Fong bhnf Fong v Weller

The Court of Appeal of New South Wales, comprising Gleeson, Mitchelmore and Kirk JJA, considered an appeal concerning costs agreements and the judicial review of a costs assessment. The dispute arose from competing costs agreements, specifically a second agreement entered into with a tutor for an incapacitated person, and the tutor's right of indemnity.

The primary legal issues before the Court were whether a right of appeal precluded judicial review, the circumstances under which a judgment made under UCPR r 36.15 could be set aside by the Court of Appeal, and the significance of written submissions in identifying issues for determination. The Court also considered the implications of an error in judicial review, particularly when that error only related to whether an applicant was liable directly or indirectly, and the importance of bringing finality to disputation.

The Court reasoned that the existence of a right of appeal does not necessarily preclude judicial review, but it is a factor to be considered. The Court affirmed that it has the power to review decisions made under UCPR r 36.15, including setting aside judgments, particularly where issues were not properly identified or argued in the court below, or where there was an absence of proper evidence. The Court emphasised the critical role of written submissions in clearly delineating the issues for the court's consideration. The Court found that an error going only to the direct or indirect liability of an applicant, without affecting the substantive dispute, was not a sufficient ground to set aside the judgment, especially when the applicant had not properly identified this error.

The Court of Appeal dismissed the summons and made no order as to costs.