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[2026] NSWCA 205
respondent. Application for leave to appeal refused with costs.
The Court of Appeal refused DLaw permission to appeal. It accepted that whether a costs-assessment application can be amended was an arguable and practically important question, but it did not answer that question. The costs assessment and its review had already occurred, other proceedings raised related issues, statutory review and appeal routes were available, and it was uncertain whether the declaration DLaw sought would have any practical effect. The refusal was procedural, not a final ruling that amendment was permitted or prohibited.
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2,415 words · generated 08/10/2026
DLaw Pty Ltd was a law practice and Croft Developments Pty Ltd was its former client. DLaw issued invoices for legal services over an extended period. Croft paid the invoices as they were issued, without first asking for an assessment of the costs. It later applied under s 198 of the Legal Profession Uniform Law (NSW) for assessment of the costs payable under the invoices issued up to that point. The judgment calls this the “Original Application” ([3]).
5 cited instruments linked from this judgment.
DLaw then issued further invoices, including invoices issued in response to a direction by the costs assessor, Mr Bentley. Croft amended its application to include those later invoices. The Manager, Costs Assessment, accepted the amended application and referred it to the assessor, who proceeded to determine it ([3]).
DLaw brought judicial-review proceedings in the Supreme Court. Its principal contention was that the legislation did not permit Croft to amend its application, and that the amended application was therefore invalid. The primary judge, Ierace J, held that a power to amend could be implied from the statutory scheme ([4]). DLaw sought leave to appeal that decision.
The appeal application sat alongside two other processes. DLaw had brought separate judicial-review proceedings concerning other issues in the assessment process. It had also sought review of Mr Bentley’s determination under s 83 of the Legal Profession Uniform Law Application Act 2014 (NSW). By the time of the Court of Appeal hearing, the review panel had completed its determination, although it had not published it because the relevant fee remained unpaid ([5], [12]). The separate proceedings were listed for hearing in November 2026 ([13]).
The Court of Appeal refused leave to appeal with costs ([24]). It did not decide whether an application for costs assessment can be amended. Its decision rested on the timing, structure and potential utility of the proposed appeal.
The Court accepted that the amendment issue mattered beyond the immediate dispute. There was no express power of amendment in the costs-assessment regime, authority was described as scant, and the Manager had a practice of accepting amended applications. The Court said the issue was “plainly arguable” and of some practical importance ([8], [10]). It nevertheless refused leave.
First, the challenge was too late in the procedural sequence. In substance, DLaw was challenging a threshold question about which legal costs would be assessed. But the costs assessor had already made a determination and that determination had gone through review ([11]). Once the review panel’s decision was published, s 89 provided a statutory appeal on matters of law and fact. The appeal would be by way of rehearing, and the court could permit fresh or additional evidence ([12]). The statutory process therefore offered a route with a broader scope than the judicial-review question DLaw sought to isolate.
Second, the challenge was premature in another sense: the disputes had become fragmented. There were three processes in play: the present proceedings about amendment; separate proceedings about other issues; and the completed but unpublished review-panel determination, potentially followed by an appeal ([13]). The Court considered that issues arising from the costs assessment should more appropriately be determined together, rather than through separate proceedings that might overlap ([14]).
Third, the separate proceedings raised questions about the timing and character of the invoices. Section 198(3) provides a 12-month period for an application after a bill is given to a client. Section 193(2), however, provides that costs covered by an interim bill may be assessed at the time of that bill or at the time of a final bill, whether or not the interim bill has previously been assessed or paid ([15]). Croft argued that most invoices were interim bills and that the costs could therefore be assessed when the final bill was issued. DLaw argued that there was a new retainer each month, making each monthly invoice final for a separate retainer. The parties also disputed which later invoice was the final bill ([16]).
