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[2024] VSC 524
General information, not legal advice.
Supreme Court of Victoria
2024-08-30
GRAY J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Costs - Referral of costs assessment to Costs Court by Judicial Registrar - Former executors were legal practitioners who provided legal services relating to administration of estate - Whether incorporated legal practice invoiced estate for their legal services - Jurisdiction and powers of Court relating to assessment of reasonableness of costs invoiced and assessment of whether invoiced were properly paid out of the estate - Opportunity for incorporated legal practice to be heard in relation to potential orders joining it as defendant and referring assessment of reasonableness of costs invoiced by incorporated legal practice to Costs Court - Potential order directing defendants to issue summons in Costs Court - Civil Procedure Act 2010 s 9 - Supreme Court Act 1986 - r 63.65.
And for a non-party, the Administrator, Ms Ines Kallweit
L Dawson of counsel (written submissions dated 9 August 2024)
1 Best Hooper Pty Ltd (Best Hooper),[1] seeks orders from me clarifying orders of two Judicial Registrars of the Court relating to the assessment of costs invoiced for legal services in relation to the administration of this deceased estate and paid out of the estate.
2 The evidence before me is currently very limited. However, it is sufficient to show that the matter is of some complexity.
3 It appears that Best Hooper invoiced the estate and received payment for legal services provided by an employee of Best Hooper (Mr Robinson) and partner of Best Hooper (Mr Raleigh), at the same time that they were the executors of the estate.
4 Best Hooper contends that the orders of the Judicial Registrars are unclear and may at least to some extent have been made without power. The orders appear to me to be made for the purpose of assessing the reasonableness of the costs invoiced by Best Hooper and paid by the defendants out of the estate.
5 As I see my present task, it is to decide upon the most appropriate way to facilitate the just, timely, efficient and cost‑effective hearing and determination of the real issues in dispute relating to the costs in question.[2]
6 In my view, that makes it necessary to have Best Hooper, as well as the defendants, participating in a process leading to resolution and - if necessary - determination of:
(a) the extent (if any) to which the costs invoiced by Best Hooper exceeded reasonable costs;
(b) potentially informed by the outcome in subparagraph (a) above, the extent (if any) to which the amounts paid out of the estate were not properly incurred costs for which the executors were entitled to indemnity from the estate; and
(c) what orders may be required to restore to the estate any such amount not properly incurred.
7 I will allow Best Hooper, the administrator and the parties to make written submissions as to appropriate orders. One possible set of orders to achieve the above would be the orders I have suggested at the end of these reasons.
8 This proceeding is related to Robinson and Raleigh v Jones and Victorian Animal Aid Trust, PRB 2014 11075. That proceeding is explained in five sets of reasons for judgment of McMillan J.[3]
9 In this proceeding, by originating motion filed 30 May 2019, the plaintiff (Ms Jones) sought orders pursuant to s 34(1) of the Administration and Probate Act 1958 removing the defendants from their offices as executors of the estate of Bruce Desmond Andrews, deceased, and the appointment of Ms Ines Kallweit as administrator in substitution for the defendants. The originating motion also sought equivalent orders for removal and substitution under s 48(1) of the Trustee Act 1958. One of the orders sought was that the defendants provide an accounting of all costs paid out of the estate.
10 On 19 July 2019, Moore J ordered, pursuant to s 34 of the Administration and Probate Act 1958, that the defendants be discharged as executors of the estate and that Ms Kallweit be appointed as administrator. His Honour also made an order that the defendants provide to the administrator an accounting of all costs paid from the estate.
11 The first defendant, Mr Robinson, was 'at all material times up to around late‑2017, an employee solicitor of Best Hooper Lawyers'.[4] The second defendant, Mr Raleigh, was at all material times up to 30 June 2023, a 'partner' of 'Best Hooper Lawyers'.[5] The evidence before me is far from complete. An entity that I assume is a company under the Corporations Act 2001 (Cth) and an incorporated legal practice called Best Hooper Pty Ltd has appeared before me. I will assume that 'Best Hooper Lawyers' is a reference to that entity. If it is not, then some explanation will be needed in due course as to the relationship between them, and the timing at which Best Hooper Pty Ltd commenced as an incorporated legal practice.
