Byrne v Turner Freeman Lawyers

[2025] NSWCA 146

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Byrne v Turner Freeman Lawyers [2025] NSWCA 146

Hearing dates:

30 June 2025

Decision date:

04 July 2025

Before:

Mitchelmore JA

Decision:

(1) The appeal is dismissed as incompetent.

(2) The appellant is to pay the costs of the first respondent and the second respondent.

(3) Direct that if any party wishes to press for a different order for costs, written submissions of no more than 3 pages should be provided to chambers by 4pm on 9 July 2025, with any reply of the same length to be provided by 14 July 2025, to be dealt with on the papers.

Catchwords:

APPEALS — leave to appeal — whether leave required — summary dismissal — whether summary dismissal interlocutory in nature — whether appeal otherwise by right

Legislation Cited:

Courts Legislation Amendment Act 1998 (NSW)

District Court Act 1973 (NSW), s 127

Statute Law (Miscellaneous Provisions) Act (No 3) 1992 (NSW)

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 51.41

Cases Cited:

AB v State of New South Wales [2014] NSWCA 243

Clarke v Hicksons Lawyers [2021] NSWCA 100

Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106

Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14

Macatangay v State of New South Wales (No 2) [2009] NSWCA 272

McGettigan v Coulter [2024] NSWCA 148

Option Holdings Pty Ltd v Meng Yu [2025] NSWCA 18

Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241

Singh v Khan [2021] NSWCA 281; 363 FLR 88

Category:

Procedural rulings

Parties:

Robert John Byrne (Appellant/Respondent on the motions)
Turner Freeman Lawyers (First respondent/Applicant on motion)
Adam Casselden SC (Second respondent/Applicant on motion)

Representation:

Counsel:
P Doyle Gray (Appellant)
A Horvath SC with S Scott (First respondent)
S Thomson (Second respondent)

Solicitors:
Wilson Fox Lawyers (Appellant)
Moray & Agnew Lawyers (First respondent)
Kennedys (Australasia) Partnership (Second respondent)

File Number(s):

2025/00097151

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Civil

Citation:

[2025] NSWDC 5

[2025] NSWDC 88

Date of Decision:

13 February 2025

Before:

Cole DCJ

File Number(s):

2024/202126

JUDGMENT

1. Each of the respondents to this appeal has filed a notice of motion seeking an order pursuant to r 51.41 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) dismissing the appellant’s notice of appeal, filed on 13 May 2025, on the basis that the appeal is incompetent.

2. The subject of the appeal is two decisions of Cole DCJ in proceedings that the appellant commenced against the respondents, who were his legal advisers during a dispute with an Owners Corporation. That dispute settled before trial in 2014 on terms that were documented, first, in a heads of agreement and, then, in a settlement deed. For present purposes it is sufficient to note that in broad terms the appellant alleged that the respondents were negligent when advising him about the proposed terms of settlement in the heads of agreement, and in failing to disclose a reasonable estimate of legal costs payable by him if the proceedings settled.

3. After the respondents filed defences in the matter they each filed a notice of motion seeking summary dismissal or, in the alternative, that the statement of claim be struck out on the basis that it failed to identify a complete cause of action. In the first decision that is the subject of the notice of appeal, Byrne v Turner Freeman Lawyers and Casselden [2025] NSWDC 5 (the Principal Judgment), the primary judge acceded to those applications and made the following orders:

“(1) Pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 14.28, the Statement of Claim filed on 31 May 2024 (Statement of Claim) is struck out.

(2) Pursuant to UCPR r 13.4(1)(b) these proceedings are dismissed.”

4. In her Honour’s second decision, Byrne v Turner Freeman Lawyers and Casselden (No 2) (Costs) [2025] NSWDC 88, her Honour ordered that the appellant pay the respondents’ costs of the proceedings on an indemnity basis (Costs Judgment).

5. On 12 March 2025, the appellant filed a notice of intention to appeal from the Principal Judgment, amending that notice on 10 April 2025 to include the Costs Decision. The notice of appeal was filed on 13 May 2025.

6. Rule 51.41 of the UCPR, on which both respondents rely, provides as follows:

51.41 Objections to competency of appeal

(1) A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties to the appeal within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent.

(2) If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent—

(a) the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and

(b) the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary.

