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[2025] NSWCATOD 148
General information, not legal advice.
NCAT Occupational
2025-10-31
Blake AM
Original judgment source is linked above.
Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of Persons A to F is prohibited.
The history of the proceedings since 1 September 2025
(1) costs submissions dated 17 September 2025 (the HCCC costs submissions);
(2) short form itemised estimate of costs (the HCCC costs estimate).
(1) costs submissions dated 21 September 2025 (the Solari costs submissions);
(2) documents issued by the Australian Taxation Office in respect of Mr Solari (the ATO records):
(a) Notice of assessment for the year ended 30 June 2023;
(b) Notice of assessment for the year ended 30 June 2024;
(c) 2024-2025 tax return;
(3) HCCC website screenshot.
(1) whether a hearing of the HCCC costs application and the Solari costs application should be dispensed with;
(2) what should be the specific terms of the costs order.
Whether a hearing of the HCCC costs application and the Solari costs application should be dispensed with
What should be the specific terms of the costs order
"[30] In Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 (Harrison v Schipp) at [21] Giles JA described the power to make a gross sum costs order instead of ordering assessed costs, conferred at that time by Pt 52A r 6(2)(c) of the Supreme Court Rules 1970 (NSW), as being unconfined and apt to be exercised whenever the circumstances warrant its exercise. The same approach applies to s 98(4) of the Civil Procedure Act: Hamod v State of New South Wales [2011] NSWCA 375 (Hamod) at [813].
[31] One of the circumstances that has been recognised as potentially warranting the making of a gross sum costs order is where the assessment of costs would be protracted and expensive, and in particular if it appears that the party obliged to pay the costs would not be able to meet a liability to pay the order likely to result from the assessment: Harrison v Schipp at [21]. That was the situation in Harrison v Schipp, where at [30] Giles JA found that Mrs Schipp "should not have to spend a lot more money which she will not recover" in order to obtain the costs payable to her.
[32] Even where the element of impecuniosity is not present, the length and/or complexity of the underlying proceedings and the associated likelihood of a lengthy and complex assessment are material considerations that can favour a gross sum costs order. A contested costs assessment in a matter with these characteristics is likely to involve expense, delay and aggravation of the kind that it is desirable to avoid by making a gross sum costs order: Hamod at [817]. Where there is a lack of proportionality between the complexity and cost of the assessment process and the amount at stake, that is also a factor favouring the making of a gross sum order: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 (Zepinic v Chateau Constructions) at [28], [31]. A related circumstance warranting such an order is where the total costs of litigation will become even more disproportionate if the costs are referred for assessment: Bechara (t/as Bechara and Company) v Bates [2016] NSWCA 294 (Bechara v Bates) at [18].
[33] In Hamod at [816] the Court held that in determining whether the sum sought is appropriate and meets these standards, factors that merit particular consideration include the relative responsibility of the parties for the costs incurred, the degree of any disproportion between the issue litigated and the costs claimed, the complexity of proceedings in relation to their costs and the capacity of the unsuccessful party to satisfy any costs liability.
[34] A court entertaining an application for a gross sum costs order is not required to undertake a detailed examination of the kind that would be appropriate to a taxation or formal costs assessment: Hamod at [819], [823]. To require something akin to a formal costs assessment would defeat the purpose of the gross sum costs order: Bechara v Bates at [14].
[35] A corollary of that principle is that a broad brush approach is necessarily required: Bechara v Bates at [14]; Zepinic v Chateau Constructions at [31]. In Harrison v Schipp at [22] Giles JA referred with approval to the proposition that a gross sum "can only be fixed broadly having regard to the information before the Court" (quoting Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 (Beach Petroleum) at 124) and that the rule contemplates a court adopting a "much broader brush than would be applied on taxation": Hadid v Lenfest Communications Inc [2000] FCA 628 at [35].
