Naidoo v State of Queensland[2015] QDC 68

DISTRICT COURT OF QUEENSLAND

Introduction and context

1. [1]
   The plaintiff in these matters has made application for review of each of the costs assessments conducted in respect of each proceeding and respectively evidenced by the cost certificates, each dated 17 November 2014 and filed in each proceeding.

2. [2]
   By consent, these applications were heard together, as there is some degree of overlap and commonality of issue.

3. [3]
   Although involving different second defendants,^[1] each of these proceedings was instituted and relevantly pursued by the plaintiff as a self-represented litigant.  He is a medical practitioner in Queensland and the issues which he sought to raise in these proceedings generally arose out of his dissatisfaction with responses of the defendants, in respect of what he regarded as important issues and about which he raised complaint during his employment at the Gympie Hospital. 

4. [4]
   The proceeding D4/13 was commenced by claim filed on 18 January 2013 and purporting to claim:

“Damages for the negligent and vexatious notification submitted Australian Health Practitioner Regulation Agency, and damages for defamation, iniuria and insult to personality.  The nature of the claim is such that damages are claimed from both defendants jointly and severally with the First Defendant being held vicariously liable for some of the damage occasioned by the second defendant.”

On 5 July 2013 and on the defendants’ application in that regard, an order was made striking out the statement of claim filed (also on 18 January 2013) in support of that claim, in its entirety and the plaintiff was given leave to re-plead, on or before 5 September 2013.  Costs of that application were then reserved. 

5. [5]
   Subsequently and on 1 November 2013 and consequently to the further application of the defendants, orders were then made in respect of striking out various parts of the statement of claim filed on 27 August 2013, with the effect that what was allowed to remain was only a claim for a cause of action in defamation. The further order was that:

“The plaintiff pay the defendant’s cost of and incidental to the application and the application filed 12 June 2013 and heard on 5 July 2013.” 

6. [6]
   The proceeding D5/13 was also commenced by claim filed on 18 January 2013 and purporting to claim:

“Damages for the negligent management of safety issues at Gympie Hospital which led to direct physical and psychological injury in the form of a needle stick injury, damages for defamation, iniuria and insult to personality.  Damages from the second defendant for morally reprehensible conduct performed in the capacity of an administrator of the First Defendant by misrepresentation, bullying, reprisals and defamation.  The nature of the claim is such that damages claimed from both Defendants jointly and severally with the First Defendant being held vicariously liable for some of the damage occasioned by the Second Defendant.”

Again and by order made on 5 July 2013, the statement of claim filed in support of that claim, was struck out in its entirety and the plaintiff was granted leave to re-plead, on or before 5 September 2013.  Again costs were reserved.

7. [7]
   Also on 1 November 2013, further orders were made in respect of this proceeding. They were:

“1.The Statement of Claim filed on 27 August 2013 be struck out and the proceedings be dismissed.

2. The plaintiff pay the defendants’ costs of and incidental to the proceedings.”

8. [8]
   The following broad chronology may then be noted in respect of the pursuit of the costs issue in each proceeding:

1. (a)
   on 10 December 2013, the defendants’ costs statements were forwarded to the plaintiff, by email and letter and subsequently on 17  December 2013, some omitted attachments were also forwarded;^[2]

2. (b)
   on 3 February 2014, the solicitors for the defendants received an email from the plaintiff attaching his notices of objection to the costs statements;^[3]

3. (c)
   by email and letter dated 4 April 2014, the solicitors for the defendants nominated three potential cost assessors to carry out the cost assessment (including the cost assessor ultimately appointed in this matter), with a request for the plaintiff to indicate agreement to the appointment of one of these costs assessors, by 11 April 2014;^[4]

4. (d)
   in the absence of any response from the plaintiff and after ascertaining the availability and consent of Mr Garratt to act as costs assessor, the solicitors for the defendants filed, on 28 May 2014, an application seeking the appointment of that costs assessor and proposing that the application be decided without oral hearing.  It was set down to be decided by the registrar on 8 July 2014.  By email and letter dated 6 June 2014, the sealed copies of that application and the supporting affidavit (which relevantly exhibited copies of the defendants’ cost statement, the plaintiff’s notice of objection to the cost statements and the defendants’ response to those notices of objection), were served on the plaintiff;^[5]

5. (e)
   accordingly and in the absence of any response from the plaintiff and on 8 July 2014, the acting registrar of the District Court at Gympie made orders pursuant to Uniform Civil Procedure Rules 1999 (“UCPR”) r 710 and  r 713, appointing Mr Garrett as the costs assessor in each proceeding;^[6]

6. (f)
   on 7 August 2014, the defendants’ solicitors advised Mr Garrett by email that he had been so appointed.  Mr Garrett responded on the same day, requesting copies of the defendants’ cost statements and the plaintiff’s notices of objection.  The response of the defendants’ solicitors was to send those documents and the responses that they had prepared to the plaintiff’s notices of objection;^[7]

7. (g)
   by email on 12 August 2014 the parties were informed by the costs assessor, as follows:

“Pursuant to Orders of the Registrar, I was appointed to assess the costs payable in accordance with the orders of 1 November 2013.

I have received the Defendants’ Costs Statements, the Plaintiff’s Objections to those Costs Statements and responses to the Objections.  I note objection has been raised to the quantum of Counsel’s fees.  It is noted that Counsel’s fees have been claimed inclusive of GST and in order to consider these claims I request that the Defendants’ solicitors advise as to whether an input tax credit has been claimed on outlays in which event I will consider the outlays net of GST, (see Hennessey Glass & Aluminium Pty Ltd v Watpac Australia Pty Ltd [2007] QDC 057).

At this stage I propose to undertake the assessment on the papers and I request that the Defendants’ solicitors provide me with the relevant documents and file in order that I can undertake the assessment.”;^[8]

8. (h)
   By email on 13 August 2014, the plaintiff directed the following to the costs assessor:

“I received your correspondence yesterday.  I note that you have received responses to my objections to the costs.  Please note I am self-represented in these costs proceedings.  Please advise on how I am able to respond to the objections and make a formal submission (on paper) in this regard.”^[9]

The response of the costs assessor on 14 August 2014, as directed to both parties, was as follows:

“I have received an email from Mr Naidoo.  I am not in a position to advise any of the parties as to what course they should adopt as I have been appointed as the assessor.

