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[2003] NSWSC 324
procedural. Master Malpass held the application for review by a Master was competent and that an application for leave under s 208M is to be treated as an appeal for the purposes of s 208N and related...
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Master Malpass decided two preliminary questions concerning a costs-assessment dispute: first, a Master can competently review a Registrar's suspension decision made under a referral order; second, for the purposes of the Legal Profession Act's appeal and suspension provisions, an application for leave to appeal under s 208M is to be treated as an 'appeal' under s 208N and related referral provisions. The court reserved costs and directed steps to advance substantive resolution.
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The dispute arises from a solicitor-client costs conflict. The plaintiff, a solicitor, was retained by the defendants and rendered bills for services (see [1]-[2]). A costs agreement existed but was later terminated and assessments were undertaken, producing outcomes unfavourable to the plaintiff. The first defendant filed a Certificate As To Determination in the Local Court, which by statute was treated as a judgment (see [5]). The plaintiff sought review by a panel; the panel issued an Amended Certificate of Determination on 21 February 2002, again unfavourable (see [5]).
The plaintiff then sought leave to appeal under s 208M of the Legal Profession Act 1987 from those determinations and commenced proceedings in the Supreme Court (see [3]). The plaintiff also applied for suspension of operation of the disputed certificates under s 208N; that application was heard by a Registrar who suspended the operation of two certificates on 21 October 2002 (see [9]). The defendants sought review of the Registrar's suspension decision pursuant to Pt 61 r 3 of the Supreme Court Rules; the matter of review was listed before a Master (see [15]-[16]).
At the review hearing the plaintiff contested the competence of the review, arguing that because a referral order had been made, any challenge should proceed as leave to appeal to the Court of Appeal. Separately, the defendants re-argued that s 208N did not apply because an application for leave under s 208M is not an ‘appeal’, they contended s 208N applies only to appeals made under s 208L (see [16]-[18]). The Master heard argument on these two threshold questions and reserved judgment (see [18]).
Master Malpass delivered judgment on those preliminary questions. He held that a Master could competently conduct the review of the Registrar’s decision made under a referral order, and that an application for leave under s 208M should for the purposes of Subdivision 4B be treated as an ‘appeal’ under s 208N and s 208NC (see [28], [33], [34]). Questions of costs to date were reserved and the parties given liberty to apply (see [37]).
Two issues informed the decision: (1) the competence of a Master to hear a Pt 61 r 3 review of a Registrar decision made under a referral order; and (2) the statutory characterisation of an application for leave under s 208M as an 'appeal' for the purposes of s 208N and related referral provisions in Subdivision 4B.
Master Malpass began from the institutional position that a Registrar is an officer of the court empowered to exercise such of the Court's powers as are conferred by statute and rules (see [13]). The Registrar in this case had acted pursuant to a Master’s referral order. The plaintiff contended that the referral changed the nature of the decision and therefore the proper avenue of challenge.
The Master rejected that contention. He emphasised that a referral order does not transmogrify a Registrar into a Master: "I do not consider that the referral order changed the character of the Registrar as a Judicial Officer. He did not become a Master" (see [25]). He examined the rules (in particular Pt 60 r 10 and r 17 and Pt 61 r 3) and concluded that r 3 is phrased in wide terms enabling a Master to conduct the review sought (see [28]). The court also noted that s 121 of the Supreme Court Act permits the Court to set aside or vary Registrar orders (see [29]). On that basis the Master held the application for review was competent (see [28]).
Subdivision 4B of the Legal Profession Act (ss 208L–208NC) structures the statutory appeal regime for costs assessments. Section 208N provides for suspension where "a party to an application has appealed against a determination" and s 208NC contemplates that an appeal made under s 208M can be referred to a review panel (see [30]-[31]).
The Master acknowledged precedent suggesting an application for leave is not, in general, an 'appeal' (Collins v R) (see [32]). Nevertheless, he focused on the structure and language of Subdivision 4B and on s 208NC's express description of an appeal under s 208M as an appeal that may be referred to the Manager, Costs Assessment (see [31], [33]). He concluded that Parliament intended, within that subdivision, to treat an application for leave as an appeal for the purposes of s 208N and the referral mechanism in s 208NC (see [33]). Accordingly, the suspension power in s 208N could properly engage where leave under s 208M had been applied for.
