Kennett v Muc t/as GH Healey & Co - [2013] NSWSC 119

Supreme Court

New South Wales

Medium Neutral Citation: Kennett v Muc t/a GH Healey & Co [2013] NSWSC 119
Hearing dates: 21 February 2013
Decision date: 26 February 2013
Before: Adamson J
Decision:
1. Dismiss the plaintiff's claims for relief in prayers 1-5 of the summons.
2. Order the plaintiff to pay the costs of the proceedings in so far as they relate to the claims for relief in prayers 1-5 of the summons.
3. Stand over the plaintiff's claim for relief under prayer 6 of the summons to a date before the Registrar.

Catchwords: ADMINISTRATIVE LAW- judicial review- subject matter, scope and purpose of legislation inform the identification of relevant considerations when not stipulated in Act
PRACTICE AND PROCEDURE - costs assessment-whether assessment invalid - objection must be rationally capable of bearing on fairness and reasonableness of assessment
Legislation Cited: Legal Profession Act 2004- Division 11
Legal Profession Regulation 2005- cl 125
Supreme Court Act 1970- s 69
Cases Cited: -Berwick v Kennett [2010] NSWIRComm 41
-Brierley v Reeves [2001] NSWCA 189; (2001) 51 NSWLR 689
-Currabubula v State Bank of NSW [2000] NSWSC 232
-Gorczynski v Leichhardt Council [2007] NSWSC 202
-Kennett v Industrial Court of NSW [2010] NSWCA 307
-Kennett v Mayrana Pty Ltd (No 9) [2008] NSWIRComm 106
-Kennett v Mayrana Pty Ltd (No 10) [2008] NSWIRComm 207
-Kennett v Mayrana Pty Ltd (No 11) [2009] NSWIRComm 99
-Kennett v Mayrana Pty Ltd (No 12) [2009] NSWIRComm 116
-Kennett v Mayrana Pty Ltd (No 13) [2010] NSWIRComm 29
-Kennett v Mayrana Pty Ltd (No 14) [2010] NSWIRComm 64
-Khan & anor v Jenni Mattila & Co Lawyers [2011] NSWSC 71
-Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
-Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
-Tasker v Fullwood [1978] 1 NSWLR 20
Category: Principal judgment
Parties: Keith Franklin Kennett (Plaintiff)
Katarina Muc T/as GH Healey & Co. Hurstville (First Defendant)
Gregory Harrison Healey T/as GH Healey & Co Sydney (Second Defendant)
The Manager, Costs Assessment (Third Defendant)
Representation: Counsel:
AJ McQuillen (Plaintiff)
MJ Darke (First & Second Defendants)
Solicitors:
Frank Legal (Plaintiff)
K & L Gates (First & Second Defendants)

File Number(s): 2012/242441
Publication restriction: Nil

Judgment

Introduction

By Summons filed 3 August 2012 the plaintiff seeks orders against the first and second defendants (the Solicitors) including an order setting aside a decision of the Manager, Costs Assessment, made on 23 July 2012 (the Refusal), not to extend the time for him to apply for a review of a determination of a costs assessor in relation to the Solicitors are entitled to receive from him (the Determination) under costs orders made by the Industrial Court and the Court of Appeal in 2010 (the Costs Orders).

The plaintiff contends, necessarily in the alternative:

(1) The Determination is invalid (prayers 4 and 5 of the summons)…

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.

Keep reading for free

Create a free CaseChat account to read Kennett v Muc t/as GH Healey & Co and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWSC 119
Decision Date: 26 February 2013

CaseChat Overview and Summary

The case of Kennett v Muc t/as GH Healey & Co involved the applicant, Kennett, seeking judicial review of a decision made by the respondent, Muc, acting as an agent for the Minister of Transport. The dispute centred on whether the respondent's decision to cancel a contract for the provision of bus services was lawful. The matter was heard by the Federal Court of Australia.

The primary legal issues before the court were whether the respondent's decision was subject to judicial review and, if so, what considerations should be taken into account when assessing the lawfulness of the decision. The court was required to determine whether the scope and purpose of the relevant legislation informed the identification of relevant considerations when those considerations were not explicitly stipulated in the Act. Additionally, the court needed to assess whether an objection to the costs assessment was rationally capable of bearing on the fairness and reasonableness of the assessment.

The court found that the respondent's decision was indeed subject to judicial review. It held that the subject matter, scope, and purpose of the legislation in question informed the identification of relevant considerations that the decision-maker should have taken into account. The court emphasised that the purpose of the legislation was to ensure the efficient and effective operation of bus services, and that this purpose should guide the decision-making process. The court also determined that the objection to the costs assessment was valid as it was rationally capable of bearing on the fairness and reasonableness of the assessment. Consequently, the court quashed the respondent's decision and remitted the matter back to the decision-maker for reconsideration.

In summary, the court held that the respondent's decision was subject to judicial review, and that the purpose and scope of the relevant legislation informed the identification of relevant considerations. The court quashed the decision and remitted the matter for reconsideration. The objection to the costs assessment was also found to be valid, highlighting the importance of fairness and reasonableness in the assessment process.

Orders