Reavill Farm Pty Ltd v Burrell Solicitors Pty Ltd

Court of Appeal (NSW)|2017-03-31|Before: Bathurst CJ, Leeming JA

Introduction There are two appeals before the Court. Both appeals are concerned with legal costs charged by Burrell Solicitors Pty Ltd (Burrell Solicitors) in connection with proceedings in the Land and Environment Court (the L&E Court).

The first appeal (the Liability Appeal) is brought by Reavill Farm Pty Ltd (Reavill Farm), Champions Quarry Pty Ltd (Champions Quarry), Mr Jeffrey Champion and Mrs Diana Champion (together the Champion parties) from orders made by a judge of the Equity Division (the primary judge) in proceedings originally brought by Burrell Solicitors in the Equity Division (the Liability Proceedings). The claims made by Burrell Solicitors in the Liability Proceedings were eventually discontinued. However, in a cross-claim, the Champion parties claimed that they suffered loss and damage as a consequence of misleading and deceptive conduct engaged in by Burrell Solicitors and Mr John Burrell (together the Burrell parties). Mr Champion is the principal of Champions Quarry. Mr and Mrs Champion are together the principals of Reavill Farm. Mr Burrell, a solicitor, is the principal of Burrell Solicitors.
The Champion parties sought damages from the Burrell parties in connection with the provision of costs estimates given to the Champion parties in relation to in two sets of proceedings in the L&E Court (the L&E Court proceedings). The primary judge held that the conduct of the Burrell parties about which the Champion parties complained contravened the Legal Profession Act 2004 (NSW) (the Legal Profession Act), and was misleading and deceptive in contravention of the Fair Trading Act 1987 (NSW) (the Fair Trading Act) and the Trade Practices Act 1974 (Cth) (the Trade Practices Act), and the Australian Consumer Law (the ACL), to the extent that the conduct continued past 1 January 2011. However, his Honour concluded that no loss or damage was suffered by the Champion parties as a consequence of the conduct.
A costs assessor determined under the Legal Profession Act that the Champion parties were liable to pay Burrell Solicitors sums of $185,400.86 for counsel's fees and $345,832.37 for professional costs and other disbursements in connection with the L&E Court proceedings. On appeal from the costs assessor's determinations the Costs Review Panel confirmed the determinations by the costs assessor. The second appeal (the Costs Appeal) is brought by the Champion parties from the costs determinations in favour of Burrell Solicitors made by the Costs Review Panel. The Costs Appeal was originally brought in the District Court but was removed into this Court by consent in order to ensure that all issues between the same parties be resolved as efficiently as possible.

The Proposed Development

Prior to 2008, Champions Quarry had been granted development consent by Lismore City Council (the Council) for the extraction or production of sandstone from a quarry on its land. The land surrounding the quarry is used primarily for agricultural and rural purposes, being cattle grazing, pasture production and some cropping. There are also several rural dwellings on smaller allotments within close proximity to the quarry.
In May 2008, Champions Quarry submitted Development Application 2008/233 to the Council seeking development consent to expand the existing sandstone quarry (the Quarry Expansion DA). The Quarry Expansion DA was supported by an environmental impact statement (the 2008 EIS). The Champion parties retained Environmental Resources Management Australia (ERM) as its principal consultant for preparation of the 2008 EIS as well as a revised EIS.
On 10 February 2009, the Council refused the Quarry Expansion DA. In the Council's notice to Champions Quarry, it gave 11 grounds for refusing the Quarry Expansion DA, which may be summarised as follows:
The development does not comply with the prescribed buffers and will create land use conflicts.
The development is inconsistent with the relevant zone objectives.
The traffic impacts are very significant and will have an unacceptable impact on the road network over the life of the quarry.
The development will generate unacceptable levels of noise and there is no consideration of the noise and vibration impacts on nearby fauna.
The development will generate unacceptable levels of dust that pose health risks to adjoining residences and fauna.
The development may have impacts on flora and fauna and there has been insufficient investigation to determine the level of impact.
The development will have unacceptable impacts on water systems and soil stability and there is an inadequate rehabilitation plan.
Visual impacts will be significant and unacceptable.
The development may negatively impact on aboriginal sites of archaeological and cultural significance.
The application does not address the economic impacts on eco tourist businesses.
The development cannot be held to comply with the public interest.
On 6 April 2009, Reavill Farm and another company controlled by Mr Champion submitted an application for the approval, by the Minister for Planning (the Minister) pursuant to Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act), of the expansion of the quarry (the Part 3A Application). [1] Part 3A applies to the carrying out of development that is declared under s 75B of the Planning Act to be a project to which Part 3A applies. Under s 75B(2) the kinds of development that may be declared to be a project to which Part 3A applies include major infrastructure or other development that, in the opinion of the Minister, is of State or regional environmental planning significance. Section 75D of the Planning Act then provides that a person is not to carry out development that is a project to which Part 3A applies unless the Minister has approved of the carrying out of the project under Part 3A. Under s 75E, an application for approval must describe the project and contain any other material required by the Director-General. Section 75F contemplates that the Minister may publish guidelines with respect to environmental assessment requirements for the purpose of the Minister approving projects under Part 3A. Section 75H requires a proponent to submit to the Director-General the environmental assessment required under those provisions for approval to carry out the project. The Director-General may require a proponent to submit a revised environmental assessment to address matters notified to the proponent. The Part 3A Application was supported by an environmental assessment report (the 3A Environmental Report) prepared by ERM.
The expansion that was proposed in the Part 3A Application differed in several respects from the expansion that was proposed in the Quarry Expansion DA. As will become apparent, some significance is attached to the difference between the proposals that were the subject of the Quarry Expansion DA, on the one hand, and the proposals that were the subject of the Part 3A Application, on the other hand.
The Quarry Expansion DA sought consent to expand the existing sandstone quarry to increase the annual rate of extraction of sandstone from 29,000 cubic metres per annum, being approximately 64,000 tonnes per annum, to an average of 200,000 tonnes per annum, up to a maximum of 5 million tonnes for the 25 year life of the quarry. It also involved a boundary adjustment of six existing rural allotments. The 2008 EIS stated that the quarry would operate in a hierarchical manner, providing a 40 hectare operational area in which there would be three extraction areas. The proposal included a northern extraction area, to the north of the existing quarry, as well as a southern extraction area.
The initial Part 3A Application submitted in April 2009 sought approval for expansion of the existing quarry to allow for extraction and processing of 250,000 tonnes per annum, together with a boundary adjustment and re-subdivision. The Part 3A Application stated that the existing quarry had approval allowing for extraction of up to 29,000 cubic metres (64,000 tonnes) per annum from a total approved resource of 130,000 cubic metres. It stated that a significant resource of approximately 12 million tonnes had been identified on land owned by the proponents, of which it was proposed to extract 6.25 million tonnes at the rate of 250,000 tonnes per year, over a 25 year period. It was also proposed to expand the materials processing capacity of the quarry to accommodate that increased extraction rate. The increased expansion was to occur primarily in a new extraction area to the south of the existing quarry and the existing quarry pit was to become a processing area to allow for a sand washing plant and the establishment of materials storage and processing facilities, plant, storage and maintenance facilities and a building containing an office and staff amenities.

The L&E Court Proceedings

The Champion parties approached Burrell Solicitors in connection with a proposed appeal to the L&E Court from the refusal of the Quarry Expansion DA. On 2 February 2010, Mr Burrell wrote to the Champion parties as principal and director of Burrell Solicitors, noting that Burrell Solicitors was instructed to carry out work as follows:

commence and conduct proceedings in the L&E Court;
assist in any negotiations with the Council;
liaise as instructed with the Department of Planning (the Department);
advise generally;
engage counsel as instructed; and
liaise with Mr Michael Young, a solicitor based in Ballina who helped with aspects of the relevant development application.

In his letter, Mr Burrell estimated that Burrell Solicitors' professional fees, excluding disbursements, could range between $8,500 and $10,500 plus GST, assuming a hearing of three days. That figure did not include barrister's fees. The letter said that Mr Burrell would appear as advocate and that no barrister was required unless a complex issue of law or fact arose, or Mr Champion instructed otherwise, at which time Mr Burrell would advise of the estimated fees of the barrister. The letter also said that actual costs could exceed the estimate if the scope of the matter or its complexity increased for reasons outside the present knowledge or control of Burrell Solicitors. Mr Burrell said that $2,610 for any extra day of hearing should be allowed and that $1,000 should be allowed for disbursements.
Mr Burrell's letter said that the estimate did not include any filing fees or witness costs and that expert witnesses could include a surveyor and environmental consultant. The letter set out an hourly rate for Mr Burrell as principal of Burrell Solicitors and for an employed solicitor or associate. The letter said that the estimate was only a broad one and not a firm price.
On 2 February 2010, the Champion parties retained Burrell Solicitors to commence and conduct proceedings in the L&E Court by way of appeal against the refusal by the Council of the Quarry Expansion DA. Pursuant to that retainer, proceedings were commenced in the L&E Court on 9 February 2010 in respect of the refusal by the Council of the Quarry Expansion DA (the Quarry Expansion proceedings).
Before late 2008, Reavill Farm began constructing a number of earth mounds near the existing quarry in the vicinity of a neighbouring property owned by Mr and Mrs Woolleys. Initially, two earthen bunds were constructed on the land belonging to Champions Quarry between Mr and Mrs Woolleys' residence and the quarry. Without development consent, Champions Quarry caused an additional bund to be constructed between the two existing earthen bunds to address acoustic impact from noise caused by the quarry directed towards Mr and Mrs Woolleys' residence. In late 2008, the Council's officers instructed Champions Quarry to cease work with respect to the construction of the earth mounds in the vicinity of Mr and Mrs Woolleys' property.
On 18 March 2010, Reavill Farm and Mr and Mrs Champion retained Burrell Solicitors to commence and conduct an appeal in the L&E Court (the Woolley Bund proceedings) against the deemed refusal by the Council of Development Application 2005/999 under s 96 of the Planning Act. The application sought a modification of the conditions of the existing development consent in order to obtain retrospective approval for the erection of the earth and noise barrier near Mr and Mrs Woolleys' residence (the Woolley Bund DA).
On 18 March 2010, Burrell Solicitors wrote to Mr and Mrs Champion and Reavill Farm confirming instructions to commence and conduct the Woolley Bund proceedings, to assist in any negotiations with the Council, to advise generally and to engage counsel as instructed. Burrell Solicitors estimated that its professional fees would be between $4,500 and $6,500 plus GST, assuming a one day hearing. The estimate did not include barrister's fees. Burrell Solicitors said that Mr Burrell would appear as advocate and that no barrister would be required unless a complex issue of law or fact arose. The letter said that actual costs could exceed the estimate if the scope of the matter or its complexity increased for reasons outside the present knowledge or control of Burrell Solicitors. The letter said that an additional $2,610 should be allowed for any extra day of hearing and stated that the sum of $200 to $500 should be allowed for disbursements, which did not include filing fees or witness costs. The letter said that expert witnesses could include a surveyor and an environmental consultant.
Shortly after 15 March 2010, Mr Tim Robertson SC was briefed by Burrell Solicitors on behalf of Champions Quarry and Reavill Farm. On 25 March 2010 Mr Robertson provided a proposed costs agreement giving an estimate of costs of $84,000 plus GST, assuming a "six day case for the s 34 conference and no junior".
The reference to a "s 34 conference" was a reference to s 34 of the Land and Environment Court Act 1979 (NSW) (the L&E Court Act), which provides that, if proceedings such as the L&E Court proceedings are pending, the L&E Court Act may arrange a conciliation conference between the parties, presided over by a single commissioner of the L&E Court. If agreement is not reached, the parties can consent to the commissioner's disposing of the proceedings following a hearing, whether held forthwith or later, or, with the consent of the parties, on the basis of what has occurred at the conciliation conference. Otherwise, if the parties do not consent to the commissioner's disposing of the proceedings, the commissioner is required to make a report to the L&E Court, stating that the conciliation conference has been terminated and setting out what, in the commissioner's view, are the issues in dispute between the parties. In the events that happened, a s 34 conference was proposed but subsequently abandoned. That matter is referred to below.
On 25 March 2010, Burrell Solicitors issued invoices to the Champion parties in respect of the L&E Court proceedings. The sum of $6,476.15 was charged in respect of the Quarry Expansion proceedings and $1,667.98 in respect of the Woolley Bund proceedings. [2] The invoices covered work by Burrell Solicitors up to 23 March 2010. It is significant that Burrell Solicitors had charged preparation costs for the Quarry Expansion proceedings of over $6,000 as at 23 March 2010 whereas its estimate allowed only the equivalent of one day's preparation of less than $3,000 costs for the whole case. No complaint was made by the Champion parties at that time.
On 26 March 2010, Mr Burrell forwarded Mr Robertson's costs agreement to Mr Champion, seeking his undertaking, on behalf of Champions Quarry, himself personally and Reavill Farm, that Mr Robertson's invoices would be paid promptly and that sufficient money would be given to Burrell Solicitors in advance to be held in trust to cover the costs of any s 34 conference or hearing. The primary judge found that Mr Champion was advised by Mr Burrell that both sets of proceedings were likely to take six days, as estimated by Mr Robertson. His Honour considered that that was a reasonable estimate at that time. No revised estimate was provided. Mr Champion informed Mr Burrell that he could not pay the costs estimated by Mr Robertson until he sold two home units.
In late March or early April 2010, Mr Burrell and Mr Champion reached an oral understanding to the effect that the Champion parties would pay Burrell Solicitors at least $10,000 per month on account of solicitor's fees, disbursements and out-of-pocket expenses plus all amounts invoiced by Mr Robertson for his fees. On 8 April 2010, Mr Champion told Mr Burrell in a telephone conversation that he was expecting to spend at least $120,000 in legal fees. The primary judge found that, in April 2010, Mr Champion assumed that the total costs for both of the L&E Court proceedings could be in the order of $120,000 to $150,000. Thus, it is clear that, by that time, Mr Champion knew that the estimates provided by Mr Burrell were hopelessly inadequate.
On 13 April 2010, the Council considered the application in relation to the Woolley Bund DA and determined to refuse the application. The Council also considered the question of s 94 contributions in the context of the Part 3A Application. Section 94 of the Planning Act permitted the Council to impose conditions on any consent to the expansion of the quarry, including conditions that required the Champions Quarry to pay to the Council contributions for the damage to roads caused by additional trucks.
On 19 April 2010, the Council wrote to the Department of Planning objecting to the proposal contained in the Part 3A Application and urging the Minister to refuse the Part 3A Application. The Council furnished 11 reasons in support of its opposition, which were identical to the reasons given by the Council in its notice of refusal of the Quarry Expansion DA.
In its letter of 19 April 2010 to the Minister, the Council also disputed the method of calculation utilised to determine contributions under s 94 of the Planning Act. In its letter, the Council referred to the formula used by it to calculate the contribution for heavy haulage, of $369,000 per kilometre, was based on the Council having to reconstruct the pavement at the end of its design life to ensure that an adequate pavement for the expected traffic was maintained in the future. The Council asserted that its costing incorporated the whole of the cost of replacing the road pavement due to damage occurring over the relevant time associated with heavy vehicle movements. The Council disputed the $50,000 costing used by Champions Quarry as the appropriate amount because it failed to account for the loss of pavement life and the associated cost of maintaining the pavement over the long term.
The Council submitted to the Department that, if the L&E Court granted consent, by upholding the appeal in the Quarry Expansion proceedings, and the Department also granted approval of the Part 3A Application, the Champion parties should not be permitted a choice of consents applying to the same land and activity. The Council indicated to the Department that it would provide copies of any revised conditions of consent to be submitted to the L&E Court as part of the Quarry Expansion proceedings.
The Council's letter of 19 April 2010 referred to the Woolley bund, saying that the developer had undertaken works on the land that were the subject of the Part 3A Application otherwise than in accordance with the approval given by the Council and had erected an earth bund in an incorrect position. The Council referred to the application lodged to amend the Woolley Bund DA such that it conformed to the construction works. The Council said that the bund formed an integral part of the noise attenuation measures proposed for the major project and submitted that because of the prospective operation of the relevant provisions of the Planning Act, the Minister did not have the power to approve retrospectively works that had been unlawfully constructed.
On 21 April 2010, Mr Robertson advised that the 3A Environmental Report had to be brought into the Quarry Expansion proceedings and that that would require the Quarry Expansion proceedings to be "revamped". He expressed the view that the case would be lost unless a noise reduction strategy could be found and that they were going "headlong into this case with nothing on the table for structured noise attenuation".
Further invoices were issued by Burrell Solicitors on 29 May 2010 and 2 July 2010 for their professional costs and further invoices were issued for disbursements each month to the end of December 2010. The invoice of 29 May 2010 was for $14,756.01 [3] and was rendered in respect of the Woolley Bund proceedings. It covered the period from 23 March 2010 to 30 April 2010. Two invoices were rendered on 2 July 2010 in respect of the Woolley Bund proceedings. The first was for $22,462.37 for professional costs and disbursements. It covered the period from 31 March 2010 to 22 June 2010. A further invoice of $7,986 was rendered on 2 July 2010 for Mr Burrell's attendance at the L&E Court on 23 and 24 June 2010 in connection with the Woolley Bund proceedings. No objection was raised by the Champion parties to the invoices in question. No further invoices, other than for counsel's fees and disbursements, were provided from 2 July 2010 until January 2011. No updated estimate of costs was provided by Burrell Solicitors.
On 21 April 2010, Mr Burrell had a telephone conference call with representatives of the Council concerning the conduct of the proposed s 34 conference. They all agreed that the hearing would take three to four days. On the same day, Mr Burrell telephoned Mr Champion and confirmed instructions for ERM to proceed with extra work on noise abatement. Mr Champion requested that Mr Burrell include more on the rehabilitation plans. Mr Will Weir of ERM recommended that further materials be prepared and filed on visual mitigation issues.
On 22 April 2010, Mr Burrell spoke to a representative of the Council who agreed to allow the Champion parties to file an amended noise report and a quarry management plan. They agreed on a timetable and hearing dates of 24 and 25 June 2010. On the same day, a representative of the Council sent an email to Mr Burrell setting out the timetable and directions they had discussed, adding two additional fields where expert evidence was to be given, being air quality and planning, in addition to aboriginal heritage, visual and acoustic. Mr Champion also spoke to Mr Burrell by telephone informing him that the Council had requested access to the quarry land, indicating that flora and fauna was now an issue as well as the issues earlier identified. By consent the s 34 conference was set down to be held on 19 and 20 May 2010.
On 23 April 2010, the Council provided a further submission to the Department in respect of the Part 3A Application. The Council referred to the current Quarry Expansion proceedings in the L&E Court, which had been set down for a s 34 conference commencing on 19 May 2010. The Council said that if the L&E Court granted consent, it was likely that draft conditions that had been provided to the Department would be varied to address the views of the relevant experts, which may change from that which had been provided in the Council's earlier submissions. The Council then said that, if the L&E Court granted consent and the Department also granted consent, the Council wished to ensure clarity on the preferred consent under which the future quarry operations would be undertaken. The Council said that it was important that the conditions of consent for both applications, if approved, should be consistent and that the proponent should not be able to operate under a choice of consent that applied to the same land and activity being undertaken. The Council said that it would provide the Department with copies of any revised conditions of consent submitted to the L&E Court.
On 23 April 2010, Mr Burrell reviewed the visual impact assessments in respect of the Quarry Expansion DA and the Part 3A Application. He spoke to Mr Champion, who instructed him "to offer to drop the northern zone". Mr Champion confirmed that by email. Mr Burrell then had without prejudice discussions with a representative of the Council concerning the issue of costs if the Quarry Expansion DA was amended to delete the northern extraction area.
On 24 April 2010, Mr Burrell sent an email to the Council's representative "to formally put you on notice of our position". Mr Burrell said that some of the environmental assessment undertaken for and included in the 2008 EIS had been extended and elaborated on during the course of the Part 3A Application. He said that that applied not only to noise assessment but also ecology and other areas and that many of the EIS reports from April and May 2008 had been revamped and re-issued for the Part 3A Application dated November or December 2009. He said that the mitigation and management measures had been further developed and that the Champion parties wished to rely on that further work. The email then said that, although the Part 3A Application does not include the northern section, the further work and detail referred to was immediately apparent on comparing the two and that the Council was aware of the differences. He said that, in his assessment, the differences were relatively minor and did not present any significant change to the proposals. He said that they proposed to file and serve the material from the Part 3A Application and to rely on the reports it contained for the purpose of the L&E Court proceedings.
On 26 April 2010, Mr Burrell and Mr Champion had a telephone discussion in which Mr Champion said that the 2008 EIS splits the tonnages and volumes between the zones whereas the Part 3A Application does not. He said that, if they dropped the northern zone, they could still seek consent for 200,000 tonnes and that there was plenty of material in the southern pit. On the same day, Mr Champion sent an email to Mr Burrell saying that, if they were deleting the northern section, they needed to amend the amount for the southern section from 2.7 million tonnes to include what was being deleted from the northern section, being 1.862 million tonnes, giving 4.562 million tonnes total in the southern section. In a later email on the same day, Mr Champion said he had undertaken a comparison of the Quarry Expansion DA and the Pt 3A Application in connection with considering the proposal to delete the northern section from the Quarry Expansion proceedings, having regard to the different areas of the land that were the subject of the proposed quarry expansion in the Quarry Expansion DA and the Part 3A Application.
On 27 April 2010, Mr Burrell told Mr Champion that his fees were unknown but could be two or three times higher than the original estimates. On the same day, the Council's solicitors sent an email to Mr Burrell pointing out that the Quarry Expansion proceedings in the L&E Court were concerned with the Quarry Expansion DA and not the Part 3A Application, and saying that leave of the L&E Court would be required if the Champion parties wished to rely on information that did not form part of the Quarry Expansion DA.
On the following day, the Council's solicitors indicated in a telephone call to Mr Burrell, on a without prejudice basis, that, if the Champion parties wished to amend the Quarry Expansion DA, so as to bring it into alignment with the Part 3A Application, Council would not oppose the amendment provided its costs were paid under s 97B of the Planning Act. On the same day, Mr Robertson advised that all of the reports should be updated to bring the Quarry Expansion DA into line with the Part 3A Application. He also observed that s 34 does not cater for a contentious and fully contested matter because there was no transcript and no cross-examination. Mr Burrell relayed Mr Robertson's comments to Mr Champion.
On 29 April 2010, Mr Burrell sent an email to the Council's solicitors in response to their email of 27 April 2010. Mr Burrell said that s 39(3) of the L&E Court Act provided that fresh evidence or evidence in addition to or in substitution for the evidence given on the making of the decision may be given on the appeal. Mr Burrell said that the Council had had the Part 3A Application reports for some time and no allegation of prejudice had been raised about there being any material difference between the Part 3A Application reports and the Quarry Expansion DA reports.
Mr Burrell made a note of a telephone conversation with Mr Champion on 29 April 2010 recording that Mr Champion said that he had thought about it overnight and decided that, if Mr Robertson was not able to perform at his best and achieve the best outcome through a binding s 34 conference, he, Mr Champion, wanted to have a full adversarial hearing with cross-examination. Mr Champion did not accept that that file note was a true record of the conversation.
On 4 May 2010, the dates of 19 and 20 May 2010 for the s 34 conference in relation to the Quarry Expansion proceedings were vacated. The dates of 21 to 25 June 2010 were substituted. The vacation of the dates was caused by the failure of the Council to give 28 days' notice to objectors.
On the same day, Mr Robertson sent an email to Mr Burrell, which was copied to Mr Champion, in which Mr Robertson expressed surprise that the matter had been set down for hearing without first retaining an anthropologist. He also said that a s 34 conference was not appropriate for hostile cross-examination, which would be necessary if he were to challenge anthropological evidence without an expert. Mr Robertson also expressed concern that the Champion parties had not prepared a document that set out how it was proposed to integrate the reports and design in relation to the Part 3A Application with the Quarry Expansion DA if that was to be done. He said that the Champion parties would not be permitted to depart from the case advanced by and the information contained in the 2008 EIS. He said that, if it were necessary to depart from the 2008 EIS, the Champion parties would pay a heavy price in costs and delays.
On 5 May 2010, Mr Champion made a record in his diary as follows: Rebadge [3A Environmental Report] to statements of evidence re EIS and delete any ref to [3A Environmental Report] Part 3A. That appears to be a reference to adapting the 3A Environmental Report as a substitute for the 2008 EIS.
Mr Champion accepted that he reviewed draft reports from the experts as they were provided to him. On 14 May 2010, he was sent a series of emails enclosing draft reports in various disciplines. On 18 May 2010, Mr Burrell caused reports from various experts to be filed in the registry of the L&E Court and to be served on the Council's solicitors.
On 19 May 2010, Mr Burrell, Mr Robertson and Mr Champion spent the day mainly on the quarry land. Afterwards, Mr Robertson told Mr Burrell that, having seen the site and the latest report, in his opinion the Quarry Expansion DA as lodged and assessed by the Council was so lacking in detail that it could not possibly have been properly assessed and approved. Mr Burrell spoke to Mr Champion by telephone and relayed to him the opinion expressed by Mr Robertson.
On 20 May 2010, the solicitors for the Council wrote to Burrell Solicitors concerning the reports that had been served on 18 May 2010. The letter said that a preliminary review of the additional documentation indicated that the Champion parties were now proposing to amend the Quarry Expansion DA to include, among other matters, a further dam, a third haulage route and provision for bio-diversity offsets. The letter said that the updated management plan indicated a change in the staging of the development, with quarrying now proposed to occur within the northern cell between eight to 15 years from commencement. The letter asserted that, in many of the reports, it was unclear precisely what amendments had been made.
The letter of 20 May 2010 said that, should the Champion parties seek to amend the Quarry Expansion DA, there may be costs implications under s 97B of the Planning Act and that re-notification of the proposal may also be required, which would place the existing hearing dates in jeopardy. The letter said that, in the circumstances, the matter may no longer be appropriate for a s 34 conference. The letter also said that it was now considered necessary for the Council to prepare expert witness reports and that steps would shortly be taken to have the matter relisted for further directions, including the listing of the matter for case management. The letter said that the Council's solicitors proposed to serve a draft statement of facts and contentions, which would not make reference to the additional information served on behalf of the Champion parties.
On 21 May 2010, Burrell Solicitors sent to Mr Champion by email a copy of the letter of 20 May 2010 from the Council's solicitors. Mr Burrell suggested a telephone conference with Mr Robertson to discuss the matter. On the same day, Mr Burrell spoke to Mr Champion by telephone. Mr Champion said that he wanted Mr Burrell to revert back to the original proposal and "pull" any suggested amendment of deleting the northern zone. Mr Burrell said that the northern extraction area could not be deleted at that juncture without being penalised with a costs order.
On 25 May 2010, Mr Burrell sent an email to Mr Champion, informing him that he was meeting with Mr Robertson on the following day. He listed the matters that he intended to discuss with Mr Robertson. The matters included the following:

