GB v EB

Case [2022] NSWDC 322 10 August 2022

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: GB v EB [2022] NSWDC 322
Hearing dates: 28 July 2022
Date of orders: 10 August 2022
Decision date: 10 August 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Refuse leave to appeal pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) and dismiss the appeal.
(2) Costs reserved with liberty to apply.

Catchwords:
COSTS ASSESSMENT APPEAL – appeal to the District Court from a Review Panel assessment of costs below the leave threshold of $25,000 contained in s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) – Summons fails to seek leave to appeal under s 89 or to include the grounds upon which leave was sought – plaintiff’s submissions on appeal fail to canvass the issue of leave or to answer the defendants’ submissions in reply in which the defendants set out the basis upon which leave, if sought, should be refused – plaintiff serves amended summons seeking leave to appeal the evening before the hearing – whether the appeal grounds involved issues of principle and/or matters of public interest – whether there were manifest errors in the determination of the Costs Assessors – application for leave refused – appeal dismissed

Legislation Cited:
Legal Profession Uniform Law Application Act 2014 (NSW) s 89
Legal Profession Uniform Law Application Regulations 2015 (NSW) r 40
Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 40 and 50.12(4)(b)

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145
Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55
Director-General, Family and Community Services Re Felicity [2012] NSWCA 272
EB v GB [2020] NSWSC 1291
Ferella v Stomo [2017] NSWCA 268
Ferella v Stomo [2017] NSWDC 34
Ferella v Stomo (No 2) [2017] NSWDC 61
Fordyce v Leung [2022] NSWCA 55
Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259
Lawrence v Sammut (No 3) [2022] NSWSC 657
Vok v DPP (NSW) [2019) NSWCA 242
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674
Windsor v Health Care Complaints Commission [2020] NSWCA 110
Wollongong City Council v Papadopoulos [2019] NSWCA 178
Woollahra Municipal Council v Sved (New South Wales Court of Appeal, unreported, 24 July 1998)
Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360

Category: Principal judgment
Parties:
Plaintiff:
GB
Defendants:
First Defendant:
EB
Second Defendant:
SB
Third Defendant:
RB
Representation:
Counsel:
Plaintiff:
Mr A Fernon SC
Defendants:
Ms J McDonald
Solicitors:
Plaintiff:
Yates Beaggi Lawyers
Defendants:
Bartier Perry Lawyers

File Number(s): 2021/00316950
Publication restriction: Court Suppression and Non-Publication Orders Act 2010 (NSW)

Judgment

Introduction

This is an appeal against determinations made by a costs assessment Review Panel that an assessed amount, interest and costs were payable by Mr GB, 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 GB v EB

Details

AGLC: GB v EB [2022] NSWDC 322
Case: [2022] NSWDC 322
Decision Date: 10 August 2022

CaseChat Overview and Summary

In the District Court of New South Wales, GB, the plaintiff, appealed against a Review Panel’s assessment of costs made below the leave threshold of $25,000 under section 89 of the Legal Profession Uniform Law Application Act 2014 (NSW). The Review Panel had determined the costs in dispute were less than the leave threshold and thus did not require leave to appeal. EB, the defendant, opposed the appeal, arguing that the plaintiff had not sought leave to appeal as required by law and that the appeal grounds did not involve issues of principle or matters of public interest.

The primary legal issue before the court was whether the plaintiff's summons for appeal was valid. The court needed to determine if the plaintiff had complied with the statutory requirement to seek leave to appeal under section 89 and whether the plaintiff's submissions on appeal adequately addressed the defendants' arguments regarding the refusal of leave. Additionally, the court considered whether there were manifest errors in the Review Panel’s determination of the costs.

The court found that the plaintiff's initial summons did not seek leave to appeal nor did it include the grounds upon which leave was sought, as required by law. Despite the plaintiff serving an amended summons the evening before the hearing, the court held that this did not remedy the procedural defect. The plaintiff's submissions on appeal also failed to address the issue of leave or respond to the defendants' arguments. The court further found that the appeal grounds did not involve issues of principle or matters of public interest, nor were there manifest errors in the Review Panel’s determination of the costs.

Accordingly, the District Court refused the plaintiff leave to appeal and dismissed the appeal. The court also reserved costs with liberty to apply.

Orders

Orders of the court

Order:

(1) Refuse leave to appeal pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) and dismiss the appeal.

