Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Qin v He [2020] NSWCA 275 Hearing dates: 2 November 2020 Date of orders: 2 November 2020 Decision date: 02 November 2020 Before: Meagher JA Decision: Dismiss the notice of appeal filed on 12 August 2020. Catchwords: CIVIL PROCEDURE — Court of Appeal — appeal from District Court determination of appeal from costs assessment of review panel — no right of appeal from District Court to Supreme Court under District Court Act 1973 (NSW) — no question of principle Legislation Cited: District Court Act 1973 (NSW), s 127 Legal Profession Uniform Law Application Act 2014 (NSW), ss 83, 89 Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.41(2) Cases Cited: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398; [1911] HCA 31 Fokas v Mansfield (No 2) [2017] NSWCA 261 Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98 Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Category: Procedural and other rulings Parties: Wei Wen Qin (appellant) Kaijaun He (first respondent) (no appearance) View Land Properties Pty Ltd (second respondent) (no appearance) Li Li (third respondent) (no appearance) Hao Ran Shen (fourth respondent) (submitting appearance) Representation: Counsel: Appellant (self-represented) Solicitors: Appellant (self-represented) File Number(s): 2020/00156212 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2020] NSWDC 522 Date of Decision: 30 April 2020 Before: Taylor SC DCJ File Number(s): 2019/220446 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. Wei Wen Qin has filed a notice of appeal from orders made by Taylor SC DCJ on 30 April 2020. Those orders determined Mr Qin's appeal to that Court under s 89(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act). His Honour allowed that appeal, reducing the relevant costs assessment to $30,348 and making consequential orders in relation to the costs of the assessment process and the appeal to the District Court: Qin v He [2020] NSWDC 522. 2. The appeal was listed today to give the appellant the opportunity to show cause why his appeal should not be dismissed as incompetent. That question was first raised by the Registrar at a directions hearing on 9 September 2020. On that occasion a direction was made that any summons seeking judicial review of the District Court decision should be filed and served by Mr Qin by 30 September 2020. That direction also provided that the filing fee for that summons would be waived, a fee already having been incurred in the filing of the notice of appeal. No such summons has been filed. 3. The first duty of this Court is to decide whether it has jurisdiction to hear and determine the appeal: Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415; [1911] HCA 31 (Griffith CJ); and there is no doubt that the Court of its own motion can dismiss an appeal as incompetent. 4. As White JA observed in Fokas v Mansfield (No 2) [2017] NSWCA 261 at [15], so much is recognised by the terms of Uniform Civil Procedure Rules 2005 (NSW), r 51.41(2). I agree also with his Honour's observation that sitting as a single Judge of Appeal I have the power to do so, on the referral of the matter from the Registrar and in circumstances where the appellant has had ample notice of the jurisdictional question and the opportunity to avoid its consequences for his attempt to challenge the outcome in the District Court. 5. Mr Qin has filed written submissions in support of his claim that the appeal is competent. Those submissions outline the events leading to the costs assessment appeal in the District Court. 6. Proceedings commenced in the Supreme Court by Mr Qin against the first, second and third respondents were summarily dismissed by Davies J on 21 July 2019. Mr Qin was ordered to pay the costs of those proceedings. The fourth respondent, Mr Shen, acting as solicitor for the other respondents, applied for the amount of those costs to be assessed under Part 7 of the Application Act. In that process Mr Qin claimed that the costs agreements and invoices relied on by the respondents were forgeries. 7. In May 2018 the costs assessor, Ms Dulhunty, determined that question unfavourably to Mr Qin. On 2 August 2018 he sought a review of that determination under s 83 of the Application Act. The determination and reasons of the review panel are not before this Court. However it would seem that it reduced the cost assessor's assessment to approximately $37,000. Mr Qin appealed from that determination to the District Court pursuant to the Application Act, s 89. As noted at the outset, that appeal was allowed and the assessment was revised down to $30,348. 8. The sole question for me is whether there is a statutory right of appeal to this Court from that determination of the District Court. The answer is straightforward and no. 9. The right to appeal from judgments or orders of the District Court in its civil jurisdiction (other than proceedings under Division 8 of Part 3) is conferred by District Court Act 1973 (NSW), s 127. That right of appeal is from a judgment or order in "an action". This Court has held that there is no appeal where the District Court is exercising a statutory appellate jurisdiction with respect to decisions of other courts or tribunals. That is because such appellate proceedings are not proceedings "in an action". As Basten JA noted in Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98 at [5] (Leeming JA and Simpson AJA agreeing) that principle has been applied in relation to the costs assessment provisions of the Legal Profession Act 2004 (NSW): see Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170. It was also applied in Gazecki which concerned a costs assessment under the provisions of the Application Act. 10. Accordingly, Mr Qin's appeal must be dismissed. 11. There was no appearance by or on behalf of the first to third respondents at the hearing of the show cause application or at the two earlier directions hearings. Mr Shen has filed a submitting appearance in the proceedings. In these circumstances there should be no order in favour of any of the respondents as to the costs of the proceedings, or of the show cause application. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 November 2020