District Court New South Wales Medium Neutral Citation: A.C.N. 627 087 030 Pty Ltd atf The YBL Trust v Elisabeth Theodore; A.C.N. 627 087 030 Pty Ltd atf The YBL Trust v Andrew John Price [2024] NSWDC 592 Hearing dates: 9-10 December 2024 Date of orders: 13 December 2024 Decision date: 13 December 2024 Jurisdiction: Civil Before: Newlinds SC DCJ Decision: (1) Stand the matter over to a date in February 2025 for directions. (2) Direct the parties in the meantime to seek to agree as to the mathematical consequences of my reasons, as summarised at para [152]. Catchwords: APPEALS AND COSTS — Appeal pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) from decision of the Costs Assessment Review Panel – Nature of appeal APPEALS AND COSTS — Applications for leave to rely on additional evidence pursuant to s 89(4) of the Legal Profession Uniform Law Application Act 2014 (NSW) – Proper construction of s 89(4) – Appropriate approach to be taken on applications for leave to rely on additional evidence PRACTICE AND PROCEDURE — Application to revoke earlier decision of the Court to grant leave to rely on additional evidence pursuant to s 89(4) – Proper approach to applications to revisit earlier interlocutory decisions made in the same proceedings COSTS – Solicitor/Client costs – Costs disclosure – Proper construction of s 174 of the Legal Profession Uniform Law 2014 (NSW) – What are the mandatory requirements of s 174(1) of a disclosure provided by a legal practitioner – What are the consequences of failing to make such a proposal – Proper construction of "as soon as practicable" APPEALS AND COSTS – Some errors of fact and law identified – What are the consequences? – Appropriate orders Legislation Cited: Civil Procedure Act 2005 (NSW) s 56; s 58 Legal Profession Uniform General Rules 2015 (NSW) Legal Profession Uniform Law 2014 (NSW) s 169; s 172; s 174; s 175; s 178; s 199; s 200; s 204(2) Legal Profession Uniform Law Application Act 2014 (NSW) s 85; s 89; Legal Profession Uniform Law Application Regulation 2015 (NSW) Cases Cited: A.C.N. 627 087 030 Pty Ltd as trustee for the YBL Trust (ABN 36 417 292 176) trading as Yates Beaggi Lawyers v Andrew John Price; A.C.N. 627 087 030 Pty Ltd as trustee for the YBL Trust (ABN 36 417 292 176) trading as Yates Beaggi Lawyers v Elisabeth Theodore [2024] NSWDC 121 A.C.N. 627 087 030 Pty Ltd t/as Yates Beaggi Lawyers v Poche [2024] NSWCA 145 A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers v Poche [2023] NSWDC 551 Allesch v Maunz (2000) 203 CLR 172 Amirbeaggi v EB [2023] NSWCA 108 Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304; [2011] NSWDC 55 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 Cameron v Thompson Geer [2020] VSC 75 Creely v Ingles [1969] VR 732 Crosby v Fica (No 4) [2018] NSWSC 632 Fox v Percy (2003) 214 CLR 118 Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259 Geldert v Western Australia [2012] WASCA 226; 271 FLR 83 Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 Lawrence v Sammut (No 3) [2022] NSWSC 657 Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115 Mendonca v Matthews Folbigg Pty Ltd & Anor [2022] NSWSC 764 Minister for Immigration and Border Protection v SZVFW (2018) 203 CLR 172 Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80 Price v Price [2020] NSWCA 312 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38 Texts Cited: Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014) Category: Costs Parties: A.C.N. 627 087 030 Pty Ltd atf The YBL Trust (Plaintiff) Elisabeth Theodore (Defendant 1) Andrew John Price (Defendant 2) Representation: Counsel: A Fernon SC/B Nolan (Plaintiff) K Hooper/J Rogers (Defendants) Solicitors: Yates Beaggi Lawyers (Plaintiff) ICL Lawyers (Defendants) File Number(s): 2022/374361; 2022/371853 Publication restriction: Nil JUDGMENT Introduction 1. This is an appeal from a number of decisions of a costs assessment review panel, pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) ("LPULAA"). 2. Under the LPULAA, as between solicitor and client, there is a regime designed to allow a client to make an informed choice as to whether they wish to retain a legal practitioner, and at what rates – this is achieved by requiring legal practitioners to issue what are known as costs estimates: see s 174(1)(a) of the Legal Profession Uniform Law 2014 (NSW) ("LPUL"). If a cost estimate/disclosure document that complies with the statutory requirements is provided and updated from time to time as required by the legislation, the rates disclosed in that estimate become, for the purpose of any subsequent assessment of those costs, "prima facie" evidence that the rates are reasonable. 3. Upon an invoice being issued by a legal practitioner for legal services, it is open to a person liable to pay those fees to seek to have the fees assessed. This assessment takes place before a Costs Assessor with a right of appeal to the Costs Assessment Review Panel ("the Review Panel"). 4. The statutory framework governing costs assessment comprises the LPUL, the Legal Profession Uniform Law Application Regulation 2015 (NSW) (the "2015 Regulation"), the Legal Profession Uniform General Rules 2015 (NSW) (the "Uniform Rules") and the LPULAA. 5. This regime for costs assessments was clearly intended to operate efficiently so as to allow experts to decide such matters in an informal and cost-effective way. This litigation is a demonstration of why that noble intention has not been fulfilled. The process has become incredibly complex, legalistic, inefficient, and has two levels of appeal with a final avenue of appeal by way of Judicial Review. Often, as here, the end result is that a Judge of this Court can be required to decide these matters in a formal Court setting on evidence that is different to the evidence before the Costs Assessor or Review Panel. The costs of the entire exercise being entirely disproportionate to the costs, the subject of the dispute. The relevant legislation 1. The key provisions of relevance to the resolution of this case are ss 169, 172, and 200 of the LPUL. 2. Section 169 of the LPUL is as follows: "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." 1. Section 200 of the LPUL sets out factors to be taken into account by a costs assessor in determining whether legal costs are fair and reasonable. Section 200(1) provides: "In considering whether legal costs for legal work are fair and reasonable, the costs assessor must apply the principles in section 172 so far as they are applicable." 1. So far as relevant, s 172 of the LPUL provides: "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— … (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 … (f) the retainer and the instructions (express or implied) given in the matter." 1. So far as relevant, s 174 of the LPUL provides: "174 Disclosure obligations of law practice regarding clients (1) Main disclosure requirement A law practice— (a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and (b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client— together with the information referred to in subsection (2). (2) Additional information to be provided Information provided under— (a) subsection (1)(a) must include information about the client's rights— (i) to negotiate a costs agreement with the law practice; and (ii) to negotiate the billing method (for example, by reference to timing or task); and (iii) to receive a bill from the law practice and to request an itemised bill after receiving a bill that is not itemised or is only partially itemised; and (iv) to seek the assistance of the designated local regulatory authority in the event of a dispute about legal costs; or (b) subsection (1)(b) must include a sufficient and reasonable amount of information about the impact of the change on the legal costs that will be payable to allow the client to make informed decisions about the future conduct of the matter. (3) Client's consent and understanding If a disclosure is made under subsection (1), the law practice must take all reasonable steps to satisfy itself that the client has understood and given consent to the proposed course of action for the conduct of the matter and the proposed costs…" 1. If a party, whether it be the person liable to pay the fees or the legal practitioner, is dissatisfied with a decision of a costs assessor s 89 of the LPULAA provides a mechanism for an appeal to a Review Panel and s 89 of the LPULAA provides for an appeal by way of rehearing from a decision of the Review Panel to this Court. 2. Section 89 of the LPULAA is in the following terms: "89 Appeal on matters of law and fact (1) A party to a costs assessment that has been the subject of a review under this Part may appeal against a decision of the Review Panel concerned to— (a) the District Court, in accordance with the rules of the District Court, but only with the leave of the Court if the amount of costs in dispute is less than $25,000, or (b) the Supreme Court, in accordance with the rules of the Supreme Court, but only with the leave of the Court if the amount of costs in dispute is less than $100,000. (2) The District Court or the Supreme Court (as the case requires) has all the functions of the Review Panel. (3) The Supreme Court may, on the hearing of an appeal or application for leave to appeal under this section, remit the matter to the District Court for determination by that Court in accordance with any decision of the Supreme Court and may make such other order in relation to the appeal as the Supreme Court thinks fit. (3A) The Supreme Court may, before the conclusion of any appeal or application for leave to appeal under this section in the District Court, order that the proceedings be removed into the Supreme Court. (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." 1. To understand a little better the meaning of s 89, it is necessary to set out s 85: 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. The parties 1. The Plaintiff is and was a solicitor who, under the firm name 'Yates Beaggi', provided legal services to the Defendants in relation to three pieces of related litigation. All arose out of a matrimonial dispute between Andrew Price ("Mr Price") and his then wife ("Mrs Price"). The first was a case in the Family Court of Australia, in which Mr Price was involved in a dispute with Mrs Price as to an appropriate financial settlement. The second, again at the suit of Mr Price, was in the Supreme Court of New South Wales against Mr Price's son, Christopher, seeking vacant possession of real property said to form part of the matrimonial pool for the purpose of the Family Court proceedings. 2. The third case ("the Guardianship Proceedings"), was again in the Supreme Court of New South Wales. It was an urgent application that only lasted a week and involved a hearing on a Saturday before Henry J with final orders being made on the following Friday by Pembroke J. The costs of that application were the subject of appeal to the Court of Appeal. The case was bought by Mr Price's son and daughter, and a Ms Theodore. It sought relief against Mrs Price that she be removed as the enduring guardian and attorney of Mr Price and that he be replaced in those roles by Mr Price's son. That application, albeit Mr Price was not the Plaintiff, was very much conceded with the matrimonial dispute which was ongoing in the Family Court of Australia. The nature of this appeal Section 89(4) = "Fresh evidence/evidence in addition to or in substitution of" 1. This litigation brings real focus on a number of well-known defects in the legislative scheme. Far from promoting the efficient and effective resolution of disputes as to legal fees in a way that is simple and easy to understand, it is riddled with inefficiency and complexity. The most fundamental of those issues is that the nature of any appeal to this Court is, to say the least, obscure. 2. On the one hand, s 89 of the LPULAA has been authoritatively determined to require the identification of an error either of fact or law on the part of the Review Panel: see for example: Amirbeaggi v EB [2023] NSWCA 108 ("EB") at [52]; A.C.N. 627 087 030 Pty Ltd trading as Yates Beaggi Lawyers v Poche [2023] NSWDC 551 at [68] ("Poche at first instance"), confirmed on appeal in A.C.N. 627 087 030 Pty Ltd t/as Yates Beaggi Lawyers v Poche [2024] NSWCA 145 ("Poche on Appeal"). 