Baker & Anor v Kearney [2002] NSWSC 746

New South Wales Supreme Court

CITATION : Baker & Anor v Kearney [2002] NSWSC 746 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11084 of 2002 HEARING DATE(S) : 6 August 2002 JUDGMENT DATE : 26 August 2002

Alan Howard Baker (First Plaintiff) PARTIES : Jiwira Pty Limited (Second Plaintiff) v James Aloysius Kearney (Defendant) JUDGMENT OF : Master Malpass

LOWER COURT Costs Assessment JURISDICTION : LOWER COURT 92272 of 2000 FILE NUMBER(S) : LOWER COURT David Frank Castle JUDICIAL OFFICER :

COUNSEL : Mr J R Young (Plaintiffs) N/A (Defendant) SOLICITORS : Leary & Company (Plaintiffs) W R Ghioni (Defendant) CATCHWORDS : Appeal from Costs Assessor - should Costs Assessor proceed with assessment of costs where there is no liability to pay those costs - liability to pay barrister's fees and costs agreements. LEGISLATION CITED : Legal Profession Act 1987 s 38I, s 175, s 184, s 192, s 195, s 208J(3), s 208L. CASES CITED : N/A DECISION : See Paragraph 21.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

Monday 26 August 2002

11084 of 2002 Alan Howard Baker & Anor v James Aloysius Kearney

JUDGMENT 1 Master: The defendant is a barrister. He provided legal services for the plaintiffs in and about certain proceedings brought in respect of a claim under an insurance policy. A number of costs agreements were made between the parties. Certain arrangements were made to secure payment of fees. Memorandum of fees were rendered. The arrangements enabled part payment of the fees rendered. The plaintiffs had success in the proceedings and that payment was effected from moneys thereby recovered. 2 The defendant has taken steps to recover the balance of his fees. Firstly, he brought proceedings in the District Court to recover the sum of $59,088. The proceedings were heard by Rolfe DCJ and resulted successfully for the plaintiffs. Secondly, the defendant made an application for assessment of costs. The assessment came before a Costs Assessor (Mr Castle). The Costs Assessor made a determination in an amount of $29,339.52. It was issued on 21 March 2002. He gave detailed written reasons for the determination. 3 The plaintiffs have brought an appeal from that determination pursuant to s 208L of the Legal Profession Act 1987 (the Act). The grounds of the appeal are as follows:- "1. The Costs Assessor erred in law in that he was precluded from making a practitioner (barrister)/Client costs assessment by reason of the judgment of Judge Rolfe given in the District Court on 4 September 2000 in proceedings 9853 of 1997 between the plaintiffs and the defendant.. 2. The costs assessor erred in failing to consider whether the principles of res judicata or issue estoppel precluded him from making a barrister/client costs assessment. 3. The Costs Assessor erred by failing to have regard to the effect of sections 208 J (3) and 208 JA (4) in holding that a practitioner was entitled to have his or her costs assessed even if the respondents were under no obligation to pay such costs. 4. The plaintiffs were denied procedural fairness in that in the circumstances of the cost assessment the costs assessor should not have proceeded to determine the amount of costs until after determining the threshold issue of law relating to the judgment of Rolfe DCJ in circumstances where