Ferella v Stomo

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made by the Review Panel, arguing that the correct legislation governing the assessment of costs and appeals was the repealed Legal Profession Act 2004 (NSW).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The court was required to determine whether the transitional provisions of the repealed Legal Profession Act 2004 (NSW) continued to apply to the costs assessment and appeals in proceedings that were concluded prior to the commencement of the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The court found that the issue of the applicability of the repealed legislation had not been raised with the Review Panel and, therefore, was not capable of amounting to an error of law. The court further found that there was no jurisdiction to grant leave to appeal under section 385 of the repealed Legal Profession Act 2004 (NSW).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In conclusion, the court held that the transitional provisions of the repealed Legal Profession Act 2004 (NSW) did not apply to the costs assessment and appeals in proceedings that were concluded prior to the commencement of the Legal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.