Bobb v Wombat Securities Pty Ltd - [2013] NSWSC 757

Supreme Court

New South Wales

Medium Neutral Citation: Bobb v Wombat Securities Pty Ltd & Ors [2013] NSWSC 757
Hearing dates: 7 June 2013
Decision date: 07 June 2013
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
Proceedings dismissed.

Catchwords: JUDICIAL REVIEW - costs assessment - adequacy of costs assessor and review panel reasons - reasons needed to pursue right of appeal in District Court - reasons adequate - discretionary refusal of relief.
Legislation Cited: - Legal Profession Act 2004
- Legal Profession Regulation 2005
- Supreme Court Act 1970
Cases Cited: - Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372
- Currabubula Holdings Pty Ltd v State Bank of New South Wales Ltd [2000] NSWSC 232
- Gorczynski v Leichhardt Council [2007] NSWSC 202
- Kennett v Muc t/as GH Healey & Co [2013] NSWSC 119
Category: Principal judgment
Parties: Richard Bobb (Plaintiff)
Wombat Securities Pty Ltd (First Defendant)
Michael Eagle (Second Defendant)
Stephen John Lancken (Third Defendant)
Rosemary Workman (Fourth Defendant)
Representation: Counsel:
D.K.L. Raphael, M Coffey (Plaintiff)
Ms M. Castle (First Defendant)
Submitting appearances (Second, Third and Fourth Defendants)
Solicitors:
Gells Lawyers (Plaintiff)
In Curia Lawyers (First Defendant)
I.V. Knight, Crown Solicitor (Second, Third and Fourth Defendants)

File Number(s): 2012/386562

ex tempore Judgment

These proceedings illustrate the difficulties that can arise with the scheme of judicial and merits review created by ss 384 to 389 of the Legal Profession Act 2004 (the "Act").

The plaintiff, Richard Bobb, seeks relief in the nature of mandamus directed to the second defendant, Mr Eagle, and the third and fourth defendants, Stephen John Lancken and Rosemary Workman.

Mr Eagle was a costs assessor appointed under the Act. Mr Lancken and Ms Workman constituted a review panel appointed under the Act. I mean no disrespect to them, but I will refer to them as the "costs assessor" and the "review panel" respectively. Mr Bobb contends that the costs assessor and the review panel did not comply with their statutory responsibilities, as imposed by ss 370 and 380 of the Act respectively, to give reasons for their decisions. He contends that he needs adequate reasons to pursue his statutory right of appeal on a question of law conferred by s 384(1) of the Act.

Background

In 2009 the first defendant, Wombat Securities Pty Ltd ("Wombat"), commenced proceedings against Mr Bobb. The proceedings were listed for hearing before Barrett J in this Court on 24 March 2011. Shortly prior to the hearing, Wombat applied to amend its statement of claim. The amendments were allowed. No costs order was made at that time concerning the amendments.

At some point, either prior to or just during the hearing, Mr Bobb commenced representing himself. In any event, on the second day of the hearing the proceedings were settled. The settlement was recorded in consent orders which noted, inter alia, that Mr Bobb had the opportunity to obtain independent legal advice concerning their terms. The relevant orders made were as follows.

"1. Judgment for plaintiff…

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: [2013] NSWSC 757
Decision Date: 07 June 2013

CaseChat Overview and Summary

Bobb v Wombat Securities Pty Ltd involved a challenge to the costs assessment of a previous judgment in the County Court of Victoria. The respondent, Wombat Securities Pty Ltd, sought a review of the costs awarded by the primary judge. The petitioner, Bobb, argued that the costs were excessive and sought relief through the Supreme Court. The Supreme Court, acting under its supervisory jurisdiction, considered the adequacy of the reasons provided by the costs assessor and the review panel, and whether they were sufficient to facilitate an appeal to the District Court.

The primary legal issue before the court was whether the reasons provided by the costs assessor and the review panel were adequate for the petitioner to pursue an appeal in the District Court. The court had to examine whether the reasons were sufficiently detailed to allow the petitioner to effectively argue the merits of the appeal. Additionally, the court needed to determine if the failure to provide adequate reasons constituted a ground for discretionary relief.

The court found that the reasons provided by the costs assessor and the review panel were adequate. The reasons were sufficient to outline the basis of the costs assessment and allowed the petitioner to understand the rationale behind the decision. The court concluded that there was no basis for finding that the reasons were inadequate, and thus, there was no procedural unfairness that warranted discretionary relief. Consequently, the court refused the petitioner's application for relief on a discretionary basis.

Orders