Diggs v Director-General of School Education [1998] NSWCC 2; (1998) 16 NSWCCR 41 (12 February 1998)

[1998] NSWCC 2; (1998) 16 NSWCCR 41

DIGGS v DIRECTOR-GENERAL OF SCHOOL EDUCATION

Compensation Court of New South Wales: Campbell CJ

12 February 1998

Costs - Appeal from determination of costs assessor - Discretion to grant leave to appeal - Failure to provide reasons - Error of law - Discretion properly exercised to refuse leave if amount at issue relatively trivial - Legal Profession Act 1987, s208M(2)

S. Dixon, appeared for the applicant

R. Petrie, appeared for the respondent

Ex tempore

1 CAMPBELL CJ: I think the proper course, this matter having been argued before me by Mr Petrie and Mr Dixon in a very helpful way, if somewhat more informally than usual, is for me to indicate my view on the points that have been argued.

2 The position is that the assessor has declined to give reasons and has indeed declined to do so after having the decision of Sperling J drawn to his attention.

3 I am bound to follow the decision of Sperling J+ whether it be under appeal or not and I can see no escape from the conclusion that there was an error of law.

4 The application brought before me is to review the assessment. It is not an application under s208(L) of the Legal Profession Act which would give the applicant for review an appeal as of right. There remains a discretion in the Court to decline to grant leave even though there is an established error of law. That would, however, be done on the facts of this matter, only if I concluded that the amount at issue was relatively trivial, that is, by comparison with the assessment of costs.

5 On the material before me, there appears to be between the view of the assessor and two well qualified practitioners in the area, a difference of some $5,000 which is roughly a quarter of the full amount at issue. I do not think I could properly decide that the dispute was a trivial one. I think the proper course is for me to grant leave. Once that is done, the parties have agreed that I should in the first instance seek a report from a registrar or assistant registrar of the Court. Once that report is available, I will then re-list the matter and I would hope that that would be sufficient. If not, I will hear further argument, but I should at this stage foreshadow that if I do have to hear further argument, it may well be that somebody or other has to pay the costs. But that is a matter we will face when we get to it.

6 Perhaps the thing to do would be to mention the matter in, say, six weeks time, by which time I would hope the registrar will have completed a report. I take it that the parties are agreeable to having noted an agreement that they will provide such additional material as the registrar may seek should the registrar decide to follow that course.

7 I reserve costs.

Leave to appeal granted

Solicitors for the applicant: MacMahon Drake Balding

Solicitors for the respondent: Moray & Agnew