Wende v Horwath

Costs Dispute 12Horwath claimed an amount of costs of $215,625.59, which includes counsel's fees and the fees of a cost consultant. The appellants, Mr and Mrs Wende and Mr Lloyd, made submissions in respect of the costs claimed. 13In summary the assessor assessed costs in the sum of $175,052.78 and recognised a credit of $15,000 as having been paid towards those costs by the Legal Aid Commission pursuant to the grant of legal aid to Mr Wende. However, the assessor miscalculated this credit, only reducing the amount owing by $10,000. The costs assessor also determined that the amount of $13,128.76 (including the $2,156.26 filing fee) for the costs of the cost assessment was payable by the appellants. 14Mr and Mrs Wende and Mr Lloyd sought a review of this assessment on some 35 grounds. Ultimately, the Review Panel affirmed the assessment save for the mistaken calculation of the $15,000 credit. The Review Panel set aside the assessment for this reason and issued a further determination. The effect of the determination was that the costs remained assessed at $175,052.78 but the net amount payable to Horwath was reduced to $160,052.78. 15The Review Panel affirmed the decision of the assessor that the appellants should pay the costs of the assessment, and found that Mr and Mrs Wende and Mr Lloyd should also pay the costs of the review in the sum of $5,818.

Nature of Appeal 16The appellants appeal against the decision of the Review Panel under section 384 of the Act which provides: 384 Appeal against decision of costs assessor as to matter of law (1) A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the District Court, appeal to the Court against the decision. (2) After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application. (3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given. 17Section 382 of the Act extends these appeal rights to decisions of the Review Panel, "...as if references...to a costs assessor were references to the panel." 18Accordingly, it is incumbent upon an appellant to: (a) identify a decision as to a matter of law made by the Review Panel; and (b) persuade this court that the decision identified is incorrect, otherwise this court "affirms" the decision of the Review Panel. 19The nature of the appeal is discussed in further detail by Johnstone DCJ in Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 at [9]-[16] and in Vumbaca v Sultana [2012] NSWDC 237 at [17]-[27] per Gibson DCJ.

Grounds of Appeal 20In the present matter, the appellants have identified a number of grounds of appeal, although reference to the relevant errors of law by the Review Panel is not always expressly identified in those grounds. Thus it is necessary to consider, in respect of each ground, whether the requirements of section 384 of the Act have been meet. 21The appellants have alleged 14 grounds of appeal in the amended summons. Some of these grounds can be grouped together.

