• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

Texts Cited: Nil

Category: Principal judgment

Parties: Westwood Capital Pty Ltd (Plaintiff)
The Croatian Club Limited (Defendant)

Representation: Counsel:
P Doyle Gray (Plaintiff)
P Maddigan (Defendant)
Solicitors:
Jordan Djunda Lawyers (Plaintiff)
Hall & Wilcox (Defendant)

File Number(s): 2025/00437885

Publication restriction: Nil

JUDGMENT

1. The plaintiff, Westwood Capital Pty Ltd (Westwood), appeals from a determination of a costs assessment review panel, pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act). Westwood was the unsuccessful defendant in proceedings commenced by the defendant in these proceedings, The Croatian Club Limited (the Club): The Croatian Club Limited v Westwood Capital Pty Ltd [2024] NSWSC 895. In a further judgment, after the parties were unable to agree on orders as to costs, Pike J ordered that Westwood pay the Club’s costs of the proceedings as agreed or assessed: The Croatian Club Limited v Westwood Capital Pty Ltd (No 2) [2024] NSWSC 1016.

2. The parties were unable to agree on an amount of costs. On 2 April 2025, the Club lodged an application for assessment of ordered costs pursuant to s 74 of the Application Act, seeking $336,064.07 plus interest. On 14 June 2025, a costs assessor determined that the costs of the proceedings were $289,165.59. Together with interest and the filing fee, the total amount certified as payable by Westwood was $331,983.44.

3. On 24 July 2025, Westwood applied for review of the costs assessor's determination pursuant to s 83 of the Application Act. On 7 October 2025, the review panel made its determination, affirming the determination of the costs assessor and requiring Westwood to pay additional costs in the amount of $11,469.76.

4. As the amount of costs in dispute on the appeal is more than $100,000, Westwood has an appeal as of right: s 89(1) of the Application Act. In its Summons filed on 11 November 2025, Westwood alleged that the review panel erred in law in the following respects:

5. The review panel misapprehended the nature and function of a review and thus failed to conduct the review in accordance with s 85(2) of the Application Act.

6. The review panel failed to identify and then apply “the legal principles concerning the reasonableness of incurring legal costs when multiple solicitors with expertise in different fields of law performed legal work simultaneously or contemporaneously, within the meaning of the Legal [Profession] Uniform Law, s 172”.

7. The review panel failed to identify and then apply “the legal principles concerning the mandatory obligation that a law practice must not act in a way that unnecessarily results in increased legal costs, when multiple solicitors with expertise in different fields of law performed legal work simultaneously or contemporaneously, within the meaning of the Legal [Profession] Uniform Law, s 173”.

Background to the review panel’s determination

5. On 27 December 2019, the parties entered into a contract of sale in respect of land owned by the Club, pursuant to which Westwood became the registered owner of the land. On 13 August 2021, the Club registered a caveat on the title which, unbeknownst to it, lapsed on 25 January 2022. Upon discovering that the caveat had lapsed, the Club commenced proceedings against Westwood in the Equity Division on 17 May 2023, asserting that it had a caveatable interest in the land and seeking leave to lodge a further caveat pursuant to s 74O of the Real Property Act 1900 (NSW).

6. Following a number of interlocutory disputes, Pike J heard the matter on 27 June 2024. On 25 July 2024, his Honour gave judgment, making orders granting leave to the Club to lodge a further caveat on the title in the same form as the previous caveat, and requiring the parties to confer and provide agreed orders as to costs. In the event that an agreement was not able to be reached, his Honour directed the parties to provide submissions on costs, with a view to costs being determined on the papers.

7. The parties were unable to agree on costs and filed submissions as directed. On 14 August 2024, Pike J delivered a further judgment, ordering Westwood to pay the Club’s costs as agreed or as assessed on the ordinary basis. On 22 October 2024, the Club’s legal representatives wrote to Westwood’s legal representatives, assessing its costs at $279,101.46 and demanding payment of $216,593.74 on the ordinary basis. Westwood made no offer in response to this demand.

The application to the costs assessor

8. Part 7 of the Application Act “applies to Uniform Law costs and ordered costs”: s 64(1). The term “ordered costs” is defined in s 63 of the Application Act to mean “costs payable under an order or rule of a court or tribunal”. The term “Uniform Law costs” is also defined in s 63 to mean “legal costs referred to in Division 7 of Part 4.3 of the Legal Profession Uniform Law (NSW) and (without limitation) legal costs referred to in section 65 of this Act”. Section 65 is not relevant to the present appeal.

9. Division 3 of Pt 7 of the Application Act is titled “Assessment of ordered costs—additional provisions”. Section 74 provides that a person who is entitled to receive ordered costs may apply for assessment of the whole or any part of ordered costs. As noted above, on 2 April 2025, the Club made its application for costs assessment, lodging the prescribed form with the Costs Assessment Manager. The application annexed the Club’s bill of costs, which included a detailed narrative regarding the proceedings, followed by the individual items for which costs were claimed. At the conclusion of the narrative section was a list of the solicitors whose costs contributed to the bill, together with their respective hourly rates. Relevantly, this list included two partners, Mark Petrucco and Maurice Doria, whose hourly rates ranged between $720 and $835 during the relevant period.

10. On 11 April 2025, the costs assessor requested further documents from the Club, including various costs disclosures and fee agreements, as well as the affidavit evidence. The Club provided this material by email on 17 April 2025.

