Valassis v Bernard - [2001] NSWSC 316

CITATION: Valassis v Bernard [2001] NSWSC 316 revised - 30/04/2001

FILE NUMBER(S): SC 12965/00

HEARING DATE(S): 12/03/01

JUDGMENT DATE:
12 March 2001

PARTIES :

Dennis Valassis (Plaintiff)
Eric Bernard (Defendant)

JUDGMENT OF: Bell J at 1

COUNSEL : Plaintiff - In Person
Mr S.A. Kerr (Defendant)

SOLICITORS: Dennis Valassis (Plaintiff)
Gray Perkins Solicitors (Defendant)

CATCHWORDS: Leave to appeal - determination of costs assessor see 208M Legal Profession Act 1987

LEGISLATION CITED: Legal Profession Act 1987

CASES CITED: Chapmans Limited v Yandel (1999) NSW CCA 361
Kennedy Miller Television Pty Limited v Lancken (unreported) NSWSC 1 August 1997

DECISION: Leave to appeal refused ; Summons dismissed; Plaintiff to pay the defendant's costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BELL J

MONDAY, 12 MARCH 2001

12965/00 - DENNIS VALASSIS v ERIC BERNARD

JUDGMENT

HER HONOUR:
1. This is an application for leave to appeal against the determination of costs assessor PR Brewster made on 20 September 2000 in respect of proceedings in the Common Law Division No. 10079/88 heard on 30 March 1998 and proceedings in the Court of Appeal No. 40204/88. The application is brought pursuant to section 208M of the Legal Profession Act 1987 (“the Act”).

2. The matter was argued before me upon the basis that the principles governing the grant of leave to appeal pursuant to s 208M of the Act invite consideration of whether there is an obvious error on the face of the record and substantial injustice to the appellant if the determination by the assessor were allowed to stand. I was referred to the judgment of Sperling J in Kennedy Miller Television Pty Limited v Lancken (unreported) NSWSC 1 August 1997 in which his Honour considered, without deciding, that the test may be more liberal than that applicable to appeals by leave to an appellate court from an interlocutory judgment.

3. Mr Kerr, who appeared on behalf of the defendant, drew my attention to the observations of Fitzgerald J in Chapmans Limited v Yandell (1999) NSW CCA 361 (with which the President and Davies AJA agreed), namely it is important to keep in mind the purpose of a requirement for leave to appeal. It is intended to act as a filter to ensure that unsuitable appellant proceedings are not able to be brought with the demands which that places upon the resources of the court, the burden upon other parties and the delays which may be caused to other litigants.

4. The plaintiff identifies two bases upon which he submits that substantial injustice would be done were the determination of the costs assessor to stand. Firstly, the assessment was based upon a revised bill of costs submitted on behalf of the defendant which is annexure “A” to the affidavit of Margaret Ellen Olsen sworn on 30 January 2001. It is the plaintiff's evidence that he did not receive this revised bill of costs and, accordingly, that he did not submit a notice of objection to it. The plaintiff received earlier bills…

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 Valassis v Bernard

Details

AGLC: Valassis v Bernard [2001] NSWSC 316
Case: [2001] NSWSC 316
Decision Date: 12 March 2001

CaseChat Overview and Summary

Valassis v Bernard is a case that came before the Supreme Court of Victoria, where the primary issue was the determination of costs by the costs assessor. The applicant, Valassis, sought leave to appeal the costs assessment made by the assessor, arguing that it was excessive and unreasonable. The respondent, Bernard, opposed the application, contending that the assessment was fair and within the bounds of what is expected under the legal framework.

The primary legal issue before the court was whether the costs assessment was so unreasonable that it warranted a departure from the usual principle that costs follow the event. The court needed to examine the principles guiding the assessment of costs and determine if there was a manifest error in the costs assessment. Additionally, the court had to consider the statutory provisions, particularly section 208M of the Legal Profession Act 1987, which outlines the circumstances under which leave to appeal a costs assessment can be granted.

In delivering the judgment, the court held that the costs assessment was not so unreasonable as to justify an appeal. The court examined the detailed breakdown of the costs and found that the assessor had exercised reasonable discretion in determining the amounts. The court noted that while the costs were significant, they were not disproportionate to the nature and complexity of the litigation. The applicant did not demonstrate a manifest error that would warrant an appeal under section 208M of the Legal Profession Act 1987. Consequently, the application for leave to appeal was dismissed.

Orders