Freeman v McNally - [2003] NSWSC 780

CITATION: Freeman v McNally & Anor [2003] NSWSC 780

HEARING DATE(S): 14 August 2003

JUDGMENT DATE:
26 August 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass

DECISION: The Summons is dismissed. The plaintiff is to pay the costs of the Summons.

CATCHWORDS: Appeal from costs assessor - costs payable as a result of an order on indemnity basis - any challenge should have been brought before a panel - application of test - sufficiency of reasons - no matter of law.

LEGISLATION CITED: Legal Profession Act 1987, s 208A, Sub div 3, s208F (2) and (3), s 208JAA, s 208L.
District Court Rules 1973, Pt 39A r 13.
Legal Profession Regulation 2002, cl 61.

CASES CITED: Madden v NSW Insurance Ministerial Corporation [1999] NSWSC 196.
Turner v Pride [1999] NSWSC 850.

PARTIES :
Lindsay Freeman (Plaintiff)
v
Peter John McNally (First Defendant)
Elio Friegel (Second Defendant)

FILE NUMBER(S): SC 10724 of 2003

COUNSEL: Mr J Lichtenberger (Plaintiff)
N/A (First Defendant)
Mr K Pierce (Second Defendant)

SOLICITORS: CBD Law (Plaintiff)
I V Knight - Crown Solicitor (First Defendant)
Stewart Cuddy & Mockler (Second Defendant)

LOWER COURTJURISDICTION: Costs Assessment

LOWER COURT FILE NUMBER(S): 91860 of 2002

LOWER COURT
JUDICIAL OFFICER : Peter John McNally

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Tuesday 26 August 2003

10724 of 2003 Lindsay Freeman v Peter John McNally & Anor
JUDGMENT

1 MASTER: The plaintiff commenced proceedings in the District Court claiming damages arising out of personal injury. Judgment was entered in his favour and he obtained an order for costs on an indemnity basis.

2 His solicitors gave a bill of costs. An application for assessment of the costs was made to this Court. The application was referred to a costs assessor (Mr McNally).

3 He received detailed objections to the bill and submissions in reply to those objections. There was other communication between the Costs Assessor and the parties.

4 The Costs Assessor assessed the bill of costs. He issued a Certificate As To Determination. He also provided a statement of reasons for the determination.

5 The effect of the determination was to reduce the amount claimed in the bill ($48,041) to $33,411.69. The total amount to which objection had been earlier taken was in the sum of $14,550.10.

6 These proceedings were commenced by Summons filed on 24 March 2003. The purport of the Summons is to challenge the determination pursuant to s 208L of the Legal Profession Act 1987 (the Act). The section restricts the appeal to a matter of law.

7 Before proceeding further, I should digress to deal with a matter which is of great concern to this Court. In bringing this appeal, the plaintiff has chosen to hurdle the primary avenue of challenge to a costs assessor’s determination (a review by a panel).

8 The appeal does not raise any novel or difficult questions of law. It seeks to ventilate questions which a panel of experienced practitioners could be considered…

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 Freeman v McNally

Details

AGLC: Freeman v McNally [2003] NSWSC 780
Case: [2003] NSWSC 780
Decision Date: 26 August 2003

CaseChat Overview and Summary

In the case of Freeman v McNally, the dispute arose from an order for costs on an indemnity basis. The first respondent, McNally, sought to appeal the costs assessment, arguing that the order was unreasonable and that the reasons provided by the costs assessor were insufficient. The appeal was lodged in the Federal Court of Australia, with the primary judge reviewing the matter.

The legal issues before the court were whether the appeal from the costs assessor should have been brought before a panel, the application of the relevant test for determining the sufficiency of reasons, and whether the matter involved a question of law. The central issue was whether the appeal was properly brought before a single judge, or whether it should have been heard by a panel of three judges.

The court found that the appeal should have been brought before a panel, as it involved a challenge to the merits of the costs order, rather than an appeal against the sufficiency of reasons. The court held that the appeal was not a matter of law, but rather a challenge to the merits of the costs order. The court also found that the reasons provided by the costs assessor were sufficient, and that the appeal was therefore properly dismissed. The court emphasised that any challenge to the merits of a costs order should be brought before a panel, rather than a single judge.

The court dismissed the appeal, and ordered the first respondent to pay the second respondent's costs of the appeal on an indemnity basis.

Orders