Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 Hearing dates: 5 December 2013 Decision date: 02 June 2014 Before: Beazley P at [1]; Basten JA at [15];
Barrett JA at [103]Decision: (A) In matter 2013/54356:
(1) Dismiss the summons seeking leave to appeal.
(2) Order the applicant to pay the respondent's costs.
(B) In matter 2013/149830
(1) Set aside the orders made in the District Court on 15 February 2013 dismissing the appeal from the determination of the Review Panel dated 6 January 2012.
(2) In place of the orders made in the District Court:
(a) set aside the certificates as to determination of costs issued by the Review Panel on 6 January 2012;
(b) set aside the certificates as to determination of costs issued by Ms Dulhunty, Costs Assessor, on 11 January 2011.
(3) Remit the matter to the District Court to make any consequential orders with respect to the appeal to that Court and to take such steps as it considers necessary with respect to the costs of the assessments undertaken by Ms Dulhunty and the Review Panel.
(4) Order the respondent to pay the applicants' costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PROFESSIONS AND TRADES - lawyers - remuneration - taxation and assessment of costs - assessment under Legal Profession Act 2004 (NSW) - costs payable as a result of an order for the payment of an unspecified amount of costs made by a court - three such orders made by different courts - single application for assessment in respect of the three orders - determination by costs assessor upon that application - single purported certificate of determination - whether processes as adopted formed the foundation for application for review by a review panel - alleged failure of review panel to make a "review" - alleged failure of review panel to give adequate reasons - whether limit on costs recoverable under costs order against a legally assessed person operates for the benefit of the person's partners - scope of order for costs where order made after rehearing following hearing by arbitrator - costs of costs assessment - whether Legal Profession Act s 369(3)(c) applies to assessment of party/party costs as well as practitioner-client costs - LEGAL AID - legal assistance schemes - who is "legally assisted person" under the Legal Aid Commission Act 1979 (NSW) - ADMINISTRATIVE LAW - judicial review - whether review of appellate decision extends to first instance decisions - whether failure of appellate court to identify legal error in decision…
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- Case
- [2014] NSWCA 170
- Decision Date
CaseChat Overview and Summary
The Court of Appeal was required to determine several legal issues. These included whether the costs assessor's single application and certificate of determination were validly made in respect of three separate costs orders. The court also had to consider whether the review panel had conducted a proper "review" and provided adequate reasons for its decision. Further issues involved the scope of a costs order where it followed a rehearing after an arbitrator's hearing, and whether a limit on recoverable costs under a costs order against a legally assessed person extended to that person's partners. Finally, the court considered the applicability of section 369(3)(c) of the *Legal Profession Act 2004* to party/party costs and the definition of a "legally assisted person" under the *Legal Aid Commission Act 1979*.
The Court of Appeal found that the costs assessor's approach of consolidating three separate costs orders into a single assessment was procedurally flawed. The court held that the review panel had failed to conduct a proper review and had not provided adequate reasons for its determination. Consequently, the certificates of determination issued by both the costs assessor and the review panel were set aside. The court also clarified that section 369(3)(c) of the *Legal Profession Act 2004* applied to party/party costs.
In relation to the specific matters before it, the Court of Appeal dismissed the summons seeking leave to appeal in one matter, ordering the applicant to pay the respondent's costs. In the other matter, the court set aside the District Court orders that had dismissed the appeal from the review panel's determination. The court further set aside the certificates of determination from both the review panel and the costs assessor, remitting the matter to the District Court to make consequential orders and to address the costs of the assessments. The respondent in this matter was ordered to pay the applicants' costs in the Court of Appeal.
Orders
Orders of the court
(A) In matter 2013/54356:
(1) Dismiss the summons seeking leave to appeal.
(2) Order the applicant to pay the respondent's costs.
(B) In matter 2013/149830
(1) Set aside the orders made in the District Court on 15 February 2013 dismissing the appeal from the determination of the Review Panel dated 6 January 2012.
(2) In place of the orders made in the District Court:
(a) set aside the certificates as to determination of costs issued by the Review Panel on 6 January 2012;
(b) set aside the certificates as to determination of costs issued by Ms Dulhunty, Costs Assessor, on 11 January 2011.
(3) Remit the matter to the District Court to make any consequential orders with respect to the appeal to that Court and to take such steps as it considers necessary with respect to the costs of the assessments undertaken by Ms Dulhunty and the Review Panel.
(4) Order the respondent to pay the applicants' costs in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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