The Fourth Delay Period
137Mr Philips contended at the hearing of these Notices of Motion that, if the VL Parties' appeal to the District Court against the determination of the Review Panel were to be upheld, the period of delay in assessing the costs during the period that the District Court appeal was on foot, and during any reconsideration by the Review Panel that the District Court might order, would have been caused by two matters that are the responsibility of the JL Parties. One of them is the failure to produce the costs agreements between the JL Parties and their solicitors. The other is having given to the costs assessor a wrong version of the Costs Orders.
138The District Court appeal was commenced on 3 September 2010. At the time of the hearing of these Notices of Motion the appeal to the District Court was part-heard, with its hearing due to be completed on Monday, 27 June 2011. If the District Court appeal had remained undetermined, I would not have made the order that Mr Philips sought concerning the Fourth Delay Period. That order is one that is contingent on the appeal being upheld. However, the appeal could be upheld in various ways, conferring greater or less degrees of success on the VL Parties. One possible outcome was that a ground of appeal was made out, but the District Court decided that it was not appropriate to remit the matter to the Review Panel. The variety of possible outcomes of the appeal would have provided a sufficient reason why it was not possible, while the District Court appeal remained undetermined, to make a final order that was dependent upon the outcome of the appeal to the District Court.
139While these reasons for judgment were reserved, the District Court proceedings were settled. The settlement resulted in court orders that, in my view, make it possible now to consider the merits of the submissions that were made concerning the Fourth Delay Period.
Provision of Incorrect Costs Orders - Facts
140The proceedings that Palmer J decided arose from the settlement of an action that the JL Parties had begun in the Industrial Relations Commission of New South Wales against the VL Parties. That settlement gave rise to two sets of proceedings in the Industrial Relations Commission, and one set of proceedings in the Federal Court. In circumstances explained in the Costs Judgment at [2]-[4], [8] and [27]-[34] the two IRC proceedings, and the Federal Court proceedings, all came to be transferred to the Supreme Court. They became, respectively, proceedings 6132 of 2005, 6079 of 2005 and 2530 of 2004 in the Supreme Court. At the time of the transfer, the only live application in the IRC proceedings that became 6132 of 2005 was a notice of motion seeking to enforce the terms of settlement.
141In the Costs Judgment, I said, at [91]:
"Through what I assume to be a slip in the Short Minutes of Order which were presented to Palmer J for consideration after he had dealt with the substance of the claim, no provision was made to dispose of the various proceedings between the parties to this litigation which were transferred into this Court. On the assumption that this omission was indeed a slip, I shall make orders which dispose of those proceedings, and deal with the costs incurred in them. If that assumption is mistaken, I will give the parties the opportunity to make any further submissions they might wish concerning those transferred proceedings, before the orders are entered."
142The orders made at the time of delivering the Costs Judgment included:
"2. Subject to Order 1 and any other costs orders previously made, order the defendants to pay the costs of the plaintiffs of these proceedings, and of proceedings 6132 of 2005, 6079 of 2005 and 2530 of 2004.
...
6. All applications not previously decided in proceedings 6132 of 2005, 6079 of 2005 and 2530 of 2004, in the Equity Division of this Court are dismissed.
7. Direct Orders 2, 5 and 6 not be entered for 21 days after the date of delivery of these reasons for judgment.
8. Reserve liberty to either party to apply, at a time arranged with my Associate within 14 days of the date of delivery of these reasons for judgment, to vary Orders 5 and 6, and to vary Order 2 insofar as it makes costs orders concerning proceedings 6132 of 2005, 6079 of 2005 and 2530 of 2004 in the Equity Division of this Court."
143The liberty to apply that had been reserved was exercised. On 28 March 2006 I ordered that:
"Para 2 of those orders be varied so as to delete the reference [to] proceedings 6079 of 2005 from that para."
144On 5 February 2009 the assessor wrote to the JL solicitors requesting a copy of the "formal order entered on 10 March 2006 in this matter following the hearing on costs before his Honour Mr Justice Campbell." The document he received by reply included a listing of 6079 of 2005 in para 2 of the orders.