12 Best Hooper has never been a party to this proceeding. Best Hooper was, however, on the record as the legal representative of Mr Raleigh from 2019 through until about October 2020.[6]
13 Since coming off the record, Best Hooper has had no substantive involvement in the proceeding, and it delivered the relevant files concerning the estate over to Mr Robinson some years ago.[7] I was informed by counsel for Best Hooper, however, that those files are now in the possession of Best Hooper again.
14 On 23 March 2021, Judicial Registrar Keith made orders inter alia requiring the defendants to provide or procure a proper assessment of the invoices of two law practices, one of which was Best Hooper. Judicial Registrar Keith also made a referral to the Costs Court. It is this order that has been impugned or at least questioned in the summons and submissions of Best Hooper before me, as well as subsequent orders of Judicial Registrar Conidi directed to Best Hooper.
15 The terms of Judicial Registrar Keith's orders on 23 March 2021 were relevantly as follows:
(a) the work performed by Best Hooper for the administration of estates be re-drawn pursuant to the Practitioner Remuneration Order ('PRO'), including any invoices not previously provided but form part of these costs.
(b) the work performed by Best Hooper ... in the probate application (S PRB 2014 11075) be re‑drawn pursuant to the Supreme Court scale, including any invoices not previously provided but form part of these costs.
(c) the work performed by Pointon Partners for the administration of estates be re‑drawn pursuant to the PRO, including any invoices not previously provided and that form part of these costs.
16 Judicial Registrar Keith gave an explanation of his orders in the recitals. The matters in the recitals are not evidence before me and I have not relied on them in making any findings or in reaching any conclusions. I have considered them only because they are an aid to the proper understanding of the orders. One of the recitals stated:
The administrator notes that the legal costs paid out of the estate to Best Hooper solicitors totals $365,271.01. Of that amount, the claim for costs in the amount of $141,294.88 has been subject to the Court's review and was eventually reduced to $56,304.40. The difference in those amounts, the sum of $84,990.48 was not paid to the estate until 10 July 2019, 14 months after the judgment. The balance of the costs taken and paid to Best Hooper Lawyers, $223,976.17 (based on invoiced amounts) has not been subject to the scrutiny of the Court. The total costs and disbursements paid to Pointon Partners amounting to $13,004.66 has also not been subject to assessment by the Court.
17 It remains to be seen whether or not this summary of matters is accurate, and admissible evidence will be required in due course on this topic if anyone seeks to establish these matters.
18 Also in the recitals, Judicial Registrar Keith noted a submission by the administrator that it was necessary to scrutinise the as yet unscrutinised portion of the costs incurred by the estate, and he recorded his conclusion that this proposal was reasonable.
19 I interpret Judicial Registrar Keith's orders in light of these explanatory matters.
20 The orders refer to the costs not only of Best Hooper but also the costs of another law practice, Pointon Partners. There is no controversy currently before me concerning the orders as they relate to Pointon Partners, or the process subsequently ordered and adopted in the Costs Court in relation to Pointon Partners. I will therefore not consider the position of Pointon Partners. I am, however, informed that further steps in relation to Pointon Partners are currently on hold awaiting the outcome of my consideration of the issues raised by Best Hooper. I will grant liberty to Pointon Partners to make written submissions about its position in light of the proposal outlined in these reasons, at the same time as the other interested parties and non‑parties make their submissions in response to these reasons.
