Colquhoun-Denvers v Yunghanns

1. These reasons address the preliminary question whether the charges of Connon Wood LLP ('Connon Wood') claimed as a disbursement in a bill of costs filed by the applicant, Nicholas Colquhoun-Denvers ('Mr Colquhoun-Denvers'), in this proceeding are recoverable from the respondent, Peter Yunghanns ('Mr Yunghanns'), on taxation.
2. Between 2016 and 2019, Mr Colquhoun-Denvers and Mr Yunghanns unsuccessfully sued each other for defamation.[1] On 20 December 2019, T Forrest J ordered:

On the claim, [Mr Yunghanns] pay [Mr Colquhoun-Denvers'] costs of that proceeding on a standard basis.

1. Mr Yunghanns unsuccessfully sought to appeal that costs decision.[2]
2. An order was also made that Mr Colquhoun-Denvers pay Mr Yunghanns' incremental costs on the counterclaim. These reasons concern only the cost order made on Mr Colquhoun-Denvers' claim. For convenience, I will refer to the latter proceeding as the 'Defamation Proceeding' in these reasons.
3. On 5 April 2022, Mr Colquhoun-Denvers filed a bill of costs ('Bill of Costs') which included at item 2243 an unconventional disbursement of $1,233,705.54 which is described as:

Fess of Connon Wood LL.P, civil litigation and international arbitration law firm, lawyers for Defendant, as set out in the marked up invoices annexed to this bill of costs and marked with the letter "A"

Total USD 922,917.64 converted to Australian currency on 29/3/22

Total of invoices AUD $1,233,705.54

PAID USD 625,811.52:

AUD $835,621.09

UNPAID AUD $398,084.45.[3]

1. Annexure A includes individual entries in excess of 400 hundred days between 10 February 2016 and 18 September 2018. The entries itemise, in varying degrees of detail, the 'professional services' charged for each of the days.
2. On 6 July 2022, Costs Registrar Walton ordered, pursuant to r 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'),[4] that the question whether the disbursements are recoverable on taxation be determined as a preliminary question. The terms of the preliminary question are expressed below:

[T]he Costs Court will determine as a preliminary question whether the charges of Connon Wood LLP claimed as disbursements in the bill of costs filed by the Applicant in this proceeding are recoverable by the Applicant on taxation.[5]

1. The issues to be resolved broadly concern the application of the indemnity principle and the recoverability of the fees of Connon Wood as a foreign lawyer. The particular issues to be resolved are:

(a) Issue 1: the indemnity principle

(i) Issue 1.1: Whether, on its proper construction, the costs agreement between Mr Colquhoun-Denvers and Connon Wood dated 11 October 2017 ('CW Retainer') has the effect that Mr Colquhoun-Denvers is not personally liable to pay Connon Wood's fees; and

(ii) Issue 1.2: Whether the Federation of International Polo ('FIP') should be regarded as the 'real party' to the Defamation Proceeding such that the indemnity principle is satisfied.

(b) Issue 2: the recoverability of fees

(i) Issue 2.1: Whether Connon Wood provided Mr Colquhoun-Denvers with 'legal services' in the conduct of the defence of the Defamation Proceeding.

(ii) Issue 2.2: If 'yes' to 2.1, did Connon Wood perform those services as principal rather than as agent of Batten Sacks?

(iii) Issue 2.3: If 'yes' to 2.1 and 2.2, did Connon Wood act (or would Connon Wood have acted) in breach of s 10 of the Legal Profession Uniform Law 2014 ('LPUL')[6] insofar as the services were provided in Australia, on the basis that:

• (A) the provision of the services did not involve the practice of foreign law; and
• (B) Connon Wood was not a qualified entity entitled to practise in the jurisdiction?

(iv) Issue 2.4: If 'yes' to 2.1, 2.2 and 2.3, are Connon Wood's fees recoverable as 'the costs of professional legal services rendered to a litigant in the conduct of litigation'? [7]

(v) Issue 2.5: If 'no' to 2.4, are Connon Wood's fees in any event recoverable as a 'disbursement'?

(a) affidavits of Harvey Stephen Bruce affirmed on 3 June 2022 ('First Bruce Affidavit') and 7 October 2022 ('Second Bruce Affidavit');

(b) affidavit of Robert A. de By ('Mr de By') sworn on 13 October 2022; and

(c) written outline of consolidated submissions filed 22 November 2024.

(a) written outline of consolidated submissions filed on 9 October 2024;

(b) written outline of reply submissions filed on 13 December 2024;

(c) outline of closing submissions dated 19 May 2025; and

(d) an aide memoire on issues for determination dated 19 May 2025.

1. Mr de By of Connon Wood and Mr Bruce of Batten Sacks were cross-examined on their affidavits at the trial of this proceeding.

1. Much of the relevant background is uncontroversial.
2. Mr Yunghanns and Mr Colquhoun-Denvers have both been polo enthusiasts for many years and have occupied senior positions in FIP. FIP was established in 1982. Australia was a foundational member and there are currently more than 80 member countries, accounting for broad international participation. FIP has a constitution and by-laws. FIP's members are the various national governing bodies. FIP's governing body is the General Assembly which meets annually in Buenos Aires, Argentina.
3. Disagreements developed between Mr Yunghanns and Mr Colquhoun-Denvers from about 2009 which, relevantly, were expressed in a number of emails in 2015 and 2016. It is unnecessary to describe in detail the content of those emails save to say that they included personal criticisms and questions concerning the conduct in the administration of FIP. Those emails formed the basis of defamation allegations that Mr Colquhoun-Denvers and Mr Yunghanns levelled at each other personally by claim and counterclaim issued in this Court. Lawyers were engaged in relation to the allegations.
4. On 18 February 2016, Mr Yunghanns' solicitors sent a concerns notice to Mr Colquhoun-Denvers under s 14 of the Defamation Act 2005 (Vic) ('Defamation Act') alleging that Mr Colquhoun-Denvers had defamed him in communications dated 3 November 2015 and 3 December 2015 ('Concerns Notice').
5. According to a Connon Wood invoice dated 29 September 2016, Connon Wood first charged for legal services in relation to the Concerns Notice on 18 February 2016, and engaged counsel, Dr Sean Baron Levi (then known as Dr Sean Bogan) ('Dr Baron Levi'), on 19 February 2016.[8] Mr de By and Dr Baron Levi knew each other after having worked in the same firm for several years.
6. As noted above, on 31 March 2016, Mr Yunghanns issued a writ alleging defamation.
7. On 11 October 2017, Connon Wood, FIP, Mr Colquhoun-Denvers (who was president of FIP at that stage) and members of the executive committee of FIP, entered into an agreement in relation to the provision of legal services and payment for these services (that being, the CW Retainer).
8. On 31 May 2016, Batten Sacks was retained to act in the Defamation Proceeding.[9] Batten Sacks at all times throughout the Defamation Proceeding acted as Mr Colquhoun-Denvers' solicitor on the record. The question of the capacity in which Batten Sacks was engaged and by whom is in issue. Mr Yunghanns submits that Batten Sacks was Connon Wood's agent with limited responsibilities.[10] Mr Colquhoun-Denvers submits that Batten Sacks, at least later in the course of the proceeding, was the principal lawyers.[11]
9. On 26 March 2018, Mr de By on behalf of Connon Wood prepared a memorandum addressed to the President and CEO of FIP, and Dr Hugo Lens, the lawyer representing FIP's insurer, to provide 'an indication of anticipated costs (professional fees and expenses) involved in the preparation for trial...' ('March Memorandum').[12] The March Memorandum is discussed in greater detail below at paragraph 94 and following.
10. On 10 April 2018, FIP's CEO, Mr Alejandro (Alex) Taylor wrote to Dr Lens[13] and explained that 'AIG-Uruguay is confused and gets the roles backwards. Mr de By leads the case and conducts the litigation (something barristers, by law, are not allowed to do). While Batten Sacks acts as local counsel'.[14] The letter continued by explaining, '... FIP's President's team was lean and efficient, resulting in significant cost savings, consisting of a single barrister Dr. Baron Levi and Mr Colquhoun-Denvers' personal attorney (and FIP Legal Counsel) Mr de By of Connon Wood LLP, assisted from time to time by local counsel (the solicitor-agent at Batten Sacks)'.[15]
11. On 14 April 2018, at the request of Dr Baron Levi, Batten Sacks retained Jaye Alderson as additional counsel.[16]
12. On 15 April 2018, Raymond (Ray) Abrahams of Batten Sacks sent an email to Mr de By, Mr Taylor and Felipe del Sel, copying in Mr Bruce, Ms Alderson, Dr Baron Levi and Mr Bruce McClintock SC. The email provides a fee estimate including fees to be incurred by Ms Alderson and asks for payment to be made into Batten Sacks' trust account.[17] On 16 April 2018, Mr de By responded to Mr Taylor copying in Mr Felipe del Sel, stating:

Ray should not have sent the message to you directly.

...

I have asked Ray to adhere to normal protocol and to use me as the central point for such matters as FIP Legal Counsel and his instructing attorney going forward.[18]

1. On 16 April 2018, Batten Sacks provided a costs estimate to Connon Wood 'in respect of costs to trial' and asked that Connon Wood forward the costs estimate to FIP. Batten Sacks stated that they were doing so at the request of Mr Taylor but also stated '[w]e have not included Alejandro into this email to comply with your request not to send to FIP email addresses'.[19]
2. On 30 April 2018, the hearing of the Defamation Proceeding and counterclaim commenced before T Forrest J.
3. After April 2018, Connon Wood rendered numerous invoices for services provided. Some of these are discussed below.
4. During May 2018, FIP was in communication with its insurer seeking payment for legal fees under the policy. During the course of communications with the insurer, Connon Wood and FIP, there were several references to FIP not being able to fund the litigation and the problems that that would cause. There was no suggestion that Mr Colquhoun-Denvers would or should pay any fees personally.
5. On 29 May 2018, Mr Bruce wrote to Mr de By and Mr Taylor stating that:

We were not expecting and never made provision for any of Sean's expenses to be included in our request for pre-trial funding as his account was always between FIP and him directly. No prior provision for Sean's fees and/or expenses was made accordingly.[20]

1. It is notable that of the many communications about the substantial legal fees that were being incurred, none of the communications from Batten Sacks was emailed to Mr Colquhoun-Denvers personally, and there is no evidence that he was aware of the fees that were being incurred, nor is there any evidence of any fee agreement pursuant to which Mr Colquhoun-Denvers agreed to pay Batten Sacks' fees.
2. On 24 August 2018, the hearing of the Defamation Proceeding concluded. Judgment was delivered on 28 June 2019. Costs orders were made on 20 December 2019 ordering that:

(a) on the claim, the plaintiff pay the defendant's costs of that proceeding on a standard basis.

(b) on the counterclaim, the defendant pay the plaintiff's incremental costs of that proceeding on a standard basis.[21]

1. Mr Yunghanns unsuccessfully appealed those orders.
2. On 5 April 2022, Mr Colquhoun-Denvers filed the Bill of Costs which included at item 2243 an unconventional disbursement of $1,233,705.54 which was specified as the fees of Connon Wood.
3. The issues to be determined include consideration of the CW Retainer entered into and the services provided. Mr Colquhoun-Denvers claims Connon Wood's fees as a disbursement, on the basis that Batten Sacks was the principal lawyer acting for Mr Colquhoun-Denvers, and Connon Wood's fees are a disbursement properly incurred and claimed by Batten Sacks for whom Connon Wood was an agent.[22]
4. Mr Yunghanns submits that Connon Wood's fees are not recoverable as a disbursement because Connon Wood was in fact the principal lawyer. Mr Yunghanns submits that as principal, the only basis upon which Connon Wood can claim remuneration is by way of a claim for legal costs, but, and by operation of the LPUL, Connon Wood is prohibited from engaging in legal practice in Victoria and claiming legal costs.[23] Such costs are only recoverable by practitioners qualified and entitled to act in the jurisdiction. As Connon Wood is not so entitled, the fees cannot be recovered as costs, but can only be recoverable as a disbursement. In such circumstances, as Mr Yunghanns submits, the fees are only recoverable as a disbursement if Connon Wood provided those services as an agent engaged by Batten Sacks.[24]

1. The indemnity principle is that, as between party and party, the party ordered to pay the other party's costs is obliged to pay only those costs which the other party is legally obliged to pay.[25] Hence, the centrality of the question whether Mr Colquhoun-Denvers is liable to pay Connon Wood's fees.
2. The indemnity principle is not rigid and should be applied 'flexibly and reasonably'.[26] For example, where a party is liable for costs but also entitled to an indemnity in respect of those costs from a third-party, costs are recoverable under the indemnity principle despite the entitlement to that indemnity.[27] Another example of the flexible application of the indemnity principle concerns cases where the party has no liability for costs, but is a 'nominal party' for the 'real party' who has an interest in the proceeding. Such cases include beneficiaries bringing proceedings in the name of a trustee or assignees bringing proceedings in the name of an assignor.

Issue 1.1: Is Mr Colquhoun-Denvers personally liable to pay Connon Wood's fees?

