[1976] HCA 62
Cassegrain v CTK Engineering [2008] NSWSC 457
CDJ v VAJ (1998) 197 CLR 172
[1998] HCA 67
Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368
Craig v South Australia (1996) 184 CLR 163
[1995] HCA 59
Daley v Hughes (2014) 86 NSWLR 729
Source
Original judgment source is linked above.
Catchwords
[2015] FCAFC 123
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616[1976] HCA 62
Cassegrain v CTK Engineering [2008] NSWSC 457
CDJ v VAJ (1998) 197 CLR 172[1998] HCA 67
Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368
Craig v South Australia (1996) 184 CLR 163[1995] HCA 59
Daley v Hughes (2014) 86 NSWLR 729[2009] VSC 426
Hockey v Yelland (1984) 157 CLR 124[1984] HCA 72
Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123[2018] HCA 34
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1
Masson v Parsons (2019) 266 CLR 554[2019] HCA 21
Matson v Racing Appeals Tribunal [2001] VSC 264
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421[2019] HCA 3
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541[2018] HCA 4
R v Medical Appeal TribunalEx parte Gilmore [1957] 1 QB 574
R v Northumberland Compensation Appeal TribunalEx parte Shaw [1952] 1 KB 338
Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203VSCA 37
Rinehart v Rinehart [2020] NSWCA 221
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157
Judgment (13 paragraphs)
[1]
Background facts
Following the settlement of the applicants' claim to damages for professional negligence brought against the first respondent (Aon) in the Common Law Division, a consent order was made that the latter pay the former's costs of that proceeding. The claim, brought in relation to the placement of home owner's insurance, was for damages exceeding $3 million. It was settled for $1,375,000 plus costs.
The costs sought to be recovered by the applicants totalled $1,748,077, consisting of professional fees of $1,150,599 and disbursements of $597,477. The parties could not reach agreement as to the amount to be paid, and the applicants applied for assessment by a costs assessor under Legal Profession Act, ss 353, 357. The costs assessor determined the fair and reasonable amount of costs payable (s 367A) to be $1,262,598, being professional fees of $738,411 and disbursements of $524,187; and issued a certificate setting out that determination (s 368(1)). The $1,262,598 included an amount for the applicants' costs of the costs assessment process (cf ss 368(3) and 369). The assessor also allowed $17,480 for a filing fee. The most significant contributor to the difference between the professional fees allowed and those claimed came from reductions made to the hourly rates for time-based charges of the partner, solicitors, law clerks and paralegals who undertook the relevant work.
The assessor also determined that the costs of the costs assessment, including his costs, should be paid by Aon, and issued a certificate in respect of the determination of his costs of $21,040 (s 369(5)). The two certificates issued by the assessor were accompanied by a single statement of reasons (s 370). One of the applicants' arguments requires consideration of whether the assessment of their costs of the assessment process should have been undertaken under s 369 in exercise of the power in s 369(2A), and accordingly not subject to s 367A.
The applicants and Aon sought a review of the costs assessor's determinations (s 373). In undertaking its review, the panel was to do so "in the manner that a costs assessor would be required to determine an application for costs assessment" (s 375(2)). On 26 September 2018, the review panel set aside the assessor's determination and certificate under s 368 and affirmed his determination and certificate under s 369. In its substituted determination the review panel affirmed the lawyers' hourly rates identified by the assessor as fair and reasonable; assessed the applicants' fair and reasonable costs of prosecuting the proceedings at $1,099,851; separately assessed the applicants' "costs of negotiating costs, compiling the application and the bill, and reasonable costs of the assessment process" at $66,000 (a "global assessment"); and allowed only $13,000 for the filing fee. The panel also concluded that Aon should pay that filing fee and the applicants' costs of the costs assessment process. To give effect to those determinations the review panel issued two certificates, one in relation to its determination of the review (s 378(1)) and the other in respect of its costs of that review (s 379(5)). It also issued a single statement of its reasons for those determinations (s 380).
[2]
The grounds of review
In their summons invoking this Court's supervisory jurisdiction, the applicants contended that in dismissing their appeal on a question of law against the determination of the review panel, the primary judge "erred in misapplying the law" in five respects.
By the commencement of argument before this Court, the following three of those five grounds were pressed:
1 The [primary judge] erred in misapplying the law in relation to:
a. the review panel's obligation to give reasons for its determination in relation to the costs of the negotiation of costs and assessment process;
b. whether the review panel was entitled to take a global approach to the reduction of the costs of negotiation of costs and the assessment process in the review before it; [and]
c. whether the review panel gave adequate reasons for its determination that the hourly rate claimed was unreasonable[.]
Ground 1(b) was withdrawn in the course of argument, the applicants' counsel conceding that the review panel had the power to assess those costs on a "global" basis. However, the nature of that power remains relevant to the content of the obligation to give reasons for the determination of those costs. The remaining grounds of review are directed to two matters.
The first, raised by ground 1(c), is whether the primary judge erred in determining that the review panel had given adequate reasons for affirming the assessor's conclusion as to the hourly rates allowed for professional fees. Those costs were clearly within the subject matter of s 364 (and accordingly s 367A) as "costs payable as a result of an order made by a court", and properly the subject of the certificate issued by the assessor under s 368.
The second relates to the assessment of the applicants' professional costs and disbursements of the assessment process, being their solicitors' costs of negotiating the assessment and of conferences with a costs consultant (Mr Cordner), the costs of that consultant, and the costs incurred in the preparation of the costs assessment application (by DGT Costs Lawyers). In relation to these costs, the costs assessor addressed the amounts claimed by reference to the fee items and disbursements in the bill of costs prepared by the applicants. The review panel decided to make a "global" assessment of those costs rather than assess them on an item by item basis, and substituted for all of those fee items and disbursements a sum of $66,000 as the applicants' reasonable costs of the assessment process. As appears above, the applicants no longer challenge the primary judge's conclusion that the panel had power to make such an assessment. They maintain, however, by ground 1(a), that his Honour erred in law in holding that the panel gave adequate reasons for doing so.
[3]
No jurisdictional error
For this purpose the applicants describe the errors of the primary judge as the application of an incorrect test for the adequacy of reasons and the taking into account of an irrelevant consideration in determining the correct test for the adequacy of reasons, that consideration being that "intuitive" judgments are involved and that it would be impractical to require assessors to expose the reasoning and experience underlying them. They then contend, by reference to authorities concerned with the review of administrative decision-making, that those errors were jurisdictional.
As Basten JA observed in Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98 at [14], authorities dealing with administrative decisions may lack ready application to cases in which the decision under review is that of an inferior court. Indeed, in Craig v South Australia (1996) 184 CLR 163 at 179-180; [1995] HCA 59, the High Court unanimously rejected the argument that an inferior court would necessarily commit jurisdictional error by addressing a wrong issue or asking a wrong question, explaining that "the ordinary jurisdiction of a court of law encompasses authority" to identify issues and to formulate and decide "questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine". Their Honours went on:
Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.
Craig may have been to some extent qualified by the plurality judgment in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 573-575; [2010] HCA 1, which cautioned against reliance on the conclusory observation that inferior courts generally "have authority to decide questions of law 'authoritatively'" and suggested that Craig does not provide "a rigid taxonomy of jurisdictional error" by an inferior court. But the position remains that an erroneous decision by an inferior court on a question of law (or, perhaps a fortiori, erroneous reliance on an irrelevant consideration in deciding such a question) is not presumptively jurisdictional. The question is whether any such error caused the court to misapprehend or disregard the nature or limits of its functions or powers, ascertained as a matter of statutory construction: Kirk at 573-574 [72]; and that constructional exercise must take account of the contextual fact that one of the ordinary functions of a court is to decide questions of law. In this case that function is explicit.
[4]
The extent of the record
The applicants tendered, and sought to establish error by reference to, an extensive collection of material: the reasons of the primary judge; the summons commencing the s 384 appeal; the s 378 certificate and the reasons of the review panel; the ss 368 and 369 certificates and the reasons of the costs assessor; and the initial application for a costs assessment. They did so on two bases; namely that those materials were incorporated by reference into the reasons of the District Court, and accordingly were part of that "record" for the purpose of determining whether there was any error of law on the face of the record; and that the errors they sought to establish were jurisdictional in nature, so that any factual inquiry as to their existence was not limited to that record. This second basis for reliance on the tendered material does not arise in this case because there are no factual issues relevant to the issue of jurisdictional error which engage it. Notwithstanding that the applicants do not rely on all of these materials as forming part of the record (other than by incorporation), whether they do is discussed below, and separately in the judgments of White and Brereton JJA. As White JA observes, however that question is determined, the primary judge did not commit any error of law.
"Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication": Hockey v Yelland (1984) 157 CLR 124 at 143; [1984] HCA 72 (Wilson J), approved in Craig at 182; and see Folbigg at [9]. On that basis, the record as extended by s 69(4) at least comprises the applicants' amended summons commencing their appeal to the District Court and the reasons and orders of the primary judge.
As the proceedings in the District Court were appellate, the record also includes the certificate of the review panel setting out its determination, as a document which "gave the [District Court] its jurisdiction" under s 384: see R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 352 (Denning LJ), citing Anonymous (1697) 2 Salk 479; 91 ER 412, in which an order of Quarter Sessions exercising appellate jurisdiction was quashed "because it did not appear [from the record] that it came before them by way of appeal, without which they have no jurisdiction". Although the subject of an appeal under s 384 is in terms a "decision", there can be no "decision" separate from a final determination: Daley v Hughes (2014) 86 NSWLR 729; [2014] NSWCA 268.
[5]
Whether any error of law in determining that adequate reasons given for the hourly rates allowed (ground 1(c))
The applicants' first ground of appeal to the District Court was that the review panel had failed to give adequate reasons for affirming the assessor's conclusion as to the hourly rates to allow for work by the applicants' solicitors. (A preliminary issue, whether in relation to this ground there had been a "decision... as to a matter of law" against which an appeal could be brought under s 384, was resolved on the basis that the panel must implicitly have decided its reasons were adequate. The correctness of that conclusion is not challenged and does not arise for determination.) The primary judge rejected that ground, holding that the panel had correctly understood the requirement of reasons and that adequate reasons had been given.
In terms, ground 1(c) would extend to two kinds of error by the primary judge: a misstatement of the law relating to the adequacy of reasons for a costs assessment and an erroneous conclusion that the review panel's reasons were adequate. As to the former, although the applicants contend that his Honour misstated the applicable law, that contention is only seriously pressed in relation to his observation that the selection of a fair and reasonable hourly rate involves an intuitive judgment and is not "necessarily reducible to simple articulation of everything that a costs assessor has taken into account" (see at [73], [81]). Read in the context of his preceding observations as to assessors' extensive experience in assessing costs, and therefore hourly rates, that observation did not involve any error or detract from his Honour's statement of the relevant principles.
Aon accepted in argument, no doubt correctly, that an error of the latter kind would also be or involve an error of law. Accordingly, the principal question raised by ground 1(c) is whether it appears from the face of his reasons that the primary judge's conclusion, that the panel gave adequate reasons for affirming the hourly rates selected by the assessor, was wrong.
The reasons of the review panel were described by the primary judge at [25]-[28] and [85]-[88]. In brief, that description was as follows. The panel held that adequate reasons for the selection of an hourly rate will be given provided that the considerations taken into account in choosing that rate are identified, and rejected the submission that the rate charged and claimed is to be treated as the starting point, or as presumptively fair and reasonable, when selecting a fair and reasonable hourly rate. The panel approved the approach of the assessor, including his treatment of proportionality between costs incurred and the outcome of the Supreme Court proceedings, and then, after conducting its own reassessment, affirmed the rates he had selected. In undertaking that assessment, the panel stated that it had regard to the position and experience of each person who worked on the matter, the type of work done and by whom it was done, and the involvement of counsel, as well as to the Supreme Court file (as, it would seem, evidence of the nature and outcome of the proceedings) and the costs assessment rules committee guidelines dated 16 March 2016 (CARC guidelines). It is evident that in its reasons the panel accepted the findings of the cost assessor as to the complexity of the Supreme Court proceedings and the fact that the applicants were put to proof on every issue (see at [76], [88]).
