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Category: Principal judgment

Parties: Adam Leslie Troost (Plaintiff)
Coleman Greig Lawyers Pty Ltd (Defendant)

Representation: Counsel:
H W Somerville (Plaintiff)
M Castle (Defendant)
Solicitors:
Sissian & Associates (Plaintiff)
Coleman Greig Lawyers Pty Ltd (Defendant)

File Number(s): 2026/9527

Publication restriction: Nil

JUDGMENT

1. By Summons dated 9 January 2026, the plaintiff (the Client) appeals under s 89(1)(b) of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) against a determination of a costs assessment review panel (the Review Panel) dated 9 December 2024 (“D”).

2. The issues in dispute in this matter are relatively confined. The defendant is Coleman Greig Lawyers Pty Ltd (the Law Practice). The Costs Assessor, Ms Dulhunty, had allowed the work of a particular employee of the Law Practice, Ms Wendy Cousens, who is not a qualified legal practitioner, at a particular hourly rate. The Review Panel, after considering the material and submissions before it, allowed the work at higher hourly rates. In this Court, the Client seeks to challenge the conclusion of the Review Panel allowing the work of Ms Cousens at the higher rates.

3. Section 89(1)(b) of the Application Act confers a right to appeal against a decision of a review panel if the amount of costs in dispute is equal to or greater than $100,000. By his Summons, the Client proceeded on the assumption that the amount of costs in dispute was more than $100,000. As such, he did not seek leave to appeal. The Law Practice did not dispute this in its submissions filed in advance of the hearing. Whether the amount in issue was in fact equal or greater than $100,000 was raised at the hearing of this appeal. After the hearing, the parties filed submissions accepting that the amount in dispute was less than $100,000 and that the Client required leave to appeal. The Client then sought such leave, which the Law Practice opposed.

4. In terms of the underlying appeal, the Client accepted that the powers of this Court under s 89(1)(b) of the Application Act are exercisable only where the appellant demonstrates on all the evidence that there was some legal, factual or discretionary error in the Review Panel’s decision: Sweeten v Haggerty [2025] NSWSC 673 at [19].

5. For the reasons set out below, I refuse leave to appeal. The Client has not raised an error of principle, matter of public importance, or injustice such as to warrant a grant of leave. Accordingly, I dismiss the Summons and order the Client to pay the Law Practice’s costs.

Evidence relied on

6. The evidence before me comprised:

7. An affidavit of Mr Adam Leslie Troost affirmed on 22 May 2026;

8. An affidavit of Mr James Michael Ferguson sworn on 11 June 2026; and

9. Certificate of Determination of Review (affirmation) signed by Kerry Hogan-Ross and John Bartos, a certificate issued by the Review Panel on 4 November 2026 and sent to the parties on 12 December 2026.

Factual background

Legal services provided by Law Practice to Client

7. The Law Practice was instructed by the Client on about 3 December 2021 to act for him in respect of family law proceedings involving property and parenting disputes that were already on foot. Prior to that, the Client had been represented by another law firm.

8. It is common ground that the matter was a complex family law dispute. The matter was entered into the Major Complex Financial Proceedings List and involved complex financial holdings including 12 entities and 12 trusts. The pool of assets at issue was between $88-$117 million. The property dispute was settled during the course of a hearing on 14 March 2023. The parenting dispute was not finalised by the time the Law Practice ceased acting for the Client in April 2023.

9. A schedule to the costs agreement the Client originally entered with the Law Practice on about 3 December 2021 disclosed the rates of various people who would be working on the matter, including the following:

“Wendy Cousens Financial Law Analyst $380.00”

10. Then on 20 August 2022, the Law Practice disclosed to the Client that the rates charged on the matter would increase, including Ms Cousens’ rate, which would increase to $395 per hour.

11. The property and parenting matters were separated sometime in the second half of 2022. A separate costs agreement was provided in relation to the property aspect of the proceedings on 11 November 2022. As part of that costs agreement, the Law Practice disclosed the rates of various people who would be working on the property matter, including Ms Cousens at $410 per hour.

12. The Law Practice’s retainer was terminated on about 6 June 2023. During the course of the retainer, the Law Practice rendered to the Client 15 invoices amounting to $1,572,696.78, all of which were paid.

