Wende v Horwath - [2014] NSWCA 170 - NSWCA 2013 case summary — Zoe

NSWNSWCA

Wende v Horwath

[2014] NSWCA 170

Court of Appeal (NSW)|2013-12-05|Before: Beazley P, Basten JA, Barrett JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2013-12-05

Before

Beazley P, Basten JA, Barrett JA

Catchwords

184 CLR 163 CSR Ltd v Eddy [2008] NSWCA 83
(2008) 70 NSWLR 725
(2011) 12 DCLR (NSW) 304 Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681 Edwards v Santos Ltd [2011] HCA 8
242 CLR 421 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278

Source

Original judgment source is linked above.

Catchwords

184 CLR 163 CSR Ltd v Eddy [2008] NSWCA 83(2008) 70 NSWLR 725(2011) 12 DCLR (NSW) 304 Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681 Edwards v Santos Ltd [2011] HCA 8242 CLR 421 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 Frumar v Owners of Strata Plan 36957 [2006] NSWCA 27867 NSWLR 321 Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49[2008] 2 QdR 323 Hill v Green [1999] NSWCA 477239 CLR 531 Michael Wilson & Partners v Nicholls [2011] HCA 48244 CLR 427 Minister for Immigration and Citizenship v Li [2013] HCA 1887 ALJR 618 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30206 CLR 323 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41113 CLR 475 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 4680 NSWLR 282 Newcastle City Council v Wieland [2009] NSWCA 11374 NSWLR 173 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54181 CLR 404 Tomko v Palasty (No 2) [2007] NSWCA 369: 71 NSWLR 61 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629

Judgment (17 paragraphs)

[1]

Background 104Mr Wende, Mrs Wende and Mr Lloyd (who will be referred to as "the applicants") and Horwath (NSW) Pty Ltd ("the respondent") became involved in litigation in consequence of the retainer of the respondent by the applicants to provide expert opinion evidence in certain proceedings brought by the applicants against the owners of land adjoining the site of their nursery business. The respondent, which conducts a public accountancy practice, sued the applicants in the Local Court for $18,526 said to be due for professional fees. There was an order that the dispute be arbitrated. The arbitrator's award was in favour of the respondent. There was then an order of the Local Court for re-hearing. A magistrate gave judgment of the respondent. The applicants sought leave to appeal to the Supreme Court. The application was dismissed by Hislop J. An application for leave to appeal from the decision of Hislop J was refused by the Court of Appeal, as was a related notice of motion. 105By virtue of three separate orders (an order made by the Local Court on 24 July 2007, an order made by Hislop J in the Supreme Court on 22 June 2009 and an order made by the Court of Appeal on 3 May 2010), the respondent was, in terms of s 353 of the Legal Profession Act, a "person ... who is entitled to receive ... costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal". Under that section, such a person "may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs", that is, the costs to which the person is entitled as a result of the order of the court or tribunal. Section 357 requires The Manager, Costs Assessment to refer each application for costs assessment to a costs assessor to be dealt with under Division 11 of Part 3.2. 106The applicants made an application for assessment. The application was referred to Ms Dulhunty, a costs assessor. 107Section 364 requires a costs assessor conducting an assessment of legal costs payable as a result of an order made by a court or tribunal to consider whether or not it was reasonable to carry out the work to which the costs relate, whether or not the work was carried out in a reasonable manner and "what is a fair and reasonable amount of costs for the work concerned". Section 363 sets out matters to be taken into account. The "work concerned" is to be taken as a whole, it being no part of an assessor's function to value or ascribe amounts to particular tasks or items within the whole: CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725 at [4]-[5]; and, while an application for the assessment of party/party costs is often accompanied by a bill of costs, this is not necessary, the only requirement under the regulations being that certain particulars and other information be provided sufficient to enable assessment: Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55; (2011) 12 DCLR (NSW) 304 at [32]. 108Ms Dulhunty in due course formed an opinion that the party/party costs to which the respondent was entitled under all three orders were $175,052.78, against which certain minor credits were allowed. She made a determination accordingly. 109The applicants sought review of Ms Dulhunty's determination on various grounds. A review panel consisting of Mr Gulley and Mr Campbell was appointed. Under s 375, a review panel has power to "review the determination of the costs assessor" and either to confirm it or to set it aside and substitute such determination in relation to the costs assessment as, in the panel's opinion, should have been made by the costs assessor. In this case, the review panel decided that Ms Dulhunty's determination should be set aside and that there should be substituted a determination of $160,052.78 as a fair and reasonable amount of costs to be paid. Although the applicants had raised many grounds of objection, the review panel's decision turned on one matter of miscalculation that required correction. 110The consequences of the setting aside of Ms Dulhunty's determination and the substitution of a determination of the review panel, if valid, were those prescribed by s 378. In substance, the panel's determination superseded that of the costs assessor and a certificate of the panel's determination could be filed and would take effect as a judgment. 111The applicants then resorted to the appeal provisions of the Legal Profession Act. Section 382(1) causes Subdivision 6 of Division 11 of Part 3.2 to apply in relation to a decision or determination of a review panel as if references in Subdivision 6 to a costs assessor were references to the panel. Appeal provisions concerned, in terms, with decisions of costs assessors are thus made applicable to decisions of review panels. Two kinds of appeal may be initiated. Section 384(1) permits an appeal as of right to the District Court against a decision as to a matter of law. Section 385(1) permits an appeal by leave on any other ground. An appeal under s 385(1) lies to the court or tribunal that made the particular costs order. 112The appeal that the applicants initiated against the decision of the review panel, if valid, was an appeal as of right as to matters of law under s 384(1), as applied by s 382(1). The applicants made this clear in both their original District Court summons dated 12 February 2012 and the amended summons dated 12 September 2012. Before the District Court, the applicants relied on several alleged errors of law on the part of the review panel. 113Following dismissal of their District Court appeal, the applicants commenced proceedings in this Court. They initially sought leave to appeal on grounds set out in a draft notice of appeal. They no longer persist in that course, recognising that, since no avenue of appeal to the Court of Appeal is created by statute, there is no appeal jurisdiction (Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; (2011) 80 NSWLR 282) and the only potentially fruitful course is to invoke the supervisory jurisdiction of the Supreme Court in the way contemplated by s 69 of the Supreme Court Act 1970 and to approach the Court of Appeal accordingly under s 48.

[2]

The claims in this Court 114The claim for prerogative relief as originally filed in this Court extended to the decision of the costs assessor and the decision of the review panel. The assessor and the members of the review panel were made parties accordingly. The claim was later curtailed in a form of amended summons that the applicants sought leave to file. It was even further curtailed in the course of oral submissions in this Court. The orders that the applicants ultimately sought are, disregarding an order for costs, as follows: "1. The judgment and orders of the District Court of New South Wales dated 15 February 2013 be set aside. 2. The applicants' appeal to the District Court of New South Wales under s 384 of the Legal profession Act 2004 against the determinations of the costs assessor Kim Marina Dulhunty dated 11 January 2011 and the Costs Review Panel constituted by Richard Gulley and Mark Campbell dated 6 January 2012 in costs assessment matter no. 2010/305574 be remitted to the District Court for further hearing." 115The application is thus an application for judicial review of the decision of Judge P Taylor SC (referred to below as "the primary judge") upon appeal under s 382 of the Legal Profession Act from the decision of the review panel. No relief is now sought against the costs assessor and the members of the review panel or in respect of their decisions. 116Grounds on which the applicants rely in their challenge to the District Court decision (including grounds they seek to add by way of amendment) involve allegations of error of law by the primary judge amounting to either jurisdictional error or error of law on the face of the record. Their principal contentions are as follows:

The primary judge erroneously interpreted and applied statutory provisions in sanctioning and adopting a procedure under which party/party costs the subject of orders of three courts were dealt with together in a single costs assessment.
The primary judge erred in the interpretation and application of certain provisions of the Legal Aid Commission Act 1979 as they applied to the costs of the proceedings determined by Hislop J in the Supreme Court.
The primary judge erred in law by regarding the costs of the Local Court arbitration as part of the costs to which the respondent was entitled pursuant to the costs order made by the Local Court.
The primary judge erred of law in interpreting and applying s 369(3) of the Legal Profession Act.

[3]

The amendment application 117The application for leave to amend came before Macfarlan JA on 14 October 2013. His Honour stood it over for hearing concurrently with the principal proceedings. 118The respondent opposes any grant of leave to allow the applicants to rely on Grounds 1, 2, 5, 7 and 8 above. It accepts that Grounds 3, 4 and 6 are consistent with the case framed in the summons filed in this Court in May 2013 but says that the remaining grounds were raised only belatedly. 119The respondent says that the applicants have given no cogent reason for their failure to advance the amended case in the first place. The applicants' solicitor deposes, however, that the applicants retained lawyers only shortly before the amendment application was filed. The respondent also says that it will be prejudiced by substantial enlargement of the case because of the stress of litigation - added to which, it is said, the history of the applicants' seeking to appeal costs orders indicates that such an order will be of little comfort to the respondent. 120I am of the opinion that the applicants should be permitted to rely on the expanded grounds. Their desire to do so was made known some two months before the date fixed for the hearing and that period was sufficient to permit the respondent to address the additional grounds, which go entirely to matters of law. 121The grounds will not be dealt with in the order in which they are stated at [116] above. Reference to the several grounds will be made as particular issues are canvassed.

[4]

Bases on which this Court may grant relief 122The concept of jurisdictional error on which the applicants rely is that which applies where a decision-maker makes a decision outside the limits of the conferred functions and powers or fails to do something which he or she is obliged to do. In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179, Brennan, Deane, Toohey, Gaudron and McHugh JJ gave the following non-exhaustive definition of jurisdictional error: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 123In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of jurisdictional errors thus outlined and continued (at [82]): "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." 124Judicial review on the alternative basis of error of law on the face of the record was recently referred to by French CJ, Crennan, Bell, Gageler and Keane JJ in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [26] in these terms: "Error of law on the face of the record constitutes a separate and distinct basis on which the Supreme Court can make an order in the nature of certiorari to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power under a State statute. That basis for the Supreme Court making an order in the nature of certiorari is not entrenched by the Commonwealth Constitution; its application can be excluded by statute. Where it is not excluded, however, it applies independently of jurisdictional error. That is to say, where error of law on the face of the record is not excluded by statute as a basis for making an order in the nature of certiorari, and where an error of law on the face of the record is found, an order in the nature of certiorari can be made so as to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power irrespective of whether the error of law also constitutes a breach of a condition of the valid exercise of that power." 125Once that alternative basis is invoked, it becomes necessary to determine the boundaries of "the record". The applicants invited this Court to have regard to the following, in addition to the orders of the District Court and the judge's reasons for the making of those orders: (a) costs order made by the Local Court arbitrator on 31 March 2005; (b) transcript of the hearing before the Local Court on 16 July 2007 concerning costs application; (c) transcript of the hearing before the Local Court on 24 July 2007 concerning costs application; (d) costs order made by the Local Court magistrate on or about 25 July 2007; (e) judgment and orders of Hislop J in the Supreme Court on 22 June 2009; (f) orders made by this Court on 3 May 2010 dismissing an application for leave to appeal the decision of Hislop J; (g) the respondent's bill of costs as submitted to the costs assessor, Ms Dulhunty (dated 2 August 2010), covering costs in all three courts; (h) the respondent's application dated 14 September 2010 for assessment of party/party costs as lodged with the Manager Costs Assessment; (I) letter dated 6 December 2010 from the applicants to Ms Dulhunty; (j) letter dated 25 October 2010 from Ms Dulhunty to the applicants; (k) the applicants' grounds of objection lodged with Ms Dulhunty and dated 22 November 2010 and 22 December 2010; (l) the certificate of determination dated 11 January 2011 of the costs assessor, Ms Dulhunty; (m) the reasons for determination issued by Ms Dulhunty on 11 January 2011; (n) the applicants' application dated 16 February 2011 for review of Mr Dulhunty's assessment; (o) the certificate of determination dated 6 January 2012 of the review panel (Mr Gulley and Mr Campbell); (p) the reasons for determination issued by Mr Gulley and Mr Campbell on 6 January 2012; (q) the amended summons dated 12 September 2012 filed in the District Court upon the appeal under s 384 of the Legal Profession Act ultimately determined by the primary judge. 126It is not in dispute that all those documents may be taken into account on the question whether there was jurisdictional error. As to error of law on the face of the record, however, counsel for the respondent submitted that, subject to a few exceptions, regard could not be had to the documents just mentioned. The exceptions are items (g), (h) and (q); also item (c) to the extent to which it was quoted by the primary judge in his reasons. It was also accepted by the respondent that one additional document should be taken into account as part of the record, being the summons (in unamended form dated 12 February 2012) by which the appeal to the District Court was initiated. 127The "record" includes the District Court's reasons: Supreme Court Act, s 69(4). It also includes the District Court's orders and the documents initiating and defining the proceedings in the court, but not written evidence (such as that in affidavits) or the transcript of the proceedings (oral evidence and submissions): Craig v South Australia (above) at 180-2; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at 577-8. 128In light of the positions the parties take, questions of error of law on the face of the record should, in this case, be approached by reference only to the orders and reasons of the District Court, items (g), (h) and (q) at [125] above, item (c) to the extent to which it was quoted in the judge's reasons and the summons dated 12 February 2012. The applicants accept that grounds 4 and 6 at [116] above entail only error of law on the face of the record and that the materials to which regard can be had are limited accordingly. They say that grounds 1, 2, 3, 4, 5, 7 and 8 entail jurisdictional error (as well as error of law on the face of the record) and are to be addressed by reference to the whole of the materials referred to at [125] above. 129The convenient course is to consider whether the primary judge erred in law in any of the ways alleged by the applicants and, if he did, to decide whether a particular error meets the added criteria that make it either jurisdictional error or error of law on the face of the record.