[6]
The cost assessment task of the review panel
The review panel was required to determine "the fair and reasonable amount" of costs payable as a result of the order of the Supreme Court: s 367A. In contrast to s 367, which deals with the assessment of bills of costs provided by solicitors to clients, s 367A did not require the costs assessor or panel first to determine that the costs claimed were unfair or unreasonable before it could substitute the amount it perceived to be fair and reasonable.
Section 364, which governed the conduct of the assessment, relevantly provides:
364 Assessment of costs - costs ordered by court or tribunal
(1) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider:
(a) whether or not it was reasonable to carry out the work to which the costs relate, and
(b) whether or not the work was carried out in a reasonable manner, and
(c) what is a fair and reasonable amount of costs for the work concerned.
(2) In considering what is a fair and reasonable amount of legal costs, a costs assessor may have regard to any or all of the following matters:
(a) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(b) the complexity, novelty or difficulty of the matter,
(c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,
(d) the place where and circumstances in which the legal services were provided,
(e) the time within which the work was required to be done,
(f) the outcome of the matter.
...
While sub-ss (1)(a) and (b) require consideration of the reasonableness of the work actually performed, and the manner in which that work was actually carried out, sub-s (1)(c) requires consideration of "what is a fair and reasonable amount of costs" for that work. The selection of hourly rates falls squarely within the province of the latter subsection. It is true that the questions raised by those three subsections are not wholly separable: whether work was carried out in a reasonable manner may relate (for instance) to what can fairly and reasonably be charged for that work. But the position remains that the statute contains no indication that the rates claimed by an applicant for costs assessment are to be awarded unless there is a positive finding that those rates are unfair or unreasonable. Nor does it follow by implication from the conclusion that different rates are fair and reasonable that such a finding was made.
[7]
The requirement of reasons
Section 380, which requires a review panel to provide "a statement of the reasons for the panel's determination", gives express force to the requirement of reasons recognised in Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (1998) 43 NSWLR 729 as implicit in the conferral of rights of appeal from a determination. A panel is also obliged by s 380 to provide the "supplementary information" prescribed by Legal Profession Regulations 2005 (NSW), reg 134, but the applicants do not suggest that the regulation assists their argument on this ground. Rather, they emphasise that the touchstone of the adequacy of reasons is a disappointed party having a "real and not largely illusory right of appeal": see Frumar v Owners of Strata Plan 36957 (2006) 67 NSWLR 321 at 331; [2006] NSWCA 278 at [44]. So much is well established, but consideration of the applicants' rights of appeal under the Legal Profession Act does not assist their case.
An appeal in respect of matters of fact, such as the amount of time which might reasonably have been spent carrying out particular work, and the hourly rates which might fairly and reasonably have been charged to do so, can only be brought with leave, under s 385. At the relevant time that section provided:
385 Appeal against decision of costs assessor by leave
(1) A party to an application for a costs assessment relating to a bill may, in accordance with the rules of the District Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor.
(2) A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor.
(3) The District Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal.
(4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
(5) After deciding the questions the subject of the appeal, the District Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor.
[8]
Whether any error of law in determining that adequate reasons given for "global approach" to costs of the costs assessment (ground 1(a))
As was explained above in dealing with ground (1)(c), this Court can only identify error in the primary judge's conclusion that the panel gave adequate reasons for its "global approach" by reference to his Honour's reasons. To understand what was meant by "global approach", which is not a term of art, it is best to begin with his Honour's explanation of the panel's treatment of the costs of the costs assessment process (at [30]-[34] and [107]-[124]).
The review applications before the panel raised questions as to whether Aon should pay the applicants' professional costs of dealing with the assessment process and how to quantify those costs. The panel determined, referring among other things to the applicants' offers to settle the costs dispute, that Aon should pay the applicants' reasonable costs of the assessment process. No issue was taken about that conclusion before the primary judge, and none is taken here.
The costs assessor had addressed the applicants' professional costs of the costs assessment process by reference to the fee items (costs of partner's time) and disbursements on the bill of costs, and had "significantly discounted" disbursements made to a costs consultant, Mr Cordner, and to DGT Costs Lawyers, who prepared the initial application for costs assessment: see at [16]-[17]. Having declined to proceed by reference to the fee items and disbursements relating to this subject, the review panel assessed for itself "the costs of negotiating costs and the reasonable costs of dealing with the assessment process in a global fashion": at [32].
In doing so the panel had regard to the fact that "some" of the work relating to the costs assessment process "was not done in a reasonable manner". But an amount of $66,000 was substituted for all of the relevant fee items and disbursements. (The primary judge states in terms that the panel decided to "reduce" costs and to disallow "some of the items" on the bill. Unless those statements are understood as I have indicated, his Honour's description of the method adopted by the panel would make no sense.) That amount was "global" in the sense that it was intended to reflect, without particularisation or reference to the items in the bill, the applicants' reasonable costs of the entire costs assessment process. It was arrived at after the panel had considered two methodologies for making a "global" assessment of those costs: at [32]-[33].
[9]
The applicants' position
Having conceded that the panel had power to adopt the approach it did, the applicants contend that approach is "prone to obscure" what adequate reasons must make clear. If that concession is understood to mean only that it is permissible for an assessor or review panel to come "to its own view of the work reasonable to be carried out" "independently of the itemisation in the bill of costs", there is no reason to doubt it: see Frumar at [60]-[62]. But to the extent that the applicants' complaint about the panel's reasons is that the reasons suggest the panel went about the assessment of the reasonable costs of the assessment process in an insufficiently particularised way, the question of the adequacy of the reasons is not readily divorced from the question of power. Put another way, it is not possible to determine what the panel's reasons had to explain without considering the exercise of power they were the reasons for.
In any event, the applicants' complaint is essentially that it is not possible from the panel's reasons to discern why its disbursements to Mr Cordner and DGT Costs Lawyers were disallowed entirely. Nor is it discernible why an amount equal to 10% of the fees allowed was taken as representing the applicants' reasonable costs of the assessment process. To the extent that the panel relied on its alternative approach, which involved quantifying hours and rates and produced a roughly equal sum, it gave no explanation of what work it was reasonable to carry out and how that work related to the various sets of costs agglomerated under the label "costs of the costs assessment", including the costs of negotiating costs, of preparing the bill and the application, and of dealing with the process once commenced.
Reference is also made to reg 134(1), which relevantly provides:
134 Statement of reasons - section 380 of the Act
(1) A statement of reasons for a panel's determination that is required by section 380 of the Act to accompany a certificate issued under section 378 of the Act must be accompanied by the following information:
(a) the total amount of costs for providing legal services determined to be fair and reasonable,
(b) the total amount of disbursements determined to be fair and reasonable,
...
The argument based on the regulation is straightforward. The panel was required to state the total amount of "costs for providing legal services" determined to be fair and reasonable, as well as the total amount of "disbursements", which presumably is to be understood as those relating to the provision of legal services, also determined to be fair and reasonable. The panel's reasons state that "some" of the work performed for the applicants in relation to the costs assessment process had not been performed reasonably, referring presumably to either fee items or disbursements, or both. The panel in fact substituted a single amount for all of the relevant fee items and disbursements. It is said to follow that the statement of reasons did not satisfy reg 134(1), because it is not possible to determine what were the total amounts of costs and disbursements "determined to be fair and reasonable".
[10]
The preliminary (and not short) issue of power
There is a controversy as to whether professional costs incurred by an applicant for costs assessment in dealing with the assessment process are to be included in the certificate issued by an assessor under s 368 as an aspect of the "costs payable as a result of an order made by a court or tribunal" or in the certificate issued under s 369 as "costs of a costs assessment", as that term is defined in s 369(10). (As appears at the outset of these reasons, the assessor dealt with these costs in the certificate issued under s 368, and his costs as costs assessor in the certificate issued under s 369.)
As explained in [15] above, the controversy is not irrelevant. Under s 369(2A), a costs assessor (or a review panel exercising the same powers as an assessor) has an in terms unfettered discretion in relation to "by whom and to what extent" the costs of a costs assessment are to be paid; whereas the assessment of the costs to which s 364 applies - legal costs payable as a result of an order made by a court - must be an assessment of "the fair and reasonable amount of those costs" (s 367A).
Section 368(1) requires that on making a determination of the costs payable as a result of a court order, the costs assessor issue a certificate setting out that determination. Section 368(3) provides that "any such certificate may not set out the costs of the costs assessment within the meaning of s 369".
Section 369 relevantly provides:
369 Costs of costs assessment
(1) This section applies to the costs of a costs assessment in relation to:
(a) costs to which section 317 (Effect of failure to disclose) applies, and
(b) costs to which section 364 (Assessment of costs - costs ordered by court or tribunal) applies, and
(c) costs that on assessment are reduced by 15% or more.
(2) A costs assessor is, subject to this section, to determine the costs of a costs assessment to which this section applies.
(2A) Subject to any order of or the rules of the relevant court or tribunal, the costs assessor may determine by whom and to what extent the costs of an assessment referred to in section 364 (Assessment of costs - costs ordered by court or tribunal) are payable and include the determination in the certificate issued under this section in relation to the assessment.
(3) The costs of a costs assessment to which this section applies are payable:
...
(b) for a costs assessment in relation to costs to which section 364 (Assessment of costs - costs ordered by court or tribunal) applies - by such persons, and to such extent, as may be determined by the costs assessor, or
...
(4) The costs assessor may refer to the Supreme Court any special circumstances relating to a costs assessment and the Court may make any order it thinks fit concerning the costs of the costs assessment.
(5) On making a determination, a costs assessor may issue and forward to each party and the Manager, Costs Assessment a certificate that sets out the costs of the costs assessment.
...
(7) The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs.
(8) The costs of the costs assessor are to be paid to the Manager, Costs Assessment.
(9) The Manager, Costs Assessment may take action to recover the costs of a costs assessor or Manager, Costs Assessment.
(10) In this section:
costs of the costs assessment includes the costs incurred by the costs assessor or the Manager, Costs Assessment in the course of a costs assessment under this Division, and also includes the costs related to the remuneration of the costs assessor.
(emphasis added)
[11]
The adequacy of the reasons given for the "global approach"
This issue can now be dealt with shortly. The requirement in s 380 that a review panel provide a statement of reasons for its determination applies regardless of whether the certificate under review was issued under s 368 or s 369, just as s 370, which deals with the reasons of an assessor, applies in terms to certificates issued under either provision. But a determination under s 369(2A) of by whom and to what extent the costs of a costs assessment are to be paid is not a determination of the fair and reasonable costs payable as a result of a court order, and need not be carried out in accordance with s 364.
Had the review panel been required to determine the applicants' fair and reasonable costs of the costs assessment process by reference to the criteria set out in s 364(1), I would have been inclined to accept the applicants' submissions. The statement that "some" of the work done by the applicants' solicitors was not reasonably performed did not identify "what work in the items in the bill of costs the panel thought was unreasonably carried out" (Frumar at [60]), in circumstances where the "global" sum allowed was in substitution for all of the fee items and disbursements: cf primary judgment at [118]-[119]. It is true that the panel had the power to determine "what work it thought was reasonable work to be carried out independently of the itemisation in the bill of costs", but it appears from the record that the panel's approach did not involve any explanation of what that work was and, critically, left wholly mysterious "its relationship to the work in the items in the bill of costs": cf Frumar at [60].
Where applicable, s 364(1) requires that an assessor or panel consider "whether or not it was reasonable to carry out the work to which the costs relate" and "whether or not the work was carried out in a reasonable manner" (emphasis added). The statement of the total costs which might reasonably have been incurred, or the total number of hours of work which might reasonably have been performed at particular rates, did not provide any explanation of how the panel went about the exercise which, ex hypothesi, it was required to undertake.
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.
[12]
Conclusion
Grounds 1(a) and (c) do not identify any error of law in the decision of the primary judge that would justify the relief sought. None of the remaining grounds is pressed.
The applicants' summons filed 3 August 2020 should be dismissed with costs.
