A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers v Poche

District Court of NSW|2023-11-20

The application before the Costs Assessor

According to the defendant's chronology set out at CB 223, Adam Poche sought the return of the files on 6 August 2020, a process which seems to have resulted in slow releases of documents between then and November 2020 (CB 224). In the meantime, his solicitor served a Costs Assessment Application on 12 August 2020 (CB 6). In this application, Adam sought assessment of all bills for the whole period, namely the bills for YB1, YB2 and YB3, which was a total of $844,780.74 (CB 3), for a total of 1,291 cost "events" (CB 90), arguing that there was a continuing contract and that all bills should be assessed.

The Review Panel

On 14 July 2021, the Review Panel wrote to the parties identifying the material with which they had been provided and other preparatory information. A timetable was included. It was to be the first of a series of timetables. This history is relevant to the ground of absence of procedural fairness.
On 13 August 2021, the Review Panel allowed an extension of time until 12 August 2021 for YB2 to provide voluminous materials: "a. Poche to send to panel by 2 September 2021 the original application, numbered bills and any specific objections beyond previously provided; b. YB2 to send to the panel so that the panel receives these documents by Thursday 2 September 2021: 3.2.1 Any general response to the objections, other than parts 1 to 7 raising specific responses to items 1097 to 1616; 3.2.2 Any documents relating to disclosure relied on, including estimates of costs and updates of estimates and any written advice as to whether the legal costs to be incurred by Adam were proportionate to the nature of the subject matter and the amount in issue, with the exception of the following, (which the panel has): 3.2.2.1 Documents dated 22 August 2016; 3.2.2.2 Email of 17 October 2016; 3.2.2.3 Email of 20 April 2017 sending the disclosure documents from Sharna Clemmett; 3.2.2.4 Email of 29 May 2019; 51085 3.2.2.5 Emails of 17 June 2019, 18 June 2019 and 21 June 2019 principally relating to the costs of Doctor Hollaway and Doctor Teo; and 3.2.2.6 Email of 16 July 2019 relating to the costs of access valuations. 3.2.3 The whole of the YB2 file relating to work done from 22 August 2018 to 12 August 2019 or otherwise covered in the bills ultimately assessed by the assessor; 3.2.4 Any documents relied on as evidence as "apparent bias against" YB2 in ground 16 or relevant to the alleged failure to "…afford (YB2) procedural fairness", in particular the assessor's "directions and interlocutory determinations" relied upon in ground 15; 3.2.5 Any written material indicating the breadth of Adam's instructions, the importance of the subject matter to him, advice as to the amount he would likely secure with a successful family provision claim and any advice as to the amount of costs and the proportion those costs might bear to the amount Adam was likely to recover; and 3.2.6 Any documents provided by Dropbox to the assessor."
On 25 August 2021, YB2 emailed the Review Panel requesting an extension of time until 30 September 2021 to serve its submissions / response in order to brief counsel: "The RA will require until 30 September 2021 to complete and serve its submissions / response. The RA has briefed Michelle Castle of Counsel and Andrew Fernon of Senior Counsel both of whom are presently engaged in other pressing matters / hearings - hence the time sought for the submissions".
This document, and the other timetabling documents set out below, were set out in a chronology of correspondence tendered on Adam's behalf. In those circumstances, references to material on the USB (Exhibit 2) and in the Court Book are unnecessary.
On 25 August 2021, the Review Panel emailed to parties confirming receipt of documents, updating timetable and requesting: "The panel requires YB2 to send to the panel so that the panel receives these documents by Thursday 30 September 2021: 8.2.1 Any general response to the objections, other than parts 1 to 7 raising specific responses to items 1097 to 1616; 8.2.2 Any documents relating to disclosure relied on, including estimates of costs and updates of estimates and any written advice as to whether the legal costs to be incurred by Adam were proportionate to the nature of the subject matter and the amount in issue, with the exception of the following,(which the panel has): 8.2.2.1 Documents dated 22 August 2016; 8.2.2.2 Email of 17 October 2016; 8.2.2.3 Email of 20 April 2017 sending the disclosure documents from Sharna Clemmett; 8.2.2.4 Email of 29 May 2019; 51085 [sic] 8.2.2.5 Emails of 17 June 2019, 18 June 2019 and 21 June 2019 principally relating to the costs of Doctor Hollaway and Doctor Teo; and 8.2.2.6 Email of 16 July 2019 relating to the costs of access valuations. 8.2.3 The whole of the YB2 file relating to work done from 22 August 2018 to 12August 2019 or otherwise covered in the bills ultimately assessed by the assessor; 8.2.4 Any documents relied on as evidence as "apparent bias against" YB2 inground 16 in the YB review or relevant to the alleged failure to "…afford(YB2) procedural fairness", in particular the assessor's "directions and interlocutory determinations" relied upon in ground 15 of the YB review; 8.2.5 Any written material indicating the breadth of Adam's instructions, the importance of the subject matter to him, advice as to the amount he would likely secure with a successful family provision claim and any advice as to the amount of costs and the proportion those costs might bear to the amount Adam was likely to recover; and 8.2.6 Any documents provided by Dropbox to the assessor. 8.2.7 In the Poche review, a response to the submissions made through the grounds that the panel should effectively assess all 27 bills".
The Review Panel concluded by saying that it required "any final reply and any final documents" to reach the Panel and Adam's solicitors by 11 November 2021.
On 26 August 2021, the Review Panel sent the parties a letter underlining how they planned to conduct the appeal, with particular reference to timetabling disputes. It was clear they were dissatisfied with failures to comply with timetables. The relevant portion of the letter is as follows: "The panel had required YB2 to send responses in the Yates Beaggi review by 2 September 2021. In that matter, YB2 was the review applicant. The review application was lodged on 4 June 2021, now a little less than three months ago. YB2 already sought an extension to 22 August 2021 and the panel granted the extension to 2 September 2021. To keep the two matters running together, in the Yates Beaggi review, the panel now requires the matters set out at 3.2 in the panel's letter of 13 August 2021 to reach the panel by 30 September 2021. The submissions from Adam Poche which were to come by 16 September 2021 per 3.3 in the panel's letter of 13 August 2021 in the Yates Beaggi review by 21 October 2021. Any final reply by YB2 is to reach the panel and Mr Poche by 11 November 2021. Given that this review was lodged by YB2 now almost three months ago, it is very unlikely the panel will extend those times. The panel notes that in the email from YB2, YB2 said it "will require". The panel will take that to mean that it requested further time. The panel would not normally have allowed such an extension because, particularly when YB2 is the costs review applicant, has lodged the grounds and the review application and that was done almost three months ago, it has had sufficient time to deal with legal and factual issues. Normally the panel will not extend time because of the unavailability of counsel - YB2 are themselves a law practice and other counsel can be instructed. However in this case, the extension sought is granted because that will make the Yates Beaggi review run in tandem with the Poche review. Thus the existing timetable and directions in the Yates Beaggi review are amended as set out above."
On 1 October 2021 Ms Rabadi provided correspondence, written submissions and a hyperlink to material in a Dropbox. The letter stated that it enclosed, among other matters: "2. Items 3.2.3 and 3.2.5: The Cost Respondent's file from 26 July 2018 to 12 August 2019 which includes work covered in the invoices ultimately assessed by the cost assessor as requested in item 3.2.3 and includes relevant correspondence to and from Adam Poche as requested in item 3.2.5; 3. Item 3.2.4: Documents relied on as evidence of bias against the Cost Respondent."
Counsel for the defendant notes (submissions, paragraph 54) that the Review Panel's revised timetable called for "[a]ny written material indicating the breadth of Adam's instructions" including "advice as to the amount he would likely secure with a successful family provision claim and any advice as to the amount of costs and the proportion those costs might bear to the amount Adam was likely to recover". This made it clear that "any" written material from Counsel and/or YB2 was required and that what was being sought was: 1. Any advice on prospects. 2. Any advice on costs-capping. 3. Any advice on the amount of costs likely to be incurred (for example, an updated costs agreement or letter of advice or other information about costs estimates).
It must have been clear to the Review Panel, from their reading of the Assessor's determination, that no such document(s) had been provided to the Assessor. YB2's response was to refute statements made by Adam's solicitors about this.
YB2 also sought to limit the documentation to be inspected in this regard by the Review Panel. On 7 October 2021, Ms Rabadi wrote to the Review Panel to stress that no further documents "beyond that which was before the costs assessor" should be permitted, although relying upon an affidavit from Mr Amirbeaggi deposing to events and conversations asserted to be relevant: "[w]hilst the Submissions (attached to our email below) refuted the facts and matters alleged by Mr. Poche in his affidavit sworn 1 June 2021, and we maintain that the Review Panel ought not receive further record beyond that which was before the cost assessor, we attach for completeness an affidavit of Farshad Amirbeaggi affirmed today."
The reference to "submissions" is to the 30 September 2021 submissions. Ms Rabadi's submission that material which was not before the Costs Assessor should not be received by the Panel is of significance in relation to the procedural fairness issue.
On 8 October 2021, the Panel wrote to the parties, inter alia, confirming receipt of documents and making some preliminary observations about the complaint of bias by the Costs Assessor, which they concluded appeared to consist entirely of complaints about unfair timetabling: "3. Bias? The panel has had a first brief look at the material sent. The panel notes that the nature of the bias alleged is not clear to the panel. If the allegation relates to request for further time, then the panel notes that further time was given by the assessor on several occasions. That issue was raised in correspondence with the Manager, Costs Assessment by Yates Beaggi. The course the matter had taken before the assessor was set out in the assessor's letter of 15 February 2021. Yates Beaggi wrote indicating they would comply with the time limit of 19 February 2021. Yates Beaggi set out its submission as to relevant facts in a letter of 23 February. It appears the material required was provided by 19 February 2021. It seems like the entirely of the dispute which resulted in a request made both to the assessor and to the Manager, Costs Assessment for the assessor to cease acting in the matter, related to the periods given in timetables by the assessor."
In the 8 October 2021 letter, the Review Panel also set out next steps, giving Adam a final date for submissions of 21 October 2021 and YB2 of 11 November 2021 (including replies). Importantly, the Review Panel gave a warning that timetables for the submissions to the Review Panel should not be ignored: "No party should assume that there will be any extension to these timetables. The panel notes that the first work the subject of the original application was done 7 December 2016. The bills ultimately assessed were dated between 5 November 2018 and 31 August 2019. The original application filed by YB2 was dated 12 August 2020. The assessor's certificates and reasons were dated 3 May 2021."
On 21 October 2021, the Review Panel again wrote to the parties, specifically identifying as a potential issue that work done by YB1 was included in the first of the seven YB2 invoices, confirming it had received from YB2 the entire Court Book and the YB2 file documents, and repeating that "reply and any final documents, information or submissions from YB2 (and if appropriate YB1 and YB3 as well) should reach Mr Poche and the panel by 11 November 2021."
It was only after this that, on 12 November 2021, YB2 provided detailed written submissions by Michelle Castle of Counsel dated 12 November 2021, in support of its review, submissions that must be taken to have been prepared on the basis that there was sufficient documentation to ensure that these assumptions by the Review Panel (namely that they had all the relevant documents, including any YB1 documents) was correct.
The Review Panel confirmed receipt of YB2's submissions and, again relevantly, allowed a limited further time for the parties to submit any further material. This was added to on 23 November, when the Review Panel wrote allowing further time, this time to Adam, to provide material but adding that after 9 December 2021, "the panel will start work on the review in earnest". The plaintiff replied to this on 25 November 2021 to state that YB2 "will be in a position to indicate the time required for YB2 to serve any submissions in reply to Mr Poche's submissions in respect of YB2's Review Application once we have had the opportunity to review Mr Poche's submissions in reply in respect of YB2's Review Application.".
On 26 November 2021, the Review Panel wrote to the parties: "The panel received further submissions from Yates Beaggi dated 25 November 2021. A copy of those submissions had been sent to the representatives of Mr Poche at the time they were sent to the panel. The submissions and material appear to be supplementary to or an overdue part of the submissions due from YB2 by 11 November 2021. The panel remind the parties that when a time limit is set for submissions, a party that sends submissions late: 1.1 Runs the risk that the panel will determine the matter without taking the late material or the overdue submissions into account; 1.2 Additional costs through having to deal with submissions not being sent in accordance with the timetable set by the panel may be borne by the party that did not observe the panel's timetable. … Mr Poche was to provide material to the panel and Yates Beaggi by 9 December 2021. That was extended from 2 December 2021. In the light of the late material, the panel will extend that to Thursday 16 December 2021."
On 30 November 2021, the Review Panel raised the issue of a further timetable to accommodate the parties: "Yates Beaggi write that in the event that they wish to serve submissions in reply, they seek that be allowed until say late January 2022. At this point the panel is unlikely to accept any submissions after the Poche submissions. Yates Beaggi have had ample opportunity to make submissions and provide material and they have done so. The panel has the grounds and the application filed by Yates Beaggi. The panel has all the material that was put before the assessor. The panel has submissions and material from Yates Beaggi dated 12 November 2021. The panel has the material from Yates Beaggi of 25 November 2021. Normally, review grounds, and two sets of submissions from Yates Beaggi are ample opportunity. There has to be an end to submissions. Unless there are specific reasons, the panel will not allow further submissions from Yates Beaggi. If Yates Beaggi submit there are specific reasons that should be undertaken, then they should submit an application of no more than one A4 page briefly setting out why that is so."
On 15 December 2021, the Review Panel received evidence from Poche. YB2 sought an extension to respond to the Poche submissions, and were allowed until 28 January 2022, as the extract of this document from the defendant's chronology of timetabling orders by the Review Panel demonstrates: "'It seems very unlikely…that any further material will be of any significant assistance to the panel. 'Again is difficult to see how these will assist the panel given that on 12 November 2021 when the last Yates Beaggi's submissions were made, that was about five months after filing of each of the Poche review and the Yates Beaggi review.' 'Nevertheless, the panel will allow a short further period for such submission'. Approaching Christmas break, panel will allow response by 28 January 2022 - very unlikely time will be extended (almost 7 months since each review applications were filed)"
On 11 February 2022, the Review Panel wrote to the parties, raising observations about the material they were considering and indicating the costs issues troubling them. Ms Castle referred to this email as "a bolt from the blue", on the basis that this was the first inkling that Mr Amirbeaggi, Ms Rabadi and YB2 were likely to be the subject of any critical consideration of this kind. The seven-day period given at the end of the letter is the core objection to procedural fairness, having regard to his being taken by surprise by such a devastating and unexpected turn of events.
