Johnston v The Greens NSW (No 2) [2020] NSWSC 10.

3. [7]

   On 29 June 2020, the plaintiff filed applications in the Court of Appeal for leave to appeal against both the substantive decision and the costs decision at first instance. Both applications were well out of time. The Court of Appeal granted an extension but both applications were dismissed on 24 December 2020: Johnston v The Greens NSW [2020] NSWCA 357. On 7 January 2021 the plaintiff filed a notice of motion in the Court of Appeal seeking that the orders dismissing his applications for leave be reopened.

4. [8]

   In August 2021, Ms Boyd's solicitors served on the plaintiff and Mr Harris a draft application for assessment of costs as awarded by Robb J. Attached to the draft application was an itemised bill. The evidence before me does not disclose whether the draft was substantially the same as the one later filed for assessment. At the plaintiff's request, the draft application was not immediately filed pending disposition of his notice of motion to reopen his case in the Court of Appeal. That notice of motion was determined on the papers and dismissed on 13 November 2021: Johnston v The Greens NSW (No 2) [2021] NSWCA 291.

The course of the assessment

1. [9]

   Ms Boyd's application for costs assessment, accompanied by a professionally drawn itemised bill, was served on the plaintiff on 21 December 2021 under cover of a letter advising that the plaintiff had 21 days within which to notify any objections, following which the application would be lodged with the Manager Costs Assessment for the appointment of an assessor. The plaintiff did not notify Ms Boyd's solicitors of any objections and the application was duly lodged with the Manager on 8 February 2022.

2. [10]

   The Manager appointed Ms K Young, barrister, as assessor. Her first letter to the plaintiff to inform him of her appointment and to advise the timeframe for objections and submissions was misdirected due to the assessor having been provided with an incorrect email address. The first communication from her that the plaintiff received was in his hands on 11 March 2022. In those circumstances, on 15 March 2022 the assessor granted the plaintiff until 29 March within which to file objections and submissions. That was a period of 18 days from when he received notification, well in excess of the five days usually allowed. This would appear generous given that the plaintiff had had the bill since 21 December the preceding year and its contents would not have come as a surprise to him when the assessor first made contact.

3. [11]

   On 18 March 2022, the plaintiff sought a further extension for his objections and submissions. The assessor allowed him until 4 April 2022. On 5 April, the plaintiff requested the assessor to require that the costs applicant produce a large number of documents in accordance with a detailed description of categories that he submitted. The assessor did not consider that these documents would be relevant and refused the request. The next day, 6 April, the plaintiff requested the assessor to make a preliminary assessment of costs relating to items in a particular date range. The assessor found this unnecessary and declined to do so. She allowed the plaintiff a further extension of a week, up to 13 April 2022.

4. [12]

   On 12 April 2022, the plaintiff sought an extension of yet another six days to 19 April. In support, he produced two brief medical reports. The first was from Ms Lee-Aube a psychologist. Her report, dated 11 April, was in these terms:

5. [13]

   The report from Dr Lovell of 12 April 2022 was as follows:

6. [14]

   On 2 May 2022, the plaintiff supplied to the assessor further medical reports, both of that date, one from each of Ms Lee-Aube and Dr Lovell. Ms Lee-Aube's report contained an update in the following terms:

7. [15]

   Dr Lovell's report repeated much of the information he had provided on 12 April and added the following:

8. [16]

   The Doctor continued as follows:

9. [17]

   According to the assessor's reasons for assessment, as subsequently issued, she regarded these medical reports as inadequate for their failure to specify what, if any, loss of function the plaintiff may be experiencing that would be relevant to his providing a response to the bill of costs that he had first received on 21 December 2021. Nevertheless, on 2 May 2022 the assessor notified the plaintiff of an extension of time for his objections and submissions to 4:00pm on 7 May. The email of 2 May 2022 conveyed the decision in these terms:

10. [18]

    The last paragraph of this email reflected that Mr Johnston had inundated the assessor, since her first contact with him in March 2022, with an almost constant stream of emails, none of them articulating objections to the bill, or responding to it in substance, but all communications persistently pressing for extensions. I will not list or quote from that extensive body of Mr Johnston’s email correspondence. Much of it was critical of the costs applicant’s solicitor, often in vituperative terms and without apparent cause.