Those questions were not before the Court of Appeal on the leave application, but the Court considered that they could affect whether the amendment dispute mattered. If the s 193 issues were decided against DLaw, an assessment of all the invoices might still be possible through a fresh application, subject to any required extension of time. The Court reasoned that the practical result obtained through the amendment might therefore be achievable even if the amendment had not been authorised ([17], [22]-[23]).
Fourth, the requested judicial-review relief had uncertain utility. The costs assessor was not a party, and DLaw was not seeking to quash the assessor’s determination. DLaw accepted that a declaration would not formally bind either the assessor or the review panel. The roles of those decision-makers appeared to have substantially ended, so a declaration might not regulate future decisions by them ([21]). The unknown outcome of the review panel’s determination also affected the utility of the proposed appeal.
The Court also noted the discretionary character of judicial review. It referred to authority explaining that judicial review will not ordinarily be used to fragment an ongoing statutory process where alleged errors can be corrected through an available statutory appeal, unless there is a real prospect of harm that the appeal cannot correct ([18]). In this case, statutory procedures existed, and DLaw had already used one of them. The Court also noted the possibility of review under s 93B(3) of the Application Act, although DLaw had not relied on that provision as the source of the Supreme Court’s jurisdiction in these proceedings ([19]).
The judgment does not establish a before-and-after rule on whether a costs-assessment application may be amended. Before this decision, the judgment records that the statutory regime contained no express amendment power, that authority on the issue was scant, and that the Manager had a practice of accepting amended applications ([8]). The primary judge had held that an amendment power could be implied ([4]). The Court of Appeal did not affirm or reject that conclusion.
Instead, the judgment identifies possible legal routes to such a power without choosing between them. One possibility was that reg 37, which the first respondent said allowed an assessor to require a further bill, carried an incidental power to amend an application, read in light of s 169’s objectives. Another was an implied power derived from construing the statutory scheme as a whole. A third was an incidental power of the Manager or assessor connected to their roles in referring or determining applications ([9]). These were possibilities canvassed at the hearing, not findings that any particular route was correct.
The decision does clarify how the Court approached leave to appeal in this procedural setting. The familiar leave factors, including principle, public importance and reasonably clear injustice, were treated as important but not exhaustive. The Court adopted the explanation in John Goubran that the governing question is the interests of justice, assessed in light of both the case and wider interests in resolving important legal questions ([7]). It then applied that approach to the available statutory remedies, fragmentation and utility.
Accordingly, the “after” position is procedural rather than substantive. The amendment question remained unresolved by the Court of Appeal. The immediate result was that the primary judge’s decision was not disturbed through this leave application, but the Court did not thereby determine the correctness of the implied-power reasoning on its merits.
At [8], the Court said the amendment question was important to the practical operation of costs assessment, because there was no express amendment power and the Manager accepted amended applications. In plain English, the issue was not merely a private technicality: the answer could matter to how the assessment system operates. But importance alone did not require leave.
At [9], the Court identified three possible explanations for an amendment power. The significance of this passage is its restraint. The Court set out arguments that might support a power but did not endorse one. It described the legal question as not immediately clear.
At [10], the Court stated: “Notwithstanding the importance of the underlying question, which is plainly arguable, leave to appeal should be refused.” This is the decision’s central point. An arguable and important legal question can still be left undecided where the appeal is poorly timed or lacks practical utility.
At [12], the Court reproduced s 89, which allows an appeal from a review-panel decision on matters of law and fact. Such an appeal is by way of rehearing, and further evidence may be admitted with leave. In plain English, the statutory appeal route could permit a broader reconsideration than the supervisory review DLaw was pursuing.
At [14], the Court said it was “far more appropriate for all issues arising out of the costs assessment process to be determined in the one proceeding”. This passage explains its concern about splitting the dispute into multiple cases. Separate proceedings risked dealing with related questions at different times or in ways that might not fit together.
At [21], the Court observed that the proposed declaration might have “no utility”. The assessor was not a party, the assessment had already been determined, and the declaration would not formally bind the assessor or the review panel. Put simply, the Court questioned whether the order sought could change anything practical.