3. On the other hand, s 89(4) provides that evidence that was not before the cost Review Panel, which is either "fresh" evidence or evidence "in addition to" or "in substitution for" evidence before the Review Panel, can, with the leave of the Court, be given on appeal. The nature of the appeal itself 1. Even the nature of the appeal itself and the standards to be applied on appeal has been the subject of authority which, if I may say so, is productive of a lack of clarity: see Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259 ("Gazecki") and Lawrence v Sammut (No 3) [2022] NSWSC 657 at [41] – [42]. 2. These decisions were helpfully discussed by Gibson DCJ in Poche at first instance at [63] – [68]. 3. In Gazecki, Basten JA said the following: "[42] Sixthly, the court is not given specific powers, but rather is said to have "all the functions of the review panel." The effect of this provision is by no means clear. The functions of the review panel are set out in s 85 of the Application Act, and involve reviewing "the determination of a costs assessor": s 85(1). For that purpose, the review panel has "all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment": s 85(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: s 85(3). There is a degree of awkwardness in conferring on a court required to determine an appeal against a decision of a review panel all the functions of the review panel, which involve review of the decision of a costs assessor. That language may affect what is meant in s 89(4) by an appeal "by way of a rehearing". [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." 1. The question of whether a lower standard of scrutiny should be applied on appeal to alleged errors of facts by a review panel remains, on my understanding, unresolved. 2. Leave to rely on some further evidence was given in this matter to the Plaintiff by a Judge of this Court on 18 April 2024 in A.C.N. 627 087 030 Pty Ltd as trustee for the YBL Trust (ABN 36 417 292 176) trading as Yates Beaggi Lawyers v Andrew John Price; A.C.N. 627 087 030 Pty Ltd as trustee for the YBL Trust (ABN 36 417 292 176) trading as Yates Beaggi Lawyers v Elisabeth Theodore [2024] NSWDC 121, wherein the Court was persuaded by the Plaintiff to grant leave to allow, in addition to the evidence that was before the Review Panel, some further evidence. 3. This has had the practical consequence of the matter before me running as some sort of quasi-hearing de novo where I am invited to look for and identify errors of fact and law made by the Review Panel by reference to the evidence before that Review Panel and, at the same time, hear evidence that was not before that Review Panel, which has been the subject of contest and cross-examination before me, without any proper analysis at any point of the proceedings up to now as to what I am meant to do with any findings I make that are inconsistent with findings made by the Review Panel based on evidence that was not before that Review Panel. It has also caused the costs of this exercise to blow out so as to inevitably mean that the costs of the case before me will be entirely disproportionate to the costs, the subject of dispute. This will be so even ignoring the costs already expended before the Costs Assessor and the Review Panel. Application to revoke leave 1. All of this led to an application on behalf of the Defendant that I revoke the grant of leave. 2. The Defendant contended that the Court's decision to grant leave was so manifestly erroneous that I should revoke the leave for that reason alone. 3. I rejected that application and indicated that I would provide my reasons in my final judgement. These are my reasons. What does s 89(4) mean and how ought it be applied? 1. Emphasis was placed by both parties on what the Court of Appeal said in Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 ("Gilmore Finance") at [7], relying on what the High Court said in Allesch v Maunz (2000) 203 CLR 172 ("Allesch") and in Minister for Immigration and Border Protection v SZVFW (2018) 203 CLR 172 and what Basten JA said in Gazecki at [42]-[43]. 2. I was also referred to a very helpful analysis in Beazley, Tout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Butterworths, 2014) at [1.141.15] and [1.16], where the learned authors of that text analyse and explain the various types of appeals available in the Australian legal system. They categorise appeals into 3 categories at paragraph [1.12] as follows (footnotes omitted): "1.12 The best known attempt at classification in Australia was that made by Mason J (as he then was) in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd, subsequently adopted as a sufficiently convenient taxonomy subject to any particular statutory provision in Fox v Percy; Dwyer v Calco Timbers; and Lacey v Attorney General (Qld): - an appeal stricto sensu, or strict appeal, where the issue is whether the judgment below was right on the material before the lower Court (hereafter referred to by the present authors as a 'Type I appeal'); - an appeal by way of rehearing on the evidence before the lower Court (hereafter a 'Type IIa appeal'); - an appeal by way of rehearing on that evidence supplemented by such further evidence that the appellate Court admits under a statutory power (express or implied) to do so (hereafter a 'Type IIb appeal'); and - an appeal by way of a hearing de novo, or a new hearing, where evidence in the proceeding, including all witness, is heard afresh (hereafter a 'Type III appeal'). To this classification, the High Court of Australia in Dwyer v Calco Timbers added the caveat referred to above (at [2]): But these categories cannot represent a closed class and particular legislative measures, such as those with which this appeals is concerned, may use the term 'appeal' to identify a wholly novel procedure or one which is a variant of one or more of those just described. When an appellate Court allows new evidence to be led in the course of an appeal by way of rehearing, that is a Type IIb appeal, it is exercising original jurisdiction, or an amalgam of original and appellate jurisdiction, or a jurisdiction that is neither purely appellate nor purely original." 1. Subject to the observations by Basten JA in Gazecki concerning the standards to be applied when considering alleged errors of fact, an appeal under s 89 of the LPULAA is a Type II appeal. The important question becomes, in the context of this legislative regime, what is the proper approach to an application for leave under s 89(4) in the sense of what test should be applied on the exercise of the statutory power to allow further evidence. There is, with respect to the various times the Court of Appeal have looked at this issue, in particular Gilmore Finance, EB at [52], and Poche on Appeal at [79] - [83], a lack of clarity. 2. A 'Type II' appeal is not a retrial, where witnesses give their testimony again and other evidence is received by the Court afresh. Such an appeal would be either a 'Type III' appeal or, as it is more commonly known, a hearing "de novo". Rather, such an appeal is supposed to be "by trial over again on the evidence used in the Court below…". The appellate Court may give such judgment as ought to be given if the case at the time came before the Court at first instance: Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616 at [619]–[620]. Such appeals are determined by references to the circumstances and the law as it existed at the time of the appeal. Ordinarily, in such appeals the appellate Court may only exceptionally consider new evidence received by it: Fox v Percy (2003) 214 CLR 118 ("Fox") at [22]. 3. In such appeals, error, either of fact or law, must first be identified before the appeal Court determines whether to exercise the power to set aside or vary the orders below: EB. 4. The difficulty arises because of the well-known restraint by intermediate appellate Courts, who themselves are embarking on a Type II appeal by way of rehearing, take to the receipt of evidence that was not before the Court subject of the appeal. Ordinarily, such evidence is only admitted if it falls within the very confined, well understood, and demanding definition of "fresh evidence". As explained in cases like Fox, this power is only exercised in "exceptional" circumstances. The Court can also receive information as to changes in circumstances which make, for example, the enforcement of an order made below impossible by virtue of an event that has happened in the meantime, or that the law, as it stands at the time of the appeal, is different than what the law was at the time of the hearing. 5. The problem is that s 89(4) of LPULAA is cast in the following terms (my emphasis): "(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." 1. In Gilmore Finance, Meagher JA said this in relation to s 89 quoting Gaudron, Gummow, McHugh, and Hayne JJ in Allesch: "For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error." 1. That statement, albeit made in the context of an application for leave, it seems to me, assumes that appellant restraint will be exercised in allowing "new" evidence in on the appeal. 2. Basten AJA in EB at [52], said, again in a statement that did not form part of the ratio of that decision: "Unless there is a question of jurisdiction, which may always be an issue, whether raised or not, there will generally be no appeal from a Review Panel with respect to an issue which was simply not raised before it. If a ground of appeal in the District Court were to raise such a matter, the likely response of the Court would have been that the Review Panel cannot have been in error in failing to deal with the matter which it was not asked to address." 1. It seems to me that the two statements of principle are, if not inconsistent, very much in tension. That tension arises upon the exercise of the power conferred by s 89(4) to put before this Court on appeal evidence that was not before the Review Panel. 2. In this case, the issues sought to be propounded on appeal are the same issues that were alive before the Review Panel. The Review Panel, however, decided those issues on the evidence before it. I am being invited to have regard to evidence that was not before the Review Panel, so as to come to different conclusions as to fact. If I do so, it is very difficult to reconcile why it can be said that the Review Panel, in those circumstances, made an error of fact, because the very evidence and submissions upon which I am invited to make that finding were just not before the Review Panel. By that process, magically, this 'Type II' appeal has converted into something close to a hearing de novo. 3. The problem arises because of the apparent extraordinary breadth of wording used in s 89(4). The concept of "fresh evidence" in this context has become a term of art and is well understood. It is entirely inconsistent with the other concepts in s 89(4), which are "evidence in addition to" or evidence "in substitution". These phrases range way beyond what is ordinarily understood as fresh evidence. It is obvious that the legislation intends them to be different to "fresh evidence". Their literal meaning will capture any evidence not before the Review Panel. 4. The proper construction of s 89(4) was touched upon, albeit very briefly, by the Court of Appeal in Poche on Appeal at [79] – [83]. 5. On that appeal, the trial Judge was criticised by the Appellant for determining an application to rely on evidence not before the Review Panel on appeal pursuant to s 89 by applying the test of "fresh evidence" on appeal to such an application. The Court of Appeal rejected that submission and concluded that a fair reading of the trial Judge's reasons disclosed that her Honour had considered the question without limiting herself to the concept of "fresh evidence" for the purpose of an application to the Court of Appeal. 