District Court New South Wales

• Medium Neutral Citation: Chilvers v Snowdon [2012] NSWDC 64
• Hearing dates: 16 April 2012 and 23 April 2012 (written submissions)
• Decision date: 24 April 2012
• Jurisdiction: Civil
• Before: Gibson DCJ

Decision

(1) The plaintiff's application for extension of time to lodge his appeal pursuant to r 51.10(2) UCPR in proceedings number 343903 of 2011 is dismissed.

(2) The plaintiff's summons in proceedings number 343903 of 2011 is dismissed.

(3) The plaintiff is to pay the defendant's costs of the summons in proceedings number 343903 of 2011 on a party/party basis.

(4) The defendant's application for costs on an indemnity basis is refused.

(5) Stay of proceedings number 20636 of 2011 (Snowdon v Chilvers and Chilvers) continued until further order.

(6) Costs of the stay of proceedings number 20636 of 2011 reserved.

• Catchwords: LEGAL PRACTITIONERS - Costs Assessment - application for extension of time to appeal from default assessment - six-month delay by plaintiff in responding to assessment, default judgment and bankruptcy notice - whether strict application of the time limitation will or may occasion injustice - merits of grounds of appeal - availability of s 381 Legal Profession Act procedure for costs the defendant agreed were wrongly claimed - lack of merit of grounds of appeal - claim of prejudice by defendant - application for extension of time refused
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 56; Legal Profession Act 2004 (NSW), ss 368, 369, 381, 384 and 385; Motor Accidents Compensation Act 1999 (NSW); Uniform Civil Procedure Rules 2005 (NSW), r 51.10(2)
• Cases Cited: Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35; Anthony v Chris Savage Pty Ltd [2003] NSWSC 698; Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304; Challen v O'Halloran [2008] WASC 169; D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191; DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 653; Dunn v McCarthy QC [2007] NSWSC 1336; Gallo v Dawson (1990) 93 ALR 479; Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56; Kehoe v Williams [2008] FMCA 1371; Kehoe v Williams [2008] NSWSC 807; O'Brien v Doherty [2008] NSWSC 205; Reynolds v Whittens [2002] NSWSC 155; (2002) 57 NSWLR 271; Snowdon v Chilvers [2009] NSWDC 265; Tomko v Palasty (No 2) (2007) 71 NSWLR 61; Wentworth v Rogers (2006) 66 NSWLR 474; Wynn v Blueprint Instant Printing Pty Ltd (No 2) [2011] FCA 723
• Texts Cited: G E Dal Pont, Law of Costs (2nd ed, LexisNexis Butterworths, 2009)
• Category: Principal judgment
• Parties: Plaintiff: Terence Chilvers (aka Chilverton); Defendant: Leonie Snowdon
• Representation: Plaintiff: Mr N Allan; Defendant: Mr W Ward; Plaintiff: Ziman & Ziman Solicitors; Defendant: Gajic & Co, Solicitors
• File Number(s): 2011/343903; 2011/206364
• Publication restriction: None

Judgment

1 By further amended summons filed on 20 February 2012, the plaintiff, Terence Chilvers, seeks orders for extension of time to lodge an appeal and to set aside a costs assessment certificate issued under s 368 Legal Profession Act 2004 (NSW) by costs assessor Mr John L Sharpe, on 13 April 2011, in costs assessment proceedings number 2994 of 2011. This is the principal application before me, in proceedings 2011/343903.

2 In addition, Mr Chilvers seeks the setting aside of judgment for $183,988.98 in proceedings number 20636 of 2011, which judgment is already the subject of a stay pursuant to orders granted by Truss DCJ on 17 November 2011.

3 The certificate of assessment obtained by Ms Snowdon, the defendant, related to party/party costs assessed by the defendant's solicitor following a three day hearing in this court before Hungerford ADCJ: Snowdon v Chilvers [2009] NSWDC 265. Ms Snowdon obtained judgment against Mr Chilvers and another party for $271,437.08.

4 The affidavits relied upon by the parties were as follows:

(a) Affidavit of Terence Chilvers, 8 November 2011;

(b) Affidavit of Derek Ziman, 30 November 2011;

(c) Affidavit of Mariana Sandoval, 8 December 2011;

(d) Affidavit of Derek Ziman, 9 December 2011; and

(e) Affidavit of Terence Chilvers, 21 March 2012.