The two holdings together removed the jurisdictional bars to the Master proceeding with a substantive hearing unless other preliminary matters intervened (see [34]-[35]).
Before this decision the law contained at least two competing signals:
Master Malpass reconciled these by reading the specific statutory scheme of Subdivision 4B as displacing the general idea that leave applications are not appeals, at least for the purposes of the costs assessment regime. The decisive pointer was s 208NC, which expressly treats an appeal under s 208M as an appeal capable of referral to review panels (see [31]-[33]).
After this judgment the practical effect within this factual and statutory matrix is that:
The judgment thereby clarifies the interplay between the Court's procedural rules and the specialised statutory appeal/referral regime in the Legal Profession Act.
"[A] Registrar is an officer of the court and may exercise such of its powers as are conferred upon him or her (s 121 of the Supreme Court Act 1970)" (see [13]).
"I do not consider that the referral order changed the character of the Registrar as a Judicial Officer. He did not become a Master." (see [25])
"It seems to me that r 3 is expressed in the widest of terms and that it enables a Master to conduct the review sought in this case. In my view the application for review is competent." (see [28])
"Perhaps the strongest indication may be found in s 208NC, which expressly describes the application for leave as an appeal made under s 208M." (see [33])
"Section 208N confers a discretionary power. It is to be exercised having regard to the relevant circumstances ... The onus rests with the applicant." (see [10])
The decision is engaged where:
Practitioners facing registration-of-certificate enforcement steps and seeking suspension should note that the court will treat a s 208M leave application, in this statutory context, as an 'appeal' capable of invoking s 208N.
The judgment itself acknowledges it may be among the first to resolve this precise interaction between referral orders, Masters' review jurisdiction and the character of a s 208M leave application (see [22]). The text does not record later appellate treatment or overruling. Therefore, while the decision is persuasive within the Supreme Court of New South Wales, users should check for any subsequent appellate consideration or legislative amendments affecting Subdivision 4B or the relevant rules. The Master also relied on and distinguished Klewer v Walton [2003] which addressed whether an appeal was competent in a different context; Master Malpass distinguished that case on its facts and the nature of the officer who made the decision (see [23]-[25]).
Several issues could still attract debate or require higher authority:
Breadth of the decision in other statutory contexts: Master Malpass relied on the particular language of Subdivision 4B, especially s 208NC. Whether an application for leave constitutes an 'appeal' in other statutory schemes lacking similar express provision remains open. The court expressly noted Collins v R as an authority that an application for leave is not generally an appeal, but found the statutory context determinative here (see [32]-[33]).
Appellate consequences of referral orders: The Master held that referral does not convert a Registrar into a Master for appeal-route purposes; however, this raises questions about the coherence of appeal channels in jurisdictions where referral materially changes the complexity or consequences of decisions. The judgment observed that changes to Registrar powers by referral have not been accompanied by matching changes in challenge provisions and suggested this may be an oversight (see [27]).
Practical interaction with Pt 60 r 17: Rule 17 identifies certain cases (including proceedings under ss 208L-208N) as appeals to the Court of Appeal. How the Master’s conclusion about the competence of Masters to review Registrar decisions squares with the special appellate pathway in r 17 could be litigated further if a party seeks to press appellate rights to the Court of Appeal.
Policy concerns about Masters reviewing matters in subject areas they commonly adjudicate over: the judgment flagged potential unease at Masters reviewing matters in domains where they normally exercise jurisdiction (see [26]-[28]). That policy debate remains unresolved and may be better addressed by rule change or higher court ruling.
Practitioners should treat the Master’s conclusions as authoritative at the Supreme Court level unless and until appellate authority or legislative amendment says otherwise, and should monitor subsequent decisions and legislative developments that might refine or alter these holdings.