update on anthropologist's report;
response to alleged amendments to the Quarry Expansion DA;
whether changes such as advising of a possible third road route changes the Quarry Expansion DA and requires re-notification;
the status of the evidence that the Council's representatives claim the Court's leave is needed to rely on;
Council's refusal to consider a response to the Champion parties' updated reports; and
the Council's statement of facts and contentions and the response to that statement.

On 26 May 2010, Mr Burrell spoke to Mr Champion by telephone about discussions that he had with Mr Robertson. Mr Burrell said that both he and Mr Robertson were of the opinion that the Quarry Expansion DA was not a fully conceived proposal when it had been assessed and determined by the Council and that, in order to conduct the Quarry Expansion proceedings in the L&E Court, it would be necessary to amend parts of the Quarry Expansion DA. He said that the consequence of making such amendments was that the Champion partiers would have to pay costs to the Council. He advised that Mr Champion had four options, being:

Discontinue the Quarry Expansion proceedings immediately, in which event the Champion parties would only be liable to pay the Council's legal costs to the date of discontinuance.
Formally amend the Quarry Expansion DA and be liable for costs thrown away which would not be limited to legal costs but would include costs dating back to when the Quarry Expansion DA was first lodged.
Continue on with the s 34 conference without making any application to amend, which would involve relying on updated reports and whatever additional evidence that the L&E Court would allow.
Pay an amount to the Council to obtain its consent to the amendments and to persuade the Council to cease its opposition to the additional evidence proposed on behalf of the Champion parties.

On the following day, 27 May 2010, Mr Burrell asked Mr Champion about s 94 contributions and said that going against a contribution plan would not be something that would ordinarily occur in a s 34 conference, where the parties were supposed to be making a genuine attempt to settle outstanding issues through conciliation. Mr Champion said he would think about the road contributions and would come back to Mr Burrell.
On 27 May 2010, Mr Champion informed Mr Burrell that he had considered the four options and had chosen the fourth. As Mr Robertson had advised, it was necessary for the amendments to incorporate the 3A Environmental Report.
On 3 June 2010, the L&E Court vacated the s 34 conciliation conference. Both of the L&E Court proceedings were listed for separate, fully contested hearings. The Woolley Bund proceedings were set down for hearing on 23 and 24 June 2010 and the Quarry Expansion proceedings were set down for hearing on 11 to 15 October 2010.
The primary judge accepted that the Quarry Expansion proceedings assumed a much greater dimension than Mr Burrell had contemplated. The Champion parties contend that this Court should draw the inference that, if at the time of abandonment of the s 34 conciliation procedure they been given an accurate estimate of the costs likely to be incurred by continuing with the Quarry Expansion proceedings, they would have abandoned the Quarry Expansion proceedings in the L&E Court and would have pursued the Part 3A Application only.
As at 3 June 2010, or shortly thereafter, the Champion parties had received invoices from Burrell Solicitors, Mr Robertson and ERM for amounts totalling $114,945.25. In addition, as at 7 July 2010, Champion parties had received additional invoices from Burrell Solicitors, Mr Robertson and ERM for amounts totalling $97,244.31.
On 22 June 2010, Mr Burrell informed Mr Champion in writing that, as a guide, the costs of the Woolley Bund proceedings would come to $30,000, allowing for a two-day hearing plus counsel's fees estimated to be $30,000. He told Mr Champion that Mr Champion's guess of $60,000 to $80,000 was "in the ball park". His Honour found that the Champion parties were told in June that costs had blown out beyond Mr Champion's budget of about $120,000. However, they were not given an indication of what level of costs were being incurred or what level of costs had been incurred
The Woolley Bund proceedings were heard on 23 and 24 June 2010 and the hearing was adjourned to 27 July 2010. The adjournment was necessitated because, during the course of preparatory activities for the hearing and during the hearing itself, the plan for the proposed modification to the Woolley bund was revised and further work was required to be undertaken by acoustic experts. The hearing was concluded on 27 July 2010 and, on 3 August 2010, Senior Commissioner Moore dismissed the Woolley Bund proceedings on the ground that the L&E Court did not have jurisdiction, because the modified development proposed would not be substantially the same as that for which approval had already been given.

The Liability Proceedings

The Liability Proceedings were originally commenced by Burrell Solicitors making a claim against the Champion parties. That claim was ultimately discontinued. However, the Champion parties filed a cross-claim against the Burrell parties claiming damages in respect of contraventions of the Trade Practices Act and the Fair Trading Act.
The allegations made in the further amended statement of cross-claim filed on behalf of the Champion parties (the Statement of Cross-Claim) may relevantly be re-stated as follows:
By agreements dated 2 February 2010 and 18 March 2010, the Champion parties retained Burrell Solicitors to: (a) commence and conduct the Quarry Expansion proceedings; and (b) commence and conduct the Woolley Bund proceedings.
It was a term of the said retainer (the Retainer) that Burrell Solicitors would use alI due skill, care and diligence in advising on the costs of the proceedings and would make all due inquiry to ensure that the costs estimates provided were as accurate as possible.
Burrell Solicitors owed to the Champion parties a duty to use all due skill, care and diligence in advising on the costs of the L&E Court proceedings and to ensure that the costs estimates provided were as accurate as possible.
Pursuant to the Retainer, Burrell Solicitors agreed to commence and conduct the L&E Court proceedings on behalf of the Champion parties and provided estimates of amounts for reports by a surveyor and environmental consultant in respect of the Quarry Expansion proceedings and in respect of the Woolley Bund proceedings.
At the time when these estimates were provided, Burrell Solicitors knew or ought to have known that they were not an accurate estimate of the costs of L&E Court proceedings.
The estimates provided were in breach of the Retainer and in breach of the duty referred to in 8 above.
In reliance on the estimates provided, the Champion parties instructed Burrell Solicitors to commence and conduct the L&E Court proceedings.
Burrell Solicitors knew or ought to have known that the Champion parties were relying on the costs estimates.
In further breach of the Retainer, Burrell Solicitors failed: (a) to provide the Champion parties with updated costs estimates; (b) to respond to requests by Champion parties for the timely rendering of fee invoices; (c) to provide the Champion parties with invoices in a timely manner, between 29 April 2010 and 31 December 2010; (d) to act in accordance with instructions given orally by Mr Champion on behalf of the Champion parties to take steps to terminate the proceedings.
By reason of the breaches referred to above, the Champion parties were deprived of the opportunity to make an informed decision on an ongoing basis as to whether to continue the Quarry Expansion proceedings and to make an informed decision as to whether to continue the Woolley Bund proceedings.
By reason of the matters alleged above, the Champion parties have suffered loss and damage.
In their defence, Burrell Solicitors and Mr Burrell admitted that Burrell Solicitors understood that, in relation to the Quarry Expansion proceedings, the Champion parties were relying upon the estimate as at 2 February 2010, subject to the qualifications contained in that estimate and that, in relation to the Woolley Bund proceedings, they were relying upon the estimate as at 18 March 2010, subject to the qualifications contained in that estimate.
The Champion parties alleged that they incurred costs in a sum in excess of $1.5 million and that costs of approximately $630,000 were incurred after 23 December 2010, being the date on which Mr Champion instructed Burrell Solicitors to pursue an opportunity to terminate the proceedings. They claimed that they suffered loss and damage to that extent because the costs incurred were of no value to them.