Application for costs assessment

13. On 7 August 2024, the Client filed an application for an assessment of costs, seeking assessment of the last three invoices in the amount of $512,571.89. The application required an extension of time. The matter was then referred to the Cost Assessor on 3 September 2024.

14. After an extension of time was granted, on 4 November 2024 the Client filed an amended application seeking assessment of selected costs in a further five invoices in the amount of $339,428.50. As such, the total amount the Client sought to have assessed was $852,000.39. The Client only objected to the use of the hourly rate for Ms Cousens in respect of some of her work items: D [5.37].

15. The Cost Assessor made her determination on 9 December 2024. She determined that the Law Practice had failed to comply with disclosure requirements. The Cost Assessor then determined the fair and reasonable amount of professional costs at $469,195.63 and disbursements of $6,600, totalling $475,796.12 (incl GST). As part of her decision, the Costs Assessor determined that the rate to be allowed for the work items of Ms Cousens that had been objected to was $275 per hour: D [5.29].

Decision of the Review Panel

16. The Law Practice then made an application for review under s 83(1) of the Application Act to the Review Panel. On 4 November 2025, the Review Panel made its determination on the review.

17. The Review Panel described its task as follows:

“2.1 The Legal Profession Uniform Law Application Act 2014 (“2014 Act”) and Legal Profession Uniform Law (NSW) (“LPUL”) apply to solicitor/client costs where instructions were given after 1 July 2015.

2.2 The instructions in relation to each of the matters were given after 1 July 2015.

2.3 Accordingly, the applicable legislation for assessment was and for review is the 2014 Act.

2.4 Section 85 (1) of the 2014 Act provides that the Review Panel may review the determination of the Costs Assessor and may either affirm the Costs Assessor’s determination or set aside that determination and substitute such determination in relation to the costs assessment as, in the opinion of the Review Panel, should have been made by the Costs Assessor.

2.5 Section 85 (2) of the 2014 Act provides that in relation to the Application for Review, the Review Panel has all the functions of a Costs Assessor and is to determine the Application in the manner that a Costs Assessor would be required to determine an Application for costs assessment.

2.6 The Court of Appeal in Wende v Horwath (NSW) Pty Limited1 held that the meaning of the term “review” and what it requires is not fixed and must be taken from the context in which it appears. The function of a review panel under s 375 of the Legal Professional Act 2004 will vary according to the way in which the applicant for review chooses to frame his or her application. (The provisions of s375 of the Legal Professional Act 2004 are largely mirrored in s 85 of the Act.)

2.7 The Court held that a review panel is not required to make a new assessment as if the original assessment had never been made. The starting point will generally be the original determination of the costs assessor. Where the person making an application for review elects to raise particular objections, a review panel will be entitled to proceed on the basis that that person is, in all other respects, content with the original assessment. In such a case, the panel will adequately perform its function by dealing with the expressed grounds of objection and giving each of them separate and distinct consideration.”

18. No issue is taken in this appeal as to the Review Panel’s description of its task.

19. Ground 6 before the Review Panel related to the hourly rate of Ms Cousens. This is the only aspect of the Review Panel’s reasoning that is in issue in the proceedings before this Court.

20. The Review Panel set aside the determination of costs made by the Costs Assessor and substituted the following determination:

“The Review Panel determines the application by assessing as fair and reasonable legal costs in the amount of $750,743.69 and disbursements in the amount of $9,398.89, being the total amount of $760,142.58 including GST.”

Appeal to this Court

21. The Client now seeks leave to appeal to this Court under s 89(1)(b) of the Application Act on two grounds:

Ground 1: The Review Panel erred in allowing the hourly rate of Wendy Cousens at $380 per hour up to 20 August 2022, and then at $395 per hour until 11 November 2022 and $410 per hour thereafter.

Ground 2: The Review Panel erred in giving consideration, at 5.36 to 5.38 of the Reasons, to the fact that the plaintiff did not lodge objections in relation to all of Ms Cousens’ work when the obvious explanation of that was the plaintiff’s intention to confine the assessment to larger cost items and limit the costs of the assessment.

