Courtney v Chalfen (No 2) [2022] QSC 142 [2022] 32 QLR

SUPREME COURT OF QUEENSLAND CITATION: Courtney v Chalfen (No 2) [2022] QSC 142 PARTIES: SIMON CHRISTOPHER COURTNEY (plaintiff) v ELEANOR SOPHIE CHALFEN (defendant) FILE NO: 2178 of 2020 DIVISION: Trial PROCEEDING: Trial ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 1 August 2022 DELIVERED AT: Brisbane HEARING DATE: 19 May 2022 and 26 July 2022 JUDGE: Dalton J ORDER: Refer question back to costs assessor with no directions. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY – COSTS – TAXATION AND OTHER FORMS OF ASSESSMENT – APPEAL REVIEW OR REFERENCE – RELEVANT PRINCIPLES – GENERALLY – where a costs assessor was appointed to assess costs pursuant to a court order – where the costs assessor made directions – where the costs respondent asserted that the directions were not complied with – where the costs assessor invited a request for referral to the court – where the costs respondent requested a referral – where the costs assessor referred a question to the court pursuant to r 717 of the Uniform Civil Procedure Rules 1999 (Qld) – where the question was as to how the costs assessor ought to exercise his discretion – when a court will determine questions posed on referral from a costs assessor Uniform Civil Procedure Rules 1999 (Qld) rr 705, 706, 717, 720, 722 CGA Law Pty Ltd & Anor v Diane Lawyers Pty Ltd & Anor [2022] QSC 92, cited Courtney v Chalfen [2020] QCA 294, cited Courtney v Chalfen [2020] QSC 195, cited Speets Investment Pty Ltd v Bencol Pty Ltd, unreported, Supreme Court of Queensland, 17 September 2021, Boddice J, cited -- 1 of 7 -- 2 COUNSEL: The plaintiff appeared on his own behalf C Doyle for the defendant SOLICITORS: HopgoodGanim Lawyers for the defendant [1] This was the return date of a referral to the Court by a court-appointed costs assessor, Mr Paul Cameron. Rule 717 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides as follows: “717 Issue or question arising (1) A costs assessor appointed to carry out a costs assessment may decline to decide any issue or question arising in relation to the assessment that the costs assessor considers should not be decided by the costs assessor. (2) The costs assessor may refer to the court any issue or question arising in relation to the assessment the costs assessor considers should be decided by the court. (3) The court may do either or both of the following— (a) decide the issue or question referred under subrule (2); (b) refer the issue or question to the costs assessor with or without directions.” [2] Also relevant here is r 720 which provides: “720 Procedure on assessment (1) A costs assessor appointed to carry out a costs assessment is to decide the procedure to be followed on the assessment. (2) However, the procedure must be— (a) appropriate to the scope and nature of the dispute and the amount in dispute; and (b) consistent with the rules of natural justice; and (c) fair and efficient. …” [3] Lastly I refer to r 722: “722 Assessment must be limited If a notice of objection relates only to a particular issue or a particular item, a costs assessor must limit the assessment to the resolution of the matters raised in the notice of objection in relation to the issue or item and otherwise assess the costs under rule 708.” -- 2 of 7 -- 3 Procedural Background [4] In this proceeding the plaintiff sought relief against his ex-wife. He alleged she dealt wrongly with chattels located in the Cayman Islands. It came before Williams J on 24 April 2020. Williams J permanently stayed the proceeding and an appeal against that order failed.1 On 24 July 2020 Williams J made an order that the plaintiff pay the defendant’s costs “of and incidental to the application in the proceeding on the standard basis”.2 Costs Assessment Begins [5] Mr Paul Cameron was appointed by the Registrar to assess costs pursuant to the order of Williams J dated 24 July 2020. The party entitled to costs, the defendant, lodged a costs statement with the costs assessor on 23 September 2021 – r 705 UCPR. The plaintiff lodged a notice of objection to the costs statement on 13 October 2021 – r 706. On 21 December 2021 Mr Cameron made directions including that he would conduct the assessment on the papers and that: “6) The Costs Applicant is invited to provide a Response to the Notice of Objections. The Assessment will not commence until this Response is provided or advice to the contrary. 