7. The respondents filed their respective notices of motion within the time stipulated in r 51.41(1) (the first respondent filed an amended notice of motion with leave to correct the applicable rule). The affidavits of the respondents’ respective solicitors that were filed in support of the applications (for the first respondent, an affidavit of Baron David Alder sworn 26 May 2025 and, for the second respondent, an affidavit of Alexandra Elizabeth Bartlett affirmed 27 May 2025) annexed correspondence between the parties’ legal representatives about the competency or otherwise of the appeal. The appellant relied on an affidavit of his solicitor, Gabriel Hernandez, sworn 19 June 2025, which provided various documents from the proceedings below.

8. In submitting that the appeal is incompetent, the respondents relied on s 127(2) of the District Court Act 1973 (NSW), which relevantly provides:

(2) The following appeals lie only by leave of the Supreme Court—

(a) an appeal from an interlocutory judgment or order,

(b) an appeal from a judgment or order as to costs only,

(c) …

(d) an appeal from a judgment or order on an application for summary judgment under the rules, …

9. The respondents submitted that the Principal Judgment was interlocutory and thus leave to appeal is required in accordance with s 127(2)(a), while the Costs Judgment requires leave pursuant to s 127(2)(b). In support of the characterisation of the Principal Judgment as interlocutory, they cited a number of decisions of this Court in the context of s 101(2)(e) of the Supreme Court Act 1970 (NSW) which, like s 127(2)(a) of the District Court Act, provides that leave to appeal is required from “an interlocutory judgment or order”, including Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 (“Macatangay”); AB v State of New South Wales [2014] NSWCA 243 (“AB”); Poulos v Commonwealth Bank of Australia Ltd [2019] NSWCA 241 (“Poulos”); Singh v Khan [2021] NSWCA 281; 363 FLR 88; and McGettigan v Coulter [2024] NSWCA 148.

10. It suffices for present purposes to refer to the following passage of the Court’s reasons (Allsop P, Tobias JA and Handley AJA) in Macatangay, in which the Court was dealing with the competency of an appeal from orders of Grove J dismissing a matter under r 13.4 of the UCPR, and which binds me as a single judge exercising power under s 46(1) of the Supreme Court Act:

“[11] The order of Grove J was interlocutory. This Court decided that in Wickstead v Browne (1992) 30 NSWLR 1 in dealing with the relevantly indistinguishable provisions of Part 13 of the then Supreme Court Rules, citing relevant decisions of the High Court and Privy Council: Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423 at 440; Tampion v Anderson (1973) 48 ALJR 11 at 12. The order for dismissal may be seen to have a degree of finality in practical effect, but the test is whether it was final in legal effect: Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; 147 CLR 246 at 248; Bienstein v Bienstein [2003] HCA 7; 195 ALR 225 at [25]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (1998) 155 ALR 94 at 104-105. It was not final in legal effect because there was no triable issue, and it did not finally determine the rights of the parties or create res judicata estoppels. Whatever jurisprudential complexities lie behind the analysis, as the Privy Council made clear in Tampion v Anderson, clarity and consistency in approach is vital. The courts have had a consistent approach to the status of orders for, or to the effect of, summary dismissal since the 19th century: they are interlocutory. The High Court most recently reiterated this in In the Matter of An Appeal by Luck [2003] HCA 70; 78 ALJR 177 at 178-179, where the clear rule in Tampion v Anderson was expressly affirmed. The Court (McHugh ACJ, Gummow and Heydon JJ) said at 179:

‘An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.’

[12] The principle has been established for over 100 years by decisions some of which are binding on this Court.

[13] The relevant provision is s 101(2)(e) of the Supreme Court Act which requires leave to appeal from an interlocutory judgment or order of the Court. Section 101(2)(l) is concerned with summary judgment dealt with in r 13.1 at the suit of the plaintiff in which the court gives judgment. Without a provision such as s 102(2)(l), such an order for judgment could be seen to be final. In any event, the order of Grove J was interlocutory, s 101(2)(e) applies, and the plaintiff’s appeal as of right was incompetent.”

11. Referring to this passage in AB at [10], Leeming JA observed that it is or ought to be regarded as clear law that an exercise of the power of summary dismissal pursuant to r 13.4(1) of the UCPR, “even one which dismisses a party’s proceedings, is interlocutory, for the purposes of deciding whether an appeal lies as of right or by way of leave”.

