Aktas v Westpac Banking Corporation

EX TEMPORE Judgment 1The common law case management registrar has referred this matter to me. Earlier today I gave leave to the plaintiff to file a summons in Court. I abridged the time for service and ordered that the summons be returnable instanter, the defendant being represented by counsel. 2The plaintiff seeks an order under s140 Civil Procedure Act 2005 (NSW) transferring an appeal pending in the District Court, and to be heard tomorrow, to this Court. The appeal relates to an assessment of party and party costs about which the plaintiff is aggrieved. The costs order in the plaintiff's favour was made in proceedings in this Court heard by Justice Fullerton on remitter after a successful appeal to the High Court of Australia. 3The legislation concerning the assessment of legal costs on a party and party basis is the Legal Profession Act 2004 (NSW) ("the Act"). The Act provides for a first instance assessment by a costs assessor with a right of review by a costs review panel. 4Section 384 of the Act provides an appeal as of right to the District Court of New South Wales by a party to an application for costs assessment who is dissatisfied with a decision of the review panel as to a matter of law arising in the proceedings. 5It is common ground before me that the expression "a matter of law" restricts the powers of the District Court and the rights of an appellant in accordance with the decision of the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. 6Section 385(2) of the Act provides an alternative avenue of appeal by leave to the court or tribunal who made the costs order giving rise to the assessment. In this case, that court of course is this Court. 7In support of the application for transfer, the plaintiff, for whom Mr J Heazlewood of counsel appears, reads the affidavit of his solicitor Mr Penhall affirmed on 2 July 2013. I infer from Mr Penhall's affidavit that the proceedings were commenced in the District Court essentially by mistake. Mr Penhall acknowledges that the right of appeal under s384 is restricted to a point of law and that the proceedings in the District Court have been conducted on that basis. 8However, the issues the plaintiff wishes to ventilate on any appeal involve factual issues, as explained in paragraphs [5] - [11] of Mr Penhall's affidavit. The summons in the District Court commencing the appeal is attached as annexure A to the affidavit and sets out extensively the relief sought in terms which go well beyond the limited relief available under s384, if one has regard to the provisions of s384(2). 9The grounds of appeal set out in the summons, as I remarked during argument, with respect to the pleader, do not obviously raise what might be called questions of law as opposed to mixed questions of fact and law. 10The defendant, for whom Ms K Dawson of counsel appears, says that the only jurisdiction of the District Court in this case is that conferred by s384 of the Act, and that s384 does not confer jurisdiction on the Supreme Court. 11Learned counsel's argument is essentially that the Court is being asked to transfer a proceeding over which it would have no jurisdiction, and Ms Dawson argues that that consideration is a material point of distinction between this case and KBRV Resort Operations Pty Ltd t/as Kingfisher Bay Resort & Village v Chilcott [2001] NSWCA 116; 51 NSWLR 516 at [32], per Sheller JA. 12The defendant argues that, as Mr Penhall acknowledged in his affidavit, the matter has proceeded on the assumption that s384 of the Act is the relevant jurisdiction invoked and the plaintiff should not be permitted to change course at this late stage. Moreover, as I have said, counsel argues, I think essentially, that as this court has no jurisdiction in respect of an appeal under s384 of the Act, the power conferred by s140 Civil Procedure Act should not be exercised, as to do so would be futile. 13As I understood it, the argument put by Ms Dawson, at least in part, was essentially that the plaintiff has made his bed and he should lie in it. 14An adverse decision in the District Court under s384 of the Act or by discontinuance with the usual consequences would not preclude the plaintiff recommencing in this Court seeking leave to appeal under s385(2) if an extension of time could be obtained. Ms Dawson properly points out that if an order is made transferring the proceedings there will be very significant wasted costs. 15It is clear, and there is no issue about this, that the appeal to the District Court is a civil proceeding to which the provisions of the Civil Procedure Act apply. The power invoked by the plaintiff is a power conferred by that Act, and by dint of s56, when exercising any power under it, the Court must seek to give effect to the overriding purpose, which is to facilitate the just, quick and cheap resolution of the real issues in the dispute or the proceedings. In my judgment, an important consideration when giving effect to the overriding purpose is the need to avoid a multiplicity of proceedings. 16Accepting the force of the defendant's submission that the appeal to the District Court, if competent, could only be an appeal under s384 of the Act is not the end of the matter. It seems to me quite clear, not only in the frank affidavit of Mr Penhall, but obviously on the face of the summons in the District Court, that an appeal under s384 was misconceived because it was always apparent that the plaintiff, as I have said, wished to ventilate mixed questions of law and fact. 17I do not weigh this against the defendant, but it is obvious, given that this matter is listed for hearing in the District Court tomorrow, that no issue was taken as to the competency of the plaintiff's appeal. 