WHITE JA: I agree with the orders proposed by Meagher JA and with his reasons for concluding that the primary judge made no jurisdictional error. I also agree with his Honour's conclusion that the primary judge's decision is not liable to be set aside on the ground of error of law on the face of the record. I take a different view as to what constitutes the record. But however that issue is determined, the primary judge did not commit an error of law.
In Hockey v Yelland (1984) 157 CLR 124 at 143; [1984] HCA 72, Wilson J said:
"Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication. It will not include the evidence or any reasons that may be given for the decision unless the determination itself incorporates them by reference."
His Honour prefaced this comment by saying that there is no fixed rule which requires the same answer to be given in every case as to what constitutes the record and it is for the court undertaking the review to determine what constitutes the record in the particular case, without countenancing a roving commission through the materials in a case in an attempt to discover an error of law (at 142).
Wende v Horwarth (NSW) Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 was an application for judicial review of a decision of a judge of the District Court dismissing an appeal from a determination of a review panel dismissing an application to review a determination of a costs assessor. Barrett JA said (at [127]) that:
"The "record" includes the District Court's reasons: Supreme Court Act, s 69(4). It also includes the District Court's orders and the documents initiating and defining the proceedings in the court, but not written evidence (such as that in affidavits) or the transcript of the proceedings (oral evidence and submissions): Craig v South Australia (above) at 180-2; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at 577-8."
[13]
Endnotes
(1984) 157 CLR 124 at 142-143 (Wilson J); [1984] HCA 72 ("Hockey"); approved in Craig v South Australia (1995) 184 CLR 163 at 182 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58 ("Craig"); see also Folbigg v Attorney General of New South Wales [2021] NSWCA 44 at [9] (Basten, Leeming and Brereton JJA).
[1952] 1 KB 338 at 352 (Denning LJ); 1 All ER 122.
See Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157 at 163-164 [29] (Basten JA; Bathurst CJ and Beazley P, Macfarlan JA and Leeming JA agreeing); [2016] NSWCA 379.
Hockey at 143 (Wilson J).
Hockey at 131 (Gibbs CJ; Mason J, Brennan J and Dawson J agreeing).
Returned & Services League at 209 [12] (Phillips JA; Charles JA and Buchanan JA agreeing).
Returned & Services League at 226-227 [63]-[64] (Phillips JA; Charles JA and Buchanan JA agreeing). See also President Torney v Victoria Legal Aid [2010] VSC 631 at [4] (Cavanough J).
[2001] VSC 264 at [85]-[87] (Gillard J).
(2009) 26 VR 172; [2009] VSC 426 ("Grocon").
Grocon at [284]-[285] (Vickery J) (note that these paragraphs are not extracted in the Victorian Reports).
Grocon at 180 [31] (Vickery J).
See Grocon at 186 [52], 206 [125], 209 [138]-[139], 214 [159] (Vickery J), citing Building and Construction Act, ss 22(5)(a), 23(2)(c)-(d).
(2014) 66 MVR 152 at 160 [27] (Leeming JA; Tobias AJA agreeing); [2014] NSWCA 22.
Kindred Industries at 343 [94] (Dowsett, Tracey and Katzmann JJ).
Kindred Industries at 343 [96] (Dowsett, Tracey and Katzmann JJ).
Kindred Industries at 343 [96] (Dowsett, Tracey and Katzmann JJ).
Kindred Industries at 343 [95]-[96] (Dowsett, Tracey and Katzmann JJ). See also Duggan v Metropolitan Fire and Emergency Services Board (2017) 251 FCR 1 at 17-20 [64]-[74] (Tracey, Wigney and O'Callaghan JJ); [2017] FCAFC 112; Ittyerah v Coles Supermarkets (Australia) Pty Ltd (No 2) [2021] FCA 412 at [43] (Abraham J); Merhi v Commonwealth [2021] FCA 181 at [47] (Katzmann J); Menzies v Fair Work Commission (2020) 293 IR 301 at 308-309 [27] (Katzmann J); [2020] FCA 36.
21
Matson v Racing Appeals Tribunal [2001] VSC 264
Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189
Pham v NRMA Insurance Ltd [2014] NSWCA 22
President Torney v Victoria Legal Aid [2010] VSC 631
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574
R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338
Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission [1999] 2 VR 203; VSCA 37
Rinehart v Rinehart [2020] NSWCA 221
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379
Traut v Faustmann Bros Pty Ltd (1983) 48 ALR 313
Wany v DPP [2020] NSWCA 318
Wende v Horwath (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416
Wentworth v Rogers [2002] NSWSC 709
Z v Mental Health Review Tribunal [2015] NSWCA 373
Category: Principal judgment
Parties: Marshall Ahern (First Applicant)
Estelle Therese Clancy (Second Applicant)
Aon Risk Services Australia Ltd (Respondent)
Representation: Counsel:
G A Sirtes SC and B May
J A C Potts SC and J McDonald
Solicitors:
Clancy Lawyers (Applicants)
James Tuite & Associates (Respondent)
File Number(s): 2020/226639
Publication restriction: Nil
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Civil
Citation: [2020] NSWDC 159
Date of Decision: 1 May 2020
Before: Abadee DCJ
File Number(s): 2018/390039
As also appears above, there is a question whether these costs fell to be assessed as costs payable as a result of a court order, and accordingly under s 364, or under s 369 as part of the costs of the costs assessment. Whereas costs assessed under s 364 must be determined by reference to the "fair and reasonable amount of those costs" (s 367A), the costs assessor or review panel may determine, subject to any order of the relevant court or tribunal to the contrary, "by whom and to what extent" the costs of the costs assessment are payable (s 369(2A)).
The applicants contend that each of the errors of law relied on involved or constituted a jurisdictional error. That contention is dealt with immediately below. These reasons then address the material relied on as constituting the "record" for the purpose of considering the grounds for relief understood as asserting errors of law on the face of the record. Those two grounds are then separately addressed. Ground 1(c), which received significantly more attention in oral argument, is dealt with first.
The principal function conferred on the District Court by Legal Profession Act, s 384 is to decide "the question the subject of the appeal" (sub-s (2)), namely the correctness of any decision of a costs assessor against which the appeal is brought (sub-s (1)) "as to a matter of law". That is to say, here the task of the primary judge was to determine, as a matter of law, whether the reasons of the review panel were adequate. The correct test for the adequacy of reasons, and the adequacy of the reasons of the review panel judged against it, were matters his Honour was expressly authorised to decide. The application of an incorrect test could not have been a jurisdictional error.
It also follows that even if the impracticality of requiring extensive reasons for intuitive judgments based on past experience was irrelevant to the proper construction of ss 370 and 380 (the provisions requiring the giving of reasons), erroneous reliance on that consideration was not jurisdictional. How the primary judge's authority under s 384 to determine the proper construction of those provisions could have been impliedly conditioned by a requirement that his Honour not have regard to such matters was neither apparent nor explained.
There is a question whether the reasons of the review panel form part of the record for the same reason, in effect as part of the s 378 certificate. In Pham v NRMA Insurance Ltd [2014] NSWCA 22 at [27], Leeming JA (with whom Tobias AJA agreed) held that the certificate of an assessor of a motor accidents claim under Motor Accidents Compensation Act 1999 (NSW), s 94 was to be treated as a "speaking order" incorporating the reasons for which it was made, which the assessor was required by s 94(5) to "attach to" the certificate. The correctness of Pham was not contested in Mulcahy v NRMA Insurance Ltd [2018] NSWCA 189.
This narrow question as to whether the review panel's reasons formed part of the record was not addressed in argument. In my view it should be answered in the negative. The language of s 380, which required the panel to ensure that the s 378 certificate was issued to the parties "accompanied by" their reasons, is distinguishable from s 94(5): the basis of Leeming JA's conclusion in Pham was the requirement of physical attachment of the reasons to the certificate. A s 378 certificate is closely analogous to a formal order: see s 378(3). It would be inconsistent with Craig, addressed in more detail below, for the mere requirement that reasons be given for the determination recorded in the certificate to bring about the incorporation of those reasons as forming part of the certificate.
In my view the remaining documents referred to in [22] above will not form part of the record unless incorporated by reference and, as has already been noted, the applicants did not contend otherwise. The leading cases on incorporation into the record are largely concerned with the incorporation of reasons, transcript or other documents into the common law record through references in formal orders. Little has been said about the incorporation of documents into reasons as part of the statutorily extended record.
It is appropriate to start with the statute. Section 69 of the Supreme Court Act relevantly provides:
(3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings -
(a) jurisdiction to quash the ultimate determination of the court or tribunal, and
...
(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.
Section 69(3) confirms that the jurisdiction to make an order in the nature of certiorari includes certiorari for error of law on the face of the record. It takes for granted (and adopts) the common law understanding of the jurisdiction to grant certiorari for error of law and its restriction to errors apparent on the face of the record, including, obviously enough, the extent of the record and the principles governing incorporation by reference thereinto. Section 69(4) provides that "the face of the record", which term is otherwise governed by that common law understanding, "includes" the reasons expressed by a court or tribunal for its ultimate determination.
In that context there does not appear to be any good reason why the principles governing incorporation by reference into formal orders and reasons should differ. The question was left open by White JA (Beazley P and Meagher JA agreeing) in Mulcahy at [36], albeit in that case the reasons formed part of the record because of their attachment to the certificate of a claims assessor, not through s 69(4). Under s 69(4), three possibilities present themselves. The first, which is practically undesirable and not required by the language of s 69, is to deny any possibility of incorporation into the record by reference in reasons on the basis that the express inclusion of "reasons" goes no further than its terms. The second, which in my view is the preferable approach, is to conclude that the principles which govern incorporation into the common law record by reference in formal orders are to apply equally to reasons as part of the statutorily extended record. A third possibility is that incorporation into reasons is governed by different principles. What those principles are, and their foundation in the language of the statute, is not apparent.
In Craig at 182, the High Court held that "a merely introductory or incidental reference" to reasons in formal orders does not have "the consequence that the whole or part of the reasons" becomes part of the record. What is required for incorporation - of any document, not just reasons - is a reference which makes the document, or the relevant part thereof, an "integral part" of the formal order:
If, for example, the formal order incorporates undertakings given by a party "as set out in" a particular designated document or is said to be made "in terms of proposed orders set out in the reasons for judgment", the order and the record will incorporate only those parts of the particular document or the reasons for judgment which set out, qualify or otherwise affect the content of those undertakings or proposed orders. Conversely, a merely introductory or incidental reference will not suffice to incorporate, in either the formal order or the record, reasons given for making the formal order which do not in fact constitute part of it. Thus, for example, an introductory remark such as the phrase "for the reasons given" or the word "accordingly" will not, of itself, have the effect of incorporating the whole or any part of the reasons for decision in either the formal order or "the record".
(emphasis added)
The court disapproved (at 182 fn 81) the suggestion of Denning LJ in R v Medical Appeal Tribunal; Ex parte Gilmore [1957] 1 QB 574 that an adjudication should be "taken to incorporate every document referred to in it", the correctness of which Gibbs CJ was prepared to assume, but not determine, in Hockey v Yelland at 131. An incidental reference, even if it is "a precise reference to a specific document", will not suffice. The examples given in Craig suggest that it is necessary for the reference to pick up or adopt part of the document referred to as an "integral part" of the record in the sense that the record will be incomplete, or obviously deficient, without it. The result in Mulcahy v NRMA Insurance Ltd is consistent with that view: see at [31], [36]-[37].
Whether a reference is introductory or merely incidental or, conversely, intended to incorporate its subject-matter, will not always be an easy question.
The primary judgment is replete with references to the reasons of the review panel and the costs assessor. The following passages, at [63] and [86] (with the relevant references in italics), are illustrative:
Thirdly, even if the statement of reason of the Review Panel was to be viewed in isolation, it is evident that the Panel provided adequate reasons. It referred (at paragraph 12.3 of the Panel's Review Decision), with approval, to the reasons given by the costs assessor (paragraphs [4.1]-[4.2] in the assessor's reasons). Particular reference was made here to the criteria that [are] found in s 364(2)(b) and (f) of the LP Act, as well as the quantum of costs, as against the value of the subject proceeding, the conduct of the parties and the importance of the proceedings to the parties.
