eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd

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Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2015] NSWCA 284
Hearing dates:19 August 2015
Decision date: 18 September 2015
Before: Beazley P at [1]; Basten JA at [11]; Simpson JA at [66]
Decision:

Application dismissed with costs.

Catchwords:

JUDICIAL REVIEW – application to quash decision of District Court – appeal to District Court from determination of costs review panel – Supreme Court Act 1970 (NSW), s 69

 

JUDICIAL REVIEW – whether primary judge erred in declining to permit appellant to amend Notice of Appeal – where solicitors’ invoice named only one of five defendants – whether costs review panel erred in awarding costs to unnamed defendants – all defendants jointly and severally liable for costs – legal liability not founded by invoice – no reviewable error of law demonstrated

 

JUDICIAL REVIEW – whether costs assessor and costs review panel erred in issuing single Certificate of Determination of Costs for two separate costs orders – Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170 – no reviewable error of law demonstrated

COSTS – whether s 60 of Civil Procedure Act 2005 (NSW) and s 364 of Legal Profession Act 2004 (NSW) required assessment of proportionality of costs – s 60 of Civil Procedure Act directed to courts – costs assessors not part of a “court” – s 364 of Legal Profession Act not expressed in terms of proportionality – “outcome” of matter not a mandatory consideration in costs assessment – Legal Profession Act s 364(2)
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 60
Evidence Act 1995 (NSW), ss 17, 190
Interpretation Act 1987 (NSW), ss 5, 8
Legal Profession Act 1987 (NSW), ss 208F, 208G
Legal Profession Act 2004 (NSW), ss 353, 359, 364, 365, 367, 367A, 368, 373, 374, 378, 384, 390
Legal Profession Regulation 2005 (NSW), cl 134
Legal Profession Uniform Law (NSW), s 172
Supreme Court Act 1970 (NSW), s 69
Cases Cited: April Fine Paper Macao Commercial Offshore Ltd v Moore Business Systems Australia Ltd [2009] NSWSC 867; 75 NSWLR 619
Brook v Reed (trustee in bankruptcy of Estate of Brook) [2011] EWCA Civ 331; [2011] 3 All ER 743
Cachia v Hanes [1994] HCA 14; 179 CLR 403
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (NSWDC, 31 March 2015, unreported)
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (NSWSC, 6 May 2013, unreported)
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd [2013] NSWSC 410
House v The King [1936] HCA 40; 55 CLR 499
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281; 65 NSWLR 151
Wende v Horwath (NSW) Pty Ltd [2014] NSWCA 170; 86 NSWLR 674
Wentworth v Rogers…
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Details
Case
[2015] NSWCA 284
Decision Date

CaseChat Overview and Summary

eInduct Systems Pty Ltd (the appellant) sought judicial review of a decision of the District Court of New South Wales, which had dismissed its appeal from a determination of a costs review panel. The underlying dispute concerned the assessment of costs awarded to certain defendants in a prior proceeding, where the appellant's solicitors' invoice had only named one of the five defendants.

The Supreme Court of New South Wales was required to determine whether the primary judge erred in refusing to allow the appellant to amend its notice of appeal. Specifically, the court had to consider whether the costs review panel had erred in awarding costs to the unnamed defendants, given that all defendants were jointly and severally liable for costs, and legal liability was not solely founded by the invoice. Further, the court considered whether the costs assessor and the costs review panel had erred by issuing a single Certificate of Determination of Costs for two separate costs orders, and whether sections 60 of the *Civil Procedure Act 2005* (NSW) and 364 of the *Legal Profession Act 2004* (NSW) mandated an assessment of the proportionality of costs.

The Court held that no reviewable error of law had been demonstrated. It reasoned that the liability for costs did not depend on the naming of a party in a solicitor's invoice, particularly where all defendants were jointly and severally liable. The Court also found that the issuance of a single certificate for multiple costs orders was not an error, referencing *Wende v Horwath (NSW) Pty Ltd*. Regarding proportionality, the Court determined that section 60 of the *Civil Procedure Act* applied to courts, not costs assessors, and that section 364 of the *Legal Profession Act* did not require an assessment of proportionality, nor was the "outcome" of the matter a mandatory consideration under that section.

The application for judicial review was dismissed, and the appellant was ordered to pay the costs of the proceedings.

Orders

Orders of the court

Application dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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