(a) Grounds 1 and 2 22Grounds 1 and 2 provide as follows: "1. The Supreme Court costs have been assessed in contravention of Section 47 of the Legal Aid Commission Act 1979. The funding of $15,000 by the Legal Aid Commission was all that the Defendant was entitled to in the way of costs in relation to the costs of the Supreme Court Costs. 2. The Review Panel and the Assessor erred by reducing the total Costs as determined in respect of the three sets of proceedings, by $15,000.00 as paid by the Legal Aid Commission to the Defendant under s.47 of the Legal Aid Commission Act 1979." 23Section 47 of the Legal Aid Commission Act 1979 provided: "47 Payment of costs awarded against legally assisted persons (1) Where a court or tribunal makes an order as to costs against a legally assisted person: (a) except as provided by subsections (2), (3), (3A), (4) and (4A), the Commission shall pay the whole of those costs, and (b) except as provided by subsections (3), (3A), (4) and (4A), the legally assisted person shall not be liable for the payment of the whole or any part of those costs. (2) The Commission shall not pay an amount in excess of $5,000 (or such other amount as the Commission may from time to time determine): (a) except as provided by paragraph (b), in respect of any one proceeding, or (b) in respect of each party in any one proceeding, being a party who has, in the opinion of the Commission, a separate interest in the proceeding. (3) The Commission shall not be liable to pay any costs incurred by or on behalf of a person in respect of a period during which that person was not a legally assisted person (even though those costs were ordered to be paid at a time when that person was a legally assisted person) and that person shall be liable for the payment of those costs. (3A) Where a court or tribunal makes an order as to costs against a legally assisted person in respect of proceedings for a criminal offence in which the legally assisted person was the accused person, the legally assisted person shall be liable for the payment of the whole of those costs. (4) Where a court or tribunal makes an order as to costs against a legally assisted person in respect of: (a) an appeal, or an application for a new trial, made on the ground that money awarded to the legally assisted person is inadequate, (b) an action in which the legally assisted person is successful against one or more, but not all, of the other parties to the action, (b1) an action in which the legally assisted person is successful after having been unsuccessful in interlocutory proceedings related to the action, (c) an action heard and determined pursuant to an order under section 42 of the Civil Procedure Act 2005, (d) an action brought under the Family Law Act 1975 of the Commonwealth, or (e) an action brought under the Child Support (Assessment) Act 1989 of the Commonwealth, the Commission may decline to pay the whole, or such part as it determines, of those costs and those costs or that part which the Commission has declined to pay shall be paid by the legally assisted person. (4A) If a court or tribunal makes an order as to costs against a legally assisted person on the basis that the person did not accept an offer of compromise made in proceedings (being an offer made in accordance with rules of court or an offer of a prescribed kind): (a) the Commission may decline to pay the whole, or such part as it determines, of those costs to the extent that they are costs incurred by the party that made the offer after the day on which the offer was made, and (b) the legally assisted person is liable for payment of any of those costs that the Commission has declined to pay. (5) The Commission shall give notice, in writing, to a legally assisted person, the whole or part of whose costs it has, under subsection (4) or (4A), declined to pay, of the decision to decline payment of the costs within 14 days after the decision is made. (6) Where a decision to decline to pay the whole or part of any costs is made by a person or committee acting in pursuance of a delegation or authorisation under section 69, the person or committee shall, in a notice given under subsection (5), inform the legally assisted person that he or she has a right of appeal to a Legal Aid Review Committee against the decision. (7) Where a person or committee referred to in subsection (6) declines the payment of costs under subsection (4) or (4A), the person or committee shall record the reasons for the decision to decline the payment. (8) Any amount paid by the Commission under this section shall be deemed to have been paid by the legally assisted person on whose behalf it is paid." 24It was common ground between the parties that $15,000 was the amount that was payable by the Legal Aid Commission in respect of costs pursuant to section 47(1)(b) of the Legal Aid Commission Act 1979, and that this amount had been paid. 25In that circumstance, it is appropriate that the amount of costs owing in respect of the costs order should be reduced by the $15,000 paid by the Legal Aid Commission. 26However, in ground one the appellants argue that Horwath is only entitled to $15,000 for the costs of the Supreme Court proceedings. In other words, the grant of legal aid to Mr Wende is said to have had the additional beneficial result of protecting Mrs Wende and Mr Lloyd against any order to pay the costs of those proceedings: that the grant of legal aid to Mr Wende precluded other non-legally assisted persons from being liable for the payment of costs ordered. 27Ground one does not identify a decision on a matter of law by the Review Panel, and I have been unable to find such a decision. That may be because ground one of the appeal does not appear as one of the grounds of review (see Appeal Book page ("AB") 359-366) and thus the Review Panel was not required to pronounce upon it. 28Before the Review Panel, the appellants referred to the costs assessor's comment that the appellants "raised totally spurious submissions such as submitting that the three of them only equated to one party and the grant of Legal Aid to [Mr Wende] only was a grant of Legal Aid to all of them" and raised (at AB 364-365) the following "ground" (ground 22): "This is not so. We knew the grant of Legal Aid was only to [Mr Wende], but submitted that the three [Appellants] did not have separate interests in the matter, and no separate costs orders were made for each person of the party. The Costs Assessor cannot say that this submission is spurious". 29At ground 30 (AB 366) the appellants further stated: "30. The Costs Assessor has taken on the role of a judge in deciding that the Costs Respondents were not one party, but were three parties in the Supreme Court proceedings. The Costs Assessor did not have the power to make such a decision. The caselaw quoted by the Costs Assessor, Khoury & Anor v Hiar & Anor [2006] NSWCA 47, does not support her decision. Only one originating process was filed by the plaintiffs, not three. There were not three parties with separate interests as the Costs Assessor seems to claim. Only one costs assessment has taken place, with only one determination. Therefore, Mr Wende was covered for all of the case in the Supreme Court while his grant of Legal Aid was in effect. The Costs Applicant is trying to circumvent Section 47 of the Legal Aid Commission Act 1979. The fact that Mr Wende is married and has a partner in the nursery cannot give the Costs Applicant extra rights. It is not a matter of Mr Wende evading payment of costs and Mrs Wende and Mr Lloyd having to step in. The costs have simply been settled by the Legal Aid Commission." 30The Review Panel determined that ground 22 was not a ground of review, and that the assessor was entitled to make the observation she did, and in respect of ground 30 that the ground was not made out, having no merit. 31Although it is not clear from the appeal grounds in the summons, I am prepared to assume that ground one asserts that the response of the Review Panel in dealing with grounds 22 and 30 of the summons constituted an erroneous decision as to a matter of law by the Review Panel. 32The appellants' challenge is that the grant of legal aid to one party, Mr Wende, operates to confine the costs recoverable by Horwath from the others. This is said to follow from there being one or more of the following: (a) one party comprising three persons with the same interest rather than three parties, (b) one originating process, (c) one costs assessment, (d) one determination, (e) a marriage between two of the appellants, (f) a partnership between two or more of the appellants. 33The submission is without substance. That the three appellants were persons having the same interest, who commenced proceedings by the same originating process, does not deny that they constituted three parties. A party is a person joined to legal proceedings (cf Vocisano v Vocisano [1974] HCA 14; (1974) 130 CLR 267 at [10]-[12]). That includes each of the appellants. Ordinarily a costs order against several persons renders them each jointly and severally liable for the assessed costs (see Australian Communications and Media Authority v Mobilegate Ltd A Company Incorporated in Hong Kong (No 3) [2009] FCA 1154 at [5] of the Reasons for Judgment), and this is unaffected by them having the same interest, or there being one costs assessment or determination, or them being married or in partnership. 34No other provision was identified by the appellants as supporting the argument that the grant of legal aid to Mr Wende provided a shield to Mrs Wende and Mr Lloyd against the order for costs. 35The appellants' written submissions correctly state (at [41]): "The significance of s.47 (1)(b) is that a legally assisted person could not be liable for the payment of the whole or any part of the costs", but then reflects (at [42]): "...the question then arises as to whether the provision goes the next step of limiting the costs that could be recovered against [the appellants] to the amount as provided by the Legal Aid Commission". 36Mr Sharpe, who appeared for the appellants, referred to a decision of Palenzuela v Palaje [2010] NSWSC 836 as support for this proposition. This decision provides no support. 37The appellants also relied on the decision in Maher v Network Finance Ltd (1986) 4 NSWLR 694, where the Court of Appeal at 698 said "...the direction in s 47(1)(a) to the Commission to pay the whole of the costs is a reference to the costs which a tribunal or court has ordered." The appellants appeared to submit that the costs "ordered" in this passage would apply in the present case to include the costs ordered against Mrs Wende and Mr Lloyd, so as to bring them within the umbrella of the Legal Aid Commission grant. In other words, the Commission would "pay the whole of the costs" ordered. 38But the order in Maher did not deal with multiple defendants. The Commission may be liable for the whole of the costs ordered against a party to whom it has granted legal aid (up to the statutory maximum), but it is not liable to pay costs ordered against other parties, even if the costs the subject of the order are the same. In any event, the significant provision of section 47 is not so much section 47(1)(a), which deals with the Commission's liability, but section 47(1)(b), which exempts the "legally assisted person" from liability for the payment of any part of the costs ordered against the "legally assisted person" but does not purport to have any impact on persons who are not legally assisted, nor any impact on costs orders made against persons who are not legally assisted. Section 47(3) plainly indicates that persons not legally assisted remain liable for costs. 39Section 47 in its terms only applies to costs ordered by a court or tribunal and does not extend to costs payable under a mortgage covenant or costs payable under any Supreme Court rule. There is no suggestion in either Palenzuela or Maher that the protection offered by section 47(1)(b) is available to persons other than the person to whom a grant of legal aid has been made. 40Accordingly, while Mr Wende could not be liable for any other Supreme Court costs (incurred from 27 June 2007) by reason of section 47(1)(b), Mrs Wende and Mr Lloyd remained liable for the whole of the Supreme Court costs assessed by the assessor less the $15,000 already paid by the Legal Aid Commission in respect of those costs. 41It follows that I must dismiss ground one. Horwath was entitled to recover unpaid Supreme Court costs from appellants other than Mr Wende, and was also entitled to recover further costs from Mr Wende that were incurred prior to the date of 27 June 2007 when the grant of legal aid commenced. There is no error by the Review Panel. 42In the written submissions of the appellants ground 2 seems to include as its principal complaint that the reduction of the costs by $15,000 left Mr Wende in the position where Horwath could seek to recover from him other Supreme Court costs. No error on a matter of law is identified by the appellants. 43It is true that the assessment of costs produced a figure for which only the appellants other than Mr Wende were liable. It distinguished the assessed costs, and the net amount owing. And some of those costs owing were Supreme Court costs covered by the grant of legal aid for which Mr Wende could bear no responsibility. 44However, to allege an error in this regard is to misunderstand the effect of a certificate of assessment, which is to assess the quantity of costs, not liability. A similar problem arose in the decision of Khoury & Anor v Hiar & Anor [2006] NSWCA 47. In that case it was asserted (at [16]) that the assessor was wrong to assess the costs at $48,532.87 rather than at $15,000 which represented the maximum amount payable by the Legal Aid Commission. In that case, unlike in the present case, the beneficiary of the costs order had taken the further step of registering the certificate for the larger amount as a judgment. 45Yet the court held at [43]: "I do not think s 47 precluded an assessment of the whole of the costs. Assessment of costs was concerned with quantification, not with liability" (per Giles JA, agreed to by Beazley JA (at [1]) and Bryson JA (at [59])). 46It is apparent from Khoury that Horwath is entitled to an assessment of the costs, whatever be the effect of section 47 of the Legal Aid Commission Act 1979. Indeed, on the authority of that decision, it is entitled to a judgment to that effect (see Khoury [44]-[46]). However, Horwath could only enforce the costs order against Mr Wende subject to Mr Wende's entitlements under section 47. Thus, any enforcement action would have to give credit to Mr Wende for all of the costs covered by the grant of legal aid, namely those costs in the Supreme Court proceedings incurred on and from 27 June 2007. Those particular costs could be readily ascertained (see ground nine below). 47On the authority of Khoury, the assessor was correct in determining the total amount of costs and noting a credit of $15,000 that had been paid in respect of those costs, and the Review Panel was correct in affirming this component of the decision of the assessor.