11. [19]

    On 6 May, the day before expiry of the time limit set by the assessor, the plaintiff wrote in these terms:

12. [20]

    It is difficult to avoid the conclusion that this letter was disingenuous. The assessor's notification of the extension was clear: it was granted on a Monday and allowed a full business week, with an extra day up until 4:00pm on 7 May, a Saturday. It made no difference that the extra day was a Saturday rather than a business day, as the parties' communications to the assessor and hers to them were all by email. There was no reason why Mr Johnston should have had any doubt about the time limit that had been fixed. If he had genuinely found any lack of clarity in the length of the extension one would have expected him to raise it before Friday, 6 May.

13. [21]

    The assessor responded to the plaintiff's query in the following terms, still on 6 May:

14. [22]

    Still wishing to agitate this small topic, the plaintiff wrote back shortly afterwards in these terms:

15. [23]

    The plaintiff’s repeated requests for extensions of time, as earlier referred to, were kept up throughout the period from early March 2022 until the expiry of the assessor's final time limit on 7 May. Although he asserted that his need for more time arose from disabling mental illness, the plaintiff supported his claims with long and reasoned emails. At the same time he vigorously articulated quarrelsome complaints about the conduct of the costs applicant's solicitor. All of this voluminous correspondence has been placed before me in exhibits and as annexures to affidavits. It appears on its face to disclose no incapacity to deal with contentious legal business. Its content suggests that the plaintiff had the time and the ability for the task at hand, of responding to the bill of costs, if he had chosen so to direct his efforts. Lodging objections to the bill and making submissions in support would have been more straightforward and less taxing than arguing for extensions, complaining about the costs applicant’s solicitor, requesting production of documents and asking the assessor to make an interim partial assessment.

16. [24]

    It is clear from the assessor's reasons that she was not satisfied the applicant had demonstrated or independently proved any significant incapacity that might warrant further extension of time for the modest task of objecting to the bill. The plaintiff filed what he termed interim objections on 7 May. The assessor proceeded to determine the assessment after that date and the plaintiff did not file any further objections, only two more emails on 9 May requesting further extensions.

17. [25]

    On 9 May 2022 Mr Johnston wrote to the assessor and to the solicitor for the costs applicant stating that he had just returned from an appointment with the duty registrar of the Court. He requested a further extension until Wednesday 11 May to complete his objections and submissions. The next day he wrote to the Manager Costs Assessment, agitating whether he had been given clear notice of the time limit of 7 May 2022, the issue he had already argued with the assessor herself. He represented to the Manager Costs Assessment that he was "improperly denied the opportunity to lodge the completed submissions and objections on Monday". The plaintiff requested that the Manager "exercise your influence to correct this wrong". On 11 May the Manager replied in these terms:

18. [26]

    The costs applicant had claimed a total of $80,388, comprising solicitor's professional costs of $59,614.50 (including GST) and disbursements including counsel's fees, of $20,773.50 (also including GST). In her certificate of 1 June 2022 the assessor determined the following figures: solicitor's professional costs $45,413.50; costs of the assessment $6,143.50; interest to 1 June 2022 $6,749.48; assessor's fee and court filing fee $6,303.88. The total was $64,610.36.

The plaintiff’s choice of procedure following assessment

1. [27]

   The Manager Costs Assessment has recorded that the certificate was issued to the parties on 22 June 2022. However, it is not in dispute that the original transmission intended for the plaintiff was again misdirected and that he did not receive it until 22 July 2022. As a result of the plaintiff informing Ms Boyd's solicitor by email of 19 July 2022 that he had not received the assessment, the solicitor sent him a copy at 10.38am on 22 July. With that email the solicitor enclosed a copy of the Notice to Costs Assessment Parties, which outlined the recourse available to a party dissatisfied with a determination of an assessor. It included the following:

2. [28]

   This notice also contained the following recommendation in bold print:

3. [29]

   On 5 August 2022 the solicitor sent a further copy of the Notice to Costs Assessment Parties. The plaintiff responded on the same day in these terms:

4. [30]

   The solicitor for Ms Boyd responded on 8 August 2022, as follows:

5. [31]

