Mirus Australia Pty Ltd v Wilson - [2023] NSWSC 1432

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432
Hearing dates: 15 November 2022
Date of orders: 24 November 2023
Decision date: 24 November 2023
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1)   Grant the plaintiff leave to appeal.
(2)   Appeal allowed.
(3) Remit the application for review dated 25 June 2021 to the Manager, Costs Assessment for referral to a review panel under clause 47 Legal Profession Uniform Law Application Regulation 2014 (NSW) for the determination of the sole question of the costs of the review and by whom they are payable in accordance with these reasons with a view to the issue of a certificate under s 87, Legal Profession Uniform Law Application Act 2014 (NSW) limited to that question.
(4)   To the extent necessary, grant leave to the defendant to cross appeal.
(5)   Cross appeal dismissed.
(6)   The defendant to pay the plaintiff’s costs of the appeal and the cross appeal.

Catchwords:
COSTS — appeal from review panel — whether the review panel had power to award costs of the review — whether the review panel provided adequate reasons regarding whether the costs respondent was given a reasonable opportunity to participate in the first instance costs assessment
COSTS — appeal from review panel — consideration of whether leave ought to be granted in relation to costs under the threshold amount — issue of law not previously considered by the Supreme Court — matter of public importance and practical significance — leave granted
COSTS — appeal from review panel — cross appeal — satisfied reasons are legally adequate — reasons explain actual path of reasoning in sufficient detail
COSTS — appeal from review panel — appeal — review panel has power to award costs of the review

Legislation Cited:
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW) ss 63, 69-71, 76, 78, 82-89
Legal Profession Uniform Law Application Regulation 2015 (NSW) cll 35, 44, 45, 47, 48, 51
Legal Profession Uniform Law (NSW) ss 196, 204
Supreme Court Act 1970 (NSW) ss 19, 75

Cases Cited:
Ahern v Aon Risk Services Australia Limited [2021] NSWCA 166
Allesch v Maunz (2000) 203 CLR 172; [2002] HCA 40
Frumar v The Owners of Strata Plan 36957 (2006) 67 NSWLR 321; [2006] NSWCA 278
Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98
Gilmore Finance Pty Ltd v Aesthete (No 3) Pty Ltd [2020] NSWCA 114
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Ramsay v Gatland [2022] NSWSC 1514
State of New South Wales v Kaiser (2022) 108 NSWLR 476; [2022] NSWCA 86
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category: Principal judgment

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.

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Details

Case: [2023] NSWSC 1432
Decision Date: 24 November 2023

CaseChat Overview and Summary

Mirus Australia Pty Ltd, the appellant, brought an appeal against a review panel’s decision regarding the awarding of costs in a case against Wilson, the respondent. The dispute centred on whether the review panel had the authority to award costs incurred during the review process and whether it provided sufficient reasoning regarding whether the respondent had a reasonable opportunity to participate in the initial costs assessment. The case was heard in the Supreme Court of New South Wales.

The primary legal issues addressed were the scope of the review panel's power to award costs and the adequacy of the reasons provided by the review panel. The court had to determine if the review panel's decision was legally sound and whether it followed the correct legal principles. Additionally, the court examined whether the review panel had given the respondent a fair opportunity to participate in the first instance costs assessment, and if the reasons provided by the panel were legally adequate.

The court concluded that the review panel did possess the authority to award costs related to the review. It found that the reasons provided by the review panel were legally adequate, as they sufficiently explained the reasoning path taken. The court also granted leave for the appeal regarding costs under the threshold amount, recognising the matter's public importance and practical significance, as it was an issue of law not previously considered by the Supreme Court. The court's decision highlighted the necessity for adequate reasons and fair participation opportunities in cost assessments.

The final orders of the court were that the review panel's decision to award costs was upheld, and leave was granted for the appeal concerning costs under the threshold amount. The court emphasised the importance of clear and legally sufficient reasons in such proceedings.

Orders