Brierley v Reeves

[2001] NSWCA 189

Reported Decision: 51 NSWLR 689

New South Wales

Court of Appeal

CITATION:	BRIERLEY v REEVES [2001] NSWCA 189
FILE NUMBER(S):	CA 40287/00
HEARING DATE(S):	6 June 2001
JUDGMENT DATE:	22 June 2001
PARTIES :	SIMON BRIERLEY v ANTHONY CHARLES REEVES t/as KAPLIN REEVES & CO
JUDGMENT OF:	Handley JA at 1; Rolfe AJA at 2; Fitzgerald AJA at 57

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	CLD 12355/99
LOWER COURT JUDICIAL OFFICER :	Master Malpass

COUNSEL:	Appellant - Taylor SC/Odgers Respondent - Grieve QC
SOLICITORS:	Appellant - Heckenberg Associates Respondent - Benjamin & Robinson
CATCHWORDS:	PRACTICE AND PROCEDURE - costs - assessment - Legal Profession Act 1987 - where application to Proper Officer not accompanied by prescribed fee
LEGISLATION CITED:	Environmental Planning & Assessment Act 1979 Environmental Planning and Assessment (Savings and Transitional) Regulation Legal Profession Act 1987 Legal Profession Regulation 1994 Legal Profession (Amendment and Costs Assessment) Act 1998 Supreme Court Act 1970
CASES CITED:	Braganza v Minister for Immigration and Multicultural Affairs (2001) FCA 318 (28/3/01) Kirk v Minister for Immigration and Multicultural Affairs (1998) FCR 99 Helman v Byron Shire Council & Anor (1995) 87 LGERA 349 Botany Bay City Council v Remath Investments No 6 Pty Limited (2000) NSW CA 364
DECISION:	Appeal dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40287/00

CLD 12355/99

HANDLEY JA

ROLFE AJA

FITZGERALD AJA

22 June 2001

BRIERLEY v REEVES

The appellant appealed from a decision of Master Malpass that a costs assessor had no jurisdiction to assess a bill of costs referred to him by the Proper Officer. The principal issue was whether s 203 of the Legal Profession Act 1987 which enlivens the power of the Proper Officer to refer a bill of costs to a costs assessor is satisfied if the application is made within the 12 months’ period without payment, waiver, or postponement of the prescribed fee. The Master held that s 203(1) was unambiguous and couched in mandatory terms so that an application was not made until all the statutory requirements had been satisfied.

, dismissing the appeal: (1) All the requirements of s 203(1) must be met within the time limited by the Regulations. There is no provision in either the Act or the Regulations for the granting of any extension of time. (2) On a proper construction of s 203(4) an application to the Proper Officer for waiver or postponement must be made before the period has expired.

ORDERS


Appeal dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40287/00
CLD 12355/99

HANDLEY JA
ROLFE AJA
FITZGERALD AJA

22 June 2001

BRIERLEY v REEVES
JUDGMENT

1    HANDLEY JA: I agree with Rolfe

2    ROLFE AJA:

Introduction

The plaintiff/appellant, for whom Mr P.T. Taylor of Senior Counsel and Mr K.G. Odgers of Counsel appeared, appeals, pursuant to leave granted by this Court (Priestley and Giles JJA) on 23 November 2000, from a decision of…