Application for removal of Costs Assessor- Aprehended bias

Davies & Anor v Noosa Cat (Australia) Pty Ltd & Ors [2014] QSC 153

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - GENERL RULES - where the applicants applied to have an order of the registrar to appoint a cost assessor varied to replace the cost assessor on the basis of apprehended bias

The applicants sought orders for the removal of a costs assessor Mr. Ryan, appointed by the registrar of the Supreme Court on 7 January 2014 on the grounds of apprehended bias. The application was made pursuant to r 366(2), r 367(1), r 668 and r 713(2) of the Uniform Civil Procedure Rules (UCPR) or the inherent jurisdiction of the Court.

It was contended by the Applicant that there was apprehended between Mr Ryan and Mr Moffatt, the solicitor who prepared the Notice of Objections as they share office facilities, Mr Moffatt uses a style for objections to Costs Statements which is similar to that used by Mr Ryan and as Mr Moffatt only has an employee’s practising certificate Mr. Moffat must be employed by Mr Ryan. The Applicant’s also expressed concern regarding Mr. Ryan’s refusal to stay the assessment pending the outcome of any proposed application upon which Mr. Ryan continued to complete the assessment and issue the Certificate of Assessment. In response to the request to desist from the costs assessment Mr. Ryan replied that “I am appointed to do the assessment and I will continue unless the Court otherwise directs or orders.”

Essentially his honour considered whether “a costs assessor who has been validly appointed and who has proceeded to file his costs certificate be replaced”. His Honour considered the basis of the Application and that there was a denial of natural justice when Mr. Ryan continued with his assessment when asked to desist. In response Mr. Ryan stated that “I am appointed to do the assessment and I will continue unless the Court otherwise directs or orders”

When determining that the Court has powered, but declining the grant the Application His Honour considered the evidence tendered. His Honour determined that Mr. Moffatt was a self-employed Solicitor and only involved in the preparation of Costs Statements and Notices of Objections. It was established that as Mr Moffat was only involved in the preparation of Costs Statements and Notices of Objection he actually was not required to hold a practicing certificate as he was not involved in legal practice as defined and confirmed by the Queensland Law Society. His Honour also found that even if documents are in a similar form this does not pre-dispose any form of apprehended bias. Finally His Honour also considered Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 where it was held that “The bare assertion that a judge (or juror) has an "interest" in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed”.