At [23], the Court connected the appeal’s usefulness to the unresolved s 193 issues. If those issues meant the costs could still be assessed through a fresh application, the amendment question might not affect the practical outcome. The Court did not decide that alternative route was available; it treated the possibility as a reason not to decide the amendment question in isolation.
The judgment is most relevant to cases where a party seeks appellate or judicial-review intervention in a statutory decision-making process before all connected issues have been resolved. It highlights particular features that may make leave less appropriate: the challenged decision is an intermediate step or threshold issue; a statutory review or appeal route exists; the statutory process has progressed; related proceedings are already underway; or the utility of the requested relief depends on unresolved questions elsewhere.
It is also relevant where the relief sought would not bind the decision-maker whose conduct is challenged, or where the decision-maker’s role has already ended. At [21], the absence of the costs assessor as a party, the fact that the determination was not being quashed, and the limited binding effect of a declaration all contributed to doubts about utility.
For costs-assessment disputes, the judgment flags the interaction between applications under s 198 and interim bills under s 193. A dispute about whether invoices are interim or final, whether a retainer is continuing or separate, or which invoice completes the retainer may affect the timing and scope of an assessment. This case does not decide those questions, but it shows why an appellate court may regard them as relevant to whether an isolated appeal about amendment has practical value ([15]-[17], [22]-[23]).
The decision does not mean that every judicial-review challenge to an intermediate decision must wait. The Court’s discussion of Chief of Navy v Angre recognises that there may be exceptional cases where supervisory intervention is useful or necessary, particularly if a person’s rights or interests may be affected in a way that cannot be corrected by a later statutory appeal ([18]). The present judgment’s conclusion was tied to its own procedural circumstances.
The judgment itself supplies no information about how later courts have treated DLaw v Croft. Its decision date is 25 September 2026, and the text contains no subsequent treatment of this judgment by another court. It would therefore be unsupported to describe a later line of cases applying, distinguishing or limiting it.
The judgment does identify authorities it relied on or discussed. It cites Weston Energy and Cheng for the familiar leave formulation ([6]), then explains through John Goubran that the formulation is not exhaustive or automatically decisive ([7]). It relies on Chief of Navy v Angre for the discretionary approach to judicial review where a statutory process is ongoing and an alternative appeal may correct the alleged error ([18]). It also refers to Fong v Weller for the relevance of another equally effective and convenient remedy ([19]).
These are authorities the Court used in reaching its decision, not later treatment of DLaw v Croft. A careful account should keep that distinction clear. The judgment’s own contribution, on its face, is a case-specific refusal of leave based on timing, fragmentation and utility, not a merits ruling on an amendment power.
The central unresolved question is whether the statutory costs-assessment regime permits an application under s 198 to be amended to include later invoices. The Court identified three possible sources for such a power but did not choose between them ([9]). The primary judge’s conclusion that a power could be implied remained unexamined on appeal.
The relationship between ss 193 and 198 also remained open. The parties disputed whether the invoices were interim bills, whether there was a new retainer each month, and which invoice was final ([15]-[17]). Those matters could determine whether the 12-month rule in s 198(3) applied as DLaw contended, and whether a fresh application could achieve the same practical result. The Court did not determine the construction of either provision in this appeal.
The judgment also left jurisdictional questions unresolved. DLaw relied on the Supreme Court’s supervisory jurisdiction and, to the extent it invoked s 69 of the Supreme Court Act 1970 (NSW), the Court noted that jurisdictional error, or possibly error of law on the face of the record, would need to be demonstrated. It questioned whether the latter would suffice given s 73 of the Application Act, and noted that materiality had not been addressed ([20]). Those observations identify matters that could require consideration in another proceeding; they are not conclusions about whether an error occurred.
