McDowell v Fox & Ors [2003] NSWSC 495

McDowell v Fox & Ors [2003] NSWSC 495

Proceedings seeking relief under either s 208L or s 208M are characterised by Subdivision 4B of the Legal Profession Act 1987 as appeals for the purposes of s 208N. The filing of the summons in this Court out of time was a failure to comply with time requirements in beginning or purporting to begin proceedings, and under s 81 of the Supreme Court Act 1970 that failure was an irregularity rather than a nullity. Accordingly, the present proceedings instituted an appeal within the meaning of s 208N, subject to any entitlement to correct the irregularity or to have the proceedings dismissed.

Jurisdiction
Australia
Judgment Date
10 June 2003
Procedural Posture
Appeal/application Concerning a Costs Assessor's Determination Under the Legal Profession Act 1987 / Preliminary or Threshold Determination/clarification Before Master Malpass
Outcome
The present proceedings institute an appeal within the meaning of s 208N.
Legal Topics
['appeal From Costs Assessor' 'application for Leave to Appeal' 'extension of Time' 'irregularity in Institution of Proceedings' 'suspension or Stay Pending Appeal']
['legal Profession' 'civil Procedure' 'costs Assessment'] ['appeal From Costs Assessor' 'application for Leave to Appeal' 'extension of Time' 'irregularity in Institution of Proceedings' 'suspension or Stay Pending Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Appeal/application Concerning a Costs Assessor's Determination Under the Legal Profession Act 1987 / Preliminary or Threshold Determination/clarification Before Master Malpass

Legal Issues

  1. 1 ['Whether proceedings brought pursuant to s 208L or s 208M of the Legal Profession Act 1987 out of time are appeals within the meaning of s 208N.' 'Whether failure to comply with the prescribed time for instituting the appeal makes the proceedings a nullity or an irregularity.' "Whether the Court may suspend or stay the operation of the costs assessor's determination pending determination of the appeal."]

Ratio Decidendi

Proceedings seeking relief under either s 208L or s 208M are characterised by Subdivision 4B of the Legal Profession Act 1987 as appeals for the purposes of s 208N. The filing of the summons in this Court out of time was a failure to comply with time requirements in beginning or purporting to begin proceedings, and under s 81 of the Supreme Court Act 1970 that failure was an irregularity rather than a nullity. Accordingly, the present proceedings instituted an appeal within the meaning of s 208N, subject to any entitlement to correct the irregularity or to have the proceedings dismissed.

Court Disposition

The present proceedings institute an appeal within the meaning of s 208N.

Orders

  • []