Coshott v Barry & Board [2010] NSWSC 1324

Coshott v Barry & Board [2010] NSWSC 1324

The plaintiff's challenge to Certificate 0017354/2008 was summarily dismissed because the District Court had finally determined the identical ultra vires issue against her, making the present challenge res judicata and an abuse of process. Her challenge to Certificate 91968/2003 was summarily dismissed because she was not a party to that costs assessment and could not possibly succeed. The defendants did not establish a sufficiently clear basis for summary dismissal of the challenges to Certificates 92068/2003 and 90495/2004 because the prior District Court proceedings were dismissed by consent without a merits determination, the issues were not sufficiently identical on the material...

Jurisdiction
Australia
Judgment Date
30 November 2010
Procedural Posture
Summons Seeking Declarations and Orders Concerning Certificates of Determination of Costs; Defendants' Notice of Motion for Summary Dismissal in Part / Procedural Ruling on Notice of Motion for Summary Dismissal
Outcome
Summons summarily dismissed in part in relation to Certificates of Determination 0017354/2008 and 91968/2003; defendants' notice of motion otherwise dismissed.
Legal Topics
['summary Dismissal' 'abuse of Process' 'res Judicata' 'anshun Estoppel' 'judicial Review' 'ultra Vires' 'costs Certificates' 'supervisory Jurisdiction']
['practice and Procedure' 'administrative Law' 'costs Assessment'] ['summary Dismissal' 'abuse of Process' 'res Judicata' 'anshun Estoppel' 'judicial Review' 'ultra Vires' 'costs Certificates' 'supervisory Jurisdiction']

Case Brief

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Procedural Posture

Summons Seeking Declarations and Orders Concerning Certificates of Determination of Costs; Defendants' Notice of Motion for Summary Dismissal in Part / Procedural Ruling on Notice of Motion for Summary Dismissal

Legal Issues

  1. 1 ["Whether the plaintiff's challenge to Costs Certificate 0017354/2008 was barred by res judicata or was an abuse of process because the District Court of NSW had already determined the ultra vires issue on its merits." 'Whether the plaintiff had standing to challenge Costs Certificate 91968/2003, which named only Robert Coshott as respondent.' "Whether the plaintiff's challenges to Costs Certificates 92068/2003 and 90495/2004 should be summarily dismissed as an abuse of process, res judicata or barred by Anshun estoppel after District Court appeal proceedings were dismissed by consent." 'Whether pursuit of a statutory appeal under the Legal Profession Act 2004 was necessarily inconsistent with seeking prerogative relief in the Supreme Court.' 'Whether case management directions were required to bring the remaining summons to hearing.']

Ratio Decidendi

The plaintiff's challenge to Certificate 0017354/2008 was summarily dismissed because the District Court had finally determined the identical ultra vires issue against her, making the present challenge res judicata and an abuse of process. Her challenge to Certificate 91968/2003 was summarily dismissed because she was not a party to that costs assessment and could not possibly succeed. The defendants did not establish a sufficiently clear basis for summary dismissal of the challenges to Certificates 92068/2003 and 90495/2004 because the prior District Court proceedings were dismissed by consent without a merits determination, the issues were not sufficiently identical on the material...

Court Disposition

Summons summarily dismissed in part in relation to Certificates of Determination 0017354/2008 and 91968/2003; defendants' notice of motion otherwise dismissed.

Orders

  • ['Pursuant to r 13.4 of the UCPR, the summons is dismissed in part in so far as it relates to Certificates of Determination 0017354/2008 and 91968/2003.' 'The plaintiff is to file and serve an amended summons, the form of which is to comply with r 6.12A of the UCPR, on or before 4pm, Friday 3 December 2010.' "The...