Legal framework

Leave to appeal

22. The principles governing a grant of leave to appeal (in the context of s 101(2) of the Supreme Court Act 1970 (NSW)) were summarised by Beazley P and Simpson JA in Gibson v Drumm [2016] NSWCA 206 at [19]:

“There are no exhaustive or rigid rules of practice or criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; 148 CLR 170. However, it has been consistently stated that leave should only be granted where there are substantial reasons that call for appellate review: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572; 104 FCR 564, and, in particular, where there is an error of principle, a matter of public importance, or injustice which is reasonably clear in the sense of going beyond what is merely arguable: see Darrell Lea (Vic) Pty Ltd v Union Assurance Society of Australia Ltd [1969] VR 401; Niemann v Electronic Industries Ltd [1978] VR 431; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Minogue v Williams (2000) 60 ALD 366; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164; Clarke v State of New South Wales [2015] NSWCA 27. In Collier v Lancer (No 2) [2013] NSWCA 186, the Court reiterated that appellate review will be warranted where, for instance ‘there is an error of principle which, if uncorrected, will result in substantial injustice’.” (Emphasis added).

23. The above principles have been applied in various contexts, including leave to appeal under s 89 of the Application Act (see Bevan v Bingham [2024] NSWSC 1349 at [15] (Harrison AsJ); Clutch & Brake Australia Pty Ltd v Khamis [2018] NSWSC 777 at [7]; [42] (Harrison AsJ)). See also, the application of these principles in the following contexts: appeals from the District Court (Ahmad v University of Sydney [2026] NSWSC 1042 at [30] (Griffiths AJ)); appeals from NCAT (Rosen v Louey [2026] NSWSC 1048 at [12] (Griffiths AJ); J & E Miller (Builder) Pty Ltd v Awad [2026] NSWSC 411 at [18] (Sirtes J)); and appeals from the Local Court (Alan K Davies Pty Ltd v Agaiby [2025] NSWSC 1271 at [47] (Griffiths AJ)).

Appeal under s 89(1)

24. I gratefully adopt the recent summary by Payne JA of the principles relevant to an appeal under s 89 of the Application Act in Sweeten v Haggerty:

“[19] The powers of this Court by way of a hearing under [s 89(4)] are exercisable only where the appellant demonstrates on all the evidence that there was some legal, factual or discretionary error in the Review Panel’s decision. It is not a de novo hearing. In Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114, Meagher JA (with whom Macfarlan and White JJA agreed) considered the meaning of “a rehearing” in s 89 of the LPULAA. Meagher JA explained:

‘[7] The nature of an appeal by way of rehearing is described in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23] (Gaudron, Gummow, McHugh and Hayne JJ) by reference to the characteristics which distinguish it from a hearing de novo and an appeal in the strict sense:

“For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance. And the critical distinction, for present purposes, between an appeal by way of rehearing and an appeal in the strict sense is that, unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance whereas, on an appeal by way of rehearing, an appellate court can substitute its own decision based on the facts and the law as they then stand.”

[8] The following passage from the judgment of Gageler J in Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [31] makes clear that while it remains necessary to identify an error in the decision appealed from, in an appeal by way of rehearing that requirement may be satisfied by reason of further evidence adduced in the appeal or a change in the law which has the result that looked at in retrospect the decision appealed from was in one or more respects incorrect:

“For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal.”‘

[20] In Gazecki v McCabes Lawyers Pty Ltd (2020)102 NSWLR 259; [2020] NSWCA 98, Basten JA (with whom Leeming JA and Simpson AJA agreed) considered the nature of a costs appeal under s 89. His Honour contemplated that a lower standard of scrutiny of the Review Panel’s decision might be appropriate:

‘[42] … the court is not given specific powers, but rather is said to have “all the functions of the review panel.” The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing “the determination of a costs assessor”: s 85(1). For that purpose, the review panel has “all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment”: s 85(2). The review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal “by way of a rehearing”.