1. The question whether Mr Colquhoun-Denvers is personally liable to pay Connon Wood's fees requires consideration of the proper construction of the CW Retainer. The CW Retainer is in writing, and accordingly the principles concerning implied or presumed retainers are not applicable.
2. The CW Retainer contains an 'Entire Agreement' clause[28] and it was not suggested that there were any implied terms. The principles of construction are uncontroversial: the rights and liabilities of parties to a contract are to be determined objectively.[29] Where the contract is commercial, it is necessary to ask what a reasonable person in the circumstances would have understood the words to mean.[30] Evidence of mutually-known, objective background circumstances relevant to the purpose of the contract is admissible no matter how clear the ordinary meaning of the words of the contract.[31]

1. On 11 October 2017, FIP and Mr Colquhoun-Denvers executed an agreement with Connon Wood (referred to in this judgment as the CW Retainer). Mr Colquhoun-Denvers signed the agreement in his personal capacity and as president of FIP. The CW Retainer includes the following terms:

(a) In respect of parties, the agreement states that it is made between FIP (called the 'Client') and Connon Wood (called 'Counsel' or the 'Firm'). The preamble specifies that the agreement:

[S]ets forth the terms under which COUNSEL will render legal services to CLIENT, including its President and Members of its Executive Committee, as the case may be, in the below matter.

(b) As to commencement, cl 1 of the CW Retainer provides:

The effective date of this AGREEMENT shall be retroactive to the date COUNSEL first performed services for CLIENT...

(c) As to the services to be provided, cl 2 specifies:

CLIENT hires COUNSEL to provide legal services to FIP in connection with allegations and, if and when instigated, litigation by Mr. Peter Yunghanns based on alleged defamation by FIP, including by its President and members of FIP's Executive Committee, based on two FIP e-mails attached to the Concerns Notice dated 18 February 2016 ... This AGREEMENT is limited to the services. Any representation by COUNSEL of CLIENT or its President or the Members of its Executive Committee beyond that set forth herein, if any, shall be set forth in a separate agreement. CLIENT'S matter will be handled by COUNSEL'S personnel as determined by the best professional judgment of COUNSEL...

(d) Clause 23 is an 'Entire Agreement' clause stated in the following terms:

Entire Agreement. This AGREEMENT constitutes the entire contract between CLIENT (including its President and the Members of Its Executive Committee) and COUNSEL. No other agreement, statement, or promise made on or before the effective date of this AGREEMENT will be binding on the parties. This AGREEMENT may be modified by subsequent agreement of the parties only by a signed instrument in writing.

(e) As to fees and disbursements, cls 3 and 4 provide:

Fees. As compensation for COUNSEL'S services, CLIENT will pay to COUNSEL a fee based on the regular hourly billing rate assigned to the personnel performing services under this AGREEMENT at the time the services are rendered...

Disbursements and Charges. In addition to the fees described above, CLIENT will reimburse and pay COUNSEL for all disbursements made by COUNSEL, and COUNSEL'S customary charges or in-house services and travel, in connection with legal services performed under this AGREEMENT.

(f) Clause 6 stipulates the parameters of obtaining informed written consent of FIP's president and members to payment of fees by FIP. It provides:

Informed Written Consent by FIP's President and Members of the Executive Committee to Payment of Attorneys Fees, Disbursements, and Costs by Client.

FIP's President and members of its Executive Committee understand and agree that legal fees, disbursements and charges for representation of them by COUNSEL in connection with the DISPUTE, including payment of the RETAINER provided for by this AGREEMENT, may be made by CLIENT. FIP's President and Members of the Executive Committee expressly requested that Client be permitted to pay such legal fees, disbursements and charges, including the Retainer provided for by this Agreement. ... FIP's President and the Members of the Executive Committee acknowledge that they have been fully informed of this, and consented to the payments by CLIENT. The attorney-client relationship that exists in connection with the subject matter of this representation will be between CLIENT, its President ex officio, Members of the Executive Committee ex officio, and COUNSEL.

1. In the First Bruce Affidavit, Mr Bruce, deposed that the CW Retainer 'is the only agreement between [Mr Colquhoun-Denvers], [FIP] and Connon Wood LLP giving rise to the disbursements claimed by [Mr Colquhoun-Denvers] in the bill of costs filed 5 April 2022'.[32] Mr Bruce also deposed that the agreement was drafted after a Concerns Notice had been issued by Mr Yunghanns but before the proceeding was issued, and in contemplation of it being issued.[33] In the Second Bruce Affidavit, after the issue of the entitlement to the disbursement had been raised, Mr Bruce referred to his earlier statement and said that he meant it as 'the only Agreement in writing giving rise to the Disbursements claimed ... I did not mean to exclude the existence of any oral or implied agreements between those parties, to which I am not in a position to aver'.[34] Mr Yunghanns did not submit that there were any relevant implied terms.

1. Mr Colquhoun-Denvers submits that there is a presumption that he is liable for Connon Wood's fees, which is not displaced by the terms of the CW Retainer.[35] It is submitted that on the proper construction of the agreement, Mr Colquhoun-Denvers bore a liability for Connon Wood's fees as president of FIP that was coexistent with its obligation to pay the fees. As to construction of the CW Retainer, Mr Colquhoun-Denvers submits first, that there was no substantive distinction between him and FIP and himself given that the allegations were in respect of emails sent by Mr Colquhoun-Denvers as president of FIP.[36] Mr Colquhoun-Denvers submits that he was a party to the agreement 'in his capacity as president of FIP'.
2. Second, Mr Colquhoun-Denvers submits that there is no clause stating that the applicant has no liability for Connon Wood's fees and relies on the terms of cl 9 which, by implication, accommodate a fee dispute between Connon Wood and Mr Colquhoun-Denvers.[37]
3. Third, Mr Colquhoun-Denvers submits that terms imposing liability on FIP to pay Connon Wood's fees do not necessarily preclude Mr Colquhoun-Denvers' liability to pay those fees. Mr Colquhoun-Denvers also relies on cl 6 and in particular the express consent that Connon Wood's fees '"may be made by client" (that is, FIP)' (capitalisation omitted).[38]
4. My Yunghanns submits that there are five important features of the CW Retainer that support the conclusion that Mr Colquhoun-Denvers is not liable for Connon Wood's fees.[39]
5. First, the agreement is between Connon Wood, FIP and Mr Colquhoun-Denvers as president of FIP and also in his personal capacity. Therefore, any obligation of Mr Colquhoun-Denvers to pay Connon Wood's fees is to be ascertained from the CW Retainer.
6. Second, the CW Retainer was executed in October 2017, but is noted as being retroactive to the date 'COUNSEL first performed service for CLIENT'.[40] At the time the CW Retainer was signed, Connon Wood had provided services in response to the Concerns Notice and the Defamation Proceeding, which was issued on 18 February 2016. The subject matter of the CW Retainer therefore included Connon Wood's charges for legal services in connection with the defamation proceeding.
7. Third, the terms of cl 2 make it clear that the purpose of the CW Retainer was to express the terms on which Connon Wood provided services in connection with the Defamation Proceeding.
8. Fourth, the clauses dealing with payments to be made for Connon Wood's fees are cls 3, 4, 5, 8, 20 and 25. Each of those clauses refers solely to 'CLIENT' without any reference to FIP's president and members of its Executive Committee. The only party with an obligation to pay Connon Wood's fees, disbursements and charges under cls 3 and 4 is FIP. This is in contrast with other clauses which refer to both the client and its president.
9. Fifth, cl 23, being an 'Entire Agreement' clause, precludes recourse to anything beyond the terms of the CW Retainer.

1. The preamble to the CW Retainer provides that the agreement:

... is made between [FIP] ... (hereinafter 'CLIENT') and CONNON WOOD LLP (hereinafter 'COUNSEL' or the 'FIRM') and sets for the terms under which COUNSEL will render legal services to CLIENT, including its President and Members of its Executive Committee, as the case may be, in the below matter.

1. The parties, at least initially, proceeded on the agreed basis that there was an express retainer between Mr Colquhoun-Denvers, Connon Wood and FIP constituted by the CW Retainer.[41] In final submissions, counsel for Mr Colquhoun-Denvers submitted that 'in truth Mr Colquhoun-Denvers is also a client'[42] and also that, if Mr Yunghanns' submissions are accepted, then 'this is an agreement only between Connon Wood and FIP' meaning that 'Mr Colquhoun-Denvers in his personal capacity is not a party to the agreement'.[43] This was submitted in support of the proposition that if Mr Colquhoun-Denvers was not a party to the CW Retainer in his personal capacity, then he remained subject to an implied obligation to pay fees incurred for services provide to him. Counsel for Mr Yunghanns submitted that the case had been run on the basis that Mr Colquhoun-Denvers was a party to the CW Retainer in his personal capacity and in any case, the CW Retainer is executed by Mr Colquhoun-Denvers personally.[44]
2. It is apparent from the terms of the CW Retainer that the parties to the agreement were Connon Wood, FIP and Mr Colquhoun-Denvers in his personal capacity. If Mr Colquhoun-Denvers was not to be a party to the CW Retainer in his personal capacity, there would be no need for him to execute the CW Retainer twice, once as president of FIP and once personally. The fact that under his personal signature the words 'Corporate Function: President' appear, does not detract from that conclusion. I also note that in the March Memorandum, Mr de By, on Connon Wood letterhead, writes:

Attorney: Connon Wood LLP partner Robert de By is Mr. Colquhoun-Denver's personal attorney. Mr de By is also the general counsel for [FIP].

1. Further, the objective factual background to the CW Retainer included that defamation claims had been brought against, and by, Mr Colquhoun-Denvers personally. The language of the CW Retainer, including the manner of its execution, indicate that the CW Retainer was to be an agreement between Connon Wood, FIP and Mr Colquhoun-Denvers personally in relation to the costs of the Defamation Proceeding.
2. In the context of the CW Retainer being a tripartite agreement, cl 3 allocates responsibility for the payment of Connon Wood's fees to 'CLIENT', which is defined as FIP. There is no express term in the CW Retainer allocating responsibility for fees to Mr Colquhoun-Denvers. Viewed objectively, this clause imposes sole liability on FIP to pay legal fees. Each of Connon Wood, FIP and Mr Colquhoun-Denvers are parties to the CW Retainer and could have allocated liability for fees in another way, or in a conditional way, but they did not. A reasonable person in the circumstances would interpret cl 3 as imposing liability for Connon Wood's fees on FIP alone.
3. The terms of cl 6 do not detract from that conclusion. It is apparent from cl 6 that it was included in order to address the requirements of r 3-310(F) of the California Rules of Professional Conduct.[45] On its proper construction, that clause is an authority (for FIP to pay Connon Wood's fees) required for the purposes of those rules. The use of the word 'may' in that context does not detract from the allocation of liability for fees to FIP contained in cl 3.
4. The express terms of the CW Retainer displace any presumption that may otherwise arise in the absence of such terms. Mr Colquhoun-Denvers relies on the principle in Shaw v Yarranova that in order to preclude liability for fees, a person for whom legal services were provided must:

prove that there was no retainer or establish that there was an express or implied agreement between the respondents and their solicitors that under no circumstances whatsoever were they to be liable for their solicitors' fees.[46]

1. Having regard to the allocation of liability for fees in the CW Retainer, and the presence and terms of the 'Entire Agreement' clause, I am satisfied that under no circumstances was Mr Colquhoun-Denvers to be liable for Connon Wood's fees.

Issue 1.2: Should FIP be regarded as the 'real party' to the litigation such that the indemnity principle is satisfied?

1. The fact that a party incurs no liability for costs does not necessarily mean that the indemnity principle does not apply. A recognised exception is where costs are incurred by the 'real party' to the litigation. The leading case for such a principle, and the one on which Mr Colquhoun-Denvers based his submission, is Dyktynski v BHP Titanium Minerals Pty Ltd ('Dyktynski').[47]
2. In Dyktynski, an employee was awarded compensation with costs against his employer. The Court refused an application for interest on the costs when they were paid by the employer months later. The employee's solicitors appealed from the decision in the name of the employee in the interests of having the Court of Appeal determine the legal principle. The employee did not stand to benefit from the appeal but agreed to be the nominal party on an undertaking from the employee's solicitors that he would, in no circumstances, be liable to pay any costs relating to an appeal brought in his name. A review panel and a Master of the Supreme Court of New South Wales each concluded that the indemnity principle precluded recovery of costs because the nominal appellant was not liable to pay any costs. On appeal, the Court of Appeal held that, notwithstanding the plaintiff's lack of liability to pay any costs due to the solicitor agreeing as much, costs were nevertheless recoverable from the respondent as the solicitor was the 'real party' to the litigation.

