Supreme Court New South Wales Medium Neutral Citation: Storey v Commissioner of the New South Wales Police Force (No 3) [2021] NSWSC 1101 Hearing dates: 22 June 2021; written submissions closed 15 July 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Common Law Before: Wright J Decision: (1) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay $10,776.00 in respect of the costs ordered to be paid by order 3 made by Davies J on 27 August 2020. (2) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay $45,665.00 in respect of the costs ordered to be paid by order 5 made by Wright J on 16 October 2020. (3) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first defendant's costs of this application for gross sum costs orders in the sum of $6,000.00. (4) Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and upon the ground referred to in s 8(1)(a) and (e), until 21 June 2022 or earlier order of the Court, the following information is not to be disclosed, except to the parties to these proceedings: (a) the hourly rate for each lawyer (excluding counsel) and the amount of time recorded in hours for each lawyer (excluding counsel) in total and in respect of each individual narration in each of the tax invoices in Exhibit VA-1 and Exhibit B; (b) the hourly rates of the partner and the 3rd year solicitor recorded in paragraph 103 of the plaintiff's submissions appearing at page 107 of Exhibit A; and (c) the time recorded in hours in each of the narrations extracted in the three bullet points in the email dated 4 February 2021 appearing at page 62 of Exhibit A. (5) Order 4 applies throughout the Commonwealth of Australia. (6) The parties have liberty to apply in respect of order 4 on 2 days' notice. Catchwords: COSTS — party/party — gross sum costs orders — applicable principles – bases of quantification of gross sum costs orders — factors relevant to the court's discretion when quantifying costs for purposes of gross sum costs orders CIVIL PROCEDURE — suppression and non-publication — proper administration of justice required disclosure of solicitors' hourly rates — solicitors' hourly rates confidential and commercially sensitive in context of an ongoing tender process for inclusion on legal services panel — suppression order appropriate until tender process completed Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, s 98 Court Suppression and Non-publication Orders Act 2010 (NSW), ss 3, 6-8, 10-12 Federal Court of Australia Act 1976 (Cth), s 50 Legal Profession Uniform Law Application Act 2014 (NSW), Pt 7 Police Act 1990 (NSW), ss 181E and 181D Uniform Civil Procedure Rules 2005 (NSW), r 59.7(4) Cases Cited: Attorney-General v Mayas Pty Ltd (1988) 14 NSWLR 342 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Hadid v Lenfest Communications Inc [2000] FCA 628 Hamod v State of New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429 Storey v Commissioner of the New South Wales Police Force [2020] NSWSC 1135 Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 Category: Costs Parties: Justin Storey (Plaintiff) Commissioner of the New South Wales Police Force (First Defendant) Industrial Relations Commission of New South Wales (Second Defendant) Representation: In person (Plaintiff) Counsel: J Darams (First Defendant) Submitting appearance (Second Defendant) Solicitors: Maddocks (First Defendant) File Number(s): 2020/62686 Publication restriction: Note: Orders 4 and 5 – suppression order to apply throughout the Commonwealth until 21 June 2022 or earlier order of the Court Judgment 1. By notice of motion filed on 30 October 2020, the first defendant, the Commissioner of the New South Wales Police Force, sought inter alia gross sum costs orders in relation to costs in these proceedings as well as related orders. The plaintiff, Mr Storey, opposed the application. 2. For the reasons set out below, I have decided that gross sum costs orders should be made in this case and that an order should be made under the Court Suppression and Non-publication Orders Act 2010 (NSW) (CSNPO Act) in relation to the hourly rates charged by the solicitors. Background 1. On 26 February 2020, Mr Storey, representing himself, commenced proceedings in this Court seeking judicial review of decisions of the Industrial Relations Commission of New South Wales (IRC). 2. On 29 April 2020, an amended summons was filed which expanded the orders sought and identified, for the first time, the grounds upon which he was seeking relief. The Commissioner of Police was named as the first defendant and the IRC as the second defendant. The IRC entered a submitting appearance. 3. In these proceedings, Mr Storey sought to challenge: 1. the order of Commissioner Constant of the IRC made on 20 August 2019 dismissing the plaintiff's unfair dismissal application made under s 181E of the Police Act 1990 (NSW); 2. the order of the Full Bench of the IRC made on 22 November 2019 refusing leave to appeal from Commissioner Constant's decision; and 3. the order of the Police Commissioner dated 6 April 2018 removing the plaintiff from the police force under s 181D of the Police Act. (It was this removal order which led to the unfair dismissal proceedings in the IRC.) 1. On 25 May 2020, these proceedings were listed for final hearing on 2 September 2020. 