[5]

The costs orders 130The applicants were ordered to pay costs on three occasions, as follows: (a) Order of the Local Court (where the present respondent was the plaintiff) of 24 July 2007: "There will be an order for the plaintiff, 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." (b) Order of Hislop J (before whom the present applicants were the plaintiffs) of 22 June 2009: "The plaintiffs are to pay the defendant's costs." (c)Order of the Court of Appeal of 3 May 2010 (the present applicants being the applicants for leave to appeal): "Summons for leave to appeal filed 18/09/09 be dismissed with costs." 131The applicants did not pay any part of the costs so ordered to be paid by them but, in circumstances to be described presently, the Legal Aid Commission paid $15,000 on 3 September 2010. 132As a result of each of the three orders, the respondent was, in terms of s 353(1): "A person who ... is entitled to receive ... costs as a result of an order for the payment of an unspecified amount of costs made by a court ..." 133Because of the status thus accruing to it, the respondent was enabled by s 353(1) to "apply ... for an assessment of the whole of, or any part of, those costs" - with "those costs" referring to the "unspecified amount of costs" ordered by the court to be paid.

[6]

The respondent's application for assessment and the accompanying bill 134The respondent lodged an application for assessment of party/party costs on 14 September 2010. After referring to the parties and the respondent's desire to have the matter referred to a costs assessor, the application stated: "The costs which are the subject of this application are the costs payable by the Respondents as a result of Orders of the: - Local Court of New South Wales at Sydney on 31 March 2005 and 24 July 2007 in matter number 83580 of 2004 - Supreme Court of New South Wales at Sydney on 22 June 2009 in matter number 13015 of 2007 - Court of Appeal of New South Wales at Sydney on 3 May 2010 in matter number 40342 of 2009." 135On 3 August 2010, the respondent, through its solicitors, had forwarded a draft bill of costs to the applicants claiming $215,625.59. The response dated 11 August 2010, was that the applicants had "sent the bill of costs on to the Legal Aid Commission for processing and payment". It was as a result of this that $15,000 was paid on 3 September 2010 leaving, according to the respondent, an unpaid balance of $200,625.59. 136The respondent's application for assessment of party/party costs was accompanied by a copy of the bill of costs. The words "refer to Bill of Costs attached" appeared in sections of the application form calling for a description of the work done, the persons by whom it was done, the basis of calculation and charging and the facts relied on to justify the costs as fair and reasonable. 137The bill of costs ran to 110 pages. It commenced with a "Chronicle" containing five parts under headings as follows: "Local Court Proceedings No 83580 of 2004 (Arbitration)" "Local Court Proceedings No 83589 of 2004 (Rehearing)" "Supreme Court Proceedings No 13015 of 2007" "Court of Appeal Proceedings No 40341 of 2009" "Costs Negotiations" 138The first part of the Chronicle occupied pages 2 and 3 of the bill; the second part occupied pages 4 to 8 and part of page 9; the third part occupied the balance of page 9, the whole of page 10 and part of page 11; the fourth part occupied the balance of page 11, the whole of page 12 and part of page 13; and the fifth part occupied the balance of page 13 and the whole of page 14. 139Pages 16 to 22 of the bill of costs contained a section headed "outline of Proceedings" which contained headings corresponding with those already mentioned and gave a narrative description of the several proceedings and steps taken in them. 140On pages 23 to 100 of the bill of costs, some 810 separate items of work and charges for them were set out in columns headed "No of Item", "Date", "Work Performed" and "Charge". This was followed on pages 101 to 107 by items 811 to 849 describing in detail various disbursements, including counsel's fees. Pages 108 to 110 contained a page-by-page summary of charges and a total of $215,625.59.

[7]

The costs assessor's determination 141The Manager, Costs Assessment, no doubt taking the view that, in terms of s 357(1), the respondent had lodged an "application for costs assessment", referred the respondent's application to Ms Dulhunty. 142Ms Dulhunty's task was that prescribed by s 367A: "A costs assessor is to determine an application for an assessment of costs payable as a result of an order made by a court or tribunal by making a determination of the fair and reasonable amount of those costs." 143Ms Dulhunty in due course issued two documents: a certificate of determination and a statement of reasons for determination. Both were dated 11 January 2011. In the statement of reasons, under a heading "Date and description of orders upon which assessment is based" she set out the orders reproduced at [130] above together with a reference to the costs file number in each case. The statement of reasons continued: "1. The total amount of costs for providing legal services determined to be fair and reasonable: $73,313.50 2. The total amount of disbursements determined to be fair and reasonable: $101,739.28" 144Substantial commentary followed. This dealt in large measure with items in the bill of costs that had been disallowed or reduced. It is instructive to note the nature of some of the items of profit costs that were disallowed. While time charging was accepted in principle, there were adjustments to the hourly rates of several lawyers. For example, the hourly rate for one lawyer was reduced from $470 to $450 for the period 31 August 2005 to 2 August 2006, the hourly rate for another lawyer was reduced to $300 up to 31 December 2005 and then increased first to $350 from 1 June 2005 and later to $430 from 2 August 2006. All items for internal conferences and communications within the firm of solicitors were disallowed, as were all items for perusal of documents by second and subsequent solicitors within the firm, as well as other duplications and overlaps. All items for research were disallowed. Numerous items for collation and other administrative and clerical work were reduced or disallowed. 145The statement of reasons dealt separately with 83 distinct profit costs items referred to in the bill of costs that had been disallowed or reduced in accordance with the detailed explanation of the principles adopted. 146There was also substantial adjustment of disbursements. The disbursements disallowed or reduced were identified by item numbers assigned to them in the bill. Two examples may be noted. The first disallowed item ($90 for an ASIC search, Item 910) carried the dates "01/10/04 - 31/10/04". The last disallowance related to a class of disbursements consisting of 20 items (Items 929 to 933 and 935 to 949) each of which was linked to a date range of about a month in the period January 2004 to May 2010. 147Ms Dulhunty's certificate of determination issued to the parties said: "THE APPLICATION IS DETERMINED BY ASSESSING AS A FAIR AND REASONABLE AMOUNT OF COSTS TO BE PAID TO THE COSTS APPLICANT THE SUM OF: $175,052.78".

[8]

The application for review 148The applicants' application for review was filed on 17 February 2011. The determination in respect of which review was sought was identified by the applicants as that "set out in the Certificate of Determination issued on 21 January 2011 by Costs Assessor Kim Marina Dulhunty". Some 35 grounds of objection were appended. 149By their document of 17 February 2011, the applicants obviously sought to take advantage of s 373(1). That section enables a "party to a costs assessment who is dissatisfied with a determination of a costs assessor" to apply to the Manager, Costs Assessment "for a review of the determination". Implicit in the applicants' filing of their 17 February 2011 document, therefore, was acceptance of their own status as "party to a costs assessment" and of Ms Dulhunty's decision as "a determination of a costs assessor". 150The Manager, Costs Assessment referred the applicants' application to a review panel consisting of Mr Gulley and Mr Campbell. Their decision has already been noted. In their reasons, the review panel dealt seriatim with the 35 grounds advanced by the applicants.

[9]

The alleged failure of the review panel to make a "review" 151A fundamental contention of the applicants is that the review panel did not conduct a "review" as contemplated by s 375 of the Legal Profession Act and that the primary judge erred in law by treating it as having done so. For that reason, it is said, the result of the process was not amenable to appeal to the District Court. This is Ground 6 at [116] above. 152The applicants' document of 17 February 2011 sought a "review" of the costs assessor's determination. Under s 374(1), the Manager, Costs Assessment must refer such an application to a review panel constituted by two costs assessors. Section 375 provides: "(1) A panel constituted under this Subdivision may review the determination of the costs assessor and may: (a) affirm the costs assessor's determination, or (b) set aside the costs assessor's determination and substitute such determination in relation to the costs assessment as, in their opinion, should have been made by the costs assessor who made the determination that is the subject of the review. (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. (3) However, the assessment is to be conducted on the evidence that was received by the costs assessor who made the determination that is the subject of the assessment and, unless the panel determines otherwise, the panel is not: (a) to receive submissions from the parties to the assessment, or (b) to receive any fresh evidence or evidence in addition to or in substitution for the evidence received by the costs assessor. (3A) A panel reviewing the determination of a costs assessor may determine that the amount of fair and reasonable costs is the amount agreed to by the parties to the review if during the course of the review the parties notify the panel that they have agreed on the amount of those costs. (4) If the costs assessors who constitute the panel are unable to agree on a determination in relation to an application, the panel is to affirm the determination of the costs assessor who made the determination that is the subject of the review." 153The review panel was aware of the provisions of s 375. It included an accurate summary of them in its reasons. In addition, it stated that it had exercised the s 375(3) discretion and received (and taken into account) further material provided by the applicants. The panel was also aware of judicial statements about the nature of the s 375 task. It referred to Kells v Mulligan [2002] NSWSC 769 and Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681. 154The applicants say that the task of a review panel under s 375 is "to start afresh and re-determine, for the first time, all components of the bill of costs which were the subject of the application for review under s 373 of the Act" (emphasis in original submissions). The applicants do not quarrel with the primary judge's finding that the review panel was permitted to adopt the assessor's reasons if they were self-explanatory and had objective merit. But they say that where the assessor's reasons on a particular issue are questioned or challenged, it is incumbent upon the review panel to examine that issue afresh and come to (and express) an independent decision of its own. 155The function of a review panel under s 375(1) is to "review the determination of the costs assessor". Under s 375(2), a review panel has an obligation 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". The reference to "the application" is a reference to "the application for assessment", that is, the application that was before the costs assessor in the first instance. The review panel must therefore deal with the original application for assessment and ultimately make its own determination of that application as if the panel were a costs assessor. 156Crucially, the panel's obligation under s 375(2) to act in the manner that a costs assessor would be required to act in relation to an application for costs assessment is, by the opening words of s 375(2), imposed "[f]or the purposes of" s 375(1), that is, the purpose of making a "review" of the assessor's determination . The panel's duty to emulate a costs assessor therefore applies only to the extent that the paramount purpose of making a "review" of the assessor's determination will thereby be served. The effect of s 375(2) is to put a review panel performing the review function in "the same position as the assessor himself" (to adapt words used by Kitto J in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 at 502 about similarly worded taxation legislation) - but only insofar as that equivalent position needs to be occupied in order to allow the "review" to be made. 157The meaning of "review" arises for consideration. In Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 at 261 Mason CJ, Brennan and Toohey JJ said that the word "has no settled pre-determined meaning; it takes its meaning from the context in which it appears." The context may be indicate that review proceedings are non-adversarial and involve no contradictor nor the joinder of any issue, so that the review function is of an inquisitorial nature: see, for example, Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 at [10]. Alternatively, the requirement for review of a decision may operate in circumstances where competing rights and rival contentions are involved. In such circumstances, the review procedure will properly be regarded as adversarial and the nature of the task will be shaped accordingly. In addition and as Basten JA pointed out in Tomko v Palasty (No 2) [2007] NSWCA 369: 71 NSWLR 61 at [45], a court's power to "review" in an area of practice and procedure might attract what Santow JA, in Wentworth v Graham [2002] NSWCA 397; (2002) 55 NSWLR 638 at [9], described as "a natural inhibition against the unrestrained substitution of the reviewing court's views in a matter of practice and procedure for those of the original tribunal". 158In the present context, it is the task of a review panel to review an assessment that has been made necessary because the person ordered to pay costs and the person to whom they are payable have not agreed the amount. One person wishes to see the assesssor determine a large amount, the other a small amount. Each is able to present a case to the assessor. While the circumstances are not adversarial in any strict sense, the panel must consider competing contentions and make up its mind in the light of them. 159There is no statutory requirement that an applicant for review articulate objections to the original assessment or state what are often described as "grounds of review". Under s 373, an application for review made by a party dissatisfied with an assessor's determination must set out the assessor's determination and, as required by clause 132 of the Legal Profession Regulation, be accompanied by an affidavit of service (having regard to the s 373(5) requirement that notice of the application for review be given to the other parties to the assessment), a copy of all of the costs assessor's certificates of determination relating to the assessment and a copy of the assessor's statement of reasons. 160Under clause 131 of the regulation, the application for review must be in the approved form. The approved form (Form 4) contemplates that the grounds for making the application for review will accompany the application. 161The function of the review panel will vary according to the way in which the applicant for review chooses to frame the application. If specific objections are stated, the panel will, of necessity, deal with them. If no objections are stated and the implicitly indicated desire of the applicant is merely to have the review panel conduct a general review, no specific matters will call for attention. In either such case, however, the function of the review panel is, as stated in s 375(1), to "review the determination of the costs assessor" and to decide whether the assessment should be affirmed or altered. 162Because the s 375(2) obligation to emulate a costs assessor is subordinate to the duty to "review" arising from s 375(1), a review panel is not required to make a new assessment as if the original assessment had never been made. The starting point will generally be the original determination of the costs assessor. The review panel will take into account not only the material specified in s 375(3) but also the application for review made under s 373(1) and referred by the Manager, Costs Assessment to the review panel pursuant to s 374(1). That application must, for these purposes, be regarded as including the documents that accompany it in conformity with clause 132 of the regulation. A panel does not exist (or, more precisely, is not "constituted") unless and until the Manager, Costs Assessment "refers" an application for review to it. 163Where 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. 164Against that background, attention may be given to the present case. The applicants' s 373 application set out 35 grounds on which the applicants sought review of the assessor's determination. In their application to this Court, the applicants say that the review panel erred in law in its treatment of several of those grounds and that the District Court in turn erred in law by failing to recognise and deal with the panel's errors. The errors of law fall into two broad categories which may be considered separately. 165The first category consists of failure of the review panel to find that the assessor breached procedural rules or requirements of natural justice: see Grounds 7 and 8 at [116] above as they concern the costs assessor. Let it be assumed for the sake of argument that the assessor fell into error in some such way. Any such procedural error of the assessor ceased to be of any direct relevance once the applicants caused to be before the review panel not only the assessor's determination but also the applicants' grievances and the further material received by the panel under s 375(3). At that point, the review panel became charged with the task of making a review. That task required the panel to consider the stated grounds of review, to determine the original application for assessment in the light of those grounds and in the manner required of a costs assessor and to make a quantification of costs accordingly. The final step was either confirmation of the assessor's assessment or substitution of a new assessment. It was not open to the review panel to set aside the original assessment and remit the matter to the costs assessor. That result could have been achieved, on the basis of error of law by the assessor, only if the assessor's decision had been made the subject of appeal to the District Court under s 384 (or, perhaps, judicial review proceedings). 166Any failure of a costs assessor to observe procedural or natural justice requirements is not, in a direct sense, amenable to correction by a review panel. The panel, in reaching its own conclusion on the question of quantification raised by the original application for assessment, is confined to the material that was before the assessor and any additional material that it determines to receive consistently with s 375(3). If it is alleged that a party to the assessment was denied an opportunity to put material before the assessor in accordance with the legislation, the panel's evaluation of that allegation may well influence its view of the quality of the product of the assessor to which it is required by s 375(3) to have regard. The allegation might incline the panel to allow further submissions, additional evidence or both with a view to remedying the deficiency in the material on which its own assessment is to be based. 167The points just made may be amplified by reference to one of the applicants' specific complaints. They allege error of law on the part of the District Court because the primary judge did not find that there had been non-compliance by the costs assessor with s 359(1) of the Legal Profession Act. But because the judge, in the context of the appeal under s 384(1), as applied by s 382, was concerned only with decisions of the review panel as to matters of law, the complaint in respect of the primary judge's judgment is in reality a complaint of error of law in failing to find that the review panel erred in law by not recognising or accepting that the assessor had not complied with s 359(1). 168Section 359(1) is in these terms: "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." 169The applicants' application for review of the assessor's determination set out a ground of objection stating, among other things, that they received the "bundle of documents sent out by the Supreme Court" on 20 October 2010 and were allowed by the assessor only 21 days to lodge their response, which time they considered inadequate given that they could only attend to the matter at such times as other commitments permitted. 170The review panel found that "ample opportunity" was provided to the applicants to make objections and submissions to the assessor. It stated that the application "came into the hands of [the applicants] in the first two weeks of August 2010". Reference was then made to the correspondence and the applicants having "resisted attempts by the assessor to manage the matter". The primary judge, in turn, held that the applicants had been given a reasonable opportunity to make submissions and did so. 171If the true position, contrary to the review panel's finding, was that no such reasonable opportunity had been given by the costs assessor and that the assessor's determination was affected by error of law accordingly, the most that the review panel could have done was to put its own determination on to a reliable footing by ensuring that the review process was such as to provide the opportunity that the assessor had wrongfully withheld. There would be no basis for any finding of error of law by the review panel, despite the error by the assessor, unless the panel had been asked to take that course and had refused to do so. The same reasoning applies to the complaint that the costs assessor failed to give adequate reasons and thereby failed to comply with the legislation. These observations are sufficient to deal with Ground 7 and Ground 8 at [116] above as they relate to the costs assessor. 172I turn now to the second category of error of law alleged against the review panel. That category consists of misapplication of particular statutory provisions and other errors playing a direct part in quantification of costs. In each instance, it is alleged that the costs assessor committed an error of law, that the review panel, by failing to correct the error, fell into corresponding error and that the District Court, in not allowing the appeal in respect of the panel's determination, was also guilty of error of law. Examples of alleged errors of this kind are failure to recognise that it is inconsistent with the legislation to deal in a single assessment with costs ordered by different courts, misinterpretation of the order of the Local Court and failure to recognise the impact of provisions of the Legal Aid Commission Act. Alleged errors in this category are dealt with individually below.

