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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
D. M. Wright and Associates v Murrell  QDC 110
D M WRIGHT & ASSOCIATES
IAN GORDON MURRELL
Magistrate’s Court, Brisbane
10 June 2020
11 May and further written submissions of 15 and 22 May 2020.
PROCEDURE – APPEAL –ADJOURNMENT OF REVIEW OF COST ASSESSMENT– non-compliance with orders for filing summary of argument and list of authorities - where hearing to take longer then allotted time -where the learned Magistrate ordered the appellant pay the respondent’s cost thrown away by reason of the adjournment of the hearing on an indemnity basis – where the appellant seeks the orders be set aside – where the appellant further seeks an order that the costs of the adjournment of the review on that day be reserved – whether appellant had in fact filed a summary of argument–where allegations of bias made against cost assessor – whether the costs assessor should have been served with material– whether the appeal should be allowed
Legal Profession Act 2007 (Qld) s 341
Livesey v New South Wales Bar Association (1983) 151 CLR 288 – referred to
R v Watson Ex parte Armstrong (1976) 136 CLR 248 – referred to
Re JRL; Ex parte CJL (1986) 161 CLR 342 – referred to
Vakauta v Kelly (1989) 167 CLR 568 – referred to
Johnson v Johnson (2000) 201 CLR 488 – referred to
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 – referred to
Li v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 125 – referred to
Ivory v Telstra Corporation  QCA 457 – referred to
Mann v Medical Practitioners Board of Victoria & Anor  VSCA 51 – referred to
Fotis v Magistrates Court of Victoria  VSC 301 – referred to
S Hartwell for the applicant
R P Dickson for the respondent
D M Wright & Associates for the appellant
QBM Lawyers for the respondent
- This is an appeal from a decision of Magistrate Hay of 29 October 2019. I will for convenience refer to the parties by their role in this court. The appellant was the respondent below and the respondent was the applicant in that court. On that day, her Honour adjourned the review of a costs assessment and ordered that the appellant pay the respondent’s costs “thrown away by reason of the adjournment, of the hearing listed for 29 October 2019 on an indemnity basis.” The review related to the assessment of costs of three bills of the appellant on what are called the Gordon bill, Enid bill and Joyce bill. All three were estate matters in which the respondent engaged the appellant to act on his behalf.
- The appellant seeks to set aside that order of 29 October and, in lieu, seeks an order that the costs of the adjournment of the review on that day be reserved. It also seeks an order that the respondent pay the appellant’s costs of the appeal.
- It is instructive to note what this dispute concerns. The total of the three bills of the appellant amount to the sum of $44,817. The respondent required those bills to be assessed. Mr Hallam, the appointed costs assessor, assessed the bills at $31,109. As a result of that determination the appellant was required to pay the respondent’s costs of the assessment. Such costs were allowed by the assessor in the sum of $15,620. The assessor’s own fees were also ordered to be paid by the appellant in the sum of $13,950. The appellant, who had been paid the full $44,817 by the respondent, was thus ordered to refund $29,328 to the respondent (being the bill of $44,817, less the allowed costs of $31,109, plus the respondent’s costs of $15,620) and became indebted to the assessor in the sum of $13,950 for the assessor’s costs.
- The appellant sought a review of that cost assessment. The grounds for seeking the review included an assertion of bias, or apprehended bias against the appellant, by the assessor. It was said:
- (a)the costs assessor failed to afford the appellant procedural fairness; and
- (b)the assessor made statements indicative of bias, or such as to cause a reasonable lay observer to apprehend bias.
- The grounds of review give what are described as examples of the assessor’s conduct indicating bias or apprehended bias although the allegations of bias were said to “include but are not limited” to those examples.
- Other grounds for the review of the assessment include that the assessor allegedly inappropriately intervened in the assessment process, that the respondent’s (applicant below) costs of the assessment were excessive and disproportionate to the nature of the dispute, that the assessor misapplied s 341 of the Legal Profession Act and that he erroneously failed to apply the costs agreement.
- Although allegations of bias were raised, it was not a case where the appellant had sought to have the costs assessor recuse himself, or be stood aside, on the basis of bias or apprehended bias.
- On 23 August 2019, Magistrate Cull made orders in relation to the conduct of the review of the costs assessment relating to the three bills. The matter was set down for hearing, on 29 October. Her Honour ordered that the respondent file and serve any further affidavits to be relied on, together with the “summary of argument and a list of authorities upon which it wishes to rely” by 4pm on 6 September 2019.
- The applicant was ordered to file the material on which he relied on or before 4pm on 27 September, which I note was 21 days after service of the appellant’s material was to be effected.
