Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439

New South Wales Supreme Court

CITATION : Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439

HEARING DATE(S) : 8 May 2008

JUDGMENT DATE : 13 May 2008

JUDGMENT OF : Malpass AsJ

DECISION : Proceedings dismissed; plaintiff to pay the costs of the proceedings.

CATCHWORDS : ADMINISTRATIVE LAW - costs assessment - view by panel - statutory functions of review and determination - reasons

LEGISLATION CITED : Legal Profession Act 2004

CATEGORY : Principal judgment

CASES CITED : Kells v Mulligan [2002] NSWSC 769

Honest Remark Pty Ltd (Plaintiff) PARTIES : Allstate Explorations NL (Subject to Deed of Arrangement) (First defendant) Michael Ryan (Second defendant) Antony Woodings (Third defendant)

FILE NUMBER(S) : SC 30143/07

COUNSEL : MBJ Lee (Plaintiff) JR Clarke (Defendants)

SOLICITORS : Piper Alderman (Plaintiff) Mallesons Stephen Jaques (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

Associate Justice Malpass

Tuesday 13 May 2008

30143/07 Honest Remark Pty Ltd v Allstate Explorations NL (Subject to Deed of Arrangement)

JUDGMENT 1 HIS HONOUR: On 3 December 2007, a review panel made a determination in costs assessment proceedings. The plaintiff has brought a challenge to that decision both by way of appeal pursuant to s 384 of the Legal Profession Act 2004 ("the Act") and/or by way of application for leave pursuant to s 385 thereof. 2 An appeal lies as of right in respect of a matter of law arising in the proceedings to determine the application for costs assessment. Leave is a discretionary remedy granted having regard to the dictates of justice. 3 The Summons was filed on 21 December 2007. It identifies appeal grounds. It had two grounds of appeal relevant to s 384. There are numerous matters raised in respect of s 385. 4 The hearing took place on 8 May 2008. An Amended Summons was filed in court. It added a third ground of appeal (which was put in the alternative). The parties have been represented by counsel. Counsel have made written submissions. These have been supplemented by oral argument. 5 The plaintiff's written submissions are directed to the three grounds relevant to s 384. The view was taken therein that it was unnecessary to address the s 385 matters. The three grounds are as follows: "Ground 1 The Costs Review Panel erred in law by substituting its determination as set out in the Certificate of Determination of Costs sent on 3 December 2007 (the determination) in accordance with Section 375(1)(b) on material other than the material specified in Section 375(3) being the Certificate of Determination dated 3 July 2007 and the reasons by the Costs Assessor. Ground 2 The Costs Review Panel erred in law in making the determination in accordance with Section 375(1)(b) by taking into account an irrelevant consideration being ' the approach and reasons ' of the Costs Assessor except where it disagreed with the approach and reasons of the Costs Assessor. Ground 3 In the alternative to grounds 1 and 2, the Costs Review Panel erred in law in failing to comply with its obligations under Section 380 by providing a statement for reasons for the Panel's determination which complied with Regulation 134(d) in that the statement for reasons did not, with respect to any disputed costs, provide an adequate explanation of the basis upon which those costs were assessed." 6 The first two grounds are interrelated and raise a narrow issue. They are founded on the content of s 375 of the Act. Although no point was taken, argument was put that may be regarded as falling outside their ambit. What was said concerned the general function of a panel in relation to a review application. The section is as follows: "375 General functions of panel in relation to review application