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Alleged failure of the appeal panel to give adequate reasons 173It is convenient to deal at this point with Ground 7 at [116] above as it applies to the decision of the review panel. The applicants' complaint is that the review panel failed to comply with s 380(1), that it therefore erred in law and that the District Court in turn erred in law by not so holding. 174The obligation imposed upon a review panel by s 380(1) is to make "a statement of the reasons for the panel's determination". Section 380(2) requires that the statement of reasons be given in accordance with the regulations. Clause 134 of the Legal Profession Regulation specifies certain documents by which a statement of reasons "must be accompanied" but does not deal at all with the content of the reasons themselves. 175In relation to several of the 35 grounds of objection raised in the applicants' application for review, the panel rejected the applicants' contentions and said that the assessor's decision was correct for the reasons the assessor had given. The primary judge said of the proposition that this did not satisfy the requirement that the panel state reasons (at [92]-[95]): "92 . . . 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. 93 Accordingly, 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. 94 In 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. 95 The 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." 176The primary judge was correct. There is no basis for any argument that a review panel which considers to be right both the decision under review and the reasons given for it must formulate its own paraphrase of those reasons. 177Reference may be made, in this connection, to Alvaro v Amaral (No 2) [2013] WACA 232 where an issue arose as to the adequacy of reasons given by a master for refusing to grant leave to appeal against an arbitrator's award. It was held (at [37]-[38]) that the master, by stating that the arbitrator was "right" on a particular point, had in effect adopted the arbitrator's reasons as his own in concluding that there was no manifest error on the face of the award and no evidence of an error of law; and that this was a sufficient discharge of the duty to give reasons. 178An example of unexceptionable adoption by an appellate court of reasons given by the judicial officer whose decision was subject to appeal may be found in Robbins v Federal Commissioner of Taxation [1974] HCA 58; 129 CLR 332. The judgment of the Full High Court constituted by Menzies, Gibbs, Stephen and Mason JJ (at 341) was, in its entirety, as follows: "The Court, having considered the judgment of Walsh J and having noted the criticisms made of it by counsel for the appellant, is of the opinion that that judgment is correct and that [the] appeal should be dismissed. The appeal is dismissed with costs." 179In the present case, the review panel's function was to "review" the assessor's determination. For the purpose of performing that function, the panel was required to bring to bear experience and specialised knowledge in relation to matters already decided by the assessor for reasons stated by the assessor. It was quite sufficient for the review panel to say, in effect, that it shared and endorsed reasons for conclusions stated by the assessor that the that the panel, in turn, considered to be correct. 180This allegation of error of law on the part of the District Court is not made out.

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Omnibus application and omnibus determination 181I next deal with Ground 1 at [116] above. It was not until they appealed to the District Court that the applicants made any formal complaint about the inclusion of costs the subject of the three separate orders, each of a different court, in a single determination. Ground 9 in the grounds of appeal to the District Court was as follows: "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." 182The matter had, however, been flagged at an earlier stage. In a letter of 1 November 2010 to Ms Dulhunty, the applicants said that they had received from the Manager, Costs Assessment "a voluminous bundle of documents" (no doubt the respondent's application for assessment and the accompanying bill of costs). The applicants noted that the documents covered three separate proceedings and asked that "the bundle of documents" be "broken up and assigned to the individual cases with costs orders clearly stated for each case", so as to "prevent doubling up and overlap of matters between cases". 183Ms Dulhunty replied on 8 November 2010: "I do not propose to break the application into three matters. This is a matter for the costs assessment unit of the Supreme Court of NSW. Advice can be obtained on the bill as it is. It is not uncommon for a costs assessment application to cover several related matters or the one matter that has proceeded through a number of courts." 184Having received Ms Dulhunty's determination and reasons, the applicants made the application for review to which reference has already been made, identifying the relevant determination as that "set out in the Certificate of Determination issued on 21 January 2011 by Costs Assessor Kim Marina Dulhunty". 185The primary judge did not uphold Ground 9 upon the appeal to the District Court. He held that the assessor's determination and the decision of the review panel enabled the applicants "to identify with sufficient clarity" which costs related to which proceedings. This was obviously a reference to the way in which the bill of costs was arranged and the fact that both the assessor and the review panel dealt with matters by reference to the bill itself. Items were identified by date and listed under the headings to which I have referred. 186A particular submission made to the primary judge concerned s 385(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." 187It was submitted that, unless a party could identify particular costs as the subject of an order of a particular court, that party could not, in any meaningful way, take advantage of this provision. The judge saw "some force" in the submission but held that it did not assist the applicants "in the present case". The judge further said that even if s 385(2) did require an assessment to identify which costs relate to which proceedings, the requirement was satisfied by the assessment and determination of the review panel. 188The applicants say that, in this connection, the primary judge fell into error because he misconstrued s 353 and s 367A and thereby misconstrued his own task under s 384. 189Central to this alleged error of law is a question about the nature of the proceedings in the District Court. Those proceedings were approached on the footing that they were a single appeal against a single determination of the review panel, being an appeal under s 384 on matters of law. Both the original District Court summons of 12 February 2012 and the amended summons of 12 September 2012 were drawn on that explicit basis which reflected an assumption that the review panel had made a single decision dealing with a single determination of the costs assessor. The content of the documents issued by the review panel and the costs assessor warranted that assumption. But the correctness of the approach under which the appeal was treated as a single appeal depends on the correctness of the assumption; and the correctness of the assumption depends ultimately on the question whether the respondent's application dated 14 September 2010 was an application authorised by the legislation. 190The argument that the application of 14 September 2010 was not authorised by the legislation proceeds as follows:

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The legal aid issue 212On 27July 2007, one of the applicants (Mr Wende) obtained a grant of legal aid from that date in respect of the Supreme Court proceedings ultimately determined by Hislop J. There was no such grant to the other two applicants (Mrs Wende and Mr Lloyd). The grant of legal aid is the circumstance that gives rise to Ground 2 at [116] above. 213It is accepted on both sides that the grant of legal aid caused s 47 of the Legal Aid Commission Act to operate, although there is disagreement as to the consequences of its operating. Section 47(1) and (2) are as follows: "(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." 214It was (and is) common ground that the sum applicable for the purposes of s 47(2) was, at the relevant time, $15,000, that the Legal Aid Commission paid $15,000 to the respondent in consequence of the grant of legal aid to Mr Wende and that none of subsections (3), (3A), (4) and (4A) of s 47 affected the operation of s 47(1)(b) so as to remove immunity from liability to pay the costs the subject of the Supreme Court order beyond that $15,000. It is also accepted that Mr Wende was, in terms of s 47(1)(b), "the legally assisted person" and therefore the beneficiary of the immunity. 215The primary judge rejected a submission that the immunity afforded by s 47(1)(b) to Mr Wende in respect of the costs ordered by the Supreme Court extended so as to benefit also Mrs Wende and Mr Lloyd and that the assessor and the review panel should have proceeded on that basis. 216That submission was repeated in this Court and formed the basis of a contention of error of law on the part of the District Court. 217The argument is founded on the uncontroversial proposition that the three individuals carried on their nursery business in partnership and that, as partners conducting that business, retained the respondent to provide expert evidence for the proceedings brought by them against the owners of the land adjoining their nursery. 218The applicants say that the correct approach is to focus, as to costs, on the right of the respondent rather than the liability of the applicants; and that that right was a right to recover the costs against a partnership. It follows, so the argument runs, that regard must be had to two provisions of the Partnership Act 1892. The first is s 6(1) which says that an act or instrument relating to the business of a firm and done or executed in the firm name, "or in any other manner, showing an intention to bind the firm by any person thereto authorised, whether a partner or not", is binding on the firm and all the partners. The second is s 5(1) which states that every partner is an agent of the firm and of the other partners for the purpose of the business of the partnership and that "the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which the partner is a member, binds the firm and the other partners", unless the partner so acting has in fact no authority to act for the firm in the particular matter and the person with whom the partner is dealing either knows that the partner has no authority, or does not know or believe the partner to be a partner. 219 It follows, according to the applicants' submission, that the application for legal aid successfully made by Mr Wende had the effect of an application made by all three partners and that the resultant grant of legal aid existed for the benefit of all of them, so that the exemption from liability for costs effected by s 47(2)(b) of the Legal Aid Commission Act operated to the benefit of all. 220The primary judge did not accept that argument. He was right to reject it. His decision on the Legal Aid Commission Act aspect exhibits no error of law. 221The respondent was entitled to some payment in consequence of the costs order made by the Supreme Court. To the extent that the order was, as referred to in s 47(1) of the Legal Aid Commission Act, "an order as to costs against a legally assisted person" (and leaving to one side any effect of later sub-sections), that provision made the Legal Aid Commission liable to pay the whole of those costs (subject to the s 47(2) limit) and exempted the legally assisted person from liability to pay the whole or any part. If Mr Wende alone was a "legally assisted person", he had the benefit of the exemption. If all three persons against whom the costs order was made were somehow within the description "legally assisted person", the exemption extended to each of them. But the Legal Aid Commission remained liable for the costs, subject to the s 47(2) directive as to amount; and that meant that there was a need for the costs the subject of the Supreme Court's costs order to be quantified. 222It is important to emphasise that, as this Court has observed more than once (see, for example, Branson v Tucker [2012] NSWCA 310), the costs assessment provisions of the Legal Profession Act are concerned with quantification of costs in respect of which liability or obligation arises independently of those provisions. In some cases, however, the fact that the alleged obligation to pay costs is non-existent or unenforceable will properly play a part in the assessment process. In Cockburn v Shehadie [2013] NSWSC 758, for example, a review panel made a "nil" assessment of fees payable by a solicitor to a barrister where the barrister's cause of action for recovery was statute barred; and it was held on appeal that there had been no error of law. 223This is not a case of a non-existent or unenforceable obligation to pay costs. The costs order of the Supreme Court unquestionably gave rise to an obligation of the present applicants to pay costs. Section 47 of the Legal Aid Commission Act immediately intruded but, as I have said, it did not remove the need for quantification. The Legal Aid Commission was liable for so much of the costs as did not exceed the statutory limit. Any person bound by the costs order who was not a "legally assisted person" was liable for the whole. 224The correctness of this approach is, to my mind, confirmed by the decision of this Court in Khoury v Hiar [2006] NSWCA 47. In that case, a defendant obtained a grant of legal aid after proceedings had been commenced and some costs had been incurred. A costs order was ultimately made against that defendant in the ordinary course. An assessment of costs was made and a certificate of the assessor was filed in the registry of the District Court and thereupon took effect as a judgment. It was held that, having regard to s 42 of the Legal Aid Commission Act (which, in effect, directs that a court making a costs order is to ignore legally aided status), the costs order was properly made or, more precisely, that that nothing in the Act precluded the making of the order. The interaction of the judgment deemed to arise upon filing of the assessor's certificate and the provisions of the Legal Aid Commission Act was described by the Court (Giles JA; Beazley JA and Bryson JA concurring) in this way at [38]; "The LP Act enabled Mr Hiar [the plaintiff] to obtain a judgment through an assessment of costs and filing the assessor's certificate, but the judgment was subject to the statutory prescript that Ms Khoury [the defendant] was not liable to pay the costs. They may have stood a little uncomfortably, but the judgment and the non-liability stood together." 225At [40], Giles JA described the operation of s 47 as "superimposed on" the costs order made by the judge, as regards the liability of the defendant to pay the costs ordered. He added: "There could be an order for payment of the costs, but the words meant that the legally assisted person was not liable to pay them; the non-liability was qualified in that the words permitted the co-existence of the order for payment of the costs." 226Giles JA continued (at [43]): "I do not think s 47 [of the Legal Aid Commission Act 1979] precluded an assessment of the whole of the costs. Assessment of costs was concerned with quantification, not with liability. Depending on the various exceptions in s 47(3), (3A), (4) and (4A) of the Act, the legally assisted person might have been liable for some or all of the costs. . . . I do not think the assessor had to, or could, enter into whether one or more of the exceptions applied, or decline to assess costs on the ground that the legally assisted person was not liable to pay them to the claiming party." 227So too in this case, in my opinion, s 47 of the Legal Aid Commission Act did not preclude resort to the assessment system in order to obtain quantification; and neither the assessor nor the review panel was concerned to enter into questions of where the payment burden fell or whether Mrs Wende and Mr Lloyd were entitled to the benefit that the Legal Aid Commission Act gave to Mr Wende. There was a clear liability of the Commission (albeit one that was limited as to amount) and quantification was, at least for that reason, required. 228I am, in any event, not satisfied that the applicants' argument based on the Partnership Act 1892 (NSW) is sustainable. The Legal Aid Commission Act defines "legally assisted person" as "a person to whom legal aid is provided". "Legal aid" means "legal aid under this Act". Both definitions are in s 4. Under s 31(1)(a), a "person" may apply for legal aid. Section 31(2) makes it clear that one "person" may make an application "on behalf of" another "person". In Division 1 of Part 3, a reference to an "applicant" is a reference to "a person on whose behalf legal aid is sought". Under s 34(1), the Commission must determine an application by granting it either unconditionally or subject to conditions or by refusing it. 229Section 35(1) forbids the granting of an application unless a "means test" or "other test" is satisfied by "the applicant and each person who is associated with the applicant" (there is a "special circumstances" exception to this prohibition). Section 35(4) identifies persons "associated with" an applicant. 230The Act makes it clear that an application by a corporation may, in certain circumstances, be granted (s 37(1)(b)) but says nothing about an application by a partnership or by partners or by one partner for himself and his or her partners. 231The only facts available to the District Court showed that an application made by Mr Wende alone had been granted, he being one of three plaintiffs in the Supreme Court. It may be inferred that Mr Wende was found to satisfy a s 35 means test but it cannot be known whether, in that assessment, his partners in the nursery business were regarded as persons "associated" with him. The Legal Aid Commission Act was therefore correctly viewed as applying to Mr Wende alone as a single "legally assisted person". 232Even accepting that Mr Wende was a member of a partnership and that he became a "legally assisted person" in respect of proceedings brought in the Supreme Court by himself and his partners, it does not follow that his legal aid application was, in terms of s 6(1) of the Partnership Act, made in a "manner showing an intention to bind the firm" - indeed, it is by no means clear that he intended to "bind" anyone to anything by making an application the sole purpose of which was to obtain a benefit or concession in the form of a grant of legal aid. And even if it be accepted that Mr Wende, in terms of s 5(1), made the application "for carrying on in the usual way business of the kind carried on by the firm", the only consequence under that section was again that his action bound the firm and the other partners. Each section is concerned with fixing other partners with liability for the acts of a single partner. Neither has anything to say about curtailment of joint and several liabilities of the partners or the bearing of the burden of such liabilities among them. Nor can the "benefit" to Mr Wende of the exemption conferred on Mr Wende by the Legal Aid Commission Act be regarded as some species of partnership property; and even if such a characterisation were possible, it would be relevant only to the positions of the partners among themselves and would say nothing about the liabilities of partners other than Mr Wende to the respondent. 233The Supreme Court costs order was made against the three individuals. They thereby became subject to what would, in the ordinary course, have been joint and several liability of all of them for costs as agreed or assessed. The Legal Aid Commission Act operated to free Mr Wende from that liability. Joint and several liability of Mrs Wende and Mr Lloyd to the respondent remained. The question of how that liability ought properly be borne as among the three persons does not arise for consideration here. 234As I have indicated, the primary judge did not err in the interpretation and application of provisions of the Legal Aid Commission Act as they related to the costs of the proceedings determined by Hislop J in the Supreme Court.

