Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182 Hearing dates: 20 July 2023 Decision date: 10 August 2023 Before: Leeming JA at [1];
Stern JA at [76];
Simpson AJA at [77]Decision: 1. Grant leave to Coal & Allied to amend its summons in terms of the draft supplied on 26 July 2023.
2. Set aside order 3 made by the District Court on 8 February 2023.
3. Direct the parties to file and serve, within 14 days of today, an agreed form of Certificate of Determination of Appeal which should issue in lieu of that issued by the District Court in accordance with these reasons, or in default of agreement, each side to file and serve within 14 days of today forms of certificates for which they contend and short submissions in support, with a view to any remaining dispute being resolved on the papers.
4. Coal & Allied to pay Mr Crossley’s costs in the Court of Appeal.
Catchwords: COSTS – fixed costs – perusing and scanning documents – schedule of costs identified $15 per page for perusing court documents, and $36 per page for scanning documents not necessary to peruse – previous versions of schedule identical in every respect except rate for scanning documents $3 per page – whether schedule read literally was absurd and irrational and irreconcilable to purpose of fixing fair and reasonable costs – power of court to correct obvious typographical mistakes in legislation considered – consideration of meaning of “scanning” and “perusing” and “examining” documents
STATUTORY CONSTRUCTION – correction of obvious typographical mistakes in legislation – nature of power to construe erroneous text so as to correct obvious drafting error – whether the fact that literal meaning of legislation be capable of being applied prevented error from being corrected – whether sufficient in order to construe legislation so as to correct a mistake that mistake be obvious and intended text obvious – whether necessary also for literal operation to be absurd and irrational and irreconcilable to purpose
Legislation Cited: Interpretation Act 1987 (NSW), ss 3, 32
Legal Profession Amendment (Transitional Provisions) Regulation 2002 (NSW), item 4 of Sch 1
Legal Profession Regulation 1994 (NSW), Pt 1 of Sch 2
Legal Profession Regulation 2002 (NSW), Pt 1 of Sch 2
Legal Profession Regulation 2005 (NSW), Pt 1 of Sch 3
Legal Profession Uniform Law Application Act 2014 (NSW), ss 59, 87, 89
Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 25, Pt 1 of Sch 2
Rules of the Supreme Court (Costs) 1915 (NSW), r 36
Subordinate Legislation Act 1989 (NSW), ss 10, 11
Supreme Court Act 1970 (NSW), ss 48, 69
Workers Compensation Regulation 2016 (NSW), cl 131
Cases Cited: Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166
Amirbeaggi v EB [2023] NSWCA 108
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- AGLC
- Coal & Allied Operations Pty Ltd v Crossley [2023] NSWCA 182
- Case
- [2023] NSWCA 182
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court of Appeal was whether the District Court had correctly interpreted the relevant cost schedule, or if the schedule contained an obvious typographical error that the court was empowered to correct. This involved considering the meaning of terms such as "scanning" and "perusing" in the context of legal costs, and whether a literal interpretation of the schedule, which resulted in a significantly higher scanning fee than a previous version, rendered the schedule absurd and irreconcilable with its purpose of fixing fair and reasonable costs. The court also considered the principles governing the correction of obvious drafting errors in legislation.
The Court of Appeal found that the schedule, as applied literally, contained an obvious and irrational error. It reasoned that the significant increase in the scanning rate, from $3 to $36 per page, when compared to the perusing rate of $15 per page, and the absence of any logical justification for such a disparity, indicated a clear typographical mistake. The court held that where a drafting error is obvious and the intended text is also obvious, the court has the power to correct the error to give effect to the evident purpose of the legislation, even if a literal application is technically possible. Consequently, the court granted leave to amend the summons, set aside the District Court's order regarding costs, and directed the parties to agree on a corrected Certificate of Determination of Appeal, or to make submissions for the court to resolve any remaining dispute. Coal & Allied was ordered to pay Mr Crossley’s costs in the Court of Appeal.
Orders
Orders of the court
1. Grant leave to Coal & Allied to amend its summons in terms of the draft supplied on 26 July 2023.
2. Set aside order 3 made by the District Court on 8 February 2023.
3. Direct the parties to file and serve, within 14 days of today, an agreed form of Certificate of Determination of Appeal which should issue in lieu of that issued by the District Court in accordance with these reasons, or in default of agreement, each side to file and serve within 14 days of today forms of certificates for which they contend and short submissions in support, with a view to any remaining dispute being resolved on the papers.
4. Coal & Allied to pay Mr Crossley’s costs in the Court of Appeal.
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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