- Rather than filing the material within that two week period, the appellant did not file any material until 4 October, four weeks after the date ordered and only 25 days prior to the hearing. Moreover, the material then filed comprised only an affidavit of a solicitor which, inter alia, exhibited a schedule of objections to items in each bill. No outline of argument, or at least no document so entitled or described, and no list of authorities, was then filed.
Magistrate’s Court Hearing
- It was said on behalf of the appellant that the primary reason for the significant delay in filing the material it did file was the illness of the mother of the principal of the appellant.
- The circumstances of that illness are dealt with in an affidavit of Dianne Wright, the principal of the solicitors, filed in the court below by leave on 29 October. On that day Magistrate Hay, in the course of her reasons, made a number of observations about that affidavit. I think it is fair to say that the affidavit did not disclose why the illness of Ms Wright’s mother bought about the significant delay I have referred to. There is no doubt the learned Magistrate properly accepted that Ms Wright’s mother was ill, that she had been admitted to hospital on three occasions, and that the illness was life threatening. But that of course does not explain why Ms Wright, or her firm, was not able to file and serve the material contemplated by the order of 23 August within the stated timetable.
- On 29 October counsel for the appellant also informed the court that “a couple of weeks ago” the appellant had notified the court that it no longer believed the estimate of a one day hearing was accurate, and indicated the matter would instead take two days. It seems (see T1-25 l35 of the hearing below) that this notification was in fact on 14 October. The appellant had sought agreement from the respondent at that time to relist the matter. Such agreement was not forthcoming. It was not explained to the learned Magistrate on 29 October why the appellant did not simply, on notice to the respondent, relist the matter in order to then seek an adjournment. That action, if it had resulted in an adjournment, as subsequently occurred on 29 October, would have very significantly limited the costs thrown away by reason of the adjournment.
- The appellant’s material filed on 4 October comprised an affidavit of Timothy Cunningham, a solicitor employed by the appellant. A schedule of objections in relation to each of the 3 bills was attached. I shall refer in detail to those schedules in due course.
- The learned Magistrate observed that the appellant had not filed any “summary of argument” in accordance with the order of 23 August. Whether this had in fact not been done was a matter of dispute both before the learned Magistrate and before me. Counsel submitted in the court below, and also before me, that the schedules attached to Mr Cunningham’s affidavit, read in conjunction with the “grounds of review” attached to the application below and which itself comprised seven pages, constituted the “summary of argument”. Counsel was asked specifically by the learned Magistrate if the grounds of review attached to the application and the schedules constituted the applicant’s summary of argument and confirmed they were (see T1- 18 ll19-38 and also at T6 l34 – T7 l8).
- Counsel conceded that the schedules had not been filed until 4 October and said that “the net result of that failure to comply with the direction is that the (respondent) was put in a position where they couldn’t respond in time” (T7 ll21-23). The respondent did in fact file and serve his submissions on 28 October, some 24 days after the service of the affidavit material on them on 4 October, but only a few days after receiving the appellants list of authorities which had been served only in the week prior to the hearing, despite the order which also required that to be done by 6 September.
- Counsel for the appellant submitted to the Magistrate that the matter would not in any case be completed in one day. That was common ground. It was submitted the appellant had raised its concerns about the matter taking two days some weeks earlier, on 14 October as I earlier stated.
- Counsel for the respondent submitted that it could “in no way … be said that the grounds annexed to the application document amount to the summary of argument”. He submitted that the suggestion the appellant had complied with the directions relating to filing an outline of argument, albeit late, was untenable. He said this was especially so as the appellant had only, in the week prior to 29 October, filed and served its list of authorities.
- Counsel for the respondent ultimately submitted to the learned Magistrate that the absence of any outline of argument, the fact that no notice of the hearing had been given to the costs assessor so as to allow him to appear if he wished, when the appellant’s case was that the assessor was biased or that there was an apprehension of bias making it necessary that the assessor be given a proper opportunity to defend himself, and the late delivery of the relevant list of authorities meant that the case was simply not ready to proceed.
- It is important to note that in relation to his submission about the assessor not been given notice of the hearing, counsel for the appellant said:
“So the case is one that is not ready. There is no summary. Going ahead today, the first thing that I’m going to be submitting is that either the bias claim should be struck out, or, at the respondent’s costs on an indemnity basis, the matter should be adjourned to allow a fair hearing to Mr Hallam, the costs assessor.”
- It should be noted counsel’s submission was both that the cost assessor, in circumstances where bias was alleged, needed to be notified so there could be a “fair hearing” to him and, unless the bias claim was struck out, the matter should be adjourned so that could happen and the appellant ordered to pay costs on an indemnity basis.
