Kelly v Norris & 1 Ors [2004] NSWCA 260

New South Wales Court of Appeal

CITATION : Kelly v Norris & 1 Ors [2004] NSWCA 260 HEARING DATE(S) : 11 June 2004 JUDGMENT DATE : 30 July 2004

JUDGMENT OF : Hodgson JA at 1; Santow JA at 2; Bryson JA at 39 DECISION : Grant of leave to appeal refused. Ordinary summons dismissed.

CATCHWORDS : PRACTICE AND PROCEDURE - Costs - matter arose out of complex and exceptionally lengthy proceedings in relation to a motor vehicle accident in which plaintiff suffered severe brain damage - application for leave to appeal - submitting appearances filed by first and second opponents - costs incurred by plaintiff's solicitors in connection with those legal proceedings reviewed by trial judge of his own motion - whether appellate court should give leave to appeal when small sum involved - orders sought to be appealed from may affect reputation of plaintiff's solicitor, the claimant in this matter - dealt with only a small part of the costs which the claimant had charged the plaintiff, his tutor and the guardian of his protected estate regarding the conduct of the litigation - those orders concerned the cost of an expert's report and its copying, costs of copying exhibit and copying costs of solicitor's letter in relation to briefing a potential witness - trial judge made the orders at his own initiative and not on the motion of any party - trial judge did not lack power to make the orders - whether circumstances justify appellate intervention - whether the undoubted discretion to charge the legal adviser with costs incurred improperly or without reasonable cause, had been properly exercised. Local Court (Civil Claims) Act 1970 s69(2A) LEGISLATION CITED : Supreme Court Act s76; s101 Supreme Court Rules 1970 Pt 52 r66 Blake v Norris (SC 12247 of 1989) Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl (Court of Appeal, 16 November 1995, unreported) BC9501771 Dunn v. Ross Lamb Motors [1978] 1 NSWLR 26 House v The King (1936) 55 CLR 499 Micallef v ICI Australia Operations Ltd [2001] NSWCA 274 CASES CITED : Norris v Blake (by his Tutor Porter) (No. 2) (1997) 41 NSWLR 49 Ozpinar v. Assaily [2001] NSWCA 23 Piglowska v. Piglowski [1999] 1 WLR 1360 Re Veron (1966) 84 WN(Pt 1)(NSW) 136 Rumortex Pty Ltd v. Rodgers & Anor [2000] NSWCA 18 Wentworth v. Rogers (No. 3) (1986) 6 NSWLR 642 Timothy Denis KELLY (Claimant) PARTIES : Walter Thomas Patmore NORRIS (First Opponent) The estate of Paul Jonathan BLAKE by his tutor Brian Edward PORTER (Second Opponent) FILE NUMBER(S) : CA 40339/03 G R GRAHAM (Claimant) COUNSEL : Ms M HOLZ (First Opponent) P KENNEDY (solicitor) (Second Opponent) T D Kelly & Co (Claimant) SOLICITORS : Ferguson Lawyers (First Opponent) Mooney & Kennedy (Second Opponent)