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Gilles v Palmieri

Gilles v Palmieri

Case [2017] NSWCA 320 12 December 2017

Appeal

Summary Judgment

Statutory Construction

Costs

Jurisdiction

Civil Procedure

Statutory Interpretation

Commercial Law

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Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gilles v Palmieri [2017] NSWCA 320
Hearing dates: 6 November 2017
Decision date: 12 December 2017
Before: McColl JA at [1]
White JA at [2]
Barrett AJA at [8]
Decision:
(1)   Grant leave to appeal.
(2)   Direct that the applicants do within seven days file a notice of appeal in the form of the draft in the white folder.
(3)   Appeal allowed.
(4)   Set aside the following orders made in the District Court on 27 February 2017:
(a) Order that the statement of claim filed in 21 October 2016 be dismissed pursuant to rule 13.4 subrule (1)(c) of the Uniform Civil Procedure Rules 2005 (NSW).
(b)   Order that the plaintiffs pay the defendants’ costs of the notice of motion and the proceedings as agreed or assessed.
(5)   Make the following orders in lieu thereof:
(a)   Order that the notice of motion filed by the defendants on 18 November 2016 be dismissed.
(b)   Order that the defendants pay the plaintiffs’ costs of the notice of motion.
(6)   Order that the respondents pay the applicants’ costs of the application for leave to appeal and the appeal.

Catchwords:
LEGAL PROFESSION – costs – practitioner-client costs – costs assessment – first instruction for provision of legal services given before commencement of Legal Profession Act 2004 (NSW) – application for assessment of costs lodged after commencement of Legal Profession Uniform Law (NSW) – practitioners institute District Court action for recovery of costs after lodgement of application for assessment – clients apply for summary dismissal of action – application granted on the basis that a provision of the Legal Profession Act 2004 (NSW) precludes recovery proceedings while assessment in progress – which statutory regime for costs assessment applies in the circumstances – whether primary judge erred in granting summary dismissal – discussion of current and repealed legislation
STATUTORY INTERPRETATION – Legal Profession Act 2004 (NSW), clauses 18(1) and 18(3) of schedule 9 – whether the words “subject to” imply inconsistency between subclauses – construction of those words in the particular context
Legislation Cited: 3 Jac 1 c 7 (1605) (Imp)
2 Geo 2 c 23 (1729) (Imp)
11 Vict No.33 (1847) (NSW)
District Court Act 1973 (NSW)
Legal Practitioners Act 1898 (NSW)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Amendment Act 2005 (NSW)
Legal Profession Reform Act 1993 (NSW)
Legal Profession Regulation 2005 (NSW)
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 26
C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905
Cockburn v Shehadie [2013] NSWSC 758
Coshott v Barry [2012] NSWSC 850
Cross v Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS [2011] NSWCA 136
Doyle v Hall Chadwick [2007] NSWCA 159
Gilles v Palmieri [2016] NSWCA 219
Newcrest Mining (WA) Ltd…

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 Gilles v Palmieri

Details

AGLC: Gilles v Palmieri [2017] NSWCA 320
Case: [2017] NSWCA 320
Decision Date: 12 December 2017

CaseChat Overview and Summary

In *Gilles v Palmieri*, the New South Wales Court of Appeal considered an appeal from a District Court decision that had summarily dismissed a legal practitioner's claim for recovery of costs. The dispute arose when the practitioners initiated proceedings to recover their costs after their former clients had lodged an application for a costs assessment. The central question was which statutory regime governed the costs assessment process, given that the initial instruction for legal services predated the *Legal Profession Act 2004* (NSW), but the application for assessment and subsequent recovery proceedings occurred after the commencement of the *Legal Profession Uniform Law (NSW)*.

The legal issues before the Court of Appeal were whether the primary judge erred in granting summary dismissal of the practitioners' action and, more fundamentally, which statutory regime for costs assessment applied to the circumstances. This involved interpreting provisions of the *Legal Profession Act 2004* (NSW), specifically clauses 18(1) and 18(3) of Schedule 9, and considering the meaning of the words "subject to" in that context to determine if an inconsistency existed between the subclauses.

The Court of Appeal reasoned that the primary judge had erred in dismissing the practitioners' claim. The Court found that the relevant provisions of the *Legal Profession Act 2004* (NSW) did not preclude recovery proceedings while an assessment was in progress, as the primary judge had concluded. The Court determined that the application for assessment was validly made under the *Legal Profession Act 2004* (NSW), and the subsequent recovery action was permissible. The Court allowed the appeal, setting aside the District Court's orders for summary dismissal and costs, and instead dismissed the clients' notice of motion.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Direct that the applicants do within seven days file a notice of appeal in the form of the draft in the white folder.