[36] At the same time, as Giles JA emphasised in the same passage in Harrison v Schipp at [22], the approach taken to estimating costs must be "logical, fair and reasonable" and the power should be exercised "only when the Court considers that it can do so fairly between the parties, and that includes sufficient confidence in arriving at an appropriate sum on the materials available": citing Beach Petroleum at 123 and Wentworth v Wentworth (Court of Appeal, 21 February 1996, unreported). The need for the Court to have confidence in arriving at an appropriate sum was emphasised in Colquhoun v District Court of New South Wales (No 2) [2015] NSWCA 54 at [6], where the deficiencies in the material in that regard were decisive.
[37] In Baychek v Baychek [2010] NSWSC 987 at [11] Ball J referred to the principle that the Court is entitled to take a broad brush approach provided that the approach is logical, fair and reasonable, and observed that it is implicit in this that the gross sum "bear a reasonable relationship to the actual costs of the party making the application, and to the costs that that party might reasonably be expected to recover on assessment. That means, among other things, that there must be a reasonable evidentiary basis for the order the court makes". To similar effect, in Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2011] NSWSC 11, Barrett J at [21] held that a decision as to what is a sufficiently reliable calculation or estimate of an appropriate costs sum "will depend to a large extent on reaching some kind of view of what the outcome on assessment might be".
[38] As a matter of practice, courts typically apply a discount in assessing costs on a gross sum basis: Hamod at [814]. Indeed, in Zepinic v Chateau Constructions at [38] the Court described this as the invariable practice of the courts when calculating a gross sum costs order. That may involve "an impressionistic discount of the costs actually incurred or estimated, in order to take into account the contingencies that would be relevant in any formal costs assessment": Hamod at [820]. Such an approach tends to minimise the risk of a gross sum costs order creating unfairness by allowing for the recovery of costs in excess of the amount that would in fact have been recovered if the matter had proceeded to costs assessment."
(1) had regard to the Costs Assessment Rules Committee Guidelines dated 24 October 2023 (Costs Guidelines) in assessing counsel's fees and professional costs for paralegals, and at ]92] relevantly said:
"... the Guidelines are not binding, but there is merit in treating them as a general rule, departure from which requires identifying some good reason. ..."
(2) reduced the fees claimed for disbursements for counsel on the basis that the claimed fees were not fair and reasonable: [72]-[98];
(3) applied a 15% discount to the amount allowed for disbursements: [97]-[104];
(4) reduced the fees claimed for professional costs for paralegals on the basis that the claimed fees were not fair and reasonable: [105]-[119];
(5) applied a 15% discount to the amount allowed for professional costs: [119].
(1) time incurred by legal service providers performing professional work should be allowed within the specified ranges: Senior associate (5 years plus) (hourly) - $360 - $600; Paralegals (hourly) - $135 - $300: [6];
(2) office overhead costs such as photocopying, printing, document production, scanning, electronic lodgement, telephone, emails and faxes will generally be covered by the hourly rates of the lawyers. Such costs should generally not be allowed either as a professional cost or as a disbursement, when undertaken in house by the lawyer or law practice: [7];
(3) research time may be allowed, only to the extent that such work is reasonable for the prudent preparation and conduct of the matter: [9].
(1) Solicitor: $315.40 per hour with a daily maximum of $3,154 plus GST from 1 August 2024 to 31 July 2025;
(2) Solicitor: $326.44 per hour with a daily maximum of $3,264 plus GST from 1 August 2025 to 31 July 2026.
