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Hunter v Hanson

Hunter v Hanson

Case [2014] NSWDC 77 4 June 2014

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District Court

New South Wales

Medium Neutral Citation: Hunter v Hanson [2014] NSWDC 77
Hearing dates: 3 June 2014
Decision date: 04 June 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Summons dismissed.
(2) Costs reserved.
(3) Liberty to apply in relation to costs.
(4) Exhibits retained until further order.

Catchwords: COSTS - costs appeal under s 384 Legal Profession Act 2004 (NSW) - alleged failure of Review Panel to give adequate reasons - whether grounds of appeal related to issues raised with the Review Panel - whether method of assessing counsel's preparation fees was an issue of law - appeal dismissed
Legislation Cited: Legal Profession Act 2004 (NSW), ss 370 and 384
Legal Profession Regulations 2005 (NSW), rr 128 and 134
Cases Cited: Arnott v Glissan [2013] NSWCA 316
Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304
Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757
Cassegrain v CTK Engineering Pty Ltd [2008] NSWSC 457
Freeman v McNally [2003] NSWSC 780
Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321
Gorczynski v AWM Dickinson & Son [2005] NSWSC 277
Lang v Kirkness (New South Wales Supreme Court, Harrison M, 22 October 1997)
Lawrence v Shaw [2013] NSWDC 91
Levy v Bergseng (2008) 72 NSWLR 178
Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196
Nassour v Malouf [2011] NSWSC 356
Public Service Board of New South Wales v Osmond (1986) 9 ALN N85
Randall Pty Ltd v Willoughby City Council (2009) 9 DCLR(NSW) 31
Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170
Texts Cited: G E Dal Pont, Law of Costs, 3rd Ed. (LexisNexis)
Category: Principal judgment
Parties: First Plaintiff: Scott Hunter
Second Plaintiff: Helen Hunter
First Defendant: Benjamin Hanson
Second Defendant: Graham Wardell
Representation: Plaintiffs: Mr A R R Vincent / Dr W A J Higgs
First Defendant: Mr P English
Second Defendant: Ms K Law (solicitor)
Plaintiffs: PJG Solicitors
First Defendant: Banki Haddock Fiora
Second Defendant: Matthews Folbigg Pty Limited

File Number(s): 2014/67094
Publication restriction: None

Judgment

The plaintiffs by Amended Summons filed on 22 April 2014 bring an appeal under s 384 Legal Profession Act 2004 (NSW) ("the Act") from the decision of the Costs Review Panel (the "Review Panel") of 10 February 2014 upholding a decision of a Costs Assessor of 10 May 2013 in the amount of $81,652.33. An alternative application under s 385(2) of the Act for leave to appeal was abandoned during submissions. The plaintiffs seek orders setting aside of the whole of the decision of the Review Panel, and for the assessment to be remitted to the Review Panel for re-determination.

The costs the subject of the assessment were incurred in Local Court proceedings by the parties against each other for apprehended personal violence orders ("APVO"). These applications, which were dealt with…

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 Hunter v Hanson

Details

AGLC: Hunter v Hanson [2014] NSWDC 77
Case: [2014] NSWDC 77
Decision Date: 04 June 2014

CaseChat Overview and Summary

Hunter sought leave to appeal against the Review Panel's decision under the Legal Profession Act 2004 (NSW), claiming that the Panel had failed to provide adequate reasons for its decision. The dispute arose from a costs order made in litigation between Hunter and Hanson. Hunter argued that the Review Panel's decision did not sufficiently address the grounds of appeal that had been raised, and that the method used to assess the fees for counsel's preparation constituted a legal issue. Hanson opposed the application, asserting that the Review Panel's decision was adequately reasoned and that the grounds of appeal did not meet the necessary criteria.

The court considered whether the grounds of appeal related to issues that were raised with the Review Panel and whether the method of assessing counsel's preparation fees constituted a legal issue. The court determined that the Review Panel had indeed provided adequate reasons for its decision, and that the grounds of appeal did not pertain to the issues that were raised. Furthermore, the court found that the method of assessing counsel's preparation fees was not a legal issue, but rather a matter of discretion within the Review Panel's authority.

In light of the findings, the court dismissed the summons and reserved costs, granting liberty to apply in relation to costs and retaining the exhibits until further order. The decision underscored the importance of properly addressing the grounds of appeal and the scope of the Review Panel's discretion in assessing costs.

Orders

Orders of the court

(1) Summons dismissed.

(2) Costs reserved.

