Lemoto v Able Technical Pty Ltd

The appeal concerned a costs order made against a solicitor, Ms Ryan, pursuant to section 198M of the *Legal Profession Act 1987* (NSW). The primary judge had found that the plaintiff, Ms Lemoto, had failed to establish a causal connection between her workplace incident and her subsequent condition, and also that the defendants had not breached their duty of care. Following these findings, the primary judge made an order against Ms Ryan, the solicitor for Ms Lemoto, on the basis that her client's claim was brought without reasonable prospects of success. Ms Ryan appealed this order.

The central legal issues before the appellate court were whether the primary judge had erred in making the costs order against Ms Ryan. This involved determining whether the plaintiff's case was indeed without reasonable prospects of success, and crucially, whether the principles of natural justice had been observed. Specifically, the court considered whether Ms Ryan had been given sufficient notice of the basis on which the costs order might be made against her and a proper opportunity to respond to that specific question.

The appellate court reasoned that while the primary judge had found the plaintiff's case had failed on the balance of probabilities, this did not automatically equate to the claim being brought without reasonable prospects of success. The primary judge's own comments indicated that there was room for a favourable interpretation of the medical evidence, and that a causal connection could not be excluded as a possibility. Furthermore, the court found that the procedure adopted by the primary judge in making the s 198M application did not afford Ms Ryan procedural fairness. She was not given adequate notice of the specific grounds upon which the costs order was being sought against her, nor a sufficient opportunity to make submissions in response to that specific application.

Consequently, the appellate court allowed the appeal, set aside the costs order made against Ms Ryan, and ordered the respondents to pay Ms Ryan's costs of the appeal.