11. Westwood, as the costs respondent, prepared objections to the Club’s application, which the costs assessor received on 30 May 2025. Westwood made some general objections as well as particular objections to items in the bill of costs. Westwood’s general objections included what it described as the “teams approach” that it contended the Club’s solicitors had adopted “in relation to numerous claims where more than one solicitor undertook the same work”. Westwood submitted that in numerous parts of the Club’s bill of costs, no reasons were provided as to why more than one solicitor had to undertake the same work, in the absence of which those attendances should be “disallowed or adjusted, as the case may be”. In making this submission, Westwood relied on the following statement of Young AJ in Gibson v Drumm [2016] NSWSC 570 (“Gibson”) at [20]:

“Again, when there are two people in a firm, solicitors cannot charge for both persons reading counsel’s advice etcetera unless there is a very good reason for two persons being involved such as for instance where one solicitor or clerk is dealing with the intellectual property side of a case and the other with the presentation of evidence.”

12. Westwood submitted that there was considerable duplication of work, including scenarios where three solicitors engaged in conferences or teams meetings with counsel, each of whom separately billed his or her attendance. Westwood submitted that such an approach was not appropriate in the present case, which was not complex and did not require multiple inputs. It also took issue with affidavits and letters going through several hands before being finalised, noting that each affidavit was ultimately settled by counsel. Westwood submitted at [20] of its objections:

“Westwood does not object to the involvement of additional solicitors per se where clearly defined and separate tasks were being undertaken and where this was reasonable in the circumstances. For example, no substantial objection is taken to the involvement of the firm’s property specialist, Maurice Doria, particularly in relation to the extensive negotiations over the priority deed between Westwood, its lenders and the Club during the course of the proceedings. Ultimately it is an issue of reasonableness.”

13. Westwood objected to numerous instances of what it described as “tag team” charges, which it submitted were neither fair nor reasonable having regard to the history of the parties’ commercial dealings and the actual conduct of the litigation. In objecting to specific items in the bill of costs, Westwood raised the “tag team” approach. By way of example, item 13 in the Club’s bill of costs was an entry for 12 May 2023 for an amount of $1,750, the description for which was:

“MS Teams conference with M Rimac and P Cubelic discussing next steps for proceedings, updated letter to be sent to first defendant’s solicitor, counsel to be briefed – 1 hour (MD, MP & SB)”

14. The initials “MD” and “MP” were references to Mr Doria and Mr Petrucco respectively, while “SB” was an employed solicitor. In response to item 13, Westwood made the following objection:

“An egregious example of the ‘tag team’ approach to costing in this matter which is neither fair nor reasonable in respect of costs on an ordered basis. A claimed 1 hour joint conference between two partners (@ $720 each) and an employed solicitor ($310) totalling $1,750 and prior to commencement of actual proceedings is unreasonable. Disallow.”

15. The Club lodged a response to Westwood’s objections, dated 6 June 2025. The Club submitted that a number of items that Westwood described as duplicated in fact related to different work. More generally, the Club submitted that there was nothing unusual in a partner and solicitor spending time on similar tasks, that they may do so for different reasons, and that this was part of the responsible and reasonable management of litigation. It submitted that the costs claimed in the present case were consistent with that approach. The Club also noted in this context that it had moderated the costs claimed for various solicitors for a number of items. In relation to conferences, the Club submitted that Westwood had exaggerated the scale of this objection, noting by way of example that item 13 was a conference between the solicitors and the client. It otherwise submitted that conferences and communications between solicitors were not unusual and were part of the responsible and reasonable management of complex litigation.

The costs assessor’s determination

16. Sections 75 and 76 of the Application Act provide:

75 Conduct of costs assessments of ordered costs

(1) An assessment of ordered costs must be made in accordance with—

(a) the terms of the order, rule or award under which the costs are payable, and

(b) the rules of the relevant court or tribunal that made the order for costs, and

(c) any relevant regulations, and

(d) any order made for interest on costs under section 101 of the Civil Procedure Act 2005.

(2) If a court or tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal and any relevant regulations.

76 Criteria for costs assessments of ordered costs

(1) In conducting an assessment of ordered costs, the costs assessor must determine what is a fair and reasonable amount of costs for the work concerned.

(2) In considering what is a fair and reasonable amount of costs for the work concerned, the costs assessor may have regard to the factors in section 172(1) and (2) of the Legal Profession Uniform Law (NSW) (as if that section also applies to ordered costs and so applies with any necessary modifications).

17. Section 172(1) and s 172(2) of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law) provide:

172 Legal costs must be fair and reasonable

(1) A law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are—

(a) proportionately and reasonably incurred; and

(b) proportionate and reasonable in amount.

(2) In considering whether legal costs satisfy subsection (1), regard must be had to whether the legal costs reasonably reflect—

(a) the level of skill, experience, specialisation and seniority of the lawyers concerned; and

(b) the level of complexity, novelty or difficulty of the issues involved, and the extent to which the matter involved a matter of public interest; and

(c) the labour and responsibility involved; and

(d) the circumstances in acting on the matter, including (for example) any or all of the following—

(i) the urgency of the matter;

(ii) the time spent on the matter;

(iii) the time when business was transacted in the matter;

(iv) the place where business was transacted in the matter;

(v) the number and importance of any documents involved; and

(e) the quality of the work done; and

(f) the retainer and the instructions (express or implied) given in the matter.

