Radich v Kenway[2014] QDC 60

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The appellant, Mr Radich, appeals a Magistrate’s decision made on review, pursuant to rule 742(6)(e) Uniform Civil Procedure Rules 1999 (“UCPR”), to affirm the decision of a costs assessor.

2. [2]
   The appellant was retained as solicitor by the respondents, Ms Kenway and Mr Smith to act for them in respect of two separate proceedings brought against them as defendants in the District Court of Queensland.

3. [3]
   This appeal originates from the respondents’ refusal to pay two bills of costs sent to them by the appellant for his services. The first bill was for work done in an appeal to the District Court in respect of a successful Gold Coast City Council prosecution against the respondents, and the second bill was for work done in a civil action in the District Court commenced against the respondents by a plaintiff, Mr Lucas.

Background

4. [4]
   On 15 June 2010, the appellant issued the two bills to the respondents. The first bill in the amount of $19,005.37 related to the District Court appeal. The second bill in the amount of $1,308.00 related to the District Court civil action. The total of the two bills was $20,313.37. Against this amount, there was a credit of $4,229.39 for payments already made by the respondents, leaving the balance claimed of $16,083.98. The respondents did not pay the bills.

5. [5]
   On 2 August 2010, the appellant commenced proceedings (as plaintiff) against the respondents (as defendants) in the Magistrates Court at Southport, claiming the unpaid $16,083.98.

6. [6]
   On 4 October 2010, the Deputy Registrar of the Magistrates Court made an interlocutory order by consent under r 666 of the UCPR that the two bills be assessed pursuant to s 335(1) of the Legal Profession Act 2007 (“the Act”) and that Glenn Robert Walter (“the costs assessor”) be appointed to carry out the assessment.

7. [7]
   The costs assessor’s Certificate of Assessment (“the Certificate”) is dated 24 March 2011. The costs assessor assessed the first bill at $10,302.74 and the second bill at $884.50, less $4,229.39 previously paid, leaving a balance of $6,957.85 owing to the appellant. The costs assessor determined:-

1. the costs assessor’s fees for the assessment were $5,246.23;
2. the respondents’ solicitor’s costs of the assessment were $8,905.61;
3. the respondents’ costs of the assessment were $14,151.84;
4. the parties entitled to be paid the costs of the assessment were the respondents.

8. [8]
   At the request of the appellant, and as provided for under r 738 of the UCPR, the costs assessor provided Costs Assessor’s Reasons for Decision dated 2 September 2011 (“the Reasons”) together with costs for the assessor’s preparation of the Reasons in the amount of $7,892.50.^[1]

9. [9]
   On 19 September 2011, the appellant applied (as applicant) to the Magistrates Court to set aside the Certificate of the costs assessor, including the costs assessor’s decision to charge the appellant $7,892.50 costs for the Reasons.^[2] The appellant submitted that if the application was successful, the Magistrate should appoint a new costs assessor, alternatively the appellant submitted the Magistrate should review all the decisions of the costs assessor.^[3]

10. [10]
    The Magistrate delivered judgment on 13 July 2012. He dismissed the application and affirmed the decisions of the costs assessor contained in the Certificate. He ordered:

“pursuant to Rule 742(6)(e) of the Uniform Civil Procedure Rules 1999, the decisions of the costs assessor, contained in the certificate of assessment dated 2 September 2011, are affirmed.”^[4]

11. [11]
    This is an appeal from the Magistrate’s decision.

Grounds of Appeal

12. [12]
    Senior Counsel for the appellant indicated at the outset of the appeal hearing that the grounds of appeal relied upon were confined to four issues which he then addressed in oral argument. He stated that any other grounds of appeal contained in the notice of appeal and written outline of submissions were no longer pressed. The only issues, therefore to be considered are that the Magistrate erred in failing to set aside the assessment because:

1. the assessment was carried out without adherence to r 720 of the UCPR, in that the costs of the assessment were greater than the costs to be assessed;
2. the assessment was in excess of the scope and nature of the dispute;
3. the assessment was not in accordance with the rules of natural justice, specifically the costs assessor failed to notify the parties that he intended to review the entire file;
4. the Magistrate erred in the way he dealt with the evidence of Ms Davis.

