Foundas v Wengel

The judgment involves a review of a decision of a Manager, Costs Assessment. The plaintiff’s amended summons dated 27 July 2023 seeks to have the out of time reversed and allow the review of a cost assessment to proceed.

The plaintiff is Bill Foundas. The first defendant is Sean Wengel. The second defendant is Robert Witton. The third defendant is the Manager of Costs Assessment. The plaintiff is self-represented. The first and second defendants were represented by S. Chen. The third defendant filed a submitting appearance. The parties relied on a Court Book (‘Ex 1’). In addition, the plaintiff relied on various affidavits and exhibits A, B and C at the hearing. The defendant’s relied on Ex 2, being a Costs Assessment Rules Committee Guideline dated 24 October 2023 (this document came into existence after the cost assessor had made his determination).

At the hearing, I ordered a stay of the execution on the examination order filed 19 September 2022 in the Local Court until further order of this Court.

On 30 December 2021, the first and second defendants, Sean Magnus Wengel and Robert William Whitton, filed an application for assessment of ordered costs in the Supreme Court of New South Wales. This application was given assessment number 2022/00003527.

On 17 April 2022, the costs assessor allocated to the matter to Patrick Gerard Ferguson (‘the costs assessor’), who determined the application for assessment of ordered costs.

On 29 April 2022, the costs assessor emailed the certificates of determination together with a statement of reasons to the parties.

On 5 May 2022, the costs assessor emailed amended certificates of determination together with an amended statement of reasons to the parties, correcting the first name of the first defendant from “John” to “Sean” (‘amended certificates’).

On 22 May 2022, a copy of the cost assessor’s decision was forwarded to the parties.

I shall refer to the plaintiff’s lodging of this application to review the costs assessor decision, he followed-up letter dated 6 June 2022 of his application for the postponement of filing fees and the subsequent orders of the Registrar later in this judgment.

On 7 June 2022, the amended certificates of determination were registered and took effect as a judgment in Local Court of New South Wales, 2022/00164855 (‘Local Court Proceedings’).

On 16 September 2022, examination orders were made requiring the plaintiff to attend and be examined in the Local Court Proceedings.

On 17 January 2023, the plaintiff emailed an unsealed application for review of determination(s) of a costs assessor with a date of ‘24th May 2022’ and further handwritten notes on page 5 with a date of “16-01-23”. The amended certificates and annexures to the documents (being documents the plaintiff had previously submitted to the costs assessor). I shall discuss this issue in more detail later in this judgment.

On 19 January 2023, the matter was listed for an examination in the Local Court proceedings.

On 6 March 2023, the plaintiff emailed to the defendant’s solicitor a sealed copy of the following:

On 5 May 2023, the Manager, Costs Assessment made a determination refusing to extend time for the plaintiff to lodge a review application, with reasons for determination provided to the parties.

On 31 May 2023, the plaintiff says that he commenced these proceedings by filing a summons with an affidavit in support of the application that appears to have been sworn on 31 May 2023.

On 11 July 2023, a directions hearing took place in these proceedings before Registrar Jones (‘the Registrar’), the Registrar made an order that the plaintiff is to file and serve an amended summons joining the Manager, Costs Assessment to the proceedings by 25 July 2023.

On 18 July 2023, orders were made in the Local Court Proceedings to adjourn, by consent, until 18 January 2024, pending a determination in these proceedings.

On 27 July 2023, the plaintiff filed an amended summons in the proceeding, together with affidavit in support sworn on 25 July 2023.

Section 93B(3) of the Legal Profession Uniform Law Application Act 2014 (NSW) reads:

In Voicu v The Owners – Strata Plan No 1624 [2020] NSWSC 296 (‘Voicu’), Basten JA stated that:

In this present case, the plaintiff is a self-represented litigant. In accordance with Voicu and Alhalek the plaintiff’s application will be treated as a review under r 49.19 of the UCPR. That means that the Court should inform itself of the Manager, Costs Assessment’s determination, together with all the material that was before the Manager, Costs Assessor, and such further evidence that the Court permits to be adduced. The Court then makes its own decision with the benefit of submissions.

