Dlaw Pty Ltd v Croft Developments Pty Ltd

1. [1]

   By notice of motion filed 18 September 2025, the plaintiff appeals pursuant to r 49.4 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), two interlocutory decisions of Harrison AsJ dismissing two notices of motion filed by the plaintiff in separate but related proceedings. There is some urgency to the matter. The appeal against the interlocutory orders came before me on Friday 5 December 2025, with the final hearing listed on Wednesday the following week, 10 December 2025.

2. [2]

   The plaintiff contends that Harrison AsJ erred in deciding in the course of the hearing of the motions on 18 August 2025 to refuse to grant leave to the plaintiff to file amended summonses, and on 28 August 2025, erred in dismissing the remainder of the plaintiff’s notices of motion. Four grounds of appeal, each of which contain several sub-grounds, are relied on by the plaintiff:

3. [3]

   On appeal, the plaintiff seeks that the Court make orders as sought in the notices of motion.

Background

1. [4]

   To understand the plaintiff’s arguments on appeal, it is necessary to canvas the somewhat convoluted history of the relief sought by the plaintiff.

2. [5]

   Dlaw Pty Ltd, a law practice better known as Doyles Construction Lawyers, is the plaintiff in two sets of proceedings in this Court challenging the validity of an application for costs assessment by its former client, Croft Developments Pty Ltd (Croft Developments), named as the first defendant in both proceedings.

3. [6]

   Between 14 September 2021 and February 2024, the plaintiff represented the first defendant in a claim before the Supreme Court of Western Australia, which eventually settled. The plaintiff charged the first defendant a total of $356,725.53 including GST in legal fees by way of regular monthly invoices which were paid in full each month.

4. [7]

   On 12 November 2024, the first defendant lodged an application for costs assessment under s 198 of the Legal Profession Uniform Law 2014 (NSW) (LPUL), listing each of the invoices issued by the plaintiff and seeking to reduce the total costs to $100,502.49. The application was accepted by the manager of costs assessment (the Manager), who assigned the application to Mr Bruce Bentley, a costs assessor (the Assessor).

5. [8]

   On 23 April 2025, the plaintiff issued a further invoice for about $139,000, which reflected an unbilled counsel fee and time charged for the perusal of documents. On 15 May 2025, at the suggestion of the Assessor, the first defendant lodged an amended application for costs assessment to include the additional invoice (the amended application). The first defendant paid a filing fee equal to one per cent of the plaintiff’s $139,095 invoice, that being the difference between the fee paid on the original application, and the fee that would have been required had a single application been made in relation to the total amount of the costs. The application was accepted by the Manager, sealed, and returned to the first defendant’s solicitor, who emailed it to the Assessor and the plaintiff.

6. [9]

   On 26 June 2025, the plaintiff filed two summonses commencing proceedings in this Court, hereon referred to as “proceedings 922” and “proceedings 984” by reference to the last three digits of their respective file numbers. Each of the summonses were supported by near-identical 909-page affidavits. Proceedings 922 is listed for final hearing on 10 December 2025 and proceedings 984 is listed for mention in February 2026. It remains unclear why two separate proceedings were brought. The course taken has led to duplication and confusion. Indeed, the plaintiff’s solicitor appears to have, at times, confused himself.

7. [10]

   The first defendant in proceedings 922 is Croft Developments and the second defendant is the Manager. In the summons, the plaintiff sought various declarations, including a “declaration” that the second defendant’s decision to refer the first defendant’s amended application be set aside; that the first application for costs assessment was withdrawn by the filing of the amended application; and that the amended application was invalid. The plaintiff also sought an order that the costs of the first application be paid by the first defendant.