As previously indicated I propose to undertake the assessment on the papers and if I require any further information from any of the parties I will advise them.”^[10]

1. (i)
   Under cover of a letter dated 15 August 2014, the defendants’ solicitors forwarded copies of their files in respect of each matter and responded to the costs assessor’s query, confirming that input tax credits had been claimed on the outlays;^[11]

10. (j)
    By email on 21 October 2014, the costs assessor informed the parties as follows:

“I have completed the assessment of costs in the above proceedings.

I request the parties advise as to whether any offer to settle have been made and if so the date of the offer.

I do not wish to know the amount of the offer at this stage and if an offer has been made, I will advise the party as to the costs which have been allowed up to that date.”^[12]

10. (k)
    By email on 24 October 2014 and consequently to the advice of the defendants’ solicitors by email on 21 October 2014 (copied to the plaintiff), advising that no offer to settle has been made by any party in either of the proceedings, the costs assessor informed the parties as follows:

“I refer to my letter of 21 October 2014.  I have been advised by the Defendants’ solicitors that no offer to settle has been made.  I have not heard further from the Plaintiff.

In relation to Action filed at 2013 I have allowed the costs in the Costs Statement up to including item 406 in the amount of $26,789.27.

In relation to the Costs Statement Action 4 of 2013 I have allowed the costs up to and including item 234 in the amount of $12,190.52.

These costs do not include the costs of the assessment such as preparation of the Costs Statements or the costs of my appointment.  It is noted in the Costs Statements that these anticipated costs have been included and an objection has been raised to these costs by the plaintiff.  In my view the defendants are entitled to the costs of the assessment as no offer to settle has been made.

I am conscious of the costs which should be incurred in the Defendants preparing any further Costs Statement in relation to the costs of the assessment and unless either party objects by 4:00 pm on 31 October 2014, I propose to assess these costs myself having regard to the information contained in the file.

I await to hear further from the parties.”^[13]

The plaintiff responded by email on 27 October 2014, including the following:

“Please advise on how I am able to make a representation regarding the costs assessment, and whether this should be to you or the Court.”^[14]

By email on 29 October 2014 the costs assessor informed the parties as follows:

“I refer to the email received from Dr Naidoo on 27 October 2014.  Pursuant to r 732 of the Uniform Civil Procedure Rules I am to decide the costs of the assessment.

As no offer to settle has been made, the costs of the assessment are the costs incurred by the defendants in having the costs assessed which involves preparation of the Costs Statement, receiving and perusing the Notice of Objection and the application for my appointment to undertake the assessment and my fees for the assessment. 

What I was proposing in my letter of 24 October 2014 was, rather than the Defendants delivering a Costs Statement in respect of those costs and serving them on Dr Naidu, who will then have the right to deliver Objections to that Costs Statement, was that the writer undertake the assessment by reference to the file to avoid the costs of a Costs Statement and Objections. 

If Dr Naidu though prefers a Costs Statement to be delivered for those costs and deliver Objections, I request that he advise accordingly.”^[15]

Further and by email on 3 November 2014, the costs assessor further informed the parties:

“I refer to my email of 29 October 2014.  I note I have not received any response from Dr Naidu.  In the absence of a request for a costs statement and for the costs of the assessment from Dr Naidu by 4 p.m. on 4 November 2014 I will assess those costs myself having regard to the information contained in the file.”;^[16]

10. (l)
    Accordingly and in the absence of any further communication by either party and by email on 17 November 2014, the costs assessor advised the parties that he had completed the assessment and enclosed a copy of his certificate of assessment in each proceeding, which he advised had also been forwarded to the registrar for filing in each proceeding. The results were that:

• In D4/13 the costs assessed as payable were a total of $15,998.52 made up as follows:

“As per my letter of 24 October 2014

• In respect of D5/13, a total amount of $31,860.42, made up as follows:

“As per my letter of 24 October 2014

10. (m)
    Accordingly and pursuant to UCPR r 740 and on 19 November 2014, the registrar made orders that the appellant pay the costs as certified by the costs assessor, pursuant to the order made on 1 November 2013, in each proceeding.^[17]

9. [9]
   Following that, it can be noted that by email on 30 November 2014 and pursuant to UCPR r 738, the plaintiff requested that the costs assessor provide reasons for each assessment and that by email on 3 December 2014, the costs assessor provided his reasons for his assessment in each proceeding, to the parties.^[18]  On 15 December 2014, the plaintiff filed his application for review of the costs assessment made in each proceeding.

Review of costs assessment – principles and legislative framework

10. [10]
    Accordingly, the plaintiff has applied within the time limit prescribed in UCPR 742(2), for the review provided in UCPR 742(1):

“742(1) A party dissatisfied with a decision included in a costs assessor’s certificate of assessment may apply to the court to review the decision.”

11. [11]
    UCPR 742(3) requires that such an application:

“(a) states specific and concise grounds for objecting to the certificate; and

2. (b)
   have attached to it a copy of any written reasons for the decision given by the costs assessor; …”^[19]

Neither of the filed applications did so.  However, the plaintiff did conjunctively file affidavits, which did exhibit a copy of the written reasons given by the costs assessor and otherwise set out what may be regarded as his grounds.  The affidavits are essentially in the form of submission rather than evidence, if one leaves aside some material (which was excluded or struck out at the commencement of the hearing)^[20] and with a possible exception, being the plaintiff’s Exhibit PG3, to his affidavit filed in D4/13, which included the plaintiff’s email of 17 October 2013 to the defendants’ solicitors.  However and at the hearing, the defendants:

1. (a)
   accepted that the email in Exhibit PG3 and to which the plaintiff wished to refer, was likely to have been part of the file provided to the costs assessor; and

2. (b)
   took no objection to these applications proceeding on the basis that the plaintiff’s affidavits would be taken as supplements to the applications for review and in effect providing the grounds for objecting to the certificate.