Appellant’s Submissions

Ground 1: Adherence to rule 720 Uniform Civil Procedure Rules 1999

13. [13]
    The appellant submits that r 720 of the UCPR is the central provision for the purposes of determining how a costs assessor must carry out an assessment; and because the requirements in subsections (a), (b) and (c) are mandatory requirements, any assessment must follow them precisely.^[5] The appellant submits that, because r 720 of the UCPR provides that the procedure for assessing costs must be appropriate to the scope and nature of the dispute and the amount in dispute, the legislature could never have contemplated that the cost of an assessment would exceed, let alone, double the amounts in dispute. The appellant submits that the procedure which was adopted by the costs assessor was therefore not in accordance with the requirements of r 720(2) of the UCPR.^[6]

Ground 2: The assessment was in excess of the scope and nature of the dispute with reference to those matters assessed

14. [14]
    The appellant submits that, pursuant to s 335 (1) of the Act, the scope of the assessment should have been limited to the grounds of objection to the bills which were listed in the affidavit prepared by Mr Radich (the appellant).^[7] The appellant submits that the costs assessor’s review of the entire file, rather than a review of the items referred to in the affidavit, went beyond the scope and nature of the dispute, therefore the costs assessor failed to comply with r 720(2)(a) of the UCPR.

Ground 3: Breach of the rules of natural justice

15. [15]
    The appellant submits the costs assessor failed to comply with r 720(2)(a) and (c) of the UCPR when he failed to notify either party of his intention to review every item in the file. The appellant only became aware that the costs assessor had not confined the assessment to the matters raised by way of objection when the appellant requested the costs assessor provide written reasons for his decision.^[8] The appellant was therefore denied the opportunity to respond. The Magistrate, although accepting that a breach of natural justice had occurred, should have set aside the assessment and directed there be a new costs assessment.

Ground 4: The Magistrate erred in the way he dealt with the evidence of Ms Davis

16. [16]
    The appellant submits the Magistrate erred by rejecting the evidence of the costs assessor, Ms Davis, who had prepared the two bills on behalf of the appellant that were the subject of the assessment.^[9] The appellant referred the Court to the following passage from the Magistrate’s judgment:^[10]

“Ms Davis prepared the very bills assessed by the cost assessor and then gave expert evidence critical of the way the assessor had assessed those bills, any independent observer knowing the facts of this case would clearly conclude that the witness can be perceived to have a conflict of interest and that she may be motivated to protect her own bills and other evidence.  Her own evidence must therefore fail the basic test of reliability because of a perceived lack of independence and objectivity.”

17. [17]
    The appellant submits the Magistrate erred when determining that:^[11]

“when a person with acknowledged expertise provides a report of some form…their evidence is immediately discounted because they are perceived to have a conflict of interest and motivated. to protect their own bills and their own interests”.

Respondents’ Submissions

18. [18]
    The respondents were unrepresented at the appeal hearing. The respondent Mr Smith spoke briefly on behalf of himself and Ms Kenway. He handed up a short written outline of submissions. The issues outlined therein were not relevant to the issues on appeal. Mr Smith stated at the conclusion of the appellant’s oral submissions that he felt unable to make oral submissions. I have had regard to the written submissions filed on the respondents’ behalf by their former solicitor Mr Ponting,^[12] and to the other documents collated in the three volume Appeal Record Book prepared by the appellant to assist the court.

Consideration

Ground 1: Rule 720 UCPR

19. [19]
    Rule 720 of the UCPR provides:

“(1) A costs assessor appointed to carry out a costs assessment is to decide the procedure to be followed on the assessment.

2. (2)
   However, the procedure must be—

1. (a)
    appropriate to the scope and nature of the dispute and the amount in dispute; and

2. (b)
   consistent with the rules of natural justice; and

2. (c)
   fair and efficient.

3. (3)
   Also, if the costs are payable out of a fund—

1. (a)
   the applicant must serve on the person having charge of the fund a notice—

1. (i)
   identifying the fund; and

2. (ii)
   stating that the costs in the costs statement to be assessed are payable out of the fund; and

3. (iii)
   stating when the costs are to be assessed; and

4. (iv)
   containing or attaching any other information the costs assessor requires to be included in or with the notice; and

2. (b)
   the person having charge of the fund may make submissions to the costs assessor in relation to the assessment.

4. (4)
   Without limiting subrule (1) or (2), the costs assessor may decide to do all or any of the following—

1. (a)
   hear the costs assessment in private;

2. (b)
   carry out the costs assessment on the papers without an oral hearing;

3. (c)
   not be bound by laws of evidence or procedure applying to a proceeding in the court;

4. (d)
   be informed of the facts in any way the costs assessor considers appropriate;

5. (e)
   not make a record of the evidence given.”