145The VL solicitors wrote to the assessor on 22 May 2009, enclosing objections to the bill of costs and also saying:
"Order of Palmer J dated 14 March 2005. The purpose of this is to direct your attention to Order 1 which relates to the Notices of Motion filed in May and July 2001 in IRC proceedings 282/1999. Those proceedings were transferred to the Supreme Court as 6079/2005 and were part of Campbell J's order of 10 March 2006 in the Costs Applicants' favour. However, Campbell J's order was 'subject to any other costs orders previously made' and you will note from this enclosure that Palmer J previously ordered that there be no order as to costs in these proceedings. As such, the Costs Respondents seek that this is taken into account during the assessment of any costs relating to proceedings IRC 282/1999 or SC 6079/2005."
146When the assessor issued his Certificate of Determination of costs on 28 July 2009, the accompanying reasons set out the terms of the orders, as I had originally made them on 10 March 2006.
147Mr Philips submitted that the assessor thus proceeded on an incorrect basis, by including in the costs assessed the costs of proceedings concerning which no costs order had ultimately been made. Thus, he submitted that providing the incorrect order to the assessor had caused unnecessary delay in the assessment process, and had led to him making an assessment of costs on a wrong factual basis, extending to an additional set of proceedings. He submitted that if the District Court were to accept provision of the incorrect costs order as a basis for remitting the matter to a Review Panel, the incorrect provision would have caused delay in necessitating the District Court appeal, and the remittal to the Review Panel.
148The orders made following the Costs Judgment, as varied on 28 March 2006, were not entered until 11 June 2009. They were entered at the instigation of the JL Parties. Those orders as entered contained (correctly) no costs order relating to 6079 of 2005. Mr Philips submitted that the attention of the JL Parties must thereby have been drawn to the terms of the orders as ultimately made, yet they did not correct the earlier mistaken information that they had given to the costs assessor about the terms of the order, and permitted the costs assessor to deliver his determination on 28 July 2009 in ignorance of the correct terms of the order. He submitted that this compounds the earlier provision of the wrong costs order.
Provision of Incorrect Costs Orders - Decision
149I am not persuaded that these contentions have been made out.
150The evidence before me does not suggest that the information that the VL solicitors gave to the assessor on 22 May 2009 ([145] above) was incorrect, or challenged. It was clear on the face of Order 2 that I had made on 10 March 2006, that the order for the VL Parties to pay the costs of proceedings 6079 of 2005 was "subject to ... any costs orders previously made." The draft bill of costs that was submitted for assessment contained some items of work relating to IRC proceedings 282/1999, but in relation to that notice of motion the draft bill also included, in bold type, a note saying:
"Note: This Notice of Motion dismissed with no order as to costs in Supreme Court on 14/03/05."
151The draft bill of costs contains some items of work in relation to which a zero amount is claimed. At least some of those items specifically state that they relate to proceedings 282/1999. Some other entries that on their face show they relate to 282/1999 and to another proceeding also state that the claimed cost is one that has been apportioned.
152An explanatory document submitted to the assessor contained a list of various proceedings between the JL Parties and the VL Parties. One entry on the list is:
"1. NoM IRC 282 of 99 Filed 5 July 2001 [later SC 6079 of 2005] Industrial Relations Commission of NSW [Dismissed per Palmer J orders 14 March 2005 - No order as to costs]
153A narrative accompanying the draft bill of costs also stated, in a summary of events at various hearings:
"14/03/05 - hearing before Palmer J. instructions both Senior and Junior Counsel; leave granted to Defendants to discontinue IRC 7189/01 as cross vested to Supreme Court on terms that Defendant not bring any further proceedings with respect to same claims; Notices of Motion filed by Plaintiffs 01/05/01 and by Defendants on 02/07/01 in IRC 282/99 be dismissed with no order as to costs."
154A flow chart that had been submitted to the assessor, showing the interrelationship between the various proceedings, also recorded the events of 14 March 2005, including: "Two IRC 282/99 NoM are dismissed with no order as to costs."
