On 22 December 2015 the Court of Appeal set aside previous orders of this Court and ordered:
"(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 -
(a) orders remitting the assessment of costs to the Manager, Costs Assessment, for determination according to law;
(b) orders as to the costs of the parties in the District Court in relation to proceedings subsequent to the first judgment of this Court;
(c) an order specifying the amount of any costs payable in the District Court, including pursuant to order (2) made on 23 October 2014." [1]
In respect of order 3(a), both parties seek that the relevant matter be remitted to Ms K Dulhunty, the original costs assessor. The reasons which favour this course are:
1. the discretion granted to this Court by the Court of Appeal in specifying "if thought appropriate";
2. that s 384(2)(b) of the Legal Profession Act 2004 provides for the Court to "remit…to the costs assessor";
3. the common position of the parties that the remittal should be to the original assessor (and not to the review panel, although the review panel is embraced within the term "costs assessor" in s 384(2)(b) by s 382(1));
4. that the original costs assessor is to perform the role of a costs assessor; and
5. that the matter may be substantially shorter and cheaper before the original costs assessor.
I am persuaded by these reasons that the form of the order should refer to the original costs assessor rather than the Manager, Costs Assessment.
A remaining matter of dispute between the parties in relation to the form of the remittal order or orders is whether I should remit "the question of the determination of costs", as the plaintiffs seek, or the "proceedings...for further determination...of only the disaggregation of [the Costs Assessor's] prior determination of the amount of costs", as the defendant seeks.
The relevant order made by the Court of Appeal referring to "orders remitting the assessment of costs…for determination according to law" accords more with the form of order proposed by the plaintiffs. Nothing in the Court of Appeal decision indicated a more confined order. The only remarks that may bear upon this question were made by Basten JA, who stated:
"99 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.
100 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." [2]
Given the agreement in the Court of Appeal with "the orders proposed by Basten JA, for the reasons given" (save for presently irrelevant matters) by Adamson J at [142], the consistent remarks of her Honour at [147], and the absence of any contrary remarks by Beazley ACJ, with whom Adamson J also agreed at [142], the remarks of Basten JA represent at least a majority view of the Court of Appeal. They do not support any restriction being imposed on the assessor by the remittal order. On the contrary, the parenthetical reference to "(in determining costs)" at [100] seems to suggest that the course advocated by the defendant would not be open to this Court.
The defendant also referred on this matter to two decisions of this Court and one of Harrison AsJ in the Supreme Court, namely Giuseppe Portale v Law Society of New South Wales (No 2) [2010] NSWDC 60 at [46]; Han v Stephen Paul Firth trading as Firth The Compensation Lawyers [2014] NSWDC 141 at [81] and Jazairy v Malouf t/as Gerard Malouf & Partners [2005] NSWSC 808.
None of these decisions consider the power or appropriateness of the Court restricting the assessor on a remittal. Rather, the decisions are examples where the form of the orders adopted in one or more of the cases seem to indicate a more limited remittal. That circumstance does not persuade me that I have the power in the present case or that it is appropriate to limit the way in which the assessor makes her redetermination under s 384(3) of the Legal Profession Act 2004, or the means by which she may inform herself in accordance with s 359(2). Of course, the decision of the Court of Appeal would be of assistance to her in that regard and will guide her as to the relevant law.
Accordingly, in my view, and bearing in mind the terms of s 384(2)(b), the proper orders are:
1. to remit the decisions on the questions raised in the application in respect of the assessment of the defendant's costs and the costs of the costs assessments as found by this Court in Wende v Horwath (NSW) Pty Limited [2013] NSWDC 10 as dealt with in the Court of Appeal in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 and Wende v Horwath (No 2) [2015] NSWCA 416 to Ms K Dulhunty, costs assessor; and
2. order Ms K Dulhunty to redetermine the application according to law having regard to the reasons of the New South Wales Court of Appeal in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 and Wende v Horwath (No 2) [2015] NSWCA 416.
The second issue concerns the costs of the proceedings.
The plaintiffs originally sought their costs, although in submissions they modified that claim to 50% of their costs up to and including the 5 February 2015, the date of the judgment on the stay application in Wende v Horwath (NSW) Pty Ltd (No 4) [2015] NSWDC 158, and 100% of their costs thereafter.
The defendant seeks that there be no order as to costs.