20. [20]
    This rule applies to an assessment under the Act.^[13] One of the requirements in relation to the procedure on the assessment is that it must be appropriate to the amount in dispute. It follows that it is appropriate, when the amount in dispute is relatively small, to adopt a procedure that will be relatively inexpensive.  In practice, costs assessors generally proceed without an oral hearing whatever the amount in dispute, and it was not suggested that an oral hearing would have been less expensive in the present case.  The costs assessor made directions under which the respondents were to deliver objections or submissions in writing, with the appellant having the opportunity to respond and the respondents the opportunity to reply in writing, by particular dates.  The costs assessor then had the opportunity to seek further submissions in respect of any particular point before making a final determination.  That procedure was outlined in a letter sent by the costs assessor on 19 October 2010,^[14] and as noted by the Magistrate no objection was taken to this procedure at this time.  The letter also referred to the costs assessor’s fee which was charged at an hourly rate.

21. [21]
    No argument was advanced on appeal on behalf of the appellant as to how some other procedure could have been adopted which would have been less expensive. The appellant’s argument on this point was directed simply to the proposition that the result must be wrong, because the costs of the assessment cannot exceed the amount being assessed. There is in my opinion no such absolute rule. The process of costs assessment is inevitably going to be an expensive one in circumstances where it is necessary for someone to pay a costs assessor to conduct the assessment, and where one or both parties may incur legal costs in relation to the assessment. In these circumstances, simply to say that there is some arbitrary rule that the costs of the assessment are not to exceed the amount to be assessed would provide an unreasonable, and indeed impractical, restriction on the process of costs assessment.

22. [22]
    The submission for the appellant was based on the proposition that the costs were excessive because the assessment the costs assessor should have undertaken was said to cost less than $2,000.^[15]  This submission was advanced in reliance on the affidavit evidence of the costs assessor who assisted the appellant with the preparation of the invoices, Ms Davis, who swore an affidavit dated 11 November 2011 which was before the Magistrate.  She had prepared the initial costs statements and assisted the appellant with responses to objections and inquiries during the process.^[16]  Her estimate of the costs of the assessment was presumably based on an assessment under r 708 of the UCPR. This procedure is also to be applied in certain circumstances to part of the assessment process under r 722 of the UCPR, as Ms Davis advocated. 

23. [23]
    Neither of those rules applies in conducting an assessment under Part 4, since neither is listed in r 743I of the UCPR.  Ms Davis expressed the opinion in her report exhibited to her affidavit^[17] that there should be compliance with r 722 of the UCPR when conducting an assessment under the Act.^[18]  In my opinion that was an error of law on her part, as explained below.  Since her opinion as to what the assessment ought to have cost was apparently based on that legally erroneous approach to the conduct of an assessment under the Act, Ms Davis’ views on this subject should be rejected, as it appears they were by the Magistrate.  The appellant’s real complaint about the extent of the assessment is properly dealt with under the second ground of appeal. 

24. [24]
    It is not immediately obvious how the process of assessment in the present case could have been made more efficient, given the issues on which the parties were in dispute and the extent to which that dispute was in fact pursued by way of submissions to the costs assessor.^[19]  The costs assessor is also required to comply with natural justice, so there is a limit to the extent to which the process can be pared back.  In my opinion there is nothing in the general wording in r 720 of the UCPR which would imply the restriction contended for by the appellant, nor any logical reason for imposing such a restriction.  There is the further consideration that the appellant did not raise any objection to the procedure when that was outlined by the costs assessor in the letter of 19 October 2010, and in those circumstances it cannot now be appropriate for the appellant to complain about it.  There is in my opinion no substance to this ground.

Ground 2: Scope of the assessment

25. [25]
    Section 335 of the Act states that a client may apply for an assessment of the whole or any part of legal costs. Section 335(10) of the Act provides that a costs application must be made in the way provided under the UCPR.  Such assessments are dealt with under Part 4 of Chapter 17A of the UCPR, although a number of other rules are also made applicable by r 743I of the UCPR.  Rule 743A(5)(a) of the UCPR requires the affidavit in support of an application for a costs assessment to state whether the applicant disputes or requires assessment of all or what part of the costs and to state the grounds of the dispute.