6. Unfortunately, the Court of Appeal goes no further than to acknowledge that the wording of s 89(4) does provide for a range of evidence broader than what would ordinarily be understood as "fresh evidence". However, the Court did not in any way elucidate or explain what the breath of the various concepts described in s 89(4) might be. 7. In my opinion, the proper approach to applications for leave under s 89(4) by this or any other Court, is to take a strict approach to such applications and to only grant leave (absent the requirements of "fresh evidence" being satisfied) if there is very good reason to do so and that it is in the interests of justice to do so, acknowledging that as soon as such evidence is to be admitted, that whatever else is happening before the Court on the s 89 appeal thereafter, it will not be a 'Type II' rehearing, but rather it will be something very close to a 'Type III' hearing de novo, with new and contested evidence. It would be only in the most unusual and special case where leave would be granted just because the evidence was not put before the Review Panel, and because of the decision itself, it can now be seen that it would be helpful for a party to have the benefit of that evidence. In other words, the focus should not be on the fact the evidence is "additional", – by definition, it always will be – the focus must be on why, as an exercise of discretion, a party should be allowed to upend the very nature of the appeal and effectively start again before this Court. 8. On that approach, I am satisfied that this Court's discretion miscarried on the leave application. This is because the only reason given for the grant of leave was that the evidence itself, the subject of the application, was caught by the definition of "evidence in addition to…". That is not the test. It is in fact the reason the evidence is inadmissible and why leave should not be granted, rather than the reason for a grant of leave of itself. 9. Every case will turn on its own facts, but in this case where the amount in issue as between the parties is not very much more than $100,000, and on the questions to which the "new evidence" might be relevant, raises an issue of something around $60,000, there is a lesson as to why restraint in the grant of leave must be applied. 10. The law in relation to the proper approach to application to the consideration of multiple interlocutory applications has developed over recent decades. 11. In Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 ("Honeysett"), McLelland J said at [46]: "Interlocutory orders, of their very nature, create no res judicata or estoppel, and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of the proceedings. However, the general rationale of the principles last referred to applies even in the case of interlocutory orders. It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of a party to have any interlocutory application or order relitigated at will. The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised." 1. Honeysett has been considered in a number of subsequent cases. In Nominal Defendant v Manning (2000) 50 NSWLR 139; [2000] NSWCA 80, the Court of Appeal rejected the proposition that there is a general rule which precludes an unsuccessful applicant for interlocutory orders from repeating the application simply because the applicant sought to rely on additional relevant factors which would not amount to fresh evidence. In Liu v The Age Company Ltd (2016) 92 NSWLR 679; [2016] NSWCA 115 ("Liu"), the Court again rejected the proposition that there is any preclusive rule in relation to the bringing of a second interlocutory application. 2. In Mendonca v Matthews Folbigg Pty Ltd & Anor [2022] NSWSC 764, Cavanagh J, after summarising the authorities, concluded that the approach to multiple interlocutory applications is not now governed by the observations in Honeysett, in the sense of there being some preclusive rule requiring a "material change in circumstance", but rather the approach is that as summarised by McCall JA in Liu at [199]: "In summary, accordingly, the overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. That consideration also applies to a second interlocutory application concerning the same, or what is substantially the same, issue or an attempt by a litigant who has unsuccessfully resisted an interlocutory application to re-agitate the same question. However, in determining what the interests of justice require, the court will have regard, among other matters, to the nature of the first interlocutory application, the nature of the change in position and whether any matter relied upon to change the basis upon which the challenged earlier order was made, was open to be advanced at the earlier hearing." 1. As Cavanagh J observed, such an approach is consistent with the principles set out in ss 56 and 58 of the Civil Procedure Act 2005 (NSW), and that ultimately, the Court should do whatever the interests of justice require in the particular circumstances of the case, even in respect of an application which is substantially the same as an earlier application. However, it is not to be overlooked that the matters referred to in Honeysett remain relevant, even though not determinative. 2. Even though, on the same evidence that was before the Court on the leave application, I would not have granted leave and that I consider the Court applied an erroneous legal test, I am not satisfied that is sufficient reason in the interests of justice for me to simply revoke the leave already given. To do so would encourage, albeit indeed almost make it inevitable, that every ruling made by any Judge of a Court in a matter of an interlocutory nature would be subject to some sort of quasi-appellate review by any other Judge of the same Court, so as to be invited to come to a different conclusion. 3. The interests of justice require there to be a significant level of certainty and finality at every level of litigation, including the interlocutory stages. The only basis put before me to revoke the grant of leave is that I consider the first decision to be manifestly erroneous. Whilst I do not accept the characterisation "manifestly", I certainly am persuaded that the earlier grant was erroneous but, for the reasons I have given, do not consider that sufficient reason to engage the exercise of discretion by reference to the overall interest of justice. 4. On behalf of the Defendant and in the alternative to inviting me to revoke the grant of leave, the submission was made to the effect that, because of the proper application of the requirement for this to be an appeal by way of rehearing, with the limits that carries, the evidence was in fact not relevant to the outcome because of the observations made by Basten JA, to the effect that in such circumstances it is very difficult to understand how a conclusion could be reached of error in the Court below. 5. I was quite attracted to this argument at first, however, it seems to me on analysis, it is no more than another way to put exactly the same submissions that were put to and rejected by this Court on the question of leave, and to reject the evidence would be inconsistent with his Honour's conclusion that the evidence was prima facie relevant to the issues before the Court, and as I am not sitting on appeal from the leave decision, it would be entirely inappropriate in the same proceedings to conclude that evidence that his Honour had determined was relevant was in fact irrelevant. In other words, it was an inappropriate "second bite at the cherry" to the unsuccessful application to revoke leave. 6. For all those reasons, and to my regret because the introduction of this evidence, as it inevitably was always going to, provoked a number of contested interlocutory applications dealt by the list Judge concerning setting aside subpoenas and notices to produce, and evidence by AVL. It also provoked responsive evidence from the Defendants, which itself provoked responsive evidence from the Plaintiff, all of which I felt in the interest of fairness I had to grant leave for. It was all the subject of cross examination and greatly extended the time and costs that ought to have been devoted to the hearing of this matter. To make matters worse, when it came to final submissions, all but one paragraph of the additional evidence was not mentioned. Overview of the factual setting and the Review Panel's decision 1. Mr. Price sought assessment of 10 bills issued by the Plaintiff claiming a total of $172,211.16. The Review Panel allowed a total of $121,703.09 in respect of those invoices, representing 71.7% of the total claimed, amounting to approximately $50,000. 2. Ms. Theodore sought assessment of 11 bills issued by the Plaintiff claiming a total of $255,970.03. Invoices were addressed to Ms. Theodore in her capacity as Mr. Price's guardian and attorney. The Review Panel allowed a total of $117,437.36, representing 45.9% of the total claimed, amounting to approximately $130,000. 3. The Review Panel also issued certificates in relation to the costs of the Review Panel: that the Plaintiff pay $10,016.32 in relation to the Price Review Panel and that the Plaintiff pay $7,887.65 and Ms. Theodore pay $1,971.92 in relation to the Theodore Review Panel. The appeals are also brought in relation to these cost determinations by the Review Panel. 4. The Review Panel was constituted by the same members in the Theodore and Price reviews. The Review Panel's reasons in the two reviews were substantively identical, with the Review Panel duplicating the substance of its reasons for the two reviews. The matter has been argued before me as if there was one appeal and these reasons deal with both appeals. Some more detailed uncontested background The original costs disclosure 1. On 29 May 2019, the Plaintiff received instructions from Mr. Price to act for him in the Family Law Proceedings. 2. On 11 June 2019, the Plaintiff provided Mr. Price with an engagement agreement which included a schedule providing a costs disclosure and estimate. Whether that disclosure complies with the requirements of s 174 is the first issue on appeal. Mr. Price signed that document on 22 June 2019 and returned it by email. The costs disclosure is in the following relevant terms (my emphasis): "11 June 2019 Mr Andrew J Price 1/24 Barry Street NEUTRAL BAY NSW 2089 By email only: andrewjprice@me.com Dear Sir, ENGAGEMENT TO PROVIDE LEGAL SERVICES & COSTS DISCLOSURE Thank you for asking us to provide legal services in connection with your family law dispute. We would be pleased to provide our services to you on the basis set out in this letter. You can show that you agree to our terms either by signing and returning a copy of this letter, or by continuing to instruct us as we do the work. Upon acceptance you agree to pay for our services on these terms. The other purpose of this letter is to disclose to you, information about the costs of our legal services, and your rights, as required by the Legal Profession Uniform Law Legislative Scheme. You may negotiate and enter into a costs agreement with us based on the information contained in this letter. … Funds to Trust … How the Costs will be Calculated Our Professional Fees Our professional fees are calculated on the basis of time spent at the hourly rates applicable to this engagement. Our hourly rates are as follows: - NON-URGENT/STANDARD URGENT/SPECULATIVE Title Hourly Rate GST Total Rate Hourly Rate GST Total Rate Solicitor Director $700.00 $70.00 $770.00 $800.00 $80.00 $880.00 Senior Associate $600.00 $60.00 $660.00 $700.00 $70.00 $770.00 Associate $500.00 $50.00 $550.00 $600.00 $60.00 $660.00 Solicitor $400.00 $40.00 $440.00 $500.00 $50.00 $550.00 Paralegal $300.00 $30.00 $330.00 $350.00 $35.00 $385.00 … You should refer to the attached Schedule to see which of the above hourly rates are applicable to you, and for an estimate of the likely costs you will incur in this matter. … Disbursements We may attend to payment of disbursements being fees and/or expenses which we pay or are liable to pay to others on your behalf. These disbursements may include search fees, enquiry fees, Court filing fees, process service fees, experts' report fees, courier and postage fees, witness expenses, travel expenses, transcript fees, barristers' fees and costs consultants' fees. With respect to our engagement of banisters and experts on your behalf, by agreeing to these terms you hereby acknowledge that in certain circumstances we may require advice from a barrister (junior and/or senior) and/or an expert or experts, and in this regard you agree to pay all reasonable related costs and disbursements incurred by us in connection with that engagement. … Persons Responsible for the Work … Substantial Changes to Disclosure Good & Services Tax ("GST") All rates, charges and expenses stipulated in this letter are GST exclusive, unless otherwise stated. Where the service provided is subject to GST, GST of 10% will be added and charged to you. … Your Rights It is your right to: negotiate a