La Spina v Macdonnells Law - [2014] QCA 44

SUPREME COURT OF QUEENSLAND

CITATION:

La Spina v Macdonnells Law [2014] QCA 44

PARTIES:

SONIA SARINA LA SPINA
(appellant)
v
MACDONNELLS LAW
(respondent)

FILE NO/S:

Appeal No 5322 of 2013
DC No 47 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

11 March 2014

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2014

JUDGES:

Holmes and Muir JJA and Mullins J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.     The appeal be allowed.

2.     The orders of the primary judge made on 17 May 2013 be set aside.

3.     The judgment entered on 17 May 2013 be set aside.

4.     The respondent pay the appellant’s costs of the appeal on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant appeals against an order of the primary judge – where the primary judge ordered the appellant to pay to the respondent $168,067.84, the sum certified by a costs assessor as being his assessment of the costs payable by the appellant to the respondent pursuant to an itemised tax invoice – where the appellant engaged the respondent to carry out legal services in relation to a matrimonial dispute – where the respondent claimed $202,843.44 for legal services provided to the appellant pursuant to a costs agreement – where the appellant objected to the respondent’s statement of costs – where the appellant requested that a costs assessor assess the costs statement – where the appellant applied to the Court to review the decision in the costs assessor’s certificate of assessment of costs – where the review of the costs assessor’s assessment was dismissed – where the respondent filed an application in the proceedings seeking judgment in its favour for the sum of $168,067.84 and a lifting of a stay on the respondent’s obtaining judgment – where the appellant was unable to attend the hearing of the application – where the primary judge ordered that the stay be lifted and that the respondent be entitled to judgment on the cost assessor’s certificate – where the appellant did not receive two days notice of the application filed in the proceeding as required by r 31 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the primary judge erred in not affording the appellant an opportunity to be heard in respect to the respondent’s application – whether the appellant was denied natural justice

Legal Profession Act 2007 (Qld), s 315, s 316, s 316(4), s 317, s 341
Uniform Civil Procedure Rules 1999 (Qld), r 31, r 742, r 743B(1), r 743B(3), r 743H, r 743H(4), r 743I

Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21, considered

COUNSEL:

The appellant appeared on her own behalf
M A Jonsson for the respondent

SOLICITORS:

The…

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 La Spina v Macdonnells Law 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: [2014] QCA 44
Decision Date: 11 March 2014

CaseChat Overview and Summary

The appeal in La Spina v Macdonnells Law was brought by the appellant against an order made by the primary judge, which required the appellant to pay the respondent $168,067.84 in legal costs. The appellant had engaged the respondent to provide legal services concerning a matrimonial dispute and had objected to the respondent's statement of costs. The respondent had claimed $202,843.44 for the services rendered, and the appellant had requested a costs assessor to review the statement of costs. Following the assessor's certification of the costs, the respondent applied for judgment and the lifting of a stay on obtaining judgment. The primary judge ordered the stay to be lifted and granted judgment to the respondent on the basis of the costs assessor's certificate. The appellant, however, had not received the required two days' notice of the application under rule 31 of the Uniform Civil Procedure Rules 1999 (Qld), and thus did not attend the hearing.

The central legal issue before the court was whether the primary judge had erred in not providing the appellant with an opportunity to be heard in respect of the respondent's application for judgment. Specifically, the court needed to determine whether the appellant had been denied natural justice due to the lack of notice and, consequently, if the orders made by the primary judge should be set aside. The court also needed to assess if the failure to provide proper notice constituted a breach of procedural fairness.

The court found that the primary judge had indeed erred by not allowing the appellant an opportunity to be heard before making the order. The lack of notice given to the appellant breached the principles of natural justice and procedural fairness. Consequently, the court allowed the appeal, set aside the orders made by the primary judge on 17 May 2013, and vacated the judgment entered on the same date. Furthermore, the court ordered the respondent to pay the appellant's costs of the appeal on the standard basis.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the primary judge made on 17 May 2013 be set aside.

3. The judgment entered on 17 May 2013 be set aside.

4. The respondent pay the appellant’s costs of the appeal on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	La Spina v Macdonnells Law [2014] QCA 44
PARTIES:	SONIA SARINA LA SPINA (appellant) v MACDONNELLS LAW (respondent)
FILE NO/S:	Appeal No 5322 of 2013 DC No 47 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	11 March 2014
DELIVERED AT:	Brisbane
HEARING DATE:	19 February 2014
JUDGES:	Holmes and Muir JJA and Mullins J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The appeal be allowed. 2. The orders of the primary judge made on 17 May 2013 be set aside. 3. The judgment entered on 17 May 2013 be set aside. 4. The respondent pay the appellant’s costs of the appeal on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where the appellant appeals against an order of the primary judge – where the primary judge ordered the appellant to pay to the respondent $168,067.84, the sum certified by a costs assessor as being his assessment of the costs payable by the appellant to the respondent pursuant to an itemised tax invoice – where the appellant engaged the respondent to carry out legal services in relation to a matrimonial dispute – where the respondent claimed $202,843.44 for legal services provided to the appellant pursuant to a costs agreement – where the appellant objected to the respondent’s statement of costs – where the appellant requested that a costs assessor assess the costs statement – where the appellant applied to the Court to review the decision in the costs assessor’s certificate of assessment of costs – where the review of the costs assessor’s assessment was dismissed – where the respondent filed an application in the proceedings seeking judgment in its favour for the sum of $168,067.84 and a lifting of a stay on the respondent’s obtaining judgment – where the appellant was unable to attend the hearing of the application – where the primary judge ordered that the stay be lifted and that the respondent be entitled to judgment on the cost assessor’s certificate – where the appellant did not receive two days notice of the application filed in the proceeding as required by r 31 of the Uniform Civil Procedure Rules 1999 (Qld) – whether the primary judge erred in not affording the appellant an opportunity to be heard in respect to the respondent’s application – whether the appellant was denied natural justice Legal Profession Act 2007 (Qld), s 315, s 316, s 316(4), s 317, s 341 Uniform Civil Procedure Rules 1999 (Qld), r 31, r 742, r 743B(1), r 743B(3), r 743H, r 743H(4), r 743I Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21, considered
COUNSEL:	The appellant appeared on her own behalf M A Jonsson for the respondent
SOLICITORS:	The…