(b) Ground 3 "3. The Appellants were denied natural justice by the Assessor in not allowing the Appellants to place before the Assessor relevant submissions and documents, and by the Review panel in not receiving the relevant submissions and documents that the Appellants had sought to place before the Assessor. The Appellants were not given sufficient opportunity to respond to the Assessor, in contravention of Section 359(1) of the Legal Profession Act 2004, and the submissions by the Appellants were not all read by the Assessor or the Review Panel." 48Section 359 of the Legal Profession Act 2004 provides: "359 Consideration of applications by costs assessors (1) A costs assessor must not determine an application for assessment unless the costs assessor: (a) has given both the applicant and any law practice or client or other person concerned a reasonable opportunity to make written submissions to the costs assessor in relation to the application, and (b) has given due consideration to any submissions so made." 49The appellants submit that the assessor did not give sufficient time to the appellants to make written submissions in respect of costs. Although the time between receipt of the assessor's first letter and the determination was said to be 65 days, almost half of this time was said to have been taken up by postal delays. Even if this were so, the period granted to the appellants to make submissions in respect of the assessment of costs comprised several weeks. I do not regard this period as a failure to provide appropriate time to the appellants. It is not a breach of the obligation to grant the appellants a reasonable opportunity to make written submissions. 50Further, no error of law by the Review Panel is identified. 51The Review Panel in their reasons for determination of review indicated that they considered the appellants' objections to the assessment, the correspondence and submissions of the appellants, and additional submissions of the appellants after the assessment dated 16 February 2011, 17 May 2011 and 15 June 2011. 52The appellants referred to two decisions, the first being Siddik v WorkCover Authority of New South Wales [2007] NSWSC 129. The appellants made no reference to any page or paragraph in Siddik, indeed even the citation was not supplied. It seems to me the case is of no assistance in the present dispute as it is not a case involving costs but an appeal to an appeal panel against a medical assessment of an injured worker. Even if Siddik could by analogy be applied to an appeal from a costs assessment, it does not assist the appellants. After a reference to Aircon Pty Ltd v Registrar of the Workers Compensation Commission of NSW & Anor [2006] NSWSC 322, the associate judge noted (at [19]) that "the language of the section does not stipulate a hearing of an appeal as could be expected to take place in a court of law," and, at [15] that an appeal could be done "on the papers". I was unable to discern any passage in Siddik that would cast doubt on the appropriateness of the procedure adopted by the assessor or the Review Panel. 53The other case referred to was Kehoe v Williams [2008] NSWSC 807. In that case the assessor granted an extension of time in which to lodge objections of 20 calendar days (see [11] and [22]). And as a result the associate justice in that case held that he had been afforded procedural fairness. Accordingly, it might be thought that this decision supports the conclusion that the extensions granted to the appellants were sufficient to accord them a reasonable opportunity to make written submissions in accordance with section 359. In any event, it does not provide support for a finding that the assessor did not provide "an appropriate time to the appellants to provide material to her" as the appellants submit. Even less does it support any legal challenge to the procedure adopted by the Review Panel. 54Finally, the appellants assert that the reasons of the assessor "make no direct reference to all of the submissions". This does not support the argument that "the assessor appears to have not referred to all of the submissions made by the appellants", at least if the submission is that the appellants' submissions were not considered. If "referred" as used by the appellants is to be read as "made direct reference in her reasons", then the submission is a tautology of no significance. The absence of a reference to the submissions does not establish that those matters were not considered, and giving "due consideration" is the relevant obligation imposed on the assessor. Further, the assessor need not have considered submissions forwarded to the assessor after the expiry of the extended time granted to the appellants to make submissions. "Due consideration" need only be given to submissions made within the "reasonable opportunity" period provided by section 359 of the Legal Profession Act 2004. 55The appellants were given a reasonable opportunity to make submissions and did so. On several occasions in the reasons of the assessor express reference is made to the complaints of the appellants (e.g. [3.10], [3.11], [3.11] (second occurring), [3.11.1], [4.8], [4.9], [4.11], [4.11.1], [4.12] to pick a limited number of many instances). In the absence of any particular omission of the assessor being identified by the appellants, I must conclude that the appellants' submissions filed within a reasonable time were given due consideration by the assessor. 56The appellants' submissions (at [6]) indicate that they received the application on about September 2010 (it may have been earlier, cf AB 327 at [4.4] and AB 352 at [4.129]) and provided submissions to the assessor in late November and early December 2010 which appear to have been considered (see AB 211). This represents more than a reasonable period in accordance with section 359. 57Further and in any event, all relevant submissions appear to have been considered by the Review Panel (see AB 424.9-426.3). Most importantly, no decision of the Review Panel is identified as containing an error of law. There is no suggestion that the Review Panel, for example, decided that it need not consider certain submissions. 58For these reasons, in my view there is no substance to this ground.