1. Mr Colquhoun-Denvers submits that even if he is not personally liable for Connon Wood's costs pursuant to the terms of the CW Retainer, Connon Wood's costs are recoverable in any case as FIP was the 'real party' to the litigation.[48] Mr Colquhoun-Denvers relies on McColl JA's analysis in Dyktynski where her Honour explained that the indemnity principle does not prevent recovery of costs '...where there was a nominal plaintiff who had incurred no costs but a third party with an interest in the litigation who had'.[49] Mr Colquhoun-Denvers notes that McColl JA referred to a number of examples where a party incurred no liability for costs but was nonetheless entitled to recover costs, including:

(a) a beneficiary suing in the name of a trustee subject to an indemnity as to costs;[50]

(b) a company plaintiff who was indemnified by a third-party who had the relevant interest in the outcome;[51]

(c) a party indemnified by an insurance policy;[52]

(d) a prosecutor in a court of summary jurisdiction;[53] and

(e) a solicitor employed by the Crown in legal proceedings where the Crown had an interest to protect.[54]

The indemnity principle is directed at reimbursing a party (including a "real party") for expenses actually incurred, and operates flexibly and reasonably to produce a sensible and just result that seeks to avoid giving a bonus to the party. The principle's flexibility looks to substance rather than form, and has no difficulty with situations where a third party is paying the fees.[55]

1. Mr Colquhoun-Denvers submits that it was his conduct as president of FIP that was in issue and accordingly, FIP had a 'legitimate interest' in the Defamation Proceeding. This language reflects McColl JA's reference to the principle applied in Lenthall v Hillson and New Pinnacle Group Silver Mining Co v Luhrig Coal & Ore Dressing Appliances Co ('New Pinnacle') that 'where there was a nominal plaintiff who had incurred no costs but a third party with an interest in the litigation who had, the indemnity principle did not preclude a costs order in favour of the successful, albeit nominal, party'.[56] Mr Colquhoun-Denvers supports this submission, noting that the emails dated 3 November and 30 December 2015 giving rise to the Defamation Proceeding were each expressed in the plural ('we deeply regret'; 'we feel obliged'; and 'we express our sincere hope').
2. Mr Yunghanns submits that the present case can be distinguished from Dyktynski on the basis that that case concerned a nominal party lending his name to the real party, whereas in this case, Mr Colquhoun-Denvers was the real party as he was sued personally and brought a counterclaim personally.[57]

1. As a general proposition, it is well-established that costs are awarded as an indemnity (or at least, a partial indemnity) for professional legal costs actually incurred.[58] This proposition reflects the rationale that 'it is just and reasonable that the party who has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred'.[59] Costs are not awarded as punishment for the unsuccessful party, or a reward for the successful party.[60] A corollary of that rule is that '[i]f a party to an action has agreed with the solicitor that the party does not have to pay any costs, then costs cannot be recovered against the adversary under a party and party costs order'.[61] Equally, if the solicitor has agreed to cap costs at a particular level, then that enures to the benefit of the other party.[62]
2. The application of the indemnity principle is more nuanced where a third-party has agreed to pay or indemnify the party's costs. Whether costs are recoverable depends, to an extent, on whether the party remains concurrently liable for fees. Where the party has a right of indemnity but is also personally liable to the solicitor for legal fees, the party remains able to recover costs under the indemnity principle. As Mason P observed in Dyktynski, a party is not precluded from recovering costs if the client has the benefit of an indemnity 'so long as the client remains under a legal liability to the solicitor'.[63] Where the party has a right of indemnity in respect of costs but is not concurrently liable for those fees, courts have approached the question more broadly by reference to substantive considerations, primarily by reference to whether the third-party is the 'real party' and the named party is merely a 'nominal party'.
3. In Dyktynski, the Court proceeded on the basis that the party had no liability to the solicitor for costs,[64] and then went on to consider whether an order for costs should be made in any case. President Mason discussed the question in terms of the whether there were applicable 'exceptions to the indemnity principle'. President Mason identifies three possible exceptions, the only relevant one for present purposes being that 'stemming from New Pinnacle,' which his Honour describes as follows:

[T]he applicable principles require a substantive as distinct from a formal approach in identifying the real party to proceedings. If that party incurs the legal expenses of proceedings brought on his or her behalf by the "nominal" plaintiff, then recovery of costs awarded to the nominal plaintiff is not defeated by the indemnity principle.[65]

1. Accordingly, as Mason P describes it, if the 'real party' to the proceeding incurs legal expenses of the proceedings brought on his or her behalf by the 'nominal' plaintiff then recovery of costs is not defeated by the indemnity principle.
2. McColl JA considered that the indemnity principle operated on substance rather than form, so that the 'real party' to the litigation should be indemnified for its costs. After surveying the relevant authorities and texts, McColl JA concluded as follows:

This review of authorities demonstrates that courts have consistently held that a nominal plaintiff, whether one who had not incurred any liability for costs (Lenthall v Hillson; Inglis v Moore; MacLaurin v Hall; Blackall v Trotter (No 1) or who had received an express indemnity in respect of such costs (New Pinnacle), was entitled to a costs order even though the benefit of that costs order enured to third party with an interest in the litigation.

There are two ways of looking at such cases. In New Pinnacle, the Court held that the indemnity principle did not apply. The better interpretation, in my view, is that expressed in Lenthall v Hillson, namely that even before Bramwell B's enunciation of the indemnity principle in Harold v Smith, "costs" was understood as an indemnity to the real party bringing the action without regard to the "liability of the nominal party, whose name must necessarily appear on the record". In such cases the indemnity principle operated on the substance rather than the form to produce a sensible and just result.

The principle does not, in my view, rest upon the narrow proposition that there was a pre-existing representative relationship between the nominal plaintiff who sues and the third party on whose behalf the right asserted in the proceedings was litigated. Neither New Pinnacle nor Lenthall v Hillson turned on identifying such a relationship. The nominal plaintiff cases rest upon the proposition that costs have been incurred by the "real" not the "nominal" party and that costs are a "necessary consequence of a party having created litigation in which he [sic] has failed". The cases recognise that the indemnity principle must be "reasonably understood and applied".[66]

1. Embedded in the principles as discussed in Dyktynski is the dichotomy between the 'real party' and the 'nominal party'. The 'real party' is predominantly identified as the party whose rights are being vindicated or protected in the proceeding with the necessary assistance of the nominal party as a party to the proceeding in name only. The 'nominal party' is predominantly described as a party without any substantive interest in the litigation who is a necessary vehicle for the vindication of the real party's rights. Within that framework, McColl JA concluded that the fact that a nominal party is not liable for the real party's costs should not mean that the indemnity principle operates to preclude recovery of the real party's costs. That is because it is 'sensible and just' in such circumstances for the 'real party' to be entitled to their costs. So much is clear from McColl JA's conclusion which was expressed as follows:

It is clear, in my opinion, that the case falls within the principles identified in the nominal party cases. The appellant's solicitors stood to benefit from an order awarding interest on the costs recovered in respect of the compensation proceedings. They were entitled to recover interest on the costs because the respondent had delayed their payment. The entitlement to interest was, as was held in the first appeal, clearly set out in s 110 of the Workplace Injury Management and Workers Compensation Act 1998. Stacks could only enforce that right to interest, as it could only enforce the costs order, in the appellant's name. The appellant was an essential, albeit nominal, party to the appeal. Stacks incurred the costs of the first appeal as the real party to that appeal.[67]

1. Mr Colquhoun-Denvers submits that FIP is the 'real party' to the litigation in the sense discussed in Dyktynski.[68] For the following reasons, I do not consider that Mr Colquhoun-Denvers can properly be described as the 'nominal party' nor can FIP be described as the 'real party'.
2. First, irrespective of FIP's role, it is clear that Mr Colquhoun-Denvers was not a 'nominal party' but was the 'real party' to the Defamation Proceeding. Mr Colquhoun-Denvers was sued directly, and he personally issued a counterclaim alleging that he was defamed. The Defamation Proceeding was not brought by Mr Colquhoun-Denvers 'on behalf of' FIP in Mr Colquhoun-Denvers' name. Mr Colquhoun-Denvers was defending allegations made against him personally and prosecuting his own personal claims. In that sense, which appears to be the relevant sense, Mr Colquhoun-Denvers was the 'real party'. The fact that FIP agreed to pay those costs does not mean that Mr Colquhoun-Denvers ceased to be the real party to the Defamation Proceeding.
3. Second, it is equally difficult to see how FIP could be regarded as the 'real party' to the Defamation Proceeding when Mr Colquhoun-Denvers was sued and issued proceedings in his own name in relation to allegedly defamatory comments made by and against him. Mr Colquhoun-Denvers submits that FIP had a 'legitimate interest' in the proceeding and that it 'ought to be regarded as the real party given that its interests were at issue'.[69] Even accepting that FIP may have had an interest in the Defamation Proceeding does not mean that FIP was the real party or that Mr Colquhoun-Denvers was not the real party. Even if FIP can be said to have an interest in the proceedings, based on the authorities cited, I do not consider that the indemnity principle applies where the named party (that is, Mr Colquhoun-Denvers) is the real party, and Mr Colquhoun-Denvers has no liability for costs.
4. Third, the Defamation Proceeding was not instituted nor conducted by FIP in Mr Colquhoun-Denvers' name as a 'necessary party'. In that sense, the present case can be distinguished from cases concerning cestui que trusts and assignees where the nominal parties are necessary parties as vehicles for the non-party's claim. In this case, there was no relevant 'necessity' on the part of FIP to defend or bring a claim in the name of Mr Colquhoun-Denvers, because the defence and claim were both Mr Colquhoun-Denvers' personally to prosecute. I accept that there is no need for a pre-existing representative relationship, but that does not mean that the necessity of the participation of the named party can be divorced from the question of who is the 'real party'. Having regard to FIP's interest in the Defamation Proceeding (as described by Mr Colquhoun-Denvers), it cannot be said that Mr Colquhoun-Denvers was a 'necessary party' in the sense discussed in the authorities for the purposes of FIP prosecuting whatever interest it had in the subject matter of the Defamation Proceeding.
5. Fourth, Mr Colquhoun-Denvers submits (consistently with the language in Lenthall v Hillson) that the 'sensible and just result' is that FIP be regarded as the real party.[70] I do not consider that the principle in Dyktynski goes so far as to establish 'sensible and just' as the determinative concept for recoverability of legal fees unanchored from the way in which the concepts of the 'real party', 'necessary party' and 'nominal party' have been expressed and applied. Justice of Appeal McColl described the result in Dyktynski as 'sensible and just' after having surveyed the authorities, and applied Lenthall v Hillson. McColl JA described the principle in Lenthall v Hillson as being that costs should be understood as an indemnity to the 'real party ... without regard to the "liability of the nominal party whose name must appear on the record"'.[71] However, this is not a case where the action was brought and defended by FIP as the 'real party' in the name of Mr Colquhoun-Denvers 'as a necessary party'. Mr Colquhoun-Denvers was a necessary party because the claim was brought directly against him as a defendant, and he issued the counterclaim in his own name. Mr Colquhoun-Denvers was not a necessary party because FIP needed to use his name to vindicate its own interests.
6. For those reasons, I do not consider that FIP can be regarded as the real party as discussed in Dyktynski, and accordingly, the exception to the indemnity principle discussed in Dyktynski does not apply to FIP.

Issue 2: Recoverability of Fees of Foreign Lawyers

1. In relation to the recoverability of Connon Wood's fees, the following issues must be determined:

(a) Issue 2.1: Whether Connon Wood provided Mr Colquhoun-Denvers with legal services in the conduct of the defence of the Defamation Proceeding.

(b) Issue 2.2: If 'yes' to 2.1, did Connon Wood perform those services as principals rather than as agents of Batten Sacks?

(c) Issue 2.3: If 'yes' to 2.1 and 2.2, did Connon Wood act (or would Connon Wood have acted) in breach of s 10 of the LPUL insofar as the services were provided in Australia, on the basis that:

(i) the provision of the services did not involve the practice of foreign law; and

(ii) Connon Wood was not a qualified entity entitled to practise in the jurisdiction?

(d) Issue 2.4: If 'yes' to 2.1, 2.2 and 2.3 are Connon Wood's fees recoverable as 'the costs of professional legal services rendered to a litigant in the conduct of litigation'?

(e) Issue 2.5: If 'no' to 2.4, are Connon Wood's fees in any event recoverable as a 'disbursement'?

Principles and legislation in relation to foreign lawyers' costs and disbursements

1. The power to award costs is contained in s 24 of the Supreme Court Act 1986 (Vic) ('Supreme Court Act') which provides:

Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.[72]

1. Section 3 of the Supreme Court Act defines costs as including 'fees, charges and disbursements'. Rule 63.01 of the Rules defines 'costs' as including 'disbursements and reasonable costs of recording and transcript'.
2. Rule 63.44 provides:

Where a bill includes a charge for work done out of Victoria by a legal practitioner -

(a) so far as is practicable, the charge shall, if allowed, be allowed in an amount appropriate to the place where the work was done; and

(b) except where the work was done by a legal practitioner who is a member of, or employed by, the same legal practice, the charge shall be shown as a disbursement.[73]

1. The meaning of 'recoverable costs' and 'disbursements', and the distinction between them, are central issues. They depend on common law principles.[74] In Birketu v Atanskovic ('Birketu'), the majority of the High Court of Australia explained:

To repeat the formulation in Cachia v Hanes as endorsed in Bell Lawyers, the general common law principle ... is that costs are awarded only by way of indemnity or partial indemnity "for professional legal costs actually incurred in the conduct of litigation". The general common law principle limits the costs that can be ordered in two respects. First, it confines the costs that can be ordered to the costs of professional legal services rendered to a litigant in the conduct of litigation. Second, it confines the costs of professional legal services rendered to a litigant in the conduct of litigation to those "actually incurred" by the litigant so as, for example, to exclude professional legal services which have been agreed to be rendered to a litigant for free.[75]

1. In Cachia v Hanes, the High Court of Australia described costs in the conventional sense as being 'remuneration for work performed by a solicitor or a solicitor's clerk', that is, 'work done by a practitioner or practitioner's employee'.[76] Having regard to the fact that the provision of legal services is governed by the LPUL, the references to 'practitioner' and 'solicitor' encompass legal services performed by persons qualified and entitled to provide those legal services in the jurisdiction.
2. Disbursements encompass 'payments made, or liabilities incurred by a practitioner acting for the party in whose favour a costs order has been made which the practitioner is bound to pay, or payments which, by established custom or practice of the profession, the practitioner is bound to pay'.[77] Again, having regard to the application of the LPUL, this means disbursements that a qualified person is bound by custom or practice to pay.
3. The circumstances in which fees, including those of a foreign lawyer, are recoverable are set out in the LPUL.[78]
4. The LPUL contains the following definitions of 'legal costs' and 'legal services':

(a) amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services; or

(b) without limitation, amounts that a person has been or may be charged, or is or may become liable to pay, as a third party payer in respect of the provision of legal services by a law practice to another person -

including disbursements but not including interest;

...

