Daley v Hughes

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.