12. To use the words of Leeming JA in AB at [9], in striking out the statement of claim pursuant to r 14.28 and dismissing the proceedings pursuant to r 13.4(1) of the UCPR, it is apparent from the reasons in the Principal Judgment that Cole DCJ did not “hear and determine the Statement of Claim on its merits, applying the civil standard of proof”. Rather, her Honour reviewed the statement of claim and considered that in various respects it: was insufficiently particularised and embarrassing (see the Principal Judgment at [18], [24], [31], [37], [40], [49] and [88]-[89]); disclosed no reasonable cause of action (see [28], [42]-[44], [76]-[77] and [78]-[80]); and amounted to an abuse of process (see [73]-[75] and [90]). Her Honour’s orders were not the product of any final determination of the merits of the appellant’s claims and were interlocutory.

13. In the written submissions filed on his behalf, the appellant advanced two independent bases on which his appeal from the Principal Judgment did not fall within s 127(2)(a) of the District Court Act and was filed as of right:

1. There had been “a full determination of the matter on the merits” before Cole DCJ, such that the Principal Judgment and orders were not properly characterised as interlocutory.

2. Section 127(2)(a), properly construed, excludes decisions made pursuant to Part 13 of the UCPR.

14. In support of the first of those reasons, the appellant relied on the decision of the Court in Hynash Constructions Pty Ltd v BRP Industries Pty Ltd [2025] NSWCA 14 (“Hynash”), in particular the additional reasons of Basten AJA at [53], with which Bell CJ agreed at [1] (Adamson JA gave the principal judgment, with which both the Chief Justice and Basten AJA agreed). The applicant in Hynash sought leave to appeal from a decision of the District Court on an application for summary judgment made in proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW). Adamson JA noted at [4] that although was it arguable that leave was required by reason of s 127(2)(d) of the District Court Act (because the judgment was ordered on an application for summary judgment), the matter appeared to have been dealt with “on a final basis”. Basten AJA further explained the circumstances at [53]:

“The second basis for requiring leave is that the appeal is from a judgment or order ‘on an application for summary judgment under the rules’: s 127(2)(d). On its face, that provision was engaged by the listing of a notice of motion filed by the respondent seeking ‘summary judgment’. However, as counsel for the respondent accepted, the motion was filed in order to obtain an expedited hearing. What in fact happened was that evidence was filed by both parties and, there being no dispute as to the facts, the matter was determined by the judge on the basis of the proper construction of the statute. Where there has been a full determination of a matter on the merits, the judgment and orders were not properly characterised as ‘summary’; they were merely obtained expeditiously. The orders were not interlocutory but final. There is no apparent purpose in requiring leave in such a case.”

(Emphasis added.)

15. Ultimately, as Ward P and Basten AJA noted in Option Holdings Pty Ltd v Meng Yu [2025] NSWCA 18 (“Option Holdings”) at [20], it was unnecessary for the Court in Hynash to resolve this issue (just as it was unnecessary in Option Holdings as leave to appeal was required on a separate basis). Given the applicant in Hynash had applied for leave to appeal, their Honours decided that if leave were required it should be refused, and if leave were not required the appeal should be dismissed: see Bell CJ at [1]; Adamson JA at [4]; Basten AJA at [54]. In any event, for the reasons I have already given, the decision in Hynash does not assist the appellant in the present case having regard to the applications made to her Honour and how her Honour dealt with them in the Principal Judgment. As counsel for the second respondent submitted, the circumstances in which summary judgment was ordered in Hynash, as Basten AJA described them in the passage I have extracted above, are not replicated in the present case.

16. The appellant submitted that it was necessary to look at the totality of what was done in the court below. The material that the appellant put into evidence before me, which included the applications and supporting affidavits, highlight that her Honour was not being asked to, and did not, determine the merits of the issues raised in the pleadings, finally or otherwise. The fact that her Honour made orders that the appellant pay the respondents’ costs of the proceedings, rather than just the notices of motion on which they moved for summary dismissal, does not call for a contrary conclusion.

17. The appellant also relied on her Honour not granting him an opportunity to replead, referring in this respect to [16] of the Principal Judgment. The absence of an opportunity to replead following a summary dismissal does not alter the proper characterisation of her Honour’s orders as interlocutory. In any event, read with the paragraphs that precede it, starting at [12], it is apparent that in [16] Cole DCJ was summarising the submissions of the first respondent regarding the first of what it alleged were seven deficiencies in the statement of claim. The first deficiency was that the negligent advice claim was premised on a breach of an obligation by the Owners Corporation which was not particularised, either in terms of the conduct constituting the breach or the clause of the heads of agreement said to have been breached. After setting out the appellant’s response to those submissions at [17], her Honour concluded that the pleading in the relevant paragraphs of the statement of claim was “embarrassing in the sense that it was susceptible of various meanings which are obvious upon a reading of the various documents”: at [18].

