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The earlier motion sought review of Griffiths AJA’s decision of 28 February 2025. As summarised in this judgment, that decision required WCX to provide security of $70,022.50 for an appeal, stayed a $134,607.95 gross sum costs order pending determination of the appeal, and ordered WCX to pay costs of the motions before Griffiths AJA on an indemnity basis, fixed at $69,336.33 plus GST ([1]). Those details provide context; the present judgment does not reconsider them.

The Mitchells claimed $27,824.50 inclusive of GST. The claim comprised $14,410 plus GST in solicitors’ professional fees, $6,000 plus GST for senior counsel, $2,210 plus GST for junior counsel, and an estimated $2,675 plus GST for work on the costs application ([3]). Their solicitor, Trevor Withane, supported the claim with an affidavit and a schedule itemising the solicitors’ work, the person who did it, that person’s charge-out rate, time in six-minute units, and the amount claimed for each item ([4]).

WCX objected to items on several grounds: alleged duplication, internal administrative work rather than legal work, work said to relate to counsel availability, work on a court book that was not used, and work said to be unrelated to the motion ([5]). The Mitchells disputed those objections ([6]). The Court did not decide each objection item by item in the reasons. Instead, it explained the approach to fixing a gross sum and made an overall adjustment to solicitors’ fees.

Why the court decided this way

The Court’s starting point was that fixing a gross sum is not the same as conducting a formal assessment. Citing Hamod v State of NSW [2011] NSWCA 375 at [819], the Court said it was considering what costs ought reasonably to be allowed on a gross sum basis, taking account of the fact that the costs had been awarded on an indemnity basis ([7]).

The indemnity basis did not mean that the whole amount claimed had to be allowed. The Court explained that it is normally appropriate to discount actual costs when fixing a gross sum, even where the costs order is on an indemnity basis. The reasons are practical and evaluative. First, not all costs incurred are necessarily recoverable on an assessment, even on an indemnity basis. Second, setting a gross sum can over-compensate the party receiving costs compared with an assessment. At the same time, it avoids the costs and inconvenience of an assessment. The Court cited Beach Petroleum NL v Johnson (No 2), Idoport Pty Limited v NAB, Idoport Pty Limited v Donald Robert Argus at [13], and Zepinic v Chateau Constructions (Aust) Ltd (No 2) at [38] in support of that explanation ([7]).

The detailed account supplied by the Mitchells mattered because it gave the Court a rational basis from which to work. The Court described it as a reasonable starting point, following Hamod at [820] ([8]). The approach therefore was neither to accept the total claim automatically nor to undertake a full assessment. It was to consider the material available and set a sum that the Court considered reasonable.

The Court treated the counsel and solicitors’ fees differently. It saw no reason to discount the amounts claimed for counsel. By contrast, it considered a 20 percent discount to solicitors’ fees appropriate. The reasons included that the full amount claimed was unlikely to be recovered on assessment, that the Mitchells obtained the benefits of a gross sum order, and that the costs appeared high given the nature of the application and the amount in issue ([9]).

After that adjustment, the Court allowed $14,000 plus GST for solicitors’ fees and $8,210 plus GST for counsel fees, with the total rounded to $24,000 inclusive of GST ([10]–[11]). The judgment does not explain a separate calculation for each challenged item or state that every objection by WCX succeeded or failed. Its reasoning supports an overall quantification rather than a ruling on each entry in the schedule.

Before and after state of the law

The judgment presents the gross sum approach as an application of existing principles, not as a change in the law. It cites earlier authorities for the propositions that fixing a gross sum is not an assessment, that a detailed breakdown can provide a rational starting point, and that a discount will normally be appropriate to reflect the differences between a gross sum and assessed costs ([7]–[8]).

Before this decision, the costs order already specified the basis of liability: indemnity costs, with the amount to be fixed as a gross sum. The remaining question was how much should be allowed. The judgment shows that an indemnity costs order and a gross sum method do not eliminate judicial scrutiny of the amount claimed. The Court considered the material and made a reduction to the solicitors’ fees, notwithstanding the indemnity basis ([7], [9]).

After this decision, the amount payable under the order was fixed at $24,000 inclusive of GST. The judgment does not purport to establish a general percentage discount for solicitors’ fees. The 20 percent reduction was tied to this claim and the Court’s assessment of the costs in light of the application and amount in issue ([9]). Nor does the judgment say that counsel fees will generally be exempt from discount. It says only that the Court saw no reason to discount the counsel fees claimed in this case ([9]).

The decision’s contribution is therefore practical and fact-specific: it illustrates how a court may use an itemised costs account without conducting a formal assessment, and may apply different treatment to professional fees and counsel fees on the material before it.

