McDowell v Fox & Ors [2003] NSWSC 495 | Case summary

JUDGMENT 1 MASTER: This matter came before me on 8 April 2003. I delivered a reserved judgment on 17 April 2003. 2 The court had been asked to deal with two preliminary or threshold matters. I had thought that both of those matters were determined by my judgment. 3 The matter was listed before me once again on 3 June 2003. The purpose of the listing was to either enable clarification of what had been earlier determined or to determine an aspect of the matter raised by the defendants which may have been overlooked. 4 One cause for any problem may be due to confusion in terminology used both in the process, submissions and the reasons for decision given by the Registrar. Another, has been the emphasis on the distinction between leave to appeal and an appeal. 5 Section 208L of the Legal Profession Act 1987 (the Act) enables an appeal (as to a matter of law) to be brought against a decision of a costs assessor. Section 208M enables the bringing of an application for leave to appeal against a determination made by a costs assessor. Both are to be made in accordance with the rules of the Supreme Court. The relevant rules may be found in Pt 51A. Rule 3 thereof provides that an appeal must be instituted with the prescribed time or within such extended time as the court may fix and that the time may be extended at any time. Rule 4 thereof provides that the appeal shall be instituted by filing the prescribed summons. 6 If either or both of those facilities are pursued by proceedings not brought within the prescribed time, the applicant needs an extension of time. It is redolent with confusion to describe an application to extend time as an application for leave or leave to appeal. 7 In the present case, the plaintiff seeks to pursue both avenues of challenge and each of them is made out of time. No complaint is made as to the Summons that was filed to institute the appeal. 8 The matter upon which either clarification or further determination is required is whether for the purposes of s 208N such proceedings are to be treated as an appeal. An application pursuant to that provision was thought to be necessary following an earlier dissolution by consent of a stay in the Local Court. 9 In the earlier judgment, I referred to the structure and language of the provisions of Subdivision 4B of the Act. Section 208N (which is comprised therein) is in the following terms: "208N. Effect of appeal on application

(2) The costs assessor or the court or tribunal may end a suspension made by the costs assessor. The court or tribunal may end a suspension made by the court or tribunal." 10 Under that provision locus standi is given to a party to an application who has appealed against a determination or decision. The language used throughout the subdivision suggests that "application" has reference to the application for assessment. The words "A party to an application" also appear in s 208L and s 208M. The discretionary power enables suspension until the appeal is determined. 11 The matter now being dealt with is not one which can be said to be replete with authority that is easy to locate. Mr Cunningham invited the attention of the court to a Canadian decision (Brooks and Lefebvre v Silin [1941 Vol 2] WWR 52). It was a decision that turned on local provisions. It also refers inter alia to certain English decisions which were decided having regard to the relevant rules of court then in force. Mr Lakatos did not refer the court to any authority on it. At the end of oral submissions, I was left with the view that the matter had not been fully argued. Both parties were given an opportunity to make written submissions. 12 Further written submissions were received from Mr Lakatos and reference was made to various decided cases. Largely, these cases concerned the distinction between leave to appeal and an appeal. 13 Mr Cunningham also made written submissions. Largely, these responded to what had been said by Mr Lakatos and argued for the granting of other relief (inter alia as to matters of costs). 14 In my initial approach to the matter, I put to one side the question of what authority there may be bearing upon it and had regard to the relevant statutes and rules. It seemed to me that they would be at least, largely, determinative. 15 It seemed to me that the statutory provisions contained in the Act characterised proceedings brought pursuant to either s 208L or s 208M as appeals for the purposes of the subdivision which may be made in accordance with the rules. 16 I have already referred to the relevant rules. They deal with inter alia the institution of such appeals. 17 In addition to those matters, it seemed to me that s 81 of the Supreme Court Act 1970 had relevance. It provides inter alia that where in beginning or purporting to begin any proceedings there is a failure to comply with the rules in respect of time, the failure shall be treated as an irregularity and shall not nullify the proceedings. It also confers various powers on the court. 18 So far, the court has not been asked to exercise any of those powers (including the power to set aside the proceedings). 19 In the light of those provisions (whether it be for clarification or otherwise), I was prepared to express the view that extant proceedings seeking relief pursuant to either of ss 208L or 208M are to be treated as appeals within the meaning of s 208N whether or not they have been brought out of time. I was also prepared to express the view that the fact that the proceedings have been brought out of time may well be a circumstance relevant to the exercise of the discretionary power to suspend. 20 Further research led me to an unreported Court of Appeal decision (Morris v Public Transport Commission of NSW 28 May 1984). Although it dealt with an appeal from a decision in the court under Pt 51, it seemed to me to be to the point and confirmed the view I was prepared to express. Accordingly, I express it as my concluded view on the matter and confirm that the present proceedings institute an appeal within the meaning of s 208N. 21 The judgment of Moffitt P (with whom Glass JA agreed), contained the following:- "……………………………….An appeal in proceedings within the Court falls within one of the alternatives provided in the initials words of S81(1). Although not critical to decision in this case, it would seem that an appeal within the Court is treated by the Act and Rules as a step taken 'in the course of or connection with proceedings'. The proceedings at first instance and on appeal within the Court are one proceeding (cf. a proceeding commenced in the court by an appeal from outside the court (S48 and S48(2)(h)). On any view an appeal to the Court of Appeal in a proceeding in the Court is a 'step' taken in the proceedings' and a notice of appeal is 'a document' (filed)......' in the proceedings' in terms of S81(1)(a). In respect of the step taken to appeal by filing a notice of appeal, the 'failure' to comply with the requirements of.....the rules... in respect of time' namely the requirement of Pt51 r(4)(1) is required by S81(1)(a) to be 'treated an (sic) an irregularity'. The failure to comply with that rule as to time did not 'nullify' the step taken to appeal by filing the notice. Since the notice was filed a day out of time there has been an appeal on foot, but there was an irregularity in its institution in that the rule as to time was not complied with as to one day. Even if the order now sought were not made, the appeal would be on foot and the claimant would be entitled to have it proceed to hearing, subject to any order that the opponent is entitled to and obtains to have the irregularity corrected or the proceedings dismissed by reason of it. Such rights as the opponent might have are rights it had during the last six years but did not seek to exercise. The rights in question are those provided by S81(1)(b) which are subject to S81(3). S81(2) is not applicable to the present case. Under S81(1)(b) the opponent had and arguably could still have the right to apply to the court to set aside the notice of appeal. If such an order were made there would then be no appeal pending unless the claimant obtained leave to file a notice of appeal now. By S81(3) such application would have to be made by the opponent within a reasonable time and before he took any fresh step in the proceedings after becoming aware of the irregularity. As stated no such application has ever been made and none is now before the Court." 22 In the present case, I consider that the filing of the Summons in this Court also falls within the alternatives ("where, in beginning or purporting to begin any proceedings") contemplated by the section. The institution of the appeal is not a nullity but there is an irregularity in its institution. There is an appeal on foot which, subject inter alia to the plaintiff's entitlement to have the irregularity corrected and to the defendants' entitlement to have it dismissed, it may go to hearing. 23 For completeness I should add that, save for perhaps certain questions of costs, such a question may be largely academic. Leaving aside the question of jurisdiction had by the Local Court, this Court otherwise has power to grant a stay (inter alia Pt 51A r 8 and its inherent jurisdiction).

McDowell v Fox & Ors

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Judgment (9 paragraphs)

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