Chapmans Ltd v Yandell

[1999] NSWCA 361

CITATION:	Chapmans Ltd v Yandell [1999] NSWCA 361
FILE NUMBER(S):	CA 40398/98
HEARING DATE(S):	29/09/99
JUDGMENT DATE:	29 September 1999
PARTIES :	Chapmans Ltd v Robert Walter Yandell (Practising as Yandells) & 2 Ors.
JUDGMENT OF:	Mason P at 18; Fitzgerald JA at 1; Davies AJA at 19

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S) :	11194/96
LOWER COURT JUDICIAL OFFICER:	Master Malpass

COUNSEL:	A C Bennett SC/P C See (Appellant) M J Cohen (Respondent)
SOLICITORS:	Glynn Chaffey (Appellant) Tzovaras Yandell (Respondent)
CATCHWORDS:	Costs; cost dispute between solicitors' firm and former client; appeal from Master's decision refusing leave to appeal pursuant to s208M of the Legal Profession Act 1987; purpose of the requirement of leave to appeal.
DECISION:	Appeal dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40398/98
CLD11194/96

MASON P
FITZGERALD JA
DAVIES AJA
Wednesday, 29 September 1999



CHAPMANS LIMITED (ACN 000 012 386) v Robert Walter YANDELL (PRACTISING AS "YANDELLS") & 2 ORS

JUDGMENT


1   FITZGERALD JA: This appeal by leave of a differently constituted Court concerns a costs dispute between solicitors and a former client. That dispute materially involves less than $20,000 which no doubt has been considerably increased by this litigation.

2 The appellant was dissatisfied with the decision of a costs assessor and appealed to a master under s208L of the Legal Profession Act 1987. Such an appeal is restricted to a matter of law arising in the proceeding before the costs assessor. The master dismissed that appeal and that decision is not in issue before this Court. The appellant also applied to the master for leave to appeal under s208M of the Act. The master also dismissed the application for leave to appeal on 18 May 1998.

3 During the course of the proceeding in this Court, there was some question raised as to whether or not the master had granted leave under s208M and dismissed the appeal under that section. I am satisfied from a perusal of the terms of the appellant’s summons which came before the master and the master’s order that he refused leave to appeal under s208M.

4   The orders which the appellant seeks from this Court according to the notice of appeal are that the costs assessor’s certificate of determination be set aside and the matter be remitted to another costs assessor for assessment according to law. Alternatively, the Court is asked to remit the proceedings to a master for determination according to law.

5 When the Court granted the appellant leave to appeal on 8 February this year, that is from the master’s decision refusing leave to appeal under s208M of the Act, it limited the appellant to the following ground of appeal, which is the only ground of appeal set out in the notice of appeal:
“The master erred in not granting leave to the appellant pursuant to s208M of the Legal Profession Act 1987 to allow fresh evidence in addition to or substitution for that evidence previously received.”

6   The evidence referred to in that ground of appeal is directed to a single issue, namely, whether there was a costs agreement between the parties. More specifically, the fresh evidence referred to in the ground of appeal or rather the evidence referred to as fresh evidence, consists of an affidavit by a director of the appellant, Mr B Ganke, and annexures which might support the view that there was no costs agreement between the parties.

7   The respondent’s bill of costs was served on the appellant on 3 August 1995 and the appellant applied to the Court for the costs to be assessed on 13 September that year. The costs assessor’s decision is dated 26 February 1996. As I said earlier, the master’s decision was given on 18 May 1998. The master found that the costs assessor had considered the parties’ material and submissions including in relation to the issue of whether or not there was a costs agreement. The appellant not merely concedes but asserts that its “major complaint”, that is before the costs assessor, “was the absence of a costs agreement”.

8   There is no doubt that the appellant had ample opportunities to place all material and submissions which it desired before the cost assessor. There is still no explanation concerning why the contents of Mr Ganke's affidavit were not deposed to by him earlier and placed before the costs assessor.

9 The master did not consider Mr Ganke’s affidavit in deciding whether to grant the appellant leave to appeal under s208M of the Act. In my opinion he should have done so. It was appropriate for him to take into account that, if leave to appeal was granted, the appeal would be a complete re-hearing de novo, that is a complete re-hearing at which it would be open to the appellant to adduce further evidence including that contained in Mr Ganke’s affidavit.

10 Given the nature of the appeal under s208M of the Act, I am satisfied that a master to whom an application for leave to appeal is made under that section should consider any material evidence which bears upon whether or not leave to appeal should be granted, including evidence which bears upon the likely outcome of the appeal if leave is granted: see Public Service Association of South Australia v Federation Clerks’ Union of Australia, South Australian Branch . (1991) 173 CLR 132.

11   On the other hand, it is important to keep in mind the purpose of a requirement of leave to appeal. It is intended to act as a filter to ensure that unsuitable appellant proceedings which are not able to be brought with the demands which that places upon the resources of the Court and the burden which it places upon other parties and the delays which it causes to other litigants. See for example Coulter v Regina . (1988) 166 CLR 350 about 359.

12 It is also in my opinion important to keep in mind that s208M must be considered in the context of s208L, which restricts an appeal as of right to matters of law. In considering whether or not leave to appeal is granted, it must be decided whether or not, there not being a matter of law arising in the proceeding and there being an appeal as of right only as to a matter of law, there is some other matter which in justice requires that leave to appeal be granted to allow that matter to be relitigated. The party seeking leave to appeal obviously bears the burden of establishing that justice does require that leave to appeal be granted. Further, the master when considering whether to grant leave to appeal obviously has a very wide discretion: see CDJ v VAJ . [1998] HCA 67 per McHugh, Gummow and Callinan, JJ.

13 Because the master did not consider Mr Ganke’s affidavit in deciding whether to grant the appellant leave to appeal under s208M, it falls for this Court to re-exercise the discretion which the master was called upon to exercise, that is the discretion whether or not to grant leave to appeal. In exercising that discretion it is for this Court to take into account Mr Ganke’s affidavit to the extent that it is material, as the master should have done.

14   I am comfortably satisfied that on a proper exercise of the discretion leave to appeal should be refused. The small amount involved, the course followed by the appellant before the costs assessor, the delay, the absence of any satisfactory explanation concerning why the affidavit now sought to be used was not before the costs assessor, and the less than compelling additional evidence which Mr Ganke’s affidavit seeks to bring forward, in my opinion warrant that conclusion.

15   Before this Court, principally in its written submissions but to some limited extent in oral submissions, the appellant sought to expand its limited grant of leave and ground of appeal by submissions that both the costs assessor and the master had erred in law by failing to give adequate reasons for their respective decisions. In one part of the written submissions a reference is made to a failure to accord procedural fairness. The master expressly recorded that, before him, the appellant did not complain that the costs assessor gave no reasons for his determination and it is conceded that no approach has at any time been made to the costs assessor for reasons.

16 The master gave reasons from which his approach, and as it seems to me his error, can be discerned. The appellant should not be permitted to go beyond the limited ground for which leave to appeal was granted especially having regard to the small amount involved and the other matters which I earlier indicated persuade me that a proper exercise of discretion requires the refusal of leave to appeal from the costs assessor’s decision under s208M of the Act.

17   I would dismiss the appeal with costs.
18   MASON P: I agree.
19   DAVIES AJA: I also agree.