18I have not seen the written submissions that have been exchanged but I infer from what I have been told by counsel on both sides of the record that the argument advanced on behalf of the plaintiff has been rebutted by the defendant as not involving only matters of law. 19Section 140 Civil Procedure Act does the same work and is in substantially the same terms and effect as s145 District Court Act 1973 (NSW), the subject of the decision in KBRV Resort Operations. It was, as Ms Dawson points out, a somewhat different case. There the substantive proceedings were beyond the jurisdiction of the District Court because the cause of action arose in the state of Queensland and at that time the District Court had no extra territorial jurisdiction. 20As I have pointed out, factually, that is the opposite of the present case. At [32], Sheller JA (Ipp AJA and Grove AJA agreeing) said: S145 is remedial and confers a discretionary power on the Supreme Court. In the absence of any express limitation... there is no basis for limiting the word to mean only proceedings within the jurisdiction of the District Court. To say, in effect, that there were no proceedings in the District Court would cause considerable inconvenience. It would mean that the District Court, if it concluded after evidence and argument that proceedings begun in that court were outside its jurisdiction, had no power to dispose of the proceedings by striking them out. 21The remedial purpose of the provision is the important consideration arising from that passage. Clearly the provisions of Part 9 of the Civil Procedure Act facilitating the transfer of proceedings amongst the various courts in the judicial hierarchy in New South Wales concerned with the disposition of civil proceedings exists to avoid cases failing for purely technical reasons, which result would be inimicable for the interests of justice, and the administration of justice, in this State. 22I accept the argument of the defendant that the reference to s385 appearing on the headnote of the summons filed in the District Court does not form any substantive part of the proceedings. Notwithstanding that, it seems to me, looking at the material before me, that it should have been clear to anyone reading the summons that the plaintiff wished to ventilate, as I have said, mixed questions of fact and law. 23Since the enactment of the Civil Procedure Act and the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175 explaining it there has properly been a greater emphasis on case management considerations and what might be referred to as the requirements of forensic diligence in the exercise by the courts in New South Wales of the remedial powers of the Act and Uniform Civil Procedure Rules. 24But it remains the case that the purpose of the courts is to do justice according to law between the parties and the overriding purpose of the just, quick and cheap resolution of the real issues in dispute is for the purpose of facilitating that end. 25It seems to me that it would be contrary to the just, quick and cheap resolution of the real issues about which the parties are in dispute concerning the cost assessments were I to refuse this application and allow an effectively hopeless s384 appeal to meet its inevitable fate tomorrow. Rather, I think the overriding purpose, given the satisfactory explanation of misconception on the part of the lawyers which has been honestly faced up to, requires that the proposed appeal should be put on its right track, there having been no application to dismiss it as incompetent. 26Having said that, I do not think it is proper for me at this stage to accede to order 5, which in terms seeks the grant of leave contemplated by s 385(2) of the Act. Rather that matter should be determined upon the hearing of the proceedings by a judge properly seised of all relevant and admissible material. 27Moreover, it is evident that significant costs will have been wasted by this change of tack, a change of tack which has been necessitated through no fault of the defendant. In these circumstances I do not think that those costs should be reserved until the present case is decided. It is proper that the defendant should have the benefit of an order in that regard now. 28For these reasons I make the following orders: (1)Under s 140 of the Civil Procedure Act 2005 proceedings number 2013/6067 in the District Court of New South Wales between the plaintiff and the defendant be transferred to this Court; (2)The plaintiff is to pay the costs of the defendant thrown away by reason of his application for transfer, including the costs of the hearing in the District Court fixed for tomorrow and the costs of the preparation of written submissions on behalf of the defendant; (3)Direct the plaintiff to file and serve within seven days an amended summons stating the relief sought, the substantive grounds of appeal and the reasons why leave should be granted in compliance with Part 50 of the Uniform Civil Procedure Rules 2005; (4)List the matter for directions before the Registrar on 24 July 2013; (5)Costs of the summons are costs in the application for leave to appeal. COUNSEL ADDRESSED 29Ms Dawson has moved that I amend order 2 to provide that the costs thrown away the subject of that order be payable forthwith. 30Mr Heazlewood has opposed that order and argues, with some force, that such an order is unusual and involves a rarely utilised power. 31It seems to me appropriate, in circumstances where this application has been necessitated by a misconception on the part of the plaintiff's lawyers, with respect, and where the defendant has incurred substantial costs for a hearing that was to take place in the District Court tomorrow, in respect of which, for what it is worth, I might add, the defendant's prospects of success were high, that I should utilise that rarely used power. 32Accordingly, I amend order 2 by adding to the end of it the words "forthwith after they have been agreed or assessed".