Mirus Australia Pty Ltd v Wilson

Judgment

1. This judgment disposes of an appeal and cross appeal, each brought under s 89 Legal Profession Uniform Law Application Act 2014 (NSW) from a decision of a review panel ("the Panel") established pursuant to s 82 of the Act conducting a review under s 85. Unless otherwise specified, all references to legislation in this judgment are references to the Act. The Panel's review was of a determination by a costs assessor ("the assessor") set out in an (amended) certificate, as required by s 71, dated 23 May 2021. The amendment related to a recalculation of interest. The assessor assessed the defendant/cross claimant's ("Mr Wilson") "ordered costs" (s 63) of proceedings in the Equity Division brought by the plaintiff/cross-defendant ("Mirus") which had been awarded in his favour in the sum of $222,259.66 including interest and Mr Wilsons costs of the assessment in accordance with s 78. A separate certificate was issued by the assessor under s 71 setting out the separate determination of the costs of the costs assessment of the Manager, Costs Assessment ("the Manager") and the renumeration of the assessor (together referred to in this judgment as "internal costs"). The assessor's amended certificate was sent to the parties by the Manager on 26 May 2021.
2. The application for review was filed under, and within the 30-day period fixed by, s 83 on 25 June 2021. The Panel made their decision setting aside the cost assessor's determination and substituting their own determination of the costs payable by Mirus in the sum of $128,715.93 in a certificate under s 87 on 14 October 2021. A separate certificate was issued under s 88 on the same day, setting out the Panel's determination of the internal costs of the review. The Manager sent these certificates to the parties on 19 October 2021. In summary and relevant to these proceedings, the Panel ruled that it did not have the power to determine that one party should pay the costs of the other party of the review (Panel Decision [4.9], Court Book ("CB") Vol 1, Tab 11, p 564). It upheld Mirus's first ground of review that it had not been afforded a reasonable opportunity of participating in the costs assessment. It is common ground that Mirus took no part in the assessment. Mr Wilson says it was afforded every opportunity to do so.
3. Only one ground of appeal and one ground of cross appeal were advanced at the hearing before me. As to the ground of appeal, Mirus says that the Panel erred in law in concluding that it did not have the power to award costs of the review. Mr Wilson's ground is that the panel did not provide adequate reasons for finding that Mirus was not given a reasonable opportunity to participate in the first instance costs assessment (written submissions, 8 September 2022, p 10 [55]). As I understood the argument, although expressed as a reasons ground, the substance of it was that the Panel erred in making that finding.

The question of leave

1. It is convenient to set out s 89 in full: (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.
2. As s 89(1)(b) makes clear, an appeal to this court only lies by leave if the amount of costs in dispute is less than $100,000. As Mirus properly concedes, the amount of costs in dispute referrable to its sole ground of appeal falls a long way short of $100,000. It relates solely to its claim for its costs of the review which it claimed in the sum of $15,884. Mirus sought leave on the basis that the question of whether the Panel has power to determine the costs of a review of an assessment of ordered costs and by whom they are payable is a question of public importance raising a question of law of general significance involving the interpretation of the Act. At least at the time of hearing there was no decision of the Supreme Court dealing with this question and clarification of the law would have ramifications well beyond the circumstances of the present dispute as apart from the principle involved, important questions of practice are at stake. Mr Wilson does not oppose the grant of leave.
3. Quite obviously, this Court would not ordinarily give much consideration to granting leave to appeal over so modest an amount of legal costs, which is less than the leave threshold in the District Court. Notwithstanding this, the principle involved is of public importance, as well as practical significance for the costs assessment scheme and for that reason I would grant leave.
4. In any event, Mr Wilson's cross appeal involves an amount of $93,543.73. If one were to aggregate this with the amount of costs in dispute in the appeal, given that if Mirus were successful, it would lead, in effect, to a further reduction in the net amount recoverable by Mr Wilson, the amount involved in the whole dispute between the parties exceeds the sum of $100,000.

Background

1. Mirus is an information technology provider to the aged care sector. Prior to July 2015, Mr Wilson was employed by it in a senior sales position. On 27 July 2015 Mr Wilson and another senior employee resigned and established their own business in the same field.
2. On 8 September 2015 Mirus commenced its proceedings in the Equity Division (2015/261885) to restrain Mr Wilson and his colleague from breaching their contractual restraints of trade and their alleged misuse of confidential information and intellectual property belonging to Mirus. After a number of significant interlocutory proceedings, Mirus negotiated a settlement with Mr Wilson's colleague. Thereafter, on 9 May 2019, Mirus discontinued its proceedings against Mr Wilson. Of course, this meant the proceedings in substance resolved favourably for Mr Wilson and on 20 November 2019, Ward CJ in Eq (as the President then was) made an order for costs in his favour.
3. After a period of unsuccessful costs negotiations, an unfiled application for assessment of Mr Wilson's ordered costs ("the application") was served on Mirus on 7 August 2020 with which issue was taken by Mirus's solicitors by letter dated 28 August 2020. The application was lodged with the Manager by filing in the registry on 1 September 2020 (2020/255194). Costs in the sum of $204,322.93 plus interest were claimed. Mirus's contention before the Panel was that the filed application had not been served on it, the contact details for its solicitors were omitted from it and it was thereby denied a fair opportunity to participate in the costs assessment. In short, it was denied natural justice.
4. In his determination of 16 May 2021, the costs assessor allowed Mr Wilson's ordered costs as claimed without reduction. But a reduction was made in Mr Wilson's claimed costs of the assessment (s 78).

