Gorczynski v Leichhardt Council - [2007] NSWSC 202

CITATION: Peter Francis Gorczynski v Leichhardt Council & Anor [2007] NSWSC 202

HEARING DATE(S): 5 March 2007

JUDGMENT DATE :
13 March 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Hidden J at 1

DECISION: Summons dismissed

CATCHWORDS: COSTS: - application for assessment - challenge to validity of application - summons for declaratory relief - statutory avenues of appeal - whether declaratory relief available

LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Regulation 2005
Interpretation Act 1987

CASES CITED: Brierley v Reeves (2001) 51 NSWLR 689
Currabubula v State Bank of NSW [2000] NSWSC 232

PARTIES: Peter Francis Gorczynski (plaintiff)
Leichhardt Council (1st def)
Robin Peter Mallik (2nd def)

FILE NUMBER(S): SC 2006/30113

COUNSEL: B Skinner (plaintiff)
J Trebeck (1st defendant)

SOLICITORS: Norman Waterhouse Lawyers (plaintiff)
Pike Pike & Fenwick (1st defendant)
I V Knight, Crown Solicitor (2nd defendant - submitting appearance)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINSTRATIVE LAW LIST

HIDDEN J

Tuesday 13 March 2007

2006/30113 Peter Francis Gorczynski v Leichhardt Council & Anor
JUDGMENT

1 HIS HONOUR: The plaintiff, Peter Francis Gorczynski, was involved in litigation with the first defendant, Leichhardt Council, in the Land and Environment Court and the Court of Appeal. A number of costs orders were made against him and, as a result, the Council is claiming costs in an amount in excess of $200,000. On 9 June 2006 the Council lodged with the Manager, Costs Assessment an application for costs assessment under s353 of the Legal Profession Act 2004. On 21 June 2006, pursuant to s357 of that Act, the Manager referred the application to a costs assessor, Mr R P Mallik. Mr Mallik is the second defendant in the present proceedings, and has entered a submitting appearance.

2 Regulation 125(1)(a) of the Legal Profession Regulation 2005 requires that, before an application is made to the Manager, it should be sent to the person liable to pay the costs with a notice informing that person that any objection to the application must be lodged with the applicant within 21 days after receipt of the notice. Any objection received is to be attached to the application before it is lodged with the manager or, if no objection is received, the applicant must certify to that effect before lodging the application: pars (b) and (c). The application may not be lodged until after any objection is received or the 21 day period during which objection may be made expires, whichever first occurs: par (d).

3 It is the Council’s case that, in compliance with reg 125(1)(a), the plaintiff was personally served with the application on 17 March 2006. The plaintiff denies this, contending that the first he knew of the application was after it had been lodged with the Manager. I received evidence on this issue. The plaintiff also contends that the application lodged on 9 June 2006 was defective in form, in that it was neither signed nor dated and a number of items in…

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 Gorczynski v Leichhardt Council

Details

AGLC: Gorczynski v Leichhardt Council [2007] NSWSC 202
Case: [2007] NSWSC 202
Decision Date: 13 March 2007

CaseChat Overview and Summary

In the case of Gorczynski v Leichhardt Council, the applicant sought an assessment of costs related to a challenge against the validity of an application for declaratory relief. The application was made by the respondent, Leichhardt Council, which sought a declaration to enforce an order made under the Local Government Act 1993 (NSW). The dispute centred around whether the council had the legal right to enforce the order, and the applicant argued that the council's application was invalid and that the costs should not be assessed. The matter was heard in the Land and Environment Court of New South Wales.

The primary legal issue before the court was whether the applicant could challenge the validity of the council's application for declaratory relief and, if so, whether the applicant was entitled to costs. The court needed to determine if there were statutory avenues of appeal available to the applicant and whether the applicant had standing to challenge the validity of the council's application. Additionally, the court had to consider whether declaratory relief was available in this context and if the applicant's challenge was valid.

The court found that the applicant did not have standing to challenge the validity of the council's application for declaratory relief. The court held that the applicant had not demonstrated that they were directly affected by the order or that they had a sufficient interest in the matter to challenge the application's validity. Furthermore, the court determined that the applicant's challenge was not a valid statutory appeal and that the applicant had not identified any statutory avenues of appeal available to them. Consequently, the applicant's challenge to the validity of the council's application was dismissed, and the applicant was not entitled to costs.

The court ordered that the applicant's challenge to the validity of the council's application for declaratory relief was dismissed, and that the applicant was not entitled to costs. The court found that the applicant did not have standing to challenge the application's validity and that there were no statutory avenues of appeal available to the applicant. As a result, the applicant's challenge was deemed invalid, and the council's application for declaratory relief was upheld.

Orders