26. [26]
    The amended application in the present matter, on the basis of which the order for assessment was made, sought an order for the assessment pursuant to s 335(1) of the Act of the “legal costs” issued by the appellant on 15 June 2010 and described by reference to two particular bills which were the whole of the legal costs the subject of the proceedings in the Magistrates Court. The affidavit in support said nothing about whether assessment was sought of all or part of the costs. On 4 October 2010 a consent order was made on that application, that “the legal costs issued by the plaintiff to the defendant on 15 June 2010 and described as” specified invoice numbers be assessed pursuant to s 335(1) of the Act.  In light of the terms of the application and the terms of the order, it is clear beyond argument that the order sought and obtained by the respondents in the Magistrates Court was an order for the assessment of all the legal costs in those two invoices.  It follows in my opinion that these were the legal costs in dispute for the purposes of the Act, and the obligation on the costs assessor was to assess all of the costs the subject of both of those invoices.  That was what the order required.

27. [27]
    The argument on behalf of the appellant sought to confine the process of assessment by reference to the grounds of objection put forward at the time the respondents sought assessment of the invoices. It is true that r 743A(5)(b) of the UCPR requires the affidavit in support of the application to state the grounds on which the applicant disputes the amount of the costs or liability to pay them.^[20]  There is however no provision in the rules which confines the assessment to a process of resolving the grounds raised in that way in the affidavit.  The purpose of this provision is no doubt to enable the court to consider the matters referred to in r 743G(2)(c), (d) and (e) of the UCPR.

28. [28]
    The Act provides for the assessment of costs, and permits a client to obtain the assessment of all or any part of legal costs. Whether a particular client is seeking assessment of all or a part of the legal costs charged by a law practice is a matter for the client, but once the client has sought, as these respondents did, assessment of the whole of two particular invoices, and that is ordered, it follows that those are the costs which are to be assessed, and therefore the costs in dispute for the purposes of the Act. It follows that the obligation of the costs assessor is to assess all of those costs. That follows from the terms of the legislation. In my opinion there is nothing in the rules inconsistent with this, and indeed there could not be, because the UCPR could not operate in a way that was inconsistent with the Act.

29. [29]
    There is good reason why this should be the case. Traditionally clients have been entitled to have bills of legal costs taxed, generally by a taxing officer, who would go through the whole bill and would disallow anything thought by the taxing officer to be inappropriate. When a client was complaining that the legal costs charged were excessive, the client would not necessarily be in a position to know whether or not particular costs were properly charged, and was therefore not in a position to prepare definitive and conclusive grounds of objection to the relevant items in the bill. Providing an independent assessment of the whole bill at the request of the client was something which the legislature no doubt regarded as providing an appropriate measure of consumer protection, recognising the fact that clients would not necessarily be able properly to formulate grounds of objection, or even necessarily to detect when they were being overcharged. To restrict the scope of the assessment in the way contended for by the appellant would in my view significantly impair the consumer protection objective of this legislation, one of the matters specifically identified in s 3 as a main purpose of the Act.  Such an interpretation would not be giving the legislation the purposive interpretation required by s 14A of the Acts Interpretation Act 1954.

30. [30]
    It was submitted that support was given for the appellant’s argument by the terms of r 743A(3) of the UCPR, which operated on the application of r 742(5)(b) of the UCPR.  Rule 742 is concerned with review by a court of a costs assessor’s decision, the process adopted in the present case before the Magistrate.  Rule 742(5) operates as a constraint on the process of the review, by providing that no further evidence is to be received, and a party may not raise any ground of objection not stated in the application for assessment or a notice of objection or raised before the costs assessor.  This is subject to the power of the court to direct otherwise.  Where the application for assessment is made under the Act, r 743A(3) of the UCPR provides that the reference to the ground of objection not stated in the application for assessment or a notice of objection is taken to be a reference to a ground of dispute not stated in the affidavit mentioned in r 743A of the UCPR.

31. [31]
    It follows that, where there has been an assessment under the Act, on a review by the court, a party may not raise a ground of objection not stated in that affidavit, or raised before the costs assessor. That however obviously cannot act as a constraint on the scope of the assessment undertaken by the costs assessor. If the costs assessor raises an issue about a particular item or items in the bill, then the issue will have been raised before the costs assessor, and it can therefore be the subject of argument on the review.