12. [12]
    However, it should be noted that it was expressly not conceded that these grounds could be regarded as specific and concise or entirely intelligible and initially there was an attempt at convincing the Court to summarily dismiss the applications. But it was ultimately conceded that particularly in the light of the plaintiff identifying and narrowing the applications, to some specific issues (as discussed below), that it was appropriate for the Court to hear the applications on that basis.

13. [13]
    Some further context for these preliminary considerations is that UCPR 742(5) provides:

“(5) On a review, unless the court directs otherwise-

(a)the court may not receive further evidence; and

(b)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.

Otherwise, no attempt is made to define what constitutes the evidence or the record, for the review and so as to enable any determination as to the receipt of “further evidence”. Neither is there any prescription as to the basis of the review to be conducted by the Court.

14. [14]
    However, it has been recognised that the applicable principles were explained in Australian Coal and Shale Employees’ Federation v The Commonwealth:^[21]

"In appeals as to costs, the principles to be applied are these.The Court will always review a decision of a Taxing Officerwhere it is contended that he has proceeded upon a wrongprinciple, for the purpose of determining the principle whichshould be applied; and an error in principle may occur both indetermining whether an item should be allowed and indetermining how much should be allowed. Where no principleis involved, and the question is, whether the Taxing Officerhas correctly exercised a discretion which he possesses andis purporting to exercise, the Court is reluctant to interfere. Ithas undoubted jurisdiction to review the Taxing Officer'sdecision even where an exercise of discretion only isinvolved, and will do so freely on a proper case, using its ownknowledge of the circumstances: ..., but it will in generalinterfere only where the discretion appears not to have beenexercised at all, or to have been exercised in a manner whichis manifestly wrong; and where the question is one of amount only, will do so only in an extreme case."^[22]

15. [15]
    The essential characteristic of the function of the costs assessor, as being in the nature of an exercise of discretion, was specifically recognised:

1. (a)
   In Nashvying Pty Ltd v Giacomi:^[23]

"[4]The discretion conferred by the sub-rule is a wide one. But it is to be exercised with a consciousness that it is effectively an appeal against the exercise by the cost assessor of a discretion. In general the Court will interfere only where the discretion appears not to have been exercised at all or to have been exercised in a manner which is manifestly wrong Australian Coal and Shale Employees Federation v The Commonwealth [(1953) 94 CLR 621 at 629];” and

2. (b)
   In Hannover International Ltd v CF Robson; Mine & Quarry Equipment International v CW Robson; GF Robson v CW Robson,^[24] where Ann Lyons J applied both the decisions in Nashvying and Australian Coal and Shale Employees Federation and observed:

“[17]There is no doubt that a costs assessor appointed pursuant to the UCPR has a very broad discretion and the Court, on review of such an assessment, has a similarly wide discretion ...

[18] In Australian Coal and Shale Employees Federation v The Commonwealth2 it was held that the Court would review a decision of a costs assessor or taxing officer where it is contended the assessor proceeded on a wrong principle either in determining whether an item should be allowed or in determining how much would be allowed. However, the Court held that where there is no error of principle involved, the Court should be reluctant to interfere particularly where the question is one of „amount only‟. An applicant must therefore show that the discretion has not been exercised at all or that it was exercised in a manner which was clearly wrong.”

16. [16]
    Accordingly, it may be seen that the recognised and applicable principles are analogous to those pertaining to an appeal against the exercise of discretion by a judicial officer and as explained in House v R:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”^[25] 

17. [17]
    This is because a costs assessor, although not a judicial officer, is specifically empowered to perform the function of costs assessment, as an adjunct to the legal process. Often, although not exclusively, that will occur consequently to judicial order. But such an assessment, occurs in accordance with the powers and obligations relevantly prescribed under the UCPR and the involvement of the exercise of discretion in the assessment, is expressly recognised in UCPR 721,^[26] as follows:

“721 Discretion of a costs assessor

In assessing costs, a costs assessor must consider the following-

1. (a)
   any other fees and allowances payable to the solicitor or counsel for other items in the same proceeding;

2. (b)
   the nature and importance of the proceeding;

3. (c)
   the amount involved;

4. (d)
   the principle involved;

5. (e)
   the interests of the parties;

6. (f)
   the person who is to pay the costs, or the fund or estate out of which the costs are to be paid;

7. (g)
   the general conduct and cost of the proceeding;

8. (h)
   any other relevant circumstances.”

18. [18]
    However, it is of critical importance to understand that relevantly to these costs assessments, the costs assessor’s discretion was constrained as follows:

1. (a)
   Pursuant to UCPR 722, “[i]f a notice of objection relates only to a particular issue or a particular item, a cost assessor must limit the assessment to the resolution of the matters raised in the notice of objection in relation to the issue or item or otherwise assess the costs under r 708” and it can be noted that UCPR 708(4)(b) permits “the costs assessor correcting an obvious error in the costs statement”;^[27]

2. (b)
   Pursuant to the costs order entitling the defendants to be paid costs and UCPR 702(1), the assessment was to be conducted on the “standard basis” and UCPR 702(2) provides:

“(2)When assessing costs on the standard basis, a costs assessor must allow all costs necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed.” ; and

3. (c)
   UCPR 691(1) provides that:

“(1) For assessing costs on the standard basis, an Australian lawyer is entitled to charge and be allowed the costs under the scales of costs for work done for or in a proceeding in the court.”

19. [19]
    In UCPR 691(2), Schedule 2 to the UCPR is identified as the scale of costs applicable to the District Court and it may be noted that UCPR 691(5) and (6) also provide:

“(5)If the nature and importance, or the difficulty or urgency, of a proceeding and the justice of the case justify it, the court may allow an increase of not more than 30% of the Australian lawyer’s costs allowance on an assessment under the relevant scale of costs.

(6)A costs assessor has the same authority as the court under subrule (5).”

The plaintiff’s contentions

20. [20]
    As has been noted, on the hearing of these applications, the plaintiff attempted to distil his grounds for review into somewhat more precise contentions. Notwithstanding this, there still remained a deal of sweeping generalisation and lack of precision in his arguments. For instance and apart from specific reference to the costs of the defendant’s requests for further and better particulars, he did not attempt to identify any other particular costs that he contended should have been disallowed by the costs assessor. The notices of objection before the costs assessor had ranged more widely, albeit again under generalised or sweeping contentions, rather than more specific ones.

