Coshott v Parker - [2015] NSWSC 197

Supreme Court

New South Wales

Medium Neutral Citation: Coshott v Parker [2015] NSWSC 197
Hearing dates: 5 February 2015
Date of orders: 12 March 2015
Decision date: 12 March 2015
Jurisdiction: Common Law
Before: Hall J
Decision:
Plaintiff’s Notice of Motion filed 15 October 2014 dismissed.

Catchwords:
CIVIL PROCEDURE – Costs assessment – Scheme for costs assessment in Legal Profession Act 2004 – Determination of cost assessor referred to Review Panel –Certificate of Determination of Costs issued by costs assessor and filed in court – whether filing of Certificate impermissible while review taking place – whether filing of Certificate while review taking place amounted to an illegality or procedural irregularity – whether filing of certificate should be set aside.

STATUTORY INTERPRETATION – Legal Profession Act 2004 – Effect on Certificate filed under s 368(5) of referral to Review Panel under Subdivision 5 – Relationship between s 377(1) and filing of certificate under s 368(5) – Whether s 377(1) prohibits or qualifies the filing of a certificate under s 368(5).
CONSTITUTIONAL LAW – Principle in Kable v DPP – whether costs assessment scheme provided for in s 368(5) Legal Profession Act 2004 compromises institutional integrity of Chapter III Courts – whether costs assessment scheme incompatible with exercise by Supreme Court of New South Wales of federal judicial power pursuant to Ch III Constitution – Constitutional validity of s 368(5) Legal Profession Act – whether s 368(5) a valid legislative enactment of New South Wales Parliament.
Legislation Cited: Civil Procedure Act 2005
Legal Profession Act 2004
Cases Cited: Attorney-General (NT) v Emmerson (2014) 307 ALR 174
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Category: Principal judgment
Parties: Ljiljana Coshott (Plaintiff)
Michelle Lena Parker (First Defendant)
Christina Marie Collins (Second Defendant)
Attorney-General for the State of New South Wales (Intervener)
Representation:
Counsel:
O Jones (Plaintiff)
M Castle; S J Roulstone (Defendants)
S Robertson (Intervener)
Solicitors:
B Hocking (Plaintiff)
Hicksons (Defendants)
Crown Solicitor (Intervener)

File Number(s): 2012/388476

Judgment

Facts

These proceedings concern the validity of a costs assessor’s certificate in which the plaintiff seeks an order that it be set aside. The plaintiff seeks orders (see below) on a Notice of Motion filed on 15 October 2014.
The principal proceedings were commenced in this Court by the plaintiff on 10 May 2011 by way of summons. On 28 July 2011 the plaintiff’s summons was dismissed. Schmidt J ordered that the plaintiff pay the defendants’ costs.
On 29 March 2012 the defendants filed an application for an assessment of costs payable under the costs order. On 5 September 2012 the costs assessor issued a certificate of determination of costs in the amount of $32,870.30 payable by the plaintiff to the defendants.
On 9 October 2012 the Manager, Costs Assessment, sent a Certificate of Determination of Costs and other documents to the parties.
On 7 November 2012 the plaintiff applied for a review of the assessor’s determination.
The determination was referred to a review panel on 20 November 2012. The defendants state…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Coshott v Parker

Details

AGLC: Coshott v Parker [2015] NSWSC 197
Case: [2015] NSWSC 197
Decision Date: 12 March 2015

CaseChat Overview and Summary

Coshott v Parker is a case before the court concerning an application to set aside a certificate of determination of costs filed in accordance with the Legal Profession Act 2004. The applicant argued that the filing of the certificate was improper while a review of the determination of the costs assessor was ongoing. The primary issue for the court was to determine whether the filing of a certificate of determination of costs was permissible when a referral to the Review Panel was pending. A secondary issue was whether the filing of the certificate while the review was taking place amounted to an illegality or procedural irregularity. The court also had to consider the constitutionality of the costs assessment scheme under the Legal Profession Act 2004.

The court examined the relevant provisions of the Legal Profession Act 2004 and concluded that the filing of a certificate of determination of costs was not prohibited by the Act while a referral to the Review Panel was pending. The court found that there was no inconsistency between sections 368(5) and 377(1) of the Act, and therefore, the filing of the certificate was not an illegality or procedural irregularity. The court also considered the constitutional challenge to the costs assessment scheme and found that it did not compromise the institutional integrity of Chapter III Courts or the exercise of federal judicial power by the Supreme Court of New South Wales. The court held that the costs assessment scheme was a valid legislative enactment of the New South Wales Parliament.

The court dismissed the application to set aside the certificate of determination of costs. The court found that the applicant's arguments regarding the illegality of the filing of the certificate were without merit. The court also rejected the applicant's constitutional challenge to the costs assessment scheme. The court held that the scheme was a valid exercise of legislative power by the New South Wales Parliament and did not infringe upon the powers of the federal courts. The court ordered the applicant to pay the respondent's costs of the application.

Orders