- This was, so far as I can ascertain, the only reference to the awarding of costs on that basis up to the time of the Magistrate, at T1-28 l35, indicating she would so order.
- In relation to the issue of the failure of the applicant below to have given notice of the hearing to the assessor, I interpose that in my view, if that was necessary, (and I shall consider that issue shortly) it was a matter which ought to have been addressed by the parties on the hearing for directions before Magistrate Cull on 23 August. Both parties were by then well aware that the application for review alleged bias, or apprehended bias. Neither party at that hearing asserted the assessor ought be given notice of the hearing. In so far as this issue was relevant to the Learned Magistrate’s decision to adjourn the matter and to order costs this involved fault by the respondent’s lawyers in not then making the submission that the assessor ought be served ultimately made on 29 October.
- Counsel for the respondent accepted that the matter would not finish in one day. The learned Magistrate asked about the respondent’s response to the appellant’s suggestion to adjourn the matter, made on 14 October. Counsel simply said that “we were still waiting for the summary of argument” (see T14 l23). He submitted it only became clear that the matter would take more than the one day allotted when they were served with the list of authorities “late last week”, noting that the list was unsupported by any accompanying argument or statement of legal principles to be derived from those cases.
- In reply, counsel for the appellant submitted that in circumstances where the appellant had suggested relisting the matter two weeks prior to the hearing before Magistrate Hay “there should … be no costs thrown away”.
- He again submitted the “grounds of review” attached to the application, supplemented by the more detailed schedules exhibited to Mr Cunningham’s affidavit, constituted the written summary of argument and so compliance with the order of the court. I note that submission fails to address the submission of the respondent’s counsel that the provision of the list of cases, only shortly before the hearing, was a clear indication the order of 23 August had not been complied with.
- This matter of whether the summary of argument had been filed on 4 October was addressed by the learned Magistrate who asked;
“So how do I understand the respondent’s argument…from that material and the list of the cases…without me being required to do the…job of working out what (the) arguments are”.
- Counsel for the appellant effectively conceded that point saying “I appreciate Your Honour’s difficulty. And I probably can’t take that any further”.
- Her Honour was clearly troubled by the submission that the grounds for review, even in combination with the schedule of objections, constituted the summary of argument. Her Honour referred, as an example, to the ground of bias relied on and said “it should be clear on the material what the allegations are”. She referred to the wording in the grounds for review, that “examples indicating bias or apprehended bias include but are not limited to” particular examples given. Her Honour said if bias was to be asserted it “should be clear on the material what the allegations are” (T1 –20, l16-20).
- Counsel for the appellant also addressed a submission of the respondent’s counsel that the schedule of objections attached to Mr Cunningham’s affidavit said on multiple occasions that costs were “disproportionate”, but that the schedule and grounds of review provided no legal basis to support a proposition that matters of proportionality were applicable legal concepts relevant to an assessment of costs under the Legal Profession Act 2007 (see T1-8 l20 ff). In his submissions in reply, counsel for the appellant agreed that “there is no case cited to establish this principle of proportionality that we might argue” (T1-21 l19-20).
- Her Honour ultimately concluded that if the grounds of review and an affidavit exhibiting the schedule objections were the summary of argument “they’re not assisting the court in pointing the court to the orders or issues…that the court should be considering” (T1-22, ll43– 45).
- Her Honour then asked a very pertinent question, enquiring “what was…the purpose of the directions made by the court if all of these things were before the court”. Of course at the time of the direction hearing only the Grounds of Review attached to the application had been filed.
- Counsel said it was his fault that the directions had been made as he had sought those directions as he “anticipated there would be further submissions” (see T1-23, l39– 40). He then indicated that after discussing the matter with his solicitors “we decided that those (schedules) would be our submissions, together with the grounds of review.” I might say that whilst that submission was made from the bar table in the court below, I have found no material in the affidavits or in correspondence that passed between the parties exhibited to those affidavits to indicate any such decision by the appellant’s counsel and his instructing solicitor was in fact made, or when it was made.
- More importantly, if such a decision not to file any named “summary of argument” despite the order of 23 August was made, one might have thought that fact would have been clearly communicated to the respondent. He, no doubt, was waiting for the summary of argument and list of authorities required by the terms of paragraph 3.2 of the order of 23 August. Counsel for the respondent submitted the appellant’s position, namely that the order had been complied with by the delivery of the schedules attached to the affidavit and the grounds of review, was never communicated to the respondent. And of course, the required list of authorities was not then produced in any case.
- The learned Magistrate commenced her decision on page 25 of the transcript. Her Honour noted the appellants had advised the court on 14 October that the appellant considered the matter would take more than the one day allotted, and that the respondent was not then agreeable to adjourning the matter.