18. Westwood also relied on s 173 of the Uniform Law as relevant to the costs assessor’s discharge of the function under s 75 of the Application Act. I will address the arguments about the application of s 173 of the Uniform Law below, but the section provides:

173 Avoidance of increased legal costs

A law practice must not act in a way that unnecessarily results in increased legal costs payable by a client, and in particular must act reasonably to avoid unnecessary delay resulting in increased legal costs.

19. I have referred at [2] above to the amount of costs that the costs assessor determined. In her reasons, the costs assessor addressed Westwood’s objections, including that the costs were not proportionate and should be reduced, and that there was “[u]nreasonable duplication of work/dual attendances and there is insufficient detail to determine if the work which was undertaken was necessary and the costs claimed are fair and reasonable”. The costs assessor noted that the Club had responded to these objections and then stated:

“I have considered the Objections and the Response and have dealt with the specific instances in the annexure to these reasons but overall, I have found the Bill of Costs to be detailed enough to determine the costs claimed. I have also reviewed the documents supplied by the Costs Applicant and this has assisted in assessing the Bill of Costs.

It is not unusual to have several solicitors from a firm to work on litigation and it is not unusual to have junior and senior counsel. Also, it is not unusual for senior junior counsel to charge fees in the range of the fees charged in this case. Therefore, I have not reduced the rate of the junior counsel’s fees as requested by the Costs Respondent. However, I have dealt with the specific instances of duplication and excessive time in the annexure to these reasons.”

20. The annexure to the reasons took the form of an excel spreadsheet, in which the costs assessor addressed each item of costs: the amount claimed, Westwood’s attitude to each of the items of costs claimed by the Club (whether the item was conceded or objected to and, if the latter, the nature of the objection), the amount she allowed, and the reason. In relation to item 13, for example, the annexure stated:

“1,750 duplication, excessive time 1,440 reduced for duplication”

21. Read with the headings in the spreadsheet, the costs assessor determined Westwood’s objection to the claim for costs for the three solicitors’ attendance at the meeting, of $1,750 (the objection being that the claimed costs involved duplication and excessive time), by accepting there was duplication and reducing the costs to $1,440.

The application to the review panel

22. Section 83(1) of the Application Act provides that a party to a costs assessment may, within 30 days after the certificate of determination by the costs assessor has been forwarded to the parties, apply for a review of the determination. On 24 July 2025, Westwood lodged an application for review of the costs assessor’s determination using the prescribed form, which includes making provision for grounds to be stated. Under the heading “The grounds for making the application for review”, Westwood’s application stated:

23. The costs assessor failed to give adequate consideration to the issues raised in Westwood’s objections about the reasonableness of incurring legal costs where multiple solicitors with expertise in different fields of law performed work simultaneously or contemporaneously (s 172 of the Uniform Law). Westwood relied on particular paragraphs of its objections to the costs assessor “and the corresponding items to which [Westwood] made specific objections”.

24. The costs assessor failed to give adequate consideration to the issues raised in Westwood’s objections about the mandatory obligation that a law practice must not act in a way that unnecessarily results in increased legal costs, when multiple solicitors with expertise in different fields of law performed work simultaneously or contemporaneously (s 173 of the Uniform Law). Westwood relied on the same paragraphs of its objections and the corresponding items to which it made specific objections as for ground 1.

25. The costs assessor should have determined that, on the material before her, Mr Petrucco should have performed legal work alone, and when he lacked expertise, “then and only then” should he have delegated work to Mr Doria that was within the latter’s expertise.

26. The costs assessor should have determined that, on the material before her, when Mr Petrucco or Mr Doria delegated work to a more junior solicitor, the particular delegator should have supervised that junior solicitor, such that any charges by the other (or any other solicitor or barrister) in supervising or reviewing the work of that junior solicitor were not fair and reasonable.

27. The costs assessor should have determined, on the material before her, that:

(a) when multiple solicitors met, the Club bore the onus of explaining why that was reasonable, failing which a charge of nil was fair and reasonable; (b) when multiple solicitors were present at the same meeting with non-solicitors present, the Club bore the onus of explaining why that was reasonable, failing which a charge for the least expensive solicitor alone was fair and reasonable; and (c) when multiple solicitors (or counsel) reviewed a solicitor’s work product, the Club bore the onus of explaining why that was reasonable, failing which a charge of nil was fair and reasonable.

23. The application was assigned to the review panel whose decision is the subject of the present appeal. Consistently with s 82 of the Application Act, the review panel was constituted by two costs assessors. Both parties made submissions on the review application, which the review panel considered in making its determination. In its submissions, the Club submitted that Westwood had failed to demonstrate any error on the part of the costs assessor in respect of each of the grounds of the review application. The Club also submitted that the content of ground 4 was new, in the sense that Westwood had not advanced it as part of its objections to the costs assessor.

24. In its responsive submissions, Westwood submitted that there was no need for it to demonstrate error on the part of the costs assessor. Rather, the review panel was required to undertake the same exercise that the costs assessor had undertaken. Westwood also submitted that the grounds of review it advanced did not constitute new material and, in any event, did not limit the scope of the review.

The decision of the review panel

25. Section 85 of the Application Act provides:

85 Conduct of reviews

(1) A review panel may, on an application made under section 83 or 84, review the determination of a costs assessor and may—

(a) affirm the costs assessor’s determination, or

(b) set aside the costs assessor’s determination and substitute the determination that, in its opinion, should have been made by the costs assessor.

