Beazley ACJ at [1]; Basten JA at [91]; Adamson J at [142]
Decision:
(1) Set aside orders (1), (4) and (6) made in the District Court on 23 October 2014.
(2) Set aside orders (1)-(7) made by the District Court on 1 April 2015.
(3) Remit the proceedings to the District Court for that Court to make final orders with respect to the applicants’ appeal, including, if thought appropriate –
(a) orders remitting the assessment of costs to the Manager, Costs Assessment, for determination according to law; (b) orders as to the costs of the parties in the District Court in relation to proceedings subsequent to the first judgment of this Court; (c) an order specifying the amount of any costs payable in the District Court, including pursuant to order (2) made on 23 October 2014.
(4) Order the first respondent to pay 50% of the applicants’ costs in this Court.
Catchwords:
COSTS – costs assessment under the Legal Profession Act 2004 (NSW) – appeal from determination of review panel to District Court pursuant to s 384 – question of law determined by Court of Appeal and remitted to District Court
COSTS – costs of costs assessment – whether necessary to give a separate certificate in respect of each costs order subject of a costs assessment – whether parties’ costs of assessment included with certificate of costs or alternatively with certificate of costs of costs
COSTS – outcome of proceedings unlikely to alter substantive liability – effect on order as to costs
JUDGMENTS AND ORDERS – scope of remitter to District Court
COURTS – powers of District Court on appeal as to question of law
STATUTORY INTERPRETATION – Legal Profession Act 2004, s 384(2) – whether power enlivened on remittal to District Court after question of law determined by Court 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
AGLC
Wende v Horwath (No 2) [2015] NSWCA 416
Case
[2015] NSWCA 416
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Court of Appeal of New South Wales from a determination of a review panel under the *Legal Profession Act 2004* (NSW). The appeal had previously been before the Court of Appeal, which had determined a question of law and remitted the proceedings to the District Court. The present appeal arose from the District Court's subsequent orders.
The legal issues before the Court of Appeal included the scope of the District Court's powers upon a remitter after a question of law had been determined by the Court of Appeal, and whether the District Court had correctly interpreted and applied section 384(2) of the *Legal Profession Act 2004* (NSW) in this context. Further questions related to the proper approach to costs certificates in the context of a costs assessment, and whether the substantive outcome of proceedings, which was unlikely to alter liability, should affect orders as to costs.
The Court of Appeal reasoned that the District Court's powers on remittal were not limited to simply implementing the Court of Appeal's previous decision, but extended to making final orders, including the assessment of costs. The Court clarified that the District Court retained the power to remit the assessment of costs to the Manager, Costs Assessment, and to make orders regarding the costs of the parties in the District Court, including those incurred subsequent to the first judgment of the Court of Appeal. The Court also addressed the requirements for costs certificates, noting that a separate certificate was not necessarily required for each costs order subject to assessment.
The Court of Appeal set aside the orders made by the District Court on 23 October 2014 and 1 April 2015. The proceedings were remitted to the District Court for it to make final orders, including the potential remittal of costs assessment, orders as to the costs of the parties in the District Court, and specification of any costs payable. The first respondent was ordered to pay 50% of the applicants’ costs in the Court of Appeal.
Orders
Orders of the court
(1) Set aside orders (1), (4) and (6) made in the District Court on 23 October 2014.
(2) Set aside orders (1)-(7) made by the District Court on 1 April 2015.
(3) Remit the proceedings to the District Court for that Court to make final orders with respect to the applicants’ appeal, including, if thought appropriate –
(a) orders remitting the assessment of costs to the Manager, Costs Assessment, for determination according to law;
(b) orders as to the costs of the parties in the District Court in relation to proceedings subsequent to the first judgment of this Court;
(c) an order specifying the amount of any costs payable in the District Court, including pursuant to order (2) made on 23 October 2014.
(4) Order the first respondent to pay 50% of the applicants’ costs in this Court.