8. [11]

   In proceedings 984, Croft Developments is listed as the first defendant and the Assessor is the second defendant. In the summons, the plaintiff sought an order that the referral of the amended application for costs assessment be permanently stayed. The plaintiff also sought various declarations to the effect that the amended application was invalid, that the Assessor perform certain actions as part of the costs assessment process, and that, should the costs agreement between the plaintiff and first defendant be declared void, the costs assessment process must conclude as a result of Assessor not having jurisdiction.

9. [12]

   On 4 August 2025, the plaintiff filed a notice of motion in each of proceedings 922 and 984. In prayers 1 to 3, both motions sought that:

   1. (1)

      Leave be granted to the plaintiff to file and serve an amended summons in the proceedings in the form attached to the accompanying affidavit;

   2. (2)

      Leave be granted to the plaintiff to seek discovery pursuant to r 59.7(4) of the UCPR; and

   3. (3)

      Upon leave being granted, the first defendant be ordered to give discovery of certain categories of documents, pursuant to r 21.2(1)(a) of the UCPR.

10. [13]

    On 18 August 2025, the hearing on both motions took place before Harrison AsJ. In the course of the hearing Harrison AsJ refused leave to the plaintiff to file the amended summonses. On 28 August 2025, her Honour handed down a decision dismissing the motions with costs: DLAW Pty Ltd v CROFT DEVELOPMENTS Pty Ltd (2025/243984); DLAW Pty Ltd v CROFT DEVELOPMENTS Pty Ltd (2025/243922) [2025] NSWSC 978.

11. [14]

    On 18 September 2025, the plaintiff filed a notice of motion in proceedings 922 appealing Harrison AsJ’s orders made in the 922 and the 984 proceedings. Subsequently, on 23 October 2025, the Registrar ordered that the motion in proceedings 922 be “taken to have been filed” in proceedings 984, with evidence in one to be evidence in the other.

The nature of the proceedings

1. [15]

   The relief sought by the plaintiff in each summons is for a number of declarations to be made. The first order sought in proceedings 922 is a “declaration” that the decision of the Manager (the second defendant) to refer the amended application for assessment be “set aside”. What appears to be sought is an order in the nature of certiorari. Additionally, the summons in proceedings 984, as originally filed, seeks (in proposed order 1) an order that the costs assessment based on the amended application be permanently stayed. This order might be understood as an order prohibiting the Assessor from continuing with the assessment process. Proposed order 3 in proceedings 984 is an order that the second defendant (the Assessor) take certain action. While not stated, this order is an order in the nature of mandamus. Relief of the type sought is available in the exercise of the Court’s supervisory jurisdiction, consistent with s 65 and s 69 of the Supreme Court Act 1970 (NSW). There is some complexity as to whether applications for declarations in relation to the administrative decisions made by the second defendants in the course of the statutory tasks assigned to them is properly described as relief in the supervisory jurisdiction of the Court: see Kaldas v Barbour (2017) 107 NSWLR 341; [2017] NSWCA 275. The parties ultimately proceeded on the basis, without differentiation, that the supervisory jurisdiction of the Court was sought to be invoked. In the circumstances, and having regard to the application for orders in the nature of certiorari, mandamus and prohibition, this appears to be the most appropriate course (with consequent implications for the applicable rules).

2. [16]

   In the meantime, the plaintiff seeks that certain interlocutory orders be made. As noted above, the application for these orders before Harrison AsJ was unsuccessful. An appeal lies as of right from that decision to a single Judge of this Court pursuant to r 49.4 of the UCPR (this not being a case where separate provision is made for an appeal to the Court of Appeal). The appeal is as of right, even if, as here, the subject of the appeal is an interlocutory decision: Royal Guardian Mortgage Management Pty Ltd v Nguyen [2012] NSWSC 769 at [29].

