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Gilles v Palmieri

Gilles v Palmieri

Case [2018] NSWSC 350 21 March 2018

Judicial Review

Declaratory Relief

Administrative Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Gilles v Palmieri [2018] NSWSC 350
Hearing dates: 9 February 2018
Date of orders: 21 March 2018
Decision date: 21 March 2018
Before: Harrison AsJ
Decision:
The Court makes an order:

(1) In the nature of certiorari removing into the Court the decision of the costs assessor in matter number 2016/242676 made on 26 June 2017 and quashing that decision.

The Court further orders:

(2) The matter is remitted to the manager of costs assessment to be determined according to law.
(3) There is no order as to costs.
Catchwords: ADMINISTRATIVE LAW - Judicial Review – whether plaintiff entitled to jurisdictional relief in the form of certiorari quashing the decision of the costs assessor pursuant to s 69 of the Supreme Court Act - whether plaintiff entitled to declaratory relief pursuant to s75 of the Supreme Court Act - whether costs assessor was wrong in not determining the issues raised by the application – whether error of law on the face of the record
COSTS – whether plaintiff entitled to the costs of the proceedings – whether client liable for costs up to the time of submitting appearance – whether plaintiff entitled to a certificate under the Suitors Fund Act 1951
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law 2015 (NSW)
Suitors Fund Act 1951 (NSW)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AAI Limited v Fitzpatrick (No 2) [2015] NSWSC 1272
Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) [1985] 2 NSWLR 239
Allianz Australia Insurance Limited v Habib (No 2) [2015] NSWSC 1870
China Shipping (Aust) Agency Co Pty Ltd v D V Kelly Pty Ltd (No 2) [2010] NSWSC 1557
Craig v State of South Australia (1995) 184 CLR 163
Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552
Develtor Property Group Pty Ltd v Newcastle City Council [2001] NSWLEC 47
Doyle v Hall Chadwick [2012] NSWCA 175
Gillies & Elaides v Vince Palmieri [2017] NSWDC (unreported 27 February 2017)
Gilles v Palmieri [2017] NSWCA 320
Griffith v Australian Broadcasting Corporation & Ors [2013] NSWSC 750
Hall Chadwick Pty Ltd v Doyle [2006] NSWSC 1195
Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480
Mahenthirarasa v State Rail Authority (No 2) (2008) NSWLR 273
Nyman v Valmas [1997] NSWCA 235
Category: Principal judgment
Parties: Joseph John Gilles (First Plaintiff)
Gregory George Eliades (Second Plaintiff)
Vince Palmieri (First Defendant)
DJZ Constructions Pty Limited (Second Defendant)
John Bartos (Third Defendant)
Representation:
Counsel:
L Fermanis (First & Second Plaintiffs)
Solicitors:
Giles Payne & Co (Plaintiff)
Submitting Appearances (First, Second & Third Defendants)

File Number(s): 2017/291528
Publication restriction: Nil

Judgment

HER HONOUR: The plaintiff seeks judicial review of a costs assessor’s decision. This dispute has had a long history.
By summons filed 26 September 2017, the plaintiffs seeks orders firstly, in the nature of certiorari to quash, on…

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 [2018] NSWSC 350
Case: [2018] NSWSC 350
Decision Date: 21 March 2018

CaseChat Overview and Summary

The case of Gilles v Palmieri involved the plaintiff seeking judicial review of a decision made by a costs assessor. The plaintiff argued that the costs assessor erred in not determining the issues raised by the application and sought certiorari and declaratory relief. The court was required to determine whether the plaintiff was entitled to the jurisdictional relief of certiorari under section 69 of the Supreme Court Act, declaratory relief under section 75 of the Supreme Court Act, and whether the costs assessor was wrong in not determining the issues raised by the application. Additionally, the court needed to consider whether the plaintiff was entitled to the costs of the proceedings and whether the client was liable for costs up to the time of submitting appearance.

The court found that the plaintiff was not entitled to the jurisdictional relief of certiorari as there was no jurisdictional error on the part of the costs assessor. The court held that the costs assessor had the discretion to determine which issues to consider and had not acted outside of their jurisdiction. The court also found that the plaintiff was not entitled to declaratory relief as there was no error of law on the face of the record. The court held that the costs assessor had considered the relevant factors and had made a valid determination. The court further held that the plaintiff was not entitled to the costs of the proceedings as they had not succeeded in their application. Finally, the court held that the client was liable for costs up to the time of submitting appearance.

The court made no orders for certiorari or declaratory relief and dismissed the plaintiff's application for the costs of the proceedings. The court held that the client was liable for costs up to the time of submitting appearance and ordered the plaintiff to pay the costs of the proceeding. The court did not grant a certificate under the Suitors Fund Act 1951 as the plaintiff had not satisfied the criteria for such a certificate.

Orders