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Doyle v Hall Chadwick

Doyle v Hall Chadwick

Case [2012] NSWCA 175 6 June 2012

Statutory Construction

Civil Procedure

Administrative Law

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Doyle v Hall Chadwick [2012] NSWCA 175
Hearing dates: 6 June 2012
Decision date: 06 June 2012
Before: Basten JA at 1;
Macfarlan JA at 77;
Sackville AJA at 78
Decision:
(1) Dismiss the applicant's notice of motion of 25 November 2011 seeking to review the orders of Handley AJA and other decisions.
(2) In the summons seeking leave to appeal, grant the applicant an extension of time within which to file the summons, but refuse leave to appeal.
(3) Order the applicant to pay the first respondent's costs of the applicant's summons seeking leave to appeal and his motion of 25 November 2011, such costs to be assessed on the ordinary basis up to and including the day of the offer, namely 2 April 2012, and thereafter on the indemnity basis.
(4) Order the applicant to pay the Attorney's costs in this Court in the sum of $25,000 which sum includes the costs ordered by Handley AJA to be paid by the applicant to the Attorney.
[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 - civil - leave to appeal - whether appeal "as to costs only" - whether appeal relates to interlocutory orders - Supreme Court Act 1970 (NSW), s 101(2)

COSTS - against decision-maker - circumstances in which order for costs can be made against decision-maker - failure of review panel to consider all of the evidence before the costs assessor - whether serious misconduct demonstrated - whether review panel protected by statute - whether review conducted in good faith - Legal Profession Act 2004 (NSW), s 391

COSTS - indemnity costs - offer of compromise - whether offer to forgo costs ordered below constitutes a real element of compromise - Uniform Civil Procedure Rules 2005 (NSW), rr 20.26(2), 42.15A, 51.47

COSTS - lump sum costs - whether appropriate for court to make an order for lump sum costs - whether amount sought was within a fair range - whether preventing further disputation as to quantification of costs justified order - relevance of comparison between the costs of the parties and the amount in dispute - Civil Procedure Act 2005 (NSW), s 98(4)(c)
PROCEDURE - judgments and orders - merger - circumstances in which a cause of action merges in a judgment - costs review panel affirmed decision of costs assessor - application for judicial review of decision of costs review panel - whether order quashing decision of costs review panel also quashes order of costs assessor - Legal Profession Act 2004 (NSW), Part 3.2
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60,…

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.

Continue reading Doyle v Hall Chadwick

Details

AGLC: Doyle v Hall Chadwick [2012] NSWCA 175
Case: [2012] NSWCA 175
Decision Date: 06 June 2012

CaseChat Overview and Summary

This matter concerned an appeal and a motion for review brought by the applicant, Doyle, against decisions made by a costs review panel and a costs assessor, and related orders concerning costs. The respondents were Hall Chadwick and the Attorney. The proceedings arose from a dispute over costs assessed in prior litigation.

The court was required to determine several key legal issues. These included whether the appeal was limited to costs only, and thus potentially subject to different appeal rights under section 101(2) of the *Supreme Court Act 1970* (NSW). The court also considered the circumstances under which a decision-maker, such as a review panel, could be ordered to pay costs, specifically whether the panel's failure to consider all evidence before the costs assessor, or a lack of good faith, constituted serious misconduct or was otherwise a basis for an adverse costs order, notwithstanding statutory protections. Furthermore, the court examined whether an offer to forgo costs ordered below constituted a genuine element of compromise for the purposes of indemnity costs under the *Uniform Civil Procedure Rules 2005* (NSW). Finally, the court considered the appropriateness of lump sum costs orders and the principle of merger of causes of action in judgments, particularly in the context of judicial review of a costs review panel's decision.

The court reasoned that the appeal was not solely "as to costs only" and that the applicant was entitled to an extension of time to file the summons seeking leave to appeal, but leave to appeal itself was refused. The court found that the applicant had not demonstrated grounds for reviewing the orders made by Handley AJA or other decisions. Regarding costs, the court ordered the applicant to pay the first respondent's costs on the ordinary basis up to 2 April 2012, and thereafter on the indemnity basis, reflecting an offer of compromise made on that date. The applicant was also ordered to pay the Attorney's costs in the sum of $25,000, which encompassed costs previously ordered by Handley AJA. The court did not make an order quashing the decision of the costs assessor, implying that the order quashing the decision of the costs review panel did not result in the merger of the costs assessor's order.

Orders

Orders of the court

(1) Dismiss the applicant's notice of motion of 25 November 2011 seeking to review the orders of Handley AJA and other decisions.

(2) In the summons seeking leave to appeal, grant the applicant an extension of time within which to file the summons, but refuse leave to appeal.

(3) Order the applicant to pay the first respondent's costs of the applicant's summons seeking leave to appeal and his motion of 25 November 2011, such costs to be assessed on the ordinary basis up to and including the day of the offer, namely 2 April 2012, and thereafter on the indemnity basis.

(4) Order the applicant to pay the Attorney's costs in this Court in the sum of $25,000 which sum includes the costs ordered by Handley AJA to be paid by the applicant to the Attorney.

