Wende v Horwath

Legislative scheme

1. The costs assessment process, including the review by the review panel and the appeal to the District Court, was conducted under the 2004 Act. That Act was repealed on 1 July 2015 and the Legal Profession Uniform Law Application Act 2014 (NSW) commenced on the same date. However, it was common ground that the Uniform Law did not apply in this case.
2. Part 3.2, Div 11 of the 2004 Act made provision for costs assessment. Subdivision 5 provided for a review of a costs assessor's determination by a review panel. Subdivision 6 provided for appeals against decisions of a costs assessor to the District Court. Pursuant to s 382, subdiv 6 applied to determinations of a review panel under subdiv 5 as if references to a costs assessor in subdiv 6 were references to the review panel. The effect of s 382 was that an appeal lay from the decision of a review panel to the District Court pursuant to s 384.
3. Section 384, which was the provision under which Taylor DCJ proceeded when the matter was remitted pursuant to the Court's orders made on 2 June 2014, provided: "384 Appeal against decision of costs assessor as to matter of law (1) A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the District Court, appeal to the Court against the decision. (2) After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application. (3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given."

Exercise of the Court's supervisory jurisdiction

1. It is useful at the outset to keep two matters at the forefront of this Court's consideration. First, as the proceedings before the Court were brought pursuant to the Supreme Court Act 1970 (NSW), s 69 by way of judicial review, the Court is concerned with error of law on the face of the record and/or jurisdictional error. The record, for the purpose of such an application includes the reasons of the inferior court for its ultimate determination: s 69(4).
2. Secondly, the orders the Court may make in the exercise of its jurisdiction under s 69 are not unlimited. Section 69 continues the Supreme Court's former jurisdiction to issue prerogative writs. Subsection (1)(e) provides the Supreme Court the power, by way of judgment or order, to grant the relief that would have formerly been available in that jurisdiction.
3. A superior court's supervisory jurisdiction, not being an appellate process, does not permit the superior court to substitute its own orders for those that it considers the inferior court ought to have made: Craig v South Australia [1995] HCA 58; 184 CLR 163. Rather, where the writ ran, the appropriate order was the quashing of the impugned order or decision upon one or more of a number of established distinct grounds, including error of law on the face of the record. The effect of the decision in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; 239 CLR 531 was that the same position pertained when this Court was exercising its s 69 jurisdiction: see at [110].
4. The High Court has taken a different position in relation to its own jurisdiction on the basis that it was empowered to make the order for costs that should have been made by the Court whose decision was being judicially reviewed pursuant to the Judiciary Act 1903 (Cth), s 32: Edwards v Santos Ltd [2011] HCA 8; 242 CLR 421. In this Court, a question has been raised, but not decided, as to whether this Court on a s 69 application, could make substantive orders, including in respect of costs where only one result was open as a matter of law: see SAS Trustee Corporation v Woollard [2014] NSWCA 75 per Basten JA, at [108]; Wang v Farkas (No 3) [2014] NSWCA 111 per Basten JA at [10].
5. It should be noted that in the 2014 Judicial Review Decision where Basten JA determined that the Court could and should itself make orders where such orders were necessary in law, I agreed with the orders proposed by his Honour. I should state that on reflection, not only does that question remain open, I consider the better view is that this Court does not have power to make substantive orders on an application brought pursuant to s 69. There is no exact legislative equivalent to the Judiciary Act, s 32 that governs the relief this Court may give. There must be a question whether the Supreme Court Act, s 23, which provides that the Court "shall have all jurisdiction necessary for the administration of justice in New South Wales", confers power on the Court to make orders of a kind which hitherto had not been within its power to make: see Craig v South Australia.
6. However, as the orders made in the 2014 Judicial Review Decision have not been challenged as being beyond power, they constitute the regular orders of the Court.

Submissions

1. The applicants, by way of preliminary submission, pointed out that s 384 contained two distinct parts or steps. First, a party could appeal to the District Court as to a matter of law from a decision of a costs assessor, or, by virtue of s 382, from a decision of a review panel: subs (1). Secondly, the appeal mechanism having been engaged, the District Court's power was confined to affirming the decision of the costs assessor or, if it did not affirm the decision, to take one or other of the steps specified in subs (2). Subsection (3) was a procedural provision permitting additional evidence if there was to be a re-determination of an application. However, on the applicants' construction of the provision, the power to adduce fresh or additional evidence only arose on a remittal to a costs assessor.
2. The applicants contended that the primary judge erred, at [23], in his construction of s 384(2), where his Honour stated: "In my view, the opening words of s 384(2) should be read as meaning 'After the question the subject of the appeal is decided' to take account of the possibility that the decision of the District Court might ultimately be made by the Court of Appeal in the manner adopted by Basten JA at [95] and [101]. Thus, the powers under s 384(2) are enlivened."
3. The applicants contended that, in so construing s 384(2), his Honour failed to have regard to the text of the statutory provision, before having regard to the purpose of the statute. In effect, they submitted, his Honour had "reversed the process of construction and worked backwards": see Certain Lloyd's Underwriters v Cross [2012] HCA 56; 248 CLR 378, at [23]-[25]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27.
4. In Alcan (NT) Alumina, the plurality, at [51], observed in relation to a revenue statute, that fixing upon the general legislative purpose of raising revenue carried the danger of failing to give proper attention to the text of the particular provision in question. The applicants contended that his Honour had committed this error.
5. The applicants also contended that s 384(2), properly construed, required there to be an extant decision of a costs assessor or review panel in order for the District Court to exercise one or other of the powers conferred by the subsection. This argument involved consideration of the effect of the issue of a certificate of costs assessment and, in turn, of the effect of the Court of Appeal's orders which set aside the costs certificates that had been issued.
6. The applicants contended that the effect of issuing a certificate of costs assessment was to cause the determination of costs assessment to merge in the certificate. Thus, on the applicants' contention, once a certificate of costs assessment was set aside, the determination of the costs assessor or review panel ceased to have any effect. The purport of this submission was that when this Court set aside the certificates, the underlying determinations were thereby set at large.
7. The applicants contended that, as was made apparent by Basten JA at [101] of the 2014 Judicial Review Decision, the orders made by the Court on that occasion were intended to be final. The consequence of this, according to the applicants, was that the costs certificate issued in respect of the costs assessment and the costs certificate issued in respect of the costs of the costs assessment having been set aside, nothing remained to be done by the District Court. Rather, the costs assessment process provided for by Pt 3.2, Div 11 of the 2004 Act was required to be recommenced.
8. It followed, on this argument, that the effect of the Court of Appeal setting aside the certificates was that there was no extant determination of costs assessment and, therefore, on the remittal to the District Court, there was nothing to engage s 384. The only outstanding matter for the District Court to determine was the costs of the proceedings before it, as those costs could not be the subject of an order by the Court of Appeal exercising its supervisory jurisdiction: see Kirk v Industrial Relations Commission v WorkCover Authority of New South Wales (Inspector Childs).
9. The result, according to the applicants, was that they still had not had a determination of the application for a costs assessment by a costs assessor to which they were entitled pursuant to s 367. The applicants contended that this followed from my reasons at [12] and Basten JA's reasons at [95]-[101] of the Court's 2014 decision and, in particular, [95] and [101].
10. At [12], I said: "The 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."
11. At [95], Basten JA said: "The 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.)"
12. At [101], his Honour stated: "Both 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." (emphasis added) (The applicants placed particular reliance on the emphasised sentence in this paragraph.)
13. The applicants also contended that if s 384 was engaged, so that there was a discretion as to whether to proceed under s 384(2)(a) or s 384(2)(b), the exercise of the primary judge's discretion had miscarried.
14. The applicants' submissions on s 384, in effect, raised four issues: first, the effect of the issue of the costs certificates, with respect to the underlying determinations; secondly, the effect of the setting aside of the costs certificates in the 2014 Judicial Review Decision; thirdly, whether his Honour was correct in his interpretation of the phrase "after deciding the question the subject of the appeal" in s 384(2); and fourthly, the nature of the powers that were available to his Honour pursuant to s 384(2)(a).