...
First, it rejected the challenge to the substance of the assessor's reasons, contained in the plaintiffs' ground 2 of its application for review. In doing so, it endorsed the costs assessor's application of the concept of proportionality to deciding the hourly rate. This is apparent at paragraphs 12.1 - 12.9 of its reasons. I do not infer that the Review Panel was intending to say that that reasoning as to the proper approach to generally conducting a costs assessment was not also relevant to the Review Panel's more specific task of reviewing the selection of the hourly rate: as indicated, the costs assessor (at paragraph 5.2 of his reasons) expressly linked his approach to selection of the hourly rate to his general approach to the assessment of costs (outlined at paragraphs 4.1-4.2). It also rejected the proposition that the charge out rate should be treated as a starting point or should be presumed to be correct; or, that express justification was needed if it was to be departed from.
(emphasis added)
None of those references is given in substitution for, or in order to qualify, the primary judge's explanation of the content, and analysis of the adequacy, of the reasons of the panel and the assessor. The references assist the reader in locating the relevant passages of those reasons and considering the correctness of their treatment by the primary judge. But that does not make those passages an integral part of the primary judgment, which is intelligible and facially complete when read in isolation. The brief references to the certificates issued by the assessor are in the same position.
It may seem curious that documents to which regard might be had to understand the reasons for judgment do not necessarily form part of the extended record for the purpose of determining whether those reasons evidence an error of law. But it is not new for incorporation into the record to require more than interpretive relevance: reasons for decision do not form part of the record at common law even though orders are to be construed, at least when (and perhaps whether or not) ambiguous, by reference to the reasons for their making: see Rinehart v Rinehart [2020] NSWCA 221 at [83].
The applicants' argument is that this explanation does not provide any reason for the particular rates selected: a process of reasoning would need not merely to set out the various considerations relevant to the assessment but to relate those considerations, which did not all point in the same direction, to the rates selected, explaining which were given greater weight, and why. They also submit, which fact is said to make the inadequacy of the reasons more readily apparent, that they were entitled to have their costs calculated at the rates charged and claimed unless those rates were not fair and reasonable. Absent better reasons for the conclusion that those rates were not fair and reasonable, their right of appeal on the merits under s 385 is, they submit, largely illusory.
In determining the fair and reasonable amount of costs payable, the review panel had to identify the rates that it considered were fair and reasonable. In doing so it was entitled to have regard to a variety of considerations, including those set out in s 364(2). The panel might have concluded, as a factual matter, that the rates claimed and charged, which were within the ranges set out in the CARC guidelines, provided some evidence of fair and reasonable rates for the work done. There would have been nothing questionable about allowing the rates claimed. But the panel was not required to provide a justification for any discrepancy between those rates and the rates it regarded as fair and reasonable.
It is convenient at this point to note that well after the hearing, the applicants raised an issue as to the effect of amendments made to the Legal Profession Act in 2008, which they suggested had not been appreciated in oral argument. The effect of those amendments was relevantly to provide that an appeal under s 384(1) is to be brought to the District Court, rather than to the Supreme Court as earlier provided. The applicants' right under s 385(2) is to seek leave to appeal to the Supreme Court, as the court or tribunal which made the relevant costs order. The applicants' rights of appeal under ss 384(1) and 385(2) can accordingly only be exercised in different courts. However, nothing turns on this point. The question remains whether the review panel's reasons were sufficient to give the applicants a real and not illusory right to seek leave to appeal in relation to the hourly rates allowed by the review panel. The applicants also submit that not having commenced an appeal to the District Court under s 384 would tell against the Supreme Court granting leave to appeal under s 385. The relevance of this submission to the issues before the Court is not wholly apparent. It suffices to note that it must be wrong, at least in relation to issues which could not be the subject of an appeal under s 384 - such as the lawyers' hourly rates allowed by the review panel as fair and reasonable.
Still later, after the respondent had replied to the applicants' submissions on this issue, the applicants' solicitor by email to the Registrar of 9 June 2021, requested a direction permitting a response to the respondent's submissions, stating "The response would be limited to less than 2 pages". In a follow-up email of 10 June 2021, the applicants' solicitor stated "The applicant has prepared 2 pages of short reply submissions and awaits a direction in response to its email below as to whether this should be forwarded." The Registrar responded, on 15 July 2021, "The Court will receive your proposed reply." On 31 July 2021, the applicants lodged a document comprising a submission of 8 pages, annexing 9 pages of what were further submissions, much of which could not properly be described as in reply. This document greatly exceeded the leave which had been sought and granted, and as it would have been unfair to permit it to be relied on, the Court has not had regard to it.
If leave to appeal is granted, the appeal is to be by way of a "new hearing" - the English translation of a hearing "de novo". It is not controversial that "rehearing" and "de novo" do not identify categories with "immutable characteristics or inflexible boundaries": Traut v Faustmann Bros Pty Ltd (1983) 48 ALR 313 at 322 (Lockhart J). The character of an appeal depends in each case on the construction of the relevant statute (CDJ v VAJ (1998) 197 CLR 172 at 197; [1998] HCA 67); and in some cases the proper conclusion will be, for example, that an appeal described as "by way of a rehearing" in fact involves a hearing de novo: see, for example, in relation to the appeal against sentence provided for by Crimes (Appeal and Review) Act 2001 (NSW), s 17, Wany v DPP [2020] NSWCA 318 at [22]-[28]. Equally, however, it is to be remembered that the "ordinary incidents" of appeals by way of rehearing (and likewise by way of a hearing de novo) are well understood and may "be identified with relative precision": Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [29] (Gageler J). The label chosen by the statute is not presumptively meaningless.
In other statutes, language identical to that of s 385(4) has been understood to connote a hearing de novo involving the determination afresh of the relevant issues: see Z v Mental Health Review Tribunal [2015] NSWCA 373 at [7], [28] (Basten JA), [123] (Bergin CJ in Eq), [174] (Emmett AJA); Ghosh v Medical Council of New South Wales (2020) 102 NSWLR 303; [2020] NSWCA 122 at [7]-[9] (Brereton JA, Simpson AJA agreeing), [129] (Emmett AJA). Subject to the consideration addressed in the following paragraph, there is no reason not to take the description of the appeal under s 385(4) as involving a new hearing at face value. That additional or substitute evidence may be given as of right rather than with leave is a well-recognised incident of a hearing de novo, and inconsistent with the appeal being an appeal for the correction of error. So too is the related fact that the Legal Profession Act does not require the materials provided in support of a costs assessment application to be compliant with the rules of evidence so as to be admissible on the appeal: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621 (Mason J); [1976] HCA 62.
However, the appeal is not, or at least need not be, a de novo review of the entire determination and all of the matters raised thereby: contra Wentworth v Rogers [2002] NSWSC 709 at [58] (Barrett J), overturned on appeal on an unrelated point. Sub-s (5) presumes that there will be "questions" that are "the subject of the appeal" and provides that "[a]fter deciding" those questions (afresh) the appellate court may make the determination which it considers should have been made by the assessor or review panel. That is only consistent with the position being that the leave to appeal sought or granted may be restricted to particular questions of fact, or mixed questions of fact and law, with the other conclusions of the assessor or review panel left undisturbed and taken for granted in the redetermination by the appellate court or tribunal. The possibility of a confined merits appeal is consistent with the requirement in ss 370 and 380 that reasons be given, which permits the identification of discrete questions, and the relative expertise of costs assessors: it cannot realistically be expected that judges will be in as good a position as an assessor to determine the entirety of an application.
If the applicants sought and were granted leave to appeal under s 385 in relation to the hourly rates selected by the panel, both the conclusions and reasons of the panel with respect to that subject would be irrelevant: for the judge hearing the appeal to require that error be shown in the reasons of the panel would be itself a jurisdictional error. What the applicants required from the panel were not, strictly speaking, reasons sufficient to give them a real right of appeal, but reasons sufficient to allow them to decide whether to seek leave to appeal, and the appellate judge to decide whether to grant it. Giles JA explained as much in Frumar at [44]:
The reasons must be such that a party dissatisfied with the costs assessor's or panel's determination "should have a real and not largely illusory right of appeal". These words in Attorney-General (NSW) v Kennedy Miller Television Pty Ltd (at 735) were qualified by "in regard to questions of law at least", but in my respectful opinion they apply equally to questions of fact: questions of whether the time engaged or an hourly rate are reasonable can be very important, and although subject to leave s 208M permitted an appeal on those questions. The filter for an appeal as to fact is the Court's decision as to leave, not the cost assessor's or panel's expression of reasons, and whether leave should be granted can only be decided if it is known why the determination was made.
(emphasis added)
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. It will, moreover, be very difficult to show that a determination is unreasonable or unjust merely by reference to the total sum assessed as representing fair and reasonable costs. A grant of leave to appeal will be most clearly appropriate where it is possible to identify a consequential arithmetical error, or a conclusion as to the reasonableness of carrying out particular work or incurring a particular cost that is more than arguably wrong in some significant way. Unless a disappointed party can identify and put on evidence relevant to particular conclusions of fact with which it takes issue, it will be in no position to demonstrate sufficiently arguable injustice to warrant a grant of leave.
Accordingly, what a statement of reasons must reflect is "why the determination was made" (Frumar at [44]), being the determination of the total sum payable consistent with s 367A. That requires, as s 364(1) indicates, that it be apparent what work the panel considered reasonable to carry out, the fair and reasonable costs of carrying out that work, and how those costs were determined (that is, at least ordinarily, the times and rates thought to be fair and reasonable). Those matters must be apparent whether the panel's assessment was made by adjusting or disallowing items in an itemised bill or by coming to its own view of the work it was reasonable to carry out.
What is not necessary for a disappointed party to have a meaningful right to seek leave to appeal is that extensive reasons be given for a panel or assessor's conclusions as to the reasonableness of particular work or the fairness and reasonableness of particular costs: in Kennedy Miller Television this Court evidently accepted (at 735G-736A) the suggestion of Sperling J that in "most instances, a word or two would suffice" by way of explanation for particular reductions or disallowances. The applicants were unable to point to any decision in which although the reasons explained what work was thought to be reasonable, its relationship to the work in the items in the bill of costs, and how the fair and reasonable costs of that work were calculated, they were nevertheless held to be inadequate.
In Frumar, the panel had "stated a figure as a result of its assessment and asserted that it was 'in all the circumstances' a fair and reasonable amount of costs" (at [61]). Those reasons were inadequate because (at [62]-[63]):
If either claimant or the opponent wished to appeal to the Supreme Court, he or it could not do so when he or it did not know:
(a) whether the panel's assessment had been by taking the itemised bill of costs and allowing, disallowing or adjusting items, or by coming to its own view of work reasonable to be carried out;
(b) if the former, what items had been allowed, disallowed or adjusted and whether as to hourly rate or reasonable times or for some other reason; or
(c) if the latter, what work the panel thought reasonable and how it costed the carrying out of the work.
The claimant would need to know for appeal as to a matter of law pursuant to s 208L of the Act, but plainly also for appeal pursuant to s 208M. If the claimant had contemplated disputing the extent of unreasonable charging accepted by the costs assessor to have occurred in relation to coordination work and reporting work, how could he have done when he did not know what coordination work or reporting work had been excluded from the claim in the bill of costs, or what coordination work or reporting work the costs assessor had included in his own assessment as reasonable work to be carried out; or what the panel had done in these respects? How could he do so if he did not even know whether the panel had also accepted that there had been unreasonable charging in relation to coordination work and reporting work?