"The costs of a party allowable as between party and party are not necessarily limited to costs incurred once the writ is issued. The test remains, on a party and party basis, whether the costs are necessary or proper for the attainment of justice. Circumstances may arise where costs meeting this description are incurred prior to the proceedings being formally instituted. ..." (footnote omitted)
(2) as to a solicitor attending counsel in court at [17.16]:
"To determine whether or not a solicitor should be allowed a fee for attending counsel in court for the purposes of giving instructions, the test to be applied is the same as that applied in deciding whether fees for two (or more) counsel should be allowed: would a reasonable and prudent but not over-cautious litigant, in all the circumstances, engage the services of an instructing solicitor, notwithstanding the cost? ..." (footnote omitted)
(1) Ms Panizzutti, Legal Officer, $401.00, 2703 minutes; $18,065.05;
(2) E Maguire, Legal Manager, $494.00, 150 minutes, $1,235.00;
(3) B Butt (who is recorded in the HCCC application as the Acting Director of Proceedings), $616.00, 114 minutes, $1,170.40;
(4) M Rogers, Legal Officer, $401.00; 12 minutes, $80.20;
(5) B Mulqueeney, Paralegal, $192.00, 150 minutes, $480.00;
(6) L Dolva O'Dea, Paralegal, $192.00, 360 minutes, $1,152.00.
(1) costs totalling $10,926.65 before the commencement of the proceedings. Between 23 January 2025 and 17 March 2025, 1193 minutes (10 hours 51 minutes) were spent on analysing the sufficiency evidence and drawing the Complaint in correspondence between Ms Panizzutti, E Maguire and B Butt, and advising and obtaining instructions from the Council and the Health Professional Councils Authority (HPCA), which is an administrative agency of the NSW Ministry of Health and provides administrative, clinical and legal advice and services to the 15 health professional councils of New South Wales with respect to the commencement of the proceedings. Between 27 March 2025 and 8 April 2025, 342 minutes (5 hours 43 minutes) were spent on Ms Panizzutti preparing five versions of the HCCC application and the review of the first four by E Maguire;
(2) costs totalling $18,279.55 for items of work taking 2,727 minutes (45 hours 27 minutes) were undertaken between 1 August 2024 and 31 July 2025. Of this work 2,577 minutes (42 hours 55 minutes) were undertaken by lawyers and 150 minutes (2 hours 30 minutes) were undertaken by a paralegal. Some of these costs related to correspondence with the Council and HPCA, and relating to internal clerical support. Further, the amount of $1,152.00 is claimed for professional costs for L Dolva O'Dea being the total of:
(a) $96.00 (30 minutes x $192.00) for attending a conference with Ms Panizzutti to discuss preparation on 31 July 2025;
(b) $249.60 (78 minutes x $192.00) for conducting preparations on 1 August 2025;
(c) $518.40 (162 minutes x $192.00) for instructing Ms Panizzutti at the hearing on 4 August 2025;
(d) $288.00 (90 minutes x $192.00) for conducting legal research on 11 September 2025;
(3) costs totalling $3,903.10 for items of work taking 762 minutes (12 hours 42 minutes) were undertaken since 1 August 2025 . Of this work 402 minutes (6 hours 42 minutes) were undertaken by lawyers and 360 minutes (6 hours) were undertaken by a paralegal.
(1) it has referred to 203 Castlereagh Street at [45] where the Appeal Panel relevantly said:
"... Tribunal Members should not generally be encouraged to carry out the work of costs assessors by making fixed sum costs orders. The circumstances most likely to arise in the Tribunal where it might be appropriate for the Tribunal itself to assess costs will usually be where the costs are very modest and the assessment is simple. This might be the case, for example, where the parties are self-represented and not entitled to recover work done in preparing their case, and the only recoverable costs are the filing fee and other small, non-contentious out of pocket expenses, see generally: Gino Dal Pont, Law of Costs (3rd ed, 2013) at 171-174."