Effect of the issue of the costs certificates

1. The applicants' submission, that the determination made by the costs assessor, as varied by the review panel, "merged in the certificate", was presumably a reference to the legal principle that a cause of action merges in a judgment so as to create a res judicata: see Blair v Curran [1939] HCA 23; 62 CLR 464 at 532; Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28. In my opinion, this submission involves a misapprehension both of the principle of res judicata and the doctrine of merger and of the effect of the issue of a costs certificate.
2. It needs to be observed at the outset that the principle of res judicata relates to the exercise of judicial power. The effect of a judgment or order made or given by a judicial officer is that the rights asserted by a party in a cause cease to have effect and merge in the final judgment: see Tomlinson v Ramsey Food Processing at [20]. A costs assessor is not a judicial officer. Nor is there any proceeding or judicial process involved in a costs assessment unless and until there is an appeal to the District Court. Rather, so far as is relevant to this matter, the costs assessment process is a non-judicial process whereby there is a determination of the fair and reasonable costs of a proceeding in a court, or an aspect of a proceeding in a court, in respect of which a costs order has been made. At the costs assessment or review stage, therefore, there was no 'merger', as that doctrine properly operates. That then raises the question as to the effect accorded by statute to the issue of a costs certificate.
3. Pursuant to s 367 of the 2004 Act, a costs assessor was required to determine an application for costs assessment. Of its own, that determination created no enforceable right. Section 368 directed the costs assessor to issue a costs certificate. The certificate was a statement of the costs assessor's determination, relevantly in this case, of the fair and reasonable amount of the party/party costs of the proceedings subject of the costs order. The issue of the certificate was thus a statutory act, which again, of itself is of no force and effect beyond being a statement of the determination.
4. Operative effect was given to the certificate, and thus to the underlying determination by s 368(5), which provided: "368 Certificate as to determination … (5) In the case of an amount of costs that has not been paid, 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, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed."
5. The statutory effect of registration of the certificate was recognised in Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 182 at [8] per Giles JA. Handley AJA, at [42], considered that entry of judgment on a filed certificate was a ministerial act. In Calandra v Murden [2015] NSWCA 231, at [5], this Court, in considering the process of costs assessment for which the 2004 Act provided, explained the operation of s 368(5) in the following terms: "Section 368(5) is a deeming provision. Where its premise is satisfied and a certificate assessing costs is filed there is deemed 'with no further action' to be a judgment of the court whose jurisdiction has been invoked: see Frumar v The Owners of Strata Plan 36957 [2010] NSWCA 172 at [8] (per Giles JA), [42] (per Handley AJA, Macfarlan JA agreeing). Section 133 of the Civil Procedure Act and provisions of the UCPR give effect to that deeming. Subsection 133(1) provides that a judgment of the court, here the Local Court, may not be enforced until it has been entered in accordance with the UCPR. As there used, 'judgment' includes a determination of a costs assessor as an 'adjudication or award of a person having authority to make an adjudication or award' (s 133(2)). UCPR, r 36.10 provides that the costs assessor's certificate may be filed in the proceedings to which it relates, or in 'fresh proceedings', whether in the same or another court. The approved form, Form 45, requires the filing party to provide details of any payments made or credits accrued since the relevant assessment and to state the total amount 'to be enforced as at date of filing'. UCPR, r 36.11, which makes clear by r 36.11(3) that a judgment includes a determination that has been filed in the court, provides that a judgment is taken to have been entered when it is recorded in the court's computerised court record system."
6. As is apparent from this passage, nothing 'merged' in the costs certificate. The certificate was a statement of the fair and reasonable costs ordered to be paid by one party to another. It did not, of itself, determine the amount that one party presently owed to another pursuant to a costs order. At the time of filing, the enforcing party was required, in accordance with District Court Form 45, to state any amounts paid or credits accrued in respect of such costs. Upon filing, there was a deemed judgment for the amount that was thereby due. That may or may not have been the amount of the determination specified in the costs certificate. It was only upon the entry of judgment, following the filing of the certificate and Form 45, that there could be said to be a merger of the amount of costs that was owing pursuant to this process in the deemed judgment of the court.
7. It follows, in my opinion, that even after this Court ordered that the certificates of costs assessment be set aside, there remained extant the determination of the review panel. That then raised the question of the effect of this Court's orders in the 2014 Judicial Review Decision.

The 2014 Judicial Review Decision and the effect of the setting aside of the costs certificates

1. This Court, in the 2014 Judicial Review Decision, by majority, held that the costs determination undertaken by the costs assessor was impermissible under the statute. According to the view I took at [11], although it was permissible for a single application to be made for multiple costs orders, the legislation did not permit a global costs assessment as had been undertaken by the costs assessor. Basten JA, at [43] ff, considered that a separate application was required in respect of each order for costs that was subject of the assessment. His Honour also considered, at [47], that at least in the circumstances of this case, a global certificate was legally inappropriate. Barrett JA held that the certificates were validly issued as the assessor's reasons disclosed the amounts assessed in respect of each costs order: see [201].
2. Further, as I have indicated, this Court, in the 2014 Judicial Review Decision, ordered that the costs certificate be set aside as invalid. Had that order not been made, this Court's reasons would have required the District Court to do so. Once the costs certificates were set aside, there was no statement of the costs determination that had been made by the costs assessor and no mechanism upon which the provisions of the legislation to which I have referred could operate. There was thus no means by which the first respondent could enforce the orders for costs that had been made in its favour in the proceedings in the Local, District and Supreme Courts.

Was s 384(2) enlivened "after the question the subject of the appeal was decided"?

1. Section 384(1) made provision for any appeal to the District Court "as to a matter of law arising in the proceedings". Upon deciding the question subject of the appeal, unless the Court affirmed the costs assessor's decision, the District Court, pursuant to s 384(2)(a) "may make such determination in relation to the application as … should have been made by the costs assessor". The effect of the majority reasons in the 2014 Judicial Review Decision was that the costs assessor's determination was not made according to law. Upon remittal, the District Court was required to determine the applicants' appeal pursuant to s 384 of the 2004 Act, in accordance with this Court's determination.
2. As noted above, the applicants contended that the powers conferred by s 384(2) were only enlivened after the District Court itself decided the question the subject of appeal from the costs assessor, and were therefore not available in a case such as this where there had been a remittal back to the District Court following judicial review. In support of that contention, the applicants submitted that statutory construction proceeded by way of a strict two-stage process, in which the purpose of a provision may not be considered unless doubt remained after the consideration of the meaning of the text of the provision itself.
3. That submission does not accurately reflect the principles of statutory construction as stated by the High Court. See Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue at [47]; Certain Lloyd's Underwriters v Cross [2012] HCA 56 at [23]-[25] per French CJ and Hayne J. The principles stated in those authorities were neatly encapsulated by Bathurst CJ in Rail Corporation New South Wales v Brown [2012] NSWCA 296 at [39], as follows: "… the process of construction begins with the construction of the ordinary and grammatical meaning of the words in question, having regard to their context and legislative purpose …"
4. Nor does the applicants' construction give effect to the process that occurs upon remittal. The effect of this Court setting aside the orders originally made by the District Court was that there remained for determination the applicant's appeal to that Court. That appeal had to be determined in accordance with the law as this Court held it to be. There was no error by the primary judge in determining, at [23], that the powers of the District Court under s 384 were enlivened "after the question the subject of the appeal is decided". This Court determined that the costs assessment process had proceeded before the assessor and the review panel in a way that was impermissible. The consequence of that determination was that the District Court, as a matter of law, could not affirm the determination of the costs assessor. That being so, the powers conferred on the Court by s 384(2) fell to be exercised.

