Legal Research
Cases
Gazecki v McCabes Lawyers Pty Ltd

Gazecki v McCabes Lawyers Pty Ltd

Link copied

Case Copied 26 May 2020 23 min read

Contents

On this page

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98
Hearing dates: 19 May 2020
Date of orders: 26 May 2020
Decision date: 26 May 2020
Before: Basten JA at [1];
Leeming JA at [46];
Simpson AJA at [47]
Decision:
(1)   In matter 2019/344193 (leave to appeal):
(a)   Dismiss the summons filed on 9 January 2020;
(b)   Order that the applicant pay the respondent’s costs of the summons.
(2)   In matter 2020/5071 (judicial review):
(a)   Dismiss the summons for judicial review filed 7 January 2020;
(b)   Order that the applicant pay the first respondent’s costs in this Court, other than the costs of the application for leave to appeal.
Catchwords:
CIVIL PROCEDURE – time – extension of time – costs assessment – statutory appeal to District Court from determination of review panel – application for leave to appeal was filed 30 days late – whether primary judge erred in law in declining to grant an extension of time

COSTS – party/party – appeals – appeal from costs assessment – nature of appeal from review panel to District Court – Legal Profession Uniform Law Application Act 2014 (NSW), s 89(1)

JUDICIAL REVIEW – review of dismissal of appeal to District Court – grounds of review – whether errors of law on the face of the record limited to non-jurisdictional errors of law
STATUTORY INTERPRETATION – amendment and repeal – changes to provisions governing appeals from costs assessments – relevance of other legislative provisions – applicability of decisions considering earlier statutory regimes
Legislation Cited:
Courts and Crimes Legislation Amendment Act 2008 (NSW), Sch 14
District Court Act 1973 (NSW), ss 8, 127
Legal Practitioners Act 1898 (NSW), s 35
Legal Profession Act 1987 (NSW), ss 208F, 208G, 208L, 208M
Legal Profession Act 2004 (NSW), ss 384, 395
Legal Profession Uniform Law Application Act 2014 (NSW), ss 85, 89, 167, 178
Supreme Court Act 1970 (NSW), s 69
Supreme Court Rules 1970 (NSW), rr 60, 61, 62; Pt 52
Uniform Civil Procedure Rules 2005 (NSW), rr 50.2, 50.3, 59.10
Cases Cited:
Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Coshott v Crouch (2017) 253 FCR 413; [2017] FCAFC 135
Farrar v Julian-Armitage [2015] QCA 289
Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
Schweppes’ Ltd v Archer (1934) 34 SR 178
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170

Texts Cited:
M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017)

NSW…

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.

Keep reading for free

Create a free CaseChat account to read Gazecki v McCabes Lawyers Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWCA 98
Decision Date: 26 May 2020

CaseChat Overview and Summary

The applicant, Gazecki, sought to appeal a decision of a review panel concerning a costs assessment. The primary judge had declined to grant an extension of time for Gazecki to file an application for leave to appeal to the District Court, which was filed 30 days late. Gazecki then sought judicial review of the primary judge's decision. The appeal before the Court of Appeal concerned whether the primary judge erred in law by refusing the extension of time.

The central legal issues before the Court of Appeal were whether the primary judge had erred in law in declining to grant an extension of time for the filing of the application for leave to appeal, and whether the grounds for judicial review were limited to non-jurisdictional errors of law on the face of the record. The Court also considered the nature of a statutory appeal from a costs review panel to the District Court under the Legal Profession Uniform Law Application Act 2014 (NSW), and the relevance of legislative amendments and earlier statutory regimes to the interpretation of the current provisions.

The Court of Appeal held that the primary judge had not erred in law in refusing the extension of time. It was noted that the applicant had not demonstrated a sufficient basis for the delay, and that the statutory appeal to the District Court was not a broad appeal on the merits but rather an appeal on questions of law. The Court further clarified that judicial review in this context was not limited to non-jurisdictional errors of law on the face of the record, but that the applicant had failed to establish any such error. The Court also considered the impact of legislative changes on the appeal process.

Consequently, the Court of Appeal dismissed the summons for leave to appeal and the summons for judicial review. The applicant was ordered to pay the respondent's costs of the summons for leave to appeal and the respondent's costs in the Court of Appeal, excluding the costs of the application for leave to appeal.

Orders

Orders of the court

(1) In matter 2019/344193 (leave to appeal):

(a) Dismiss the summons filed on 9 January 2020;

(b) Order that the applicant pay the respondent’s costs of the summons.

(2) In matter 2020/5071 (judicial review):

(a) Dismiss the summons for judicial review filed 7 January 2020;

(b) Order that the applicant pay the first respondent’s costs in this Court, other than the costs of the application for leave to appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98
Hearing dates:	19 May 2020
Date of orders:	26 May 2020
Decision date:	26 May 2020
Before:	Basten JA at [1]; Leeming JA at [46]; Simpson AJA at [47]
Decision:	(1) In matter 2019/344193 (leave to appeal): (a) Dismiss the summons filed on 9 January 2020; (b) Order that the applicant pay the respondent’s costs of the summons. (2) In matter 2020/5071 (judicial review): (a) Dismiss the summons for judicial review filed 7 January 2020; (b) Order that the applicant pay the first respondent’s costs in this Court, other than the costs of the application for leave to appeal.
Catchwords:	CIVIL PROCEDURE – time – extension of time – costs assessment – statutory appeal to District Court from determination of review panel – application for leave to appeal was filed 30 days late – whether primary judge erred in law in declining to grant an extension of time COSTS – party/party – appeals – appeal from costs assessment – nature of appeal from review panel to District Court – Legal Profession Uniform Law Application Act 2014 (NSW), s 89(1) JUDICIAL REVIEW – review of dismissal of appeal to District Court – grounds of review – whether errors of law on the face of the record limited to non-jurisdictional errors of law STATUTORY INTERPRETATION – amendment and repeal – changes to provisions governing appeals from costs assessments – relevance of other legislative provisions – applicability of decisions considering earlier statutory regimes
Legislation Cited:	Courts and Crimes Legislation Amendment Act 2008 (NSW), Sch 14 District Court Act 1973 (NSW), ss 8, 127 Legal Practitioners Act 1898 (NSW), s 35 Legal Profession Act 1987 (NSW), ss 208F, 208G, 208L, 208M Legal Profession Act 2004 (NSW), ss 384, 395 Legal Profession Uniform Law Application Act 2014 (NSW), ss 85, 89, 167, 178 Supreme Court Act 1970 (NSW), s 69 Supreme Court Rules 1970 (NSW), rr 60, 61, 62; Pt 52 Uniform Civil Procedure Rules 2005 (NSW), rr 50.2, 50.3, 59.10
Cases Cited:	Amos v Monsour Pty Ltd [2009] 2 Qd R 303; [2009] QCA 65 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25 Coshott v Crouch (2017) 253 FCR 413; [2017] FCAFC 135 Farrar v Julian-Armitage [2015] QCA 289 Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 Schweppes’ Ltd v Archer (1934) 34 SR 178 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Texts Cited:	M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) NSW…