Ferguson v Singler (No 2) - [2015] NSWSC 891

Supreme Court

New South Wales

Medium Neutral Citation: Ferguson v Singler (No 2) [2015] NSWSC 891
Hearing dates: 20 November 2014
Decision date: 07 July 2015
Jurisdiction: Common Law
Before: Button J
Decision:
(1) The certificate of the costs review panel of 12 June 2013 in costs review 2012/148107 is set aside.
(2) The matter is remitted to a costs review panel to be determined in accordance with law.
(3) Costs are reserved.
(4) The parties have liberty to approach my Associate within two weeks of today to set a mutually convenient hearing date for a short costs hearing before me.
(5) The parties are to provide written submissions of no more than three pages in length about the question of costs by 5 PM two days before that hearing date.

Catchwords: JUDICIAL REVIEW – costs assessment – procedural fairness – documents before costs review panel without knowledge of plaintiff – adequacy of reasons of costs review panel when the two panellists disagree
Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Legal Profession Act 2004 (NSW), ss 324(1), 327(4), 353(1), 357, 358, 359, 364, 365, 367A, 370, 372, 373, 374, 375, 376, 378, 380, 383, 384
Legal Profession Act 1987 (NSW)
Legal Profession Regulation 2005 (NSW), cll 126, 126, 128, 132, 134
Cases Cited: Bobb v Wombat Securities Pty Ltd & Ors [2013] NSWSC 757
Bobb v Wombat Securities Pty Ltd (No 2) [2014] NSWCA 261
Ferguson v Singler (Supreme Court (NSW), 20 November 2014, unrep)
Frost v Karouche [2014] NSWCA 39
Levy v Bergseng [2008] NSWSC 294
Re Minister for Immigration; ex parte Lam [2003] HCA 6; 214 CLR 1
Singler v Ferguson [2010] NSWCA 325
Stead v State Government Insurance [1986] HCA 54, (1986) 161 CLR 141
Category: Principal judgment
Parties: Jeffrey Ferguson (Plaintiff)
Tony Singler (First Defendant)
John Eric McIntyre (Second Defendant)
Mark Campbell (Third Defendant)
Representation:
Counsel:
M Castle (Plaintiff)
E G Romaniuk SC (First Defendant)
M B Eirth (First Defendant)
Solicitors:
Moray & Agnew Lawyers (Plaintiff)
Bale Boshev Lawyers (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2013/214439

Judgment

Introduction

This is an application by the plaintiff, Mr Jeffrey Ferguson, for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) quashing a certificate issued by a costs review panel on 12 June 2013. The application calls for consideration of aspects of Pt 3.2 of the Legal Profession Act 2004 (NSW) (the Act), which is entitled “Costs Disclosure and Assessment”, as it was in April 2013, that being when the assessment by the costs review panel took place prior to the giving of reasons and the issuing of the certificate.
The second and third defendants, who were the two members of the costs review panel, entered submitting appearances. The real dispute is between the plaintiff and the first defendant, Mr Tony Singler.

Brief chronological background

On 7 April 2003, Mr Ferguson and Mr Singler were involved in a motor vehicle accident in Newcastle. They have played…

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 Ferguson v Singler (No 2)

Details

AGLC: Ferguson v Singler (No 2) [2015] NSWSC 891
Case: [2015] NSWSC 891
Decision Date: 07 July 2015

CaseChat Overview and Summary

The case of Ferguson v Singler (No 2) was heard in the Federal Court of Australia. The primary parties involved in this judicial review were Ferguson, the applicant, and Singler, the respondent. The dispute centred around the assessment of costs in a prior proceeding, with Ferguson seeking a review of the decision made by a costs review panel. The core issue was whether procedural fairness was observed during the costs assessment process and if the reasons provided by the costs review panel were adequate, especially considering the panellists' disagreement.

The court was tasked with examining whether the costs review panel acted in a manner that was procedurally fair. Specifically, it needed to determine if the panel was justified in considering documents that were not made known to Ferguson during the original costs assessment. Additionally, the court had to assess the adequacy of the reasons given by the costs review panel, particularly in light of the differing opinions between the two panellists.

In delivering its judgment, the court found that the procedural fairness was indeed compromised as the costs review panel considered documents unknown to Ferguson. This failure alone was sufficient to warrant the setting aside of the costs review decision. Furthermore, the court highlighted that the reasons provided by the costs review panel were inadequate, given the disagreement among the panellists. The reasoning process did not adequately address the concerns arising from the differing opinions, thus failing to meet the required standard of justification.

Ultimately, the Federal Court concluded that the costs review decision was flawed due to procedural unfairness and inadequate reasoning. The court set aside the costs review decision and remitted the matter for reconsideration by a different panel. The court's decision underscored the importance of procedural fairness and the need for clear, justifiable reasons in costs review proceedings.

Orders