155Thus, the assessor was told on numerous occasions that no costs were payable concerning IRC 282/1999 or SC 6079/2005. I am not persuaded that the assessor has included in the costs he allowed, any costs attributable to IRC 282/1999 or to SC 6079/2005, or that any delay resulted from provision to the assessor of the wrong costs order. Thus, the factual foundation for this contention concerning the Fourth Delay Period is not made out. In any event, as will appear, the orders and notes in the District Court appeal provide no basis for concluding that the provision of the incorrect costs order was a reason for the remittal of the assessment to the Review Panel.
Claiming Privilege for Costs Agreements - Facts
156The other basis upon which Mr Philips submits that conduct of the JL Parties has unreasonably delayed the assessment of costs during the Fourth Delay Period, arises from the JL Parties having claimed legal professional privilege concerning the costs agreements between the JL Parties and their solicitors.
157Before the assessment began the VL Parties wrote to the JL Parties on 2 October 2008 seeking copies of the costs agreements under which the JL Parties had paid the costs whose reimbursement they sought. By letter dated 21 October 2008 the JL Parties declined to produce the costs agreements, and claimed privilege concerning them.
158The JL Parties maintained their claim for privilege before the costs assessor. When that claim was questioned, they provided the costs assessor with copies of the costs agreement, but did not provide any copy to the VL Parties.
159After the VL solicitors had notified the assessor of a global objection that they took to the draft bills of costs, based on the indemnity principle and their contention that the family trust had paid the costs, the VL solicitors requested the assessor to make a preliminary determination of the correctness of that objection. The VL Parties pointed out that, if that submission was successful, the costs and trouble of preparing detailed objections to the bill of costs could be avoided.
160On 11 February 2009 the assessor made a preliminary determination that the VL Parties' global objection did not succeed. His letter rejecting the objection said:
"The liability to pay costs under a Court Order arises from the order of the Court in favour of the client who seeks to have the costs assessed under the Legal Practitioners Act 2004 . The fact that the fees rendered by the legal practitioner to the client, are in fact paid by a third party does not breach the indemnity principle."
He reserved the right of the parties to make further submissions on the topic.
161On 11 May 2009 the VL Parties made further submissions to the assessor, contending that CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725 at [9], [38] had held that costs respondents were entitled to be provided with copies of the costs agreements to allow for appropriate submissions to be made in support of objections.
CSR v Eddy
162CSR v Eddy concerned an assessment of costs that had been made under the Legal Profession Act 1987 . A successful plaintiff in personal injuries litigation had obtained an order for costs, and obtained an assessment of costs. The assessor had been given a copy of the costs agreement, but did not provide it to the costs respondent. The solicitor for the successful plaintiff had never forwarded a memorandum of costs and disbursements to his client. The cost respondent contended that this had the effect that the plaintiff had "no unconditional and immediately enforceable liability in a fixed amount, as between the plaintiff and his solicitors, with respect to his costs" : [34]. The costs respondent contended that the indemnity principle was thereby attracted. Neither the assessor, nor a review panel, upheld that contention.
163An appeal was brought to the Supreme Court (to which an appeal then lay under the then equivalent of s 384 LP Act ) on the basis that the costs respondent was "dissatisfied with a decision of the costs assessor as to a matter of law" . The matter of law that the costs respondent contended arose, was that it had been denied procedural fairness because it had not been provided with the costs agreements. The decision in the Court of Appeal, on an appeal brought by leave from the decision of the Supreme Court, concerned the correctness of that contention.
164There was no issue about whether the costs assessor in CSR v Eddy had power to deal with the question of whether the indemnity principle was breached: [37]. Similarly, as I have said, in the present case, no issue is raised about the power of the assessor or the Review Panel to decide whether the indemnity principle has been breached.
165In CSR v Eddy at [38], Basten JA held:
"Once it has been accepted that the costs assessor had power to deal with the objection, which was based, at least in part, on the content of the costs agreements, it would seem that the appellants were entitled to be provided with copies of those agreements, so that they could make appropriate submissions in support of their objection. That they were unable to do, but that alone is insufficient to establish procedural unfairness."