The question of costs was similar to the question of costs before the Court of Appeal. It would seem that some reduction of the plaintiffs' costs would be appropriate as the majority found. It would be open to make no order as to costs, the order for the Court of Appeal costs preferred by Adamson J at [144] for the reasons given at [145] and [148].
There are, however, some differences between the Court of Appeal proceedings and the question of costs arising in this Court. The plaintiffs were unsuccessful in a stay application in the judgment, namely Wende v Horwath (NSW) Pty Limited (No 4) [2015] NSWDC 158, and the parties have each had some success today, the plaintiffs principally in respect of the form of the order, the defendant in respect of a reduction in the plaintiffs' entitlement as to costs.
As to the two primary matters before me, the first was substantially concerned with the application and construction of s 384(2), and the appropriate costs order. Of these components the first was not disturbed by the Court of Appeal decision and the second was largely undisturbed, that is, the order in respect of the costs up to the first Court of Appeal hearing.
As to the second primary matter before me, namely Wende v Horwath (NSW) Pty Limited (No 3) [2015] NSWDC 73, a decision given on 1 April 2015, that determination has effectively been wholly set aside by the Court of Appeal, principally, though perhaps not exclusively, as a result of the construction of "redetermination" in s 384(3): that "redetermination" did not include a "determination" by this Court under s 384(2) and that therefore fresh evidence was unavailable on a s 384(2)(a) determination.
It is relevant to costs, as the plaintiffs' acknowledge, that the argument based upon s 384(3) and the restricted meaning of "redetermination" was not an argument advanced at the hearing before me, nor was the fresh evidence tendered on that determination objected to on that ground, but only in respect of the form of that evidence.
Set against these matters, the plaintiffs have ultimately succeeded, although it is, in the words of Adamson JA, a "Pyrrhic" [3] success and as Basten J stated:
"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." [4]
Bearing in mind the orders of the Court of Appeal in respect of the costs of that court and their general relevance to the costs of the proceedings in this Court, [5] the reasoning of the two majority judges in the Court of Appeal on the matter of costs, the nature of the three hearings in the District Court before today since the first Court of Appeal judgment which remitted the proceedings to this Court, the successes of the parties on the issues in those hearings, that the primary issue on which the plaintiffs succeeded in the Court of Appeal was not raised in the District Court, and the circumstances of both parties having some success in the matter before me today on the question of costs, I propose to order that the costs of the proceedings in the District Court since 2 June 2014, being the date of the first decision of the Court of Appeal in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170, be that there be no order as to these costs.
I turn to order 3(c) of the orders of the Court of Appeal concerning possibly "specifying the amount of any costs payable in the District Court, including", the costs payable under the order of this Court, which remains in force, namely order 2 of 23 October 2014. No party has made submissions or provided further evidence in respect of the quantum of those costs. The decision of this Court in respect of quantum does not identify that portion of the costs referred to in [23] of Wende v Horwath (NSW) Pty Limited (No 3) [2015] NSWDC 73, which is applicable to the time prior to the first Court of Appeal decision. Because no party seeks an order quantifying the costs, I do not propose to make an order quantifying the costs of order 2 made on 23 October 2014.
As to other costs since the date of the first Court of Appeal decision, there is no utility in quantifying those costs in view of the order I have made that there be no order as to costs.
Accordingly the orders of the Court are:
1. Remit the decisions on the questions raised in the application or applications in respect of the assessment of the defendant's costs and the costs of the costs assessment as found in this Court in Wende v Horwath (NSW) Pty Limited [2013] NSWDC 10 and as dealt with in the Court of Appeal in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 and Wende v Horwath (No 2) [2015] NSWCA 416 to Ms K M Dulhunty, costs assessor.
2. Order Ms K M Dulhunty to redetermine the application or applications according to law having regard to the reasons of the Court of Appeal in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170 and Wende v Horwath (No 2) [2015] NSWCA 416.
3. Order in respect of the costs of the proceedings in the District Court since 2 June 2014, being the date of the Court of Appeal decision in Wende v Horwath (NSW) Pty Limited [2014] NSWCA 170, that there be no order as to these costs.
[2]
Endnotes
Wende v Horwath (No 2) [2015] NSWCA 416 at [141].
Wende v Horwath (No 2) [2015] NSWCA 416 at [99]-[100].
Wende v Horwath (No 2) [2015] NSWCA 416 at [147].
Wende v Horwath (No 2) [2015] NSWCA 416 at [140].
See [89] per Beazley ACJ.
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Decision last updated: 04 February 2021