2. On 17 July 2020 the plaintiff filed a notice of motion seeking leave under r 59.7(4) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to administer interrogatories to the Police Commissioner and seeking an order that those interrogatories be answered. 3. On 20 August 2020, the interrogatories application came on for hearing before Davies J. At the outset of that hearing, Mr Storey sought, by way of a notice of motion dated 18 August 2020, an adjournment of that application and an adjournment of the proceedings generally so that he could obtain legal assistance. On that day, Davies J made orders as follows: "1. Plaintiff's application to vacate hearing date for Motions listed on 20 August 2020 and the substantive hearing is refused. Plaintiff's notice of motion dated 18 August 2020 is dismissed. 2. Plaintiff's notice of motion dated 17 July 2020 is dismissed. 3. Plaintiff to pay the First Defendant's costs of the hearing of the notice of motion dated 17 July 2020." 1. On 27 August 2020, Davies J published his reasons for making those orders: Storey v Commissioner of the New South Wales Police Force [2020] NSWSC 1135. 2. On 2 September 2020, the substantive proceedings were heard before me. At the beginning of that hearing, each of Mr Storey and the Police Commissioner made applications by notices of motion filed in court on that day. I dealt with those applications at that time and refused the plaintiff's application and upheld the Police Commissioner's application. Otherwise, I reserved my decision on the substantive application and my reasons in relation to the two motions. 3. On 21 September 2020, Basten JA in the Court of Appeal refused Mr Storey's application for a stay of the proceedings, pending determination of his application for leave to appeal from the decision of Davies J not to permit him to administer interrogatories. 4. On 16 October 2020, I delivered my reasons for judgment and made orders: Storey v Commissioner of the New South Wales Police Force (No 2) [2020] NSWSC 1429. The orders on that occasion were in the following terms: "(1) The time for commencing these proceedings is extended to 26 February 2020. (2) The plaintiff's notice of motion filed on 2 September 2020 is dismissed. (3) The plaintiff's notice to produce served on the first defendant's solicitors on 21 August 2020 is set aside [as sought in the Police Commissioner's motion]. (4) The amended summons filed on 29 April 2020 is dismissed. (5) The plaintiff is to pay the first defendant's costs, including reserved costs, as agreed or assessed." 1. It was not in dispute that neither the costs referred to in order 3 made by Davies J on 27 August 2020 nor the costs referred to in order 5 made by me on 16 October 2020 has yet been referred for assessment. 2. Further, although the evidence was meagre and somewhat unclear, I am satisfied that Mr Storey has quite limited means and would have difficulty paying any significant amount by way of costs, whether the amount was quantified by assessment or by way of a gross sum costs order. In making this finding, I take into account Mr Storey's evidence that he was able to fund a costs assessment, during the period from December 2019 to August 2020, in relation to his solicitor and own client costs incurred in bringing proceedings in the IRC. 3. I also note that Mr Storey provided information that the median income for the Australian population in August 2020 was $1,150.00 per week. The Commissioner's notice of motion 1. In his application for gross sum costs orders, the Police Commissioner sought orders in the following terms: "1. An order that order 5 in the judgment of Justice Wright in Storey v The Commissioner of the New South Wales Police Force (No. 2) [2020] NSWSC 1429 … be set aside pursuant to rule 36.16(1) of the Uniform Civil Procedure Rules 2005 (NSW). 2. An order that Exhibit Folder VA-1 to the affidavit of Vanessa Louise Andersen sworn 30 October 2020 remain confidential and: a. be subject to a suppression order under the Court Suppression and Non-publication Orders Act 2010 (NSW); and b. only be provided to the Plaintiff upon the provision by him of a confidentiality undertaking in terms acceptable to the First Defendant. 3. An order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) that the Plaintiff pay the First Defendant: a. the gross sum of $45,665.00 for the costs incurred by the First Defendant in the proceedings Storey v The Commissioner of the New South Wales Police Force (No. 2) [2020] NSWSC 1429 …; and b. the gross sum of $10,776.00 for the costs incurred by the First Defendant in the proceedings of Storey v The Commissioner of the New South Wales Police Force [2020] NSWSC 1135 …. 4. In the alternative, an order that the Plaintiff pays the First Defendant's costs in the proceedings of Storey v The Commissioner of the New South Wales Police Force (No. 2) [2020] NSWSC 1429 … and that such costs be: a. assessed on an ordinary basis up to and including 10 July 2020; and b. assessed on an indemnity basis on and from 11 July 2020. 5. An order that the Plaintiff pays the First Defendant the gross sum of $6,000.00 for the costs of this Motion. 6. Any further order that the Court considers appropriate." 