(3) Liberty to apply in relation to costs.

(4) Exhibits retained until further order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

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

Hunter v Hanson [2014] NSWDC 77

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 22 of 22 shown

Wende v Horwath (NSW) Pty Ltd
[2014] NSWCA 170 Para 1

…Review Panel is required to give reasons has now been carefully analysed by the New South Wales Court of Appeal in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170:…
Arnott v Glissan
[2013] NSWCA 316 Para 1

…NSWSC 277 at [22]. An error of law, as opposed to an error of fact or mathematics, must be established. The Court of Appeal noted in Arnott v Glissan [2013] NSWCA 316 at [6] that "[a] challenge to the assessment in terms of its quantification, either in totality or in respect of certain items would rarely, if ever,…
Lawrence v Shaw
[2013] NSWDC 91 Para 1

…In Lawrence v Shaw [2013] NSWDC 91 at [24], Murrell SC DCJ similarly rejected grounds which were not put before the Review Panel. As the New South Wales Court of Appeal explained in Wende v Horwath (NSW) Pty Limited , supra , the appeal from the Review Panel's decision must deal with the matters raised with the Re…
Bobb v Wombat Securities Pty Ltd
[2013] NSWSC 757 Para 1

…nt appealed from is the Review Panel's decision, the Costs Assessor's decision is not the judgment appealed from. In Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757 at [36] Beech-Jones J stated:…
Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd
[2011] NSWDC 55 Para 1

…longer "left open". The true nature of the costs assessment process is administrative, as is set out in the authorities discussed by Johnstone DCJ in Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 at [31]. Giles JA's statements about the obligation to give reasons as being "moulded" by the non-administrative component in their…
George Nassour v Anthony Mark Malouf t/as Malouf Solicitors
[2011] NSWSC 356 Para 1

…An appeal on the basis of asserted inadequacy of reasons is a matter of law: Nassour v Malouf [2011] NSWSC 356. However, as is noted above, the question of adequacy of reasons is restricted to the question of the findings of the Review Panel (which must be approached in the manner explained by the Court of Appeal i…
Randall Pty Ltd v Willoughby City Council
[2009] NSWDC 118 Para 1

…which the decision rests is articulated." (citing Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196 at [16] per Malpass M; Randall Pty Ltd v Willoughby City Council (2009) 9 DCLR(NSW) 31 at [56] per Johnstone DCJ.)…
B & L Linings Pty Ltd v Chief Commissioner of State Revenue
[2009] NSWCA 55 Para 1

…se beyond those issues necessary to answer the appropriately identified questions of law: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481. If no question of law is able to be identified, the appeal should be dismissed: Lang v Kirkness (New South Wales Supreme Court, Harrison M, 22 Octob…
Levy v Bergseng (No 2)
[2008] NSWSC 958 Para 1

…More recently, Rothman J in Levy v Bergseng (2008) 72 NSWLR 178 at [81] stated that all that was required was disclosure of the process by which the Tribunal arrived at its conclusions, rather than a compelling or even a logical reason:…
Cassegrain v CTK Engineering
[2008] NSWSC 457 Para 1

…ntinued to have high expectations of the nature and contents of the reasons for decisions by costs assessors. In Cassegrain v CTK Engineering Pty Ltd [2008] NSWSC 457 at [79]-[81], White J, referring to Frumar, supra, observed:…
Honest Remark Pty Ltd v Allstate Explorations NL
[2008] NSWSC 439 Para 24

…rmine the application but also to demonstrate that any such error is material to the determination": Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439 at [24].…
Frumar v The Owners of Strata Plan 36957
[2006] NSWCA 278 Para 1

…In Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321 Giles JA at [62] laid down a series of requirements:…
Gorczynski v AWM Dickinson & Son
[2005] NSWSC 277 Para 1

…of the Act has been described as "narrow": Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd , supra , at [12]; Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. An error of law, as opposed to an error of fact or mathematics, must be established. The Court of Appeal noted in Arnott v Glissan [2013] NS…
Freeman v McNally
[2003] NSWSC 780 Para 1

…ssessor's reasons. The degree to which those reasons should resemble a judgment remained controversial. As Malpass M pointed out in Freeman v McNally [2003] NSWSC 780 at [18], a determination of a costs assessor (or for that matter the Costs Review Panel) should not be viewed as requiring the same elements as are e…
Skalkos v Assaf
[2002] NSWSC 1221 Para 17