21. [21]
    Further and leaving aside a complaint that he was denied natural justice or procedural fairness (to which I will return), the plaintiff particularly focused on UCPR 721 and sought to invoke his position as a self-represented litigant, attempting to bring, what he contended were significant and serious concerns about the Gympie Hospital, to light and in the context of his seeking redress for what he had claimed was the inappropriate treatment of him by particular persons and the hospital administration, in response to his raising such issues. In this regard, he sought to characterise what he had done, including his commencement of proceedings in this court, as the making of public interest disclosure, pursuant to s 23 of the Public Interest Disclosure Act 2010 (“PIDA”).  However an apparent difficulty with any such contention is that the plaintiff’s attempts to formulate any cause of action upon his claims, except for his claim in defamation, were unsuccessful and in this regard, it may be noted that s 23(5) of the PIDA provides:

“The fact that a court or tribunal is treated as a public sector entity under this Act, and therefore can be a proper authority under section 15(1)(a)(ii) to receive a public interest disclosure, does not give a person a right to take a proceeding before the court or tribunal that the person does not have apart from this Act.”

22. [22]
    Moreover, the plaintiff is not entitled under the guise of his review of the costs assessment, to seek to challenge or undermine the costs orders of the Court, as they were made on 1 November 2013.^[28]  Accordingly, the plaintiff’s contentions that as an unrepresented litigant, he has been subjected to “unfair adversarial advocacy”, may only avail him to the extent that there were costs claimed by the defendants that were not necessary or proper for the attainment of justice or for enforcing or defending the defendants’ rights.

23. [23]
    For similar reasons, there is no basis upon which the plaintiff could, on this review, achieve any outcome whereby:

1. (a)
   the defendants were made liable for the costs of the matters or the parties were ordered to bear their own costs; or

2. (b)
   any special order was made against the defendants’ lawyers, whether because of any “unfair adversarial advocacy” or breach of any rules of conduct, or for any other reason.^[29]

Review of the assessments

24. [24]
    A fundamental problem confronting the plaintiff is that the costs assessor was obviously alert to the plaintiff’s concerns about excessive costs, from what had been raised in the plaintiff’s notices of objection and he, correctly, gave consideration to this, in terms of deciding whether there would be any non-allowance, on the basis of unnecessary or improper costs, in the relevant sense. The plaintiff’s contentions in this regard were underpinned by his reference to the outcomes that had led to the costs orders and in turn, the assessments which he sought to review. He seeks to emphasise that the determinations leading to these results were in respect of the striking out of his pleadings, or part of them and that the general principle is that such an exercise of discretion “should only be exercised where the claim or defence is obviously untenable”.^[30]

25. [25]
    An obvious difficulty with such an argument is that it is based on the hindsight and simplicity of a conclusion and one which may belie the complexity involved, including as to distillation of materials that may not have been initially clear as to their effect. In this regard, it is of some significance that the plaintiff was on 5 July 2013, granted an opportunity to re-plead, in each action. More importantly, such an approach ignores any effect of applicable rules engaged by the institution of proceedings and particularly those as to time limits placed on defendants or respondents and any potential consequences for failure to respond in accordance with those rules. It can be noted that it is, at least in part, because of the engagement of such obligations, that an entitlement may be recognised for the recovery of costs by a defendant who is successful in having proceedings struck out and it must necessarily be recognised that such a prospect is therefore necessarily, an inherent risk attendant on the commencement of proceedings.

26. [26]
    These issues most critically arose in matter number D5/13 and reference to the reasons for decision, given by the costs assessor in respect of his assessment of that matter, amply demonstrate that after setting out UCPR 702(2), the costs assessor was both alive to and dealt with the plaintiff’s contentions or objections. For instance in relation to items 5 to 32 in the bill of costs relating to matter number D5/13, the plaintiff’s objection was stated in the following form:

“The defendants/respondents were successful in their application for dismissal of the claim based on the finding that the plaintiff/applicant did not have a valid claim or cause of action on which to proceed to court.  The defendant should not have proceeded with their defence but proceeded immediately with their application to strike out based on the technical deficiencies of the applicants case ab initio.  These deficiencies in the plaintiffs claim are raised extensively in a letter by the defendants solicitors which is claimed as costs.  The bulk of the work claimed in these items is for the defence that was prepared, which was not necessary due to the defects in the plaintiffs case.  The plaintiff acted as a self-represented litigant.”

In the costs assessor’s reasons and under the heading “Items 5 to 32” and after paraphrasing the effect of the objection, the cost assessor said:

“As a general proposition I do not accept this submission.  It was necessary for the defendants to prepare the Defence particularly having regard to the requirements of Rules 135 and 139.   Further, there was a time limit within which a Notice of Intention to Defend and Defence has to be filed and served.^[31]  I therefore do not accept the submission made by the plaintiff in relation to those claims.

I have been through the items myself and cannot find any other basis for disallowing the items.”

27. [27]
    An objection to similar effect was expressed in relation to items 33 to 41 in the bill of costs and also in relation to items 42 to 88 in the bill of costs which sought that a total amount of $2,494.05 be disallowed on the following basis:

“The Defendants had identified that the plaintiff did not have a valid claim identifiable in the case early on in the matter.  This is addressed extensively by the Defendants’ solicitors in a letter claimed later in their costs schedule.  The protracted and profound Requests for Further Particulars were not required and amounted to an abuse of the process.  The Defendants should have proceeded immediately to the Application to strike out.  In terms of rule 21 of the Solicitors Conduct Rules, the Defendants solicitors were obliged to employ reasonable use of the court process and privilege, and the extensive Requests for Further Particulars and serving of Defence and other pleadings is a breach of the Solicitors Code of Conduct after identifying that the Plaintiff as a self-represented litigant did not have a valid cause of action.  The extensive barrage of Requests for Further Particulars amount to a breach of rule 21.1.3 of the Solicitors Conduct Rules 2012 and are a demonstration of excessive and unfair adversarial advocacy.”