1. In summary, the substance of the Police Commissioner's application was that: 1. there should be gross sum costs orders that Mr Storey pay: 1. $10,776.00 in respect of the costs referred to in order 3 made by Davies J on 27 August 2020; 2. $45,665.00 in respect of the costs referred to in order 5 made by me on 16 October 2020; 3. $6,000.00 in respect of the costs of the application for the lump sum costs orders itself; and 1. there should be a suppression order to protect the commercially sensitive information in relation to the hourly rates charged by the solicitors instructed by the Police Commissioner. Gross sum costs orders 1. Section 98 of the Civil Procedure Act 2005 (NSW) governs the Court's powers as to costs generally. That section relevantly provides: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act— (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. … (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. (4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to— … (c) a specified gross sum instead of assessed costs, or ... 1. Under s 98(4)(c), a specified gross sum may be ordered to be paid "instead of assessed costs". The only precondition for the making of such an order is that the costs in question have not been referred for assessment. None of the costs in relation to which the Police Commissioner seeks a gross sum order has been referred for assessment. Accordingly, the Court's power to make a gross sum costs order is in each case enlivened. 2. At this point, it is appropriate to consider the first order sought in the Police Commissioner's motion, namely that order 5 made on 16 October 2020 be set aside. This was presumably sought because it was perceived that the description of the costs in that order as "costs as agreed or assessed" was inconsistent with an order for a gross sum costs order. In my view, it is not necessary to set aside order 5 before a gross sum costs order can be made in respect of the costs referred to in that order. The description "costs as agreed or assessed", in order 5 made on 16 October 2020, indicates that in the absence of agreement the costs payable will be those assessed in accordance with Pt 7 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Uniform Law). Costs which are to be so assessed but which have not yet been referred for assessment fall within the costs referred to in s 98(4). The introductory words of that subsection, "at any time before costs are referred for assessment", necessarily apply in respect of costs that may be referred for assessment under that Part of the Uniform Law. It follows from this that the terms of order 5 made on 16 October 2020 are not inconsistent with the making of a gross sum costs order under s 98(4)(c). Accordingly, it is not necessary to set aside order 5 made on 16 October 2020 before the gross sum costs order sought in respect of those costs could be made. 3. The principles that apply in relation to whether a gross sum costs order should be made are well established. They relevantly include: 1. The power to make a gross sum costs order is governed by the obligation of the Court to give effect to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and to ensure that the issues between the parties are resolved in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute, as required by Pt 6 of the Civil Procedure Act: James v Australia and New Zealand Banking Group Ltd [2017] NSWCA 84 (James) at [3] (Basten JA, Simpson JA agreeing). 2. Since costs disputes provide an opportunity for ongoing litigation about "non-essential issues", they should be resolved with as little technicality and expense as reasonably practicable: James at [3]. 3. The circumstances where gross sum costs orders may be appropriate include: where the assessment of costs would be protracted and expensive; where the party liable to pay the costs may not be able to pay the amount assessed; and, where the costs incurred have been disproportionate to the result of the proceedings: Hamod v State of New South Wales [2011] NSWCA 375 (Hamod) at [817] and [818] (Beazley JA, Giles and Whealy JJA agreeing). 4. The discretion to order a gross sum costs order is only to be exercised when the Court considers that it can do so fairly between the parties and that includes having sufficient confidence in arriving at an appropriate sum on the materials available: Hamod at [813]; Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at [22] (Giles JA). In particular, any sum ordered to be paid pursuant to s 98(4)(c) of the Civil Procedure Act should be based on an informed assessment of the actual costs incurred having regard to the available information and the approach taken to estimate the costs should be fair, logical and reasonable: Hamod at [815]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 (Beach Petroleum) at 123 (Von Doussa J). 5. In the exercise of its discretion under s 98(4)(c), the Court is not required to undertake a detailed examination of the kind that would be appropriate to a formal costs assessment: Hamod at [819]. The appropriate approach has been described as applying a "broad brush" in making gross sum costs orders: Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 (Zepinic) at [31] (Basten, Gleeson and Leeming JJA); Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] (Lehane J). 6. When considering the amount of a gross sum costs order, the Court will usually, if not invariably, apply an impressionistic discount to amounts claimed by way of solicitor and own client costs: Zepinic at [38]; Hamod at [820]. This reflects not only the usual difference between party and party costs and solicitor and own client costs but also the fact that, when a lump sum costs order is made, the party entitled to costs is spared the cost, delay, uncertainty and other contingencies of the assessment process: Hamod at [820]. 