Finally, the precise practical consequences depended on the publication and outcome of the review-panel determination, any subsequent appeal, the separate proceedings, and the s 193 issues ([12]-[14], [21]-[23]). The Court’s refusal of leave resolved none of those matters. It decided that this particular appeal should not proceed in the circumstances then before it.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: DLaw Pty Ltd v Croft Developments Pty Ltd [2026] NSWCA 205
Hearing dates: 15 September 2026
Date of orders: 25 September 2026
Decision date: 25 September 2026
Before: Kirk JA, Stern JA and McHugh JA
Decision: Application for leave to appeal refused with costs.
Catchwords: APPEALS – Leave to appeal – judicial review – whether there is power to amend an application for costs assessment – issue of public importance – costs assessment of amended application completed and the subject of a review from which an appeal would lie – application both too late and premature – fragmentation of proceedings – unclear whether relief sought has utility – leave to appeal refused
Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW), ss 73, 83, 85, 89, 93B
Legal Profession Uniform Law Application Act Regulations 2015 (NSW), reg 37
Legal Profession Uniform Law (NSW), ss 169, 193, 198
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 49.19
Cases Cited: Cheng v Motor Yacht Sales Australia Pty Ltd t/a Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118
Chief of Navy v Angre (2016) 244 FCR 457; [2016] FCAFC 171
Diamond Conway Lawyers v Hale [2026] NSWSC 463
Fong BHNF Fong v Weller [2024] NSWCA 46
John Goubran & Associates Pty Ltd v The Owners – Strata Plan 57150 [2026] NSWCA 188
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Weston Energy Pty Ltd v National Ceramic Industries Australia Pty Ltd (2026) 400 FLR 323; [2026] NSWCA 7
Westwood Capital Pty Ltd v Croatian Club Ltd [2026] NSWSC 534
Category: Principal judgment
Parties: DLAW Pty Ltd (Applicant)
Croft Developments Pty Ltd (First Respondent)
Manager, Costs Assessment (Second Respondent)
Representation: Counsel:
J Doyle (Sol) (Applicant)
P Doyle Gray (First Respondent)
Solicitors:
Houston & Associates (Applicant)
M Nguyen (First Respondent)
Crown Solicitor for NSW (Second Respondent)
File Number(s): 2026/00134711
Publication restriction: Nil
KIRK JA: I agree with McHugh JA.
STERN JA: I agree with McHugh JA.
McHUGH JA: The applicant (DLaw) is a law practice. The first respondent (Croft) is the applicant’s former client. The second respondent is the Manager, Costs Assessment appointed pursuant to s 93B(1) of the Legal Profession Uniform Law A**pplication Act 2014 (NSW) (Application Act). DLaw issued a number of invoices to Croft for legal services provided over an extended period. Croft paid the invoices as they were issued, without seeking to have the legal costs payable under the invoices assessed prior to payment. Croft later applied pursuant to s 198 of the Legal Profession Uniform Law (NSW) (Uniform Law) for assessment of the legal costs payable to DLaw under each of the invoices that had been issued up until that point (the Original Application). DLaw subsequently issued further invoices, including in response to a “direction” made by the costs assessor, Mr Bentley. Croft amended its application to include the further invoices. The Manager accepted the amended application, referring it to the costs assessor who went on to determine it.
The applicant brought proceedings in the Common Law Division of the Supreme Court of New South Wales, principally seeking declaratory relief (in the nature of administrative law relief) concerning the validity of the amended application and the Manager’s decision to refer it to the costs assessor. The primary judge, Ierace J, held that there is an implied power to amend an application for assessment under s 198 of the Uniform Law: DLAW Pty Ltd v Croft Developments Pty Ltd [2026] NSWSC 191 (PJ). The applicant now seeks leave to appeal from a decision. The applicant’s essential contention in this Court is that there is no power to amend an application for assessment of costs, such that Croft’s amended application in this case was invalid.
Two related proceedings should be noted.
DLaw commenced other proceedings in the Common Law Division, also seeking judicial review of the cost assessment process that was to be conducted by Mr Bentley. Mr Bentley is a party to those proceedings while the Manager is not. In those proceedings DLaw seeks to agitate issues other than the power of amendment, as discussed below.