(2) The review panel has, in relation to the application for review, all the functions of a costs assessor in relation to the assessment concerned and is to determine the application, subject to this Part and the costs assessment rules, in the manner that a costs assessor would be required to determine an application for costs assessment.

(3) Without limiting subsection (2), the review panel is not bound by the rules of evidence and may inform itself on any matter in the manner it thinks fit.

(4) If the costs assessors who constitute the review panel are unable to agree on a determination in relation to an application, the panel is to affirm the determination of the costs assessor.

26. On 7 October 2025, the review panel made its determination on the review, affirming the costs assessor’s determination. In the absence of authority on s 85 of the Application Act, the review panel noted that there was no material difference between the current provision and s 375 of the repealed Legal Profession Act 2004 (NSW) (Legal Profession Act), which the Court of Appeal considered in Wende v Horwath (NSW) Pty Limited (2014) 86 NSWLR 674; [2014] NSWCA 170 (“Wende”). The review panel extracted a number of paragraphs from the reasons of Barrett JA in Wende (Beazley P and Basten JA agreeing), which I will address below when dealing with Westwood’s grounds of appeal: at [6].

27. Under the heading, “Conduct of reviews (section 85 LPULAA)”, the review panel stated:

“7. The Review Panel has all the functions of a costs assessor in relation to the assessment under review and may

(a) affirm the costs assessor’s determination, or

(b) set aside the costs assessor’s determination and substitute the determination that, in its opinion, should have been made by the costs assessor

8. In Palese v Malouf [2014] NSWDC 65, His Honour Neilsen DCJ noted that review was not an appeal. His Honour noted a panel was not required to formulate its own paraphrase of an assessor’s reasons if the panel considered the assessor’s reasons to be correct and sufficient. His Honour noted at paragraph 179 that it is ‘quite sufficient for the review panel to say, in effect, that it shared and endorsed reasons for conclusions stated by the assessor that … the panel, in turn, considered to be correct’.

9. In the present case, the Panel is of the view that it sufficiently discharges its obligations if it

(a) identifies each Ground set out in the review application;

(b) considers the submissions of the parties

(c) proceeds to consider each Ground; and

(d) determines whether to affirm or set aside the Assessor’s reasons and if to set aside, make a determination (which may require a detailed consideration of the bill of costs) in place of the determination thus set aside.”

28. The review panel then addressed the grounds of review in Westwood's review application. Considering grounds 1 and 2 together, the review panel stated that it had read Westwood’s objections and submissions to the costs assessor and the Club’s response. It considered that it was “clear” that the costs assessor had considered Westwood’s objections to the Club’s bill of costs, as well as the Club’s responses to those objections. The fact that the costs assessor did not accept, or fully accept, an objection or submission by either party did not mean that adequate consideration was not given to it: at [11.1].

29. The review panel also found that the costs assessor was correct to note that it was not unusual to have several solicitors work on litigation and to engage both junior and senior counsel. The review panel stated that team litigation “can be cost-effective and reasonable provided that the work in question is delegated to a solicitor or other staff member with appropriate experience and capabilities to deal with the matter”: at [11.1]. The review panel noted that internal meetings and the appropriateness of charging for them had also received positive judicial comment, referring to Money Max Int Pty Limited (Trustee) v QBE Insurance Group Limited [2018] FCA 1030; 358 ALR 382 at [173] (Murphy J). In its concluding paragraph in [11.1], the review panel stated:

“The Review Panel has not accepted [Westwood’s] submissions on this ground and this ground therefore fails. The Panel agrees with the Assessor’s determination for the reasons set out in the Assessor’s reasons.”

30. In rejecting grounds 3 and 4, the review panel considered that neither of these grounds appeared to have been raised in the original assessment. The review panel had earlier stated that a review was not an opportunity for a party to make good a case that it did not put to the costs assessor: at [5]. In any event, the review panel noted that Mr Petrucco and Mr Doria had the same charge out rates. It followed, in its view, that there was no prejudice to Westwood in terms of which of Mr Petrucco or Mr Doria did the work, or supervised junior solicitors instructed by the other. The review panel also noted that it was not uncommon for one lawyer to assist in a matter and there could be several valid reasons for doing so: at [11.12-11.13].

31. The review panel characterised ground 5 as the “duplication objection” that Westwood had made in its objections. It referred back to its reasons on grounds 1 and 2 and concluded that ground 5 failed on the same basis: at [11.14].

Nature of the appeal

32. Section 89(4) of the Application Act provides:

(4) An appeal is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor may, with the leave of the Court, be given on the appeal.

33. The parties agreed that a rehearing pursuant to s 89(4) of the Application Act is of the same character as that for which s 75A of the Supreme Court Act 1970 (NSW) makes provision. Consistently with s 75A, the powers of the Court on a rehearing under s 89 of the Application Act are exercisable “only where the appellant demonstrates on all the evidence that there was some legal, factual or discretionary error in the Review Panel’s decision”: Sweeten v Haggerty [2025] NSWSC 673 at [19] (Payne JA), citing Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [7]-[8].

