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  • Unreported Judgment

Kepa v Lessbrook Pty Ltd (In Liquidation) (No 2)

 

[2013] QSC 248

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Emily Kepa, for and on behalf of the estate and dependants of

Frank Billy, deceased & ors v Lessbrook Pty Ltd (In

Liquidation)(No 2) [2013] QSC 248

PARTIES:

EMILY KEPA, FOR AND ON BEHALF OF THE

ESTATE AND DEPENDENTS OF FRANK BILLY,

DECEASED

(first plaintiff)

v

LESSBROOK PTY LTD (ACN 010 855 875) (IN

LIQUIDATION)

(defendant)

FLORENCE KEPA, FOR AND ON BEHALF OF THE

ESTATE AND DEPENDENTS OF FRED BOWIE,

DECEASED

(second plaintiff)

v

LESSBROOK PTY LTD (ACN 010 855 875) (IN

LIQUIDATION)

(defendant)

FRANCIS BOWIE, FOR AND ON BEHALF OF THE

ESTATE AND DEPENDENTS OF MARDIE BOWIE,

DECEASED

(third plaintiff)

v

LESSBROOK PTY LTD (ACN 010 855 875) (IN

LIQUIDATION)

(defendant)

MIMIA WHAP, FOR AND ON BEHALF OF THE

ESTATE AND DEPENDENTS OF HELENA WOOSUP,

DECEASED

(fourth plaintiff)

v

LESSBROOK PTY LTD (ACN 010 855 875) (IN

LIQUIDATION)

(defendant)

ELIZABETH STEPHEN, FOR AND ON BEHALF OF

THE ESTATE AND DEPENDENTS OF GORDON

KRIS, DECEASED

(fifth plaintiff)

v

LESSBROOK PTY LTD (ACN 010 855 875) (IN

LIQUIDATION)

(defendant)

FILE NOS:

SC No 191 of 2007

SC No 192 of 2007

SC No 193 of 2007

SC No 194 of 2007

SC No 195 of 2007

DIVISION:

Supreme Court 

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

2 September 2013

DELIVERED AT:

Cairns

HEARING DATE:

30 August 2013

JUDGE:

Henry J

ORDERS:

Order 2 of the registrar’s orders of 3 July 2013 is set aside.

Mr Neville Hiscox is appointed to assess the costs of the plaintiff against the defendant per Order 1 of the registrar of 3 July 2013.

The respondent defendant pay the applicant plaintiffs’ costs of the application to the registrar determined on 3 July 2013 and this application on the standard basis. 

CATCHWORDS:

PROCEDURE – COSTS – APPEALS AS TO COSTS –  where the parties could not agree who should be appointed to assess the plaintiffs’ costs – where on application by the parties the registrar appointed a cost assessor nominated by the defendant – where the plaintiffs make applications for leave to have the application to the registrar reheard by the Court on the grounds that no reasons were provided for the registrar’s decision and the registrar’s decision was made when the respondent’s submissions to the registrar contained a fundamental error – whether leave should be granted and the registrar’s decision reheard afresh  

Uniform Civil Procedure Rules 1999 (Qld) rr 5, 710, 713, 791

Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935, cited

Public Service Board of NSW v Osmond (1986) 159 CLR 656, cited

Re Il Palazzo (Management) Investments Pty Ltd (in liq) [2001] QSC 357, cited

Smith v Ash (2011) 2 Qd R 175, cited

Southwell v Jackson [2012] QDC 65, considered

Sun Alliance Insurance Limited v Massoud (1989) VR 8, cited

COUNSEL:

G R Mullins for the plaintiffs

J Trevino for the defendant

SOLICITORS:

Cleary & Lee Lawyers on behalf of the plaintiffs

Norton White Lawyers on behalf of the defendant 

 

HIS HONOUR:   I gave judgment in these five matters last year, see [2012] QSC 311.  I subsequently made orders as to costs favourable to the successful plaintiffs.  The parties could not agree who should be appointed to assess the plaintiffs’ costs.  This necessitated applications for and a decision by the registrar who appointed a cost assessor nominated by the defendant.  The plaintiffs make applications pursuant to rule 791 for leave to have the application reheard by the Court. 

 

The applications were approached on the basis that it is appropriate in this case for leave and the merits, should leave be given, to be the subject of submissions at the same hearing.  Rule 791(1), provides:

“A party to an application who is dissatisfied with the decision of a judicial registrar or registrar on the application may with the leave of the court, have the application reheard by the court.”