[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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Doyle v Hall Chadwick [2012] NSWCA 175

Most Recent Citation

Rowson v Alpass [2017] VSC 401

Cases citing this decision · 5 of 5 shown

Chen v The Owners - Strata Plan No 55792
[2020] NSWSC 151 Para 31

…al (NSW), 24 July 1998, unrep) Mason P, Sheller JA agreeing. What was relevantly said in that case is recorded and explained in Doyle v Hall Chadwick [2012] NSWCA 175 at [19] by Basten JA as follows:…
Gilles v Palmieri
[2018] NSWSC 350 Para 66

…irarasa (No 2) does not refer to a decision of a costs assessor. A more relevant decision that involves a costs review panel is Doyle v Hall Chadwick [2012] NSWCA 175 (“ Doyle ”), referred to by the costs assessor.…
Glenice Bailey v Warwick La Hood
[2017] NSWSC 1469 Para 1

…being treated as genuine offers of compromise for the purposes of a Calderbank letter: see Leichardt at [30], [37] – [39] and Doyle v Hall Chadwick [2012] NSWCA 175 at [71].…
Rowson v Alpass
[2017] VSC 401 Para 1

…udsman ,[18] NSW v McMullin ,[19] and Board of Fire Commissioners of NSW v Ardouin .[20] [14][2017] NSWCATOD 2 [53]. [15][2014] NSWCATOD 136 [6]. [16][2012] NSWCA 175 [59] (Basten JA). [17][2012] FCA 83 [58], [111], [148-]-[149]. [18][2012] NSWADTAP 34. [19](1997) 153 ALR 473. [20](1961) 109 CLR 105.…
Aquaqueen International Pty Ltd v Gilles
[2014] NSWSC 804 Para 1

…self automatically render any such judgment unenforceable ( Doyle v Chadwick [2011] NSWSC 895 at [39] per Harrison AsJ, and see Doyle v Hall Chadwick [2012] NSWCA 175). The scheme of Div 11 recognises a distinction between "determinations", "certificates" and the effect of s 368(5) upon the registration of a certif…

View all 5 citing cases →

Cases cited in this decision · 16 of 16 shown

Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das
[2012] NSWCA 164 Para 1

…dgment of this Court delivered on the day of the hearing of this application: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164. Other contentions were raised in that matter, but the proposition that costs could be included in valuing the matter at issue on the appeal was reje…
Skabaw Pty Ltd v Morphett
[2011] VSC 489 Para 1

…dispute as to costs. There was therefore good reason to prevent any further disputation as to quantification of costs: see Scabaw Pty Ltd v Morphett [2011] VSC 489 at [23] (Hargrave J); Civil Procedure Act, ss 56-60.…
David Doyle v Hall Chadwick
[2011] NSWSC 895 Para 1

…recover the payment he had made. The Attorney General was joined as a party to the proceedings. The applicant was unsuccessful: Doyle v Hall Chadwick [2011] NSWSC 895 (Harrison AsJ).…
Frumar v The Owners of Strata Plan 36957
[2010] NSWCA 172

…NSWCA 63 Derrawee Pastoral Company Pty Ltd v McConochie [1995] NSWCA 123 Doyle v Hall Chadwick [2007] NSWCA 159 Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Kara Kar Holdings Pty Ltd v Brookton Holdings No 5 Pty Ltd [1997] NSWCA 171 Kumar v Mitchell (1991) 32 FCR 1…
Doyle v Hall Chadwick
[2007] NSWCA 159 Para 1

…respondent succeeded: see Hall Chadwick v Doyle [2006] NSWSC 1195. The applicant's appeal to the Court of Appeal was dismissed: Doyle v Hall Chadwick [2007] NSWCA 159. The applicant was ordered to pay Hall Chadwick's costs in the Common Law Division and the Court of Appeal. Hall Chadwick then set about recovering t…
Hall Chadwick v Doyle
[2006] NSWSC 1195 Para 1

…osts assessor found in favour of the applicant, but an appeal to the Common Law Division by the first respondent succeeded: see Hall Chadwick v Doyle [2006] NSWSC 1195. The applicant's appeal to the Court of Appeal was dismissed: Doyle v Hall Chadwick [2007] NSWCA 159. The applicant was ordered to pay Hall Chadwick'…
Magistrates' Court of Victoria at Heidelberg v Robinson
[2000] VSCA 198 Para 1

…d to pay costs, set out in the judgment of Brooking JA (Charles and Buchanan JJA agreeing) in Magistrates' Court of Victoria at Heidelberg v Robinson [2000] VSCA 198; 2 VR 233. That case did not turn upon any statutory immunity. The Court held that a magistrate could be the subject of a costs order if the conduct…
Council of the Municipality of Woollahra v Sved
[1998] NSWCA 63 Para 1

…It was submitted that the obligation to take such a course derived from the judgment of this Court in Council of the Municipality of Woollahra v Sved [1998] NSWCA 63.…
Kara Kar Holdings Pty Ltd v Brookton Holdings
[1997] NSWCA 171 Para 1