7) Upon Receipt of the Response to the Notice of Objections the Costs Respondent is invited to provide short submissions as to why a Response should be allowed. (Noting that these Responses rarely privide any relevant information).”3 [6] In response to these directions the defendant prepared a response to the notice of objection and sent it to the costs assessor attached to an email dated 14 January 2022. The email shows on its face that it was copied to the plaintiff. Mr Cameron received the email, but the plaintiff says he did not. Assessor begins Enquiries about Cayman Islands Lawyers [7] On 18 January 2022 Mr Cameron sent an email to both parties saying that he proposed to allow time charged by lawyers in the Cayman Islands at $403 per hour to avoid the necessity to prepare a “Costs Statement on Scale for these Agents fees”. That was not satisfactory to the defendant, and her lawyers emailed a letter dated 21 January to Mr Cameron (copied to the plaintiff) explaining why. The letter traverses ground outside the strict terms of the question asked by Mr Cameron; it gives a lot of information about the fees charged by the lawyers in the Cayman Islands and seeks to recover these fees on a basis different from either of those proposed by Mr Cameron. Having received this letter Mr Cameron asked the plaintiff to provide his response to the “[defendant’s] Submissions regarding the Agents fees” within seven days. That is, he did not ask the plaintiff to respond to his initial “$403 or scale” question. 1 Courtney v Chalfen [2020] QCA 294. 2 I am not sure why the order was worded that way, rather than being an order which dealt with the entire cost of the proceedings, as that is what her Honour’s substantive orders dealt with. Nonetheless, this was not challenged when the issue of costs was raised in the Court of Appeal. 3 All quotations from Mr Cameron’s writings are reproduced as per the original. -- 3 of 7 -- 4 [8] Seven days later the plaintiff emailed a letter, dated 28 January 2022, to Mr Cameron. The letter makes general points about the costs claimed by the defendant, namely that the claim was a simple one of low value brought by a litigant in person and that generally the defendant was claiming a disproportionate amount of fees, including for a QC, and including for numerous lawyers to perform tasks. The letter does address particular issues which the plaintiff has with the Cayman Islands lawyers, namely that their costs are excessive; that they charged for work not performed; that they had a conflict of interest, and that one of the lawyers has acted inappropriately having regard to her involvement in the matrimonial proceedings between the plaintiff and the defendant. The letter does not address the proposal to assess the Cayman Islands lawyers’ fees at $403 per hour, or at scale. [9] The solicitors for the defendant wrote a letter to the costs assessor objecting to all the parts of the plaintiff’s letter of 28 January 2022 up to a heading, “Specific costs claimed by [the Cayman Islands lawyers]”. The plaintiff replied in a short email saying that he thought everything he said in his most recent letter was relevant and urged Mr Cameron not to ignore it. [10] On 1 February 2022 Mr Cameron wrote to both parties. He did not refer to the objection taken to the plaintiff’s letter of 28 January 2022. Instead he expressed the opinion that he thought one of the lawyers in the Cayman Islands could charge for one of her affidavits, but wondered whether she should charge at corporate law rates or family law rates. He requested submissions as to market rates for family lawyers or generalist lawyers in the Cayman Islands or, alternatively, submissions as to why a corporate lawyer was required. [11] On 15 February 2022 the defendant’s lawyers wrote giving the requested information and also making further submissions as to why it was appropriate to use the particular lawyers in the Cayman Islands which the defendant had used. [12] On the same day the plaintiff responded with some very general submissions about the relationship between the defendant and the Cayman Islands lawyers but concluding, “I believe that your default position on scale applied to whatever time is determined to be reasonable reflects the fair position”. Assessor Returns to Assessment [13] The next day, 16 February 2022, Mr Cameron sent an email to the parties saying: “I refer you to this matter and confirm receipt of the additional Submissions and that I will proceed proceed with the Assessment. I will not consider any additional arguments that broaden out the insufficiently particularised Objections. See attached Speets Investment Pty Ltd v Bencol Pty Ltd [2021] QSC (unpublished). (Not a lot of help though).” [14] The case of Speets Investment concerned a costs assessment where, after exchange of the costs statement and notice of objection, the costs assessor directed the parties that he would not accept any further submissions. However, after that the costs assessor did