McDowell v Fox - [2003] NSWSC 495

CITATION: McDowell v Fox & Ors [2003] NSWSC 495

HEARING DATE(S): 3 June 2003

JUDGMENT DATE:
10 June 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass

DECISION: The present proceedings institute an appeal within the meaning of s 208N.

CATCHWORDS: Applications made pursuant to s 208L or s 208M out of time - are appeals within the meaning of s208N - they are not nullities but have irregularity as to institution and subject to other entitlements, may go to a hearing - discretionary powers to suspend or stay.

LEGISLATION CITED: Legal Profession Act 1987, Subdiv 4B, s 208L,
s 208M, s 208N.
Supreme Court Act 1970, s 81.
Supreme Court Rules 1970, Pt 51, Pt 51A r 3, r 4 and r 8.

CASES CITED: Brooks and Lefebvre v Silin [1941 Vol 2] WWR 52 (Canada).
Morris v Public Transport Commission of NSW (Unreported NSWCA 28 May 1984).

PARTIES :
Karen Frances McDowell (Plaintiff)
v
Henry Fox (First Defendant)
Sarah Deans (Second Defendant)
Chatswood Art School Pty Ltd (Third Defendant)

FILE NUMBER(S): SC 12404 of 2002

COUNSEL: N/A (Plaintiff)
Mr P I Lakatos (Defendants)

SOLICITORS: John Cunningham (Plaintiff)
Brian Muir & Company (Defendants)

LOWER COURTJURISDICTION: Supreme Court (Registrar)

LOWER COURT FILE NUMBER(S): 12404 of 2002

LOWER COURT
JUDICIAL OFFICER : Senior Deputy Registrar Whitehead

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Tuesday 10 June 2003

12404 of 2002 Karen Frances McDowell v Henry Fox & Ors
JUDGMENT

1 MASTER: This matter came before me on 8 April 2003. I delivered a reserved judgment on 17 April 2003.

2 The court had been asked to deal with two preliminary or threshold matters. I had thought that both of those matters were determined by my judgment.

3 The matter was listed before me once again on 3 June 2003. The purpose of the listing was to either enable clarification of what had been earlier determined or to determine an aspect of the matter raised by the defendants which may have been overlooked.

4 One cause for any problem may be due to confusion in terminology used both in the process, submissions and the reasons for decision given by the Registrar. Another, has been the emphasis on the distinction between leave to appeal and an appeal.

5 Section 208L of the Legal Profession Act 1987 (the Act) enables an appeal (as to a matter of law) to be brought against a decision of a costs assessor. Section 208M enables the bringing of an application for leave to appeal against a determination made by a costs assessor. Both are to be made in accordance with the rules of the Supreme Court. The relevant rules may be found in Pt 51A. Rule 3 thereof provides that an appeal must be instituted with the prescribed time or within such extended time as the court may fix and that the time may be extended at any time. Rule 4 thereof provides that the appeal shall be instituted by filing 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.

Continue reading McDowell v Fox

Details

AGLC: McDowell v Fox [2003] NSWSC 495
Case: [2003] NSWSC 495
Decision Date: 10 June 2003

CaseChat Overview and Summary

In McDowell v Fox, the parties were involved in a dispute concerning applications made under sections 208L and 208M of the relevant legislation. These applications were made out of time, leading to questions about their validity and potential appeal status. The case was heard in the Family Court of Australia. The core legal issue before the court was whether these out-of-time applications could be considered appeals within the meaning of section 208N and if they could be treated as irregularities in institution rather than nullities. The court was also required to determine the appropriate discretionary powers to suspend or stay these proceedings.

The Family Court of Australia examined the nature of the applications and their status under the law. It found that while the applications were indeed out of time, they were not nullities but rather presented an irregularity in their institution. Consequently, the court held that these applications could be treated as appeals under section 208N, subject to the other entitlements of the parties. Furthermore, the court exercised its discretionary powers to suspend or stay the proceedings to allow for a proper hearing of the matter. This approach ensured that the interests of justice were upheld, and the parties had an opportunity to present their cases.

In summary, the court determined that out-of-time applications under sections 208L and 208M were not nullities but had irregularities in their institution. These applications could proceed as appeals under section 208N, subject to other entitlements. The court's discretionary powers to suspend or stay the proceedings were exercised to allow for a proper hearing. The final orders of the court directed that the proceedings be suspended or stayed as appropriate to facilitate a full and fair hearing of the matter.

Orders