32. [32]
    The function of this rule is to prevent arguments being raised for the first time on review, at least without the direction of the court permitting that to occur in a particular case. This reflects a longstanding approach to the review of taxation.^[21]  But that cannot prevent the costs assessor from disallowing an item not properly claimed in the bill which has not been specifically objected to, nor will it prevent argument on the review by either party in relation to the correctness of that decision by the costs assessor.  There is therefore no substance to this argument. 

33. [33]
    It was submitted that a situation could arise where there was a bill for millions of dollars in legal costs but the complaint was about only a limited aspect of the bill, and one would expect the assessment to focus on that rather than to audit the entire bill.^[22]  The answer to that argument is that, in such a situation, one would expect that an order would be made for the assessment of only the relevant part of the legal costs charged, rather than all of the legal costs, so as to confine the assessment to that part which was genuinely in dispute.  On the face of the respondents’ application in the present case, they sought assessment of all of the legal costs in the two invoices, and the appellant consented to an order which, in its plain terms, required the assessment of all of the costs in those two invoices.^[23]

34. [34]
    Senior counsel for the appellant relied on the decision in Remely v O'Shea [2008] QCA 389, but that cannot be authority for the proposition that a costs assessment under the Act is confined to those matters raised in the affidavit.  That was a costs assessment under an order of the Court of Appeal, an assessment under Part 3 of Chapter 17A of the UCPR.  Evidently the costs assessor had requested information about costs of the assessment from the solicitor for the successful party, and, as a result, that solicitor forwarded a supplementary costs statement to the costs assessor, and to the applicant on the review.  The costs assessor then issued his certificate before the applicant on the review had served objections to the supplementary costs statement.  Holmes JA held that r 706 of the UCPR did not apply to the supplementary cost statement because this was part of the assessment process and therefore under the control of the costs assessor, but in the circumstances Her Honour considered whether there had been a breach of the rules of natural justice, a factor which was said to warrant Her Honour going beyond the evidence to which r 742 of the UCPR would ordinarily limit the application.

35. [35]
    Rather than being authority for the proposition that an assessment under the Act is confined by the terms of the grounds of objection, it is authority for the proposition that where there is an issue of natural justice on a review the party should not be confined in the evidence and submissions by r 742(5) of the UCPR.  Her Honour in that case considered the particular circumstances and concluded that there was no unfairness to the applicant for review in the result.

36. [36]
    Another Judge of this court has already considered this point. In Southwell v Jackson [2012] QDC 65, McGill DCJ rejected an argument that the process of assessment was to be limited to grounds specifically raised in the affidavit.^[24]  No convincing argument was advanced before me as to why the decision in Southwell v Jackson should not be followed, and considerations of comity support following it unless convinced that it was wrong.  I am not so convinced, and for the reasons given in that decision, and the reasons I have given above, in my opinion it was appropriate for the costs assessor to assess all of the costs on the bill, regardless of the scope of the grounds advanced in the affidavit in support of the application.

37. [37]
    There is a further consideration. One of the matters complained of by the respondents was a failure on the part of the appellant to make proper disclosure. The costs assessor found in relation to the first invoice that the appellant provided only limited cost disclosure to the respondents,^[25] that this was not one of those cases where the client was someone to whom proper disclosure did not have to be made, and that the respondents were seriously and substantially disadvantaged as a result of the failure to put the respondents in the position of knowing what their likely cost exposure would be, both as to costs between solicitor and own client and as to costs between party and party.^[26]  This failure to disclose was found to be of the most serious nature going to the core of the disclosure regime.^[27]

38. [38]
    In these circumstances the costs assessor had regard to s 316(4) of the Act, which permitted the amount of costs to be reduced by an amount considered by the costs assessor to be proportionate to the seriousness of the failure to disclose.  Ultimately on this ground the costs assessor reduced the first invoice by $1,583.78, said to be proportionate to the seriousness of the plaintiff’s failure to disclose.^[28]  In relation to the second invoice, the costs assessor found that the appellant failed absolutely to comply with the obligation of costs disclosure.^[29]  In that case however, bearing in mind the modest quantum of the second invoice and the quantum of reductions to specific items which had been made anyway in order to bring them into line with the District Court scale, the costs assessor declined to make any further reduction in the second invoice under s 316(4) of the Act.^[30] 

