Wilkie v Brown (No 2)

[2018] NSWCA 80

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Wilkie v Brown (No 2) [2018] NSWCA 80
Hearing dates:	10 April 2018
Decision date:	18 April 2018
Before:	McColl JA at [1]; Meagher JA at [1]; Ward JA at [1]
Decision:	1. Refuse the application to extend time under UCPR, r 59.10(2). 2. Dismiss the summons filed on 16 November 2017 with costs.
Catchwords:	JUDGMENTS AND ORDERS – res judicata – interlocutory orders – Civil Procedure Act 2005 (NSW), s 91 – where order dismissing appeal proceeding because of appellant’s non-appearance not subject to any terms preventing further proceedings and not including any determination on the merits – whether jurisdictional error or error of law on face of record in dismissing later appeal proceeding because existing order dismissing proceeding deprived court of jurisdiction PRACTICE AND PROCEDURE – leave to commence judicial review proceeding outside three-month period under Uniform Civil Procedure Rules (NSW), r 59.10 – where applicant’s ultimate interest in quashing orders dismissing appeal is in successfully prosecuting appeal from cost review panel’s assessment of solicitor’s costs – where no explanation of delay in District Court and Supreme Court, insufficient evidence to assess merits of underlying appeal, and disproportion between costs incurred and nominal amount of earlier legal costs in issue – whether applicant’s interest in successfully prosecuting underlying appeal warrants incurring of further costs as between parties or in public interest – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 3(1), 4(1), 91(1) District Court Act 1973 (NSW), s 127(1) Legal Profession Act 2004 (NSW), ss 382(1), 384, 385 Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), 48(2)(g), 69 Uniform Civil Procedure Rules 2005 (NSW), rr 12.10(b), 50.3, 59.10
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Trust v Das [2012] NSWCA 164 Birkett v James [1978] AC 297 Huang v Attapallil [2017] NSWCA 181 Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Texts Cited:	KR Handley, Spencer-Bower and Handley: Res Judicata, (4th ed 2009, LexisNexis)
Category:	Principal judgment
Parties:	Sophia Wilkie (Applicant) Michael Neil Brown (First Respondent) District Court of New South Wales (Second Respondent)
Representation:	Counsel: W Carney (Applicant) In person (First Respondent)   Solicitors: Slattery Thompson Solicitors (Applicant) In person (First Respondent)
File Number(s):	2017/346986
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Date of Decision: 3 February 2017 Before: Maiden DCJ File Number(s): 2015/74248

Judgment

1. THE COURT: By a summons filed on 16 November 2017, the applicant (Ms Wilkie) seeks judicial review of a decision of a judge of the District Court exercising that Court’s appellate jurisdiction under the LegalProfession Act 2004 (NSW) (now repealed). By that decision, the primary judge (Maiden DCJ) on 3 February 2017 dismissed Ms Wilkie’s summons appealing and seeking leave to appeal from two costs assessments made under the 2004 Act. In the first, on 26 February 2014, a costs assessor assessed the relevant costs at $32,917.38. In the second, on 12 August 2014, a costs review panel confirmed the first assessment.

2. The White Folder prepared before the hearing also included an (apparently unfiled) summons seeking leave to appeal from that “interlocutory” decision of the District Court, purportedly in exercise of the right of appeal to this Court against a “judgment or order in an action”: District Court Act 1973 (NSW), s 127(1). However, a proceeding in the District Court’s statutory appellate jurisdiction (such as under Legal Profession Act, ss 382(1), 384 and 385) is not “an action” for this purpose: Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [19], [20] (Basten JA), [113] (Barrett JA, Beazley P relevantly agreeing); State of New South Wales v Avery (2016) 92 NSWLR 141; [2016] NSWCA 147 at [8] (Sackville AJA, McColl and Simpson JJA agreeing). Accordingly, s 127 did not confer a right of appeal to this Court in respect of the primary judge’s decision of 3 February 2017, and this summons need not be considered further.