(c) Grounds 4 and 5 "4. The Costs Review Panel and the Assessor erred in allowing the Defendant its costs of the Arbitration, for which there was no order made in favour of the Defendant. 5. The Cost Review Panel and the Assessor erred in allowing costs not covered by a cost orders by a court or without sighting a sealed orders for costs." 59The substance of these grounds is contained in paragraph 56 of the submissions of the appellants which is as follows: "56. At no stage subsequent to the application for rehearing was there any application made by the Appellants in those proceedings (the Defendant in the present proceedings) for an order for the costs of the arbitration to be paid by the Defendant in those proceedings (the Plaintiff in the present proceedings). In other words, upon the filing of the application for rehearing, the costs orders made in the arbitration were vacated and it required, in accordance with s.46 (2) (b) Civil Procedure Act 2005, for there to be a specific order dealing with the costs of the arbitration if a party was to seek to recover those costs. There was no such order made, nor was one requested. In other words, the Assessor and the Review Panel erred in assessing costs in relation to proceedings where there was no order of the Court, contrary to s.353 of the Legal Profession Act 2004." 60It is clear that an assessment of costs can only occur if an order for costs has been made. Section 353 of the Legal Profession Act 2004 says: "353 Application for assessment of party/party costs (1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs. (2) A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division." 61However, the fact that a court order is needed to precede a valid cost assessment does not mean that each separate item or group of costs need to be the subject of a separate court order. The real question is whether the order for costs made in respect of the Local Court proceedings included, or excluded, the costs of the arbitration. The mere absence of a reference to the costs of the arbitration is of no significance if the ambit of the order clearly embraces them. 62The order of the magistrate was in the following terms: "There will be an order for the plaintiff [Horwath], and the defendants to pay the plaintiffs their costs on a party/party basis as assessed or agreed until 20 October 2004. Thereafter from 21 October 2004, the defendants are to pay the plaintiff's costs on an indemnity basis." 63The assessor at 4.11.1 of her reasons rejected the submission that this costs order did not include the costs of the arbitration. The assessor said: "the order that the defendants pay the plaintiff's costs of hearing is inclusive of the arbitration costs anyway as those costs were and are part of the costs of hearing in the Local Court..." 64The appellants did not identify any decision of the Review Panel dealing with this issue. My search of the grounds for review indicates a reference to this issue in ground six but not so as to raise a ground of review that the arbitration costs were not the subject of a valid costs order. Ground 15 (at AB 363) raised this more directly, and the Review Panel decided: "This matter was ventilated at length before the Assessor. The Review Respondent has the benefit of an order in the arbitration proceedings. This ground is not made out." 65The appellants relied on rule 42.12 of the Uniform Civil Procedure Rules 2005 as the foundation of an argument that there had been no order made in respect of the arbitration costs. 66In my view, this argument misconceives the effect of rule 42.12. This rule guides the court in determining what is the appropriate costs order after a rehearing. It says nothing about whether an order made embraces the costs of an arbitration. Those are matters of construction to be discerned from the terms of the order made. I agree with the assessor that the order of the magistrate can only reasonably be construed as including the costs of the arbitration. The costs order is not limited to a "hearing" or "rehearing", and awarded indemnity costs from 21 October 2004, a period including the arbitration which concluded on 25 October 2004. Thus the costs order must, it seems to me, include the arbitration costs. 67The appellants also rely on section 46 of the Civil Procedure Act 2005. That section provides: "46 Costs of rehearing (cf Act No 43 1983, section 18C) (1) A court that hears and determines proceedings on a full rehearing: (a) may make an order for costs in respect of the rehearing, and (b) may, in addition, make an order for costs in respect of the hearing under Division 2. (2) A court that hears and determines any aspect of proceedings on a limited rehearing: (a) may make an order for costs in respect of the rehearing as to that aspect, and (b) may, in addition, make an order for costs in respect of the hearing as to that aspect under Division 2. (3) This section applies to proceedings in respect of which a rehearing is discontinued under section 45 in the same way as it applies to proceedings that are heard and determined on a rehearing." 68Again in my view, this empowers the court to make orders in respect of the costs of a hearing and rehearing, but does not require the court to make a separate express reference to the costs of a hearing before those costs can be recovered under a court order. The power is "in addition", but the costs order need not bear any particular form. The question to be determined is whether the order embraced the arbitration costs and for the reasons given I conclude that it did. 69The appellants also relied on section 44 of the Civil Procedure Act 2005. It provides: "44 Rehearing (cf Act No 43 1983, section 18B) (1) If an order is made for a full rehearing, the award ceases to have effect and the proceedings are to be heard and determined in the referring court as if they had never been referred to an arbitrator. (2) If an order is made for a limited rehearing: (a) the award is suspended from the time the order is made until the proceedings are determined, and (b) the aspects ordered to be dealt with at the limited rehearing are to be heard and determined in the court concerned as if they had not been dealt with in the arbitration, and (c) following the rehearing, the court may reinstate the award with such modifications (if any) as the court thinks appropriate, and (d) the award, as reinstated, is final and conclusive, and is taken to be a judgment of the referring court. (3) Subject to this Division, this Act and the uniform rules apply to proceedings on a rehearing in the same way as they apply to any other civil proceedings." 70In my view, the appellants are correct in their submission that section 44 has the effect that any costs order made as part of the arbitration ceased to have effect once there was a rehearing. However, the assessment does not principally rely on any order for costs made as part of the arbitration, but the order of the magistrate made as part of the rehearing. That is the order that entitles the defendant to recover the costs of the arbitration. 71However, the reasons of the Review Panel (at [15] on AB 431) indicate a reliance upon an order "in the arbitration proceedings". Further, there is evidence that there was a "rehearing", thus potentially enlivening section 44. It might be argued that the order "in the arbitration proceedings" is a reference to the order made by the magistrate which covers the period of the arbitration rather than a reference to the order made by the arbitrator (which may have lapsed because of the rehearing). However, I favour the latter construction. 72Even accepting that the Review Panel has relied upon a costs order of the arbitrator, and that order ceased to have effect because there was a full rehearing, this ground is still not made out. As stated by Johnstone DCJ in Bellevarde Constructions Pty Ltd at [16]: "[16] Not only must a party who is appealing under s 384(1) establish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson & Son [2005] NSWSC 277 at [22]." 73In my view, the assessment remained correct, as the Review Panel found. The costs of the arbitration fell within the costs order made by the magistrate, as found by the assessor, even if the Review Panel did not specifically deal with this point. 74Accordingly, ground four fails. 75The appellants made no separate submission in respect of the absence of a sealed costs order being significant, as referred to in ground five. Further, I was unable to locate any evidence as to that issue. Nor does it involve a decision on a matter of law. Ground five is thus dismissed for these reasons, and also for the reasons referred to under ground four.