I set the email out in full: "Dear Parties Re: Yates Beaggi Review No. 2020/235821 Re: Poche Review No. 2020/235821 1. General In relation to the Yates Beaggi review, the panel has started the process of going through the Court Books and file documents on the USB. The panel proposes to set out some factual observations to allow the parties to make brief comment on them. The comments should not be extensive. The parties may be able to assist the panel by indicating the position of documents that indicate an observation by the panel is incorrect or incomplete. As the panel has previously indicated, anything set out as an observation or preliminary view is not a finding. It is not a determination. It is set out to enable the parties to provide an indication of the location, position or existence of any relevant documents or material, and to allow brief submissions. No party should assume that an observation or preliminary view set out by the panel in the course of the review will be the final view of the panel when the review is determined. 2. BACKGROUND 2.1 YB1, YB2 and YB3 acted for Adam Poche in a family provision and lack of capacity claim in an estate worth around $2.3 million. 2.2 The total legal costs charged by YB2 to Adam were $844,780.74 plus $36,120.00, the sum $880,900.74. Of course that includes fees, expenses and GST. 2.3 Brenda Poche, the mother of Adam Poche died in 2016. Her will provided that Adam Poche receive 15% of cash assets of the estate, which would have come to the sum of $104,539.06. 2.4 Adam sought provision from the estate. Adam's Counsel submitted that a reasonable provision for him would be $600,000.00. 2.5 After a hearing over three days, 29, 30 and 31 July, and written submissions on 12 August, Henry J awarded provision to Adam of $350,000.00, instead of his entitlement under the will to around $104,539.06. 2.6 In addition to Adam's provision claim, Adam and his brother, the defendant executor Wayne Poche, each advanced claims which were abandoned prior to the judgment. Adam's claims included challenge to the validity of the 2015 will and 2009 will of his mother, on the basis of lack of testamentary capacity. Adam originally sought an order that probate be granted of a 1982 will of his mother Brenda Poche. Those claims were abandoned on 21 August 2018 after receipt of a joint report of a geriatrician dated 31 May 2018. 2.7 Adam also sought repayment to him of various financial contributions he made for the benefit of his mother Brenda during her lifetime. That claim was abandoned during closing submissions on the last day of the hearing. 2.8 Wayne sought an order that Adam pay $1,500.00 per week from 1 August 2019 for Wayne's life. That cross-claim was abandoned on the last day of the hearing. 2.9 The deceased included in her will of 2015 an indication that she had, during her lifetime, caused transfer of 8 identified classes of assets to Adam, largely relating to the Poche Engineering business. She was critical of Adam's conduct towards her. 2.10 Evidence was given for Adam that he had paid legal costs of $641,400.80, with 12% attributable to the probate claims, 6% to the cross-claim and 82% to the family provision claim. That breakdown did not deal with costs attributable to the claim that Adam was due reimbursement for financial contributions he made to his mother Brenda. Nor did it include costs owing at the date of the hearing, said to be $119,419.00. At the hearing, on the evidence provided to Henry J, the Court found Adam's costs in relation to the family provision claim alone to be around $627,110.72. 2.11 Wayne's legal costs were said to be $298,405.60 without costs attributable to contribution claim or the cross-claim, expenses such as barristers' fees or the balance of solicitors' fees. Wayne's family provision costs were said to be around $145,000.00. 2.12 His Honour ordered that as executor Wayne pay Adam's costs of the family provision claim, capped at $125,000.00. His Honour observed that Adam's costs in relation to family provision claim were "disproportionate to the success he has had. His costs are around $627,000.00, significantly more than the provision of $350,000.00. His costs are also in an amount that is relatively close to the value of the available cash assets in the estate, from which he accepted an order for provision should be made" (paragraph 333). 2.13 His Honour found that Adams's costs attributable to the family provision claim "…are significantly, more than four times greater than the family provision claim costs claimed by Wayne of $145,000.00 (on an indemnity basis)" (paragraph 334). 2.14 His Honour observed that the significant disparity between the costs of Adam and Wayne "…is inexplicable, even allowing for the scope of the notices to produce issued to Adam. While that notice was extensive, many of the paragraphs sought the same documents just for different years and companies. Costs were also incurred by Adam on affidavits that had to be updated on more than one occasion, and contained evidence that was in parts, objectionable and unread, and of marginal relevance having regard to the nature and size of the provision claim" (paragraph 335). 2.15 His Honour noted the estimates referred to by Slattery J in Wilson v Porada; the estate of Peter Wolfgang Porada, late of Perico (No. 2) [2017] NSW SC 1362, in which His Honour referred to a standard family provision case over two days with a handful of witnesses costing $70,000.00 to $80,000.00, or a complex four-day case costing $120,000.00 to $140,000.00. His Honour Henry J noted that the Poche hearing was completed in two and half days with only four witnesses. 2.16 Adam was ordered to pay Wayne's costs of the probate claim. 2.17 The contribution claim brought by Adam and the costs claim brought by Wayne resulted in no orders as to costs, to the intent that each party pay their own costs in respect of those claims. 2.18 All of the observations of Henry J were made in a context of a court making orders that one party pay the costs of another party, that is, "ordered costs". None of those observations is binding or decisive in relation to whether the costs charged by YB2 to Adam were proportionately and reasonably incurred in the circumstances at the time the work was done, or proportionate and reasonable in amount in those circumstances and at that time. The panel accepts that the issue of what instructions were given to YB2 by Adam was not part of His Honour's determination. 2.19 There were three entities that acted as a law practice for Adam, and sent bills totalling $880,900.74. Those were referred to by the assessor as YB1, YB2 and YB3. 2.20 The assessor found that "…given the significant corporate changes to the billing party, … I can only assess those invoices rendered by the costs respondent (YB2)". The assessor assessed only the seven invoices provided by YB2, which the panel also refers to as YB2. Adam had sought assessment of all the bills. Ultimately the assessor determined that he could not assess the 23 invoices from YB1 with fees of $372,430.18 plus GST and expenses close to $94,000.00. The only invoice issued by YB3 was for expenses of $2,401.53. 2.21 The assessor assessed seven bills dated between 5 November 2018 and 13 August 2019 from YB2 claiming fees of $251,960.00 plus GST and over $88,000.00 in expenses. 2.22 The assessor determined a total amount in respect of those seven bills of $268,433.88. 2.23 The assessor indicated the view that "the total costs rendered by YB in its various forms are disproportionate to the subject matter of the proceedings". 2.24 The assessor at paragraph 81 of the reasons took a global approach to the work done, allowing 12 hours for review of Wayne's affidavit of 5 September 2018, 22 hours for drafting Adam's affidavit and 8 hours the updating affidavit, 10 hours for reviewing documents produced by Wayne, 14 hours for preparation of the Court Book, 3 hours for drafting Adam's affidavit in relation to the Shiklin proceedings, 45 hours for attendances, preparing for the hearing, at the hearing and in relation to matters arsing during the hearing, and 250 hours for attendance on Adam and generally progressing the proceedings. 2.25 The assessor allowed the expenses as claimed at $88,253.88. 2.26 The "grounds" to the Yates Beaggi review are extensive and relate to general matters, specific matters, matters involving disclosure and broad-brush matters such as submissions that the assessor "erred in finding that the costs were not proportionate and reasonably incurred". The panel take the broad matters raised to be a request that the panel set aside the assessor's determination, and redetermine the costs. 2.27 The Poche review seek [sic] assessment of the YB1 and YB3 bills. 2.28 On that basis, the assessor allowed fees of $163,800.00, at a rate of $450.00 per hour. Adding GST to that amount resulted in a figure for fees inclusive of GST of $180,180.00. 3. GENERAL OBSERVATIONS as to COSTS 3.1 The total costs charged by YB1, YB2 and YB3 charged to Mr Poche came to around $880,900.74. 3.2 Mr Poche's barrister sough family provision in the sum of $600,000.00, instead of the figure of about $104,539.06 that he would have received pursuant to the will of his mother Brenda Poche. 3.3 The Court ordered provision of $350,000.00. 3.4 The Court capped the costs to be paid to Mr Poche by the estate at $125,000.00. 4. ADVICE as to PROSPECTS 4.1 The panel has not been able to find any formal advice to Adam Poche as to the likelihood of success in relation to the claims of lack of capacity, nor as to the likelihood of success in respect of the family provision claim, or the amount that might be awarded, except for the following: 4.1.1 By Chris Birch, barrister, 26 June 2019. The advice was "Adam would improve his situation by obtaining a legacy of something between $250,000.00 and $500,000.00 (at a time when Mr [sic] Birch wrote Adam's $600,000.00 of costs to date reflect in part costs of the probate issue that he abandoned, he will never recover those costs, and the estate could well obtain an order against him for those costs) and the "likely best outcome for Adam" would result in something "unlikely to cover the costs he has already incurred". It is not clear whether that email was provided to Mr Poche. The panel enclose that email, if it was provided to him, the panel request that the location of any sending email or letter be indicated; and 4.1.2 A short text in which Yates Beaggi appear to advise that after costs $1 million would be left in the estate and "I think you will get 50% ie $500K", that legal advice was referred to in the judgment at paragraph 275. The panel attach a copy of that text. 4.2 Whilst the position of the litigation was broadly reviewed, the panel has found no advice on prospects. The panel notes that Adam contended that the deceased lacked capacity to make wills from 2009 to 2015, although the deceased had transferred the Poche engineering business to Adam in 2008. The report of Professor Caplan was held by the Court not to be sufficient to conclude that there were real grounds for Adam to question the wills made by the deceased, particularly in 2009 and 2010. 4.3 It would assist the panel if a copy of any other advices as to prospect of the claim of Adam Poche were sent to the panel or the location of those documents on the USB was indicated. 5. DISCLOSURE 5.1 At the present, the disclosures of which the panel is aware are: 5.1.1 The initial disclosure of 22 August 2016, indicating an estimate of fees of $100,000 to $200,000 and barrister's fees as an expense of $100,000.00, thus a total of $300,000.00; 5.1.2 29 May 2019 - in an email where Yates Beaggi advise "we will spend about $80,000.00 to $90,000.00 in the lead up to and on that final 3 day hearing with our fees, barrister's fees and Court costs … please take steps to raise the sum of same $150,000.00…" to which the response from Adam Poche is that he is borrowing Paul Myliotis, and has requested $150,000.00 for legal expenses, "that is provided $150k will see this matter out". A copy of those two emails is attached; and 5.1.3 Some costs disclosures from various barristers, in particular Sharna Clemmett, sent after the appearance by that barrister, and Evan Walker. 6. COSTS CAPPING 6.1 Given the size of the estate and other matters, it is always possible, even likely that there would have been an upper limit put on costs payable by the estate to Adam Poche. 6.2 At this point, the panel cannot find any advice to Mr Poche regarding the likelihood of costs capping. 7. QUALIFICATIONS and EXPERIENCE of MS RABARDI 7.1 Ms Rabardi described as a senior associate was charged at $500.00 per hour plus GST until 25 April 2018 and then $600.00 plus GST thereafter. Ms Rabardi was admitted in 2011. 7.2 According to a transcript of 30 July 2019 referred to at paragraph 64 of the assessor's reasons, Ms Rabardi had conducted two previous family provision claims. 7.3 The first work was done in 2016. 8. DISCLOSURES YB1 to YB2, YB2 to YB3 8.1 The case of Yates Beaggi is that there were three separate entities. That is not disputed by Adam Poche. 8.2 Yates Beaggi submit that there were three separate contracts, which would normally mean that there must have been disclosure as required by the Uniform Legislation when YB1 ceased work and YB2 commenced work and when YB2 ceased work and YB3 commenced work. 8.3 As the panel understand it, the position of YB2 is that disclosure was not required because the details that would have been disclosed were known to Mr Poche, for example the applicable rates for those who did the work. Yates Beaggi and Mr Poche agree that there were no new Uniform Law costs disclosures when YB1 ceased and YB2 commenced work, nor when YB2 Ceased and YB 3 commenced work. 9. SETTLEMENT and MEDIATION 9.1 It appears mediation took place in March 2017. 9.2 Yates Beaggi have sent a number of documents which suggest that Adam Poche's instructions were that there would be no compromise. Those are dated 10 October 2016, 12 July 2018, 31 July 2018, 3 August 2018 and 24 August 2018. Copies of those documents are attached. 9.3 There were a number of other emails which suggest some willingness to settle beyond what was in those documents, for example 7 December 2017, in which Mr Poche wrote "it may be advantageous in arranging a meeting with Phil and my brother's legal representatives engaging how fare off a settlement is. I am open to suggestions in having this mediated more successfully then last March…" and "efforts in this area might prove beneficial then perusing banks and gathering supportive evidence, in a case that is becoming very expensive to all concerned". A copy of that email and a the very short reply a few minutes later from Mr Amirbeaggi is attached. 10. THE EVIDENCE 10.1 A considerable proportion of the affidavit evidence compiled for Adam Poche was objected to successfully and not pressed. Some of it was of marginal relevance. 10.2 A relatively quick look through the affidavits compiled and submitted on Mr Poche's behalf suggests that objections were always likely. 10.3 The panel notes observations about objections to the affidavits were made at paragraph 335 of the judgment. 10.4 Most of the difficulties observed by the panel relate to the form in which the evidence was presented. It does appear at this stage that some of the work was not done well. That may reflect in appropriate hourly rates if there were any failures to make disclosure. 11. FURTHER SUBMISSIONS The panel request any submissions from Yates Beaggi reach the panel and Mr Poche by Friday 18 February 2022 and any submissions from Mr Poche reach Yates Beaggi and the panel by 25 February 2022. A short period is given because the parties have already made extensive submissions, and the panel has set out some factual observations to allow the parties to make brief comment on them, which comments should not be extensive."
YB2 made no response whatever during the seven-day period. On 23 February 2022, YB2 sent the following letter: "Dear Messrs Wall and Webley, We refer to your letter dated 11 February 2022 and the direction requiring Yates Beaggi to provide any Submissions to the panel and Mr Poche by 18 February 2022. We respectfully request an extension to provide the Submissions. The solicitor with day‐to‐day conduct of this matter has been engaged in the preparation and attendance of a hearing, which commenced on 21 February 2022 and concludes on 25 February 2022. Due to the extensive nature of this matter, it has not been possible to assign the matter to other staff members as it would take a solicitor even longer to review and assume carriage to be able to respond to your queries. We do not believe a short extension will impact the review proceedings. We otherwise note there are many errors in your letter which we will address by reply submissions. Noting the above, please advise if you are minded allowing us until 11 March 2022 to respond. We look forward to hearing from you."
On 25 February 2022, the Review Panel's letter to the parties regarding YB2's correspondence sent to the Review Panel on 23 February 2022 requesting for an extension of time. The Review Panel stated: "Well after the expiration of the time for Yates Beaggi to make submissions on the panel's letter of 11 February 2022, on 23 February 2022 Yates Beaggi request an extension of time on the basis that a solicitor from their practice is engaged in a hearing 21 to 25 February 2022. The panel also notes that Yates Beaggi sought extensions of time by correspondence of 12 August 2021, 25 August 2021, and 12 November 2021. Each extension of time was granted. The reason given is not sufficient."
Although the reason was rejected, in practical terms, the Review Panel did give an extension. On 8 March 2022, the plaintiff emailed the Review Panel information purporting to provide answers to some of the material sought in its 11 February 2022 email, namely Ms Rabadi's litigation experience, and stated that YB2 "relies on the file as to the quality of services and work completed."
Two portions of this reply are of particular relevance to the procedural fairness question. The first is the following statement: "The Review Panel ought to assess the tax invoices issued by YB2 and whether the entries reflect work completed and if so, whether the costs were proportionately and reasonably incurred at the time they were incurred, proportionate here referring to proportionate to the instructions and information given to YB2 by the Client."
The second, and more concerning, statement, was the following: "YB2 will respond to the balance of your letter shortly. The response is being submitted in tranches as we understand a determination is imminent and it takes time to locate other information requested by you (example, the communications requested at paragraphs 4 and 9 given the size of the file)."
YB 2 could not even give a calendar date for when this additional material would be provided. The best they could do was to say it would be provided "shortly", but this optimistic word is undermined by the ominous phrase "it takes time." The Review Panel did not wait for these further submissions, and handed down the reasons for determination on 11 March 2022.
The complaint of absence of procedural fairness arises by reason of this refusal to allow YB2 further time to answer the Review Panel's letter.