(emphasis added)
Cassegrain v CTK Engineering [2008] NSWSC 457 was "not so extreme a case as was Frumar", in that it was possible to identify from the reasons "what hourly rates were considered to be reasonable" and "the kinds of work... where the charges claimed have been reduced" (at [88]). White J (as his Honour then was) nevertheless held that the reasons were inadequate because it was not possible to identify either the extent of the reductions made in respect of several kinds of work or "whether any reduction was made in response to the objection to duplication of work between solicitors and counsel, excessive consultation with counsel and unnecessary attendances on the plaintiffs' father" (at [89]). Relevantly for present purposes, his Honour accepted (at [90]) that:
... it would have been sufficient in my view for the costs assessor to say that instead of the amount claimed of $597 for attendances to file documents he allowed $200 (if that were the figure). It would have been sufficient for him to have said that he reduced the costs claimed by a particular amount where he considered there had been duplication in attendances of the senior solicitor and the paralegal at conferences. Likewise, it would have been sufficient to say that he reduced costs by a particular amount in respect of the derivative action or the security for costs application.
Farrar v Julian-Armitage [2015] QCA 289 was the sole authority that the applicants identified as supporting their contentions. In that case the Queensland Court of Appeal unanimously refused leave to appeal from a decision of Wall DCJ in the Queensland District Court holding that inadequate reasons had been given by a costs assessor conducting an assessment under the Uniform Civil Procedure Rules 1999 (Qld). Farrar does not assist the applicants. First, as is apparent from [13]-[15] of the Court of Appeal's reasons, the nature of the appeal to the District Court under the UCPR (Qld) is very different from that of appeals under ss 384 and 385 of the Legal Profession Act. It is not controversial, indeed the applicants contend, that those rights of appeal inform the requirement of reasons in s 380. Secondly, the implied comparison between the reasons at issue here and the reasons of the assessor in Farrar is false. The Queensland Court of Appeal summarised the relevant facts at [83]:
In the second example which related to the barrister, his Honour listed a total of 79 items "where the sole objection was that the amount claimed was excessive and $350 per hour was more appropriate". For each of those items the reductions corresponded to amounts less than a reduction calculated by reference to a rate of $350 per hour. Moreover, the reductions involved no consistent pattern or patterns from which the underlying reasoning might have been inferred.
(emphasis added)
The high point for the applicants' argument is the decision of Wall DCJ (Gregg Lawyers Pty Ltd v Farrar [2014] QDC 194) at [148], where his Honour states that the assessor "was obliged to explain ... how he arrived at $350 per hour plus GST for a practitioner of the barrister's seniority and experience in a case of the size and complexity that this was". But as appears clearly from his Honour's reasons at [146]-[148] and [158]ff, that was in the context of the assessor's having reduced the barrister's rate to less than that of the solicitor, even though the former was the more experienced family law practitioner; referred to a party/party costs scale in the assessment of lawyer/client costs; and made no reference to or finding about the size and complexity of the dispute. Even if the assessor's failure to explain "how he arrived at $350 per hour" was the primary problem with his reasons, which it plainly was not, those were matters that called for, and did not receive, an explanation: without one, the assessor's conclusion was essentially unintelligible.
Proceeding by reference to the primary judge's description of the review panel's reasons, the latter identified the hourly rates regarded as fair and reasonable for each person who worked on the matter, set out the considerations to which the panel had regard in determining what those rates were, and explained, correctly, that reductions had been made across the entire bill on the basis of them. Neither Cassegrain nor Frumar suggests that those reasons, as described, are inadequate as "a statement of the reasons for the panel's determination" (s 380). Indeed, the passages of those decisions set out above strongly suggest the converse: the panel's reasons made perfectly clear the numerical extent of the reductions and the basis on which they were made, namely, to take account of the rates assessed as fair and reasonable.
The exercise of selecting fair and reasonable rates is necessarily partly intuitive. It involves the synthesis of a variety of considerations having regard to the experience of the assessor as "an Australian legal practitioner of at least 5 years' standing" (Legal Profession Act, sch 5 cl 1) and any material (including the CARC guidelines) indicating the rates which could fairly and reasonably have been charged by lawyers of varying degrees of experience at the relevant times. It is difficult to see what more the panel might usefully but concisely have said about how it undertook that exercise. Indeed, the examples given by senior counsel for the applicants of what would have constituted adequate reasons at times appeared to resemble closely the panel's actual reasons, as they were described by the primary judge:
What could be said in relation to what could have been done here, with respect, was to say that this group of people had various different levels of post admission experience and they worked on this file over a number of years. At that particular time when the work was done, a reasonable amount, bearing in mind the complexity and the novelty of the case, would have been between X and Y. We think that 460 an hour reflects a fair and reasonable outcome bearing in mind these factors, or they may say bearing in mind the outcome of these proceeds was $1.375 [million] against a $3 million suit, we've selected 460 because it wasn't a terribly good outcome versus the dollar amount that was claimed.
Critically, there is no reason to think that further or more detailed reasons would assist the applicants in seeking leave to appeal under s 385. The panel's reasons identified the considerations it took into account, including the considerable complexity of the Supreme Court proceedings, the fact the applicants were put to proof on every aspect of their claim, and the amount ultimately recovered relative to the amount claimed. It is not suggested that any of those matters was legally irrelevant or that the panel made incorrect findings, or no findings, about them. If it is more than merely arguable, having regard to the experience of the review panel and to any evidence led on the leave application, that the rates allowed are unreasonably low and that the fair and reasonable rates are significantly higher, there will be a basis (subject, of course, to discretionary factors such as delay) for a grant of leave. If it is not, mere doubt as to the weight placed by the panel on considerations to which it was entitled to have regard would not justify granting leave to appeal and determining fair and reasonable hourly rates afresh.
Ground 1(c) is not made out.
The first was to adopt 10% of the fees (that is, not disbursements) ultimately allowed by the panel as the applicants' reasonable costs of the Supreme Court proceedings. That amount was $66,133. The alternative approach, which the panel appears to have treated as a sense checking exercise, was to allow "a certain number of hours (200) at a fixed hourly rate ($275), and [to add] another period (10 hours) for supervision at a higher hourly rate ($506)", producing an amount of $65,120.
There are two immediate problems for this argument. The first is that the relevant paragraphs of the regulation are not directed to the "costs of the costs assessment". The second is that even if the argument otherwise had merit, it does not appear, from either the amended summons commencing the appeal to the District Court or the primary judge's summary of the applicants' submissions, that the argument was put to him. In that circumstance his Honour cannot have committed any error of law in failing to hold that the panel's statement of reasons did not satisfy reg 134.
The controversy arises because the phrase "costs of the costs assessment" - to be read as "costs of a costs assessment", the phrase used elsewhere in s 369 - is defined to include, rather than to mean or be, the costs of the costs assessor or the Manager, Costs Assessment and the remuneration of the assessor. In contrast to s 379, which deals with the costs of a review and provides that the "costs of a review means the costs incurred by the panel or the Manager, Costs Assessment ... and includes the costs related to the remuneration of the costs assessors who constitute the panel", the definition in s 369(10) is not exhaustive.
When the issue was raised "at the heel of the hunt" in Wende v Horwath (No 2) (2015) 91 NSWLR 588; [2015] NSWCA 416, both Beazley ACJ (at [74]-[76]) and Adamson J (at [142]) declined to reach a concluded view. Beazley ACJ referred to longstanding authority to the effect that an order for costs includes the costs of matters incidental to the proceedings, such as itemising and proving or taxing costs. Her Honour observed that if those authorities continue to apply, professional costs of the assessment process would be "costs payable as a result of an order made by a court" within the meaning of s 367A, and therefore to be included within the certificate issued under s 368. On the other hand, her Honour allowed, "the language of s 369, and s 369(10) in particular, is arguably not consistent with this view."
To avoid the issue becoming a source of "future disputation" on remittal, Basten JA addressed the issue at [117]-[128], treating the question as one of statutory construction and holding that "the common practice ... [of] inclusion of the parties' costs of the assessment process in a s 369 certificate [is] correct." As his Honour explained at [121], because "costs of the costs assessment" is defined inclusively, there is an "available inference" that the phrase includes "other costs which might readily fall within that phrase". His Honour was, with respect, right to conclude that the other subsections of s 369 support rather than contradict that inference.
On making a determination under s 369, a costs assessor "may issue and forward to each party and the Manager, Costs Assessment" a certificate setting out his or her determination: sub-s (5). Like s 368 and s 378 certificates, a certificate issued under s 369 is, once filed in the office or registry of a court of the necessary jurisdiction, "taken to be a judgment of that court for the amount of unpaid costs": sub-s (7). The "costs of the costs assessor" are to be paid to the Manager, Costs Assessment, who may "take action to recover the costs of a costs assessor or [the Manager's own costs]": sub-ss (8) and (9) (emphasis added). The fact that some of the costs included as "costs of the costs assessment" are to be paid to the Manager, Costs Assessment, namely his or her own costs and the costs of the costs assessor, does not suggest all of those costs must be payable to the Manager, Costs Assessment. As Basten JA observed in Wende at [124], there is "no reason why a single certificate (like a single judgment) should not contain separate orders requiring payment of different sums to different persons." Indeed, sub-s (9) appears to recognise that some of the "costs of the costs assessment" will be payable to and recoverable by persons other than the Manager, Costs Assessment. Section 379, by contrast, provides that all of the "costs of a review" (as defined exhaustively) are to be paid to and are recoverable by the Manager, Costs Assessment: s 379(7)-(8).
Section 369(2A) provides that the power of a costs assessor to determine "by whom and to what extent" the costs of a party/party costs assessment are payable is subject "to any order of or the rules of the relevant court". That provision recognises that orders for the payment of costs historically extended to the costs of the taxation process, as Beazley ACJ explained in Wende, and expressly preserves courts' powers either by express order or through the rules of court to determine by whom the costs of the costs assessment process are to be paid. The provision has no counterpart in s 379.
Finally, s 369(4), another provision with no counterpart in s 379, provides for a referral to the Supreme Court of "any special circumstances relating to a costs assessment" and in that event empowers the Court to "make any order it thinks fit concerning the costs of the costs assessment". It would be surprising, particularly given the lack of any comparable provision in s 379, if this power were intended to deal only with costs incurred by an assessor or by the Manager, Costs Assessment.
The correctness of the construction adopted by Basten JA in Wende is to some extent confirmed by the fact that any ambiguity in the defined expression "costs of the costs assessment" (s 369(10)) has been clarified in subsequent legislation: as to the permissibility of such reasoning, see the authorities cited in Deputy Federal Commissioner of Taxes (SA) v Elder's Trustee and Executor Co Ltd (1936) 57 CLR 610 at 625-626 (Dixon, Evatt and McTiernan JJ); and Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 at [28]. Under Uniform Law Application Act 2014 (NSW), s 70(1) a costs assessor is to issue a certificate "that sets out the determination and includes - "
(a) the amount of costs determined (including any GST component the costs assessor determines is payable), and
(b) the amount of any costs of the costs assessment determined under section 78 of this Act or section 204 of the Legal Profession Uniform Law (NSW), and
(c) any interest on those amounts -
(i) determined under section 81 of this Act, or
(ii) payable under section 101 of the Civil Procedure Act 2005.
(emphasis added)
Section 78(1) of the Uniform Law Application Act provides that subject "to any order or rules of the court or tribunal concerned, a costs assessor is to determine the costs of an assessment of ordered costs and by whom they are payable". And s 78(2) provides that s 78(1) "does not apply to costs referred to in section 71(1)(a) and (b)", those being the "costs incurred by the costs assessor and the Manager, Costs Assessment" and "the costs related to the remuneration of the costs assessor".
It appears that what actually occurred in this case was not strictly consistent with either view of the statutory scheme. The review panel's certificate issued under s 378 records that the panel "affirm[ed]" the s 369 certificate and "set[] aside" the s 368 certificate. Both the panel and the assessor dealt with the applicants' professional costs of the assessment process as within the determination set out in the assessor's s 368 certificate. On the other hand, it is plain that both the assessor and the panel treated those costs as not being "costs payable as a result of an order made by a court", because each addressed as a separate question whether those costs should be paid by the respondent, and took into account as a relevant factor that the applicants had made a genuine attempt to agree on the fair and reasonable amount of costs. (That was a consideration which reg 126(b) expressly allowed them to take into account.)