3. Before dealing with the merits of Ms Wilkie’s current judicial review application, it is necessary to outline its procedural context. The respondent (Mr Brown), who practises as a solicitor via an incorporated legal practice, acted for Ms Wilkie in a series of matters including a family provision claim. Ms Wilkie disputed the legal fees charged by Mr Brown, which led to the costs assessments in [1] above. On 25 November 2014, after the costs review panel decision, Mr Brown obtained judgment in the Local Court against Ms Wilkie for $33,003.98. That is the sum directly in issue in the costs assessment proceedings.

4. Sections 382(1), 384 and 385 in the 2004 Act conferred rights of appeal from the costs assessment decisions. Leave was required except in respect of decisions on a “matter of law”, where the appeal lay as of right. In each case, the application had to be made in accordance with the rules of the District Court. Relevantly, Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 50.3 provided that the summons concerning the appeal had to be filed within 28 days after the date of each assessment decision or within “such further time as the higher court” (being the District Court) may allow. Any appeal to the District Court from the costs review panel decision should have been filed by 9 September 2014.

5. Ms Wilkie first sought to appeal from those assessments to the District Court by an “amended summons commencing an appeal [and] seeking leave to appeal” dated 31 May 2015, and returnable on 9 June 2015. That proceeding was more than eight months out of time and required a grant of leave under UCPR, r 50.3(1)(c). There was no appearance for or by Ms Wilkie when the matter was called on the return date, and accordingly the primary judge dismissed the summons. Later that day, Ms Wilkie appeared and sought to set aside that order, but that application was refused.

6. By a summons filed on 10 July 2015, Ms Wilkie then brought a proceeding in the Supreme Court challenging the order made on 9 June 2015. At some point, that proceeding was treated as brought in this Court’s supervisory jurisdiction and assigned to the Court of Appeal in accordance with Supreme Court Act 1970 (NSW), ss 48(1)(a)(iv), 48(2)(g). It was set down for hearing on 29 April 2016. But, on 28 April 2016, the applicant informed the Court that she would be withdrawing her application, which was then dismissed with costs: Wilkie v Brown [2016] NSWCA 128.

7. On 21 June 2016, Ms Wilkie commenced the District Court proceeding that was ultimately dismissed by the primary judge on 3 February 2017. Grounds 1, 2 and 3, challenging the cost assessor’s decision, asserted that the assessor had, in five respects, “failed to give adequate reasons”, made determinations for which there was “no evidence”, and made the same findings without access to Mr Brown’s files. Grounds 4 to 11 challenged the decision of the costs review panel: grounds 5, 6 and 7 were in the same terms as 1, 2 and 3; grounds 4 and 8 alleged error in affirming the cost decision; grounds 9 and 10 challenged the decision not to receive and consider further submissions from either party; and ground 11 maintained that the determination was “ambiguous, confusing and misleading” in one respect.

8. The application before the primary judge on 3 February 2017 was the respondent’s application to “strike out” this further proceeding. The transcript of argument — for the most part consisting of exchanges between the primary judge and counsel for Ms Wilkie — suggests that the principal ground relied on was the existence of the earlier order in the District Court and the withdrawal and dismissal of an “appeal” to this Court. In his reasons for judgment delivered on 3 February 2017, the primary judge concluded that the fresh proceeding could not go forward on the basis that the “Court [did] not have jurisdiction to hear a fresh appeal when there [was] an existing order [dismissing the original summons], and accordingly the summons must be dismissed”: Wilkie v Brown (District Court (NSW), Maiden DCJ, 3 February 2017, unrep) at 3.

9. In these circumstances, two questions arise on Ms Wilkie’s current application for relief under Supreme Court Act, s 69. The first is whether any jurisdictional error or error of law on the face of the record justifies an order quashing the decision of the primary judge. The second is whether Ms Wilkie should have leave to commence the judicial review proceeding outside the three-month period provided in UCPR, r 59.10(1). That period expired on 3 May 2017, and the summons seeking that relief was not filed until 16 November 2017, more than six months later.