The review

1. As I have said, Mirus's application for review under s 83 was filed on 25 June 2021 (CB Vol 1, Tab 9, p 514ff). It was made in the approved form. It was accompanied, inter alia, by a 15 page document commencing in bold, "The grounds for making the application for review are as follows". Ground A was entitled, "No reasonable opportunity to respond" and ground B, "Insufficient consideration of the claim for costs and insufficient or untenable reasons provided". Within that section there were a number of subheadings making specific complaints about the assessor's assessment. The other documentation required by cl 45 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) ("the Regulation") was provided.
2. The Manager nominated Mr John L Sharpe, barrister, and Mr Maurice Castagnet, solicitor to constitute the panel. On the same day, Mr Sharpe, on behalf of himself and Mr Castagnet, wrote to the parties inviting "the review respondent", ie Mr Wilson, to provide submissions directed to the grounds for review in 14 days and allowing a further period of 14 days for "the review applicant", ie Mirus, to respond. Replying to Mr Wilson's request for an extension of time to provide his submissions, on 15 July 2020, Mr Sharpe wrote again to the parties directing the provision of specific information and confirming that Mr Wilson's application for an extension of time had been allowed. In response, Mirus provided an additional bundle of 31 documents (CB Vol 2; Tab 67, p 798ff). Its notice of objection consisted of a submission of 15 pages and a list of specific objections running to 147 pages. From the Panel's reasons (CB Vol 1, Tab 11, p 558ff), Mr Wilson provided submissions in response to those advanced by Mirus (Review Reasons ("RR") [3.3]). A detailed response was also provided by Mr Wilson to the direction of 15 July 2021 (RR [3.5], CB p 563).
3. In its reasons, the Panel set out the principles which it proposed to apply (at RR [4.1]-[4.9] CB pp 563-564. And at [6] pp 565-568). No party asserts error with the principles stated generally, other than Mirus's complaint about RR [4.9].
4. It is important to point out that the Panel found that Mirus had provided "detailed grounds for the review", which they summarised as 9 separate grounds with 4 others being grouped together as part of ground 2. The "no reasonable opportunity to respond" ground was ground 1. It is important to record this because part of Mr Wilson's argument was that the application for review involved one ground only and it should have been rejected. I interpolate, this argument fails to deal with the nature of a review under s 83 to which I will return.
5. There was no real dispute before me about the scope of the Panel's powers. To the extent to which it is important for grounds to be stated, a question far from beyond debate, I am satisfied that the Panel's analysis is well open and has not been shown to be incorrect. Whatever else might be said about it, as I will seek to demonstrate below, the reasonable opportunity to participate ground could not of itself have resulted in a reduction of the ordered costs assessed. And it did not. The only effect of the finding favourable to Mirus on ground 1 was that the Panel determined that Mr Wilson was liable for the internal costs of the assessment (RR [7.6], CB Vol 1, Tab 11, p 570).
6. I will not set out the whole of the Panel's reasons which are comparatively lengthy. But I will set out the Panel's conclusions on ground 1 (CB pp 569-570): "[Mr Wilson] simply did not respond to Mirus' solicitor's letter of 28 August 2020. It is apparent from the emails that then passed between the solicitors appearing for [Mr Wilson] and [Mirus] that it was their intent to apply strict time limits to Mirus in putting on any material. The failure of Wilson to provide a copy of the letter of 28 August 2020 or indeed to include any correspondence with Mirus' solicitor, led to a situation where the Assessor was placed in the invidious position of determining the matter in the belief that Mirus was not contesting the Assessment. After the Assessor was appointed, [Mr Wilson] did not include any reference to Mirus' solicitors in any correspondence with the Assessor but simply pushed to have the matter finalised. It is to be remembered that under [cll 35(1)(b) and 35(2)(c) of the Regulation] that it is incumbent upon an applicant to attach to the application any objection received by the applicant before the application is lodged with the Manager. The letter dated 28 August 2020 clearly is a document to which [cl 35(2)] (sic) applies. [Mr Wilson] simply did not comply with the provisions of the regulations, nor did it [sic] provide the common courtesy normally applying to litigation. The Assessor was not placed in a position of being aware of the involvement of [Mirus's solicitors] and accordingly was unable to provide a "reasonable opportunity" to Mirus to make submissions in relation to the application. In other words, the Assessor was placed in a position where he was not able to fully comply with section 69 [of the Act]. Having reviewed the whole of the Assessor's file, the following determination is made: a. The Application for Assessment did not disclose the legal representative of Mirus. b. The Application for Assessment did not disclose nor was the Assessor made aware of the letter from [Mirus' solicitors] dated 28 August 2020. c. [Mr Wilson] did not respond to the letter from [Mirus's solicitors] but chose to proceed to assessment. d. At no stage did [Mr Wilson] advise the Assessor of the known solicitor of Mirus. e. All correspondence from [Mr Wilson] to the assessor and all correspondence from the assessor referred to Mirus' address at: info@mirusaustralia.com. f. All correspondence by the Assessor did not include any reference to [Mirus' solicitor (Kennedys)]. I interpolate that my own review of the evidence before me accords with the Panel's conclusion about ground 1.
7. The Panel then proceeded to consider the other grounds and, as I have said, assessed Mr Wilson's fair and reasonable ordered costs in the sum of $128,715.93. The Panel determined that Mirus was to bear the costs of the review (CB Vol 1, Tab 11, [12] p 77 (d)). This needs to be understood by reference to the finding the Panel made that it had no power to award costs of the Review. The Panel essentially directed that each party bear its or his own costs of the review. This ruling, the subject of Mirus's appeal, is in the following terms (RR [4.9] CB Vol 1, p 564): "The Panel does not have the power to determine that one party should pay the costs of the other party of the Review. S. 88 … provides that a Panel may issue a certificate determining the amount of costs incurred by the Panel or the manager and related to the renumeration of the assessors who constituted the Panel, and by whom those costs are payable and the extent to which they are so payable. That does not authorise the Panel to award costs of a party. Those words contrast with s 204 (Legal Profession Uniform Law (NSW)), which applies to assessment. Section 204 allows an assessor to determine "the costs of the assessment and by whom they are payable".
8. Evidently the Panel applied something like the maxim expressio unius est exclusio alterius. While the Panel referred by necessary implication to s 85(2) (at RR [4.4], CB p 563) to the effect that the Panel has in relation to the application for review all the functions of a costs assessor in relation to the assessment, with respect, the Panel did not consider the possible effect of that provision and whether the language of that provision picked up the language of s 78. I interpolate that s 78 is a more pertinent point of reference in light of s 85 than s 204 of the Legal Profession Uniform Law (NSW) ('Uniform Law') given that that provision applies to legal costs payable on a solicitor and client basis (s 196 Uniform Law).

Relevant principles

1. In Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 (at [25]-[43]) Basten JA (with whom Leeming JA and Simpson AJA agreed) considered the nature of a costs appeal under the current legislation. His Honour's reasoning in this regard may have been obiter dictum, but it was certainly considered dicta with which the other members of the Court expressly agreed, and I am presumptively bound by it. His Honour undertook a short review of the principles governing costs appeals under the various statutory schemes for the taxation or assessment of legal costs in force from time to time in New South Wales. His Honour focused upon the current regime from [36]. The references to the 'Application Act' are to the current governing law. His Honour emphasised (at [43]) that close attention to the terms of the particular statutory power was required and a court exercising the current appellate power should not "adopt statements from earlier cases dealing with different powers, unless persuaded they remain applicable". I will set out his Honour's analysis in full: [36] The 2004 Act continued in force until 1 July 2015 when it was repealed by the Application Act. The terms of s 89 are set out at [26] above. The new regime made a number of substantial changes to the earlier provisions. [37] First, whilst it maintains an appeal as of right, that appeal is not restricted to questions of law; rather, it depends upon the amount of the assessment. An appeal from an assessment of less than $25,000 requires leave, whatever may be the ground. [38] Secondly, again dependent upon the amount in issue, appeals can be brought either in the District Court or in the Supreme Court. [39] Thirdly, no appeal was permitted from a determination by a costs assessor, but only from a decision of a review panel. [40] Fourthly, the language of a "new hearing" (as in s 208M of the 1987 Act) has been abandoned and all appeals are "by way of a rehearing". [41] Fifthly, although there is an opportunity for the applicant to provide fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor, that can only occur with leave of the court: s 89(4). [42] Sixthly, the court is not given specific powers, but rather is said to have "all the functions of the review panel." The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing "the determination of a costs assessor": s 85(1). For that purpose, the review panel has "all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment": s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal "by way of a rehearing". [43] No submissions were made in this court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters."
2. In Gilmore Finance Pty Ltd v Aesthete (No 3) Pty Ltd [2020] NSWCA 114 Meagher (Macfarlan and White JJA agreeing) made additional observations on the nature of an appeal by way of rehearing applicable to this context which I set out here (at [7]-[9]):