[43] No submissions were made in this Court on the scope and operation of s 89; accordingly, it is both unnecessary and inappropriate for the Court to resolve these questions in this case. What is clear, however, is that courts exercising jurisdiction under this provision must pay close attention to the terms of the statutory power and should not adopt statements from earlier cases dealing with different powers, unless persuaded that they remain applicable. Although the distinction between appeals on matters of law and appeals from the final determination of a costs assessment have been removed, it may, nevertheless, be appropriate to adopt different standards of scrutiny with respect to each. Thus, questions of law are inherently liable to review according to a correctness standard; a lower standard of scrutiny may well be applicable to an assessment of what costs are fair and reasonable in the circumstances of the particular case. Particularly is that so where a specific body of costs assessors, appointed solely for that function, reach evaluative judgments. Furthermore, costs assessors are expected to ensure consistency of approach, being a standard which cannot readily be applied by a reviewing court with limited experience of such matters.’

(Emphasis added)

[21] That the nature of an appeal under s 89 is one of rehearing was again emphasised in Amirbeaggi v EB [2023] NSWCA 108, where Basten AJA (Kirk JA and Simpson AJA agreeing) held that an issue which had not been raised before the Review Panel could not be raised in the District Court on appeal:

‘[20] There was a second issue upon which the respondents relied, both before the primary judge and in this Court. The submission was that an amount could not be determined for the professional costs of the applicant because no amount had been sought by him either before the costs assessor, or before the Review Panel. Accordingly, no amount was included in the certificate issued by the Review Panel. The scope of the appeal given by s 89(1) was limited to an appeal “against a decision of the review panel”. It followed that an issue which had not been raised before the Review Panel could not be raised in the District Court. If the respondents succeed on the first issue, this second issue does not arise.’”

Determination

Application for leave

25. The Client submits that leave to appeal should be granted on three bases.

26. First, the Client submits that, as a matter of practicality, the question of leave is largely redundant given that the substantive appeal has now been heard. While the substantive appeal has been heard, I do not accept that the question of leave is “largely redundant”. The Client is legally represented and the requirement to obtain leave was a statutory pre-condition on the facts of this case. The Client’s failure to seek leave in advance of the hearing does not assist him in advancing his case that leave should now be granted.

27. Second, the Client submits that the amount in dispute is only “slightly short” of the $100,000 threshold and, accordingly, that a grant of leave “would not constitute a drastic departure from principle”. I reject this submission. The Client has not identified the amount of costs in dispute, other than to accept that it is “just below” $100,000. Even if the amount is, as asserted, “slightly short” of $100,000, that would not be a stand-alone basis to grant leave.

28. Third, the Client submits that the appeal has merit. I reject that submission for the reasons set out below.

Merit of the appeal

29. As set out at [9]-[11] above, the Law Practice had included charges in its invoices for the work of one of its employees, Ms Cousens, who is not a qualified legal practitioner. The rates charged for the work were the rates that the Law Practice had disclosed to the Client would be charged in respect of her work; being $380 per hour for the period up to 20 August 2022, then at $395 per hour until 11 November 2022 and $410 per hour thereafter.

30. The Client objected to the use of these hourly rates, contending that the rate allowed for Ms Cousens should be $150 per hour: D [5.28]. However, the Client did not make a blanket objection to the hourly rate charged for Ms Cousens each time it appeared in the 15 invoices that had been rendered (or each time it appeared in the eight invoices in respect of which objections were taken), rather, he objected to some but not all of the invoiced entries in respect of the work completed by Ms Cousens.

31. The way in which the objections were relevantly put before the Costs Assessor in respect of the initial tranche of three invoices objected to was as follows:

“(a) The hourly rate of Ms Wendy Cousens. Ms Cousens is referred to in the Costs Agreement as a ‘Family Law Financial Analyst’. Her hourly rate was initially $380, which increased during the retainer to ultimately $420. It could be expected from the Costs Agreement that Ms Cousens has some specific financial analytical training or qualifications, such as a financial planning or finance degree. However, Ms Cousens appears to be a law clerk. It is noted that Coleman Greig’s website includes a blog page where she is identified as ‘Senior Legal Clerk’. The hourly rate of $420 is far in excess of a fair and reasonable rate for a law clerk. It is potentially misleading to put a special label on an employee’s title and charge them at more than double the fair and reasonable rate.