Powers available under s 384(2)(a)

1. The applicants raised a further question as to whether, having determined to proceed under s 384(2)(a), the primary judge had the power to make an order in a money sum or whether, having determined the fair and reasonable costs in respect of each proceeding the subject of a costs order, his Honour was required to issue a costs certificate, or alternatively was required to remit the matter to the costs assessor to issue the costs certificates. For the purposes of dealing with this question, it is convenient to leave the assessment of the costs of the costs assessment to one side.
2. The District Court, as an inferior court of record, has such jurisdiction, and within jurisdiction may exercise such powers as are conferred on it by statute. In this case, the District Court had the jurisdiction conferred on it by s 384(1) and, in the exercise of that jurisdiction, had the powers given to it under s 384(2). The District Court also had, by necessary implication, everything necessary for the exercise of its powers. In Grassby v The Queen [1989] HCA 45; 168 CLR 1 at 16-17 Dawson J stated, in respect of a magistrate's court: "… It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise … Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out [Reg. v. Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1, at p 7], fundamental."
3. In Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435, Gaudron, Gummow and Callinan JJ stated, at 452: "The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in The Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness'." (citations omitted)
4. The test of necessity has been expressed variously in different authorities but to the same effect. Thus, in Connelly v Director of Public Prosecutions [1964] 2 AC 1254 Lord Morris of Borth-y-Gest stated, at 1301: "There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within such jurisdiction."
5. However, as Spigelman CJ observed in John Fairfax Publications Pty Ltd v Ryde Local Court [2005] NSWCA 101; 62 NSWLR 512 at [45]: "… what is reasonably necessary cannot be stretched to encompass what is merely desirable or useful. It remains a test of necessity."
6. Spigelman CJ further observed, at [46], that in Pelechowski, the High Court applied the test of reasonable necessity to give effect to the express powers of the District Court.
7. As described above, the legislative mechanism for the enforcement of the costs assessor's determination was by way of a deemed judgment upon the filing of a certificate of costs assessment in the Registry of the Court with jurisdiction to order payment in the sum assessed. The amount of the costs liability so enforceable is the assessment carried out by a non-judicial officer of the costs reasonably incurred, with credit given for amounts already paid. Enforcement action can then be taken in the usual course as on a judgment debt: see the Civil Procedure Act 2005 (NSW), s 133 and Form 45. Without such legislative mechanism, it would be necessary for a party who had had costs assessed to bring proceedings for debt in a court of competent jurisdiction so as to obtain a judgment which would then be capable of enforcement.
8. It is at this point necessary to return to the jurisdiction that was conferred on the District Court by s 384. That section provided for an appeal to the District Court on a question of law: s 384(1).
9. Section 384(2) specifies the power the Court may exercise when it does not affirm the decision of the costs assessor. The power so conferred is either to make such determination as the Court considered the costs assessor should have made: subs (2)(a); or to remit to the costs assessor "to re-determine the application": subs (2)(b). For the reasons I will explain, the language of subs (2)(b) is of particular importance.
10. Section 384(3) then provides that on a "re-determination of an application" fresh or additional evidence may be received. A "re-determination of an application" is the process that occurs when the District Court exercised the power under subs (2)(b). Section 384(3) had no application to a determination made under subs (2)(a). That then raises the question as to the extent of the power of the court when it exercised the power under that provision.
11. There is a long line of authority that where an appeal is limited to a question of law, the appellate body is limited to a determination of the question of law and is not permitted to engage in a fact finding process or to otherwise engage in a merits review of the decision of the lower court or tribunal.
12. Minister Administering the Crown Lands Act v Bathurst Local Aboriginal Land Council [2009] NSWCA 138; 166 LGERA 379 involved a claim by an Aboriginal Land Council in which the relevant dispute related to whether the land was lawfully used and occupied by the Crown at the time of the claim. An appeal was brought by the Minister under s 57 of the Land and Environment Court Act 1979 (NSW), which provides, relevantly: "(1) A party to proceedings in Class 1, 2, 3 or 8 of the Court's jurisdiction may appeal to the Supreme Court against an order or decision (including an interlocutory order or decision) of the Court on a question of law. (2) On the hearing of an appeal under subsection (1), the Supreme Court shall: (a) remit the matter to the Court for determination by the Court in accordance with the decision of the Supreme Court, or (b) make such other order in relation to the appeal as seems fit."
13. At [63], having found that the land was lawfully used and occupied, Ipp JA held: "In coming to this conclusion I am not making any factual findings. The exercise is akin to that described by Spigelman CJ in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 at [89] 'What is involved is the formulation of a judgment on the basis of agreed facts'. The only difference is that this case modifies the formulation of a judgment on the basis of facts found by the primary judge and facts that are not in dispute."
14. At [195], Basten JA held: "It is a matter of some significance in the present case that the Minister's right, and the jurisdiction of this Court, require the identification of an order or decision of the L&E Court on a question of law. As has been explained in respect of both this provision and others in similar form: (1) identification of a decision on a question of law in the Court below is not merely a precondition to the right of appeal, but identifies the subject matter of the appeal; (2) to obtain the intervention of this Court, the question of law must have been decided erroneously; (3) the power of this Court is limited to the correction of the legal error and this Court will not be able to make final orders disposing of the proceedings unless, on the findings made by the L&E Court and unaffected by legal error, only one conclusion is open, and (4) this Court may exercise a discretionary power with respect to costs, based on the primary findings of fact made in the L&E Court. These principles may be derived from judgments of this Court in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council …; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187 and Director-General, Department of Ageing, Disability and Home Care v Lambert [2009] NSWCA 102 at [57]-[70], and cases referred to therein."
15. Basten JA further noted: "208 If the Court identifies a material error of law, it will be necessary for the matter to be remitted to the L&E Court for further hearing. It is not open to this Court to draw necessary inferences, any more than it is open to the Court to make primary findings of fact. That well-established principle is not contradicted by Thaina Town, a case in respect of which the Court held that it was able to exercise a discretionary power with respect to costs on the basis of facts fully found. 209 As discussed in B & L Linings Pty Ltd v Chief Commissioner of State Revenue … at [132], principles of judicial review would permit the Court to remit the matter with a direction that the Tribunal exercise its power in a particular way where all relevant factual preconditions have been satisfied: see, eg, Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19; 201 CLR 293 at [39]-[42]. Whether it is open to this Court to determine, on an appeal limited to a question of law, matters not determined in the Court below is a question which need not be answered on the view I have taken below. It raises a question, not decided in B & L Linings, as to the extent to which the approach adopted by this Court in Thaina Town (On Goulburn) Pty Ltd v Sydney City Council …, can properly be taken beyond the exercise of a discretion as to costs."
16. In Edyp v Brazbuild Pty Ltd [2011] NSWCA 218, a case concerning an appeal from the Consumer Trader and Tenancy Tribunal, Allsop P, after holding that the primary judge's findings were sufficient to grant the orders made, commented as follows: "52 The primary judge … added the following paragraph: 'I am persuaded in these proceedings it is appropriate to make such an Order rather than remitting the matter back to the Tribunal for redetermination. I find that the first and second defendants were parties to the contract. They are named as two of the three owners in the signed building contract. As I have found, as parties to the contract, they were jointly and severally liable with the third defendant. In any event, counsel for the defendants did not suggest in his submissions in this Court that any different considerations would apply to the assessment of damages as against those two defendants.' 53 If these findings were to be seen to be necessary before any orders were made, the primary judge did not have authority to make them to the extent that they depended on additional findings of fact. It was not the primary judge's task to make findings about who were the parties to the contract, unless such a conclusion could be reached solely by reference to a matter of law, for example, by construing a document or by concluding, as she did, that it had been effectively an agreed position before the Tribunal. The decisions in The Craftsmen Restoration & Renovations Pty Ltd v Boland [2011] NSWCA 147 and B & L Linings Pty Ltd v Chief Commissioner of State Revenue … are contrary to provisions such as s 67(3) being construed to contain authorisation to find facts once the legal error is revealed, for reasons of perceived convenience in making orders under s 67(3)."
17. See also Murlan Consulting Pty Ltd v Ku-Ring-Gai Municipal Council [2009] NSWCA 300; 170 LGERA 162 at [70] per Basten JA (Macfarlan JA agreeing); Avery v Registrar of Births, Deaths and Marriages; Avery v State of New South Wales (Attorney General's Department) [2010] NSWCA 72; 79 NSWLR 354 at [23] per Campbell JA (Tobias JA agreeing); Building Insurers' Guarantee Corporation v The Owners Strata Plan 60848 [2012] NSWCA 375; Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; 85 NSWLR 86; Haddad v Chief Commissioner of State Revenue [2014] NSWCA 23; 92 ATR 274; Allianz Australia Insurance Ltd v BlueScope Steel Ltd [2014] NSWCA 276; 87 NSWLR 332.
18. In my opinion, not only was the entitlement to adduce fresh or additional evidence confined to the case where a matter was remitted to the costs assessor under s 384(2)(b), the law is plain that on an appeal on a question of law, there is no power for the appellate body to make findings of fact, let alone to itself embark upon a hearing of the subject matter of the dispute as occurred here. There is, therefore, no basis for the implication of a power for the appellate court to exercise a re-hearing function as it did in this case. Indeed for the court to have done so was inconsistent with the statute itself and with the authorities to which I have referred. It follows that his Honour's determination of the costs must be set aside. This will require the setting aside of order 4 made by his Honour on 23 October 2014. Orders 1 and 2 made by his Honour on 1 April 2015 must also be set aside.

