Junn v McBride

[2018] NSWDC 325

District Court

New South Wales

Medium Neutral Citation:

Junn v McBride [2018] NSWDC 325

Hearing dates:

27 – 28 April 2017

Date of orders:

01 November 2018

Decision date:

01 November 2018

Jurisdiction:

Civil

Before:

Neilson DCJ

Decision:

(1) Appeal allowed.

 

(2) Remit the matter to the Review Panel to be re-determined in light of these reasons.

 (3) Order the defendant to pay half the plaintiff’s costs.

Catchwords:

COSTS – Appeal from decision of Review Panel – Appeal limited to error of law – Failure of Review Panel to provide any or any sufficient reasons – Remitted to Review Panel to re-determine

Legislation Cited:

Legal Profession Act 2004
Legal Profession Regulation 2005

Cases Cited:

Cassegrain v CTK Engineering; Cassegrain v Cassegrain [2008] NSWSC 457
Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681
Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278; (2006) 67 NSWLR 321
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Whitehaven Coal Mining v Pain [2018] NSWCA 229

Category:

Principal judgment

Parties:

Donald Martin Junn (Plaintiff)
Louise McBride (Defendant)

Representation:

Counsel:
Mr SJ Philips (Plaintiff)
Mr FM Douglas QC (Defendant)

  Solicitors:
Dixon Holmes Lawyers (Plaintiff)
Self-represented (Defendant)

File Number(s):

2016/344836

Publication restriction:

Nil

Judgment

Curia advisari vult

Introduction

1. This statutory appeal concerns legal costs. By an amended Summons filed on 26 April 2017, the plaintiff appeals as of right pursuant to the Legal Profession Act 2004 s 384. It is common ground that that Act governs these proceedings. The section provided:

“(1) A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the District Court, appeal to the Court against the decision.

(2) After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor’s decision:

(a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or

(b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application.

(3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”

Pursuant to s 382 of the same Act, section 384 applied to an appeal from a decision of a Review Panel which reviewed the decision of the costs assessor.

2. Like many appeals concerning legal costs, in these proceedings:

1. the amount in issue is not particularly large,

2. the arguments raised are largely technical, and

3. they are marked by the amount of emotional involvement of those concerned.

In this case the last consideration has led to a number of unseemly allegations being made by the plaintiff and similar (although more moderately expressed) comments being made by the defendant. In a dispute between members of the legal profession, even though they be…