5 As the narrative at the commencement of the costs bill (Exhibit A, tab 5B) makes clear, the claim in Snowdon v Chilvers involved a loan made on oral terms. There was a conflict between the parties as to every aspect of the transaction, with very little documentary evidence. Senior counsel was retained at an early stage in the proceedings, on the advice of junior counsel, for this reason. The proceedings were listed for hearing on 18 August 2009 and, after a three day trial, Hungerford ADCJ gave judgment on 9 October 2009, finding against Mr Chilvers and his co-defendant. A subsequent appeal was withdrawn; no costs relating to that appeal are included in the bill of costs. The judgment debt was paid.

6 On 25 November 2009 an informal assessment of costs and disbursements was provided to Mr Chilvers' solicitors. On 7 December 2009, a request was made for a bill of costs for assessment and Ms Snowdon's bill was prepared on a time-costed basis during 2010.

7 During the course of the litigation, Mr Chilvers and his co-defendant, in the proceedings commenced by Ms Snowdon, jointly instructed four different firms of solicitors. The first firm acted until 23 June 2008; the second firm acted from that date until 29 April 2009; the third firm of solicitors (Mr Black's firm) acted until December 2009, and Ziman & Ziman, the solicitors Mr Chilvers retains in these proceedings, filed a notice of appearance to obtain the proceedings information in February 2011. At all times up to the end of the hearing in 2009, Mr Chilvers retained Mr Ellicott of counsel.

8 The total profit costs for Ms Snowdon's solicitors is set out in the bill which bears the cover date 5 August 2010. Those costs are $35,004 plus GST ($3,500.42). The total of disbursements was $129,521.83 including GST ($12,718.56). This was largely for senior and junior counsel's fees. The full total is $180,744,81. Ms Snowdon's bill of costs has, therefore, been in the Mr Chilvers' possession for about 18 months.

9 I pause to note that the second ground of appeal relates to the circumstances in which, although $180,744.81 was claimed, the assessor in fact awarded $180,978.41, a discrepancy that is obvious on its face. The plaintiff to this costs appeal, Mr Chilvers, claims the indemnity principle precludes Ms Snowdon from recovering more costs than she is liable to pay (Wentworth v Rogers (2006) 66 NSWLR 474 at 503-504). Orders are sought setting the whole bill of costs aside, on the basis that, for the assessor to award a greater amount means that the assessor has misapplied the indemnity principle (Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 at [43]). It is submitted that it is unclear how the assessor reached the greater figure, and that this "opacity" (plaintiff's written submissions, paragraph 29) is itself a significant error of law.

10 There is no error by the assessor. The reason for the difference between the sum claimed and the sum assessed is that Ms Snowdon's solicitors made two errors in the GST component for profit costs and disbursements total. The costs assessor has simply corrected this error.

11 I will briefly explain the two errors involved. The correct GST must be calculated by multiplying $164,525.83 (representing the addition of the two non-GST components, $35,004 and $129,521.83 respectively) by 0.1 (representing 10%), and adding $164,525.83, resulting in the total of $180,978.41. A comparison with the figures set out at the bottom of the bill shows that the solicitors for Ms Snowdon made an error in the calculation of the GST component for profit cost total and disbursements. 10% of $129,521.83 is not $12,718.56. There appears an additional error (in the order of 2 cents) in that 10% of $35,004 becomes $3,500.42. Adding these wrongly calculated GST sums ($3,500.42 and $12,718.56) to $164,525.83 gives a total of $180,744.81, which equals the "Grand Total Including GST" as shown at the bottom of the bill. These errors, not a breach of the indemnity principle, are the reason for the $233.60 discrepancy.

12 Mr Chilvers also seeks to set aside the whole bill (affidavit, 8 November, paragraph 3) because his second solicitor, Mr Black, ceased acting for him in April 2009. He retained another firm, Hazan Hollander, to conduct the final hearing and paid Mr Black's costs. Mr Black nevertheless purported to exercise a lien over the file in connection with fees in other, unrelated, matters he had conducted for Mr Chilvers. Mr Chilvers had Mr Black's costs assessment reviewed. The review panel determined that Mr Black was overpaid. This appears to have occurred some time in 2010. Mr Black appealed against the review panel's decision but, on 8 April 2011, that appeal was dismissed with costs. Mr Chilvers complains that because this file was not available to him, he could not have the costs properly assessed.