(3) Appeal allowed.

(4) Set aside the following orders made in the District Court on 27 February 2017:

(a) Order that the statement of claim filed in 21 October 2016 be dismissed pursuant to rule 13.4 subrule (1)(c) of the Uniform Civil Procedure Rules 2005 (NSW).

(b) Order that the plaintiffs pay the defendants’ costs of the notice of motion and the proceedings as agreed or assessed.

(5) Make the following orders in lieu thereof:

(a) Order that the notice of motion filed by the defendants on 18 November 2016 be dismissed.

(b) Order that the defendants pay the plaintiffs’ costs of the notice of motion.

(6) Order that the respondents pay the applicants’ costs of the application for leave to appeal and the appeal.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Gilles v Palmieri [2017] NSWCA 320

Most Recent Citation

Gilles v Palmieri [2018] NSWSC 350

Cases citing this decision · 3 of 3 shown

Ramsay v Gatland
[2022] NSWSC 1514 Para 35

…As discussed in Gilles v Palmieri [2017] NSWCA 320 at [31], there in the context of predecessor legislation, “statutory provisions must be construed in a way that causes the statute to operate as a coherent whole” citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, at…
In the Matter of ACN 092 745 330 Pty Ltd
[2018] NSWSC 1185 Para 61

…, and that the step of deciding such an issue on an interlocutory basis should be taken only in the “clearest of cases” ( Gilles v Palmieri [2017] NSWCA 320 at [43] per Barrett AJA (with whom McColl and White JJA agreed)).…
Gilles v Palmieri
[2018] NSWSC 350 Para 26

…On 12 December 2017, in Gilles v Palmieri [2017] NSWCA 320 (“ Gilles ”), Barrett AJA (with McColl and White JJA substantially agreeing) upheld the firm’s appeal from Robison DCJ’s decision to dismiss the proceedings commenced by the firm in the second District Court proceedings.…

View all 3 citing cases →

Cases cited in this decision · 14 of 14 shown

Preston v Nikolaidis
[2017] NSWSC 1527 Para 44

…nour was in fact dealing with a matter under the 1987 Act). The same question arises under s 198(7) of the Uniform Law. In Preston v Nikolaidis [2017] NSWSC 1527 (17 November 2017) at [290], Slattery J endorsed the conclusion of McCallum J that resort by a lawyer to the costs assessment system under the 1987 Act doe…
Gilles v Palmieri
[2016] NSWCA 219 Para 15

…fusal to extend the time for service of a statement of claim dated 27 November 2014 by which the applicants sued for those costs: Gilles v Palmieri [2016] NSWCA 219. One of the issues recognised but not addressed in that case was the issue now before us as to the applicable legislation.…
Wende v Horwath (NSW) Pty Ltd
[2014] NSWCA 170 Para 5

…depending upon the nature of the issue that is raised under the Limitation Act 1969 (NSW). In Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Barrett JA said (at [222]) that:…
Cockburn v Shehadie
[2013] NSWSC 758 Para 44

…ll be open to the costs assessor to entertain and deal with any argument that the applicants’ right of recovery is time-barred: Cockburn v Shehadie [2013] NSWSC 758 at [40]; Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [222]. If the recovery action commenced on 21 October 2016 is extant wh…
Coshott v Barry
[2012] NSWSC 850 Para 44

…t day will no doubt be taken into account by the assessor in evaluating the limitation issue. [13] 13. As McCallum J pointed out in Coshott v Barry [2012] NSWSC 850 at [21], the fact that s 355(b) of the 2004 Act precludes recovery action pending completion of a costs assessment already commenced raises “an excitin…
Agusta Pty Ltd v Provident Capital Ltd
[2012] NSWCA 26 Para 40

…f correction will result if the error in the decision below is not corrected: Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 26 at [13]. That leads to a consideration of the position the applicants will occupy if their District Court action is reinstated and allowed to proceed…
Cross v Certain Lloyds Underwriters
[2011] NSWCA 136 Para 25

…the time at which the first instruction is given. There was discussion in Cross v Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS [2011] NSWCA 136 at [19]-[20] about the meaning of “matter” in this and other areas of the 2004 Act. The view expressed by Basten JA was that, in clause 18(1) of schedule…
Doyle v Hall Chadwick
[2007] NSWCA 159 Para 6

…r the procedures for costs assessment and the powers of the costs assessor are inapt or inadequate to deal with such an issue ( Doyle v Hall Chadwick [2007] NSWCA 159 at [61] per Hodgson JA).…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 31

…the statute to operate as a coherent whole. In an often quoted passage in their judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ said (at 381-382):…
Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 28 Para 31

