Bobb v Wombat Securities Pty Ltd (No 2) - [2014] NSWCA 261

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Bobb v Wombat Securities Pty Ltd (No 2) [2014] NSWCA 261
Hearing dates: 25 July 2014
Decision date: 12 August 2014
Before: Basten JA at [1];
Ward JA at [33];
Emmett JA at [34]
Decision:
(1) Appeal dismissed.
(2) Dismiss the summons seeking judicial review.
(3) Applicant to pay the costs of the first respondent, Wombat Securities, of both proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
ADMINISTRATIVE LAW - judicial review - appeal to District Court against costs assessment limited to a decision "as to a matter of law" - alleged errors in failure to give reasons and failure to take into account a mandatory consideration - appeal dismissed as disclosing no erroneous decision "as to a matter of law" - scope of appellate jurisdiction of District Court - whether failure to give reasons constitutes a decision "as to a matter of law" - adequacy of reasons had been considered earlier in the supervisory jurisdiction of the Supreme Court - whether District Court was deprived of jurisdiction to consider the issue - whether the failure to consider the objection constituted a decision that, as a matter of law, it was not a mandatory consideration - Legal Profession Act 2004 (NSW), s 384
PRACTICE AND PROCEDURE - costs assessment - appeal to District Court limited to a decision "as to a matter of law" - applicant objected to payment of costs to respondent due to late amendment of claim - cost assessor and review panel rejected objection - applicant alleged error in failure to give reasons and failure to take into account a mandatory consideration - appeal dismissed as disclosing no erroneous decision "as to a matter of law" - extent of appellate jurisdiction of the District Court
Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67
Corporations Act 2001 (Cth),ss 137H, 180, 181, 182, 183
District Court Act 1973 (NSW), s 127
Legal Profession Act 2004 (NSW), ss 374, 380, 382, 384, 385
Supreme Court Act 1970 (NSW), s 69
Cases Cited: Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757
Dayeian v Davidson [2010] NSWCA 42; 76 NSWLR 512
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24
Wende v Horwarth (NSW) Pty Ltd [2014] NSWCA 170
Category: Principal judgment
Parties: Richard Bobb (Appellant/Applicant)
Wombat Securities Pty Ltd (First Respondent)
District Court of NSW (Second Respondent)
Representation: Counsel:
Mr G A Sirtes SC/Mr D W Robertson (Appellant/Applicant)

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: [2014] NSWCA 261
Decision Date: 12 August 2014

CaseChat Overview and Summary

This matter concerned an appeal to the District Court of New South Wales against a costs assessment. The applicant, Bobb, sought to appeal a decision of a review panel concerning costs awarded to the respondent, Wombat Securities Pty Ltd. The core of the dispute revolved around the applicant's objection to the costs, which was based on an alleged late amendment of the claim by the respondent.

The legal issues before the District Court were whether the review panel's decision involved an error "as to a matter of law" within the limited scope of appeal provided by section 384 of the *Legal Profession Act 2004* (NSW). Specifically, the applicant argued that the panel erred by failing to provide adequate reasons for its decision and by failing to take into account a mandatory consideration. The appeal court was required to determine the scope of the District Court's appellate jurisdiction under section 384 and whether the alleged failures constituted decisions "as to a matter of law".

The Court of Appeal held that the District Court had correctly dismissed the appeal. It reasoned that the applicant's dissatisfaction with the panel's decision did not amount to an appealable error "as to a matter of law" under section 384. The court distinguished between a "decision" made during the assessment process and the "determination" of the application, noting that section 384 referred to the former. The court also considered that the adequacy of reasons had previously been examined in the Supreme Court's supervisory jurisdiction, and that the District Court was not deprived of jurisdiction to consider this issue. The failure to consider the objection was not, as a matter of law, a failure to consider a mandatory consideration.

The appeal to the Court of Appeal was dismissed.

Orders

Orders of the court

23.

as to a matter of law and dissatisfaction with that decision. Secondly, to treat the subject matter of the dissatisfaction as the ultimate determination of the panel is to ignore the different language of s 385 which allows an appeal (with leave) against "the determination of the application", referring, no doubt, to the final outcome of the application. Although the language of the surrounding provisions is not entirely consistent, the broad structure of Pt 3.2, Div 11 reflects this distinction: see, eg, the headings of sub-div 4, "Determinations" and sub-div 5, "Review of determination by panel". Thus, when s 384 uses the term "decision", arguably it is concerned with a decision reached in the course of the process of determining an application, rather than the ultimate determination.

24.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bobb v Wombat Securities Pty Ltd (No 2) [2014] NSWCA 261
Hearing dates:	25 July 2014
Decision date:	12 August 2014
Before:	Basten JA at [1]; Ward JA at [33]; Emmett JA at [34]
Decision:	(1) Appeal dismissed. (2) Dismiss the summons seeking judicial review. (3) Applicant to pay the costs of the first respondent, Wombat Securities, of both proceedings in this Court. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	ADMINISTRATIVE LAW - judicial review - appeal to District Court against costs assessment limited to a decision "as to a matter of law" - alleged errors in failure to give reasons and failure to take into account a mandatory consideration - appeal dismissed as disclosing no erroneous decision "as to a matter of law" - scope of appellate jurisdiction of District Court - whether failure to give reasons constitutes a decision "as to a matter of law" - adequacy of reasons had been considered earlier in the supervisory jurisdiction of the Supreme Court - whether District Court was deprived of jurisdiction to consider the issue - whether the failure to consider the objection constituted a decision that, as a matter of law, it was not a mandatory consideration - Legal Profession Act 2004 (NSW), s 384 PRACTICE AND PROCEDURE - costs assessment - appeal to District Court limited to a decision "as to a matter of law" - applicant objected to payment of costs to respondent due to late amendment of claim - cost assessor and review panel rejected objection - applicant alleged error in failure to give reasons and failure to take into account a mandatory consideration - appeal dismissed as disclosing no erroneous decision "as to a matter of law" - extent of appellate jurisdiction of the District Court
Legislation Cited:	Consumer, Trader and Tenancy Tribunal Act 2001 (NSW), s 67 Corporations Act 2001 (Cth),ss 137H, 180, 181, 182, 183 District Court Act 1973 (NSW), s 127 Legal Profession Act 2004 (NSW), ss 374, 380, 382, 384, 385 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757 Dayeian v Davidson [2010] NSWCA 42; 76 NSWLR 512 Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 Wende v Horwarth (NSW) Pty Ltd [2014] NSWCA 170
Category:	Principal judgment
Parties:	Richard Bobb (Appellant/Applicant) Wombat Securities Pty Ltd (First Respondent) District Court of NSW (Second Respondent)
Representation:	Counsel: Mr G A Sirtes SC/Mr D W Robertson (Appellant/Applicant)