3. [17]

   The appeal is governed by s 75A of the Supreme Court Act and is by way of rehearing: Do Carmo v Ford Excavations Pty Ltd (1981) 1 NSWLR 409 at 420 (Cross J). See also M J Sherrin Pty Ltd v Cunneed & Co Pty Ltd [1993] NSWCA 166 (Kirby P, Mahoney and Clarke JJA agreeing) and, more recently, CBX2 Pty Limited v National Australia Bank Limited [2016] NSWCA 79 at [7]. The Court has the power and duties of the Court from which the appeal is brought: s 75A(5), (6) of the Supreme Court Act. Further evidence may be adduced on the appeal pursuant to s 75A(7), a matter addressed below. The standard of review is the “correctness standard” and the plaintiff bears the onus of establishing “some legal, factual or discretionary error”: Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30; Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40. Findings of fact made and inferences drawn at first instance are to be followed unless those findings or the drawing of those inferences are so flawed so as to attract review based on the principles in Warren v Coombes (1979) 142 CLR 531 at 551; [1979] HCA 9 (Gibbs ACJ, Jacobs and Murphy JJ).

4. [18]

   Two matters with respect to the proceedings are notable. First is the existence of a statutory scheme for the review of costs assessment, and appeals from such reviews (subject to the amount of costs in dispute) provided by Divs 5 and 6 respectively of Pt 7 of the Legal Profession Uniform Law Application Act 2014 (NSW). Second is the discretionary nature of the relief ultimately sought. From the plaintiff’s perspective, however, the availability of merits review following a determination is inapposite. The plaintiff maintains (amidst other contentions) that the amended application made to the Manager should not have been accepted and, consequently, that the process presently underway as a result of that application is flawed.

Further Evidence

1. [19]

   At the hearing of the appeal, the plaintiff sought to rely on two affidavits which were not before the primary judge. These were the affidavits of Ms Tara O’Connell affirmed 26 June 2025 and 19 September 2025. Their tender was rejected. My reasons for that rejection are as follows.

2. [20]

   As already observed, the appeal is brought pursuant to UCPR r 49.4 and governed by s 75A of the Supreme Court Act. Section 75A(7) to (9) provide:

3. [21]

   Rule 49.12 makes provision for the form of any such evidence. The content of each of the affidavits was concerned with events that occurred prior to the hearing before Harrison AsJ. It was, as a result, necessary for the plaintiff to establish “special grounds”. Nothing was put before me to show that the evidence was not available prior to the hearing. Given its date, the 26 June affidavit clearly was. The evidence in the 19 September affidavit was concerned with matters known to the plaintiff such that the content of the affidavit was also available prior to the hearing. While there is no reason to doubt the credibility of the evidence, much of what is contained in the affidavits was already in evidence or not in dispute. Special grounds were not established and the tender was rejected: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160.

The application for leave to amend

1. [22]

   An inordinate amount of time having been spent in understanding the course taken by the plaintiff, the sequence of events that emerged was as follows:

   1. (1)

      On 26 June 2025, the plaintiff filed the original summonses (in proceedings 922 and 984), together with near-identical 909-page affidavits in support of each.

   2. (2)

      On 4 August 2025, the plaintiff put on notices of motion seeking to, amongst other things, amend each summons. The amended summonses corrected the ACN number of the plaintiff and (in proceedings 922) struck out paragraph 4, and (in proceedings 984) struck out paragraphs 1 and 2.

   3. (3)

      On 8 August 2025, before the Registrar, the parties agreed to those amendments by consent, with the plaintiff to file the amended summonses, as agreed, by 15 August 2025.

   4. (4)

      The plaintiff did not file the agreed amended summonses by 15 August. Instead, on 15 August 2025, the plaintiff filed further affidavits in proceedings 922 and 984, each exhibiting a (further) proposed amended summons. The proposed summons in proceedings 922 sought to reinstate order 4 as struck out in the proposed amended summons of 4 August 2025. Conversely, the proposed summons in proceedings 984 is the same as the amended summons of 4 August 2025, in that it strikes out orders 1 and 2 of the original summons which sought orders for a permanent stay and a declaration that the amended application is invalid.