13 This dispute about Mr Black's file had concluded prior to the assessment of costs in these proceedings (although Mr Black's appeal was still on foot). This is of relevance because although Mr Chilvers claims he could not have brought his appeal earlier because he was unable to obtain Mr Black's file, he had still been able to have Mr Black's solicitor/client bill assessed without needing these documents. As us set out below, the solicitors for Mr Chilvers wrote to Mr Sharpe to tell him about the assessment of Mr Black's solicitor/client bill, in part because Mr Sharpe also played a role in that assessment.

The costs assessor's reasons

14 The application for assessment was made on 5 January 2011 and the matter was referred to the assessor, Mr Sharpe, on 25 January 2011. The costs assessment notes that the costs applicant, Ms Snowdon, provided an outline of the litigation and a bill of costs containing 626 items in respect of legal services provided, together with an additional 150 items in respect of disbursements. The bill was drawn up on a time-costed basis.

15 On 28 January 2011, the assessor wrote to the parties seeking submissions, objections or material to assist in the determination of costs in this matter. The assessor wrote again on 17 February 2011 saying that he would assess costs without any further notice to the parties unless he received the information immediately. On 18 February 2011, Ziman & Ziman, the solicitors for Mr Chilvers, wrote asking for an extension of time within which to provide any objections or submissions in relation to the costs applicant's application for assessment. An extension until 8 April 2011 was granted. It was in this letter that Ziman & Ziman pointed out to Mr Sharpe that he had also assessed costs claimed against their client Mr Chilvers by Mr Black, and that this matter had been determined in their client's favour before the review panel. They also advised that Mr Chilvers was currently commencing proceedings in the Local Court for repayment, but this was the subject of a stay, because Mr Black had appealed the review panel's decision. Ziman & Ziman went on to say:

"We were awaiting Mr Black's evidence which was ordered some time ago but which was delayed because he subpoenaed documents from the members of the Review Panel and, having received those documents, he recently indicated that he may not have launched his appeal if he had them. Pending his deciding on his appeal we did not respond to your letter. We have always needed his file and papers relating to this matter which he has refused to make available to us. If he had abandoned his appeal there would have been no reason to hold his papers. Hence the delay."

16 The letter concludes by noting that Ziman & Ziman intended to instruct a "specialist firm of costs consultants" to review the bill and prepare objections, as well as to press for Mr Black's file to be made available either to them or to these consultants. It was on this basis that the extension was sought. Significantly, there was no suggestion made that, without Mr Black's file, it would not be possible to attend to the assessment, nor was any assistance sought from Mr Sharpe in obtaining it.

17 Mr Sharpe wrote again to both parties noting he was awaiting submissions from the costs applicant, Ms Snowdon. Her solicitors replied (1 March 2011) advising that they were unsure what further documents would be required until Ziman & Ziman responded to the bill of costs.

18 On 14 March 2011, Ms Snowdon's solicitors provided additional documents and materials in response to the assessor's request, including the reasons for judgment. Mr Chilvers and his solicitors, however, failed to provide any of the documents sought by the assessor, or to ask for another adjournment, or even to reply. The assessor proceeded to determine the costs issues solely upon the material provided by the costs applicant. Mr Sharpe notes at [10]:

"Given the fact that the Costs Respondent has made no objections to the Costs Applicant's bill, it has been incumbent upon me to carefully analyse each of the items claimed by the Costs Applicant."

19 The costs assessor's determination, containing the correct GST calculation, was issued on 13 April 2011 and sent to the parties on 21 April 2011. Mr Chilvers states that he received notice of this on 26 April 2011. I note that no point was taken as to which of these three dates the 28-day period should run from. In O'Brien v Doherty [2008] NSWSC 205, Brereton J considered that the material date was the date that the costs assessor issued the certificate (at [3]). In Kehoe v Williams [2008] NSWSC 807 (at [7]), Harrison AsJ similarly stated that the date of the decision of the costs assessor was the date upon which the certificate was "issued". In neither case was it suggested that the date that the costs assessment was "sent" or "received" was the relevant date. (I note a similar problem in relation to certificates "issued" under the Motor Accidents Compensation Act 1999 (NSW): see the cases discussed in Agyeman-Badu v The Nominal Defendant [2012] NSWDC 35.) The summons in these proceedings was not filed until 28 October 2011, six months and two weeks after the date of issue. Even if the plaintiff was unsure of all the grounds, it would have been open to him to file a summons and add further grounds as these were discovered. The summons he eventually filed was in fact amended twice, on 17 November 2011 and on 20 February 2012, in this fashion.