- Her Honour noted the appellants’ non-compliance with the requirements of the order of 23 August, and the absence of any application seeking variation of that order. She found no summary of argument had been filed and that the list of authorities was served, but well past the allotted time-frame. She rejected the appellants’ arguments that the grounds of review and schedules of objection constituted a summary of argument. She specifically found neither document set out relevant legal principles relied on by the appellant. I shall deal more fulsomely with that issue in due course.
- Consequently, her Honour found the respondent, the applicant below, “was not in a position to understand the basis of the submission that the matter was going to take beyond one day” as it had no summary of the appellants’ argument or cases or legal principles to be relied on (see T1-27, l10 – 17).
- Her Honour also thought it of great relevance that the affidavit of Ms Wright was “tellingly silent” on steps the appellant had taken to communicate difficulties she may have had in complying with the Order of 23 August to the respondents solicitors, or with the court, or to explain why Ms Wright’s substantial input was indeed necessary when it was Mr Cunningham who had been dealing with the matter on behalf of the appellant in the Magistrates court. There was, her Honour observed, no explanation as to why Mr Cunningham could not have adequately instructed counsel with respect to the preparation of the summary of argument.
- In such circumstances, her Honour viewed the appellants’ request for an adjournment as a request for an indulgence due to non-compliance with the directions of the court. She was concerned about the lengthy delay in resolving the whole of the matter, which she noted had been commenced a year earlier. Ultimately, the learned Magistrate agreed to adjourn the application, subject to “strict supervision” by the court to ensure the matter was thereafter dealt with expeditiously.
- His Honour said that the appellant’s conduct had “left the (respondent) and the costs assessor in the invidious position of having arguments of either apprehended or actual bias that are not fully particularised or articulated, although examples in a non-exclusive list are given in the grounds of review. There is no suggestion that notice of that material has been given to the costs assessor … and that should occur.”
- Her Honour then indicated she intended to order that the appellant pay the respondent’s costs thrown away by the adjournment due to the appellants’ substantial non-compliance with court directions and its failure to address that failure “in a meaningful way”. This last reference seems to me to be a statement concerning the appellants’ failure to advise the court, or the respondent, in a timely way of the difficulty Ms Wright was having in preparing the material expeditiously.
- In such circumstances, and without hearing specific submissions about the issue of costs, her Honour determined that costs be paid on an indemnity basis, because she was satisfied the appellant’s failure were “quite serious”. Her Honour recognised that such orders are usually only made in “exceptional circumstances”, but was mindful that the appellants’ request to adjourn the matter were made in circumstances where it was not possible for the respondent to properly assess the genuineness of the appellants’ request for such an adjournment.
- It is important to note that the only reference to costs being paid on an indemnity basis up to that point was the submission by counsel for the respondent (the applicant below) that I earlier referred to – namely, his submission that if the matter proceeded on 29 October the “first thing” he was going to do was submit “the bias claim should be struck out or, at the respondent’s costs on an indemnity basis, the matter should be adjourned to allow a fair hearing to Mr Hallam, the costs assessor.”
- That it was this submission which influenced the learned Magistrate to make such an order is made clear, in my assessment, because after indicating the appellant should pay costs on an indemnity basis, the learned Magistrate said at the following page (T1-29) “I had heard Mr Dickson say that part of what he would be seeking from an adjournment today was indemnity costs”. She said she had it “noted”.
- Her Honour very properly considered the issues raised in Ms Wright’s affidavit, including the fact that the affidavit did not properly disclose any reason why the summary of argument and list of authorities were not prepared on time.
- Her Honour also in my view properly addressed the issue of whether the grounds of review attached to the application and the schedules of objection attached to the affidavit of Mr Cunningham together constituted a written summary of argument.
- Before me the appellant submitted that they did constitute a summary of argument such that, on the filing of Mr Cunningham’s affidavit 4 October, there had been substantial compliance with the court order of 23 August. In my view consideration of the material indicates that is not to.
- The schedules of objections to the Gordon bill are not extensive (see pages 13 – 14 of the exhibit to the affidavit). However the schedule of objections in relation to the Enid bill and the Joyce Bill are both voluminous, comprising pages 22 – 60 and 61-85 of the exhibits to Mr Cunningham’s affidavit.