'legal services' means work done, or business transacted, in the ordinary course of legal practice.[79]

1. In relation to foreign lawyers, the relevant provisions are ss 9, 10, 60 and 69 of the LPUL. Sections 9 and 10 provide as follows:

PART 2.1 - UNQUALIFIED LEGAL PRACTICE

9 Objectives

The objectives of this Part are -

(a) to ensure, in the interests of the administration of justice, that legal work is carried out only by those who are properly qualified to do so; and

(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.

10 Prohibition on engaging in legal practice by unqualified entities

(1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.

Penalty: 250 penalty units or imprisonment for 2 years, or both.

(2) An entity is not entitled to recover any amount, and must repay any amount received (emphasis added), in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it.

(3) Subsection (1) does not apply to an entity or class of entities declared by the Uniform Rules to be exempt from the operation of subsection (1), but only to the extent (if any) specified in the declaration.[80]

1. 'Qualified entity' is defined in s 6 as follows:

(a) an Australian legal practitioner; or

(b) a law practice; or

(c) either -

(i) an Australian-registered foreign lawyer; or

(ii) a foreign lawyer who is not an Australian-registered foreign lawyer but only to the extent that the foreign lawyer's legal practice is limited to the practice of foreign law and is carried out in accordance with the applicable requirements of Part 3.4 (emphasis added); or

(d) an individual engaged in legal practice under the authority of a law of the Commonwealth or of a jurisdiction, other than this Law or the Uniform Rules; or

(e) an entity engaged in legal practice of a kind specified in the Uniform Rules for the purposes of this definition, but only while the entity engages in the legal practice in accordance with any applicable requirements of the Uniform Rules[.][81]

1. Accordingly, a foreign lawyer may practise in Australia only to the extent that the foreign lawyer's legal practice is limited to the practice of foreign law and is carried out in accordance with the applicable requirements of Part 3.4. Part 3.4 includes the following:

58 Objective

The objective of this Part is to encourage and facilitate the internationalisation of legal services by providing a framework for the regulation of the practice of foreign law in this jurisdiction by foreign lawyers as a recognised aspect of legal practice in this jurisdiction.

...

60 Practice of foreign law without registration but for limited periods

(1) _A foreign lawyer may, subject to this Law, practise foreign law in this jurisdiction without having to hold a current Australian registration certificate - _

(a) during one or more periods that do not in aggregate exceed 90 days in any period of 12 months (emphasis added); or

(b) during any period during which any restriction under the Migration Act 1958 of the Commonwealth has the effect of limiting the period during which work may be done, or business transacted, by the foreign lawyer in Australia.

...

Penalty: 250 penalty units.

69 Scope of practice

(1) This section applies to -

(a) a foreign lawyer who is practising foreign law under Division 2 (emphasis added); or

(b) an Australian-registered foreign lawyer.

(2) The foreign lawyer may provide only the following legal services in Australia -

(a) doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered or authorised by the foreign registration authority for the country;

(b) legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of a country referred to in paragraph (a) is considered by the designated local regulatory authority to be essential;

(c) legal services in relation to arbitration proceedings or conciliation, mediation and other forms of consensual dispute resolution;

(d) legal services of a kind specified in the Uniform Rules for the purposes of this section.

(3) Nothing in this Law authorises the foreign lawyer -

(a) to practise Australian law in Australia; or

(b) to appear in any court, except on the lawyer's own behalf or as permitted by the Uniform Rules.

(4) Despite subsection (3), the foreign lawyer may advise on the effect of an Australian law if -

(a) the giving of advice on Australian law is necessarily incidental to the practice of foreign law; and

(b) the advice is expressly based on advice given on the Australian law by an Australian legal practitioner who is not an employee of the foreign lawyer.[82]

Issue 2.1: Did Connon Wood provide Mr Colquhoun-Denvers with Legal services?

1. Mr Colquhoun-Denvers submits that the work done by Connon Wood comprised 'services... in respect of matters that need not have been undertaken by a lawyer at all'.[83] This was apparently in support of the broader contention that most of the work undertaken by Connon Wood did not constitute legal practice within the meaning ascribed to it in the LPUL, but was purely 'mechanical, executive or administrative' tasks, and was therefore recoverable.[84] Mr Colquhoun-Denvers points, for example, to the degree to which the work involved merely locating documents which work could be, or was, performed by paralegals.[85]
2. Mr Yunghanns submits that because the definition of 'legal practice' includes 'work done or business transacted in the ordinary course of legal practice' it includes services 'which, though not required to be done exclusively by a solicitor, [are] usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor'.[86] Mr Yunghanns submits that it is not necessary that the work is such that it can only be provided by a qualified legal practitioner or entity.

1. For the following reasons, I am satisfied that Connon Wood provided Mr Colquhoun-Denvers with legal services.
2. First, it appears from the invoices relied on in the Bill of Costs that Connon Wood first provided legal services to Mr Colquhoun-Denvers on 10 February 2016 in respect of the Concerns Notice. The invoice dated 29 September 2016 from Connon Wood to FIP attached to Batten Sacks' bill records that Mr de By reviewed an 'email (re Concerns Notice)' on 10 February 2016.[87] This was three months prior to Batten Sacks' retainer on 31 May 2016. There is no evidence that any law firm other than Connon Wood provided legal services prior to Batten Sacks' retainer. The fact that Connon Wood was acting for Mr Colquhoun-Denvers three months prior to Batten Sacks' retainer suggests that Connon Wood was providing legal services. There is nothing in the Batten Sacks' retainer, or any communications with Connon Wood, to suggest that upon Batten Sacks being retained, Connon Wood would cease to be retained to provide legal services.
3. Second, the terms of the CW Retainer which was dated October 2017, but effective from the date services were first provided, describe the services to be provided by Connon Wood and the role of the practitioners in a manner that is consistent with the provision of legal services. In the preamble of the CW Retainer, Connon Wood is defined as 'Counsel' and the agreement is stated to 'set forth the terms under which Counsel will render legal services to Client'. As to the services to be provided, cl 2 of the CW Retainer provides that 'CLIENT hires COUNSEL to provide legal services ...' As to disbursements and charges in cl 4, the CW Retainer provides that 'CLIENT will reimburse and pay COUNSEL for all disbursements made by COUNSEL, and COUNSEL'S customary charges or in-house services and travel, in connection with legal services performed under this AGREEMENT'. There is also the proviso in cl 6 that '[t]he attorney-client relationship that exists in connection with the subject matter of this representation will be between CLIENT, its President ex officio, members of the executive committee ex officio, and COUNSEL'. It is significant that the CW Retainer was drafted and signed after Batten Sacks' retainer, although as already noted, Connon Wood was providing legal services prior to Batten Sacks' involvement. The terms of the CW Retainer are nevertheless consistent with Connon Wood continuing to act as principal.
4. Third, both Mr de By and Connon Wood's description of the services provided by Connon Wood and the role of the practitioners are also consistent with the provision of legal services.
5. On 26 March 2018, Mr de By emailed FIP (copying Mr Colquhoun-Denvers), a Memorandum regarding 'Cost Indication for Preparation and Trial of Yunghanns v. Colquhoun-Denvers' (referred to above as the March Memorandum). It is apparent from the contents of that email that it was prepared for the purposes of FIP's insurer to provide an estimate of costs. Mr de By writes:

As promised, I attach here our comprehensive Memorandum with the detailed estimate for the professional/legal fees necessary for preparation and trial of the case. Much of what is said there with regard to the lawyers' background will be familiar to Nicholas and you, but as we discussed, it is necessary that the insurer understands the roles played by, and responsibilities of, the various legal professionals involved in this case.[88]

1. The March Memorandum itself is from Mr de By addressed to Mr Colquhoun-Denvers as president of FIP, Mr Taylor as CEO of the FIP and Dr Lens.[89] Under the heading entitled, '3. Effective and Efficient Representation', the March Memorandum states:

The tasks performed by and responsibilities of these various legal professionals, while sometimes bearing the same nomenclature or [sic] dealing with similar events, do not overlap but are distinct. Thus, there is no obsolescence. Rather, close cooperation between the lawyers ensures that those tasks are performed effectively and efficiently, in keeping with the professional responsibilities and legal limitations that apply in a particular jurisdiction.

...

SCHEDULE 1 - LAWYERS

Function Individual Firm/Chambers

Attorney Robert de By Connon Wood LLP

Barrister (senior) Bruce McClintock Sixth Floor Selbourne

Barrister (Junior) Sean Baron Levi State Chambers

Jaye Alderson State Chambers

Solicitor-Agents Harvey Bruce Batten Sacks

Raymond Abrahams Batten Sacks

These lawyers in this case perform distinct but complementary functions and roles, as follows:

Attorney: Connon Wood LLP partner Robert de By is Mr. Colquhoun-Denvers's personal attorney. Mr. de By also is the general counsel for [FIP].

...

As Mr. Colquhoun-Denvers's attorney, Mr. de By is the lawyer in charge of this case and, as such, it is he who conducts the litigation. Mr. de By determines the strategy together with the client, and coordinates the legal team, and instructs the barristers and solicitor-agent on behalf the client.[90]

He provides his client with confidential legal advice and assistance, including obtaining of information from the client and others (including witnesses, potential witnesses, custodians of documents and evidence) necessary to conduct the litigation. As attorney, he is in charge of and responsible for the direct contact with the client. As Mr. Colquhoun-Denver's [sic] personal attorney, Mr. de By also is responsible for explaining the situation to the client and keeping informed, obtaining necessary instructions from client, and instructing and coordinating the other lawyers and legal professionals involved in the case.

...

Solicitor-Agent:

...

The solicitor-agent is the client and his attorney's local legal representative for purposes of sending correspondence, filings, as well as assisting the attorney and barristers with tasks to be performed locally in a particular jurisdiction. The function of solicitor-agent is akin to that of 'local counsel' (e.g., in the United States) or the 'procurador' (e.g., in Spain) in jurisdictions where attorneys appear in court outside of their own district or state and are 'introduced' by a colleague who is a member of the local bar and who is in charge of various administrative and formal procedural requirements.

The typical daily responsibilities of the solicitor-agent include conducting email and letter correspondence and telephone communications with the Court, court clerks, and opposing party's legal representatives. Proofing draft court documents and correspondence with the same, administering all the paperwork and communication involved, assisting with document productions, arranging sworn affidavits in support of Court applications, and scheduling matters (including attending court hearings of same) related to the client's case.

In addition, the solicitor-agent provides numerous related legal and organizational functions that can be more efficiently carried out locally or that benefit from their extensive localized expertise and experience.

The solicitor-agent performs its tasks in coordination with, and under the supervision of, the client's attorney but has independent responsibility with regard to specific responsibilities and local obligations, such as the compliance with filing deadlines and Court rules, custom and practice. The solicitor-agent thus works closely with the client's attorney and the junior barrister virtually on a daily basis.[91]

1. The March Memorandum notes that the fees to be charged by 'Attorney/de By' will be USD 950 an hour and the fees to be charged by 'Solicitor/Agent/Bruce & Abrahams' will be AUD 605 an hour.[92] After making these rates, the March Memorandum continues:

The rates charged by the lawyers in this case are in keeping with legal fees charged by other professionals with like experience and professional qualifications in the relevant markets for legal services.[93]

1. These descriptions are consistent with Connon Wood providing legal services.[94]
2. Schedule 3 of the March Memorandum itemises numerous tasks and allocates fee indications in relation to each task including by whom those tasks will be performed and how long it is expected they will take.[95] The majority of the tasks are allocated to Mr de By and Dr Baron Levi. The total estimate of the bill is $1,056,275 in legal costs for Australian practitioners (Batten Sacks and Counsel) and USD350,550 for Mr de By.[96] The only items allocated to Batten Sacks is an allowance of AUD 20,000 for preparation and 20 days attendance at trial of AUD 84,525.[97]
3. The allocation of tasks, and the value attributed to them, are each consistent with Connon Wood providing legal services. These descriptions are also consistent with a further follow up letter to the lawyer for FIP's insurer, which was edited by Mr de By, dated 10 April 2018, prior to being sent.[98] That letter reiterated many of the things said in the March Memorandum including that 'AIG-Uruguay is confused and gets the roles backwards. Mr. de By leads the case and conducts the litigation (something barristers, by law, are not allowed to do), while Batten Sacks acts as local counsel...'[99] The letter continues, 'FIP's President's team was lean and efficient, resulting in significant cost savings, consisting of a single barrister Dr Baron Levi and Mr Colquhoun-Denvers' personal attorney (and FIP legal counsel) Mr de By of Connon Wood LLP, assisted from time to time by local counsel (the solicitor-agent at Batten Sacks)'.
4. In a further email dated 16 April 2018, Mr de By objected to Batten Sacks communicating directly with FIP and stated that 'I have asked Ray to adhere to normal protocol and to use me as the central point for such matters as FIP legal counsel and his instructing attorney going forward'.[100] I interpret this communication as being consistent with Connon Wood being the instructing attorney, and Batten Sacks having been engaged by Connon Wood.
5. Fourth, the description of the work actually performed in email communications and the invoices rendered by Connon Wood are consistent with the provision of legal services. For example:

(a) On 25 February 2016, Mr de By emailed Dr Baron Levi attaching a draft version of a further particulars notice under ss 14(3) and 14(4) of the Defamation Act asking Dr Baron Levi for his 'review and input'.[101]

(b) On 29 September 2016, Mr De By provided a draft defence to Mr Colquhoun-Denvers and FIP representatives and asked that they 'review' it at their 'earliest convenience, and provide [their] comments ... by midnight tonight'.[102]

(c) By email dated 2 November 2016, Mr de By raised issues with Dr Baron Levi about a pleadings application, and commented on the same.[103] On 5 November 2016, Mr de By emailed Dr Baron Levi commenting on submissions drafted by him.[104]

(d) Correspondence in October 2017, shows that Mr de By was involved in selection of senior counsel.[105]

(e) In October 2017, Mr de By took an active role in drafting correspondence in relation to Mr Yunghanns failure to attend mediation.[106]

(f) By email dated 4 April 2018, Dr Baron Levi wrote to Mr Bruce and Mr Abrahams stating that 'I have spoken with Robert in the last hour and we have agreed on the following witness list for you to file and send to S&C ASAP ...'[107]

1. The following entries in the invoices from Connon Wood to FIP, for work performed by Mr de By, are also consistent with Connon Wood providing legal services:

(a) An entry made on 5 July 2016 records that Mr de By considered jurisdictional issues including 'review and analysis of PY affidavit and new Endorsement and materials re jurisdiction ...'