costs agreement with us; negotiate the method of billing (e.g. task based or time based); request and receive an itemised bill within 30 days after a lump sum bill or partially itemised bill is payable; seek the assistance of the designated local regulatory authority (the NSW Commissioner) in the event of a dispute about legal costs; be notified as soon as is reasonably practicable of any significant change to any matter affecting costs; accept or reject any offer we make for an interstate costs law to apply to your matter; and notify us that you require an interstate costs law to apply to your matter. … Dispute as to Legal Costs The Law gives you the right to:- apply to the Supreme Court to have the bill assessed under Division 7 of Part 4.3 of the Law. This application must be made within 12 months after the bill was provided or a request for payment was made or after the costs were paid; and seek the assistance of the NSW Commissioner under Part 5.2 of Chapter 5 of the Law within 60 days after the legal costs become payable or, if an itemised bill was requested in respect of those costs, 30 days after compliance has been made with that request. We encourage you to, in the first instance, discuss your concerns with us. You acknowledge that we are entitled to charge at our hourly rates for our attendance upon any assessment process of our claim for costs, and those sums will be charged to you in addition to the sum the subject of any assessment. … Applicable Law … Next Steps … Yours faithfully, YATES BEAGGI LAWYERS Farshad Amirbeaggi Solicitor Director farshad@yatesbeaggi.com.au" 1. The schedule attached was as follows (my emphasis): "COSTS DISCLOSURE 1. Client and Guarantor Mr Andrew J Price 2. Matter Details Family Law Matter 3. Date 11 June 2019 (a) review instructing materials and provide advice on 4. Scope of Work (b) Prosecute Application for asset preservation; (What you have asked us to do) (c) Prosecute or defend proceedings for dissolution of financial interests; (d) services on a general retainer basis and advising generally. 5. Monies in Trust $25,000.00 on account of anticipated professional fees and anticipated disbursements. (We require these amounts to be paid into our trust account before we commence work) 6. Fee Rate Non-urgent/standard rate (This is the fee rate applicable to you) We estimate our professional fees for undertaking the work will range between: (a) Review instructing materials and provide advice on an ongoing basis throughout matter: $25,000.00 plus GST. Fee Estimates (b) Urgent Application to the Family Court for Asset Preservation and return of property: $30,000 to $40,000 plus GST. 7. It is difficult for us to provide an accurate estimate of the total costs you may incur so we have set out a range of estimated costs, based on the information available to us to date. (c) Defend or prosecute dissolution of property interests: Please note that this is an estimate only and not a fixed quote. The total costs may exceed the estimate. While the estimate is based on present information and instructions and our current understanding from you as to what services are required, our costs and expenses and the disbursements may exceed the estimate if further information becomes available or circumstances change which affect these matters. Please refer to paragraph 9 of this document where the major factors that may affect our estimates are listed. i. Early resolution: up to $75,000 plus GST. In this event we will provide you with a revised estimate as soon as practicable. Where there is a significant change in your matter then as far as possible we will advise the impact of the change on the legal costs. ii. Resolution after filing of evidence up to $150,000 plus GST. iii. Fully contested hearing: up to $250,000 plus GST If you fail in the proceedings, you may suffer costs orders against you by your opponent for similar sums. Court Filing Fee/Transcript/Hearing Allow $10,000.00 plus GST Sundries 8. Disbursements Allow up to $10,000.00 plus GST (We anticipate you incur this amount by way of disbursements) Barrister Fees Allow between for Junior and Senior Counsel allow $40,000.00 to $60,000.00 plus GST Experts/Valuers Allow $40,000.00 to $50,000.00 plus GST (a) the number and duration of telephone calls or other communications; (b) your prompt and efficient response to requests for information or instructions; (c) whether your instructions are varied; Change in fee estimate (d) whether documents have to be revised in light of varied instructions; 9. (The estimates in Items 6 and 8 may, and probably will, change when more information is available to us. The major factors which will affect the estimates are): (e) the lawyer or other persons with whom we deal and the level of co-operation of the lawyer's client/s and other persons involved; (f) the manner in which the matter is contested and progressed by the other party[ies] including the making of urgent or late applications and the service of evidence; (g) delay caused by other parties or the Court system including lost Court dates; (h) changes in the law; and (i) the complexity or uncertainty concerning legal issues affecting your matter. (a) photocopying/printing: $1.00 per page + GST (b) facsimiles - incoming or outgoing: $1.00 per page + GST 10. Expenses (c) telephone: at cost; (We will also charge you for services we use or supply) (d) stationery: at cost; (e) archiving/storage fees: at cost (f) other sundries: TBA" The Guardianship Proceedings 1. The Family Law Proceedings were aggressively litigated and included serious allegations by Mr. Price that his wife had stolen his laptop and unilaterally transferred approximately $7 million dollars out of his bank accounts, without his knowledge or authorisation. Through the course of the Family Law Proceedings, Mrs Price initiated separate and further proceedings from within the Supreme Court of NSW against Mr. Price's son, Christopher Price, seeking he vacate occupation of a residence held in her name and which she asserted formed part of the matrimonial pool in the Family Law Proceedings. Mr. Price instructed the Plaintiff to act in relation to those further proceedings. Suffice to say that the relationship between Mr and Mrs Price by January 2020 was terrible, with a total breakdown of trust. Mr Price's children, rightly or wrongly, I do not know which, sided with him and themselves took a very dim view of Mrs Price. In particular, they did not trust Mrs Price. 2. The chronology of the Guardianship Proceedings can be summarised as follows. On or around 17 January 2020, Mr. Price suffered a serious medical episode and was admitted to Tweed Hospital. He was diagnosed with Stage 4 liver failure and given a terminal prognosis. In the short term, he was not able to manage his affairs and it was not known if he would live or die. His family were understandably very concerned. 3. At 3:14pm on Friday 31 January 2020, after learning of Mr. Price's lack of capacity, and whilst engaged in the Family Law Proceedings, Mrs Price's solicitor sent a letter to the Plaintiff. That letter enclosed an Appointment of an enduring guardian and an enduring power of attorney executed by Mr. Price on 25 May 2012 (some 7 years prior to their separation), in both cases in favour of Ms. Price or, if she be unwilling or unable to act, then his sister Ms. Theodore. There was some doubt if Ms Theodore had signed acceptance of that appointment or, if she had, where the paperwork was. 4. At 11:36pm on 31 January 2020, Mr Price's son, Mr. Price's daughter, and Ms. Theodore commenced proceedings 2020/33029 in the Equity Division of the Supreme Court by filing a Summons (the Guardianship Proceedings). The Summons sought relief including that Mrs Price be removed as the enduring guardian and attorney and that she be replaced in those capacities by Christopher Price, his sister, and/or Ms Theodore. The Summons was returnable at 9am the following day (a Saturday) before Henry J. 5. At 9am on 1 February, there was a contested hearing before Henry J which lasted several hours. Mrs Price then agreed to provide an interim undertaking that she would not act upon that power of attorney or enduring guardianship and consented to the appointment of Ms. Theodore as alternate attorney and guardian. The proceedings were adjourned to further hearing on 6 February 2020. 6. Following the hearing, the Plaintiff travelled to the Tweed Heads Hospital to see Mr Price and serve the orders of Henry J on Mrs Price. After his arrival at the hospital, the Plaintiff sent several emails describing the fact that Mrs Price had been issuing instructions and directions to medical staff. 7. On 6 February, the matter was listed before Pembroke J. His Honour ultimately made orders by consent which effected the permanent removal of Mrs Price as Mr. Price's attorney and guardian, and her replacement with Ms. Theodore. His Honour also ordered that Mrs Price to pay the plaintiffs' costs of those proceedings. His Honour considered that Mrs Price could have avoided the need for proceedings by agreeing to what the plaintiffs sought before the proceedings were commenced and concluded that Mrs Price took too long to recognise the conflict and took too long to recognise that she should renounce her appointment. 8. There was subsequently an appeal to the Court of Appeal from Pembroke J's decision. 9. On appeal, the Court of Appeal in Price v Price [2020] NSWCA 312, the costs decision of Pembroke J was reversed and the Court very critical of the finding by Pembroke J that Mrs Price acted unreasonably. The Court of Appeal thought the opposite, specifically Macfarlan JA, whom Basten JA and Meagher JA agreed with, said: "[37] First, both the Appointment of an Enduring Guardian and the Enduring Power of Attorney provided for the third respondent to act as guardian and attorney in the event that Ms Price was unwilling or unable to act. There was therefore no need for the respondents to approach the Court (or NCAT) if Ms Price agreed to renounce her position. [38] Secondly, the respondents had no evidence that Ms Price intended or threatened to exercise any of her powers as guardian or attorney precipitously, or at all. No such threat was contained in her solicitor's letter sent at 3.14pm on Friday 31 January (see [6] above). Moreover, at the hearing before Henry J the next morning Ms Dorter readily proffered on Ms Price's behalf the undertaking referred to in the next paragraph below that she would not so act. Ms Dorter also made the point that her client had not been requested to provide such an undertaking (see [14] above). [39] Thirdly, at the same hearing Ms Dorter gave on Ms Price's behalf an undertaking that until the further hearing fixed for 6 February 2020 "she will not act, and is unwilling to act" under both appointments. That triggered the third respondent's entitlement under the instruments to act in the interim period. Ms Dorter also expressly indicated to the Court that her client had no objection to the third respondent so acting. [40] Fourthly, the respondents' commencement of proceeding was precipitous, not affording Ms Price any reasonable opportunity to respond substantively to the respondents' solicitor's letter sent at 5.45pm on Friday 31 January. In light of Ms Price's cooperative conduct before Henry J at the hearing the next morning, it can readily be inferred that at least an interim undertaking not to act (and therefore to permit the third respondent to act as guardian and attorney for the period of the undertaking) would have been forthcoming if that opportunity had been given. [41] Fifthly, when Ms Price offered on Tuesday 4 February to consent to the relief that the respondents sought concerning the appointments, the respondents failed to accept her entirely reasonable offer to agree that there be no order as to the costs of the proceedings. [42] Sixthly, the respondents did not obtain under the consent orders made by Pembroke J a good deal of the relief that they had sought in their Summons in the proceedings. In particular, they did not obtain the appointment of the first or second respondents as guardians or attorneys to act with the third respondent, as had been sought in Orders 2 and 5 of the Summons, and they did not obtain Orders 6 to 9 (see [11] above) being injunctions, orders for return of property and identification of acts done under the appointments. … [45] It is unnecessary in these circumstances to consider whether Ms Price would have been assisted in having this conclusion arrived at by recourse to the observations of Lindsay J in CAC v Secretary, Department of Family and Community Services (No 2), to which I have referred above (see [25]), but which were not brought to the primary judge's attention. It is sufficient to say that those observations do not assist the respondents in the present case because, from their point of view, the proceedings were misconceived. Contrary to their contention that they "had no choice but to commence proceedings" (see [30] above), the issues concerning Mr Price's guardian and power of attorney about which the respondents were concerned could have been resolved without an application to the Court (or NCAT) if they had afforded Ms Price the usual pre-action opportunity to consider and indicate her position." The Issues 1. The grounds of appeal have been particularised by the Plaintiff in various ways in a series of correspondence. 