(d) Ground 6 "The Cost Review Panel and the Assessor erred in allowing disbursements for which no invoices were provided." 76This ground largely reflects ground 18 of the application before the Review Panel (AB 363). In that ground the dispute was restricted to allowing barristers' fees where invoices were said not to have been provided. In dealing with ground 18 the Review Panel decided (at AB 431): "The Panel has perused a bundle of invoices totalling $102,946.77 from Mr Hughes. In addition the bill of costs as filed for assessment contains a detailed list of counsel's fees. This ground is not made out." 77The total of counsel's fees claimed in the assessment were $90,549.24 (AB 148). Therefore, it appears that the Review Panel did see invoices, perhaps not all disclosed in the appeal books, supporting an amount even greater than the counsel's fees claimed by Horwath. 78In any event, I do not regard it as a rule of law that an invoice for a disbursement must be seen before a disbursement is allowed or an assessment. The Review Panel referred to other material besides invoices, such as the solicitor's bill of costs, which supported the claim for counsel's fees. Neither the assessor nor the Review Panel is confined by the rules of evidence (see section 359(2) of the Legal Profession Act 2004). 79At appeal book page 161 the assessor is recorded as saying on 25 October 2010 that disbursements not substantiated by documentary evidence would not be allowed. This statement itself indicates that documentary evidence other than the invoices might substantiate a disbursement, and in any event, it is doubtful whether the assessor was including counsel's fees when she made reference to "disbursements". 80It follows that there is material upon which the Review Panel could conclude that counsel's fees were incurred to the extent allowed, so there is no question of law involved. Whether the finding made by the assessor and the Review Panel to allow counsel's fees was factually correct is not a matter that is raised, or even could be raised, on this appeal. 81The appellants also seek to challenge certain unspecified disbursements as having been not money spent on third parties but part of general office overheads. This was not a ground that was raised before the Review Panel and thus, cannot constitute an error of law by the Review Panel. 82Further, the claimed disbursements the subject of challenge are not identified other than two items referred to as an example, namely items 927 and 934. Those items in the bill of costs read: " Document Production 927 Costs of compliance with Subpoena for Production issued to Tammy Lindsay on 28/09/04 (scale costs as ordered by Court on 20/10/04) 202.00 ... ... ... 934 01/08/05-13/10/06 - Photocopying 740.00"