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The scope of the Local Court order 235In advancing Ground 3 at [116] above, the applicants contend that the primary judge erred in law (as both the assessor and the review panel had) by regarding the costs of the Local Court arbitration as part of the costs to which the respondent was entitled pursuant to the costs order made by the Local Court. The text of that order is set out at (a) of [130] above. 236The primary judge proceeded on the basis (which is not challenged) that the arbitration in the Local Court occurred pursuant to an order made by that court under s 38 of the Civil Procedure Act 2005 and that the rehearing by a magistrate took place by reason of an application under s 42 and an order for full rehearing under s 43. 237Upon the making of the order for full rehearing, s 44(1) and s 46(1) applied. Section 44(1) is as follows: "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." (The reference to "the award" is a reference to the award made by the arbitrator.) 238The matter of costs is dealt with by s 46(1) in this way: "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." 239Following the rehearing, the Local Court made the single costs order set out at (a) of [130] above. The assessor and the review panel proceeded on the basis that that order comprehended not only the costs of the rehearing by the magistrate but also what s 46(1)(b) refers to as "costs in respect of the hearing under Division 2", that is, the hearing by the arbitrator. The primary judge saw the central question as whether "the order for costs made in respect of the Local Court proceedings included, or excluded, the costs of the arbitration" - a question that turned on the proper construction of the order actually made. 240After setting out the order in full, the primary judge (at [63]-[64]) referred to the way in which the assessor and the review panel had dealt with the question of its construction: "63 The 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...' 64 The 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.'" 241The primary judge then referred to 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. His Honour continued (at [66]): "In 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." 242Subsequently, after quoting s 46, he said (at [68]: "Again 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." 243Reference was then made to s 44 and its status of an award once an order for rehearing is made. The primary judge then said at [70]-[72]: "In 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. However, 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. Even 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]: '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].'" 244The applicants allege error of law on the face of the record, rather than jurisdictional error, in relation to the matter concerning costs of the arbitration. This Court is therefore confined to a consideration of "the record" for these purposes. It follows that attempts by the parties to call in aid aspects of the transcript of proceedings before the magistrate (or, for that matter, before the primary judge) must be rejected. 245It may readily be accepted that the primary judge correctly viewed his task as the construing of the order of the Local Court. It is generally permissible to have regard to context and, in particular, the reasons for judgment when determining the meaning and effect of a court order: Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58. In this case, however, it is not permissible to look beyond what is said in the reasons of the primary judge including, of course the references to the statutory provisions to which he referred and which themselves represent a large part of the context. 246The Local Court order of 24 July 2007 was that the defendants (present applicants) "pay the plaintiffs their costs", with a basis of assessment stated in relation to each of two periods. The question is whether the reference in the order to "their costs" was properly regarded as extending not only to the costs of the hearing by the magistrate who made the order but also to the earlier hearing before the arbitrator. 247The Local Court order did not, in terms, refer to either of the components mentioned in s 46(1), being "costs in respect of the rehearing" and "costs in respect of the hearing under Division 2". It referred to "their costs", with "their", although in the plural, signifying the present respondent as plaintiff in the Local Court. The unqualified reference to that party's "costs" can only be understood as a reference to its "costs" generally in relation to the litigation at the conclusion of which the order was made. In the ordinary course and in the absence of some indication to the contrary, an order simply that a party have its "costs" of an action encompasses all costs incurred by the party in the action, including those of interlocutory applications and other intermediate steps. Thus, it was held in Newcastle City Council v Wieland [2009] NSWCA 113; 74 NSWLR 173 that an order that referred merely to "the costs of the proceedings" included the costs of an unsuccessful mediation conducted pursuant to an order of the court. 248In the case just mentioned, the matter of the costs of the mediation was governed by s 28 of the Civil Procedure Act which stated that those costs were payable "if the court makes an order as to the payment of those costs, by one or more of the parties in such manner as the order may specify" and otherwise by the parties in agreed proportions. Ipp JA (with whom Beazley JA and Hodgson JA agreed) referred to rule 42.7(1) of the Uniform Civil Procedure Rules which states that, unless the court orders otherwise, the costs of any application or other step in any proceedings (including costs that have been reserved and costs in respect of any such application or step in respect of which no order as to costs has been made) are to be paid and otherwise dealt with in the same way as the general costs of the proceedings. 249Ipp JA continued (at [36]): "The broad terms of Uniform Civil Procedure Rules, r 42.7(1) must mean that a 'step in any proceedings' includes mediation within the meaning of s 28. Thus, Uniform Civil Procedure Rules, r 42.7, when read with s 98 of the Civil Procedure Act, includes a power to award the costs of mediation under s 28. That is to say, as ordinarily understood, the costs of proceedings under Uniform Civil Procedure Rules, r 42.7 include the costs of mediation." 250Section 98 of the Civil Procedure Act confers on the court a broad discretion with respect to orders for costs. 251Ipp JA added that the construction he had adopted did not deprive s 28 of force and effect. He said (at [37): "This does not mean that s 28 has no work to do, as Mr Cummings submitted would be the case on this construction. The work that it does is to define the circumstances under which costs of mediation are payable. Section 28, as I have observed, makes plain that, in the absence of an order or agreement, costs of mediation are not payable." 252Precisely the same analysis is apt in the present case, with s 46(1) of the Civil Procedure Act here playing the role that was there played by s 28. The Local Court arbitration was a "step" in the Local Court proceedings. Rule 42.7(1), when read with s 98, meant that there was power to award costs of the arbitration under s 46(1), so that, "as ordinarily understood", the costs of the proceedings under rule 42.7(1) included the costs of the arbitration. This approach does not deprive s 46(1) of effect: the section still dictates that, in the absence of an order, costs of the arbitration are not payable. 253I should add that the primary judge was, in my opinion, correct when he decided that s 46(1) allows one composite order, as distinct from two separate orders. A court that makes a single order covering costs of both the descriptions in the section thereby makes an order "for costs" of the first description and "in addition" makes an order "for costs" of the second description. 254For these reasons, the primary judge did not make any error of law when he treated the costs of the Local Court arbitration as part of the costs to which the respondent was entitled pursuant to the costs order made by the Local Court.

[14]

Sections 354, 364 and 365 - "fair and reasonable" costs 255As to paragraph (a) of Ground 5 at [116] above, no shortcoming in the interpretation and application of the words "fair and reasonable" is identified in submissions beyond those referred to in paragraphs (b) and (c). 256As to paragraph (b), it is incorrect to say that s 354(1) adopts the requirements of clause 125(1)(a) of the Legal Profession Regulation. Rather, s 354(1)(a) requires that an application for costs assessment be made in accordance with the regulations, while clause 125(1)(a) of the regulation says that a person proposing to apply for assessment must complete an application "in the approved form" and deliver it to the other party with a notice of a certain kind. Clause 120 of the regulation makes provision for the approval of forms. The relevant approved form is Form 3. That form does not require the provision of a bill of costs but contemplates that such a bill may, if the applicant wishes, be adopted as a means of explaining or amplifying the contentions of the applicant. Production and delivery of a bill of costs are measures that an applicant may choose to adopt in making its application but there are no legal rules regarding the form, content, delivery and treatment of such bills. 257In the absence of any such legal rules, the contentions as to alleged defects in the manner of delivery of a bill of costs cannot involve error of law. 258As to paragraph (c) of Ground 5 insofar as it concerns s 319(2), the primary judge noted a submission by the applicants in the District Court that the review panel had failed to satisfy itself whether any claim for the preparation of the bill of costs contravened s 319(2). The judge noted (at [86]), however, that this matter had not been raised before the review panel, added to which it was something not within any of the grounds of appeal in the District Court and there were no submissions directed to establishing that certain costs allowed were not recoverable under s 319. 259The primary judge was correct in these respects. No error of law is shown. 260As to the aspect of paragraph (c) of Ground 5 that concerns s 365(2), the applicants' complaint, so far as their grounds of appeal go, is that there was non-compliance with s 365(2) by the costs assessor and by the review panel that was not recognised and appropriately dealt with by the District Court. Section 365(2) has the effect that, in a party/party assessment, the assessor must not apply the terms of a costs agreement for the purposes of determining appropriate, fair and reasonable costs. 261The primary judge said (at [107]): "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." 262His Honour later said (at [110]): "It 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." 263Submissions in this Court did not provide any basis for concluding that the primary judge was wrong when he said that the provisions of the costs agreement were not applied in determining fair and reasonable rates. In addition, submissions about whether the costs agreement attracted legal professional privilege do not bear on the issue raised by the grounds stated in the summons; and questions of privilege were simply not before the District Court. 264No error of law is shown in relation to the aspects of the District Court's decision covered by Ground 5 at [116] above.