[7] The nature of an appeal by way of rehearing is described in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, Gummow, McHugh and Hayne JJ) by reference to the characteristics which distinguish it from a hearing de novo and an appeal in the strict sense: For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand. [8] The following passage from the judgment of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [31] makes clear that while it remains necessary to identify an error in the decision appealed from, in an appeal by way of rehearing that requirement may be satisfied by reason of further evidence adduced in the appeal or a change in the law which has the result that looked at in retrospect the decision appealed from was in one or more respects incorrect: For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal. [9] As Basten JA recently observed in Gazecki v McCabes Lawyers Pty Ltd [2020] NSWCA 98 at [42] by s 89(2) the Court determining the appeal by way of rehearing is said to have "all the functions of the Review Panel". By s 85(2) the Review Panel in turn had "all the functions of a costs assessor in relation to the assessment concerned and is to determine the application, subject to Pt 7 of the Act and the costs assessment rules, in the manner that a costs assessor would be required to determine an application for costs assessment." It was not submitted by either party that the effect of this provision is that the powers of the appellate court may be exercised whether or not there was error (in either of the senses referred to above) on the part of the Review Panel. (My emphasis)

1. It is important to point out that an appeal by rehearing is not an appeal in the strict sense as the passages quoted by Meagher JA from Allesch v Maunz and Minister for Immigration and Border Protection v SZVFW make clear. Although error is required to be shown in an appeal by way of rehearing, as Gageler J (as the Chief Justice then was) said, "The correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal". With respect, Meagher JA seems to agree with Basten JA's observations in Gazecki v McCabes that the consideration that the appellate court on rehearing "has all the functions of the review panel" does not mean that the Court is conducting the type of review that the review panel is authorised to undertake. The Court is conducting an appeal by way of rehearing.
2. Bearing in mind Basten JA's adjuration about the need to pay close attention to the terms of statutory power at play, it is common ground that the powers of the Panel for conducting its review in the present case are aptly described by Barrett JA (with whom Beazley P and Basten JA on this point agreed) in Wende v Horwath [NSW] Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170. That case concerned the cost assessment scheme established under the Legal Profession Act 2004 (NSW) which immediately preceded the current scheme. The review panel's powers were conferred by s 375 of that Act. As with the present scheme, it was empowered to "review the determination of the costs assessor". The parties did not have the same right to place new or additional material or arguments before the review panel as they presently enjoy, because under s 375(3), the review was to be conducted on the evidence before the costs assessor unless the panel determines otherwise. If the panel did not determine otherwise, it was not to receive submissions or any fresh or additional evidence. Under the present scheme, there is no such limitation and by dint of s 85(3) "the review panel is not bound by the rules of evidence and may inform itself on any matter in a manner it thinks fit". Moreover, under s 89(4) on the rehearing "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" (my emphasis). This provision too demonstrates a greater permissible liberality in the receipt of fresh or additional evidence on review by a review panel. The review before Mr Sharpe and Mr Castagnet was conducted consistently with these provisions.
3. Even with those legislative differences, the nature of a review panel's task under the present legislation, in my opinion, essentially remains the same. Barrett JA dealt with these matters from [157]-[166]. I will set out [158], [159], [161] and [162]: [158] In the present context, it is the task of a review panel to review an assessment that has been made necessary because the person ordered to pay costs and the person to whom they are payable have not agreed the amount. One person wishes to see the assesssor determine a large amount, the other a small amount. Each is able to present a case to the assessor. While the circumstances are not adversarial in any strict sense, the panel must consider competing contentions and make up its mind in the light of them. [159] There is no statutory requirement that an applicant for review articulate objections to the original assessment or state what are often described as "grounds of review". Under s 373, an application for review made by a party dissatisfied with an assessor's determination must set out the assessor's determination and, as required by cl 132 of the Legal Profession Regulation, be accompanied by an affidavit of service (having regard to the s 373(5) requirement that notice of the application for review be given to the other parties to the assessment), a copy of all of the costs assessor's certificates of determination relating to the assessment and a copy of the assessor's statement of reasons. … [161] The function of the review panel will vary according to the way in which the applicant for review chooses to frame the application. If specific objections are stated, the panel will, of necessity, deal with them. If no objections are stated and the implicitly indicated desire of the applicant is merely to have the reviewpanel conduct a general review, no specific matters will call for attention. In (2014) 86 NSWLR 674 at 709 either such case, however, the function of the review panel is, as stated in s 375(1), to "review the determination of the costs assessor" and to decide whether the assessment should be affirmed or altered. [162] Because the s 375(2) obligation to emulate a costs assessor is subordinate the duty to "review" arising from s 375(1), a review panel is not required to make a new assessment as if the original assessment had never been made. The starting point will generally be the original determination of the costs assessor. The review panel will take into account not only the material specified s 375(3) but also the application for review made under s 373(1) and referred by the Manager, Costs Assessment to the review panel pursuant to s 374(1). That application must, for these purposes, be regarded as including the documents that accompany it in conformity with cl 132 of the Regulation. A panel does not exist (or, more precisely, is not "constituted") unless and until the Manager, Costs Assessment "refers" an application for review to it."

