McDonald v Price - [2011] NSWSC 70

Supreme Court

New South Wales

Medium Neutral Citation: McDonald v Price [2011] NSWSC 70
Hearing dates: 10 February 2011
Decision date: 24 February 2011
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Leave to appeal refused.
(2) The Summons is otherwise dismissed. (3) The Plaintiff is to pay the Defendant's costs.

Catchwords: PROCEDURE - costs - appeal as to costs - Plaintiff claims damages for assault in the General Division of the Local Court - award of damages less than the jurisdiction of the Small Claims Division - Magistrate assesses costs summarily - whether Magistrate bound under Practice Note to refer costs for assessment.
APPEAL AND NEW TRIAL - leave to appeal required - what must be shown for leave to be granted - status of Practice Note - subservience of Practice Note to Civil Procedure Act and Rules of Court - no matter of public importance shown.
Legislation Cited: Civil Procedure Act 2005
Legal Profession Regulation 2005
Local Court Act 2007
Cases Cited: Ashi Pty Limited trading as LJ Hooker Commercial Liverpool v Karasco Investments Pty Ltd [2009] NSWSC 780
Carey v Robson & Anor; Nicholls v Robson & Anor (No 2) [2009] NSWSC 1199
Halpin & Ors v Lumley General Insurance Ltd [2009] NSWCA 372
Kelly v Norris & 1 Ors [2004] NSWCA 260
Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 577
Texts Cited: Pearce & Geddes, Statutory Interpretation in Australia, 5th ed, Sydney, Butterworths (2001)
Category: Principal judgment
Parties: Anthony Charles McDonald (Plaintiff)
Gregory Price (Defendant)
Representation: Counsel:
S A Benson (Plaintiff)
A Combe (Defendant)
Solicitors:
Kelso's The Law Firm (Plaintiff)
Rankin Nathan Lawyers (Defendant)

File Number(s): 2010/296913
Decision under appeal

Date of Decision:

2010-08-05 00:00:00

Before:

Magistrate Truscott

Judgment

The Plaintiff sued the Defendant in the Local Court claiming damages for an assault the Defendant was alleged to have perpetrated on the Plaintiff. The learned Magistrate who heard the claim awarded damages to the Plaintiff of $6,341.32 plus disbursements.

The parties subsequently could not agree on what costs should be paid with the result that the Defendant by Notice of Motion sought that the Plaintiff's costs and disbursements be assessed under the Small Claims Division of the Local Court pursuant to the Legal Profession Regulation 2005 Schedule, and that in total the costs and disbursements be assessed and ordered at $745.36 inclusive of GST. That figure appears to have been derived from the Scale of Fixed Solicitor's Costs for default judgment on a liquidated debt in the Small Claims Division where the amount in issue was between $5,001 and $20,000.

The Magistrate determined, after a brief hearing, that the Plaintiff should be awarded costs of $1,500, $33 for clinical notes from a doctor and the Plaintiff's filing fees.

The Plaintiff now seeks leave to appeal from that award of costs by the Magistrate.

The Magistrate's reasons

The Magistrate said this:

HER HONOUR: This is a notice of motion by the defendant for the costs claimed by the plaintiff following an order that the defendant pay…

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.

Continue reading McDonald v Price

Details

AGLC: McDonald v Price [2011] NSWSC 70
Case: [2011] NSWSC 70
Decision Date: 24 February 2011

CaseChat Overview and Summary

In the matter of McDonald v Price, the dispute centred on the assessment of costs following a claim for damages due to an assault. The proceedings were initially filed in the General Division of the Local Court, but the damages awarded were less than the jurisdiction limit of the Small Claims Division. Following the trial, the Magistrate summarily assessed the costs. The plaintiff, McDonald, challenged this decision, asserting that the Magistrate was obligated under a specific Practice Note to refer the costs for formal assessment rather than making a summary assessment.

The legal issues before the court involved the applicability of the Practice Note to the circumstances of the case and whether the Magistrate was bound by its provisions in assessing costs. Furthermore, the court had to determine the criteria for granting leave to appeal the Magistrate's decision on costs and the status of the Practice Note in relation to the Civil Procedure Act and the Rules of Court.

The court found that the Practice Note was subservient to the Civil Procedure Act and the Rules of Court, and thus, the Magistrate had discretion to summarily assess the costs in this instance. The court also determined that McDonald did not meet the threshold for showing that the matter was of public importance or otherwise warranted an appeal on the costs issue. Consequently, the court dismissed McDonald's appeal and confirmed that the Magistrate's summary assessment of costs was within their discretion.

As a result of the court's decision, McDonald's appeal was dismissed, and the original costs assessment by the Magistrate was upheld. The court made no further orders regarding costs or any other matters.

Orders