DLaw also sought review of Mr Bentley’s determination pursuant to s 83 of the Application Act. (As to the nature of such a review, see Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 at [157]-[166]; Westwood Capital Pty Ltd v Croatian Club Ltd [2026] NSWSC 534 at [39]-[52] (Mitchelmore JA)). The Court was informed that the review panel has completed its determination but not yet published it because the relevant fee has not been paid.
[38] First, the familiar formulation referred to in Weston Energy should not be treated like a statute. As Kirk JA and I said in Mohareb v Local Court of New South Wales [2024] NSWCA 235, after referring to cases adopting substantially the same formulation as that in Weston Energy:
“[25] … It is commonly sufficient to refer to those factors in deciding whether to grant leave to appeal. But as is implicit in the use of “usually” and “generally”, whilst those factors are important they are neither exhaustive nor necessarily determinative. Thus this Court has also said, for example, that “leave should be granted only where there are substantial reasons to allow an appellate review … such as where there is an error of principle which, if uncorrected, will result in substantial injustice”: Collier v Lancer (No 2) [2013] NSWCA 186 at [7] (citations omitted); see also Rodi v Gelonesi [2012] NSWCA 424 at [24]; DEF v Trappett [2017] NSWCA 163 at [25].
[26] There are no “rigid and exhaustive criteria” as the “circumstances of different cases are infinitely various”: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 at 177. The ultimate issue is the interests of justice, taking into account both the circumstances of the particular case and broader interests in resolving matters of public importance and clarifying the law. A range of considerations may be relevant.
[27] For example, it has often been said that particular caution is called for in granting leave to appeal a decision pertaining to practice and procedure: eg Adam P Brown at 177; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [3].
[28] As with any exercise of a discretionary power by a court, the utility of what is sought may be significant.
[29] The Court has also been cautious about granting leave to appeal where only small monetary sums are involved: see eg Daily Examiner Pty Ltd v Mundine [2011] NSWCA 126 at [4]-[5]; Rodi at [25]; Toth v State of New South Wales [2022] NSWCA 185 at [6]-[14]. The Court said the following in Toth:
[14] Leaving aside cases raising issues of principle or public importance, it will be rare that justice will require that an application for leave to appeal involving a small amount will merit the expenditure and use of resources in having an appeal determined by this Court.
[30] As referred to in Toth at [9], s 60 of the Civil Procedure Act 2005 (NSW) may be relevant. It requires that “the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute”.
[31] More broadly, the matters addressed in ss 56-58 of the Civil Procedure Act may also be pertinent. …”
[39] It follows that even in cases where it can be said that the judgment or order from which leave to appeal is sought gave rise to a reasonably clear injustice, it does not automatically follow that leave will be granted. Other factors may militate against the grant of leave, and may be determinative in a particular case.
The underlying question in this application for leave to appeal is whether, as the Manager, the costs assessor and the primary judge determined, there was power to amend Croft’s Original Application to include legal costs payable under invoices which were not issued until after that Application had been made. That question is of some importance for the practical operation of the system of costs assessment in this State. There is no express power of amendment in the costs assessment regime. Authority on the question is scant. And the evidence indicates that the Manager has a practice of accepting amended applications for assessment of costs.
The resolution of that underlying question is not immediately clear. At least three possibilities were canvassed at the hearing of this matter in potential support of a power of amendment.
The first respondent submitted that reg 37 of the Legal Profession Uniform Law Application Act Regulations 2015 (NSW) confers on a costs assessor a power to require a party to a costs assessment to provide a further bill of costs. Incidental to this power, construed in light of the objectives identified in s 169 of the Uniform Law, may be a power to amend the application to include legal costs under such further invoices.
As the primary judge held at PJ [40], a power to amend may be implied as a matter of construction of the statutory scheme.