34. In Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 (“Gazecki”), Basten JA at [42] referred to s 89(2) of the Application Act, which provides that the Court is to have “all the functions of the review panel”. Noting that the effect of this provision was “by no means clear”, his Honour stated at [43]:

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

The grounds of appeal

35. As outlined above, Westwood formulated its three grounds of appeal as involving errors of law on the part of the review panel. The first ground of appeal alleged that the review panel misapprehended the nature and function of a review and thereby failed to conduct the review in accordance with s 85(2) of the Application Act, which I have extracted at [25] above. The second and third grounds of appeal corresponded with the terms of the first and second grounds of review before the review panel, albeit that they were respectively directed at the review panel rather than the costs assessor. The Club noted that the grounds of appeal were framed slightly differently in Westwood's written submissions as compared to the Summons but did not suggest that it could not meet the arguments that Westwood raised.

Ground 1: the nature and function of the review panel’s review

36. Westwood submitted that in conducting the review in the present case, the review panel erroneously proceeded on the basis that it was necessary for it to find demonstrable error in the costs assessor’s determination before it could make a different decision. Westwood submitted that rather than look for error in the costs assessor’s determination, it was necessary for the review panel to undertake the same exercise as the costs assessor had undertaken and make its own determination. The reasons of the review panel disclosed that it had failed to discharge its statutory function, instead misapprehending its task as accepting or rejecting submissions about what the costs assessor had done.

37. In support of its submissions on this ground of appeal, Westwood relied on the following statement of the Court in Wilson v Mirus Australia Pty Ltd [2024] NSWCA 111 (“Wilson”) at [27]:

“… Thus, a review panel is no more and no less than two cost assessors; the powers and functions of costs assessors are set out in terms relating to the conduct of costs assessments, and it is to be expected that the same functions would, as s 85 indicates, apply to both exercises.”

38. In its written submissions, Westwood noted that although it had referred to this passage in its submissions to the review panel, the review panel’s reasons made no mention of it. Westwood described the omission as regrettable in circumstances where, in its submission, the decision in Wilson had superseded the Court of Appeal’s earlier decision in Wende.

39. It is the case that Wende was relevantly concerned with s 375 of the Legal Profession Act. However, the language of s 375 is not materially different to the language of s 85 of the Application Act, and Wende thus remains relevant when considering the functions of the review panel under the latter. Westwood’s counsel did not seek to contend otherwise and relied on particular paragraphs in the reasons of Barrett JA, to which I will turn shortly.

40. I do not accept the submission that the passage of Wilson on which Westwood relied relevantly added to what was said in Wende about the functions of the review panel, let alone superseded anything in that decision. The Court in Wilson was considering an application for leave to appeal, which it ultimately refused. The proposed ground of appeal that the Court was addressing at [27] alleged that the primary judge erred in concluding that the review panel had the power to award the costs of the review assessment as between the parties to the assessment, a power that was “undoubtedly possessed by a costs assessor”: at [26]. In concluding that there was no basis to grant leave to appeal to review this aspect of the judgment, the Court observed at the beginning of [27] that the issue involved a straightforward question of statutory construction, “namely whether the functions conferred on the review panel pursuant to s 85(2) of the Application Act, included the functions identified in s 78 of that Act”.

41. The Court made the statement on which Westwood relied as part of its conclusion that the primary judge’s reasoning did not disclose reasonably arguable error and indeed was entirely consistent with the structure of Pt 7 of the Application Act. That statement cannot reasonably be read as saying anything about the broader approach to a review for which Westwood relied on it, let alone anything that superseded what was said in Wende.

42. Westwood submitted that in any event, Wende was not authority for the proposition that it was for the review applicant to demonstrate error in the determination of the costs assessor. Westwood acknowledged that the review panel had considered Wende, but submitted that the paragraphs from the judgment that the review panel extracted in its reasons omitted a critical paragraph.

43. The Court of Appeal in Wende was considering an application for judicial review of a decision of the District Court, dismissing an appeal from a review panel determination which had, in turn, affirmed a costs assessor’s determination of party/party costs: at [103]. One of the grounds of review was that the primary judge had erred in law in holding that the review panel had acted in accordance with s 375 of the Legal Profession Act: at [116]. Beazley P and Basten JA respectively agreed with the reasons of Barrett JA on this ground: at [1], [89].

44. The applicants in Wende submitted that the task of the review panel under s 375 of the Legal Profession Act was to start afresh and re-determine, for the first time, all components of the bill of costs which were the subject of the application for review under s 373 of that Act. Without taking issue with the primary judge’s finding that the review panel was permitted to adopt the assessor’s reasons if they were self-explanatory and had objective merit, the applicants contended, as summarised in the last sentence of [154], that “where the assessor’s reasons on a particular issue are questioned or challenged, it is incumbent upon the review panel to examine that issue afresh and come to (and express) an independent decision of its own”.

45. In response to those submissions, Barrett JA stated:

“[155] The function of a review panel under s 375(1) is to ‘review the determination of the costs assessor’. Under s 375(2), a review panel has an obligation to ‘determine the application, subject to this Subdivision and the regulations, in the manner that a costs assessor would be required to determine an application for costs assessment’. The reference to ‘the application’ is a reference to ‘the application for assessment’, that is, the application that was before the costs assessor in the first instance. The review panel must therefore deal with the original application for assessment and ultimately make its own determination of that application as if the panel were a costs assessor.

