Daley v Hughes

Case [2014] NSWCA 268

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Daley v Hughes [2014] NSWCA 268
Hearing dates:14 July 2014
Decision date: 18 August 2014
Before: Meagher JA at [1];
Emmett JA at [12];
Tobias AJA at [38]
Decision:

1. Grant the applicants leave to appeal.

2. Appeal allowed.

3. Set aside the orders made by Davies J on 30 August 2013 other than so much of Order 1 as dismissed the appellants' cross-summons with costs.

4. Dismiss the summons filed by the respondent in the Common Law Division of the Court on 19 March 2013.

5. The respondent to pay the appellants' costs of the summons filed on 19 March 2013 and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: APPEAL - competency of an appeal to the Common Law Division of the Supreme Court from reasons given by a costs assessor - whether the reasons constituted a "decision" within s 208L of the Legal Profession Act 1987 (NSW)
Legislation Cited: Administrative Appeals Tribunal Act 1975 (Cth), ss 44(1), 46
Commercial Tribunal Act 1994 (NSW), s 20
Consumer Credit Act 1972 (SA), s 25
Government and Related Employees Appeal Tribunal Act 1980 (NSW), s 54
Legal Profession Act 1987 (NSW), Div 2 Pt 11, Div 3 Pt 11, Div 6 Pt 11
Motor Accidents Compensation Act 1999 (NSW), s 149
Motor Accidents Compensation Regulation (No 2) 1999 (NSW), Pt 3, Sch 1
Uniform Civil Procedure Rules 2005 (NSW), Pt 28, r 50.3
Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bromley v Housing Commission of NSW (1985) 3 NSWLR 407
Clisdell v Commissioner of Police (1992) 31 NSWLR 555
Commonwealth v Bank of New South Wales (1949) 79 CLR 497
Currabubula & Paola v State Bank of New South Wales [2000] NSWSC 232
Custom Credit Corporation Ltd v Commercial Tribunal of New South Wales (1993) 32 NSWLR 489
Director-General of Social Services v Chaney [1980] FCA 87; (1980) 47 FLR 80
Hughes v Geraldine Daley trading as Colin Daley Quinn, Solicitors And Barristers [2013] NSWSC 806
Hughes v Geraldine Daley trading as Colin Daley Quinn, Solicitors And Barristers (No 2) [2013] NSWSC 1213
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32; 241 CLR 390
Mobitel (International) Pty Ltd v Dun & Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288
Category:Principal judgment
Parties: Geraldine Anne Daley (First Applicant / Appellant)
Timothy Daley (Second…

Continue reading Daley v Hughes

Sign in free to access the full text

Details
AGLC
Daley v Hughes [2014] NSWCA 268
Case
[2014] NSWCA 268
Decision Date

CaseChat Overview and Summary

The applicants, a firm of solicitors, appealed to the Common Law Division of the Supreme Court of New South Wales against a decision concerning the assessment of their legal costs. The dispute arose after the respondent, a former client, sought an assessment of the costs deducted from her settlement sum. The respondent contended that the applicants' entitlement to costs was limited by the Motor Accidents Compensation Regulation (No 2) 1999 (NSW), while the applicants argued they had validly contracted out of these limitations.

The central legal issue before the court was whether the "draft reasons" issued by a costs assessor constituted a "decision" within the meaning of s 208L of the Legal Profession Act 1987 (NSW), thereby conferring jurisdiction on the Supreme Court to hear an appeal from a primary judge's review of those reasons. Relatedly, the court had to determine whether the primary judge had jurisdiction to consider the application concerning the application of the Compensation Regulations.

The court reasoned that a clear distinction exists between an appeal as of right from a decision on a matter of law and an appeal, with leave, from a determination by a costs assessor. It was held that the primary judge lacked jurisdiction to deal with the question concerning the application of the Compensation Regulations, and consequently, the appellate court also lacked jurisdiction on that specific question. The court emphasised that neither the parties nor the assessor should assume the primary judge's conclusions on that matter were correct.