Costs of the costs assessment (order 6 made 23 October 2014)

1. The primary judge, by order 6 made on 23 October 2014, ordered that the costs of the costs assessment, which had been determined by the costs assessor in the sum of $13,128.76 and the costs of the review panel in the sum of $5,818, be paid by the applicants.
2. In my opinion, his Honour erred in making this order. Just as it is necessary to give a separate certificate in respect of each costs order that is the subject of a costs assessment, it is also necessary to give a separate certificate in respect of the costs of each separate costs assessment. This in turn requires the separate determination of the costs of the costs assessment in respect of each such assessment, a course which his Honour did not take.
3. There is also a further difficulty in that the costs of the costs assessment were to be paid to the Manager, Costs Assessment: see the 2004 Act, s 369(8). It might be that his Honour implicitly ordered that those costs be paid to the Manager. However, as the Manager was not a party to the proceedings, the power of his Honour to make any such order is doubtful.
4. It follows that, as the determination his Honour made in order 6 of 23 October 2014 was not in accordance with law, it must be set aside.
5. A further question arises in respect of the parties' costs in respect of the costs assessment process. In his judgment of 1 April 2015, the primary judge dealt with those costs, which had been determined by the costs assessor in aggregate, by disaggregating them and adding them to the total costs payable in respect of each set of proceedings. His Honour reasoned as follows: "15 The only other matter of potential dispute, although it was not raised by the plaintiffs, concerns the [first respondent's] cost of assessment in the amount of $8,927.50. This disbursement related to costs pertaining to each of the costs orders and must be divided between them. Although Ms Vallejo [the expert from whom the first respondent led evidence] divided these costs evenly between the three costs orders, I am of the view that an even division is not appropriate. A more appropriate division was to divide these costs approximately in accordance with the number of items of the bill corresponding to each of the three proceedings, namely five‑eighths to the Local Court, one‑quarter to the Supreme Court and one‑eighth to the Court of Appeal. This adjustment results in $2,063.84 being added to the Local Court costs determined by Ms Vallejo, $743.95 being deducted from her Supreme Court costs figure and $1,859.89 being deducted from her Court of Appeal costs. 16 That results in the amount of costs found by the review panel and the assessor in the sum of $175,052.78 being apportioned between the three sets of proceedings as follows: Local Court, $107,719.70; Supreme Court, $39,078.38 and Court of Appeal, $28,254.70."
6. In submissions filed after the hearing, the applicants complained about this process of disaggregation. The applicants contended that: "No provision of the [2004 Act], or of the costs orders made in the relevant proceedings by the Local Court, Supreme Court, and Court of Appeal requires the present applicants to pay the first respondent's costs of the costs assessment process."
7. This submission warrants some brief comments, notwithstanding that I have already determined that the orders with respect to the total amounts of costs payable in each proceeding, which included the parties' costs of the assessment, must be set aside.
8. The first respondent contended that the applicants' submission went beyond the terms of the order by which further submissions were allowed, which related, relevantly, to submissions on the "form of orders made". There is substance to this complaint. Whilst there are occasions when a court will permit additional arguments to be raised after the conclusion of the hearing proper, that is not the usual course: see Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 257-258. This Court has clearly stated its position in this regard: see Wollongong City Council v Legal Business Centre Pty Ltd (No 2) [2012] NSWCA 366 at [32]; Bale v Mills [2011] NSWCA 266; 81 NSWLR 498 at [57], where the Court observed: "The High Court, intermediate courts of appeal and other courts have deprecated in strong terms the filing of material after an appeal without, or outside, any leave given." (citations omitted)
9. I would only add that there is a point of time in all litigation where there must be an end to the issues that can be raised. That point has been passed in this litigation. As the applicants' complaint was raised not only outside the terms of the leave given, but at the heel of what has been a very long hunt, I am of the view that the Court should not entertain this argument. I am reinforced in this view as I am not satisfied of the correctness of the applicants' submission. It should also be noted that the applicants provided no assistance to the Court beyond the bald assertion in their submission recorded above.
10. There is authority that an order for costs includes costs that are incidental to the proceedings, including costs incurred in the preparation of a bill of costs. Thus, in Hobart City Council v Triffett [2001] TASSC 139; 10 TasR 471 Evans J stated, at [5], that it had been long recognised that where legislation conferred a power to award costs, those costs extended to matters incidental to the proceeding. His Honour added, at [8], that it had been accepted without controversy that an order for costs included the costs of subsequent matters such as itemising the costs and proving or taxing the costs. See also Fifteenth Eestin Nominees Pty Ltd v Rosenberg [2009] VSCA 178; 24 VR 155 at [9] where the court referred to the conventional understanding that where a party is ordered to pay the costs of proceedings, the liability for costs extends to costs of and incidental to the proceedings.
11. I would add that the there is a question as to whether such costs should properly be included in a certificate under s 368, or whether they should be assessed under s 369. If the line of authority to which I have referred continues to apply to the statutory costs assessment regime relevant to this matter, I consider the better view is that the parties' costs of the costs assessment should be assessed under Pt 3.2, Div 11 of the 2004 Act and thus must be included in the certificate issued under s 368. In this regard, I agree with the observations of Garling J in Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181 at [84]. It should be noted that the language of s 369 and s 369(10) in particular, is arguably not consistent with this view. However, this is not the occasion for the final determination of this issue, as I have determined that the applicants should not be permitted to raise it and it is in any case moot.

The first District Court costs order (order 2 made 23 October 2014)

1. The primary judge, by order 2 made 23 October 2014, ordered that the applicants pay 80 per cent of the first respondent's costs of the District Court proceedings occurring before the 2014 Judicial Review Decision.
2. The primary judge's reasons for making this order were as follows: "54. In respect to the proceedings previous to the Court of Appeal, but bearing in mind the Court of Appeal's orders and reasons, [the applicants] have failed on all but one of the issues. They have succeeded in having the certificate set aside and having the errors in the underlying determinations identified but the end result is, in substance, that [the applicants] will be obliged to pay the same amount in respect of the costs the subject of the assessment as was found by the Review Panel. In that event, [the first respondent] has been substantially successful and [the applicants] are only entitled to a small reduction in respect of costs. 55. In my view, the issue on which [the applicants] succeeded equates with about 10% of the dispute reflected in the litigation. Deducting 10% of the costs from the costs [the first respondent] would receive in respect of the other 90% of the dispute (issues in which [the first respondent] was successful), leaves a net sum of 80% in favour of [the first respondent]. I am persuaded that [the first respondent] should be awarded 80% of its costs in the District Court prior to the Court of Appeal proceedings."
3. His Honour stood over for further argument and decision the question whether a lump sum costs order should be made in respect of those costs and, if so, their quantum.
4. On 1 April 2015, the primary judge, pursuant to orders 6 and 7 made that day, ordered that the specified gross sum in respect of those two cost orders be the total amount of $64,496.70: see the Civil Procedure Act, s 98(4).
5. His Honour's reasons for making a gross sum costs order were contained in his judgment at [18]-[27]. The applicants do not challenge the exercise of his Honour's discretion in making a gross sum costs order. Rather, the challenge is to the order made on 23 October 2014 that they pay 80 per cent of the first respondent's costs of the District Court proceedings prior to the 2014 Judicial Review Decision.
6. Pursuant to the Civil Procedure Act, s 98, subject relevantly to the rules of court, costs are in the discretion of the court. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 42.1 provides that costs follow the event, "unless it appears to the court that some other order should be made as to the whole or any part of the costs".
7. The essential argument advanced by the applicants on their appeal to the District Court from the review panel's decision was that the assessment process had not been carried out in accordance with law and that the costs certificates that were issued were invalid. Those arguments were substantially upheld by this Court in the 2014 Judicial Review Decision. In my opinion, this represented a substantial, if not total, success for the applicants in the District Court appeal. I therefore consider that the order that the applicants pay 80 per cent of the first respondent's costs constituted error in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499, and order 2 made on 23 October 2014 ought to be set aside.