The submissions of the parties on the cross appeal

1. As the hearing developed before me, the argument of the cross appeal effectively preceded the argument of the appeal and certainly took much more hearing time. The basis of this seems to have been, had the cross appeal been successful, the appeal would not really arise. Even so, counsel agreed that the appeal gave rise to a point of law (as I have said) that required determination in the public interest. In the event I am content to deal with the matter as counsel presented it.
2. As I have already said, although the ground of the cross appeal is formulated as a reasons ground, in substantial effect, Mr P Doyle Gray of Counsel really argued that the decision on what the Panel described as ground 1 was wrong. With respect, the argument was developed with a great deal of elaboration both in writing and orally. However, in essence counsel argued that the only decision open was that both the unfiled and the filed application had been served on Mirus. There certainly could be no dispute about the unfiled application because Mr Khoury's affidavit of service (see below) was unchallenged and in any event, service was acknowledged by the letter of 28 August 2020 from Mirus's solicitors to Mr Wilson's solicitors. While there was no direct evidence of the Manager sending the filed application to Mirus, as I have stated elsewhere, counsel relied upon the presumption of regularity. Nothing turned on the failure of Mr Wilson's solicitors to specify the contact for either Mirus's solicitors or Mr Covino or Mr Price (the guiding minds of Mirus whose contact details were known to Mr Wilson). A retainer does not of itself imply authority to accept service and Mirus's solicitors failed to respond to correspondence enquiring about that latter issue. Mirus was a corporation and service by delivery to its registered office was sufficient. It was unnecessary to effect service on its directors or guiding mind separately. Notwithstanding lockdown and other social distancing requirements limiting attendance at the workplace, Mr Doyle Gray argued that one would presume unless the contrary was shown that the Manager would have acted in accordance with his or her obligations under the Regulation. While there were assertions to the contrary in the material put before the Panel, those assertions were not evidence and should have been ignored by the Panel. In any event, service itself, whether of the unfiled or filed application was sufficient notice to enable Mirus to participate in the assessment in accordance with the requirements of procedural fairness.
3. While Mr Doyle Gray, properly emphasised Basten JA's adjuration about the need to pay close attention to the terms of the statutory power being exercised (Gazecki v McCabes [43]), he went so far as to argue that the Panel was required to undertake the review for itself on the basis of the materials that had been before the assessor unassisted by further submissions or material from either of the parties. I confess to have found this submission somewhat surprising having regard to the express terms of the statute. As best I could follow it, the argument was founded upon cl 44 of the Regulation. By that clause, a list of assessors qualified to be members of a review panel is required to be compiled by the Chief Justice. Those are the costs assessors the Chief Justice considers to be suitably qualified to be members of review panels. This power of the Chief Justice is delegable.
4. The argument seems to have been that as the Panel was constituted by two of the suitably qualified or "senior" cost assessors on the list as nominated by the Manager, this expert body was to be left to its own devices to conduct its own expert review. The forensic purpose of this bold starting point, again as I apprehended it, appears to have been that no material going to ground 1 was permissibly put to the Panel. In the absence of evidence or other material raising an issue about natural justice, the Panel would have been bound by law to reject the only ground upon which its jurisdiction was founded and accordingly, so the argument goes, required to do no more than affirm the assessor's determination. A fortiori, I too am bound by law to exercise those powers of the Panel which it failed to exercise, set aside the determination of the Panel and reinstate the determination of the costs assessor. I interpolate that none of this seems apt for the determination of a cross appeal by way of rehearing based upon the sole ground of the adequacy of the Panel's reasons. I understood that this was in the alternative to the argument that the Panel wrongly determined ground 1.
5. Mr J Bartos of Counsel who appeared for Mirus acknowledged that despite how the ground was framed, it was clear "from the thrust of [Mr Wilson's] submissions" that he challenged the Panel's decision to consider the grounds of review, receive further submissions and give them due consideration. Counsel emphasised, as I have said elsewhere, that the natural justice ground was not material in any event, a point to which I will return below.
6. Mr Bartos argued that Mr Wilson's argument was not tenable. He pointed out that by s 85(2) the review panel has all the functions of a costs assessor which includes the obligation under s 69(1) for the assessor to give the parties a reasonable opportunity to make submissions and give them due consideration. Section 85(3), by providing that the Panel is not bound by the rules of evidence, but may inform itself otherwise, by necessary implication authorises the Panel to receive additional material for the purpose of the review. This is reinforced by s 89(4) empowering the Court to receive evidence, by leave, "in addition to or in substitution for the evidence before the review panel or costs assessor". By drawing a distinction between the review panel and the costs assessor, the provision contemplates that each level of the assessment process will proceed on the basis of a body of evidence (or other material) which may not be identical.
7. While it is not in the same terms, Mr Bartos drew a comparison with s 375 of the Legal Profession Act. He pointed out, as I have done above, that under that provision the review was to be conducted on the evidence before the costs assessor unless the panel determined otherwise. Section 85(3) is not so restricted. The gateway to the admission of additional material before a review panel is broader under the current scheme.
8. By reference to Wende v Horwath, Mr Bartos argued that the meaning of the term "review" is not fixed and will depend upon its context. He referred to the passages from the judgment of Barrett JA (at [162]-[163]) set out above. He also emphasised, as I understood the argument, Barrett JA's statement (at [158]) that the panel must consider competing contentions and make up its mind in the light of them.
9. Mr Bartos joined issue with Mr Doyle Gray's argument that only one ground of review was advanced. And it was apparent that Mr Wilson had responded to the various grounds advanced before the review panel.
10. Finally, Mr Bartos argued, on the assumption that a reasons ground is maintained, that the review panel's summation as I have set out above, complied with the legal content of the obligation to provide reasons which I have summarised above.
11. I will deal with the cross appeal before moving on to the appeal.