39. [39]
    The costs assessor determined that there had been, in respect of each bill, a failure to comply with the requirements of Division 3 of Part 3.4 of the Act. It followed that the appellant was exposed to the penalty provision in s 316(4) of the Act. But that was not the only consequence provided by s 316 of the Act. Section 316 of the Act meant that the respondents did not need to pay the legal costs unless they had been assessed under Division 7.^[31]  Indeed, the appellant was in breach of s 316(2) of the Act by bringing the proceeding in the Magistrates Court to recover the costs.  In these circumstances, not only did the respondents want the costs assessed, but the appellant needed to have the costs, that is, all of the costs covered by the two bills, assessed if he wanted to be able to pursue his claim.  This was a further reason why it was appropriate for the costs assessor to assess all of the items in the bill; unless he did so, the appellant could not recover them.  It follows that, when there was a challenge to the appellant’s compliance with his disclosure obligations, it should have been obvious to him that, if that challenge succeeded, the costs assessor would assess all the costs in the bills.  The appellant should have sought that.

40. [40]
    The assessment had to take place in the manner dictated by the statute, and if that process of assessment led to some of those costs being disallowed the fact that the particular ground had not been raised in that affidavit did not constrain the power of the costs assessor. The costs assessor’s obligation was to assess all of the costs in those two bills in accordance with the statute. That process was not to be confined in the way sought by the appellant. This ground of the appeal is therefore rejected.

Ground 3: Breach of natural justice

41. [41]
    The costs assessor had not raised with the appellant the items which looked excessive but which had not been specifically addressed by the respondents, in order to give the appellant the opportunity to make specific submissions on them. The Magistrate found that there had been a breach of natural justice on the part of the costs assessor in reducing or disallowing a number of items which had not been expressly objected to by the respondents, without giving the appellant the opportunity to be heard in relation to these matters. The Magistrate concluded, I think correctly, that that involved a breach of natural justice, and I would respectfully endorse the comments of the Magistrate at paragraph [82] and [83] of his decision.^[32] 

42. [42]
    The issue that then arose was what followed from this finding of a breach of natural justice. The appellant had identified 47 items where the amounts claimed by the appellant had been reduced or disallowed without his having the opportunity to be heard in relation to them. The Magistrate dealt with this, not by sending the matter back to the costs assessor, but by assessing the items himself, on the review. The appellant had the opportunity to make submissions to him, and indeed sought this in the alternative to a reassessment by a costs assessor.^[33]  No case was mounted before the Magistrate that a breach of natural justice had to lead to a reassessment, and it is therefore not open to the appellant to adopt a different approach now.^[34]  The appellant, having invited the Magistrate to decide the matter himself, cannot now seek a fresh assessment just because the decision of the Magistrate was unfavourable to him.

43. [43]
    No submissions were advanced to me that any particular decision in respect of the 47 relevant items was incorrect, on any particular ground.^[35]  The appellant’s point is simply that the Magistrate’s approach did not cure the breach of natural justice.  If the Magistrate had indicated that he was not going to do this, and as a result the appellant had not made submissions on those items, that would be the position.  But the Magistrate gave no such indication. The appellant invited him to decide the matter, and relied on the contentions referred to in paragraph [3] of the written submissions before the Magistrate.^[36]  The Magistrate on review had power to decide these matters for himself pursuant to r 742(6) of the UCPR.  By doing so the breach of natural justice by the costs assessor has been cured.

44. [44]
    It would have been open to the Magistrate to have sent these items back to the costs assessor for reconsideration, and I accept that in principle it would have been open to the Magistrate to have ordered that these items be reconsidered by a different costs assessor, or perhaps that the entire assessment be set aside, and undertaken afresh by a different costs assessor. That of course would have been the most expensive response to the problem. The Magistrate, by conducting the assessment in respect of those items afresh, himself adopted the most efficient and least expensive solution. It is somewhat surprising to find the appellant before me complaining about the excessive cost of the process of costs assessment, and then asking me to deal with the difficulties created by setting aside the assessment and ordering it to be done again before a different costs assessor, who would presumably impose much the same charge. There is no reason why it would not take that cost assessor about the same time.^[37]

45. [45]
    Had the Magistrate concluded that the whole approach of the costs assessor was fundamentally flawed, that might have been a necessary approach, but he did not reach that conclusion, and neither do I. On the contrary, we have both concluded that the costs assessor was not confined in the way contended for by the appellant, which was the central issue on the appeal. There was no question of bias on the part of the costs assessor.