As the first respondent embraced at the hearing, a power to amend may be an aspect of the implied incidental power of either the Manager or the costs assessor respectively to refer or to determine costs applications under the statutory scheme.
Notwithstanding the importance of the underlying question, which is plainly arguable, leave to appeal should be refused. The present application is both too late and premature. The proceedings have already become unnecessarily fragmented, and the relief sought may well lack utility in any event.
The application is too late because it arises out of what was in substance a proceeding for judicial review of a threshold question as to the scope of the legal costs that were to be assessed by Mr Bentley. But Mr Bentley has given his determination, and that determination has been reviewed.
Pursuant to Division 6 of the Application Act, upon publication of the review panel’s decision, the parties will have rights of appeal that are much broader in scope than judicial review. In particular, s 89 provides:
89 Appeal on matters of law and fact
(1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the review panel concerned to—
(a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or
(b) the Supreme Court, in accordance with the rules of the Supreme Court, but only with the leave of the Court if the amount of costs in dispute is less than $100,000.
(2) The District Court or the Supreme Court (as the case requires) has all the functions of the review panel.
(3) The Supreme Court may, on the hearing of an appeal or application for leave to appeal under this section, remit the matter to the District Court for determination by that Court in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court thinks fit.
(3A) The Supreme Court may, before the conclusion of any appeal or application for leave to appeal under this section in the District Court, order that the proceedings be removed into the Supreme Court.
(4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.
The present application is premature because consideration of the issues arising out of Mr Bentley’s costs assessment has become procedurally fragmented, and the utility of these proceedings may well be affected by the outcome of the other proceedings. There are currently on foot:
the present proceedings (to which the Manager but not Mr Bentley is a party), which seek to agitate the question whether there is any power of amendment;
the other proceedings in the Common Law Division (to which Mr Bentley but not the Manager is a party), which seek to agitate issues other than the power of amendment; those proceedings are listed for hearing in November 2026; and
the review panel proceedings which are completed (although the determination is as yet unpublished), which is liable to be appealed pursuant to Application Act s 89 as explained above.
It is far more appropriate for all issues arising out of the costs assessment process to be determined in the one proceeding, than for this Court to embark upon an examination of the power to amend an application for costs assessment in circumstances where other issues that may be relevant or that may overlap are to be determined in separate proceedings.
For example, one of the issues between the parties arises out of ss 198(3) and 193(2) of the Uniform Law. Section 198(3) relevantly provides that an application for assessment of legal costs under s 198 “must be made within 12 months after … the bill was given to … the client”. Many of the invoices which Croft submitted to assessment were issued more than 12 months before Croft made its s 198 application. However, s 193 provides:
193 Interim bills
(1) A law practice may give a person an interim bill covering part only of the legal services the law practice was retained to provide.
(2) Legal costs that are the subject of an interim bill may be assessed under Division 7, either at the time of the interim bill or at the time of the final bill, whether or not the interim bill has previously been assessed or paid.
Division 7 is headed “Costs assessment” and includes s 198. Croft relied on s 193(2) to argue that all of the invoices other than the last invoice it had received (i.e., “the final bill”) were “interim bill[s]” (“covering part only of the legal services the law practice was retained to provide”), and that the legal costs that were the subject of those invoices were therefore assessable without any extension of time under s 198(4). DLaw argues that there was a new retainer each month under the terms of its cost agreement with Crofts such that each monthly invoice was a “final” invoice in respect of a separate retainer. Alternatively, even if there was only one retainer, DLaw argues (but Croft appears to dispute) that one or other of the further invoices it issued was the “final invoice” for purposes of s 193(2). Those further invoices were not the subject of Croft’s Original Application and, on DLaw’s case, there was no power to amend the Original Application. On DLaw’s case, the final invoice is thus not the subject of any application for costs assessment; s 193(2) is not engaged; and there is no power to assess the legal costs payable under any of the “interim bills” issued more than 12 months before the making of the Original Application.