2. [23]

   The effect of the various amendments is that (subject to correcting the ACN which has always been uncontentious), in proceedings 922, the plaintiff now seeks orders identical to those in the original summons, and in proceedings 984, seeks orders identical to those in the amended summons of 4 August as agreed by the parties. It is entirely opaque as to why the plaintiff followed the course it did in pursuing the application to amend and exhibiting the proposed amended summonses to two further affidavits.

3. [24]

   Harrison AsJ rejected the application to amend on the basis that the proposed amended summonses were deficient. What is required in the summons is a product of the nature of the proceedings themselves. The first defendant made this point in its submissions:

4. [25]

   At the hearing of the matter the issue was dealt with relatively quickly:

5. [26]

   In the judgment her Honour said at [11]:

6. [27]

   Her Honour had, however, already ruled on the application and provided reasons. The reasons for the decision should be treated as those given in the course of the hearing on 18 August 2025. Her Honour’s ruling and reasons for her ruling are best described as “an ex tempore judgment … given in brief terms immediately following submissions in which it is apparent that the judge is relying upon an understanding reached in the course of submissions”: see Jae Bok You v R [2020] NSWCCA 71 at [20] per Basten JA. Nothing ultimately turns on this.

7. [28]

   Given an order for a stay was sought by the plaintiff in the motion, the only relevant change to the original summonses sought (by the 15 August 2025 proposed amendments) was the abandonment of the claim in the 984 proceedings for a declaration that the amended application filed on 15 May 2025 was invalid.

8. [29]

   The plaintiff’s attempt to confine its claims for relief is a surprising base for a protracted argument. To the extent that the proposed amended summonses were deficient, the original summonses suffered the same deficiencies. To the extent that the plaintiff no longer wishes to argue for a particular order to be made, it cannot, at hearing, be forced to argue for that particular form of relief.

9. [30]

   As discussed above, the relief sought is a mix of relief in the nature of prerogative relief and declarations. With respect to the seeking of declarations, the Supreme Court has inherent jurisdiction to grant such relief (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581; [1992] HCA 10), that power being confirmed by s 75 of the Supreme Court Act.

10. [31]

    Without descending further into the drafting of the various orders sought, it seems clear that the primary judge was right in understanding that what was sought was judicial review in relation to decisions taken in the costs assessment process. The parties proceeded before me on this basis.

11. [32]

    Part 59 of the UCPR is titled “Judicial Review Proceedings”. UCPR r 59.1(a) provides that the Part applies to proceedings for judicial review “… under section 65 and 69 of the Supreme Court Act 1970 and other proceedings in the supervisory jurisdiction of the Supreme Court”. UCPR r 59.4 provides:

12. [33]

    The reasons given for rejecting the summons were brief. Nonetheless, in stating “they don’t comply”, “[t]hey don’t set out your grounds of defence; they don’t even set out the decision - you’re seeking judicial review, so I refuse to file them” it is clear from the transcript that her Honour rejected the amended summonses on the basis that they failed to comply with the rules applicable to judicial review proceedings, that being Part 59. I would read her Honour’s reasons as indicating a complete failure to comply with r 59.4 in the sense that none of the orders sought identified the matters required by the rule.

13. [34]

    The amended summonses are far from a model to be followed in future cases. However, in proceedings 922, the proposed order 1 was as follows:

14. [35]

    This, it can be seen, sets out the relevant decision. It also sets out the basis on which the decision should be set aside, that being the asserted failures listed in proposed order 1(a) to (c). Thus, at least order 1 complied with the rules. Ultimately, in the course of oral argument, the first defendant did not resist the amendment in 922.

15. [36]

    In proceedings 984, the first defendant maintained its objection to the amendment of the summons. The opposition was based on the contention that the summons was, due to its failure to comply with UCPR r 59.4, liable to be struck out. The difficulty is that refusing to grant leave would result in the plaintiff proceeding on the original summons. That is, it would not achieve the first defendant’s objective in striking out the summons. If that is what is sought, it should be properly argued, giving the plaintiff a proper opportunity to respond.