[15]

Section 369(3) - costs of the costs assessment 265Section 369(3) of the Legal Profession Act deals with the costs of a costs assessment and is relevant to Ground 4 at [116] above. Section 369(3) is in these terms: "The costs of a costs assessment to which this section applies are payable: (a) for a costs assessment in relation to costs to which section 317 (Effect of failure to disclose) applied - by the law practice that provided the legal services concerned, or (b) for a costs assessment in relation to costs to which section 364 (Assessment of costs - costs ordered by court or tribunal) applies - by such persons, and to such extent, as may be determined by the costs assessor, or (c) for a costs assessment in relation to costs that on assessment are reduced by 15% or more - by the law practice that provided the legal services concerned or, if the costs assessor so determines, by such persons, and to such extent, as may be determined by the costs assessor." 266The costs assessor identified s 369(3)(b) as the provision relevant to her decision as to how the costs of the assessment should be borne. She determined that the present applicants should pay the costs of the assessment and that the present respondent was entitled to its fair and reasonable costs of the assessment, including the costs of its costs consultant. 267The grounds on which the applicants relied in their application for review by a review panel included the following: "That costs of the costs assessment should be borne by the costs applicant." 268The review panel's determination in relation to that ground was: "This is not a ground of review." 269Upon their appeal to the District Court against the decision of the review panel, the applicants complained that the panel should have applied s 369(3)(c) by awarding the costs of the costs assessment against the current respondent rather than the present applicants because the costs had been reduced by more than 15%. 270The primary judge, applying Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (above), held that s 369(3)(c) did not apply. He said that that provision is concerned only with assessment of practitioner/client costs and that any attempt to apply it to party/party costs would be "unthinkable and plainly unjust". The applicants say that his Honour thereby fell into error of law. They argue that there is no reason why, in a case of party/party costs, the law practice that acted for a party should not be fixed with liability for the costs ordered. 271In Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd, Judge Johnstone said (at [70]): "There can be no doubt that s 369(3)(b) applies only to the assessment under s 364 of the Act of party/party costs ordered by a court or tribunal, because the subsection so provides, expressly. Nor could there be any doubt that s 369(3)(c) applies to the assessment of practitioner/client costs, because the subsection refers to the "law practice" that provided the legal services. The question is whether s 369(3)(c) also applies to the assessment of party/party costs. I consider that it does not. Firstly, the structure of s 369(3) is such that because subsection (b) applies only to the assessment of party/party costs, the legislature must have intended that subsection (c) was to apply only to the assessment of practitioner/client costs. Secondly, the reference to the law practice confirms this construction. Thirdly, subsection (c) is mandatory, in the sense that if the costs of the law practice are reduced by 15% or more, the costs of the costs assessment are to be paid by the law practice. This is inconsistent with the general discretion conferred on the costs assessor in respect of an assessment of party/party costs to award such costs against such persons, and to such extent as may be determined. Finally, the use of the word "reduced" in subsection (c) confirms that it relates only to practitioner/client costs. Under s 367 of the Act the costs assessor is required to determine an application relating to a bill, that is a practitioner/client bill, by confirming the bill or by substituting a lesser amount. That may, and usually will, involve a reduction. On the other hand, there is no element of reduction in the assessment of party/party costs. Under s 367A of the Act the costs assessor is required to make a determination of the fair and reasonable amount of costs payable as a result of an order made by a court or tribunal." 272The primary judge was correct to adopt and apply this reasoning. A particularly compelling aspect of it is that the concept of reduction of costs on assessment is foreign to a party/party case where the assessor's task under s 367A is that of "making a determination of the fair and reasonable amount of" the costs ordered by the court to be paid. That process, unlike s 367 assessment of practitioner/client costs already rendered, does not involve any amount of "costs" that marks the starting point of the assessor's consideration. The party having the benefit of the order for costs will no doubt express an opinion as to the amount that should be found by the assessor to be fair and reasonable. But that is not an amount of "costs". It is an amount that the proponent says the party bound by the order should be required to pay as costs; and the fact that the assessor ultimately decides that some smaller amount is fair and reasonable does not mean that "costs" are reduced "on assessment". 273There was no error of law by the primary judge on this aspect.

[16]

Conclusions 274The applicants have not demonstrated that the decision of the primary judge was affected by any error of law. There is accordingly no basis for any finding of jurisdictional error or error of law on the face of the record in relation to that decision. The applicants have failed to establish any case for the grant of relief in the nature of certiorari. 275I have mentioned that the costs assessor and the members of the review panel were named as parties to the proceedings in this Court and that, following reformulation of the applicants' claims, no relief was ultimately sought against them. It cannot be known whether they incurred costs at any stage after the filing of the summons in its original form. If they did, the applicants should pay their costs. In view of the substantive outcome, the applicants should also pay the respondent's costs. 276Because the applicants have acknowledged that their claim for leave to appeal from the District Court decision is untenable, there should be an order that the summons seeking leave to appeal be dismissed with costs. 277I propose orders as follows: In proceedings 2013/54356:

Dismiss the summons seeking leave to appeal.
Order the applicants to pay the respondent's costs of the summons for leave to appeal. In proceedings 2013/149830:
Grant leave to the applicants to file an amended summons in the form annexed to their notice of motion filed on 2 October 2013.
Proceedings dismissed.
That Herbert Wende, Margaret Wende and Mark Lloyd pay all other parties' costs of the proceedings in this Court.

[17]

Amendments 24 February 2015 - In paras [111], [155], [164], [167], [171], [172], [173] and [174] "appeal panel" changed to "review panel" 24 February 2015 - In para [111] replace "an" before "review panel" with "a" 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: 24 February 2015

Parties

Applicant/Plaintiff:

Wende

Respondent/Defendant:

Horwath

Legislation Cited (14)

Legal Profession Act 2004(NSW)

Supreme Court Act 1979(NSW)

Justices Act 1902(NSW)

Legal Practitioners Act 1898(NSW)

Legal Profession Further Amendment Act 2006(NSW)

Legal Practitioners Act 1987(NSW)

Legal Aid Commission Act 1979(NSW)

Civil Procedure Act 2005(NSW)

District Court Act 1973(NSW)

Interpretation Act 1987(NSW)

Judiciary Act 1903(Cth)

Partnership Act 1892(NSW)ss 6(1)

Supreme Court Act 1970(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (42)

ofession Act 2004 (NSW), ss 301, 319, 353, 354, 357, 359, 363, 364, 365, 367A, 368, 369, 373, 374, 375, 378, 380, 382, 384, 385; Pt 3.2, Div 11 Legal Profession Regulation 2005, cl 125, cl 134, Pt 9, Div 5 Legal Profession Further Amendment Act 2006 (NSW), Sch 2, [142] Partnership Act 1892 (NSW), ss 5, 6 Supreme Court Act 1970 (NSW), ss 23, 48, 63, 69, 75 Uniform Civil Procedure Rules 2005, rr 42.1, 42.7, 42.12, 44, 46, 50.3(1), 51.2, 59.10 Cases Cited: Alvaro v Amaral (No 2) [2013] WACA 232 Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 Blacker v Parnell [1978] 1 NSWLR 616 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; 183 CLR 245 Branson v Tucker [2012] NSWCA 310 Calvin v Carr [1980] AC 574 Cockburn v Shehadie [2013] NSWSC 758 Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 Craig v South Australia [1995] HCA 58; 184 CLR 163 CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725; (2011) 12 DCLR (NSW) 304 Dunn v Jerrard & Stuk Lawyers [2009] NSWSC 681 Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421 Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278; 67 NSWLR 321 Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49; [2008] 2 QdR 323 Hill v Green [1999] NSWCA 477; 48 NSWLR 161 In Re Dibbs and Farrell (1941) 41 SR (NSW) 249 Kells v Mulligan [2002] NSWSC 769 Khoury v Hiar [2006] NSWCA 47 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; 113 CLR 475 Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 Newcastle City Council v Wieland [2009] NSWCA 113; 74 NSWLR 173 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 Tomko v Palasty (No 2) [2007] NSWCA 369: 71 NSWLR 61 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; 129 FCR 558 R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 Repatriation Commission v Nation (1995) 57 FCR 25 Robbins v Federal Commissioner of Taxation [1974] HCA 58; 129 CLR 332 Ross v Lane Cove Council [2014] NSWCA 50 Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106 Vakauta v Kelly [1989] HCA 44; 167 CLR 568 Wende v Horwath (NSW) Pty Ltd (unrep, P Taylor SC DCJ) Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 Wishart v Fraser [1941] HCA 8; 64 CLR 470 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action (5h ed, Law Book, 2013) at [12.280] P Herzfeld, T Prince and S Tully, Interpretation and Use of Legal Sources - The Laws of Australia (Thomson Reuters, 2013), [25.4.730] Justice P W Young, "Construing Court Orders" (1998) 72 ALJ 117 Category: Principal judgment Parties: Herbert Wende, Margaret Wende, Mark Lloyd (Applicants) Horwath (NSW) Pty Limited (First Respondent) District Court of New South Wales (Second Respondent) K M Dulhunty Costs Assessor (Third Respondent) Richard Gulley Costs Assessor (Fourth Respondent) Mark Campbell Costs Assessor (Fifth Respondent) Representation: Counsel: C J Bevan (Applicants) S F Hughes (Respondents)

The words "those costs" in s 353(1) takes its meaning from the earlier words "an order for the payment of an unspecified amount of costs made by a court or tribunal".
The reference to "an order" and "an unspecified amount" indicate that only a single unspecified amount the subject of a single order of a particular court or tribunal may be made the subject of a s 353 application.
By s 354(2), an application must authorise a costs assessor to inspect documents "in respect of the matter to which the application relates", thus indicating that a particular application may relate to only a single "matter".
Under s 364(2), the matters to which regard may be had by a costs assessor dealing with costs ordered by a court or tribunal include "the outcome of the matter", thus implying that the assessment and therefore the application giving rise to it embrace a single "matter". 5, Section 364(3) says that an assessment must be made in accordance with the operation of the rules of "the relevant court or tribunal that Made the order for costs", thus implying that an assessment and therefore the application giving rise to it can only relate to proceedings in a single court or proceeding.
Under s 385(2), a party to an application for assessment relating to costs payable as a result of an order of a court or tribunal may seek the leave of that court or tribunal to appeal to the particular court or tribunal against a costs assessor's determination of the application. Again, separation as among courts is indicated. 191Reference was made, in this connection, to the decision of this Court in Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278; 67 NSWLR 321, the case mentioned in Ground 9 before the District Court (see [181] above). A question in that case was whether a costs assessor had erred by including in an assessment the costs of a cross-claim where the costs order was merely that the plaintiff pay the defendant's costs and all cross-claims had been resolved by consent orders for dismissal with each party paying its own costs of the cross-claim. This Court decided that the assessor had so erred. But that result proceeded from the terms of the orders, not any question of statutory construction of the kind now under discussion. 192The applicants also pointed to a matter to be considered in greater detail presently, namely, that one of them had received a grant of legal aid in respect of appeal from the Local Court to the Supreme Court. The beneficiary of that grant thereby became a "legally assisted person" within the meaning of the Legal Aid Commission Act and, according to the applicants, s 47 of that Act then limited to $15,000 the amount recoverable under an order as to costs made by the Supreme Court in the Supreme Court proceedings. 193The correctness of that submission will be considered in due course. For the present, it is sufficient to note that s 47 of the Legal Aid Commission Act applies "[w]here a court or tribunal makes an order as to costs against a legally assisted person" and makes various provisions regarding liability for payment of "those costs". That, the applicants say, indicates an underlying assumption that every process for the quantification of party/party costs must be one that allows independent quantification of the costs the liability for which comes from a particular "order as to costs". 194Textual indications within the Legal Profession Act itself are that an application under s 353 will normally relate to costs ordered by a particular costs order to be paid. But it cannot be said that that is the only kind of application that is permitted. For example, if, in the course of a single proceeding involving two parties, there were ten costs orders, seven against one party and three against the other, it could not be argued that, in order to obtain quantification of the costs to which they were entitled, the parties between them would have to lodge ten applications for assessment. It would be quite consistent with the statutory scheme for each party to lodge one application. Considerations of efficiency would favour one costs assessor dealing with both. 195If, as I consider to be the case, it is thus permissible for costs the subject of each of several orders made in a single proceeding to be included in a single application for assessment, it is necessary to consider the correct treatment of an application of that kind. 196Section 367A requires that the costs assessor determine an application "by making a determination of the fair and reasonable amount of those costs", that is, "costs payable as a result of an order made by a court or tribunal". The focus is on a particular order and the costs "payable as a result of" that order. The fair and reasonable assessment must relate to the costs payable as a result of the particular order. 197It follows that, while an omnibus application may be permissible, the assessor must approach the several components of such an omnibus application separately so as to reach, in relation to each costs order, an opinion as to the amount that is a fair and reasonable amount for the costs the subject of the order. In the same way, a certificate under s 368(1) must set out the "determination of costs" referred to Subdivision 3 of Division 11, being, clearly enough, the determination of the application for assessment of "costs payable as a result of an order made by a court or tribunal". Under s 368(2), several certificates may be issued in relation to a single application for costs assessment. This reinforces the need for a separate determination and certificate for the costs the subject of each order, even though several orders and the costs referable to them may be included in a single application. 198The making of a determination in accordance with s 367A is a prerequisite to any application for review under s 373(1) in respect of party/party costs; and there can be no determination of a review panel under s 378 unless there is an application for review under s 373(1). It follows that, unless there has been, in terms of s 367A, a determination of the fair and reasonable amount of the costs ordered by a particular costs order, there does not exist a determination that is susceptible to review by a review panel consistently with s 373(1) and that the panel can either affirm or set aside. 199Ms Dulhunty did not, in explicit terms, make an assessment of the fair and reasonable amount of the costs ordered by any particular costs order. She determined an aggregate sum considered fair and reasonable for all costs comprehended by three orders of different courts. It was submitted on behalf of the respondent (and accepted by the primary judge) that, having regard to the form of the bill of costs (particularly its sequential listing of items) and the reasons given by the assessor, what was expressed as an aggregate determination relating to all three costs orders together should be taken to embody a separate determination of the reasonable amount of the costs ordered by each separate order. This was because a distinct amount for each order could readily be ascertained from the two documents. Thus, it was said, the bill could be divided into three parts according to periods, with the first period being that from the inception of the parties' litigation to the making of the order of the Local Court, the second spanning the subsequent period up to the making of the order of Hislop J and the third covering the subsequent period up to the making of the order of the Court of Appeal. And the items in the bill that were allowed and disallowed for each period were clearly identified in the statement of reasons. 200I was initially doubtful that it can, in this way, be concluded that the assessor decided the fair and reasonable amount of the costs the subject of each costs order. My apprehension was that a much more detailed process of analysis, going beyond separation into three periods and identification of items allowed and disallowed for each, would be necessary. This was because of the generic adjustments mentioned at [144] above and a concern that it would be necessary to identify in the bill each and every instance of perusal of a particular document by more than one solicitor and to deduct the sums for the second and any subsequent perusals and, in the same way, to identify and eliminate every charge for "collation", with the process of reconstruction accommodating all of the numerous bases for elimination, reduction and adjustment referred to in the assessor's reasons. 201On closer consideration, I am of the opinion that this apprehension is unfounded. The assessor gave an explicit account of each and every implementation of one of the expressed bases of elimination, reduction and adjustment referred to in her reasons. The overall result was reflected by the 83 specifically identified profit costs modifications and the numerous specifically identified adjustments for disbursements. It was therefore correct for the primary judge to conclude that the bill of costs arranged in sequential fashion and the assessor's determination and reasons, read as a whole, disclosed the amount that had been determined to be the fair and reasonable amount of the costs the subject of each of the three costs orders. The amount attributable to a particular order was not stated as a single figure but was easily ascertainable by reference to the timing of items of work relative to the proceedings to which the order related and the specific eliminations, reductions and adjustments affecting those particular items of work. 202Had the assessor said that the fair and reasonable amount of the costs the subject of one of the orders was $X, there would unquestionably have been a determination in the relevant sense. There would also have been a determination if the assessor had said that the amount was $X plus $Y; or $X plus $Y minus $Z; or, referring to an identified document, "the amount shown in the last line on page 4 plus the amount shown in the first line on page 7". That is in substance the position here. 203I am therefore satisfied that the primary judge was correct in his view that, in the particular circumstances of this case, the costs assessor acted in conformity with s 367A to make, in respect of each costs order, a determination of the reasonable amount of the costs payable as a result of the order. 204It is then necessary to consider the proceedings involving the review panel. 205As has been noted, s 373(1) permits a particular type of application to the Manager, Costs Assessment. Such an application can only be made by a party to a costs assessment "who is dissatisfied with a determination of a costs assessor". Such a person may apply for "a review of the determination". The time within which such an application is fixed by the section: "within 30 days after the certificate under section 368 (Certificate as to determination) or section 369 (Recovery of costs of costs assessment) has been forwarded to the parties that sets out the determination of the costs assessor". 206Two questions arise in relation to the application the applicants in fact made in purported reliance on s 373(1) to the review panel: first, whether it was an application for review of each of the three determinations made by the assessor; and, second, whether it was made in accordance with the time specification in s 373(1). 207The application was, in terms, a single application relating to a single determination. But, in view of the conclusions I have reached about what was presented as a single determination, the application was, as a matter of substance, an application in relation to each of the three determinations within what purported to be the single determination. In that way, it is properly regarded as three applications, each of which dealt with a separate determination. The first question should therefore be answered in the affirmative. 208The second question is whether there was in truth any "certificate under section 368 (Certificate as to determination)" as referred to in s 373(1). 209Once an assessor has made a determination, s 368(1) requires that the assessor issue "a certificate that sets out the determination". I do not think that the certificate in fact issued by the costs assessor (see [147] above) satisfied that requirement as it applied to each of the three determinations. The fact that each determination could be ascertained only by the process of analysis and deduction already described and that the certificate in fact issued referred to a single and undivided sum leads to that conclusion. 210That, however, did not mean that it was not open to a party to the assessment to apply under s 373 for a review of each relevant determination of the assessor or that the Manager, Costs Assessment was not bound to refer to a review panel. On one view, the period referred to in s 373(1) never commenced to run but I do not think that the reference to that period is intended to preclude an application made in respect of a determination that has not properly been reduced to certificate form. 211The applicants' contentions of error of law based on the composite nature of relevant determinations must be rejected.