…that the determination itself was erroneous and should be disturbed ... The onus borne by [the plaintiffs] has not been discharged": Skalkos v Assaf [2002] NSWSC 1221 at [17]-[18]."…
Madden v New South Wales Insurance Ministerial Corporation
[1999] NSWSC 196 Para 1

…quired, provided the essential ground on which the decision rests is articulated." (citing Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196 at [16] per Malpass M; Randall Pty Ltd v Willoughby City Council (2009) 9 DCLR(NSW) 31 at [56] per Johnstone DCJ.)…
Australian Broadcasting Tribunal v Bond
[1990] HCA 33

…Tribunal discloses the process by which it arrived at its conclusions. Lack of logic is not an error of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Nor is a tribunal requiredto deal with every argument in minute detail: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465."…
Our Town FM Pty Ltd v Australian Broadcasting Tribunal
[1987] FCA 578

…nd (1990) 170 CLR 321. Nor is a tribunal requiredto deal with every argument in minute detail: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465."…
Soulemezis v Dudley (Holdings) Pty Ltd
(1987) 10 NSWLR 24

…nt to s 208KG, is informed by the general law concerning the duty of judicial officers to give reasons for their decisions discussed in cases such as Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. The extent of a judicial offic…
Mifsud v Campbell
(1991) 21 NSWLR 725

…duty of judicial officers to give reasons for their decisions discussed in cases such as Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. The extent of a judicial officer's duty depends on the circumstances.…
Beale v Government Insurance Office of NSW
(1997) 48 NSWLR 430

…for their decisions discussed in cases such as Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Mifsud v Campbell (1991) 21 NSWLR 725 and Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430. The extent of a judicial officer's duty depends on the circumstances. Whether or not a costs assessor and a panel are acting administra…
Public Service Board of New South Wales v Osmond
(1986) 159 CLR 616 Para 1

…sion Pty Ltd (1998) 43 NSWLR 729. Priestley JA (at 735) and Handley JA (at 739), referring to Deane J's statement of the obligation to give reasons ( Public Service Board of New South Wales v Osmond (1986) 9 ALN N85), underlined the importance of costs assessors giving reasons for their determination, as any appeal would be rendered meaningless without…

Legislation cited in this decision · 2

Legal Profession Act 2004 (Vic)
370, 384 3 mentions (from Para 1)
Legal Profession Regulations 2005 (NSW)
128, 134 3 mentions (from Para 1)

Medium Neutral Citation:	Hunter v Hanson [2014] NSWDC 77
Hearing dates:	3 June 2014
Decision date:	04 June 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Summons dismissed. (2) Costs reserved. (3) Liberty to apply in relation to costs. (4) Exhibits retained until further order.
Catchwords:	COSTS - costs appeal under s 384 Legal Profession Act 2004 (NSW) - alleged failure of Review Panel to give adequate reasons - whether grounds of appeal related to issues raised with the Review Panel - whether method of assessing counsel's preparation fees was an issue of law - appeal dismissed
Legislation Cited:	Legal Profession Act 2004 (NSW), ss 370 and 384 Legal Profession Regulations 2005 (NSW), rr 128 and 134
Cases Cited:	Arnott v Glissan [2013] NSWCA 316 Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757 Cassegrain v CTK Engineering Pty Ltd [2008] NSWSC 457 Freeman v McNally [2003] NSWSC 780 Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321 Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 Lang v Kirkness (New South Wales Supreme Court, Harrison M, 22 October 1997) Lawrence v Shaw [2013] NSWDC 91 Levy v Bergseng (2008) 72 NSWLR 178 Madden v New South Wales Insurance Ministerial Corporation [1999] NSWSC 196 Nassour v Malouf [2011] NSWSC 356 Public Service Board of New South Wales v Osmond (1986) 9 ALN N85 Randall Pty Ltd v Willoughby City Council (2009) 9 DCLR(NSW) 31 Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170
Texts Cited:	G E Dal Pont, Law of Costs, 3rd Ed. (LexisNexis)
Category:	Principal judgment
Parties:	First Plaintiff: Scott Hunter Second Plaintiff: Helen Hunter First Defendant: Benjamin Hanson Second Defendant: Graham Wardell
Representation:	Plaintiffs: Mr A R R Vincent / Dr W A J Higgs First Defendant: Mr P English Second Defendant: Ms K Law (solicitor) Plaintiffs: PJG Solicitors First Defendant: Banki Haddock Fiora Second Defendant: Matthews Folbigg Pty Limited
File Number(s):	2014/67094
Publication restriction:	None