2. The Defendants take issue with the way the matter was ultimately presented by the Plaintiff by making the submission, which I consider has substantial merit, that the ultimate submissions by the Plaintiff range beyond, and are different to, those particularised. 3. However, with one notable exception, the Defendants have also answered those various grounds of appeal, and the submissions made on behalf of the Plaintiff, in a way which I think demonstrates that they have not been prejudiced by the Plaintiff's change of position and, subject to that one matter, which I describe below as 'Ground 4', I have decided to determine the matter upon the basis of the grounds of appeal presented by the Plaintiff in writing and orally before me. The grounds of appeal 1. Although there is some, and in some cases considerable, overlap between some or all of the grounds, I think the best way to deal with them is under the following headings: 1. Ground 1 – Was there proper disclosure of a costs estimate for the purpose of the legislation when the Plaintiff was originally retained? If not, what are the consequences of that? 2. Ground 2 – Were there appropriate updating estimates provided by the Plaintiff to his various clients as the matter progressed? If so, were they made "as soon as practicably possible" and if not, what are the consequences of that? 3. Ground 3 – In relation to the Guardianship Proceedings, were any or all of the costs, the subject of the invoices, reasonably incurred? 4. Ground 4 – A line-by-line critique of very many rulings by the Review Panel as to individual items. There are 542 items in a schedule handed up. I do not think they all relate to Ground 4, but very many of them do. Many of the items raise issues over claims as small as $50-$100. 1. There is significant overlap between the grounds arranged this way. I will try and deal with them individually, whilst avoiding repetition where I can. Ground 1 - Disclosure The proper construction of s 174(1) 1. This ground raises a very important question of construction of the LPULAA in unfortunate circumstances where, on my arithmetic, the amount in issue between the parties as a consequence of this issue is something slightly less than $10,000. 2. It is surprising, considering how central the requirements of s 174 of the LPUL are and how grave the consequences of non-compliance can be, not just to the recovery of costs, but involving potential professional misconduct, that there is no authority directly on point. 3. I have already set out the form of the costs estimate/disclosure document issued by the Plaintiff at paragraphs [62]-[63] of this judgment. 4. For present purposes, ss 174(1) and (2) and s 175 of the LPUL require close analysis. They are in the following terms. 5. Section 174(1) is in the following terms (my emphasis): 174 Disclosure obligations of law practice regarding clients (1) Main disclosure requirement A law practice— (a) must, when or as soon as practicable after instructions are initially given in a matter, provide the client with information disclosing the basis on which legal costs will be calculated in the matter and an estimate of the total legal costs; and (b) must, when or as soon as practicable after there is any significant change to anything previously disclosed under this subsection, provide the client with information disclosing the change, including information about any significant change to the legal costs that will be payable by the client— together with the information referred to in subsection (2). 1. Section 174(2) sets out the additional information to be provided by the law practice to the client (my emphasis): (2) Additional information to be provided Information provided under— … (b) subsection (1)(b) must include a sufficient and reasonable amount of information about the impact of the change on the legal costs that will be payable to allow the client to make informed decisions about the future conduct of the matter. 1. Rule 72A of the Uniform Rules provides circumstances in which s 178(1) of the LPUL does not apply, none of which are said to be relevant to my consideration. Did the costs disclosure comply with the mandatory requirements of s 174? 1. The Review Panel determined that there had not been proper compliance with the cost disclosure requirements of s 174(1) and (2). 2. The Review Panel correctly concluded that on that finding, s 178 of the LPUL renders the costs agreement void. 3. The relevant statutory consequence of this finding is that, for the purpose of assessment and the fundamental requirement on assessment created by s 199 of the LPUL, being a determination as to whether legal costs are "fair and reasonable", s 172 of the LPUL provides by subsection (4): "(4) A costs agreement is prima facie evidence that legal costs disclosed in the agreement are fair and reasonable if— (a) the provisions of Division 3 relating to costs disclosure have been complied with…" 1. So, it can be seen that the direct consequence of the Review Panel's determination that the disclosure requirements had not been met was that the evidential presumption (or prima facie position) created by subsection (4) of s 172 was not available to the Plaintiff on assessment. 2. The Review Panel thus put to one side that prima facie position and determined as a matter of fact that, rather than the hourly rate disclosed by the practitioner, in all the circumstances, a fair and reasonable rate was $600 an hour. 3. The question for determination becomes, what are the mandatory requirements of a notice for it to comply with s 174(1)? 4. The Review Panel reasoned the matter as follows: "15.2 The panel has looked carefully through the bundle of correspondence covering the period 19 January 2020 to 23 March 2020 referred to at paragraph 20 of the Yates Beaggi review submissions of 1 December 2021 sent to the panel 2 December 2021. Those disclosures did not meet the requirements of the Uniform Legislation. It is unnecessary to go further than for the panel to note: 15.2.1 What must be disclosed are the total costs, that is fees, expenses and GST of the work likely to be done. Thus, for example, that should include barrister's fees and indeed any other disbursements and GST; 15.2.2 An estimate of costs must be made. It must be prospective; 15.2.3 Any estimates of costs made must be revised as soon as practicable after there is any significant change to anything affecting that estimate (ss 174(1)(b) Uniform Law); 15.2.4 The law practice must take reasonable steps to ensure that the client consents to the legal actions and work being proposed, and to the costs of that work. Thus it is important in many contracts between a law practice and a client, that the estimate of costs is clear as to what is included and what is not included. 15.3 The disclosure made by Yates Beaggi did not meet the standard required by the Uniform Legislation. 15.4 The initial disclosure of 11 June 2019 set out some estimates of fees only in a generic way for various stages of Family Court work. Then expenses were disclosed. GST was to be added on. Thus it required Mr Price to add the various fee stages, add the GST, add the expenses referred to and add the GST to arrive at fees, expenses and GST for various stages. It was not a disclosure that was likely to assist Mr Price in determining whether to proceed with the Family Court proceedings and whether to engage Yates Beaggi." 1. Reading paragraphs 15.2 and 15.4 above together, I think it is fair to summarise the Review Panel's reasoning by saying that it concluded that the disclosure was not consistent with the requirements of s 174(1)(a) because it: 1. provided fee estimates by reference to stages of the work to be performed by "generic" description; 2. provided an estimate by use of a "range"; 3. provided separate estimates for disbursements; and 4. provided fee estimates which were expressly described as "plus GST". 5. Failed to provide a single estimate by reference to one total figure. 1. All this meant, as far as the Review Panel was concerned, that: "It was not a disclosure that was likely to assist Mr Price in determining whether to proceed with the family Court proceedings and to engage Yates-Beaggi and that Yates-Beaggi failed to provide an estimate of the total legal costs". 1. On behalf of the Plaintiff, it is submitted that the Review Panel made an error of law because there is no requirement upon the proper construction of s 174(1)(a) of the LPUL for a legal practice to provide a single figure by way of estimate and that the provision of an estimate by providing a range is compliant. Nor is there any problem with generic descriptions of stages of proceedings. 2. In Crosby v Fica (No 4) [2018] NSWSC 632 at [19], Parker J accepted that an estimate under s 174(1)(a) could be provided by means of a range. It seems to me that must be so. To expect a lawyer to estimate with precision a single figure is, to my mind, not consistent with the obvious purpose of the legislation. An estimate must reflect the lawyer's best honest estimate. Sometimes, indeed often, it will be impossible for a legal practitioner to hit a precise figure other than by guessing. To select the highest in a range or perhaps the mid-point will not be the legal practitioner's honest estimate but the product of a wholly arbitrary process. If it be right that an estimate by way of a range is sufficient, there is no reason in principle why an estimate cannot be provided by the provision of a small number of component parts, which happened here. 3. Whilst it is important to read the whole of the legislation together without focusing too much on particular words or phrases, the relevant phrase central to this question is "an estimate of the total legal costs". True it is that the word "an" is cast in the singular, as does the phrase "the total". However, they are each words and phrases that take their meaning from their context. Contextually, what is required is one "estimate". To say that however, entirely begs the real question, which is what is required of that estimate. I do not think it is a correct reading of the words to require that estimate to be provided by way of a single figure, an estimate by way of a range is still one estimate. Nor do I think that it is in any way inconsistent with an estimate being provided by way of a series of figures made up of different components. Indeed, to my mind a sensible understanding of the concept of an estimate when one is speaking about any future matter, but in particular a future matter as difficult to predict as legal fees to be incurred, a range sits well with the word "estimate". That then leaves the word "total". Again, I do not consider that the requirement that there be an estimate of the total legal fees suggests a single ultimate figure. An estimate of the total legal fees is satisfied if a series of figures, for example as here, the amount of solicitors fees, the amount of barristers fees, and other disbursements, together with a requirement to add 10% for GST. That information read together is the total of the fees being estimated. It, therefore, is an estimate of the total. In my opinion, a requirement for the estimate itself to perform the addition required to arrive at a single ultimate figure is something that may be considered good practice, but that is not mandated by the legislation. 4. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the High Court directed that statutes must be construed by reference to their text, purpose, and context. As I have said, I do not regard the text as supportive of the Review Panel's construction. As to context and purpose, the context of s 174 is that it is found in the part of the legislation that deals with the requirement for there to be cost estimates to be given to clients, for the obvious purpose of allowing the clients to make an informed choice as to the use of lawyers or perhaps as to the pursuit of any piece of legal work. It is protective legislation, so as to arm people who are not familiar with the legal process with as much information as possible so as to allow them to make informed decisions. However, the provision of estimates is, in the context of legal work and most particularly in the context of litigation, an inexact science. Indeed, to describe it as a science at all is to overstate things. It is at best a "guesstimate" based on a lawyer's expectations learned from experience. Any estimate given by a lawyer before litigation commences will almost inevitably be proved wrong because the lawyer is operating with such limited information as to what might happen in the future. Part of the context is also found in s 174(2)(b), which requires a lawyer in particular circumstances to take steps to make sure the client understands the disclosure and the estimate. So, for example, if a lawyer apprehended that a particular client was not capable of adding up a series of separate figures, or perhaps adding GST to a figure by the addition of 10%, then the lawyer has a separate and distinct obligation to ensure that the client understands the process and is able to comprehend the estimate. However, subs (3) only has work to do on the hypothesis that a valid s 174(1) estimate has already been given. Thus, the Review Panel's apparent requirement that a disclosure under s 174(1) must be "likely to assist the client in determining whether to proceed with the Family Court Proceedings", and therefore posed a subjective test is, I think, wrong. Section 174(3) emphasises that the s 174(1) requirements are to be determined objectively without any gloss being put on them over and above the mandatory requirements. Section 174(2)(b) does require a subjective judgment based on the understanding of a particular client, but there is no suggestion here that Mr Price did not understand the document. 5. The Plaintiff has submitted that, on the Review Panel's reasoning, it's fundamental failing appears to have been providing its potential client with too much information concerning the estimated costs of the total proceedings by estimating with reference to multiple stages of the litigation. The Plaintiff has submitted, and I agree, that this is an exceptionally odd result which flies in the face of the statutory purpose: see Cameron v Thompson Geer [2020] VSC 75 at [19]. 6. The Plaintiff also relies on the fact, which I think is accepted, that Mr Price prior to his medical episode was an extremely experienced and sophisticated businessperson and that to analyse the cost disclosure without reference to that fact is artificial. I reject that submission. It seems to me that whether or not there has been proper costs disclosure of an estimate has to be determined objectively and not by reference to whether or not the recipient subjectively understood the information. The extra requirement found in subs (3) does pose a subjective test, but it is only to be applied upon a finding of a valid disclosure under subs (1). 7. The Defendant places significant reliance on what is said by the Legal Services Council in a guideline and direction – cost estimates issued by Legal Services Council on 11 March 2013 at paragraph [3]: "... an estimate of the total legal costs in a matter, as required by section 174(1)(a) of the LPUL, is a reasonable approximation of the total costs that a client is likely to have to pay in the matter for which instructions have been given, expressed as a single figure, from time to time (the estimate). The definition of total legal costs in this context includes professional fees, any disbursements and GST, which should be separately identified, but not interest: LPUL section 6. It should be noted that where a costs agreement includes an uplift fee, that fee should be included as part of the estimate of total legal costs and the circumstances in which it would be payable explained to the client.' (emphasis added)." 1. The Legal Services Council Guideline also provides (my emphasis): "The provision of an estimate or estimates from time to time does not preclude the provision of other information to a client about the steps or stages in a matter and the provision of such information to a client should be encouraged. It will not be inconsistent with section 174(1)(a) to provide estimates for each of the stages that the matter might reach, whether individual stage estimates are expressed as a single figure or as a range of figures, PROVIDED the law practice, having considered all the circumstances and the most likely outcome, always gives the single figure estimate of the total legal costs in the matter that section 174(1)(a) requires. It is permissible and may be desirable to preface a single figure estimate with the word "about" to reflect the fact that the figure is an estimate and is not a fixed fee." 1. For reasons I have explained, the Guideline, in so far as it suggests that s 174(1)(a) provides for only a single figure, is in my opinion wrong as a matter of law. Resolution 1. I consider the Review Panel fell into error in determining that original costs disclosure and costs estimate failed to comply with the statute. 2. I do not think it is right is a matter of law that a single figure estimate must always be provided. Whilst it is true that each case will turn on its own facts, to my mind, a cost estimate which breaks up estimated future legal expenses into a small number of separate, albeit generic, categories and provides an estimate for each does not need to then perform the arithmetical exercise and add up each of those figures to arrive at a single total. I also consider the provision of an estimate by way of a range, if that is the best estimate the legal practitioner can provide, satisfies the mandatory requirement. 3. Nothing in the words of the legislation suggests such a result and, whilst acknowledging that the legislation is protective of consumers of legal practices, such an overly strict construction does not in any way promote the clear purpose of the legislation if a particular client does not in fact understand the estimate. 4. I shall return shortly to the consequences of this. Ongoing disclosure – "as soon as practicable" 1. With respect to the disclosure in relation to the Guardianship Proceedings, no written disclosure was ever issued prior to the relevant invoices. The Plaintiff says it was never practicable to do so prior to the invoice being issued. 2. The Review Panel concluded that, notwithstanding the urgency of the proceedings, disclosure could have taken place at some point prior to the issue of the invoices and thus, disclosure was not made "as soon as practicable" after instructions are originally given in the matter. 3. There are a number of authorities which have dealt with the phrase, "as soon as practicable", in various other statutory contexts. In Geldert v Western Australia [2012] WASCA 226; 271 FLR 83, the Court said at [50] and in construing the phrase "as soon as practicable", practicable was to be given its natural and ordinary meaning of "capable of being put into practice, done, or effected, especially with the available means or with reasonable prudence; feasible". In Creely v Ingles [1969] VR 732, Little J held that the phrase was one to be determined in light of all the circumstances. His Honour observed that the phrase is one which defies definition, which can only be determined in the context of all circumstances and not by reference to some mathematical basis. In Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38, Bryson J said at [43]: "... The range of facts and circumstances which can bear on what is practicable is a wide range: the choice of that word is a choice away from the narrow, the restrictive and the theoretical. A requirement that a meeting is to be held as soon as practicable is not a requirement that a meeting be held as soon as possible, nor in the least time which can be arranged." 1. It seems to me self-evidently right that the phrase "as soon as practicable" does not mean as soon as possible. What is practicable can only be determined in all the surrounding circumstances, including how busy the legal practitioner is. 2. The Plaintiff contends that the finding that no costs estimate was provided "as soon as practicable" is wrong because when one takes into account the extreme urgency of all of the legal work, the subject of the matter, that it simply was not practicable to issue a cost estimate at any time prior to the work being completed and the invoices issued, and that to do so after the work has been completed is a nonsense. 3. I understand there is a widespread practice in the profession, where legal work has been provided on a very urgent basis and that the first opportunity to put anything in writing to the client is upon the sending of a final invoice for the work. The most obvious example of this being an urgent conference where advice is sought and provided in that conference. The practice of many lawyers is, upon the sending of that final invoice, to also send a cost estimate. There can be no doubt that such a requirement is not consistent with the purpose of the legislation. The client has already made its choice to incur the legal fees and has incurred them and there is nothing more to happen but for them to receive and pay the invoice. Whilst I do think it would be appropriate in such circumstances for a lawyer to explain in a covering letter the basis of the invoice, for example the basis upon which the invoice has been calculated, to describe what is happening at that point as an "estimate" is nonsensical. It cannot be an estimate because the thing being estimated has already happened and is known as a certain fact. That fact is disclosed in the invoice itself. 4. In this case, the Review Panel concluded, that the time when it became first practicable for the Plaintiff to issue a cost estimate in relation to the Guardianship Proceedings was some time after the urgent appearance before Henry J on the Saturday before the return of the matter before Pembroke J the following Friday. That is prior to the matter being completed. 5. The question here turns not on any suggested error of law, rather it turns on an evaluative judgement made by the Review Panel after consideration of all of the evidence. It is an evaluative judgement about, which it seems to me, reasonable minds might come to different conclusions. 6. I have reviewed the evidence and, whilst I accept that the proceedings were bought with extreme urgency insofar as the initial applications to Henry J and Pembroke J were concerned and indeed the trip in between to Tweed Heads, it seems to me that there was a time in which it was practicable to provide a costs estimate in writing prior to the appearance before Pembroke J to issue a cost estimate. This was prior to all of the work, the subject of the invoices being completed, and as such I am not prepared to find that the conclusion of the Review Panel in this regard was erroneous. Resolution 1. There was no error in the Review Panel's conclusion that a failure to issue a costs estimate in relation to the Guardianship Proceedings was in breach of s 174 of LPUL. Ground 2 - Updating estimates that were provided 1. The Review Panel found, in relation to the ongoing Family Court Proceedings, that there were various points in time when there was a failure to provide updating estimates. They were provided but the finding was that they were not provided as soon as practicable. 2. These findings, which involved rejecting submissions made by the Plaintiff to the effect that a series of emails and the like did not comply with the requirements of the legislation because they were, to the Review Panel's mind, not clear enough but also were cast in terms of estimates and did not contain a single figure, are infected with the same legal error I have already identified. 