HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant, John Christopher Gazecki, sought to challenge an assessment of legal fees payable to his former lawyers, McCabes Lawyers Pty Ltd. The original determination was made in June 2018. The amount assessed was $36,243. A review panel declined to vary that assessment on 18 March 2019. He had a right of appeal under s 89(1) of the Legal Profession Uniform Law Application Act 2014 (NSW). However, the Uniform Civil Procedure Rules 2005 (NSW), r 50.3 (1), provided for an appeal to be lodged within 28 days. Time expired on 15 April 2019.
The court had power to extend time. On 15 May 2019 the applicant filed a summons in the District Court, seeking an extension of time within which to appeal the determination. The application was filed 30 days late. On 11 October 2019, the primary judge, Weber SC DCJ, refused the application for an extension of time and dismissed the summons with costs.
The applicant sought leave to appeal under s 127 of the District Court Act 1973 (NSW) and judicial review under s 69 of the Supreme Court Act 1970 (NSW), both of which challenging the primary judge's decision.
The Court (Basten JA, Leeming JA, Simpson AJA) dismissed the applications and held:
- The application for leave to appeal under s 127 of the District Court Act 1973 (NSW) was incompetent. It is well established that there is no appeal to the Court of Appeal where the District Court is exercising statutory appellate jurisdiction with respect to decisions of other courts or tribunals: [5]; [46]; [47].
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170, applied.
- The proposed grounds of review did not reflect the limitations of the supervisory jurisdiction reflected in s 69 of the Supreme Court Act 1970 (NSW). The admissibility of evidence depends on a clear statement of the available grounds. An allegation of non-jurisdictional error of law on the face of the record does not permit evidence beyond the record. In contrast to tribunals and administrative decision-makers, a court will usually have jurisdiction to determine questions of law: [11]-[15]; [46]; [47].
Minister of Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4, discussed.
- There was no relevant error of law in the primary judge's assessment of the dispositive matters relevant to delay: [16]-[22]; [46]; [47]. Nor, in the circumstances, did the trial judge err in observing that dismissing the summons would remove the possibility of an abuse of process constituted by two sets of proceedings: [23]-[24]; [46]; [47].
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369, applied.
- The nature of a costs appeal requires the court exercising jurisdiction under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) to pay close attention to the terms of that statutory power and not to adopt statements from earlier cases dealing with different, repealed statutory powers, unless persuaded that they remain applicable: [43]; [46]; [47]. Noting the differences brought about by the introduction of s 89, however, the legislative history and case law can provide some guidance as to the standard of scrutiny applicable in a particular costs appeal: [43]; [46]; [47].
Schweppes' Ltd v Archer (1934) 34 SR 178; Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25; Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52, discussed.