20 It is conceded that the trigger for Mr Chilvers eventually filing his appeal was that in the intervening period, Ms Snowdon had obtained the costs certificate, commenced proceedings by way of default judgment, obtained default judgment and, on 23 September 2011, instructed her solicitors to issue a bankruptcy notice. That bankruptcy notice was served on Mr Chilvers on 10 October 2011. This was also the case in Kehoe v Williams [2008] NSWSC 807 (see also Kehoe v Williams [2008] FMCA 1371).

21 The first issue for determination is whether an extension under r 51.10(2) Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") should be granted.

Extension of time to lodge the appeal

22 Rule 51.10 UCPR states:

"51.10 Filing and service of summons seeking leave to appeal

(1) A summons seeking leave to appeal must be filed and served on each necessary party:

(a) if a notice of intention to appeal has been filed and served under this Part-within the time allowed under rule 51.9, or

(b) in any other case-within 28 days after the material date.

Note: A person who files and serves a summons seeking leave to appeal must also file or lodge a copy of the summons with the court below-see rule 51.42.

(2) The Court may extend time under subrule (1) (b) at any time.

Note: Rule 51.9 provides for the extension of time for the filing and service of a relevant originating process where a notice of intention to appeal has been filed and served under this Part.

(3) An application under subrule (2) may be included in the summons seeking leave to appeal.

(4) A summons seeking leave to appeal must state whether the appellant has filed and served a notice of intention to seek leave to appeal, and the date the notice was served on the prospective respondent or on the last of the prospective respondents."

23 The fundamental consideration is whether the strict application of the time limitation will or may occasion in justice: Anthony v Chris Savage Pty Ltd [2003] NSWSC 698; DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 653; O'Brien v Doherty [2008] NSWSC 205.

24 In Kehoe v Williams, Harrison AsJ noted and applied the principles relevant to an application for leave to bring an appeal out of time as explained by McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:

"The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194; 70 ALR 185 When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201."

25 McHugh J went on to note at 481:

"A case would need to be exceptional before a court would enlarge by many months the time for lodging an appeal simply because the applicant had refrained from appealing until he or she had researched the issues involved."

26 In Kehoe v Williams, as is the case here, the explanation proffered was that the applicant had refrained from appealing because of problems in obtaining information about the issues involved. In O'Brien v Doherty and Kehoe v Williams, a similar history of failure by the costs respondent to supply any material, despite being given extensions to do so, may be observed. In both cases, what appears to have prompted the summons for appeal being lodged was the issuing of a bankruptcy notice: O'Brien v Doherty at [8]; Kehoe v Williams at [17]. The same has occurred here.

27 In O'Brien v Doherty, the plaintiff was guilty of "gross procedural faults" (at [20]) and provided an explanation for delay which was "not impressive" (at [10]). The delay in O'Brien v Doherty was the failure to commence proceedings within 28 days of the material date (16 July 2007), in that the summons was not filed until 5 February 2008. This is a delay of about seven months. However, Brereton J was satisfied that there were "multitude grounds" (at [20]) to demonstrate that the plaintiff had good prospects of establishing either that he was not liable for the costs at all or that if he was, that liability was very significantly reduced. It was the prima facie strength of his case which persuaded Brereton J to grant leave despite the length of the delay. In addition, there was no claim of prejudice, either actual or implied, in that there is no reference to any such claim being made.

28 In Kehoe v Williams, the delay was from the date of the issuing of the certificate of assessment (15 August 2007) to 28 March 2008, a delay of seven and a half months. The sum involved was small, and there was evidence of prejudice, as costs had been incurred commencing bankruptcy proceedings; leave was therefore refused.

29 In these proceedings there is a delay of six months and two weeks, a comparable period. Counsel for the plaintiff submitted that when considering issues of delay, the delay in question should run only from the expiry of the limitation period of 28 days. That was not how this issue was approached in O'Brien v Doherty or Kehoe v Williams. The delay is question is an additional five months and two weeks to the one month period permitted by statute under r 51.10.

30 Mr Allan submits that the following are matters which the court will take into account when considering an application for leave to appeal out of time under r 51.10:

(a) The extent of the delay;

(b) The merits of the case;

(c) Whether there would be a real case of injustice to the plaintiff if his application was not granted;

(d) The importance of keeping officials within the law when they have been entrusted with the duty to determine a costs assessment under the Legal Profession Act 2004 (NSW);

(e) Whether there is any demonstrated prejudice arising from the delay;

(f) Whether the delay is completely attributable to the client (the plaintiff) or due to other persons, such as his solicitor; and

(g) When considering the explanation for delay, it is not necessary to look for a perfect or even persuasive explanation, but for a reasonable one: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] per Hodgson JA.

