Wilson v Mirus Australia Pty Ltd - [2024] NSWCA 111

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Wilson v Mirus Australia Pty Ltd [2024] NSWCA 111
Hearing dates: 10 May 2024
Date of orders: 10 May 2024
Decision date: 10 May 2024
Before: Gleeson JA; Basten AJA
Decision:
(1) Leave to appeal refused and summons filed 5 March 2024 is dismissed.
(2) The applicant to pay the respondent’s costs of the application in this Court.

Catchwords:
APPEAL AND REVIEW – leave to appeal – proposed appeal from judgment disposing of appeal from review of a costs assessment – costs disputes as satellite litigation – fourth hearing with respect to costs assessment – need for strong likelihood that no further proceeding would result – leave refused
COSTS – assessment of costs – review of costs assessment by review panel – functions of review panel – whether nature of review changed in 2014 with enactment of Uniform Law – whether review panel has function of determining the costs of the review and who should pay them

Legislation Cited:
Legal Profession Act 2004 (NSW), s 375
Legal Profession Uniform Law Application Act 2014 (NSW), ss 73, 78, 85, 89
Legal Profession Uniform Law (NSW), ss 169, 198, 199
Supreme Court Act 1970 (NSW), s 101
Uniform Civil Procedure Rules 2005 (NSW), r 51.12

Cases Cited:
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing PtyLtd (2013) 250 CLR 303; [2013] HCA 46
Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106
Ramsay v Gatland [2022] NSWSC 1514
Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170

Category: Procedural rulings
Parties: Simon Wilson (Applicant)
Mirus Australia Pty Ltd (Respondent)
Representation:
Counsel:
P Doyle Gray (Applicant)
J Bartos (Respondent)
Solicitors:
Marque Lawyers (Applicant)
Dentons (Respondent)

File Number(s): 2023/462983
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2023] NSWSC 1432

Date of Decision:

24 November 2023

Before:

Campbell J

File Number(s):

2021/325681

JUDGMENT

THE COURT: The applicant, Simon Wilson, seeks leave to appeal from a judgment of Campbell J in the Common Law Division delivered on 24 November 2023. [1] The proceedings in the Common Law Division involved an appeal by the present respondent, Mirus Australia Pty Ltd (Mirus), from a determination of a costs assessment review panel. That appeal was brought pursuant to the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 89(1)(b) and was limited to the failure of the review panel to make an order as to the costs of the review assessment. The appeal to the review panel had been brought by Mirus, which had been ordered to pay Mr Wilson’s costs of the original proceedings between the parties.
1. Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432 (Mirus).
The costs assessor had determined the costs payable by Mirus in an amount of $222,259.66. The review panel set aside 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.

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Details

Case: [2024] NSWCA 111
Decision Date: 10 May 2024

CaseChat Overview and Summary

Wilson (the applicant) sought leave to appeal to the Court of Appeal of New South Wales against a judgment that dismissed an appeal from a review of a costs assessment. The dispute concerned the costs of a review of a costs assessment, which had already been the subject of multiple hearings.

The primary legal issues before the Court of Appeal were whether leave to appeal should be granted, given the nature of the dispute as "satellite litigation" and the fact that this was the fourth hearing concerning the costs assessment. The court also considered the functions of a costs review panel, particularly whether the introduction of the Uniform Law in 2014 altered the panel's capacity to determine the costs of the review itself and allocate responsibility for those costs.

Gleeson JA and Basten AJA refused leave to appeal, finding that there was no strong likelihood that further proceedings would not result from granting leave. Their Honours characterised the matter as satellite litigation, noting the extensive history of hearings related to the costs assessment. The court dismissed the summons filed on 5 March 2024.

The applicant was ordered to pay the respondent's costs of the application in the Court of Appeal.

Orders

Orders of the court

(1) Leave to appeal refused and summons filed 5 March 2024 is dismissed.

(2) The applicant to pay the respondent’s costs of the application in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Wilson v Mirus Australia Pty Ltd [2024] NSWCA 111
Hearing dates:	10 May 2024
Date of orders:	10 May 2024
Decision date:	10 May 2024
Before:	Gleeson JA; Basten AJA
Decision:	(1) Leave to appeal refused and summons filed 5 March 2024 is dismissed. (2) The applicant to pay the respondent’s costs of the application in this Court.
Catchwords:	APPEAL AND REVIEW – leave to appeal – proposed appeal from judgment disposing of appeal from review of a costs assessment – costs disputes as satellite litigation – fourth hearing with respect to costs assessment – need for strong likelihood that no further proceeding would result – leave refused COSTS – assessment of costs – review of costs assessment by review panel – functions of review panel – whether nature of review changed in 2014 with enactment of Uniform Law – whether review panel has function of determining the costs of the review and who should pay them
Legislation Cited:	Legal Profession Act 2004 (NSW), s 375 Legal Profession Uniform Law Application Act 2014 (NSW), ss 73, 78, 85, 89 Legal Profession Uniform Law (NSW), ss 169, 198, 199 Supreme Court Act 1970 (NSW), s 101 Uniform Civil Procedure Rules 2005 (NSW), r 51.12
Cases Cited:	Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing PtyLtd (2013) 250 CLR 303; [2013] HCA 46 Housman v Camuglia (2021) 104 NSWLR 615; [2021] NSWCA 106 Ramsay v Gatland [2022] NSWSC 1514 Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Category:	Procedural rulings
Parties:	Simon Wilson (Applicant) Mirus Australia Pty Ltd (Respondent)
Representation:	Counsel: P Doyle Gray (Applicant) J Bartos (Respondent) Solicitors: Marque Lawyers (Applicant) Dentons (Respondent)
File Number(s):	2023/462983
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2023] NSWSC 1432 Date of Decision: 24 November 2023 Before: Campbell J File Number(s): 2021/325681