Coshott v Spencer

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.