It may be noted that those reasons for objection are repeated, by adoption, in relation to all of the remaining items in the bill of costs, save for item 147.  In specific reference to the objection to items 42 to 88, the costs assessor said:

“These objections are cast in a similar vein but also allege that the conduct by the solicitors is in breach of the Solicitor’s Code of Conduct.  I do not accept this submission either, I believe it is quite appropriate for the solicitors to attempt to correctly identify the basis of the Plaintiff’s claim by requesting Further and Better Particulars.  The Request for Particulars was exhibited to the Affidavit of Mr Kimmins sworn 11 June 2013 in support of an application filed by the Defendants on 12 June which sought to strike out the Statement of Claim.  On the return of the application on 5 July 2013 Judge Robertson granted leave to the Plaintiff to amend the Statement of Claim and ordered that costs of both the Plaintiff and Defendants’ application be reserved.^[32]  In the circumstances I have not accepted the submission of the Plaintiff and I have allowed these costs.”

28. [28]
    As to item 147, this is described in the bill of costs as a claim for an amount of $921.50 for drafting, on 3 May 2013, a letter to the plaintiff: “addressing Plaintiff’s proceedings and causes of action and explaining defects, requesting amendment of Plaintiff’s pleadings and advising client’s intention to apply to strike out sent via email.” In the bill of costs it is noted that the claim was calculated at the item 4 rate, due to the skill and legal knowledge involved in the letter and as justification for a higher amount. Although it was also noted that the claim was apportioned 50 per cent, due to matter number D4/13. The reasons of the costs assessor records the following in respect of the objection to this item:

“The Plaintiff objects to this claim as he believes the Defendants identified straightforward and non-controversial defects in their Statement of Claim.  I do not accept this submission as it was necessary to bring an application which was heard on 5 July 2013 in relation to these particulars in the Statement of Claim.

I have considered the letter at item 147.  The document is 22 pages in length and sets out the Defendants’ complaints in relation to the Plaintiff’s pleadings.  I believe it is appropriate that this be claimed as a special letter and I have allowed the claim.  Further, no claim has been made for producing the letter which could have been claimed by the Defendants.  The claim is allowed in full.”

29. [29]
    In respect of matter D4/13, the position is factually different, in that this action remains before the Court but only in respect of the cause of action in defamation. However the defendants were successful in their applications to have the remainder of the statement of claim struck out and the assessment was to be conducted in respect of the order made on 1 November 2013 and awarding the defendants the costs of both the application filed on 21 October 2013 and heard on that day and the earlier application filed on 12 June 2013 and heard on 5 July 2013.

30. [30]
    In the plaintiff’s notice of objection to the bill of costs in matter D4/13, the objection to items 1 to 120 and 121 is essentially similar, in seeking an apportionment of 50% as costs related to the extant defamation cause of action. In respect of items 244 to 276, these are identified as costs related to the costs assessment and the objection is:

“The objection to the defendants/respondents’ costs claimed are reasonable, and should not proceed to a costs assessment.”

31. [31]
    Finally and in relation to “[a]ll items not covered above”, the further stated objection is:

“The reasons for this objection are the following:

1. 1.
   The solicitors and client on behalf of the defendants refused to meetings at the outset of the litigation, and refused to even discuss the settling or withdrawal of the matters. This continued refusal continued throughout the hearing of this initial portion of the matter.

1. 2.
   The tactics employed by the solicitors for the defendants breached rule 21 of the Solicitor’s Code of Conduct and amount to excessive and unfair adversarial advocacy.

1. 3.
   The representation of both defendants amounts to a conflict of interest.”

32. [32]
    Although the costs assessor, in his written reasons for decision, does not expressly refer to the last mentioned general objections to the items not otherwise covered, it can be noted from what I have observed above, that at best for the plaintiff the issues which are raised: (a) could not avail the plaintiff as far as they went to the costs orders that were made on 1 November 2013; and (b) as to the assessment of the costs payable under those orders and as has been previously noted, the costs assessor specifically referred to UCPR 702(2) in his written reasons for decision and correctly identified this as the rule expressing the essential questions for him.

33. [33]
    Otherwise the costs assessor dealt with the plaintiff’s objections as follows:

1. (a)
   In respect of items 1-120:

“Items 1 to 120 of the costs statement are objected to by the Plaintiff on the basis that the Defendants were successful in striking out the application relating only to that part of the claim dealing with the damages for reprisal and wrongful conduct and not the claim based on defamation.  The order however entitles the Defendants to their costs of both applications and to the extent that the costs involve those applications I will allow them on a standard basis.  I do not accept the objection that there are aspects of the application which should be apportioned.  I have reviewed Items 1 to 120 and consider that there are costs which ought to be recoverable as costs of and incidental to the application.^[33]  No objection has been raised to specific items other than the general objection to Items 1 to 120 which I have addressed.”

2. (b)
   In respect of Item 121 the costs assessor made reductions.  First he reduced the claim by the amount of GST, in accordance with his general enquiry of the solicitors for the defendants and on the basis that an input tax credit had been claimed for that amount.  Secondly he disallowed some of the claimed fees of counsel, in the amount of $1,254.00, by concluding that they related to the costs of the ongoing action, rather than of the applications which were the subject of the orders made on 1 November 2013.

3. (c)
   In respect of Items 244 to 276 he obviously struggled with the form of the objection and proceeded upon the following basis:

“The objections are that the costs are not reasonable and should not proceed to a costs assessment.  I do not believe that this is a valid form of objection.  The test for recovery of costs as set out in the rules as stated previously.” 

He went on to indicate that he had allowed the claims except for the GST component at Item 227 again on the basis that the defendants were registered for GST and had obtained an input tax credit.

34. [34]
    It is therefore apparent that the costs assessor correctly proceeded, having regard to the function prescribed for him under the UCPR and was not distracted by or drawn into any issues raised by the plaintiff and which had a purpose or tendency to attack or challenge the basis upon which the costs orders of 1 November 2013 were made.

35. [35]
    Also the issue that the plaintiff sought to raise by reference to Exhibit PG3, was similarly misconceived. In the first instance, it is at the very least, difficult to discern that the material relied upon evidences any unequivocal offer to settle the proceedings which were the subject of the costs orders and which were to be assessed. But and even if it did, that would now be an inappropriate attempt to mount an attack or challenge upon the basis upon which the costs orders were made on 1 November 2013 and not a valid issue by which to review the costs assessments made consequently to those orders.