83I do not understand the complaint as to item 927. As to item 934, it appears to be the only photocopying amount allowed by the assessor. The assessor appears to have miscalculated the photocopying charge: she indicated at item 3.8.1 of her decision that it equated to 444 pages if a charge of $0.60 per page was used. This arithmetic is not correct, as $0.60 a page would indicate approximately 1,233 pages. However, in the absence of any ground of challenge before the Review Panel, or any challenge to the amount of photocopying allowed, I am in no position to determine whether that amount of photocopying was appropriate or otherwise, or alternatively whether a greater amount than $0.60 per page was appropriate, or even whether the photocopying was a "general office overhead" and not a disbursement, as the appellants assert. These are factual matters not capable of being the subject of appeal. 84For these reasons, I do not accept this ground of appeal. 85The appellants also make a submission that there was a failure by the Review Panel: "to satisfy themselves as to whether any claim for the preparation of the bill of costs contravened section 319(2) of the Legal Profession Act 2004." 86This is not a ground of appeal, and was not raised before the Review Panel as a ground, at least so far as can be discerned from the appellants' submissions. Further, there is no submission by the appellants directed to establishing that certain costs allowed were not recoverable under section 319. It is insufficient to establish an error of law for the appellants merely to make an allegation about the contravention of a rule of assessment without identifying any evidence to support the allegation and without identifying a relevant ground of appeal either before the assessor or the Review Panel.

(e) Ground 7 "The Costs Review Panel did not consider the Appellants' entire Application for Review, as it claimed that there was one paragraph, paragraph 17, missing." 87Ground 17 before the Review Panel stated: "At paragraphs 3.1, 3.4 and 3.7 of her determination, the costs assessor had discovered a misrepresentation of the true facts by the cost applicant's solicitor disguising service providers by an internal company at the address of the cost applicant's solicitor. This was fraud and needed to be reported to the Legal Services Commission, but was not." 88The Review Panel indicated, "There is no ground 17 in the review applicant's application for review". It is not clear whether the Review Panel mistakenly regarded paragraph 17 as not existing, or on the other hand, as not containing a ground of review. 89In any event, paragraph 17 does not in any way impact on the decision as to the amount of costs allowed by the assessor or the Review Panel. The alleged failure by the assessor to report an alleged fraud, in circumstances where the allegation does not contain any reasoning as to why the particular facts necessarily constituted fraud (without a need to hear from the parties allegedly involved in the fraud), and also necessarily required reporting, has no impact upon the amount of costs allowed by the assessor or the Review Panel. Accordingly, I do not accept this ground.

(f) Grounds 8 and 13 "8. The Costs Review Panel did not conduct a reassessment in accordance with Section 375(2) of the Legal Profession Act 2004." "13. The Review Panel failed to give reasons or adequate reasons for the Determination made by them." 90Section 375(2) of the Legal Profession Act 2004 states: "375 General functions of panel in relation to review application ... (2) For the purposes of subsection (1), the panel has, in relation to the application for assessment, all the functions of a costs assessor under this Part and is to determine the application, subject to this Subdivision and the regulations, in the manner that a costs assessor would be required to determine an application for costs assessment." 91The appellants assert: "the review panel (paragraph 6 of the reasons) has reassessed the cost without providing its own reasons other than to adopt the reasons of the assessor, which of course fails to disclose the reason for doing so" and "it is submitted that it is simply not good enough for the review panel to state that the review panel refers to the reasons of the assessor on the findings of the assessor" (see appellants' submissions [71]-[72]). 92This submission misdescribes the findings of the Review Panel. The reasons are contained in a 12-page document and do not simply adopt the reasons of the assessor. However, in respect of several grounds of review, the Review Panel indicates that it has accepted the reasons of the assessor. Whether this is a sufficient giving of reasons depends upon the content of the assessor's reasons and the challenge made to the assessor's reasoning. For example, if the assessor has given detailed reasons, and the ground for review is that the assessor is wrong, without more, it seems appropriate for the Review Panel to review the assessor's reasons and conclude whether it accepts them or otherwise. 93Accordingly, to be effective, a challenge to the adequacy of the Review Panel's reasons in circumstances where the Review Panel merely accepts the assessor's reasoning must identify the defect in the assessor's reasons and the occasion when this point was taken before the Review Panel. The appellants' grounds and submissions make no such identification, either of the defect in the assessor's reasons, or how the Review Panel was alerted to that defect. 94In these circumstances, it seems to me that the appellants can only succeed if as a matter of law the Review Panel were not entitled to accept the assessor's reasons irrespective of the ground of review. No authority has been cited for such a rule. I do not accept it to be the correct principle and therefore reject these grounds of appeal. 95The appellants' submissions assert (at [73]) that "as the review panel adopted those reasons it is the cost assessor's reasons which must be judged as adequate or not". This is correct as far as it goes. However, if the only challenge to the Review Panel is that the reasons of the costs assessor are "inadequate" and those reasons comprise a closely typed document of 34 pages, it appears to me that the appellants' challenge to the adequacy of the reasons is not sufficiently identified and cannot be accepted.