These questions are not before this Court on the present application for leave to appeal but some or all of the s 193 questions appear to have been expressly put in issue in the applicant’s other proceedings in the Common Law Division of the Court. Questions relating to the construction of s 193 may have a bearing on the question whether the statutory scheme confers a power to amend. Moreover, as set out below, if the s 193 issues are determined adversely to the applicant, it would appear that the present proceedings as a whole lack any real purpose in circumstances where the same result could be obtained now (subject to an extension of time under s 198(4)) without any “amended” application.
It is also relevant to the issue of leave that even if leave were granted, relief in judicial review proceedings is discretionary. Where proceedings in a statutory tribunal have involved alleged errors which would be capable of correction through an available statutory procedure, the risk that judicial review will result in fragmentation of proceedings will loom large in the exercise of that discretion. As the Full Court of the Federal Court explained in Chief of Navy v Angre (2016) 244 FCR 457; [2016] FCAFC 171 at [83]-[84]:
[83] In some circumstances, there may be utility, or necessity, in the Court's supervisory jurisdiction on judicial review being exercised notwithstanding the “decision” under review is but a step in the process towards the making of a final decision by a statutory tribunal. A decision of that character may not be reviewable under s 5 the AD(JR) Act on well-established principles, although s 6 of the AD(JR) Act may be applicable. Relief under s 39B of the Judiciary Act may be available if the interim decision affects rights and interests. However, it will not ordinarily be appropriate to fragment ongoing proceedings in a statutory tribunal and to exercise the Court's supervisory jurisdiction unless there is a real prospect of a person's rights and interests being affected in a way that would not be capable of correction on a statutory appeal from a final decision under a provision such as s 52. I emphasise that such circumstances will be out of the ordinary.
[84] In Commissioner of Taxation v Cancer and Bowel Research Association [2013] FCAFC 140; 305 ALR 534 at [13] the Full Court expressed, in terms with which I respectfully agree, the correct approach to an application for judicial review under s 39B in such circumstances:
“The grant of relief pursuant to 39B of the Judiciary Act is a matter of discretion. In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, Gaudron and Gummow JJ at [55] noted that:
‘Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Limited. Their Honours said [(1949) 78 CLR 389 at 400];
For example the writ may not be granted if a more convenient and satisfactory remedy exists: if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or to which the Court towards the application is made. The Court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that remedy should be withheld
“Ordinarily, the availability of appeal as an avenue to correct an error of law would be a powerful discretionary reason not to grant certiorari. Ordinarily also, a court would be reluctant to entertain a judicial review application where the challenge is to an intermediate direction or determination made along the way to reaching an ultimate determination of the substantive issue. As the cases illustrate, these principles ordinarily should lead the Court to exercise its discretion to refuse relief under s 39B of the Judiciary Act.”
(citations omitted)
As noted above, in this case there is a right of review to a review panel from the determination of the cost assessor, and, from the review panel, a right of appeal to either the District Court or the Supreme Court. Moreover, there is a facility under s 93B(3) of the Application Act to review decisions of the Manager in the same manner as decisions of other registrars are reviewable, which engages Uniform Civil Procedure Rules 2005 (NSW) r 49.19(1): see Diamond Conway Lawyers v Hale [2026] NSWSC 463 at [23]-[25]. Yet the applicant disclaimed reliance in these proceedings on s 93B as founding the jurisdiction of the Supreme Court, choosing to rely only on the supervisory jurisdiction. It follows that there were, and are, avenues available to correct any error which would not involve the fragmentation of proceedings in the manner sought by the applicant. The applicant has actually pursued one of those avenues. A basis for exercising the discretion to decline to grant relief in judicial review cases is if there is another equally effective and convenient remedy which the party could have pursued: Fong BHNF Fong v Weller [2024] NSWCA 46 at [29].