…ate as a coherent whole. In an often quoted passage in their judgment in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, McHugh, Gummow, Kirby and Hayne JJ said (at 381-382):…
Newcrest Mining (WA) Ltd v the Commonwealth
[1997] HCA 38

…[2007] NSWCA 159 Gilles v Palmieri [2016] NSWCA 219 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 Preston v Nikolaidis [2017] NSWSC 1527 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Dibbs and Farrell (1941) 41 SR (NSW) 249 Re Elgar Heig…
Wardley Australia Ltd v Western Australia
[1992] HCA 55 Para 43

…interlocutory stage. That step should be taken only in the clearest of cases: Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514; [1992] HCA 55 at [31]. For the reason stated, this is not a clear case and, on the material available to this Court, it is impossible to reach a conclusion that an…
[1973] 1 WLR 905
[1973] 1 WLR 905 Para 32

…“subject to” another. It is pertinent, in that connection, to recall what was said by Megarry J in C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 at 911:[9]…
Ltd v Commonwealth
348 US 272

…[2011] NSWCA 136 Doyle v Hall Chadwick [2007] NSWCA 159 Gilles v Palmieri [2016] NSWCA 219 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; [1997] HCA 38 Preston v Nikolaidis [2017] NSWSC 1527 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Dibbs and Farrell (1941) 41…

Legislation cited in this decision · 9

District Court Act 1973 (NSW)
1 mention (from Para 11)
Legal Practitioners Act 1898 (NSW)
1 mention (from Para 18)
Legal Profession Act 1987 (NSW)
1 mention
Legal Profession Act 2004 (Vic)
1 mention (from Para 3)
Legal Profession Amendment Act 2005 (NSW)
1 mention
Legal Profession Reform Act 1993 (NSW)
1 mention
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention
Limitation Act 1969 (NSW)
1 mention (from Para 5)
Uniform Civil Procedure Rules 2005 (NSW)
1 mention (from Para 9)

Medium Neutral Citation:	Gilles v Palmieri [2017] NSWCA 320
Hearing dates:	6 November 2017
Decision date:	12 December 2017
Before:	McColl JA at [1] White JA at [2] Barrett AJA at [8]
Decision:	(1) Grant leave to appeal. (2) Direct that the applicants do within seven days file a notice of appeal in the form of the draft in the white folder. (3) Appeal allowed. (4) Set aside the following orders made in the District Court on 27 February 2017: (a) Order that the statement of claim filed in 21 October 2016 be dismissed pursuant to rule 13.4 subrule (1)(c) of the Uniform Civil Procedure Rules 2005 (NSW). (b) Order that the plaintiffs pay the defendants’ costs of the notice of motion and the proceedings as agreed or assessed. (5) Make the following orders in lieu thereof: (a) Order that the notice of motion filed by the defendants on 18 November 2016 be dismissed. (b) Order that the defendants pay the plaintiffs’ costs of the notice of motion. (6) Order that the respondents pay the applicants’ costs of the application for leave to appeal and the appeal.
Catchwords:	LEGAL PROFESSION – costs – practitioner-client costs – costs assessment – first instruction for provision of legal services given before commencement of Legal Profession Act 2004 (NSW) – application for assessment of costs lodged after commencement of Legal Profession Uniform Law (NSW) – practitioners institute District Court action for recovery of costs after lodgement of application for assessment – clients apply for summary dismissal of action – application granted on the basis that a provision of the Legal Profession Act 2004 (NSW) precludes recovery proceedings while assessment in progress – which statutory regime for costs assessment applies in the circumstances – whether primary judge erred in granting summary dismissal – discussion of current and repealed legislation STATUTORY INTERPRETATION – Legal Profession Act 2004 (NSW), clauses 18(1) and 18(3) of schedule 9 – whether the words “subject to” imply inconsistency between subclauses – construction of those words in the particular context
Legislation Cited:	3 Jac 1 c 7 (1605) (Imp) 2 Geo 2 c 23 (1729) (Imp) 11 Vict No.33 (1847) (NSW) District Court Act 1973 (NSW) Legal Practitioners Act 1898 (NSW) Legal Profession Act 1987 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Amendment Act 2005 (NSW) Legal Profession Reform Act 1993 (NSW) Legal Profession Regulation 2005 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 26 C & J Clark Ltd v Inland Revenue Commissioners [1973] 1 WLR 905 Cockburn v Shehadie [2013] NSWSC 758 Coshott v Barry [2012] NSWSC 850 Cross v Certain Lloyds Underwriters Subscribing to Contract No IH00AAQS [2011] NSWCA 136 Doyle v Hall Chadwick [2007] NSWCA 159 Gilles v Palmieri [2016] NSWCA 219 Newcrest Mining (WA) Ltd…