McCausland v Surfing Hardware International Holdings Pty Limited [2010] NSWDC 222

McCausland v Surfing Hardware International Holdings Pty Limited [2010] NSWDC 222

The plaintiffs' application for leave to appeal to the District Court was incompetent to the extent that the grounds did not involve a decision on a matter of law arising in the costs assessment proceedings, because leave under s 385 for an appeal concerning party/party costs ordered by the Industrial Court had to be sought in that Court. In an appeal as of right under s 384(1), the District Court may determine only legal error on the material before the review panel; UCPR r 50.16 does not permit fresh or further evidence to be led in that appeal.

Jurisdiction
Australia
Judgment Date
24 September 2010
Procedural Posture
Civil Costs Assessment Appeal / Preliminary Issues in an Appeal to the District Court From a Review Panel Concerning an Assessment of Party/party Costs
Outcome
The Court held that the application for leave to appeal was incompetent insofar as it relied on grounds not relating to a decision on a matter of law, and that the only evidence admissible in the s 384(1) appeal was the material before the review panel. The remaining question concerning the appeal grounds was deferred.
Legal Topics
['assessment of Party/party Costs' 'appeal From Costs Review Panel' 'leave to Appeal Under Legal Profession Act 2004' 'fresh or Further Evidence on Appeal' 'indemnity Principle']
['costs' 'civil Procedure' 'legal Profession'] ['assessment of Party/party Costs' 'appeal From Costs Review Panel' 'leave to Appeal Under Legal Profession Act 2004' 'fresh or Further Evidence on Appeal' 'indemnity Principle']

Case Brief

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Procedural Posture

Civil Costs Assessment Appeal / Preliminary Issues in an Appeal to the District Court From a Review Panel Concerning an Assessment of Party/party Costs

Legal Issues

  1. 1 ['Whether an application for leave to appeal under s 385 of the Legal Profession Act 2004 may be made to the District Court, rather than to the Industrial Court of New South Wales which made the costs orders.' 'Whether fresh or further evidence may be led in an appeal under s 384(1) of the Legal Profession Act 2004 in respect of a decision of a costs review panel as to a matter of law arising in the proceedings.' 'Whether grounds 1 to 8 in the summons fall within s 384(1) so as to provide an appeal as of right; this issue was not decided at this stage.']

Ratio Decidendi

The plaintiffs' application for leave to appeal to the District Court was incompetent to the extent that the grounds did not involve a decision on a matter of law arising in the costs assessment proceedings, because leave under s 385 for an appeal concerning party/party costs ordered by the Industrial Court had to be sought in that Court. In an appeal as of right under s 384(1), the District Court may determine only legal error on the material before the review panel; UCPR r 50.16 does not permit fresh or further evidence to be led in that appeal.

Court Disposition

The Court held that the application for leave to appeal was incompetent insofar as it relied on grounds not relating to a decision on a matter of law, and that the only evidence admissible in the s 384(1) appeal was the material before the review panel. The remaining question concerning the appeal grounds was deferred.

Orders

  • ['The proceedings are stood over for further directions on Friday, 19 November 2010.' 'Leave granted to the parties to apply before that date, but to the List Judge.' 'Costs of the preliminary questions are reserved.']