- The costs assessor’s reasons are themselves lengthy and had been exhibited to an earlier affidavit of Mr Cunningham filed in the court below. The objections in the Enid bill alone comprise, by my unaudited calculation, 85 separate objections to 167 items. One of those is a compendious objection to Items 414 – 471. Most however deal with an individual item or a small number of consecutive items. The phrasing of the objections is often very general. By way of example, the first objection, to Item 5, asserts a claimed error of fact by the assessor but relies also on there having been a “misapplication of the assessment criteria in s 341 of the Legal Profession Act”. That objection, namely misapplication of the assessment criteria in s 341 of that Act, is repeated for Items 6 – 10, 15 – 16, 34, 57, 58, 59, 98, 99, 117, 121, 123, 124, 131, 133, 134, 135, 137, 139, 148, 149, 159, 160, 165, 172, 179, 184/5, 187, 200, 204, 208, 214, 215, 221, 224, 225, 227/8, 231, 237, 243/4, 245, 271/2, 274, 277, 279, 288/9, 290, 294/5, 308, 310, 318, 320/321, 324/326, 335, 336, 339, 340, 342, 355, 356, 357/358, 363, 366, 368/369, 383, 387, 399, 490, 47, 411 and 414-471.
- Perusal of the material provides no insight into how or why any such misapplication arises. If the respondent’s submission that the summary of argument relied on was the schedule of objections read with the grounds for review, then the legal basis of the subject objection should be clear. It is not.
- Section 341 itself is in these terms:
“341 Criteria for assessment
- (1)In conducting a costs assessment, the costs assessor must consider—
- (a)whether or not it was reasonable to carry out the work to which the legal costs relate; and
- (b)whether or not the work was carried out in a reasonable way; and
- (c)the fairness and reasonableness of the amount of legal costs in relation to the work, except to the extent that section 340 applies to any disputed costs.
- (2)In considering what is a fair and reasonable amount of legal costs, the costs assessor may have regard to any or all of the following matters—
- (a)whether the law practice and any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf complied with this Act;
- (b)any disclosures made by the law practice under division 3;
- (c)any relevant advertisement as to—
- (i)the law practice’s costs; or
- (ii)the skills of the law practice, or of any Australian legal practitioner or Australian-registered foreign lawyer acting on its behalf;
- (d)the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter;
- (e)the retainer and whether the work done was within the scope of the retainer;
- (f)the complexity, novelty or difficulty of the matter;
- (g)the quality of the work done;
- (h)the place where, and circumstances in which, the legal services were provided;
- (i)the time within which the work was required to be done;
- (j)any other relevant matter.
- (3)In conducting an assessment of legal costs payable by a non-associated third party payer, the costs assessor must also consider whether it is fair and reasonable in the circumstances for the non-associated third party payer to be charged the amount claimed.”
- The application for review recites that the respondent is applying for an order that the court “review the decisions included in the costs assessor’s certificate of assessment on the grounds set out” in the attached grounds of review. That document sets out the grounds under six separate headings namely:
- Bias or apprehended bias.
- Costs assessor’s intervention in the assessment process.
- Applicant’s costs of assessment.
- Costs assessor’s certificate.
- Misapplication of s 341.
- Schedule of disallowances in respect of each of the three matters.
- Other errors.
- The alleged misapplication of s 341 is stated in these terms:
“MISAPPLICATION OF SECTION 341
- (a)the correct procedure to be followed by the Costs Assessor when a Costs Agreement has not been set aside was to:
- (i)consider whether or not it was reasonable to carry out the work to which the legal costs related [s 341(1)(a)];
- (ii)consider whether or not the work was carried out in a reasonable way [s 341(1)(b)]; and
- (iii)then, after so determining the work that should be allowed, apply the rates outlined in the Costs Agreement to the work so allowed [applying s 340(1)(a) and s 340(1)(c)];
- (b)the Costs Assessor has erred in law by going beyond the terms of the Costs Agreement;
- (c)the Costs Assessor has not applied the Scale in the Costs Agreements. By way of example:
- (i)The Costs Assessor does not allow the Respondent’s charges for what he terms ‘formal parts of letters’, see pages 51 to 54 of the Reasons and page 10 and 11 of the Reasons;
- (ii)The Costs Assessor has not applied the time charges in accordance with the Scale in that time is to be charged in 5 minute blocks, see Item 107; 109 and 110. An example occurs on page 3 of the Reasons at item number 98 the Costs Assessor disallows $8.25 as he reduces a claim from 20 minutes to 18 minutes when the Scale in the Costs Agreements specifically allows a charge of “per 5 minute blocks.”
- The appellant’s contention in relation to the misapplication of s 341 is related to some 143 items and 70 objections in respect of the Enid bill alone. It is said that the costs assessor misapplied the assessment criteria in s 341 of the Legal Profession Act in that he “erred in law by going beyond the terms of the costs agreement” and did not apply the scale in the costs agreement.
- In my view, it is impossible to discern from the document, being the grounds of review and the schedules of objection, which of the criteria set out in s 341(1) and (2) of the Act the costs assessor is said to have misapplied in relation to any particular item.