CITATION : McDowell v Fox & Ors [2003] NSWSC 324 HEARING DATE(S) : 8 April 2003 JUDGMENT DATE : 17 April 2003 JURISDICTION: Common Law Division JUDGMENT OF : Master Malpass DECISION : Findings made that the application for review is competent and that an application for leave to appeal is an appeal for the purposes of s 208N. Questions of costs to date are reserved and the parties are to have liberty to apply.
CATCHWORDS : Application for suspension of determination heard by Registrar exercising referred power - competency of review by a Master - is an application for leave to appeal an appeal for the purposes of s 208N. Justices Act 1902, s 104. Legal Profession Act 1987, Div 6, s 208JA, subdiv 4B, ss 208L - 208NC. LEGISLATION CITED : Supreme Court Act 1970, s 121. Supreme Court Rules 1970, Pt 60 r 10 and r 17, Pt 61 r 3, Sch D, Sch E Pt 2 cl 11. CASES CITED : Collins v R (1975) 8 ALR 150. Klewer v Walton [2003] NSWSC 113. Karen Frances McDowell (Plaintiff) v PARTIES : Henry Fox (First Defendant) Sarah Deans (Second Defendant) Chatswood Art School Pty Ltd (Third Defendant) FILE NUMBER(S) : SC 12404 of 2002 COUNSEL : N/A (Plaintiff) Mr P I Lakatos (Defendants) SOLICITORS : John Cunningham (Plaintiff) Brian Muir & Company (Defendants)
LOWER COURT Supreme Court (Registrar) JURISDICTION : LOWER COURT 12404 of 2002 FILE NUMBER(S) : LOWER COURT Senior Deputy Registrar Whitehead JUDICIAL OFFICER :
IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION
12404 of 2002 Karen Frances McDowell v Henry Fox & Ors
JUDGMENT 1 MASTER: The plaintiff is a solicitor. She was retained to provide legal services for the defendants. 2 She rendered certain bills in respect of those services. Dispute then arose between the parties. There had been a costs agreement. It was terminated. Application was made for an assessment of costs. Assessments were made. Litigation and other activity proceeded between the parties. This has seen the parties incur legal costs which are grossly disproportionate to the amounts in issue. Despite this, the unfortunate saga continues with increasing areas of conflict. 3 On 30 August 2002, the plaintiff commenced these proceedings by filing a Summons seeking inter alia leave to appeal against a costs assessment determination. The leave is sought pursuant to s 208M of the Legal Profession Act 1987 (the Act). 4 Subsequently, an Amended Summons was filed seeking additional relief (including leave to appeal in respect of another determination). The defendants contend that it was filed without leave and oppose the plaintiff relying on it. 5 An assessment was made by Mr Scammell. It produced an unfavourable result for the plaintiff. The first defendant filed the Certificate As To Determination in the Local Court. It then came to be taken as a judgment of that court (s 208JA). The plaintiff then sought a review by the panel. The panel conducted a review and issued both a Certificate of Determination and an Amended Certificate of Determination. The latter was issued 21 February 2002. The result continued to be unfavourable to the plaintiff.
6 There had been a stay on the Local Court judgment. There had been the issue of a Bankruptcy Notice and subsequent proceedings concerning it. The stay proceedings in the Local Court have been dismissed by consent and the Bankruptcy Notice has been set aside.
7 The application for leave has been brought well out of time. It will remain incompetent unless an extension of time for the bringing of it is granted by the court. The matter of any such extension, like the application for leave itself, can be expected to be a hotly disputed issue.
8 Although it might have been thought that the expeditious disposition of the application should have been paramount in the minds of the parties, it is yet to come on for hearing. Indeed, despite a long delay not only has it not been set down for hearing, it seems to have been stood out of the list. The parties have focused their attention on interlocutory disputes.