The foregoing analysis suggests that the assessor's inclusion of those costs and disbursements within the s 368 certificate was in error. However, their assessment being included within the s 378 certificate issued by the review panel involved no error, because those costs were within the subject matter of the review and not "costs of the review", which by s 378(2) were to be the subject of a separate certificate issued under s 379. That occurred. Otherwise, the present significance of that analysis is that the review panel's assessment of the applicants' costs of the costs assessment did not require (by the application of s 375(2)) a determination of the fair and reasonable amount of those costs within s 367A.
The power in s 369 is not in terms constrained, and there is no suggestion that any implied limitation, of reasonableness or otherwise, has been transgressed. Nevertheless, the panel was required to give a reasoned explanation for its exercise. Such an explanation was given. If the applicants disagreed with the approach adopted by the panel as unreasonable or unjust, they had a right under s 385 to seek leave to appeal against it. On that leave application it would have been transparent to the judge hearing the leave application, as it is to this Court, how and why the panel determined by whom and to what extent the costs of the cost assessment process were to be paid.
The foregoing reasons as to the adequacy of the review panel's reasons for its approach to costs of the assessment process differ substantially from those of the primary judge. However, his Honour's dispositive conclusions, that it was open to the panel to adopt the approach that it did and that the panel's reasons were adequately stated, are not erroneous. Error in his Honour's reasons for those conclusions would not justify relief: see DRJ v Commissioner of Victims Rights (No 2) [2020] NSWCA 242; (2020) 383 ALR 517 at [89].
Ground 1(a) is not made out.
Barrett JA considered that the record in the District Court included only the orders and reasons of the District Court, the bill of costs that was the subject of the costs assessment, the respondent's application for assessment of party/party costs as lodged with the Manager, costs assessment, the amended summons filed in the District Court upon the appeal under s 384 of the Legal Profession Act 2004 (NSW) and the transcript of the hearing before the Local Court which made the costs order which gave rise to the costs assessment to the extent that transcript was quoted in the judge's reasons (at [128]).
By contrast, Basten JA considered that the material that was appropriately before the Court, including in relation to the question of whether error of law on the face of the record of the District Court was demonstrated, appropriately included the certificate of the costs assessor, together with her statement of reasons, and the certificate of the review panel with its statement of reasons (at [27]-[30]).
Beazley P agreed with Barrett JA save in respect of one issue that is not presently relevant, but did not specifically address the difference of opinion as to what constituted the record.
The amended summons in the District Court commencing an appeal was in the approved form 84 (Uniform Civil Procedure Rules 2005, r 50.4(1)). In accordance with r 50.4(2) it contained a statement of the grounds on which it contended there was an error of law in the decision of the review panel (r 50.4(2)). The appeal grounds were:
"1. The review panel erred in:
a. failing to give reasons or adequate reasons for affirming the decision of the costs assessor to reduce the hourly rates;
b. deciding that the costs assessor's reasons for the reduction to hourly rates were adequate and in adopting them.
2. The review panel erred in exceeding its function by undertaking a complete reassessment of costs when this had not been applied for by either party.
3. The review panel erred by misconstruing its function as being to determine the applications for review by making its own reassessment rather than substituting "such determination as in their opinion should have been made by the costs assessor who made the determination" [(as required by s 375(1)(b) Legal Profession Act NSW (2004)].
4 The review panel erred in reviewing the costs of the negotiation and assessment process in: -
a. failing to give reasons or adequate reasons for reducing those costs; and
b. assessing those costs on a global basis."
Self-evidently the assessment of the appeal grounds required the District Court to consider the reasons of both the review panel and the costs assessor.
UCPR r 50.14 requires a plaintiff to prepare, file and serve on each defendant (unless the Court otherwise ordered) an affidavit that annexed or exhibited a sealed copy of the order and a certified copy of the reasons (if any were given) of the body by whom the decision to which the appeal related was made and a copy of the transcript of proceedings before that body if available, as well as a copy of any exhibit, affidavit or other document from the proceedings before that body that the plaintiff wished to be considered at the hearing of the appeal.
In the absence of pleadings at least the reasons of the review panel and the costs assessor, together with their certificates of determination, were necessary to identify the issues arising on the appeal to the District Court.
In GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503, the applicant sought judicial review of an award made by an industrial tribunal established under the Industrial Arbitration Act 1940 on the ground that the tribunal had not been properly constituted. Kirby P and Hope JA said (at 515):
"To confine the question of whether relief, prerogative in nature, should be given by reference only to a limited number of documents, appears quite unrealistic in modern circumstances. The history of the "record" upon which error must be shown is related to the manner in which, in earlier times, the court rolls were brought up to the King's courts for review. To confine the record, for the purposes of modern judicial review, to a limited class of formal documents only was described by Griffiths LJ, as he then was, in R v Knightsbridge Crown Court; Ex parte International Sporting Club (London) Ltd [1982] 1 QB 304 at 314 as "formalism triumphant". Just as in that case it was said that the court could scrutinise the judgment and reasons given below to see if error appears, so in this case this Court can examine for present purposes not only the award and the judgment which preceded it but the transcript and record of the proceedings of the Tribunal. These are plainly part of the modern record of this Tribunal."
In Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368, both Mahoney JA and Priestley JA discussed the history of the writ of certiorari and the identification of the record. In relation to bodies which keep a formal record, Mahoney JA said that legislation may specify what the record is, although usually it does not do so, or at least not in clear terms (at 377). His Honour said that the determination of what constitutes the record will be determined by an examination of the role of the court and the extent of its supervisory jurisdiction (at 378). Priestley JA observed that the Court of Kings Bench had an exercise of the power to order the inferior tribunal to provide such materials as the Kings Bench chose to specify (at 390-391; R v Northumberland Compensation Appeal Tribunal; Ex Parte Shaw [1952] 1 KB 338 at 347-350). Priestley JA said that:
"…those authorities which have concentrated on the idea that only what the inferior tribunal chooses to incorporate in a document which is accorded the status of the record have not explained why it should be left to the inferior tribunal rather than the one which has the power to make the orders to decide what materials should go to answer the superior tribunal's command." (at 391).
All members of the Court held that the reasons of the inferior tribunal formed part of the record.
This view was rejected by the High Court in Craig v South Australia. Section 69(3) and (4) of the Supreme Court Act 1970 (NSW) were enacted in 1996 by the Courts Legislation Amendment Act 1996 in response to that decision. The explanatory note contained in the Courts Legislation Amendment Act in relation to those provisions was as follows:
"The High Court decision of Craig v State of South Australia (1995) 184 CLR 163 is based on a construction of the phrase "error of law on the face of the record" that is narrower than the construction previously given to that phrase by the New South Wales Court of Appeal. The effect of the new construction is to limit the jurisdiction of the Supreme Court to grant any relief or remedy by way of an order in the nature of a writ of certiorari. The writ of certiorari is the means by which a superior court can supervise inferior courts and tribunals in the exercise of their jurisdiction and, in particular, can grant relief where jurisdiction has been wrongly exercised. Item [8] (in so far as it inserts a new section 69 (3) and (4)) restores the Supreme Court's jurisdiction to what it was before Craig v State of South Australia by making it clear that the reasons for the ultimate determination of a court or tribunal (its "reasons for decision") form part of the face of the record of proceedings of the court or tribunal."
The starting point to the construction of s 69(4) is not what the High Court said in Craig v South Australia as to what is required before reasons are to be taken as incorporated by reference into the actual decision (being, in that case, the orders of an inferior court). Because of the enactment of s 69(4) the reasons of the District Court form part of the record. Where the reasons refer to other documents to which it is necessary to have regard in order to understand and assess the reasons, the documents so referred to form an integral part of the record when viewed from the perspective of the reviewing court. It is true that this was not the perspective for identification of the record adopted by the High Court in Craig v South Australia. But it was the perspective adopted by this Court prior to Craig v South Australia. The enactment of s 69(3) and (4) was intended to restore the Supreme Court's jurisdiction to what it was before Craig v South Australia. This was done by making it clear that the reasons for the ultimate determination of a court or tribunal form part of the record. As Meagher JA observes (at [36]) it would indeed be curious if regard could not be had to documents necessary to understand the reasons for decision in order to determine whether the reasons evidenced an error of law.
It is unnecessary to consider whether, prior to the enactment of s 69(4), reasons to which regard could be had to construe orders could also be considered for the purpose of determining whether there was error of law on the face of the record.
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305; [2015] FCAFC 123, the Full Court of the Federal Court, Dowsett, Tracey and Katzmann JJ said:
"[94] The limitation of the availability of review to cases in which error appears on the face of the record is, at least in part, designed to limit the frequency of such reviews. Identification of the content of the record should not be guided by the desire to find error. Rather, the focus should be upon identification of the issues raised for determination and the outcome of the process. As we have observed, Craig establishes that the starting point is that the record comprises "no more than":
· the documentation which initiates the proceedings and thereby grounds the tribunal's jurisdiction;
· the pleadings (if any); and
· the adjudication.
The reasons and transcript will only be incorporated by reference into the formal order (and therefore the record) to the extent that the reference brings about its incorporation as an integral part of the order (and record)."
In that case, there was no provision equivalent to s 69(4) of the Supreme Court Act that incorporated the reasons for the decision as part of the record. Nonetheless, the Full Court's statement that "…the focus should be upon identification of the issues raised for determination and the outcome of the process" is relevant to the determination of what is the record in the light of s 69(4). The identification of the issues raised for determination in the District Court could not be made without regard to the certificates of determination of both the costs assessor and the review panel and the reasons of each.
Sections 370 and 380 of the Legal Profession Act 2004 (NSW) required the costs assessor and the review panel to ensure that their certificates sending out their determinations under s 367 or 378 were accompanied by reasons given in accordance with the regulations.
Pham v NRMA Insurance Ltd [2014] NSWCA 22 concerned an application for judicial review of a decision of an assessor under the Motor Accidents Compensation Act 1999 (NSW) of an award of damages for future economic loss.
Leeming JA said:
"[27] … The assessor's certificate undoubtedly incorporated her reasons, and not merely by reference, but also by physically attaching them to the certificate, in accordance with the obligation to do so in s 94(5) of the MAC Act. After recording the amounts of damages and costs, the certificate states "Details of the assessment and full reasons for this decision are attached to this Certificate". The certificate thereby became analogous to the "speaking order" as opposed to the "unspeaking or unintelligible order" to which Earl Cairns LC referred in this context in Overseers of the Poor of Walsall v London and North Western Railway Co (1878) 4 AC 30 at 40. A very clear way of causing the reasons to form part of the record is for statute to require reasons to be given and to be attached to the certificate: cf Craig v South Australia [1995] HCA 58; 184 CLR 163 at 181-183."
There is no material difference between a statutory requirement requiring reasons to be given and attached to a certificate of determination and a requirement that the certificate of determination be accompanied by the reasons for it. As the appeal to the District Court sought the setting aside of the review panel's certificate of determination, that certificate must have formed part of the record of the District Court. The requirement of s 380 of the Legal Profession Act that the review panel's certificate be accompanied by a statement of reasons made the review panel's statement of reasons part of the record even if r 50.14(1)(a) of the Uniform Civil Procedure Rules did not have that effect. The certificate and reasons of the panel in turn referred to the certificate of determination and reasons of the costs assessor. In my view each of those documents form part of the record of the proceedings in the District Court.
In some cases, but not in this case, the identification of the record could be determinative of an application for judicial review of the District Court's decision on an appeal. For example, if a judge determined that a review panel had committed an error of law and in doing so purportedly summarised the review panel's reasons in a way that was said itself to show an error of law without incorporating the reasons of the review panel as an integral part of the primary judgment (that being the error) it would be clearly contrary to the intention behind the enactment of s 69(4) if that error of law could not be corrected. In my view it could be because the decision, including the reasons of the review panel, forms part of the record that was before the District Court.
In this case it makes no difference whether the relevant record is confined to the reasons of the primary judge or includes the reasons of the review panel and of the costs assessor. The primary judge accurately summarised the reasons of both the costs assessor and the review panel. The reasons given by Meagher JA for the rejection of the applicants' challenge to the primary judge's decision are equally applicable when regard is had to the reasons of the review panel and the costs assessor.
