CITATION: Kelly v Norris & 1 Ors [2004] NSWCA 260 HEARING DATE(S): 11 June 2004 JUDGMENT DATE:
30 July 2004JUDGMENT OF: Hodgson JA at 1; Santow JA at 2; Bryson JA at 39 DECISION: Grant of leave to appeal refused. Ordinary summons dismissed. CATCHWORDS: PRACTICE AND PROCEDURE - Costs - matter arose out of complex and exceptionally lengthy proceedings in relation to a motor vehicle accident in which plaintiff suffered severe brain damage - application for leave to appeal - submitting appearances filed by first and second opponents - costs incurred by plaintiff's solicitors in connection with those legal proceedings reviewed by trial judge of his own motion - whether appellate court should give leave to appeal when small sum involved - orders sought to be appealed from may affect reputation of plaintiff's solicitor, the claimant in this matter - dealt with only a small part of the costs which the claimant had charged the plaintiff, his tutor and the guardian of his protected estate regarding the conduct of the litigation - those orders concerned the cost of an expert's report and its copying, costs of copying exhibit and copying costs of solicitor's letter in relation to briefing a potential witness - trial judge made the orders at his own initiative and not on the motion of any party - trial judge did not lack power to make the orders - whether circumstances justify appellate intervention - whether the undoubted discretion to charge the legal adviser with costs incurred improperly or without reasonable cause, had been properly exercised. LEGISLATION CITED: Local Court (Civil Claims) Act 1970 s69(2A)
Supreme Court Act s76; s101
Supreme Court Rules 1970 Pt 52 r66CASES CITED: Blake v Norris (SC 12247 of 1989)
Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl (Court of Appeal, 16 November 1995, unreported) BC9501771
Dunn v. Ross Lamb Motors [1978] 1 NSWLR 26
House v The King (1936) 55 CLR 499
Micallef v ICI Australia Operations Ltd [2001] NSWCA 274
Norris v Blake (by his Tutor Porter) (No. 2) (1997) 41 NSWLR 49
Ozpinar v. Assaily [2001] NSWCA 23
Piglowska v. Piglowski [1999] 1 WLR 1360
Re Veron (1966) 84 WN(Pt 1)(NSW) 136
Rumortex Pty Ltd v. Rodgers & Anor [2000] NSWCA 18
Wentworth v. Rogers (No. 3) (1986) 6 NSWLR 642PARTIES :
Timothy Denis KELLY (Claimant)
Walter Thomas Patmore NORRIS (First Opponent)
The estate of Paul Jonathan BLAKE by his tutor Brian Edward PORTER (Second Opponent)FILE NUMBER(S): CA 40339/03 COUNSEL: G R GRAHAM (Claimant)
Ms M HOLZ (First Opponent)
P KENNEDY (solicitor) (Second Opponent)SOLICITORS: T D Kelly & Co (Claimant)
Ferguson Lawyers (First Opponent)
Mooney & Kennedy (Second Opponent)
LOWER COURTJURISDICTION: Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S): SC 12242/89 LOWER COURT
JUDICIAL OFFICER :Hulme J
CA 40339/03
SC 12242/8930 JULY 2004HODGSON JA
SANTOW JA
BRYSON JA
Timothy Denis KELLY v Walter Thomas Patmore NORRIS & 1 Ors
Judgment
1 HODGSON JA: In my opinion, there is…
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- AGLC
- Kelly v Norris [2004] NSWCA 260
- Case
- [2004] NSWCA 260
- Decision Date
CaseChat Overview and Summary
The plaintiff, who had suffered severe brain damage in a motor vehicle accident, sought leave to appeal from orders made by a trial judge concerning the costs incurred in complex and lengthy proceedings. The first and second opponents had filed submitting appearances. The trial judge had reviewed the costs incurred by the plaintiff's solicitors on his own motion, specifically addressing the costs of an expert's report and its copying, the costs of copying an exhibit, and the costs of a solicitor's letter regarding briefing a potential witness.
The central legal issues before the appellate court were whether leave to appeal should be granted when a small sum was involved, whether the orders appealed from could affect the reputation of the plaintiff's solicitor, and whether the trial judge had properly exercised his discretion to charge a legal adviser with costs incurred improperly or without reasonable cause, given that the orders were made on the judge's own initiative rather than on the motion of a party. The court also considered whether the circumstances justified appellate intervention.
The appellate court reasoned that while the trial judge did not lack the power to make the orders on his own initiative, the circumstances did not warrant appellate intervention. The court concluded that the discretion to charge a legal adviser with costs had been properly exercised.
Consequently, the court refused the plaintiff's application for leave to appeal and dismissed the ordinary summons.
The central legal issues before the appellate court were whether leave to appeal should be granted when a small sum was involved, whether the orders appealed from could affect the reputation of the plaintiff's solicitor, and whether the trial judge had properly exercised his discretion to charge a legal adviser with costs incurred improperly or without reasonable cause, given that the orders were made on the judge's own initiative rather than on the motion of a party. The court also considered whether the circumstances justified appellate intervention.
The appellate court reasoned that while the trial judge did not lack the power to make the orders on his own initiative, the circumstances did not warrant appellate intervention. The court concluded that the discretion to charge a legal adviser with costs had been properly exercised.
Consequently, the court refused the plaintiff's application for leave to appeal and dismissed the ordinary summons.
Orders
Orders of the court
Grant of leave to appeal refused. Ordinary summons dismissed.
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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