Conclusions of the primary judge

The primary judge concluded that there was not a reasonable basis for the costs estimates when they were provided to the Champion parties by Burrell Solicitors. Specifically, his Honour did not consider that Mr Burrell had a reasonable basis for the estimates that he made for the costs of the Quarry Expansion proceedings he set out in his letter of 2 February 2010. His Honour did not see how Mr Burrell could have believed that he could conduct the Quarry Expansion proceedings for a three day hearing at the cost he estimated on the basis of the hourly rates he proposed to charge. His Honour was satisfied that Mr Burrell did not believe that the matter would be completed after a three day hearing for a cost within the range he estimated.
Indeed, the primary judge found that, in February 2010, Burrell Solicitors was under financial pressure. Mr Burrell said that his tax debt had increased during 2010 to 2012 but that it had started "to bite" in 2010. His Honour considered that that provided a motivation for Mr Burrell to under-quote to attract the Champion parties as clients and his Honour was satisfied that that is what happened. His Honour also found that Mr Burrell did not attempt to identify a reasonable basis for his estimate of $4,500 to $6,500 plus GST on the basis that he would act as solicitor advocate in the Woolley Bund proceedings. His Honour concluded that there was none and that Mr Burrell was aware that that was not a reasonable estimate.
The primary judge held that the continued failure on the part of Burrell Solicitors to provide a fresh, reasonable estimate, when it was under a duty to do so, was a breach of contract and was misleading and deceptive conduct by omission. His Honour also held that that conduct induced, in the Champion parties, an incorrect assumption as to the likely legal costs of the L&E Court proceedings and that that incorrect assumption would have been corrected if fresh estimates, based on reasonable grounds, had been provided.
Mr Champion gave evidence that, shortly after 26 March 2010, Mr Burrell began talking about bringing in other experts. Mr Champion said that he allowed up to an extra $30,000 in his own mind as to the likely costs, being a total of about $150,000 inclusive of all legal costs and expert witnesses. He said that he proceeded on the basis that the total anticipated cost was approximately $120,000 and that at the most he might have expected to pay $150,000. The primary judge considered that an estimate of $120,000 to $150,000 for both proceedings would not have been unreasonable as at April 2010. However, his Honour referred to no evidence that supported a finding that such an amount would not have been unreasonable.
On 27 April 2010 Mr Burrell told Mr Champion that his fees were unknown but would be two or three times higher than the estimate. The primary judge did not consider that to say that the costs were, or could be, two or three times higher than the original estimate provided a proper estimate, as at the end of April 2010, of likely costs. By that time, his Honour said, it was apparent that the litigation would be substantial. His Honour held that Mr Burrell's statement on 27 April 2010 that the costs could be two or three times more than he had previously estimated was itself an unreasonable assessment.
The primary judge found that at the latest, from the time when Mr Champion made his own estimate of $120,000 to $150,000, Mr Champion was not placing any continued reliance on Mr Burrell's initial estimates. Further, his Honour was satisfied that, if reasonable estimates of the likely costs of both sets of proceedings had been given, the Champion parties would still have embarked upon the L&E Court proceedings. His Honour considered that that appeared from the events that followed and that, shortly after 18 March 2010, it must have been clear to the Champion parties that the estimates were hopelessly wrong, yet they continued with the litigation and the Retainer of Burrell Solicitors.
The primary judge concluded, in effect, that, although the Champion parties suffered financial loss as a result of the L&E Court proceedings, that loss was not caused by the initial unreasonable estimates of costs or the subsequent failure to provide updated reasonable estimates. His Honour considered that the Champion parties would have proceeded even if reasonable costs estimates were provided.
The primary judge referred to the contention on behalf of the Champion parties that Mr Burrell deprived them of the opportunity of discontinuing the Quarry Expansion proceedings on the basis of an agreement with the Council that there be no order as to costs or that costs be agreed in a reasonable amount. His Honour considered that there was no evidence that the Council would have been prepared to settle on terms that Mr Champion would have been prepared to accept. His Honour considered that the contemporaneous documents showed that Mr Champion was not prepared to settle the Quarry Expansion proceedings in the absence of a decision on the Part 3A Application and that he regarded the resumed hearing in January 2011 on the s 94 contributions issue as an important matter that he wanted resolved.
The primary judge found that a great deal of the costs of the L&E Court proceedings was incurred in obtaining expert reports from some 20 consultants, the majority of whom provided reports in their areas of expertise for use in both the Quarry Expansion proceedings and the Part 3A Application and, in some cases, also in the Woolley Bund proceedings. From about February 2010 until the completion of the Quarry Expansion proceedings, the 20 or so consultants who had been retained by the Champion parties were doing work in respect of the Quarry Expansion proceedings and the Woolley Bund proceedings as well as the Part 3A Application. While the tasks of the consultants were always separated, in most cases, consultants provided services in respect of each of the Part 3A Application, the Quarry Expansion proceedings and the Woolley Bund proceedings. His Honour held that, from 23 April 2010 at latest, the Quarry Expansion proceedings, and not the Part 3A Application, became the principal focus of the consideration of expert evidence, factual issues and legal submissions relevant to whether approval should be granted for the expanded quarry and, if so, on what conditions.
Between 26 March 2010 and 24 June 2011, ERM rendered accounts in respect of the L&E Court proceedings totalling $424,033.56. It also rendered accounts between 23 February 2010 and 23 September 2011 in connection with the Part 3A Application, totalling $126,299.43. The primary judge found that expert analysis was being substantially performed and invoiced in the Quarry Expansion proceedings, rather than the Part 3A Application. ERM sought and obtained submissions made by Mr Robertson in the L&E Court proceedings for use in connection with the Part 3A Application.
The primary judge held that the same issues that arose in the Quarry Expansion proceedings needed to be addressed for the purposes of the Part 3A Application. Those issues covered areas including aboriginal heritage, air quality, landscaping and visual impact, noise, quarry management, roads and traffic, soil and water and town planning. His Honour therefore did not consider that the work done by ERM in the Quarry Expansion proceedings was wholly wasted, notwithstanding that the Champion parties failed in the Quarry Expansion proceedings.
The primary judge also considered that, if the Champion parties had established that the misleading conduct of Burrell Solicitors and the breaches of contract found by him caused them to incur the continuing expenses of the Quarry Expansion proceedings, it would still have been incumbent upon the Champion parties to show to what extent those expenses were wasted. His Honour concluded that the work done, not only by the experts retained in the Quarry Expansion proceedings but also by Mr Burrell and Mr Robertson, was not without benefit to the Champion parties. His Honour held that they had not established to what extent those costs were wasted.
The primary judge held that Mr Burrell's under-quotation of likely fees at the commencement of the Retainer was deliberate and did not accept that Mr Burrell's failure to provide updated estimates was inadvertent. His Honour considered that the under-quotation and failure constituted a breach of the fundamental duty of loyalty that Burrell Solicitors owed to its clients. However, his Honour did not consider that it followed that the Champion parties were entitled to equitable compensation or other substantive relief. His Honour held that the amounts of the costs judgments entered against the Champion parties in consequence of the determination of the Costs Review Panel must be taken to represent fair and reasonable remuneration payable for the work actually done. His Honour concluded that the Champion parties were not entitled to equitable compensation for breach of fiduciary duty on the part of Burrell Solicitors.
The primary judge accepted that the Champion parties were induced in 2010 to adopt the assumption that the costs of the L&E Court proceedings, including expert witness costs, would total about $150,000 and that, after the case became a "fully contested case", they assumed that the costs would be substantially more than that figure but nothing like the amounts they were charged. His Honour held that the Champion parties were induced to adopt that assumption by the failure on the part of Burrell Solicitors to provide reasonable, updated costs estimates. However, his Honour concluded that the Champion parties had not established that they acted to their detriment in reliance on the assumptions that they were induced to adopt as to the costs of the L&E Court proceedings.
The primary judge accepted that the Champion parties established that they relied on the assumptions that they adopted as to the likely costs, which should have been corrected by the provision of updated estimates. However, his Honour considered that the Champion parties would have pursued the L&E Court proceedings even if reasonable costs estimates had been provided and that, accordingly, they had not established that they acted to their detriment in reliance on the assumptions that they adopted as to the likely costs of the proceedings. Further, his Honour concluded, the Champion parties had not shown to what extent, if at all, the costs incurred in the L&E Court proceedings were not ultimately beneficial as contributing to the approval of the Part 3A Application. His Honour therefore concluded that the Champion parties were entitled to nominal damages from Burrell Solicitors for breach of contract but that their claims should be otherwise dismissed.

The Liability Appeal

In their amended notice of appeal filed on 1 December 2016, the Champion parties rely on three grounds. They may be shortly stated as follows: 1. The primary judge erred in finding that the lack of reasonable costs estimates was not a cause of the loss suffered by the Champion parties. 2. The primary judge erred in finding that no damage was suffered because the work done in connection with the L&E Court Proceedings was not wholly wasted. 3. In determining that no loss was suffered because the work was not wholly wasted and that expert analysis was being substantially performed and invoiced in the Quarry Expansion proceedings, the Champion parties were denied procedural fairness.
The second ground only arises if the Champion parties succeed on the first ground. That is to say, if the Champion parties establish that some part of the costs that were incurred would not have been incurred but for the breaches found by the primary judge, they contend that it was then incumbent upon Burrell Solicitors to establish that that part of the costs that would not have been incurred was of value to the Champion parties. If the Champion parties fail to establish that the costs would not have been incurred, Ground (2) does not arise. Similarly, Ground (3) would not arise. Further, if Ground (1) and Ground (2) each succeed, Ground (3) would not arise.
In many cases, a ground of appeal based on a denial of procedural fairness should be addressed first. [4] However, as was recognised both in the notice of appeal and the submissions made on behalf of the Champion parties, neither of those grounds could succeed if the Champion parties failed in their challenge to Ground (1). In particular, it was not suggested that any lack of procedural fairness impugned the principal basis on which the primary judge dismissed the claim, which was that the Champion parties had not shown that that they had suffered loss or damage "by" the contraventions of s 52 of the Trade Practices Act found by his Honour. It follows that it is appropriate to address Ground (1) first and, if Ground (1) fails, the appeal should be dismissed notwithstanding the force of the submissions of the Champion parties in relation to Grounds (2) and (3).
The Champion parties challenge several findings of fact made by the primary judge. It is convenient to deal with the challenged findings and the findings contended for by the Champion parties, where they are relevant to grounds of appeal.

Ground (1): Causation

The Champion parties challenge several findings made by the primary judge in relation to the question of causation. It is convenient to say something about those findings before dealing with Ground (1).

Factual Findings

First, the Champion parties challenge the finding that, if reasonable estimates of the likely costs had been provided, they would still have embarked upon the L&E Court proceedings (the first finding). They contend that, if reasonable estimates had been provided, they would not have commenced the L&E Court proceedings at all. Alternatively, they say, they would have taken steps to limit the costs being incurred, such as making decisions on evidence and choice of counsel or would have discontinued the L&E Court proceedings. The Champion parties complain that no updated costs estimates were provided sufficiently in advance or at significant times during the course of the L&E Court proceedings to enable them to make timely and informed decisions, including as to the continuation of the L&E Court proceedings. Specifically, they say that, had reasonable estimates been provided as at 3 June 2010, when the s 34 conference was vacated, they would have discontinued the L&E Court proceedings, or, at least the Quarry Expansion proceedings.
Mr Champion asserted in his affidavit of 15 February 2012 (Mr Champion's February 2012 affidavit) that, for many months after the L&E Court proceedings became "fully contested" (following the vacation of the s 34 conference on 3 June 2010) he repeatedly asked Mr Burrell how and why the L&E Court proceedings had ended up as "fully contested cases". He asserted that it was not until 24 May 2011, after the L&E Court proceedings were completed, that Mr Burrell sent him an email explaining what had occurred in June 2010. Mr Champion asserted that, had he and Mrs Champion been informed of the possible or likely costs of a "fully contested case", they would have had the opportunity to make an informed decision as to whether or not to proceed. He said that, on numerous occasions, as the L&E Court proceedings were escalating, he informed Mr Burrell that he could not afford additional and unknown costs. He asserted that, on several occasions, Mr Burrell informed him that they could not pull out of the case as they would have to pay the Council's costs, backdated to the commencement of the assessment by the Council of the Quarry Expansion DA and all subsequent costs of the Quarry Expansion proceedings. Mr Champion said that Mr Burrell pointed out that the Council's costs would be substantial but gave no indication of the likely costs of the Champion parties of continuing the L&E Court proceedings to completion.
Mr Champion asserted in his February 2012 affidavit that Mr Burrell led the Champion parties to believe that the L&E Court proceedings could be run from 1 May 2010 onwards for approximately $10,000 per month but provided no invoices until the end of December 2010 and then only for the period to 27 October 2010. Mr Champion asserted that costs paid to consultants and expert witnesses over and above the two consultants first listed by Mr Burrell (in his original estimate letter of 2 February 2010), being a surveyor and an environmental consultant, would not have been incurred. He asserted that no further updates on the number or disciplines of expert witnesses ultimately required were ever provided, let alone the extent of work and the projected costs of such expert witnesses.
Mrs Champion asserted in her affidavit of 15 February 2012 (Mrs Champion's February affidavit) that she told Mr Burrell on many occasions not to agree to anything or do anything that would burden the Champion parties with more costs. In her affidavit of 21 November 2012 (Mrs Champion's November affidavit) Mrs Champion said her first discussion with Mr Burrell in relation to the running of the proceedings occurred when he stayed at their house on the night of 14 March 2010, prior to a meeting with the Council on the following day. She said that Mr Burrell told her that "this is an easy case" and said that he was sure that the Council would agree to a s 34 binding mediation, and that that would be very simple and quick. She said that he told her "you have done all the work for the EIS, so our work has been done". He told her that he had dealt with the Council's solicitors before and that they were fine to deal with and the case would be over in six weeks. He told her that, in the L&E Court, no costs are awarded against a party who loses and that the only costs that can be awarded "are if you change your application from the original development application". Mrs Champion said that she told Mr Burrell that they would just have to make sure that they did not change anything. Mrs Champion said that she had never been involved in proceedings in the L&E Court before and trusted that, with his experience, Mr Burrell was the expert and that he knew what he was doing.
Mrs Champion said in her November affidavit that, on about 30 April 2010 or 1 May 2010, Mr Champion told her that Mr Burrell had recently told him that the case could be run for $10,000 per month. At that stage, it was Mrs Champion's understanding that the matter would be heard in June and she therefore calculated that a further $20,000 would be required. She asserted that at no stage during her involvement did Mr Burrell give any indication that the work that was being done from July 2010 to March 2011 was in excess of $10,000 per month. She was not informed by Mr Burrell that the proceedings might run for as long as they did.
Mrs Champion also asserted in her November affidavit that, had she been told by Mr Burrell that Burrell Solicitors was not going to charge $10,000 per month or that such a payment would be required for every month until the full hearing had been conducted, she would not have agreed to such a course. Mrs Champion asserted in her November affidavit that at no stage during her assistance with the preparation of the proceedings in the L&E Court did Mr Burrell give her any cause to believe that costs in excess of $10,000 per month were being incurred. She said that, if she had known the position to be otherwise in respect of the fees and disbursements being incurred, she would have withdrawn her instructions and taken steps with Mr Champion to settle the L&E Court proceedings without any further involvement of Mr Burrell.
Secondly, the Champion parties challenge the finding by the primary judge that the financial loss suffered by them was not caused by the unreasonable initial estimates of costs or the subsequent failure by Burrell Solicitors to provide updated reasonable estimates (the second finding). They say that it follows from their challenge to the first finding that their loss was caused by the unreasonable initial estimates and the subsequent failure to provide updated reasonable estimates. They assert that, by commencing and continuing the L&E Court proceedings in the manner that occurred, they acted to their detriment in reliance on assumptions as to the costs that they were induced to adopt by the conduct of the Burrell parties.
By way of response to the challenge to the first finding and the second finding, the Burrell parties point to several other findings made by the primary judge that are not challenged on the appeal. His Honour found that the Champion parties were aware soon after the estimates were provided that they were materially wrong. Therefore, it is said, they did not rely on the estimates in continuing to retain Burrell solicitors nor in retaining and continuing to retain counsel and incurring the costs of the L&E Court proceedings. [5]
Next, the Burrell parties point to the finding by the primary judge that pursuit of the Woolley Bund proceedings was important for the Part 3A Application. The Council had made submissions to the Department that the Minister did not have power to approve, retrospectively, works such as the Woolley bund that had been constructed unlawfully. [6]
The Burrell parties also point to the finding by the primary judge that the Quarry Expansion proceedings assumed a much greater dimension than Mr Burrell had contemplated. His Honour found that, from 23 April 2010 at the latest, the Quarry Expansion proceedings and not the Part 3A Application became the principal focus of the consideration of expert evidence, factual issues and legal submissions relevant to whether approval should be granted for the expanded quarry and, if so, on what conditions. [7] Mr Robertson warned against agreeing to be bound by a Commissioner's determination following a s 34 conciliation, because Mr Robertson considered that the evidence adduced at that time was inadequate. Further, the s 34 conference was abandoned because of the expansion by the Council of the areas on which it proposed to adduce expert evidence. [8]
The primary judge found that the Quarry Expansion proceedings were "fully contested", partly because of issues raised by the Council but also because of matters raised on Mr Champion's insistence. Thus, Mr Champion insisted that the question of the s 94 contributions was of vital importance even if the Quarry Expansion proceedings were unsuccessful. [9] Further, the Champion parties amended the Quarry Expansion DA because both Mr Robertson and Mr Burrell were of the view that the 2008 EIS was not a fully conceived proposal and that to conduct the Quarry Expansion proceedings properly, it would be necessary to amend parts of the Quarry Expansion DA. Mr Champion accepted that advice on 27 May 2010 and decided not to discontinue the Quarry Expansion proceedings at that time, although that was proffered as a choice. [10]

