Biffin v Ulan Coal Mines Pty Ltd - [2000] NSWSC 173

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 :

John Biffin
(Plaintiff)
Ulan Coal Mines Pty Limited
(Defendant)

JUDGMENT OF: Master Harrison

COUNSEL :
Mr B Guest
(Plaintiff)
Mr N Chen
(Defendant)

SOLICITORS:
Ms R Dimaridis of
Maurice May & Co
(Plaintiff)
Mr A Carter of
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 1994

CASES 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 DIVISION

MASTER HARRISON

MONDAY, 20 MARCH 2000

12982/98 - JOHN BIFFIN v ULAN COAL MINES P/L
JUDGMENT (Leave to appeal decision of costs assessor)

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.
2 The grounds of appeal are 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.

3 A short history of the matters is as follows:

(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…

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.

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Details

Case: [2000] NSWSC 173
Decision Date: 20 March 2000

CaseChat Overview and Summary

The case of Biffin v Ulan Coal Mines Pty Ltd was before the Supreme Court of New South Wales. Biffin, the appellant, was seeking leave to appeal the decision of a costs assessor who had determined the costs recoverable in a proceeding between Biffin and Ulan Coal Mines. The dispute centred around the application and interpretation of sections 208M and 26D of the relevant legislation, which govern the costs recoverable by successful parties in civil litigation. Biffin contended that the assessor had erred in the assessment of costs, particularly in relation to the disallowance of certain expenses claimed.

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.

Orders