HEADNOTE [This headnote is not to be read as part of the judgment] This case concerned an application for judicial review of a decision of the District Court dismissing an appeal from a review panel affirming a determination of party/party costs by a costs assessor. In 1998, the applicants suffered loss when a neighbour's tree fell on to their property. They commenced proceedings against the neighbour to recover damages and retained Horwath (NSW) Pty Ltd ("Horwath") to provide expert evidence as to loss sustained by their business. In 2004, Horwath filed a claim in the Local Court against the applicants seeking payment of $18,526 said to be due to it for professional services rendered. The matter was referred to an arbitrator who made an award in favour of Horwath. The matter proceeded to the Local Court by way of re-hearing where Horwath obtained judgment in its favour. The applicants then appealed to the Supreme Court, but their application was dismissed. Their application for leave to appeal to the Court of Appeal was similarly rejected. Costs were ordered against the applicants in favour of Horwath following the Local Court, Supreme Court and Court of Appeal proceedings. Horwath made an application to have its costs in respect of the three costs orders assessed by a costs assessor pursuant to s 353 of the Legal Profession Act 2004 (NSW). Horwath's costs were determined at $175,052.78. The costs assessor issued one certificate of determination, expressed the assessment as global sum, did not expressly state how the costs were apportioned between each of the costs orders for which the application for assessment was made but appended reasons for her assessment to the certificate. The applicants applied under s 373 of the Legal Profession Act 2004 to have the assessment reviewed. A review panel set the assessment aside and determined that the sum of $160,052.78 was a fair and reasonable amount of costs to be paid. None of the applicants' 35 grounds of review were accepted. The award was only adjusted to correct an arithmetical error of the costs assessor. The applicants then commenced an appeal against the panel's determination in the District Court pursuant to s 384 of the Legal Profession Act 2004, which was dismissed by P Taylor SC DCJ in Wende v Horwath (NSW) Pty Ltd. The applicants brought an application to the Court of Appeal for judicial review of District Court's decision pursuant to the Court's supervisory jurisdiction under to s 69 of the Supreme Court Act 1970 (NSW). The principle issues for determination on review were: (i) Whether the costs order made by the Local Court Magistrate included the costs of the arbitration. (ii) Whether the legal aid issued to Mr Wende enured for the benefit of all three applicants such that they would be entitled to protection under the limitation on recovery of costs against legally aided litigants conferred by s 47 of the Legal Aid Commission Act 1979 (NSW). (iii) Whether a person entitled to apply for an assessment of party/party costs can make a single application to have multiple costs orders assessed. (iv) Whether a cost assessor is required to issue separate certificates of assessment in respect of each costs order for which an application for assessment is made. (v) Whether Horwath should be liable for the costs of the costs assessment pursuant to s 369(3)(c) of the Legal Profession Act 2004 because its costs claimed were reduced by more than 15% on assessment. (vi) Whether the review panel conducted a "review" within the meaning of s 375 of the Legal Profession Act 2004. (vii) Whether the cost assessor and the review panel gave adequate reasons for their determinations. The Court held by majority, in upholding the application for judicial review, that the District Court's decision disclosed error of law on the face of the record in construing the Legal Profession Act 2004 and should be set aside accordingly. The Court also set aside the costs assessments of the costs assessor and the review panel. The Court's findings were as follows: In relation to (i)

Per Barrett JA (Beazley P agreeing): Regard may be had to context and the reasons for judgment when determining the meaning and effect of a court order: [245]. Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 applied.
Per Barrett JA (Beazley P agreeing): In the ordinary course and in the absence of some indication to the contrary, an order simply that a party have its "costs" of an action encompasses all costs incurred by the party in the action, including those of interlocutory applications and other intermediate steps: [247]. Here, the arbitration was such an intermediate step in the Local Court proceedings: [252]. Principal legislation considered: Civil Procedure Act 2005 (NSW), ss 38, 42, 43, 44, 46 and 98; Uniform Civil Procedure Rules 2005 (NSW) 42.7(1) and 42.12. Newcastle City Council v Wieland [2009] NSWCA 113; 74 NSWLR 173 applied.
Per Basten JA: Regard may be had to extrinsic material when interpreting a court order in the case of ambiguity and may be relied on even if there is no ambiguity: [59]-[62]. Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58 cited. Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 referred to. Guardianship and Administration Tribunal v Perpetual Trustees Qld Ltd [2008] QSC 49; [2008] 2 Qd R 323; Owston Nominees No 2 Pty Ltd v Branir Pty Ltd [2003] FCA 629; 129 FCR 558 applied
The order for costs should be construed against the respondent because it should have raised the issue regarding the costs of the arbitration before the Local Court Magistrate: [63]-[73]. In relation to (ii)
The Court: Protection from an adverse costs order conferred by the s 47 of the Legal Aid Commission Act 1979 (NSW) on a legally assisted person does not extend to persons with whom the person is in partnership: [212]-[234]. Partnership Act 1892 (NSW) ss 6(1) and 5(1). In relation to (iii)
Per Beazley P and Barrett JA: Multiple costs orders may form the subject of a single application to have costs assessed pursuant to s 353 of the Legal Profession Act 2004: [6]-[9] (Beazley P); [195] (Barrett JA). In relation to (iv)
The Court: A costs assessor making an assessment of party/party costs under several costs orders must make a separate assessment in relation to each order: [9] (Beazley P); [38]-[48] (Basten JA); [193]-[197] (Barrett JA).
Per Beazley P and Basten JA (Barrett JA contra): Each such separate determination must be embodied on a separate certificate of determination: [1], [10]-[13] (Beazley P); [38]-[48] (Basten JA).
Per Barrett JA (in dissent): The costs assessor's assessment complied with the procedural requirements of the Legal Profession Act 2004 (NSW) because it was possible to ascertain the assessor's determinations with respect to each costs order from the assessor's reasons notwithstanding that these determinations are neither expressly stated nor embodied in separate certificates: [181]-[211]. Legal Profession Act 2004 (NSW), ss 353, 354, 364, 367A, 373, 378, 384 and 385 considered. Frumar v Owners of Strata Plan 36957 [2006] NSWCA 278; 67 NSWLR 321 distinguished. In relation to (v)

Judgment 1BEAZLEY P: I have had the advantage of reading in draft the judgments of Basten JA and Barrett JA. I agree with the reasons of Barrett JA save for the question whether a global costs order may be made in circumstances where a party who has applied for a costs assessment pursuant to the Legal Profession Act 2004, s 353 seeks assessment of the costs payable in respect of several costs orders. 2The relevant sections of the legislation are set out in the judgments of their Honours and I will only refer to the terms of the provisions as is necessary to explain my reasoning. Insofar as it applies to the present matter, s 353 entitles a party to apply for an assessment of the whole of, or any part of the costs that are payable pursuant to a costs order made by the court. An application for costs assessment must be made in accordance with the regulations: see the Legal Profession Regulation 2005, Pt 9, Div 5. The approved form is drafted so as to refer to a single costs order. The application and must be accompanied by the prescribed fee unless the fee has been waived or postponed: ss 354(1) and (4). 3Section 357 provides that the Manager, Costs Assessment, is to refer "each application for costs assessment" to a costs assessor. Section 367A provides that the costs assessor "is to determine an application for an assessment of costs payable as a result of an order ... by making a determination of the fair and reasonable amount of those costs" (emphasis added). Section 368(1) provides that the costs assessor, after making a determination of costs, is to issue a certificate that sets out the determination. Section 368(2) provides: "A costs assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process." 4The respondent was entitled to receive costs as a result of various costs orders made in its favour in different courts. The costs orders related to the same 'matter' in that cost orders were made in the Local Court upon the success of the respondent's claim for professional fees rendered for services provided to the appellants. An appeal by the appellants to the Supreme Court from that judgment was unsuccessful and another order for costs was made in favour of the respondent. The appellants were refused leave to appeal from that judgment and a costs order was again made in favour of the respondent. Although the underlying matter in each Court was related in the way described, the appeal to the Supreme Court and to the Court of Appeal involved the commencement of a new proceeding: see respectively Uniform Civil Procedure Rules 2005 (UCPR), Pt 50, r 50.3(1) and the definition of "appeal proceedings" in Pt 51, r 51.2. 5Costs orders may be made during the course of proceedings in respect of interlocutory matters. Costs of interlocutory applications may also be "reserved" for later determination whether or not as part of the final costs order made in the matter. Costs orders are also made at the conclusion of the proceedings. Pursuant to UCPR, r 42.7 costs orders made in respect of interlocutory applications during the course of proceedings do not become payable until the conclusion of proceedings unless the Court otherwise orders. That does not, however, preclude a party from applying for the assessment of costs prior to the conclusion of the proceedings. 6Parties may and frequently, if not usually, apply for the assessment of all costs orders, interlocutory and final, in the one application. It also appears that parties sometimes make one application where costs are ordered at first instance and on appeal. On occasions, a single certificate issues in respect of the costs assessor's determination of the total costs payable, as happened on this occasion. 7Although the provisions of the statute do not state that more than one costs assessment may be sought in the one application, neither does the legislation proscribe the filing of an application that seeks the assessment of more than one costs order, whether that be in respect of orders made by a court in the one matter or whether it be in respect of orders made in different courts as between the same parties, whether or not in the same 'matter', as I have described, or in unrelated matters. Although the approved form is drafted so that an assessment is sought in respect of a single costs order, being a pro forma document, there is no reason why it could not be adapted to refer to several costs orders, as clearly is done as a matter of practice. 8Courts and tribunals frequently have before them applications in which more than one claim is made. Although a costs assessor is not a court or tribunal, the process prescribed for costs assessments bears a resemblance to a court process in the sense that the process is commenced by an application in an approved form. I agree therefore with the reasons that Barrett JA gives for an 'omnibus' application being permissible under the legislation. 9I also agree with the reasons of Barrett JA, at [197], that although such an 'omnibus' application may be made, the costs assessor is required to make a determination as to the amount that is a fair and reasonable amount for the costs that are subject of each costs order. This is, in effect, recognised in the provisions of s 368(2) which provides that several certificates may be issued in relation to an application for assessment of costs. Section 373 provides for a review of a determination of the costs assessor. As the costs assessor must make a determination in respect of each costs order, the review for which s 373 provides must be in respect of that determination, and if more than one, each of those determinations. In this regard, I also agree with Barrett JA's reasons at [198]. 10Where I depart from his Honour is in respect of the question whether, where an omnibus application has been made, the legislation permits a costs assessor to make a global determination of the fair and reasonable amount of the costs subject of the various costs orders for which assessment has been sought. 11In the present case, the determination made by the costs order was that the "fair and reasonable amount of costs to be paid to the costs applicant the sum of: $175,052.78". As Barrett JA has carefully explained, it may be possible in this case, given the way in which the itemised bill upon which the costs assessor made her determination was structured, to ascertain the amount that was determined in respect of the three costs orders subject of the assessment application. However, that possibility does not convert her determination into a determination in respect of each costs order as is required by the statute. On its terms and in its form, there was but one global determination. As a matter of construction of the statute, I do not consider that is permissible. 12The matter can also be tested by the circumstance that a party seeking a costs assessment is not required to provide a bill of costs. If that had occurred in this case, the ability to 'sort out' what the determination was in respect of each costs order may not have been even a possibility. However, the important and indeed only relevant matter is that it is not for parties or a review panel or the court to 'sort out' what the costs assessor did. The statute prescribes what must be done. I have concluded that the statute requires a determination in respect of each costs order that is made and for which an application for assessment is made. 13This may well have inconvenient consequences, given that judgment for the amount of the costs determined is obtained by the filing of a costs certificate in a court with relevant jurisdiction: s 368(5). If costs orders had been made in a matter both for and against a party seeking a costs assessment, it would be more efficient and equitable for those costs to be set off against each other with a final sum determined. However, the present structure of the legislation does not, as I would construe it, permit this to happen. The relevant professional associations may wish to bring this to the attention of the legislature. 14It follows, therefore, that I agree with the orders proposed by Basten JA. 15BASTEN JA: In 1998 the applicants, who ran a nursery business, suffered loss when a neighbouring tree fell on their property. The respondent, Horwath (NSW) Pty Ltd ("Horwath"), provided an expert opinion upon which to base a calculation of the amount of the loss. In March 2004 Horwath filed a claim in the Local Court against the applicants seeking payment of fees for its services. The matter was referred to an arbitrator, but ultimately proceeded to a hearing, Horwath obtaining a judgment in its favour. The applicants appealed to the Supreme Court, but their appeal was dismissed. An application for leave to appeal to this Court was rejected. At each stage, Horwath obtained an order that the applicants pay its costs. 16Horwath claimed a total amount of $215,625.59 for its costs. No agreement was reached as to the amount payable and Horwath lodged an application for the costs to be assessed by a costs assessor pursuant to the Legal Profession Act 2004 (NSW), Pt 3.2, Div 11. An assessor, Ms Dulhunty, gave a determination in an amount of $175,052.78. 17In the Supreme Court, one of the applicants, Mr Herbert Wende, had obtained a grant of legal aid. In accordance with the provisions of the Legal Aid Commission Act 1979 (NSW), an amount of $15,000 was paid by the Legal Aid Commission on account of Horwath's costs in those proceedings. Mr Wende was not liable for any further amount in respect of those costs. The assessor allowed a credit for the payment, but only in the sum of $10,000. 18The applicants sought a review of the assessment which, in due course, was referred to a review panel. The review panel corrected the mistaken calculation of the payment from the Legal Aid Commission, but otherwise affirmed the assessment made by the assessor. 19Pursuant to ss 382 and 384 of the Legal Profession Act, a party dissatisfied with a determination of a review panel may appeal against "a decision of [a review panel] as to a matter of law": s 384(1). An appeal dated 12 September 2012 was lodged with the District Court. The appeal was dismissed on 15 February 2013: Wende v Horwath (NSW) Pty Ltd (unrep, P Taylor SC DCJ). 20Not persuaded by an expanding list of failures in resisting payment of an initial claim of $18,536, the applicants sought to appeal to this Court. The right of appeal conferred by s 127 of the District Court Act 1973 (NSW) is limited to a judgment or order in "an action" in the Court. As the Court has held in a series of decisions, that phrase, generally speaking, does not include statutory appeals from other jurisdictions: Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 at [11] (Campbell JA). Counsel appearing for the applicants did not seek to contend that there was any appellate jurisdiction in the present case. He conceded that the application for leave to appeal should be dismissed. He resisted an order for costs, but largely on the basis that little additional expense would have been incurred by the jurisdictional mistake in this court and an order may give rise to further disputation. The probable amount may be low, but is not a reason to decline the usual order. If it is indeed low there should be no strenuous resistance, but that too is beyond the range of relevant factors. The summons seeking leave to appeal should be dismissed with costs. 21The applicants have now invoked the supervisory jurisdiction of the Court provided by s 69 of the Supreme Court Act 1970 (NSW). Pursuant to that jurisdiction, they seek to have the judgment of the District Court set aside on the basis of jurisdictional error, or for error of law on the face of the record of the District Court.