With one further qualification, I otherwise agree with the reasons of Meagher JA. That qualification is that I prefer not to express a view as to whether, if leave were granted to appeal under s 385, the reasons of the review panel would be irrelevant. On an appeal under s 385 the reasons of the review panel would at least form part of the historical record. On a de novo appeal for which leave was given under s 385 the appellant would not be required to show error on the part of the review panel. It is unnecessary to decide whether, on that account, the conclusions and reasons of the panel would be irrelevant to such an appeal.
For the reasons of Meagher JA with which I agree, subject to the qualifications above, I agree that the applicants' summons should be dismissed with costs.
BRERETON JA: I have had the benefit of reading in draft the judgments to be delivered by Meagher JA and by White JA. Subject to the reservation that follows, I agree with Meagher JA.
My reservation relates to the content of "the record" for the purpose of the doctrine of error of law on the face of the record. Meagher JA is of the opinion that, for the purpose of the doctrine of "error of law on the face of the record" in the context of judicial review of the decision of the District Court, the record comprises:
1. the amended summons commencing the appeal to the District Court;
2. the orders of the District Court judge and (by operation of (NSW) Supreme Court Act 1970, s 69(4) ("SCA")) his Honour's reasons; and
3. the certificate of the Review Panel under (NSW) Legal Profession Act 2004 ("LP Act"), s 378, setting out its determination, from which the appeal to the District Court was brought (since this is necessary to found the District Court's appellate jurisdiction) - but not the Panel's reasons which, as required by LP Act, s 380, "accompanied" that certificate.
His Honour is of opinion that the record does not include the certificates (under LP Act, ss 368 and 369) of the first instance costs assessor, nor the reasons which are required (by s 370) to accompany them, nor the initial application for a costs assessment, being of the view that such documents would form part of the record only if and to the extent they were incorporated by reference, which they were not. White JA, on the other hand, is of opinion that the record includes not only the s 378 certificate of the Review Panel, but also:
1. the s 380 statement of the Panel's reasons that was required to accompany it; and
2. the s 368 and s 369 certificates of determination of the first instance costs assessor, and the reasons for them as referred to in s 370.
I do not understand White JA to express a view concerning the initiating application for costs assessment.
Accordingly, the difference relates to whether or not the record includes:
1. the Review Panel's statement of reasons; and
2. the first instance assessor's certificate and statement of reasons.
The scope of "the record" in this context, where the body whose decision is under review ("the reviewed decision-maker") is itself exercising appellate jurisdiction from an inferior decision-maker ("the inferior decision-maker"), is neither clear nor straightforward (here, the District Court is the reviewed decision-maker, and the Review Panel is the inferior decision-maker).
The authoritative description of the content of the record, generally, to be found in the judgment of Wilson J in Hockey v Yelland, is (emphasis added): [1]
"The next step is to determine what constitutes the record. There is no fixed rule which requires the same answer to be given in every case. It is for the court undertaking the review to determine what constitutes the record in the particular case, but this is not in any way to countenance a roving commission through the materials in a case in an attempt to discover an error of law. The procedure is not to be assimilated to a right of appeal for errors of law. Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication. It will not include the evidence or any reasons that may be given for the decision unless the determination itself incorporates them by reference: see, generally, R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1952] 1 KB 338 at 351-352; Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663."
Wilson J's description accords with that of Denning LJ, as he then was, in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw ("Shaw"), [2] to the effect that the record must contain at least the document which initiates the proceedings, the pleadings, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them.
In this State, there is now statutory prescription, to the extent that SCA, s 69(4), provides that the record includes the reasons stated by a court or tribunal for its ultimate determination that is the subject of the application for judicial review. As will be seen, similar provision is made in Victoria by the (VIC) Administrative Law Act 1978, s 10 ("Administrative Law Act"). However, save for the extension of the record to include the reasons, s 69(4) assumes that the record has its common law content. [3]
Wilson J's above quoted statement, that it is for the reviewing court to determine what constitutes the record in any particular case, is qualified by the statement that this does not countenance a roving commission through the materials in an attempt to discover an error of law. The purport of his Honour's statement is to emphasise that it is the reviewing court, not the reviewed court, which makes that judgment - not to confer on the reviewing court some discretion to determine what is or is not in the record. There ought to be some consistent principle that informs what comprises the record.
Some assistance can be gleaned from Hockey itself, in which the record was held to comprise "the letter from the general manager to the Board making the reference, the documents accompanying that letter and the determination of the Board", but not "the medical reports tendered by the claimant and the notes of his oral examination by the Board". [4] Gibbs CJ, with whom Mason J, Brennan J and Dawson J agreed, said: [5]
"Some aspects of the law as to what constitutes the record for this purpose remain open to debate, but in this case I have no doubt that the determination, the reference and the documents attached to the reference (the medical certificates and the application) constitute the record. A reference initiates, and is necessarily the basis of, a determination under s 14c, and the coincidence of the numbers on the two documents identifies the reference of 23 February 1983 as that on which the determination is based. The determination is meaningless unless it is known what were the matters alleged by the appellant, and that appears from the reference. The documents which were not merely specifically referred to in, but also were attached to, the reference, form part of it. These conclusions derive support from R v Cook; Ex parte Twigg (1980) 31 ALR 353; 147 CLR 15 at 27-28; Glenvill Homes Pty Ltd v Builders Licensing Board [1981] 2 NSWLR 608 at 610 and R v Patents Appeal Tribunal; Ex parte Swift & Co [1962] 2 QB 647 at 653-654. However, I do not accept that the fact that the determination states that the Neurology Board made its determination "after hearing evidence and examining the claimant", and the reference in the determination to "the matters alleged by the claimant", incorporated into the record all the material which was before the Neurology Board or so much of it as revealed the nature of the appellant's allegations."
That illustrates that while what might be described as evidence and submission are not part of the record, the initiating process and documents incorporated by reference in it are, because they describe the allegations, determination of which was required.
Turning to cases that deal with situations in which the reviewed decision-maker is itself exercising appellate jurisdiction, in Garret v Foot, [6] it is recorded:
"Altho' a Poor's Rate be really made at the [Quarter] Sessions on an appeal, yet if it don't appear by the Order itself, as by Recital of the former Order, &c, the latter Order shall be quash'd; and the Court refused to supply this defect in the Order by Affidavits."
Similarly, in Anonymous: [7]
"An Order made by two Justices of the Peace for settling a poor Person, was quashed by the [Quarter] Sessions; but because it did not appear that it came before them by Way of Appeal, without which they have no Jurisdiction, this Order of Sessions was quashed."
These cases support the proposition, for which Anonymous was cited by Denning LJ in Shaw, that in the case of an order which had been decided by quarter sessions by way of appeal, the record had to set out the order appealed from. That is because, in such a case, the order of the inferior decision-maker (the justices) is the foundation of the appellate jurisdiction of the reviewed decision-maker (quarter sessions).
In Danagher v Racing Penalties Appeal Tribunal, [8] application was made to the Full Court of the Supreme Court of Western Australia for judicial review of a decision of the Racing Penalties Appeal Tribunal, which had dismissed an appeal against the determination of the stewards disqualifying a racehorse as the winner of a horse race, including on grounds of error of law on the face of the record. The application was dismissed unanimously, but only Murray J discussed the scope of the record. His Honour said: [9]
"Two questions arise having regard to the grounds of application in the present case. The first is, generally and for the purposes of this case, what is to be regarded as the record of the Tribunal? Adopting the approach taken by Wilson J in Hockey v Yelland, I consider that the record of the Tribunal for present purposes will comprise the notice of appeal by which, under the Act ss 13 and 16, the appeal was instituted, the notice of the determination of the appeal by the Tribunal to be given under the Act s 14 (which in this case as in Ex parte Chambers would appear to be part of the transcript of the proceedings before the Tribunal, recording the oral notification of the determination in the presence of the parties), and any reasons for the determination given pursuant to the Act s 21, or perhaps, voluntarily by the Tribunal together with any dissenting reasons given by a member of the Tribunal pursuant to s 14(4). The reasons I think, would always be part of the record of this Tribunal because the statutory prescription of the Act envisages their creation as part of the record, whether voluntarily by the Tribunal or under the compulsion of a request by a party to an appeal. Otherwise it would seem to me that only documentation which is necessary to make understandable the reasons of the Tribunal and its determination or which is incorporated therein by reference, will properly be considered part of the record in any given case."
Thus his Honour was of opinion that the record comprised only:
1. the notice of appeal by which the appeal to the Tribunal was instituted;
2. the notice of the determination of the appeal by the Tribunal to be given under the applicable legislation (which in the circumstances was comprised in part of the transcript of the proceedings before the Tribunal, recording the oral notification of the determination in the presence of the parties);
3. any reasons (including dissenting reasons) for the determination, because the applicable legislation envisaged their creation as part of the record; and
4. documentation which was necessary to make understandable the reasons of the Tribunal and its determination, or which was incorporated in them by reference.
However, that case was decided before Craig, and his Honour's view in respect of the reasons must be seen in that context. In any event, it does not matter, because there is no doubt that in this case the reasons of the reviewed decision-maker form part of the record, by virtue of SCA, s 69(4).
In Returned & Services League of Australia (Victoria Branch) Inc v Liquor Licensing Commission, [10] a club applied for a liquor licence, which was granted by a Commissioner. The Full Commission dismissed an application for review of the decision of the Commissioner. An application was made to the Supreme Court for judicial review of the Full Commission's decision. The primary judge regarded s 10 of the Administrative Law Act - which like SCA, s 69(4), provides that the record includes the reasons for the decision - as extending the record to include the reasons for decision of the Full Commission, but declined to have regard to the reasons for decision of the Commissioner at first instance. [11] On appeal to the Court of Appeal, it was held that in the light of Craig, any reference to the reasons for decision for the purpose of establishing error of law on the face of the record must depend upon the scope of s 10 of the Administrative Law Act, and that in referring to the "reasons for decision", s 10 meant the reasons for the decision under challenge. As the application for review was directed to the decision of the Full Commission, s 10 referred to the Full Commission's reasons for decision. The Court observed that where the decision under review was itself the decision of a reviewing body, it might be necessary on occasion to refer to the reasons of the "subordinate" body, but that would be for the purpose only of explaining or understanding the reasons for decision which were themselves referred to in the statute. Phillips JA said: [12]
"[63] In conclusion I say again that I am not satisfied that any of the errors described in the orders nisi for review amounted to jurisdictional error; the first, the exclusion of the Glenroy sub-branch, may have involved an alleged want of procedural fairness but, for the rest, the grounds taken asserted errors of law on the face of the record. In the course of their submissions counsel for the appellants referred frequently to the reasons for decision of Commissioner Horsfall, contending that the trial judge fell into error by not examining those reasons. But in the light of Craig, any reference to the reasons for decision for the purpose of establishing error of law on the face of the record must depend upon s. 10 of the Administrative Law Act and s. 10, in referring to the "reasons for a decision" means, I think, the reasons for the decision under challenge - that is under challenge by means of the order for review obtained under the Administrative Law Act. In arguing the contrary Mr. Garde submitted that the decision of Commissioner Horsfall was itself within the definition of "decision" in s. 2 of that Act, but that is not to the point when construing s. 10. In this instance, the application for review under the Administrative Law Act was directed to the reasons for decision of the Full Commission. In my view s. 10 refers then to the reasons for decision of the Full Commission.
[64] Of course where the decision under review by virtue of the order for review is itself the decision of a reviewing body, it might be necessary on occasion to refer to the reasons of the "subordinate" body, but that will be for the purpose only of explaining or understanding the reasons for decision which are themselves referred to in s. 10. Here the reference to Commissioner Horsfall's reasons went well beyond that: for example, in relation to s. 48(4) the reasons for decision of the commissioner were referred to for the purpose of constructing some supposed error by the Full Commission. …"
The effect of that decision is that while the record is extended, by statutory prescription, to the reasons of the reviewed decision-maker, it does not include the reasons of the inferior decision-maker; while reference to those reasons might be permissible for the purpose of explaining or understanding the reasons of the reviewed decision-maker, they could not be used to demonstrate error of law on the part of the reviewed decision-maker. It is not easy to understand on what basis reference might be made to them at all, if they are not part of the record, unless on grounds other than "error of law on the face of the record", which may be the preferable explanation.