Contentions on Ground 1

The question of causation raised by Ground (1) is one of mixed fact and law. The Champion parties say that the inference drawn by the primary judge, from the finding that they knew shortly after 18 March 2010 that the costs estimates were "hopelessly wrong", that they would still have embarked upon the Quarry Expansion proceedings and the Woolley Bund proceedings, was either not reasonably open on the evidence or was illogical. Further, the Champion parties contend, his Honour's finding was wrong as a matter of fact and his Honour ought to have found that the absence and continuing absence of a reasonable cost estimate caused the Champion parties to commence the L&E Court proceedings and, in particular, to continue them after the s 34 procedure was abandoned.
The essence of the question raised by Ground (1) is whether, had there been proper estimates by Burrell Solicitors, the Champion parties would not have incurred the costs that they incurred or would not have incurred costs to the extent that they did. Clearly enough, the Champion parties were prepared to incur costs in excess of $150,000. The question is whether there was evidence that there was a level of estimated costs that would have caused them to have acted differently in some way. Thus, there should have been evidence to support a finding as to the quantum of costs at which the Champion parties would have ended the L&E Court proceedings or taken steps to limit the incurring of further costs. There was no evidence to that effect.
The Champion parties contend that an inference can be drawn that, if Burrell Solicitors had disclosed to them the costs that had been incurred up to 3 June 2010, when the s 34 conference was vacated, they would have discontinued the Quarry Expansion proceedings. Such disclosure might have been effected simply by sending invoices for the work done up to that time. In fact, invoices were not rendered until 31 December 2010.
It is significant that the Burrell parties admitted that the Champion parties relied on the original estimates in giving instructions to commence the L&E Court proceedings. Further, there is no notice of contention in relation to any finding by the primary judge that the Champion parties continued to rely on that disclosure and on the absence of any fresh disclosure as to any increase in the estimated quantum of costs. Thus, the first issue is whether, had a proper estimate been given, the Champion parties would not have commenced the Quarry Expansion proceedings and would simply have relied on the Part 3A Application.
The Champion parties complain that the primary judge failed to distinguish between proceeding on the basis of knowledge of the fact that the estimates were inaccurate and a guess of what the proceedings would cost, on the one hand, and proceeding on the basis of knowledge of the full extent of the inaccuracy of the estimates, on the other hand. They assert that there is a world of difference between a belief in April 2010 that the L&E Court proceedings would cost $150,000 in legal costs and expert witnesses, on the one hand, and a belief at that time that the true position was that the L&E Court proceedings would cost more than 10 times that figure.
The Champion parties do not dispute the finding by the primary judge that they were aware, shortly after 18 March 2010, that the original estimates were wrong and that they continued with the L&E Court proceedings after they became aware of the inaccurate estimates. They contend, however, that it does not follow that they would have continued with the L&E Court proceedings regardless of the quantum of the initial estimates or that the "impugned conduct" of the Burrell parties, being the misleading and deceptive conduct; the breach of fiduciary duty; and the breach of the Legal Profession Act; did not cause them loss. His Honour made no finding that the Champion parties were aware of the true position in respect of the total costs that would be required to prosecute the Quarry Expansion proceedings and the Woolley Bund proceedings to finality. Therefore, they say, it cannot be said that they would have continued with the L&E Court proceedings had they known the quantum of a reasonable estimate.
The Champion parties accept that, by 25 March 2010, they were aware of the estimate of $84,000 given by Mr Robertson for his fees and that Burrell Solicitors had charged preparation costs for the Quarry Expansion proceedings of over $6,000, in circumstances where the estimate had allowed one day's preparation of less than $3,000 for the entire case. The Champion parties say that that awareness does not compel the conclusion that they would have continued with the L&E Court proceedings had they known the true position and been given a reasonable estimate of what the costs might be. However, as indicated above, there was in fact no finding as to what, at relevant times, a reasonable estimate would have been and no evidence on which such a finding could have been based.
The Burrell parties point to the fact that the Champion parties were prepared to, and did, sell and refinance assets in order to fund the L&E Court proceedings as indicating a preparedness to go well beyond any estimate. Thus, on 9 September 2010, Mr Champion sent an email to Mr Robertson relevantly saying as follows: "[W]e and Council signed off on a binding Section 34 with an estimate of costs from you and John and others of approximately $150,000. Since then, it has developed into a fully contested case which is likely with all expert reports and legal costs to be $400,000 plus … I have had to sell Ballina Manor and four units to reduce debt to our banks, and to fund this case. All five properties are exchanged. These will commence settling in the next 3-4 weeks. John is acting on the sales of the units, and I have directed that he makes payments to you to reduce your bill as they settle. I greatly appreciate you acting for us while we are selling units to fund the case …" However, a reference to costs of "$400,000 plus" is hardly acceptance of costs totalling $1.5 million.
The Burrell parties also point to the fact that, on 24 February 2011, Mr and Mrs Champion offered Mr Robertson their personal guarantees and made proposals in relation to payment of his outstanding fees. They told him that they did not want to lose or terminate their case after incurring costs of $1 million plus and emphasised that the Quarry Expansion proceedings were "now more critical than ever". By that stage, of course, a substantial part of the costs had been incurred after the termination of the s 34 process. Accordingly, little weight can be placed on that matter.
The Burrell parties point to the fact that, despite Mr Champion's personal knowledge of the substantial and increasing fees being invoiced by the experts and the substantial volume of work they were performing, he took no steps to withdraw instructions from the experts or to discontinue the Quarry Expansion proceedings. They assert that the evidence demonstrated that, even if accurate and timely disclosure of estimated costs had been provided, the Champion parties nonetheless would have made the same commercial judgment that it was in their interests to pursue the Quarry Expansion proceedings to its ultimate conclusion.
Thus, Mr Champion accepted that, throughout the period from May 2010 to May 2011, the experts regularly invoiced the Champion parties. By December 2010, he knew that the experts were charging tens of thousands of dollars and, from February 2010 to December 2010, there were many months in which the fees charged by the experts in relation to the Quarry Expansion proceedings exceeded $30,000 or $40,000 per month.
The Burrell parties criticise the findings sought by the Champion parties as being expressed in terms that reflect the failure on the part of the Champion parties, both before the primary judge and in this Court, to identify, with precision, what it is they would have done differently if timely and accurate costs estimates had been provided. That appears to be an assertion that there was no direct evidence, or no evidence upon which a finding could be based, as to the quantum of costs that would have been a reasonable estimate at any particular time and the amount of an estimate that would have driven the Champion parties to decide not to incur costs at that level.
The Burrell parties also contend that the findings made by the primary judge necessarily involve a rejection of the affidavit evidence of Mr and Mrs Champion, to which reference is made above at [95] - [99], that the Champion parties would have discontinued the Quarry Expansion proceedings, or would have taken any other specific steps to reduce the costs of the litigation. That may be so and, as indicated above, it may be that little weight should be accorded to hypothetical evidence as to what a party would have done in different circumstances. The real question is whether there is evidence from which inferences can be drawn as to what Mr and Mrs Champion would have done if proper estimates had been provided at relevant times.
The primary judge found that the continued failure on the part of Burrell Solicitors to provide a fresh, reasonable estimate when it was its duty to do so was a breach of contract and misleading and deceptive conduct, which induced in the Champion parties an incorrect assumption as to the likely legal costs of the L&E Court proceedings, an assumption that would have been corrected had a fresh estimate, based on reasonable grounds, been provided. [11] His Honour also found that, in April 2010, Mr Champion assumed that the total costs could be in the order of $120,000 to $150,000 for the L&E Court proceedings. [12] His Honour found that, had such an estimate been provided by Burrell Solicitors at that time, it would not have been unreasonable.
If, in April 2010, the Champion parties were prepared to proceed on the basis of an estimate of $150,000, and that was a reasonable estimate as at February and March 2010, it may be reasonable to draw the inference that they would have been prepared to commence proceedings on the basis of what would have been a reasonable estimate in February 2010. However, the primary judge referred to no evidentiary material that supported a finding that $150,000 would have been a reasonable estimate as at February, March or April 2010. On the other hand, the finding is not challenged by the Champion parties.
The Champion parties assert that common sense and experience demonstrates that it is more likely than not that they would not have continued with the L&E Court proceedings had they known that the costs would be in the order of $1.5 million. They say that the inference should be drawn that they would not have commenced or continued with the L&E Court proceedings even if the estimate had been one half of the amount of $1.5 million. They say that that inference should be drawn because the unchallenged evidence was that they could not afford such sums and they had difficulty paying the fees of Burrell Solicitors from the very commencement. Thus, they were experiencing difficulties in sourcing the funds required to pay the fees of Burrell Solicitors even on the basis that the fees were limited to $10,000 per month. They were forced to sell real properties to retire debt and to fund the L&E Court proceedings. They say that, in those circumstances, it defies common sense to suggest that they would have elected to continue with the L&E Court proceedings if they were aware of the true extent of the costs required to fund them. They say that it is implausible that they would be cavalier about the likely total expense in such circumstances.
The Champion parties complain that it is unreasonable or illogical to conclude, from a decision to continue legal proceedings in the belief that the costs were of a magnitude of one-tenth of the costs that were ultimately were incurred, that there was no causal link between that decision and the "hopelessly wrong" costs estimates. They say that the only finding reasonably open on the evidence was that the estimate by the Burrell parties of the likely costs of the L&E Court proceedings was a compelling factor in their decision to retain Burrell Solicitors and to commence and prosecute the L&E Court proceedings. There is much to be said for that contention. Indeed, that fact is, in effect, admitted on the pleadings. [13]
The Champion parties contend that the primary judge erred by equating a failure to terminate the L&E Court proceedings or to procure alternative legal representation, once the true position was known, with a lack of reliance on the misleading estimate. They assert that it does not follow from the fact that they did not discontinue the L&E Court proceedings or retain alternative lawyers when they learned that the estimate was inaccurate, that they would have elected to retain Burrell Solicitors and to commence the L&E Court proceedings in the first place, had the true position been made clear to them in February 2010 or even as late as June 2010.
The primary judge found that Mr Burrell was motivated by tax debt to underquote when providing the misleading estimate, and that the Champion parties relied on that impugned conduct in retaining Burrell Solicitors. The Champion parties contend that it is implicit in those findings that the quantum of the estimate was perceived by the Burrell parties to be a factor in the decision of the Champion parties to retain them. On the other hand, the Champion parties complain, the finding that they "would still have embarked upon the litigation" carries with it the implicit finding that they were indifferent to the costs of the L&E Court proceedings, such that they would have proceeded no matter the cost. They complain that that does not accord with the evidence or with common sense, in that there was no evidence that the Champion parties were indifferent to the costs.
The Champion parties assert that, when Mr Champion described the Quarry Expansion proceedings as "a second string to his bow", he was adverting to the Part 3A Application as the "first string". The Part 3A Application was lodged prior to commencing the L&E Court proceedings. They say that, had they been given a reasonable estimate of costs of the L&E Court proceedings and formed the view that it was too expensive to proceed, they could, and would, acting rationally, have sought to adjourn the L&E Court proceedings pending the assessment of the Part 3A Application, thereby avoiding the costs incurred in relation to the L&E Court proceedings. Clearly enough, in that regard, a distinction must be drawn between the Quarry Expansion proceedings, on the one hand and the Woolley Bund proceedings, on the other. Whether or not the Quarry Expansion proceedings might have been adjourned pending the resolution of the Part 3A Application, there is nothing to suggest that the Woolley Bund proceedings would not have been continued.
The primary found that the impugned conduct on the part of the Burrell parties constituted breach of fiduciary duty, breach of the Legal Profession Act and misleading and deceptive conduct. The Champion parties contend that, on the balance of probabilities, the impugned conduct caused them to commence and continue the L&E Court proceedings and they suffered loss or acted to their detriment in doing so. They assert, in their written submissions, that the loss they suffered was the entire costs of the L&E Court proceedings. That claim was modified to some extent in the course of the oral hearing so as to be limited to the costs that would not have been incurred if the Quarry Expansion proceedings had not continued after 3 June 2010.
The Burrell parties contend, on the other hand, that Mr Champion was prepared to fight the Quarry Expansion proceedings to conclusion in order to maximise the prospect of obtaining the consents necessary for the expansion of the quarry and to expose what he considered to be an unreasonable refusal of consent by the Council. Thus, Mr Champion said in his affidavit sworn on 4 October 2014 (Mr Champion's October affidavit) that his intention at the time of commencement of the Quarry Expansion proceedings was to obtain permission for the quarry expansion by whatever means possible. He referred to "ever increasing holding costs" and was anxious to eliminate those costs as soon as possible.
The existing consent was limited to two hectares, whereas the approval sought was for 16 hectares. The Burrell parties assert that the Champion parties were under a pressing financial imperative to obtain an approval for expansion of the quarry, either through litigation in the L&E Court or by means of the Part 3A Application. Thus, in an email of 28 February 2011 to Mr Burrell, Mr Champion said "as you can see everything is in someway mortgaged". Mr Champion said that his bank did not want to lend more money until either the Part 3A Application or the Quarry Expansion DA had been approved. He said in the email that, when the Part 3A Application or the Quarry Expansion DA was approved, the value of part of the land in question would be increased from $5.2 million to between $10 million and $12 million. He said in the email that, at that time, they would have "an excess of unencumbered title deeds" but that was "after we need them".
In oral evidence, Mr Champion agreed that, before the L&E Court proceedings had commenced, the Champion parties had spent some millions of dollars developing the quarry with a view to its expansion and that, in order to obtain a return on the investment, they needed to obtain an approval for the quarry expansion. He agreed that, in order to satisfy their obligations to their bankers and to increase the value of the quarry, approval was needed and that, once the approval had been obtained, the value of the quarry would increase significantly. While he did not agree that the financial position of the Champion parties made it "imperative to obtain an approval" he agreed that it was "preferable".
There was evidence that, if the Council's contribution plan were applied, the total cost of s 94 contributions over the 25 year life of the quarry would be close to $6 million. On the other hand, if the calculation advanced on behalf of the Champion parties were applied, the total cost over the life of the quarry would be less than $810,000. The Burrell parties pointed to that difference as indicating how critical the question of the s 94 contributions was for the Champion parties. In his affidavit of 13 September 2013 (Mr Burrell's September affidavit), Mr Burrell said that Mr Champion had emphasised to him that the s 94 contributions issue was the most important issue in the Quarry Expansion proceedings. He told Mr Burrell that success on that issue would be worth millions of dollars and that, even if the Quarry Expansion proceedings were otherwise unsuccessful, that issue was worth fighting.
The Burrell parties assert that it was the practice of the Department, in any approval under Part 3A, to apply the conditions recommended by the Council in relation to s 94 contributions. At Mr Champion's urging, Mr Robertson prepared detailed written submissions in the Quarry Expansion proceedings that were also used to advance the Part 3A Application. On 16 December 2010, Mr Champion sent an email to Mr Robertson saying that the question of s 94 contributions was "vitally important" to the Champions' parties costs of production and competitiveness with quarries in adjoining areas for the next 25 years. Mr Champion said in the email that there was a need to consider how to ensure a positive outcome in relation to the s 94 contributions in either the Part 3A Application or the Quarry Expansion proceedings.
The Burrell parties contend that the primacy of the commercial interests at stake for the Champion parties in the Quarry Expansion proceedings was reinforced by the time and effort devoted by Mr Champion personally to the day-to-day conduct of the proceedings. Mr Champion accepted that he had dealings with the experts from March 2010 to March 2011, including with respect to their engagement and invoices, liaising with them to arrange visits to the site of the quarry and with respect to their draft reports, including feedback to Mr Burrell about amendments. Mr Champion's diary contained many entries relating to discussions with experts, discussions with Mr Burrell concerning expert reports and time spent by Mr Champion reviewing draft expert reports.
Mr Champion was in constant communication with Mr Burrell; was heavily involved in the preparation of the evidence; attended many conferences with Mr Robertson; conducted tours of the quarry for Mr Burrell, Mr Robertson and the experts; and made all important strategic decisions concerning the L&E Court proceedings, as well as attending Court to give instructions on every hearing day. On 24 December 2010, Mr Champion sent an email to ERM saying that trying to co-ordinate about 20 plus consultants for reports and joint reports had been an enormous task over the past several months. He said that he and Mrs Champion had spent two and a half weeks in Sydney working up to 14 hours per day with Mr Burrell on two separate occasions in the last two months. He said that he knew the workload and how difficult it was in converting expert reports into legal documents which were watertight and could be used to the advantage of the Champion parties by Mr Robertson.
Mr Champion agreed that, by 20 May 2010, a large number of experts' reports had been requested and obtained by the Champion parties for use in the L&E Court proceedings and that he knew that the Champion parties would be responsible for paying the fees of those experts. Mr Champion's daughter, Ms Nott, gave evidence that Mr Champion was kept informed directly by the experts in relation to the quantum of the fees being charged by them and he discussed invoices with the experts prior to them being paid. The experts were retained by the Champion parties directly and Mr Champion liaised directly with the experts in relation to fees, estimates and contractual engagement.
Mr Champion accepted that, throughout the period from May 2010 to May 2011, the experts invoiced the Champion parties regularly. By early December 2010, he knew that the experts were claiming tens of thousands of dollars by way of fees. From February 2010 to December 2010, there were many months in which the fees charged by the experts exceeded $30,000 or $40,000 per month. Despite his personal knowledge of the substantial and increasing fees being invoiced by the experts, and the substantial volume of work they were performing, Mr Champion took no steps to withdraw instructions from the experts or to discontinue the Quarry Expansion proceedings.
The Burrell parties assert that no evidence was adduced by the Champion parties from ERM or any of the other expert consultants to demonstrate whether or how the Champion parties could have obtained approval of the Part 3A Application without pursuing the Quarry Expansion proceedings or what steps they would have taken to advance the Part 3A Application if the Quarry Expansion proceedings had been discontinued. The Burrell parties say that there was no evidence as to the costs that would have been incurred if the Champion parties had discontinued the Quarry Expansion proceedings and pursued only the Part 3A Application.
The Burrell parties point to the fact that the Champion parties expressly rejected the option identified in the advice given on 26 May 2010 to discontinue the Quarry Expansion proceedings. Rather, they accepted the advice to amend the 2008 EIS and thereafter conducted the Quarry Expansion proceedings on the basis of expert evidence obtained to meet the objections by the Council. The Council raised the same grounds of objection in relation to the Quarry Expansion DA as they raised in respect of the Part 3A Application. The Burrell parties say that the conduct of the Champion parties in that regard is irreconcilable with the case being put on their behalf before this Court.
However, the decision made following the advice given on 26 May 2010 may well have been quite different if, at that stage, the Champion parties had been provided with a proper costs estimate. Certainly, they had been provided with options but their complaint is that they were not given the relevant material upon which the decision should be based, namely, a reasonable estimate of what the costs would be if they adopted the course that they in fact adopted.
The Burrell parties point to several matters that were the subject of oral evidence by Mr Champion. Thus, the Champion parties were under a pressing financial imperative to obtain an approval for the expansion of the quarry, either through L&E Court proceedings or pursuant to the Part 3A Application. The grant of development consent would have resulted in an immediate increase in the value of the quarry by more than $5 million. The Champion parties were prepared to, and did, sell and refinance assets in order to fund the L&E Court proceedings.
Success on the s 94 contributions issue alone would have resulted in savings in excess of $5 million over the life of the quarry, such that that issue was worth litigating in the Quarry Expansion proceedings even if those proceedings were otherwise unsuccessful. The calculation of s 94 contributions was a significant issue for the Champion parties with respect to both the Quarry Expansion proceedings and the Part 3A Application.
Mr Champion personally was intensively involved in the day-to-day conduct of the L&E Court proceedings, including liaising with expert consultants and reviewing draft extract reports. He liaised directly with the experts in relation to fee negotiations, estimates and contractual engagement. Throughout the period from about May 2010 to May 2011, the experts regularly invoiced the Champion parties. By December 2010, Mr Champion was personally aware that the experts were claiming tens of thousands of dollars.
Mr Champion accepted that, on 26 and 27 May 2010, Mr Burrell gave him advice to the effect that it was his view and that of Mr Robertson that the 2008 EIS was not a fully conceived proposal. It was their joint view that, in order to conduct the Quarry Expansion proceedings, it would be necessary to amend parts of the Quarry Expansion DA. If the 2008 EIS was amended in the context of the Quarry Expansion proceedings, it would be necessary for the Champion parties to pay the Council's costs under s 97B of the Planning Act. Mr Champion accepted that he had received advice that an updated EIS should be prepared and that he acted in accordance with that advice. He accepted that he understood that the updated EIS of August 2010 superseded and replaced the 2008 EIS. He agreed that he followed the advice provided by Mr Robertson in relation to the need for an updated EIS knowing that it would be necessary for the Champion parties to pay costs to the Council under s 87B.
Mr Champion accepted that, from at least the end of April 2010, he knew that Mr Burrell was spending significant time working on the case and conceded that he knew there were pages and pages of expert reports being prepared by the experts and that were being reviewed by Mr Burrell. He agreed that, by 20 May 2010, a large number of experts' reports had been requested and obtained by the Champion parties for use in the L&E Court proceedings. [14] He knew that the Champion parties would be responsible for paying those experts and that invoices were being submitted by the experts for the increase in volume of work that was being undertaken on behalf of the Champion parties.
By June 2010, the Champion parties had received tax invoices from ERM for work performed in May 2010 in the sum of $58,066.56. [15] Mr Champion accepted that, as at 3 June 2010, he knew that Mr Burrell's initial estimates in relation to expert witnesses were not correct and accepted that, on or shortly after receiving ERM's invoice of 3 June 2010, the Champion parties knew that there had been an increase of over $50,000 in the work undertaken by ERM in May as compared with April.
In September 2010, Mr Champion told the local press that, instead of being a $100,000 or $150,000 case, the case would probably turn into a half a million dollar case. He gave evidence that, by 9 September 2010, he thought the estimated legal costs, including expert reports, through to the conclusion of the L&E Court proceedings would be in excess of $400,000. He knew that at that time Mr Robertson was owed tens of thousands of dollars in fees.
By early December 2010, Mr Champion knew that the experts were claiming tens of thousands of dollars. By 7 December 2010, he was aware that the local press had reported that the Council's legal costs to date were almost $775,000. At no time, did Mr Champion make any request in writing for updated fee estimates from Mr Burrell.
In early January 2011, the Champion parties received invoices and statements of account from Burrell Solicitors as at 31 December 2010. That material disclosed that the unpaid amount for counsel's fees was $75,800, and that the unpaid amount for solicitor's fees up to 27 October 2010 was $255,225.00. The material showed that solicitors' fees were being charged at the rate of between $31,000 and $73,000 per month.
Mr Champion discussed the invoices with his daughter on 5 January 2011. He asked her to review the invoices and look at the total. He was aware that the total of the invoices was for several hundred thousand dollars. His daughter identified some errors contained in the invoices and raised them with him. He asked her to bring those errors to the attention of Mr Burrell.
Mr Champion accepted that he appreciated, from looking at the total of the invoices, that the amounts invoiced to the Champion parties by Burrell Solicitors were well in excess of $10,000 per month. He also accepted that he did not cause any complaint to be made in writing to Burrell Solicitors about the level of fees that had been charged as shown in the material of 31 December 2010.
As at January 2011, Mr Champion was not prepared to settle the Quarry Expansion proceedings in the absence of the decision in relation to the Part 3A Application. He regarded the resumed hearing in January 2011 in relation to the s 94 contributions as an important matter that he wanted resolved.
Mr Champion knew that, if the Quarry Expansion proceedings were unsuccessful, the Champion parties would nonetheless have the benefit of the evidence that had been brought forward in those proceedings to support the Part 3A Application. In that regard, it is significant that, as an objector to the Part 3A Application, the Council relied upon the same 11 grounds of opposition, set out at [10] above, as had been raised as the grounds for rejecting the Quarry Expansion DA. Mr Champion understood that the Council opposed the Part 3A Application on the same grounds as those that had been put forward to justify the rejection of the Quarry Expansion DA.
Each of the reports submitted by ERM for the purposes of the Part 3A Application relied upon and annexed expert reports prepared by the same consultants retained by the Champion parties in relation to the Quarry Expansion proceedings. They addressed the same issues that arose in those proceedings. Mr Champion conceded that there was an overlap between the proposal set out in the Quarry Expansion DA and the proposal in the Part 3A Application as it developed over time.
The Burrell parties say that the fact that pursuing the s 94 contributions issue could save in excess of $5 million gives rise to an inference that the Champion parties would have been prepared to incur costs at least as high as $1.5 million if that was necessary to ensure the substantially greater commercial benefit that would flow from approval of the quarry expansion on the terms for which they contended.
The Burrell parties also point to the absence of any evidence and certainly absence of a finding that, as at April 2010, a reasonable estimate of the costs would have been in the order of $1.5 million. The difficulty for the Champion parties is that they did not adduce evidence as to either what a reasonable estimate would have been and what figure was beyond which they would not have continued with the Quarry Expansion proceedings.