21 On 15 March 2024, Judicial Registrar Conidi ordered Best Hooper, as 'proposed applicant', to issue a summons for taxation of their costs in the Costs Court and to file and serve bills in accordance with the orders of Judicial Registrar Keith made on 23 March 2021. Shortly after this, the solicitors for one of the defendants informed Best Hooper of Judicial Registrar Conidi's orders and of Judicial Registrar Keith's orders. Correspondence between Best Hooper and the Costs Court Registry and chambers of Judicial Registrar Conidi ensued.[8]
22 A further mention was listed on 29 April 2024, and Best Hooper appeared. Best Hooper sought an order vacating Judicial Registrar Conidi's orders. Judicial Registrar Conidi did not vacate the orders, but extended the time for compliance with them.[9] In addition, Judicial Registrar Conidi's orders on 29 April 2024 required that Best Hooper file a summons for taxation by 11 June 2024.[10] Best Hooper did not file such a summons and sought urgently to bring the matter before a Judge of the Court before attempting to comply. Correspondence between Best Hooper and the Court's registry ensued.
23 On 2 July 2024, the Prothonatory sealed a summons that had been filed by Best Hooper, seeking directions:
(a) Clarifying the procedure for that phase of this proceeding referred by Judicial Registrar Keith to Judicial Registrar Conidi in the Court's orders made on 23 [scil., March] 2021;
(b) Clarifying the proper parties to the proceeding insofar as is relevant to that phase of this proceeding;
(c) Clarifying whether the Costs Court or the Supreme Court constituted by a Judicial Registrar who happens to work predominantly in the Costs Court is intended to make the determination envisaged by Judicial Registrar Keith's referral; and
(d) Such other or further orders or relief as this honourable Court deems appropriate.
24 The summons was made returnable before me on 26 July 2024. These reasons are in response to the summons.
(a) Should I vacate the orders of the Judicial Registrars insofar as they apply to Best Hooper?
(b) If so, do I have power to make any order as to assessment of the reasonableness of Best Hooper's costs charged to the estate (or its executors)?
(c) If I have that power, should I exercise it in relation to Best Hooper's costs (to the extent that there remain such costs that have not yet been scrutinised), and (if so) in what way?
Evidence and factual assertions in Best Hooper's submissions
26 Best Hooper filed an affidavit of one of its principal lawyers, Mr McKay, in support of the summons.[11] Counsel for Best Hooper submitted that this was the only evidence on which I was permitted to rely. He took objection to me relying on any facts referred to in previous judgments, as this would be contrary to s 91 of the Evidence Act 2008.
27 Although there are various other affidavits on file, counsel for Best Hooper submitted that Best Hooper, being a non‑party, does not have access to them via the Court's online system for filing, RedCrest and they are not currently before me. The administrator did not file an affidavit in response to the current summons.
28 I have relied only on factual assertions in Mr McKay's affidavit or in Best Hooper's submissions in reaching my conclusions in these reasons.
29 Best Hooper filed submissions by its counsel ahead of the hearing on 29 July 2024. Those submissions noted that, according to Judicial Registrar Keith's orders, Best Hooper did legal work on behalf of the defendants.[12] The submissions stated that it was Mr Robinson who caused Best Hooper 'to give bills and did most of the work claimed for'.[13] The submissions posed the question:
Whether those bills, which were not addressed to Robinson and Raleigh in many cases, were in truth bills of [Best Hooper Pty Ltd] or claims for remuneration by Robinson and/or Raleigh is a matter which only they can answer and has not yet been addressed.[14]
30 The submissions of counsel for Best Hooper refer to various points that appeared to have been agreed by the participants at the hearing on 26 July 2024.[15] One of these points was that most of the work was done by Mr Robinson, and that Best Hooper billed for the work of Mr Robinson and Mr Raleigh.[16] The submissions allude to the possibility that some of those bills might have been addressed to 'the Estate'.[17]
31 The submissions object to a suggestion made in submissions for the administrator, without supporting evidence, about certain costs disclosure issues, and in any event the submissions foreshadow that arguments will be made to the effect that:
Never could the absence of a written costs agreement or of written costs disclosure be more technical and non‑substantive than in this case.[18]
32 I do not read this sentence as an admission that there were no such documents. However, it is unclear, at least from the evidence before me, what the terms of the retainer of Best Hooper and/or Mr Robinson and Mr Raleigh were.