(g) Ground 9 "The Statement of Reasons of the Costs Review Panel does not allow the Appellants to arrive at total costs in respect of each of the three proceedings namely the Local Court proceedings, the Supreme Court proceedings and the Court of Appeal proceedings, in contravention of the authority of Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278." 96Frumar is not authority for the proposition asserted. In Frumar, the relevant costs order, properly construed, did not include the costs of various cross-claims. It therefore became necessary for the assessment to exclude those costs that were properly only costs of cross-claims, and the assessment in that case failed so to do. I do not see any passage in Frumar that requires an assessor to apportion the costs assessed between the different court proceedings the subject of the assessment, or between the differing costs orders applicable to the assessment. No such passages are identified in the appellants' submissions. 97The appellants assert at paragraph 76 of their submissions: "This failure effectively denies the [Appellants] any opportunity to rely on section 385 of the Legal Profession Act 2004 or the failure to deal with the [Appellants'] submissions as to Legal Aid Commission Act 1979." 98Section 385 provides as follows: "385 Appeal against decision of costs assessor by leave (1) A party to an application for a costs assessment relating to a bill may, in accordance with the rules of the District Court, seek leave of the Court to appeal to the Court against the determination of the application made by a costs assessor. (2) A party to an application for a costs assessment relating to costs payable as a result of an order made by a court or a tribunal may, in accordance with the rules of the court or tribunal, seek leave of the court or tribunal to appeal to the court or tribunal against the determination of the application made by a costs assessor. (3) The District Court or court or tribunal may, in accordance with its rules, grant leave to appeal and may hear and determine the appeal. (4) An appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given. (5) After deciding the questions the subject of the appeal, the District Court or court or tribunal may, unless it affirms the costs assessor's decision, make such determination in relation to the application as, in its opinion, should have been made by the costs assessor." 99The appellants do not identify how the alleged failure of the assessor to divide the costs between the various courts to which those costs relate effectively denies them an opportunity to rely on section 385. Nor do they identify the particular entitlement in section 385 that is denied. Subsection (2) relates to costs assessments relating to costs payable as a result of an order, and thus may be the relevant provision. 100Section 385(2) entitles a party to seek (from the court which made the costs order) leave to appeal from the decision of the costs assessor, or it seems (by reason of section 382) the decision of the Review Panel. Such an appeal would not be subject to the limitations imposed by section 384 which confine appeals to "a matter of law". 101However, in the present appeal some of the costs assessed related to the Court of Appeal, some to the Supreme Court and some to Local Court. 102Thus, it might be argued that the appellants were denied the opportunity to seek leave to appeal generally in respect of the costs pertaining to proceedings in a particular court under section 385 because those costs pertaining to a particular court could not be identified. 103I think there is some force in the submission that the right given by subsection 385(2) could not be exercised if a party could not identify, in respect of the particular costs being assessed, the court or tribunal which made the order. At least, as a practical matter it would seem that this identification would be necessary to enable a party to know the court or tribunal to which application for leave should be made in respect of a particular item of costs challenged. 104However, this submission does not assist the appellants in the present case. 105The assessment and the Review Panel determination enable the appellants to identify with sufficient clarity which costs relate to which proceedings. The professional costs are in every instance dated, and the assessment also has headings dealing with the proceedings for the Supreme Court and the Court of Appeal (see AB 347 and 349). Further, the disbursements are identified by date and so it is a straightforward procedure to identify by those dates which disbursements relate to which proceedings. 106Accordingly, even if section 385(2) of the Legal Profession Act 2004 does require an assessment to enable a party to identify which costs relate to which proceedings, in circumstances where the assessment covers the costs in more than one court or tribunal, this obligation has been satisfied in the present case by the assessment and the determination of the Review Panel.

(h) Ground 10 "Terms of a cost agreement between the Defendant and its solicitors, were applied to a party/party assessment, in contravention of Section 365(2) of the Legal Profession Act 2004." 107The appellants assert (paragraph 79 of their submissions) that the assessor "failed to give any reason as to why the rates as assessed were correct". This submission is outside the terms of the ground alleged. In any event, it is incorrect. Commencing at AB 335 the assessor gives three pages of reasoning as to why certain costs are not fair and reasonable and why others are fair and reasonable (see particularly [4.24]). This issue was raised in ground of review [13] (at AB 362) and rejected by the Review Panel at AB 431. 108The appellants refer to a decision of Cook v Selic (Sydney District Court, plaintiff number 2597 of 2009), a decision of his Honour Judge Toner SC of this court. However, I was not provided with a copy of this unreported decision and I have been unable to locate it. I can see that there may be a need in certain circumstances for an assessor to give reasons as to why a figure asserted by one party is chosen over a different figure asserted by another party, as appeared to be indicated by the learned judge in the passages quoted in the appellants' submissions. However, that is not the issue that has arisen here. Rather, the assessor has on several occasions reduced the hourly rate identified in the bill of costs to something she regarded as reasonable. No doubt her experience was utilized in determining the reasonable rate. This was a permissible approach according to section 359(2) of the Legal Profession Act 2004. The appellants have not identified a different and reasonable rate, which was submitted to her, nor have they identified evidence which supported a different rate to that chosen. In these circumstances, I do not regard there to have been any error in the assessor failing to give any further reasons as to why she selected a particular figure as an appropriate fair and reasonable hourly rate. 109The other issue raised by this ground was whether the assessor wrongly applied the terms of the costs agreement in determining a fair and reasonable rate contrary to the provisions in section 365(2) of the Legal Profession Act 2004. 110It appears from the pages referred to above (see especially [4.24] at AB 336) that the assessor did not apply the terms of the costs agreement to determine a fair and reasonable rate and the Review Panel so found (AB 430 at [11]). The appellants identify no passage which supports their submission. Accordingly, this ground is rejected.