   The plaintiff chose not to seek a review pursuant to s 83 of the Legal Profession Uniform Law Application Act, although he would have been entitled to do so as of right at any time within 30 days from 22 July 2022. On 22 August 2022 he wrote to the solicitor for Ms Boyd to advise that he was "preparing [his] application and expect to serve you with a copy tomorrow and then file the application". However, he did not file an application for review. On 31 August 2022 the plaintiff wrote to Mr Harris and to the solicitor for Ms Boyd advising that a summons had been lodged for filing and would likely issue in the next day or so, "after my application for a fee waiver has been dealt with by a court registrar." He requested that Mr Harris and Ms Boyd dispense with the requirement for personal service and accept service of his proposed summons electronically. The solicitor for Ms Boyd promptly agreed.

6. [32]

   The plaintiff, as earlier mentioned, filed his summons on 1 September 2022. In submissions before me he explained that he was aware of a 90 daytime limit, running from the issue of the certificate on 1 June 2022, within which a summons for judicial review would have to be filed with the Court. He was referring to r 59.10 of the Uniform Civil Procedure Rules. In submissions before me he stated that he had filed his summons to commence this proceeding on the last day of the limitation period.

Discretion to refuse judicial review

1. [33]

   These circumstances raise at the outset the question whether the Court's discretion should be exercised against granting relief by way of judicial review, assuming that a denial of procedural fairness could be made out. The first defendant, Ms Boyd, submits that the Court would not grant such relief in circumstances where the plaintiff did not apply for a review of the costs assessor's determination by a review panel pursuant to the Legal Profession Uniform Law Application Act. The plaintiff referred to the following statement of principle on the exercise of discretion in Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757 at [23] (Beech-Jones J):

2. [34]

   The Act contains the following provisions, concerning avenues of review and appeal from the decision of an assessor, that are relevant to the present case:

Addendum to oral reasons: additional authority

1. [35]

   Upon revising the transcript of these reasons, as delivered orally at the conclusion of the hearing, I add the following references to authority. In Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477 principles were stated at [162]-[164] (Fitzgerald JA, Beasley JA concurring) on the subject of withholding relief in the nature of prerogative writs where the decision sought to be reviewed has been made under a statute that confers its own avenue of appeal:

2. [36]

   The plaintiff’s entitlement, as of right, to have a rehearing by a review panel and thereafter to pursue one of the alternative appeals from the panel’s decision to a court are specific forms of recourse created by the same Act that provides for the original assessment and that requires it to be undertaken with procedural fairness (s 69(1)). That is a feature noted as important to enlivening the discretion in Hill v Green at [162].

3. [37]

   In the same case Spigelman CJ said this at [55)]:

4. [38]

   In Macksville District Hospital v Mayze (1987) 10 NSWLR 708, to which the Chief Justice referred, a hospital board exercised its statutory power to terminate a specialist obstetrician’s appointment as a Visiting Practitioner. In the same statute there was express provision for an avenue of appeal from the decision to another authority. Kirby P (as his Honour then was) listed a series of considerations to be taken into account in deciding whether the right of appeal must be taken to exclude the availability of prerogative relief. The same considerations, according to Spigelman CJ in Hill v Green, are relevant under the approach that has subsequently been adopted by the courts, whereby the issue is not whether statutory exclusion of judicial review should be inferred but whether the Court should exercise its discretion against the grant of such relief.

5. [39]

   Kirby P’s list of considerations favouring exclusivity of the statutory appeal is as follows (at 720-721):

6. [40]

   There are close parallels between those considerations and the availability of an expeditious complete rehearing, by a specialist tribunal, in the case of costs assessments under the Legal Profession Uniform Law Application Act. In Macksville District Hospital v Mayze Kirby P found countervailing considerations, namely, that termination of the obstetrician’s appointment took immediate effect, the appeal tribunal having no power to stay it, and the powers and procedures of the appeal tribunal fell short of those that would apply on review of administrative action by the Court. Those considerations, which favoured the availability of judicial review in Kirby P’s judgment, are not present in relation to reconsideration of a costs assessment.

Exercise of the discretion in this case

1. [41]

   In determining whether the Court should exercise its discretion to refuse relief of the nature sought by the plaintiff, I take into account the following considerations.

