Remely v O'Shea[2008] QCA 389

SUPREME COURT OF QUEENSLAND

HOLMES JA:  The applicant, Mr Remely, seeks a review, pursuant to rule 742 of the Uniform Civil Procedure Rules 1999, of a costs assessor's certificate filed on the 26th of August 2008.

Another application was brought.  It was an application to include costs objections in costs assessment.  That application, strictly speaking, is not one which can be made under the rules but I have treated it as an incidental aspect of the primary application for review of the costs certificate.

The relevant costs were payable pursuant to an order of the Court of Appeal dated 23rd of October 2007.  They were assessed by the costs assessor, Mr McLellan, at $2,965.21 for professional fees and disbursements of $2,714, the latter including his fees of $550.

An application for review of a costs certificate must be filed within 14 days of the parties' receipt of the certificate.  This application was filed on 30th of October 2008.  The second respondents, not surprisingly, took issue with the application as out of time, on the basis that Mr McLellan said he had sent his letter enclosing the costs certificate to Mr Remely on the 25th of August 2008.  The point is well made, but I propose in any event to consider Mr Remely's submissions.

The application was, as I have said, made under rule 742.  It provides that unless the Court directs otherwise the Court, on such a review, may not receive further evidence and a party may not raise any ground of objection not stated in the application for assessment for a notice of objection or raised before the costs assessor.

It is clear that the scope of review is intended to be confined in the ordinary course to issues of substance, not process, which were live in the costs assessment.  I observe here that the applicant did not place before me the application for assessment, the notice of objection or any other material which he provided to the costs assessor. 

Instead Mr Remely raised two grounds in the application. 

Firstly, after the costs statement was served and objections were also served the second respondents provided him with a supplementary costs statement they had forwarded at the costs assessor's request.  On the 25th of August the costs assessor issued his certificate.  He had reduced the amount claimed by some minor amount.  On the 28th of August, Mr Remely served his objections to the supplementary costs statement on the second respondents' solicitors.  The actual grounds of objection which he says he sought to raise in relation to the supplementary costs assessment were not before me.

Mr Remely argues that under rule 706 he ought to have been given 21 days within which to object to the contents of the supplementary costs statement and that the second respondents could not within 21 days after its service apply for a costs assessment.  But those parts of the rules relate to what is to occur before application is made for a costs assessment and the appointment of a costs assessor.  Here the application had been made and the costs assessor appointed, Mr McLellan, had a broad power to decide the procedure he would adopt.  Under rule 720 he was entitled to seek further information from the second respondents.  No particular regime is prescribed under the rules and in particular no time frame is prescribed for requests or receipt of material.

It is clear, then, that the non-compliance with the Rules alleged by Mr Remely did not occur.  But there was another question raised and that was whether the procedure adopted by Mr McLellan was fair, as rule 722 requires, and as one would, in any event, expect.  It was an issue which it seemed to me warranted going beyond the evidence to which rule 742 would ordinarily limit the application.

Mr Remely said that he had sent his objections to the second respondents' solicitors in the expectation that they would deliver them to Mr McLellan, because it was his understanding that that was how the arrangement worked.

I allowed Mr Remely to call Mr McLellan as a witness.  In cross-examination by counsel for the second respondents Mr McLellan identified a number of documents.  The first was the Registrar's orders in relation to the assessment, the third of which was that the applicant deliver any objections to the respondents' costs statement within 21 days to the respondents' solicitors and to Mr McLellan.  If he did not do so the assessment was to proceed as a default assessment.

Mr McLellan's undisputed evidence was that the applicant delivered nothing to him.  But instead of proceeding with the assessment as a default assessment, Mr McLellan found a copy of Mr Remely's objections among material sent to him by the respondents' solicitors in relation to another matter and took them into account.  He reduced the claim by $870.  It does not seem that he acted in accordance with the orders made, but it certainly worked to Mr Remely's benefit.

When Mr McLellan sought details of any further costs claimed from the second respondents' solicitors, he said in evidence, he thought he had sent a copy of his letter to Mr Remely because the document had a courtesy copy notation and it was his usual practice, but he could not be sure he had done so.

On that basis I act on the premise that the letter may simply not have been sent to Mr Remely. 

But the fact that the further submissions as to costs had been sought from the second respondents was very fairly brought to Mr Remely's attention by Mr Dalton, the solicitor for the second respondents, who wrote to him enclosing the supplementary costs statement.  His letter explains that the supplementary costs statement has been prepared and forwarded to Mr McLellan, setting out additional costs associated with the directions hearing before the Court of Appeal.  It goes on to say this: "Should you have any objection to any of the items claimed in the supplementary costs statement we suggest that you forward it to Mr McLellan for his consideration."  Mr McLellan said himself that he was aware that Mr Dalton had sent that letter.

Once Mr Remely was aware of the information in Mr Dalton's letter and the suggestion that he forward any objections to Mr McLellan, it was incumbent on him to bring any further objections to Mr McLellan's attention if he wished them to be taken into account and he did not do so.  The need to communicate objections to the costs assessor himself was plain from the terms of the Registrar's order and from Mr Dalton's letter.  Had Mr Remely required some time to formulate his objections he could have advised Mr McLellan accordingly.  Given Mr Remely had not communicated his objections to the original costs statement to him, despite the Registrar's order, Mr McLellan would have had no reason to be surprised that he had not done so on this occasion.  There was no unfairness in the result.

The second ground of the application, which was not the subject of argument other than in written submissions is that the original costs statement showed an amount of $2,156 as having been paid to counsel on a stay application by way of his fee to draw submissions and to appear.  At the time the costs statement was issued, Mr Remely argues, rule 710 required that receipts for any disbursements be attached to it.  But whether or not the second respondent complied with that rule is immaterial to the assessment process carried out by the costs assessor.  No basis has been shown for review of the costs assessment.

I dismiss the application for review of the costs assessment and also the application to include costs objection in the costs assessment.

...

I order that the applicant pay the second respondent's costs of the three applications.  They are:

1. the application to include costs objections in the cost assessment;

2. the application for appointment of a costs assessor;

3. the application for review of cost's certificate. 

Those costs are to be assessed on the indemnity basis. 

MR DICKSON:  Thank you, your Honour, I have nothing further.  And thank you, your Honour for sitting on past one o'clock.