- Despite the respondent providing to the applicant, in the week prior to 29 October, a list of legal authorities, no attempt was ever made to state or identify legal principles to be distilled from those authorities in support of the appellant’s argument, or to say how they should be applied in respect of any particular item objected to.
- No cases at all are set out in the grounds for review documentation. The schedule of objections refers to a number of cases (see for example, the significant number of references to the case of Picamore Pty Ltd v Challen in that schedule, and at page 34 of the document (page 55 of the exhibits) to a number of cases in support of the proposition that the respondent is entitled to recover fees after the termination of retainer. But not attempt has been made to distil relevant legal principles by reference to those cases or the cases ultimately set out in the appellants list of cases provided shortly before 29 October.
- The schedule refers also (for example at p 35/36), to a number of cases related to obligations imposed under s 308 and/or s 315 of the Legal Profession Act, but it does not appear, as Magistrate Hay found, that the documents relied on by the appellant as continuing the “summary of argument” contain relevant legal principles discerned from the list of authorities the appellant served. The very late provision of a list of authorities without reference to legal principles illustrates why her Honour found the appellant had not complied with the orders to provide a summary of its argument as directed.
- There are other factors too which support such a finding by the learned Magistrate. The fact that the appellant consented to the orders of Magistrate Cull of 23 August, agreeing to file and serve a summary of argument and list of authorities by 6 September, suggests counsel for the appellant, who had appeared before Magistrate Cull, did not then consider that initial document attached to the application constituted such a summary of argument.
- Moreover, if the appellant concluded as at 4 October that the documents, considered together, did constitute such a summary of argument in compliance with the order, it is difficult to comprehend why the appellant did not clearly and succinctly tell the respondent’s solicitors that, at the time the affidavit of 4 October was served, or even when the list of authorities was subsequently provided.
- The most the appellant did was to advise the respondent that no further material would be provided. That would scarcely be interpreted by the respondent, awaiting the summary of argument, as an assertion by the applicant that it had in fact already complied with the obligation to provide that summary of argument.
- Furthermore, and tellingly, the affidavit of Ms Wright filed in the Magistrates Court on 29 October, appears to me to have been filed with the purpose of explaining why she had not complied with the earlier order. She did not assert in that document that the material filed on 4 October was in fact a summary of argument. In paragraph 17 of that affidavit she refers to a request by her firm for the respondent to agree to an extension of time for her to file “the balance of any case”. The exhibited letter of 4 September, making such a request, refers to “any further affidavit, a summary of argument and list of authorities” ordered to be provided by Magistrate Cull”. It would have suggested to the respondent that the appellant was to file a summary of argument in addition to any affidavits.
- In a letter of 9 October (Exhibit 3 to the affidavit of Ms Wright filed in the Magistrates Court on 29 October) the appellant asserts “you were provided with the balance of our client’s case on 4 October 2019” but as I have said, nowhere in that letter did the appellant specifically advise the respondent at the time of that letter, or subsequently, that the application for review and schedule of documents together amounted to the “summary of argument”.
- And nor could it be said that there had been compliance with the order of Magistrate Cull on 4 October when the list of authorities was provided only in October and then without accompanying statements of legal principle or even references to particular passages or paragraphs in those judgments. Clearly the “the balance of our client’s case” was not provided on 4 October, despite Ms Wright’s assertion in the letter of 9 October.
- In the circumstances I can see no reason to depart from her Honour’s determination that those documents did not amount to a written summary of argument in compliance with the order of Magistrate Cull. The documents the appellant relies on simply did not enable the court, or the respondent, to understand the nature of the appellant’s case by way of a concise summary of facts and legal principles, particularly as the list of authorities was not provided until significantly later, and then without any reference to legal principles or particular passages in those authorities.
- In my view, there was no reason to conclude that the Magistrate’s determination of non-compliance by the appellant was in any way wrong. In my view that decision justified her Honour in ordering that the appellant pay the respondent’s costs of the adjournment.
- Having regard to that determination it is then necessary to consider whether the decision to award costs on an indemnity basis was justified. Her Honour recognised that such an order was unusual but clearly considered the appellants non-compliance with the order of the court was sufficiently egregious to justify such an order.
- Circumstances critical to the determining of the issue of costs by the learned Magistrate on 29 October were:
- (a)the appellant had not complied with the order to file and serve the summary of argument and list of authorities by 6 September;
- (b)the appellant, despite filing the affidavit of Mr Cunningham on 4 October, had not at any time filed and served a summary of argument;
- (c)the appellant only filed its list of authorities shortly before the hearing of 29 October;
- (d)it was not until service of the list of authorities, in the week ending Friday 25 October, that the respondent reasonably concluded that the matter would take more than one day to determine;
- (e)the appellant accepted that, due to its serving the affidavit of Mr Cunningham only on 4 October, the list of authorities only in the week prior to the hearing and never having served a summary of argument, the respondent could not reasonably prepare and serve its own summary of argument and list of authorities until just prior to the hearing. This was done on 28 October.