7. Nonetheless, the Court must be astute to prevent prejudice to the unsuccessful party by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary "fail safe" discount on the cost estimates submitted to the Court: Beach Petroleum at 123. 1. There was no dispute that the Court had power to make the gross sum costs orders in the present case. The gross sum costs orders sought Costs of the application for interrogatories 1. The first gross sum costs order sought relates to the motion for leave to administer interrogatories, filed on 17 July 2020 and heard on 20 August 2020. As noted above, Mr Storey was ordered to pay the Police Commissioner's costs of this motion. 2. The Commissioner relied on the affidavit of Ms Vanessa Louise Andersen sworn 30 October 2020 which gave a general outline of the proceedings and some of the correspondence between the parties. More specifically, at par 33(b) of her affidavit, Ms Andersen set out a summary of the costs incurred in relation to the interrogatories notice of motion as "approximately": 1. $14,496.25 (including GST) in solicitors' fees; and 2. $3,465.00 (including GST) in counsel's fees. 1. This totalled "approximately" $17,961.25. The amount claimed by way of gross sum costs orders in the notice of motion in respect of the interrogatories notion of motion was $10,776.00. Having regard to these figures, Ms Andersen said that the Commissioner sought approximately 60% of the actual fees incurred by him in relation to the interrogatories motion. This is arithmetically correct. 2. The invoices relating these fees were exhibited to Ms Andersen's affidavit. 3. During the hearing, the Court queried why these fees were qualified by the description "approximately". The reason was said to be that the invoices issued by the solicitors and counsel did not separate the work done and fees claimed by reference to whether they related to the interrogatories notice of motion or the substantive proceedings or some other aspect of the proceedings, such as Mr Storey's application for leave to appeal from Davies J's orders and the application for a stay in the Court of Appeal. Accordingly, in order to break down the amounts claimed into those related to each of the relevant costs orders, the items in the invoices had to be allocated between work done in relation to the interrogatories motion, work done in the substantive proceedings and other work not the subject of the present application for gross sum costs orders. Quite properly, Ms Andersen was of the view that this made the amounts specified "approximate". 4. In order to provide more definite figures, if possible, the Commissioner sought leave to file a further document, after the hearing, setting out more precisely which items of work should be allocated to each relevant costs order. Leave to do so was granted and a document headed "Explanatory Schedule" was provided on 25 June 2021. Mr Storey was permitted until 15 July 2021 to file any submissions in reply on that topic, which he did. 5. I accept that the invoices, as analysed in the Explanatory Schedule, established that the solicitor and own client fees incurred for items of work which should be attributed to the preparation for and hearing of the motion for interrogatories (and the other applications heard on 20 August 2020 by Davies J) totalled (including GST) $14,496.24 [1] in solicitors' fees and $3,465.00 in counsel's fees. 6. Thus, the total solicitor and own client fees attributable to the costs order made by Davies J on 20 August 2020 was $17,961.24. 7. By way of gross sum costs order, the Commissioner sought $10,776.00, which is 60% of $17,961.24 rounded down to the nearest dollar. Costs of the summons for judicial review 1. On substantially the same basis, I accept that the total solicitor and own client fees charged by the solicitors for the Commissioner in relation to the summons for judicial review, which related to the costs covered by order 5 made on 16 October 2020, were: 1. $61,023.45 (including GST) in solicitors' fees; and 2. $15,097.50 (including GST) in counsel's fees. 1. The total solicitor and own client fees attributable to the costs order made on 16 October 2020 was, therefore, $76,120.95. 2. By way of gross sum costs order, the Commissioner sought $45,665.00, which is slightly less than 60% of $76,120.95. Did information provided as to costs constitute an adequate foundation for determining the amount of the gross sum costs orders? 