Poole v Turner

[2004] NSWSC 708

CITATION:	Poole v Turner [2004] NSWSC 708
HEARING DATE(S):	4 August 2004
JUDGMENT DATE:	4 August 2004
JURISDICTION:	Common Law
JUDGMENT OF:	Master Malpass at 1
DECISION:	1. The summons is dismissed; 2. The plaintiff to pay the costs of the summons; 3. The costs payable by the plaintiff on and as from 27 May 2004 to be paid on an indemnity basis; 4. The exhibits to be returned
CATCHWORDS:	Application for leave to appeal from determination of a costs assessor - costs payable under order made by the Local Court - only the court that made the order has jurisdiction to entertain the application
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Turner v Pride [1999] NSWSC 850
PARTIES :	Prescilla Poole Shane Turner
FILE NUMBER(S):	SC 11131/04
COUNSEL:	Plaintiff: Ms L K Robinson Defendant: Mr J Miller
SOLICITORS:	Plaintiff: Slade Manwaring Defendant: William Cotsis & Associates

LOWER COURTJURISDICTION:	Costs assessment
LOWER COURT FILE NUMBER(S):	90050/04
LOWER COURT JUDICIAL OFFICER :	Costs assessor R W Gulley

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Master Malpass

Wednesday 4 August 2004

11131/04 Prescilla Poole v Shane Turner

JUDGMENT

1 Master: The parties were involved in proceedings before the Local Court. Each was seeking an apprehended violence order against the other.

2 There was a contested hearing on 13 December 2002. The learned magistrate dismissed the plaintiff’s application and granted the defendant’s application.

3 A subsequent appeal brought by the plaintiff was abandoned. Accordingly, whatever orders were made by the Local Court presently stand.

4 The defendant took steps to recover his costs. An application for assessment was made to this court. The application was referred to a costs assessor (Mr Gulley). He proceeded to make an assessment. On 25 March 2004 he issued a certificate as to determination. He assessed the costs payable by the plaintiff in the sum of $5,414.04.

5 On 21 April 2004 the plaintiff filed a summons in this court. She now proceeds on an amended summons which was filed in court on 15 June 2004. It seeks, inter alia, an order that the determination be set aside.

6 A challenge is made to the jurisdiction of the costs assessor. In part, it looks to provisions of s202(3) of the Legal Profession Act 1987 (the Act). Otherwise, it looks to provisions of the Justices Act. This part of the challenge appears to go to a question of the jurisdiction of the Local Court to make the subject costs order. None of these matters were agitated before the costs assessor.

7 Before the costs assessor the plaintiff did agitate the question of whether or not an order had been made. He considered the submissions made by the parties and the relevant transcript was put before him. His written reasons disclose that he had read the transcript and that he then came to the view that he was satisfied that an order had been made.

8 As I understand the position, the contention that no order was made is no longer pressed. It now seems to be accepted that the Local Court did purport to make an order.

9 Rather than seek a review by a panel, the plaintiff has chosen to seek relief in this court. The ambit of challenge available to the plaintiff is pursuant to ss208L and 208M of the Act.

10 It has been faintly suggested by counsel for the plaintiff that the amended summons propounds a claim for relief under s208L. Such a contention is opposed by counsel for the defendant. On my reading of the amended summons it is untenable. I should add that this contention was only raised shortly before I was about to deliver judgment on a preliminary question of the plaintiff’s entitlement to relief pursuant to s208M. The case had been earlier opened as being one in which the plaintiff was seeking relief pursuant to s208M only.

11 Under s208M the court may grant leave to appeal. In the amended summons this is the first claim for relief.

12 Shortly after the commencement of the hearing I raised a concern that in the particular circumstances of this case any application for leave before this court was incompetent. I then gave the parties the opportunity to give the question further consideration and to obtain instructions.

13 Upon resumption of the hearing, counsel for the plaintiff informed the court that she was instructed to proceed with the application for leave. Counsel for the defendant then proceeded to ask for a dismissal of the proceedings, inter alia, on the ground of lack of jurisdiction.

14 Following that application I proceeded to hear the question as a preliminary point. It seemed to me that to do so was in the best interests of both the parties in the court.

15 The structure of the legislation provides procedures for the assessment of costs, both where there has been an application relating to a bill of costs and an application relating to costs payable as a result of an order. They are separate and distinguishable procedures.

16 These proceedings are brought in respect of an order made by the Local Court and an assessment made pursuant to subdivision 3 of Division 6 of the Act (an application relating to costs payable as the result of an order).

17 In these circumstances, any application for leave must be made to the Local Court (see Turner v Pride [1999] NSWSC 850).

18 In Turner it was observed that:

Section 208M prescribes the avenues for leave to appeal. Where there has been an application relating to “a bill of costs”, the section enables the seeking of leave to appeal in this Court. Where there has been an application relating to costs payable as a result of an order, the section enables the making of the application for leave to the court or tribunal that made the order.

19 In my view a contention that subsections (1) and (2) of s208M offer alternatives to a party is untenable. It seems to me to fly in the face of the structure and the objects of the Act and the clear language of this particular section.

20 The plaintiff is the party seeking relief in this court. She bears the onus of demonstrating an entitlement to the relief she seeks. In my view she has failed to demonstrate that this court has jurisdiction to entertain the application for leave.

Orders

21 The summons is dismissed. The plaintiff is to pay the costs of the proceedings. Exhibits may be returned.

(Counsel addressed on indemnity costs.)

22 An application is made for the costs to be paid on an indemnity basis. Whilst it is unfortunate that in a matter such as this such a consideration should arise, the material placed before me discloses that the defendant is entitled to an order for indemnity costs.

23 Accordingly, I order that the costs payable by the plaintiff as and from 27 May 2004 be paid on an indemnity basis. Exhibit 2 can now be returned.

oOo

Last Modified: 08/06/2004