Recently, in Boesnsch v Bingham [2022] NSWSC 1432 (‘Boesnsch’), Chen J stated at [43]—[44](4):

In UTSG Pty Ltd v Gwynvill Properties Pty Ltd [2017] NSWSC 558 (‘UTSG’) by Robb J at [33] to [35] set out the applicable principles:

In this current review, I permitted both parties to rely on additional evidence. The plaintiff relied on Exs A, B and C. The defendant relied upon Ex 2. Neither party objected to the tender of additional documents.

That means that the Court should inform itself of the Manager, Costs Assessment’s determination, together with all the material that was before the Manager, Costs Assessment, and such further evidence that the Court permits to be adduced. The Court then makes its own decision with the benefit of submissions.

The costs assessor’s decision is dated 5 May 2022. The costs assessor’s determination and certificate was forwarded to the parties on 22 May 2022. The application was filed in time. The plaintiff deposed that he lodged his application for a review of the costs assessor’s decision, two days later being 24 May 2022. The plaintiff had 30 days to lodge his application as from 24 May 2022. If the plaintiff did in fact lodge his application for review within 2 days of being served with the costs assessor’s decision, it was lodged well in time.

On 3 June 2022, the plaintiff forwarded follow up email dated 3 June 2022 to the Manager, Costs Assessment referring to the review being filed on 24 May 2022. The 3 June 2022 email was also sent within the 30-day period and purported to annex the grounds for making the application for review were attached.

The plaintiff deposed that an application to review form A4 the Costs Assessment was filed by him on the 22 May 2022. The grounds for making the application for review are as follows:

For the reasons that follow, it is more likely that these grounds of review were not filed until January 2023.

The plaintiff explains that this application took a long time for it to be administratively processed in Court Registry. Hence, there were delays and unfairness. Straight after on the 7 June 2022 the judgment was entered against him in the Local Court by the defendant without notice or without his application for a review being acknowledged. An opportunity taken by the applicants at the time and quickly processed it without his presence. He says that the Manager for Costs knew of his application and knew of his timeline that he was not out of time. The Manager knew that an application was being filed and processed. So why was the applicant at the time allowed to unfairly take advantage of the situation and file for a judgment?

On 3 June 2022, the plaintiff sent an email to the Cost Manager. It stated:

The Manager, Costs Assessment states that the certificate of assessment was forwarded to the parties on 22 May 2022.

On 6 June 2022, he received a response by the Clerk. The next day he had judgment entered against him when he says the Costs Manager could have extended his time given he had placed his documents in within the time allocated. I do not have a copy of the costs manager’s response.

The plaintiff says that he was later dragged around the Local Court Sydney with an examination Order that I have referred to this earlier in my judgment.

The plaintiff waited for an outcome at some length while dealing with other matters involving the first and second defendants with the assistance of his partner Ms Cassiani.

In the New Year 2023, once Courts opened again and allowed people to enter the Registry, he attended Level 5 in person. He followed up again on the 16 January 2023 to inquire about the Review application. He says that the Officer he spoke to went to the back of house of the Registry. On that day, he says that he was advised that the Protonotary and a manager were asked and they both agreed that if he places his documents in a now amended form he would be allowed to have his Application for Review actioned.

COVID-19 also hampered him. At this time, he says it was difficult to follow through as Courts were on and off with accepting emailed documents. He has provided two medical certificates that relate, but they refer to the period after March 2023.

The plaintiff now seeks that he be granted an extension of time to review the costs assessor’s decision being reviewed by an appeal panel. He understands that as per Registrar’s Orders that he was not to include any evidence, but rather only on why he was late in his application. He hopes that with his limited English the Court could see his points of view. He is financially in hardship hence it took a further 2-3 months for the Finance Department of the Courts to approve his application. He has had more delays than someone who knows the inner workings of the Court with accounts and the like to process fillings quickly.

On 3 March 2023, the plaintiff was advised by the registry in case 2022/003527 entitled “postponed fee notice” that the filing fee for the costs review application had been postponed. It then stated “the application has been considered and approved payment of the fee is postponed until the proceedings have been concluded (Ex A). The plaintiff explains that he interpreted this as that the application to review the costs assessor’s review application had been approved.

He says that he will file evidence, as to why he seeks a Review of Costs once he has been granted leave. He has included some timeline evidence and emails of conversations with his submissions. He hopes that he will get a fair go.