1. Mr Storey opposed the making of these gross sum costs orders on a number of bases. One was that the Court was not able safely or fairly to arrive at an appropriate sum on the available materials and "the services of a costs assessor are required to determine the appropriate sum". This submission should be rejected. The Court is aware, in general terms, of what was involved in each of the application for interrogatories and the summons for judicial review and has before it detailed invoices setting out the work that was undertaken by solicitors and counsel in relation to each aspect of the present matter. The Court also has experience of the nature and extent of the work involved in preparing for and hearing such proceedings and is also aware, in general terms, of the typical charge out rates of solicitors and of counsel, of various levels of experience, as well as the typical effective discounts applied to solicitor and own client costs when costs are being assessed on the ordinary party and party basis. In these circumstances, there is sufficient material to permit the Court safely and fairly to consider and determine, on a broad brush basis, whether gross sum costs orders should be made and, if so, in what amounts in the present case. 2. Mr Storey also submitted in effect that in circumstances where the participation of the Commissioner "was limited entirely to written and oral submissions (with no witnesses, evidence or cross examination", it was not rational to accept the time claimed to have been spent in preparation and presentation of the matter, either with or without an effective discount of 60%. This contention proceeded on a misunderstanding. Although there was no cross examination of witnesses, there were witnesses and there was evidence. The evidence in these proceedings was given by way of affidavit. When an affidavit is noted in Court as having been read, this indicates that it has been received into evidence. This process usually takes but little time. If the evidence were required to be led orally by way of examination in chief, however, it could take many hours, if not days in some cases. The saving of time by having evidence given by way of affidavit is achieved, in part, as a result of the time taken out of court to prepare the affidavit. This involves considering the issues to be addressed in the evidence, taking instructions, reviewing documents, drafting the affidavit and having it sworn or affirmed, before serving it on the other side. Similarly, reliance on written submissions usually makes the oral hearing more efficient, or at least, shorter. This, however, requires a substantial amount of work prior to the hearing reviewing in detail the evidence and other relevant material, considering the relevant legal principles and drafting the written submissions. A bald comparison of the short time actually spent during the oral hearing and the very much longer time spent by solicitors and counsel in preparation does not justify the conclusion that the amount of time for which the client was actually charged by way of solicitor and own client costs is unreasonable, unjustified or an unsound basis for making a gross sum costs order in this case. 3. Mr Storey's submissions were further developed along the lines that, if the time claimed and thus the amount claimed were inflated, an attempt to apply a broad discount would not result in an actual discount "because a discount on an inflated figure is no discount at all". As a matter of logic, the latter proposition appears to be wrong. In any event, given the nature of the proceedings, the issues raised, the documentation and correspondence involved, the length and detail of the reasons for the decisions which were challenged on judicial review, the evidence prepared and relied upon and the written and oral submissions made, it did not appear to me that the time charged was out of proportion to, and not reflective of, the work legitimately required to be done in order for the Commissioner properly to defend the judicial review proceedings and the application for interrogatories. The time charged was not in my view obviously inflated nor was the work "illusory", as Mr Storey contended. Consequently, I do not accept that, if a substantial discount is applied in the present case, it would be "no discount at all". 4. Further, the comparison between the amount charged by the Commissioner's solicitors by way of solicitor and own client fees and the "median income for the Australian population … in August 2020" is of no assistance. There is no relevant connection between those two figures which could provide a foundation for any sound inference for the purposes of this matter. 5. Mr Storey also made specific submissions concerning what he contended was duplication in relation to particular items in the solicitors' invoices. For example, he noted that on one day in March 2020 the second year solicitor was recorded as having spent half an hour "Considering documents and correspondence from Justin Storey" and on the same day the partner was recorded as having spent two fifths of an hour "Considering material provided by Mr Storey" and three tenths of an hour on "Further consideration of material filed by Mr Storey". It was submitted that this was essentially the same activity and thus there was unnecessary duplication. It was then said that this occurs a number of times throughout the bill of costs. Given the time spent and the extensive nature of the material provided by Mr Storey, there does not appear to be a sufficient basis for concluding that the entries demonstrated any unnecessary duplication of work, or any duplication at all. It is not unreasonable to have both a partner and a junior solicitor working on a matter and both need to be aware of the matters and issues raised by the other side. 6. Another example of duplication was said to be that on a day in October 2020, the partner spent four fifths of an hour "Considering decision of Wright J" and the second year solicitor spent 1.4 hours "Considering Wright J's decision". Since this was the day on which the judgment in the principal proceedings was handed down, the judgment was over 200 paragraphs in length and these are the only entries relating to considering the judgment, the time spent by the partner and the second year solicitor appears reasonable. It was necessary for the purposes of the matter that both of those lawyers understand the basis for the Court's decision. In the circumstances, it could not be inferred that this involved any unnecessary duplication. 