Ahern v Aon Risk Services Australia Ltd

Background facts

1. 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.
2. 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.
3. 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.
4. 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).

The grounds of review

1. 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.
2. 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[.]
3. 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.
4. 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.
5. 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.

No jurisdictional error

1. 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.
2. 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.
3. 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.

The extent of the record

1. 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.
2. "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.
3. 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.

Whether any error of law in determining that adequate reasons given for the hourly rates allowed (ground 1(c))

1. 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.
2. 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.
3. 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.
4. 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]).

The cost assessment task of the review panel

1. 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.
2. 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. ...
3. 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.

The requirement of reasons

1. 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.
2. 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.

Whether any error of law in determining that adequate reasons given for "global approach" to costs of the costs assessment (ground 1(a))

1. 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]).
2. 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.
3. 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].
4. 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].

The applicants' position

1. 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.
2. 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.
3. 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, ...
4. 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".

The preliminary (and not short) issue of power

1. 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.)
2. 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).
3. 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".
4. 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)

The adequacy of the reasons given for the "global approach"

1. 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.
2. 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].
3. 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.
4. 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.

Conclusion

1. 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.
2. The applicants' summons filed 3 August 2020 should be dismissed with costs.
3. 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.
4. 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."
5. 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).
6. 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."

Endnotes

1. (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).
2. [1952] 1 KB 338 at 352 (Denning LJ); 1 All ER 122.
3. 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.
4. Hockey at 143 (Wilson J).
5. Hockey at 131 (Gibbs CJ; Mason J, Brennan J and Dawson J agreeing).
6. (1689) Comb 133 at 133-134.
7. (1697) 2 Salk 479; 91 ER 412.
8. (1995) 13 WAR 531 ("Danagher").
9. Danagher at 546 (Murray J).
10. [1999] 2 VR 203; VSCA 37 ("Returned & Services League").
11. Returned & Services League at 209 [12] (Phillips JA; Charles JA and Buchanan JA agreeing).
12. 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).
13. [2001] VSC 264 at [85]-[87] (Gillard J).
14. (2009) 26 VR 172; [2009] VSC 426 ("Grocon").
15. Grocon at [284]-[285] (Vickery J) (note that these paragraphs are not extracted in the Victorian Reports).
16. Grocon at 180 [31] (Vickery J).
17. 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).
18. (2014) 66 MVR 152 at 160 [27] (Leeming JA; Tobias AJA agreeing); [2014] NSWCA 22.
19. (2015) 235 FCR 305; [2015] FCAFC 123 ("Kindred Industries").
20. Kindred Industries at 343 [94] (Dowsett, Tracey and Katzmann JJ).
21. Kindred Industries at 343 [96] (Dowsett, Tracey and Katzmann JJ).
22. Kindred Industries at 343 [96] (Dowsett, Tracey and Katzmann JJ).
23. 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.