(b) An entry made on 7 July 2016 records that Mr de By drafted matters to be included in submissions.

(c) An entry made on 2 November 2016 records '[l]egal research re particulars and pleadings'.

(d) An entry on 4 November 2016 records the '[r]eview [of] submissions in opposition to strike out application ... review and analysis of Plaintiffs [sic] supplemental submissions ... review of affidavit frm [sic] Mr Joseph at Strongman & Crouch ... re Defendant's submissions strike out, jury issue, strike out application re counterclaim, related issues'.

(e) An entry from 4 May 2017 indicates work done in relation to'... strategic considerations and development of jury theme ...'.

(f) An entry from 16 June 2017 documents work done in relation to 'legal research (re PY criminal liability, impact on case, etc) ...'

(g) An entry dated 23 July 2017 records a six-minute meeting with Mr Taylor which is described as relating to 'strategy, mediation, preparation and C&GC meetings, miscellaneous related matters'. This entry is followed by an entry the following day on 24 July 2017 which records over eight hours of meetings with Dr Baron Levi and is described as relating to 'strategy, document review, preparation for client meeting [and] mediation issues'. Another meeting is also described as taking place between Dr Baron Levi, Mr Colquhoun-Denvers and Mr Taylor which is similarly described as relating to 'case, strategy, mediation, trial preparation, discovery, various related miscellaneous issues'.

(h) An entry dated 25 July 2017 records the '[r]eview of materials and notes' of a meeting with Mr Colquhoun-Denvers, Mr Taylor and Dr Baron Levi at C&GC regarding 'case, strategy, mediation, trial preparation, discovery, various related miscellaneous issues'.

(i) On 3 August 2017, Connon Wood invoiced FIP for work it had undertaken, including items for legal research into potential breaches of client attorney privilege, strategy for mediation and trial preparation. A significant amount of work appears to have been done at meetings in London which were attended by Mr de By, Dr Baron Levi and representatives of FIP, but not Mr Bruce or any representative of Batten Sacks.

(j) An entry dated 2 March 2018 records the 'review and analysis of mediation issues; review of materials (including pleadings re mediation arguments)... confs w/ [Mr Colquhoun-Denvers] (re trial preparation, testimony, evidence); confs [Mr Taylor] (re preparation, topical outlines, trial logistics and planning, mediation) ...'

(k) An entry dated 3 March 2018 records:

Meeting w/[Mr Colquhoun-Denvers], [Dr Baron Levi] at Sheraton on the Park-21st floor Boardroom (re trial preparation, evidence, sequence of events, testimony, cross examination issues); meeting W/[MR Taylor], [Dr Baron Levi] at Sheraton on the Park-21st floor Boardroom (re trial preparation, evidence, sequence of events, testimony, examination issues); meeting W/[Dr Baron Levi] at Sheraton on the park -lobby lounge (retrial preparation schedule, briefing Brett Walker, logistics for witness interviews Dr. Richard Caleel, Eduardo Huergo, trial preparation of [Mr Colquhoun-Denvers] in London); review and analysis of mediation issues; review of materials (including pleadings remediation arguments in preparation for mediation).

(l) An entry on 4 March 2018 records the '[r]eview and preparation for mediation; meeting w/ [Mr Colquhoun-Denvers], [Mr Taylor] at Sheraton on the Park-21st floor Boardroom (re trial preparation, cross-examination, miscellaneous related matters)'.

(m) An entry made on 5 March 2018 records 'E/cs w/ HB, [Dr Baron Levi] (re revisions mediation agreement and confidentiality clause); meeting w/ HB, [Dr Baron Levi], [Mr Colquhoun-Denvers], [Mr Taylor] at Batten Sacks (re preparation for mediation, issues and topics, strategy, review and revisions mediation agreement); confs w/ [Mr Taylor] (re same and preparation, strategy)'.

(n) An entry made on 6 March 2018 records 'Pre-mediation strategy meeting w/ [Mr Colquhoun-Denvers], [Mr Taylor], [Dr Baron Levi] (re various legal issues, approaches, instructions from insurer); attending mediation in Melbourne; strategic advice, several confs w/ mediator, plenary session, review of PY settlement proposals and draft, miscellaneous related matters; confs w/ [Mr Colquhoun-Denvers], [Mr Taylor], [Dr Baron Levi] (re effect, trial schedule, witness preparation, logistics)'.

(o) An entry dated 26 March 2018 records '[c]onf w/ [Dr Baron Levi] (re trial preparation, allegation of malice, evidence and Court book, related matters) ...'.

(p) An entry made on 3 June 2018 records a '[p]re-mediation strategy meeting' with Mr Colquhoun-Denvers, Mr Taylor and Dr Baron Levi relating to 'various legal issues, approaches, instructions from insurer'. The same entry also notes that Connon Wood attended mediation in Melbourne and gave 'strategic advice'.

(q) Invoices issued in August 2018 record that Mr de By attended trial and conferences with the client and counsel concerning the facts and circumstances, documents, witness preparation, trial and cross-examination.

1. Mr de By accepted that the invoices accurately reflected the work that was done, but sought to diminish Connon Wood's role and subordinate it to Batten Sacks.[108] Mr de By's oral evidence is not entirely consistent with the content of the correspondence and invoices described above, or the conclusion compelled by them that Connon Wood provided legal services. Insofar as there is any discrepancy, I prefer the description given in the emails and invoices as being accurate descriptions of the services provided by Connon Wood given that they are contemporaneous documents prepared for the purposes of justifying significant fees. That conclusion is also consistent with the March Memorandum which was prepared for the purposes of it being provided to an insurer with the obligations of honesty that such communication entails.
2. Fifth, on 5 April 2022, Batten Sacks filed the Bill of Costs in support of Mr Colquhoun-Denvers' entitlement to standard costs pursuant to the order of T Forrest J made on 20 December 2019. In that Bill, Batten Sacks described legal practitioners and their roles as follows:

Legal Practitioners

At all times up until trial, the defendant's sole Counsel was Dr Sean Baron Levi, ...

FIP's honorary legal counsel, Robert de By of Connon Wood LLP... Was engaged by the defendant because of his intimate knowledge of the issues and documents relating to the matter, with FIP's history and By-Laws, with the world of polo and its management by various national organisations who make up FIP's members and FIP sponsorship matters, as well as with the defendant personally, and because FIP's interests were in common with the defendant in relation to the proceedings. ...

Robert de By was heavily involved (among other things) in the discovery process, including locating and reviewing documents, and in the privilege review process-assessing privilege, for example of documents to or from US Counsel. He was heavily involved in the process of interviewing witnesses and potential witnesses. He also instructed generally in relation to the issues and documents, which were matters within his knowledge.

Mr de By is a leading US attorney with an expertise in complex international litigation and is a former colleague of Dr Sean Baron Levi, having worked as a partner in the international group of the same New York-based law firm where Dr Baron Levi worked as a solicitor prior to being called to the bar.

Mr de By instructed Dr Baron Levi and conducted all communications with the defendant and FIP management during the preparation of the defence of the case.[109]

1. It is apparent from the above discussion that Connon Wood provided high-level and direct legal services to Mr Colquhoun-Denvers. By way of example, those services included involvement in drafting correspondence and court documents; extensively conferring with counsel; an involvement in strategic considerations for mediation and trial; selection of senior counsel; reviewing documents for the purpose of complying with discovery obligations; reviewing document produced by the Mr Yunghanns; attending trial; and conducting legal research.
2. Taking into account all of these matters, I am satisfied that Connon Wood was engaged to, and did in fact, provide legal services.
3. Mr Colquhoun-Denvers submits that there was at least some work that was not legal work, but was more properly characterised as administrative work for which fees can properly be charged as a disbursement. The analogy was drawn to fees incurred by a client who pays an external discovery service directly or fees paid for transcript. That issue is considered below in relation to whether any of Connon Wood's fees are recoverable as a disbursement. Whether or not that is the case, it is clear that Connon Wood provided legal services.

Issue 2.2: Was Connon Wood Principal or an agent of Batten Sacks?

1. Mr Yunghanns relies on the terms of the CW Retainer, the invoices and the work actually done. Mr Yunghanns submits that once it is found that the relationship was that of principal and agent, if Mr Colquhoun-Denvers wants to establish that the position changed and Batten Sacks became principal and Connon Wood agent, they must propose some basis as to how that occurred, which they have not.
2. Mr Colquhoun-Denvers relies on Mr Bruce's evidence as to Batten Sacks' involvement and relies on the fact that Batten Sacks was the solicitor on the record. Mr Colquhoun-Denvers also submits that the roles of principal and agent could vary between the firms over time depending upon what actions were being taken by a particular firm. Mr Colquhoun-Denvers submits that Batten Sacks engaged Dr Baron Levi as:

... Batten Sacks basically appointed Sean Baron Levi to be the general in a military sense, and it's appropriate that requests made by him be seen as requests made by Batten Sacks, and implicitly they were. Connon Wood was in no doubt as to who had the running of the action in Melbourne, it was Batten Sacks. And so, when Australian counsel, Sean Baron Levi, admittedly he's from Sydney, ... when he gives a request to Connon Wood, understandably it will be seen as a request coming from the Australian lawyers and hence originating from the authority of Batten Sacks as to how the case is to be run.[110]

1. Mr Bruce's evidence was given many years after the events in question. He expressed firm views about some matters but, when pressed, he moderated these views. In some respects, Mr Bruce accepted that he did not have a clear memory of events having occurred 'seven years' ago.[111] For example, he could not recall:

(a) whether Dr Baron Levi told him, during their initial conversation, that instructions would come from Connon Wood;[112]

(b) whether he billed for conversations where those conversation were relevant to 'obtaining instructions concerning the facts or instructions as to how the matter was to proceed';[113]

(c) whether he read any summaries or proofs of evidence before the witnesses came to Melbourne;[114]

(d) whether he received particular emails or whether Connon Wood waited for instructions from Batten Sacks to take various steps;[115]

(e) whether he billed for any work preparatory to mediation that he may have performed;[116] or

(f) who participated in conferences at particular times.[117]

1. The question whether a relationship of principal and agent exists requires consideration of the relationship's substance and not merely its form.[118] There are numerous indications that Connon Wood acted as principal, many of which are discussed under the previous issue.
2. First, Connon Wood provided legal services for some months prior to Batten Sacks being engaged. Accordingly at that time, there is no question as between Connon Wood and Batten Sacks as to who was principal - it can only have been Connon Wood. If Connon Wood was subsequently retained as Batten Sacks' agent, one would expect there to be a written retainer. But there was none.
3. Second, the terms of the CW Retainer, which was executed in October 2017, many months after Connon Wood first provided services, but sometime after Batten Sacks had become involved in the proceeding, make it clear that Connon Wood was to provide legal services directly. There is no suggestion in the CW Retainer that Connon Wood was to provide services via an intermediary like Batten Sacks.
4. Third, the first contact with Dr Baron Levi in relation to the defamation allegations was not from Batten Sacks, but rather, was from Mr de By via email on or about 18 February 2016. On 2 March 2016, Dr Baron Levi provided a costs disclosure and entered into a costs agreement with Connon Wood for the provision of legal services in relation to the Defamation Proceeding ('Baron Levi Retainer'). The Baron Levi Retainer is made between Dr Baron Levi (defined as 'I' or 'me') and Connon Wood (defined as 'you').[119] It includes the following clauses:

1.1.2 You and I agree that I have no contractual relationship with the client, and this agreement is entered into between you and me, as a 'law practice' and another 'law practice', within the meaning of the Law. Accordingly, your obligations to me under this agreement are personal and do not depend upon you being put in funds by the client or any other person.

