Wilson v Mirus Australia Pty Ltd [2024] NSWCA 111 (10 May 2024)
This judgment, handed down on 10 May 2024, concerned an application brought by Simon Wilson (Mr Wilson) seeking leave to appeal the decision of Campbell J made in Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432 (Supreme Court proceeding) where His Honour found that a review panel in an assessment of ordered costs has the power to make an order as to the legal costs of the review. The Supreme Court proceeding involved an appeal of a review panel’s determination, in which Rose Legal Costing were instructed to prepare the Review Application and Notice of Objection, securing reductions of around 50% on the original determination, regarding the assessment of ordered costs payable by Mirus Australia Pty Ltd (Mirus) to Mr Wilson.
Mirus instructed John Bartos of Counsel in both the Supreme Court and Court of Appeal proceedings, who himself is a Costs Assessor and Review Panellist, and Dentons were acting on their behalf.
See this article published by Rose Legal Costing outlining the background, judgment and implications of Campbell J’s decision.
Background
On the recommendation of Rose Legal Costing, Mirus initially appealed the Review Panel’s finding that they had no power to make an order as to the costs of the review. The primary ground of the appeal was that the Review Panel’s finding was in contradiction to sections 78 and 85 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Act):
78 Costs of costs assessment of ordered costs
(1) Subject to any order or rules of the court or tribunal concerned, a costs assessor is to determine the costs of an assessment of ordered costs and by whom they are payable.
85 Conduct of Reviews
(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.
Campbell J found in favour of Mirus, stating at [85] that:
“a review panel has power on the determination of a review not only to determine the costs of a first instance assessment of ordered costs and by whom they are payable, but also the costs of the assessment carried out on review and by whom they are payable.” This was by virtue of sections 78 and 86 of the Act, as initially advised by Rose Legal Costing.
The Court of Appeal Proceedings
Mr Wilson sought leave to appeal Campbell J’s decision but sought to do so on the condition that the Court would agree to make no order as to costs before any decision was made with respect to granting leave. Mirus, opposed this proposed order and the Court stated at [13] that “[a] grant of leave is made on the merits of the case, and is not to be the subject of bargaining between an applicant and the court as to orders with respect to costs”.
One of the grounds relied upon by Mr Wilson was that Campbell J erred in concluding that the review panel had the power to award the costs of the review.
The Judgment
The Court ultimately upheld the decision of Campbell J, stating the following at [27]:
“[the] issue involved a straightforward question of statutory construction, namely whether the functions conferred on the review panel pursuant to s 85(2) of the Application Act, included the functions identified in s 78 of that Act, namely the determination of the costs of the assessment and by whom they were payable. Not only was no reasonably arguable error identified in the reasoning of the primary judge, but the conclusion he reached is entirely consistent with the structure of Pt 7 of the Application Act.”
Incidentally, regarding the unusual form of the proposed orders as to costs sought by Mr Wilson, the Court held at [29] that an applicant seeking to avoid the risk of receiving an adverse cost order “is not a reason why costs should not follow the event.”
Implications
This decision of the Court of Appeal upholds Campbell J’s correct interpretation of the Act, namely, that review panels have the power to award a party their costs of the review. This should give confidence to parties hoping to recover their costs of applying for a review of a Costs Assessor’s determination, particularly in circumstances where the merits of making such an application are strong.
For any further inquiries as to this decision, costs assessments, or legal costs generally, contact Kieran today on 02 8089 3167 or email kieran.pulley@rose-lawyers.com.