18. I accept the respondents’ submissions that the Principal Judgment did not involve a judgment on the merits and that her Honour’s orders striking out the statement of claim pursuant to r 14.28 and for summary dismissal under r 13.4 are properly characterised as interlocutory. As Payne and Brereton JJA observed in Poulos, having regard to authorities such as Macatangay at [24]:

“Leave to appeal is required because the decision of a judge exercising the power in Uniform Civil Procedure Rules 2005 (NSW) r 13.4 to dismiss proceedings summarily is interlocutory for the purposes of determining whether an appeal lies by right or requires leave, even though the effect of that decision is to dismiss a party’s proceedings. That said, it is a grave step to deny a litigant a final hearing, and despite the legal interlocutory nature of a summary dismissal, it has a practically final effect. For that reason, if arguable error were demonstrated, there would often be a good case for leave to appeal in such a case, even in the absence of any question of principle or of public importance.”

19. As to the appellant’s second reason why leave was not required, in summary the appellant relied on the legislative history of s 127, in particular the later addition of s 127(2)(d) pursuant to the Courts Legislation Amendment Act 1998 (NSW), and the earlier addition of the equivalently-worded s 101(2)(l) in the Supreme Court Act pursuant to the Statute Law (Miscellaneous Provisions) Act (No 3) 1992 (NSW). The appellant submitted that it followed, as a matter of necessary implication from the express imposition of a leave requirement for appeals from a judgment or order on an application for “summary judgment” under the rules, and the lack of a similar express requirement applying to “summary dismissal”, that Parliament intended appeals from the latter to be as of right.

20. Although counsel for the appellant developed the argument before me orally, he accepted that I am bound by the decision in Macatangay on the construction of the equivalently worded s 101(2)(e) of the Supreme Court Act, and which has been applied in the context of s 127(2) of the District Court Act: see for example Clarke v Hicksons Lawyers [2021] NSWCA 100 at [3]. I have also referred above to what the Court said about s 101(2)(l) in Macatangay at [13], that, without a provision such as s 101(2)(l), an order for summary judgment under r 13.1 at the suit of the plaintiff in which the court gives judgment “could be seen as final”. Even if I were not so bound, I would have difficulty accepting, in the face of the longstanding authority to which the Court referred in that case at [11]-[12] supporting the interlocutory nature of an order for summary dismissal of the nature for which r 13.4 makes provision, that the insertion of s 127(2)(d) grounds a necessary implication that orders made pursuant to r 13.4 do not fall within the terms of s 127(2)(a).

21. In relation to the Costs Judgment, the basis on which appellant submitted that it was not subject to s 127(2)(b) was that the appeal was against both the Costs Judgment and the Principal Judgment, and thus the appeal was not as to “costs only”: Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106 at [83]-[84]. Having regard to my conclusion that the orders the subject of the Principal Judgment are interlocutory and require leave to appeal, the underlying premise of the argument is not correct.

22. The notice of appeal is incompetent and it will be dismissed. Given the notice of appeal has been dismissed it is appropriate that the respondents should have the costs of the applications that each made.

23. The respondents sought costs on an indemnity basis and at the conclusion of the hearing foreshadowed providing further correspondence to the Court. The respondents subsequently forwarded to chambers offers of compromise that each respectively served on the appellant on 27 May 2025, being the same day as the notices of motion were filed. Although the appellant did not object to the provision of those offers to the Court, no submissions have been made specifically in relation to the offers of compromise. In those circumstances I will make the usual order as to costs but will give the parties an opportunity to be heard should any of them press for a different order and make directions with a view to determining that on the papers.

19. I make the following orders:

1. The appeal is dismissed as incompetent.

2. The appellant is to pay the costs of the first respondent and the second respondent.

3. Direct that if any party wishes to press for a different order for costs, written submissions of no more than 3 pages should be provided to chambers by 4pm on 9 July 2025, with any reply of the same length to be provided by 14 July 2025, to be dealt with on the papers.

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Decision last updated: 04 July 2025