The second and third District Court costs orders (order 1 made 23 October 2014 and order 5 made 1 April 2015)

1. The primary judge, at [54], held that the first respondent was entitled to its costs in the District Court since the time of the 2014 Judicial Review Decision on the basis that it had succeeded on all the issues argued before him. Order 1 made 23 October 2014 gave effect to that finding. His Honour also ordered that the applicants pay the first respondent's costs of the proceedings in the District Court between 23 October 2014 and 1 April 2015, because the first respondent had been successful in the proceedings that had been remitted to him by this Court in the 2014 Judicial Review Decision.
2. I have found that the basis upon which his Honour exercised his discretion is making these orders was in error. They must therefore be set aside.

The gross sum costs orders (orders 6 and 7 made 1 April 2015)

1. As I have remitted each of the elements of the gross sum costs order, it follows that the order itself must be set aside.

Form of orders

1. A further issue arises in respect of the form of the orders made by the primary judge on 1 April 2015. By order 1, his Honour determined the costs payable pursuant to s 384(2)(a) of the 2004 Act in respect of the costs orders made in the Local Court, Supreme Court and Court of Appeal. By order 2, his Honour purported to make the applicants liable for those sums. However, by reason of a grant of Legal Aid, the first applicant was not liable for the sums relating to the costs orders made in the Supreme Court. In addition, the Legal Aid Commissioner had paid $15,000 of the costs in the Supreme Court. Orders 3 and 4, respectively, consisted of "note[s]" outlining those circumstances. However, there was no indication in the text of order 2 itself that it was to be limited to, or read subject to, orders 3 and 4. In that circumstance, the form of orders 2-4 requires correction and they must be set aside for that additional reason.

Conclusion

1. It follows from the above that all of the orders made by the primary judge on 23 October 2014 and 1 April 2015 must be set aside, excepting those procedural orders which are now spent. As the applicants have been successful they should have their costs in this Court.
2. The proceedings must again be remitted to the District Court. As it is not in a position to itself make a determination in relation to the application for costs assessment pursuant to s 384(2)(a), it will be will be required to make orders with respect to the remittal of the matter to the costs assessor pursuant to s 384(2)(b). The same is true of the costs of the costs assessment. The District Court must also make orders, in accordance with the reasons of this Court, in respect of the costs of the proceedings before it.

Orders

1. I propose that the following orders be made:
2. Set aside orders (1), (2), (4) and (6) made by Taylor DCJ on 23 October 2014.
3. Set aside orders (1)-(7) made by Taylor DCJ on 1 April 2015.
4. Remit the matter to the District Court to make such determinations and orders in accordance with law as are necessary in respect of the applicants' appeal to it with respect to: 1. Remitting its decision to the costs assessor for the redetermination of the application for costs assessment, including in respect of the costs of the costs assessment; and 2. The parties' costs in the District Court; and to make any consequential orders.
5. Order that the respondents pay the costs of the proceedings in this Court.
6. BASTEN JA: On 2 June 2014 this Court set aside a judgment of the District Court on an application for judicial review. [1] The Court upheld the applicants' claims that there had been error on the part of the District Court in dismissing an appeal from certain costs assessments made under the Legal Profession Act 2004 (NSW). This Court set aside certificates issued by a costs assessor and a review panel, and remitted the matter to the District Court for further orders.
7. Subsequently, there were two hearings in the remitted proceedings in the District Court. On 23 October 2014 Judge P Taylor SC made final orders as to costs in the District Court up to that date, and interlocutory orders specifying the approach to be taken in reaching final orders. [2] That included the District Court determining the outcome of the assessments the subject of the appeal to the District Court. A further judgment was delivered on 1 April 2015 and final orders were made. [3]
8. The applicants now seek to have the further orders made in the District Court set aside, again in the exercise of this Court's supervisory jurisdiction, there being no right of appeal. The issues sought to be raised may be addressed in three stages, requiring consideration of: (1) the scope of the remitter from this Court; (2) the scope of the orders available in the District Court on an appeal with respect to an assessments of costs, and (3) the form of the orders made.

(1) Scope of remitter

1. On 2 June 2014 this Court set aside the orders made in the District Court dismissing the appeal from the determination of the review panel of 6 January 2012. That result flowed from the conclusion that the statutory scheme for assessment of costs made pursuant to orders of a court did not permit the issue of a global certificate covering separate costs orders in different jurisdictions. That being the form of the order made by the costs assessor and confirmed by the review panel, this Court ordered that the certificates be set aside, there being no other course available in law. [4]
2. That did not resolve the outstanding issues. The original application for assessment of costs remained undetermined, as did the appeal to the District Court. That was because, it was assumed, the District Court had a choice as to what steps it should take, in exercise of the powers conferred under s 384 of the Legal Profession Act. As then in force, s 384 read: 384 Appeal against decision of costs assessor as to matter of law (1) A party to an application for a costs assessment who is dissatisfied with a decision of a costs assessor as to a matter of law arising in the proceedings to determine the application may, in accordance with the rules of the District Court, appeal to the Court against the decision. (2) After deciding the question the subject of the appeal, the District Court may, unless it affirms the costs assessor's decision: (a) make such determination in relation to the application as, in its opinion, should have been made by the costs assessor, or (b) remit its decision on the question to the costs assessor and order the costs assessor to re-determine the application. (3) On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.
3. The decision of the costs assessor "as to a matter of law" which was set aside was an implicit decision that the assessor had power to issue a single global certificate with respect to separate costs orders made by different courts. That decision not having been affirmed, it was necessary for the District Court to consider whether it should make the determination which should have been made by the costs assessor, or whether it should remit the answer to the question of law to the costs assessor, for her to re-determine the application for assessment. Judge Taylor correctly understood that this was the exercise required of him on remitter. [5]
4. Noting that the only legal error identified by the majority in this Court was the issue of the global certificates, Taylor DCJ also formed the view that, as there was no requirement to reassess the items allowed or the reasonable value of those items, it would be a straightforward matter for him to determine the assessment applications in the manner which should have been undertaken by the costs assessor and on the assessments of individual items undertaken by her and affirmed on review by a review panel. That exercise was not entirely mechanical as there was an element of disaggregation required. The judge formed the opinion that that exercise was reasonably straightforward, as indeed it turned out to be, with the assistance of expert evidence. There was a dispute as to whether that course was available under the Act, but not as to the scope of the orders of this Court.
5. The second element of the remitter dealt in part with costs in the District Court. That matter was duly addressed by the judge on remittal and, although the subject of challenge no reviewable error of law was demonstrated in the undertaking of that step, although if the substantive orders were to be set aside consequential changes might be required in relation to the costs orders on the appeal. However, it was also necessary for the judge to deal with the costs of the assessments undertaken by the costs assessor and review panel, which will be addressed below.
6. One aspect of the case run by the applicants as to the effect of the orders setting aside the certificates should be noted. (It may be relevant both to the assessment of costs in the District Court and in relation to the further determination of the amounts payable under the various costs orders.) It was that, the certificates having been set aside, the determinations underlying the certificates had no legal force or effect. That submission should not be accepted in its terms. While it is true that the determinations are legally unenforceable in their present form, the exercise required to make determinations which may be the subject of appropriate certificates does not require the costs assessor to disregard the decisions already taken as to the fairness and reasonableness of individual items. In that sense, the approach adopted in the District Court on the remitter was not open to criticism. It might be expected that the costs assessor will ultimately adopt a similar approach. Indeed, the costs assessor would be entitled to admit the same affidavit as to disaggregation relied on by the respondent in the District Court, with the outcome that the final liability of the applicants may be substantially the same as was first determined.
7. That is not to say that the future conduct of the proceedings is bound to adhere to those views; rather, it is merely to say that it would be open to both the District Court (in determining costs) and the costs assessor to adopt such an approach if they saw fit, and for their own purposes.