(b) It is submitted that Ms Cousens’ work should be charged at a fair and reasonable ‘law clerk’ hourly rate, being $150 plus GST. Objections on this basis are identified in the specific objections.” (Emphasis in original)

32. The Client’s objections in respect of Ms Cousens were not limited to her hourly rate. The Client also objected to some of the items charged for Ms Cousens on the basis that the time spent on the task was excessive given the nature of the task.

33. The way in which the objections were relevantly put before the Costs Assessor in respect of the second tranche of five invoices was as follows:

“[3] In respect of the work undertaken by Ms Wendy Cousens, it is observed that on many occasions, not only is the hourly rate excessive, but the work undertaken is work ordinarily undertaken by an experienced solicitor.

[4] This does not mean that the cost is fair and reasonable because otherwise, had it been undertaken by a solicitor, it would have cost the same or more. In fact, it has meant that the time spent by Ms Cousens doing that work is significantly longer than had it been undertaken by an experienced solicitor. For example, hours are spent by Ms Cousens reviewing proposed consent orders on a privilege issue. This would have taken 2 units if it had been undertaken by a solicitor. Another example is that Ms Cousens spends 0.7 hours researching what a “document” is pursuant to a notice to produce. An experienced solicitor would not have had to research this question.

[5] The additional time spent is not corrected by a reduction in the hourly rate charged to a reasonable ‘law clerk’ rate. The length of time spent still results in an unreasonable cost at the reduced rate.

[6] The submission made by the Client is that the utilization of Ms Cousens to undertake solicitor work at a solicitor hourly rate has led to increased costs and inefficient work, and that the hourly rate and time spent on tasks should be reduced in line with the objections below.”

34. The Costs Assessor determined that the work of Ms Cousens should only be allowed at a rate of $275 per hour in respect of the items that had been objected to: D [5.29]. The Costs Assessor also considered the Client’s objections that the time spent on the task was excessive given the nature of the task and reduced certain costs on that basis.

35. Before the Review Panel, the Client submitted that the Costs Assessor was correct to disallow the hourly rates for Ms Cousens that had been charged. The Review Panel rejected this. After considering the material and submissions before it as provided by both parties, it allowed Ms Cousens’ work at a rate of $380 per hour up to 11 November 2022 and $410 per hour thereafter; these being the rates that the Law Practice had disclosed to the Client that it would charge.

36. In this Court, the Client seeks leave to challenge the conclusion of the Review Panel allowing the work of Ms Cousens at these higher rates. The Client initially asserted in his Summons in this Court that the work of Ms Cousens should be allowed at a rate of $150 per hour, but this was amended on the day of the hearing to $250 per hour. I observe that, before the Review Panel, the Client submitted that the Costs Assessor was correct to allow a higher rate at $275 per hour.

37. The Review Panel dealt with the issue that arises in this proceeding — being the hourly rates charged for Ms Cousens — at D [5.24]-[5.40]. The task of the Review Panel was to determine whether the legal costs that the Law Practice had charged, and to which objection had been taken, were “fair and reasonable and, to the extent they are not fair and reasonable, determine the amount of legal costs (if any) that are to be payable” (s 199(2)(b) of the Legal Profession Uniform Law 2014 (NSW) (LPUL)).

38. In determining the question whether the rates charged in respect of the work done by Ms Cousens were “fair and reasonable”, the Review Panel (at D [5.66]-[5.38]):

39. considered Ms Cousens’ qualifications (D [5.26]);

40. considered the work done by Ms Cousens for the Law Practice generally, as described in her curriculum vitae (D [5.27]);

41. noted the fact that the rates that were charged in respect of Ms Cousens’ work were disclosed to the Client before work was undertaken (D [5.30]);

42. discussed case law in relation to rates charged in respect of persons who have relevant experience rather than formal qualifications (D [5.31]);

43. noted the Client’s contention that it was misleading for the Law Practice to describe Ms Cousens using the title “Financial Law Analyst” in the costs disclosures as that conveyed an impression that she had some sort of tertiary degree in finance or suitable training (D [5.32]-[5.33]);

44. made factual conclusions as to the nature of the work Ms Cousens had done in respect of the Client’s matter, concluding that it was “at a higher level than work done normally by a legal clerk”, including by way of example, “she was involved in preparing the court documents, including the application, affidavits, perusal, summaries and analysis of the voluminous financial documents and preparing the financial disclosure documents” (D [5.35]); and

45. observed that “[i]t is difficult to see how the Client can reasonably object to an hourly rate” where he had only objected to the hourly rate used for Ms Cousens in some instances and not others (D [5.38]).