7. Having reviewed other entries in the invoices which Mr Storey submitted were examples of unnecessary duplication, I am of the view that at most they involve similar descriptions of activities undertaken by the same or another lawyer. Those similarities of description do not establish that the work described was not reasonably necessary or that it was unnecessarily duplicative of other work done by the lawyer or work done by another lawyer. On a broad brush review of the detailed invoices, the amounts of time charged for the work as described did not appear to be generally excessive or unreasonable. Similarly, the itemised information provided with counsel's memoranda of fees did not suggest in any way that there had been any inflation or unnecessary duplication of work done. 8. Finally, the rates charged by solicitors and counsel are not, having regard to the general experience of the Court, excessive or unreasonable. Indeed, they appear quite modest for the seniority of the practitioners involved. 9. For these reasons, I do not accept Mr Storey's submissions. The itemised solicitor and own client costs, including counsel's fees, in my view provide a proper and adequate basis from which to determine, by the application of an appropriate discount, the amount of party and party costs which should be included in the gross sum costs orders. 10. The Commissioner has, by the amounts claimed, in effect accepted that a discount in the order of 40% on the solicitor and own client costs, and counsel's fees, would be appropriate in the present case. 11. The discount applied when determining a gross sum costs order reflects the fact that on an assessment of party and party costs on the ordinary basis, a party in whose favour costs have been ordered usually recovers less than its solicitor and own client costs. Experience teaches that often the amount assessed by way of party and party costs is about two thirds to three quarters of solicitor and own client costs. Furthermore, it is not unusual for counsel's fees not to be discounted to the same extent as solicitors' fees. 12. In addition, the discount to be applied for the purposes of a gross sum costs order may also recognise that there is a saving to the party in whose favour costs have been ordered by avoiding the expense and uncertainty of the assessment process. 13. In all the circumstances, to apply a discount in the order of 40% to the Commissioner's solicitor and own client costs and counsel's fees in this case is both appropriate and adequate in the circumstances. 14. For these reasons, I propose to order that: 1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay $10,776.00 in respect of the costs ordered to be paid under order 3 made by Davies J on 27 August 2020. 2. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay $45,665.00 in respect of the costs ordered to be paid under order 5 made by Wright J on 16 October 2020. Costs of the application for the gross sum costs orders 1. In addition to gross sum costs orders in relation to previous costs orders made in the proceedings, the Commissioner also sought a costs order in relation to application for gross sum costs orders itself. 2. Mr Storey opposed the making of the gross sum costs orders generally but has been unsuccessful in his opposition. In addition, there do not appear to be any reasons why costs should not follow the event in respect of the gross sum costs application. Accordingly, I propose to order that Mr Storey pay the costs of the gross sum costs applications. 3. In addition and in light of the appropriateness of making other gross sum costs orders in this matter, I consider it appropriate to make a gross sum costs order in relation to the gross sum costs order application itself. 4. The Commissioner has sought only $6,000.00 by way of a gross sum costs order in relation to the gross sum costs order application. 5. This application involved the preparation of the notice of motion, detailed affidavits and written submissions as well as oral submissions at a hearing which lasted for approximately half a day. In addition, the Commissioner was required to provide a supplementary explanatory schedule to confirm the accuracy of his claimed costs and his solicitors were also required to consider Mr Storey's additional submissions dated 15 July 2021 and filed by leave. The Commissioner was represented by counsel at the hearing, which was entirely appropriate. 6. Having regard to the charge out rates of the lawyers involved, which have been disclosed in the affidavit material, and the Court's experience of the time likely to have been taken properly to prepare and conduct the hearing of the application and the evidence of Ms Andersen, which I accept, as to the amount of solicitor and own client fees that have been billed and that are to be billed to the Commissioner, I am very comfortably satisfied that $6,000.00 is a just, fair and reasonable, not to say extremely modest, amount to order by way of a gross sum costs order in relation to the gross sum costs application. Suppression order 1. As noted above, the Commissioner also sought an order that Exhibit Folder VA-1 to the affidavit of Vanessa Louise Andersen sworn 30 October 2020 remain confidential and be subject to a suppression order under the CSNPO Act. This was later limited to seeking suppression of the hourly rates charged by the Commissioner's solicitors and information from which that could be deduced. 