Determination of the cross appeal

1. I am not persuaded that the cross appeal has been made good. Indeed, I am persuaded that in all respects Mr Bartos's arguments should be accepted.
2. First, I am satisfied that the reasons given by the Panel for determining what they referred to as ground 1 in favour of Mirus were legally adequate. Whether or not the decision is correct is not to the point for this purpose. Whether one describes the content of the obligation to provide a statement of reasons imposed by cl 51 of the Regulation by reference to Frumar v The Owners as explained by Ahern v AON or by reference to the considerations explained in Kocak (at [55]), the Panel's obligation obligation has been well and truly discharged by the reasons of the Panel which I have summarised above (particularly at [17]). To my mind there can be no doubt that the statement of reasons provided by the Panel fully explained the actual path of reasoning by which the panel arrived at its determination in relation to ground 1 in sufficient detail to enable this Court to determine an appeal. The reasons are more than sufficient to have enabled Mr Wilson to have obtained advice as to the merits of an appeal on that ground, as the detailed, indeed elaborate, arguments advanced on his behalf so amply demonstrate. That finding, of course, is strictly sufficient to dispose of the cross appeal but given that the argument was allowed to travel well beyond the confines of the sole ground of cross appeal, I will deal with the other aspects.
3. From my full review of the material, I do not think it can be seriously maintained that Mirus's application for review was restricted to a single ground. I acknowledge in common with the former scheme, there is no requirement in the Act for an applicant to a review to articulate objections or grounds of review. However, it is permissible for the applicant to do so. As with the former scheme, the approved form in which an application for review must be made (Form A4) contemplates that grounds for making the application for a review will accompany the application: (cf Wende v Horwath at [160] per Barrett JA). As Barrett JA observed (at [161]), "if specific objections are stated, the panel will, of necessity, deal with them". I understand his Honour to have said, "of necessity" because if specific objections or grounds are stated, the Panel's obligation to give reasons will be engaged in relation to their disposition, as cl 51(2) of the Regulation specifies. Identifying grounds, depending upon the clarity with which they are expressed, will be a matter for the determination of the Panel who have a certain leeway, as the reasons in Wende v Horwath demonstrate, over how they will conduct the review, always subject to the terms of the statute. There can be no error, in my opinion, in the Panel in the case at hand having considered all of the material put before it by both parties allocating to each of the grounds that they identified a number for ease of reference and clarity. It was well open to them, and involved no error, to designate nine grounds of appeal at least one of which they understood to have "sub-grounds". I reject any suggestion that the eight grounds in addition to ground 1 were only put forward as particulars of prejudice flowing from ground 1, were it to be made good. They were matters that went directly to the central question of fairness and reasonableness.
4. I also accept Mirus's submission that were it shown that the Panel's determination of ground 1 was erroneous, the existence of the other grounds, some of which were successful, demonstrates that the error could not possibly have affected the outcome of the review.
5. I accept that the determination of ground 1 having been "made out" (CB Vol 1, Tab 11, p 573), the Panel indicated that "it has been necessary" for it to reach its own determination as to Mr Wilson's fair and reasonable costs. However, this was its obligation whether specific grounds were advanced by Mirus or not. As Barrett JA said in Wende v Horwath (at [161]): "If no objections are stated, the implicitly indicated desire of the applicant is merely to have the review panel conduct a general review, no specific matters will call for attention. In either such case, however, the function of the review panel is, as stated [in s 85] to "review the determination of the costs assessor" and to decide whether the assessment should be affirmed or [set aside]."
6. As I have pointed above, errors involving denial of procedural fairness, or the requirements of natural justice, cease to be of any direct relevance to the Panel's function and the exercise of its powers once the application for review is properly before the Panel (see Wende v Horwath [165]-[166]. As Barrett JA explained, those matters were not of direct relevance because once the matter was properly before it, the panel "became charged with the task of undertaking a review". His Honour observed that it was not open to the review panel to set aside the original assessment and remit the matter to the costs assessor. That result could only have been achieved if the assessor's decision had been subject to an appeal on the basis of the error of law to a court. His Honour went on to say that the panel's evaluation of an allegation of denial of natural justice "may well influence its view of the quality of the product of the assessor to which it is required … to have regard". I repeat that Beazley P and Basten JA agreed with these conclusions of his Honour.
7. Given that the Panel was obliged to conduct a review in any event, as the application had been regularly made, the correctness or otherwise of the Panel's decision about ground 1 was not material. It could have made no possible difference to the result: Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54. For this reason, had I concluded that the review panel had erred in its determination of ground 1, the error would not be material for the purpose of an appeal under s 89. As it happens, for the reasons I develop below, I am satisfied in any event that the panel's decision in relation to ground 1 is correct.
8. While each of these findings is sufficient to dispose of the cross appeal, I wish to deal with some of the other detail of Mr Doyle Gray's argument. I am of the view that it is clearly wrong, for the reasons explained by Barrett JA in Wende v Horwath, to treat an application for review, as learned counsel's submissions tended to, as akin to an appeal stricto sensu limited to the correction of identified errors. Moreover, in exercising its functions the Panel had no power of remitter. Its statutory powers were limited to the affirmation of the costs assessor's determination or the setting of it aside and substituting the determination that, in its opinion, should have been made by the costs assessor (s 85(2)). This explains why Barrett JA's analysis remains apposite in the current scheme. It is erroneous to argue that if ground 1 had been determined against Mirus that the Panel was bound to affirm the costs assessors determination and not authorised to conduct any further review.