16. [37]

    It might also be observed that at least one order (proposed order 9) is framed reasonably clearly in terms of seeking a declaration that the costs application is invalid, and includes the ground on which it is said to be invalid, that being, it “does not challenge all of the costs agreements the Costs Respondent [that is the plaintiff] relies on to charge the costs”. In relation to this ground there does not appear to be any “decision” which the plaintiff could be expected to identify. It does, however, state what is sought, and asserts that to be the legal consequence of an asserted state of affairs, thus stating clearly the relief and its basis. While there will, no doubt, be argument as to the adequacy of the summonses, it is at least arguable that some of the grounds comply with r 59.4 as adapted to the circumstance where there is no “decision”.

17. [38]

    Having regard to the nature of the amendments sought to be made as discussed above, I am of the view the plaintiff should have been allowed to file the amended summonses, and consequently, that the primary judge erred in refusing leave for it to do so.

The application for discovery

1. [39]

   The plaintiff in paragraph two of its motion appealed against:

2. [40]

   Despite the reference to the 984 proceedings, it became apparent that what was in contest was discovery from the Manager, that is, the second defendant in the 922 proceedings. At the appeal, this was clarified and the ground of appeal amended to refer to the 922 proceedings. The orders sought in the motion in the 922 proceedings were:

3. [41]

   The plaintiff appears to make two complaints in relation to the disclosure. The plaintiff submits that having been requested to provide the documents, the second defendant (the Manager) was, as a result of the statutory office held, obliged to do so. The effect of the argument is that the Court should enforce this obligation. The second argument is that the Court should exercise the power in UCPR r 59.7(4) and/or r 21.2, to compel discovery.

4. [42]

   The plaintiff submits that having been requested to provide the documents sought, the Manager (the second defendant in the 922 proceedings) should have done so. The plaintiff largely repeated the submissions made at first instance in support of its contention. It was submitted that the representative of the second defendant in proceedings 922, the Crown Solicitor, was wrong to take the view that in the absence of a Court order there was no obligation to provide the documents.

5. [43]

   The plaintiff relies on the decision of the High Court in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36; [1980] HCA 13 (Hardiman), where the Court observed:

6. [44]

   The second defendant (in proceedings 922) has filed a submitting appearance in accordance with ordinary practice and consistent with the High Court’s observations in Hardiman, above. The plaintiff submits that the High Court made clear that the second defendant is obliged to remain impartial and appear to remain impartial and that the second defendant has misunderstood the effect of the decision. As I understand the argument, the plaintiff submits that the second defendant’s resistance to the provision of the documents undermines that impartiality or at least appears to do so. The situation here is somewhat less extreme than in Hardiman, given the submitting appearance, as compared with the Tribunal in Hardiman actively contesting the litigation. That of course does not, of itself, mean that any general principle arising from Hardiman does not apply. The difficulty is, however, that the High Court in Hardiman did not suggest that the Tribunal did not have the power to appear and nor was it suggested it could have been restrained from appearing. Rather, the active participation of the Tribunal in the litigation was a course that the High Court would not “encourage”. Nothing in Hardiman supports a contention that the second defendant was not entitled to deal with the plaintiff’s requests as it did. I would not, in any event, accept that anything in the stance taken resulted in the second defendant becoming a protagonist, or otherwise endangered its appearance of impartiality.