33 Counsel for Best Hooper submitted that Judicial Registrar Keith's order 6 did not explain how the Judicial Registrar had power to make the referral to the Judicial Registrar in the Costs Court, and so directions were sought in relation to the question whether he in fact had that power.[19] If the order was made without power, counsel for Best Hooper submitted that the Court should set the order aside and fix the problem by substituted orders or directions.[20]
34 Best Hooper's submissions also raised a number of issues concerning the construction of Judicial Registrar Keith's orders. They pointed out that the Supreme Court and the Costs Court 'seem to be different legal persons, the latter being a "statutory court of limited jurisdiction"'.[21] The submissions also pointed out that Judicial Registrar Conidi is not only a Judicial Registrar of the Costs Court but also of the Supreme Court. The submissions include the following:
[T]he only sensible construction of Keith JR's order in light of the invocation of s. 17AA is that the matter was not intended to leave and return to the Supreme Court, but that once Conidi JR, constituting the Supreme Court, had analysed the reasonableness of the claims made by the executors against the estate ..., the proceeding would resume its previous course and come back to its natural home within the Court ...
In other words, the estate argues in this proceeding that monies paid from the estate by Robinson and Raleigh qua executors for work done by the applicant should be reimbursed because the monies were legal costs and were more than it was reasonable as between the estate the executors for the executors to appropriate from the estate for legal costs. The applicant is a legal stranger to that controversy.[22]
35 The submissions contended that the dispute that Judicial Registrar Conidi 'apprehended to have been referred to the Costs Court' could not have been referred at all, 'because there was no such dispute capable of being referred in the current proceedings'.[23] The submissions concluded on this point, 'the only sensible construction of the referral in the context of the statutory power pursuant to which it was expressly made is that the referral was within the Supreme Court'.[24]
36 Did Judicial Registrar Keith have power to make the referral to the Costs Court in order 6? There is no appeal from the order, and orders are to be performed unless set aside. That said, the order is of an interlocutory character and may be vacated if the Court is now persuaded that this is the most appropriate course, and perhaps replaced with some other order. Any such decisions should be informed by the Civil Procedure Act 2010 (Civil Procedure Act).
37 Ultimately, I do not think it is necessary for me to express a final view on the issues canvassed above. The administrator submitted that this issue should not take up the parties' attention and resources if there is another power available. I agree. I can simply vacate Judicial Registrar Keith's order as it applies to Best Hooper and, if appropriate, replace them with orders that are clearly within power, and that I will endeavour to ensure are clear in their intended effects.
38 Hence the first question I posed in the overview: should Judicial Registrar Keith's order be vacated? And the interrelated questions that follow: if so, what (if any) orders do I have power to make, and should I make, instead?
Should the orders as they apply to Best Hooper be vacated?
39 In my respectful view, as submitted by Best Hooper, there is some doubt as to whether an order by a Judicial Registrar referring issues to the Costs Court is authorised by s 17AA(b) of the Supreme Court Act 1986 (Supreme Court Act), at least outside circumstances where the Judicial Registrar is making such an order on a referral from a Judge.
40 There is nothing on file indicating that a matter was referred by a Judge to Judicial Registrar Keith in this proceeding that might incorporate the power for Judicial Registrar Keith to, in turn, refer the determination of the relevant costs to the Costs Court.
41 Perhaps this could be done retrospectively (nunc pro tunc), but that might raise further issues that could potentially be disputed.
42 Counsel's submissions noted that Judicial Registrar Keith's order referring the matter to a Judicial Registrar of the Costs Court had referred to s 17AA(b) of the Supreme Court Act.
43 Section 17AA(b) provides:
Without limiting section 17, the Trial Division of the Court constituted by a judicial registrar may hear and determine any matter, whether civil or criminal, if -
(b) provision is made by the Rules for a Judge or an Associate Judge to refer any matter (whether or not it falls within a particular class of matter) to a judicial registrar for hearing and determination and a Judge or an Associate Judge so refers the matter -
and the Rules provide for the delegation to judicial registrars of all or any powers of the Court in relation to the hearing and determination of such a matter or class of matter.