(i) Ground 11 "11. The Review Panel and the Assessor erred in allowing the costs of office staff and trainees, and in allowing charges for time not spent on legal work, including lunch breaks of solicitors, redundant work, work not necessary for the case and work not done in a reasonable manner, in contravention of Section 364(1) of the Legal Profession Act 2004." 111The appellants' submissions do not identify where costs were allowed for time not spent on legal work and for the lunch breaks of solicitors. No reference is made to any part of the assessment or the review determination. 112It may be that if the assessor allowed costs for lunch breaks that would be an error of law that justified the ground of appeal. However, without any references to a finding by the assessor or the Review Panel, it is impossible to come to such a conclusion. In that event, the question becomes one of fact: were any of the costs allowed under the assessment actually for lunch breaks. I am not empowered on this appeal to consider purely factual questions, and even if I were, the appellants' submissions do not direct me to any evidence which would enable me to conclude that costs were allowed for lunch breaks of solicitors and for non-legal work. 113Accordingly, this ground must fail.

(j) Ground 12 "12. The Costs Review Panel did not apply Section 369(3)(c) of the Legal Profession Act 2004 by awarding the costs of the Costs Assessment against the Plaintiff rather than the Defendant even though costs had been reduced by more than 15%. The Costs Review Panel did not demonstrate how it exercised its discretion in relation to the Costs of the Assessment and the Costs of the Review." 114The appellants' submissions concede (at [91]) the principle stated by Johnstone DCJ in Bellevarde Constructions Pty Ltd that section 369(3)(c) of the Legal Profession Act 2004 does not apply to costs the subject of a costs order but rather only to assessments between legal practitioners and their clients. I respectfully agree that this principle must be correct because the provision would otherwise be unworkable and plainly unjust. 115Accordingly, this ground must fail as section 369(3)(c) of the Legal Profession Act 2004 has no application to the costs of the cost assessment in the circumstances of these proceedings. 116The second component of this ground relates to the failure by the Review Panel to demonstrate how it exercised its discretion. At AB 432 paragraph 27 the Review Panel stated: "The panel is satisfied that the assessor correctly determined who was to be responsible for the costs of the assessment adopting the usual procedure. This ground is not made out." The assessor's analysis of the costs of the assessment is contained in 14 paragraphs at AB 351-352. No challenge is made to the reasoning process of the assessor (other than that based upon section 369(3)(c), which I have rejected) and therefore this ground is not made out. 117As to the costs of the review, the Review Panel set out at paragraphs 7.1 to 7.3 on pages 433-434 of the appeal book the reasons why it ordered the appellants to pay the costs of the review. The discretion of the Review Panel is set out relevantly in subsections 379(3) and (4) of the Legal Profession Act 2004 which provide as follows: 379 Recovery of costs of review ... (2) If the panel affirms the determination of the costs assessor, the panel is to require the party who applied for the review to pay the costs of the review. (3) If the panel sets aside the determination of the costs assessor, and makes a determination in favour of the party who applied for review, the panel is to require the party who applied for the review to pay the costs of the review if the determination of the panel increases or decreases the total costs payable (as assessed by the costs assessor) by an amount that is less than 15 per cent (or such other percentage as may be prescribed by the regulations) of the total costs payable as assessed by the costs assessor. (4) Subject to subsections (2) and (3), the panel may require any party to the assessment that is reviewed to pay the costs of the review or may determine that the costs of the review are to be shared between the parties in any manner that the panel considers appropriate. 118The Review Panel corrected a minor arithmetical error so as to amend the amount due under the assessment. However, in substance the Review Panel affirmed the decision of the assessor. In those circumstances it seems appropriate that the appellants should pay the costs of the review in accordance with the intent of section 379(2). Even if section 379(4) applied, it gives the Review Panel the discretion to so order. 119Further, section 379(3), if it applied, would also support the decision of the Review Panel since the costs assessed by the Review Panel did not vary from the costs as assessed by the assessor by 15 per cent or more. 120Paragraph 7.3 of the Review Panel's determination (at AB 434) does not expressly rely on subsections 379(2) or (4). Rather, the Review Panel relied on section 379(3) in determining that the appellants should pay the costs of the review, as the determination of the Review Panel varied from that of the costs assessor by less than 15 per cent. I cannot see any error in this approach of the Review Panel, it having determined to issue a further determination because of the arithmetical error (see [6.4] at AB 433). 121In my view, the decision of the Review Panel to order the appellants to pay the costs of the review is correct, there has been no error of law and this ground of appeal must be rejected.

(k) Ground 14 "14. The Review Panel made determinations not within the power of a costs assessor, including setting rates of pay for lawyers." 122I have dealt with the substance of this ground under ground 10 above. I have found that the assessor and the Review Panel gave reasons for finding the fair and reasonable rate for the work performed. The challenge by the appellants to the rates found is not a matter of law and this lies outside a permissible appeal. 123The appellants refer to the authority of Idoport Pty Limited & Anor v National Australia Bank Limited & 8 Ors [2001] NSWSC 744 at [147], a case referred to and discussed in some detail by the assessor in paragraphs 4.24 and 4.26 of her reasons. 124The assessor had power to determine a fair and reasonable rate for particular items of work, and did so. Her assessment does not relevantly "set rates of pay for lawyers" but assesses the extent to which the legal costs of Horwath were fair and reasonable. Her methodology in so doing is to utilize what she assesses to be a reasonable hourly rate. The appellants challenge this methodology, but it seems to me to be an orthodox approach that involves no error of law. Accordingly, this ground is rejected.

Conclusion 125None of the grounds of appeal advanced by the appellants have been made out. Accordingly, the appropriate order is that the appeal be dismissed and the appellants pay the costs of the appeal.

Orders

1. Proceedings dismissed.
2. Determination of Review Panel dated 6 January 2012 affirmed.
3. Plaintiffs/appellants to pay the costs of the proceedings.

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: 18 February 2013