31 Mr Ward submitted that when the court determines whether it is in the interest of justice to grant the extension, this will depend on an acceptable or satisfactory explanation as to why the time limits were not complied with, and whether the party seeking the indulgence has an arguable case. Where a person has a reasonable explanation of delay, and there is no countervailing claim of prejudice, a fairly arguable case may be sufficient, but if the explanation for delay is less than satisfactory, and there is substantial prejudice (as is asserted to be the case here), then the person seeking the indulgence should show that the case has more substantial merit than merely being fairly arguable: O'Brien v Doherty [2008] NSWSC 205 at [3].

32 While I consider Mr Ward's approach is the correct one, I shall deal with each of the matters considered relevant by Mr Allan.

(a) The extent of delay

33 A delay of six months is a lengthy delay. In Dunn v McCarthy QC [2007] NSWSC 1336, an application filed six days out of time was rejected because the delay was unexplained. In that case the sum claimed was $103,400 plus interest, but the size of this sum claimed did not discourage Harrison AJ from making the orders.

34 The delay is comparable both to the delay in Kehoe v Williams (where the bankruptcy proceedings was the trigger for the appeal) and O'Brien v Doherty (where the procedural default was called "gross" (at [10] and [12])). It was only because of the prima facie strength of the appeal that the "gross" procedural default was excused in O'Brien v Doherty (at [20]).

35 The procedural history after the summons is filed may also be of relevance. The summons filed on 28 October referred only to the wrong inclusion of costs (i.e. the first ground of appeal). On 17 November 2011 the plaintiff sought leave to file an amended summons in accordance with the draft handed up in court; the defendant's representative, who complained he was "only just provided a copy", did not consent.

36 The hearing date of 16 April 2012 was fixed on 12 December 2011 by Rolfe DCJ, who also ordered the plaintiff to pay $90,000 into court by January 12 (although it is not clear if this relates to one, the other or both the proceedings), and to serve its further proposed amended summons by 31 January 2012. Mr Chilvers complied with the payment order, but it was not until 20 February 2012 that the further amended summons now relied upon was filed. Where the legislature has provided for a limitation period, further delay of this kind is unacceptable.

37 The period of delay in these proceedings is substantial, and a significant factor militating against the grant of leave. However, the importance of the explanation for the delay, and the merits of the case, in my view far outweigh the length of the time period when considering an application of this nature.

(b) The merits of the case

38 The parties treated the hearing before me as an application for leave and a hearing on the merits. This portion of my judgment consists of my findings on the merits of the appeal, as well as forming part of my reasons concerning the application for leave to appeal.

39 The grounds of appeal set out in the summons are either hopeless or (in relation to Ground 1) involve items claimed in error which both parties agree may be capable of correction under s 381 Legal Profession Act 2004 (NSW).

40 I summarise the grounds, and the reasons for my findings, by reference to their description in the plaintiff's written submissions (where they are listed as Grounds 1 - 5), as well as to the alphabetical numbers in the summons.

(a) Ground 1: Costs claimed contrary to costs orders (Grounds 8(b) and 8(c) of the Summons) - Ms Sandoval concedes that costs relating to 30 July 2009 (Ground 8(b)), 15 February 2008 (Ground 8(c)(i)), 6 March to 27 June 2008 (Ground 8(c)(ii)), and 28 August 2008 (Ground 8(c)(iii)) should not have been claimed. The figure given for these by Ms Sandoval is $5,431.78. The figure asserted by Mr Chilvers in his affidavit is more than four times this sum. Nevertheless, if the costs assessor determines these issues pursuant to s 381, the costs not conceded by Ms Sandoval could be the subject of review by him.

The way in which s 381 operates is explained by G E Dal Pont, supra, at [18.39], noting that "the jurisdiction in question is not extinguished by the effluxion of time, or even by the fact that the court may have affirmed the relevant assessment by dismissing an appeal under s 384 (see [18.74] or refused leave to appeal under s 385 (see [18.74]): Reynolds v Whittens [2002] NSWSC 155; (2002) 57 NSWLR 271 at [72] per O'Keefe J."

Although, given O'Keefe J's comments in Reynolds v Whittens, the consent of Ms Snowdon is not a pre-requisite, in that the dismissal of the appeal does not prejudice any application under s 381, I note Mr Ward's concession that his client is prepared to agree to this course, and also agrees to a stay of execution of the judgment pending resolution of these issues. These are important concessions, and have played a part in my exercise of discretion. Section 381 was enacted in order to encourage parties to find alternatives to appeal where obvious errors have been made.