3. I have reviewed that same material and have come to a different conclusion. To my mind, appropriate updating estimates were provided in relation to the Family Court Proceedings as soon as practicable. What are the consequences of those these findings? 1. In summary, as to disclosure, I have concluded: 1. That there was a valid costs estimate issued to Mr Price at the commencement of the retainer; 2. leaving to one side the Guardianship Proceedings, there were appropriate disclosures updating those estimates from time to time; and 3. in relation to the Guardianship Proceedings, an estimate was not provided "as soon as practicable". 1. As I have already observed, the amount of money that is play on this aspect of the appeal is, on my understanding, very small. 2. The consequences of my finding that the Review Panel fell into error in determining that the original cost assessment was invalid is no more than to disentitle the Plaintiff from the prima facie evidential provision which provided that, as a starting point, prima facie, the amount per hour disclosed was reasonable. The parties ran the matter before the Review Panel on an all or nothing basis. There was really no evidence, other than the fact of the disclosed hourly rate, as to whether that rate was reasonable or not. The Review Panel brought its experience to bear and took into account a number of factors to come to its conclusion that a composite figure of $600 was reasonable. I have considered the Review Panel's reasoning carefully and have concluded that if the prima facie starting point of the hourly rate disclosed is factored into the Review Panel's reasoning and the evidence that was before it, the correct result would have been a finding that the hourly rate disclosed hour was reasonable in relation to all of the work, other than the Guardianship Proceedings. 3. It is true, as the Defendant has reminded me, that not every error identified on an appeal such as this will justify the Court making an order setting aside the determination of the Review Panel and substituting a different result. 4. In Bellevarde Constructions Pty Ltd v CPC Energy Pty Ltd (2011) 12 DCLR (NSW) 304; [2011] NSWDC 55, Johnson DCJ said: "Not only must a party who is appealing under s 384(1) establish an error of law, that party must also demonstrate that the error made justifies disturbing the assessment: Gorczynski v AWM Dickinson Son [2005] NSWSC 277 at [22]. Thus it has been said by Associate Justice Malpass: "The onus borne by the plaintiff is not merely to demonstrate error as to a matter of law arising in the proceedings to determine the application but also to demonstrate that any such error is material to the determination: Honest Remark Pty Ltd v Allstate Explorations NL [2008] NSWSC 439 at [24]." 1. In this instance, the amount of any change in the ultimate result will be small, however, it can easily be quantified by an arithmetical exercise, and I do not see any reason why, that being the case, the award should not be substituted by an award taking into account the difference per hour in relation to all of the proceedings other than the Guardianship Proceedings. 2. In relation to the guardianship proceedings, upon the basis that no proper cost estimate was provided, then the Review Panel's finding of $600 per hour has not been shown to be in error and ought stand. 3. I propose to direct the parties to seek to agree as to what the mathematical consequence is of those findings. Ground 3 - Reasonableness of the Guardianship Proceedings 1. I have already set out the Court of Appeal's extremely critical observations of the proceedings. 2. The Review Panel was, it seems to me, influenced by those observations. The Review Panel expressly stated that it took into account that the Plaintiff's solicitor was not a party to those proceedings and was not bound by any of the findings. Nonetheless, the Review Panel's reasoning mimics that of the Court of Appeal. The Court of Appeal considered the matter by reference to some to the evidence that had been put before the Courts below and its opinion is weighty, deserving of considerable respect, and there is no reason why the Review Panel should not have taken it into account, however it is not at all determinative. The Plaintiff's fundamental complaint is that the Review Panel did not consider anything more than the Court of Appeal's observations and that on a proper review of all of the evidence, including the additional evidence that is put before me that was not before the Review Panel, to come to the opposite conclusion and effectively accept that, in circumstances of extreme urgency in the context of a medical catastrophe which had overtaken Mr Price, there was nothing unreasonable in urgently approaching the Court to seek injunctive relief. 3. The Plaintiff observes that, after a number of hours debate before Henry J, an undertaking was extracted from the Defendant and that ultimately the matter was dealt with by consent. The criticism that is made of this approach is the failure to request such an undertaking prior to commencing the litigation. 4. The Plaintiff has submitted that this is a counsel of perfection which has elements of unrealism attached to it. Firstly, an undertaking inter partes would not have the same value as an undertaking to the Court especially in light of the lack of trust between the parties, and secondly, in the circumstances of the perceived extreme urgency, to take such steps could itself be the subject of criticism for failing to move quicker in direct defiance of clear instruction. 5. The question is a difficult one, and again an evaluative judgement is required, however, I have before me slightly different evidence than was before the Court of Appeal and the Review Panel and it does seem to me that the Review Panel gave, perhaps, excessive weight to the observations of the Court of Appeal. More to the point, because of the evidence the subject of the grant of leave, I have different evidence before me than was before the Review Panel. 6. I am satisfied that the Review Panel fell into error in determining that the entire proceedings were unreasonably commenced and brought. 7. It seems to me that the factual situation confronting everyone involved, but in particular the Plaintiff as solicitor for the family members of Mr Price and as Mr Price's solicitor boils down to the following essence: 1. Mr Price was locked in heavily and robustly contested litigation with Mrs Price in the Family Court which had already ranged beyond the Family Court into the Supreme Court of New South Wales; 2. Mr Price had made an enduring power of attorney and guardianship grant to Mrs Price before they became estranged; 3. Mr Price, whilst being away from his home and family in Tweed Heads, had a catastrophic medical episode wherein he was not capable of making decisions for himself and it was not clear whether he would live or die in the short term; 4. Mrs Price asserted to the rest of the family her powers under the power of attorney and/or the guardianship grants; 5. Mr Price's children and Ms Theodore were understandably very concerned. After all, in the Family Court proceedings, Mr Price had accused Mrs Price of stealing many millions of dollars, so as to put it beyond the reach of the matrimonial pool; 6. Mrs Price was asserting a power to determine who could and could not visit Mr Price and was apparently, or at least it was being alleged, giving instructions to medical staff at the hospital as to his treatment; 7. Mr Price's children approached the Plaintiff as solicitor and sought advice. There was some correspondence which culminated in Mrs Price's lawyers being asked for an undertaking that she not exercise her powers in the short term; 8. On the Friday before the application before Henry J, Mrs Price's solicitors wrote to the Plaintiff and asserted that the demand that had been made for a response before the weekend was unreasonable and that instructions would be obtained and that the solicitors would revert by close of business Monday, 3 February, and requested that no application be made pending that response. 9. The Plaintiff then sought instructions from Christopher Price, who said to him words the effect: "No way, we don't trust Mary or her solicitor, they could be saying this whilst Mary is transferring his assets. If she's up at the hospital at the moment issuing demands to medical staff, she can respond to the request you have made. Please make an approach to the Court straightaway, we are not prepared to wait". 1. Upon receipt of those instructions, the Plaintiff commenced to prepare the proceedings and made the urgent application to the Supreme Court the following day, being Saturday morning; 2. Upon the hearing of that application, Mrs Price was represented by a solicitor who did not in the first instance proffer any sort of undertaking but argued the matter until towards the conclusion of the argument after discussion as to the adequacy of an undertaking. There was then a debate as to whether in the circumstances a "confirmation order" of change of guardian would be required from the Court, which seems to have been agreed to by the solicitor then acting for Mr Price, who also recognised in argument at least the necessity for there to be given to the Court on the Saturday an undertaking. 1. It is not suggested that the Plaintiff was ethically obliged to not follow his client's explicit instructions and bring the application. Nor is it suggested, nor could it be suggested, that the application did not have reasonable prospects of success. So much was acknowledged by the solicitor who appeared before Henry J and the fact that orders were ultimately made by consent the following Friday by Pembroke J. 2. The criticism made by both the Court of Appeal and the Review Panel is nothing more and nothing less than, in all those circumstances, the Plaintiff was duty-bound to recommend to his client that the appropriate thing for them to do was to wait until a response was received from Mrs Price's solicitor on the following Monday. Because he did not do so, the costs incurred have been held to not be fair and reasonable. 3. It seems to me that there are a number of fundamental problems with this criticism. The first is it seems wholly unrealistic to suggest that, if such advice had been given, it would have been accepted by Christopher Price in light of the express statements by him when he was told about the request for delay to the effect that he did not trust Mrs Price or her solicitor and was very concerned that she might misappropriate large amounts of money. It is important to emphasise that, at no time, has Christopher Price ever said that, if given such advice, he would have given different instructions. To infer that he would have done so when he chose not to give evidence to that effect is extremely problematic. I do not consider that, in those circumstances, it is appropriate to infer that, if the Plaintiff had recommended a wait and see approach, Christopher Price would have accepted that advice. To the contrary, I consider it a near certainty that he would have insisted that the matter be commenced when it was. The second is that the Plaintiff did bring to the attention of his client the request for a delay and sought instructions which were obtained. The third is the premise of the proposition must be that no solicitor acting reasonably would have done anything other than recommend a wait-and-see result. I can well understand that some lawyers might have made such a recommendation, but many others would not have. It must be said that, in the event that nothing was done over the weekend and Mrs Price did in fact do something that caused prejudice to the Plaintiff's clients, the Plaintiff would undoubtedly have been the subject of strident criticism and potential claims for breach of duty of care, the simple case being he had clear instructions to do one thing, which was entirely available for him to do, and he did not do it. 4. For those reasons, I am not satisfied that the finding that the Guardianship Proceedings fees were unreasonable and disproportionate because the proceedings were commenced "precipitously" is correct. Indeed, whilst it is an evaluative judgement, having reviewed all of the evidence that was before the Review Panel and having the benefit of the affidavit of the Plaintiff of 28 September 2023 which was not before the Review Panel but is where the evidence I have extracted above as to the instructions from Christopher emanates, I consider that the Review Panel made an error of mixed fact and law in concluding that the costs of the Guardianship Proceedings should be disallowed in total. Whilst I have concluded this to be an error, it is important to emphasise that to so describe it is a misnomer, what has really occurred here is that I have come to a different conclusion of fact on different evidence than was before the Review Panel by way of some sort of quasi-appeal/hearing de novo process, the end result being this finding. 