 

The rule provides no criteria guiding the discretion to grant leave.  The discretion is therefore exercisable according to the nature of the case on a principled basis.  See, for example, Smith v Ash [2011] 2 Qd R 175 at [50].  Registrars, daily make many minor decisions delegated to them by law in the interest of the cost effective conduct of the Court’s business.  As a matter of principle, the Court will be reluctant to interfere in that layer of decision making in the absence of good reason being shown for it to do so.   As was observed in Noble Earth Technologies Pty Ltd v Hampic Pty Ltd trading as Cyndan Chemicals [2012] NSWSC 935 at [39]:

“There is an onus on a person seeking to have a court set aside, or vary, a registrar’s decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so:  Tomko v Palasty (No 2) per Hodgson JA at  [7].  In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar.”

The applicant plaintiffs advances two grounds for leave to be granted: 

(1)no reasons were provided for the decision and as such, the decision should be set aside; and

(2)that the decision was made in the context of submissions from the respondent that were contaminated in that they contained a fundamental error, unjustifiably criticising the competence of Mr Hiscox to perform his role as cost assessor.

 

Dealing with the second reason first, it has been shown there was material before the registrar which did unjustifiably criticise Mr Hiscox, the cost assessor nominated by the plaintiffs.  There were a number of criticisms.  One was founded on reference to Southwell v Jackson [2012] QDC 65 in which a Court had allegedly reduced the cost assessment of Mr Hiscox and referred to Mr Hiscox’s performance as unsatisfactory.  It transpires that allegation was incorrect.  Mr Hiscox was not the cost assessor in that case.  That erroneous criticism was contained in correspondence filed on the application before the registrar and in the defendant’s submissions filed in response to the registrar’s invitation for submissions in writing. 

 

It was addressed in the applicants’ submissions in reply, emailed at 9.19 am on 3 July.  Later that day, both the solicitor for the defendant and counsel (not the counsel in the present application) for the defendant, emailed the registrar identifying and correcting the error.  On an earlier date, the registrar had indicated that she would make orders at 10.30 am on 3 July.  Her orders were emailed to the plaintiffs at 11.28 am on 3 July.  It is unknown at what time that morning her decision was made.  The registrar gave no reasons for appointing Mr Walter, one of the three assessors nominated by the defendant.  In the absence of reasons, it is impossible to know whether the defendant’s erroneous criticism of the assessor nominated by the plaintiffs influenced the registrar’s decision. 

 

The defendant’s correction of the error only occurred after the decision was published.  It is unclear, in the absence of the correction, what weight was given to the plaintiffs’ submissions complaining of the error or if, given the small period between the relevant emails, whether that complaint was actually seen in time to have been considered prior to the making of the decision. 

 

That uncertainty is compounded by the defendant’s reliance on alleged criticism of Mr Hiscox in Heaslip v State of Queensland QSC unreported 23 July 2012.  The passage from the decision cited in correspondence by the defendant evidenced before the registrar, is on perusal, not of itself sufficient to warrant a conclusion the judge was actually critical of Mr Hiscox’s professional performance. 

 

Unfortunately a copy of the decision, in its entirety, is not readily available and the defendant elected not to evidence a copy of it before the registrar or in the present application.  Again in the absence of reasons, it is not possible to know whether the defendant’s reliance on the abovementioned passage misled the registrar. 

 

The defendant’s submissions to the registrar also asserted that the plaintiffs had shown “a singular insistence” on the appointment of Mr Hiscox.  This was not entirely accurate in that the plaintiffs had proposed a different cost assessor when earlier seeking the defendant’s consent to a short-form cost assessment.  More significantly, it was irrelevant.  Its inclusion was susceptible to being seen as imputing suspicion, particularly considered in light of the abovementioned erroneous criticisms, when there is nothing at all improper to be inferred from a party seeking the appointment of the assessor they nominate.  Were it otherwise, an obstructionist opponent could succeed merely by a “singular” resistance to the appointment of a particular person. 

 

Again in the absence of reasons, it is not possible to know to what extent, if any, this inaccurate and irrelevant submission influenced the registrar’s decision.  Because of the risk I have identified, that the various erroneous features of the defendant’s submissions influenced the registrar’s decision, it cannot safely be assumed, in the absence of reasons being given for the decision, that they did not have a material influence.  It follows in the interests of justice being seen to be done, that leave should be given and the decision made afresh, free of that risk. 

 

As to the other ground, that the absence of reasons was of itself an error; argument involved an assumption that the need to give reasons was dependant upon whether  the registrar’s decision was an exercise of administrative or judicial power.  That is presumably because, as was observed in Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 662:

“There is no general rule of the common law or principle of natural justice that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interest or defeat the legitimate or reasonable expectations of other persons.”

 

I note that even if such a decision did involve an exercise of judicial power, it does not necessarily follow that reasons would necessarily be required.  As the Victorian Court of Appeal put it in Sun Alliance Insurance Limited v Massoud (1989) VR 8:

“The simplicity of the context of the case or the state of evidence may be such that a mere statement of the judge’s conclusion will sufficiently indicate the basis of the decision.”