(b) Ground 2: Disregard of the indemnity principle (Ground 8(ca)) - This ground is completely misconceived. As is set out at [8]-[11] above, the sum of $233.60 is an error in the GST calculation made by the solicitors for Ms Snowdon which has been corrected by the costs assessor, not a disregard of the indemnity principle.

(c) Ground 3: The claim in the judgment of costs of obtaining the certificate (Ground (d)) - This ground has nothing to do with any error of law in the assessment. The plaintiff relies upon White J in Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56 at [13]. However, White J was considering an application to set aside judgment based on legal costs, not an appeal in relation to legal costs. Mr Chilvers may be entitled to raise this argument in relation to the default judgment, which is currently the subject of a stay for other reasons (file 2011/206364). If what is asserted is that s 369 should not permit the costs assessor to determine who should pay his costs of the assessment, then this should be clearly identified in the appeal grounds. This ground of appeal must fail.

(d) Ground 4: Misdirection as to what "costs" means (Ground (e)) - The plaintiff relies upon D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191 to assert that the fees of a legal secretary (estimated by Mr Chilvers to be $3,907.20) and a paralegal ($886,60) are not claimable. In addition, although not referred to in the notice of appeal, it is asserted that the costs consultant's fees of preparing the itemised bill are not claimable.The changes to work methods and to the legislation governing legal costs in the 18 years since D'Alessandro was handed down mean that this decision should be construed in the light of subsequent authority, such as Challen v O'Halloran [2008] WASC 169 at [22] - 24], which confirms that the work may be charged for if it is done under supervision. The bill of costs states (at paragraph 7) that in the early stages of the matter work was carried out by paralegals or secretarial staff on direct instructions from counsel, such as issuing subpoenae, drafting an offer of compromise, putting a brief together, arranging for appearances in court are matters of skill. The assertion that such items cannot be charged for at all (other than in the "overheads" loading) would be a novel claim even in Western Australia, and is still more so in New South Wales, where D'Alessandro has never been referred to or followed. This ground of appeal must fail.

(e) Ground 5: Procedural unfairness (Ground (f)) - According to the further amended summons, the costs assessor "did not allow the plaintiff a reasonable opportunity to make written submissions" in that he did not check that Mr Chilvers' lawyers had in fact received Ms Snowdon's material in support of the application even though the letter from the solicitors for Ms Snowdon said "cc Ziman & Ziman" at the bottom.It was no secret that the solicitors for the costs applicant wrote to the costs assessor on 14 March 2011 "providing documents and materials at [the cost assessor's] request", because this is stated at paragraph 8 of the Assessment sent to Ziman & Ziman on 13 April, 2011 by the costs assessor. If this document had not been received by Ziman & Ziman, then this should have been raised with the costs assessor in April 2011.

Mr Chilvers complains, according to the written submissions of his counsel, that "rather than sit, watch and wait, the costs assessor should have written to the plaintiff's solicitor to ascertain his position" (written submissions paragraph 44), namely to check that he actually received documents which were described as having been "cc" (copied) to his solicitor.

What amounts to procedural unfairness will depend upon the statutory context of the obligations of the arbiter of fact: Wynn v Blueprint Instant Printing Pty Ltd (No 2) [2011] FCA 723 at [59] - [60], [86].

All the correspondence between the parties contained a "cc", indicating that copies had been sent.To assert that the costs assessor was under some obligation to double-check that these documents had in fact been received, and that the failure to do so amounted to procedural unfairness, is wholly misconceived: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 at [45]-[64].Further, the documents in question consisted of material of an uncontroversial nature, such as the judgment in the proceedings. Counsel for Mr Chilvers was only able to point to two as being significant. The first is a memorandum of fees from junior counsel, which supported the claims made in the itemised account. The second is correspondence from Ms Snowdon's solicitors to D G Thompson, pointing out errors in claiming costs where a costs order had in fact been made against Ms Snowdon, but this was a matter Mr Chilvers should have known about, not least because he was in the course of having his own solicitor-client costs for this period (against his former solicitor, Mr Black) assessed. However, the availability of these documents would not have overcome what Mr Chilvers asserts was his principal reason for not filing a response to Ms Snowdon's bill, namely the refusal of his own solicitor, Mr Black, to hand over Mr Chilvers' file, a problem Mr Chilvers never asked the costs assessor to help him resolve. This ground of appeal accordingly also fails.

