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Baker v Kearney

Baker v Kearney

Case [2002] NSWSC 746 26 August 2002

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CITATION: Baker & Anor v Kearney [2002] NSWSC 746

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11084 of 2002

HEARING DATE(S): 6 August 2002

JUDGMENT DATE: 26 August 2002

PARTIES :

Alan Howard Baker (First Plaintiff)
Jiwira Pty Limited (Second Plaintiff)
v
James Aloysius Kearney (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 92272 of 2000

LOWER COURT
JUDICIAL OFFICER : David Frank Castle

COUNSEL : Mr J R Young (Plaintiffs)
N/A (Defendant)

SOLICITORS: Leary & Company (Plaintiffs)
W R Ghioni (Defendant)

CATCHWORDS: Appeal from Costs Assessor - should Costs Assessor proceed with assessment of costs where there is no liability to pay those costs - liability to pay barrister's fees and costs agreements.

LEGISLATION CITED: Legal Profession Act 1987 s 38I, s 175, s 184,
s 192, s 195, s 208J(3), s 208L.

CASES CITED: N/A

DECISION: See Paragraph 21.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Monday 26 August 2002

11084 of 2002 Alan Howard Baker & Anor v James Aloysius Kearney
JUDGMENT

1 Master: The defendant is a barrister. He provided legal services for the plaintiffs in and about certain proceedings brought in respect of a claim under an insurance policy. A number of costs agreements were made between the parties. Certain arrangements were made to secure payment of fees. Memorandum of fees were rendered. The arrangements enabled part payment of the fees rendered. The plaintiffs had success in the proceedings and that payment was effected from moneys thereby recovered.

2 The defendant has taken steps to recover the balance of his fees. Firstly, he brought proceedings in the District Court to recover the sum of $59,088. The proceedings were heard by Rolfe DCJ and resulted successfully for the plaintiffs. Secondly, the defendant made an application for assessment of costs. The assessment came before a Costs Assessor (Mr Castle). The Costs Assessor made a determination in an amount of $29,339.52. It was issued on 21 March 2002. He gave detailed written reasons for the determination.

3 The plaintiffs have brought an appeal from that determination pursuant to s 208L of the Legal Profession Act 1987 (the Act). The grounds of the appeal are as follows:-

“1. The Costs Assessor erred in law in that he was precluded from making a practitioner (barrister)/Client costs assessment by reason of the judgment of Judge Rolfe given in the District Court on 4 September 2000 in proceedings 9853 of 1997 between the plaintiffs and the defendant..

2. The costs assessor erred in failing to consider whether the principles of res judicata or issue estoppel precluded him from making a barrister/client costs assessment.

3. The Costs Assessor erred by failing to have regard to the effect of sections 208 J (3) and 208 JA (4) in holding that a practitioner was entitled to have his or her costs assessed even if the respondents were under no obligation to pay such costs.

4. The plaintiffs were denied procedural…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baker v Kearney

Details

AGLC: Baker v Kearney [2002] NSWSC 746
Case: [2002] NSWSC 746
Decision Date: 26 August 2002

CaseChat Overview and Summary

The case of Baker v Kearney involved the plaintiff, Baker, who appealed against the Costs Assessor's decision to proceed with the assessment of costs despite there being no liability to pay those costs. Specifically, the matter centred around whether the Costs Assessor should have assessed the barrister's fees and costs agreements in the absence of any liability to pay them. The dispute was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the Costs Assessor had the discretion to proceed with the assessment of costs when there was no liability to pay those costs. This raised questions about the extent of the Costs Assessor's powers and the circumstances under which such an assessment should be conducted. The court needed to determine if there was any authority for the Costs Assessor to make an assessment in the absence of liability, and if so, whether such an assessment was appropriate in this case.

In examining the matter, the court found that the Costs Assessor had indeed overstepped their authority by proceeding with the assessment of costs without any liability to pay. The court held that the Costs Assessor should not have assessed the barrister's fees and costs agreements unless there was a clear liability to pay them. The reasoning hinged on the principle that an assessment of costs is only valid if there is a party liable to pay those costs. Without such a liability, any assessment is rendered meaningless and beyond the scope of the Costs Assessor's powers.

Ultimately, the court determined that the Costs Assessor's decision to proceed with the assessment was improper and that the appeal should be allowed. The court quashed the Costs Assessor's decision and directed that no further assessment of costs be made unless and until there is a determination of liability to pay the costs in question.

Orders