(a) scope of s 384(2)

1. The first submission put forward by the applicants relied on the terms of s 384 of the Legal Profession Act (set out at [14] above). The submission appeared to turn upon the proposition that the powers conferred on the District Court by s 384(2) could only be exercised after that Court had determined the question the subject of the appeal. That question having been determined by this Court, there was nothing more for the District Court to do: the subject of the appeal had been otherwise resolved. On that view, the powers of the District Court conferred by s 384(2) would only be engaged where the decision of this Court was to set aside the decision of the District Court and direct that Court to reconsider the appeal according to law. In that case, the District Court would only have power to answer the question in one way and then consider what consequential relief should be granted.
2. If that were the only construction of s 384 available, there would be much to be said for this Court revoking its earlier orders and making an order in a more limited form. However, that is not the only construction available, nor should it be the preferred construction. Where a statute vests power in a particular court or tribunal, subject to a right of appeal in a dissatisfied party, it will usually be appropriate to read the powers conferred on the trial court as engaged where an appellate court has exercised some part of the jurisdiction of the trial court. Similarly, the powers of the District Court should be read as engaged where a precondition to the exercise of its power has been undertaken by this Court in the exercise of its supervisory jurisdiction. In short, the District Court has the powers conferred under subs 384(2) even though the question the subject of the appeal has been decided by this Court.
3. The submissions also referred to the concept of "merger". However, this was not the ordinary use of merger in the context of the judgment of a court, namely that the cause of action on which the person sued has merged in the judgment, but rather an assertion that, following the first judgment of this Court, "the District Court's authority to affirm or not affirm the certificates merged with (or expired upon) the Court of Appeal's judgment setting aside those certificates." [6] That language raised no issue of construction beyond that addressed above.

(b) application of s 384(2)

1. On the basis that s 384(2) was engaged, it was necessary to determine which of the two options in pars (a) and (b) applied, or whether both applied. Related to that question was the operation of subs 384(3). These issues need to be addressed together. Section 384(2) must be read as conferring by implication a power, not merely to decide the question the subject of the appeal, but also to affirm the costs assessor's decision or to set the decision aside. That implication was not in issue. Rather, the question was which power of those identified should be used on the basis that the determination of the costs assessor had been set aside. The first alternative was for the Court to make "such determination" as should have been made by the costs assessor, with respect to the application for a costs assessment. The second alternative was to remit the decision on the question of law and order the costs assessor "to redetermine" the application for a costs' assessment.
2. Subsection (3) referred to the evidence which might be received on a "redetermination" of an application. This language appeared to engage the second alternative, namely the course to be taken on remitter. On that approach, a question arose as to the power of the District Court to take further evidence in order to make its determination, assuming it adopted the first alternative.
3. The question of construction thus raised is a common one: what are the powers of the court given jurisdiction to determine an appeal as to a matter of law? Much will depend on the statutory context in which the appeal is permitted, the language in which the right of appeal is conferred, the language used to state the powers of the appellate court and the nature of the body from which the appeal is brought. As appears from the lengthy discussion of such statutes in the judgment of Allsop P in B & L Linings Pty Ltd v Chief Commissioner of State Revenue, [7] there is little uniformity in statutory language and the answers are usually left, to a greater or lesser degree, to implication. Attempts to impose regularity on diversity have foundered. [8] In many cases the exercise has been complicated by the existence of general provisions conferring powers on the appellate court, such as s 75A of the Supreme Court Act 1970 (NSW) which, subject to s 75A(4), may affect the answers to be given with respect to appeals to the Supreme Court. That element is missing in the present case, there being no equivalent provision governing such statutory appeals in the District Court.
4. The questions which commonly arise in such cases are whether the appellate court can determine a matter for itself where there are findings of fact to be made, or where there is an exercise of discretion or an evaluative judgment required. Where much is left to implication, similar language may have differing consequences depending on statutory context. Thus, where an evaluative judgment is vested primarily in a specialist tribunal the court may be less willing to infer that it should have power to make that judgment for itself than in circumstances where the judgment is to be made by a court-like tribunal and is of a kind commonly exercised by judges having a general jurisdiction.
5. In the present case, there were three important factors governing the question of construction. First, s 384(1) identified the subject matter of the appeal as a decision "as to" a matter of law. The "decision" may be implicit or express; on either view it is unlikely to require the appellate court to investigate the merits of the decision made by the assessor.
6. Secondly, the statutory scheme did permit an appeal on the merits. Thus, s 385(2), in relation to an assessment of costs payable as the result of an order made by a court, allowed a party to seek leave to appeal to that court or tribunal, "against the determination of the application made by a costs assessor." Such an appeal was to be "by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given." [9]
7. That right of appeal on the merits was not to the District Court, where the costs orders to be assessed were made by other courts. None of the relevant costs orders the subject of the assessments was made by the District Court. (A general right of appeal to the District Court, pursuant to s 385(1), arose only with respect to bills payable by a client to his or her practitioner.) Accordingly, the District Court had no power to review the merits of the assessments. In this scheme, one would need a clear implication in order to conclude that the District Court, if the gateway of an appeal as to a matter of law were opened, had a power to determine facts or assess items for which costs had been charged.
8. Thirdly, there are the terms of s 384(3), which mirror the language of s 385(4) dealing with an appeal by way of a new hearing, namely that fresh or additional evidence may be given on a re-determination. The power to "re-determine" is that conferred on the costs assessor on remittal. The available negative inference is that such evidence would not be available if the District Court were to determine the matter for itself. Significantly, neither provision referred to the use which might be made of the evidence received in support of the original determination; that, the drafter no doubt assumed, would already be before the costs assessor or before the court conducting a new hearing. There is no similar implication that it would be before a court hearing an appeal as to a matter of law only.
9. At a pragmatic level, there is much to be said for the approach adopted by the District Court judge. In circumstances where there was no challenge to the assessment of individual items, and all that was required was a disaggregation of the various items into separate bills, the judge was readily able, with the assistance of unchallenged evidence from an appropriately qualified costs consultant, to make findings as to the costs payable pursuant to the respective costs orders of the Local Court, the Supreme Court and the Court of Appeal. However, if the power to approach the matter in that way was unavailable, pragmatism cannot dictate the result. In my view, on the proper construction of s 384(2), the judge did not have the power to undertake the exercise of disaggregation.
10. This conclusion is confirmed (and the attraction of pragmatism undermined) by considering the outcome of the purported determination in the District Court, which is raised by the next issue.

(c) power to issue certificate

1. In dealing with the consequential orders to be made, the judge noted that the respondent (Horwath) had sought determinations with respect to the various costs orders, including the issue of certificates by the Court. Although no objection was taken to that form of the orders sought, the judge himself had doubt as to whether that was an available course. He noted that the Legal Profession Act required that "on making a determination of costs … a costs assessor is to issue a certificate that sets out the determination." [10] As the judge further noted, the issue of a certificate enabled enforcement of the determination. [11] He considered there were two obstacles to the issue of a certificate by the Court: first, the Act did not provide for such in terms and, secondly, the "orthodox" approach was for the Court to make orders which were enforceable as such. [12] The judge adopted the latter approach.
2. Again in practical terms, that approach has much to recommend it. It could readily have been achieved by empowering the Court to make such orders as it thought fit to determine the application for a costs assessment, However, s 384 was not in those terms; it empowered the Court to "make such determination in relation to the application as, in its opinion, should have been made by the costs assessor". [13] That provision does not equate the powers of the Court on a statutory appeal under s 384 with an order made in the civil jurisdiction of the Court in proceedings in, for example, an action to which Part 3 of the District Court 1973 (NSW) applies.
3. The functions conferred on costs assessors were two-fold. The first involved (on an application for an assessment of costs payable as a result of an order made by a court or tribunal) making a determination of the fair and reasonable amount of those costs. [14] The second involved the issue of a certificate reflecting the determination. [15] The power conferred on the District Court was to make a "determination" which should have been made by the costs assessor. While the judge inferred, no doubt correctly, that that power did not extend to issuing a certificate, neither did it expressly extend to entering a judgment for the amount of the determination. Because, in the circumstances which required the receipt of further evidence, the judgments must be set aside, it is not necessary to determine how effect should have been given to a determination made under s 384(2)(a). Arguably the determination should have been remitted to the costs assessor to issue the appropriate certificate.