seek additional submissions in relation to two discrete topics. One of the parties delivered submissions which the costs assessor believed not to be responsive to his discrete requests but to contain submissions that ought to have been made in the notice -- 4 of 7 -- 5 of objections. The costs assessor then applied to the Supreme Court asking whether he was required to consider “further submissions that broadens out inadequately pleaded objections in the Notice of Objections”. Boddice J answered the question saying that the matter was one for the costs assessor to consider having regard to the assessor’s obligations as laid out in the UCPR. The case of Speets resembles this case. The costs assessor in Speets was Mr Cameron. [15] The plaintiff replied to Mr Cameron’s letter of 16 February 2022, saying that his notice of objections contained objections which were in effect notice that the costs statement provided insufficient particulars for him to respond and that he had an expectation that he would be allowed to expand on his objections in this respect. He further said that he was “concerned why direction 6 has been abandoned and you have decided to commence the process without regard to directions 6 and 7”, see [5] above. [16] This latter point should have been the first time that the costs assessor and the defendant realised that the plaintiff alleged he had not received the reply submissions sent by email of 14 January 2022. Mr Cameron gives no indication that he realised this. He responded, still on 16 February 2022, that reply submissions had been given by the defendant in accordance with direction 6 and that the plaintiff had never sought leave to file rejoinder submissions and then said, “I will invite a request for a referral under rule 717. However noting Speets any review would not likely not to be entertained.” [17] The next day, 17 February 2022, Mr Cameron wrote to both parties saying: “I refer you to this matter and confirm that I have completed my Assessment. Pursuant to rule 733 please advise of any offers to settle costs. Please note that I have accepted the alternative submissions regarding the Family Division of Practice Direction 1 of 2011 as these are standard costs. My calculation of the reduction is as follows … . Please advise as to whether my calculations/assumptions are in error. If you wish please advise of the historical exchange rate as to the date of the Invoice.” [18] Later, on 17 February 2022, Mr Cameron wrote to the plaintiff and the defendant noting that there were no offers to settle costs and asking for submissions about the costs of the assessment. [19] Solicitors for the defendant replied that they would prepare an itemisation in regard to the costs of the assessment. However, the plaintiff wrote to Mr Cameron saying that “as per your email of 16 February 2022 I am still preparing a request for referral”. Then on 19 February 2022 the plaintiff emailed a request for referral to Mr Cameron. [20] I cannot understand how Mr Cameron could write on 16 February 2022 saying he would invite a request (presumably from the parties) for a referral, and then announce the next day that he had completed the costs assessment. I would also note that r 717 does not contemplate that a costs assessor invites the parties to request a referral. Rule 717 contemplates that the costs assessor has the right to refer a question to the Court. -- 5 of 7 -- 6 [21] Unexplained, there is then a gap of one month in the correspondence. On 14 March 2022 Mr Cameron emailed both the plaintiff and defendant, noting that Mr Courtney requested a referral under r 717 and proposing the terms of a referral to this Court. The email said: “… I also referred to Speets. I will also request for clarification in respect to deficient objections as this is a recurring issue. Suffice to say Costs of the Assessment is stayed pending the resolution of this question.” [22] The defendant’s lawyers sent a three page letter saying that they thought matters other than those proposed by the assessor would be of more assistance to the Court than the matters he proposed to give to the Court, but saying, in the end, it was up to the costs assessor to make the referral and, “our client otherwise reserves her rights in relation to any referral which is made to the Court in due course”. [23] The plaintiff continued corresponding with the costs assessor at some length as to his views about the referral, in the course of which quite lengthy correspondence, on 18 March 2022, the plaintiff repeated what he had communicated in his email of 16 February, namely that he had not received the email from the defendant attaching its reply submissions (14 January 2022). Again Mr Cameron gives