1.3 You have briefed me to act as the client's counsel by advising and appearing in the matter of Nicholas Colquhoun-Denvers ats Peter Yunghanns (Federation of International Polo). This will comprise barristers' work in accordance with the New South Wales Barristers' Rules (for work done up to and including 30 June 2015) and the Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession Uniform General Rules 2015 (together, the Uniform Barristers' Rules) (for work done on and after 1 July 2015) (together, the Barristers' Rules).[120]

1. On 13 February 2018, Dr Baron Levi provided a further costs disclosure and agreement to Connon Wood.[121] Mr de By accepted in his evidence that it was Connon Wood 'who retained Dr Baron Levi and was to be responsible for the fees'.[122] On 23 February 2016, Mr de By wrote to Mr Colquhoun-Denvers stating that it had engaged Dr Baron Levi for the purposes of 'legal representation in court in Australia'.[123] On 30 May 2016, Dr Baron Levi wrote to Mr Bruce describing Mr de By as 'our instructing solicitor' and stating that 'if any communications need to be sent to the client, can you please send them to Robert de By rather than to the client directly'.[124]
2. The terms of the Baron Levi Retainer, and costs disclosures and agreements are contrary to Mr Yunghanns' submissions that 'Batten Sacks basically appointed Sean Baron Levi to be the general in a military sense, and it's appropriate that requests made by him be seen as requests made by Batten Sacks, and implicitly they were'.[125] It is significant that the Baron Levi Retainer pre-dated Batten Sacks' involvement in the proceeding. Mr Bruce's evidence is that the situation changed over time. However, there is insufficient evidence to suggest that the terms of the Baron Levi Retainer changed in any meaningful sense to render Dr Baron Levi an agent of Batten Sacks giving instructions to Connon Wood in that capacity as submitted.
3. Fourth, a file note made on 30 May 2016 by Mr Bruce, records that Dr Baron Levi called Mr Bruce 'looking to appoint an agent to represent [Mr Colquhoun-Denvers] in defending a defamation Supreme Court writ'. This appears to be the earliest contact with Batten Sacks in relation to the proceeding. That file note records the following:

The main instructions will come from the London solicitor who will be the instructing solicitor i.e. they will have the major substantive involvement and our role as lawyers will be as agents for them.[126]

In relation to this note, Mr Bruce stated in evidence that 'Yes, that's correct and that's how it may have started out'.[127]

1. The general tenor of Mr Bruce's evidence is that while the arrangement commenced this way, it changed as time went on. However, there is no documentary evidence to support any such change, and the subsequent documents, such as emails and items claimed in the Bill of Costs, support it.
2. Fifth, in the correspondence discussed above in March and April 2018, Connon Wood (by Mr de By) explicitly states in several instances that Connon Wood was acting as principal and Batten Sacks was acting as agent. In particular, the correspondence with FIP's insurer in the March Memorandum and the follow-up letter on 10 April 2018, contained unequivocal statements that Connon Wood was principal and Batten Sacks was its agent. These statements were made in the context of justifying large legal fees and the involvement of both Connon Wood and Batten Sacks. In that context, Connon Wood provided an explanation of the roles of the lawyers and the question of any redundancy or duplication of services. Connon Wood addressed those issues by explaining, in unequivocal terms, what the roles of the parties were. That is not to say that Batten Sacks may not have provided some services as principal, but even if that is so, that does not mean that Connon Wood was their agent in any sense.
3. Sixth, in mid-April 2018, Mr Abrahams emailed FIP directly enclosing a fee estimate. When Mr de By learned of this, he wrote an email dated 16 April 2018 to FIP explaining that 'I have asked Ray to adhere to normal protocol and to use me as the central point for such matters as FIP legal counsel and his instructing attorney going forward'.[128] That also is contrary to the notion that Connon Wood was an agent of Batten Sacks. On 16 April 2018, Mr Abrahams sent a further email to Mr de By providing an 'Updated Cost Estimate' without objection in the following terms:

We enclose our updated cost estimate now $501,000 in respect of the costs to trial.

We are doing so at the request of Alejandro Taylor as per his email dated 16 April 2018.

We have not included Alejandro into this email to comply with your request not to send to FIP email addresses.

Please therefore forward this email and our updated cost estimate on to Alejandro.[129]

1. The fact that Batten Sacks was providing a costs estimate to Connon Wood alone suggests that Batten Sacks was providing services to, or at least through, Connon Wood and not the other way around. Beyond that, the contents of the 16 April 2018 email also indicate that Mr de By was instructing Batten Sacks rather than Batten Sacks instructing Connon Wood. Batten Sacks clearly had a subordinate role.
2. Seventh, the nature of the work performed also supports the conclusion that Connon Wood was acting as principal. Mr Bruce accepted in cross-examination that Mr de By 'involved himself in every aspect of the case; he didn't limit himself to the preparation of the case on issues of fact ... and he didn't limit himself to responding to requests by [Batten Sacks]'.[130] Many of the services performed by Connon Wood, as disclosed in the invoices, involved high-level strategic work such as communications with counsel, conferences with parties, settling or having input into documents such as defences, affidavits of documents and submissions - much of which was conducted without Batten Sacks' involvement. Mr Bruce broadly accepted that the facts of the case, upon which the preparation of Court documents depended, were obtained by Connon Wood (and not Batten Sacks) requesting documents from the client and by Connon Wood (and not Batten Sacks) taking instructions from FIP.[131] That is consistent with the statement in the Bill of Costs that:

Mr de By instructed Dr Baron Levi and conducted all communications with the defendant and FIP management during the preparation of the defence of the case.[132]

1. By contrast, the items billed for by Batten Sacks do not include many items one would expect of a lawyer with principal responsibility for the conduct of a case such as conferring with witnesses and perusing summaries of evidence.
2. Mr Colquhoun-Denvers submits that the fact that FIP directly engaged Connon Wood does not necessarily preclude the conclusion that Connon Wood was Batten Sacks' agent. However, the force of that submission is significantly diminished having regard to the nature of the services provided by Connon Wood directly and without Batten Sacks' involvement.
3. Eighth, as between Connon Wood and Batten Sacks, the volume of work performed and the amounts charged suggest that Connon Wood was principally responsible for the conduct of the Defamation Proceeding. In the March Memorandum, Batten Sacks was allocated only AUD 20,000 for pre-trial preparation, and beyond that, only fees for attending the trial. By contrast, Connon Wood was allocated significantly larger fees for many other services. That is consistent with the way the matter transpired as disclosed in the Bill of Costs dated 31 March 2022 in which Batten Sacks describes Connon Wood's role as follows:

Mr de By instructed Dr Baron Levi and conducted all communications with the defendant and FIP management during the preparation of the defence of the case.[133]

1. For those reasons, I am satisfied that Connon Wood was acting as principal and not as agent of Batten Sacks. That being the case, Connon Wood's fees cannot be claimed as a disbursement on the basis that Connon Wood was agent for Batten Sacks.

Issue 2.3: Did Connon Wood Act in breach of s 10 of the LPUL?

1. As the answers to issues 2.1 and 2.2 were both yes, it is necessary to consider whether Connon Wood's fees are recoverable in light of s 10 of the LPUL on the basis that (a) the provision of its services did not involve the practice of foreign law; and (b) Connon Wood was not a qualified entity entitled to practise in Victoria.
2. The legislative regimes governing the provision of legal services, including by foreign lawyers, is governed by the LPUL. The relevant objectives and jurisdictional operation of the LPUL are set out in ss 3 and 4 as follows:

3 Objectives

The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by -

(a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and

(b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and

(c) enhancing the protection of clients of law practices and the protection of the public generally; and

(d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and

(e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and

(f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.

4 Extraterritorial operation of this Law

The operation of this Law is, as far as possible, to include operation, according to its terms, in relation to the following -

(a) things situated within or outside the territorial limits of this jurisdiction;

(b) acts, transactions and matters done, entered into or occurring within or outside the territorial limits of this jurisdiction;

(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Law, be governed or otherwise affected by the law of another jurisdiction.[134]

1. Chapter 2 of the LPUL is headed 'Threshold Requirements for Legal Practice'. Part 2.1 is headed 'Unqualified Legal Practice'. Section 9 describes the objective of that part as being:

(a) to ensure, in the interests of the administration of justice, that legal work is carried out only by those who are properly qualified to do so; and

(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.

1. Section 10 of the LPUL contains a general prohibition on engaging in legal practice by unqualified entities in the following terms:

10 Prohibition on engaging in legal practice by unqualified entities

(1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.

Penalty: 250 penalty units or imprisonment for 2 years, or both.

(2) An entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it.

1. Part 3.4 of the LPUL regulates the practice of foreign lawyers. The objectives of Part 3.4 are set out in s 58 as being:

to encourage and facilitate the internationalisation of legal services by providing a framework for the regulation of the practice of foreign law in this jurisdiction by foreign lawyers as a recognised aspect of legal practice in this jurisdiction.

1. The relevant operative sections are the following:

Division 2 - Limited practice without registration

60 Practice of foreign law without registration but for limited periods

(1) A foreign lawyer may, subject to this Law, practise foreign law in this jurisdiction without having to hold a current Australian registration certificate -

(a) during one or more periods that do not in aggregate exceed 90 days in any period of 12 months; ...

Division 5 - Scope and form of practice

69 Scope of practice

(1) This section applies to -

(a) a foreign lawyer who is practising foreign law under Division 2; or

(2) The foreign lawyer may provide only the following legal services in Australia -

(a) doing work, or transacting business, concerning the law of a foreign country where the lawyer is registered or authorised by the foreign registration authority for the country;

(b) legal services (including appearances) in relation to proceedings before bodies other than courts, being proceedings in which the body concerned is not required to apply the rules of evidence and in which knowledge of the foreign law of a country referred to in paragraph (a) is considered by the designated local regulatory authority to be essential;

(c) legal services in relation to arbitration proceedings or conciliation, mediation and other forms of consensual dispute resolution;

(d) legal services of a kind specified in the Uniform Rules for the purposes of this section.

(3) Nothing in this Law authorises the foreign lawyer -

(a) to practise Australian law in Australia; or

(b) to appear in any court, except on the lawyer's own behalf or as permitted by the Uniform Rules.[135]

1. Mr Colquhoun-Denvers submitted that the relevant jurisdictional limitations permit recovery of Connon Wood's fees in the following respects:

(a) Insofar as the services provided by Connon Wood were provided while it was physically outside Australia as per s 69(2).

(b) Insofar as the services related to foreign law 'during one or more periods that do not in aggregate exceed 90 days in any period of 12 months' as per s 60(1).

(c) In relation to mediation as per s 69(2).

Legal services physically outside of Australia

1. Mr Colquhoun-Denvers submits that the words 'in Australia' in s 69(2) mean that the prohibition on the provision of legal services by a foreign lawyer only applies to services physically provided in Australia.[136] Mr Yunghanns submits that the legislation is specific about the prohibition applying to practise 'in Australia', and that it does not prohibit practice 'in relation to Australian proceedings' or 'in connection with Australian proceedings'. The submission is that all other services are not prohibited by that section.[137]
2. Mr Yunghanns submits that s 10(1) requires a two-step process: it requires first, an identification and characterisation of the 'legal practice' that is being engaged in, and second, a determination of whether that legal practice was being engaged in 'in this jurisdiction'.[138] Mr Yunghanns submits that the tasks undertaken by Connon Wood involved the provision of legal service to, or for the benefit of, Mr Colquhoun-Denvers. That being the case, two matters appear clearly: first, the legal services were being provided in connection with, and for the purposes of, a proceeding commenced in an Australian court exercising jurisdiction conferred on it by the laws of Australia; and second, Mr Colquhoun-Denvers' own case is that work performed by Connon Wood was work 'directed to assisting or communicating with [Mr Colquhoun-Denvers'] Australian lawyers, who were located and domiciled in Australia, for the purposes of the Australian proceeding'.[139] Viewed in that way, the legal services constituted 'engaging in legal practice in this jurisdiction'.
3. Mr Yunghanns also submits that permitting an unqualified practitioner to provide legal services in relation to a proceeding in a Victorian court when they are physically out of the jurisdiction would neither be consistent with the objectives of the LPUL, nor with the intention disclosed in s 4 of the LPUL that it is to have extraterritorial operation.[140]
4. Mr Yunghanns relies on the decision of ABN AMRO Bank NV v Bathurst Regional Council ('ABN AMRO').[141] In that case, the Full Federal Court of Australia ('Full Court') considered the meaning of 'in this jurisdiction' in the context of s 1041H(1) of the Corporations Act 2001 (Cth) which provides that '[a] person must not, in this jurisdiction, engage in conduct, in relation to a financial product or a financial service, that is misleading or deceptive or is likely to mislead or deceive'. A proceeding was brought against the ratings agency, S&P, alleging that it engaged in conduct contrary to that provision by granting certain products a AAA rating. S&P contended that the assignment of the rating was carried out in the United Kingdom and therefore not 'in this jurisdiction'. The Full Court rejected that submission, observing 'what is to be located "in this jurisdiction" is the conduct that is misleading or deceptive'.[142] The Full Court identified the relevant conduct as the communication of the rating and the authorisation to disseminate it, and observed that a narrow reading of the section 'would defeat the operation of the section'.[143]
5. I agree with Mr Yunghanns' submissions. Connon Wood provided legal services to Mr Colquhoun-Denvers in Australia in respect of a proceeding issued in Victoria, involving Australian law. Consistently with the reasoning in ABN AMRO, that constituted legal practice 'in this jurisdiction' and also 'in Australia' in accordance with the LPUL. Were it otherwise, an unqualified (or disqualified) practitioner could potentially continue providing legal services to an Australian client in relation to an Australian proceeding by absenting themselves from the jurisdiction and acting remotely, and thereby avoid contravening s 10 of the LPUL. As Mr Yunghanns submitted, there are good policy reasons against that construction - not the least of which is the absence of control that could be exercised over practitioners acting in Australian proceedings.