(2) Costs reserved with liberty to apply.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

GB v EB [2022] NSWDC 322

Most Recent Citation

GB v EB (No 2) [2023] NSWDC 185

Cases citing this decision · 3 of 3 shown

A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers v Poche
[2023] NSWDC 551

…wski t/as Lou Baker and Associates [2022] NSWDC 309 Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 GB v EB [2022] NSWDC 322 Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 GKD18 v Minister for Home Affairs [2020] FCA 1664 Griffith v Australian Broadcasting Corporation [2013…
GB v EB (No 2)
[2023] NSWDC 185 Para 1

…erminations made by the Costs Review Panel for costs payable by the plaintiff, a solicitor, to his clients. On 10 August 2022, in my judgment GB v EB [2022] NSWDC 322, I made the following orders:…
Amirbeaggi v EB
[2023] NSWCA 108 Para 9

…25,000) for an appeal as of right under s 89(1)(a) of the Legal Profession Uniform Law Application Act 2014 (NSW) (“Application Act”). 1. GB v EB [2022] NSWDC 322.…

View all 3 citing cases →

Cases cited in this decision · 18 of 18 shown

Lawrence v Sammut (No 3)
[2022] NSWSC 657 Para 10

…d (2020) 102 NSWLR 259 at [41]); it is not a hearing de novo. The error in question may be legal, factual or discretionary ( Lawrence v Sammut (No 3) [2022] NSWSC 657). In those circumstances, while additional evidence may be permitted because the Court no longer refers matters back to the Review Panel, the content…
Fordyce v Leung
[2022] NSWCA 55 Para 55

…Appeal, in dismissing the appeal, expressed concerns about appeals over trifling sums and grounds, views that have been repeated in Fordyce v Leung [2022] NSWCA 55 at [19]; in fact, in both Vok v DPP (NSW) [2019) NSWCA 242 and Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 the Court actually s…
Young v Royal Society for the Prevention of Cruelty to Animals New South Wales
[2020] NSWCA 360 Para 32

…oulos [2019] NSWCA 178 at [48] - [53] per Leeming JA (see also Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 at [32] and Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [140]).…
EB v GB
[2020] NSWSC 1291 Para 1

…B, a solicitor, to the defendants, who were the beneficiaries of an interlocutory costs order against him. The costs order made by Robb J (in EB v GB [2020] NSWSC 1291) arose from a Notice of Motion filed by Mr GB(hereafter “the plaintiff”) in those proceedings on 3 June 2020 in relation to a request by the defendan…
Windsor v Health Care Complaints Commission
[2020] NSWCA 110 Para 32

…yal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 at [32] and Windsor v Health Care Complaints Commission [2020] NSWCA 110 at [140]).…
Gazecki v McCabes Lawyers Pty Ltd
[2020] NSWCA 98 Para 10

…ll the functions of the Review Panel. The appeal is by way of a rehearing (s 89(4)) and error must be established ( Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259 at [41]); it is not a hearing de novo. The error in question may be legal, factual or discretionary ( Lawrence v Sammut (No 3) [2022] NSWSC 657). In…
Wollongong City Council v Papadopoulos
[2019] NSWCA 178 Para 32

…ingly critical of the practice of sending “unilateral written submissions without leave” to the court: Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [48] - [53] per Leeming JA (see also Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360 at [32] and Windsor v…
Armand-Iskak v Attorney-General of New South Wales
[2019] NSWCA 145 Para 55

…n Fordyce v Leung [2022] NSWCA 55 at [19]; in fact, in both Vok v DPP (NSW) [2019) NSWCA 242 and Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 the Court actually suggested that a requirement of leave for judicial review be introduced, to overcome the problems caused by litigants seeking relief…
Ferella v Stomo
[2017] NSWCA 268 Para 37

…g of leave, not only on general principles, but also in light of specific consideration of s 89 by the Court of Appeal in Ferella v Stomo [2017] NSWCA 268.…
Ferella v Stomo (No 2)
[2017] NSWDC 61 Para 63

…led from. (I note, incidentally, an error in the LexisNexis Caselaw basis which describes the first instance costs decision of Ferella v Stomo (No 2) [2017] NSWDC 61 as being overturned; in fact, as the Court of Appeal noted at [35], the application for leave to appeal from the indemnity costs order would only hav…
Ferella v Stomo
[2017] NSWDC 34 Para 35

…idavit evidence or cogent reasons for a grant of leave had been a significant reason for refusal of leave under s 89 of the LPULAA in Ferella v Stomo [2017] NSWDC 34 at [17.5]).…
The Husband v The Public Guardian
[2016] NSWSC 1720 Para 76

…rty’s contention in a court is generally seen as an error of law or a failure of procedural fairness (see The Husband v The Public Guardian [2016] NSWSC 1720 at [76] per Slattery J). the appropriateness of the Panel ignoring submissions is an issue of principle that applies generally in all assessment matters.”…
Wende v Horwath (NSW) Pty Ltd
[2014] NSWCA 170 Para 45