Ground 1

39. In support of Ground 1, the Client pointed to three broad matters, none of which in my view reveals an error of principle, a matter of public importance, or injustice such as to warrant a grant of leave to appeal.

40. First, Counsel for the Client submitted that there was an error in the exercise of discretion because the “bulk of the work [done by Ms Cousens] was legal work”, not financial analysis work, and so it “was unreasonable to elevate Ms Cousens above not only paralegals and senior law clerks in the firm but also above lawyers”. The Client submits that Ms Cousens, as a non-lawyer, should be charged out at the rate of a paralegal.

41. In support of this submission, at the hearing Counsel for the Client took the Court at some length through an aide memoire that listed the items involving charges by the Law Practice for Ms Cousens’ work and pointed out various entries which were said to involve legal work rather than financial analysis (the legal not financial work objection). However, the Client did not take a legal not financial work objection before the Review Panel.

42. Before the Review Panel, the Client did take objections to specific items charged for Ms Cousens’ work on a wide variety of other bases, including that the time spent on a task was excessive given the nature of the task or that no time should be allowed because of what the task involved (for example, the task was said to be administrative or internal). The Review Panel took those matters into account and, in light of its ruling on hourly rates, the Review Panel reassessed the costs (D [5.47]) and included its determination in an attached schedule. The Client does not seek to challenge any of those matters in this appeal.

43. As the Law Practice submitted, if the Client had taken a legal not financial work objection before the Review Panel, it would have had the opportunity to answer it. The Review Panel cannot have been in error in failing to deal with a matter which it was not asked to address: see Amirbeaggi v EB [2023] NSWCA 108 at [52] (Basten AJA, Kirk JA and Simpson AJA agreeing).

44. Second, the Client submits that the Review Panel erred by failing to adopt an hourly rate for Ms Cousens that was consistent with a Guideline issued by the Costs Assessment Rules Committee entitled “Costs Payable Between Parties Under Court Orders” (CARC Guideline). The Court was provided with two versions of the CARC Guideline — one in force between 16 March 2016 and 24 October 2023 and a version in force on and from 24 October 2023 — as the costs in dispute straddled those two periods. The earlier CARC Guideline suggested that the hourly rate for a paralegal should be in the range of $120-$250 and the later CARC Guideline suggested that the hourly rate for a paralegal should be in the range of $135-$300.

45. The Review Panel did not err by not adopting an hourly rate that was within the range referred to in the CARC Guidelines. The Guidelines applied to “Ordered Costs” (or party/party costs) and thus did not apply to the circumstance the Review Panel was dealing with; being solicitor/client costs. The Guidelines were also expressed to be “not binding”. In any event, the Review Panel applied its specialist expertise (see Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 at [54] (Meagher JA, White and Brereton JJA agreeing); Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 [42] at (Basten JA)) to conclude that the nature of Ms Cousens’ work was “at a higher level” than that normally done by a law clerk: D [5.35]. As such, it determined that applying the hourly rate charged for a paralegal/legal clerk was not appropriate in this particular case. In this respect, I observe that while the Guideline relevantly referred to a “paralegal”, the Client had used the term “legal clerk” interchangeably with the term “paralegal” in his submissions below and in oral submissions before the Court.

46. Third, the Client submits that the Review Panel erred by failing to consider the rate for Ms Cousens as against the “relative” rates charged by other persons working on the matter. Counsel for the Client referred to the “Rate Schedule” (listing rates in descending order from “Principal Lawyer” as the most expensive down to “Legal Assistant”) that the Law Practice had disclosed to the Client. It was submitted that the Review Panel erred by failing to refer to the Rate Schedule in its reasons or address how the rate it adopted for Ms Cousens could be justified by reference to the fact that she would, in effect, be more expensive than certain lawyers at the firm who worked on the matter.

