Lyons v Wende

CITATION: Lyons v Wende [2007] NSWSC 100

HEARING DATE(S): 14 February 2007

JUDGMENT OF: Cooper AJ

EX TEMPORE JUDGMENT DATE: 14 February 2007

DECISION: I decline to order that the Assessor or members of the Review Panel be joined as parties to the action.

LEGISLATION CITED: Legal Profession Act 1987 s 208NA

PARTIES: James Lyons trading as Lyons & Lyons v Herbert Wende & 4 Ors

FILE NUMBER(S): SC 13627/05

COUNSEL: F Austin - Plaintiff
In person - First Defendant
In person - Third Defendant
K Richardson - on behalf of Attorney General of NSW

SOLICITORS: Lyons & Lyons - Plaintiff
Self - First Defendant
Self - Third Defendant
I V Knight - Crown Solicitor

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

COOPER AJ

WEDNESDAY 14 FEBRUARY 2007

13627/05 JAMES W LYONS TRADING AS LYONS & LYONS v HERBERT WENDE & 4 ORS
JUDGMENT – declining application to join

1 HIS HONOUR: In their notices of motion the defendants seek an order that the Assessor and members of the Cost Review Panel be joined as defendants, or as parties to this matter before the Court. Section 208NA provides that a cost assessor can be made a party to any appeal against a determination or decision of the costs assessor only by order of the Supreme Court.

2 It seems to be common ground, and I accept that there is no reason in this case to join them as parties to this particular appeal. It is normal to join a tribunal appealed from where the application is in the nature of a prerogative writ. This is not such a case. Here the application is a straight forward appeal, either under s 208L or s 208M of the Legal Profession Act 1987.

3 Furthermore, this is not a case where any order is sought to be made against the Cost Assessor or members of the Review Panel in their personal right. In such a case it would be necessary to join them, to give them an opportunity to be heard on the orders which should or should not made against them.

4 Here, the claim is that the Assessor and the members of the cost Review Panel have either made an error of law and/or an error of fact, so that leave should be granted under s 208M of the Act. There is certainly no allegation of impropriety on the part of the Assessor or members of the Review Panel nor are there any orders sought to be made against them.

5 In these circumstances I decline to order that the Assessor or members of the Review Panel be joined as parties to this action.

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CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiff James Lyons, trading as Lyons & Lyons, sought an order against the defendants, Herbert Wende and others, concerning a matter involving the Legal Profession Act 1987. Specifically, Lyons contested a decision made by the cost assessor and the members of the Cost Review Panel, which was subject to an appeal under sections 208L and 208M of the Act. The defendants, in turn, filed a notice of motion requesting that the assessor and members of the Review Panel be joined as parties to the action.

The primary legal issue before the court was whether the assessor and the members of the Cost Review Panel should be joined as parties to the appeal. The court had to determine whether the nature of the application warranted the inclusion of these parties and whether there was any necessity to join them to give them an opportunity to be heard on the orders sought against them. The court also needed to consider whether any orders were sought to be made against the Cost Assessor or members of the Review Panel in their personal capacity.

Cooper AJ declined to order that the assessor or members of the Review Panel be joined as parties to the action. The judge noted that section 208NA of the Legal Profession Act 1987 provides that a cost assessor can be made a party to an appeal only by order of the Supreme Court. The judge further observed that the application in question was a straightforward appeal and not in the nature of a prerogative writ, where it would be normal to join a tribunal appealed from. Additionally, there was no allegation of impropriety on the part of the assessor or the members of the Review Panel, nor were there any orders sought to be made against them. Therefore, the court declined to join the assessor or the members of the Review Panel as parties to the action.

The court issued an order declining to join the assessor or the members of the Review Panel as parties to the action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

CITATION:	Lyons v Wende [2007] NSWSC 100
HEARING DATE(S):	14 February 2007
JUDGMENT OF:	Cooper AJ
EX TEMPORE JUDGMENT DATE:	14 February 2007
DECISION:	I decline to order that the Assessor or members of the Review Panel be joined as parties to the action.
LEGISLATION CITED:	Legal Profession Act 1987 s 208NA
PARTIES:	James Lyons trading as Lyons & Lyons v Herbert Wende & 4 Ors
FILE NUMBER(S):	SC 13627/05
COUNSEL:	F Austin - Plaintiff In person - First Defendant In person - Third Defendant K Richardson - on behalf of Attorney General of NSW
SOLICITORS:	Lyons & Lyons - Plaintiff Self - First Defendant Self - Third Defendant I V Knight - Crown Solicitor