2. The CSNPO Act relevantly provides: 3 Definitions In this Act— … suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise). … 6 Safeguarding public interest in open justice In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. 7 Power to make orders A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of— … (b) information that comprises evidence, or information about evidence, given in proceedings before the court. 8 Grounds for making an order (1) A court may make a suppression order or non-publication order on one or more of the following grounds— (a) the order is necessary to prevent prejudice to the proper administration of justice, … (e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice. (2) A suppression order or non-publication order must specify the ground or grounds on which the order is made. ... 10 Interim orders (1) If an application is made to a court for a suppression order or non-publication order, the court may, without determining the merits of the application, make the order as an interim order to have effect, subject to revocation by the court, until the application is determined. (2) If an order is made as an interim order, the court must determine the application as a matter of urgency. 11 Where an order applies (1) A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order. (2) A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth. (3) However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made. 12 Duration of orders (1) A suppression order or non-publication order operates for the period decided by the court and specified in the order. (2) In deciding the period for which an order is to operate, the court is to ensure that the order operates for no longer than is reasonably necessary to achieve the purpose for which it is made. (3) The period for which an order operates may be specified by reference to a fixed or ascertainable period or by reference to the occurrence of a specified future event. 1. Mr Storey opposed the granting of a suppression order in relation to the Commissioner's solicitors' charge out rates. 2. In order to receive submissions and consider the matter, an interim suppression order, under s 10, was made at the hearing in the following terms: "That the evidence and submissions concerning the hourly rates charged by Maddocks in relation to this matter or any evidence or submissions from which those hourly rates may be deduced not be published or referred to publicly in these proceedings until the application under the Court Suppression & Non Publication Orders Act 2010 (NSW) is determined." 1. Mr Storey drew attention to various authorities, including Attorney-General v Mayas (1988) 14 NSWLR 342 at 347 and John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 142-143, which include statements of principle pre-dating the CSNPO Act emphasising the importance of the open, public administration of justice even where a person's business affairs will be affected or a party will be embarrassed by disclosure. He also referred to the High Court's comments in Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21, concerning the construction of s 50 of the Federal Court of Australia Act 1976 (Cth) as it then stood, at [31], that: "It is insufficient that the making or continuation of an order under s 50 appears to the Federal Court to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics." (Footnote omitted.) 1. He also contended that it had not been shown how the proposed suppression order was necessary to prevent prejudice to the proper administration of justice. Further and in any event, it was submitted that: "… if such an order were to be made, that it should be clarified that the I am not prevented from providing/disclosing such information in a legal capacity, for example to an Australian Lawyer or a court/tribunal, or for those entities to disclose/provide such information to myself or the defendant." 1. On the basis of the evidence of Ms Andersen, which I accept, it was established that the firm acting for the Commissioner in the present proceedings is involved in tendering, in competition with other law firms, to be awarded a position on a legal services panel of firms who may be retained by the Commissioner in future. I also accept that the Commissioner's solicitors' current charge out rates and any proposed tendered charge out rates are confidential and commercially sensitive in that the competing firms' tendered charge out rates are likely to be a significant factor in determining whether they are awarded positions on the panel. Disclosure of the charge out rates actually charged by the Commissioner's solicitors in the present matter is likely to give a competitive advantage to the solicitors' competitors in the current tender process and to damage the Commissioner's present solicitors' commercial position. 