10. The first question should be resolved in Ms Wilkie’s favour. The order dismissing the proceeding because of her non-appearance was not subject to any terms preventing further proceedings and did not include any determination on the merits. Accordingly, it was not a bar to fresh proceedings: Civil Procedure Act 2005 (NSW) (CPA), s 91(1), which applies to civil (that is, not criminal) proceedings in the District Court (ss 3(1), 4(1)); see also UCPR, r 12.10(b). Those provisions accord with the common law rule that an interlocutory decision does not constitute a res judicata: KR Handley, Spencer-Bower and Handley: Res Judicata, (4th ed 2009, LexisNexis) at [2.13]. Subject to other procedural rules, Ms Wilkie was permitted to bring a fresh appeal unless to do so would have involved an abuse of process: see Birkett v James [1978] AC 297 at 320–321 (Lord Diplock). Contrary to the basis on which the primary judge proceeded, the District Court had appellate jurisdiction in respect of such an appeal notwithstanding the earlier order, subject of course to its extending the time for the filing of that appeal under UCPR, r 50.3.

11. The second question is whether the Court should exercise the discretion to extend time in UCPR, r 59.10(2). In that determination, the Court is directed to take into account “such factors as are relevant in the circumstances of the particular case”, including any particular interest of the plaintiff in challenging the decision, possible prejudice to other persons caused by the passage of time, the time at which the plaintiff became or should have become aware of the decision, and any relevant public interest: UCPR, r 59.10(3). Here, the delay of six months, the absence of any explanation for it from Ms Wilkie and the resulting further uncertainty for Mr Brown are relevant but not determinative.

12. Ms Wilkie’s ultimate interest in challenging the primary judge’s order is in successfully prosecuting her second appeal from the costs review panel’s assessment: see Wende v Horwath at [22]–[24]. That outcome depends on two matters. The first is her obtaining an extension of the time in which to bring that appeal (by about 21 months), which will turn on factors including the length of, and any explanation for, that delay: see Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at [4] (Brennan CJ and McHugh J). The second is the substantive merit of her underlying appeal. These considerations may be addressed in turn.

13. As to the first, there is no evidence before this Court that explains Ms Wilkie’s eight-month delay between 12 August 2014 and 31 May 2015 in bringing her first appeal from the costs review panel’s assessment. Mr Brown’s evidence suggests a plausible explanation for her eventual response, namely his action in obtaining judgment on 25 November 2014 and filing a motion for the issue of a writ for a levy of property on 30 January 2015, as well as the subsequent issue and execution of that writ. (This evidence also reveals likely prejudice flowing from Ms Wilkie’s inaction in the form of costs that would be thrown away if the appeal were ultimately successful.) There is also no explanation as to why Ms Wilkie withdrew her first application to this Court and delayed commencing her second appeal to the District Court until 21 June 2016, nearly two years after the decision of the costs review panel.

14. As to the second, the evidence before this Court does not permit an assessment of the merits of Ms Wilkie’s underlying appeal. Neither the assessor’s reasons nor those of the review panel were in evidence. The grounds of appeal give no insight into the strength of the generally expressed assertions of error, and no attempt was made by counsel in this Court to overcome that deficiency. In these circumstances, this Court is unable to be satisfied that Ms Wilkie has any realistic prospect of obtaining an extension of time and then succeeding in her second appeal from the costs assessment.

15. Ms Wilkie’s application to this Court under UCPR, r 59.10 also engages the public interest in parties not incurring costs in litigation that are out of proportion to the amount in dispute or the importance and complexity of the claim: CPA, s 60. That is especially so because the subject matter of the claim is legal costs in earlier litigation: see Huang v Attapallil [2017] NSWCA 181 at [21] (White JA). Given the history of the proceedings described above, each party is likely to have incurred costs out of proportion with (and perhaps even exceeding) the nominal amount in issue, which is $33,000. A proceeding in the District Court addressing the two questions outlined in [9] above will inevitably involve further costs.

16. The question for this Court is whether it is in the interests of justice that Ms Wilkie have the extension sought. In our view, it is not. The speculative benefit to her from that extension does not warrant, either as between the parties or in the public interest, the incurring by each of further and disproportionate costs in an already protracted dispute over legal costs: cf Be Financial Pty Ltd as Trustee for Be Financial Trust v Das [2012] NSWCA 164 at [37]–[39] (Basten JA, Tobias AJA agreeing).

17. For these reasons, the orders of the Court are as follows:

1. Refuse the application to extend time under UCPR, r 59.10(2).

2. Dismiss the summons filed on 16 November 2017 with costs.

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Decision last updated: 18 April 2018