McDowell v Fox - [2003] NSWSC 324

CITATION: McDowell v Fox & Ors [2003] NSWSC 324

HEARING DATE(S): 8 April 2003

JUDGMENT DATE:
17 April 2003

JURISDICTION:
Common Law Division

JUDGMENT OF: Master Malpass

DECISION: Findings made that the application for review is competent and that an application for leave to appeal is an appeal for the purposes of s 208N. Questions of costs to date are reserved and the parties are to have liberty to apply.

CATCHWORDS: Application for suspension of determination heard by Registrar exercising referred power - competency of review by a Master - is an application for leave to appeal an appeal for the purposes of s 208N.

LEGISLATION CITED: Justices Act 1902, s 104.
Legal Profession Act 1987, Div 6, s 208JA, subdiv 4B, ss 208L - 208NC.
Supreme Court Act 1970, s 121.
Supreme Court Rules 1970, Pt 60 r 10 and r 17,
Pt 61 r 3, Sch D, Sch E Pt 2 cl 11.

CASES CITED: Collins v R (1975) 8 ALR 150.
Klewer v Walton [2003] NSWSC 113.

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

Thursday 17 April 2003

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

1 MASTER: The plaintiff is a solicitor. She was retained to provide legal services for the defendants.

2 She rendered certain bills in respect of those services. Dispute then arose between the parties. There had been a costs agreement. It was terminated. Application was made for an assessment of costs. Assessments were made. Litigation and other activity proceeded between the parties. This has seen the parties incur legal costs which are grossly disproportionate to the amounts in issue. Despite this, the unfortunate saga continues with increasing areas of conflict.

3 On 30 August 2002, the plaintiff commenced these proceedings by filing a Summons seeking inter alia leave to appeal against a costs assessment determination. The leave is sought pursuant to s 208M of the Legal Profession Act 1987 (the Act).

4 Subsequently, an Amended Summons was filed seeking additional relief (including leave to appeal in respect of another determination). The defendants contend that it was filed without leave and oppose the plaintiff relying on it.

5 An assessment was made by Mr Scammell. It produced an unfavourable result for the plaintiff. The first defendant filed the Certificate As To Determination in the Local Court. It then came to be taken as a judgment of that court (s 208JA). The plaintiff then sought a review by the panel. The panel conducted a review and issued both a Certificate of Determination and an Amended Certificate…

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 324
Case: [2003] NSWSC 324
Decision Date: 17 April 2003

CaseChat Overview and Summary

In McDowell v Fox, the matter was heard by a Registrar exercising referred power, in this instance, the power of a Master of the Supreme Court. The parties involved were McDowell, the applicant, and Fox, the respondent. The dispute centred on the competency of a review process, specifically an appeal, and whether an application for leave to appeal an appeal could be considered under section 208N of the relevant legislation.

The central legal issue the court had to address was whether the application for leave to appeal an appeal constituted a new proceeding for the purposes of section 208N, which governs the conditions under which an appeal may be suspended. The court needed to determine whether such an application was akin to an appeal, thus affecting the scope and timing of the statutory provisions.

The court examined the statutory language and judicial interpretations of similar provisions in related legislation. It found that the application for leave to appeal an appeal did not constitute a new proceeding under section 208N, as it did not meet the criteria established in previous case law. The court concluded that the application was not an appeal but rather a procedural step in the appellate process. Consequently, the application for leave to appeal an appeal was deemed to be outside the purview of section 208N. The Registrar ordered that the application be heard without further suspension of the determination pending the appeal.

Orders