Disposition of Ground (1)

A critical aspect of the issue of causation is the assessment of what the Champion parties would have done had there been a reasonable assessment of the costs before the L&E Court proceedings were commenced or alternatively as at 3 June 2010, when the L&E Court vacated the s 34 conference and directed that both the Quarry Expansion proceedings and Woolley Bund proceedings continue as fully contested hearings. For the Champion parties to succeed, they must point to evidence on the basis of which a finding could be made as to the sum that would have been a reasonable and proper estimate before the L&E Court proceedings commenced. Alternatively, they must point to evidence on the basis of which a finding could be made as to the sum that would have been a reasonable estimate as at the time when the s 34 conference was vacated.
That is to say, there should be evidence to support a finding as to the estimate that should have been given at the times when it is said that Burrell Solicitors gave estimates or ought to have given updates. There should also be evidence to support a finding as to what figure of estimated costs would have caused the Champion parties not to commence the L&E Court proceedings or, having commenced the L&E Court proceedings, what figure of estimated costs would have caused them not to proceed further with the L&E Court proceedings. The damages could then be measured by reference to the excess of the actual costs over those figures.
Importantly, there was no evidence as to what would have been reasonable estimates at relevant times. Further, there was no evidence adduced on behalf of the Champion parties as to the maximum amount of costs beyond which they would have chosen to discontinue the Quarry Expansion proceedings or the Woolley Bund proceedings.
Moreover, there was no evidence to support findings as to the steps that Mr Champion or Mrs Champion would have taken, had a proper estimate been furnished at a given point in time. Of course, evidence by Mr and Mrs Champion as to what they would have done might have been afforded little weight. Much more significantly, however, there was no evidence as to what steps could have been taken at any particular time had a proper estimate been given. For example, it is possible that some of the experts who produced reports may not have been required. It would have been open to adduce evidence from practitioners as to the possible consequence of not adducing evidence from identified experts. At the very least, one might have expected an analysis of the fees and expenses incurred to demonstrate that, on the balance of probabilities, particular expenses would not have been incurred. That, however, was not done. No attempt was made to demonstrate what costs might not have been incurred, if steps had been taken to contain costs.
The inference should be drawn from the material that has been set out in some detail above, that, had an estimate been given to the Champion parties in February 2010 that the costs of the L&E Court proceedings could be in the vicinity of $1.5 million, it is more likely than not they would not have embarked on proceedings that would have incurred those costs. The inference should also be drawn that they would have been prepared, as at February 2010, to incur costs at a much higher level than the estimates given by Mr Burrell in February 2010. Again, the inference should be drawn that, had the Champion parties been informed in late May or early June 2010 that the total costs that would be incurred in prosecuting the L&E Court proceedings to finality would be in the vicinity of $1.5 million, some steps would have been taken to limit the costs.
On the other hand, that raises the question of what would have been a reasonable estimate as at February 2010, or at other relevant times, such as 3 June 2010, when the s 34 conference was vacated. Clearly, circumstances may have changed such that the costs in fact exceeded a reasonable estimate. The difficulty is the absence of evidence as to the quantum of a reasonable estimate as at February and March 2010, or at other relevant times.
The Court has not been taken to evidence, and there were certainly no findings by the primary judge, as to what amounts would have been reasonable estimates for the Quarry Expansion proceedings and the Woolley Bund proceedings as at February or March 2010 or as at 3 June 2010. Nor is there evidence upon which findings could be based as to the costs that could have been avoided if proper estimates had been provided at relevant times.
The Champion parties accepted that the "watershed" for their case was the non-disclosure of estimated costs around 3 June 2010, when the s 34 conference was vacated. At that point, the litigation had expanded considerably, and it would have been reasonable to assume that both proceedings would go to fully contested hearings. Also at around that time, Mr Burrell was recording very substantial costs, although those costs were only included in bills rendered in late December 2010, some six months later. To be clear, no finding was made at trial, nor was one sought on appeal, that the understatement was deliberate. Rather, it was a consequence of Mr Burrell's failing to inform himself as to his obligations under the relevant legal practitioner legislation.
Further, it is easy to see that the Champion parties would have faced difficulties in establishing causation if some time after June 2010 was advanced as the relevant "watershed" moment. For example, by September 2010, it must have been evident that substantial costs had been incurred in relation to the amended application, that the Woolley Bund proceedings had been heard and lost, and that consent had been given to paying the Council's costs thrown away. Ultimately, on 11 October 2010, Champions Quarry by consent agreed to pay the Council's costs thrown away by reason of the amendment to its application, fixed in the amount of $135,000. It was quite plain well before that time that the original costs disclosure had been vastly exceeded. It was also quite plain that the Champion parties were at that stage prepared to incur very substantial costs in order to achieve their goal of expanding the quarry.
It is helpful in those circumstances to consider the strength of the Champion parties' case at the "watershed" of early June 2010. Mr Champion gave evidence that was directed to the substantial expansion of the proceedings following the vacation of the s 34 conference. He said: "Had Burrell Solicitors sought instructions from me about the possibility of a fully contested hearing and provided me with an estimate of how much a fully contested hearing could cost, I would not have agreed to continue because I could not have afforded to pay the vastly increased amount." There are two features of that evidence of note, taking it at its highest. The first is that it was sworn four years after the event, and subject to the familiar difficulties associated with hindsight, self-interest and the litigation process, and thus falls to be assessed against what indisputably emerged from the contemporaneous documents. The second is that it does not address the critical question, namely, what a reasonable estimate of future costs at the time would have been and how Mr Champion would have reacted to that.
By letter dated 20 May 2010, the Council's solicitors complained about the late service of a raft of expert reports outside the scope of the extended timetable directed by the L&E Court, which included a significantly varied application. The variations included "a further dam, third haulage route, and provision for biodiversity offsets". There was a new timetable, with quarrying now proposed to occur within the northern cell between years 8 and 15. At that stage, the Council's solicitors flagged the possibility of costs implications under s 97B of the Planning Act, and that "this matter may no longer be appropriate for a conciliation conference under s 34(4)(b)". That attitude was rapidly communicated by Mr Burrell to Mr Champion and the other leading figures in his camp, by email with the subject line "SHIT HAS HIT THE FAN".
Mr Champion received emails in this chain at 10:15am, 10:41am, 11:11am and 10:37am on 21 May 2010. There was also a telephone attendance by Mr Burrell on Mr Champion at 10:20am stating: "Council has always intended to have its own experts. Their new experts [John Burrell] to compose calm response". There were further telephone attendances that day at 11:35am, 1:15pm and 2:30pm, the latter being for 25 minutes.
On 24 May 2010, Mr Burrell received an email from the Council's solicitors stating that the Council was of the opinion that the further evidence served by Champion's Quarry required leave of the L&E Court, and that the Council was not proposing to finalise its expert reports taking into account that evidence. Mr Burrell tried to call Mr Champion twice. The first time he was told that Mr Champion was with surveyors. On the second time, he spoke to Mr Champion on his mobile phone.
By an eCallover [16] request dated 25 May 2010, the Council told the L&E Court that: "the Applicant has recently filed and served a range of reports in this appeal. It is the Council's view that these reports contain amendments to the proposed designated development and therefore the Court's leave is required to rely on such". The Council requested that the matter be restored to the list for a case management conference.
On the appeal, it was said that the critical time for the Champion parties to have been told that the case had expanded to something that was fully contested was late May or very early June 2010, when the s 34 conference was vacated and hearing dates were allocated. However, it is plain from the evidence that Mr Champion was personally involved in the litigation in the last week of May 2010, including being closely engaged in the supply of a raft of further experts' reports, which were ultimately conceded to give rise to the need to lodge an amended development application for the purposes of the Quarry Expansion proceedings, and which were well known to Mr Champion to be contended by the Council to be outside (i) the timetable ordered by the L&E Court and (ii) the scope of the Quarry Expansion DA.
Added to the foregoing is the fact that Mr Champion was a relatively sophisticated litigant. He had been involved in the development process as a proponent of the Part 3A Application for some 14 months. Further, through his former role as councillor and mayor, he must have been closely exposed to the process of the Council's consideration and involvement in contested proceedings in the L&E Court of the nature of the Quarry Expansion proceedings.
It follows that by no later than the last week of May 2010, and in reality, some weeks earlier, when ERM's substantially increased invoices began arising, Mr Champion must have known of the substantially increased costs. Further, it is highly plausible that he gave close attention to the Council's statement of facts and contentions, served on 24 or 25 May 2010, which contained three pages of criticism of the acoustic assessment and preliminary quarry management plan and five pages of criticism of the visual impact of the quarry, as well as nine pages of criticisms of the insufficient investigation of impacts on flora and fauna.
Even if Mr Champion's evidence that he "could not have afforded to pay the vastly increased amount" is taken at its highest, it was plain that he was closely involved in retaining and dealing with experts whose costs vastly exceeded the original estimate. True it is that, if Mr Champion had been told the costs would be $1.5 million, he may well not have continued. But that is not sufficient for Ground (1) to succeed. It has not been shown that any estimate of costs less than $1.5 million would have been misleading or deceptive, and indeed it is plain that a significantly lower estimate would not have been one that lacked a reasonable basis at the time.
Ultimately, two matters are determinative of Ground (1). The first is that it has not been established that Mr Champion would have abandoned the litigation had he been told a lower estimate. The second is that it has not been established that a lower estimate would have been misleading or deceptive because it lacked a reasonable basis.
For completeness, it may be noted that there was also evidence on causation from Mrs Diana Champion, but it could not advance the position. She said that she did not believe that costs in excess of $10,000 per month were being incurred, and if they had been incurred, she would have withdrawn her instructions and taken steps to settle the proceedings. But it is perfectly plain from the ERM bills sent directly to Mr Champion that he was aware of that fact. Mrs Champion had never been involved in L&E Court proceedings before and was plainly much less involved in the preparation of the proceedings than Mr Champion, who was the driving force behind the litigation. It is not established that the evidence of Mrs Champion can be taken at face value.
A limiting ruling was made by the primary judge in relation to the reliance evidence of Mr and Mrs Champion, based on s 5D(3) of the Civil Liability Act 2002 (NSW), as to the precise terms of which there was some debate when the appeal was heard. The Liability Appeal proceeded on the basis contended by the Champion parties that that ruling had no application to the allegations of loss caused by misleading or deceptive conduct. Even so, for the reasons given above, the generalised statements of Mr and Mrs Champion do not suffice to establish causation at the "watershed" of their case, in early June 2010.
The Champion parties have not discharged the onus of demonstrating the quantum of any loss or damage suffered as a consequence of the impugned conduct of the Burrell parties. They have not identified specific costs that it is more likely than not that they would not have incurred, had proper estimates been given at relevant times.

Ground (2): Costs not wasted

The Champion parties also challenge findings made by the primary judge that are relevant to Ground (2). It is convenient to deal first with the challenged findings.

Factual Findings

First, the Champion parties challenge the finding that the work done in connection with the Quarry Expansion proceedings was relevant to the Part 3A Application because decisions on particular issues in the L&E Court proceedings could be relied upon in relation to the Part 3A Application and that, accordingly, the L&E Court proceedings were not without benefit to the Champion parties (the third finding). The Champion parties assert that the costs of the experts in relation to the L&E Court proceedings were of no use in relation to the Part 3A Application because the Part 3A Application:

was concerned with a different, less intensive development;
did not need to address the specific contentions raised by the Council;
did not require joint conferencing with experts from the Council; and
required different expert reports assessing the environmental impact because of the different extraction areas.

In that regard, the Champion parties also challenge the finding by the primary judge that expert analysis was being substantially performed and invoiced in the Quarry Expansion proceedings rather than in connection with the Part 3A Application (the fourth finding). They say that the costs of Burrell Solicitors and Mr Robertson were wholly unrelated to the Part 3A Application, save for one hour of Mr Robertson's time and 4.1 hours of Mr Burrell's time. They dispute the finding that the work done in the L&E Court proceedings was not wholly wasted, and say they derived no benefit in relation to the Part 3A Application from the evidence in either the Quarry Expansion proceedings or the Woolley Bund proceedings.
Finally, the Champion parties challenge the primary judge's finding that they had not acted to their detriment and had not shown to what extent the costs incurred in the L&E Court proceedings were not ultimately beneficial as contributing to the Part 3A Application (the fifth finding). They contend that his Honour ought to have found that the legal fees of Burrell Solicitors, Mr Robertson's fees, the costs of joint conferencing and joint reporting and the costs incurred in procuring expert reports, to the extent that those reports addressed a different development, were wasted.
The Burrell parties respond to the challenges to the third, fourth and fifth findings by referring to additional findings that were not challenged in the appeal. The primary judge found that a great deal of the costs of the L&E Court proceedings was incurred in obtaining expert reports. The majority of those reports were provided for use in both the Quarry Expansion proceedings and the Part 3A Application and, in some cases, also in the Woolley Bund proceedings. [17] Mr Champion accepted that ERM sought and obtained submissions made by Mr Robertson in the Quarry Expansion proceedings for use in the Part 3A Application. [18]
In addition, the primary judge considered that contemporaneous documents showed that, as at January 2011, Mr Champion was not prepared to settle the Quarry Expansion proceedings in the absence of a decision in relation to the Part 3A Application. He regarded the resumed hearing in January 2011 on the s 94 contributions as an important matter that he wanted resolved. [19]

Contentions on Ground (2)

In relation to Ground (2), the Champion parties complain that the primary judge failed to have adequate regard to the fact that Burrell Solicitors were not engaged to act in relation to the Part 3A Application or the preparation of expert reports in connection with the Part 3A Application. They say that, even if they were, his Honour erred in finding no loss at all, as opposed to discounting the damages by the amount of the benefit found to have been derived. The Champion parties say that, in terms of misattribution of work done in the Quarry Expansion proceedings and in terms of the onus, the primary judge applied a wrong principle. They contend that, once it is established that the costs would not have been incurred but for the breaches and contraventions on the part of the Burrell parties, it was a matter for the Burrell parties to establish the amount of any benefit that the Champion parties are alleged to have derived and it was not for them to establish that they did not derive any benefit.
The Champion parties assert that his Honour failed to have proper regard to the different regimes involved in an application under Part 3A of the Planning Act, on the one hand, and in an appeal against the refusal by the Council of a development application, on the other hand. They assert that his Honour misconstrued the evidence, insofar as the Part 3A Application concerned a different development from that with which the Quarry Development DA was concerned.
From 22 to 24 April 2010, Mr Burrell reviewed the 2008 EIS and the 3A Environmental Report in order to assess the differences between the two proposals with a view to relying on the 3A Environmental Report material in the Quarry Expansion proceedings. He identified three differences as follows:

the development area in the Quarry Expansion DA EIS was 40 hectares, which included the northern extraction area, whereas it was 16 hectares in the Part 3A Application, which did not include the northern extraction area;
in the Quarry Expansion DA EIS, the only haulage route to the Pacific Highway was Wyrallah Road whereas in the Part 3A Application there was an alternative route via Broadwater Road; and
the proposed site drainage plan on the Quarry Expansion DA EIS was changed to a 40 mega-litre on-stream dam and a large off-stream dam did not appear in the plans, whereas the Part 3A Application had three dams.

