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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Simonidis Steel Lawyers Brisbane Pty Ltd v Szaus  QDC 201
SIMONIDIS STEEL LAWYERS BRISBANE PTY LTD (ACN 133 652 614)
MELISSA JANE CZAUS
District Court at Brisbane
20 August 2020
17 August 2020
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – TAXING OFFICERS AND ASSESSORS – where applicant filed application for order for assessment of legal costs charged to respondent – where respondent sought appointment of a particular costs assessor – whether appointment appropriate to be made
M Robinson for the applicant.
G J Robinson for the respondent.
Robinson Locke Litigation Lawyers for the applicant.
HopgoodGanim Lawyers for the respondent.
- On 19 March 2020, the applicant filed an application in this court for an order for the assessment of legal costs charged to the respondent. The applicant had acted as solicitor for the respondent in Family Law matters between February 2015 and May 2019. The bringing of the application followed a request made on behalf of the respondent for the applicant to provide an itemised bill of costs pursuant to the Legal Profession Act 2007 (Qld). The request followed the provision by the applicant of a short form assessment to the respondent.
- The application sought directions for the filing and service of an itemised bill of costs by the applicant and the filing and service of any objections by the respondent with the appointment of a costs assessor to be deferred to a further directions hearing.
- By consent, an order was made on 25 March 2020 by the deputy registrar giving the applicant 60 days to file and serve its itemised bill of costs, deferring the appointment of a costs assessor to a further directions hearing and otherwise adjourning the application for costs assessment to 12 June 2020.
- An itemised bill of costs dated 29 May 2020 was filed and served on 1 June 2020.
- On 15 June 2020, by consent the deputy registrar ordered that the respondent file and serve any notice of objection by 31 July 2020 and that the matter be otherwise adjourned to 17 August 2020 for further directions.
- In accordance with that order, an affidavit by the respondent sworn 30 July 2020 attaching the notice of objection was served on the applicant. Appropriately, the affidavit was not filed as the respondent considered that the contents of the affidavit required the court to make a non-disclosure order.
- The applicant submitted to the respondent a panel of three names for appointment as costs assessor, each of which the respondent rejected.
- At the further directions hearing on 17 August 2020, the respondent sought an order for the non-disclosure of affidavit material to be filed on behalf of the respondent and, pursuant to r 743G(3) of the Uniform Civil Procedure Rules 1999 (UCPR), an order for the appointment of a particular assessor to carry out the costs assessment. The parties agreed to the court making orders for the non-disclosure of the affidavit material to be filed on behalf of the respondent and for each party’s costs of the application to be reserved.
Appointment of Costs Assessor
- In support of the application to appoint a particular assessor, the respondent provided to the court a consent to appointment to carrying out the costs assessment of the nominated assessor, Mr Hallum. By the consent, the assessor confirmed that his hourly charge rate for performance of assessment work is $180 per hour.
- The respondent maintained that it was appropriate for the court to appoint the assessor nominated by the respondent, referring in particular to the hourly rate of the nominated assessor compared to the hourly rate of the assessors previously nominated by the applicant and the importance of the respondent (the client) in an assessment under the Legal Profession Act 2007 (Qld) having confidence in the costs assessor appointed.
- The applicant did not object to the court appointing a costs assessor but did not agree to the appointment of the costs assessor nominated by the respondent. The applicant submitted that the court should not nominate any costs assessor but rather order that an assessor be appointed in accordance with the procedure detailed in a document entitled, “Court Appointed Costs Assessors”. Compliance with that procedure would result in the appointment of the assessor on the basis of the next assessor on the list maintained by the registrar in accordance with that procedure.
- It was submitted, that if there was any conflict or objection, the registrar could be required to otherwise follow the procedure detailed in the document.
- In making submissions on behalf of the applicant, it was accepted that the procedure was created for the purposes of guiding the appointment of assessors by the registrar pursuant to r 743F(2)(a) of the UCPR; as distinct from appointments made by the court pursuant to r 743F(2)(b).
- It was submitted that the adoption of the registrar’s procedure created greater transparency and that whilst it was obviously preferable for a client to have comfort with the appointment, it also follows that the solicitor ought to have comfort.
- In MJ Arthurs Pty Ltd & Anor v JHK Legal Australia Pty Ltd, Judge McGill of this court in discussing assessments under the Act commented:
“Given that this is essentially consumer protection legislation, and that the right is to have legal costs independently assessed by an appropriately qualified expert, it does seem to me that there is some force in the proposition that for this reason that there should be a tendency, in the case of applications under the [Legal Profession] Act, for the court to favour assessors nominated by the client rather than assessors nominated by the lawyers. A client who seeks to have the court appoint a supposedly independent expert to assess the bill that has been received from their solicitors and then finds that the court appoints to perform that assessment an assessor nominated by the solicitors may well feel a justified sense of grievance in the process, regardless of the confidence that may be possessed by the registrar, or for that matter by a member of the court, in the independence and professional integrity of the costs assessor concerned. This was not a factor which arose for consideration in Lessbrook, but I consider it is a material factor in the case for an appointment of a costs assessor under the Act.”
- Here, the applicant no longer seeks to have appointed any of the assessors nominated by it but rather seeks to have the assessor appointed from the general list of assessors maintained by the registrar. The applicant maintains an objection to the assessor nominated by the respondent but has not advanced any reason for its objection.
- The rules permit a party to either apply to the registrar or to the court for the appointment of a cost assessor. Where a party chooses to apply to the court, then the court should exercise its discretion.
- In the exercise of the court’s discretion, the hourly rate charged by the assessor is clearly a relevant factor. The hourly rate charged by the assessor nominated by the respondent client was $180 per hour compared to $350 and $317.80 being the hourly rates of the assessors previously nominated by the applicant. Whilst there may be justifiable reasons for a difference in the hourly rates and a person who charges more per hour may in fact take fewer hours to complete the task, as commented by Justice Muir in Lessbrook: “It does not follow, however, that differences in the hourly rates of competing costs assessors should be treated as insignificant.”
- In applications for assessments under the Legal Profession Act 2007 (Qld) the observations made by Judge McGill remain apt and it is appropriate for the court to favour assessors nominated by the client, particularly in the absence of any reason being proffered for the objection to that nomination.
- In the circumstances, I can see no reason for the court not to appoint the assessor nominated by the client. There is no reason to doubt the independence and professional integrity of the costs assessor so nominated.
- Accordingly, I make the following orders:
- Mr Hallam be appointed to carry out the costs assessment and that his hourly rate for doing so should be, in accordance with his consent to appointment, $180 per hour.
- Pursuant to r 367 of the Uniform Civil Procedure Rules 1999, the affidavits filed by the respondent relating to this application be placed in a sealed envelope marked “not to be opened except by order of the Court.”
- The costs of each party of the application be reserved.
- Published Case Name:
Simonidis Steel Lawyers Brisbane Pty Ltd v Melissa Jane Czaus
- Shortened Case Name:
Simonidis Steel Lawyers Brisbane Pty Ltd v Szaus
 QDC 201
20 Aug 2020