He says that without professional help, this process took him a long time to research and evaluate. As for fresh evidence one may require, he says that the evidence and hardship he received was unjust and prejudiced.

The defendants’ grounds of opposition to the plaintiff’s application are as follows:

Section 83 of the Legal Profession Uniform Application Act 2014 (NSW) reads:

Clause 45(5)(a) of the Legal Profession Uniform Law Application Regulation 2015 (NSW) states:

It is now convenient that I set out the decision of the Manager, Costs Assessment dated 5 May 2023.

The Manager, Costs Assessment stated:

There is no error in the Manager, Costs Assessment’s findings, nor is there any demonstrated reason to depart from the Manager, Costs Assessment’s determination. The determination is well-reasoned and available on the evidence.

Findings (a) to (c), and (f) are ascertainable from reviewing the materials before the Manager, Costs Assessment.

As to finding (e), those dates are ascertainable from the materials before the Manager, Costs Assessment. In relation to the delay being significant, Chen J considered that a delay of around 5 months, on its own, would not favour the grant of an extension of time: see Boesnch at [49].

As to finding (g), this was in the materials before the Manager, Costs Assessment, but is in any event verifiable based on the published judgment in Arambatzis v Foundas; Foundas v Wengel [2021] NSWCA 78.

As to finding (h), were it otherwise, then this would be impugning the costs order made by the Court.

As to the percentage reduction on costs made by the costs assessor in finding (j), this was also in the material before the Manager, Costs Assessment. It would be open to the Manager, Costs Assessment based on experience and knowledge of costs assessments and the knowledge and experience of the costs assessor engaged to further make the balance of this finding.

The balance of the findings are open on the materials before the Manager, Costs Assessment, and are otherwise, it is submitted, based on a correct application of the law. There is therefore no error on the part of the Manager, Costs Assessment.

The evidence of the plaintiff, to the extent is it accepted by the Court, does not suggest that there is any change in the circumstances of the plaintiff.

Noting further that this is a matter of practice and procedure, there should be a natural inhibition against overturning a registrar’s decision: see UTSG at [33]. As noted in In Re the Will of FB Gilbert (1946) 46 SR (NSW) 318, repeated with approval in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, the Court will not readily interfere with directions given as a matter of practice and procedure, instead exercising great restraint. Further, this was a discretionary decision of the registrar, on the exercise of the discretion of the costs assessor, meaning there is all the more reason not to disturb the determination unless there is an exceptional reason to do so. It is submitted there is none in the present circumstances.

The discretion conferred on the Manager, Costs Assessment under section 83(1A) of the Application Act is broad and unconfined by statutory limitations: see Alhalek at [57]-[58]. A range of relevant factors may inform the exercise of the discretion, including but not necessarily limited to, the reasons for the delay in making the application; the merits of the proposed review; and any relevant prejudice experienced by the parties: see Alhalek at [58].

Similarly, in Boesnch at [43] and [44(4)], Chen J confirmed that, broadly, the general principles concerning whether an extension of time should be granted to lodge a review application involve making reference to the following factors:

See also Voicu at [26], [31] and [35], in which a similar approach taken by the Manager, Costs Assessment was considered by Basten J, with no error identified in that approach.

Despite the additional evidence being submitted by the plaintiff, should it be accepted by the Court (not being material before the Manager, Costs Assessment at the time and subject to objections as to admissibility), the explanation for the delay in lodging the review application is still deficient. It does not adequately explain the delay.

There is no email showing the lodging of the application on 24 May 2022. Even accepting that the plaintiff in fact did so (which is not admitted), and that he sent emails on 3 and 4 June 2022 (being the 29th and 30th day afterwards) to follow up on the processing of the lodgement (which is not admitted), and assuming that the time commenced from the forwarding of the amended certificates of determination rather than the date of provision of the original certificates of determination, there is still no explanation (or no proper explanation) of why there was a delay between the purported events taking place in June 2022 and 16 January 2023. This is a period of at least seven months (noting the period to lodge a review application is 30 days).

It seems that the plaintiff, after sending an email on the 30th day after receiving the amended certificates and noting a concern about not wanting to be late, that he, by his own admission at [13] of his written submissions dated 19 September 2023, did nothing further for those seven months.

