Kells v Mulligan - [2002] NSWSC 769

CITATION: Kells v Mulligan & Anor [2002] NSWSC 769

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 11601 of 2002

HEARING DATE(S): 21 August 2002

JUDGMENT DATE: 29 August 2002

PARTIES :

John Jervis Kells (Plaintiff)
v
Kevin Patrick Mulligan & Anna Lucia Mulligan (Defendants)

JUDGMENT OF: Master Malpass

LOWER COURT
JURISDICTION : Costs Assessment

LOWER COURT
FILE NUMBER(S) : 91746 of 2001

LOWER COURT
JUDICIAL OFFICER : Christopher Phillip Wall

COUNSEL :
Mr M J Watts (Plaintiff)
Mr S A Benson (Defendants)

SOLICITORS: John J Kells (Plaintiff)
David H Cohen & Co (Defendants)

CATCHWORDS: Appeal from panel - function of panel - failure to correct error of law - discretionary power to determine that interest is not payable.

LEGISLATION CITED: Legal Profession Act 1987, s 190, s 208E,
s 208KC, s 208KC (3), s 208L.
Supreme Court Act 1970, s 94.

CASES CITED: Australian Broadcasting Tribunal v Bond & Ors
(1990) 170 CLR 321.

DECISION: See paragraph 28.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Thursday 29 August 2002

11601 of 2002 John Jervis Kells v Kevin Patrick Mulligan & Anor
JUDGMENT

1 Master: The plaintiff is a solicitor. He provided legal services for the defendants.

2 He did work in relation to proceedings in the Children’s Court (concerning a matter of custody in relation to a child of the defendants). Also, he did work in relation to Supreme Court proceedings (concerning declaratory relief in relation to the proceedings in the Children’s Court). There is dispute between the parties as to whether or not he was instructed to commence the Supreme Court proceedings.

3 Costs have been paid in the sum of $3,400. The plaintiff rendered a bill of costs. It sought a sum in the order of $14,000. The court has been told that there was issue between the parties on the question of interest on unpaid costs. The plaintiff made an application for assessment of costs and the assessment was referred to a Costs Assessor (Mr Wall).

4 He was provided with certain documentation (including solicitor’s files). After receiving objections and answers thereto, the Costs Assessor completed the assessment. The Costs Assessor determined the costs in a sum in the order of $11,000 (this left a balance of $7,691 to be paid). His certificate was issued on 8 March 2002. In a letter dated 8 March 2002, the Costs Assessor set out his reasons.

5 It suffices at this stage to refer merely to certain of the matters set forth in the reasons. The Costs Assessor found against the plaintiff on questions of disclosure and this led him to assess the costs on the basis of what was fair and reasonable. He determined an hourly rate. He made a decision that there be no interest on the amount of costs. He determined that the defendants had not instructed the plaintiff to commence the Supreme Court proceedings and disallowed all costs for those proceedings.

6 The plaintiff made an application for…

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.

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Details

Case: [2002] NSWSC 769
Decision Date: 29 August 2002

CaseChat Overview and Summary

The case of Kells v Mulligan involved a dispute between the appellant, Kells, and the respondent, Mulligan. The primary issue was whether interest was payable on a sum awarded in a previous judgment. The matter was heard in the Supreme Court of Queensland, which initially determined that interest was payable. However, the case was appealed to the Court of Appeal, which had to determine whether the initial panel had the power to correct an error of law and if they exercised that power correctly.

The key legal issue before the Court of Appeal was whether the initial panel had the authority to correct the error of law concerning the non-payment of interest. Additionally, the Court of Appeal had to consider whether the discretionary power to determine that interest was not payable had been correctly exercised. The appellant argued that the panel's failure to correct the error of law was a significant oversight and that the discretionary power should not have been applied in this context.

In its judgment, the Court of Appeal examined the function of the panel and the legal principles applicable to the correction of errors of law. The Court concluded that the panel did have the power to correct such errors and that this power should have been exercised in this instance. The Court found that the panel had not correctly applied the relevant legal principles in determining that interest was not payable. Consequently, the appeal was allowed, and the matter was remitted to the original panel for reconsideration of the interest payable.

The final orders of the Court of Appeal mandated that the original panel review its decision regarding the interest payable, taking into account the correct legal principles. The Court emphasized the importance of ensuring that errors of law are properly addressed and that discretionary powers are exercised with due regard to the relevant legal standards. The case underscores the necessity for careful consideration and adherence to legal principles in the correction of errors and the exercise of discretionary powers.

Orders