 

The decision of the registrar went to the appointment of a cost assessor and not to an adjudication of costs.  It was at the highest incidental to but did not involve an exercise of judicial power, see Re Il Palazzo (Management) Investments Pty Ltd (in liq) [2001] QSC 357.  This conclusion does not mean there might not be cases where it is prudent to give reasons, even though they are not required under the principle discussed above.  As with judicial decision making, much will depend upon the circumstances of the case.  This case provides, in hindsight, an illustration of the assistance which reasons can give in dispelling concern that erroneous materials or submissions have been taken into account, however, the absence of reasons, per se, is not of itself an error. 

 

As already mentioned, the true mischief in this case is the placing of erroneous material in submissions before the registrar in the first place. 

 

Turning then to the rule 791 determination on the merits by rehearing; the immediate dilemma, in the absence of any relevant guiding statutory criteria in rule 713, is that disregarding the erroneous submissions alluded to above, there is no obvious reason why one of the nominated assessors should be favoured over all others. 

 

It was noted in submissions that the registrar had selected the assessor whose hourly fee was lowest.  The three assessors nominated by the defendant listed hourly fees of $275, $316, and $400 respectively.  The plaintiffs’ nominee’s hourly fee was $300 and thus the second-lowest of the nominees.  Variation between his hourly rate and at least the cheapest two of the defendant’s three nominees is not of itself sufficiently material to provide a determinative basis for favouring one over another.  Moreover, such a basis for selection would be of dubious foundation.  For instance, an experienced assessor may charge more per hour for an assessment but take fewer hours to complete it than a less experienced colleague. 

 

The question then is, all things being equal, that is, absent some material consideration bearing upon the suitability of an appointment, who should be appointed from a selection of ostensibly suitable appointees?  The defendant submitted there should at least be a preference for one of its three nominees over the plaintiffs’ nominees, in circumstances where the plaintiffs had only nominated one person.  It referred in that regard to a notation in the LexisNexis Uniform Civil Procedure Rules Service to the effect that a shortlist of cost assessors’ names should be provided to the registrar.  In fact, the rules have no such requirement, nor on the evidence in the present application is it the usual practice.  Moreover, pursuant to rule 710, the party applying for a cost assessment must, in the application, “if practicable, nominate a particular cost assessor”.  While there is no rule precluding the nomination of several “particular” nominees in the alternative, the plaintiffs’ election not to do so provides no logical basis to favour the defendant’s nominees over the plaintiffs’. 

 

The only basis of any substance advanced for why one assessor ought be selected in preference to any others nominated, in the absence of evidence of unsuitability, is evidence of a convention, or practice, in the Brisbane and Townsville Registries that where there is no agreement between the parties on an agreed cost assessor, the practice is for the registrar hearing the application to appoint the cost assessor whose consent to act as a cost assessor is first filed.  There was no evidence of any other practice to the contrary.  The assessor whose consent to act as a cost assessor is first filed will generally be the assessor nominated by the party whose costs are to be assessed.  The practice may therefore reflect weight being given to the successful party’s choice, not unreasonably.  In any event though, it reflects weight being given to expedition, consistently with rule 5. 

 

In some cases it may be a nominated assessor is unavailable, or not sufficiently experienced, or there may be some other reason of substance as to why a nominated assessor is not suitable for appointment.  However, in the absence of any reason of substance favouring the selection of one assessor over another, the question of which assessor’s consent to act as a cost assessor was first filed is an appropriate discretionary consideration in determining the appointment. 

 

In the present case, there being no reason of substance as to why any of the nominated assessors are unsuitable, I conclude the appropriate appointee to be the cost assessor whose consent was filed first in time, namely, Mr Hiscox.  I order:

 

(1)Order 2 of the registrar’s orders of 3 July 2013 is set aside.

 

(2)Mr Neville Hiscox is appointed to assess the costs of the plaintiffs against the defendant per Order 1 of the registrar of 3 July 2013.

 

 

(3) The respondent defendent pay the applicant plaintiffs’ costs of the application to the Registrar determined on 3 July 2013 and this application on the standard basis. 

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Editorial Notes

  • Published Case Name:

    Emily Kepa, for and on behalf of the estate and dependants of Frank Billy, deceased & ors v Lessbrook Pty Ltd (In Liquidation) (No 2)

  • Shortened Case Name:

    Kepa v Lessbrook Pty Ltd (In Liquidation) (No 2)

  • MNC:

    [2013] QSC 248

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    02 Sep 2013

Litigation History

No Litigation History

Appeal Status

No Status