The review of the evidence relevant to the cross appeal

1. Lest I am wrong in my determination so far, I consider it appropriate to consider the correctness of the Panel's ruling on ground 1 that involved a finding of fact and a conclusion of law.
2. I bear in mind, Basten JA pointed out (Gazecki v McCabes at [42]) that under s 89, "the court is not given specific powers, but rather is said to have "all the functions of the review panel"". His Honour observed that the effect of the provision "is by no means clear" and there may be a tension between conferring on the Court all the functions of the review panel and describing the appeal as "by way of rehearing".
3. The appeal to this Court falls within the definition of appeal contained in s 19(2) Supreme Court Act 1970 (NSW). And subject to the Act, s 75A Supreme Court has effect. By s 75(10): "The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires". As Basten JA said, the interplay of the provisions of the Act and the Supreme Court Act are not entirely clear, but I am of the view that the combination of s 89 and s 75A(10) give me the power to review the Panel's decision on ground 1.
4. I am conscious that the power expressed in s 89(4) is not unfettered. The proceedings in this Court are an appeal by way of rehearing. Fresh evidence or evidence in addition to or in substitution for evidence before the Panel or costs assessor may with leave of the court be given on the appeal. As the appellate procedure is by way of rehearing, the evidence before the Panel and the costs assessor is in any event properly before the Court. Given that there is no particular qualification on the leave requirement, and as the Panel and the assessor exercised what are largely administrative functions, the leave bar is not a high one. These matters have been explained by the Court of Appeal in authorities to which I have already referred.
5. I have been provided with a two-volume court book totalling 1,257 pages. In addition, I was given a supplementary bundle of documents by Mirus running to 41 pages. Part of that bundle was an affidavit by Mr James Price, a director of Mirus sworn on 30 September 2022. For reasons I gave separately at the hearing I disallowed that affidavit. That is to say, I did not grant leave for that additional evidence to be read over the objection of Mr Wilson. Within the court book is an affidavit from each of Mirus's and Mr Wilson's solicitors. Mr Justin Le Blond, for Mirus, swore an affidavit on 17 March 2022, which was read without objection. He was not cross-examined. Mr Nathan Mattock, Mr Wilson's solicitor, swore an affidavit on 26 April 2022 which also was read without objection. He was not cross-examined. Mr Mattock swore a second affidavit on 8 September 2022 which was also read without objection. Its main purpose was to annex a copy of the filed application and to make some explanation about the arrangement of some of the documents in the court book. Obviously, the solicitors' affidavits were not evidence before either the Panel or the assessor. Many, if not most, of the attachments probably were. However, it is unlikely that they all were. Given that other than in the case of Mr Price's affidavit there was no objection to any of this material being before me, by implication, the parties jointly proceeded as though leave had been granted to rely upon the additional material, which was not clearly identified, and to the extent necessary I formally grant leave for them to do so.
6. It should be pointed out that Mr Mattock represented Mr Wilson in the equity proceedings and on the costs proceedings. Just as Mr Le Blond represented Mirus in both. This is of some significance because prior to the preparation of the application there had been ongoing correspondence and negotiations between the solicitors in relation to costs. Notwithstanding this, when the unfiled application was prepared, Mirus was named as the costs respondent but the particulars in relation to the cost respondent's legal representative were left blank (CB Vol 1, Tab 3, pp 26-27).
7. In his first affidavit of 26 April 2022, Mr Mattock states that on 30 July 2020 an employed solicitor sent an email to Mr Le Blond enquiring whether his firm had instructions to accept service of the application (CB, Tab 15, p 601). A follow up was sent on 3 August 2020 requesting a response by the following day "as to whether [the firm] had instructions to accept service" (CB 602, [7]). Mr Le Blond did not reply to either. Accordingly, the application for assessment was served on 7 August 2020 on Mirus at its registered office and principle place of business (affidavit of service by Joseph Khoury sworn 12 August 2020; CB Vol 1, Tab 13, p 582; company search CB Vol 2, Tab 18, p 609)). Mr Khoury, who was not cross-examined, said he served the application by handing it to a female apparently over the age of 16 at Mirus's registered office. The person said she was authorised to take the document. It is important also to record that Mr Mattock's employed solicitor sent a copy of the unfiled application by email on 12 August 2020 addressed to the personal email addresses of Mr Robert Covino and Mr James Price. Both were directors and guiding minds of Mirus who had been involved in the equity proceedings. I infer that Mr Mattock had their email addresses on file or obtained them from his client, Mr Wilson. From subsequent events, I infer that one or other or both of Mr Covino and Mr Price forwarded the application to Mr Le Blond.
8. Service of the unfiled application accorded with cl 35(1)(a) of the Regulation. The unfiled application also complied with cl 35(1)(a) by giving notice in writing to Mirus that it was required to lodge any objection with the costs' applicant within 21 days after receipt of the notice.
9. I interpolate that in recounting these facts, one needs to bear in mind the notorious fact that for much of 2020 and 2021 strict public health regulations were in place limiting the right, among others, of solicitors and their commercial clients to work from the office to give effect to strict social distancing requirements to inhibit the spread of COVID-19, as I have alluded to before. Indeed, for much of that period strict lockdowns were in place prohibiting freedom of movement other than for limited specified purposes. This may explain why otherwise efficient solicitors seemed to have missed or overlooked significant correspondence, notwithstanding the continued efficiency of instantaneous electronic communication. Mirus's solicitors seemed to have missed the correspondence enquiring whether they were instructed to accept service and Mr Wilson's solicitors, as I will demonstrate seemed to have overlooked Mr Le Blond's letter of 28 August 2020 objecting to the application.
10. Whatever the vagaries of communication during a pandemic, I can say that at least Mr Covino and Mr Price received the email of 12 August 2020 and passed it on to Mr Le Blond. His letter of 28 August 2020 to Mr Mattock was forwarded by email. It stated his firm (continued to) acted for Mirus and making it clear that Mirus had a number of objections to the application which were spelt out (CB Vol 2, Tab 22, pp 615-6). He also said Mirus would need time to appoint a costs consultant.
11. I accept that Mr Mattock missed or overlooked that letter because in his affidavit of 26 April 2022 (CB Vol 2, Tab 15, p 602) he records that Mirus was required to provide objections by 28 August 2020 (they did), the fact that his employee on 2 June 2021 in response to a letter of 2 June 2021 from Mr Le Blond chasing up an earlier letter of 28 May 2021 asserted that they had not received the letter of 28 May 2021 and had served Mirus direct because they had received no reply to their letters of 30 July 2020 and 3 August 2020. On 2 June 2021 Mr Le Blond sent copies not only of the letter of the letter of 28 May 2021 but also his letter of 28 August 2020.
12. Mr Mattock also states, he "first learned that Mirus was represented by [Mr Le Blond's firm] upon receipt of this correspondence on 2 June 2021". He has no record of any follow up from Mr Le Blond by way of correspondence or telephone calls before then (CB Vol 2, pp 604 [25]-[26]). Equally, I infer he has no record of any further follow up by correspondence or telephone by anyone from his firm with Mr Le Blond's firm whom, with respect, he knew at all prior times including in relation to costs negotiations in the early part of 2020 had been acting for Mirus in the equity proceedings. Frankly, to say he "did not know" smacks somewhat of special pleading.
13. On 1 September 2020, 3 days after Mr Le Blond's letter of 28 August 2020, the application was lodged with the Manager in accordance with cl 35 of the Regulation by e-filing it with the online registry of the Supreme Court. When filed it was allocated the assessment no 2020/00255194 to which I have already referred. In purported compliance with cl 35(1)(c), Mr Mattock, or a person authorised on his behalf, certified that the cl 35(1)(a) notice had been sent to Mirus with the application on 7 August 2020, and erroneously certified that no objection had been received from Mirus. This was erroneous, given the letter of 28 August 2020. By cl 35(1)(b) of the Regulation, any objection received is to be attached to the application before it is lodged with the Manager by filing.
14. As Mr Wilson pointed out in argument, he was not obliged to serve the lodged application on Mirus. Rather, cl 35(1)(e) provides that the Manager is to send a copy of the application to the person who is liable to pay the costs. The application as lodged is not required to reproduce the cl 35(1)(a) notice, or at least it did not. As I have said, not only was the letter of 28 August 2020 omitted but also the space for providing the details of the costs respondent's legal representative was left blank. Although Mirus's business address, which was the registered office, was provided. The email addresses of Mr Covino and Mr Price were not. These officers were not required to be served but the employed solicitor out of courtesy, or for more abundant caution, knowing them to be persons concerned in the equity litigation, decided to provide them with a copy. It is difficult to understand why the same courtesy was not extended to his professional colleagues who had acted for Mirus, who could easily have been copied in, if not by way of service.
15. As I have said, Mr Wilson relies upon the presumption of regularity to support a submission that I should find that the Manager sent a copy of the filed application to Mirus as required by cl 35(1)(e). There is no evidence either way and I deal with this submission below. In his letter of 28 May 2021 and at paragraph [14] of his affidavit (CB Vol 1, Tab 14, p 589), Mr Le Blond states that the filed application was never served on Mirus or his firm (CB Vol 2, p 745).
16. Under cl 39 of the Regulation, the Manager referred the assessment to an assessor, Mr Geoffrey Meadows, solicitor. By letter dated 18 September 2020 (CB Vol 2, Tab 24, p 618) (sent by email), the assessor wrote to Mr Wilson's solicitors and to Mirus advising that he had been appointed, pointing out he had an obligation to provide the parties with a reasonable opportunity to make written submissions (s 69) and fixing a timetable for the provision of those submissions together with directions as to their content. It is notable to me that the address for Mirus was given as its registered office and an email address of a generic type ("info@"), rather than of a specified person, was recorded. I infer that the use of the phrase "by email" indicates that the letter was sent by email rather than ordinary post. It was not directed to the email addresses of the directors which were known to Mr Wilson's solicitors but which did not appear on the application. The employed solicitor used that generic email address to copy in Mirus when writing to the costs assessor on 9 March 2021 to enquire as to the progress of the assessment. There is no evidence that Mr Wilson's solicitors ever utilised that generic email address previously rather than the individual email addresses of the directors. The provenance of the address is not disclosed by the evidence I have read. The employed solicitor received a reply from a "no reply address" on behalf of "the sales team" at Mirus. The content of the email appeared generic or standard, a "1300" number was provided, but there is no evidence that anyone sought to contact it (CB Vol 2, Tab 20, p 622A). The use of the "info@ email address" seems to have on other occasions produced the same generic response. One would not infer that the "sales team" are proper officers of the company for the purpose of service of legal process. From the content of it, I would not infer that any responsible person at Mirus had actually received the email correspondence and comprehended it.
17. On 16 May 2020, the costs assessor wrote to Mr Wilson's solicitors and to Mirus, again by email to the same addresses, advising that the assessments of ordered costs and of the internal costs of the assessment (s 71) had been completed, advising them of the costs of the assessment and informing them that certificates would be issued by the Manager (s 70).
18. On 19 May 2021, Mr Mattock wrote to Mirus "by email" utilising the email addresses of the directors, Mr Covino and Mr Price enclosing, inter alia, an ordered costs certificate of 16 May 2021, the internal costs certificate of the same date and the assessor's reasons. He demanded payment of the total amount of $216,226.23.
19. As with the service of the unfiled application under cl 35(1)(a) of the Regulation, a relatively prompt response was received in the form of Mr Le Blond's letter of 28 May 2021 to which I have already referred. I infer that utilising the email of the directors brought the documents to their immediate attention and that they acted with reasonable promptitude, just as they had done in August 2020, to refer the matter to their solicitors.