36. [36]
    Secondly it is also apparent that the contention arises out of the parties misapprehension as to the costs assessor’s email dated 21 October 2014 and in which and after he advised of having completed the assessment of costs in the proceedings, he requested that:

“… the parties advise as to whether any offer to settle have been made and if so the date of the offer.

I do not wish to know the amount of the offer at this stage and if an offer has been made, I will advise the party as to the costs which have been allowed up to that date.”

37. [37]
    As is clear from the latter part of that extract, the costs assessor’s concern was as to the potential application of Division 4 of Part 3 of Chapter 17A (UCPR 732 to 735)  and therefore the costs to be allowed on the assessments.  However and as is common ground and consistently with the information given to the costs assessor, no such offer was made and therefore no issues arose under Division 4, except that pursuant to UCPR 732, the cost assessor was required to also decide the costs of the costs assessment. As has been noted above,^[34] the costs assessor proposed the methodology that he would adopt in that regard, which may be noted to have been particularly and appropriately directed at efficiently dealing with this aspect and bringing the whole costs assessment to a conclusion. No objection or issue was raised with the costs assessor in that regard and there was no separate or any discernable complaint made referable to this aspect or decision of the costs assessor, on these reviews. 

38. [38]
    As far as the approach of the cost assessor is concerned, it can be noted that he was correct:

1. (a)
   In matter D5/13, to note the effect of UCPR 135 and 139, and the necessity for the notice of intention to defend and defence, in enabling the taking of further steps by the defendants, including the ultimately successful applications to strike out the plaintiff’s pleadings.  A further difficulty with the plaintiff’s approach appears to be an assumption that this claim and statement of claim may have been amenable to the procedures allowed by UCPR 16 or 144, when it is otherwise apparent that it was dealt with as a claim which failed to plead or disclose a viable cause of action.  In this regard the fact that the applications heard on 5 July 2013 did not then result in the order to strike out, rather than allowance of an opportunity for the plaintiff to re-plead, is also an indicator against the hindsight simplicity which the plaintiff now seeks to draw from the ultimate outcome; and

2. (b)
   To identify that, as an overall contention, a problem with the plaintiff’s approach to matter D4/13 was that the costs order of 1 November 2013 allowed recovery of all of the costs of the applications heard on 5 July 2013 and 1 November 2013.  It would therefore have been inappropriate for the costs assessor to attempt any apportionment of such costs on the basis that those applications were, in part, not successful, as far as the cause of action in defamation was concerned.  It was another matter altogether and it can be noted that the costs assessor did identify instances where it was necessary to apportion between the costs of those applications and the costs of the ongoing action.

39. [39]
    As to the costs relating to the defendant’s request for further and better particulars, the costs assessor dealt with this objection, as it arose in matter D5/13 and in respect of items 42 to 88.^[35]  His reasons in respect of this objection have already been set out above.^[36]

40. [40]
    There appears to be no error of principle in the approach of the costs assessor and upon review of the matter by this court, neither does his determination in this regard appear unreasonable. Further and better particulars were sought in respect of the plaintiff’s statement of claim and reply and appropriately in relation to generalised allegations of fact contained in those pleadings and to seek specifics in respect of allegations that were both unusual and sweeping in nature. Moreover, these requests were dated 14 March 2013 and the file contains the plaintiff’s response, filed on 27  March 2013.  Subsequently the defendants’ solicitors wrote the letter dated 3 May 2013, in which concerns as to the viability of the plaintiff’s claims were raised and, on 12 June 2013, the defendants’ filed their application which was heard on 5 July 2013.  It can also be noted that prior to that and on 19 June 2013, the plaintiff also filed an application, which was also heard on 5 July 2013 and which amongst other things, sought that the defendants be compelled to reply to a request for further particulars made and filed by the plaintiff on 11 April 2013 and in respect of the defence and rejoinder. 

41. [41]
    Finally, it can be observed that the reliance that the plaintiff seeks to place on UCPR 721, is also misplaced. Primarily his reliance on this was in an attempt to underpin those arguments which tended to challenge or seek to undermine the costs orders made on 1 November 2013 and the rule obviously does not allow that or have any such effect.

42. [42]
    It is apparent that UCPR 721 is a provision of general application and, as is most clearly evident from the reference, in sub-paragraph (g), to “any other relevant circumstances”, the circumstances or matters required to be considered are expressed broadly and the implication is necessarily of a requirement to take into account such considerations, to the extent that they relevantly arise in any particular case and it is, at least, difficult to discern how any such considerations arose in this case and particularly so as to demand any reduction of the claimed costs, in favour of the plaintiff.

43. [43]
    It can be noted that in the absence of a contrary order of the Court,^[37] the effect of UCPR 691 and 702(1) is that, as far as the quantum of costs is concerned, the primary position is that there is “an entitlement to charge and be allowed” the costs under the relevant scale “for the work done for or in a proceeding in the court”.

44. [44]
    Accordingly it is then necessary to identify the scope of the application of discretion by the costs assessor and therefore application of UCPR 721. Apart from referring to the scale provisions, it can be noted that UCPR 691(5) (6) provides as follows:

“(5)If the nature and importance, or the difficulty or urgency, of a proceeding and the justice of the case justify it, the court may allow an increase of not more than 30% of the Australian lawyer's costs allowable on an assessment under the relevant scale of costs.

(6)A costs assessor has the same authority as the court under subrule (5).”

45. [45]
    Further and in reference to the scale of costs (relevantly scheduled to the UCPR), the most obvious scope for exercise of discretion by a cost assessor, is in respect of:

1. (a)
   Item 2, which appears under the heading “Registrar’s Discretion” in the following terms:

“For a matter for which a cost is not provided for in this schedule, the amount to be allowed is the cost the registrar considers reasonable;” and

2. (b)
   Item 1, which appears under the heading “General Care and Conduct”, as follows:

“In addition to an amount that is to be allowed under another item of this schedule, the amount that is to be allowed for a solicitor’s care and conduct of a proceeding is the amount the registrar considers reasonable having regard to the circumstances of the proceeding including, for example—

1. (a)
   the complexity of the proceeding; and

1. (b)
   the difficulty and novelty of any question raised in the proceeding; and

1. (c)
   the importance of the proceeding to the party; and

1. (d)
   the amount involved; and

1. (e)
   the skill, labour, specialised knowledge and responsibility involved in the proceeding on the part of the solicitor; and

1. (f)
   the number and importance of the documents prepared or perused, without regard to the length of the documents; and

1. (g)
   the time spent by the solicitor; and

1. (h)
   research and consideration of questions of law and fact.”