- (f)the appellant did not, upon forming the view that the matter could not be completed in one day – which necessarily must have been no later than 14 October when it first contacted the respondent, and indeed the court, about that fact – bring an immediate application to adjourn the hearing of 29 October.
- These issues are all issues addressed by the learned Magistrate in the course of submissions and were considered by her in making the order she did in relation to costs.
- But as I earlier indicated it seems clear to me that the learned Magistrate was also influenced in coming to her conclusion that the respondent’s costs should be paid on an indemnity basis, by the submission of counsel for the respondent that the failure of the appellant to have served material on the costs assessor justified the court in ordering that the appellant pay costs on an indemnity basis. In my view that conclusion necessarily follows from the learned Magistrate’s comments (at T1-29) to which I have already referred.
- It is therefore necessary to consider whether the submission that the failure to have served the costs assessor so as to give him a chance to appear before the Magistrate justified, or at least was significantly relevant to, the issue whether making such a costs order was appropriate.
- Each of the parties prepared further written submissions on this issue.
- The respondent’s counsel submitted that “the reasons for the order for costs on the indemnity basis did not include the failure of the solicitors to give notice of the actual bias claim to the current costs assessor”.
- I have already indicated that I do not accept that to be so. The question remains whether, in the circumstances of this case, the respondent’s counsel was justified in submitting – and the learned Magistrate justified in accepting – that it was necessary for the costs assessor to be served with the material relied on so as to give him the opportunity to be heard by the Magistrate conducting the review of the costs assessment.
- In my view the cases clearly indicate that there is no general rule of practice requiring a Judge, tribunal member, costs assessor or other figure against whom allegations of bias or apprehended bias are made to be served with material so as to give them an opportunity to refute the allegations other than in circumstances where they are necessarily a party to proceedings.
- When considering that issue by reference to cases in which allegations of bias or apprehended bias are made it is important to bear in mind that in some cases the party alleged to be biased may in fact be a party to the proceedings by reason of the nature of relief sought.
- In Livesey v New South Wales Bar Association allegations of apprehended bias were made against two Judges of the New South Wales Court of Appeal. The High Court held that the allegation of apprehended bias might be established in the mind of a fair minded observer and set aside the decision of the Court of Appeal striking Mr Livesey’s name from the role of barristers. There was no suggestion that the Judges of the Court of Appeal were, or should have been, served with material.
- In R v Watson Ex parte Armstrong the relief sought was a writ of prohibition directed to Justice Watson prohibiting him from further hearing the proceedings on account of allegations of alleged pre-judgment of issues of credit.
- Because of the nature of the relief sought, the Judge was served, but entered only a submitting appearance. So too in Re JRL; Ex parte CJL the remedy sought was a writ of prohibition to restrain the Judge from proceeding further in the matter. In that case a court counsellor, an officer of the Family Court, whose conduct in approaching the Judge in chambers and discussing the Family Court case with her was however not served with any material or given an opportunity to explain his or her conduct which had led to the proceedings for a writ of prohibition.
- In Vakauta v Kelly a Judge’s adverse remarks about an expert witness were found by the High Court not to amount to actual bias, but were considered to constitute apprehended bias although the failure of the defendant to then object to those remarks amounted to a waiver of any right to appeal on that ground. There is no suggestion the Judge was, or was required to be, served so as to give him or her the right to be heard.
- In Johnson v Johnson the court was concerned with an allegation that a Judge of the Family Court of Australia had said things which amounted to apprehended bias. The Judge refused to disqualify himself from further hearing the trial of the matter. On appeal to the High Court, the Court held that the Judge’s statements did not create an appearance of bias. The Judge was not served with any material to enable him to be heard.
- Finally in Ebner v Official Trustee in Bankruptcythe Court was concerned with a Federal Court Judge who was a contingent beneficiary of a trust which held shares in a bank. The bank was not a party to the litigation but had a pecuniary interest in the matter. The Judge refused an application to disqualify himself. The High Court held that the Judge was not required to do so. Again the Judge was not served and made no attempt to appear.
- Similarly in cases where actual bias is alleged, contrary to the respondent’s counsel’s submission to the Magistrate, there is not any practice requiring a person or body whose decision it is sought to be set aside because of alleged bias to be served with material so as to give the person or body an opportunity to appear so as to clear their name of the allegations.