The nature of an appeal which is a rehearing

The plaintiff appeals from the Review Panel findings to this Court pursuant to s 89 of the LPULAA which provides: 89 Appeal on matters of law and fact (1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to - (a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or … (2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel. … (4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.
What is meant by the reference in s 89(2) to "all the functions of the review panel"? Basten JA, in Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 ("Gazecki"), explained this as follows: "[42] Sixthly, the court is not given specific powers, but rather is said to have "all the functions of the review panel." The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing "the determination of a costs assessor": s 85(1). For that purpose, the review panel has "all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment": s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal "by way of a rehearing". [43] No submissions were made in this Court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the Court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of the statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters."
What is meant by the reference in s 89(4) to "rehearing"? In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [7]-[9], Meagher JA explained the difference between an appeal by way of rehearing and an appeal stricto sensu as follows: "[7] The nature of an appeal by way of rehearing is described in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, Gummow, McHugh and Hayne JJ) by reference to the characteristics which distinguish it from a hearing de novo and an appeal in the strict sense: For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. [8] The following passage from the judgment of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [31] makes clear that while it remains necessary to identify an error in the decision appealed from, in an appeal by way of rehearing that requirement may be satisfied by reason of further evidence adduced in the appeal or a change in the law which has the result that looked at in retrospect the decision appealed from was in one or more respects incorrect: For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal. [9] As Basten JA recently observed in Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98 at [42] by s 89(2) the Court determining the appeal by way of rehearing is said to have "all the functions of the Review Panel". By s 85(2) the Review Panel in turn had "all the functions of a costs assessor in relation to the assessment concerned and is to determine the application, subject to Pt 7 of the Act and the costs assessment rules, in the manner that a costs assessor would be required to determine an application for costs assessment." It was not submitted by either party that the effect of this provision is that the powers of the appellate court may be exercised whether or not there was error (in either of the senses referred to above) on the part of the Review Panel."
The observations of Basten JA in Bazecki have been applied in a series of decisions at first instance, as is noted by Schmidt AJ in Lawrence v Sammut (No 3) [2022] NSWSC 657 at [41]-[42]: "[41] An appeal against a review panel certificate is to be by way of a rehearing, with fresh or additional evidence able to be led with the leave of the Court: s 89(4) of the Application Act. Given the nature of such a costs appeal, a court exercising the s 89 jurisdiction must pay close attention to the terms of the statutory power: Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 at [4]. [42] In Gazecki the functions imposed by s 89 of the Application Act were discussed: "42 … the court is not given specific powers, but rather is said to have 'all the functions of the review panel.' The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing 'the determination of a costs assessor': s 85(1). For that purpose, the review panel has 'all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment': s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal 'by way of a rehearing'. 43 No submissions were made in this Court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the Court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of the statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters.""
Costs appeals in this Court have referred to and followed these principles, as was the case in Gadd v Kozlowski t/as Lou Baker and Associates [2022] NSWDC 309 at [12]-[20] and Carnavalesca Pty Ltd t/as Paragalli Haulage v Jenkins [2023] NSWDC 159 at [10].
The decision of Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432 was handed down after I reserved my decision and I have not been addressed on it. I note Campbell J's emphasis on the need for close attention to be paid to the legislation and that the court should be alert to avoid adopting statements from earlier cases dealing with different powers, unless these remain applicable (at [21]). This is particularly the case in relation to an appeal by way of rehearing and I particularly note the reference to Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [31].
There has been recent consideration of what kind of further evidence may be led, in Amirbeaggi v EB [2023] NSWCA 108 at [52], where Basten AJA restated his earlier determinations in terms of when and in what circumstances further evidence may be adduced: "Although the appeal to the District Court is an appeal by way of rehearing, and one for the purposes of which further evidence may be adduced, it is nevertheless necessary for an appellant to demonstrate error on the part of the review panel. Unless there is a question of jurisdiction, which may always be an issue, whether raised or not, there will generally be no appeal from a review panel with respect to an issue which was simply not raised before it. If a ground of appeal in the District Court were to raise such a matter, the likely response of the Court would have been that the review panel cannot have been in error in failing to deal with the matter which it was not asked to address."
In the present case, the plaintiff sought to argue that the Review Panel's errors resulted from their failure to consider documents that were not put before them by either party. The plaintiff says that, had he been given longer than seven days to answer the Review Panel's email of 11 February 2022, he would have been able to put before the Review Panel the documents and information attached to his 316-page affidavit at CB 606 - 922. As Exhibit B demonstrates, less than thirty of those documents were "new" at all and of those, 28 were repetitive in content. The remaining two documents were admitted into evidence but since reserving, I have found that one of those documents, an email of advice from Michelle Painter SC, was in fact put before the Review Panel as part of a historical chronology of the counsel briefed (Exhibit 2, p. 19982; the email containing the advice is specifically referred to at footnote 8 and the advice is set out at p. 10124). The remaining document, an advice from Mr Walker sent the day after he was briefed in April 2017, is thus the sole remaining "new" document.
I have set out below the reasons for my rejection of the exhibits to Mr Amirbeaggi's affidavit. There are, however, other arguments put before me by the defendants as to why not only these annexures but also this affidavit should not be admitted into evidence. The defendants identify the following: 1. Admissibility of Mr Rose's affidavit: Challenges were made to the admissibility of the report of Mr Rose, who appeared to be addressing the ultimate issue and who failed to comply with the series of expert evidence requirements set out in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305. These arguments did not need to be determined because the tender of Mr Rose's affidavit was withdrawn. 2. Admissibility of Mr Amirbeaggi's affidavit: No formal rulings were made but most of its contents were submissions rather than evidence, fresh or otherwise. For example, he stated that "I believe that the Review panel has erred" (CB 610) and he then sets out "some of the error that I believe were made are without limitation identified below" (CB 610). The principal error is asserted to be that the Review panel had "only a very small proportion of Mr Poche's file during the proceedings that spanned approximately 4 years" and that "[a]t no time did the Review Panel have the full YB2 files regarding the Estate Proceedings" (CB 610). What the Review Panel did have, of course, was all of the documentation in relation to the seven memoranda of fees the subject of the assessment, and certain other material and information from the parties. Mr Amirbeaggi's claim was that the missing documents were those attached to his affidavit. As is set out in more detail below, a Table prepared by Ms Hooper and Mr Rogers (Exhibit B) demonstrated that all but 31 of the documents had been provided; during argument a further 4 were withdrawn and 3 were deferred. I ruled on the remainder and only two documents contained material that I considered "fresh", namely an Advice from Michelle Painter SC dated 12 March 2018 (CB 821 - 822) and an Advice from Mr Walker dated 21 April 2017 (CB 763 - 765). Rulings as to the admissibility of his affidavit were not pursued, presumably as there were only two documents considered to contain fresh evidence. 3. Proportionality: The defendants argued that even if everything the plaintiff said was accepted, this was an appeal where the difference in quantum was slightly over $50,000. This argument appeared, on the plaintiff's view, to fall away after Mr Rose's affidavit was withdrawn, and the plaintiff maintained its challenge (albeit without new evidence) to the method of computation used by the Review Panel for the assessment of costs and in particular as to the Review Panel's reasoning in relation to determination of the hourly rate. In my view, without the benefit of the "best result" advocated by Mr Rose, the plaintiff's entitlements shrink even further if I do not accept submissions about a higher hourly rate for, say, Ms Rabadi. Ms Hooper submits that, in proceedings where one of the exhibits is more than 20,000 pages long, the proportionality principles in the Civil Procedure Act 2005 (NSW) are engaged. 4. No explanation for prior failure to provide material: Even if the material appended to Mr Amirbeaggi's affidavit did include material of significance that was new, there is no explanation or evidence about why the plaintiff could not have put this evidence before the Costs Assessor or Review Panel during the costs assessment process. Although Mr Amirbeaggi speaks of the problems of going through "80 folders" of records (referred to alternatively as being "80 boxes") and of the 20,000 pages of documentation he did provide to the assessors, it should not be overlooked that his files for the whole of the case were scanned and can be electronically searched. 5. Documents outside the date range for the assessment: The plaintiff's strategy during the costs assessment process was to restrict the costs assessment to Y2's costs. Examination of the dates on the documentation attached to Mr Amirbeaggi's affidavit shows that the "new" documents all fall outside the assessment period, as well as covering the same subject matter (albeit earlier in the case). Mr Amirbeaggi confirmed at paragraph 22 of his affidavit of 28 November 2022 that the Review Panel had all the files necessary for assessment; why these documents from an earlier period, showing the proceedings at an earlier stage, would cast light on material in the 20,000 pages of documentation provided to the assessors is unexplained. 6. No difference to the result: The Review Panel already had the whole of the file for the seven invoices. The relevance of these "new" documents is asserted to be that they would have supported, for example, the claims by the plaintiff for higher hourly rates for Mr Amirbeaggi and Ms Rabadi because the excellence of their work would be showcased, that there were statements about prospects of success by barristers and that Mr Amirbeaggi did make settlement offers. This is the only point of substance and is discussed in more detail below. 7. Prejudice: There is significant unfairness to Adam because this material was only produced at a time when the hearing date had been allocated, which is why the question of leave was stood over to the hearing. The principles in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 are applicable in that the practical result of the application, if granted, would make it difficult to keep the hearing time within the allotted two days. Although Adam has attempted to answer some of the material, that is not an appropriate way for this application to come before the court. I note, however, that the appeal has been designed by case management orders to be run in this fashion, and would not accept that Aon Risk Services Australia Ltd v Australian National University issues arise. 8. Mr Rose's affidavit is not a suitable matter for fresh evidence: In Ahern v Aon Risk Services Australia Ltd [2022] NSWSC 702 at [67] - [68], Fagan J stated that the fairness of professional rates will vary from case to case and that the purpose of adducing evidence from costs consultants, the purpose of which was to introduce their expert opinions as to an hourly rate, was impermissible. This was because the Court "would be unlikely to receive expert evidence for that purpose". His Honour went on to add that: "For the plaintiffs to ask the Court to grant leave and to uphold an appeal ground upon the basis of such opinions would be to propose that the judgment of the plaintiffs' own privately engaged experts should prevail over that of the statutorily appointed experts." The same point was made by Meagher JA in Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 at [54], [62] and [63], adding an important statement about finality at [54]: "Ordinarily, at least, deference to the expertise of costs assessors and the importance of finality will weigh against "appellate" interference with their conclusions on matters of fact" (emphasis added). Although Mr Rose's affidavit was withdrawn, these observations are relevant to costs issues.
I have dealt with each of these submissions in the same order as that taken in the defendant's submissions, but I shall first set out general description of the affidavits and the issues in the appeal to which they are asserted to go. This is regrettably repetitive but in proceedings where there are so many thousands of documents it is necessary to proceed cautiously.

The contents of the affidavits

Mr Amirbeaggi's affidavit of 28 November 2022 is asserted, in Mr Fernon SC's submissions of 27 March 2023, to go to all six of the appeal grounds (paragraph 2). Mr Fernon SC gave a very broad description of it as identifying "in considerable detail" by reference to "specific documents and historical matters" issues of "various concerns and shortcomings" in the process adopted by all assessors, including factual errors as to the extent of the plaintiff's file and failing to identify or refer to instructions from the defendant to perform legal work. These matters are "directly relevant to the errors of the Review Panel". In other words, the affidavit and the attached documents go to demonstrating factual errors.
This was not the basis upon which the documentation was asserted to be relevant in the hearing before me. The basis was that either these were documents that the assessors had never seen before, or they were documents which covered the same material (but were not the subject of costs themselves) that put the work done in context, such as demonstrating the experience and excellence of the work done.
Mr Fernon SC states that a "detailed review" of this affidavit will be required at the hearing, and it was for this purpose that I asked Ms Castle to assist Ms Hooper and prepare a schedule of the annexures to demonstrate what material was new to the assessors. That document became Exhibit B. As a result of rulings which included a number of concessions from Ms Castle, the relevant documents were reduced to two, neither of which required any affidavit for the purpose of tender. Both related to work outside the period charged for and the relevance of their content was because it was material similar to that identified by the Review Panel in its letter of 11 February 2022 concerning Dr Birch SC.
In terms of "errors", a careful reading of Mr Amirbeaggi's affidavit reveals that these are at best few in number and relate to a degree of misunderstanding of the issues raised by the Review Panel in their inquiries. These include: 1. Paragraph 21: Generalised claims of not considering material. This was never enlarged. 2. Paragraph 22: The claim that the Review Panel "has the YB2 files" is incorrect. The error in question is not explained. 3. Paragraphs 23 - 34: These describe the work done on the file before the period the subject of this appeal, how difficult it was and how successful the plaintiff was in resolving problems, all of which the assessors are said to have overlooked. The plaintiff provided information of this kind in costs submissions and it was clearly considered. What the "errors" were is unexplained. 4. Paragraph 34: This contains a purported justification for the YB1 engagement letter, namely that much of the YB2 work was not envisaged at that time. This is not an answer to the concerns of the Review Panel, which were that the costs agreement was never updated to reflect this. That is why they sought any such documentation from the plaintiff. 5. Paragraph 39: The seven-day deadline. Mr Amirbeaggi simply sets out the date for this. 6. Paragraphs 40 - 52: The Review Panel's failure to recognise the expertise of the plaintiff and the incapacity claim. Mr Amirbeaggi says that he did obtain counsel's advice re the incapacity claim, which he acknowledged was prior to the YB2 costs the subject of assessment. What he does not understand is that the Review Panel were looking to find if Counsel had been asked to advise on the family provision claim, because the Review Panel had found Dr Birch SC's emails. 7. Paragraphs 53 - 56: The plaintiff's family provision claim. This is simply a short history. 8. Paragraphs 57 - 59: The trust claim. The errors in question are unexplained. 9. Paragraphs 60 - 72: Unfair assessment of rates. This is a complaint about the hourly rates. 10. Paragraphs 73 - 74: Registration of certificates.
I have set this out in some detail to demonstrate that Mr Fernon SC's description of this affidavit, in his submissions to this court, as being "to identify errors, including the statements made as to factual matters that were incorrect" is not correct. No errors are identified in this affidavit.
Furthermore, if the purpose of this affidavit is to establish denial of procedural fairness, there are significant omissions: 1. It omits the requests for information from the plaintiff during the seven-month period prior to the "seven days" request in the Review Panel's letter of 11 February 2022 and the plaintiff's repeated requests for extensions; 2. It fails to deal with the implausibility of the explanations offered for not providing this material earlier, and not merely by 11 February 2022; and 3. It fails to acknowledge that the Review Panel did in fact give more than seven days, in that they accepted a response dated 8 March 2022, and fails to explain why, even on 8 March 2022, the plaintiff could not give a definite date or even a definite number for further "tranches" of material. This contradicted the proffered 11 March 2022 date by which the plaintiff had earlier claimed everything could be provided.
There are two additional matters to take into account. First, costs assessments are generally conducted with timetables that are enforced, in the interests of the procedure being dealt with expeditiously. Although there is no statutory set time for the completion of a costs assessment or review, Ms Castle, an expert in this field and herself a costs assessor, helpfully advised that there are internal norms. The length of time is of the kind that I consider make the completion of a costs review in eight months (which is what occurred here) as being towards the generous end of the scale.
The second matter to take into account is that, while the plaintiff has emphasised that the issues raised in the 11 February 2022 Review Panel summary came "out of the blue", the observations of Henry J and the remarks of the Costs Assessor, including his recommendation that Mr Amirbeaggi should be referred to the Prothonotary should have put him on notice of the need to address these issues in YB2's earlier submissions. One of the topics on which YB2 appealed from the Costs Assessor was on the basis of bias, and submissions on this topic would have had considerable overlap.

Conclusions concerning the leave application

It was unclear whether Mr Amirbeaggi's affidavit was withdrawn in formal terms. Only two documents survived the argument that followed the creation of Exhibit B; 25 of the documents (31 before argument and another 4 during argument, with submissions on 2 other documents deferred) were withdrawn and the remainder struck out as not being "fresh". It is hard to see what portions, if any, of the affidavit could stand as I refused leave to tender all but two of those documents and, as noted several times elsewhere in this unfortunately lengthy judgment, it would appear that the existence of one of these documents (CB 821 - 822) may also in fact have been known to the Review Panel. In those circumstances, the affidavit should be struck out.
The impact the two advices would have had, in relation to procedural fairness, is tangential at best. The Review Panel was given a full chronology of which Counsel was briefed, and over what period, and was told Ms Painter SC provided an advice. Mr Walker's advice was provided in 2017 and did not deal with the family provision claim at all.
Accordingly, the claim of want of procedural fairness must proceed on the basis that, apart from these two documents, which were admitted into evidence without objection, there is no "fresh evidence" for any of the grounds of appeal.

Appeal Ground 1: Want of Procedural Fairness

The plaintiff complains he was not afforded procedural fairness because he was only given seven days to reply to the letter from the Review Panel dated 11 February 2022.
As noted above, in practical terms, the plaintiff was given seven days from 11 February 2022 but the Review Panel accepted a partial response dated 8 March 2022.
The Review Panel explained their reasons for this as follows: "6.7 In the course of both the Poche review and the Yates Beaggi review, Yates Beaggi sought extensions of time to put further material before the panel. That was sought in correspondence dated 12 August 2021, 25 August 2021 and 12 November 2021. Each application for extension was granted. 6.8 Mr Poche was granted an extension of time from 2 December 2021 to 9 December 2021. 6.9 By letter of 11 February 2022 the panel set out some preliminary observations and required and documents and submission from YB2 to reach the panel by 18 February 2022, and submissions from Mr Poche by 25 February. YB2 sought a further extension of time by email of 23 February 2022 in respect of material required by 18 February 2022. The panel did not allow yet another extension of time for the reason set out in the panel's letter of 25 February 2022. The panel attaches a copy of that letter as part of these reasons. After the first draft of these reasons the panel received a letter of 8 March 2022 from Yates Beaggi expressed to be part of the Yates Beaggi response. With that email being already about three weeks after the last opportunity for Yates Beaggi to make submissions, the panel is not prepared to delay completion of the review any longer. The panel no adequate reason has been given for failure to provide the material referred to by Yates Beaggi to the assessor, or to the panel in the various opportunities to make submissions, or indeed by 18 February 2022 as required by the panel. 6.10 Each of the parties has had ample opportunity both before the assessor and again before the panel to put relevant material before the decision-makers. The panel wrote in January 2022 "it is very unlikely that time limit will be extended. If a particular lawyer cannot deal with the response, then another lawyer should be engaged to complete the response. By the end of January 2022 it will be almost 7 months since each of the review applications was filed". 6.11 Each of the parties had ample opportunity to put documents, information and submissions before the panel as well as factual evidence. 6.12 Each of the parties did so. 6.13 The panel took into account all the material that was before the assessor and all the material put before the panel up to 8 March 2022, including the email of that date, both in this Yates Beaggi review and in the Poche review, both in this Yates Beaggi review and the Poche review." (CB 571)

What is procedural fairness?

In Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39, Leeming JA (Beazley P and Basten JA agreeing) stated at [41]: "Ultimately, the question of the content of the obligation to accord procedural fairness is one of practical justice. Gleeson CJ said that "Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 at [37]. In connection with the [Motor Accidents Compensation Act 1999 (NSW)], in McKee at [8], Allsop P said that "procedural fairness would require any and all necessary steps to ensure a fair hearing".
As Leeming JA went on to explain, the content of the obligation upon the Review Panel to accord procedural fairness included confronting the relevant party with inconsistencies and providing him or her with an opportunity to respond (see Kioa v West (1985) 159 CLR 550 at 587 as to "the need to bring to a person's attention the critical issue or factor on which the administrative decision is likely to turn so that he may have an opportunity of dealing with it").
The threshold for procedural fairness is "not high": Singh (a pseudonym) v Patel (a pseudonym) [2023] SASC 164 at [24], citing Kiefel CJ, Keane and Gleeson JJ's description of the threshold in Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 (at [32]): "… The burden of proof falls on the plaintiff to prove "on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition."
Gageler J added (at [46] - [47]): "The onus which the applicant bears to establish materiality is no greater than to show that, as a matter of reasonable conjecture within the parameters set by the historical facts established on the balance of probabilities, the decision could have been different had a fair opportunity to be heard afforded. Establishing that threshold of materiality is not onerous…"
Where a decision-maker gives a person an opportunity to comment on a perceived inconsistency where that inconsistency will be "critical" to the decision, the degree of prior knowledge of the assertions of inconsistency, as well as the length of time to respond, may be relevant. If, as I have found to be the case here, the party given an opportunity to comment is already well aware of the material in question, circumstance makes it less likely that procedural fairness required that it be put to him or her for comment (GKD18 v Minister for Home Affairs [2020] FCA 1664 at [43], citing Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512; [2018] FCAFC 123).
In the present case, there is an acknowledgement that notice was given. The question is only whether seven days was sufficient notice.

Conclusions concerning want of procedural fairness

As noted above, establishing the threshold of materiality in order to demonstrate that a different result could have been reached is not an onerous task, for the reasons explained by the High Court in Nathanson v Minister for Home Affairs.
Adopting the principles set out in Nathanson v Minister for Home Affairs, the final period of seven days was reasonable for the following reasons: 1. The parameters set by the historical facts: The costs of bringing the family provision claim had to be determined carefully, prior to the judgment being handed down, because these costs had to be taken into account as part of the costs-capping procedure which is such an integral part of these claims, as Henry J noted at [263]. This required the plaintiff to be keeping a close eye on the costs in order to provide this information to Henry J during the hearing and submission process. This kind of early preparation should make compliance with timetables for production of the relevant documentation concerning those costs much easier than would normally be the case. 2. The obtaining of such evidence would not have been onerous: This was an appeal from a Costs Assessor where the Review Panel was entitled to assume that the plaintiff had done its best to put the relevant documents and issues to the Costs Assessor, as well as being in a position to provide concise costings to Henry J. In addition, most of the documentation had been scanned and could be readily searched. 3. Whether as a matter of reasonable conjecture, further time could have resulted in a different decision: As to the giving of seven days, there was a pattern of non-compliance by the plaintiff with previous timetable orders; the Review Panel noted that the complaints of bias made by the plaintiff against the Costs Assessor arose out of timetable disputes. The Review Panel were entitled, given the length of time taken for the appeal from the Costs Assessor, to assume that all documents that could assist the parties had been identified. 4. Would the decision have been different at all?: Although the Review Panel offered this final seven-day period for the defendant to provide specified documents such as advices on prospects and cost-capping and updated costs disclosures and updated costs agreements, it was common ground that no such documents had ever been sighted or referred to before the Costs Assessor or on appeal and submissions to this effect formed part of the costs assessment process. The Review Panel took the precaution of reminding the plaintiff of these issues in the interests of procedural fairness. 5. Compliance with an extended provisional date: The Review Panel did in fact allow an extension in that they allowed the plaintiff to provide material as late as 8 March 2022. Unlike the plaintiff's earlier prognostication that the documents sought could be produced by the proposed date in March 2022, the plaintiff's further letter of submission of 8 March 2022 painted a gloomy picture of further material being provided at an unspecified period of time in "tranches", in circumstances where the appeal had already been on foot for seven months and the records in question should have been readily accessible in the 20,000 pages in the dropbox. The Review Panel was entitled to take the view that any further extensions would simply permit further delay. The explanation of Ms Rabadi that she was busy running another case was not a satisfactory reason for further delay, particularly given the lack of information as to when the future "tranches" of information were likely to be produced by her. 6. Whether this was a fair opportunity for allegations coming "out of the blue": The fact that the Review Panel was considering these issues should not, and did not, come as a surprise to the plaintiff, given the observations of Henry J and the extensive submissions and findings of the Costs Assessor.
I am accordingly satisfied that the Review Panel accorded the plaintiff procedural fairness in relation to the complained conduct, namely the seven-day period. It was but one of many timetables given by the Review Panel (and, before them, by the Costs Assessor) which, as a general pattern (as part of the historical facts, as Gageler J stated was a necessary consideration) provided procedural fairness.

Alternative finding: no different outcome

If I have erred and there was in fact a denial of procedural fairness, the burden falls upon Adam to establish that, if procedural fairness had been afforded, there could not have been a different outcome: Ferguson v Singler (No 2) [2015] NSWSC 891 at [59], citing Stead v State Government Insurance (1986) 161 CLR 141; [1986] HCA 54 and Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6.
In Ferguson v Singler (No 2), a similar claim of documents not being available was upheld because the costs applicant was able to establish practical injustice. It was not in dispute that there were documents the existence of which one of the parties was completely unaware, and about which he would have wished to make submissions.
I am not satisfied that this is the case here. The Costs Assessor and the Review Panel both had more than sufficient documentation to be able to determine such issues as hourly rates, complexity of issues, nature and extent of counsel's advice and the range and nature of work carried out. Unlike Mr Singler, Mr Amirbeaggi's affidavit could not establish that any significant number of documents never seen during the review process actually had not been seen, as Exhibit B demonstrates. Unlike Mr Singler, the plaintiff had been afforded ample opportunities to put all relevant documents before the Costs Assessor and Review Panel.
I note similar observations in King v Delta Metallics Pty Ltd [2013] FCAFC 93: "[58] Finally, even if there was a denial of procedural fairness, it does not follow that the appellant is entitled to relief. [59] In order to attract relief the denial of procedural fairness must work a practical injustice on the appellant: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [38] per Gleeson CJ. If the denial of procedural fairness would have made no difference to the outcome of the proceeding, relief will not be granted: Stead v State Government Insurance Commission (1986) 161 CLR 141. The Court is concerned with matters of substance, not of mere form: R v Chief Constable of the Thames Valley Police; Ex parte Cotton [1990] IRLR 344 at 351 per Bingham LJ. [60] In the present case any denial of procedural fairness did not work a practical injustice. As a matter of substance, the denial of procedural fairness made no difference to the outcome. … [62] In relation to these three tournaments, if there was a denial of procedural fairness, relief should be withheld because the denial would have made no difference to the result. At the highest, the argument of innocent infringement may have relieved the appellant of the obligation to account for the profit of $445 earned from the first tournament which occurred before he was alerted to the claim of infringement. In the circumstances of this case, and in particular, in the way in which the appellant has conducted the litigation, the exposure to that small liability is not a ground for allowing the appeal and should be regarded as de minimis."
For the above reasons, if the plaintiff had established procedural unfairness, I consider that Adam has discharged the onus of establishing that no practical injustice resulted.