(2) its costs, while reasonable, cannot be described as "very modest", particularly in the context of Mr Solari stating that he has no capacity to pay any costs order;
(3) it has referred to Health Care Complaints Commission v Le (No 2) [2021] NSWCATOD 122 (Le (No 2)) where the Tribunal found that the inability of a respondent to satisfy a costs order does not warrant the making of an order in fixed sum. In that case the Tribunal refused to order costs in a fixed sum, and instead ordered costs as agreed or assessed, where the circumstances of the respondent, who had been unemployed for several years and was burdened by significant debt, are analogous to those alleged by Mr Solari;
(4) the Tribunal may exercise its discretion to make a gross sum costs order in circumstances where it is necessary to resolve an intractable dispute between the parties as to the appropriate costs, or where the process of agreeing or assessing costs may be expected to be a protracted and costly process. Beyond Mr Solari's contention that he cannot afford to meet a costs order, there is no other evidence that the parties will be unable to resolve the issue, such that the intervention of the Tribunal is warranted;
(5) while the 'broad brush' approach to be taken by the Tribunal in assessing costs may involve the application of some discount to the estimate submitted, the Tribunal must be mindful that it does not apply an arbitrary 'fail safe' discount which causes unfair prejudice, citing Hamod v State of New South Wales [2011] NSWCA 375;
(6) in the event the Tribunal determines to make a gross sum order, any discount should be limited to 10%. Accordingly, the appropriate sum would be $20,326.55.
(1) he cites eight examples in the HCCC costs estimate in which the costs appear to be excessive by reason of exceeding the NSWAG rates in which the rate for a solicitor is $315.40 per hour. Further, there should be no charge for paralegals;
(2) it is not clear how much if any discount would be afforded through the Commission's hardship policy, since the policy suggests that deferral of payments and payment arrangements are the main offerings with the option of a waiver only being granted in exceptional circumstances;
(3) his case is distinguishable from in Le (No 2) where the respondent was only restricted from reapplying for registration for 18 months of the order and is much younger than him, meaning that the respondent's opportunity to and likelihood of re-entering the workforce is much higher. In contrast, his advanced age, time non-practicing as a radiographer, lack of skills outside of radiography, sexual touching criminal record and inability to obtain a working with children check, his prospects of employment in the future are extremely limited and unlikely. He has no income as disclosed in the ATO records, no savings, no investments and his family home is mortgaged. He is unable to claim Centrelink because his wife earns a wage. His only other asset is a 2009 Subaru Impreza hatchback valued at approximately $3000;
(4) the total barrister hours billed for his criminal proceedings were 43.2 hours with five court appearances, suggesting excessive billing of hours by the Commission. Further, the Commission has also used rates in excess of the NSWAG rates. An appropriate amount would be less than $10,000.00 given most of the legal work used by the Commission was done for the criminal proceedings. He requests a 100% discount to be applied, given that he has no legal means of paying the costs.
(1) it remains willing to engage in costs negotiations with Mr Solari, should the Tribunal make an order awarding costs as agreed or assessed. Such negotiations would include consideration of any application made by Mr Solari pursuant to its hardship policy;
(2) Mr Solari's submission that the costs claimed by the Commission are excessive is misconceived and without merit;
(3) the NSWAG rates apply to private firms engaged to act on behalf of government agencies, and have no relevance to the costing of legal work performed by government solicitors such as those employed by the Commission;
(4) Mr Solari seeks a gross sum costs order with a discount of 100% applied to the costs claimed by the Commission. Such an order would in effect be an order that the parties bear their own costs. In the absence of disentitling conduct, the making of such an order would be so unreasonable as to constitute an error at law.
(1) the relevant principles are authoritatively expounded in Manariti at [30]-[38]. We do not accept that the example in the last sentence of 203 Castlereagh Street at [45] is an exhaustive statement of the circumstances in which a gross sum costs order may be made;
(2) we do not accept that the exercise of the discretion of the Tribunal is not making a gross sum costs order in Le (No 2) provides any assistance in the exercise of the discretion in these proceedings. The personal circumstances of the respondent in Le (No 2) differ from those of Mr Solari in the respects outlined by him in the Solari costs submissions;
(3) in view of the challenge by Mr Solari to eight examples in the HCCC costs estimate in which the costs appear to be excessive, it is likely that the assessment of costs would be protracted and expensive, which was recognised as a relevant circumstance in Manariti at [31];
(4) in view of the information provided by Mr Solari as to his financial position which in part is supported by the ATO records, it is likely that he would not be able to meet a liability to pay the order likely to result from an assessment, which was recognised as a relevant circumstance in Manariti at [31];
(5) it will avoid the expense, delay and aggravation of a contested costs assessment, which was recognised as a desirable outcome in Manariti at [32];
(6) the possible application of the Commission's hardship policy is a neutral factor as it can apply equally to costs determined by an assessment and costs specified by a gross sum costs order;
(7) the HCCC costs estimate has sufficient detail to provide a reasonable evidentiary basis for us to have sufficient confidence in arriving at an appropriate sum that is logical, fair and reasonable, and bears a reasonable relationship to the actual costs of the Commission, and to the costs that the Commission might reasonably be expected to recover on assessment, which was recognised as the appropriate approach in Manariti at [36]-[37].