Key passages with plain-English translation

At [7], the Court states: “In fixing a gross sum, the Court is not undertaking an assessment.” In plain English, the Court was not conducting the detailed, formal process of checking and deciding every item as an assessment would. It was determining a reasonable overall figure using the evidence available.

The same paragraph explains that a discount is normally appropriate because not all claimed costs would be recovered on assessment, while a gross sum avoids the cost and inconvenience of assessment and carries a risk of over-compensation. This is not a rule that a fixed percentage must always be deducted. The reasons describe considerations to be weighed in fixing the figure.

At [8], the Court says that the detailed breakdown supplied by the Mitchells gave it “a rational and reasonable basis” for fixing the sum and an appropriate starting point. In plain English, itemised information can help the Court evaluate a lump-sum costs claim, even though the Court is not performing a full assessment.

At [9], the Court explains why it reduced solicitors’ fees by 20 percent: the full amount might not be recovered on assessment, the Mitchells obtained the benefits of a gross sum order, and the costs appeared high relative to the application and amount in issue. The paragraph records the considerations used here; it does not establish that the same reduction applies in other cases.

Finally, [11] contains the operative order: WCX must pay the first respondents $24,000 inclusive of GST for the costs of the notice of motion filed on 11 March 2025. This is the outcome of the quantification exercise.

What fact patterns trigger this precedent

The reasoning is relevant where a court has already ordered costs to be paid as a gross sum and must decide the amount on the available evidence. The judgment is particularly pertinent where the costs recipient provides a detailed breakdown of actual costs, but the paying party challenges categories of work or the overall amount.

It also illustrates a situation where costs have been awarded on an indemnity basis. The Court made clear that this basis did not require it to allow the whole amount claimed when fixing a gross sum ([7], [9]). The relevant questions in the judgment included whether the costs were supported by useful detail, whether the amount was likely to be recoverable on assessment, what benefit the gross sum procedure provided, and whether the costs appeared high in context.

The decision should not be read as resolving the individual objections raised by WCX. Although the judgment records objections about duplication, administrative work, counsel availability, an unused court book, and work allegedly unrelated to the motion ([5]), it does not set out item-by-item findings. Its stated reasoning focuses on the overall amount, with separate treatment of solicitors’ and counsel fees ([9]–[10]).

Nor does the judgment establish that every gross sum claim requires the same evidence or the same discount. It identifies a detailed breakdown as a reasonable basis in this case, and explains the considerations used to fix this particular amount.

How later courts have treated it

This judgment was delivered on 11 July 2025. The text supplied does not identify any later decisions treating it, and the judgment itself cannot establish how later courts have applied it. No later treatment can therefore be described on the material available.

The authorities it does discuss are earlier authorities. Hamod is cited for the proposition that gross sum fixing is not an assessment and for the value of a detailed costs breakdown as a starting point ([7]–[8]). Beach Petroleum, Idoport, and Zepinic are cited in support of the ordinary reasons for discounting costs when fixing a gross sum ([7]). The judgment refers to Litigation Fund WCX Pty Ltd v Mitchell (No 4) as the earlier procedural decision in the same litigation ([1]).

The decision is best understood as a fact-specific application of those stated principles. Whether subsequent courts have followed, distinguished, or otherwise treated it requires later authorities not included in the judgment text.

Still-open questions

Several matters are not resolved in the reasons. First, the judgment does not explain how the Court evaluated each item to which WCX objected. It records the objections and the Mitchells’ disagreement with them, but does not identify item-by-item findings ([5]–[6]). The reasons therefore do not show whether particular administrative, duplicative, counsel-availability, court-book, or allegedly unrelated items were allowed or disallowed.

Second, the Court gives reasons for the overall reduction to solicitors’ fees but does not set out a formula for reaching 20 percent. It says that the full claim was unlikely to be recovered on assessment, that the gross sum provided benefits, and that the costs appeared high in context ([9]). It does not allocate a particular part of the reduction to each consideration.

Third, the judgment does not define what level of detail will always be sufficient to support a gross sum order. It describes the schedule provided in this case and finds it rational and reasonable as a starting point ([4], [8]). It does not prescribe a universal form of schedule.

Fourth, it does not state how the considerations might weigh differently where the amount in issue, nature of the application, evidence about work performed, or costs basis differs. Its reasoning identifies those matters as relevant in this case, but does not provide a general scale or benchmark.

Finally, the decision fixes an amount inclusive of GST, after identifying claimed components expressed as amounts plus GST ([3], [10]–[11]). The supplied reasons do not separately explain the rounding calculation. The operative order is clear, but the intermediate arithmetic is not fully elaborated.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.