44 The submissions questioned whether Judicial Registrar Keith could have had power under that provision to make a referral order to the Costs Court, given that this was not an example of a Judge or an Associate Judge making a referral under a provision of the rules to a Judicial Registrar.[25]
45 Under r 84.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules), Judicial Registrars have power to hear and determine applications for orders for the payment, or taxation and payment, of costs.[26] They also have powers to hear and determine a matter constituted by a proposed exercise of the Court's powers under Order 34, relating to case management.[27] I was not taken to any rule in which it is clearly stated that a Judicial Registrar can refer a matter to an officer of the Costs Court, at least outside circumstances where there has been a referral by a Judge or Associate Judge.[28] Perhaps such a power is to be implied from r 84.02, but the issue is not as clear as it could be.
46 There is a rule that mentions referrals to the Costs Court. It is r 63.65 of the Rules, which currently provides:
(1) This Rule applies where the Court by order, whether or not made by or under any Act, refers a bill of costs to the Costs Court for taxation or directs that a bill of costs be taxed.
(2) The taxation shall be brought before the Costs Court on application by summons in accordance with Rule 63.38.
47 However, it is not clear that the reference to the Court is intended to empower a Judicial Registrar to order a referral. Sub‑rule 63.65(1) of the Rules seems to assume that the Court has a power to refer, sourced elsewhere. It seems most likely that this rule is not intended to confer power on the Court so much as to prescribe what is to occur when the Court orders a referral. And even if it confers power on 'the Court' it is not clear that this in itself means that a Judicial Registrar is one of the judicial officers delegated with authority to exercise that power.
48 In the next section of these reasons, I consider s 24(1) of the Supreme Court Act. Section 24(1) is so broad that it may well empower a Judicial Registrar to make a referral to the Costs Court. However, Best Hooper appears to dispute this, or at least to question this, at least in the circumstances of this case.
49 There is sufficient doubt about these matters that further consideration of the issue, and the potential for further disputation of the outcome, is likely to involve expenditure of significant resources. That doubt also affects consideration of what to do about Judicial Registrar Conidi's orders, which flowed from Judicial Registrar Keith's order 6, insofar as those orders applied to Best Hooper. Further consideration and any final determination by me of these issues at primary judicial level are not likely to promote the overarching purpose in the Civil Procedure Act, if a more appropriate option presents itself. In other words, it is not necessary or appropriate to determine these questions if I decide that I have power, and I should exercise it, in a way that will facilitate determination of the real issues in dispute in a more just and efficient way.
50 I therefore turn to the other questions I have posed: do I have power to make any order that might facilitate scrutiny of Best Hooper's costs charged to the estate or its then executors, and (in particular) the power to order a referral to the Costs Court of the assessment of those costs? Should I make such orders?
51 As will be seen, in light of the conclusions I reach on those questions, I have decided that it is best to vacate the orders of Judicial Registrars Keith and Conidi as they apply to Best Hooper, and to replace them with different orders.
Do I have power to make orders for the assessment of costs charged by Best Hooper?
52 In my view I do have such powers. They may well be available to me by virtue of both of s 24(1) of the Supreme Court Act and the Court's inherent jurisdiction, but I will limit my decision to s 24(1).
53 Section 24(1) amply enables me to assess such costs, or make orders facilitating their assessment. In particular, I have discretion to facilitate assessment of such costs by a referral to the Costs Court.
54 The administrator did not oppose the making of a fresh referral order 'in an abundance of caution and in the interests of advancing one of the real issues in this case, which is the assessment of the fairness and reasonability of Best Hooper's costs'.
55 As I understood its submissions, Best Hooper did not question the availability of power on the part of a Judge to make a referral to the Costs Court in some circumstances, but suggested I did not have any power to make such a referral unless there was a costs dispute between parties to a proceeding before the Court, and in any event opposed such a referral if it involved any assessment of the costs claimed in its invoices. This seemed to be the gist or import of a number of points that appear to emerge from Best Hooper's submissions, as follows:
(a) Best Hooper submitted that the Court could only determine, or refer, costs issues that arise between the parties in a proceeding in the Court, subject to limited exceptions that do not arise here.