9 The plaintiff made application for a suspension pursuant to s 208N. The application was heard by a Registrar. His decision was given on 21 October 2002. He suspended the operation of two certificates (including the one relevant to present proceedings). 10 Section 208N confers a discretionary power. It is to be exercised having regard to the relevant circumstances of the particular case before the court and so that justice is best served between the parties. The onus rests with the applicant. 11 The relevant provision for present purposes is subsection (1). It is in the following terms:- " 208N. Effect of appeal on application
(1) If a party to an application has appealed against a determination or decision of a costs assessor, either the costs assessor or the court or tribunal to which the appeal is made may suspend, until the appeal is determined, the operation of the determination or decision". 12 As applications for assessment are not proceedings in this Court, the Parliament saw it necessary to confer a power in the nature of a stay in respect of the taking of action to enforce a determination or decision made by a costs assessor. 13 A Registrar is an officer of the court and may exercise such of its powers as are conferred upon him or her (s 121 of the Supreme Court Act 1970). A Master has jurisdiction to deal with proceedings concerning inter alia ss 208L, 208M and 208N (Schedule D of the Supreme Court Rules 1970). Save for those cases where the referral power conferred by Schedule E Pt 2 cl 11 is exercised, a Registrar does not have jurisdiction to entertain such proceedings. In the present case, a referral order was made by a Master. 14 It is common ground, in the circumstances, that the Registrar had jurisdiction to deal with the application that was made pursuant to s 208N. Indeed, it is appropriate that such application should be usually dealt with by Registrars. Registrars have a like power to stay inter alia judgments and orders and regularly exercise that power. 15 The defendants have sought a review of his decision. They rely on the provisions of Pt 61 r3. 16 In the ordinary course, the application for review was listed for hearing before a Master. At the commencement of the hearing, the plaintiff challenged the competence of the application. It was said that by reason of the referral order, the means of challenge to the decision was that which followed a decision made by a Master. Accordingly, it is said that the challenge must be by way of leave to appeal made to the Court of Appeal. 17 At about the same time a submission (which had been put to the Registrar) was re-agitated on behalf of the defendants. It was to the effect that the section had no application in the present circumstances. It was seen as a short point that was determinative of the plaintiff's application. It was submitted that an application made pursuant to s 208M is not an appeal and that s 208N has application only when an appeal is made pursuant to s 208L. 18 After some discussion, it became common ground that the court should deal with these two questions as preliminary or threshold matters. Argument was heard on both of them and judgment was then reserved. 19 I first turn to the question of whether or not this particular review should be heard by a Master. The power to conduct a review is a power conferred on the court. It is now usually exercised by Masters, but may be exercised by other Judicial Officers. It can be conducted where a Registrar gives a certificate or makes an order or decision or does any other act in any proceedings. 20 Pt 60 makes provision for appeals from a Master. The relevant provisions are to be found in rules 10 and 17. The relevant provisions are as follows:- " [60.10] r 10 Right of appeal 10 An appeal shall lie to the Court from any decision of a master, except in any case where an appeal lies to the Court of Appeal pursuant to rule 17. ……………………………………………………… [60.17] r 17 Cases for appeal 17 An appeal shall lie to the Court of Appeal in accordance with sections 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, from any decision of the Court in a Division constituted by a master: ……………………………………………………… (g) in proceedings under section 208L or section 208M or section 208N of the Legal Profession Act 1987, or ………………………………………………………" 21 The argument on the question has consisted of brief oral submissions supplemented by subsequent submissions in writing. 22 Although clause 11 was introduced on 24 November 2000, it may be that this is the first instance in which the question has been ventilated. I have not been referred to any authority on the question. 23 In support of her contention, the plaintiff has drawn the attention of the court of the judgment of Levine J in Klewer v Walton [2003] NSWSC 113. The defendants dispute the application of what was decided in that case to the circumstances now before the court. In that case, Master Harrison had dealt with an appeal pursuant to s 104 of the Justices Act 1902. She dismissed the appeal. An appeal was then brought before a single judge. 24 It was a case where a referral order had been made by the List Judge. Levine J decided that the appeal was incompetent. At paragraph 23 of the judgment, his Honour said inter alia "it is the nature of the proceedings that is determinative in the legislative context on its proper and sensible construction that governs the avenue of appeal". 