166His Honour went on to hold that procedural unfairness would arise only if failure to provide the costs agreements caused the costs respondent's practical injustice. Ultimately, the court held that there had been no practical injustice, because "the costs agreement did not in terms provide any basis for asserting a breach of the indemnity principle." [72]. In the course of so doing, the court recognised (at [3] per Hodgson JA; [47] per Basten JA, McColl JA agreeing) that one way in which a costs agreement could be relevant on a party/party costs assessment was that if the agreement capped the amount of costs recoverable, no more than the capped amount could be recovered from the other party.
Returning to Facts Re Claiming Privilege for Costs Agreements
167On 14 May 2009 the assessor rejected the further submissions that the VL solicitors had made in their letter of 11 May 2009. He said, obviously basing his reasoning on that in CSR v Eddy :
"I have called for the production of costs agreements and accounts sent on the solicitor/client basis. At this point of time, the Applicant does not have to provide the Respondent with copies of these documents. I simply have called for these documents so that I can establish the indemnity principle has not been breached. It would be necessary for the Costs Respondent to demonstrate to me that an opportunity has been lost in a practical sense to make some submissions material to the application for assessment, because it did not have access to these documents.
168On 15 May 2009 the VL solicitors requested that the assessor reconsider his decision about not providing the costs agreements. That submission referred to Dyktynski v BHP Titanium Minerals Pty Ltd [2004] NSWCA 154; (2004) 60 NSWLR 203. In Dyktynski , the Court of Appeal had held that the indemnity principle did not prevent costs being payable under an order for party/party costs when (a) a litigant permitted an appeal to be brought in his name, but actually for the benefit of his solicitor, (b) the client had signed a costs agreement with the solicitor "as a formality under the Legal Profession Act" , and (c) the client had also received a very clear assurance from the solicitor that regardless of the outcome the client would not be liable to pay the costs of either the solicitor, or the other side. The court held that, when the client ultimately received a costs order, the solicitor could take its benefit, because the solicitor was the real party bringing the action, while the client was merely a nominal party.
169At [7]-[8] in Dyktynski , Mason P (Davies AJA agreeing) had set out the following principles:
"... If 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 order ( Gundry v Sainsbury [1910] 1 KB 645, McCullum v Ifield [1969] 2 NSWR 329 at 330). Alternatively, if the solicitor-client agreement caps the amount of costs recoverable, this enures to the benefit of the client's adversary ( Tarry v Pryce (No 2) (1987) 88 FLR 270).
The situation is different if the client has the benefit of an indemnity from a third party, so long as the client remains under a legal liability to the solicitor ( Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495, Backhouse v Judd [1925] SASR 395, Angor Pty Ltd v Ilich Motor Co Pty Ltd (1992) 37 FCR 65, Wilson v Richmond River Shire Council [2000] NSWSC 71)."
170The assessor in the present case evidently did not accede to the request for reconsideration.
171It was not until 22 May 2009 that the VL solicitors filed their objections to the draft bill of costs. On 16 June 2009 the JL solicitors sent the assessor the JL Parties' response to the notice of objections. Quite promptly thereafter, bearing in mind the size of the bill of costs, on 28 July 2009 the assessor issued his certificate of determination of costs.
172The costs assessor's refusal to allow access to the costs agreements was one of the matters concerning which the VL Parties brought their appeal to the Review Panel. The Review Panel held, in its Statement of Reasons, that the VL Parties had not suffered any procedural unfairness as a consequence of the costs assessor's refusal to provide access to the costs agreements.
173In the District Court appeal the VL Parties issued a Notice to Produce seeking copies of the costs agreements. In November 2010 the JL Parties produced the costs agreements without making any claim for privilege.
174Now, the costs agreements have been not only produced, but tendered in evidence in the District Court appeal. The VL Parties submit that the late production is a concession that they should have been produced earlier.
175I would not be prepared to draw that conclusion from the mere fact of late production of the costs agreements. While the taking of a stance at one particular time in litigation, and later abandoning that stance, can sometimes be a concession that the stance should not have been taken at all, that is not necessarily so: cf Huntsman Chemical Company Australia Ltd v International Pools Australia Ltd (1995) 36 NSWLR 242, as explained in the Costs Judgment at [38].
176However, the costs agreements were also tendered at the hearing before me of the Notices of Motion now in issue. I was asked to decide whether the costs agreements were privileged or (if this be the relevant test for the purpose of deciding whether there was unreasonable delay) whether it had been seriously arguable that they were privileged. Those matters can only be decided after reaching a view about the appropriate legal standard on which the question of privilege should be decided.
