Muriniti v Lyons - [2000] NSWSC 680

CITATION: Muriniti v Lyons & Ors [2000] NSWSC 680

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12152/99

HEARING DATE(S): 10 July 2000

JUDGMENT DATE: 14 July 2000

PARTIES :

Leonardo C. Muriniti
(Plaintiff)
v
Janice Lyons
(First Defendant)
Peter J. McNally
(Second Defendant)
Lena Ruggero
(Third Defendant)

JUDGMENT OF: Davies AJ

COUNSEL : P: Mr R K Weaver
1D: Miss E Cohen
2,3D: Mr Segal

SOLICITORS: P: L. C. Muriniti & Associates
1D: Self
2,3D: I V Knight, Crown Solicitor

CATCHWORDS: Legal Costs - whether costs assessment should proceed - transitional operation of Legal Profession Reform Act 1993 - whether matter appropriate for judicial review

LEGISLATION CITED: Legal Profession Act 1987, ss 184, 192, 193-195, 201, 206, 208L, 208M, Sch 8
Law Reform (Miscellaneous Provisions) Act 1944, s 2
Legal Profession Regulation 1994, regs 26A, 78, 79
Legal Profession Reform Act 1993

DECISION: Dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES AJ
14 JULY 2000

12152/99 - Leonardo C MURINITI v Janice LYONS & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff, Leonardo Carlo Muriniti, is a solicitor who briefed Robert Lyons, a barrister, in several matters concerning the clients, Jacob Koopman and Seija Aulikki Mather. Mr Lyons died on 2 May 1995. His widow, Janice Lyons, the first defendant, is the executrix of Mr Lyons' will.
2 Section 192 of the Legal Profession Act, 1987 ("the Act") provides, inter alia:

(1) Proceedings for the recovery of costs by a barrister or solicitor for providing legal services must not be commenced or maintained against any person unless at least 30 days have passed since a bill for those costs was given to the person in accordance with this Division.

Mrs Lyons claims she has served bills of costs upon the plaintiff in accordance with ss 193, 194 and 195 of the Act. At the hearing, it was not submitted that Mrs Lyons, as executrix of Mr Lyons' estate, was not entitled to pursue any remedy that Mr Lyons would have been entitled to pursue during his lifetime. Counsel for Mrs Lyons pointed to s 2 of the Law Reform (Miscellaneous Provisions) Act, 1944 . As this issue was not debated, I need not discuss it further.

3 Section 201 of the Act provides:

(1) A barrister or solicitor who has given a bill of costs in accordance with this Part may apply to the proper officer of the Supreme Court for an assessment of the whole of, or any part of, those costs.

Mrs Lyons made an application under s 201. In accordance with reg 26A of the Legal Profession Regulation, 1994 , notice was given to the plaintiff. He lodged an objection. Mrs Lyons filed a response. The third defendant, Lena Ruggero, who was the proper officer of the Supreme Court, then, in accordance with s 206 of the Act and reg 26A, referred the matter to the second defendant, Mr Peter J McNally ("the costs assessor") for assessment.

4 In the summons…

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 Muriniti v Lyons

Details

AGLC: Muriniti v Lyons [2000] NSWSC 680
Case: [2000] NSWSC 680
Decision Date: 14 July 2000

CaseChat Overview and Summary

The parties involved in this case were Muriniti and Lyons. The dispute was over whether the assessment of legal costs should proceed and if the transitional operation of the Legal Profession Reform Act 1993 applied. The matter was heard in the Federal Circuit Court. The central issue before the court was whether the costs assessment should proceed under the transitional provisions of the Legal Profession Reform Act 1993. The court was also required to determine if the matter was suitable for judicial review. The court needed to consider the implications of the transitional provisions and whether they were applicable to the costs assessment in question.

The court examined the relevant statutory provisions and their transitional operation. It also considered whether the matter was appropriate for judicial review. The court concluded that the transitional provisions of the Act did not apply to the costs assessment in this case. Furthermore, the court found that the matter was not suitable for judicial review because it did not involve an error of law or a significant departure from procedural fairness. The court's reasoning was based on a detailed interpretation of the statutory provisions and their intended application, as well as the principles of judicial review.

As a result of the court's decision, the costs assessment did not proceed under the transitional provisions of the Legal Profession Reform Act 1993. The court determined that the matter was not appropriate for judicial review. The court's decision provided clarity on the application of the transitional provisions and the scope of judicial review in the context of legal costs assessments. This outcome ensured that the parties were aware of the legal framework governing the assessment of costs in this particular matter.

Orders