(b) Best Hooper submitted that the reasonableness of its costs relating to the administration of the estate is not in issue in this (or any other) proceeding. The only relevant issue in this proceeding, according to Best Hooper, is whether and to what extent the executors, who in substance were invoiced for those costs, properly 'appropriated' or paid them from the estate.[29]
(c) Best Hooper submitted that that issue is distinct from any question about the reasonableness of its invoices.
(d) As I understand the submissions of counsel for Best Hooper, in relation to the above arguments, I should assume that in substance the defendants were billed in their capacity as executors by Best Hooper for legal services they themselves procured (in that same capacity) and performed (in a different capacity, as legal practitioners associated with Best Hooper). It is only a subsequent step the defendants took, whereby they obtained indemnity from the estate for those costs, that is examinable. Counsel for Best Hooper submitted in this regard that 'there is not the slightest difficulty in untangling the conduct of the company and the individuals'.
57 Section 24(1) of the Supreme Court Act provides:
Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.
58 That provision on its terms extends to all costs of and incidental to the administration of an estate, which I take to encompass all costs resulting from a grant of probate or letters of administration in Victoria. It would not matter if the reasonableness of Best Hooper's legal costs invoiced in relation to the estate was not a question in this proceeding. Section 24(1) of the Supreme Court Act would nevertheless empower me to make orders about those costs.
59 In any event, I am not persuaded that the only issue that arises in this matter is whether (or to what extent) amounts said to have been 'appropriated' by the executors were properly paid out of the estate.
60 In my view, there is an antecedent step: were the amounts billed by Best Hooper reasonable?[30] If or to the extent such amounts were not reasonable, this may inform the question of whether such costs were properly paid out of the estate, and ultimately the question of whether the estate and its beneficiaries may be entitled to have them restored to the estate. If and to the extent that Best Hooper invoiced the estate for any unreasonable amounts and received them, that raises a question about whether the former executors are solely liable to restore those amounts without recourse to Best Hooper, or whether Best Hooper might also be liable. In my view, the real issues in dispute in the matter, including costs incurred in the administration of the estate, therefore extend to assessing whether Best Hooper's invoices were reasonable.
61 Further, I do not accept that it is a simple matter to distinguish between the acts of Mr Robinson and Mr Raleigh taken in their dual capacities. On the contrary, I find it impossible to untangle the conduct of the company and the individuals, at least on the limited evidence before me. As already noted, Mr Robinson and Mr Raleigh each had two roles in the matter. Each was an executor of the estate. And each, as a legal practitioner associated with Best Hooper, was also performing legal services in connection with the administration of the estate. It is also noteworthy that Mr Raleigh is said to have been a partner of Best Hooper.[31]
62 Also as already noted, Best Hooper appears to be an incorporated legal practice, and I assume was so at all material times. Perhaps the reference to Mr Raleigh being a 'partner' means he was a director and shareholder, or there was some form of partnership involving both natural persons and the company. Either way, there appears to have been the potential for at least Mr Raleigh's earnings to be affected by the work performed for the estate.
63 A number of questions arise that might be relevant to whether the estate has been charged for costs of the administration appropriately and what entitlement it might have to restoration of any excessive costs. What was the agreement or arrangement under which Mr Robinson and Mr Raleigh performed legal services relating to the estate, billed by Best Hooper? Were the legal services purportedly provided by Best Hooper to Mr Robinson and Mr Raleigh (in their capacity as executors), or (purportedly at least) directly to 'the Estate'? Was the estate directly invoiced by Best Hooper? If so, was any process applied to ensure that the costs were of a reasonable amount and for work reasonably necessary to the administration of the estate before payment was made? If the invoices of Best Hooper exceeded what was reasonable, to that extent were they not properly to be paid out of the estate?
64 In posing these questions, I am not suggesting that I know of any particular evidence that the costs may have exceeded what was reasonable or were expended on work that was not reasonably necessary work.
