Donnelly and anor. v Ross Mining NL - [1999] NSWSC 960

CITATION: Donnelly & anor. v Ross Mining NL [1999] NSWSC 960

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 11274/99

HEARING DATE(S): 6/9/99; 9/9/99; 16/9/99

JUDGMENT DATE:
23 September 1999

PARTIES :

Andrew Donnelly and David Mundine
Ross Mining NL

JUDGMENT OF: Sully J

COUNSEL : Mr. Oshlack (for Donnelly)
Mr. Mundine (in person)
Mr. Skinner (defendant)

SOLICITORS: Blake Dawson Waldron (defendant)

CATCHWORDS:

ACTS CITED: Legal Profession Act 1987 (NSW)

CASES CITED: Alister v The Queen [1984] 154 CLR 404 at 414

DECISION: As to Summons filed 26/5/99 - claim for relief in para 1 dismissed; claim for relief in para 2 struck out; appellants to pay costs. As to Notice of Motion filed 5/8/99 - dismissed with costs. As to Amended Summons filed 13/9/99 - dismissed with costs. As to Notice of Motion filed 19/8/99 - struck out with no order as to costs.

SUPREME COURT OF
NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

23 September 1999

11274/.99 - Andrew DONNELLY & David MUNDINE v ROSS MINING NL

JUDGMENT

1   HIS HONOUR: Before the Court are the following applications:

1. An application by way of Summons filed on 26 May 1999.

2. A Notice of Motion filed on 5 August 1999.

3. A Notice of Motion filed on 19 August 1999.
4. An Amended Summons filed on 13 September 1999.

2   In the Summons filed on 26 May 1999 Mr. Andrew Donnelly and Mr. David Mundine, (to whom I shall refer for the sake of convenience as “the appellants”), seek against Ross Mining NL, (to which entity I shall refer for the sake of convenience as “the respondent”), relief expressed as follows:

“1. A declaration that the solicitors for the Appellants for the purposes of the Costs assessment had acted with unsatisfactory conduct in breach of section 127(1) of The Legal Professions Act 1985.

2. An order granting the appellants Leave to Appeal for the court to hear and determine the appeal.”

3   Such a summons is subject to the requirements of SCR Pt 51A. Part 51A Rule 2(6) requires that such a summons shall be accompanied by a statement setting out the nature of the case which it is sought to make on the projected appeal; the questions involved in the projected appeal; and the reasons why leave should be given for the projected appeal. 4   Presumably in conformity with that requirement of the Rules, a document was filed on 29 July 1999. A photocopy of the document is attached, for ease of reference, to this judgment. 5   The notice of motion filed on 5 August 1999 seeks, at the instance of the appellants, the following relief:

“1 The appellants seek leave to amend the Notice of Appeal for an order that the payment of the costs being appealed from the decision of the costs assessor be stayed until the leave to appeal is determined or until further order.

2. Costs reserved.”

6   The notice of motion filed on 19 August 1999 is that of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1999] NSWSC 960
Decision Date: 23 September 1999

CaseChat Overview and Summary

The case of Donnelly and anor. v Ross Mining NL was heard in the Supreme Court of New South Wales, Common Law Division. The appellants, Andrew Donnelly and David Mundine, sought relief against Ross Mining NL, the respondent. The appellants aimed to challenge the costs assessment made by a costs assessor, Ross Graham Pannifex, and subsequently sought leave to appeal against the determination. The court had to decide on the timeliness and validity of the appellants' applications for leave to appeal.

The legal issues primarily revolved around the applicability of Section 208M of the Legal Profession Act 1987, which allows for an appeal against a costs assessor's determination. The court had to determine if the appellants' applications for leave to appeal were made within the required time frame and whether they provided sufficient grounds for the appeal. Additionally, the court examined if the appellants' claims were made out of time and if there was any practical utility in granting an extension of time for filing the applications.

The court found that the appellants failed to provide satisfactory answers to why their summons for leave to appeal was not filed within the prescribed time, and they did not demonstrate any coherent complaints against the costs assessor's rulings. The court concluded that the appellants' summons filed on 26 May 1999 was both untimely and irregularly formed. Furthermore, the appellants did not demonstrate that granting an extension of time would likely result in the approval of their appeal. Consequently, the court dismissed all applications made by the appellants and ordered them to pay the respondent's costs.

Orders