46. [46]
    In these reviews, no specific complaint or even attention was drawn to any issue referable to either of these items in the scale of costs. Further, it may be noted that in matter D4/13 and as the assessment in that instance related only to the proceeding as far as it related to the applications for which costs were allowed, the claim referable to general care and conduct under item 1, was in the amount of $790 (as per item 234 in the bill of costs). Also in matter D5/13, the claim for general care and conduct pursuant to item one in the scale, was item 406 in the bill of costs and in the amount of $2200. Although the appropriateness of the amount of this claim was not made the subject of any discrete or separate objection by the plaintiff, the costs assessor in his reasons noted it and observed as follows:

“Item 406 I believe the amount claimed for care and consideration is modest and represents something less than 25% of the fees as allowed. I have allowed this claim.”

47. [47]
    In his written submissions on these applications for review, the plaintiff attempted to invoke his contentions as to the legal principles, including the application UCPR 721, as follows:

“[66].The costs assessor failed to consider the following relevant considerations:

1. (a)
   That the Plaintiff was self-represented and that the order for costs made by the judge was that the costs were not to be on an indemnity basis

2. (b)
   That the matter was of considerable importance as it revolved around allegations of reprisal which are illegal.

3. (c)
   That the representation of both Defendants by the same legal practitioner is a conflict of interest. The costs assessor himself specifically states at the end of his certificate “The Defendants have indicated their client is registered for GST and have obtained an input tax credit I have included my fee in the assessment nett of GST and rendered my fees inclusive of GST to the Defendants’ solicitors.” See Exhibit PG5 LAST PAGE PG REASONS D4.13

4. (d)
   That an offer had been made to abandon the matter in its entirety prior to the application to dismiss the reprisal aspect of the claim, and that such information was not provided to the assessor by the Defendants, or allowed to be introduced by the Plaintiff prior to the costs assessment being conducted. See Exhibit PG3 and PG4.”

48. [48]
    The contention as to conflict of interest is neither clear nor at any stage has it been established that any such contention has any bearing on the issues that were to be determined in the costs assessments. The assertion as to assessment on the indemnity basis is a misapprehension and a complaint that was not pursued on review or having any foundation.

49. [49]
    Accordingly, and also for the reasons that have already been given, there is no substantial merit in any of these contentions.

50. [50]
    Otherwise and subject to what follows in respect of issues relating to procedural fairness, it sufficies to note that on these costs reviews, there has been no demonstrated misapplication of principle or other error identified in the costs assessment, that would warrant any intervention of this court pursuant to UCPR 742(6).

Procedural fairness

51. [51]
    That leaves the complaints made by the plaintiff as to failure of compliance with the rules of natural justice (or to provide procedural fairness to him), in the process and determination of the costs assessments.^[38]

52. [52]
    First, the plaintiff suggests bias on the part of the costs assessor. However and apart from the making of that allegation and except for pointing to the outcome of the costs assessment and the circumstances of the other issue relating to procedural fairness and which is dealt with below, it is difficult to discern anything identified as supporting this contention.

53. [53]
    There is no basis for concluding that the costs assessor was biased in his assessment or as to any basis for any such apprehension. This is particularly so when it can be noted that the costs assessor approached his task with particular attention to his obligations under UCPR 708, to correct errors in the costs statement and where he proceeded to disallow items, or part of them, on bases which were not the subject of specific objection and therefore went beyond the objections raised by the plaintiff in his notices of objection.

54. [54]
    Otherwise, the complaint of the plaintiff is that in both assessments, he was denied an opportunity to respond to the defendants’ response to his notice of objection. There is some more substance to this complaint, which particularly focuses on the plaintiff’s email of 13 August 2014 and the response by the costs assessor on 14  August 2014.^[39]

55. [55]
    The starting point is UCPR 720, which provides:

“720Procedure on assessment

3. (1)
   A costs assessor appointed to carry out a costs assessment is to decide the procedure to be followed on the assessment.

3. (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

3. (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.

3. (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.”^[40]

56. [56]
    It can be noted that UCPR 720(1) places the responsibility of deciding the procedure to be adopted in a particular costs assessment, on the costs assessor. Sub rule (4) specifically contemplates a hearing on the papers, without an oral hearing and that the costs assessor may be informed of the facts in any way considered appropriate. However, no particular preference is expressed for this or any other procedure and the procedure adopted will necessarily be determined by having regard to the particular circumstances of any given case and particularly by the nature of the issues to be determined.

57. [57]
    However, the content of UCPR 720 makes it clear that whatever procedure is adopted, the ordinary rule or principle of natural justice or procedural fairness, relating to the provision of a fair hearing, in the conduct of a costs assessment, is engaged. That general principle was described in the following terms by Mason J in Kioa v West:^[41]

“It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it…”

Later in the same judgement, the importance of the statutory provisions which provide for the decision that is to be made, was noted as follows:

“Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd. v. Federal Commissioner of Taxation,^[42] Kitto J. pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting…”^[43]

58. [58]
    Accordingly, it may be seen that the principle is concerned with the provision of a fair or reasonable opportunity to be heard. Clearly, UCPR 720 contemplates that the actual procedure to be adopted, even as to providing such opportunity and in achieving efficiency as well as fairness, will be determined according to the particular circumstances and exigencies of individual cases. But the complaint here is not expressed in respect of the denial of any oral hearing but rather as to a denial of an opportunity to make a submission, even in writing, and specifically in response to the documents prepared by the defendants in response to the plaintiff’s notices of objection.