25 In the present case, the Registrar was sitting as a Registrar exercising powers referred to him by a Master. I do not consider that the referral order changed the character of the Registrar as a Judicial Officer. He did not become a Master. I do not consider that his decision can be treated as a decision of the Court in a Division constituted by a Master in the sense contemplated by Pt 60 r 17. 26 For many years, the Masters have regularly exercised jurisdiction conferred by the exercise of a referral order. There have been many changes in the rules relating to appeals from Masters. These changes have been made inter alia to accommodate the prolific exercise of referred jurisdiction by Masters. 27 Although the powers of a Registrar can now be enhanced by a referral order, there has been no accompanying change in relation to the provisions which enable challenge to a decision of a Registrar. Perhaps this may be an oversight. Alternatively, the view may have been taken that the existing rules were adequate. 28 It could be that some may be troubled by the concept that Masters may now be seen as exercising a power of review in respect of matters in which they usually exercise the jurisdiction. Perhaps the view may be taken that it is inappropriate that they do so. For present purposes, I need not dwell on those considerations. It seems to me that r 3 is expressed in the widest of terms and that it enables a Master to conduct the review sought in this case. In my view the application for review is competent. 29 For completeness, I should add that the court has the power to set aside or vary an order made by a Registrar (s 121). 30 I now turn to the remaining question. Division 6 of the Act deals with the assessment of costs. Subdivision 4B thereof is headed "Appeals". It comprises six sections (ss 208L - 208NC). Section 208L is headed "Appeal against decision of costs assessor as to matter of law". Section 208M is headed "Appeal against decision of costs assessor by leave". Section 208N is headed "Effect of appeal on application". Section 208NA is headed "Assessor can be a party to appeal". Section 208NB is headed "Notices of appeal". Section 208NC is headed "Court may refer unreviewed determination to review panel". 31 Section 208NC is in the following terms:- " 208NC. Court may refer unreviewed determination to review panel
(1) If an appeal is made under section 208M against a determination of a costs assessor and the determination to which the appeal relates has not been reviewed by a panel in accordance with Subdivision 4A, the court or tribunal to which the appeal is made may refer the appeal to the Manager, Costs Assessment for a review by a panel under that Subdivision.
(2) For the purposes of Subdivision 4A, the referral of an appeal by a court or tribunal under subsection (1) to the Manager, Costs Assessment is taken to be a duly made application for a review under that Subdivision." 32 There is authority which supports the view that an application for leave is not an appeal as such (Collins v R (1975) 8 ALR 150). In the absence of a contrary indication in the relevant statutory provisions, it seems to me that there is considerable force in the view that an application for leave should not be regarded as an appeal. 33 However, I consider that the structure and language of the provisions of Subdivision 4B leads to the view that for the purposes of that subdivision Parliament intended that an application for leave pursuant to s 208M should be treated as an appeal. Perhaps the strongest indication may be found in s 208NC, which expressly describes the application for leave as an appeal made under s 208M. 34 The views that I have reached on the two questions bring about a situation where the two preliminary or threshold matters no longer stand in the way of further conduct of the review. 35 Any further hearing of this application will involve inter alia discretionary considerations. I have now taken steps which hopefully will bring the proceedings to an early determination by a hearing of the substantive matters. The proceedings have been placed in a call-up before the List Judge. If the parties are given an early hearing date, they may be well advised to stand the present application over to the hearing. 36 Before concluding this judgment I should make the observation that disputes over matters of suspension are indeed very rare in this Court. Most parties take the sensible approach that their respective best interests are served by an expeditious disposition of the appeal. There is usually agreement that enforcement of the determination should abide the result of the appeal. Further, I should make the general observation that the incurring of substantial costs in disputes on questions of costs is usually regarded as being most unwise. 37 Questions of costs to date are reserved and the parties are to have liberty to apply.
Last Modified: 04/22/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
McDowell
Fox & Ors
(1975) 8 ALR 150
Master Malpass held the application for review by a Master was competent and that an application for leave under s 208M is to be treated as an appeal for the purposes of s 208N and related referral provisions; questions of costs to date reserved; parties given liberty to apply (see [28], [33], [34], [37]).