Nature of this Court's jurisdiction 22The first issue in relation to this Court's jurisdiction concerned the ongoing significance of the certificate given by the original costs assessor, Ms Dulhunty. Although, in the course of oral argument, senior counsel for the applicants eschewed so much of the application as sought relief against Ms Dulhunty, he maintained the appropriateness of the grounds which sought to identify error in her decision. Subject to a minor qualification, that approach was erroneous. The applicants were party to a costs assessment and were dissatisfied with the determination of the costs assessor: accordingly, they were entitled to apply for, and did apply for, "a review of the determination": Legal Profession Act, s 373(1). Their application for review was referred, pursuant to s 374, to a panel constituted by two costs assessors. The review panel had "all the functions of a costs assessor" and was required to "determine the application ... in the manner that a costs assessor would be required to determine an application for costs assessment": s 375(2). The review was to be conducted on the evidence that had been received by the costs assessor, although the panel had power to receive submissions from the parties and receive fresh, or additional evidence: s 375(3). Further submissions and grounds of objection were filed with the application for review and were considered by the review panel. Otherwise, the matter proceeded on the material before the costs assessor. 23The review panel confirmed the determination of the costs assessor (subject to the correction of the credit allowed for the Legal Aid Commission payment). In due course the panel issued a certificate setting out their determination, in accordance with s 378(1). The panel also gave a statement of reasons for its determination which, in part, adopted the reasons of the costs assessor. To the extent that that course was taken, Ms Dulhunty's reasons remained accessible for review. (Whether such adoption was permissible under s 380 was itself in dispute.) 24The right of a party to have an initial decision reviewed on the merits is closely analogous to the so-called "all grounds" appeal which used to be available under s 122 of the Justices Act 1902 (NSW), providing for such an appeal from a conviction by a magistrate to Quarter Sessions (later the District Court). It was a "full appeal on law and fact". As explained by Dixon J in Wishart v Fraser [1941] HCA 8; 64 CLR 470, so long as the decision of Quarter Sessions affirming the conviction stood it was conclusive of the issues determined and it was not open to the person convicted to seek prohibition with respect to the conviction by the magistrate. Even if the disposition involved the dismissal of an appeal which was "withdrawn", with orders confirming the conviction and penalty imposed by the magistrate, no prohibition would lie: Blacker v Parnell [1978] 1 NSWLR 616. By analogy, there cannot be two certificates of assessed costs in relation to one matter: where there has been a determination by a review panel, which "sets out the determination", pursuant to s 378(1), that determination must, by implication, supersede the determination under review. Accordingly, it was not open to the applicants in this Court to seek to challenge the validity of the determination of Ms Dulhunty: the validity of that determination was assumed for the purposes of the review and it would be inconsistent with the fact of the review to allow the applicants to challenge the validity of the original certificate. Rather, unless and until the decision of the review panel be set aside, the original certificate has no legal consequence. 25The same analysis does not apply to the determination of the review panel. The appeal to the District Court was limited to decisions of the panel as to matters of law. However, that right of appeal is more extensive than the scope of an application under the supervisory jurisdiction of this Court. If an appeal were taken to the District Court, it would be an abuse of process to invoke a similar but less extensive jurisdiction under s 69 of the Supreme Court Act, whilst the appeal remained on foot. If no appeal were taken to the District Court, but a challenge to the decision of the panel was brought to the Supreme Court, relief might well be refused on the basis that the statutory appeal right should properly be invoked, where available, rather than the supervisory jurisdiction under s 69. Further, an application under s 69 of the Supreme Court Act with respect to a decision of a review panel would not come to this Court, but would go to a judge in the Common Law Division. 26In any event, an appeal having been taken to the District Court and determined by that Court, the applicants should properly be restricted to the challenges they now seek to make under s 69 to the orders made in the District Court, unless it be suggested (which it was not) that the appeal was not available on grounds which could be invoked under s 69.

(a) amended summons 32As explained by Barrett JA, the applicants sought leave to amend their summons seeking to review the decision in the District Court in a number of broad ranging respects. The decision subject to review was made on 15 February 2013. The original summons was filed within three months, in accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 59.10. (It is not necessary to consider for present purposes whether that time limit applied with respect to a decision made before the commencement of the rule on 15 March 2013.) The application to amend was made on 2 October 2013 and was stood over for determination on the hearing of the summons. Relevantly for present purposes, the application to amend included the following heading and numbered paragraphs: "Whether one bill of costs can validly claim costs under costs orders made by different court for purposes of costs assessment regime in Legal Profession Act 2004 (NSW) 2A The primary judge erred in his interpretation and application of ss 353 and 354 of the Legal Profession Act 2004 by his determination that the fact that a court order is needed to precede a valid costs assessment does not mean that each separate item or group of costs need be the subject of a separate court order. 2B The primary judge erred in his interpretation and application of ss 353 and 354 of the Legal Profession Act 2004 by failing to determine that the first respondent's bill of costs was invalid for the purposes of ss 353 and 354 on the ground that it included the costs ordered to be paid under three (3) separate and distinct costs orders made by three (3) different courts (namely, the Local Court, the Supreme Court and the Court of Appeal in three (3) sets of proceedings without distinction as to which costs were incurred under which order as to costs, or were incurred in which court or were incurred in which particular proceeding)." 33In considering the application to rely upon these grounds, two questions are central. First, was the ground raised on the appeal to the District Court? Secondly, is the respondent embarrassed or prejudiced by the late proposed amendment? 34Ground 9 in the notice of appeal to the District Court was in the following terms: "The Statement of Reasons of the Costs Review Panel does not allow the Plaintiffs 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." 35The trial judge found that Frumar was "not authority for the proposition asserted": at [96]. He also noted the applicants' submission that the rendering of a single certificate of assessment impeded the applicants in exercising their rights of appeal under s 385(2) of the Legal Profession Act. The trial judge accepted that there was "some force" in the submission that the right 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 [103]. He concluded, however, that the bill and assessment were set out in a manner, by date and headings, which were sufficient "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": at [106]. 36It may be accepted that ground 9 did not directly raise the issue now sought to be relied upon, but it did in substance raise a question as to the validity of a single determination (and certificate) relating to costs in several jurisdictions, awarded pursuant to separate court orders. 37So far as the question of prejudice is concerned, the issues raised are questions of law, relating to the precise nature of the statutory function conferred on the costs assessors and their powers to assess costs pursuant to several court orders. Whilst maintaining its objection to the amendment, the respondent was able to address the substance of the complaint, without prejudice or embarrassment (beyond having to deal with an extended application) in written submissions filed on 11 November 2013. In these circumstances, leave to amend to include grounds 2A and 2B should be granted.

(c) waiver or acquiescence 49It was perhaps arguable that the applicants acquiesced in the course taken by Ms Dulhunty by seeking review of her certificate. This proposition raises two separate issues, neither of which was argued before this Court. The first is that, merely by instituting proceedings for review the applicants waived any entitlement they had to have the initial determination set aside as invalid in point of law. The second possibility is that they lost the right to make such a case when they did not repeat the objection taken with Ms Dulhunty before the review panel. 50Questions of "acquiescence" or "waiver" have frequently arisen in cases involving a reasonable apprehension of bias on the part of a judge, where either objection is not taken or having been taken and rejected, an interlocutory appeal or application for judicial review is not pursued: see R v Magistrates' Court at Lilydale; Ex parte Ciccone [1973] VR 122 at 132-134 (McInerney J); Vakauta v Kelly [1989] HCA 44; 167 CLR 568 at 577-579 (Dawson J); Michael Wilson & Partners v Nicholls [2011] HCA 48; 244 CLR 427 at [74]-[86] (Gummow ACJ, Hayne, Crennan and Bell JJ). Those authorities have no application (except perhaps by analogy) in the present case; there may, however, be analogous principles with respect to discretionary grounds for refusing orders quashing the decision of a tribunal or court or refusing to prohibit enforcement of orders where the procedure adopted below was tainted: see Aronson and Groves, Judicial Review of Administrative Action (5th ed, Law Book, 2013) at [12.280], under the heading "Blameworthy applicants". 51The principle does not operate in the present case, however, because a review was undertaken at the instigation of the applicants. The result was a determination which superseded the determination of Ms Dulhunty, with the result that her determination no longer had legal consequences: see at [24] above. The mere fact of taking the appeal does not constitute a waiver of an erroneous decision on a point of law, although, if the complaint is a failure to accord procedural fairness, that error may be "cured" by a full and fair rehearing in an appellate tribunal: Calvin v Carr [1980] AC 574. Further, a failure to take an available right of appeal may lead to a refusal of relief with respect to the original decision: Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106; Hill v Green [1999] NSWCA 477; 48 NSWLR 161 at [54]-[55] (Spigelman CJ); [155]-[157] (Fitzgerald JA, Beazley JA agreeing). 52The applicants (described as "costs respondents") made submissions to the review panel dated 16 May 2011. Paragraphs 6 and 7, under the heading "General Principles", expressly referred to s 353 and its requirement that what was to be assessed was "costs as a result of an order". Given the earlier correspondence with Ms Dulhunty, which was before the review panel as part of the file, these submissions should have been understood as invoking a right to have separate bills for each costs order. To the extent that the review panel dealt with the issues raised in the general submissions, they were dismissed in paragraph 3.1 in the following terms: "The panel notes that the assessment was correctly completed by the Assessor under the provisions of the Legal Profession Act 2004." 53There was no withdrawal of the point which had been taken below. It did not have to be restated or reargued. The relevant objections were before the review panel and were addressed. Accordingly, if the assessment proceeded on a wrong basis and separate certificates were required relating to each court order, there is no reason to refuse the applicants relief.