2. It is in the interests of justice and the proper administration of justice that such confidential and commercially sensitive information is provided to the Court in a case such as the present. If the Court cannot protect that confidential information from disclosure in appropriate cases while it remains commercially sensitive, the information may not be provided to the Court and, if this occurred, the interests of justice and the proper administration of justice would be adversely affected. 3. Also to be taken into account is the fact that, in a case such as the present, it is not necessary for the actual charge out rates to be disclosed in order to understand these reasons for judgment. Nor was their disclosure necessary in the course of the hearing in these proceedings which was conducted in public but subject to the interim suppression order. These considerations, together with the limited subject matter disclosure of which should be protected, mean that any infringement of the public interest in open justice is more limited than might otherwise be the case. 4. Furthermore in the present case, once the tender process is complete, the commercial sensitivity of the information will largely dissipate and the interests of justice will no longer tell in favour of continuation of non-disclosure. It is not certain, however, when the tender process will in fact be completed and Ms Andersen could not inform the Court what the likely completion date for the tender process might be. It seems unlikely, however, that the process would not be complete within 10 months. 5. In all the circumstances, I am satisfied, taking into account the primary objective of the administration of justice being to safeguard the public interest in open justice, that a suppression order in relation to the Commissioner's solicitors' current charge out rates, and other information from which those rates can be deduced, is necessary to prevent prejudice to the administration of justice, within s 8(1)(a), and that it is otherwise necessary in the public interest for the order to be made and that that public interest significantly outweighs the public interest in open justice, within s 8(1)(e). 6. Since Australian legal firms in many cases operate nationwide or in multiple States and Territories, it is necessary that any orders operate outside New South Wales in order to achieve the purpose for which the order is to be made. 7. Finally, the order should not operate for longer than is necessary. 8. Accordingly, I propose to order that: 1. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and upon the ground referred to in s 8(1)(a) and (e), until 21 June 2022 or earlier order of the Court, the following information is not to be disclosed, except to the parties to these proceedings: 1. the hourly rate for each lawyer (excluding counsel) and the amount of time recorded in hours for each lawyer (excluding counsel) in total and in respect of each individual narration in each of the tax invoices in Exhibit VA-1 and Exhibit B; 2. the hourly rates of the partner and the 3rd year solicitor recorded in paragraph 103 of the plaintiff's submissions appearing at page 107 of Exhibit A; and 3. the time recorded in hours in each of the narrations extracted in the three bullet points in the email dated 4 February 2021 appearing at page 62 of Exhibit A. 1. This order will apply throughout the Commonwealth of Australia. In case any issues arise in relation to this suppression order and the potential disclosure of the information referred to in the order, for example if Mr Storey wishes to disclose the information to legal advisers or to a court or tribunal, I shall grant the parties liberty to apply in relation to this order on 2 days' notice. Orders 1. For all of these reasons, the orders of the Court are: 1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay $10,776.00 in respect of the costs ordered to be paid by order 3 made by Davies J on 27 August 2020. 2. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay $45,665.00 in respect of the costs ordered to be paid by order 5 made by Wright J on 16 October 2020. 3. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first defendant's costs of this application for gross sum costs orders in the sum of $6,000.00. 4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) and upon the ground referred to in s 8(1)(a) and (e), until 21 June 2022 or earlier order of the Court, the following information is not to be disclosed, except to the parties to these proceedings: 1. the hourly rate for each lawyer (excluding counsel) and the amount of time recorded in hours for each lawyer (excluding counsel) in total and in respect of each individual narration in each of the tax invoices in Exhibit VA-1 and Exhibit B; 2. the hourly rates of the partner and the 3rd year solicitor recorded in paragraph 103 of the plaintiff's submissions appearing at page 107 of Exhibit A; and 3. the time recorded in hours in each of the narrations extracted in the three bullet points in the email dated 4 February 2021 appearing at page 62 of Exhibit A. 1. Order 4 applies throughout the Commonwealth of Australia. 2. The parties have liberty to apply in respect of order 4 on 2 days' notice. ********** Endnote 1. This figure is taken from Table B in the Explanatory Schedule and note also the same figure in par 1(b) of the schedule. The figure of $14,496.26 in par 6 of the Explanatory Schedule appears to be a typographical error. 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: 31 August 2021