(3) Costs of assessment process

1. A further matter to be determined by the District Court on remittal was the proper course for determining the costs of the costs assessment. Before noting what was done in the District Court, it is necessary to identify the issues by reference to the statutory provisions.
2. First, the costs assessor was obliged, pursuant to s 369(2), "to determine the costs of a costs assessment to which this section applies." (The section applied to the assessment of costs ordered by a court, as stated in s 369(1)(b).) Secondly, s 369 expressly provided for the costs assessor to issue a certificate that set out the costs of the costs assessment: s 369(5). That was a separate certificate from the determination of the costs ordered by the court, which resulted in a certificate issued under s 368. Section 368(3) stated that a certificate issued under that section "may not set out the costs of the costs assessment within the meaning of section 369."
3. The idea underlying this scheme of dual certificates was tolerably clear. An amount referred to as the "costs of the costs assessor" were to be paid to the Manager, Costs Assessment. However, where "the costs of the costs assessor are payable by a party to the assessment", the substantive assessment certificate will not be provided to the parties until the costs of the costs assessor have been paid: s 368(6). In other words, a party seeking to recover costs as assessed, pursuant to a court order, would not be able to do so (because it would be unable to obtain a certificate as to those costs) until the costs of the costs assessor were paid.
4. The issue raised by this scheme is whether the parties' costs of the assessment process were to be included in the substantive determination and certificate under s 368, or in the separate certificate in relation to the costs of the assessment process, under s 369. The statutory language on this point was unfortunately obscure. The term "costs of the costs assessment", as it appeared in s 369, was defined: 369 Costs of costs assessment … (10) In this section: costs of the costs assessment includes the costs incurred by the costs assessor or the Manager, Costs Assessment in the course of a costs assessment under this Division, and also includes the costs related to the remuneration of the costs assessor.
5. Because the phrase was defined inclusively, there was an available inference that other costs which might readily fall within that phrase were also included. There was a further reason for thinking that that might be so and might include professional costs incurred by the parties in the assessment process. That was that the costs of the costs assessment would not necessarily be paid by the party the subject of the court order, but "by such persons, and to such extent, as may be determined by the costs assessor", as provided by s 369(3)(b). Thus, in considering who should pay the costs of the assessment process in the present case, the costs assessor had regard to the offers of settlement as to costs made by the parties and the conduct of the parties generally in dealing with the assessment process. That was part of the function conferred on the costs assessor in determining the costs of a costs assessment: s 369(3). It would follow that the determination of those costs and the person or persons by whom they were to be paid would form part of the certificate under s 369.
6. The s 369 certificate may also be filed in the registry of a court of competent jurisdiction and was then "taken to be a judgment of that court for the amount of unpaid costs": s 369(7).
7. It might be anomalous if the costs of the costs assessment included professional costs of a party, but were required to be paid to the Manager, Costs Assessment. However, that is not the case. The section drew a distinction (as did s 368(6)) between "costs of the costs assessment" and "costs of the costs assessor"; it being only the latter which were to be paid to the Manager, Costs Assessment, pursuant to s 369(8).
8. There is no reason why a single certificate (like a single judgment) should not contain separate orders requiring payment of different sums to different persons. Accordingly, the proper construction of s 369 required that the professional costs of the parties of the assessment process were to be included in the s 369 certificate and not in the certificate issued under s 368.
9. As noted by the President, this issue was raised at the heel of the hunt and, on one view, there would be much to be said for the proposition that it should not be determined. Further support for that position follows from the exiguous submissions made with respect to that issue. However, the issue having been raised and the matter requiring remittal to the District Court in any event, it would be unfortunate if it were not resolved, but left for future disputation.
10. The one authority in which the issue appears to have arisen is Weber v Aquaqueen International Pty Ltd. [16] In that case, Garling J stated at [84]: "It is convenient to reflect here on what costs are included in the costs of a costs assessment which is being determined by an assessor under s 369 of the [Legal Profession] Act. So far as appears from the legislation, the costs will include two components, namely the application fee and a sum which reflects the costs charged by the Costs Assessor for the time spent on carrying out the costs assessment. It is possible that the costs [of] the successful party of the process of costs assessment, such as for a costs consultant to prepare the bill of costs, could be included in a s 369 Certificate. From time to time, although the practice is by no means a universal one, these costs will be included in a s 369 Certificate. Clearly because these are costs which are challengeable by the party against whom they are claimed, it is preferable if they are considered and dealt with as part of the s 368 assessment process, and to the extent that they are allowed, included in the s 368 Certificate."
11. It follows from the reasoning above, that the common practice identified by Garling J, namely inclusion of the parties' costs of the assessment process in a s 369 certificate was correct. The "preferable" alternative noted in the last sentence does not, for the reasons given above, conform to the statutory scheme.
12. When the primary judge came to deal with the actual figures to be included in orders, [17] he simply added the costs of assessment, distributed according to his own formula, to the respective substantive determinations. This exercise involved a misunderstanding of the statutory scheme.

(4) Form of orders

1. For the reasons set out above, particular orders made by the District Court must be set aside. The form of the orders would have caused difficulties in any event. The orders made on 1 April 2015 were: [18] "(1) Determine the costs payable pursuant to s 384(2)(a) of the Legal Profession Act 2004: (a) under the Local Court order to be $107,719.70; (b) under the Supreme Court order to be $39,078.38; and (c) under the Court of Appeal order to be $28,254.70. (2) In order to give effect to order (1) above, order the plaintiffs to pay to the defendant the amounts of costs determined in order (1)(a), (b) and (c) above. (3) Note that the first plaintiff, Herbert Wende, was granted Legal Aid in respect of the costs of the Supreme Court proceedings and bears no further liability in respect of the costs specified in order (1)(b) above. (4) Note that the Legal Aid Commissioner has paid the sum of $15,000 in partial discharge of the costs specified in order (1)(b) above. (5) Plaintiffs to pay the defendant's costs in the proceedings from 23 October 2014 until today. (6) Order that the defendant be entitled to a specified gross sum in respect of: (a) the costs the subject of orders (1) and (2) made on 23 October 2014; and (b) the costs referred to in order (5) above. (7) Determine that the specified gross sum referred to in order (6) be the total sum of $84,496.70, representing $64,496.70 in respect of order (6)(a) and $20,000 in respect of order (6)(b). (8) Stay the entry of these orders for 14 days. (9) Grant liberty to the plaintiffs to make any application in respect of the $20,000 referred to in order (7) within 14 days hereof."
2. Order (1) must be set aside for two reasons, namely (a) because the District Court did not have power to determine the costs payable under s 384(2)(a) and (b) because the amounts set out included the costs incurred in the assessment process. It follows that order (2) must also be set aside. However, order (2) should be set aside for a further reason. That order purported to bind all of the plaintiffs to pay the amounts set out in order (1). As "noted" in order (3), Herbert Wende bore "no further liability", in respect of the costs specified in order (1)(b). That being so, no order should have been made requiring him to pay that amount. Further, as "noted" in order (4), the sum of $15,000 having been paid by the Legal Aid Commissioner, none of the other plaintiffs were jointly or severally liable to pay the full amount specified in order (1)(b). Where judgment is given against an individual for a specified amount, that judgment should accurately reflect the liability of the individual.
3. Order (5) imposed an obligation on the plaintiffs to pay "the defendant's costs in the proceedings from 23 October 2014" until 1 April 2015. The term "proceedings" was ambiguous, but was intended to refer to costs in the District Court. Order (6) then sought to identify those costs, although the actual sums were not set out until order (7). However, without going back to the reasoning set out in the judgment, it is quite unclear what was meant by order (6)(a). The result is that, because orders (1)-(4) must be set aside, it is no longer possible to maintain orders (5)-(7).
4. The following orders were made on 23 October 2014: [19] "(1) Order that the plaintiffs pay the defendant's costs of the District Court proceedings occurring after the Court of Appeal proceedings, up to the date of this judgment. (2) Order that the plaintiffs pay 80% of the defendant's costs of the District Court proceedings occurring before the Court of Appeal proceedings. (3) Stand over to a date to be notified by my associate the question of whether the amount of costs in orders 1 and 2 should be the subject of a lump sum order. (4) Order that the assessed costs of the Local Court, Supreme Court and Court of Appeal be determined by the District Court under s 384(2)(a) of the Legal Profession Act in accordance with the reasons of the assessor, Ms Dulhunty, and the Review Panel. (5) Stand over to a date to be notified by my associate the question of the quanta of those three determinations, in the absence of prior notification by the parties of agreement as to quanta. (6) Order the plaintiffs to pay the costs of the assessment in sum of $13,128.76 and the costs of the Review Panel in the sum of $5,818. (7) Stand over any other residual matters to a date to be notified by my associate. (8) List the matter for directions on Friday, 31 October 2014 at 10am before P Taylor SC DCJ."
5. Orders (1) and (2) purported to be final orders, but were rendered contingent by order (3). As they concerned costs in the District Court they will be dealt with below. Order (4) should be set aside, given the limited operation of s 384(2)(a) identified above. Order (6) was also superseded by order (1) made on 1 April 2015, although it was in terms uncertain and unenforceable because it did not indicate to whom the plaintiffs were required to pay the costs of the assessment. The better course is to set aside the orders made on 23 October 2014, other than (1) and (2) (as to which see below) and orders (3), (5), (7) and (8), which were interlocutory and are now spent.