no indication that he understands this. A Question is Referred [24] Mr Cameron then wrote a letter to the Supreme Court on 22 March 2022, referring a question pursuant to r 717. The question he asked the Court was, “Whether the Costs Assessor is required to consider the additional submissions provided by the Costs Respondent on 28 January 2022 where the Costs Respondent has (allegedly) not complied with the directions”. He sought the Court’s determination in these terms: “That a Costs Assessor cannot (/not required to) consider additional objections/submissions that further the arguments in the Notice of Objections where any issue of law or fact has not been concisely stated”. [25] The referral only relates to the plaintiff’s submissions of 28 January which were invited as to the Cayman Islands lawyers’ fees, but in fact made submissions which were as to other matters. Thus, in choosing the question to refer to the Court, the costs assessor still apparently has not come to grips with the fact that the plaintiff asserts he never received the reply submissions from the defendant and has never had a chance to seek leave to put in rejoinder submissions. Another thing to note is that the Court would never make answer to a question on referral in general terms, as the costs assessor seeks. The Court will only ever deal with a particular matter before a particular costs assessor. The Hearing [26] Neither party to the costs assessment objected to the costs assessor making a referral under r 717. Both parties to the costs assessment appeared before me on the referral and the costs assessor did not. I have been unable to find any authority on the point, but my view is that if Mr Cameron had asked to be heard on this referral, he was -- 6 of 7 -- 7 entitled to be. He did give some information to the Court in his letter of 22 March 2022, including advocating for a particular answer to the question he referred. He was informed of the hearing date and did not appear. [27] Before me the plaintiff submitted that I should order he be permitted to expand on submissions made in the notice of objection and respond to the defendant’s submissions of 21 January 2022. He also made submissions as to my ordering Mr Cameron to take various things into account during the assessment process. His written submissions were over 100 pages in length. The defendant filed written submissions to the opposite effect. In effect, the parties made submissions about how I should direct the costs assessor to exercise his discretion. Disposition [28] I was not referred to any relevant cases dealing with r 717, and was unable to locate any myself. However, I have recently dealt with the very limited circumstances in which a court will review a costs assessor’s decision.4 I cannot think that the power to determine questions posed on referral from a costs assessor should be any less sparingly used. The terms of r 717 make this clear. Under r 717(1) it is only a question which the costs assessor “considers should not be decided by the costs assessor” which the assessor may decline to decide. Under r 717(2) the only question which may be referred to the Court is one which “the costs assessor considers should be decided by the Court”. A difficult question of law might be such a question.5 [29] Here, the costs assessor asks a question as to how he ought to exercise his discretion. The question is totally unsuitable for referral to the Court. The cases as to when a court will review a costs assessor’s exercises of discretion make it clear that a court will very rarely re-examine matters which are in a costs assessor’s discretion. The Registrar has ordered the costs assessor to perform an assessment. The UCPR sets out the framework for the conduct of the costs assessment, see [2] and [3] above. A difficulty has arisen because the plaintiff says he did not receive the email of 14 January 2022. More difficulties have arisen because the costs assessor, by his email of 21 January 2022, invited the plaintiff to respond to a rather discursive letter, rather than invite submissions as to a discrete issue. It is the costs assessor who must determine what to do about these problems. [30] Pursuant to r 717(3)(b), I refer the question back to the costs assessor with no directions. Informally, it seems to me the costs assessor would benefit from taking a thoughtful, logical and disciplined approach to the material before him and simply getting on with the task which he was ordered to perform. [31] I will hear the parties on the issue of who should pay the costs of this referral. 4 CGA Law Pty Ltd & Anor v Diane Lawyers Pty Ltd & Anor [2022] QSC 92. 5 Cannon Street Pty Ltd v Karedis (2006) 229 ALR 699. -- 7 of 7 --