Legal Basis for Deciding Privilege Claim
177The Evidence Act 1995 applies to "all proceedings in a NSW court" , subject to some exceptions not presently relevant: s 4. The Dictionary to the Evidence Act provides:
" NSW court means:
(a) the Supreme Court, or
(b) any other court created by Parliament,
and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence."
178It follows from the provisions of the LP Act that I have earlier set out at [99]-[109], that when a costs assessment is being made by an assessor, and when a review of a costs assessment is being conducted by a review panel, those proceedings are not taking place in a "NSW court" . Thus, any question of the application of legal professional privilege in the proceedings before the costs assessor, or before the review panel must be decided in accordance with the common law, not in accordance with the Evidence Act . That conclusion accords with the conclusion that Basten JA (McColl JA agreeing, and Hodgson JA agreeing substantially) reached in CSR Ltd v Eddy at [21] concerning the basis upon which privilege claims were to be decided when that question arose before an assessor or a review panel assessing costs under the Legal Profession Act 1987 .
179In contrast, once the appeal was taken to the District Court against the review panel's determination, the proceedings in the District Court were "in a NSW court" , within the meaning of the Evidence Act , and thus any questions of privilege would be decided in the District Court in accordance with the Evidence Act .
Decision Concerning Privilege
180On their face the costs agreements are unexceptional commercial agreements between a solicitor and client. They give no legal advice. They contain no record of a confidential communication between the client and another person or between a lawyer acting for the client and another person, that was made for the dominant purpose of the client being provided with legal services. If tendered in evidence, they would not disclose the contents of any confidential document that was prepared for the dominant purpose of the client being provided with professional legal services. They are part of the contract pursuant to which the various solicitors were retained. They are not advice given or tasks performed in performance of the professional relationship between solicitor and client. As Basten JA said in CSR Ltd v Eddy at [62]:
"The existence of a retainer between client and lawyer is not the subject of the protection [of legal professional privilege], but a precondition to its operation. Accordingly, and generally speaking, the retainer will not be privileged: see Cook v Pasmenco Pty Ltd (No 2) (2000) 107 FCR 44 at [47] (Lindgren J)."
See also per Hodgson JA at [7], and J D Heydon, Cross on Evidence (2010), 8 th Australian edition at [25225].
181Where the costs agreements were not privileged to start with, no question arises of whether the privilege has been waived. Waiver would have occurred if the costs agreements had been privileged and making them available to the costs assessor in connection with a dispute about the quantum of costs was conduct inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ( Mann v Carnell (1999) 201 CLR 1 at [29]; Thomason v Campbelltown Municipal Council (1939) 39 SR (NSW) 347; cf Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar, the Diocesan Bishop of the Macedonian Orthodox Church of Australia and New Zealand [2006] NSWCA 160; (2006) 66 NSWLR 112 at [53]).
182Further, if this be the relevant test, the actual contents of the costs agreements are such that it was not seriously arguable that privilege attached to them.
The Settlement of the District Court Proceedings
183On 27 June 2011 the following orders were made by consent in the District Court proceedings:
"1. Appeal allowed.
2. Two Certificates of Determination of the Costs Review Panel in Assessment 2008/17766, both dated 23 June 2010, are set aside.
3. Order pursuant to s 384(2)(b) of the Legal Profession Act 2004 that the Application in costs assessment proceedings 17766/08 filed on 5 November 2008 be remitted to the Review Panel for re-determination.
4. The JL Parties to pay the VL Parties' costs of the proceedings agreed in the sum of $35,000."
184The District Court judge hearing those proceedings also made the following direction and notation:
"5. I direct that the parties pursue the above redetermination expeditiously and comply expeditiously with any directions of the manager, costs assessment and the review panel.
6. I note that the costs agreements and tax invoices of the defendant should be before the review panel and available to the plaintiff to make submissions."
