Coshott v Spencer

Case [2017] NSWCA 118

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Coshott v Spencer [2017] NSWCA 118
Hearing dates:8 March 2017
Decision date: 31 May 2017
Before: Beazley ACJ at [1];
McColl JA at [111];
Simpson JA at [112]
Decision:

Summons dismissed with costs.

Catchwords:

COSTS – costs assessment under the Legal Profession Act 2004 (NSW) – appeal from determination of review panel to District Court pursuant to s 384 – application for judicial review of District Court decision – whether costs assessor had jurisdiction to determine that party was a “third party payer” within meaning of s 302A – role of costs assessor – whether jurisdiction to determine that party was a “third party payer” was reserved to Manager, Costs Assessment – role of Manager, Costs Assessment

 

STATUTORY INTERPRETATION – the Legal Profession Act 2004 (NSW), s 302A, meaning of “third party payer” – meaning of “non-associated third party payer”

 

JUDICIAL REVIEW – jurisdictional error – whether administrative officer has the power to determine whether it is acting within authority – whether costs assessor under the Legal Profession Act 2004 (NSW) had jurisdiction to determine that a party to an assessment was a “third party payer” within meaning of s 302A – whether District Court judge erred in law in holding that costs assessor had jurisdiction

 

COSTS – Chorley exception – costs assessor allowed solicitor professional costs where he was self-represented litigant – whether ‘Chorley exception’ applies in New South Wales – scope of exception

STATUTORY INTERPRETATION – construction of the Civil Procedure Act 2005 (NSW), s 98 – s 98(1)(a) provides that costs are in the discretion of the court – meaning of costs as defined in the Civil Procedure Act 2005 (NSW), s 3
Legislation Cited: Civil Procedure Act 2005 (NSW) s 98
Legal Profession Act 2004 (NSW), ss 4, 302A, 322, 327, 328, 350, 351, 352, 353, 354, 356, 357, 358, 359, 363, 367, 367A, 368, 373, 373A, 374, 379, 384, 390
Legal Profession Uniform Law (NSW), ss 171, 198
Legal Profession Uniform Law Application Act 2014 (NSW)
Supreme Court Act 1970 (NSW), s 69
Cases Cited: A & D Douglass Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690
Atlas Corporation Pty Ltd v Kalyk [2001] NSWCA 10
Baker v The Queen [1975] AC 774
Barrs v Bethell [1982] Ch 294
Bechara t/as Bechara and Company v Bates [2016] NSWCA 294
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Coleman v Power (2004) 220 CLR 1; [2004] HCA 39
Cook v Cook (1986) 162 CLR 376
Coshott v Barry [2016] NSWCA 358
Dobree v Hoffman (1986) WAR 36
Eberstaller v Poulos [2014] 87 NSWLR 394; 2014 NSWCA 211
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Federated Engine Drivers’ and Firemen’s Association of Australasia v Broken Hill Co Ltd [1911] 12 CLR 398; [1911] HCA 31
Garcia v National Australia Bank Ltd (1998) 194 CLR 395

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AGLC
Coshott v Spencer [2017] NSWCA 118
Case
[2017] NSWCA 118
Decision Date

CaseChat Overview and Summary

The case of *Coshott v Spencer* concerned an appeal from a decision of a review panel regarding a costs assessment under the *Legal Profession Act 2004* (NSW). The primary dispute involved whether a costs assessor had the jurisdiction to determine that a party was a "third party payer" as defined by section 302A of the Act, or if this determination was reserved for the Manager, Costs Assessment. The matter came before the Court of Appeal of New South Wales following an application for judicial review of a District Court decision.

The central legal issues before the Court of Appeal were twofold. Firstly, the Court had to determine the proper construction of section 302A of the *Legal Profession Act 2004* (NSW) and the meaning of "third party payer" and "non-associated third party payer" within that provision, specifically in relation to the jurisdiction of a costs assessor. Secondly, the Court considered whether a costs assessor possessed the power to determine their own jurisdiction in this regard, and if the District Court judge had erred in law by finding that the costs assessor did have such jurisdiction. A related issue, though not the primary focus of the appeal, concerned the application of the *Chorley* exception to allow a self-represented litigant to recover professional costs, and whether this exception applied in New South Wales.

The Court of Appeal found that the costs assessor did not have the jurisdiction to determine that a party was a "third party payer" under section 302A of the *Legal Profession Act 2004* (NSW). The Court reasoned that this was a matter reserved for the Manager, Costs Assessment, and that the costs assessor had acted outside their statutory authority by making such a determination. This constituted a jurisdictional error. The Court also considered the *Chorley* exception, noting that it had not been adopted in New South Wales and that the definition of "costs" under the *Civil Procedure Act 2005* (NSW) did not extend to professional costs for a self-represented litigant in the absence of specific legislative provision.

The summons for judicial review was dismissed, and the appellant was ordered to pay the costs of the proceedings.

Orders

Orders of the court

Summons dismissed with costs.

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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