Foreign law for an aggregate not exceeding 90 days

1. Mr Colquhoun-Denvers submits that the first part of the legal services provided by Connon Wood related to a jurisdictional challenge which included questions of the application of the Hague Convention.[144] Mr Colquhoun-Denvers submitted that this was the practice of foreign law. Accordingly, such services would be permitted within the limits of s 60(1) provided such services 'do not in aggregate exceed 90 days in any period of 12 months'.[145] Mr Colquhoun-Denvers accepts that services provided after this jurisdictional challenge did not involve foreign law.[146]
2. The introductory words of s 60(1) state that the permissible practice, subject to those time constraints, relate only to the practice of 'foreign law'. Accordingly, a foreign lawyer is not entitled under s 60(1)(a) to provide any type of legal services for up to 90 days in a 12-month period, but is permitted to provide legal services in relation to foreign law provided such services do not, in aggregate, exceed 90 days in any period of 12 months. I note that Mr Colquhoun-Denvers submitted that such fees include fees in relation to the early jurisdictional challenge which involved questions of the application of the Hague Convention, and therefore, foreign law.[147] It is unnecessary to determine precisely what fees are recoverable as involving the practice of foreign law. The particular fees recoverable as meeting the description of the 'practice [of] foreign law in this jurisdiction' within the time constraints of s 60(1) is a matter to be determined on taxation.

1. Section 69(2)(c) of the LPUL permits a foreign lawyer to recover fees for 'legal services in relation to arbitration proceedings or conciliation, mediation and other forms of consensual dispute resolution'.
2. Mr Yunghanns submits that this section permits recovery of Connon Wood's fees in relation to mediation.[148]
3. I do not agree that s 69(2)(c) permits recovery of fees in relation to any mediation without limitation. Section 69(1) provides that 'this section applies - to a foreign lawyer who is practising foreign law under Division 2'. That preface imposes a limitation on the extent to which fees in relation to mediation may be recovered. The limitation is that they may only be recovered insofar as the legal services are provided by a lawyer 'who is practising foreign law under Division 2'. It follows that if Connon Wood's fees in relation to the jurisdictional challenge are recoverable by reason of them involving the practice of foreign law, then any fees in relation to the mediation of those matters would be recoverable. However, any mediation that did not involve the practice of foreign law would not be recoverable. In this case, Mr Yunghanns accepted that none of the issues beyond the jurisdictional challenge involved the practice of foreign law. If that is correct, then fees for legal services in relation to mediation that occurred after the resolution of the jurisdictional challenge would not be recoverable under s 69. Mr Bruce accepted in cross-examination that only one mediation took place and that it occurred on 6 March 2018.[149] In those circumstances, it does not appear that any of Connon Wood's fees in relation to mediation would have been incurred in the context of Connon Wood practising foreign law. If that is so, then no fees for mediation will be recoverable, but if, on taxation, it appears that Connon Wood rendered services for mediation in the context of Connon Wood practising foreign law, then such fees may, subject to the view of the taxing officer, be recoverable under s 69(2)(c).

Issue 2.4: Are Connon Wood's fees recoverable as 'the costs of professional legal services rendered to a litigant in the conduct of litigation'?

1. As discussed above, Connon Wood's fees may be recoverable insofar as they involve the practice of foreign law within the time constraints of s 60(1) and also insofar as they involve mediation of foreign law issues. The following addresses the question whether fees other than those are recoverable as 'costs of professional legal services'.
2. Mr Yunghanns submits that as Connon Wood acted as principal lawyer, the question whether its costs are recoverable depends on whether it is entitled to practise law in Victoria.[150] Mr Yunghanns relies on the reasoning in Santos v Delhi Petroleum ('Santos').[151]
3. In Santos, a Melbourne law firm acted for the party, Delhi Petroleum ('Dehli'), in a proceeding that took place in Adelaide. Middletons appointed an Adelaide agent, Maitland. A costs order was made in favour of Delhi, and Maitland issued a bill of costs which included Maitland's fees of $34,335.60 and a disbursement of $1,968,062.39, of which $1,946,735.49 was described as 'Middletons' costs and disbursements in respect of the trial and appeal'.[152] The preliminary question arising in relation to whether the costs could be recovered was 'whether the Middletons bill constituted "costs" that could be taxed at all'.[153] That question 'require[d] an analysis of the status, under the Legal Practitioners Act 1981 (SA) of the partners of Middletons at various times_'._[154]
4. The following matters were critical to the decision:

(a) the Mutual Recognition Act 1992 (Cth) permitted lawyers from other states to be registered to practise in South Australia, but Middletons was not registered to practise in South Australia;[155]

(b) section 40(1) of the Supreme Court Act 1935 (SA) provides that '... the costs of and incidental to all proceedings ... shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and to what extent such costs are to be paid'. Accordingly, 'the Court does not have power [under s 40] to order the payment of amounts of money which are not "costs"'.[156]

(c) solicitors who are not entitled to practise in the jurisdiction are not entitled to claim their costs on taxation in the jurisdiction. As Bleby J expressed it, such lawyers:

...were not legal practitioners with any standing in this State. They were not officers of the Court Legal and were not subject to any disciplinary or other control by the Court. The interstate practitioners, so far as the law of this State were concerned, were in no better position than a lay client.[157]

(d) if Maitland was the principal and engaged Middletons to provide appropriate legal assistance, then Middletons' fees could be chargeable on a party-party taxation as a disbursement.

1. Mr Yunghanns submits that the reasoning in Santos should be applied by analogy having regard to the status of Connon Wood under the applicable legislation in Victoria, being the LPUL.[158] Mr Colquhoun-Denvers did not submit that the rationale in Santos was not applicable, and I consider I should follow it unless there is a good reason not to.
2. I consider that the reasoning in Santos should be applied to the present case. It is consistent with the principles discussed in Birketu, Cachia v Hanes and Lewis v Dorin as to what professional fees are and when they are recoverable. It follows that the LPUL prohibits foreign lawyers from practising in Victoria save as permitted by express exceptions, such as in relation to foreign law. Because Connon Wood was not permitted to provide legal services its fees are not otherwise claimable as costs save to the extent its fees come within the identified exceptions. It is a matter for assessment as to whether any of the fees do so.
3. Accordingly, the answer to issue 2.4 is a qualified 'no'.

Issue 2.5: Are Connon Wood's fees in any event recoverable as a 'disbursement'?

1. Mr Colquhoun-Denvers submits that the work done by Connon Wood comprised 'services in respect of matters that need not have been undertaken by a lawyer', and so was not prohibited by the LPUL and was recoverable as a disbursement.[159] Mr Colquhoun-Denvers points to, for example, the degree to which the work involved merely locating documents which work could be, or was, performed by paralegals.
2. Mr Yunghanns submits that because the definition of 'legal practice' includes 'work done or business transacted in the ordinary course of legal practice' it includes services 'which, though not required to be done exclusively by a solicitor, [are] usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor'.[160] Mr Yunghanns submits that it is not necessary that the work is such that it can only be provided by a qualified legal practitioner or entity. Ultimately, Mr Yunghanns submitted that none of Connon Wood's fees are recoverable because they all fall within the definition of 'legal practice' and are not recoverable by reason of the LPUL, or alternatively, if some of the services are not legal services, they are still not recoverable because Connon Wood was not Batten Sacks' agent.
3. Neither party suggested that, if some fees were recoverable as non-legal fees, this application is the appropriate forum to resolve the question as to what particular items are recoverable on this basis. Instead, the parties both said that that was a matter for taxation. For the following reasons, none of Connon Wood's fees are recoverable as a disbursement in any case.
4. First, the fees are claimed by Batten Sacks as a disbursement in the Bill of Costs. Applying the reasoning in Santos, as Connon Wood was not an agent of Batten Sacks, its fees are not recoverable as a disbursement in this way. The discussion in Santos of the nature of a disbursement and the nature of 'costs' makes it clear that legal fees of a lawyer (who is not entitled to practise in the jurisdiction) are claimable as a disbursement if they are fees of a lawyer who has been engaged as an agent of the principal lawyer acting in the jurisdiction. In this case, Connon Wood was not engaged as an agent of Batten Sacks, but rather, Connon Wood was a principal. Accordingly, Connon Wood's fees are not recoverable as a disbursement.
5. Second, I do not accept that some of the services provided by Connon Wood were not legal services and therefore are recoverable as a disbursement. As discussed above, 'legal services' includes services 'which, though not required to be done exclusively by a solicitor, [are] usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor'.[161] Having regard to the matters discussed above as to whether Connon Wood provided legal services, I am satisfied that the services provided by Connon Wood were legal services within this definition. The only people in Connon Wood whose work was charged for were Mr de By and Ken Proulx ('Mr Proulx'). Mr de By, by all accounts, is a very experienced practitioner who charges significant fees. Those facts alone support the inference that the work that he was doing under a legal retainer constituted the provision of legal services. The descriptions in the March Memorandum and bills of costs of the services to be provided, and in fact provided, by Mr de By also supports that conclusion.
6. Mr Proulx, and his involvement in the proceedings, were described by Mr de By as follows:

... a very substantial amount of time was, ... also billed by what is listed here at KP, which is a gentleman called Ken Proulx who was a technical litigation staff in our office in Los Angeles and you can see what he did. So, he was working to manage the documents that had been collected that Dr Baron Levi needed.[162]

1. Mr de By was cross-examined on the Connon Wood invoice to FIP dated 10 May 2018, as follows:

COUNSEL: You'll see someone's totalled up the number of hours and the rate and the amount referrable, they've excluded items that have been deleted as not claimed for the purposes of taxation, but what remained was 219 hours for your time amounting to $208,620 US and Mr Proulx's time was 101 hours amounting to $28,956 US. So, you've made a point that a lot of the time was Mr Proulx's, but great majority of it, about 90 per cent was your time, wasn't it?

MR DE BY: No, that's not true. It's not 90 per cent. He has 101 hours and I have 219 hours. So, he has approximately a third and I have approximately two thirds.

COUNSEL: Approximately 90 per cent of the billable fees for the month?

MR DE BY: Yeah, that's true. He's a non-attorney who I think was at that time in his early 20s and he's a litigation support paralegal.[163]

1. A perusal of Connon Wood's invoices shows that much of Mr Proulx's work involved 'analysis' of documents, and not merely administrative tasks. A significant example is the entry for Mr Proulx on 19 December 2017 which records Mr Proulx as having done nearly 16.90 hours work on that day described as:

Analyzed numerous emails from [Dr Baron Levi] and [Mr de By] re discovery documents, status, Section 118 vs. 199 searches and content; replied to same; researched documents for [Dr Baron Levi]; analyzed document submissions thus far for criteria of privileged content; identified responsive documents and analyzed results; segregated for subsequent review by attorneys.[164]

1. Having regard to the above, I am satisfied that all of the services provide by Connon Wood come within the definition of 'legal service'.

1. For the above reasons, I find that Mr Colquhoun-Denvers is not liable for Connon Woods fees and FIP is not the 'real party' to the proceeding as discussed in Dyktynski. Accordingly, Connon Woods fees are not recoverable from Mr Yunghanns either under the orthodox indemnity principle, or in accordance with the principles expressed in Dyktynski. That is sufficient to preclude Mr Colquhoun-Denvers from recovering Connon Wood's disbursement.
2. In relation to the second issue, I find that:

(a) the services provided by Connon Wood were legal services;

(b) Connon Wood acted as principal and was not an agent of Batten Sacks;

(c) Connon Wood's services were provided in relation to a proceeding issued in Victoria and accordingly, the provision of those services, and the entitlement to any fees, are governed by the LPUL;

(d) if Connon Wood's fees were not precluded from recovery by the indemnity principle, then Connon Wood's fees may have been recoverable insofar as they fell within the exceptions of the practice of foreign law in relation to:

• (A) 'foreign law' (within the meaning of s 6 of the LPUL) in relation to the jurisdictional challenge;[165] or
• (B) mediation, insofar as mediation occurred in the context of Connon Wood's provision of services in relation to foreign law;[166] and

however the extent to which that is the case would be a question for assessment.

1. None of Connon Wood's fees are otherwise recoverable as a disbursement.
2. I direct the parties to provide orders reflecting these reasons, including as to costs by 6 February 2026. If orders cannot be agreed, I will hear further from the parties.

[1] Yunghanns v Colquhoun-Denvers [2019] VSC 433.

[2] Yunghanns v Colquhoun-Denvers [2021] VSCA 15.

[3] Bill of Costs filed on 5 April 2022, 275 ('Bill of Costs').

[4] The Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') applied at the time however, they have been superseded by the Supreme Court (General Civil Procedure) Rules 2025 (Vic) and r 47.04 remains unchanged.

[5] Order of Costs Registrar Walton in Nicholas Colquhoun-Denvers v Peter Nicholas Yunghanns (Supreme Court of Victoria, S ECI 2022 01151, 6 July 2022) order 1.

[6] Incorporated by s 4 in sch 1 of the Legal Professional Uniform Law Act 2014 (Vic) ('LPUL').

[7] Birketu Pty Ltd v Atanaskovic [2025] HCA 2; (2025) 421 ALR 256, 261 [17] ('Birketu').