Appeal Ground 2: Attack on the methodology of the Review Panel

The Review Panel largely adopted the Costs Assessor's approach to the total costs, as they stated at paragraph 21.6: "21.6 The panel affirm the assessor's approach in adopting a certain number of hours and thus the total cost for the work done at a blended hourly rate."
The Costs Assessor's method is set out at length in his Statement of Reasons. He made a series of findings about the hourly rates (at paragraphs 58-65) and then deals with the objections as an "overview" (paragraph 67; Ms Castle submits that this is contrary to Frumar v Owners of Strata Plan 36957 ("Frumar") (2006) 67 NSWLR 321; [2006] NSWCA 278). He then sets out a series specific criticism of work he considered to be unnecessary or overcharging or both and then (at paragraphs 76-79) considers the issue of proportionality. He then sets out, at paragraphs 80-83 of his Statement of Reasons (CB 428 - 429), his conclusions, which I have set out in full in relation to Ground 1 above. The approach taken by the Review Panel was to affirm (at 21.6) the methodology as to quantum and to deal in detail with the appeal points (in groups) raised by the plaintiff.
This ground of the Appeal asserts that the Review Panel, as a result of adopting this erroneous approach of simply affirming the Costs Assessor, failed to consider work outside the proceedings, including the Shilkin proceedings (particular 2(b)(a)) and did not consider which of the actual work claimed was fair and reasonable (particular 2 (b)).
The Review Panel's approach was to consider "general issues" (at CB 575) before turning to the individual grounds of appeal. The first of these was disclosure, where the Review Panel identified an "important" and "significant" failure to disclose which had the consequence that YB2 pay the costs of the assessment and may be ordered to pay Adam's costs (CB 577 - 8). The second was the quality of the work (at paragraphs 11.1 - 11.23) and especially the work of Ms Rabadi (at paragraph 12) (CB 578 - 581).
The Review Panel's findings about appropriate rates are of particular relevance to this ground of appeal and I set them out in full: "13. APPROPRIATE RATES 13.1 As the panel has indicated, the costs agreement is void. The disclosure documents and costs agreement are not prima facie evidence of the reasonableness of the costs. The assessor had to, and the panel also has to, set appropriate rates. 13.2 The panel takes into account the Costs Assessment Rules Committee guidelines. Given the lack of experience of Ms Rabardi, and the fact that she did most of the work, given the panel's observations about the quality of the work, and finally noting the period in which work was done, the panel would allow $350.00 plus GST per hour for the work of Ms Rabardi. 13.3 Regarding Mr Amirbeaggi, YB2 submits that Mr Poche insisted on communication directly with him. On a few occasions that was the case. For the most part, Adam Poche communicated directly with Ms Rabardi. Even the most cursory look through the material in the files shows that to be the case. 13.4 When Mr Poche did want to speak with Mr Amirbeaggi, often there was an exchange of emails at very considerable expense, where Mr Poche indicated he wanted to speak to Mr Amirbeaggi, and Mr Amirbeaggi indicated some later time when that would occur. 13.5 By way only of examples, the panel note the following items: Item 111, $70.00 plus GST: email from Mr Amirbeaggi indicating he has reviewed the affidavit and is taking some time to think about it and will come back later. Item 1113, $60.00 plus GST: and internal email from Ms Gleeson to Mr Amirbeaggi merely sending the barrister's advice to Mr Amirbeaggi. Item 1125, $70.00 plus GST: On 2 October 2018 Mr Poche asked Mr Amirbeaggi to return his call urgently. That email is sent to Ms Gleeson and Mr Amirbeaggi. Item 1124, $70.00 plus GST: For Mr Amirbeaggi responding to that. The email reads in its entirety "I won't get to you until later tonight sorry. I will try you circa 8pm to 9pm." Item 1128, $60.00 plus GST: Ms Rabardi charges for perusing an email that reads in its entirety "I am seeking instructions from my client in relation to your proposed orders and will reply to once those instructions are received". That email would take only second to deal with. Item 1136, $70.00 plus GST: Adam Poche write to Yates Beaggi that he managed to electronically sign the documents and if you have any problems, let me know and "if you could let Farshad know I still need to talk with him when he has time". Item 1135, $70.00 plus GST: On 4 October Mr Amirbeaggi emails an email which reads in its entirety "I'll call you tonight buddy - circa 6pm". 13.6 These are only a few examples. 13.7 They show the unfair way in which the minimum six minute unit of $77.00 inclusive of GST for the work of Mr Amirbeaggi, and $66.00 for the minimum six minute until of Ms Rabardi were charged to Mr Poche, even when Mr Amirbeaggi was only telling Mr Poche he would get back to him later. 13.8 Some of the correspondence for which Mr Poche was charged was generated because Mr Amirbeaggi was not able to take the calls of Mr Poche. If Mr Amirbeaggi was too busy to do so, it was not appropriate that he charged his client for that. In that respect, the work was of poor quality and those costs were not reasonably incurred. It is reasonable for a solicitor to not take a call and call back later to allow uninterrupted work. It is not reasonable to charge a client for telling that to the client. 13.9 The panel notes the observations it has made above regarding the way in which the charges were applied. Even an email of three words such as "not at all" was charged at the minimum rate for six minutes of Mr Amirbeaggi's time, $70.00 plus GST. Given how those charges were applied in the bill, a rate of $500.00 per hour or $50.00 per six minute unit is arguably more generous to YB2 than the panel ought to allow. 13.10 The affidavit of Ms Rabardi of 5 July 2019 as to costs was not done well. To start with, paragraph 6 reads "from my discussions with colleagues at YBL and my experience at YBL, YBL generally recovers between 75% and 80% of its professional fees that are subject to a party costs order …". If that was relevant, and if a copy of this affidavit had been provided to Mr Poche (and it appears it was not so provided), then it was incomplete and misleading. There was an obvious case for capping of costs in a matter such as this. It was never likely that Mr Poche would recover 75 - 80% of either fees or expenses given the level that legal costs had reached. The submission of Lindsay Ellison SC for the defendant made 12 August 2019 put the matters regarding costs succinctly. The panel attaches a copy of the last page of those submissions. An amount of $389,807.00 would be available to fund any provision in favour of Adam Poche, together with any costs order. 13.11 Secondly, the estimate for a four day hearing of $199,419.00 was inadequate and proved to be inadequate. 13.12 For the work of Mr Amirbeaggi, the panel would allow a maximum $500.00 per hour plus GST. The panel notes he was an experienced practitioner. But the panel also notes that the quality of the work done was poor. 13.13 The panel note also that there were significant failures on the part of YB2 to make disclosure. The panel is entitled to consider those failures and the effect of them in determine the rates for those who did the work and the total legal costs that are fair and reasonable in the circumstances at the time the work was done. 13.14 The panel will now turn to the individual grounds of review and deal with them in the light of the panel's observations above."
The Review Panel then dealt with the grounds of appeal. At paragraphs 15.1 - 15.17 they stated: "15. GROUNDS 2, 5, 9, 10, 11, 12 and 15 15.1 Ground 2 suggests that the assessor did not determine what costs were fair and reasonable but rather made allowances "arbitrarily for a range of categories of work". 15.2 Ground 5 submits that the assessor "erred in applying a global approach". Ground 10 submits that the assessor erred in failing to consider whether it was reasonable to carry out the work. 15.3 Ground 11 submits that the assessor erred in finding that the costs were not proportionately and reasonably incurred. 15.4 In an appropriate case, an assessor can adopt a global approach to assessing costs. Usually the words "global approach" means applying a figure to the whole of the costs. 15.5 As an example, in a simple winding up application it can be appropriate to assess costs on a global basis, where the work done is similar to so many other winding up applications. 15.6 Courts often assess costs on a global basis by making a "lump sum" costs order after hearing evidence as to the amount of costs actually incurred, and looking at the other circumstances. 15.7 The assessor did not adopt some sort of overall impression and pluck a figure out of the air in relation to costs. As the assessor wrote at paragraph 81 "it is not a simple task (to) dissect the time taken to undertake the work, to deduct the claims that I regard as excessive or duplicated and then to apply an hourly rate to them, however I have attempted to do so". 15.8 That was a reasonable approach in the circumstances. It was not an overall global approach, but rather a method of looking at what was done and allowing a reasonable amount of time and thus costs for doing that work. The panel finds no error in that approach. Grounds 2 and 5 are not made out. 15.9 Ground 11 is unusual. The assessor at some length set observations about proportionality in relation to the amount of costs charged to Adam Poche, as compared to the amount of costs charged to the defendant, and looking at the amounts in issue. The assessor considered whether the costs were proportionate. The assessor considered whether the costs were reasonably incurred. 15.10 The assessor noted the comments of Henry J and at paragraph 79 wrote "… it is the inevitable conclusion that the total costs rendered by YB in its various forms are disproportionate to the subject matter of the proceedings". 15.11 The panel accepts that the issue of proportionality in relation to costs between a law practice and a client cannot be judged in the same way as proportionality of ordered costs. The panel accepts that it was not inevitable, given the Judge's observations, that significant reductions would have to be made to the costs of YB2 billed to Adam Poche. 15.12 Looking at whether the costs were proportionally and reasonably incurred, and ion looking at whether the total costs were proportionate and reasonable in all the circumstances at the time the work was done, the panel notes: 15.12.1 The instructions given by Adam Poche. The panel accepts that Mr Poche generally wanted to speak to Mr Amirbeaggi, although most of his communication was with Ms Rabardi. The panel accepts that initially Mr Poche indicated there would likely be no compromise; 15.12.2 Yates Beaggi gave no adequate written advice on prospects of success in relation to the various categories of claim brought by Mr Poche; 15.12.3 Yates Beaggi gave no adequate written advice that the costs of Mr Poche would likely exceed the amount of provision to him; 15.12.4 Yates Beaggi gave no adequate written advice of the possibility, or even the likelihood, of capping of costs; 15.12.5 Looking at the advices given by the barristers and the ultimate determination of the Court, the likelihood was that the amount that would be awarded to Adam Poche would be between about $300,000.00 and $600,000.00. That was the realistic amount in issue; 15.12.6 Adam Poche did raise numerous other matters regarding the companies, the validity of the wills after 1982, the financial situation of his brother Wayne, the contributions by them to the companies and so on. What must be balanced against that is that there was no adequate written advice as to the effect of bringing all those claims, the likelihood of success of those various claims in the circumstances. 15.13 The panel looked at all seven of the bills, the time indicated to have been taken in doing the work, and the costs. The panel can indicate at a level of near certainty that from its examination of those bills, the panel would not have allowed on an item-by-item basis an amount more than the amount ultimately awarded by the assessor. 15.14 The panel accepts having looked at all the relevant matters that the total costs were "disproportionate" given the instructions given by Mr Poche, the amount in issue, the nature of the proceedings and so on. 15.15 The costs claimed were not reasonably incurred. It was unreasonable to incur costs without adequate written advice to Adam Poche that the costs were disproportionate, that the amount of his costs that would be paid out of the estates may well be capped, that the amount he was likely to recover was probably between $300,000.00 and $600,000.00, and that it was important to concentrate on matters that would or may make some significant difference to the result. 15.16 It is also important to remember that it is the obligation of a law practice not to act in a way that unnecessarily results in increased legal costs payable by a client (ss173 Uniform Law). The failure to do those things in the opinion of the panel did unnecessarily result in increased legal costs that were disproportionate and not reasonably incurred, even given the instructions of Adam Poche. 15.7 Grounds 10 and 11 are not made out. In any event, the panel exercising its own examination of the bills to determine what costs were proportionate and reasonably incurred would arrive at a figure no more than the amount allowed by the assessor. The assessor did consider whether it was reasonable to carry out the work. The assessor did consider whether the costs were proportionately incurred. 15.8 Whether or not the assessor considered matters other than the subject matter of the proceedings in determining proportionality, the panel has considered the instructions given by Adam Poche and the various other matters set out above and affirms the assessor's determination that the initial costs claimed were disproportionate. As indicated, the panel would not on a reassessment allow costs that were any greater than the costs allowed by the assessor. Ground 9 is not made out. 15.9 Ground 12 asserts that the assessor disregarded the real time recorded for each task and the details provided. It is clear the assessor examined the time claimed and the details provided. The assessor did not disregard them. 15.10 In any event, the panel has looked carefully through the bill items and the work done. The panel has had the advantage of being able to examine the USB. 15.11 The role of an assessor is to determine whether the costs were proportionately and reasonably incurred, and whether the amount claimed is proportionate and reasonable. The actual time taken is relevant, but is not decisive. If, for example, a lawyer involved in a Local Court claim over $30,000.00 takes 50 hours charged at $500.00 per hour to draft an affidavit, then it is unlikely that will be proportionate. The lawyer would have an obligation to indicate to the client that such costs would not likely be recovered, and would normally seek specific (usually written) instructions to spend so much time on the affidavit. If that was not done, an assessor may be quite entitled to accept that 50 hours was spent on the affidavit, but to allow only, say, 10 hours in the circumstances, because, (subject of course to specific instructions from the client after appropriate advice), anything more than 10 hours might be disproportionate. 15.12 Insufficient (and indeed to some extent incorrect) advice, or at least optimistic advice was given to Adam Poche. If the actual time was taken, that is not decisive of whether the costs were proportionate and reasonable. 15.13 If an assessor was obliged to accept time taken, then no matter how inefficient or slow the legal practitioner was, if the time was actually taken, it would have to be allowed. That is not the case. 15.14 An assessor is not obliged to accept the actual time recorded for a task. An assessor can accept that the actual time was taken, but nevertheless find that was unreasonable time in the circumstances. An assessor can also find that it was disproportionate. 15.15 The assessor did not disregard the real time recorded. The assessor's determination was on the basis that the costs were not proportionately and reasonably incurred and not proportionate and reasonable in amount. Ground 12 is not made out. 15.16 The assessor found the charges were not fair and reasonable. The panel affirm that finding. 16.17 Ground 15 is not made out."
The Review Panel explained the blended hourly rate as follows: "18. GROUNDS 4 and 6: TWO PRACTITIONERS and BLENDED HOURLY RATE 18.1 The panel indicated above that it would allow a rate of $350.00 per hour for the work of Ms Rabardi, and $500.00 per hour for the work of Mr Amirbeaggi. 18.2 Allowing a blended rate in the circumstances of $450.00 per hour exclusive of GST is reasonable. 18.3 The panel notes what it has set out above relevant considerations regarding the rates. 18.4 The panel accepts the approach of the assessor in allowing a blended hourly rate in the circumstances where the costs agreement was void, and did not provide prima facie evidence as to the fairness and reasonableness of the costs. 18.5 Ground 6 is not made out. 18.6 In the assessor's reasons, the assessor indicated that a senior associate with 5 years plus experience should be capable of undertaking the work, and it was not necessary to have that persons work reviewed or supervised. The assessor noted that it was not a matter "requiring the combined skills of two practitioners, particularly as senior counsel had been retained". 18.7 The assessor went on to indicate that those comments "are more usually made in party assessments" but quite correctly indicated they were nevertheless relevant to some extent in assessment of costs between law practice and a client, where costs must still be proportionately and reasonably incurred and proportionate and reasonable in amount. 18.8 In context, the assessor's observations were made as part of the reasons the assessor arrived at an overall rate of $450.00 per hour. 18.9 The assessor's observations were that they work was not of great complexity, and that the level of responsibility adopted by YB2 was not great. The panel accepts these observations. The panel would add that the affidavits prepared by YB2 were not well prepared, and in other respects the panel has indicated above, the work was of poor quality. 18.10 The panel accepts that the principal barrister was briefed in June 2019 only two months before the date allocated for the final hearing. 18.11 For the most part Adam Poche requested to speak to Mr Amirbeaggi. However any examination of the file shows that he communicated more frequently with Ms Rabardi. With some matters Mr Poche requested that Mr Amirbeaggi return his call, which in the circumstances was reasonable. 18.12 The panel accepts that some of the charges related to different tasks. 18.13 Taking all that into account, but also taking into account the observations about the rates the quality of the work, the amount in issue and the various other matters the panel has set out above, the panel accepts and affirm the assessor's adoption of an overall blended of $450.00 per hour. 18.14 Ground 4 is not made out."
The plaintiff's argument is as follows: 1. The Review Panel was not entitled to adopt the Costs Assessor's approach because it made different findings of fact to those made by the Costs Assessor. Both of these reasons were thus "erroneous" for the reasons set out under Ground 1, namely that significant numbers of documents were simply never considered. 2. The problem with this argument is that the "fresh evidence" argument has failed because, as is set out in Exhibit B (confirmed by comparison with the actual documents in Exhibit 2) and, as is noted in the section of this judgment concerning Ground 1, the documents outside the material provided on assessment either were seen by the Review Panel or contained information that was so similar that they effectively knew about it (save for the 2017 advice of Mr Walker). 3. The Review Panel compounded this error by not appreciating that they had in fact determined different hourly rates to those determined by the Costs Assessor (although also stating that the "blended" hourly rate found by the assessor was reasonable), which is inconsistent with an acceptance of the Costs Assessor.
The plaintiff submits that "the Panel did not undertake its statutory task of making findings of fact and law and determining whether the work claimed by [the plaintiff] was fair, reasonable and proportionate to the work required by the retainer" (plaintiff's submissions, paragraph 48, CB 1048). Precisely what this statement means is unclear, despite the plaintiff being ordered to provide particulars, but it appears to involve a criticism of the methods of arriving at mathematical calculations as well as basing these on "erroneous" material due to the failure to consider the documents which the plaintiff was prevented, either by procedural unfairness (a ground which I rejected) or by the documents outside the assessment not being available, from putting before the Review Panel.
The plaintiff submits that the Review Panel (and, before them, the Costs Assessor) failed to incorporate the costs for large portions of the work, including costs to which Adam had not taken objection. For example, as set out in more detail below, in her closing submissions, Ms Castle referred to costs of a notice of motion for which allowance had not been made even though there had been few objections to the items and in many cases no objection at all. Implicit in this is the criticism identified with more precision in Ground 3, namely that the Review Panel erred by failing to rule on all line-by-line objections. Ms Castle submits that this method of analysis suffers from the same vices as those the subject of criticism in Frumar, where the complaint to the Court of Appeal was that the Review Panel "did not give any reasons explaining the basis upon which professional costs were assessed, but simply made a "declarative statement" as to the amount of costs it considered fair and reasonable" (at [31]).
What was the defective reasoning in Frumar? This is explained by Giles JA as follows: "[58] The $65,000 was a round figure. It appears that the costs assessor did what he described in his first paragraph under the heading "Profit Costs"; he did not consider proof or otherwise of the items in the bill of costs, but from his experience determined a fee which he considered fair and reasonable. In doing so he accepted as reasonable hourly rates the various hourly rates in the bill of costs. But he did not accept that all the legal services in the bill of costs were reasonably provided, in the areas of supervision and internal memos and meetings and whatever was meant by "overlap" ("coordination work"), and of reporting to the client ("reporting work"). [59] It can not be seen from the costs assessor's reasons what work in items in the bill of costs, being co-ordination work or reporting work or perhaps other work, was thought by the costs assessor to have been unreasonably carried out. Indeed, it does not seem that the costs assessor identified that work and, applying the hourly rates, deducted an amount from the profit costs, whilst inferentially accepting that the rest of the itemised legal services had been reasonably provided. Rather, he seems to have begun again with his own assessment of an overall fee based on what he considered was reasonable work to be carried out. Since his assessment was less than the $79,492.20 in the bill of costs, and in the light of what he said about coordination work and reporting work, he did not accept that the whole of the work in the bill of costs was reasonably carried out. But it can not be seen what work the costs assessor thought was or was not reasonable work to be carried out, including by way of coordination work and reporting work, or its relationship to the work in the items in the bill of costs. [60] The panel's reasons do not make good these difficulties in the costs assessor's reasons. They add to them. The panel endorsed the costs assessor's reasons as setting out the basis for his determination, and his approach of assessing the bill of costs "as a whole" (under Ground 5), but in conducting its own assessment arrived at a relatively precise amount of $63,833 in lieu of the round figure. It can not be seen what work in the items in the bill of costs the panel thought was unreasonably carried out, or what work it thought was reasonable work to be carried out independently of the itemisation in the bill of costs and its relationship to the work in the items in the bill of costs. Maybe it accepted that the hourly rates were reasonable and applied them, but it did not say so: at least on the surface, in making its own assessment the panel could have applied different hourly rates."
The changes to both costs law and solicitors' case management of their clients' affairs since Frumar have been profound, not merely in terms of the new legislative regime, but also in terms of technology, increasing acceptance of the importance of proportionality and new court procedures such as costs-capping. I particularly note: 1. As was noted by Priestley JA in Attorney-General of New South Wales v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 at 731 when his Honour stated that reasons should be provided, the general practice was that no reasons were given, a course his Honour considered should no longer be the case. When costs assessors commenced giving reasons, they were more rudimentary than is the case today. The adequacy of the reasons in Frumar need to be seen in this background of relatively limited reasons being given. 2. There have been substantial changes to the conduct of proceedings by legal practitioners. The first of these changes is the size and complexity of claims has increased, in part because of the keeping of many more records as a result of the impact of technology on record-keeping. It is clear from the description of the proceedings by the Court that the trial in Frumar was considered a substantial claim; it is described as a "lengthy" (at [6]) case which generated costs (excluding disbursements) totalling $79,492.20 arising from 531 items (at [9]). By comparison, in these proceedings, the costs for YB2 alone (excluding work done by YB1 and YB3) give rise to three times the number of items, namely 1,619, even though these proceedings ran for two and a half days and there were only four witnesses (one of them on costs). The appropriateness of methods such as an "overview" of costs of the kind carried out by the Costs Assessor are a result of the explosion of litigation work and costs resulting from changes to court procedure. 3. The second change is that case management principles have changed profoundly. There was no consideration of proportionality in costs until Grizonic v Suttor [2008] NSWSC 914 (Bleyer v Google Inc [2014] NSWSC 897), a case which postdates Frumar. It would not have been acceptable practice for an assessor to make findings of the kind set out at paragraphs 76 - 79 of the Statement of Reasons. In addition, the special costs situation leading to costs capping for family provision claims was at best in its infancy; the earliest cases I could find was Sita v Sita [2005] NSWSC 461 talking about the "new rules" that would come in later that year, although in Szlazko v Travini [2004] NSWSC 610 at [10] Young CJ in Eq gave some passing consideration to these issues. 4. The third change is that costs assessors are now skilled professionals whose training enables them to apply doctrines such as proportionality as well as reflecting upon their practical knowledge as solicitors and barristers in private practice. Previously, costs were determined by registrars who dealt with costs as a mathematical exercise. Although this system was replaced by new legislation providing for what Mr Hannaford MLA called "the new style assessors" (at [34] in Frumar), Giles JA still appears attracted by the traditional approach and refers approvingly to Sperling J's description (at [34]) of the assessor noting "against any item reduced the amount of the reduction or the reduced amount in order to be able to tally up the result." His Honour noted that Sperling J went on to add: "It would be easy enough to record the reason for the reduction in each instance at the same time. In each case, the reason must be readily to mind. Otherwise, the item would not have been reduced. In most instances, a word or two would suffice. A code could be devised for recurring reasons." 1. Even with the increased ease of assessment afforded by technology, this is not a method any longer in use in cases such as the present, and increasingly costs assessors faced with thousands of items are taking an "overview" approach of this kind.
These significant changes to the conduct of cases by practitioners and the subsequent determination of assessed costs mean that decisions such as Frumar should be looked at in the context of costs practices at that time.
Ms Castle also refers to Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 where Barrett JA states that the way in which the Review Panel goes about its business depends on the approach of the parties. That does not mean, however, that the Review Panel's approach is to be dictated by the parties. The Review Panel is carrying out an administrative, not a judicial, function.
Ms Castle also challenges the assessment method by reliance upon the Costs Assessor's statement that he makes comments that he acknowledges are "more usually made in party/party assessments" (paragraph 62). I note, however, that the Assessor goes on to explain that he says so in light of his s 172(1) obligations and I do not regard this remark as an admission that he is applying the wrong principles.
Whether or not I have erred in these observations, I am satisfied that the Costs Assessor did not misunderstand the work done (or its asserted complexity) or fail to consider items of work or that he limited his consideration to the matters expressly identified at paragraph 81. These categories are expressed in very broad terms capable of encompassing all of the matters referred to in the parties' submissions, especially when the Assessor's reasons are read as a whole. I am satisfied that the Assessor did review all of the bills and that Ms Castle's description of paragraph 68 as indicating to the contrary (in that he refers to some but not all of the work done) is misconceived. The Assessor goes on to say in the following paragraph, paragraph 69 that "I have reviewed the bills having regard to the documents provided in the Dropbox folders"; he then sets out some specific concerns, such as six-minute time charges for matters taking at best a few seconds. He gives examples of excessive amounts of time for simply reading the other party's affidavit. His conclusion is that "leaving aside the hourly rates charged in the invoices, there are significant claims that are, on their face, excessive."
Ms Castle's submissions raised a series of specific oversights by the Costs Assessor. These are as follows: 1. Affidavits: Ms Castle's claim that the Costs Assessor did not have regard to the affidavits and in particular that he only considered Adam's 5 July 2019 affidavit is incorrect. The Costs Assessor refers to three affidavits at paragraph 68 (two for Adam and the third being the costs affidavit which the Costs Assessor was so critical of: see paragraphs 68 and 76) and paragraph 69 refers to Adam's 5 July 2019 affidavit. He also considered the Shilkin proceedings and Adam's affidavit of 2 November 2018 (at paragraph 81). I see no error with respect to the Costs Assessor's identification of the affidavits in the proceeding or to the consideration of what amount of work was done. 2. Matters "not mentioned": Ms Castle referred to matters being "not mentioned" which meant that "no allowance was made" (Tcpt, 9 November 2023, p 164(43)) such as an allowance for briefing counsel. This would be part of progressing the proceedings (paragraph 81) and is specifically mentioned at paragraph 68. Conferences with counsel would have been included in the 45 hours referred to at paragraph 81. Another example is the Notice of Motion, which is set out in more detail below. 3. Overnight work during the hearing: An allowance of 45 hours was made but I note the Assessor's specific finding that duplication of work was disproportionate, and that this was a claim which should have been conducted by a solicitor at Ms Rabadi's level without supervision, especially since counsel was briefed almost continuously during the matter. 4. The proxy: It was common ground that this document was neither reasonable nor necessary as part of this claim. The Costs Assessor refers to preparation of this as a "personal document" in paragraph 69(vi) as one of the matters he considers excessive. The sum involved is $280 plus GST. This is one of the matters Ms Hooper refers to as part of her submissions on Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304 ("Bellevarde"). Whatever the size of this sum, I cannot see that the Costs Assessor erred by referring to it as an item which should not have been included in the costs assessment. 5. Notice of Motion: Wayne brought a Notice of Motion to have Adam's claim dismissed for want of compliance with a notice to produce. It did not go ahead and a number of other case management orders were made, as the email of 22 March 2019 demonstrates. This work would clearly fall within the Assessor's category in paragraph 81(viii) as it concerned the progressing of the proceedings. The Assessor clearly did not overlook it; he referred to the number of directions hearings at paragraph 68. 6. Matters outside the YB2 costs assessment: At paragraph 14 of the plaintiff's further submissions there are still further assertions of work asserted to be overlooked. These are: 1. The review and consideration of Wayne Poche's further affidavits. I am given one "example", namely item 1401, but no further information. 2. Drafting a Notice to Produce issued to Wayne Poche and the review of documents provided by Mr Poche in answer to a Notice to Produce. I am not referred to all of these, but given only "For example, see items 1224, 1230, 127, 1273, 1278, and 1279" and left to consider these without assistance. 3. Preparing pleadings (an Amended Defence). Item 1494 is given as an "example". 4. Liaising with various expert witnesses. The "examples" I have been given are 1298, 1299, 1301, 1302, 1303, 1304, 1308, 1310, and 1311. 5. Communicating with Wayne Poche's legal representatives (Glass Goodwin). I am given as "examples" items 1223, 1229, 1231, 1238, 1239, 1252, 1256, 1265, 1266. 6. Work performed for what are identified generally as "interlocutory skirmishes" (1243, 1251, 1253, and 1254). I am given as an example of directions hearings (whether skirmished or not is not stated) as being items 1127, 1133, 1137, 1144, 1145, 1217 and 1219.
Ms Hooper (Submissions, 20 November 2023) submits that I should not permit the plaintiff to expand his particulars because: 1. These in fact relate to work done outside the family provision proceedings. 2. There were orders for particulars to be supplied and a number of these were not provided.
Although Ms Hooper did not refer to this, I consider that to provide a judge with a list of "examples" without identifying all of them and providing submissions about each is unhelpful, in that the judge should not be left to guess what is wrong. I note that this was the approach taken by Mr Amirbeaggi to the Review Panel in his letter dated 19 February 2021 (CB 1056) as well as in his affidavit at paragraph 20 (CB 610). It puts the factfinder in a difficult position of being asked to "make gold out of straw" (Transport Accident Commission v Musura (Supreme Court (Victoria), Teague J, 27 January 1989, unrep) at p. 27).
I accept Ms Hooper's submission that the plaintiff should not be permitted to expand its particulars in this fashion. If I were to consider them, however, I would reject each of them, for the reasons set out in Ms Hooper's submissions of 20 November 2023 (at paragraphs 21 - 26), which I gratefully adopt.
I am satisfied, by the content of the Assessor's reasons (which the Review Panel affirmed), that he did identify the time he regarded as appropriately taken to undertake particular work, at the hourly rate he found appropriate, and that his conclusion was arrived at on the basis of that task (see paragraphs 81 - 82). The Assessor (and thus the Review Panel) formed an assessment of what was reasonable work, the time reasonably spent, and the appropriate rates. It is quite clear how that work was costed.
This brings me to a consideration of Ms Hooper's alternate submission on this point, namely her "Bellevarde" argument.

Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304

In Bellevarde, Johnstone DCJ stated (at [16]): "[16] Not only must a party who is appealing under s 384(1) establish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]. Thus it has been said by Associate Justice Malpass: "The onus borne by the plaintiff is not merely to demonstrate error as to a matter of law arising in the proceedings to determine the application but also to demonstrate that any such error is material to the determination": Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439 at [24]. ... [whilst there has been an attack on the expression of the reasoning process, it has not been shown that the determination itself was erroneous and should be disturbed ... The onus borne by [the plaintiffs] has not been discharged": Skalkos v Assaf [2002] NSWSC 1221 at [17]- [18]."
Applications under s 384(1) proceeded on an entirely different basis, in that they were not rehearings. On what basis could the requirement to establish an error of law be required to demonstrate that the error made justifies disturbing the assessment? Would this apply to factual errors as well?
In Cappello v HomeBuilding Pty Ltd [2022] NSWDC 725, the defendant made a submission that Bellevarde still applied under the new legislation; the response was that it may be possible as part of proportionality principles, but no determination of the issue was made. In GB v EB [2022] NSWDC 322, the response was even more cautious. Both judgments were the subject of an application for judicial review but the Court did not determine the issue. In Cappello v HomeBuilding Pty Ltd [2023] NSWCA 109, Mitchelmore JA (with whom Meagher JA and Simpson AJA agreed) found it unnecessary to address whether practical injustice "can be relied upon in a manner similar to the operation of s 382 of the 2004 Act (which has no counterpart in the LPUL)" (at [41]). Mitchelmore JA was considering two instances in which the absence of "practical injustice" might be relied on: the exercise of discretion to grant relief under s 69 of the Supreme Court Act 1970 (NSW) (not relevant here) and an appeal to the District Court under the LPUL.
Ms Hooper presses the Bellevarde argument and also relies in support of it on what she termed "the migration authorities" (Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421, Nathanson v Minister for Home Affairs and Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34). Bellevarde demonstrates the need for an applicant for relief to demonstrate the materiality of an alleged jurisdictional error or error of law on the face of the record. The migration jurisprudence discussed above is not confined to procedural fairness errors; nor is it limited to decisions made under the Migration Act 1958 (Cth). As Ms Hooper sets out in her post-hearing submissions at paragraphs 21-26, Hossain demonstrates that materiality as a requirement is implied by reference to the construction of the statute in question. There is nothing in the LPUL (and associated legislation) to displace the implied requirement of materiality.
Ms Hooper argues that the legislation should not be interpreted so as to deny legal force to a decision made by (in the present case) a Review Panel where noncompliance with the statute, even if arguably significant, was not also material (see SZMTA at [44]). This is made clear in Hossain at [30]-[31] where Kiefel CJ, Gageler and Keane JJ state: "[30] Whilst a statute on its proper construction might set a higher or lower threshold of materiality, the threshold of materiality would not ordinarily be met in the event of a failure to comply with a condition if complying with the condition could have made no difference to the decision that was made in the circumstances in which that decision was made. The threshold would not ordinarily be met, for example, where a failure to afford procedural fairness did not deprive the person who was denied an opportunity to be heard of "the possibility of a successful outcome. [31] Thus, as it was put in Wei v Minister for Immigration and Border Protection, "[j]urisdictional error, in the sense relevant to the availability of relief under s 75(v) of the Constitution in the light of s 474 of the Migration Act, consists of a material breach of an express or implied condition of the valid exercise of a decision-making power conferred by that Act". Ordinarily, as here, breach of a condition cannot be material unless compliance with the condition could have resulted in the making of a different decision."
Ms Hooper also refers to the statements of Kiefel CJ, Keane and Gleeson JJ in Nathanson v Minister for Home Affairs at [30]: "[i]t is well recognised that, generally speaking, legislation should be construed to discourage unnecessary litigation, to reduce wasting time and cost and to preserve the dignity of the law".
Although the migration jurisprudence has been applied only to jurisdictional error and error of law on the face of the record. Bellevarde was an appeal based on an error of law, the relevant errors alleged by YB2 in this case are errors of law.
Ms Hooper concedes, however, that a significant point of difference in Bellevarde and the migration authorities is that the Court in this appeal does not have the power to remit the matter to the Review Panel. This Court must, if it finds relevant error, step into the Panel's shoes and exercise its functions. This is a significant difference from the migration authorities discussed above; the court, if it finds jurisdictional error, does not consider the merits of the individual's entitlement to a particular migration outcome in a process similar to the redetermination of the costs. The Court in migration cases only has power to grant relief in the nature of constitutional writs, generally in the form of a remittal of the application to the relevant decision maker (the Administrative Appeals Tribunal or the Minister). I consider this to be a significant difference and one which means that Bellevarde may not have a place in costs jurisprudence, as a party appealing to this court expects the Court to carry out the reassessment where there are errors of fact and law.
Ms Hooper argues that the justification for the imposition of a materiality requirement, by reference to the construction of the statute and what are essentially resource-based considerations such as proportionality, remains despite the absence of a power of remitter. If so, Bellevarde itself may not be applicable, but the principles of proportionality which so closely resemble its reasoning may form the basis for the consideration of such ideas, in the place of Bellevarde itself. For example, if the Assessor and Review Panel were wrong about the proxy (a matter of $280), could the Court determine that resource-based principles would permit such an error to be disregarded? If the Court were to find there was some minor defect in the Panel's approach amounting to a legal error, it is submitted that there is an argument that the error would need to be material.
Courts have been prepared to overlook minor errors of this kind, but in an ad hoc manner. For example, in Dybka v McKenzie [2002] NSWCA 171, the parties made a series of mistakes in the out of pocket expenses which included failing to include an allowance of $1,606.97 for Fox v Wood. Meagher JA declined to adjust the sums and dismissed the appeal even though it meant the plaintiff should technically have won. In Mayne Nickless Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 359, the Court refused a claim for a writ of prohibition where the sum involved was only $135.
A more direct analogy may be seen in King v Delta Metallics Pty Ltd, where the issue of denial of procedural fairness arose. The sum involved was a matter of $435. The Court took the view that procedural fairness was largely irrelevant where the loss was of such a trifling sum.
In the present case, where I have found that the plaintiff was, at best, denied the opportunity to put Mr Walker's 2017 Advice (and, if I have erred in relation to Ms Painter SC's advice, that advice as well) before the Review Panel by reason of the absence of procedural fairness, a clear analogy may be drawn, if only on the de minimis principle.
I note, however, that I have not accepted Ms Castle's submissions that any errors were made by the Review Panel, even small ones.

Appeal Ground 3: s 172 and related issues

The plaintiff submits that the Review Panel erred by not applying s 172 of the LPUL and not determining the fair and reasonable costs the subject of the plaintiff's invoices. The particulars are described in the plaintiff's written submissions at paragraph 50 as follows: "Appeal grounds 3 and 5 are related. The panel failed to apply the test it was required to apply in s 172; the reasons reflect the erroneous manner in which they perform their function. Their inadequacy is a product of the methodology they applied, a methodology which has been disapproved of in other cases."
Ms Hooper submits that this argument is essentially a complaint of a failure to rule on each line by line objection and response (submissions, paragraph 28).
The approach taken by the Costs Assessor, which was endorsed by the Review Panel, was within his discretion as a decisionmaker utilising his expertise in the area of costs assessment. This clearly included all of the factors in s 172, including the level of expertise of the solicitors, the asserted complexity of the matter (or lack thereof) and in particular failures to disclose costs, obtain and pass on advice on prospects and cost capping, approach to settlement and conduct of the proceedings.
In the present case, the parties had exchanged objections of the "line by line" variety, but that does not mean that the same procedure should be adopted in the costs assessment process. The parties also exchanged general submissions in which they dealt with issues globally, and these submissions invited a general or overall approach to assessment, as an alternative to a "line by line" taxation exercise which, giving the number of items, would have been onerous.
The words "global approach" need to be seen in context. The Review Panel acknowledged as much at paragraphs 15.7 - 15.8 when they noted that, far from plucking a figure out of the air, the assessor had undertaken, not an overall global approach, "but rather a method of looking at what was done and allowing a reasonable amount of time and thus costs for doing that work." The Review Panel went on to state that it found "no error in that approach".
In Cassegrain v CTK Engineering [2008] NSWSC 457 at [80] White J stated: "Whilst the assessor is required to identify each disbursement varied by the determination, there is no express requirement that where the assessor proceeds by way of allowing, reducing or rejecting individual items of costs, that in respect of each item of disputed costs he or she explain the quantum of costs allowed or disallowed."
In Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 at [92] White JA stated: "But the applicants' costs of the costs assessment were to be paid "by such persons, and to such extent, as may be determined by" the review panel: s 369(3)(b). Rather than perform a line by line assessment, which it had no statutory obligation to undertake, the panel determined that an amount equal to 10% of the professional fees ultimately allowed as fair and reasonable might reasonably have been expended by the applicants in dealing with the assessment process. That evaluation was likely informed by the panel members' knowledge of the typical ratio between the fees allowed as fair and reasonable and the professional costs incurred in dealing with the assessment process. It was doubtless also informed by the fact that the principal disbursement paid by the applicants to DGT Costs Lawyers was itself based on a percentage of professional fees, being 8.9% (reduced by the assessor to 8.5%): see primary judgment at [19]. To check that the 10% figure was reasonable, the panel also estimated the number of hours which might reasonably have been expended at particular rates in dealing with the assessment process; that calculation produced a roughly equivalent sum."
Ms Castle referred to Griffith v Australian Broadcasting Corporation [2013] NSWSC 750, where the assessor raised difficulties concerning factual and legal issues about the performance of work by in-house solicitors as being a matter on which advice was sought from the court. There is no analogy to the facts of that case here.
Section 172 permits the taking into account of this wide variety of factors (although read with s 200(1), namely "so far as they are applicable") and must be taken to extend to the question of whether the costs incurred were in proportion to the value and importance of the subject matter in dispute.
The difficulty the plaintiff faces is that the documentation revealed the nature and extent of the failure to provide Adam Poche with essential information such as "adequate written advice as to the effect of bringing all those claims, the likelihood of success of those various claims in the circumstances" (at paragraph 15.2) and the procedure known as costs capping. His asserted position that there would be no compromise was based on that lack of information. The same is the case when Adam raised other matters such as the validity of the wills. The difficulty was that Adam was addressing these issues in the absence of any or any proper advice. That absence of advice explains his instructions and places them in their proper context. He was never in a position of making a fully informed choice about his options.
The sole written advice on prospects and costs set out in the text message of 3 July 2019 (Exhibit 2, p. 2064) was sent only a matter of weeks before the trial date. Its brevity and informality are unfortunate. It is not surprising that when asked in cross examination about whether he expected to get all of his legal fees back if he won, Mr Poche said that he did (Exhibit 2, p. 16325). That speaks volumes for the level of understanding he had of his rights for effectively the whole of the period of time that he instructed these solicitors to act for him. The Review Panel was clearly aware of these factors and I see no error in relation to their assessment of the proportionality of costs incurred in those circumstances. Ms Hooper draws my attention to the observations of Cussen J in In the Matter of the Bill of Costs of Lamrock, Brown & Hall [1908] VLR 238 at 248 that "[S]ometimes a client may need protection against himself or herself", a salutary reminder of the degree to which clients' instructions without the filtering process of explanation of the facts and law by the solicitor he or she consults may as a result give instructions without understanding.
The degree to which the plaintiff was successful in the family provision act claim is a relevant factor, and I take into account that there were adverse credit findings against Adam Poche, and that he could have avoided these if he had been more frank with his legal advisers. In practical terms however he was able to treble his entitlement, which meant that his claim was to a large degree accepted. This did not excuse the plaintiff from complying with its obligations to its client.
This ground of appeal is not made out.

Appeal Ground 4: Whether the Review Panel erred in its findings concerning hourly rates

Much of the basis upon which the Review Panel's findings as to the hourly rate were under attack has fallen away as a result of the withdrawal of Mr Rose's affidavit and my rejection of the tender of all but two of the documents attached to the affidavit of Mr Amirbeaggi. In summary, the plaintiff's argument had been that the Review Panel's findings as to quality (work not done and advices which "were in parts of the file that the Panel did not request" (submissions, paragraph 77)) were misconceived because they were not based on reading the whole file. This in turn "infected" the Review Panel's hourly rate findings, which would "in all likelihood have [resulted in] a different determination" (submissions, paragraph 77).
As set out in my findings as to Ground 1, I am satisfied that the Review Panel did have sufficient information about the work carried out, its complexity, and the view taken by counsel of that work. This is in part because the plaintiff took every opportunity to address this topic in submissions to the Review Panel. This included the nature of the instructions provided by Adam (see paragraph 15.12 of the Review Panel determination), Adam's instructions as to settlement and consideration of offers and the gathering of evidence on subpoena.
In addition the Review Panel was entitled to view these proceedings through the prism of the judgment of Henry J and in particular her Honour's observations about the nature of these proceedings (at [336]), comparing it to costs in a similar trial before Slattery J (Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362). They were also entitled to take into account the Supreme Court's jurisdiction to cap costs (which I note is summarised by Slattery J in Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) at [33] ff, but is presumably well known to costs assessors) because this is information which may inform decisions concerning the hourly rate.
There remain two main areas of contention that must still be considered in relation to the hourly rates arrived at by the Review Panel. These are whether the Review Panel has taken into account correspondence from Counsel praising Mr Amirbeaggi and Ms Rabadi and discussing prospects, the asserted complexity of the claim and the sheer volume of work performed at a level of expertise stated to be beyond that of the average family provision claim lawyer.

