Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 Hearing dates: 5 December 2013 Decision date: 02 June 2014 Before: Beazley P at [1]; Basten JA at [15]; Barrett JA at [103] Decision: (A) In matter 2013/54356: (1) Dismiss the summons seeking leave to appeal. (2) Order the applicant to pay the respondent's costs. (B) In matter 2013/149830 (1) Set aside the orders made in the District Court on 15 February 2013 dismissing the appeal from the determination of the Review Panel dated 6 January 2012. (2) In place of the orders made in the District Court: (a) set aside the certificates as to determination of costs issued by the Review Panel on 6 January 2012; (b) set aside the certificates as to determination of costs issued by Ms Dulhunty, Costs Assessor, on 11 January 2011. (3) Remit the matter to the District Court to make any consequential orders with respect to the appeal to that Court and to take such steps as it considers necessary with respect to the costs of the assessments undertaken by Ms Dulhunty and the Review Panel. (4) Order the respondent to pay the applicants' costs in this Court. [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.] Catchwords: PROFESSIONS AND TRADES - lawyers - remuneration - taxation and assessment of costs - assessment under Legal Profession Act 2004 (NSW) - costs payable as a result of an order for the payment of an unspecified amount of costs made by a court - three such orders made by different courts - single application for assessment in respect of the three orders - determination by costs assessor upon that application - single purported certificate of determination - whether processes as adopted formed the foundation for application for review by a review panel - alleged failure of review panel to make a "review" - alleged failure of review panel to give adequate reasons - whether limit on costs recoverable under costs order against a legally assessed person operates for the benefit of the person's partners - scope of order for costs where order made after rehearing following hearing by arbitrator - costs of costs assessment - whether Legal Profession Act s 369(3)(c) applies to assessment of party/party costs as well as practitioner-client costs - LEGAL AID - legal assistance schemes - who is "legally assisted person" under the Legal Aid Commission Act 1979 (NSW) - ADMINISTRATIVE LAW - judicial review - whether review of appellate decision extends to first instance decisions - whether failure of appellate court to identify legal error in decision below constitutes reviewable error - scope of evidence in judicial review proceedings - "record" of court under review - Supreme Court Act 1979 (NSW), s 69 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 28, 38, 42, 43, 44, 46, 54, 56, 98 District Court Act 1973 (NSW), s 127 Interpretation Act 1987 (NSW), ss 5, 8 Judiciary Act 1903 (Cth), s 32 Justices Act 1902 (NSW), s 122 Legal Aid Commission Act 1979 (NSW), ss 4, 31, 34, 35, 37, 42, 47 Legal Practitioners Act 1898 (NSW), ss 22, 28 Legal Profession Act 2004 (NSW), ss 301, 319, 353, 354, 357, 359, 363, 364, 365, 367A, 368, 369, 373, 374, 375, 378, 380, 382, 384, 385; Pt 3.2, Div 11 Legal Profession Regulation 2005, cl 125, cl 134, Pt 9, Div 5 Legal Profession Further Amendment Act 2006 (NSW), Sch 2, [142] Partnership Act 1892 (NSW), ss 5, 6 Supreme Court Act 1970 (NSW), ss 23, 48, 63, 69, 75 Uniform Civil Procedure Rules 2005, rr 42.1, 42.7, 42.12, 44, 46, 50.3(1), 51.2, 59.10 Cases Cited: Alvaro v Amaral (No 2) [2013] WACA 232 Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 Blacker v Parnell [1978] 1 NSWLR 616 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 Branson v Tucker [2012] NSWCA 310 Calvin v Carr [1980] AC 574 Cockburn v Shehadie [2013] NSWSC 758 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Craig v South Australia [1995] HCA 58; 184 CLR 163 CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725; (2011) 12 DCLR (NSW) 304 Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681 Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278; 67 NSWLR 321 Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49; [2008] 2 QdR 323 Hill v Green [1999] NSWCA 477; 48 NSWLR 161 In Re Dibbs and Farrell (1941) 41 SR (NSW) 249 Kells v Mulligan [2002] NSWSC 769 Khoury v Hiar [2006] NSWCA 47 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Newcastle City Council v Wieland [2009] NSWCA 113; 74 NSWLR 173 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 Tomko v Palasty (No 2) [2007] NSWCA 369: 71 NSWLR 61 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; 129 FCR 558 R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 Repatriation Commission v Nation (1995) 57 FCR 25 Robbins v Federal Commissioner of Taxation [1974] HCA 58; 129 CLR 332 Ross v Lane Cove Council [2014] NSWCA 50 Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Wende v Horwath (NSW) Pty Ltd (unrep, P Taylor SC DCJ) Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 Wishart v Fraser [1941] HCA 8; 64 CLR 470 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action (5h ed, Law Book, 2013) at [12.280] P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources - The Laws of Australia (Thomson Reuters, 2013), [25.4.730] Justice P W Young, "Construing Court Orders" (1998) 72 ALJ 117 Category: Principal judgment Parties: Herbert Wende, Margaret Wende, Mark Lloyd (Applicants) Horwath (NSW) Pty Limited (First Respondent) District Court of New South Wales (Second Respondent) K M Dulhunty Costs Assessor (Third Respondent) Richard Gulley Costs Assessor (Fourth Respondent) Mark Campbell Costs Assessor (Fifth Respondent) Representation: Counsel: C J Bevan (Applicants) S F Hughes (Respondents)