[156] Crucially, the panel’s obligation under s 375(2) to act in the manner that a costs assessor would be required to act in relation to an application for costs assessment is, by the opening words of s 375(2), imposed ‘[f]or the purposes of’ s 375(1), that is, the purpose of making a ‘review’ of the assessor’s determination. The panel’s duty to emulate a costs assessor therefore applies only to the extent that the paramount purpose of making a ‘review’ of the assessor’s determination will thereby be served. The effect of s 375(2) is to put a review panel performing the review function in ‘the same position as the assessor himself’ (to adapt words used by Kitto J in Mobil Oil Australia Pty Ltd v Commissioner of Taxation (1963) 113 CLR 475 at 502 about similarly worded taxation legislation) — but only insofar as that equivalent position needs to be occupied in order to allow the ‘review’ to be made.”

(Emphasis added.)

46. Westwood submitted that the last sentence of [155] made it plain that what the costs assessor and the review panel do is look at the material before the costs assessor and come up with a number that they believe is a fair and reasonable amount. In Westwood’s submission, that was a patently different exercise from one that involved searching for demonstrable error. However, the last sentence of [155] cannot be read in isolation from [156], or from his Honour’s subsequent reasons. What is apparent from [156] is that the review panel’s “duty to emulate a costs assessor … applies only to the extent that the paramount purpose of making a ‘review’ of the assessor’s determination will thereby be served” (emphasis added). Although in the beginning of [156], Barrett JA emphasised the opening words of s 375(2) of the Legal Profession Act, the absence of those words from s 85(2) of the Application Act do not undermine the continuing force of what his Honour went on to say, having regard to the terms which do appear in s 85(2) of the Application Act. Counsel for Westwood submitted at the hearing that the approach to the review panel has not changed under the current legislation.

47. As Barrett JA went on to acknowledge in [157] of Wende, the meaning of “review” thus arose for consideration. After referring to a number of authorities to the effect that the word did not have a pre-determined meaning and that its meaning was context-dependent, his Honour stated:

“[158] In the present context, it is the task of a review panel to review an assessment that has been made necessary because the person ordered to pay costs and the person to whom they are payable have not agreed the amount. One person wishes to see the assessor determine a large amount, the other a small amount. Each is able to present a case to the assessor. While the circumstances are not adversarial in any strict sense, the panel must consider competing contentions and make up its mind in the light of them.

[159] There is no statutory requirement that an applicant for review articulate objections to the original assessment or state what are often described as ‘grounds of review’. Under s 373, an application for review made by a party dissatisfied with an assessor’s determination must set out the assessor’s determination and, as required by cl 132 of the Legal Profession Regulation, be accompanied by an affidavit of service (having regard to the s 373(5) requirement that notice of the application for review be given to the other parties to the assessment), a copy of all of the costs assessor’s certificates of determination relating to the assessment and a copy of the assessor’s statement of reasons.

[160] Under cl 131 of the Regulation, the application for review must be in the approved form. The approved form (Form 4) contemplates that the grounds for making the application for review will accompany the application.

[161] The function of the review panel will vary according to the way in which the applicant for review chooses to frame the application. If specific objections are stated, the panel will, of necessity, deal with them. If no objections are stated and the implicitly indicated desire of the applicant is merely to have the review panel conduct a general review, no specific matters will call for attention. In either such case, however, the function of the review panel is, as stated in s 375(1), to ‘review the determination of the costs assessor’ and to decide whether the assessment should be affirmed or altered.

[162] Because the s 375(2) obligation to emulate a costs assessor is subordinate to the duty to ‘review’ arising from s 375(1), a review panel is not required to make a new assessment as if the original assessment had never been made. The starting point will generally be the original determination of the costs assessor. The review panel will take into account not only the material specified in s 375(3) but also the application for review made under s 373(1) and referred by the Manager, Costs Assessment to the review panel pursuant to s 374(1). That application must, for these purposes, be regarded as including the documents that accompany it in conformity with cl 132 of the Regulation. A panel does not exist (or, more precisely, is not ‘constituted’) unless and until the Manager, Costs Assessment ‘refers’ an application for review to it.

[163] Where the person making an application for review elects to raise particular objections, a review panel will be entitled to proceed on the basis that that person is, in all other respects, content with the original assessment. In such a case, the panel will adequately perform its function by dealing with the expressed grounds of objection and giving each of them separate and distinct consideration.”

48. The review panel extracted [158]-[163] of Wende in its reasons. Westwood submitted that the review panel omitted the most significant passage of this part of Barrett JA’s reasons, namely the last sentence of [155], and that the review panel approached the review on the erroneous basis that it needed to find error in the costs assessor’s determination before considering the matter afresh. This was clearest, in its submission, from the review panel’s view that a review was not an opportunity to run a case not made to the costs assessor (at [5]), and its summary, in [9], of what was sufficient to discharge its obligations, in particular [9(d)] (set out in [27] above).

49. I do not accept these submissions. It is apparent that when read as a whole, what the review panel did in [5] to [9] of its reasons was consistent with Barrett JA’s reasons in Wende. Westwood’s submissions to the contrary required reading paragraphs [5] and [9] of the review panel’s reasons divorced from their context. Although there was some superficial attraction to Westwood’s submission regarding [9(d)], when read fairly and with the balance of the paragraph, and in light of the preceding paragraphs and the extracted passage from Wende, the review panel was saying no more in (d) than that, after considering the grounds of review and the submissions in relation thereto, its ultimate determination, consistently with the language of s 85(1) of the Application Act, would involve either affirming the costs assessor’s decision or setting it aside and making a determination in its place.