A further consequence of the jurisdiction in which the applicant chose to proceed is that, to the extent that the applicant invokes s 69 of the Supreme Court Act 1970 (NSW), it must demonstrate jurisdictional error, or, possibly error of law on the face of the record. It is not clear whether error of law on the face of the record would suffice because of s 73 of the Application Act, which provides that “a costs determination is binding on all parties and no appeal or other assessment lies in respect of the determination, except as provided by this Part”; cf Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1. Moreover, no attention was paid in this Court to whether the alleged error was jurisdictional or satisfied any requirement of materiality: see LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [5]-[7]. Alternatively, to the extent that the jurisdiction the applicant invokes is merely declaratory, its utility is far from clear in light of the matters below.
Another matter which would be relevant to the exercise of the discretion to grant relief by way of judicial review, and thus is relevant to the question of leave, is the utility of the relief sought. In this case, there appears to be a real prospect that the declaratory relief sought will be of no utility, in circumstances where the costs assessor is not joined as a party and there is an extant determination by the costs assessor which is not sought to be quashed. As the applicant accepted in oral argument, relief in these proceedings will not formally bind the costs assessor. Nor would it bind the review panel. And the role of both appears in substance to have come to an end, so a declaratory judgment would not have some prophylactic effect as regards their future decisions. The as yet unknown outcome of the review panel’s determination may also be relevant to the utility of the present proposed appeal.
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DLaw Pty Ltd
Croft Developments Pty Ltd
[2026] NSWSC 463
[2026] NSWCA 188
[2010] HCA 1
[2026] NSWSC 534
(2022) 108 NSWLR 342
(2016) 244 FCR 457
(2010) 239 CLR 531
(2024) 280 CLR 321
(2014) 86 NSWLR 674
(2026) 400 FLR 323
(1981) 148 CLR 170
(2000) 204 CLR 82
(1949) 78 CLR 389
Application for leave to appeal refused with costs.
The principles applicable to the grant of leave are not in dispute. The applicant invoked the well known formulation, recently set out in Weston Energy Pty Ltd v National Ceramic Industries Australia Pty Ltd (2026) 400 FLR 323; [2026] NSWCA 7 at [93] (quoting Cheng v Motor Yacht Sales Australia Pty Ltd t/a Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15]): “As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable …”.
However, as I recently observed in John Goubran & Associates Pty Ltd v The Owners – Strata Plan 57150 [2026] NSWCA 188 at [38]-[39] (Free JA and Price AJA agreeing), that formulation is not to be treated like a statute, and the existence of a reasonably clear injustice (or, for that matter, a question of principle or public importance) will not automatically require a grant of leave:
A final matter relevant to leave arises out of the fragmentation of the proceedings. The practical utility of the present proposed appeal (i.e., whether the existence of a power of amendment actually matters in all the circumstances) depends on the outcome of issues to be determined in other proceedings. In the event that the s 193 issues are determined adversely to the applicant (which properly falls to be determined in other proceedings), it does not appear to be controversial that the first respondent’s Original Application would not have required an extension of time. Nor (making the same assumption about s 193, and subject to payment of the requisite fee — a matter of some controversy which need not be resolved) would there have been any reason why assessment of all the first respondent’s costs could not, at the time of the “amendment” of its application, have been sought in a fresh application without any extension of time being necessary. Nor (making the same assumptions) does there appear to be any substantial likelihood that, were the first respondent to make a fresh application now, any necessary extension of time would be refused, given that the Manager (on this hypothesis) had wrongly accepted the amendment.
Thus, depending on the outcome of the s 193 issues, it may be that precisely the same result as obtained by reason of the amendment (i.e., the assessment of all of the invoices in a single costs assessment) still can be achieved, even if there was no power of amendment. The utility of the present proposed appeal is thus dependent on the outcome of the s 193 issues, and the fact that those issues would not be before the Court on the proposed appeal in these proceedings militates strongly against a grant of leave.
It follows from the above matters that, notwithstanding the existence of an issue of some public importance, the order I propose is:
Application for leave to appeal refused with costs.