7. [45]

   In a similar vein, the plaintiff submits that the second defendant has obligations as a “model litigant”. There is “an expectation that [the executive government] will act and be seen to act as a ‘model litigant’” (Mahenthirarasa v State Rail Authority of New South Wales (No 2) (2008) 72 NSWLR 273; [2008] NSWCA 201 (Mahenthirarasa) at [17] citing Yong v Minister for Immigration and Multicultural Affairs [1997] HCA 495; (1997) 75 FCR 155 at 166E, per Beaumont, Burchett and Goldberg JJ). In Mahenthirarasa, the failure to comply with model litigant obligations redounded in an order for costs. The plaintiff also referred to Holloway v Chairperson of the Residential Tribunal (2001) 51 NSWLR 716; [2001] NSWCA 209 where the Court of Appeal referred to the expectation that the defendant would assist the Court with submissions as to its operation. Notably, in that case, the defendant having filed a submitting appearance, there was no contradictor.

8. [46]

   No authority was produced supporting the contention that any obligation referred to in model litigant guidelines, or any “expectation” of the Court based on the identity of a party is enforceable by the Court. Even if I were to assume that compliance with the NSW Government’s model litigant policy (https://dcj.nsw.gov.au/legal-and-justice/strategies-and-plans/information-for-government-lawyers/model-litigant-policy-civil-litigation.html) would result in the disclosure of the documents sought, there is no legal basis to compel that disclosure simply on the basis of non-compliance with a policy. Nor assuming the Court ought to have an expectation that the documents would be provided, is there any basis, founded on expectation alone, for an order of the Court that the expectation be met. The primary judge was correct to refuse the relief sought on the basis of any asserted non-compliance with expectations or policy.

9. [47]

   The plaintiff’s written submissions did not address the grounds as framed. The submissions were largely directed to a contention addressed above and essentially replicate what was put before Harrison AsJ resulting in her Honour not receiving the assistance to which she was entitled.

10. [48]

    While (unhelpfully) not addressed in the submissions, the complaint articulated in the grounds of appeal is that (in proceedings 922) the primary judge erred in finding there was no statutory provision in the LPUL to empower the Manager to provide discovery. This complaint is directed to Harrison AsJ’s finding (at [36]):

11. [49]

    The relevant question is whether there is a basis to compel the second defendant to provide discovery. The plaintiff, in its ground of appeal, asserts that any question of what the LPUL provides with respect to discovery was not relevant to the application. The plaintiff’s point is that discovery was sought in proceedings in this Court. As set out above, proposed order 2 of the plaintiff’s motion in proceedings 922 sought leave to seek discovery pursuant to UCPR r 59.7(4), UCPR Part 59 providing rules applicable to judicial review proceedings. The rule provides:

12. [50]

    The documents were sought for the purposes of the judicial review proceedings. Contrary to what appears to have been the primary judge’s view, there was, therefore, a power to order that the second defendant provide discovery as set out in the UCPR. The primary judge erred in this regard.

13. [51]

    Rule 21.2(4) of the UCPR provides that an order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue. The primary judge found that, even if she was wrong as to the existence of a power to provide discovery, discovery should not be ordered, stating (at [37]):

14. [52]

    It is necessary for me to consider whether this conclusion was correct. In this regard I note that, whether r 21.2 applies in addition to r 59.7 or not, I would not grant leave absent satisfaction that the documents sought are relevant to a fact in issue: Cummeragunja Local Aboriginal Land Council v Nicholson (No 2) [2017] NSWSC 1248 at [59] per N Adams J. Rule 21.1(2) of the UCPR defines a document as being “relevant to a fact in issue” if:

15. [53]

    Even if the primary judge was wrong as to the question of relevance, there remains a discretion as to whether to grant leave to order discovery. Relevant to the grant of leave is the relevance of the material sought (which may be a matter of degree), the nature of the proceedings, the scope of the documents sought and the objectives of the Civil Procedure Act 2005 (NSW) including, in particular, s 56. These factors may distil into a question of whether discovery is reasonably required for the fair disposition of the proceedings: Cummeragunja Local Aboriginal Land Council v Nicholson (No 2).