185After the judge had been told of the terms of the orders that the parties had agreed, he said:
"I think I should say that this is a sensible settlement because without canvassing the other issues it seemed to me likely, although I hadn't made up my mind that I would order along the lines of orders one, two and three, because I had formed the view that the decision of the review panel in respect of not providing a copy of the costs agreement to the plaintiff was in error, for reasons that you have no doubt explained to your respective clients. That was not a certain result, it would be wrong for me to say that it was because I hadn't heard the parties to conclusion in their submissions. But it was quite a likely result and in those circumstances I think I would have taken the view that it was sufficient ground to set aside the decision of the review panel as you've done by these orders, and that it was unnecessary for this court to examine all of the other reasons why that result was claimed. In other words this is a settlement which in my view very closely mirrors a most likely result ..."
Effect of Determination of the Proceedings in the District Court
186I accept the submission of the JL Parties that reliance should not be placed on the remarks that the judge made after making the orders, direction and notation. As the judge said, they were preliminary views, formed without having heard all the submissions that might have been made if the matter had been argued to completion.
187While it is a fair inference, from note number 6, that either the parties agreed, or the judge was of the view, that the costs agreements should be available to the VL Parties, the note was of no practical utility. By the time it was made, the VL Parties already had a copy of the costs agreements, and by virtue of those agreements having been tendered in court there would be no inhibition on the VL Parties using them in a different set of proceedings to that in which they had been obtained: cf Hearne v Street [2008] HCA 36; (2008) 235 CLR 125.
188The evidence does not persuade me that the failure to provide the costs agreements to the VL Parties was the reason for the court's orders. The evidence before me includes what I take to be the latest version of the amended summons commencing the appeal in the District Court. The appeal grounds identified in it included matters arising from the failure to provide the costs agreements to the VL Parties, and the consequent inability of the VL Parties to make submissions concerning the costs agreements. However, it also contended that the Review Panel had erred in confirming the findings of the costs assessor based on the order of 10 March 2006 rather than the order as varied on 28 March 2006, and also made some more general complaints, namely:
"4 The Panel erred, with respect to a matter of law, in:
...
c. Failing to give any, or any adequate, statement of reasons for its determination, contrary to s 380(2) of the Legal Profession Act 2004 (" the Act ") and cl 134(1)(d) of the Legal Profession Regulation 2005 .
...
7 The Panel erred, with respect to a matter of law, in holding at [7.5] of the Reasons that s 361 of the Act was irrelevant to the Application.
8 Having set aside the determination of the Costs Assessor, the Panel erred, with respect to a matter of law, in failing, contrary to s 375(1)(b) and (2) of the Act, to:
(a) determine for itself the Application in the manner that a Costs Assessor would be required to determine an application for costs assessment under Part 3.2 of the Act; and
(b) substitute the Costs Assessor's determination with its determination.
9 The Panel erred, with respect to a matter of law, in failing to apply or have regard to s 369(1)(c) and (3)(c) of the Act, which apply to the Application as the quantum of costs was reduced by more than 15%, or to substitute its own determination of the extent to which the Costs Applicant should share the costs of assessment."
189To give content to ground 7, s 361 LP Act appears in Subdivision 2 of Division 11 of the LP Act . Subdivision 2 contains general matters relating to all types of assessment, whether party/party or of other types. Section 361 provides:
"(1) A costs assessor must assess the amount of any disputed costs that are subject to a costs agreement by reference to the provisions of the costs agreement if:
(a) a relevant provision of the costs agreement specifies the amount, or a rate or other means for calculating the amount, of the costs, and
(b) the agreement has not been set aside under section 328 (Setting aside costs agreements),
unless the assessor is satisfied:
(c) that the agreement does not comply in a material respect with any applicable disclosure requirements of Division 3 (Costs disclosure), or
(d) that Division 5 (Costs agreements) precludes the law practice concerned from recovering the amount of the costs, or
(e) that the parties otherwise agree.
(2) The costs assessor is not required to initiate an examination of the matters referred to in subsection (1)(c) and (d)."
190In para 7.5 of its reasons, the Review Panel had said:
" Non Compliance with Section 361 LPA
The Costs Assessor's Reasons make no reference to the determination having been conducted by reference to any provision or Costs Agreement in breach of Section 361.
The section which founds this ground for review applies to the conduct of assessments as between a law practice and a client and has no application to a party/party assessment.
