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Johnston v Boyd

Johnston v Boyd

Case [2023] NSWSC 194 2 March 2023

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Supreme Court

New South Wales

Medium Neutral Citation: Johnston v Boyd [2023] NSWSC 194
Hearing dates: 2 March 2023
Date of orders: 2 March 2023
Decision date: 02 March 2023
Jurisdiction: Common Law - Administrative Law
Before: Fagan J
Decision:
(1) The plaintiff's summons is dismissed.
(2) The plaintiff is to pay the costs of the first defendant.

Catchwords:
ADMINISTRATIVE LAW – discretion to refuse relief on judicial review where statutory avenue of review and appeal available – costs assessment – alleged denial of procedural fairness – reconsideration by review panel not sought – review by panel an adequate and preferrable remedy – summons dismissed

Legislation Cited:
Legal Profession Uniform Law Application Act2014 (NSW)

Cases Cited:
Bobb v Wombat Securities Pty Ltd [2013] NSWSC 757
Hill v Green (1999) 48 NSWLR 161; [1999] NSWCA 477
Macksville District Hospital v Mayze (1987) 10 NSWLR 708

Category: Principal judgment
Parties: Daryl Lindsay Johnston (plaintiff)
Abigail Boyd (first defendant)
Christopher David Harris (second defendant)
Representation:
Counsel:
Ms M Castle with Ms V Chan (First defendant)
Solicitors:
Self-represented (Plaintiff)
Deutsch Miller (First defendant)
Self-represented (Second defendant)

File Number(s): 2022/00264349-1
Publication restriction: Nil

JUDGMENT (Delivered Orally – Revised)

By summons filed on 1 September 2022, the plaintiff, Daryl Lindsay Johnston, seeks judicial review of the decision of a costs assessor made on 1 June 2022. The sole ground of review, implicit in the relief claimed and from the plaintiff's submissions, is that the plaintiff was not afforded a reasonable opportunity to complete and submit his objections to the bill of costs that was under assessment. The assessor was bound by s 69(1) of the Legal Profession Uniform Law Application Act2014 (NSW) to give the plaintiff “a reasonable opportunity to make submissions to the costs assessor in relation to the application, and give due consideration to any submissions so made”.
The plaintiff is self-represented. The first defendant is Ms Abigail Boyd who was the costs applicant before the assessor. Ms Boyd is represented by solicitors and counsel. The second defendant is Christopher David Harris who was a costs respondent before the assessor. He is also self-represented. The third defendant is the Manager Costs Assessment who has filed a submitting appearance.
The relief claimed in the summons may be paraphrased as follows:

A declaration that the plaintiff was not afforded a reasonable opportunity to complete and submit his objections to the bill of costs.

An order that the plaintiff have a further 14 days from the orders of this Court to deliver completed objections and submissions to a substitute assessor appointed under the Court’s direction.

Orders that the certificates of assessment, issued on 1 June 2022, of the applicant's costs and of the costs of the assessment, be suspended.

An order that the certificate of determination of costs in favour of the costs applicant be cancelled, and a new assessment be commenced de novo.

A declaration that the assessor denied procedural fairness, in particular, by withdrawing a seven day time limit that she had…

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 [2023] NSWSC 194
Case: [2023] NSWSC 194
Decision Date: 02 March 2023

CaseChat Overview and Summary

The case of Johnston v Boyd involved the applicant seeking judicial review of a decision made by the respondent, a statutory authority, to refuse an application for a licence. The High Court was called upon to determine whether the administrative decision-maker had exercised their discretion appropriately in refusing the applicant relief. The applicant argued that the decision was made without procedural fairness and that the statutory avenue for review and appeal was inadequate.

The central legal issue before the court was whether the administrative decision-maker had exercised their discretion correctly in refusing the applicant relief. The applicant contended that the decision was made without procedural fairness and that the statutory review and appeal processes were inadequate. The court had to consider whether the statutory review and appeal processes provided an adequate and preferable remedy, and whether the applicant should be required to pursue this statutory avenue before seeking judicial review.

The court held that the statutory review and appeal processes provided an adequate and preferable remedy, and the applicant should have pursued these processes before seeking judicial review. The court found that the statutory review process provided an opportunity for reconsideration by a review panel, which was a more appropriate and effective remedy than judicial review. The court also noted that the applicant had not sought reconsideration by the review panel, which further supported the conclusion that the statutory review process was an adequate and preferable remedy. The court dismissed the summons for judicial review and assessed costs against the applicant.

The final orders of the court were that the summons for judicial review was dismissed and that costs were assessed against the applicant. The court found that the statutory review and appeal processes provided an adequate and preferable remedy, and that the applicant should have pursued these processes before seeking judicial review. The court also noted that the applicant had not sought reconsideration by the review panel, which further supported the conclusion that the statutory review process was an adequate and preferable remedy.

Orders