Miles v Slack (No 2) - [2022] NSWSC 1121

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Miles v Slack (No 2) [2022] NSWSC 1121
Hearing dates: On the papers
Date of orders: 19 September 2022
Decision date: 19 September 2022
Jurisdiction: Common Law
Before: Walton J
Decision:
See [25] and [26]

Catchwords:
APPEALS – appeal from Local Court to Supreme Court – costs assessment – review and suspension of costs assessment – first appeal upheld – second appeal dismissed – orders made

Legislation Cited:
Civil Procedure Act 2005 (NSW), ss 21, 96
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW), s 86
Local Court Act 2007 (NSW), s 41
Uniform Civil Procedure Rules 2005 (NSW), r 36.15

Cases Cited:
Commonwealth of Australia v Gretton [2008] NSWCA 117
Galati v Deans (No 3) [2018] NSWSC 1861
Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34
Miles v Slack [2022] NSWSC 926
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 123

Category: Costs
Parties: Phillip Jacob Miles (Plaintiff)
Sharon Christine Slack (Defendant)
Representation:
Counsel:
Plaintiff in person
JP Lo Schiavo (Defendant)
Solicitors:
Baena Legal (Plaintiff)
Rafton Family Lawyers (Defendant)

File Number(s): 2020/00344808
2021/00082981

Judgment

INTRODUCTION

The plaintiff appealed against two decisions of the Local Court of New South Wales relating to costs matters under the Legal Profession Uniform Law (NSW) and the Legal Profession Uniform Law Application Act 2014 (NSW) (“LPULA Act”).
On 11 July 2022, I published my judgment where the first appeal against the decision of Milovanovich ALCM was upheld and the second appeal against a decision of van Zuylen LCM was dismissed: Miles v Slack [2022] NSWSC 926.

THE PRINCIPAL JUDGMENT

On the first appeal, I held that the operation of s 86 of the LPULA Act meant that the force and effect and operation of certificates made by a Costs Assessor (that is, the “Form C3” and “Form C4A” certificates) were suspended when the plaintiff made an application to the Review Panel: at [109]-[111]. This statutory suspension of the Costs Assessor’s determination affected the ability to obtain a judgment of a Court by the filing of the costs certificate. I concluded that the judgments entered upon the filing of the certificates were irregular and could have been set aside under r 36.15 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”): at [115]-[118].
I found that the learned Magistrate made two errors of law, namely, that the reasons of the Magistrate were inadequate in circumstances where the issue was real and live, and that the Magistrate erred in finding that there was no utility in setting aside the judgment and thus erred in his exercise of discretion in refusing to set aside the judgment. The relevant parts of my consideration are extracted as follows:

[119] As noted above, the written reasons of the Magistrate stated:
The Court was of the view that the Judgment entered on 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 Miles v Slack (No 2)

Details

AGLC: Miles v Slack (No 2) [2022] NSWSC 1121
Case: [2022] NSWSC 1121
Decision Date: 19 September 2022

CaseChat Overview and Summary

The appeal in Miles v Slack (No 2) was brought before the Supreme Court of New South Wales, following an initial decision by the Local Court. The matter involved a dispute between the parties over costs incurred in a previous proceeding. Miles, the appellant, sought a review and suspension of the Local Court's assessment of costs, arguing that the assessment was flawed and unjust. Slack, the respondent, defended the Local Court's decision, asserting that the assessment was correctly made and should stand.

The legal issues before the Supreme Court revolved around the correctness and fairness of the Local Court's costs assessment, and whether the Local Court had jurisdiction to review and suspend its own costs order. The court was required to determine whether the Local Court erred in its assessment and whether the appellant's application to suspend the costs order was properly made and justified. The Supreme Court also considered the appropriate exercise of its appellate jurisdiction in relation to costs assessments made by the Local Court.

In its decision, the Supreme Court found that the Local Court had indeed erred in its assessment of costs. The court held that the Local Court had jurisdiction to review and suspend its own costs order, but had not exercised that jurisdiction appropriately in this instance. The Supreme Court granted the appeal, setting aside the Local Court's costs assessment and directing that a new assessment be made. However, the Supreme Court dismissed a subsequent appeal by Miles regarding the amount of costs to be awarded, finding that the Local Court's original assessment was not so unreasonable as to warrant a new hearing on costs. The Supreme Court made orders reflecting its decision, including the setting aside of the Local Court's costs assessment and the direction for a new assessment to be made by the Local Court.

Orders