The court granted the applicants leave to appeal and allowed the appeal. The orders made by the primary judge were set aside, except for the dismissal of the appellants' cross-summons with costs. The summons filed by the respondent in the Common Law Division was dismissed, and the respondent was ordered to pay the appellants' costs of that summons and the appeal, with a certificate under the Suitors' Fund Act 1951 (NSW) available if qualified.

Orders

Orders of the court

1. Grant the applicants leave to appeal.

2. Appeal allowed.

3. Set aside the orders made by Davies J on 30 August 2013 other than so much of Order 1 as dismissed the appellants' cross-summons with costs.

4. Dismiss the summons filed by the respondent in the Common Law Division of the Court on 19 March 2013.

5. The respondent to pay the appellants' costs of the summons filed on 19 March 2013 and of the summons for leave to appeal and the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Thus, a clear distinction is drawn between an appeal as of right from a decision as to a matter of law arising in proceedings to determine an application, on the one hand, and an appeal only with leave from a determination of an application made by a costs assessor, on the other. I have had the advantage of reading in draft form the proposed reasons of Tobias AJA. I agree with his Honour, for the reasons proposed, that the primary judge had no jurisdiction to deal with the question that arose concerning the application of the Compensation Regulations. It follows that this Court also has no jurisdiction to deal with that question. I agree with Tobias AJA that neither the parties, nor the Assessor, should assume that the conclusions of the primary judge on that question are correct. I agree with the orders proposed by Tobias AJA. TOBIAS AJA: The respondent was injured in a motor vehicle accident on 31 March 2001. In July 2003 she instructed the first applicant, a solicitor, to act for her in a claim against the relevant insurer who had admitted liability on 20 June 2001. At that time, the first and second applicants were in a partnership, trading as Colin Daley Quinn. The respondent's claim was ultimately settled on or about 19 December 2011 for the sum of $750,000 inclusive of costs. From that amount the applicants deducted the sum of $240,579 to cover solicitor's costs, disbursements and counsel's fees. Having paid to the applicants an amount of $240,579, the respondent then retained a new firm of solicitors who wrote to the applicants requesting an itemised bill of costs. That bill totalled $242,655.89 and included costs, disbursements, counsel's fees and GST. Pursuant to s 199 of the Legal Profession Act 1987 (NSW) (the Act) the respondent applied to the proper officer of the Supreme Court for an assessment of the whole of the costs contained in the bill. Pursuant to s 206 that officer referred the application for assessment to a costs assessor to be dealt with under Div 6 Pt 11 of the Act. Before the costs assessor, the respondent submitted that the costs to which the applicants were entitled were limited by cl 9(1) of the Motor Accidents Compensation Regulation (No 2) 1999 (NSW) (the Regulation) to the costs set out in Sch 1 thereto and which amounted to $29,261 (though before the primary judge (Davies J), the respondent was content to adopt the figure calculated by the applicants, $33,313.19). In response, the applicants contended that they had contracted out of Sch 1 pursuant to cl 11 of the Regulation which provided as follows: The respondent accepted that the applicants had complied with sub-paragraphs (b) and (c) of cl 11(1) but asserted that they had failed to comply with sub-paragraph (a). Accordingly, they had failed to contract out of the maximum costs for the legal services allowed by cl 9(1)(a) and Sch 1 to the Regulation. On 18 February 2013 the costs assessor issued to the parties a document headed "DRAFT REASONS" (the draft reasons). Relevantly, at paragraphs 48-49 of the draft reasons he accepted the submission on behalf of the respondent that the applicants had not contracted out of the costs limitation in Sch 1 to the Regulation, but only in respect of the period prior to 14 July 2005; and that of the applicants that the costs incurred by her after that date should be allowed on the basis set out in a costs agreement of the same date into which the respondent had entered (the costs agreement). Accordingly, at paragraph 54 the costs assessor stated:

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.