…In Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674, the Court noted the entitlement of the Review Panel (whose reasons are the reasons appealed from) to adopt a costs assessor’s reasoning (at [179]). The question is whether what they have adopted is itself in error (at [156] - [161]).…
Asuzu v Council of the New South Wales Bar Association
[2012] NSWCA 406 Para 17

…used in Director-General, Family and Community Services Re Felicity [2012] NSWCA 272 (see also Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [39] - [41]). However, a court should not take an unduly rigid view about such a failure. In Asuzu v Council of the New South Wales Bar Associatio…
Director-General, Family and Community Services re Felicity
[2012] NSWCA 272 Para 17

…al made during the hearing of an objection to the competency of the appeal was refused in Director-General, Family and Community Services Re Felicity [2012] NSWCA 272 (see also Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 at [39] - [41]). However, a court should not take an unduly rigid v…
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd
[2011] NSWDC 55 Para 10

…ement to demonstrate a significant error as a ground of appeal under the repealed legislation ( Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55) is, counsel in these proceedings consider (and I agree), no longer a factor.…
Aon Risk Services Australia Ltd v Australian National University
[2009] HCA 27 Para 31

…this material caused delay at the commencement of the hearing. This was not only because late amendments to pleadings generally require explanation ( Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175) but because of the time necessary to absorb and respond to the new material.…
Tomko v Palasty (No 2)
[2007] NSWCA 369 Para 58

…“In Tomko v Palasty (No 2) [2007] NSWCA 369, Basten JA considered (at [58]) that it would generally be sufficient for the applicant to demonstrate a fairly arguable case (at least assuming there is a reasonable explanation for the delay and no significant prejudice to the opposing party). (It may be necessary to sh…

Legislation cited in this decision · 4

Legal Profession Uniform Law Application Act 2014 (Vic)
89, 89(1)(a) 3 mentions (from Para 9)
Uniform Civil Procedure Rules 2005 (NSW)
40, 50.12(4)(b) 3 mentions (from Para 20)
Legal Profession Uniform Law Application Regulations 2015 (Vic)
40 2 mentions (from Para 41)
Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention

Medium Neutral Citation:	GB v EB [2022] NSWDC 322
Hearing dates:	28 July 2022
Date of orders:	10 August 2022
Decision date:	10 August 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Refuse leave to appeal pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) and dismiss the appeal. (2) Costs reserved with liberty to apply.
Catchwords:	COSTS ASSESSMENT APPEAL – appeal to the District Court from a Review Panel assessment of costs below the leave threshold of $25,000 contained in s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) – Summons fails to seek leave to appeal under s 89 or to include the grounds upon which leave was sought – plaintiff’s submissions on appeal fail to canvass the issue of leave or to answer the defendants’ submissions in reply in which the defendants set out the basis upon which leave, if sought, should be refused – plaintiff serves amended summons seeking leave to appeal the evening before the hearing – whether the appeal grounds involved issues of principle and/or matters of public interest – whether there were manifest errors in the determination of the Costs Assessors – application for leave refused – appeal dismissed
Legislation Cited:	Legal Profession Uniform Law Application Act 2014 (NSW) s 89 Legal Profession Uniform Law Application Regulations 2015 (NSW) r 40 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 40 and 50.12(4)(b)
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Armand-Iskak v Attorney-General of New South Wales [2019] NSWCA 145 Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 Director-General, Family and Community Services Re Felicity [2012] NSWCA 272 EB v GB [2020] NSWSC 1291 Ferella v Stomo [2017] NSWCA 268 Ferella v Stomo [2017] NSWDC 34 Ferella v Stomo (No 2) [2017] NSWDC 61 Fordyce v Leung [2022] NSWCA 55 Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259 Lawrence v Sammut (No 3) [2022] NSWSC 657 Vok v DPP (NSW) [2019) NSWCA 242 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674 Windsor v Health Care Complaints Commission [2020] NSWCA 110 Wollongong City Council v Papadopoulos [2019] NSWCA 178 Woollahra Municipal Council v Sved (New South Wales Court of Appeal, unreported, 24 July 1998) Young v Royal Society for the Prevention of Cruelty to Animals New South Wales [2020] NSWCA 360
Category:	Principal judgment
Parties:	Plaintiff: GB Defendants: First Defendant: EB Second Defendant: SB Third Defendant: RB
Representation:	Counsel: Plaintiff: Mr A Fernon SC Defendants: Ms J McDonald Solicitors: Plaintiff: Yates Beaggi Lawyers Defendants: Bartier Perry Lawyers
File Number(s):	2021/00316950
Publication restriction:	Court Suppression and Non-Publication Orders Act 2010 (NSW)