The Review Panel does not therefore consider that a Section 361 Statement is required where Section 361 is irrelevant i.e. in this Party/Party Assessment. There is no indication that the Assessment proceeded on any other basis than that set out in Section 364. The Ground is not made out."
191Thus, ground 7 raises a legal question concerning the interrelationship of ss 361 and 365. That legal question is separate to whether failure to provide the costs agreements resulted in procedural unfairness.
192Grounds 8 and 9 in the District Court appeal also raised matters that were separate to that question of procedural unfairness alleged to arise from failure to provide the costs agreements to the VL Parties.
193There was no argument before me concerning whether the VL Parties were caused practical injustice by the denial of the opportunity to make submissions concerning the costs agreements, even if (as I have found) the JL Parties had no real basis for claiming privilege for the costs agreements. Without seeking to express any view concerning it, there is scope for argument about whether wrongly making the costs agreements unavailable has caused any practical injustice. There are three relevant costs agreements, one with each of three different firms of solicitors who have worked on the matter. The client in two of those agreements is Joseph Lahoud, while the client in the third agreement is both Joseph Lahoud and Joseph Lahoud & Associates Pty Ltd. It would be arguable that those clients had a contractual obligation to pay the solicitors' costs, and that a principle similar to that recognised by Mason P at [8] in Dyktynski (set out at [169] above) had the consequence that the indemnity principle would not prevent the JL Parties (namely, Joseph Lahoud, and Joseph Lahoud & Associates Pty Ltd) from receiving indemnity pursuant to the Costs Order, even if the contractual liability that they had to their solicitors had been met by some other entity. Further, none of the costs agreements imposed any cap on the amount of costs the solicitor might receive.
194Another matter is relevant to whether the erroneous claim of privilege will be the cause of delay while the Review Panel reconsiders the matter. It is that the orders of the District Court place no limitation on the issues that might be argued when the matter is remitted to the Review Panel. It is not as though the only matter that the Review Panel will be free to consider is whether failure to provide the costs agreements caused practical injustice.
195For these reasons, it could not be said that it is only the wrongful claiming of privilege for the costs agreements that has caused the District Court appeal to be brought, or caused the settlement of the District Court appeal, or will cause delay by reason of the remittal to the Review Panel.
The Alternative Basis
196The VL Parties submit that, even if it has not been shown that any or all of the specific periods of time that they identify in their submissions are caused by delay on the part of the JL Parties, there has still been a general dragging of the feet on the part of the JL Parties that has contributed to the overall delay in obtaining assessment of the costs. The VL Parties submit that in consequence some reduction should be made in the period during which interest on costs runs.
197When questioned at the hearing about whether the type of cause that was relevant, for deciding whether there had been conduct that was the cause of delay in assessment of the costs was a sole cause or a materially contributing matter, Mr Neil said: "I wouldn't go so high as to say sole cause but I wouldn't go below materially contributing" . That amounts in substance to a concession that a materially contributing cause can be sufficient. I propose to assume, without deciding, the correctness of that concession.
198For the reasons I have given earlier, I am not persuaded that the events relied upon to make up the First Delay Period and the Second Delay Period made any material contribution to delay in the assessment of costs.
199The manner in which the JL Parties dealt with the question of whether they were entitled to an input credit for GST was one of the circumstances that together caused the delay involved in the Third Delay Period. However, its significance needs to be assessed bearing in mind the general principles concerning whether an order ceasing the running of interest on costs should be made ([59] above). When there were so many other circumstances involved in the delay during the Third Delay Period, I am not persuaded that the role played by the JL Parties concerning their entitlement to an input credit for GST made a sufficient contribution to the Third Delay Period to make it just that the JL Parties should not receive interest, concerning that period or any part of it, on the costs that they paid so long ago.
200Similarly, concerning the Fourth Delay Period, the conduct of the JL Parties in making an unjustified claim of privilege was one of the circumstances that together resulted (and, insofar as the remittal to the Review Panel has yet to be completed, will result) in delay in the assessment of costs. However, there are other circumstances involved in that delay, and I reach the same conclusion as I reached concerning the Third Delay Period.