District Court
New South Wales
Medium Neutral Citation: Ferella v Stomo [2017] NSWDC 34 Hearing dates: 3 March 2017 Date of orders: 07 March 2017 Decision date: 07 March 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Summons dismissed.
(2) Costs reserved.
(3) Liberty to apply in relation to costs.Catchwords: STATUTORY CONSTRUCTION – summons appealing two costs assessment determinations of the Review Panel – transitional provisions of the Legal Profession Uniform Law (NSW), Sch 4, cl 2 – whether the repealed Legal Profession Act 2004 (NSW) continues to apply to the assessment of costs and/or costs appeals brought in the New South Wales for proceedings commenced and concluded prior to 1 July 2015 – correct legislation applicable is the repealed Legal Profession Act 2004 (NSW)
COSTS APPEALS – whether failure to raise the issue of the applicable legislation during the course of the costs assessment process amounted to an error of law and, if so, under which statutory regime – failure of plaintiffs to distinguish between s 384 and s 385 Legal Profession Act 2004 (NSW) – as to s 384, issue of applicability of the repealed legislation not raised with the Review Panel and therefore not capable of amounting to an error of law – no jurisdiction to grant leave to appeal under s 385 – alternatively, leave to appeal should not be granted under s 89(1)(a) Legal Profession Uniform Law Application Act 2014 (NSW), if that legislation were applicable to the hearing of the summons – appeal dismissedLegislation Cited: Interpretation of Legislation Act 1984 (Vic)
Legal Profession Act 2004 (NSW), ss 359, 382, 384 and 385
Legal Profession Regulation 2005 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW), ss 4, 76, 89 and 167
Legal Profession Uniform Law Application Regulation 2015 (NSW), r 59
Legal Profession Uniform Law (NSW), Sch 4, cl 2
Uniform Civil Procedure Rules 2005 (NSW), Part 50Cases Cited: Adelaide Bank Ltd v Phontos [2016] FCA 824
Aktas v Westpac Banking Corporation Ltd [2013] NSWSC 1451
Altaranesi v Sydney Local Health District (2012) 17 DCLR (NSW) 300
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (2008) 74 NSWLR 481
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55
Council of the Law Society of NSW v Gallego [2017] NSWCATOD 29
Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152
Craig v State of South Australia (1995) 184 CLR 163
eInduct Systems Pty Ltd v 3D Safety Services Pty Ltd (2015) 90 NSWLR 451
Giles Payne & Co v Penson [2016] NSWDC 72
Gorczynski v A W M Dickinson & Son [2005] NSWSC 277
Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364
McCausland v Surfing Hardware International Holdings Pty Ltd (2010) 11 DCLR (NSW) 294
Riva NSW Pty Ltd v Key Nominees Pty Ltd [2014] NSWCA 381
Wende v Horwath (NSW) Pty…
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- AGLC
- Ferella v Stomo [2017] NSWDC 34
- Case
- [2017] NSWDC 34
- Decision Date
CaseChat Overview and Summary
In Ferella v Stomo, the issue before the court was the applicability of the transitional provisions of the Legal Profession Uniform Law (NSW) to the assessment of costs and costs appeals in relation to proceedings that were initiated and concluded prior to 1 July 2015. The plaintiffs, Ferella, appealed against two costs assessment determinations made by the Review Panel, arguing that the correct legislation governing the assessment of costs and appeals was the repealed Legal Profession Act 2004 (NSW). The defendants, Stomo, contended that the costs and appeals were governed by the Legal Profession Uniform Law (NSW), which commenced on 1 July 2015.
The court was required to determine whether the transitional provisions of the repealed Legal Profession Act 2004 (NSW) continued to apply to the costs assessment and appeals in proceedings that were concluded prior to the commencement of the Legal Profession Uniform Law (NSW). The court was also required to determine whether the failure to raise the issue of the applicable legislation during the costs assessment process amounted to an error of law and, if so, under which statutory regime.
The court found that the issue of the applicability of the repealed legislation had not been raised with the Review Panel and, therefore, was not capable of amounting to an error of law. The court further found that there was no jurisdiction to grant leave to appeal under section 385 of the repealed Legal Profession Act 2004 (NSW). Alternatively, the court found that leave to appeal should not be granted under section 89(1)(a) of the Legal Profession Uniform Law Application Act 2014 (NSW), even if that legislation were applicable to the hearing of the summons. The appeal was dismissed, and costs were reserved, with liberty to apply in relation to costs.
In conclusion, the court held that the transitional provisions of the repealed Legal Profession Act 2004 (NSW) did not apply to the costs assessment and appeals in proceedings that were concluded prior to the commencement of the Legal Profession Uniform Law (NSW). The court also held that the failure to raise the issue of the applicable legislation during the costs assessment process did not amount to an error of law. The summons was dismissed, and costs were reserved, with liberty to apply in relation to costs.
The court was required to determine whether the transitional provisions of the repealed Legal Profession Act 2004 (NSW) continued to apply to the costs assessment and appeals in proceedings that were concluded prior to the commencement of the Legal Profession Uniform Law (NSW). The court was also required to determine whether the failure to raise the issue of the applicable legislation during the costs assessment process amounted to an error of law and, if so, under which statutory regime.
The court found that the issue of the applicability of the repealed legislation had not been raised with the Review Panel and, therefore, was not capable of amounting to an error of law. The court further found that there was no jurisdiction to grant leave to appeal under section 385 of the repealed Legal Profession Act 2004 (NSW). Alternatively, the court found that leave to appeal should not be granted under section 89(1)(a) of the Legal Profession Uniform Law Application Act 2014 (NSW), even if that legislation were applicable to the hearing of the summons. The appeal was dismissed, and costs were reserved, with liberty to apply in relation to costs.
In conclusion, the court held that the transitional provisions of the repealed Legal Profession Act 2004 (NSW) did not apply to the costs assessment and appeals in proceedings that were concluded prior to the commencement of the Legal Profession Uniform Law (NSW). The court also held that the failure to raise the issue of the applicable legislation during the costs assessment process did not amount to an error of law. The summons was dismissed, and costs were reserved, with liberty to apply in relation to costs.
Orders
Orders of the court
(1) Summons dismissed.
(2) Costs reserved.
(3) Liberty to apply in relation to 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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