The updated EIS of 30 August 2010, prepared in support of the Quarry Expansion DA, retained the northern extraction area and the proposal for extraction of 200,000 tonnes per annum to a maximum of five million tonnes for the 25 year life of the quarry. The updated EIS recorded that it incorporated further studies, reports and statements of evidence prepared by various specialist consultants since the original 2008 EIS. An appendix to the updated EIS consisted of a schedule identifying the differences between the updated EIS and the 2008 EIS.
The updated environmental assessment report of September 2010, which was prepared by ERM in support of the Part 3A Application, contained responses to submissions received from government agencies and other groups, including the Council, relevant state government departments, the local Aboriginal Land Council and community groups, in addition to a revised statement of commitments. The final environmental assessment report dated December 2011 proposed modifications to the project in respect of peak truck movements and noise control bunds, including the fact that the Woolley bund had been removed and was proposed to be relocated. The proposal remained for extraction of approximately 6.25 million tonnes of sand and sandstone material over 25 years at the rate of 250,000 tonnes per annum, primarily in a new extraction area to the south of the existing quarry.
The Burrell parties contend that the 3A Environmental Report was based on the work carried out in connection with the Quarry Expansion proceedings and that further development of the Part 3A Application was put on hold because of the work involved for the Quarry Expansion proceedings. Mr Burrell gave evidence that, at a meeting with Mr Champion on 28 July 2010, Mr Champion wanted to provide to the Department, in connection with the Part 3A Application, the additional reports that had been obtained for the Quarry Expansion proceedings. On 19 August 2010, an email from ERM to Mr Champion indicated that ERM wanted to use legal documents prepared in the L&E Court proceedings for use as reference documents for the Part 3A Application. Mr Champion conceded that some of the reports prepared for use in the Quarry Expansion proceedings were included in the ERM report of 17 September 2010 relating to the Part 3A Application.
The Burrell parties invite the Court to draw the inference that the following reports used in connection with the Part 3A Application, which had the same dates as reports required in the Quarry Expansion proceedings, were in the same form as the reports in the Quarry Expansion proceedings:

Vegetation Management Plan;
Visual Analysis;
Options for bund design details;
Ecological survey and assessment of reptile habitat;
Anthropological assessment.

Disposition of Ground (2)

The primary judge adopted an incorrect approach in relation to the question of whether the Champion parties obtained a benefit in relation to the Part 3A Application from the work done in connection with the Quarry Expansion proceedings. If the Champion parties had demonstrated that costs were incurred as a consequence of the impugned conduct of the Burrell parties, being costs that would not have been incurred but for that conduct, that would prima facie be the measure of the loss and damage flowing from the conduct. It would not be for the Champion parties to demonstrate that they obtained no benefit from the work that gave rise to those costs. The better view is that the Burrell parties, as wrongdoers, would carry the onus of demonstrating that the Champion parties derived a collateral benefit by reason of the work, insofar as the work benefitted the Part 3A Application.
Mr Champion accepted, as indicated above, that there was a degree of overlap. Nevertheless, the onus lay with the Burrell parties to demonstrate the extent of the overlap and the quantum of costs that, in effect, would have been incurred in connection with the Part 3A Application even if the costs had not been incurred in relation to the Quarry Expansion proceedings or the Woolley Bund proceedings. That leads into Ground (3).

Ground (3): Procedural Fairness

In relation to Ground (3), the Champion parties say that the submission that the Champion parties did not suffer loss because they derived a benefit, namely, that the entirety of the costs incurred was utilised in the Part 3A Application, was first raised in the Burrell parties' closing submissions, which consisted of some 80 pages and were emailed to the Champion parties' counsel the night before the final day of hearing. Consequently, they say, there was insufficient opportunity to consider and reply to the submission. They complain that the Burrell parties' submissions did not contend that the Champion parties suffered no loss by reason of the contention that the work done in the L&E Court proceedings was beneficial to the Part 3A Application or substantially performed in the Part 3A Application but invoiced in the Quarry Expansion proceedings. They assert that, had that issue been live, they would have led evidence to rebut such a suggestion. In order to deal with Ground (3), it is necessary to say something about the pleadings and the way in which the Burrell parties approached the proceedings before the primary judge.
In the Statement of Cross-Claim, the Champion parties relied on several causes of action said to give rise to claims for damages. In essence, they alleged that, by reason of the impugned conduct of the Burrell parties, they were deprived of the opportunity to make informed decisions as to whether to commence the Quarry Expansion proceedings and the Woolley Bund proceedings, as well as the opportunity to make informed decisions on an on-going basis as to whether to continue the Quarry Expansion proceedings and the Woolley Bund proceedings. They alleged that they relied on the impugned conduct of the Burrell parties in refraining to take steps either to discontinue or otherwise resolve the L&E Court proceedings.
The Champion parties claimed that they suffered loss and damage by incurring costs in a sum of in excess of $1.5 million that they would not have otherwise incurred. In their Amended Defence to the Statement of Cross-Claim (the Defence), the Burrell parties denied liability and denied that the Champion parties suffered loss or damage. They also alleged that, if the Champion parties suffered economic loss caused by conduct of the Burrell parties, they suffered the alleged loss at least partly as a result of their failure to take reasonable care. They particularised that assertion by saying that Mr and Mrs Champion, worked closely with the Burrell parties in the conduct and preparation of the L&E Court proceedings and that the Champion parties knew and understood at all material times from late April 2010 that the complexity and scope of the L&E Court proceedings had increased substantially, necessitating additional work from various expert witnesses and counsel and that, by June 2010, it was likely that the hearing would require many days and would exceed several weeks. The Burrell parties asserted that Mr and Mrs Champion liaised directly with the expert witnesses in relation to fee negotiations, estimates and contractual engagement and that those fees represented a substantial proportion of the costs in question.
The Defence puts in issue the question of whether or not any loss or damage was suffered, as well as relying on want of care on the part of the Champion parties if such loss was in fact suffered. On the other hand, there is no express assertion that there was no loss suffered by reason of the fact that the costs incurred in relation to the L&E Court proceedings were not wasted. However, the Burrell parties point to the affidavit evidence given by Mr Burrell that, they say, made clear that their case included a contention that the costs incurred in relation to the Quarry Expansion proceedings were not wasted because of the benefit gained in relation to the Part 3A Application. They also point to the written opening submissions made to the primary judge before the commencement of the trial. It is not practicable to refer to all of the material relied on by the Burrell parties in that regard. It is preferable to refer only to what appears to be pertinent to their contention.
In his September affidavit, Mr Burrell said that in his first conversation with Mr Champion, Mr Champion told him about the Part 3A Application that had been prepared by ERM who were "managing the whole process". Mr Burrell said in his September affidavit that he asked Mr Champion why he was going to bother with "the court appeal" (being a reference to the Quarry Expansion proceedings) and Mr Champion responded "as a safeguard just in case, for any reason, the Part 3A doesn't go through or gets held up". He said that Mr Champion said "we can't afford not to get approval. We have to get approval one way or another" and told him that he wanted the appeal to be lodged immediately and wanted to drag things out as long as possible for the least expense "until we see what happens".
Mr Burrell said in his September affidavit that he discussed with Mr Champion the possible implications for the Part 3A Application if the appeal against the refusal of the Quarry Expansion DA was lost. Mr Champion said that he was confident that the Part 3A Application would be successful and that he did not think that losing the proposed appeal to the L&E Court would affect the Part 3A Application because the two applications were quite different.
In his September affidavit Mr Burrell also referred to instances of differences between the material in support of the Quarry Expansion proceedings, on the one hand, and the material in support of the Part 3A Application, on the other. On 23 April 2010 he said a comparison between the ecology proposal in the 2008 EIS and the ecology proposal in the Part 3A Application indicated that they were significantly different. On the same day, Mr Burrell reviewed the visual impact statements in the 2008 EIS and the Part 3A environmental assessment, identifying and highlighting differences. Following that review, he discussed with Mr Champion the possibility of deleting the northern zone extraction area from the Quarry Expansion DA.
Mr Burrell said in his September affidavit that, on 24 April 2010, he sent an email to the Council saying that some of the environmental assessment undertaken for and included in the 2008 EIS had been extended and elaborated on during the course of the Part 3A Application and reported in the environmental assessment. He said that applied not only to noise assessment but also ecology and other areas.
Mr Burrell referred in his September affidavit to discussions with Mr Champion on 27 April 2010 concerning evidence proposed by the Council in the Quarry Expansion proceedings relating to flora and fauna. Mr Burrell said that they should be putting on the latest material on flora and fauna and water management, whether it was done for the Part 3A Application or not. Mr Burrell said that he explained "the fine line" between "clarification" and "amendment" in relation to costs under s 97B of the Planning Act and told Mr Champion that it was possible to clarify and explain things and provide more details but the moment a fundamental change was made or new work or activity was proposed, "we could be in trouble". He also said that the areas to be set aside and preserved for ecological management were different under the Quarry Expansion DA and the Part 3A Application.
Mr Burrell also referred in his September affidavit to a discussion with Mr Robertson concerning directions for evidence in the L&E Court proceedings. He referred to an oversight not to nominate all of the areas of expertise where it was intended to file statements of evidence. However, he told Mr Robertson that he did not see the oversight as being "a big issue" because the Council had already seen a lot of the extra material through the Part 3A Application, so they could hardly complain about being surprised.
Mr Burrell also said that on 5 May 2010 he spoke to Mr Weir of ERM saying that he and Mr Robertson would like to have a comparison check list summarising the differences between the Part 3A environmental assessment and the 2008 EIS, highlighting those parts of the former that were relevant to the latter or that they now wanted to adopt or incorporate into the 2008 EIS for the purposes of the Quarry Expansion proceedings.
Mr Burrell said in his September affidavit that, on 10 May 2010, Mr Champion gave instructions to Mr Thompson of VGT to amend the southern zone in the Quarry Expansion DA to bring down the levels to the same levels as in the Part 3A Application. Mr Burrell made a handwritten note of the amendment on a plan and faxed it to Mr Thompson of VGT. On 11 May 2010, Mr Burrell spoke to Mr Weir of ERM saying that Mr Champion had looked at draft revised plans and wanted to change the southern zone for the 2008 EIS to give it the same footprint as the southern zone in the Part 3A environmental assessment. Mr Weir said that that would involve a substantial amendment to the Quarry Expansion DA. Mr Burrell then spoke to Mr Champion who agreed to leave the southern zone as it was, so that it would be different from the Part 3A environmental assessment.
Mr Burrell also referred in his September affidavit to discussions that occurred in the course of the directions hearing on 3 June 2010, when the s 34 conference was vacated. He referred to the fact that the Council was on notice, through the Part 3A Application, of alternative truck routes.
Mr Burrell also referred in his September affidavit to a discussion with Mr Champion on 30 June 2010 in which Mr Champion said that since the Quarry Expansion proceedings had been set down for hearing in October, everything rested on obtaining the Part 3A approval by the end of August. He said that he "absolutely must" have an approval by that date.
Mr Burrell said in his September affidavit that, in early July 2010, he became aware of the failure in the previous documentation for both the 2008 EIS and the Part 3A environmental assessment to show an acceptable level of detail of a proposed road through the central extraction area to service the southern extraction area which was intended to be more or less permanent. He then spoke to an acoustical engineer about that matter. Mr Burrell also referred to an email received on 8 July 2010 from Mr Weir of ERM concerning an acoustical report which was described as a hybrid of the 2008 EIS noise report and the Part 3A Application noise report. The email said that there may be "some tweaking of the modelling data".
Mr Burrell said in his September affidavit that, on 9 July 2010, he received instructions from Mr Champion to incorporate a report on greenhouse gas emissions derived from the Part 3A Application in the evidence for the L&E Court proceedings. On 10 July 2010, he spoke to Mr Champion at some length concerning the strategy for the Quarry Expansion proceedings and the Part 3A Application. According to Mr Burrell, Mr Champion said that he understood that the Quarry Expansion proceedings in the L&E Court would be hopeless without all the extra work and witness statements they had done. Nevertheless, he said that he resented all the extra cost involved. He said that his current strategy was to get the Part 3A Application before or after Quarry Expansion proceedings "and irrespective". He said that he wanted to run the Quarry Expansion proceedings because it was worth it just to win on the s 94 contribution issue. Finally, Mr Champion said that he would wait until all the extra evidence was on and review the situation after the Council's response had been received.
Mr Burrell said in his September affidavit that, on 28 July 2010, he met with Mr and Mrs Champion and discussed at length what they considered needed to be done to advance the Part 3A Application. Mr Champion said that he wanted to provide the Department with the additional reports that had been obtained for the Quarry Expansion proceedings, saying that they would have to be "re-badged and modified" where necessary to suit the Part 3A Application.
Mr Burrell also said in his September affidavit that, between 10 August 2010 and 17 August 2010, work proceeded on transferring to the Part 3A Application the additional work that had been undertaken for the Quarry Expansion proceedings. On 17 August 2010 he received emails attaching material for inclusion in the Part 3A Application.
In an affidavit sworn on 24 November 2013 (Mr Burrell's November affidavit), Mr Burrell said that Mr Champion told him that he considered the Quarry Expansion proceedings to be "a barrier trial for getting the Part 3A approval". He said that he would not mind losing the Quarry Expansion proceedings so long as they won on the issue of s 94 contributions. He said that if they won on s 94 road contributions he was confident that the Department would ignore the Council's s 94 plan when they got approval under Part 3A. Mr Burrell also said in his November affidavit that Mr Champion told him that, whether they got approval from the L&E Court or from the Minister under Part 3A, the quarry would be re-valued and that everyone would be paid once the approval came through.
The Burrell parties also refer to Mr Champion's October affidavit in which Mr Champion asserted that the Quarry Expansion DA and the Part 3A Application were quite different. He said that the extraction areas and volumes were different and there was no northern zone extraction area in the Part 3A Application. He also said that the Part 3A process was entirely different from the L&E Court proceedings and that they were different developments with different levels of analysis required. Mr Champion also said that Mr Robertson raised the issue of putting the Part 3A Application before a Planning Assessment Commission and that he resisted that. Mr Champion also asserted that Mr Burrell was constantly trying to become involved in the Part 3A Application but he did not want Mr Burrell anywhere near the Part 3A Application.
Mr Champion also asserted in his October affidavit that he "had a constant tug of war" with Mr Burrell, who was trying to use part of the Part 3A Application reports for the Quarry Expansion proceedings. Mr Champion said that he was trying to prevent the mixing of the two in July 2010 as they were totally different applications. He said that it seemed to him that Mr Burrell was attempting to generate more work for himself in trying to increase his involvement in the Part 3A Application. He said that he recalled that Mr Burrell wanted to use reports that had been prepared for the Part 3A Application.
In his affidavit of 11 February 2014 (Mr Burrell's February affidavit) Mr Burrell asserted that, from 13 September 2010 to 17 September 2010, his task was overseeing the draft response to submissions for the Part 3A Application.
Mr Champion said in his October affidavit that neither Mr Burrell nor Burrell Solicitors was acting with regard to the Part 3A Application. Mr Champion said that, in September 2010, he was preparing a draft response to submissions for the Part 3A Application and that Mr Robertson offered to read the response briefly and he agreed to that. He said that Mr Robertson charged one hour of his time for that task on 15 September 2010. Mr Champion repeated that Mr Burrell was constantly trying to get involved with the Part 3A Application and that he understood that Mr Burrell wanted to see everything that was being done on the Part 3A Application. However, he said that he did not give any instructions to Mr Burrell to oversee the draft response and that all that occurred in September 2010 was that the Part 3A Application material was sent to Mr Burrell in accordance with his request so that he could see what work had been done. Mr Champion denied that Mr Burrell had any input into the Part 3A response.
In his affidavit of 6 March 2014 (Mr Burrell's March affidavit), Mr Burrell referred to water modelling that had been undertaken for one of the proposed extraction areas that he said had been criticised as inadequate by the New South Wales Department of Water. In response, Mr Champion said in his October affidavit that that was an example of Mr Burrell mixing the Part 3A Application and the Quarry Expansion proceedings, and that the letter from the Department of Water related to the Part 3A Application. He said that subsequent work was performed by ERM and confirmed what had already been stated.
In his March affidavit, Mr Burrell also referred to matters that were not included in the Quarry Expansion DA. Mr Champion complained in his October affidavit response that, in some respects, Mr Burrell was confused as to what was required for the Part 3A Application and the Quarry Expansion DA.
In their written submissions in the proceedings below, the Burrell parties referred to the fact that, in July 2014, quarry operations were commenced at the expanded quarry, following the grant of ministerial consent under Part 3A. The submissions asserted that the approval under Part 3A was obtained with the benefit of the expert reports and other materials relied upon in the Quarry Expansion proceedings. The submissions referred to Mr Burrell's affidavit evidence summarised above.
The Burrell parties also asserted in their written submissions that, if the Champion parties had been provided with written updated costs disclosures or more timely invoices, they nonetheless would have conducted the Quarry Expansion proceedings and the Woolley Bund proceedings with the same vigour and enthusiasm since both Mr and Mrs Champion held a strong belief that the prosecution of both proceedings to final hearing was in their commercial interest. The Burrell parties asserted that Mr and Mrs Champion were prepared to fight the L&E Court proceedings to conclusion in order to maximise the prospect of obtaining, either in the L&E Court or under Part 3A, the consents necessary for the expansion of the quarry and to expose what they considered to be an unreasonable refusal of consent by the Council.