Counsels' commendations of YB2 staff

The Review Panel made findings as to quality and as to whether work was carried out properly or at all without having regard to the work done by YB1 during the period not the subject of assessment, namely prior to the work done by YB2. As noted above, the plaintiff's submissions put forward that this included not having "advices" which were "in parts of the file that the Panel did not request" (submissions, paragraph 77, CB 1054).
It is helpful to set out the list of counsel briefed in the matter which was supplied to the Review Panel, although this list required corrections: 1. On around March 2017 Andrew Fernon (now SC) was briefed in the matter. 2. On or about 19 April 2017 Evan Walker was briefed, although whether he was retained as Mr Fernon's junior is unclear. The day after he accepted the Brief, he sent the email containing advice which was one of the two documents which I have accepted into evidence from the annexures to Mr Amirbeaggi's affidavit. No reference was made to this email in the chronology of counsel appointed prepared by the plaintiff for the Review Panel (CB 551). 3. Mr Fernon appears to have gone out of the matter, but Mr Walker remained, and was drafting pleadings. Mr Fernon was re-engaged in October 2017, but some time afterwards, Ms Painter SC was engaged, possibly in his place. On Friday 16 March 2018 Ms Painter SC provided an email to Ms Rabadi containing advice, largely in relation to the cross-claim (Exhibit 2, pp. 10,124 and 19,982). Significantly, in my view, the Review Panel was told of the existence of the 16 March 2018 document (CB 551) and, according to footnote 8 on that page of the Court Book, a copy of that email was in fact available for inspection by the Review Panel. I note that Exhibit B gives the date of 12 March 2018 (CB 821-822) and not 16 March 2018, but the subject matter is very similar. If so, that means that the plaintiff's submission that any advice from Ms Painter SC was new material not seen by the Review Panel was incorrect and that this document would also fail the "fresh evidence" requirement. Not having received any submissions on this issue, I do not propose to investigate further. 4. Mr Fernon and Ms Painter SC continued to carry out work up until August 2018 when Sharna Clemmett of Counsel was retained. There may be some invoice overlap but Ms Painter SC clearly went out of the case as YB2 were planning to brief Mr Meek in her place, according to their email of 9 November 2018 (Exhibit 2, p. 9,560). On or about 27 November 2018, YB2 were still looking for a replacement counsel for Ms Painter SC. 5. On or about 6 March 2019 YB2 briefed Miles Condon SC but he does not appear to have done any work of significance as on 7 May 2019, two months before the hearing, Dr Chris Birch SC was briefed. 6. In early July 2019 Mr Amirbeaggi provided a text message which set out what Dr Birch SC had said in relation to costs. This text message said in full: "Call you at lunch however: 1. $2m Estate; 2. $1m comes out in costs; 3. $1m left and I think you will get 50% ie $500k. Call you in 10m."
I agree with the Review Panel that the only advice on prospects of significance was that provided by Dr Birch SC, which the Review Panel's letter pointed out they had found and about which they gave the plaintiff seven days to reply. However, it was Dr Birch SC who had told Henry J that the size of the legal costs in these proceedings was "disproportionate" and "almost tragic": Poche v Poche at [269]. That was not an endorsement of the plaintiff's conduct of the proceedings.
I am satisfied that the Review Panel considered what Dr Birch SC and Michelle Painter SC said, and took this into account. I am also satisfied that the advice in question was never sent to Adam, apart from the material set out in the text message above, and that the Review Panel was entitled to take a critical view of the YB2 employees' failure to advise Mr Adam Poche in relation to the very significant costs issues of costs capping, prospects and costs disclosures.
The email dated 21 April 2017 from Mr Walker of Counsel (CB 763-765) is of little assistance. It starts with the words "I refer to the brief delivered to me yesterday" and is a general overview which does not deal with the family provision application but with other issues discarded well before the YB2 costs, such as contribution of the mortgage and removal of the estate's solicitor. There is advice given about challenging the validity of the will which is highly pessimistic and should have been provided to Adam.
There is similar advice from Ms Painter SC dated 12 March 2018, who recommended a geriatrics expert, a sensible step which led to the claim being abandoned. As noted above, I am satisfied that the Review Panel did know that she provided advice, as this is referred to in the footnotes at CB 551 as well as in the Review documentation in Exhibit 2 (pp. 10,124 and 19,982). (As noted at the commencement of this judgment, this was one of the two remaining documents that survived the objections to the annexures to Mr Amirbeaggi's affidavit.)
The plaintiff points to the language of praise in these communications, such as Ms Painter SC's reference to an "excellent review" provided to her and to Dr Birch SC's description of Ms Rabadi as the best solicitor who had ever instructed him. The Review Panel was well aware of his encomiums; at p. 2505 of the USB file (Exhibit 2) the plaintiff's submissions record that "Notably, during these proceedings, Chris Birch SC informed Mr Amirbeaggi and Ms Rabadi that Ms Rabadi "is one of the best litigators I've worked with since I started practice"." I am satisfied that they factored all of this material into the hourly rates but that they also factored into those rates the very serious errors they identify in Ms Rabadi's affidavit material and cross-examination concerning costs and the likelihood of overservicing of the file.
Ms Castle dwelled with vigour on the injustice of these solicitors being awarded such a low hourly rate. I agree that this is an important topic and have considered the evidence in detail. Central to this appeal ground is the concern that the plaintiff feels about the failure to appreciate that this was a complex claim involving very high skills.

Ms Rabadi

The errors the Costs Assessor was asserted to have made in relation to his findings about her work included: 1. Failure to identify which 'short' emails were charged on a six-minute basis. 2. The finding that the time taken to prepare Mr Poche's affidavit sworn 2 November 2018 was excessive (noting the time he refers to is incorrect). 3. The finding that Ms Rabadi spent 9 hours 54 minutes (i.e., significantly less time was spent) reviewing the other party's affidavit sworn 5 September 2018 which comprised 33 pages together with a 167-page exhibit. 4. The finding that the tax invoice of 3 December 2018 refers to time by Mr Amirbeaggi to review the other party's affidavit sworn 5 September 2018. 5. The finding that Ms Muliadi spent 3 hours 48 minutes preparing a table of invoices and that Ms Rabadi spent a further 3 hours 12 minutes reviewing it. 6. Finding for work associated with the Appointment of Proxy. (CB 544).
These findings were essentially upheld by the Review Panel. For example, at CB 582 the Review Panel went into some detail about the "unfair way" that the minimum six minutes unit of $77 inclusive of GST was charged even for such simple calls as Mr Amirbeaggi or other staff members telling Adam they would get back to him later, or for reading a one-sentence email.
The Review Panel noted that the work performed by Ms Rabadi was charged at $500.00 per hour plus GST until 25 April 2018, then $600.00 per hour plus GST thereafter. She had been a solicitor for five years and had worked on two family provision matters before these proceedings. The Review Panel considered she was junior and inexperienced.
Of particular concern to the Review Panel were the statements made about costs set out in the affidavit she swore in relation to the costs-capping part of the litigation. Although most of the blame was put onto Mr Amirbeaggi by the Review Panel, the fact that she helped prepare it and then swore that the contents were true are matters to take into account. The Review Panel stated: "The affidavit of Ms Rabardi of 5 July 2019 as to costs was not done well. To start with, paragraph 6 reads "from my discussions with colleagues at YBL and my experience at YBL, YBL generally recovers between 75% and 80% of its professional fees that are subject to a party costs order …". If that was relevant, and if a copy of this affidavit had been provided to Mr Poche (and it appears it was not so provided), then it was incomplete and misleading. There was an obvious case for capping of costs in a matter such as this. It was never likely that Mr Poche would recover 75 - 80% of either fees or expenses given the level that legal costs had reached. The submission of Lindsay Ellison SC for the defendant made 12 August 2019 put the matters regarding costs succinctly. The panel attaches a copy of the last page of those submissions. An amount of $389,807.00 would be available to fund any provision in favour of Adam Poche, together with any costs order."
The plaintiff argues that Ms Rabadi had commercial expertise and that her work on Adam's affidavit required specialist knowledge and skills concerning conveyancing and commercial matters. The reality was that she had only conducted two family provision matters beforehand and her experience in this field was accordingly limited. More importantly, the material set out in her affidavit concerning costs was, as the extract from the Review Panel reasons set out above shows, incomplete and misleading. That displays a level of expertise, in general terms of dealing with clients in terms of providing them with information and assistance, at an unacceptably low level. I see no error of law or fact in the Review Panel's conclusions.

Mr Amirbeaggi and the other members of staff

The main basis upon which Mr Amirbeaggi's work was challenged was as follows: "11.3 Part of the role of a solicitor is normally to give measured and careful advice to clients, particularly in important and expensive litigation, as to the client's prospects of success. Insufficient attention to written advice as to the prospects of success appears to have been given by Yates Beaggi. In that respect, the work was not of good quality. 11.4 On 26 June 2019 Chris Birch barrister advised YB2 in the terms set out above. The panel can find no evidence that this was sent to Adam Poche…. 11.5 Given the contents of the file, it is fair to observe that appropriate advice should have been given at an early stage that the costs may be capped, costs may be disproportionate and the costs may be more than the amount Adam would receive from the estate. That was always a significant possibility, right from the outset, on the basis of the evidence. 11.6 There should have been clear written advice to Adam Poche that any award would not likely cover the costs that Adam had incurred. The panel has been unable to find any such advice. The panel invited a response on that issue from the parties by letter of 11 February 2022. The panel did not receive a response. 11.7 On the contrary, YB2 sent a short text in which it advised "after costs $1 million would be left in the estate, and I think you will get 50% ie $500k". that legal advice was also referred to in the judgment at paragraph 275. The panel attach a copy of that email. 11.8 That text was poor legal advice. It assumed that all of Adam's costs and the estate's costs would come out of the estate and would total no more than $1 million. That assumption was wrong in two respects. First of all, it did not consider the possibility, (indeed the likelihood in the circumstances), that the presiding Judge would cap costs. That is a common course of action in family provision and estate matter. Secondly, it did not properly address the possibly that Adam would not receive a costs order that his costs be paid from the estate. 11.9 It was always possible, and even likely, that there would be an upper limit put on costs payable by the estate to Adam Poche by the presiding Judge. That is what ultimately happened. 11.10 It is also important to bear in mind that these are matters that were dealt with in one way or another before the assessor. Yates Beaggi did not put significant material before the assessor about these matters." (CB 578)
I agree that these failures to advise meant that Mr Amirbeaggi in particular provided "poor legal advice". This meant that, in addition to the absence of a YB2 costs agreement and costs updates, Adam was actually being given wrong advice. In particular, he should have been told about costs-capping.
Failure to give proper advice is the first reason why Mr Amirbeaggi's work was of poor quality. The second reason is that Mr Amirbeaggi overserviced the file, apparently because he considered that this was a very complex matter requiring hours of reading documents at a cost of hundreds of thousands of dollars.

Complexity and the level of experience

The plaintiff submits that "the claim was not an ordinary one for provision" in that it was both unusual for a provision claim and complex" (submissions, paragraph 78). As a result, it required "legal skills beyond those of an ordinary family provision solicitor" (submissions, paragraph 78). In particular, Wayne claimed that Adam had been "gifted" the engineering business, which that the "legal team" (to use the term in the written submissions) "had to review thousands of pages" to piece together the structure of the corporate entities running the business (submissions, paragraph 78).
As Dr Birch SC was only briefed about two months before the hearing (see the letter of 7 May 2019 (at p. 9633 of Exhibit 2); the hearing commenced on 29 July 2019), he had little to do with drafting. He did settle the plaintiff's final affidavit re costs (p. 9821 of Exhibit 2). There is no challenge to Ms Rabadi's work here, although Counsel appear to have been retained almost constantly during this period and the memoranda contain references to drafting, so I assume this work was done by them. Ms Castle submits that the affidavits drafted by Ms Rabadi were well drafted and notes that, in the case of the challenged affidavit on costs, that this was settled by Dr Birch SC. The fact remains that the criticisms of the contents of this affidavit, and the extravagant costs it revealed, by the Review Panel (and by Henry J) were well justified.
Adam Poche was not a difficult client. In terms of being able to obtain instructions, Adam Poche was no stranger to the plaintiff, having retained its services for about 20 matters over the ten-year period prior to the family provision claim. Mr Amirbeaggi described this long and close working relationship as follows: "The client had been a client of YBL (particularly Mr Amirbeaggi) for a period of approximately 10 years prior to this matter. YBL had acted for the client in approximately 20 matters including refinancing his business, various liquidations, sale of his business and real estate, and other commercial matters." (p. 2510 of Exhibit 2).
The plaintiff submits that Adam was a sophisticated client who had been prepared to pay the hourly rates set out in the costs agreement and had paid costs at such a rate in the past. By reducing them the Review Committee were giving Adam "a windfall" (submissions, paragraph 81).
I do not accept the submissions. The fact that Adam Poche accepted and paid these amounts when he was not receiving essential advice about his prospects and costs exposure is another reminder of how, in the words of Cussen J, clients sometimes need to be protected from themselves.
This ground of appeal is not made out.

Appeal Ground 5: adequate reasons

The plaintiff argues that both the Costs Assessor and Review Panel did not provide adequate reasons because they did not make individual rulings on each disputed item of work in the seven invoices.
This ground of appeal overlaps with all of the other grounds. As set out above, I consider that what was required was to assess the entirety of the costs in the seven invoices, not each and every individual item, and that the complaint of a failure to articulate reasons to this high degree of particularity must therefore fall away (see Cassegrain v CTK Engineering at [80] and [90] - [92] and Ahern v Aon Risk Services Australia Ltd at [55] - [56]).
For the same reasons as those set out above, this ground of appeal is not made out.

Appeal Ground 6: Costs issues

Whether or not I have erred in my findings, should there be a variation of the costs orders made by the Review Panel?
The Review Panel ordered the plaintiff to pay the costs and specifically noted: "10.12 Even had YB1, YB2 and YB3 been the same entity, the original estimate was not revised as and when required. 10.13 That was an important failure to disclose. 10.14 The panel notes that if there was any failure to disclose: 10.14.1 YB2 pay the costs of the assessment; 10.14.2 YB2 may be ordered by the assessor to pay the costs of Mr Poche of the assessment; 10.14.3 If there were unpaid costs, normally interest would not be allowed on those unpaid costs. A client need not pay costs where there has been any failure to disclose, and such costs cannot normally be recovered by legal action; 10.14.4 Any costs agreement is void; 10.14.5 As there has been a failure to disclose, the rates and the amount of costs are be prima facie regarded as fair and reasonable. 10.15 The panel also finds that when YB1 ceased work and YB2 commenced work, disclosure should have been in accordance with the provisions of the Uniform Legislation. An estimate of costs should have been made at that time. Where there is a contract with a new entity, as Yates Beaggi submit, and as the panel have found, it is important that a client is given all the information required by the Uniform Legislation. 10.16 The panel finds there were significant failures to revise estimates, and that no significant disclosure of legal costs was made when YB2 started work, after YB1 ceased work." (CB 578).
The failures to disclose were described as "significant" and "serious" and formed a major part of the reason for the orders for costs.

