Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98

Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98

The leave to appeal summons was incompetent because s 127 of the District Court Act 1973 (NSW) did not provide an appeal where the District Court was exercising statutory appellate jurisdiction from a costs assessment review panel. The judicial review summons failed because the grounds did not disclose jurisdictional error, error of law on the face of the record, or legal unreasonableness in the primary judge's refusal to extend time; the judge permissibly treated the 30-day delay, inadequate explanation, and very limited prospects of success as dispositive, and no material prejudice finding was required.

Jurisdiction
Australia
Judgment Date
26 May 2020
Procedural Posture
Application for Leave to Appeal and Summons for Judicial Review / Court of Appeal Proceedings Challenging the District Court's Refusal to Extend Time to Appeal From a Costs Assessment Review Panel Determination
Outcome
The summons seeking leave to appeal and the summons for judicial review were dismissed with costs.
Legal Topics
['extension of Time' 'costs Assessment' 'appeal From Review Panel to District Court' 'supervisory Jurisdiction' 'error of Law on the Face of the Record' 'legal Profession Uniform Law Application Act 2014 (nsw), S 89(1)' 'district Court Act 1973 (nsw), S 127' 'supreme Court Act 1970 (nsw), S 69']
['civil Procedure' 'costs' 'judicial Review' 'statutory Interpretation'] ['extension of Time' 'costs Assessment' 'appeal From Review Panel to District Court' 'supervisory Jurisdiction' 'error of Law on the Face of the Record' 'legal Profession Uniform Law Application Act 2014 (nsw), S 89(1)' 'district Court Act 1973 (nsw), S 127' 'supreme Court Act 1970 (nsw), S 69']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Summons for Judicial Review / Court of Appeal Proceedings Challenging the District Court's Refusal to Extend Time to Appeal From a Costs Assessment Review Panel Determination

Legal Issues

  1. 1 ['Whether the application for leave to appeal under s 127 of the District Court Act 1973 (NSW) was competent where the District Court was exercising statutory appellate jurisdiction.' 'Whether the primary judge erred in law or acted legally unreasonably in refusing an extension of time to file the appeal from the review panel determination.' 'Whether the grounds of judicial review were within the limits of s 69 of the Supreme Court Act 1970 (NSW), including jurisdictional error or error of law on the face of the record.' 'Whether material beyond the record could be relied on to support the asserted grounds of review.' 'What approach should be taken to the nature of an appeal under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW).']

Ratio Decidendi

The leave to appeal summons was incompetent because s 127 of the District Court Act 1973 (NSW) did not provide an appeal where the District Court was exercising statutory appellate jurisdiction from a costs assessment review panel. The judicial review summons failed because the grounds did not disclose jurisdictional error, error of law on the face of the record, or legal unreasonableness in the primary judge's refusal to extend time; the judge permissibly treated the 30-day delay, inadequate explanation, and very limited prospects of success as dispositive, and no material prejudice finding was required.

Court Disposition

The summons seeking leave to appeal and the summons for judicial review were dismissed with costs.

Orders

  • ['In matter 2019/344193 (leave to appeal): Dismiss the summons filed on 9 January 2020.' "In matter 2019/344193 (leave to appeal): Order that the applicant pay the respondent's costs of the summons." 'In matter 2020/5071 (judicial review): Dismiss the summons for judicial review filed 7 January 2020.' "In matter...