Disposition of Ground (3)

The material briefly summarised above certainly demonstrates that there was an overlap between the proposal contained in the Quarry Expansion DA and the proposal contained in the Part 3A Application. More significantly, it also confirms that there were significant differences between the two. However, the material does not indicate that Mr Burrell's affidavit evidence and the Burrell parties' written submissions fairly raised the contention that all of the work carried out in relation to the Quarry Expansion proceedings was of value for the purpose of the Part 3A Application, such that no loss was suffered by the Champion parties. Rather, it suggests quite the contrary.
Regardless, no complaint appears to have been made to the primary judge by counsel for the Champion parties about the ultimate reliance by the Burrell parties on their failure to prove that the costs incurred in relation to the Quarry Expansion proceedings were not wasted because they benefited the Part 3A Application. That suggests that there was no denial of procedural fairness.
The significant question is that raised by Ground (2), namely, whether the onus lay with the Burrell parties to show that, assuming the Champion parties succeeded on the primary question, no allowance should be made for any benefit derived in connection with the Part 3A Application. Analysis of the material summarised above in relation to Ground (3) points strongly to the conclusion that the primary judge erred in holding that the Champion parties had failed to show to what extent, if at all, the costs incurred in the L&E Court proceedings were not ultimately beneficial as contributing to the approval of the Part 3A Application. That is to say, the material suggests that it is quite unlikely that the whole of the costs incurred in relation to the L&E Court proceedings benefited the Part 3A Application.

The Costs Appeal

On 15 August 2012, on the application of Burrell Solicitors, a costs assessor issued a Certificate of Determination of Costs determining that a fair and reasonable amount of costs to be paid to Burrell Solicitors by the Champion parties was the sum of $185,400.86. The costs assessor determined that the costs of that assessment were $3,686.37. On the same day, the costs assessor issued a second Certificate of Determination of Costs in the sum of $345,832.37, after giving credit for the sum of $77,000 paid on account. The costs assessor determined that the costs of that assessment were $3,686.38. On 11 April 2013, a Costs Review Panel issued a Certificate of Determination affirming the Certificates of Determination of 15 August 2012.
On 13 September 2016, the Champion parties filed a summons in the District Court commencing an appeal against the decisions of the Costs Review Panel. The summons also sought an extension of time in which to appeal, since the summons had been filed substantially out of time.
The grounds of appeal may be restated as follows:
The Costs Review Panel denied the Champion parties procedural fairness.
The Costs Review Panel erred in failing to find that the costs assessor erred in proceeding to determine the application for assessment without having regard to the fact of the proceedings before the primary judge.
The Assessor and the Costs Review Panel erred in discounting the costs by only five per cent.
The Costs Review Panel erred in failing to find that the determinations by the costs assessor were manifestly unjust having regard to the conduct of Burrell Solicitors.
The Costs Review Panel misconstrued the evidence and constructively failed to exercise its jurisdictional task of conducting a review of the assessments by the assessor.
As stated previously, the proceedings were removed from the District Court into this Court. Both parties agreed that the Costs Appeal should be determined on the basis of the written submissions without further oral argument.

Extension of Time

The Champion parties accept that leave is required to extend the time for the commencement of the appeal to the District Court. The material date was when the Champion parties were given notice of the decisions of the Costs Review Panel, namely, 21 June 2013. [20] The summons commencing the appeal to the District Court was not filed until 13 September 2016.
The decision whether to extend time is a discretionary one. The factors relevant to the question whether to grant an extension of time include:

the length of the delay;
the reasons for the delay;
whether the applicant for extension has a fairly arguable case; and
the extent of any prejudice suffered by the respondent. [21]

The Champion parties invite the Court to have regard to the history of the proceedings and conduct of the parties in the Equity Division, the nature of that litigation and the consequences for the parties of the grant or refusal of the application for extension of time. [22] If the strict application of the time limit may occasion injustice, that is sufficient to grant an extension of time. The Champion parties contend that strict compliance with the relevant time limit in the present circumstances would occasion injustice to them. Burrell Solicitors opposes the extension of time on the basis that a refusal to extend time will not work an injustice to the Champion parties whereas an extension of time would work substantial injustice to Burrell Solicitors.
The Champion parties contend, as a basis for the exercise of the discretion to extend the time, that the costs assessor and the Costs Review Panel erred in proceeding with their determinations notwithstanding that the question of the liability of the Champion parties to Burrell Solicitors was in issue in the proceedings before the primary judge and had not been determined. They contend that because a certificate can be filed so as to take effect as a judgment, in circumstances where there is a real dispute on substantial grounds as to whether any costs are payable, a costs assessor should not complete an assessment by issuing a certificate. That is to say, a certificate should not be issued by a costs assessor unless satisfied that the costs are payable. [23] In the present case, the costs assessor could not have been so satisfied, while the proceedings before the primary judge were still on foot.
Both the assessor and the Costs Review Panel proceeded with their determinations over the objection of the Champion parties on the basis that the assessments were subject to the proceedings before the primary judge. Further, the proceedings before the primary judge were conducted on that basis from no later than 28 February 2012, a time before the determinations were issued.
Judgments based on the determinations were entered in the Supreme Court without notice to the Champion parties on 22 August 2013. Once judgment was entered, the District Court had no power to set the judgments aside. The judgments could only be set aside in the Supreme Court. That was part of the relief sought by the Champion parties in their Statement of Cross-Claim in the proceedings before the primary judge.
The Champion parties contend that the delay is self-evident due to the existence of the proceedings before the primary judge. They assert that there would be no prejudice to Burrell Solicitors because Burrell Solicitors has always been a party to those proceedings, and so it has always been on notice that liability for the costs assessments was in dispute. The Champion parties also assert that the questions raised in the Costs Appeal are limited to questions of law and do not depend upon any recollections or availability of witnesses.
Burrell Solicitors characterises the delay in the commencement of the Costs Appeal as "extraordinary", being more than three years following the receipt by the Champion parties of the decisions of the Costs Review Panel. It contends that there are no exceptional circumstances of the kind necessary to warrant an extension of more than three years. It points to the absence of any evidence on the part of the Champion parties explaining the reasons for the delay.
Further, Burrell Solicitors contend, even if it be the fact that the costs assessment and review process and the primary proceedings were conducted on the basis that the assessment of the entitlement of Burrell Solicitors to costs were subject to determination in due course in the primary proceedings, that is no explanation for the delay. It says the Champion parties could and ought to have commenced any appeal to the District Court within the time limit. It would have been open to them to ask the District Court to defer the hearing of the appeal pending the outcome of the primary proceedings in the Supreme Court. It would then have been a matter for the District Court to consider that application and the terms upon which the hearing might be deferred. The District Court would have had control of the management of the proceedings but, by choosing not to appeal, Burrell Solicitors asserts, the Champion parties denied it the opportunity of relying on the District Court to balance the competing interests of the parties as might have appeared appropriate to the District Court.
Burrell Solicitors points out that the date of entry of judgments in respect of the costs assessment, on 22 August 2013, was well after the period for appeal had lapsed, namely, 19 July 2013. In any event, the entry of judgment in respect of the costs did not prevent the Champion parties from commencing appeal proceedings in the District Court. A judgment that arises from the registration of a certificate under s 368(5) of the Legal Profession Act can be successfully challenged if the certificate on which it was based is set aside or varied. [24] While the registration of a certificate of determination makes the certificate enforceable as a judgment, it is no more than a ministerial act and does not make it a judgment of the court. [25] If an appeal had been commenced within time, it would have been a matter for the District Court to determine the most appropriate method of managing the appeal.
Burrell Solicitors also contends that there was no proper basis for the claim in the primary proceedings for an order setting aside the judgments entered on the basis of the certificates. While that relief was sought in the cross-claim, the Champion parties did not plead any grounds upon which the validity of the costs determinations or the judgments entered pursuant to them was challenged.
Burrell Solicitors contends that the scheme of Div 11 of Pt 3.2 of the Legal Profession Act is designed to ensure that the assessment of costs, and any review or appeal from such an assessment, be conducted as speedily and efficiently as possible. The role of the courts in that process is subjected to carefully circumscribed limits. [26] Burrell Solicitors contends that it would be inconsistent with the terms, scope and purpose of those provisions to permit an unsuccessful party to a review of a costs assessment to delay for more than three years before seeking to initiate an appeal in respect of the assessments under s 384 of the Legal Profession Act.
Burrell Solicitors contends that the prospects of success on the prospective appeal under s 384 of the Legal Profession Act are insufficient to justify an extension of time to appeal. That entails a consideration of the substance of the grounds of appeal, to which attention will be given in due course. It asserts that the parties conducted the litigation before the primary judge on the footing that the Champion parties had not appealed, or sought leave to appeal, from the determinations of the Costs Review Panel. Indeed, the primary judge adverted expressly to that matter in his Honour's reasons. [27]
Burrell Solicitors asserts the Champion parties had a full and fair opportunity to advance in the primary proceedings any and all issues that they wished to ventilate in support of their contention that Burrell Solicitors should be prevented from enforcing the judgments entered on the basis of the costs determinations. The Champion parties have availed themselves of the opportunity to appeal from the decision of the primary judge rejecting their claims. His Honour concluded that the costs determinations and the judgments entered on the basis of them established that the Champion parties have a liability to Burrell Solicitors for the amounts determined and that those amounts represent a fair and reasonable charge for the services provided. His Honour held that the certificates did not prevent the Champion parties from seeking to establish in the primary proceedings that such liability was, or was part of, a loss suffered as a result of the conduct of Burrell Solicitors that was misleading or deceptive or amounted to a breach of contract or breach of fiduciary duty. Those causes of action failed on their merits, subject, of course, to the Liability Appeal.
Burrell Solicitors contends that to permit the Champion parties to challenge the decisions of the Costs Review Panel at this stage, more than three years after the time to do so expired and following the litigation before the primary judge, would result in real prejudice to it. It would be forced to incur the substantial costs, stress, inconvenience and distraction of defending the Costs Appeal and any remittal of the kind foreshadowed by the Champion parties, in circumstances where the Costs Appeal should have been brought in July 2013 and may well have been resolved much earlier. Burrell Solicitors contends that the circumstance that it has already been forced to defend itself against allegations made by the Champion parties, in the proceedings before the primary judge and now in this Court in the Liability Appeal, is a powerful reason why the Champion parties should not be permitted an extension of time. [28]
At no time until shortly prior to the filing of the summons in the District Court did the Champion parties foreshadow any intention or possibility of seeking leave to appeal out of time. In the intervening period of more than three years, the parties have engaged intensively in litigation on multiple fronts on the footing that the judgments based on the costs determinations had not been, and would therefore not be, the subject of appeal. In that time, Burrell Solicitors served a statutory demand upon certain members of the Champion parties in reliance upon the judgments. That statutory demand was set aside by the Federal Court of Australia.
Separately, the Champion parties served a bankruptcy notice upon Mr Burrell in connection with an unrelated debt obtained by assignment from a third party. That resulted in further litigation in the Federal Circuit Court and a subsequent appeal to the Full Court of the Federal Court. The Champion parties obtained an order for costs against Burrell Solicitors in other proceedings in the Supreme Court, which they have indicated they will seek to set off against the costs judgments. In the other proceedings in the Supreme Court, enforcement of the costs judgments was stayed upon terms including payment into Court of part of the judgment sum.
Following dismissal by the primary judge of the claims by the Champion parties, Burrell Solicitors again sought to enforce the costs judgments by serving statutory demands. The Champion parties again sought orders staying the enforcement of the costs judgments. Burrell Solicitors, in turn, sought to restrain the Champion parties from dealing with their assets in a manner that may prejudice enforcement of the costs judgments. Those applications resulted in several contested hearings before a modus vivendi as agreed between the parties involving the payment of funds into Court and an undertaking by Mr Champion not to dispose of an identified parcel of real property.
Burrell Solicitors points out that, at no time during the course of the primary proceedings or after the commencement of the Liability Appeal did the Champion parties apply for expedition of the hearing. Despite the litigation in multiple jurisdictions over several years described above, the Champion parties made no effort to appeal from the determination of the Costs Review Panel until September 2016. They did not, prior to that time, notify Burrell Solicitors that they would seek to delay further the ultimate enforcement of the costs judgments by bringing the Costs Appeal. Burrell Solicitors says that those circumstances result in serious prejudice to it in the event that time were now extended. Of course, a significant reason for the removal of the costs appeal from the District Court to this Court was to avoid further delay.
The Champion parties rely on the fact that during the conduct of the proceedings before the primary judge, the enforcement of the costs judgments was stayed. They assert that the delay is explained by the conduct of the proceedings at first instance and that the preservation of the status quo by reason of the stay removes any question of prejudice. They repeat that questions of liability for payment of the costs ought to be resolved before any question of the quantum of the costs is resolved. They assert that, until his Honour had delivered reasons concerning the wrongful conduct by Burrell Solicitors, the utility of an appeal from the decision of the Costs Review Panel could not be known because the seriousness of the misconduct complained of in the proceedings at first instance bore upon the exercise of the assessor's discretion.
The Champion parties contend that it would not have been appropriate to prosecute an appeal from the determination of the Costs Review Panel in relation to the other four grounds in the summons commencing the appeal since to do so would risk not being able to prosecute the second ground. Therefore, they say, the appropriate course was that taken in the proceedings at first instance, namely, to include a prayer for an order setting aside the costs judgments in the Supreme Court so as to be in a position to challenge the decision of the Costs Review Panel under s 384 of the Legal Profession Act.
That contention, however, does not have regard to the fact that no basis for setting aside the costs judgments could be demonstrated unless the determination of the Costs Review Panel was set aside. That could only be done by way of appeal to the District Court on such grounds as were available under the Legal Profession Act in such an appeal. On the other hand, the position could have been preserved by adopting the course suggested by Burrell Solicitors. That is to say, the Champion parties could have filed a summons commencing the appeal, thereby making clear to Burrell Solicitors that their intention to challenge the determination of the Costs Review Panel.
The second ground relied upon in the Costs Appeal is that the assessor ought not to have embarked on the assessment so long as the proceedings before the primary judge were on foot. In the events that happened, the Champion parties obtained a stay of the costs judgments. To that extent, they were not prejudiced by the fact that the assessor embarked on and completed the assessment. The assessment required a determination of the quantum of costs that was fair and reasonable for the work actually performed by Burrell Solicitors. The question of whether the Champion parties should pay that amount would depend upon the outcome of the proceedings before the primary judge. So long as there was a stay, there is no reason why they could not have abandoned the second ground and pursued the other grounds which are concerned with determining whether the quantum of costs was fair and reasonable.
The Champion parties assert that there has been no prejudice to Burrell Solicitors by reason of the delay in the commencement of the Costs Appeal. They assert that the dispute as to the liability to pay the amount of the costs assessments and the effect of that liability was raised both with the costs assessor and the Costs Review Panel and, thereafter, the judgments entered pursuant to the determinations were stayed. They dispute that the Costs Appeal is a further opportunity to challenge or re-litigate matters already determined in the costs assessment and by the Costs Review Panel. There has been no determination of costs by reference to the factual findings made by the primary judge, which are highly critical of Burrell Solicitors. They assert that there has been significant prejudice to them by reason that the costs assessments were made without reference to those findings.
The Champion parties also assert that the true cause of the delay in the listing of the first instance proceedings before the primary judge should be laid at the feet of the Burrell parties. Thus, on 24 December 2013, Burrell Solicitors commenced proceedings 2013/386077 (the 2013 proceedings). The 2013 proceedings were then amalgamated with the proceedings before the primary judge. Burrell Solicitors did not file its statement of claim in the 2013 proceedings until 6 March 2014, a delay of two months. It was then necessary for the parties to file further evidence in relation to the claims made by Burrell Solicitors in the 2013 proceedings. Ultimately, the 2013 proceedings were not pressed and were dismissed. The primary judge reserved his decision from 3 June 2015 until 24 March 2016.
As indicated above, the Costs Appeal was commenced a substantial period after the time provided for under the Legal Profession Act and the UCPR. Burrell Solicitors was entitled to assume that, notwithstanding that the Liability Proceedings were on foot, followed by the Liability Appeal, once those proceedings were completed, the dispute with the Champion parties would be at an end. In the events that have occurred, even if the Liability Appeal is dismissed, and the Costs Appeal were allowed in relation to Ground (1) or Grounds 3, 4 or 5, there would be further delay before final resolution of the dispute. Ground (2) has now become otiose, insofar as the Liability Appeal and the Costs Appeal will be decided at the same time. That is to say, even if there is substance in Ground (2), it no longer matters.
Having regard to the conclusion reached above in relation to the grounds relied on in the Liability Appeal, the Liability Appeal must be dismissed. The Costs Appeal therefore has the possible effect of prolonging the dispute between the Burrell parties and the Champion parties. As will appear below, there is no substance in the grounds of appeal of the Costs Appeal. An extension of time should therefore be refused. Nevertheless, it is appropriate to address the grounds of appeal.