…ity to the contrary in this country. That approach was further followed by a Full Court in Kara Kar Holdings Pty Ltd v Brookton Holdings No 5 Pty Ltd [1997] NSWCA 171 (Sheller, Powell and Beazley JJA). Thus, at 13(5) Beazley JA stated:…
Derrawee Pastoral Company Pty Limited v McConochie
[1995] NSWCA 123 Para 1

…or a separate and additional reason, namely that the judgment below was interlocutory: s 101(2)(e). In Derrawee Pastoral Company Pty Ltd v McConochie [1995] NSWCA 123 a question arose as to whether leave was required to appeal against orders made in oppression proceedings where orders had been made requiring that t…
Chamberlain v Deputy Commissioner of Taxation
[1988] HCA 21 Para 1

…r v Curran [1939] HCA 23; 62 CLR 464 at 532 (Dixon J) applied in many subsequent authorities, including Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 502 at 507. However, the critical condition for that result is that the cause of action has passed into judgment, which judgment is standing…
Jones v Dunkel
[1959] HCA 9 Para 1

…the materials required for the purpose of the review which were not before them, sought to call in aid the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298 to invite this Court to infer misfeasance from a failure to file evidence explaining why inferences of bad faith should not be drawn. There is no nee…
Jones v Dunkel
[1959] HCA 8 Para 1

…g to identify the materials required for the purpose of the review which were not before them, sought to call in aid the principles in Jones v Dunkel [1959] HCA 8; 101 CLR 298 to invite this Court to infer misfeasance from a failure to file evidence explaining why inferences of bad faith should not be drawn. Th…
Wishart v Fraser
[1941] HCA 8 Para 1

…Somewhat closer to the present circumstances is the principle in Wishart v Fraser [1941] HCA 8; 64 CLR 470. That case involved an application for prohibition against an order of a magistrate convicting an offender in circumstances where he had appealed the conviction to a Court of Quarter Sessions, which had co…
Blair v Curran
[1939] HCA 23 Para 1

…alogy from the established doctrine that a cause of action merges in a judgment and thereafter no longer has an independent existence: Blair v Curran [1939] HCA 23; 62 CLR 464 at 532 (Dixon J) applied in many subsequent authorities, including Chamberlain v Deputy Commissioner of Taxation [1988] HCA 21; 164 CLR 5…
Glen v Union Trustee Company of Australia Limited
[1936] HCA 4

…ement to appeal as of right. This was accepted by the High Court when appeals lay to that Court as of right: Glen v Union Trustee Co of Australia Ltd (1936) 54 CLR 463, 466-7 ...."…

Legislation cited in this decision · 5

Legal Profession Act 2004 (Vic)
368, 373, 374, 377, 382, 391 7 mentions (from Para 1)
Supreme Court Act 1970 (NSW)
101, 101(2), 101(2)(c), 46, 46B, 69 7 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
20.26, 20.26(2), 42.15A, 51.47 5 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
56, 98(4)(c) 2 mentions (from Para 1)
Interpretation Act 1987 (NSW)
48 2 mentions (from Para 1)

Medium Neutral Citation:	Doyle v Hall Chadwick [2012] NSWCA 175
Hearing dates:	6 June 2012
Decision date:	06 June 2012
Before:	Basten JA at 1; Macfarlan JA at 77; Sackville AJA at 78
Decision:	(1) Dismiss the applicant's notice of motion of 25 November 2011 seeking to review the orders of Handley AJA and other decisions. (2) In the summons seeking leave to appeal, grant the applicant an extension of time within which to file the summons, but refuse leave to appeal. (3) Order the applicant to pay the first respondent's costs of the applicant's summons seeking leave to appeal and his motion of 25 November 2011, such costs to be assessed on the ordinary basis up to and including the day of the offer, namely 2 April 2012, and thereafter on the indemnity basis. (4) Order the applicant to pay the Attorney's costs in this Court in the sum of $25,000 which sum includes the costs ordered by Handley AJA to be paid by the applicant to the Attorney. [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 - civil - leave to appeal - whether appeal "as to costs only" - whether appeal relates to interlocutory orders - Supreme Court Act 1970 (NSW), s 101(2) COSTS - against decision-maker - circumstances in which order for costs can be made against decision-maker - failure of review panel to consider all of the evidence before the costs assessor - whether serious misconduct demonstrated - whether review panel protected by statute - whether review conducted in good faith - Legal Profession Act 2004 (NSW), s 391 COSTS - indemnity costs - offer of compromise - whether offer to forgo costs ordered below constitutes a real element of compromise - Uniform Civil Procedure Rules 2005 (NSW), rr 20.26(2), 42.15A, 51.47 COSTS - lump sum costs - whether appropriate for court to make an order for lump sum costs - whether amount sought was within a fair range - whether preventing further disputation as to quantification of costs justified order - relevance of comparison between the costs of the parties and the amount in dispute - Civil Procedure Act 2005 (NSW), s 98(4)(c) PROCEDURE - judgments and orders - merger - circumstances in which a cause of action merges in a judgment - costs review panel affirmed decision of costs assessor - application for judicial review of decision of costs review panel - whether order quashing decision of costs review panel also quashes order of costs assessor - Legal Profession Act 2004 (NSW), Part 3.2
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-60,…