41 The only ground of substance in the further amended summons relates to matters that were charged in error. The alternative procedure under s 381 would substantially resolve this issue. All grounds of appeal must fail.

42 I also note that the hopelessness of each of the appeal grounds (except Ground 1, for which there is an alternative procedure available) as an issue of relevance concerning whether an extension of time should be granted.

(c) Whether there would be a real case of injustice to the plaintiff if his application were not granted

43 As I have noted above, apart from the correction of errors under s 381, a number of the grounds of appeal brought by the plaintiff are misconceived, while others are speculative. An important issue, concerning the question of injustice, is that the bulk of the costs assessed are not objectionable. Mr Allan was not prepared to concede more than $105,000 of the costs fell into this category, but in reality, if Ms Sandoval's estimate of wrongly included costs is accepted, most of the costs assessed will be payable. Mr Ward has indicated that his client will consent to a stay of judgment pending the determination of the wrongly charged costs. There would therefore be no real case of injustice to the plaintiff if his application were not granted.

(d) The importance of keeping officials within the law when they have been entrusted with the duty to determine a costs assessment under the Legal Profession Act 2004 (NSW)

44 This is an unattractive submission: G E Dal Pont, Law of Costs (2nd ed, LexisNexis Butterworths, 2009) at [15.32] - [15.34]. Mr Sharpe has powers, under the Legal Profession Act 2004 (NSW), to make appropriate orders to assist the plaintiff, such as requiring the production of documents. He was never asked to exercise those powers. It is unacceptable to require him to double check correspondence between solicitors, especially if it contained the words "cc Ziman & Ziman" to determine if in fact they were received. Ms Sandoval says they were, and given the erratic way Mr Ziman carried out his professional obligations (see (f) below), I accept this evidence.

45 Complaints of this kind are not uncommon (see for example, Kehoe v Williams at [13]; Winn at [86]). However, the impetus for action in costs assessment lies upon the parties, not upon the costs assessor. The plaintiff's solicitors were aware these documents had been sought from the defendant's solicitors and elected not to pursue whether they had been provided, or to complain when they saw the 14 March letter referred to in paragraph 8 of the cost assessor's assessment in April 2011.

(e) Whether there is any demonstrated prejudice arising from the delay

46 Ms Snowdon claims significant prejudice. The opening sentence of Hungerford ADCJ's judgment notes the constrained financial circumstances and personal difficulties of Ms Snowdon. She obtained judgment in October 2009 and since then has pursued her costs as expeditiously as she could. She is entitled to finality. She continues to incur costs in the form of interest on the monies owed to counsel for the hearing. In addition, she has expended legal costs in commencing bankruptcy proceedings (see Kehoe v Williams at [25]).

47 The prejudice to Ms Snowdon of the whole of the bill being remitted to the costs assessor (this being the relief sought by Mr Chilvers) is a factor to take into account in the exercise of discretion.

(f) Whether the delay is completely attributable to the client (the plaintiff) or due to other persons, such as his solicitor's actions

48 Counsel for Mr Chilvers submitted that his instructing solicitor, Mr Ziman, had embarked on a course of action that, in retrospect, was unfortunate. His response to the request for documentation from the assessor was to seek to view the District Court file, as he was unaware that court orders in the District Court are recorded electronically and computer printouts of the orders can be obtained. He thought he had to read the history of the orders made from the handwritten notes on the coversheet of the file. However, having ordered the file, he did not follow this up until May 2011, by which time the appeal period had almost expired.

49 Before the costs assessor made his decision, Mr Ziman wrote to him referring to problems with Mr Black, pointing out that the costs assessor had in fact assessed the Mr Black bill previously; unfortunately, Mr Ziman went on to say that he would retain a firm of costs consultants to prepare responses to the bill. Mr Ziman obtained an extension to give him time to obtain Mr Black's documents, but sought no further extensions. When he received the assessment, he did not contact the costs assessor to complain that he had not received the documents sent by the solicitors for Ms Snowdon on 14 March which the costs assessor referred to in that document. (I again note that Ms Sandoval states she did in fact send these documents to Mr Ziman).

50 While Mr Ziman did make mistakes, and certainly could have been more proactive in helping his client, he came into the matter late. Mr Chilvers had had a detailed knowledge of the court orders in these proceedings from his role as one of the defendants in the proceedings and, in particular, from his activity in seeking an assessment of Mr Black's solicitor-client costs. As Mr Ward pointed out during submissions, Mr Chilvers also could have called for assistance on Mr Ellicott, the counsel he briefed throughout the case. Mr Chilvers cannot blame his solicitor in these circumstances.