65 However, the fact that the executors had the two roles, and the billing of their work to the estate, alone justifies scrutiny by the Court. This is especially so because one of them was a 'partner', and so may be thought to have been entitled to some form of personal earnings or profit from the work. As the courts have previously observed, albeit in a different context from the present, the possibility of a profit being earned by solicitors acting for themselves might contribute to the possibility of 'higher, rather than lower, legal costs'.[32]
66 Counsel for Best Hooper also contended that there was no basis in the evidence to enliven my jurisdiction or power to make orders facilitating scrutiny of Best Hooper's costs. He contended that I could, or at least should, only make such orders if 'excited' into doing so by some feature of the case, and no such basis existed here.
67 Counsel for Best Hooper wrote in his post‑hearing submissions:
No one suggests that Best Hooper were acting for or owed duties to the beneficiaries or to 'the Estate'. If some bills were addressed to 'the Estate', in circumstances where the retainers are clear, that is a question of form not substance.
68 I do not find these submissions to be persuasive. For one thing, the terms of any retainers are not before me and I cannot be satisfied that they were 'clear'. It may not simply be a matter of form if Best Hooper issued invoices for the supply of legal services to the estate. Direct invoicing of the estate may be significant in some way. It is also unclear whether, especially in circumstances where one of its partners was acting as executor and solicitor, the law practice Best Hooper did or did not owe duties of some kind to the estate, and perhaps even to its beneficiaries. It is also unclear how far the implications of Mr Raleigh being (perhaps) a director of Best Hooper might reach into these issues.
69 Further, no authority was cited for any proposition that there is an evidentiary threshold that must be met before the Court may make orders facilitating assessment of costs, whether under s 24(1) of the Supreme Court Act or in the inherent jurisdiction.
70 In any event, I consider that the features of the case, the questions and the principles outlined in paragraphs 60 to 65 above provide a sufficient basis for me to make orders facilitating scrutiny of Best Hooper's costs pursuant to s 24(1) of the Supreme Court Act.
71 Before leaving the question of the Court's jurisdiction and power to make orders for the assessment of Best Hooper's costs, I should record some further observations.
72 The administrator and Best Hooper both identified and addressed two potential sources of jurisdiction and power for determination of questions about costs. I have only relied on s 24(1) of the Supreme Court Act. The other source was the Court's inherent jurisdiction, and in particular its supervisory jurisdiction in relation to lawyers.
73 Counsel for Best Hooper submitted that the Court's inherent supervisory power would relevantly apply to legal practitioners, such as principals of Best Hooper, but not to Best Hooper itself.
74 Without deciding whether the inherent jurisdiction is limited in this manner, it is sufficient for me to rely on s 24(1).
Should I make orders for the assessment of costs charged by Best Hooper?
76 As already noted, some of those costs have already been the subject of scrutiny and orders of the Court. My orders should not encompass those costs.
77 Before making any orders, as I indicated on 26 July 2024, I will give Best Hooper an opportunity to be heard (in the form of written submissions) as to why they should not be made, and to submit any alternative formulation. I will give the administrator and the parties the same opportunity.
78 Subject to further submissions, I am inclined to make orders to the following effect:
(a) Best Hooper Pty Ltd be joined as the third defendant and the title of the proceeding be amended to describe James William Robinson as first defendant, Simon John Raleigh as second defendant, and Best Hooper Pty Ltd as third defendant.
(b) The orders of Judicial Registrar Keith made on 23 March 2021, and the orders of Judicial Registrar Conidi made on 15 March, 29 April and 14 June 2024 be vacated and treated as no longer in effect but only insofar as they apply to Best Hooper Pty Ltd.
(c) The following question be referred for hearing and determination by an Associate Judge sitting as Costs Judge of the Costs Court, or for hearing and determination upon further referral or delegation if the Costs Judge so orders:
Insofar as the costs invoiced by Best Hooper Pty Ltd in relation to the estate were not considered in Robinson v Jones (No 5) [2018] VSC 202 (unscrutinised costs), to what extent were the unscrutinised costs of a reasonable amount and reasonably incurred?
