Fitzpatrick v Nicholl t/as Nicholl & Co & Ors [2007] ACTSC 7 (8 December 2006)

Last Updated: 7 May 2008

RAYMOND ARTHUR FITZPATRICK v JOHN DAVID NICHOLL t/as NICHOLL & CO & ORS [2007] ACTSC 7 (8 December 2006)

EX TEMPORE JUDGMENT

No. SCA 64 of 2003

Judge: Crispin J

Supreme Court of the ACT

Date: 8 December 2006

IN THE SUPREME COURT OF THE )

) No. SCA 64 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RAYMOND ARTHUR FITZPATRICK

Appellant

AND: JOHN DAVID NICHOLL t/as NICHOLL & CO

First Respondent

ALYN DOIG

Second Respondent

DAVID NIMMO

Third Respondent

BOB O'HAIR

Fourth Respondent

TONY KIDNEY

Fifth Respondent

ORDER

Judge: Crispin J

Date: 8 December 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal against a decision of the Master of this Court dismissing an application for an order that a certificate of costs be set aside.

2. The order for costs in this matter was made by me on 1 February 2006 when I dismissed an application for leave to appeal out of time from two earlier judgments of this Court. It appears that the bill of costs was duly prepared by solicitors for the respondent and an appointment was made for the bill to be taxed, or "assessed" to use the term adopted in the new rules. The assessment was set down to occur on 18 October. By letter dated 15 October, the appellant, Mr Fitzpatrick, wrote to the Registrar indicating that he did not consider it appropriate for him to attend the court in relation to the assessment, given the need for him to submit further information to the High Court in support of his application for special leave to appeal against my decision.

3. It appears, not from evidence but from a discussion that has occurred before me this morning, that this letter may not have been received prior to the assessment. It bears a date and time stamp that suggests that it was received some time between 11 am and 12 noon on the 18 of October 2006. I am unaware of the time of the assessment and, of course, even if the assessment occurred later, it may well be that the letter simply did not catch up with the court file in time for it to come to the attention of the Deputy Registrar.

4. In any event, a certification of assessment was duly issued and it appears that prior to that there had been no notice of objection. Mr Fitzpatrick, who appears in person, submits that the certificate of assessment should not have been issued because rule 1835(2) of the Court Procedures Rules 2006 provides that the Registrar must not sign a certificate of assessment until the end of 14 days after the date on which the assessment is made, unless the parties agree. Mr Gillespie-Jones for the respondent rejoined that sub-rule (3) provides that sub-rule (2) does not apply if, inter alia, costs are assessed under rule 1809 which provides for default assessment in the event of no objection having been made.

5. I should indicate that Mr Fitzpatrick has submitted that certain documents should have been taken as a notice of objection and that he had made it clear that he objected to every item in the bill of costs. That is an issue which may need to be considered by the Registrar or the Deputy Registrar if the bill is reconsidered.

6. The proceedings before me, however, concern a more straightforward question, namely, has the Master fallen into an appealable error in making the decision he did? It seems to me that the answer to that is a relatively clear one.

7. The rules now provide what appears to be a clear regulatory scheme. Rule 1852 provides that a party may apply for a reconsideration of the decision of the Registrar by a notice. An obligation is then imposed on the Registrar by rule 1854 to reconsider the decision objected to, having regard to the statement of objection in any reply filed under rule 1853. The Registrar must give reasons for the decision on the reconsideration, and issue a certificate of assessment in accordance with that decision. Rule 1855 provides that a party dissatisfied with the decision of the Registrar on reconsideration pursuant to the rule in 1854, may apply to the court to review that decision. In the present case, it seems to have been assumed that there had been no application for a reconsideration of the decision. However, it is now clear that such an application was made. Regrettably, the relevant notice referred to the Supreme Court number, rather then the Court of Appeal number, and it wound up being stapled to an affidavit placed on the Supreme Court file. It appears, therefore, that the notice did not come to the attention of the Registrar or Deputy Registrar and has not been dealt with. In these circumstances it seems to be abundantly clear that the requested reconsideration never occurred and, consequently, that there was no occasion for an application to the court for a review of any decision upon such a reconsideration.

8. I can see nothing to suggest that the Master fell into any error. Indeed, given the regulatory scheme to which I have referred, it may be doubted whether the Master would have had jurisdiction to embark upon any review of the certificate of costs in the absence of such a reconsideration.

9. That, however, leaves unresolved an outstanding question as to the validity of the notice for reconsideration of the assessment. Mr Gillespie-Jones has submitted that the document is invalid because it has not been, as he put it, "filed in the proceeding". That is because it does not bear the words "In the Court of Appeal" and does bear a file number relating to the Supreme Court matter rather then the Court of Appeal matter. The Court of Appeal is, of course, a division of the Supreme Court rather then a separate court and there is nothing in the rule to suggest that a document that bears errors in such respects should be treated as invalid. It is, I think, clear from the document that the appellant was applying for reconsideration of the Registrar's decision as reflected in the assessment of the bill of cost dated the 18 October 2006. In my view the notice should be accepted as having been validly made.

10. Mr Gillespie-Jones has also raised serious issues as to the utility of such a reconstruction having regard to the apparent absence of any prior notice of objection. I do not discount these submissions. However, there is a history to this matter that I have not been entirely able to wholly reconstruct by reference to the file alone and, in any event, the utility of such a re-consideration is not an issue that is properly raised by the proceedings before me.

11. I am presently unable to see anything that would relieve the Deputy Registrar of the duty imposed by rule 1854 to reconsider the matter and I think it would be inappropriate for me to say anything that may be seen to be indicating some pre-judgment about the matter or, worse, as suggesting to the Deputy Registrar how she should approach the matter. The order that I make is simply that the appeal be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 7 February 2007

Counsel for the plaintiff: Self represented litigant

Counsel for the defendant: Mr I Gillespie-Jones

Solicitor for the defendant: Gillespie-Jones & Co

Date of hearing: 8 December 2006

Date of judgment: 8 December 2006