Firth v Kasumovic - [2001] NSWSC 341

CITATION: Firth v Kasumovic [2001] NSWSC 341

CURRENT JURISDICTION: Common Law Divison

FILE NUMBER(S): SC 10345 of 2001

HEARING DATE(S): 23 April 2001

JUDGMENT DATE:
3 May 2001

PARTIES :

Stephen P Firth (Plaintiff)
v
Yuri Kasumovic (Defendant)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 92313 of 1998

LOWER COURT
JUDICIAL OFFICER : Jeremy Cockle

COUNSEL : Mr R Goodridge (Plaintiff)
Mr I Todd (Defendant)

SOLICITORS: Firths
The Compensation Lawyers (Plaintiff)
McDonald Johnson (Defendant)

CATCHWORDS: Appeal from decision of Costs Assessor - scheme of the Act providing for challenge to determination or decision - distinction between determination or decision - costs agreement and unjust term - error of law and does any such error justify disturbing decision.

LEGISLATION CITED: Legal Profession Act 1987, s 175, Division 3
s 184, s 186; s 208A, s 208C, s 208D, s 208E,
s 208F, s 208J, s 208JAA; Subdivision 4A
s 208KA, s 208KB, Subdivision 4B, s 208L,
s 208M.

CASES CITED: Casaceli v Morgan Lewis, Alter and Anor [2001] NSWSC 211.
Croker v Commissioner of Taxation [2001] NSWSC 188.

DECISION: See Paragraph 23.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

THURSDAY 3 MAY 2001
10345 of 2001 STEPHEN P FIRTH v YURI KASUMOVIC

JUDGMENT

1 The plaintiff proceeds on an Amended Summons. The original Summons was filed on 7 February 2001. The plaintiff seeks to challenge what was done by a costs assessor (Mr Cockle) on 19 January 2001. He looks to s 208L of the Legal Profession Act 1987 (the Act) for relief.

2 Before proceeding further, it is convenient to briefly refer to the scheme provided by the Act enabling challenge to be made to what has been done by a costs assessor.

3 Subdivision 4A of the Act makes provision for a review of a determination by a panel. Section 208KA provides that a party to an assessment who is dissatisfied with a determination of a costs assessor, may, within 28 days after the issue of a certificate, apply to the Proper Officer of the Supreme Court for a review of the determination. Section 208KB provides that if an application for a review is duly made, the Proper Officer is to refer the application to a panel. Subdivision 4B makes provision for appeals. The provisions of s 208L and s 208M are to be found in that subdivision. Section 208L enables an appeal against a decision as to a matter of law arising in the proceedings to determine the application for assessment. Section 208M enables the granting of leave to appeal where there has been a determination.

4 The Act does not define either “decision” or “determination”. However, the Act does draw a distinction. Section 208L has application only where there has been a “decision” in the relevant sense. Apart from references to a “determination”, the word “determine” also appears in the Act. There are references to “determination” in relation to an application for…

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 Firth v Kasumovic

Details

AGLC: Firth v Kasumovic [2001] NSWSC 341
Case: [2001] NSWSC 341
Decision Date: 3 May 2001

CaseChat Overview and Summary

The matter of Firth v Kasumovic involved an appeal against the decision of a Costs Assessor. The appellant, Firth, sought to challenge the costs determination made by the Costs Assessor, which had been deemed unjust by Firth due to an alleged error of law. The case was heard in the Supreme Court of Queensland. The dispute centred around whether the Costs Assessor's decision could be successfully appealed on the basis of an error of law, and if such an error warranted disturbing the original determination.

The central legal issue before the court was the distinction between a determination or decision made under the applicable legislation and a costs agreement. Additionally, the court had to determine whether the Costs Assessor's decision constituted an unjust term under the contract and whether any error of law found in the decision warranted disturbing the original determination. The court also considered the scheme of the relevant Act, which provided a mechanism for challenging a determination or decision.

The court found that the Costs Assessor had made an error of law, but this did not justify disturbing the decision. The error of law did not impact the overall fairness or reasonableness of the determination. The court emphasised that the Act provided a specific scheme for challenging costs determinations, and an error of law alone was not sufficient grounds for disturbing the decision unless it affected the outcome. The court held that the Costs Assessor's decision, while containing an error, did not render it unjust or unreasonable, and thus the appeal was dismissed.

Orders