Determination of the procedural fairness question

1. By reference to the presumption of regularity, I find that the Manager probably sent the filed application to Mirus at the only address with which the Manager had been provided, being the registered office. The application, having been e-filed, there is every reason to suppose that in the ordinary course of the administration of the Registry's business, the Manager would have caused it to have been posted to Mirus's registered office, as was required by cl 35(1)(e) of the Regulation.
2. However, the question of whether the filed application came to the attention of any proper or responsible officer of Mirus before 19 May 2021 is another matter. This is important because Mirus had the statutory right under s 69 to make submissions to the Assessor and to have them duly considered. Given the evidence before me, I am of the view that Mr Wilson has not proved for the purpose of his cross appeal that it probably did come to the attention of a proper officer. This was necessary if Mirus was to have a reasonable opportunity to participate in the assessment. Service of the unfiled application itself did not provide that opportunity because no proceedings were by that document then commenced. Early service of the unfiled document was to provide a last opportunity for negotiation and an opportunity for issues to be defined by way of objection. This is why objections raised are required to be lodged with the filed application.
3. From the evidence I have referred to in relation to communications directed to Mirus during the period under review, there is every reason for me to infer that mail directed to the registered office and email to generic addresses did not come to the attention of a responsible or the proper officer of the company during the relevant period between August 2020 and May 2021. I am of the view that this was likely for what I would term COVID reasons. I am also of the view that Mirus through its directors was not a company which acted, or failed to act, with disregard to its own interests. As I have pointed out on the two occasions when correspondence was directed to the email addresses of Mr Covino and Mr Price they acted upon it with appropriate promptitude. What is difficult to understand is why those email addresses were not included on the application as filed, to say nothing of the identity of its lawyers who had acted for it throughout the litigation, Kennedys, together with Mr Le Blond's email address which was apparently known even to the employed solicitor.
4. I am prepared to accept that documents were sent but other than those sent on 12 August 2020 and 19 May 2021 by Mr Mattock to Mr Covino and Mr Price by email addressed to them, I am not satisfied that the documents sent came to the attention of any responsible or other proper officer of the company.
5. In this sense then I accept the statement of Mr Le Blond, upon which he was not cross-examined, conclusory in form as it is, that neither he nor Mirus was served with the filed application or any other document thereafter until Mr Mattock's letter by email of 19 May 2021, after the assessment had been determined.
6. To make things clear, I am not satisfied that the filed application, the costs assessor's email of 18 September 2020 or subsequent follow-up correspondence came to the actual attention of any person at Mirus and certainly not to the attention of any person at Mirus with responsibility or authority to act on behalf of the company in relation to litigation.

The appeal

1. Mirus's appeal involves a pure question of law. That question of law is whether the provisions of s 85(2) that "the … panel has … all the functions of a costs assessor in relation to the assessment concerned and is to determine the application … in the manner that a costs assessor would be required to determine an application for assessment" picks up for the purpose of an application for the review of an assessment by a costs assessor of ordered costs, the functions or powers conferred upon the costs assessor by s 78, subject to qualifications presently not in play, that "a costs assessor is to determine the costs of an assessment of ordered costs and by whom they are payable".
2. It will be remembered that the Panel's decision on this matter, which is set out above (at [17]), is to be found at [4.9] of its reasons for determination (CB Vol 1, Tab 11, p 564). As I have already observed, the Panel appears to have applied the expressio unios maximum by reference to s 88 and also s 204 of the Uniform Law. One supposes it may also usefully have referred to s 78, but did not. With respect, the Panel did not consider the effect of s 85(2) upon its powers in this regard.
3. Mr Bartos argued that s 85(1)(b) empowering the Panel to set aside an assessor's determination and substitute its own determination authorised, depending upon the circumstances of the case, a complete reassessment. In carrying out that complete reassessment, the Panel enjoyed all of the functions, inter alia, of a costs assessor. Counsel also argued that s 87 required a panel when setting aside the costs assessor's determination and substituting their own to issue a certificate which is to include the amounts set out in s 70(1)(a)-(c). Section 70(1)(b) extends to the costs determined under s 78 or s 204 of the Uniform Law. Reading the provisions as a whole and in particular reading s 88 with s 85 and s 70, it is clear that the panel is entitled, in an assessment of ordered costs, to determine the costs of a review of ordered costs and by whom they are payable. The argument is strengthened by a consideration of s 85(2) in as much as the panel is determine the application for review "in the manner that a costs assessor would be required to determine an application for costs assessment". In determining an assessment of ordered costs, the assessor would consider the exercise of the power conferred upon him or her by s 78.
4. Mr Doyle Gray effectively supported the position adopted by the Panel and for the same reason, ie the absence of an express power for a review panel to determine the costs of the review and by whom they were payable even in respect of ordered costs. Counsel referred me to a significant body of law concerning the proper approach to statutory construction, which it is unnecessary for me to refer to in detail (But see State of New South Wales v Kaiser (2022) 108 NSWLR 86; [2022] NSWCA 86 per Simpson AJA at [57] (Bell CJ and Beech-Jones JA (as his Honour then was) concurring) where the authorities are collected and summarised).
5. Mr Doyle Gray also advanced again the argument to the effect that a review under ss 82 to 88 is in substance a neutral evaluation by an expert panel involving no explicit entitlement of the parties to the dispute to active participation in the review process including by an entitlement to be afforded a reasonable opportunity to make submissions and have them duly considered. I hope I do no disrespect to the argument to say, as I have already, I find this surprising. However, counsel submitted that "the text, subtext, purpose and structure of the legislation leads to this construction: review panels have no power to award parties' costs inter se" (submissions on the summons 20 September 2022 at [20]).

