Ghosh v Miller - [2016] NSWSC 430

Supreme Court

New South Wales

Medium Neutral Citation: Ghosh v Miller [2016] NSWSC 430
Hearing dates: 24 March 2016
Decision date: 14 April 2016
Before: Fullerton J
Decision:
Amended summons dated 17 December 2014 dismissed.

Catchwords: APPEAL FROM LOCAL COURT – costs – costs review panel – application for leave to appeal from determination of costs review panel – whether Magistrate erred in dismissing the plaintiff’s application for leave to appeal
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 2004 (NSW) (since repealed)
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: House v The King HCA 40; 55 CLR 499
Category: Principal judgment
Parties: Ratna Ghosh (Plaintiff)
Rodney Miller (Defendant)
Representation:
Counsel:
In person (Plaintiff)
M Maconachie (Defendant)
Solicitors:
In person (Plaintiff)
Higgins & Dix (Defendant)

File Number(s): 2014/333115
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court

Date of Decision:

17 December 2014

Before:

Atkinson LCM

File Number(s):

2014/247066

Judgment

HER HONOUR: By amended summons dated 17 December 2014, the plaintiff seeks leave to appeal the decision of Atkinson LCM dismissing the plaintiff’s application for leave to appeal the decision of a costs review panel (“the Review Panel”). As with the original costs assessment and the plaintiff’s application for a review of that assessment by the Review Panel, the appeal is governed by the provisions of Div 11 of Part 3.2 of the Legal Profession Act 2004 (NSW) (since repealed).
Section 385(2) of the Act provides:

A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.

The relief sought by summons effectively seeks an order that:

(i) The decision of the Magistrate of 3 November 2014 refusing leave to appeal the Review Panel’s decision be set aside;

(ii) The costs order made on 8 December 2014 as a consequence of the refusal of the grant of leave also be set aside;

(iii) An order that all proceedings in the Local Court involving the parties also be stayed; and

(iv) An order is also sought for an award of costs in the plaintiff’s favour in these proceedings.

The proceedings in this Court are said by the plaintiff to be brought pursuant to s 39(1), s 40(1) or s 40(2) of the Local Court Act 2007 (NSW).
Section 39(1) of the Local Court Act provides for an appeal from a judgment or order of the Local Court sitting in its General Division to this Court as of right, but on a question of law only. Section 40(1) provides for an appeal, involving a question of mixed fact and law but only by leave and s 40(2)(a) an appeal from an interlocutory judgment or order…

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 Ghosh v Miller

Details

AGLC: Ghosh v Miller [2016] NSWSC 430
Case: [2016] NSWSC 430
Decision Date: 14 April 2016

CaseChat Overview and Summary

The appeal by Ghosh against Miller arose from a dispute regarding costs. The matter had been previously determined in the Local Court, and Ghosh sought leave to appeal the decision of the costs review panel. The panel had dismissed Ghosh’s application for leave to appeal, leading to this appeal to the higher court. Ghosh contended that the Magistrate had erred in dismissing their application and sought to overturn the panel’s decision.

The primary legal issue before the court was whether the Magistrate had erred in dismissing Ghosh’s application for leave to appeal the determination of the costs review panel. Ghosh argued that the Magistrate had misapplied the relevant legal principles in dismissing their application. The court was required to consider whether the Magistrate’s decision was correct and whether there were any grounds for Ghosh to appeal the costs review panel's determination.

In examining the matter, the court considered the Magistrate's reasoning and the applicable legal standards. The court determined that the Magistrate had correctly assessed the application and followed the appropriate legal principles. It was found that there was no error in the Magistrate’s dismissal of Ghosh’s application for leave to appeal. Consequently, the court dismissed Ghosh’s appeal and affirmed the decision of the costs review panel. The court found that the Magistrate’s decision was well-founded and that there were no grounds to overturn the costs review panel's determination.

Orders