50. Westwood also took issue with the review panel’s approach to each ground of review, with the review panel ultimately concluding that it did not accept Westwood’s submissions and that the grounds of review therefore failed. As the Club submitted, that the review panel considered the grounds of review and the submissions that Westwood had made in respect of them (noting that in the case of the general grounds 1 and 2, Westwood had referred back to the submissions it advanced to the costs assessor), indicated that the review panel was considering the arguments that Westwood made, before ultimately rejecting them.

51. In relation to review grounds 3 and 4, Westwood submitted that the rates of Mr Petrucco and Mr Doria, to which the review panel referred in their determination, were not relevant to the grounds of review raised with the review panel and that this demonstrated error on its part. Any error, assuming for present purposes that there be one, may fall within the scope of appeal grounds 2 and 3, but would not fall within the purview of appeal ground 1, which was that the review panel misapprehended its function.

52. That the review panel, in its reasons, rejected Westwood’s grounds of review by reference to what the costs assessor had done was also not demonstrative of the error for which Westwood contended. In dismissing a complaint about the adequacy of the review panel’s reasons in Wende, being one of the complaints in respect of which Barrett JA made the observations I have set out above, his Honour stated that “[t]here is no basis for any argument that a review panel which considers to be right both the decision under review and the reasons given for it must formulate its own paraphrase of those reasons”: at [176]. His Honour further stated at [179]:

“In the present case, the review panel’s function was to ‘review’ the assessor’s determination. For the purpose of performing that function, the panel was required to bring to bear experience and specialised knowledge in relation to matters already decided by the assessor for reasons stated by the assessor. It was quite sufficient for the review panel to say, in effect, that it shared and endorsed reasons for conclusions stated by the assessor that the panel, in turn, considered to be correct.”

53. I reject ground 1.

Grounds 2 and 3: the review panel’s consideration of whether duplication of costs on the part of multiple solicitors and counsel was fair and reasonable

54. Westwood addressed appeal grounds 2 and 3 together. It commenced its submissions with ss 34 and 35 of the Uniform Law, submitting that those provisions imposed peculiar responsibilities on a principal of a law practice to ensure that the legal services provided by the law practice are provided in accordance with the Uniform Law and other professional obligations. It next submitted that ss 172 and 173 of the Uniform Law set out two complementary professional obligations about the cost of legal services, with s 172 imposing obligations on a law practice in relation to the charging of legal costs and s 173 prohibiting a law practice from acting in a way that unnecessarily results in increased legal costs payable by a client. Westwood submitted that, taken together, these four provisions of the Uniform Law operated to lay “the foundation of the legal principles in assessing the amount of legal costs that are fair and reasonable”, relevantly recognising that:

“(a) different lawyers have different functions

(b) different lawyers differ in skill, experience, specialisation, and seniority

(c) there are a series of factors in s 172(2) to which ‘regard must be had’ when assessing the amount of legal costs that are fair and reasonable, and

(d) where work could reasonably have been performed by a practitioner of lower cost, the engagement of a more expensive practitioner may render the resulting costs unfair or unreasonable, and therefore unrecoverable to that extent (especially under s 173).”

55. Westwood submitted that the appropriate question in circumstances where multiple solicitors and counsel might perform the same or similar work is who should do the work in order for the amount of legal costs to be fair and reasonable. Relatedly, Westwood submitted, in circumstances where a lawyer may do work themselves or assign it to another lawyer, it was necessary to consider what it means to assign work so that the amount of costs are fair and reasonable. Referring to this concept as “assigning work effectively”, Westwood submitted that it “effectively requires a balance between empowering support staff (delegation), ensuring accountability (supervision), and maintaining high standards (quality control)”, each of which was further elucidated in the ensuing paragraphs of its written submissions. Westwood next submitted that, so understood, “assigning work effectively” had a proper place in the assessment of ordered costs, arising out of ss 34, 35, 172 and 173.

56. Westwood cited certain cases involving liquidator costs in support of this concept of “assigning work effectively” necessarily involving some appropriate duplication: Application of Crouch [2005] NSWSC 1122 at [5]; Zafra Legal Pty Ltd v Harris (Liquidator) (No 3) [2021] FCA 441 at [130]; cf, in the context of an application for security for costs, Armstrong Scalisi Holdings Pty Ltd v Piscopo (Trustee), in the matter of Collins [2017] FCA 423 at [20]-[28]. However, it submitted that “when 2 Australian lawyers are equally competent to do something, then the work should be done once only, absent good reason”, for which it cited the passage from Young AJ’s decision in Gibson that I have extracted at [11] above.

57. By those submissions, Westwood sought to elevate matters of evaluative judgment to the level of legal principle, in a manner that involved a gloss on the statutory task of a costs assessor. Pursuant to s 76(1) of the Application Act, which I have extracted at [16] above, the task of the costs assessor is to determine “what is a fair and reasonable amount of costs for the work concerned”. Section 76(2) of the Application Act provides that the assessor, in making this determination, may have regard to the factors in s 172(1) and s 172(2) of the Uniform Law “(as if that section also applie**s to ordered costs and so applies with any necessary modifications)” (emphasis added). The clear implication of the parenthetical comment is that s 172 of the Uniform Law does not otherwise apply in the assessment of ordered costs (noting that the section also contains subss (3) and (4), which are not referred to in s 76(2) of the Application Act). That s 172 would not otherwise apply is consistent with Pt 4.3 of the Uniform Law addressing a law practice’s obligations in relation to solicitor-client costs, the objective of the Part being set out in s 169:

169 Objectives

The objectives of this Part are—

(a) to ensure that clients of law practices are able to make informed choices about their legal options and the costs associated with pursuing those options; and

(b) to provide that law practices must not charge more than fair and reasonable amounts for legal costs; and

(c) to provide a framework for assessment of legal costs.

