Coshott v Spencer [2017] NSWCA 118

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coshott v Spencer [2017] NSWCA 118 Hearing dates: 8 March 2017 Decision date: 31 May 2017 Before: Beazley ACJ at [1]; McColl JA at [111]; Simpson JA at [112] Decision: Summons dismissed with costs. Catchwords: COSTS – costs assessment under the Legal Profession Act 2004 (NSW) – appeal from determination of review panel to District Court pursuant to s 384 – application for judicial review of District Court decision – whether costs assessor had jurisdiction to determine that party was a "third party payer" within meaning of s 302A – role of costs assessor – whether jurisdiction to determine that party was a "third party payer" was reserved to Manager, Costs Assessment – role of Manager, Costs Assessment

STATUTORY INTERPRETATION – the Legal Profession Act 2004 (NSW), s 302A, meaning of "third party payer" – meaning of "non-associated third party payer"

JUDICIAL REVIEW – jurisdictional error – whether administrative officer has the power to determine whether it is acting within authority – whether costs assessor under the Legal Profession Act 2004 (NSW) had jurisdiction to determine that a party to an assessment was a "third party payer" within meaning of s 302A – whether District Court judge erred in law in holding that costs assessor had jurisdiction

COSTS – Chorley exception – costs assessor allowed solicitor professional costs where he was self-represented litigant – whether 'Chorley exception' applies in New South Wales – scope of exception

STATUTORY INTERPRETATION – construction of the Civil Procedure Act 2005 (NSW), s 98 – s 98(1)(a) provides that costs are in the discretion of the court – meaning of costs as defined in the Civil Procedure Act 2005 (NSW), s 3 Legislation Cited: Civil Procedure Act 2005 (NSW) s 98 Legal Profession Act 2004 (NSW), ss 4, 302A, 322, 327, 328, 350, 351, 352, 353, 354, 356, 357, 358, 359, 363, 367, 367A, 368, 373, 373A, 374, 379, 384, 390 Legal Profession Uniform Law (NSW), ss 171, 198 Legal Profession Uniform Law Application Act 2014 (NSW) Supreme Court Act 1970 (NSW), s 69 Cases Cited: A & D Douglass Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690 Atlas Corporation Pty Ltd v Kalyk [2001] NSWCA 10 Baker v The Queen [1975] AC 774 Barrs v Bethell [1982] Ch 294 Bechara t/as Bechara and Company v Bates [2016] NSWCA 294 Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 Cook v Cook (1986) 162 CLR 376 Coshott v Barry [2016] NSWCA 358 Dobree v Hoffman (1986) WAR 36 Eberstaller v Poulos [2014] 87 NSWLR 394; 2014 NSWCA 211 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Federated Engine Drivers' and Firemen's Association of Australasia v Broken Hill Co Ltd [1911] 12 CLR 398; [1911] HCA 31 Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48 Guss v Veenhuizen (No 2) (1976) 136 CLR 47; [1976] HCA 57 Lazarus v Independent Commission Against Corruption [2017] NSWCA 37 London Scottish Benefit Society v Chorley (1884) 13 QBD 87 McIlwraith v Ilkin [2007] NSWSC 1052 National Enterprises Ltd v Racal Communications Ltd [1975] 1 Ch 397 Re Adams and the Tax Agents' Board (1976) 12 ALR 239 Soia v Bennett [2014] WASCA 27 Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Wentworth v Rogers (2006) 66 NSWLR 474; [2006] NSWCA 145 Wilkie v Brown [2016] NSWCA 128 Category: Principal judgment Parties: Ronald Michael Coshott (Applicant) Keith Robert Spencer (First Respondent) District Court of New South Wales (Second Respondent) Christopher Phillip Wall (Third Respondent) Costs Assessment Manager (Fourth Respondent) Representation: Counsel: A Cheshire SC, S Spadijer (Applicant) P Carey (First Respondent)