Johnston v Boyd - [2024] NSWCA 75

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Johnston v Boyd [2024] NSWCA 75
Hearing dates: 15 March 2024
Date of orders: 15 March 2024, 10 April 2024 (costs)
Decision date: 10 April 2024
Before: Adamson JA; Basten AJA
Decision:
Orders made on 15 March 2024:
(1)   Refuse the applicant an extension of time in which to file the summons seeking leave to appeal.
(2)   Dismiss the summons purportedly filed on 22 December 2023.
(3)   Order that the applicant pay the first respondent’s costs in this Court, calculated as a gross sum.
(4)   Grant the first respondent leave to file and serve within 7 days an affidavit and brief submissions (not exceeding 3 pages) in relation to the quantum to be fixed under order (3).
(5)   Grant the applicant leave to file and serve within 7 days of receiving the first respondent’s submissions under order (4), brief submissions (not exceeding 3 pages) in response.
(6)   The gross sum costs application to be determined on the papers.
(7)   Reasons reserved.
Additional order made on 10 April 2024:
(8)   Fix the gross sum payable pursuant to order (3) made on 15 March 2024 in an amount of $16,020.

Catchwords:
APPEAL AND REVIEW – appeal from judicial review of costs assessment – application for leave – judicial review refused on discretionary grounds – failure to follow prescribed procedure for review and appeal – allegation of procedural unfairness for failure to grant further adjournment not established – no arguable error on part of primary judge – no issue of principle
CIVIL PROCEDURE – application for leave to appeal – application months out of time – explanation for delay – merit of application for leave – extension of time refused

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil Procedure Act 2005 (NSW), s 98
Legal Profession Uniform Law Application Act2014 (NSW), ss 83, 85, 89
Uniform Civil Procedure Rules 2005 (NSW), r 59.10

Cases Cited:
Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757
Choi v University of Technology Sydney (No 2) [2020] NSWCA 342
Gibson v Drumm [2016] NSWCA 206
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

Category: Procedural rulings
Parties: Daryl Lindsay Johnston (Applicant)
Abigail Boyd (First Respondent)
Christopher David Harris (Second Respondent) (Submitting appearance)
Manager Costs Assessment (Third Respondent) (Submitting appearance)
Representation:
Counsel:
Daryl Lindsay Johnston (Applicant in person)
M Castle (First respondent)
Solicitors:
Deutsch Miller (First Respondent)
Crown Solicitor’s Office (Third Respondent)

File Number(s): 2023/96350
Publication restriction: N/A
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law – Administrative Law

Citation:

[2023] NSWSC 194

Date of Decision:

2 March 2023

Before:

Fagan J

File Number(s):

2022/00264349-1

JUDGMENT

THE COURT: On 2 March 2023 Fagan J dismissed an application brought by the applicant, Daryl Lindsay Johnston, seeking orders by way of judicial review of a costs assessment.^[1] The summons seeking leave to appeal to this Court was filed on 22 December 2023, more than nine…

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 Johnston v Boyd

Details

AGLC: Johnston v Boyd [2024] NSWCA 75
Case: [2024] NSWCA 75
Decision Date: 10 April 2024

CaseChat Overview and Summary

The applicant, Johnston, sought leave to appeal from a decision of the primary judge who had refused to grant judicial review of a costs assessment. The dispute concerned the applicant's contention that they had been denied procedural fairness due to the refusal of a further adjournment during the costs assessment process. The appeal was heard by Adamson JA and Basten AJA in the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the primary judge had erred in refusing the application for judicial review, and whether the applicant should be granted an extension of time to file their summons seeking leave to appeal, given that it was filed months out of time. The court was also required to consider whether there was an arguable error on the part of the primary judge or an issue of principle justifying the grant of leave to appeal.

The Court of Appeal reasoned that the applicant had failed to follow the prescribed procedure for review and appeal, and that the allegation of procedural unfairness was not established. The court found no arguable error on the part of the primary judge and no issue of principle that warranted granting leave to appeal. Consequently, the court refused the applicant an extension of time to file the summons seeking leave to appeal and dismissed the summons. The applicant was ordered to pay the first respondent's costs, to be determined on the papers.

Orders

Orders of the court

Orders made on 15 March 2024:

(1) Refuse the applicant an extension of time in which to file the summons seeking leave to appeal.

(2) Dismiss the summons purportedly filed on 22 December 2023.

(3) Order that the applicant pay the first respondent’s costs in this Court, calculated as a gross sum.

(4) Grant the first respondent leave to file and serve within 7 days an affidavit and brief submissions (not exceeding 3 pages) in relation to the quantum to be fixed under order (3).

(5) Grant the applicant leave to file and serve within 7 days of receiving the first respondent’s submissions under order (4), brief submissions (not exceeding 3 pages) in response.

(6) The gross sum costs application to be determined on the papers.

(7) Reasons reserved.

Additional order made on 10 April 2024:

(8) Fix the gross sum payable pursuant to order (3) made on 15 March 2024 in an amount of $16,020.

Background

Background to the litigation

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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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Medium Neutral Citation:	Johnston v Boyd [2024] NSWCA 75
Hearing dates:	15 March 2024
Date of orders:	15 March 2024, 10 April 2024 (costs)
Decision date:	10 April 2024
Before:	Adamson JA; Basten AJA
Decision:	Orders made on 15 March 2024: (1) Refuse the applicant an extension of time in which to file the summons seeking leave to appeal. (2) Dismiss the summons purportedly filed on 22 December 2023. (3) Order that the applicant pay the first respondent’s costs in this Court, calculated as a gross sum. (4) Grant the first respondent leave to file and serve within 7 days an affidavit and brief submissions (not exceeding 3 pages) in relation to the quantum to be fixed under order (3). (5) Grant the applicant leave to file and serve within 7 days of receiving the first respondent’s submissions under order (4), brief submissions (not exceeding 3 pages) in response. (6) The gross sum costs application to be determined on the papers. (7) Reasons reserved. Additional order made on 10 April 2024: (8) Fix the gross sum payable pursuant to order (3) made on 15 March 2024 in an amount of $16,020.
Catchwords:	APPEAL AND REVIEW – appeal from judicial review of costs assessment – application for leave – judicial review refused on discretionary grounds – failure to follow prescribed procedure for review and appeal – allegation of procedural unfairness for failure to grant further adjournment not established – no arguable error on part of primary judge – no issue of principle CIVIL PROCEDURE – application for leave to appeal – application months out of time – explanation for delay – merit of application for leave – extension of time refused
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil Procedure Act 2005 (NSW), s 98 Legal Profession Uniform Law Application Act2014 (NSW), ss 83, 85, 89 Uniform Civil Procedure Rules 2005 (NSW), r 59.10
Cases Cited:	Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757 Choi v University of Technology Sydney (No 2) [2020] NSWCA 342 Gibson v Drumm [2016] NSWCA 206 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Category:	Procedural rulings
Parties:	Daryl Lindsay Johnston (Applicant) Abigail Boyd (First Respondent) Christopher David Harris (Second Respondent) (Submitting appearance) Manager Costs Assessment (Third Respondent) (Submitting appearance)
Representation:	Counsel: Daryl Lindsay Johnston (Applicant in person) M Castle (First respondent) Solicitors: Deutsch Miller (First Respondent) Crown Solicitor’s Office (Third Respondent)
File Number(s):	2023/96350
Publication restriction:	N/A
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law – Administrative Law Citation: [2023] NSWSC 194 Date of Decision: 2 March 2023 Before: Fagan J File Number(s): 2022/00264349-1