58. The Club submitted that the other provisions on which Westwood relied, namely, ss 34, 35 and 173 of the Uniform Law, were not relevant to the assessment of ordered costs. It relied for this proposition on a decision of Elkaim AJ in Frisken v Bitar Pty Ltd (No 2) [2026] NSWSC 310, although it accepted that this decision was not binding in circumstances where it was conceded in that case that the only provisions of Pt 4.3 of the Uniform Law relevant to costs assessment were those in Div 7 and those that were otherwise incorporated by express reference: at [54]-[55]. Ultimately, the matter is one of statutory construction, and the negative implication in the parenthetical comment in s 76(2) of the Application Act is readily apparent.

59. In any event, as a practical matter, in circumstances where, as Westwood submitted, the prohibition in s 173 of the Uniform Law is complementary with the obligation in s 172, it adds little, if anything, to the assessment of whether costs are fair and reasonable. The factors in s 172(2), to which the costs assessor “may” have regard for the purposes of s 76(2) of the Application Act (as compared to the mandatory nature of s 172(2) of the Uniform Law when it applies to a law practice charging legal costs), include the type of considerations that Westwood sought to raise to the level of legal principle. Those considerations include: the level of complexity, novelty or difficulty of the issues (s 172(2)(b)), the labour and responsibility involved (s 172(2)(c)), the circumstances in acting on the matter, including: urgency, time spent, and the number and importance of any documents involved (s 172(2)(d)), and the quality of the work done (s 172(2)(e)). The task of assessment is classically evaluative and is vested in persons who, as Basten JA observed in Gazecki, “are expected to ensure consistency of approach”: at [43] (see [34] above).

60. Insofar as Westwood relied on the decision of Young AJ in Gibson as stating a matter of legal principle, I do not accept that is the case either. His Honour was there considering an application for a gross sum costs order and was thus engaging with submissions made about specific items in a bill of costs. Two items claimed by a partner of the firm and a solicitor were for “considering strategy”. In relation to those two items, Young AJ stated:

“[20] I am not too sure what this really means. However, one must remember what Hodgson JA said in Lawrence v Nikolaidis & Co (2003) 57 NSWLR 355 (CA) at 372-3 that costs are not allowed solicitors in relation to matters such as collation of documents for time spent in refreshing recollection or making notes and like matters. I would add that costs are also not payable by the client for lawyers improving their own legal education. Although it is reasonable for researching the law in some of its more difficult aspects barristers and solicitors are expected to know the basic law and cannot charge the client for spending a couple of hours refreshing their recollection of it or learning it for the first time. Again, when there are two people in a firm solicitors cannot charge for both persons reading counsel’s advice etcetera unless there is a very good reason for two persons being involved such as for instance where one solicitor or clerk is dealing with the intellectual property side of a case and the other with the presentation of evidence.

[21] On the basis that the costs agreement was void, I have to be satisfied that the costs would be fair and reasonable or at least fair and reasonable in the eyes of a costs assessor. Planning strategy in the early stages of a Federal Court proceeding does not prima facie amount to something for which the client should pay. The client should not be paying for the internal intellectual processes of the solicitor. He or she will pay when those processes are disclosed in a communication to which the client will either agree or disagree. The mere fact that a solicitor plans a strategy is not in itself a benefit to the client unless that is communicated.”

61. The sentence on which Westwood relied, which appears at the end of [20] in the above extract, does not constitute a statement of legal principle, still less one that requires a costs applicant to articulate a reason every time work involves more than one solicitor, or solicitor and counsel. Whether the amount of costs claimed for more than one person is fair and reasonable is quintessentially an evaluative matter that is well within the realm of experience of a costs assessor, or a review panel which, as the Court stated in Wilson at [27], “is no more and no less than two costs assessors”.

62. Westwood submitted that it had put to the costs assessor that the Club had provided no reasons for duplication. It submitted that the costs assessor did not engage with the substance of Westwood’s objections, and that the review panel’s reasons on this issue comprised what Westwood described as two “platitudes”, which were not in dispute and did not resolve the controversy. Ultimately, Westwood submitted:

“What is missing is a dollar figure whose calculation can be understood and verified. This requires factual findings, statements of legal principle, and reasons applying the law to the facts that assesses the amount (note the definite article) of legal costs that are fair and reasonable.”

(Emphasis in original.)

63. That complaint is essentially one about the adequacy of the reasons of the costs assessor and the review panel. Having regard to the way the grounds of appeal were articulated, and in circumstances where: (i) the costs assessor went through every item on the bill of costs and provided a reason for her decision on each (unsurprisingly brief given the bill ran to 624 items), including a number of occasions in which she accepted Westwood’s submission as to duplication and rejected or reduced the claimed amount, and (ii) the review panel considered and dealt with the issue of duplication in its reasons, I do not accept those submissions.

64. I reject grounds 2 and 3.

Conclusion

65. Westwood’s Summons must be dismissed. The Club sought its costs of the proceedings. There is no discernible basis for departing from the ordinary rule that costs follow the event. Accordingly, I make the following order:

66. The Summons is dismissed with costs.

**********