In this regard, it seems that the plaintiff only took action again once the matter was listed for examination on 19 January 2023 in the Local Court Proceedings.

The application was not served, sealed or unsealed, on the review respondents around May or June 2022, instead being provided, unsealed, on 17 January 2023 and with a seal on 6 March 2023.

It is submitted that this is an insufficient explanation for such a lengthy delay, and this weighs heavily against disturbing the determination made by the Manager, Costs Assessment.

Even were, notwithstanding the above, the matters in the plaintiff’s submissions accepted (which are denied) at their highest, they only attempt to partially explain the delay in lodging the Review Application.

They do not cure or address the other deficiencies in the Review Application. In particular, the lack of merit in the Review Application (and the futility of continuing the application in such circumstances) is sufficient, of itself, to refuse the extension application. Generalised objections and dissatisfaction with the result provides no proper grounds for review. The Manager, Costs Assessment’s findings in this regard are apposite.

In addition to the above, the prejudice to the first and second defendants has not been addressed by the applicant’s submissions. Any extension further prejudices the first and second defendants, particularly in circumstances where the costs orders were made on 19 March 2021, more than two and a half years ago. This weighs against disturbing the Manager, Costs Assessment’s determination.

The references to the Legal Profession Act and sections of that Act, Part 50 of the UCPR, and statutory appeals are irrelevant. That is, [5] to [9] of the plaintiff’s written submissions dated 19 September 2023 are not relevant to the present proceedings. Assuming the matter is proceeding as a review of a registrar’s decision, then references to Part 59 of the UCPR are likewise irrelevant.

The plaintiff’s written submissions otherwise provide no cogent reason to set aside the Manager, Costs Assessment’s determination, nor to extend time to lodge the review application.

The plaintiff is a self-represented litigant. On 22 May 2022, the decision of the costs assessor was forwarded to the parties. Pursuant to s 83(1) of the Legal Profession Uniform Application Act 2014 (NSW), a party to a costs assessment has 30-days from when the costs assessor’s decision was forwarded to them to apply for a review application. I accept that the plaintiff lodged his application seeking a review within 2 days. However, it is debatable whether or not he attached his reasons for review to the application.

The original summons was lodged on 24 May 2022. On 3 June 2022, the plaintiff sent an email addressed to the Cost Manager that relevantly reads:

At the hearing, the plaintiff tendered an email to costsassessment@justice.nsw.gov.au dated 4 June 2022 in relation to this matter, where he says:

I am prepared to accept that the plaintiff lodged the application for review of the costs assessor’s decision within a 28-day period. In other words, this application was lodged in time. As noted earlier it is unclear is whether the plaintiff had set out his grounds of appeal. While the Manager, Costs Assessment criticised the plaintiff’s failure to file submissions, it is not to the point: see Boesnsch at [44](4) referred to earlier in this judgment.

On 6 June 2022, the received a response from the Manager, Costs Assessment. I do not have a copy of that letter. On the next day on 7 June 2022, the defendants took immediate action to register it as a judgment in the Local Court and enforce that judgment by way of an examination order. As at 6 June 2022, the plaintiff was still in time to lodge his application for review of the costs assessor’s decision. On 7 June 2022, it is clear that the defendant’s were aware that the plaintiff had lodged an application for review of the costs assessor’s decision with the Supreme Court.

On 11 July 2023, a directions hearing took place in these proceedings before the Registrar, where an order was made that the plaintiff is to file and serve an amended summons joining the Manager, Costs Assessment to the proceedings by 25 July 2023.

On 27 July 2023 (two days late), the plaintiff filed an amended summons in the proceeding, together with affidavit in support sworn on 25 July 2023.

It is my view that in these circumstances, the plaintiff should be given an opportunity to have the decision of the costs assessor dated 2 May 2022 reviewed. With the advantage of fresh evidence and reviewing the Manager, Costs Assessment decision, I have come to a different view to that of the Manager, Costs Assessment. I set aside the decision of the Manager, Costs Assessment dated 5 May 2023.

The application for the review of the costs assessor’s decision dated 2 May 2022 is to be referred to a review panel.

Costs usually follow the event. The defendants are to pay the plaintiff’s costs.