16. [54]

    It is necessary then to consider the documents sought in the context of the issues in the case. The amended summons (in the 922 proceedings), which reflects the prayers for relief sought in the original summons, seeks:

17. [55]

    As set out above, by order 1, the plaintiff seeks a “declaration” that the second defendant’s decision to refer the amended application for assessment of costs be “set aside”. The uncertain nature of the relief sought (a declaration or relief in the nature of certiorari) has been referred to above. That is a matter for another day. For present purposes, I accept the plaintiff seeks to call into question the validity and effect of the amended application.

18. [56]

    An affidavit of Ms Amal Witnish of 15 August 2025 has been filed in the proceedings. Ms Witnish’s affidavit provides the following evidence with respect to the payment of fees in relation to the application for the assessment of costs, annexing supporting documentation:

    1. (1)

       On 8 November 2024, a payment of $2,562.23 was made on lodging the original application.

    2. (2)

       On 15 May 2025, the amended application was lodged and an invoice in an amount of $1,390.95 was issued for the difference between the fee on the original application and that for the amended application.

    3. (3)

       On 21 May 2025, the amount of $1,390.95 was paid.

19. [57]

    There is no suggestion of any challenge to Ms Witnish’s evidence. The plaintiff knows the amounts of the invoices issued by it to the first defendant, the method of calculation of the fee to be paid for the costs assessment and the fees actually paid. The plaintiff has all it needs in order to press its contention that the “relevant fee” was not paid.

20. [58]

    The plaintiff contends that the effect of filing the amended application was that the original application was withdrawn (order 2 of the 922 summons). Relatedly, it is claimed that the amended application should be set aside because it was accepted without deciding that the original costs assessment was withdrawn (order 1(c) of the 922 summons). I apprehend the plaintiff’s contention to be that the result of the original application being withdrawn is, at least, that the “relevant fee” to be paid on filing the amended application should have been calculated based on the total amount in dispute rather than the difference between the amount in the amended application and the original application. Whatever the merits of that argument, it will not be assisted by the documents sought.

21. [59]

    Section 68(2) of the Legal Profession Uniform Law Application Act provides:

22. [60]

    Despite the reference in s 68(2)(c), there are no “costs assessment rules”. There are relevant provisions in the Regulation. In oral argument it was accepted that the plaintiff was aware (and I would add, has evidence) that the amended application was filed with the Manager and in addition, has evidence that this came about at the suggestion of the Assessor. The plaintiff also has evidence of the fee that was paid (and argues this was not the prescribed fee). Service of the application on the other parties, that is the plaintiff, for the purposes of s 68(2)(c) is also known to the plaintiff (and forms the basis of an argument that it should have been served by the Manager, not the plaintiff). The first defendant made clear at the hearing before me that none of these matters are in issue. No foundation for discovery based on s 68(2) of the Legal Profession Uniform Law Application Act has been established.

23. [61]

    Regulation 34 relevantly provided:

24. [62]

    Regulation 34(2), as can be seen, is not relevant.

25. [63]

    Regulation 34(1)(a) required the second defendant in the 922 proceedings (the Manager) to send a copy of the application to the plaintiff together with the specified notice. As noted above, it is accepted that there is evidence the application was sent to the plaintiff by the first defendant and not the Manager, there being evidence to this effect.

26. [64]

    Any response for the purposes of reg 34(1)(b) will have been lodged by the plaintiff. The plaintiff contends that the amended assessment was referred to the Assessor before the 21 day period specified in reg 34(1)(c) had expired. Correspondence from the Manager to the plaintiff dated 20 June 2025 makes plain that the Manager did not regard the amended application as a new application, and as a result advised that there was no new 21 day period for a response (termed an “objection” in the letter). The issue, it is clear, is not with the facts but rather the application of reg 34 to the amended application. The first defendant again accepted this to be the case.

27. [65]

    Given the nature of what is in dispute, nothing in the documents sought to be discovered will assist the plaintiff. There is no basis for a grant of leave to seek discovery.