The costs orders to make if the appeal is dismissed

The plaintiff submits that, even if I were not to set the Certificates aside, the plaintiff should be entitled to its costs of the assessment and review, on the basis that Adam's conduct of the assessment and review disentitles him from costs. In addition, in the course of the assessment process, he either made or authorised his legal representatives to make "numerous allegations which were without factual foundation and contrary to the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) and should not have been made" (plaintiff's submissions, paragraph 84, CB 1056). The submissions at CB 1056 set out the following extract from the plaintiff's submissions to the Costs Assessor dated 19 February 2021: "1. The client raising untruthful statements of fact in the general response which are plainly wrong having regard to documents in his possession (as corrected below); 2. Reducing time to $0 on the basis that emails to/from the client do not form part of the file when they did in fact form part of the file or in any event are in the client's possession as they are emails sent to or by him (for example, see ltems 1101, 1104, 1208, 1259 and many more). This also applied to emails to / by third parties that formed part of the file yet client has reduced to $0.00 (e.g. ltem 1240 and many more); 3. Asserting he has no record of documents but at the same time asserting "ln the alternative, time claimed grossly excessive" (for example, see ltem 1207). This is proof of the fact that the client has arbitrarily and without regard to the actual work carried out simply discounted the greater part of YB's fees; 4. Discounting all time entered by "JM" in circumstances where the client accompanied Ms Muliadi to court on 29/11/18 and was well aware of both her identity and the fact that she was an admitted solicitor (for example, see ltems 1217 to 1219); 5. The client has not provided an explanation for discounting time where he asserts time is excessive (despite the time entry recording precisely the time the work was started and stopped), for example see ltem 1243 and many more large entries. 6. The client has discounted time for a number of conferences to $0 on the basis that "no details provided as to purpose of conference and no file notes located on file". This being the case even though the client is well aware how much face to face time was spent between him and FA. For example, the client has discounted Item 1263 to $0.00 despite there being an email from the client to FA sent Friday, 5 April 2019 (which is obviously in the client's possession) that reads "Since our meeting on Tuesday [Tuesday being 02/04/19] I've gone over areas I believe we could have Subpoenaed / produced by my brother and my mother's estate... " There is also an email from the client sent 23/04/2019 3:46 PM to TR advising "I understand Farshad is interstate at present. I'm eager to talk with him in relation to the motion to produce items due next Monday. We met at the start of the month and he wasn't concerned about anything. If you could give me a call I'd like to go over it with you given the closing time frame, / can revisit it with him when he is available"."
The plaintiff submits that, while costs assessment is not a court proceeding, it is close to the judicial function of the courts, including the Supreme Court's supervisory jurisdiction over solicitors, noting the role historically played by Registrars in the assessment of costs prior to 1994. Conduct on costs assessment "should be no less than that which is satisfactory in Court, where the making of baseless allegations and the use of inflammatory language is both unhelpful and improper" (plaintiff's submissions, paragraph 86, CB 1057). The Court is asked ("whoever the author of the documents was", the signature being unintelligible) to "demonstrate its intolerance of the practice by disallowing the costs claimed by the defendant on assessment and review" and by awarding these costs to the plaintiff (plaintiff's submissions, paragraph 86, CB 1057).
The defendant denies that there has been any disentitling conduct either by himself or his legal representatives (whom I am satisfied are the author of the costs document with the allegedly unintelligible signature). Examination of the nine numbered items identified (1101, 1104, 1208, 1217 - 9, 1240, 1259, 1263) shows that these items were challenged either on the basis that they did not form part of the file and/or did not occur, or that another solicitor charged for attending court with Ms Rabadi.
I see nothing in these responses warranting that the Court show its "intolerance" in the manner sought.
What is also clear is that, despite having paid for the file in full, the defendant's new solicitors did not obtain the whole file until November 2020, about four months after the assessment notification was given, and was delivered by being sent to a dropbox. In those circumstances, the assessment was carried out on the basis that absence of corroborating evidence meant that the costs of specific items would be objected to (paragraph 3.3, CB 137). I see nothing objectionable in such an approach to these issues.
I agree that costs assessments should be conducted in the same manner in which court proceedings are conducted (plaintiff's submissions, paragraph 86, p. 1057), but I see nothing discourteous or improper in any of the submissions made on behalf of the defendant. By contrast, Mr Amirbeaggi's correspondence with the Costs Assessor and Review Panel leaves much to be desired; his letters to the Costs Assessor about timetables for provision of material, examples of which are set out earlier in this judgment, show a degree of combativeness that is unwarranted.
It would only be in exceptional circumstances that a party who is successful would be deprived of their costs: Arian v Nguyen [2001] NSWCA 5. There have been cases where such orders have been made, the most interesting of which is Jones v Sutton (No 2) [2005] NSWCA 203, where the manner of conduct of the proceedings not only resulted in offers of compromise better than the result being refused and a refusal to certify for Senior Counsel but also a refusal of an order for costs to follow the event for 13 of the 17 days of trial. This important judgment is one of the first examples of proportionality issues being taken into account in costs, as the comments of the Court (Beazley, Santow JJA and Stein AJA) under the heading "Lack of proportion between damages and costs" attest to (at [48] ff). Nevertheless, the extraordinary political vendetta that resulted in these orders being made (notwithstanding the plaintiff's modest win of $5,000 defamation damages) is in no sense comparable to any conduct by Adam's legal representatives here.
For the above reasons, if the appeal is dismissed, this basis for challenge to the costs orders made is not made out.

The costs orders to make if the appeal is allowed

Even if the appeal is allowed, the defendant submits that the plaintiff failed to comply with its disclosure obligations.
YB1, at paragraph 7 of the costs agreement sets out the following: "We estimate our professional fees for undertaking the work will range between: Early resolution: $30,000.00 - $50,000.00 + GST Litigated resolution: $50,000.00 - $100,000.00 + GST Fully contested to final hearing: $100,000.00 - $200,000.00 + GST Junior Counsel/Senior Counsel/Experts/Sundries etc - $100,000.00."
No other estimate or update of the "total legal costs" was given.
Even for this attempt at disclosure, legal costs are defined in s 6 of LPUL as "including disbursements" but as an amorphous mass. The defendant (at the time of this agreement being YB1, not YB2) should have separately identified all professional fees, disbursements and GST.
As identified in the costs submissions to the Costs Assessor (CB 137), the Legal Services Council Guideline and Direction - Costs Estimates issued by the Legal Services Council on 11 March 2016 set out this requirement at paragraph 3: "... an estimate of the total legal costs in a matter, as required by section 174(1)(a) of the LPUL, is a reasonable approximation of the total costs that a client is likely to have to pay in the matter for which instructions have been given, expressed as a single figure, from time to time (the estimate). The definition of total legal costs in this context includes professional fees, any disbursements and GST, which should be separately identified, but not interest: LPUL section 6."
The failure to identify what the disbursements were is compounded by the absence of information as to the stage at which the "$100,000" would be incurred for these disbursements. It seems unlikely that these would have remained unchanged whether the matter settled early or went on to hearing. Even the estimate the defendant was given did not constitute adequate disclosure enabling him to make an informed choice about his legal options at that time and the costs associated with pursuing those options (s 169(1) of the LPUL).
In addition to providing a disclosure of such poor quality, the plaintiff failed to have regard to the desirability of updating the estimate. As also noted in the submissions to the Costs Assessor at CB 137, the Legal Services Council Guideline and Direction - Costs Estimates states at paragraph 8: "The provision of an estimate or estimates from time to time does not preclude the provision of other information to a client about the steps or stages in a matter and the provision of such information to a client should be encouraged. It will not be inconsistent with section 174(1)(a) to provide estimates for each of the stages that the matter might reach, whether 138 - 10 - individual stage estimates are expressed as a single figure or as a range of figures, PROVIDED the law practice, having considered all the circumstances and the most likely outcome, always gives the single figure estimate of the total legal costs in the matter that section 174(1)(a) requires."
The absence of a proper estimate in the costs agreement provided by the law practice did not enable the defendant to make an informed decision about whether or not to continue to instruct the law practice and to proceed with the matter. However, there were further failures. First, the plaintiff continued to fail to comply with its disclosure obligations when it replaced YB1 (the contracting party in the costs agreement) with YB2 and then YB3. Second, there was no advice given about the costs capping procedure that is a feature of all claims of this kind. Third, what advice was obtained from Counsel in writing (in particular Dr Birch SC) was not copied to Adam for his information.
Adam submits that even if the appeal is unsuccessful, the plaintiff's failure to comply with its disclosure obligations (Part 4.3, Division 3 of the LPUL) means that it should be ordered to pay the costs of the costs assessment. Section 204(2) of the LPUL provides: 204 Costs of costs assessment … (2) Unless the costs assessor believes that in all the circumstances it is not fair and reasonable for the costs to be paid otherwise, the costs of a costs assessment are payable by a law practice if - (a) the law practice has failed to disclose a matter required to be disclosed by Division 3; or (b) the law practice has failed to disclose a matter required to be disclosed in the manner required by Division 3; or (c) the law practice's costs have been reduced by 15% or more on assessment.
I am satisfied that the failure to disclose is of great significance in this case and that this significance is such as to warrant requiring the plaintiff to bear the costs of the costs assessment.
Further, in the defendant's Counsel's written submissions, Ms Hooper and Mr Rogers point out that the LPUL does not make provision for a client to pay the costs of a costs assessment; if the Costs Assessor does not determine that the costs of the costs assessment are payable by the law practice, the Costs Assessor's fees are paid out of a working account established by the Department of Justice for that purpose (paragraph 160 of the defendant's submissions).

Concluding remarks

Costs should follow the event. However, given the amount of documentation and length of the hearing (three days) there will clearly be costs issues of substance. In addition, it is a general practice for the costs of appeals of this kind to be made by way of gross sum costs order pursuant to s 98(4) of the Civil Procedure Act. I have granted liberty to apply.
As this judgment is being handed down in the last week of term, and additionally is likely to be appealed, those costs may not necessarily be determined for some time. I take this opportunity, to note some conflicting authority as to whether a variation of a costs order to seek a gross sum costs order is an application that should be made within 14 days and pursuant to the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 36.16. I wish to draw this to the attention of Counsel as it is easy for 14 days to run out at the end of the Court sittings year.
The question of whether an application varying an existing order to seek a gross sum costs order enlivens UCPR r 36.16 is one on which there has been inconsistent appellate opinion for some time. On the one hand, Leeming JA has stated that this rule was engaged: Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 at [59]-[62]. On the other hand, there is a prior judgment of White J to the contrary: Short v Crawley (No 45) [2013] NSWSC 1541 at [27].
In Ahern v Aon Risk Services Australia Ltd (No 2) [2022] NSWCA 39 ("Ahern") at [19], the Court described the problem as follows: "There is conflicting authority in this Court as to whether an application for a gross sum costs order is an application to vary the costs order originally made, so as to enliven the requirements of UCPR r 36.16: see Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 at [59]-[62] (Leeming JA) (taking the view that it is); cf Short v Crawley (No 45) [2013] NSWSC 1541 at [27] (White J), followed in Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 at [5]-[8] (White JA); Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 at [44]-[45] (White JA) (Eliezer (No 2))."
White JA, with whom Meagher and Brereton JJA concurred in this judgment, had been the judge in Short v Crawley (No 45). As noted above, this decision predated Leeming JA's finding to the contrary in Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) at [59]-[62].
The Court in Ahern went on to state that the decision of White JA had been followed in both Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 at [5]-[8] (White JA) and Eliezer v The Council of St Andrew's Cathedral School (No 2) [2021] NSWCA 227 at [44]-[45] (White JA); see also, most recently, Amirbeaggi v EB (No 2) [2023] NSWCA 184 at [10]-[11].
In Wormald v Maradaca Pty Ltd [2021] NSWCA 307 at [12], the Court noted that Leeming JA had not been referred to White J's consideration of this issue in Short v Crawley.
In short, I consider that the views expressed by the Court of Appeal in these decisions subsequent to Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) should be preferred, and that the result is that this Court does have jurisdiction to determine this issue if application is made more than 14 days afterwards, but I draw the issue to the attention of both parties in case I am wrong on this point.
Finally, I note that I was greatly assisted in the preparation of this judgment by Ms Castle and her junior, as well as by Ms Hooper and Mr Rogers, including the overnight preparation of Exhibit B, which greatly speeded up the conduct of the hearing.

Orders: 1. Summons dismissed; appeal from the Review Panel dismissed. 2. Plaintiff to pay the defendant's costs, with liberty to apply to vary this order or to seek a gross sum costs order. 3. Exhibits to be retained until further order.

Endnotes

Entries 1097-1123 are all for work pre-dating 30 September 2018 and therefore relate to work pre-dating the date on which Mr Amirbeaggi informed Mr Poche that YB2 would commence work.
Entries 1097-1123 are all for work pre-dating 30 September 2018 and therefore relate to work pre-dating the date on which Mr Amirbeaggi informed Mr Poche that YB2 would commence work.
A discount was applied to the invoice that is numbered 1 in the table (invoice number 2056). The discount was 10.28% of the total sum identified in this invoice (which carried over an outstanding amount from a YB1 invoice). A 10.28% total discount to invoice 1 ($53,113.65 incl GST) makes it a total of $47,653.57 incl disbursements and GST. If the discount is applied only to professional fees incl GST, the professional fees are $44,144.93.

Amendments 06 May 2024 - Typographical errors in paragraphs [1], [2], [4], [12], [24], [35], [70(b)], [75(f)], [93], [107(b)], [153(d)] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2024

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)

Accidents Compensation Act 1999(NSW)

k, Brown & Hall [1908] VLR 238 Jones v Sutton (No 2) [2005] NSWCA 203 King v Delta Metallics Pty Ltd [2013] FCAFC 93 Kioa v West (1985) 159 CLR 550 Lawrence v Sammut (No 3) [2022] NSWSC 657 Livers v Legal Services Commissioner (No 2) [2021] NSWCA 164 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Mayne Nickless Limited v Industrial Relations Commission of New South Wales [2004] NSWCA 359 Minister for Immigration and Border Protection v Ly (2018) 263 FCR 512; [2018] FCAFC 123 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432 Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 96 ALJR 737 Poche v Poche [2020] NSWSC 835 Re Minister for Immigration; ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Riva NSW Pty Ltd v Mark A Fraser and Christopher P Clancy t/as Fraser Clancy Lawyers (No 4) [2018] NSWCA 327 Short v Crawley (No 45) [2013] NSWSC 1541 Singh (a pseudonym) v Patel (a pseudonym) [2023] SASC 164 Sita v Sita [2005] NSWSC 461 Stead v State Government Insurance (1986) 161 CLR 141; [1986] HCA 54 Szlazko v Travini [2004] NSWSC 610 Transport Accident Commission v Musura (Supreme Court (Victoria), Teague J, 27 January 1989, unrep) Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 Wilson v Porada; The Estate of Peter Wolfgang Porada, late of Pericoe (No. 2) [2017] NSWSC 1362 Wormald v Maradaca Pty Ltd [2021] NSWCA 307 Texts Cited: Legal Services Council, Legal Services Council Guideline and Direction - Costs Estimates, (11 March 2016) at 1 Category: Principal judgment Parties: A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers (Plaintiff) Adam Poche (Defendant) Representation: Counsel: Ms M Castle with Ms L Cooper-Hackman and Ms G Adams (Plaintiff) Ms K Hooper and Mr J Rogers (Defendant)

The litigation the subject of the costs appeal

The plaintiff is a legal firm which represented the defendant in proceedings that may be generally referred to as a "family provision claim" (to use the term adopted by the parties: defendant's submissions, paragraph 6). The defendant (hereafter "Mr Poche" or "Adam") sought provision from the estate of his mother ("Mrs Poche" or "the testatrix"), who had left Adam 15% ($129,379.50 at the time of probate) and given the bulk of her $2.3 million estate to his brother, Wayne Poche ("Wayne"). The estate assets consisted of the testatrix's 50% ownership of the home she lived in, plus superannuation and investments.
Adam Poche consulted the firm Yates Beaggi Lawyers shortly after his mother's death. A costs disclosure letter was sent on 22 August 2016 and a Summons filed on 28 October 2016 in the Equity Division of the Supreme Court of New South Wales. Adam Poche, citing health and financial problems, sought an increase from $125,000 to $600,000 "plus some costs" (Poche v Poche [2020] NSWSC 835 at [16]), which it was contended could be met without Wayne having to sell the property in which he was residing. Wayne also had health and financial problems.
The claim was thus an apparently straightforward one of two adult beneficiaries where one had received 15% of the estate, and sought an increase in his share. There was a complicating factor, in terms of a division of property by the testatrix in 2008. The testatrix's husband, Fred Poche, died in 2006, leaving the testatrix all his estate. He had set up an engineering business in which both Adam and Wayne worked for most of their adult lives and he jointly owned the family home with the testatrix. The brothers had long had a poor relationship and, in 2008, the testatrix, with the assistance of the company accountant, gave this business to Adam, as well as transferring 50% of the family home to Wayne, who lived with her there until her death. Although not an asset in the estate, the circumstances of this division of property was an issue in the family provision claim. Wayne claimed that he was owed compensation, while Adam claimed that he paid for these assets and that the business, which was of little value, had to be sold at a loss in 2017, leaving him with significant debts and current needs. The relevance of these events is that a great deal of time was expended on this issue by both sets of solicitors.
Although the principal claim may best be described as a family provision claim, both parties brought other claims for relief: 1. Adam challenged the validity of the testatrix's 2015 will and her earlier 2009 and 2010 wills on the basis of testamentary capacity and sought an order that probate be granted in respect of the deceased's 1982 will. These claims were included in Adam's statement of claim filed on 1 June 2017 and amended statement of claim filed on 26 October 2017. He abandoned them after a report from an expert geriatrician, dated 31 May 2018, was provided. 2. In his statement of claim filed 1 June 2017, Adam advanced a claim for payment by the estate of amounts equal to the financial contributions he asserts he made for the deceased's benefit during her lifetime in respect of rent, tax liabilities, telephone accounts, motor vehicle expenses, repayment of money secured by a mortgage and holiday costs. He abandoned this claim during oral closing submissions on the last day of the hearing. 3. Wayne (as defendant and cross-claimant) sought an order that Adam (as cross-defendant and plaintiff) pay to Wayne the sum of $1,500 per week from 1 August 2009 until Wayne's death together with interest. This cross-claim was also abandoned during oral closing submissions on the last day of the hearing.

(2020) 102 NSWLR 259

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