[8] Email from Robert de By to Sean Bogan, 19 February 2016.

[9] Letter from Alejandro Taylor to Dr Hugo Lens, 10 April 2018, 2 ('10 April Letter').

[10] Peter Yunghanns, 'Respondent's Consolidated Submissions on the Preliminary Question', Submission in Colquhoun-Denvers v Yunghanns (Preliminary Question) S ECI 2022 01151, 9 October 2024, [2(d)] ('Respondent's Consolidated Submissions').

[11] Nicholas Colquhoun-Denvers, 'Applicant's Consolidated Outline of Submissions on the Preliminary Question', Submission in Colquhoun-Denvers v Yunghanns (Preliminary Question) S ECI 2022 01151, 22 November 2024, [50] ('Applicant's Consolidated Submissions').

[12] 'Connon Wood LPP Memorandum' from Robert A de By to Nicholas Colquhoun-Denvers, Alejandro Taylor and Dr Hugo Lens, 26 March 2018, 1 ('March Memorandum').

[13] The terms of the insurance policy were not in evidence but the policy is described as 'Civil Liability Insurance for Directors and Executives' in a translation of an application presented to AIG on 23 May 2018.

[14] 10 April Letter (n 9) 14.

[16] Email from Jaye Alderson to Raymond Abrahams, 14 April 2018.

[17] Email from Raymond Abrahams to Robert de By and Alejandro Taylor copying Harvey Bruce, Jaye Alderson, Sean Baron Levi and Bruce McClintock, 15 April 2018.

[18] Email sent from Robert de By to Alejandro Taylor copying Felipe del Sel, 16 April 2018 at 11:58am.

[19] Email from Raymond Abrahams to Robert de By copying Harvey Bruce and Sean Baron Levi, 16 April 2018, 4:00pm.

[20] Email from Martina Halpin on behalf of Harvey Bruce to Robert de By copying Alejandro Taylor, 29 May 2018.

[21] Order of T Forrest J in Yunghanns v Colquhoun-Denvers (Supreme Court of Victoria, S CI 2016 01170, 20 December 2019).

[22] Applicant's Consolidated Submissions (n 11) 1 [1].

[23] Respondent's Consolidated Submissions (n 10) 2 [4(d)].

[25] Mainieri v Cirillo [2014] VSCA 227; (2014) 47 VR 127, [43]; Harvard Nominees Pty Ltd v Dimension Agriculture [2023] FCAFC 140; (2023) 299 FCR 224, [18]; Shaw v Yarranova [2011] VSCA 55, [8].

[26] Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203, [100] (McColl JA) ('Dyktynski').

[27] Ibid; Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495, 500-1 ('Adams v London Motor Coach Builders'); Shaw v Yarranova (n 25) [20]-[24].

[28] See paragraph 39(d)below.

[29] Realestate.com v Hardingham (2022) 277 CLR 115, [43] (Gordon J); [83] (Edelman and Steward JJ); Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201, [70] ('Adaz v Castleway').

[30] Ibid. See also Huntingdale Village Pty Ltd v Corrs Chambers Westgarth (No 3) [2016] WASC 366, [70] as to the applicability of general principles regarding costs agreements.

[31] Adaz v Castleway (n 29) [70(b)]; Lopes v Taranto [2018] VSCA 288, [66]-[72].

[32] Affidavit of Harvey Stephen Bruce affirmed on 3 June 2022 [2].

[34] Affidavit of Harvey Stephen Bruce affirmed 7 October 2022, [3].

[35] Applicant's Consolidated Submissions (n 11) [23].

[39] Respondent's Consolidated Submissions (n 10) [32].

[41] Applicant's Consolidated Submissions (n 11) 7 [20]; Respondent's Consolidated Submissions (n 10) [26], [33].

[42] Transcript of Proceedings, Colquhoun-Denvers v Yunghanns (Preliminary Question) (Supreme Court of Victoria, S ECI 2022 01151, Barrett AsJ, 14-16, 19 May 2025) 188 ('Transcript of Proceedings').

[45] Pursuant to the Rules of Professional Conduct as they were on 11 October 2017 those being, Rules of Professional Conduct, Cal. R. Prof Conduct, rule 3-310(F) (1992).

[46] Shaw v Yarranova (n 25).

[47] Dyktynski (n 26).

[48] Applicant's Consolidated Submissions (n 11) [30].

[49] Dyktynski (n 26) [84]; Ibid [15].

[51] Dyktynski (n 26) [74]-[76], citing New Pinnacle Group Silver Mining Co v Luhrig Coal and Ore [1902] NSWStRp 4; (1902) 2 SR (NSW) 50.

[52] Ibid [77]-[79], citing McCullum v Ifield (1969) 90 WN (Pt 1) (NSW) 525.

[53] Ibid [80]-[84], citing Lenthall v Hillson [1933] SAStRp 13; [1933] SASR 31.

[54] Ibid [85]-[87], citing Blackall v Trotter (No 2) [1969] VicRp 115; [1969] VR 946.

[55] Applicant's Consolidated Submissions (n 11) 7 [19].

[56] Dyktynski (n 26) [84].

[57] Peter Yunghanns, 'Respondent's Reply Submissions on the Preliminary Question', Submission in Colquhoun-Denvers v Yunghanns (Preliminary Question) S ECI 2022 01151, 13 December 2024, [11] ('Respondent's Reply Submissions').

[58] Birketu (n 7); Dyktynski (n 26) [4], citing Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, 410.

[59] Dyktynski (n 26) [69] and 220 [95] (McColl JA), citing Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534, 567 (McHugh J), see also 543 (Mason CJ).

[60] Dyktynski (n 26) [68] (McColl JA), citing Clarke & Chapman v Hart [1858] EngR 475; (1858) 6 HL Cas 632 at 667; [1858] EngR 475; 10 ER 1443 at 1457; Harold v Smith [1860] EngR 516; (1860) 5 H & N 381; 157 ER 1229, (385, 1231).

[61] Birketu (n 7) [17], citing Dyktynski (n 26) [7] (Mason P) (citations omitted).

[62] Dyktynski (n 26) [7], citing Tarry v Pryce (No 2) [1987] NTSC 59; (1987) 88 FLR 270.

[63] Ibid [8] (Mason P) (emphasis added), citing Adams v London Motor Coach Builders (n 27); Backhouse v Judd [1925] SAStRp 49; [1925] SASR 395; Angor Pty Ltd v Ilich Motor Co Pty Ltd [1992] FCA 348; (1992) 37 FCR 65; Wilson v Richmond River Shire Council [2000] NSWSC 71; Marsh v Baxter (No2) [2016] WASCA 51, [29], [35].

[64] Dyktynski (n 26) [16]-[18] (Mason P).

[66] Dyktynski (n 26) [92]-[94].

[68] Applicant's Consolidated Submissions (n 11) [30], [33].

[69] Applicant's Consolidated Submissions (n 11) [30].

[70] Applicant's Consolidated Submissions (n 11) [33].

[71] Dyktynski (n 26) [93] (emphasis added).

[72] Supreme Court Act 1986 (Vic) s 24.

[73] Rules (n 4) r 63.44.

[74] See discussion in Birketu (n 7) [13]-[17], citing United Petroleum v Herbert Smith Freehills [2020] VSCA 15, [74], [94].

[75] Birketu (n 7) [17].

[76] Cachia v Hanes (n 58) 409-410.

[77] Lewis v Doran [2008] NSWSC 186, [48(b)], citing Re Remnant [1849] EngR 776; (1849) 50 ER 949; Santos Lt v Delhi Petroleum Ltd (2005) 240 LSJS 366, [41]-[42] ('Santos').

[78] LPUL (n 6) sch 1.

[79] Ibid s 6.

[80] LPUL (n 6) ss 9, 10 (emphasis added).

[81] Ibid s 6.

[82] LPUL (n 6) ss 58, 60, 69 (emphasis added).

[83] Applicant's Consolidated Submissions (n 11) 18.

[84] Transcript of Proceedings (n 42) 22.

[86] Respondent's Reply Submissions (n 57) [26], citing Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, 210, citing Re Sanderson; Ex parte The Law Institute (Vic) [1927] VicLawRp 37; [1927] VLR 394, 397. See also Legal Profession Conduct Commissioner v Morcom (2016) 126 SASR 331, [90]-[91].

[87] Invoice #10601 to Federation of International Polo, 29 September 2016.

[88] Email from Robert de By to Alejandro Taylor copying Nicholas Colquhoun-Denvers, 26 March 2018.

[89] March Memorandum (n 12) 2.

[90] March Memorandum (n 12) 3 (emphasis added).

[91] March Memorandum (n 12) 6.

[94] They are also consistent with a further follow up letter to FIP's insurer which was edited by Mr de By as attached to an email dated 10 April 2018, prior to being sent. That letter reiterated many of the things said in the March Memorandum including the hourly rate of USD950 per hour, the extent and nature of the work being undertaken and the personnel who would be performing the listed tasks. See 10 April Letter (n 9) 10-14.

[95] March Memorandum (n 12) 9.

[98] 10 April Letter (n 9) 10-14.

[99] 10 April Letter (n 9) 14.

[100] Email sent from Robert de By to Alejandro Taylor copying Felipe del Sel, 16 April 2018, 11:58am (emphasis added).

[101] Email from Robert de By to Sean Bogan, 25 February 2016.

[102] Email from Robert de By to Nicholas Colquhoun-Denvers and ors, 29 September 2016.

[103] Email from Sean Bogan to Robert de By, 2 November 2016, 4:45pm.

[104] Email from Robert de By to Sean Bogan, 5 November 2016, 12:27am.

[105] Email from Robert de By to Nicholas Colquhoun-Denvers copying Alex Taylor, 3 October 2017. In that email Mr de By advises Mr Colquhoun-Denvers of suitable senior counsel, including Bruce McClintock SC who ultimately served as the barrister in the Defamation Proceeding. See Transcript of Proceedings (n 42) 134-137.

[106] Email from Robert de By to Sean Baron Levi copying Harvey Bruce, 30 October 2017.

[107] Email from Sean Baron Levy to Robert de By copying Sean Baron Levi, Harvey Bruce and Raymond Abrahams, 4 April 2018.

[108] Transcript of Proceedings (n 42) 125.

[109] Bill of Costs (n 3) 24 (emphasis added).

[110] Transcript of Proceedings (n 42) 273-4.

[113] Transcript of Proceedings (n 42) 42.

[118] Mie Force Pty Ltd v Allianz Australia Insurance Ltd [2024] NSWCA 23, [122]-[133] (White and Kirk JJA); Nerang Subdivision Pty Ltd v Hutson [2024] QCA 174, [50]-[55].

[119] Mr Colquhoun-Denvers is defined as 'the client'.

[120] Sean Baron Levi, Costs Agreement, 2 March 2016, 1.

[121] Sean Baron Levi, Costs Agreement, 13 February 2018.

[122] Transcript of Proceedings (n 42) 84.

[123] Email from Robert de By to Nicholas Colquhoun-Denvers, 23 February 2016.

[124] Email from Sean Bogan (Dr Sean Baron Levi) to Harvey Bruce, 30 May 2016.

[125] Transcript of Proceedings (n 42) 273.

[126] Harvey Bruce, 'File Note', 20 May 2016.

[127] Transcript of Proceedings (n 42) 41.

[128] Email from Robert de By to Alejandro Taylor, 16 April 2018, 11:58am (emphasis added).

[129] Email from Raymond Abrahams to Robert de By copying Harvey Bruce and Sean Baron Levi, 16 April 2018, 4:00pm.

[130] Transcript of Proceedings (n 42) 60.

[132] Bill of Costs (n 3) 24.

[133] Bill of Costs (n 3).

[134] LPUL (n 6) ss 3, 4.

[135] LPUL (n 6) ss 60, 69 (emphasis added).

[136] Applicant's Consolidated Submissions (n 11) [40].

[137] Respondent's Reply Submissions (n 57) [24].

[138] Respondent's Consolidated Submissions (n 10) [88].

[139] Respondent's Reply Submissions (n 57) [18(b)].

[141] ABN AMRO Bank NV v Bathurst Regional Council [2014] FCAFC 65; (2014) 224 FCR 1 ('ABN AMRO').

[144] ABN AMRO (n 141) 138 [734].

[145] LPUL (n 6) s 60(1).

[146] Transcript of Proceedings (n 42) 278.

[148] Respondent's Consolidated Submissions (n 10) [88].

[149] Transcript of Proceedings (n 42) 209.

[150] Respondent's Consolidated Submissions (n 10) [2(d)].

[151] Santos (n 77).

[155] Santos (n 77) [27].

[156] Santos (n 77) [27].

[158] Respondent's Consolidated Submissions (n 10) [93].

[159] Applicant's Consolidated Submissions (n 11) [47].

[160] Respondent's Reply Submissions (n 57) [26], citing Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, 210, citing Re Sanderson; Ex parte The Law Institute (Vic) [1927] VicLawRp 37; [1927] VLR 394, 397.

[161] Respondent's Reply Submissions (n 57) [26], citing Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, 210, citing Re Sanderson; Ex parte The Law Institute (Vic) [1927] VicLawRp 37; [1927] VLR 394, 397.

[162] Transcript of Proceedings (n 42) 142.

[163] Transcript of Proceedings (n 42) 143.

[164] Invoice #10898 to Federation of International Polo, 5 January 2018.

[165] LPUL (n 6) s 69(2)(a).