(1) we have treated the NSWAG rates as a general rule in assessing the quantum of the professional costs for lawyers. We do not accept that the fact that the Commission uses employed lawyers rather than using external lawyers should mean that rates greater than allowed under the NSWAG rates and find that the rates for professional costs for lawyers in the HCCC costs estimate are not fair and reasonable. Accordingly, using the NSWAG rates, we have reduced the amount of $20,550.65 claimed for professional costs for lawyers to $16,537.85 being the total of:
(a) $14,350.70 (45.5 hours x $315.40) for work between 1 August 2024 and 31 July 2025. Of this amount $8,752.35 (27.75 hours x $315.40) is attributable to pre-proceedings costs and $5,598.35 (17.75 hours x $315.40) is attributable to proceedings costs;
(b) $2,187.15 (6.7 hours x $326.44) for work since 1 August 2025;
(2) as the NSWAG rates do not have a category for work undertaken by paralegals, we have treated the Costs Guidelines as an appropriate guide in assessing the quantum of the professional costs for paralegals. We accept that the rate of $192.00 per hour for work undertaken by paralegals is fair and reasonable. It follows that we have not altered the amount of $1,632.00 (8.5 hours x $192.00) claimed for professional costs for paralegals;
(3) we have rounded pre-proceedings costs of $8,121.55 to $8,100. Having regard to the principles in Law of Costs at [17.03], we do not accept that many of the items would be allowed on a costs assessment on a party and party basis such as the communications with the Council and the HPCA who are analogous to a client, and the preparation and review of more than one version of the HCCC application. Adopting a broad-brush approach, we have allowed $2,700.00, being one third of the reduced pre-proceedings costs;
(4) we do not consider that the amount of $1,152.00 claimed for professional costs for L Dolva O'Dea as set out above is fair and reasonable. A paralegal is not analogous to a solicitor preparing for a hearing, instructing counsel or conducting legal research. Further, having regard to the principles in Law of Costs at [17.16], we do not accept that Ms Panizzutti required an instructor at the hearing. It follows that we have reduced the amount of $1,632.00 claimed for paralegals by $1,152.00 to $480.00;
(5) we have rounded the reduced amount of $6,229.15 for proceedings professional costs for lawyers to $6,200. Consistent with Salmon (No 2) we have applied a discount of 25% resulting in the amount of $4,650.00 ($6,200.00 x 0.75);
(6) we have rounded the reduced amount of $480.00 for professional costs for paralegals to $400.00. Consistent with Salmon (No 2) we have applied a discount of 25% resulting in the amount of $300.00 ($400.00 x 0.75);
(7) we have rounded the amount of $402.40 for disbursements to $400.00. Consistent with Salmon (No 2) we have applied a discount of 10% resulting in the amount of $360.00 ($400.00 x 0.90);
(8) we reject a discount of 100% as contended for by Mr Solari as being contrary to the rationale for the discount as explained in Manariti at [38].
(1) A hearing of the applications of the applicant and the respondent to vary order (4) made on 1 September 2025 is dispensed with.
(2) Order (4) made on 1 September 2025 is varied by substituting the following order:
The respondent is to pay the costs of the applicant of the proceedings which are fixed in the sum of $8,000.00.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Health Care Complaints Commission
Solari
(2002) 54 NSWLR 738
(1995) 57 FCR 119