51 Blame was also laid at the door of the District Court registry staff who should, Mr Allen submitted, have offered more assistance to Mr Ziman, such as informing him about the court's electronic recordkeeping and how JusticeLink worked. Mr Allan also submitted that the solicitors for Ms Snowdon could have done more to assist his client.

52 It is apparent, however, from Mr Chilvers' affidavit material, and the manner in which he has been able to itemise and review the costs in these proceedings (and against his former solicitor, Mr Black) that he is, or ought to be, fully conversant with the history of these proceedings. Blaming others for his own failure to take action is unwarranted.

(g) When considering the explanation for delay, it is not necessary to look for a perfect explanation, but a reasonable one: Hodgson JA in Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14]

53 I agree with this submission. However, the explanation for Mr Chilvers' failure to participate in the costs assessment, or to ask for further extensions of time, or to take steps after the assessment was completed and enforcement proceedings commenced, is wholly unreasonable. His claim that he could not participate because of a lien over Mr Black's file is unreasonable, since he was able to conduct an assessment of Mr Black's claim for costs against him at the same time as complaining he did not have these documents in order to answer Ms Snowdon, and Mr Black was only one of four solicitors he had retained in these proceedings.

Conclusions concerning application for an extension of time to lodge the appeal and the merits of the appeal

54 The plaintiff has not provided a satisfactory (Kehoe at [26]) or reasonable (Tomko at [14]) explanation for his six-month delay. The plaintiff has not established that there are fairly arguable grounds of appeal (O'Brien v Doherty at [3]). The application for an extension of time is refused.

55 In the event that I have erred in refusing leave, I further note my conclusions set out above that Grounds 1 - 5 should be dismissed. As the legal representatives of the defendant have indicated they will raise with the assessor, pursuant to s 381, the errors conceded to have been made in their bill of costs (Ground 1), I propose to send a copy of this judgment to the assessor for that purpose, but this will be sent as a courtesy only. The parties did not address me on whether any referral order from me was required. Given the frank and very proper admissions by Ms Sandoval in her affidavit as to these errors, the issue seems clear. As already noted, an application under s 381 may be made "at any time after making a determination". It clearly functions in a manner similar to the slip rule, and as a "just, quick and cheap" (s 56 Civil Procedure Act 2005 (NSW)) solution to problems of this kind, should be used where appropriate, in order to avoid the costs of an appeal.

Indemnity costs

56 Costs normally follow the event. Counsel for Ms Snowdon sought an order for indemnity costs on the basis of the delay in bringing this appeal which, when combined with the failure to file any objections to the assessment of costs, was asserted to be egregious.

57 I do not accept Mr Ward's submissions. The errors made by the costs consultants should have been picked up by Ms Snowdon's solicitors before or during the assessment process. In addition, the GST error they made is unacceptable, as is their failure to identify the reason for the discrepancy between the amount claimed and the amount assessed, when the reason for the difference was obvious from a comparison of these two totals.

Proceedings number 206364/2011

58 Mr Ward, in oral submissions, stated that the plaintiff consents to a stay until such time as the costs assessor determines the quantum of costs claimed in error, in accordance with s 381. It may also be advisable to raise, with the costs assessor, the question of who should sue for the costs of the assessment: Infact Consulting Pty Ltd v Kyle House Pty Ltd [2007] NSWSC 56 at [13] per White J. If White J's interpretation of s 369 is correct, the question of who may enforce these costs is a problem both for parties and for the Costs Assessment Manager.

59 I have accordingly continued, until further order, the stay already on foot, and reserved costs.

Orders

(1) The plaintiff's application for extension of time to lodge his appeal pursuant to r 51.10(2) UCPR in proceedings number 343903 of 2011 is dismissed.

(2) The plaintiff's summons in proceedings number 343903 of 2011 is dismissed.

(3) The plaintiff is to pay the defendant's costs of the summons in proceedings number 343903 of 2011 on a party/party basis.

(4) The defendant's application for costs on an indemnity basis is refused.

(5) Stay of proceedings number 20636 of 2011 (Snowdon v Chilvers and Chilvers) continued until further order.

(6) Costs of the stay of proceedings number 20636 of 2011 reserved.

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Decision last updated: 08 May 2012