(5) Costs in District Court

1. There remains the question of the orders for costs made in the District Court.
2. The first relevant period in respect of costs in the District Court involved proceedings prior to the first judgment in this Court. The District Court held that Horwath should be awarded 80% of its costs of the District Court appeal for that period.
3. In reaching that conclusion, the judge rejected my view that the applicants should have their costs of the proceedings in the District Court [20] on the basis that the applicants had been entitled to succeed on a number of grounds not accepted by other members of the Court. That was a sound reason for rejecting that opinion. Further, the judge, who had a closer understanding of the proceedings before him than did I, took the view that the issue on which the applicants succeeded had not been clearly raised in the District Court. He also concluded, reasonably, that the overall outcome was likely to remain substantially that which had obtained pursuant to the invalid certificates of the costs assessor. These were appropriate considerations to be taken into account in exercising the discretionary power to award costs. No error of law has been demonstrated in relation to order (2) made on 23 October 2014: accordingly, that order should stand.
4. With respect to the orders regarding the subsequent stages of proceedings in the District Court, legal errors have again been identified and, primarily, on the basis of matters which were raised before the District Court judge. Order (1) made on 23 October 2014 must be set aside. Similarly, order (5) made on 1 April 2015 must also be set aside, as must, consequentially orders (6) and (7) made on 1 April 2015.

(6) Conclusions

1. The reasoning set out above makes explicit a matter not resolved on the first review by this Court, namely that the relevant exercise in disaggregating the determinations as to the amount of costs payable under the separate costs orders must be undertaken by the costs assessor. That followed from the fact that to undertake the exercise the District Court relied upon expert evidence which, in turn, required a degree of evaluative judgment, not permitted on an appeal limited to determining a question of law, under s 384(2).
2. There is a question as to the proper order for costs of the application in this Court. On one view the applicants have been largely, though not entirely successful. Although the applicants have succeeded on the substantial issue raised on the appeal, the amended summons raised six grounds which, with sub-grounds, contained 16 allegations of error, some in very general terms. They were unsuccessful in challenging the primary judge's understanding of the scope of the remittal order, and in challenging the order for costs in the District Court prior to the first appeal.
3. Further, as the ultimate result is unlikely to vary their financial liabilities, because there is no challenge to the substance of the assessments, they should not be rewarded for a largely legal success, increasing the overall legal expenses of all parties. I would propose they recover 50% of their costs in this Court.
4. To give effect to these reasons, I would make the following orders: 1. Set aside orders (1), (4) and (6) made in the District Court on 23 October 2014. 2. Set aside orders (1)-(7) made by the District Court on 1 April 2015. 3. Remit the proceedings to the District Court for that Court to make final orders with respect to the applicants' appeal, including, if thought appropriate - 1. orders remitting the assessment of costs to the Manager, Costs Assessment, for determination according to law; 2. orders as to the costs of the parties in the District Court in relation to proceedings subsequent to the first judgment of this Court; 3. an order specifying the amount of any costs payable in the District Court, including pursuant to order (2) made on 23 October 2014. 1. Order the first respondent to pay 50% of the applicants' costs in this Court.
5. ADAMSON J: I have had the benefit of reading the draft reasons of Beazley ACJ and Basten JA. I agree with the reasons of Beazley ACJ, save as to two matters: the reasons with respect to order (2) made on 23 October 2014 and the order proposed as to the costs of the proceedings in this Court. I agree with the orders proposed by Basten JA, for the reasons given, save as to the following two matters. First, like Beazley ACJ, I would prefer to leave for further consideration the issue relating to the parties' costs of the costs assessment. Secondly, I have come to a different view as to the appropriate order for the costs of the proceedings in this Court, for the reasons set out below.
6. In respect of order (2) made on 23 October 2014, I agree with Basten JA that the order should stand, for the reasons given by his Honour.
7. As to the costs of the proceedings in this Court, I consider the appropriate order to be that there be no order as to costs.
8. Section 98 of the Civil Procedure Act 2005 (NSW) (the Act) confers a discretion as to costs. The Uniform Civil Procedure Rules 2005 (NSW) (UCPR) provides that costs are generally to follow the event. UCPR 42.1 provides: "42.1 General rule that costs follow the event Subject to this Part, if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs."
9. The overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 56(1). This Court is obliged, by s 56(2) of the Act, to seek to give effect to the overriding purpose when it exercises a power under the Act, including the power under s 98.
10. The applicants' conduct has been, in my view, inimical to the just, quick and cheap resolution of the real issues in the proceedings. The points they have raised have been at the expense of speed and cost and conform only to the narrowest, most technical, view of "justice". Whatever victory the applicants have had can only be regarded as a Pyrrhic one. In the circumstances of the present matter, this factor ought, in my view, displace the general rule that costs ought follow the event. Otherwise, there is a substantial risk that this Court will unwittingly reward, and thereby condone, the taking of technical points for their own sake.
11. My view as to costs is a minority one. Beazley ACJ considers that the respondents ought pay the applicants' costs of the proceedings in this Court. Justice Basten considers the appropriate order to be that the respondents pay 50% of the applicants' costs in this Court. The situation that presents itself is not unlike that considered by Mason P in Skulander v Willoughby City Council [2007] NSWCA 116; 73 NSWLR 44 at [42]-[76]. It is appropriate that I reconsider my view so as to create a majority in favour of an order for costs of the proceedings in this Court. In these circumstances, I agree with the costs order proposed by Basten JA, since it accords more closely with my view than does the order proposed by Beazley ACJ.

Endnotes

1. Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 ("Wende CA").
2. Wende v Horwath (NSW) Pty Ltd (No 2) [2014] NSWDC 202; 19 DCLR 182 ("Wende (No 2)").
3. Wende v Horwath (NSW) Pty Ltd (No 3) [2015] NSWDC 73 ("Wende (No 3)").
4. Wende (CA), order 2.
5. Wende (No 2) at [21]-[24] and [27].
6. Applicants' amended outline of submissions, 29 May 2015, par 29.
7. (2008) 74 NSWLR 481; [2008] NSWCA 187.
8. Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 at [89].
9. Section 385(4).
10. Legal Profession Act, s 368(1); and, with respect to a review panel, s 378(1).
11. Wende (No 2) at [33].
12. Ibid.
13. Legal Profession Act, s 384(2)(a).
14. Legal Profession Act, s 367A.
15. Ibid, s 368(1).
16. Weber v Aquaqueen International Pty Ltd; Aquaqueen International Pty Ltd v Weber [2013] NSWSC 1181.
17. Wende (No 3) at [15]-[17].
18. Wende (No 3) at [35].
19. Wende (No 2) at [57].
20. Wende (CA) at [93].

Amendments 02 February 2016 - Typographical errors corrected at [19], [69], [75] and [101] 10 October 2016 - Minor typographical errors corrected at [18], [23], [47], [50], [76], [87] and [90] 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: 10 October 2016