(d) Pursuant to r 63.65 of the Rules, the defendants issue a summons to Best Hooper Pty Ltd for assessment in the Costs Court of the costs referred to in the preceding order.
(e) Upon completion of the assessment, the matter be relisted before me or another Judge on a date to be fixed.
79 I invite Best Hooper, the administrator and the parties to address any aspect of these reasons and the above proposal, including the criteria against which the unscrutinised costs should be assessed in the Costs Court. They may do so if they choose, by filing and serving any written submissions or proposed reformulated orders, of no more than 10 pages in total, by 4pm on 30 September 2024. They may file and serve any written submissions in reply, limited to five pages, by 4pm on 14 October 2024.
[1] I assume Best Hooper is and has at all material times been an incorporated legal practice within the meaning of the Legal Profession Uniform Law Application Act 2014 (Vic) (Legal Profession Uniform Law (Victoria)).
[2] Civil Procedure Act 2010 (Vic) ss 7 and 9.
[3] Robinson v Jones [2015] VSC 222; Robinson v Jones (No 2) [2015] VSC 334; Robinson v Jones (No 3) [2015] VSC 508; Robinson v Jones (No 4) [2016] VSC 160; Robinson & Anor v Jones & Anor (No 5) [2018] VSC 202.
[4] Affidavit of Robert Sutherland McKay affirmed 11 June 2024, [7(a)].
[5] Affidavit of Robert Sutherland McKay affirmed 11 June 2024, [7(b)].
[6] Affidavit of Robert Sutherland McKay affirmed 11 June 2024, [13].
[7] Affidavit of Robert Sutherland McKay affirmed 11 June 2024, [14].
[8] Affidavit of Robert Sutherland McKay affirmed 11 June 2024, [23]-[25].
[9] Affidavit of Robert Sutherland McKay affirmed 11 June 2024, [27]-[28].
[10] Affidavit of Robert Sutherland McKay affirmed 11 June 2024, [29].
[11] Affidavit of Robert Sutherland McKay affirmed 11 June 2024.
[12] Submissions re directions dated 12 July 2024, [2].
[13] Submissions re directions dated 12 July 2024, [5].
[14] Submissions re directions dated 12 July 2024, [5].
[15] Submissions in response to post‑directions hearing dated 16 August 2024, [1].
[16] Submissions in response to post-directions hearing dated 16 August 2024, [1(d)].
[17] Submissions in response to post-directions hearing dated 16 August 2024, [2].
[18] Submissions in response to post-directions hearing dated 16 August 2024, [11].
[19] Submissions re directions dated 12 July 2024, [20].
[20] Submissions re directions dated 12 July 2024, [25].
[21] Submissions re directions dated 12 July 2024, [26] citing Owerhall v Bolton & Swan [2015] VSC 417, [7].
[22] Submissions re directions dated 12 July 2024, [33]-[34].
[23] Submissions re directions dated 12 July 2024, [37].
[24] Submissions re directions dated 12 July 2024, [39].
[25] Submissions re directions dated 12 July 2024, [14]-[16].
[27] See r 84.02(3)(a)(ii) of the Rules.
[28] See rr 84.03 and 84.04 of the Rules.
[29] Submissions dated 16 August 2024 [38].
[30] See also s 172 of the Legal Profession Uniform Law forming sch 1 to the Legal Profession Uniform Law Application Act 2014 (Vic), which refers to fair and reasonable costs, and to proportionality.
[31] See Legal Profession Uniform Law (Victoria) s 6(1), definition of 'principal' of a law practice, where the law practice is an incorporated legal practice that is a company within the meaning of the Corporations Act 2001 (Cth).
[32] Bell Lawyers v Pentelow [2019] HCA 29; (2019) 93 ALJR 1007, 1014 [18]; United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15, [81], [118].
Re Andrews; Jones
Robinson & Anor [2024] VSC 524
(2019) 93 ALJR 1007