Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Branson v Tucker [2012] NSWCA 310 Hearing dates: 17 August 2012 Decision date: 26 September 2012 Before: Beazley JA at [1]
Campbell JA at [2]
Barrett JA at [121]Decision: 1. Grant leave to the Applicant to appeal.
2. Direct the Applicant to file a notice of appeal, in accordance with the draft contained in the White Book, within 7 days of the date of delivery of these reasons.
3. Refuse leave for the Applicant to argue that the aspects of this Court's decision in Attard v James Legal Pty Ltd [2010] NSWCA 311 that are identified at [92]-[94] of the reasons for judgment in the present case, are incorrectly decided.
4. Appeal dismissed.
5. Applicant to pay costs of the Respondents of the application for leave to appeal and of the appeal.
[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: COSTS - recovery of costs - by barrister - bill of costs rendered to a firm of solicitors by a barrister pursuant to a costs agreement - dispute over charges after time expired to seek assessment under the Legal Profession Act 2004 - barrister commenced action to recover charges - defence pleaded that charges were not reasonable having regard to skill of barrister and requirements of work undertaken - barrister moved the court to strike out the defence on the basis that the Legal Profession Act provided an exclusive regime for assessing the reasonableness of costs - strike out refused - the jurisdiction of the District Court to determine the reasonableness of disputed items in a bill of costs rendered by a law practice or practitioner in the course of the legal practice or practitioner suing for unpaid fees is not ousted by the statutory costs assessment regime
COSTS - recovery of costs - by barrister -barristers were traditionally not engaged by contract to provide services - common law position altered by statute - a costs agreement provided by a barrister in accordance with the Legal Profession Act may be sued upon as part of a contract to provide legal services - court accordingly has jurisdiction to hear the matter as it would a contract claim involving disputed items of charge
PRACTICE AND PROCEDURE - Court of Appeal - leave to challenge Court's own previous decision; application for - circumstances in which leave will be granted - requirement that sitting judges have strong conviction that previous decision was incorrect - requirement not met - leave refusedLegislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth)
District Court Act 1973
Interpretation Act 1987
Legal Profession…
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- AGLC
- Branson v Tucker [2012] NSWCA 310
- Case
- [2012] NSWCA 310
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court of Appeal were whether the statutory costs assessment regime under the *Legal Profession Act 2004* exclusively determined the reasonableness of a barrister's charges when sued for unpaid fees, and whether the District Court possessed jurisdiction to hear such a claim as a contractual dispute. Additionally, the Court considered the circumstances under which leave would be granted to challenge a previous decision of the Court.
The Court of Appeal held that the jurisdiction of the District Court to determine the reasonableness of disputed items in a bill of costs rendered by a law practice or practitioner suing for unpaid fees was not ousted by the statutory costs assessment regime. It reasoned that while barristers were traditionally not engaged by contract, this common law position had been altered by statute. A costs agreement entered into by a barrister in accordance with the *Legal Profession Act* could be sued upon as part of a contract for legal services, meaning the court had jurisdiction to hear the matter as it would any other contract claim involving disputed charges. Regarding the application to challenge a previous decision, the Court reiterated that leave would only be granted in exceptional circumstances, requiring a strong conviction by the sitting judges that the previous decision was incorrect, a threshold not met in this instance.
Consequently, the Court of Appeal granted the applicant leave to appeal, directed the filing of a notice of appeal, but refused leave to argue that specific aspects of *Attard v James Legal Pty Ltd* were incorrectly decided. The appeal was ultimately dismissed, and the applicant was ordered to pay the respondents' costs of the application for leave to appeal and the appeal.
Orders
Orders of the court
1. Grant leave to the Applicant to appeal.
2. Direct the Applicant to file a notice of appeal, in accordance with the draft contained in the White Book, within 7 days of the date of delivery of these reasons.
3. Refuse leave for the Applicant to argue that the aspects of this Court's decision in Attard v James Legal Pty Ltd [2010] NSWCA 311 that are identified at [92]-[94] of the reasons for judgment in the present case, are incorrectly decided.
4. Appeal dismissed.
5. Applicant to pay costs of the Respondents of the application for leave to appeal and of the appeal.
[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.]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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