5. There is a subsidiary issue embedded in this part of the appeal, that is, whether the costs of a trip to Tweed Heads by the Plaintiff can be justified. The evidence surrounding that is extremely complex and voluminous, although the amount in question seems to come down to about six hours' worth of solicitor time. 6. The Review Panel disallowed the trip to Tweed Heads, but only, it seems, upon the basis that the entire Guardianship Proceedings were unnecessary. Whilst it is unusual and would ordinarily not be something for which a solicitor should charge for a solicitor to fly from Sydney to Tweed Heads to serve a document, on the evidence, the Plaintiff was doing more than that. He had been asked to perform that task by his clients but also, he had been asked to go and speak to the medical staff at the hospital to make sure they understood the effect of the orders that have been made by Henry J, and to deal with what was obviously a very difficult situation. 7. In all the circumstances, I consider that the Plaintiff ought be allowed the time cost for travelling to Tweed Heads at $600 per hour. For reasons which are not entirely clear, and perhaps are inconsistent with the other findings of the Review Panel, the disbursements for that trip have already been allowed. Resolution 1. I have concluded that the Review Panel did make an error of fact in concluding that the proceedings generally were unreasonably commenced and maintained. 2. Again, there is now an arithmetical exercise which I trust the parties can agree upon to determine the consequences of this finding. Ground 4 - A line by line critique 1. The fourth ground of appeal is a series – many hundreds – of specific items which the Review Panel determined, after careful consideration, to either disallow in whole or in part. 2. Without going into the history of the original summons and the various letters of particulars, whereby the Plaintiff identified its grounds of appeal, I think it is fair to say that the first time the Defendants understood the nature of this these complaints with any specificity at all was when the Plaintiff's written submissions were received. In the context of the factually dense issues raised, it was impossible for the Defendants to respond in any meaningful way at that time, especially since the information given in those submissions was itself not complete. Rather, it was a summary of an expert opinion that had been an unsuccessful component of the application for leave to rely on additional evidence. 3. The Plaintiff suggested that the way to deal with this was to look at eight examples of alleged error in this regard and then, if I was satisfied that there were some errors, to refer the entirety of this aspect of the appeal to a referee – presumably a qualified costs assessor – to perform an assessment, albeit by way of a referral of the question in a s 89 appeal. Again, no notice of this proposal was given to the Defendants prior to it being put forward in oral submissions. 4. This is an entirely unsatisfactory state of affairs. The simple fact is the matter has been case managed for some time by the list Judge and was listed before me for an appeal on all issues. On such an appeal, it is of course necessary for the Defendant to be afforded procedural fairness. To proceed with this ground of appeal in the current circumstances would be to deny the Defendant procedural fairness and to take the step suggested by the Plaintiff at this stage will only prolong the time and expense involved in bringing this matter to a conclusion. 5. I have looked at the eight examples proffered by the Plaintiff, together with some supporting material. Out of those eight, my prima facie view is that there are four where it is arguable that there has been an error of fact-finding by the Review Panel. However, that is only a prima facie opinion because I have not heard from the Defendant at all on the topics and it may well be that there is a good answer to all of them. 6. There has been no application made at any time for a separate question to be determined within this appeal. There has been no application on notice to send any aspect of the matter to a referee. The amount in issue here is small when compared to the extraordinary costs that must have been devoted to this dispute which is about costs, and it is time, in my judgement, for this dispute to be finalised once and for all. 7. To put it another way, there is a time in every dispute about costs where enough is enough and in this litigation that time has long since come and gone. 8. For all those reasons, I am not prepared to entertain the many individual complaints contained in Ground Four and find no error by the Review Panel in that regard. Where to from here? 1. In summary I have decided: 1. The Review Panel erred in determining that the original costs disclosure did not comply with the legislation. 2. The Review Panel erred in determining that the various costs updating costs disclosure is made in relation to the Family Court proceedings did not comply with the legislation. 3. The consequences of those errors is that the costs in relation to the matters other than the Guardianship Proceedings should be assessed upon the basis of the rates disclosed per hour for solicitors fees, rather than $600 per hour. 4. There was no error in the Review Panel's determination that a costs disclosure was not provided as soon as practicable in relation to the Guardianship Proceedings. 5. The Review Panel made an error in determining that the entirety of the costs relating to the Guardianship Proceedings were not fair and reasonable. 6. The Review Panel ought to have determined the costs of those proceeding by reference to an hourly rate for the solicitors of $600 per hour. 7. I have not found any error in relation to the various matters raised by Ground Four. 1. What should happen next? Relief 1. The Plaintiff's position is that, as a matter of law, I having identified some errors in the Review Panel's reasoning, the entirety of the Review Panel's process is voided and that it is necessary to recommence for myself the entire process so as to come to an overall figure which I think is fair and reasonable. 2. This argument is built on the following foundations: 1. Section 89(2) provides that on an appeal the District Court has all the functions of the Review Panel; 2. The functions of the Review Panel are found in s 85, which include by s 85(2), the following: "The Review Panel has, in relation to the application for review, all the functions of a costs assessor… and is to determine the application… in the manner that a costs assessor would be required to determine…" 1. Section 85(1) provides the Review Panel may upon a review of a determination of a costs assessor, either: 1. affirm the cost assessor's determination; or 2. set aside the costs assessor's determination and substitute the determination that in its opinion should have been made by the costs assessor. 1. So, the argument goes that if this Court identifies error and determines that it is appropriate to set aside the determination of the costs assessor, it then has to determine for itself, without reference to anything that the Review Panel said or did, its own opinion as to the amount to be substituted for the cost assessor's determination. 2. I reject this submission. It seems to me it is fundamentally wrong at a number of levels. First of all, it conflates the notions of the Review Panel's "determination" and its reasons. The "determination" is a statutory creature itself created by ss 87 and 88. The determination of the costs assessor is a certificate of determination which, upon filing with a Court of appropriate jurisdiction, converts automatically into a judgment of that Court. 3. That determination is the end result of the Review Panel's process. It is akin to orders made by a Court. It is not the Review Panel's reasons for coming to that determination. 4. Accordingly, it is only the determination that is the subject of any setting aside and it is only the determination that is substituted by another determination. 5. As a matter of statutory construction therefore, the reasons of the Review Panel are never set aside and remain in existence. To the extent they contain findings not the subject of identified error, they continue to have efficacy. 6. This is an appeal run in an adversarial setting where the parties choose the issues to be determined by the Court. As will often be the case on such an appeal, there will be no complaints about many findings made by a Review Panel along the way to an ultimate conclusion, but, as has happened here, a number of specific findings, either of fact or law, will be under challenge. If a Court on appeal accepts and finds such errors of law, that does not in any way infect the other findings made by a Review Panel which were not the subject of any appeal. To suggest otherwise leads to the absurd conclusion that the identification of one error amounting to say 10% of the amount of an entire determination, has the effect that the Court is required then to redetermine for itself all the other matters determined by the Review Panel, not by reference to anything the Review Panel said, but by starting afresh. This outcome becomes even more absurd when it is noted that, for reasons which I cannot fathom, the legislature has seen it fit to not give this Court the power to remit the whole or any part of a matter back to the Review Panel. 7. The way I approach this matter is that having identified the errors which I have identified, I am going to direct the parties to seek to agree as to the arithmetical outcome of my findings. In other words, how much more should be allowed over and above the amount allowed by the Review Panel, taking into account all of the subsidiary findings of the Review Panel not the subject of a finding of error. If the parties cannot agree, I will decide that matter myself or if necessary, refer it out to an appropriate expert to either prepare a single expert report or perhaps to act as a referee. However, I do perceive that the outcome should be able to be agreed upon by a process of reasonably simple arithmetic. 8. That will then leave the question of costs before the Review Panel and of this appeal which I will hear the parties on. However, I should say at this stage that I have no intention of sending these parties back to another round of costs assessment, and that I will make an order for a gross sum costs one way or the other. I should also say that, in relation to the Guardianship Proceedings conclusion that I have come to, it is in part based on evidence that was not before the Review Panel and accordingly, there may well be scope for the costs of that issue not necessarily following the event, because that result will, at least in part, have been the consequence of an indulgence granted to the successful party. However, I have an open mind on all these issues and will hear the question when the ultimate result is known. 9. There may also be argument as to any consequential variation to the costs orders made by the Review Panel, having regard to the terms of s 204(2) of the LPUL. Orders 1. For present purposes I will do no more than publish these reasons and order the following: 1. Stand the matter over to a date in February 2025 for directions. 2. Direct the parties in the meantime to seek to agree as to the mathematical consequences of my reasons. 3. At the directions hearing, I will either enter orders dealing with the ultimate outcome or make directions to allow the Court to come to a final determination as quickly and as cheaply as possible; and 4. Either deal with questions of costs or make directions as to how costs and other ancillary relief is to be dealt with. ********** 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: 13 December 2024