Radich v Kenway - [2014] QCA 301

SUPREME COURT OF QUEENSLAND

CITATION:

Radich v Kenway & Anor [2014] QCA 301

PARTIES:

NICHOLAS RADICH
(applicant)
v
GILLIAN KENWAY
(first respondent)
BRIAN SMITH
(second respondent)

FILE NO/S:

Appeal No 4026 of 2014
DC No 422 of 2012

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

25 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2014

JUDGES:

Margaret McMurdo P and Applegarth and Boddice JJ
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for an extension of time to apply for leave to appeal is refused, with costs.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – WHEN REFUSED – where the Magistrates Court of Queensland affirmed a costs assessment in respect of two bills issued by the applicant to his then clients, the respondents – where an appeal of that decision to the District Court was dismissed – where the applicant seeks leave to appeal out of time the decision of the District Court – whether leave to appeal should be granted

PROCEDURE – COSTS – APPEAL AS TO COSTS – where the Magistrates Court of Queensland affirmed a costs assessment in respect of two bills issued by the applicant to his then clients, the respondents – where an appeal of that decision to the District Court was dismissed – where the applicant seeks leave to appeal out of time the decision of the District Court – whether, if leave to appeal is granted, the District Court Judge correctly found the costs assessment complied with rule 720 of the Uniform Civil Procedure Rules 1999 (Qld) – whether, if leave to appeal is granted, the Magistrate properly confirmed the decision of the costs assessor, notwithstanding a breach of natural justice in the initial assessment, and the evidence of another costs assessor

Legal Profession Act 2007 (Qld), s 316(1), s 335, s 341(1)
Uniform Civil Procedure Rules 1999 (Qld), r 720, r 743A(5)

Radich v Kenway & Anor [2014] QDC 60, cited

COUNSEL:

A Morris QC, with A Barlow, for the applicant
B Porter for the respondent

SOLICITORS:

N Radich for the applicant
Bernard Ponting & Co for the respondent

MARGARET McMURDO P: This application for an extension of time to apply for leave to appeal should be refused with costs for the reasons given by Boddice J.

APPLEGARTH J: I agree with the reasons of Boddice J and with the order proposed by his Honour.

BODDICE J: The applicant seeks leave to appeal out of time a decision of the District Court of Queensland dismissing an appeal against a decision of the Magistrates Court of Queensland affirming a costs assessment in respect of two bills issued by the applicant to his then clients, the respondents.

At issue, should leave to appeal be given, is whether the District Court Judge correctly found the costs…

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 Radich v Kenway

Details

AGLC: Radich v Kenway [2014] QCA 301
Case: [2014] QCA 301
Decision Date: 25 November 2014

CaseChat Overview and Summary

The case of Radich v Kenway involves the applicant, Radich, seeking leave to appeal out of time a decision by the District Court of Queensland, which had dismissed his appeal against a costs assessment made by the Magistrates Court. The initial dispute involved two bills issued by Radich to his then clients, the respondents, Kenway, and the Magistrates Court had affirmed the assessment of costs against them. When Radich appealed the Magistrates Court's decision to the District Court, that appeal was dismissed, leading Radich to now seek leave to appeal out of time the District Court's decision. The central legal issues before the court were whether leave to appeal should be granted and, if so, whether the District Court judge correctly upheld the costs assessment and whether the Magistrate properly confirmed the assessment despite alleged breaches of natural justice.

The court considered the statutory time limits for appeals and the principles governing extensions of time in such matters. The court held that the application for an extension of time to apply for leave to appeal was to be refused, with costs. The court found that the statutory time limit for appealing the District Court's decision had expired and that there was no sufficient basis to grant an extension of time. Additionally, the court found that even if leave to appeal were granted, the District Court judge had correctly found that the costs assessment complied with the relevant procedural rules and that the Magistrate had properly confirmed the assessment despite the procedural irregularities, as the errors did not impact the overall fairness of the assessment.

The court's decision concluded that Radich's application for leave to appeal out of time was refused. As a result, the appeal against the District Court's decision was not to proceed, and the costs assessment affirmed by the Magistrates Court remained in place. The court emphasised the importance of adhering to statutory time limits for appeals and the stringent criteria required to justify an extension of time.

Orders

Orders of the court

The application for an extension of time to apply for leave to appeal is refused, with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Radich v Kenway & Anor [2014] QCA 301
PARTIES:	NICHOLAS RADICH (applicant) v GILLIAN KENWAY (first respondent) BRIAN SMITH (second respondent)
FILE NO/S:	Appeal No 4026 of 2014 DC No 422 of 2012
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension of Time s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	25 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2014
JUDGES:	Margaret McMurdo P and Applegarth and Boddice JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	The application for an extension of time to apply for leave to appeal is refused, with costs.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – WHEN REFUSED – where the Magistrates Court of Queensland affirmed a costs assessment in respect of two bills issued by the applicant to his then clients, the respondents – where an appeal of that decision to the District Court was dismissed – where the applicant seeks leave to appeal out of time the decision of the District Court – whether leave to appeal should be granted PROCEDURE – COSTS – APPEAL AS TO COSTS – where the Magistrates Court of Queensland affirmed a costs assessment in respect of two bills issued by the applicant to his then clients, the respondents – where an appeal of that decision to the District Court was dismissed – where the applicant seeks leave to appeal out of time the decision of the District Court – whether, if leave to appeal is granted, the District Court Judge correctly found the costs assessment complied with rule 720 of the Uniform Civil Procedure Rules 1999 (Qld) – whether, if leave to appeal is granted, the Magistrate properly confirmed the decision of the costs assessor, notwithstanding a breach of natural justice in the initial assessment, and the evidence of another costs assessor Legal Profession Act 2007 (Qld), s 316(1), s 335, s 341(1) Uniform Civil Procedure Rules 1999 (Qld), r 720, r 743A(5) Radich v Kenway & Anor [2014] QDC 60, cited
COUNSEL:	A Morris QC, with A Barlow, for the applicant B Porter for the respondent
SOLICITORS:	N Radich for the applicant Bernard Ponting & Co for the respondent