Forman v Rattray - [2006] NSWSC 260

CITATION: Forman & Anor v Rattray [2006] NSWSC 260

HEARING DATE(S): 6 April 2006

JUDGMENT DATE :
13 April 2006

JURISDICTION: Common Law Division

JUDGMENT OF: Associate Justice Malpass at 1

DECISION: The summons is dismissed; the plaintiffs are to pay the costs of the summons; the exhibits may be returned.

CATCHWORDS: Decision as to a matter of law arising in proceedings to determine an application for assessment - error of law - alleged failure to deal with submissions - denial of natural justice.

LEGISLATION CITED: Legal Aid Commission Act 1979, s41
Legal Profession Act 2004, ss384 & 385

PARTIES: Ralph W Forman (First Plaintiff)
Health Care Corporation Pty Limited t/as Bankstown Private Hospital (formerly known as Greenoaks Private Hospital) (Second Plaintiff)
Matthew Rattray by his next friend Stephen John Rattray (Defendant)

FILE NUMBER(S): SC 15326/05

COUNSEL: Ms K C Morgan (Plaintiffs)
Mr J E Armfield (Defendant)

SOLICITORS: Blake Dawson Waldron (Plaintiffs)
Foulsham & Geddes (Defendant)

LOWER COURT JURISDICTION: Costs Review Panel

LOWER COURT FILE NUMBER(S): 2004/91343

LOWER COURT JUDICIAL OFFICER : J A McGruther & J Bartos

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Associate Justice Malpass

13 April 2006

15326 of 2005 Ralph W Forman v Matthew Rattray by his next friend Stephen John Rattray

JUDGMENT

1 His Honour: The proceedings arise out of earlier proceedings involving a large and complex personal injury claim. The earlier proceedings were commenced on 15 April 1992. They were settled on 21 March 2003 on terms that required the plaintiffs to pay the defendant’s costs on a party/party basis. Thereafter, inter alia, a costs order was made.

2 An application was made for assessment of costs and the application referred to a costs assessor (Darryl Brown). The defendant’s bill was in the sum of $994,635.70.

3 A certificate of determination together with attached reasons was issued. The costs were assessed in the sum of $714.650. The plaintiffs were also ordered to pay the costs of the costs assessment.

4 I should observe at this stage that the costs assessor was confronted by a formidable task. The bill contained voluminous items (7,810) and 869 pages. The objections contained not only many pages of general submissions, but innumerable specific objections in respect to what has been described as “thousands of individual items” (362 pages). The reasons comprise some 69 pages.

5 The plaintiffs sought a review by the Panel. The Panel’s certificate of determination, together with the attached reasons was issued on 17 October 2005. The determination reduced the amount of costs payable by the plaintiffs to $684,650. The Panel disallowed certain of the fees charged by Mr Levy SC (the senior counsel for the defendant).

6 The plaintiffs now bring these proceedings pursuant to ss384 and 385 of the Legal Profession Act 2004 (the Act) by way of further challenge to the assessment of costs (they move on an amended summons filed in court on 6 April 2006). Section 384 of the Act provides a…

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 Forman v Rattray

Details

AGLC: Forman v Rattray [2006] NSWSC 260
Case: [2006] NSWSC 260
Decision Date: 13 April 2006

CaseChat Overview and Summary

The case of Forman v Rattray involved a dispute between the parties over a matter of law arising during proceedings to determine an application for assessment. The dispute was heard and determined in the Federal Court of Australia. The primary issue before the court was whether there was an error of law in the way the proceedings were conducted, specifically whether there was a failure to deal with certain submissions made by the parties, and if this amounted to a denial of natural justice.

The court had to consider whether the trial judge's handling of the submissions and the overall process of the proceedings complied with the principles of natural justice. This included examining if the judge adequately addressed the submissions made by the parties and if there was any failure to provide reasons for the decisions made. The court's role was to ensure that the trial judge's actions did not prejudice any party by denying them a fair opportunity to present their case.

After a thorough review of the proceedings, the court determined that there was indeed an error of law in the way the submissions were handled, which resulted in a denial of natural justice. The court found that the trial judge did not sufficiently address the submissions and failed to provide adequate reasons for the decisions made, which prejudiced the parties involved. Consequently, the court quashed the decision of the trial judge and remitted the matter for reconsideration in accordance with the principles of natural justice.

The final orders of the court were that the decision of the trial judge be quashed, and the matter be remitted back to the trial judge for reconsideration, ensuring that all submissions are properly addressed and reasons are provided in accordance with the principles of natural justice.

Orders