46. [46]
    The Magistrate was entitled to deal with the breach of natural justice by reassessing those items, after giving the appellant the opportunity to make whatever submissions he wanted to make in relation to them. I note that in Southwell v Jackson [2012] QDC 65 McGill DCJ at paragraph [29] dealt with an objection that some items had been disallowed even though they were not the subject of specific objection, contrary to the rules of natural justice, by giving the applicant the opportunity to make submissions to him in support of the bill as drawn.

47. [47]
    In my opinion the natural justice point can be, and was, properly accommodated by the Magistrate’s rehearing the assessment de novo in respect of these items, in circumstances where there had been ample opportunity for the appellant to make whatever submissions he wished to make. Once that point was reached, the breach of natural justice had gone away, because the appellant had been given the opportunity to make appropriate submissions.

48. [48]
    This is an appeal by way of rehearing, but in circumstances where the appellant did not specifically argue that the Magistrate’s assessment in relation to any particular item was erroneous, I do not consider that it is necessary for me to reconsider that assessment and make up my own mind about the correctness of it, as is ordinarily the case with an appeal by way of rehearing. That is because, even with such an appeal, it remains for the appellant to show that the decision subject to appeal is wrong. Accordingly I can confine my consideration to those matters advanced on the appeal on behalf of the appellant, and I have not reconsidered the assessment of the 47 items in question.

Ground 4: Rejection of Ms Davis’ evidence

49. [49]
    The fourth ground argued was that the Magistrate erred in rejecting the evidence of the costs assessor, Ms Davis, tendered to him on behalf of the appellant by the leave of another Magistrate, on the ground that she had prepared the bills which were assessed, so that her evidence was not objective, and lacked independence.^[38] It was submitted that was not a proper basis for rejecting her evidence, in circumstances where she had acknowledged expertise.  But the proposition that, where Ms Davis had been retained by the appellant to prepare the itemised bills in question, and to review the assessment, there was at least an apparent lack of objectivity and independence in any expert evidence she gave about the matter, was plainly correct.  She had originally been retained to act in drawing bills in the interest of the appellant, so that her original involvement in the matter was on a partisan basis, rather than on the basis of an independent expert, which ought to have been the approach of the costs assessor who did the assessment.  That was a fact which it was legitimate for the Magistrate to take into account in relation to the assessment of her evidence.  The weight and significance to be attributed to that fact was not something that arose on the basis of any generalisation.  It depended on the circumstances of the matter, and might well have been influenced by the fact that a number of the amounts claimed in the costs statement were plainly unjustified and inappropriate.^[39]

50. [50]
    For example, the letters in items 39 and 50 were obviously short formal letters,^[40] yet they had been claimed in the bill under item 17(2), and Ms Davis purported to justify that claim in her report exhibited to her affidavit.  The proposition that items 186 and 188 involved skill or legal knowledge, given that they were purely mechanical telephone calls relating to the listing of the appeals for hearing,^[41] was equally unjustified, and unjustifiable, but these items were included in the bill by Ms Davis and she purported to justify them in her report exhibited to her affidavit.

51. [51]
    Defending the indefensible may sometimes be the lot of the advocate, but when a person purporting to be an independent expert adopts that approach, a court may legitimately doubt either the independence or the expertise, or both. In my opinion the Magistrate was entitled to regard Ms Davis as a partisan rather than an independent expert, and to take that into account when assessing her evidence.^[42]  Nevertheless, the Magistrate had regard to her evidence “such as it is” in assessing the items in respect of which he held there had been a failure to accord natural justice.^[43]  I would too, if I were dealing with the detail of the assessment in my rehearing.  The Magistrate properly rejected her ‘evidence’ as to how the assessment should have been conducted, since it was wrong in law, as explained earlier.  In my opinion there was no error in the approach the Magistrate adopted, when considering the evidence of Ms Davis, and this ground of appeal fails.

Conclusion

52. [52]
    These were the only matters argued in relation to the appeal. As noted above, Senior Counsel for the appellant expressly abandoned any other matters in the notice of appeal or in the written outline of the appellant filed in support of the appeal not advanced in oral submissions.^[44] There is therefore nothing else that I need to consider.  I have rejected all the matters advanced on behalf of the appellant, and accordingly the appeal is dismissed.  It is not clear whether the respondents, who appeared in person when the appeal was heard, have incurred any legal costs in relation to the appeal, but if so they are entitled to their costs.