59. [59]
    The first thing to note in this regard, is that unlike the defendants’ costs statements and the plaintiff’s notices of objection, each of which are specifically and respectively required by UCPR 705 and 706, there is no specific requirement for, or even allowance of, the defendants’ responses to the notices of objection. Those documents in both content and effect must necessarily be regarded as the defendants’ written submissions on the costs assessment. By way of contrast, the most appropriate analogy is that the costs statements and notices of objection are more in the nature of, or like, pleadings and in the definition of the issues to be determined.

60. [60]
    The next thing to note is that it was for the costs assessor to decide the procedure to be followed, which would include how the parties would be heard, including whether and how that would be done and therefore whether that would be by written submission. Accordingly and although it may have been done somewhat presumptuously by the defendants assuming a right to do so and simply forwarding their written submission in response to each notice of objection and when the cost assessor had simply requested copies of the costs statements and notices of objection, as he was entitled to do, the cost assessor accepted the defendants’ documents, as he noted by email to the parties on 12 August 2014. But doing that clearly engaged the principle as to providing a fair opportunity for the plaintiff to be heard and therefore the prospect of allowing him to also make a submission in support of the issues raised in the notice of objection and particularly as to the submissions made by the defendants in respect of those objections.

61. [61]
    Whilst it may be noted that by UCPR 706(3), the reasons for objection in a notice of objection “must be understandable without further explanation”, it need not necessarily follow that the issues raised by any such objection may not be appropriately amenable to elaboration by way of submission, particularly in response to any submission that may be allowed from the claimant for costs and in response to the objection.

62. [62]
    Unfortunately, it must also be concluded that this issue was not either satisfactorily raised with or dealt with by the cost assessor. The plaintiff did not raise any particular objection to the procedure that was adopted, by way of the cost assessor accepting the defendants’ responses to the notices of objection or even after the cost assessor’s response, on 14 August 2014, to the plaintiff’s email of 13 August 2014. It was also unfortunate that the cost assessor’s response became focused on the language used by the plaintiff in his request and therefore failed to appreciate that in reality, the plaintiff was requesting a further decision pursuant to UCPR 720(1), as to the procedure to be followed on the costs assessments and an indication as to how he might be further heard on the costs assessments.

63. [63]
    Notwithstanding that this was not an instance where the costs assessor, who was not an assessing registrar, was empowered, by any order pursuant to UCPR 715, with any of the powers of an assessing registrar under UCPR 714 (such as under UCPR 714(f) “to give directions about the conduct of the assessment process”), it was necessarily incumbent on the cost assessor to decide the procedure to be adopted. He purported to do that in his email of 12 August 2014 and that indication was appropriately qualified “[a]t this stage”. However the costs assessor also indicated that he had accepted the defendants’ responses to the notices of objection and that preceded what must be taken to be the plaintiff’s request to be allowed to make a submission. In the circumstances, it should, at least, be concluded that it would have been preferable that the plaintiff had been given an opportunity to make a written submission, before the costs assessment was completed and in response to the submissions made by the defendant. That should be concluded irrespective as to whether or not it may have been open to the cost assessor to conclude that there was unlikely to have been anything that the plaintiff could usefully add to his notices of objection and so as to further assist the costs assessment.

64. [64]
    However and as to whether there has been such a departure from the rules of natural justice or procedural fairness, as to amount to a failure to provide a fair opportunity to the plaintiff to be heard on the costs assessment and more particularly, such as to warrant an exercise of any power available to this court under UCPR 742(6), there are further and different considerations.

65. [65]
    First it must be understood that not only is there the requirement that the objections in a notice of objection, must be understandable without further explanation, but the cost assessor (subject to any obligation picked up under UCPR 708) is limited to resolution of the matters raised in the notice of objection, as to the issues and items in contention. Although and on a review in this court and leaving aside the power to otherwise direct, the position is stated more broadly, in that “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 cost assessor.”^[44]

66. [66]
    Except in one respect and leaving aside the asserted misapprehension that the costs had been assessed on the indemnity basis, the plaintiff has not sought to expand upon the grounds of objection in his notices of objection. That exception relates to the opportunity taken by the plaintiff, in his request made pursuant to UCPR 738 for the written reasons for the assessment in matter D5/13 and where in departure from anything raised in the notice of objection, he sought reasons for:

“(e) The decision as to why the fee charged for the senior partner was charged for attendance at the two hearings, when he was not there, and was represented by Mr Newell, a junior member of the firm”.

Notwithstanding that this was a departure from the notice of objection, the costs assessor dealt with it in his reasons, in the following and obviously appropriate way:

“Item 396 – The objections did not raise the particular objection referred to in the Request for Reasons of 30 November 2014 paragraph (e).  In any event a claim has only been made for a solicitor to attend the hearing which has been apportioned between both actions which claim has been made on a standard basis pursuant to the scale, the claim is allowed.”

This issue was not further pursued on the application for review in this court. 

67. [67]
    Further and as I have already noted and apart from the material relating to the misconception as to the cost assessor’s inquiry in respect of settlement offers^[45] the materials presented on these reviews were only directed at reiteration of the points raised in the plaintiff’s notices of objection.  Whilst as might be expected, there was an attempt made to elaborate upon these points, including by more extensive references to source materials, such as solicitor’s conduct rules, none of that assisted to substantially advance any of these arguments, particularly given the fundamental difficulties posed by the effect of the costs orders which had led to the assessments. 

68. [68]
    Moreover, there was nothing put forward which sought to engage with, let alone challenge or refute anything contained in the defendants’ responses to the notices of objection. In any event, it may be noted that these responses were largely concerned with pointing out the provisions under the rules and other considerations which demonstrated a number of the difficulties with the plaintiff’s objections and these have been recognised and discussed above, in these reasons.

69. [69]
    Accordingly, the Court is now in a position to assess whether the plaintiff was in reality denied any fair or reasonable opportunity to make a submission to the cost assessor or and more importantly, whether there remains any basis for this court to exercise any power under UCPR 742(6).

70. [70]
    In the circumstances and where the plaintiff has now had a full opportunity to ventilate his concerns about these bills of costs and the assessment made of each of them, it should be concluded that there remains no concern of any substance as to there being any demonstrated error on the part of the cost assessor.

71. [71]
    Accordingly and in each of the matters D4/13 and D5/13, the application for review is dismissed.