In Matson v Racing Appeals Tribunal, application was made by a horse trainer for judicial review of a decision of the Tribunal, on an appeal (by way of hearing de novo) from a decision of the stewards. Gillard J said: [13]
"[85] But what constitutes the record for this purpose?
[86] The record comprises the documents initiating the appeal, the reasons of the Tribunal and the record evidencing the outcome of the appeal. The record does not include the evidence given before the Stewards, any other exhibits adduced into evidence before the Tribunal, or the submissions of Counsel on the review, unless the reasons incorporate other documents.
[87] The Court is restricted to the record, and the decision will only be quashed if it is affected by an error of law which is disclosed by that record."
Although not expressly stated, that judgment does not suggest that the reasons for decision of the stewards - the inferior decision-maker - would form part of the record of the tribunal.
In Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No 2), [14] application was made to the Supreme Court of Victoria for orders quashing determinations of an adjudicator and review adjudicator appointed under the (VIC) Building and Construction Industry Security of Payment Act 2002 ("Building and Construction Act"), directing that it pay a progress payment claim. The applicant contended that the determinations of the adjudicator and the review adjudicator were affected by jurisdictional error and error of law on the face of the record. Vickery J said: [15]
"[284] The record for the purpose of considering non-jurisdictional error of law, in this case, comprises the formal documents initiating and defining the matter for adjudication under the Act at first instance. This consists of the payment claim made under s 14 of the Act and the payment schedule provided by the respondent under s 15 of the Act. Added to this is the decision of the adjudicator at first instance which includes the determination of the adjudicator and the reasons for the determination. Further, all of the submissions filed by the parties constitute part of the record because they assist to define the issues in the adjudication. In relation to the review determination, added to these documents are the adjudication review application of Grocon and the other submissions prepared and delivered by the parties for the adjudication review because they assist in defining the issues for the review.
[285] As to any error on the face of the record, having considered the Davenport review determination, the documents which comprise the record for the purposes of certiorari, and each of the Grounds for judicial review relied upon by Grocon, I can see no error of law on the face of the record which can be made out on the plaintiff's grounds for judicial review."
Insofar as this case suggests that the record includes the decision and reasons of the first instance adjudicator, that must be seen in the context that the judicial review proceedings impugned both the determination of the inferior decision-maker (the adjudicator) and the determination of the review adjudicator. [16] Insofar as the case suggests that the record includes all the submissions made by the parties, it appears anomalous, but might be explained by the particular framework of the relevant legislation providing for the issues to be defined by the submissions, somewhat akin to pleadings. [17]
On the authorities to this point, I think it is clear that the record of the District Court would comprise, consistently with Meagher JA's view:
1. the orders of the District Court;
2. the reasons of the District Court (by operation of SCA, s 69(4));
3. the summons instituting the appeal in the District Court, which invoked its jurisdiction; and
4. the LP Act, s 368, certificate of the Review Panel, which establishes the appellate jurisdiction of the District Court.
There is little if any support in the authorities, to this point, for the view that the reasons of the inferior decision-maker (here, the Review Panel), or the pleadings before it, would form part of the record of the reviewed decision-maker (here, the District Court). SCA, s 69(4), does not affect this position, because it refers to the reasons of the reviewed decision-maker. Like Meagher JA, I am inclined to think that the requirement in (NSW) Motor Accidents Compensation Act 1999, s 94(5), which was considered by Leeming JA in Pham v NRMA Insurance Ltd, [18] that a claims assessor "attach to" the certificate the reasons for which it was made, is materially distinguishable from the requirement in LP Act, s 380, to ensure that the s 378 certificate was issued to the parties "accompanied by" the reasons: first, the requirement for physical attachment of the reasons is, as Leeming JA recognised, significant; and, secondly, a mere duty to give reasons is, on the authority of Craig, insufficient to render them part of the record, and I do not think this changes just because the requirement is to provide them contemporaneously with the adjudication. A requirement that reasons "accompany" the certificate is no more than a requirement that reasons be provided contemporaneously with the certificate, and does not convert the certificate into a "speaking order".
If the matter rested there, and uninformed by the further authorities mentioned below, I would agree with Meagher JA's opinion as to what constitutes the record. However, in two more recent cases, one of them a judgment of this Court in identical circumstances (judicial review of a District Court judge's decision on an appeal from a costs review panel), a more expansive view of "the record" has been expressed.
In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd, [19] the Full Court of the Federal Court was concerned with an application for judicial review of a decision of the Full Bench of the Fair Work Commission (as the Industrial Commission is presently known), on appeal from a Deputy President of the Commission hearing a private arbitration. Dowsett, Tracey and Katzmann JJ held that the starting point for identifying "the record" was that it comprises the documentation which initiates the proceedings, the pleadings (if any), and the adjudication; the reasons and transcript would only be incorporated by reference to the extent that the reference in the formal order brought about its incorporation as an integral part of the order, and therefore the record. [20] The notice of appeal to the Full Bench was part of the record, being effectively the pleading, and (by incorporation) so was an agreement to which it referred. [21] So was the initiating application at first instance, which founded the jurisdiction of the Fair Work Commission, and in the absence of which the true basis of the jurisdiction exercised by the Full Bench might not have been apparent, as it would not have been apparent that it was exercising a power conferred by consent of the parties. [22] In a context in which there was no equivalent to SCA, s 69(4), the Full Bench's reasons (except for limited parts necessary to understand its dispositive order) were not part of the record. [23] However, in the special circumstances of that case, in which the order made by the Deputy President and his reasons had the effect of imposing a limit on the Full Bench's powers on appeal, the Deputy President's award and reasons formed part of the record (emphasis added): [24]
"[97] The only other question is whether the Deputy President's reasons should be included. Generally, the Full Bench may intervene only in the event of error. See Allesch v Maunz (2000) 203 CLR 172 at [22] and [23] and Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13] and [14] . FWC has power to receive further evidence on appeal. See the Fair Work Act at s 607(2). However, in this case, it was acting as a private arbitrator. The parties did not, by cl 15, seek to modify the operation of s 604 and its supporting provisions. In those circumstances, the order made by the Deputy President and his reasons impose a limit upon the Full Bench's powers on appeal. There must be a demonstrated error in order that it may substitute its views for his. Were the question solely as to a question of construction of a written document, the record might be limited to the inclusion of the Deputy President's final order. Where, as here, the original decision-maker took into account factual matters, the capacity to find error may be limited by the way in which he or she has treated the facts. The power of the Full Bench on appeal may be limited by such treatment. We conclude that the Deputy President's award and reasons are part of the record on appeal. It does not follow that the record includes the evidence before the Deputy President or the Full Bench. Nor does it follow that the Full Bench's reasons should be included."
Thus the reasons of the inferior decision-maker (the Deputy President) were held to be part of the record of the reviewed decision-maker, as was the initiating application before the inferior decision-maker. The rationale appears to be that those documents were, in the particular circumstances of the case, material to establishing or describing the jurisdiction of the reviewed decision-maker (the Full Bench).
Perhaps the most expansive view has been taken in Wende v Horwath (NSW) Ltd, [25] a decision of this Court in the presently relevant context of an application for judicial review of a decision of a District Court judge, dismissing an appeal from a determination of a costs review panel, which had in turn dismissed an application for review of a determination of a costs assessor. Barrett JA said: [26]
"The "record" includes the District Court's reasons: Supreme Court Act, s 69(4). It also includes the District Court's orders and the documents initiating and defining the proceedings in the court, but not written evidence (such as that in affidavits) or the transcript of the proceedings (oral evidence and submissions): Craig v South Australia at 180-182; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at 577-578."
His Honour considered that the record of the District Court comprised: [27]
1. the orders of the District Court, and reasons for them (which were part of the record pursuant to SCA, s 69(4));
2. the amended summons filed in the District Court (which was the initiating process for the appeal to that court);
3. the originating application for assessment of costs, including the bill of costs; and
4. the transcript Local Court proceedings in which one of the costs orders the subject of the application for assessment was made, but only to the extent that transcript was quoted (and thus incorporated) in the District Court judge's reasons. However, as this was an incorporation by reference, it establishes no principle that such material would generally be part of the record.
Basten JA took a slightly more expansive view. While his Honour rejected a submission that all of the exhibits before the District Court (which included correspondence between the applicants and the costs assessor, submissions before the costs assessor, submissions to the review panel, a transcript of the hearings in the Local Court, a transcript of the hearing before the District Court, and submissions filed in the District Court) formed part of the record, [28] his Honour was of opinion that the record relevantly included: [29]
1. the orders made in the District Court (including the reasons for judgment);
2. the notice of appeal to the District Court;
3. the certificate of the review panel, and its statement of reasons;
4. the certificate of the first instance costs assessor, and her statement of reasons;
5. the initiating application for assessment, including the bill of costs; and
6. the various costs orders made by an arbitrator in the Local Court, a magistrate in the Local Court, the Common Law Division on appeal, and the Court of Appeal refusing leave to appeal, which were the subject of the application for assessment.
Save in respect of a matter which is not presently relevant, Beazley P agreed with Barrett JA; although her Honour did not expressly address the difference of opinion as to what constituted the record, her Honour's agreement with Barrett JA imports agreement with his Honour in that respect. [30]
It is at least arguable, on the authority of Wende, and by analogy with Kindred Industries, that the record of the District Court includes the Review Panel's reasons, because the jurisdiction of the District Court was an appeal on a question of law from the Review Panel, and the capacity of the District Court to find error of law (not limited to the face of the record) might be constrained by the Review Panel's reasons. It might also be argued that the originating application for costs assessment, the costs assessor's decision (and, perhaps, the reasons for it), and the review application, were part of the record, as showing how the matter came before the District Court and laying the basis for its jurisdiction.
On the other hand, appeals are brought against orders, not reasons; and the suggestion that the record includes the reasons, not of the reviewed decision-maker, but of the inferior decision-maker, appears to me to involve a considerable extension of the historical view of "the record" which was essentially endorsed in Craig. We did not have the benefit of argument on this issue, which is far from straightforward, and potentially has far-reaching implications. As its resolution, one way or the other, does not affect the outcome of the present application, it is preferable that its resolution be left to a case in which it is dispositive.
There is one other matter that requires comment. In written submissions lodged after the hearing of the appeal, the applicants argued that the Court might be proceeding under a misapprehension as to the rights of appeal that were available to it consequent upon the Review Panel's determination. Those submissions referred to an observation that I had made in the course of argument which, inaccurately, referred to a "merits" appeal (being an appeal under LP Act, s 385(2)) "to the District Court"; at the relevant time, such an appeal lay to the court or tribunal which had made the underlying costs order, which in this case was the Supreme Court. Thus the applicants had an appeal as of right to the District Court in respect of "a matter of law", under LP Act, s 384, and a full appeal de novo by leave to the Supreme Court, under s 385(2). Those rights are not mutually exclusive, and no election between one or the other is involved, although if leave were granted under s 385(2) there would seem to be little utility in pursuing an appeal under s 384. It makes no difference that the two appeals lie to different courts. The fundamental point in this case is that, as Meagher JA explains, the reasons of the Review Panel were ample for the applicants to be able to decide whether or not it wished to seek leave under s 385(2), regardless of the court to which such an appeal lay.
I agree with the orders proposed by Meagher JA.
Kindred Industries at 343-344 [97] (Dowsett, Tracey and Katzmann JJ).
(2014) 86 NSWLR 674; [2014] NSWCA 170 ("Wende").
Wende at 703 [127] (Barrett JA; Beazley P relevantly agreeing).
Wende at 703 [128] (Barrett JA; Beazley P relevantly agreeing).
Wende at 683 [30] (Basten JA).
Wende at 683 [27] (Basten JA).
Wende at 678 [1] (Beazley P).
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Decision last updated: 06 August 2021