CITATION: Biffin v Ulan Coal Mines Pty Ltd [2000] NSWSC 173 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 12982/98 HEARING DATE(S): 14 March 2000 JUDGMENT DATE: 20 March 2000 PARTIES :
Ulan Coal Mines Pty Limited
John Biffin
(Plaintiff)
(Defendant)JUDGMENT OF: Master Harrison
COUNSEL : Mr B Guest
Mr N Chen
(Plaintiff)
(Defendant)SOLICITORS: Ms R Dimaridis of
Mr A Carter of
Maurice May & Co
(Plaintiff)
Sparke Helmore
(Defendant)CATCHWORDS: Leave to appeal decision of costs assessor - s 208M - cl 26D LEGISLATION CITED: Legal Profession Act 1987 (NSW)
Legal Profession Regulation 1994CASES CITED: Larsen v Vile [1999] NSWCA 397
Chapmans Ltd v Yandell [1999] NSWCA 361
Coulter v Regina (1988) 166 CLR 350
CDJ v VAJ [1998] HCA 67
Coal & Allied Operations Pty Limited v Clifton & Anor & Nova Coal Australia Pty Limited v Ward & Anor (NSWSC, unreported Master Harrison 27 August 1997)
Attorney General for New South Wales v Kennedy Miller Television Pty Limited (1998) 43 NSWLR 729
Ilic v Radin (NSWSC, unreported Finlay J, 18 December 1994)DECISION: See para 21
10
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONMASTER HARRISON
MONDAY, 20 MARCH 2000
12982/98 - JOHN BIFFIN v ULAN COAL MINES P/L
JUDGMENT (Leave to appeal decision of costs assessor)2 The grounds of appeal are as follows:
1 MASTER: By summons filed 7 December 1998 the plaintiff seeks an order that leave be granted to appeal the determination of costs assessor Raymond John Moyle dated 20 November 1998 pursuant to s 208M of the Legal Profession Act 1987 (NSW) (the Act). An appeal is not brought pursuant to s 208L. The plaintiff relied on the affidavits of Michael John Magee sworn 10 February 1999 and Katherine Barton sworn 1 March 1999.3 A short history of the matters is as follows:
(1) The costs assessor erred in relation to his application of the hourly rate of $40.
(2) The costs should have disallowed a component for care, skill and attention when the bill of costs had not been presented on a time costing basis.
(3) The costs assessor should have had regard for determinations and reasons issued by other costs assessors in the interest of uniformity and consistency.
(4) Whether the costs assessor can assess costs with reference to the judgment obtained and when it does not reach expectations validly held purport to reduce the costs on that basis.
(5) The costs assessor should have had regard to former taxation principles when exercising his discretion under cl 26D of the Legal Profession Regulation 1994.
(1) On 30 August 1993 the plaintiff commenced proceedings against the defendant in the District Court claiming damages for noise-induced hearing loss.(2) On 24 March 1998 the matter was heard before Acting Judge Bowden with a jury. The jury returned a verdict of $10,000 plus interest of $1,000. The defendant was ordered to pay the plaintiff’s costs up to 26 May 1997 on a party/party basis.
(3) A bill…
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- Case
- [2000] NSWSC 173
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court were whether the costs assessor had correctly applied the statutory provisions in determining the recoverable costs, and if the appeal to the court on the matter of costs was warranted under the relevant statutory provisions. The court had to consider whether there were any errors of law by the assessor that warranted the court's intervention, particularly in light of the specific criteria outlined in sections 208M and 26D.
The court found that the costs assessor had indeed made an error of law in his assessment, which had a material impact on the determination of costs. The court held that the error was significant enough to warrant the appellant being granted leave to appeal. The court was satisfied that the appeal raised a substantial question of law and that the appeal was in the interests of justice. The court noted that the proper interpretation and application of the statutory provisions was crucial in ensuring that the costs awarded reflect the true expenses incurred in the litigation process.
The final orders of the court included granting leave to the appellant to appeal the decision of the costs assessor, and directing that the appeal be heard on an expedited basis to address the substantial question of law identified. The court also ordered that the parties bear their own costs of the appeal, reflecting the court's view that the matter was of significant importance.
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