- In Li v Minister for Immigration and Multicultural Affairs, the applicant for a protection visa sought a review of a decision of the Refugee Review Tribunal which had found he was not a refugee. He asserted the Tribunal was actually biased, indicated by its allegedly unwarranted propensity to challenge his credibility. There was no suggestion the Tribunal, or its members, were served with documents so as to enable it, or them, to appear.
- In Ivory v Telstra Corporation, the appellant appealed from a decision of a Supreme Court Judge dismissing his claim against the respondent. That claim had its genesis in an unsuccessful prosecution in the Magistrates Court of the appellant, pursuant to a complaint under the Peace and Good Behaviour Act. Part of the appellant’s grounds of appeal related to the alleged failure of the trial Judge to disqualify himself on grounds, inter alia, of actual bias. The Judge was not served with documents and was not a party to the appeal.
- In the matter of Mann v Medical Practitioners Board of Victoria & Anor, the appellant sued the respondents and a third party in the County Court for damages for defamation. The appellant alleged that the Judge in the County Court should have disqualified himself on the grounds of bias, including actual bias. The Victorian Court of Appeal did not make the Judge a party to the proceedings and the Judge was not served with material in order to give him a right to appear to defend himself against the allegations.
- In Fotis v Magistrates Court of Victoria, the plaintiff, a solicitor, practised in Geelong where he was well known to the Magistrates who sat regularly in that court. The plaintiff was served with a complaint and warrant for an intervention order taken out by the second defendant pursuant to the provisions of the Crimes (Family Violence) Act 1987. The plaintiff was released on bail and appeared before a Magistrate. The plaintiff argued that the Magistrate should not have heard the proceeding because he was biased against the plaintiff. The Victorian Supreme Court did not require that the Magistrate be a party to the proceedings and nor was he served with material so as to enable him to appear.
- In my view, contrary to counsel’s submission, ultimately accepted by the Magistrate, it was not incumbent on the appellant to have served the costs assessor with the material in the application for review of his costs. This case concerned a review of the costs assessors assessment, including a review of the costs of the assessment incurred by the respondent, and the costs assessor’s own costs. The allegation of bias and apprehended bias against the costs assessor did not result in any requirement that he be made a party to the review, or any requirement that he be served with documentation so as to give him an opportunity to be heard.
- That of course does not mean that, in some circumstances, and in order to do justice in a particular case, a judicial officer might not make such a direction. But there was no demonstrated basis for doing so in this case. Counsel’s submission was merely adopted by the Magistrate, in my view wrongly.
- Furthermore, if the respondent wished to make such an application, that application ought to have been made before the Magistrate who made directions about the review on 23 August 2019, and in any case well before 29 October, as I have earlier indicated.
- In the circumstances it is my view that the Magistrate, in making the decision she did about indemnity costs, was clearly influenced by an erroneous consideration, namely that the costs assessor ought to have been served with material.
- In that circumstance the decision of the Magistrate concerning indemnity costs ought to be reviewed, having regard to all of the circumstances of the case.
- It is necessary to determine, in the circumstances of this case, and particularly those referred to in  hereof, but having regard to my determination that the learned Magistrate erred in holding that the assessor ought to have been served, what costs order should have been made.
- I have concluded that whilst it was appropriate to have ordered that the appellant pay the costs thrown away by reason of the adjournment of the hearing on 29 October, it should not have been ordered they be assessed on an indemnity basis.
- Non-compliance with court orders are necessarily treated seriously and, as counsel for the appellant properly conceded before the Magistrate, the late delivery of any material by the appellant until 4 October put the respondent in the position where he had extreme difficulty in preparing for the hearing.
- But counsel’s statement to the Magistrate that he and his solicitor had concluded the grounds for the review and attachments to the solicitor’s affidavit together constituted the summary of argument indicates the failure to comply with the order to serve the summary of argument was, whilst a breach of the directions made by Magistrate Cull, not indicative of any deliberate disregard of the earlier order.
- On balance an order for costs on the standard basis was warranted. I would in such circumstances allow the appeal by deleting the words “on the indemnity basis” from the order of the learned Magistrate made on 29 October 2019.
- In the circumstances, I provided a copy of this reasons to the parties, indicating I would hear submissions about costs of the appeal if the parties wished to do so, but my inclination was to make no order as to the cost of the appeal. Both parties contacted my associate indicating they did not wish to make any submission.
- In these circumstances there will be no order as to the costs of the appeal.
- Published Case Name:
D. M. Wright and Associates v Murrell
- Shortened Case Name:
D. M. Wright and Associates v Murrell
 QDC 110
10 Jun 2020