47. The role of the Review Panel was to determine whether the costs charged in respect of Ms Cousens’ work were “fair and reasonable”. The Review Panel directed itself to that question by reference to the way the Client had put his objections below. The Client had submitted before the Costs Assessor that Ms Cousens’ rate should be a “fair and reasonable ‘law clerk’ rate”, which he said was $150 per hour. The hourly rate for a law clerk on the Rate Schedule was $230 per hour (as at 3 December 2021) and $260 per hour (as at 11 November 2022). Thus, the effect of the Client’s position before the Costs Assessor was that, while he submitted Ms Cousens was a “law clerk”, he contended that the rates in the Rate Schedule for a law clerk should not be followed in respect of Ms Cousens.

48. It is evident that the Review Panel’s reasoning was directly responding to the Client’s contention first, that Ms Cousens should be characterised as doing the work of a “law clerk” and second, the contention that her “experience, training or qualifications” were insufficient to support the hourly rates claimed. In respect of the first point, the Review Panel analysed the large amount of material before it evidencing the work Ms Cousens did on the matter and rejected the Client’s characterisation that she was doing work at the level of a “law clerk”. That is, it made an evaluative judgment by reference to its specialist expertise that the work done by Ms Cousens on the matter “was at a higher level than work done by a legal clerk”: D [5.35]. In respect of the second point, as set out at [38] above, the Review Panel analysed her experience, training or qualifications.

49. All of these matters fed into the Review Panel’s evaluative judgment, applying its specialist expertise, as to what was “fair and reasonable”. The hourly rate at which her work was charged was only one integer in that analysis. While it might be relevant in a particular matter to undertake a comparison of an hourly rate as against the rates of other persons working on a matter, that does not mean such an approach is mandatory under the statutory scheme, such that a failure to do so leads to legal error.

50. For all these reasons, none of the matters the Client points to in support of Ground 1 reveals an error of principle, matter of public importance, or injustice such as to warrant a grant of leave to appeal.

Ground 2

51. Ground 2 also does not reveal an error of principle, matter of public importance, or injustice such as to warrant a grant of leave to appeal.

52. The Client submits that the Review Panel erred in taking into account the fact that the Client had lodged objections to Ms Cousens’ hourly rate only in respect of some work items (the “inconsistent approach”). At the hearing, Counsel for the Client submitted this was a prohibited consideration, such that consideration of it meant the Review Panel fell into legal error.

53. At the outset, it is apparent from the Review Panel’s reasoning that, while it appeared to take the Client’s inconsistent approach into account, that was not determinative in its reasoning. So much is apparent from the fact that prior to referring to that matter in its reasons (at D [5.36]-[5.38]), the Review Panel had addressed and relied on a wide range of other matters.

54. During the hearing, the Client was unable to point to any basis upon which taking the inconsistent approach into account was impermissible in the sense that there was to be found in the subject matter, scope and purpose of the LPUL and Application Act “some implied limitation on the factors to which the decision-maker may legitimately have regard”: Minister for Aboriginal Affairs v Peko-Wallsend Pty Ltd (1986) 162 CLR 24 at 40; [1986] HCA 40 (Mason J); see also Conway v Leeroy Property Investments Pty Ltd [2026] NSWCA 123 at [68] (Kirk JA, McHugh and Free JJA agreeing).

55. The task required of the Review Panel was to consider whether the items claimed were “fair and reasonable”. That is a broad enquiry. So much is confirmed by s 200(2)(d) of the LPUL which provides that the Costs Assessor (and relevantly here, the Review Panel) may take into account “any other relevant matter”. Plainly enough, the inconsistent approach of the Client could be a relevant matter, in the sense that it was open to the Review Panel to take that approach as an implicit acceptance that the rate was fair and reasonable on some occasions where the Law Practice had charged Ms Cousens’ work at that rate.

Conclusion

56. For all these reasons, the Court makes the following orders:

57. Leave to appeal against the decision of the Review Panel under s 89(1)(b) of the Application Act is refused.

58. The Summons dated 9 January 2026 is dismissed.

59. The plaintiff is to pay the defendant’s costs as agreed or assessed.

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