Determination of the appeal

1. I accept Mr Bartos's argument. I am of the view that, in respect of ordered costs, the power conferred upon the costs assessor by s 78 is picked up by s 85 and that this is confirmed by the mandatory requirements of s 88. I am not of the view that expressio unius maxim governs the interpretation of the provisions of Pt 7 of the Act. I accept one must read the Act as a whole and strive to give it a harmonious interpretation. I am of the view that acceptance of the argument advanced by Mr Doyle Gray is inimical to that object and indeed inconsistent with the express language of the salient provisions.
2. I appreciate that there may be a semantic distinction between an assessment and a review and that the language of s 78 empowers a costs assessor to determine the costs of an assessment, not expressly a review, of ordered costs. However, s 85(2) which confers all the functions of a costs assessor on a review panel requires them to determine the application "in the manner that a costs assessor would be required to determine an application for costs assessment". This includes making an assessment of what is a fair and reasonable amount of ordered costs for the work concerned under s 76. If following a review, the panel exercises the s 81(1)(b) power to set aside the costs assessor's determination and substitute the determination that "should have been made by the costs assessor" it is inevitable while conducting the review the panel must make its own assessment; and must make its own assessment in the manner required of a costs assessor.
3. Section 87 requires the new certificate issued by the panel, after it sets aside the cost assessor's determination, to include the amounts referred to in s 70(1) (a)-(c), as Mr Bartos argued. I repeat that s 70(1)(b) includes the amount of the costs determined under s 78. I acknowledge that one could treat the s 87 requirement to include the costs referred to in s 70(1)(a)-(c) as referring, inter alia, to the costs before the assessor and not the review panel. If a review panel sets aside the assessor's determination, that decision may well affect all aspects of the assessor's determination including his or her determination under s 78. The outcome of the review may have a bearing on the assessment of the costs before the assessor and who should pay them. The review panel is required to make that determination as an assessor would. Indeed, the panel's whole assessment is required to be performed in that manner. To my mind it is contrary to reason that a successful review applicant, in the case of ordered costs, could obtain an assessment of the costs of the assessment before the assessor in its favour, but be left with no statutory entitlement to claim the costs of the successful review, even where, as here, the Panel has directed participation in a particular manner, as I set out above.
4. For the reasons already rehearsed, I am not in any way attracted to Mr Doyle Gray's neutral expert evaluation model of a review. This strikes me, as I have said, as entirely inconsistent with key provisions of the Act. I am of the view that his argument about whether the panel can determine the costs of the review and by whom they are payable in the case of ordered costs should not be accepted.
5. To make matters clear, s 85 is the central provision in this regard. It confers on the panel all the functions of a costs assessor. Those functions include the requirement under s 69 to afford the parties to an assessment a reasonable opportunity to make submissions to which the assessor is to give due consideration. The assessor has the power to hold an oral hearing and is not bound by the rules of evidence but may inform himself or herself on any matter in the manner he or she thinks fit. These powers and functions, by necessary implication, are conferred on the panel by s 85(2). Moreover, the panel has an independent power to receive additional material conferred by s 85(3). This provision is not simply a reference back to s 69. As I have previously said, the conclusion that parties are afforded the opportunity to put material before, and make submissions to, the Panel is reinforced by the effect of s 89(4) which refers to "evidence" before the review panel or the costs assessor. These bodies of evidence need not be identical. To treat the Panel as left entirely to its own devices in conducting a review is also at odds with the power of the Court to which an appeal is brought to receive yet further or additional evidence, even if by leave.
6. In my opinion a review panel has power on the determination of a review not only to determine the costs of a first instance assessment of ordered costs and by whom they are payable, but also the costs of the assessment carried out on review and by whom they are payable by dint of the provisions to which I have referred. I should say that in my opinion affirmation of the costs assessors determination of itself involves an assessment in a manner of a costs assessor. Section 85(2) applies equally to s 85(1)(a) and (b).
7. I would allow the appeal.

Disposition

1. It follows that to the extent necessary, I should grant leave to the defendant to cross appeal and dismiss the cross appeal.
2. So far as the appeal is concerned, as already indicated I would grant leave and allow the appeal. In my judgment, it is necessary to remit the matter to the Manager for referral to a review panel in accordance with cll 47 and 48 of the Regulation for the determination of the costs of the review of the assessment of ordered costs and by whom they are payable in accordance with these reasons. There is no reason why the matter could not be re-referred to Mr Sharpe and Mr Castagnet. But in the event that that cannot be conveniently done another panel may be constituted from cost assessors whose name appears on the list compiled under cl 44(2) of the Regulation. In my judgment it is not necessary that the Panel's certificate of determination of review sent to the parties on 19 October 2021 (CB Vol 1, Tab 10, pp 556-7) be set aside. It recorded the amount determined as the costs of the assessment as "$Nil" for the reasons the Panel gave (at [4.9]). Section 87 which applies to a panel's certificate setting out its substituted determination also expressly incorporates s 70(2)-(6) (s 87(2)) and states those provisions "apply to a certificate issued by a review panel under this section in the same way as they apply to a certificate issued by costs assessor under s 70." Under s 70(2) a costs assessor may issue one or more certificates in relation to the application for costs assessment. Accordingly, it is sufficient if the matter is referred by the Manager for the assessment of the costs of the review assessment of ordered costs and by whom they are payable.
3. Remitter, in my judgment is appropriate, even though the Court has all the functions of a review panel and therefore is authorised to determine those questions for itself. As the cost assessors on the list compiled under cl 44 of the Regulation are "a specific body of costs assessors appointed solely for that function" (Gazecki v McCabes (at [43])), those cost assessors are in a much better position than "a reviewing court with limited experience of such matters" to make the necessary determination.
4. My orders are: 1. Grant the plaintiff leave to appeal. 2. Appeal allowed. 3. Remit the application for review dated 25 June 2021 to the Manager, Costs Assessment for referral to a review panel under clause 47 Legal Profession Uniform Law Application Regulation 2014 (NSW) for the determination of the sole question of the costs of the review and by whom they are payable in accordance with these reasons with a view to the issue of a certificate under s 87, Legal Profession Uniform Law Application Act 2014 (NSW) limited to that question. 4. To the extent necessary, grant leave to the defendant to cross appeal. 5. Cross appeal dismissed. 6. The defendant to pay the plaintiff's costs of the appeal and the cross appeal.

Amendments 27 November 2023 - Formatting changes to cover sheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 November 2023