Ground (1): Denial of procedural fairness

The Champion parties contend that it is apparent from the reasons of the Costs Review Panel that it adopted a procedure that occasioned practical injustice to them in several ways. The Costs Review Panel stated that it determined that it would not receive any fresh submissions or take any fresh evidence in relation to the review. Nevertheless, the reasons of the Costs Review Panel indicate that, on 5 April 2013, a member of the Costs Review Panel inspected the file of Burrell Solicitors at its offices at Kogarah. The reasons record that the file consisted of over 60 lever-arch files and 6,000 email exchanges, many of which were between Burrell Solicitors and the Champion parties. The Champion parties complain that none of that material was before the assessor.
The Champion parties assert that, if the Costs Review Panel determined to adopt the course of inspecting that material, they were entitled to know and be present, at least so that they could hear anything that was said or pointed out by Burrell Solicitors to the member of the Costs Review Panel. They could then be satisfied that the member of the Costs Review Panel was being shown the work actually undertaken by Burrell Solicitors that was referrable to the costs that were the subject of dispute.
The Champion parties also complain that only one member of the two-member Costs Review Panel reviewed the material upon which the decisions of the Costs Review Panel were purportedly made. They contend that the Costs Review Panel, as a whole, could not have fulfilled its statutory task when each member looked at different material. They also complain that the Costs Review Panel did not permit submissions to be made on the additional documents reviewed by one of its members. They say that, once the Costs Review Panel had taken on the function of the costs assessor, more was required than merely a review of the original file. They say that the Costs Review Panel manifestly failed to comply with s 359 of the Legal Profession Act.
Burrell Solicitors responds by asserting that a denial of procedural fairness is not a "decision" of the Costs Review Panel "as to a matter of law arising in the proceedings" within the meaning of s 384 of the Legal Profession Act. Section 384 provides a narrow avenue of appeal which is restricted to a challenge to a decision as to a matter of law arising in the proceedings to determine an application. It has an ambit that is not equivalent to error in point of law or the like. [29] Burrell Solicitors asserts the expression "decision as to a matter of law" as used in s 384 of the Legal Profession Act does not include a denial of procedural fairness. [30] In effect, Burrell Solicitors contends the remedy for a denial of procedural fairness would be to seek prerogative relief in the Supreme Court under s 69 of the Supreme Court Act 1970 (NSW) (the Supreme Court Act).
Burrell Solicitors asserts, in any event, that there was no denial of procedural fairness on the part of the Costs Review Panel. It asserts that the Costs Review Panel did not determine to receive fresh evidence under s 375(3) of the Legal Profession Act but rather required production, under s 376(1) of the Legal Profession Act, of documents relating to the assessment of costs, namely, the file of Burrell Solicitors. It says that, as a matter of convenience, production was effected by means of inspection at the offices of Burrell Solicitors. Procedural fairness did not require the Champion parties to be present during such an inspection. The obligation of the Costs Review Panel under s 359(1) to give the parties a reasonable opportunity to make written submissions did not require that there be a further round of submissions following the inspection of the file by a member of the Costs Review Panel.
Burrell Solicitors asserts that procedural fairness does not ordinarily require that a decision-maker adopt an "open file" policy that would have the effect of disclosing every submission or piece of evidence to an affected party. [31] There is no general obligation to disclose the deliberative processes or proposed conclusions of a decision-maker. The concern of the law is to avoid practical injustice. The practical question is whether the Champion parties were given a reasonable opportunity to address issues relevant to their interests.
Burrell Solicitors asserts that no adverse material, let alone any adverse material that was credible, relevant or significant was identified or even suggested by the Champion parties as flowing from the inspection of the file of Burrell Solicitors by the member of the Costs Review Panel. It asserts that, even if the Court were to conclude that there was any denial of procedural fairness, any such denial had no material effect on the outcome before the Costs Review Panel. The Costs Review Panel emphasised that it agreed with the reasons of the costs assessor and adopted the entirety of those reasons as its own. No part of the reasons was affected by or depended upon any observation made by the member of the Costs Review Panel during their inspection of the file. Thus, Burrell Solicitors says, any denial of procedural fairness could not have deprived the Champion parties of the possibility of a more favourable outcome before the Costs Review Panel.
The Champion parties contend that a denial of procedural fairness is a jurisdictional error that constitutes a matter of law arising in the proceedings. [32] Accordingly, they say, the phrase "decision ... as to a matter of law" is wide enough to encompass a question of mixed law and fact. [33] The phrase used in s 384 is wide enough to encompass a denial of procedural fairness.
In response to the contention raised by the Burrell Solicitors, at [259] above, the Champion parties point out that in their reasons the Costs Review Panel observed that there could be no doubt, having regard to the file, that the Champion parties instructed Burrell Solicitors to do work, that Burrell Solicitors did that work, and that the relationship continued over a long period of time. They say that the Costs Review Panel must have found the material to be "credible, relevant and significant", and that it considered it in a manner adverse to the Champion parties. Whether or not the file demonstrates that fact, there can indeed be no doubt as to those matters. The Champion parties cannot seriously dispute that finding. If that is the extent to which reliance was placed upon the observation of the 60 folders, there can be no finding of a denial of procedural fairness.
While it is most unfortunate that a member of the Costs Review Panel considered it appropriate to examine the file, it is not apparent to any extent that information was gleaned by the member of the Costs Review Panel upon which the Champion parties would be entitled to comment in order to ensure procedural fairness. There is no substance in Ground (1).

Ground (2): Absence of Determination of Liability

The Champion parties submitted to the assessor that the question of the liability to pay costs to Burrell Solicitors should be referred to the Supreme Court for adjudication under the primary proceedings. The relevant principle is referred to at [269] above. [34] The Costs Review Panel rejected that contention by the Champion parties and found that the Champion parties had instructed Burrell Solicitors to do work, Burrell Solicitors did that work and the relationship continued over a long period of time. The Costs Review Panel held that a law firm is entitled to recover from its client fair and reasonable costs for work reasonably performed although an entitlement to costs arises by reason of the retainer of the lawyer by the client. In the present case, there was no challenge to the retainer of Burrell Solicitors by the Champion parties. The Costs Review Panel agreed with the manner in which the task was performed by the assessor, the reasons given by the assessor and the conclusions reached by the assessor. The Costs Review Panel observed that there may be issues that the Champion parties wished to have addressed by a court but that was a matter for the Champion parties. The Costs Review Panel did not consider that those issues went to any entitlement of Burrell Solicitors to an assessment of the costs for the work that it actually carried out.
The assessor observed that the parties were involved in litigation in which the issue as to whether Burrell Solicitors had acted in accordance with competent professional practice was in issue. The assessor was of the view that the Court could disallow the costs determined and order a refund. The assessor observed that if they were wrong about that aspect of the case and Burrell Solicitors did not conduct itself in accordance with competent professional practice, nothing decided by the assessor would deprive the Champion parties of a remedy.
The Champion parties contend that the assessor erred at law and, because the Costs Review Panel relied on the assessor's reasons, that error infected the determinations of the Costs Review Panel. The Champion parties assert that it is apparent from the Costs Review Panel's reasons, as summarised above, that it did not understand the legal argument raised by them. They assert that the fact that they instructed Burrell Solicitors to perform work and that Burrell Solicitors performed the work and charged for it does not address the underlying liability, which may be vitiated by misleading and deceptive conduct. Thus, the Costs Review Panel was wrong to proceed to make its determination in circumstances where proceedings alleging breach of retainer, misleading and deceptive conduct and negligence were already on foot in the Supreme Court. The Champion parties point to the ultimate findings made by the primary judge that Burrell Solicitors engaged in conduct in contravention of s 42 of the Fair Trading Act and s 52 of the Trade Practices Act and, from 1 January 2011, s 18 of the ACL. The primary judge observed that a legal practitioner's claim for remuneration may be defeated by the legal practitioner's negligence. Thus, an assessment of what remuneration is fair and reasonable may require a determination of an allegation of negligence or failure to adhere to an instruction. If available procedures before the costs assessor did not enable such a determination to be made, the appropriate course would be for the costs assessor to decline making an assessment. [35]
Burrell Solicitors contends that neither the assessor nor the Costs Review Panel fell into legal error by failing to defer the assessment. Where the existence of the terms of the agreement between solicitor and client are in dispute in a way that would require the hearing of evidence to resolve, it may be appropriate for the costs assessor to decline to resolve the dispute. [36] However, Burrell Solicitors contends, that principle does not apply in the present case because the existence of the terms of the agreement were not in dispute in a way that would require the hearing of evidence to resolve.
In any event, Burrell Solicitors contends, the question has now been resolved by the primary proceedings and will be resolved by the substantive appeal. The dispute as to whether any costs are payable will be finally determined by the substantive appeal. The primary judge quelled the dispute in circumstances where his Honour was aware of and carefully analysed the assessment made by the assessor as upheld by the Costs Review Panel. If the substantive appeal is dismissed, there would be no utility in setting aside the decision of the Costs Review Panel on the basis of Ground (2) or in remitting to it any further consideration of the assessment of the costs. Alternatively, if the Court allows the appeal from the orders made by the primary judge, any award of monetary compensation in favour of the Champion parties would be set off against the assessed amount of the costs judgments. Thus, success by the Champion parties on Ground (2) would not entitle them to re-open the question of the assessment of costs because the dispute as to whether any costs are payable would have been finally resolved by this Court. Whether or not the Costs Review Panel or the assessor erred in failing to defer the assessment is of no consequence.

Grounds (3) and (4): Wrong exercise of discretion

The Champion parties contend that, because the assessor proceeded to assess costs when liability was in dispute, he approached the discretionary task under s 317(4) of the Legal Profession Act incorrectly. Section 317(4) permits an assessor to reduce legal costs for non-disclosure in an amount that is considered to be proportionate to the seriousness of the failure to disclose. The assessor discounted the costs by five per cent by that reason. However, the Champion parties complain that that discount does not reflect the seriousness of the failure to disclose the significant discrepancy between the costs estimated by Burrell Solicitors and the costs that were actually charged.
The assessor allowed the discount in the amount of five per cent because he did not believe that the Champion parties were badly misled or that they received a standard of care that was inappropriate. They complain that that finding was at odds with the conclusions later reached by the primary judge. Further, it went to an issue that was very much in dispute in the proceedings at first instance. It required the resolution of contested factual questions and, the Champion parties contend, was a matter on which the assessor ought to have declined to make a determination. Had the assessor awaited the outcome of the proceedings before the primary judge, the findings of fact necessary to inform the exercise of discretion would have been before the assessor.
On that basis, the Champion parties contend, a five per cent discount for a failure to disclose of the magnitude in question is disproportionate. Even on the assessor's view the failure was serious. The assessor referred to "a quite serious instance of a failure to disclose", a failure in a legal obligation for reasons that were "totally unexplained". The assessor described the failure as relating not only to ongoing disclosure but to the possibility and quantum of party/party costs.
The Champion parties complain that the amounts claims for costs by Burrell Solicitors amounted to more than $700,000 whereas the amount of the disclosure was $12,650. The claims were for costs outstanding and ignored the significant sums that had already been paid. They assert that in circumstances where the seriousness of the failure to disclose was so egregious, the assessor's opinion that the conduct warranted only a five per cent discount was no more than a "token nod" to s 317(4) of the Legal Profession Act and was not an opinion reasonably open to the assessor. The Champion parties assert that that failure falls within the principles propounded in House v The King. [37]
The Champion parties rely on the same reasoning for concluding that the assessor and the Costs Review Panel erred in not discounting the fees of Mr Robertson. The assessor declined to do so, on the basis that Burrell Solicitors was primarily reasonable for payment of counsel's fees and should be allowed to recover them in full where the breach of s 316 was to a great extent beyond the control of Mr Robertson.
The Champion parties contend that the obligation of disclosure as between Burrell Solicitors and them was on Burrell Solicitors. If Mr Robertson failed in his obligations, the consequences ought not to be borne by the Champion parties as the client.
The Champion parties also complain that the assessor erred in holding that there was no right for Burrell Solicitors to have Mr Robertson's costs assessed since s 351 of the Legal Profession Act provides such an avenue. They complain that the combination of the erroneous approach and the erroneous reasoning with regard to Mr Robertson's fees resulted in a manifestly unjust determination.
The response of Burrell Solicitors is that none of the reasoning advanced on behalf of the Champion parties constitutes an error of principle or any other error of the nature identified in House v The King. Specifically, the errors alleged did not constitute a decision of the Costs Review Panel as to a matter of law arising in the proceedings to determine the application, within the meaning of s 384 of the Legal Profession Act.
Burrell Solicitors contends that the reasons given by the assessor for reducing the amount of costs by five per cent, with which the Costs Review Panel agreed, did not disclose an error of principle or other error capable of grounding an appeal under s 384 of the Legal Profession Act. Rather, Burrell Solicitors assert the selection of the reduction of five per cent was principled, fair and reasonable and was consistent with the conclusion ultimately reached by the primary judge that the failure to provide updated costs estimates did not cause the Champion parties any loss.
The matters raised in Grounds 3 and 4 do not disclose an error within House v The King. There was no application of a wrong principle and no misapprehension of the facts upon which the discretion was exercised. The grounds are an impermissible attempt to have the exercise of discretion re-exercised on appeal.

Ground (5): Misconstruing the evidence

By Ground (5), the Champion parties revert to the circumstances said to give rise to the denial of procedural fairness. The one member of the Costs Review Panel who inspected the file of Burrell Solicitors at the Kogarah office was presented with the wrong material. They assert that the member of the Costs Review Panel appears to have reviewed many folders that were not referable to the work that was the subject of the assessment that was under review by the Costs Review Panel. The Champion parties give no further particulars but say that they wish to rely on a Notice to Produce in order to establish that the wrong material was reviewed.
Burrell Solicitors contends that the errors complained of under Ground (5) are not capable of satisfying the requirements under s 384 of the Legal Profession Act that it is a decision as to a matter of law arising in the proceedings that is subject to appeal. Further, Burrell Solicitors points to the absence of any evidence demonstrating that the Costs Review Panel reviewed the wrong material. There is no power in the District Court, and therefore no power in this Court upon transfer of the proceedings to this Court, to make findings of fact on an appeal as to a matter of law under s 384. Whether or not such an error might have given rise to a right of review under s 69 of the Supreme Court Act is not to the point.
The matters complained of do not constitute a decision as to a matter of law arising in the proceedings. It was a matter for the Costs Review Panel to determine what inferences it should draw from the evidence. There was no misconstruing of the evidence by the Costs Review Panel.

Conclusion

The liability appeal should be dismissed. The application for an extension of time in relation to the Costs Appeal should be refused. The Champion parties should pay the costs of the Burrell parties in both proceedings.

Endnotes

Part 3A of the Planning Act was repealed in 2011 by the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (NSW).
Excluding a discount offer of 10%.
Excluding a discount offer of 10%.
See for example Nadinic v Drinkwater [2017] NSWCA 114 at [100].
Burrell Solicitors Pty Ltd v Reavill Farm Pty Ltd [2016] NSWSC 303 at 6 ('Burrell Solicitors v Reavill Farm').
Ibid at [70].
Ibid at [72].
Ibid at [74].
Ibid at [77].
Ibid at [75].
Ibid at [45].
Ibid at [46].
See [113] above.
See [55] above.
Excluding GST.
A type of directions hearing which is conducted electronically.
Burrell Solicitors v Reavill Farm at [173].
Ibid at [174].
Ibid at [93].
See Uniform Civil Procedure Rules 2005 (NSW), r 50.3(1)(a) ('UCPR').
Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369.
See Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479; and Jingalong Pty Ltd v Todd [2014] NSWCA 330 at [39]-[40] per McColl JA.
Doyle v Hall Chadwick [2007] NSWCA 159 at [61] per Hodgson JA (Mason P and Campbell JA agreeing) ('Doyle v Hall Chadwick').
Ibid at [48]-[54] per Hodgson JA (Mason P and Campbell JA agreeing).
Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227 at [76] per McColl JA.
See Griffith v Australian Broadcasting Corporation [2013] NSWSC 750 at [23]-[24] per Beech-Jones J; and Adelaide Bank Ltd v Phontos [2016] FCA 824 at [70] per Robertson J.
Burrell Solicitors v Reavill Farm at [125], [152].
See DCL Constructions Pty Ltd v Di Lizio [2007] NSWSC 1180.
Adamson v Miller [2005] NSWSC 971 at [10] per Malpass AsJ
Ibid at [10], [18] per Malpass AsJ. I note that Adamson v Miller was concerned with the costs assessment regime under the Legal Profession Act 1987 (NSW), specifically s 208L. Section 208L is in substantially the same terms as s 384 of the Legal Profession Act 1997 (NSW) and the phrase "decision of a costs assessor as to a matter of law arising in the proceedings" appears in both provisions.
See for example Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 at [44] per Spigelman CJ, [231] and [245] per Mason P (Ipp AJA agreeing).
See Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [5] per Gleeson CJ, [41] per Gaudron and Gummow JJ, [142], [169] per Kirby J, [210] per Callinan J.
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [91] per Hayne, Heydon, Crennan and Kiefel JJ (French CJ agreeing).
See Doyle v Hall Chadwick at [61].
In Burrell Solicitors v Reavill Farm at [155], the primary judge referred to Doyle v Hall Chadwick at [61] per Hodgson JA (Mason P and Campbell JA agreeing).
See Doyle v Hall Chadwick at [61] per Hodgson JA (Mason P and Campbell JA agreeing).
(1936) 55 CLR 499; [1936] HCA 40. 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: 28 June 2017

Trade Practices Act 1974(Cth)

Legal Profession Act 2004(NSW)

Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011(NSW)

See Uniform Civil Procedure Rules 2005(NSW)

Legal Profession Act 1987(NSW)

Legal Profession Act 1997(NSW)

6] HCA 40 I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd (2002) 210 CLR 109; [2002] HCA 41 Jingalong Pty Ltd v Todd [2014] NSWCA 330 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Minister for Local Government v South Sydney City Council (2002) 55 NSWLR 381; [2002] NSWCA 288 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388; [2004] HCA 3 Nadinic v Drinkwater [2017] NSWCA 114 Re Refugee Tribunal; Ex Parte Aala (2000) 204 CLR 82; [2000] HCA 57 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 Travel Compensation Fund v Tambree (2005) 224 CLR 627; [2005] HCA 69 Zepinic v Chateau Constructions (Australia) Ltd (No 2) [2013] NSWCA 227 Texts Cited: Nil Category: Principal judgment Parties: Reavill Farm Pty Ltd (First Appellant) Champions Quarry Pty Ltd (Second Appellant) Jeffrey Francis Champion (Third Appellant) Diana Christine Champion (Fourth Appellant) Macabil Pty Ltd (Fifth Appellant) Burrell Solicitors Pty Ltd (First Respondent) John Llewellyn Burrell (Second Respondent) Representation: Counsel: R Cheney SC with V McWilliam (Appellants) A J McInerney SC with L T Livingston (Respondents)

Solicitors: Resolve Litigation Lawyers (Appellants) BS Legal t/as Burrell Solicitors ILP (Respondents) File Number(s): 2016/121807; 2017/55149 Decision under appeal Court or tribunal: Supreme Court of New South Wales;Costs Review Panel Jurisdiction: Equity;- Citation: [2016] NSWSC 303; - Date of Decision: 24 March 2016; 11 April 2013 Before: White J;Mr Stephen Lancken and Mr John Sharpe File Number(s): 2011/365912; 360984/2011

BATHURST CJ: I have had the advantage of reading the judgment of Leeming JA and Emmett AJA in draft. I agree with the orders proposed by their Honours and with their Honours' reasons. I would only add the following remarks on Ground 1 of the Grounds of Appeal, which I do not believe are in any way inconsistent with their Honours' reasons. For convenience, I have used the same abbreviations as those used by their Honours.

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