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 50.3Cases 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 288Category: Principal judgment Parties: Geraldine Anne Daley (First Applicant / Appellant)
Timothy Daley (Second…
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- AGLC
- Daley v Hughes [2014] NSWCA 268
- Case
- [2014] NSWCA 268
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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