   1. (1)

      The amount that is in issue. The total sum assessed, as earlier stated, is $64,000. Only some fraction of that amount could possibly be in issue in relation to any further consideration of the assessment of Ms Boyd's bill of costs. This is a very small scale dispute upon which to engage a judge of the Supreme Court. It is an issue within the limits of what a Local Court Magistrate would deal with in the civil jurisdiction. The plaintiff’s summons for judicial review involves utilisation of Court resources in respect of a dispute of very limited monetary value, for which the statute makes ample provision for resolution by a discrete and economical procedure of review and ultimate appeal on all grounds, if necessary.

   2. (2)

      The avenue of submission to a review panel would have afforded to the plaintiff a complete remedy. The fee for commencement of the review would be only $275. The panel would comprise two assessors. They would engage upon a complete rehearing of the assessment. They would necessarily do so pursuant to a new timetable which would provide the plaintiff with such time for filing objections as he could justify to the assessors who may be appointed. Any grievance about inadequate opportunity to be heard by the original assessor would be completely cured. The adequacy from the plaintiff's point of having the matter taken over by a panel of two assessors is recognised by him in par 8 of his summons, where he seeks relief precisely to that effect – although such an order would not be within the power of the Court.

   3. (3)

      The avenue of referral to a review panel would lead to the plaintiff acquiring the opportunity for further appeal to the District Court as of right, having regard to the amount in dispute falling somewhere in the range of $25,000 and $100,000. It would also afford him an alternative right of appeal to this Court if he could obtain leave. Consequently, by pursuing the review and appeal path as laid down in the statute, the plaintiff would not be denied access to a judge of a court for adjudication on any issues that he may think would warrant such attention.

   4. (4)

      The plaintiff was under no personal impediment or disability to pursue his right of referral to a review panel. He would have been well able to make such an application to the Manager Costs Assessment. It would have been considerably simpler than preparing his summons, lodging it with the Court and negotiating a fee waiver, being the steps he took at exactly the time when he would have been seeking referral to a panel, had he taken the statutory course.

   5. (5)

      Referral to a review panel would have been significantly more in the interests of all parties, as well as the Court, than commencing the proceedings for judicial review. The review panel would comprise specialists in costs. It would be able to address the merits of the plaintiff's objections and submissions, which he would thus be able to file very much later in 2022 than the time limits that the original assessor had set. The proceeding before the review panel would not involve representation of parties and would be much more economical and efficient, from every point of view, than the plaintiff’s proceeding by summons.

   6. (6)

      At a prima facie level, there appears to be very little, if any, arguable matter in what the plaintiff wishes to raise about lack of opportunity afforded to advance submissions and objections before the assessor. The time that was allowed to him in the end extended over nearly two months from 11 March to 7 May 2022. During that period, far from demonstrating an incapacity to lodge objections, due to mental condition, he demonstrated a significant capacity for contentious correspondence and procedural applications. There does not appear to have been any reason, prima facie, why the assessor should have thought that any more time ought reasonably to have been allowed beyond 7 May 2022. Furthermore, the assessor was in a far better position than I am in to judge whether a reasonable time had been allowed. The assessor had the bill before her, she knew what were the items of claim and she knew what sorts of grounds could, potentially, be argued with respect to assessing the bill. The assessor would be in the best possible position to assess what intellectual effort or energy might be required of the plaintiff to fulfil the task. This Court does not purport to be expert in assessments or in understanding how much time a costs respondent may need. These circumstances contribute to the conclusion that there is no apparent injustice to the plaintiff in the Court exercising the discretion against the plaintiff’s endeavour to invoke the judicial review jurisdiction.

2. [42]

   For all of the above reasons, in the exercise the Court's discretion, the relief sought must be refused. [Upon revising these reasons I record that I have of course taken into account the obvious consideration that the plaintiff is now long out of time to pursue reference to a review panel; that his deliberate choice not to do so, despite being fully informed of the option, would tell against any enlargement of time for that purpose and that the lack of any prima facie arguable case concerning denial of procedural fairness would also be a factor against referral to a review panel out of time].

3. [43]

   Accordingly, the orders of the Court are:

   1. (1)

      The plaintiff's summons is dismissed.

   2. (2)

      The plaintiff is to pay the costs of the first defendant.