(e) costs of assessment 74Provision for making an order as to the costs of the costs assessment is found in s 369 of the Legal Profession Act. A certificate which sets out a determination of costs is not to include the costs of the costs assessment: s 368(3). Accordingly, it is necessary for a costs assessor to issue a separate certificate with respect to the costs of the assessment. 75The separate certificate issued by Ms Dulhunty under s 369 required that the "costs respondent" (presumably a reference to the three applicants) pay an amount of $13,128.76 as the costs of the assessment. The review panel "affirmed" that certificate and issued a separate certificate in respect of the costs of the review. The latter certificate, dated the same day, identified an amount of $5,818, to be paid by the applicants. 76The challenge is not to the amount of the two costs certificates, but as to the party on whom liability should fall for payment of those costs. In the event that the costs determinations are set aside, those orders must also fall. However, because the applicants raise a separate and discrete question of law as to the operation of s 369 of the Legal Profession Act, independently of their other arguments, that issue should be addressed. 77The amount of costs claimed by Horwath was $215,626; the amount allowed by the review panel was $160,053. The difference, being $55,573, was a little over 25% of the amount claimed. In those circumstances, the applicants claimed that Horwath's solicitors should have been required to pay the costs of the assessment, pursuant to s 369(3)(c). The correctness of that submission turns on the proper construction of s 369 which, so far as relevant, provides: 369 Costs of costs assessment (1) This section applies to the costs of a costs assessment in relation to: (a) costs to which section 317 (Effect of failure to disclose) applies, and (b) costs to which section 364 (Assessment of costs-costs ordered by court or tribunal) applies, and (c) costs that on assessment are reduced by 15% or more. (2) A costs assessor is, subject to this section, to determine the costs of a costs assessment to which this section applies. (2A) Subject to any order of or the rules of the relevant court or tribunal, the costs assessor may determine by whom and to what extent the costs of an assessment referred to in section 364 (Assessment of costs-costs ordered by court or tribunal) are payable and include the determination in the certificate issued under this section in relation to the assessment. (3) The costs of a costs assessment to which this section applies are payable: (a) for a costs assessment in relation to costs to which section 317 (Effect of failure to disclose) applies-by the law practice that provided the legal services concerned, or (b) for a costs assessment in relation to costs to which section 364 (Assessment of costs-costs ordered by court or tribunal) applies-by such persons, and to such extent, as may be determined by the costs assessor, or (c) for a costs assessment in relation to costs that on assessment are reduced by 15% or more-by the law practice that provided the legal services concerned or, if the costs assessor so determines, by such persons, and to such extent, as may be determined by the costs assessor. ... (7) The certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money, and with no further action, taken to be a judgment of that court for the amount of unpaid costs. 78The respondent submitted that subs (3)(c) applied only to a solicitor/client bill. The construction which would so limit the operation of that provision turned primarily on two considerations. First, the structure of subs (3) deals with three discrete cases. Paragraph (a) applies only to an assessment where there has been a failure to disclose costs in advance, which assessment is necessary before the law practice can maintain proceedings against its client. Paragraph (b) applies to an assessment of costs pursuant to an order of a court or tribunal and gives a broad discretion to the assessor as to the party responsible for paying the costs. Paragraph (c) is silent as to which assessments it applies, but the fact that it requires the law practice that provided the legal services to pay costs, in the event of a reduction in excess of 15%, indicates that it is dealing with an assessment as between the law practice and its client. 79Secondly, the antecedents to paragraph (c) applied to solicitor/client taxations only. The history of these provisions, known as the "one-sixth rule", is set out by Jordan CJ in In Re Dibbs and Farrell (1941) 41 SR(NSW) 249. As the Chief Justice noted at 252, the first relevant legislative provision in the UK dated from 1729 and applied, not to party and party taxations, but to the prevention of extortionate charges by solicitors of their clients. Such provisions continued through a long statutory chain and were included in the Legal Practitioners Act 1898 (NSW), s 28. Section 28 appeared in Pt 5 of the 1898 Act, dealing with "Bills of costs". Section 22 provided that, "[u]pon the application of the party chargeable with a bill ..., the bill shall be taxed in accordance with the rules of the Court". Section 28 provided that it applied to the costs of proceedings under s 22 and required that "[w]here the bill when taxed is less by a sixth part than the bill delivered ..., the costs shall, unless the Court otherwise orders, be paid by the solicitor": s 28(3). 80That provision was not carried across into the Legal Practitioners Act 1987 (NSW), nor into the Legal Profession Act 2004 (NSW), as enacted. 81The Legal Profession Act was intended to enact draft model provisions that had been provided by Parliamentary Counsel's Committee to the Standing Committee of Attorneys General in mid-2004. The draft model provisions contained the new equivalent of the "one-sixth rule", namely the 15% reduction standard: cl 1043 in Pt 10, Div 7, "Costs review". This was described as a "core provision not requiring textual uniformity", although each jurisdiction was expected to have a counterpart. It is not known why cl 1043 was not included in the Legal Profession Act. The model provision came in a part dealing with solicitor/client costs assessments. The amendments which introduced paragraphs (1)(c) and (3)(c) to s 369 commenced two years later, pursuant to the Legal Profession Further Amendment Act 2006 (NSW). (There appears not to be any relevant explanatory material accompanying the amendments.) 82Thus, although s 369(3)(c) is silent as to the scope of its operation, there is both internal and historical support for the view that it applies to solicitor and client assessments only. However, two further considerations relied on by the District Court are not persuasive. In Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd [2011] NSWDC 55 Johnstone DCJ identified two further reasons at [70]: "Thirdly, subsection (c) is mandatory, in the sense that if the costs of the law practice are reduced by 15% or more, the costs of the costs assessment are to be paid by the law practice. This is inconsistent with the general discretion conferred on the costs assessor in respect of an assessment of party/party costs to award such costs against such persons, and to such extent as may be determined. Finally, the use of the word 'reduced' in subsection (c) confirms that it relates only to practitioner/client costs. Under s 367 of the Act the costs assessor is required to determine an application relating to a bill, that is a practitioner/client bill, by confirming the bill or by substituting a lesser amount. That may, and usually will, involve a reduction. On the other hand, there is no element of reduction in the assessment of party/party costs. Under s 367A of the Act the costs assessor is required to make a determination of the fair and reasonable amount of costs payable as a result of an order made by a court or tribunal." 83As to the reading of the provision as "mandatory", the reasoning appears to be based on a misreading of paragraph (c). The paragraph contains alternative courses, the second being in the same expansive and discretionary terms as the allocation permitted by paragraph (b). 84The next reason refers to the use of the word "reduced" in paragraph (c). The words has a straightforward and readily understood common meaning. If the costs assessor, in the language adopted by the District Court judge, "substitutes a lesser amount", that will as the reasons concede, usually involve "a reduction": it is difficult to comprehend any other meaning. Why that should not apply equally to an assessment of costs claimed and allowed on a party/party basis is not explained by identifying the standard to be applied. The unarticulated assumption appears to be that the party claiming payment of its costs will not claim a specific amount. That is unrealistic: it would effectively deprive the respondent to the assessment of any opportunity to object sensibly and would also render it impossible for the respondent to agree to an amount in advance of the assessment. Neither factor conforms to the structure and purpose of the Legal Profession Act, Pt 3.2. 85The principal consideration supporting a different conclusion is that, in contrast to the pre-existing paragraphs, paragraph (c) does not purport to limit its operation to any particular kind of assessment. If it had been intended to apply with respect to assessments under s 364, it would have been a simple matter to say that. Further, the overall purpose of Pt 3.2 of the Legal Profession Act is to regulate the billing of costs for legal services and to provide a mechanism for the assessment of legal costs: s 301. The proper assumption is that whenever costs are to be assessed the bill will be prepared by the law practice that provided the legal services. Accordingly, the responsibility is placed upon the law practice not to make excessive claims. In particular cases or circumstances, that assumption may prove false, in which case there is ample power in the costs assessor to order that costs be paid by some other person who was responsible for preparing or directing the preparation of a bill which exceeded the amount assessed by the specified margin. 86The existence of the broad discretion available to the costs assessor is a matter of some significance in this regard. Indeed, even if the bill were reduced by the specified amount, it would be open to the costs assessor to order some or all of the costs of the assessment to be borne by the party responsible for paying the bill, possibly on the basis that many objections had proved fruitless and time consuming. 87On balance, the first two considerations, favouring the conclusion that s 369(3)(c) is directed to solicitor/client assessments, not assessments of costs awarded by court order, should be accepted. Nevertheless, the standard adopted is not irrelevant in the latter situation. The broad principle as to the award of costs is that they "follow the event": UCPR, r 42.1. To apply that rule to a costs assessment requires a standard to identify success or failure by an objector. The 15% reduction is a standard which may readily be applied. A costs assessment will only result from the refusal of the person liable to accept the amount of the bill rendered. If the assessment results in a significant reduction in the bill (as to which, 15% provides a standard) there is good reason to consider whether the costs should be borne in part or in whole by the party raising the objections. 88It is not clear that Ms Dulhunty adopted such an approach; if she did not, the review panel, in merely confirming her approach, also failed to do so. However, this is a somewhat more nuanced argument than that relied upon by the applicants and in the circumstances that the matter will need to be returned for reconsideration, it is not necessary to reach a firm conclusion on this ground.

Orders 91The conclusion that, in relation to orders made by different courts in separate proceedings, the scheme of Pt 3.2, Div 11 of the Legal Profession Act does not permit the issue of a global certificate of determination of costs, incorporating liabilities under the several and separate orders, the certificate issued by the review panel should have been set aside by the District Court. At least that is so in circumstances where objection to an application in that form was taken and where liability for such costs did not fall on the same parties with respect to each order. The different view upheld by the District Court involved an error of law in construing the Legal Profession Act, which appeared from the judge's reasons, forming part of its record. 92That conclusion exposed for consideration the certificates issued by the initial costs assessor, Ms Dulhunty. They are subject to the same complaint and should also have been set aside. 93The judgment in the District Court which failed correctly to identify the relevant errors of law must be set aside. The applicants should, presumably, have their costs of the proceedings in the District Court, although there is an issue as to whether this Court can make that order. The applicants should have their costs in this Court. 94There remains a further question as to the appropriate orders with respect to the costs of the failed costs assessments. Whether those matters can be dealt with by the District Court or will need to be remitted to the Manager, Costs Assessment, is a matter which can be determined on remitter to the District Court. 95The final question is whether this Court can set aside the certificates issued by the review panel and Ms Dulhunty, or whether the matter must be remitted to the District Court for it to take that step. Where the conclusion follows as a matter of law, and no alternative order is available, the just, quick and cheap resolution of the real issues would appear to require that orders be made by this Court: Civil Procedure Act, s 56(1). On one view, it would be open to this Court, having set aside the judgment of the District Court, to grant declaratory relief with respect to the invalidity of the certificates. Such a power derives from the conferral of "all jurisdiction which may be necessary for the administration of justice" in the State, and the obligation to grant "all such remedies as any party may appear to be entitled to in respect of any legal or equitable claim brought forward in the proceedings so that, as far as possible, all matters in controversy between the parties may be completely and finally determined, and all multiplicity of legal proceedings concerning any of those matters avoided": Supreme Court Act, ss 23 and 63. (See also s 75 with respect to the grant of declaratory relief.) 96Generally, statutory provisions conferring jurisdiction and powers on a court will not be read down by reference to implied limitations: The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421. 97The only basis for implying a relevant limitation on the powers of this Court to make final orders is to be found in the limits of the supervisory jurisdiction invoked by the applicants. Section 69 is an unlikely source of a restriction on power. Its operation is limited to the jurisdiction the Court formerly had to grant relief by way of prerogative writ: that jurisdiction was continued, but the Court is required to grant relief by way of judgment or order "under this Act and the rules", and not by issue of a writ: s 69(1). To the extent that a writ was directed to an inferior court, it could set aside the decision of the court and order that that court take such steps as should be taken to deal with the matter, according to law. The court exercising supervisory jurisdiction did not, thereby, obtain the power to exercise a discretionary power vested in the inferior court or tribunal. Hence, in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [110], the High Court noted, with respect to the exercise of jurisdiction over the Industrial Court, that this Court had power to quash the orders made by the Industrial Court, including costs orders, but "did not have power to make any order in place of the orders that had been quashed." 98That remark appears to have been directed specifically to the question of costs, as to which the High Court held that it had no more power than this Court: at [111]. 99In Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421, the High Court held that, in exercising its powers under s 32 of the Judiciary Act 1903 (Cth) to grant remedies apt to "completely and finally" determine the matters in controversy, the court could make an order as to the costs in the court below where "there is no reason why costs should not have followed the event": at [4]-[5] (French CJ, Gummow, Crennan, Kiefel and Bell JJ). 100In dissent in Edwards v Santos, Hayne J noted that in Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175 the Court had stated that certiorari "is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior courts thinks should have been made" (the emphasis being added by Hayne J, at [18]). Accepting that proposition, the language is apt to address the exercise of a discretionary power rather than the making of an order as to which, in accordance with law, there is no alternative. Further, although the South Australian Supreme Court, the powers of which were in issue in Craig, had rules similar in effect to s 69, it was said to be "common ground" that the statutory jurisdiction conformed to the Court's previous inherent jurisdiction to order the issue of the prerogative writ of certiorari: at 174. 101Both Kirk and Edwards were concerned with orders as to costs. In each case, the setting aside of the decision below constituted final substantive relief. In the present case, setting aside the judgment of the District Court will not give effect to the legal conclusion upon which this judgment is based, namely that the certificates of assessment were invalid. Without suggesting that this Court has power to make orders in substitution for those made in the District Court otherwise than in circumstances where the orders to be made are necessary in law, that qualification is satisfied in the present case. Accordingly, this Court can and therefore should make the orders which should have been made in the District Court, in exercise of the statutory powers referred to above. 102The Court should make the following orders: (A) In matter 2013/54356: (1) Dismiss the summons seeking leave to appeal. (2) Order the applicant to pay the respondent's costs. (B) In matter 2013/149830 (1) Set aside the orders made in the District Court on 15 February 2013 dismissing the appeal from the determination of the Review Panel dated 6 January 2012. (2) In place of the orders made in the District Court: (a) set aside the certificates as to determination of costs issued by the Review Panel on 6 January 2012; (b) set aside the certificates as to determination of costs issued by Ms Dulhunty, Costs Assessor, on 11 January 2011. (3) Remit the matter to the District Court to make any consequential orders with respect to the appeal to that Court and to take such steps as it considers necessary with respect to the costs of the assessments undertaken by Ms Dulhunty and the Review Panel. (4) Order the respondent to pay the applicants' costs in this Court. 103BARRETT JA: This is an application for judicial review in respect of a decision of the District Court (Judge P Taylor SC) which, on 15 February 2013, dismissed an appeal brought under s 382 of the Legal Profession Act 2004 (NSW) against a decision of a review panel affirming a determination of party/party costs by a costs assessor.