The application for a stay

1. [66]

   The plaintiff appealed against the dismissal of paragraph 4 of its motion filed 4 August 2025 in proceedings 922 seeking a stay of the costs assessment. No such paragraph exists; paragraph 4 of the motion filed 4 August 2025 refers only to costs.

2. [67]

   Having regard to the submissions, it became clear that the plaintiff’s intention was to appeal against the refusal of proposed order 4 in the 984 proceedings. The second defendant responded on this basis. All that might be said at this juncture is that the duplication the result of the plaintiff filing separate proceedings in the same cause has led to added complexity and a level of confusion. As observed at the outset, the confusion, it appears, extended to the plaintiff, with a flow on effect to all participants. The resultant waste of time is, to temper my language, regrettable.

3. [68]

   The ground of appeal in respect of the plaintiff’s application for a stay set out a number of sub-grounds. It is convenient to commence with the complaint in 3.4:

4. [69]

   Regrettably, the plaintiff, at no stage in the written or oral submissions before Harrison AsJ, identified for the assistance of the Court the source of the power relied on to order the stay. This was despite counsel for the first defendant pointing out that the plaintiff had not identified the relevant power and submitting it did not exist (T22.47).

5. [70]

   Harrison AsJ held at [50]:

6. [71]

   It is clear that the reference to s 67 of the Supreme Court Act in ground 3.4 should be a reference to s 67 of the Civil Procedure Act. It can be accepted that the costs assessment process is not a proceeding before the Court and that s 67 of the Civil Procedure Act had no application to the present matter. The plaintiff, however, in ground 3.4 points to the power in s 66 of the Supreme Court Act. Section 66 of the Supreme Court Act provides:

7. [72]

   The plaintiff sought the order and can be expected to have been in a position to point to the source of power. The language of a “stay” was also inapposite. Harrison AsJ was, primarily as a result of the lack of assistance from the plaintiff, in error in not recognising the existence of the power to restrain the second defendant in proceedings 984 from proceeding with the costs assessment.

8. [73]

   It is necessary to reconsider the question of whether the second defendant in proceedings 984 should be restrained on an interlocutory basis. (As noted above, it may be that the final relief is more appropriately framed as relief in the nature of prohibition, noting that this issue was not the subject of argument and my view is very much a preliminary one.) With respect to the issues raised in the 922 proceedings, the first defendant submits that there is no serious issue to be tried. It points to the obvious practicalities of the situation. That is, following the filing of the original application, the plaintiff issued a further invoice. It submits that it was sensible and practical to deal with that further invoice in the way that was done. That is, rather than instituting a second and separate application, the amended application was lodged with the fee calculated based on the total.

9. [74]

   The first defendant points out that the authority relied on by the plaintiff, Brierley v Reeves (2001) 51 NSWLR 689; [2001] NSWCA 189, to found a submission that a failure to comply with the Regulation results in invalidity is of some age and relates to the earlier legislation. The first defendant correctly submits that the consequences of any failure to comply with the Regulation are to be determined in accordance with the High Court’s decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 and, in addition, draws attention to Kennett v Muc t/a GH Healey & Co [2013] NSWSC 119 where, albeit in obiter dicta, Adamson J distinguished Brierley v Reeves, having regard to the different legislation dealt with in that case and the different nature of the non-compliance.

10. [75]

    Whilst acknowledging the submissions of the first defendant with respect to the 922 proceedings, I would accept, on a preliminary assessment of the arguments before me, that the plaintiff has at least an arguable case that the Regulation was not complied with, and an argument available as to the consequences of any such non-compliance if established. The determination of whether it is “just and convenient” to restrain the second defendant requires not only an assessment of the plaintiff’s case but also consideration of the balance of convenience. The present case is far removed from the type of case where the subject matter of the dispute will be destroyed in the event that a stay is not granted. Any prejudice to the plaintiff by a continuation of the process is limited. This is particularly so in a context where the hearing of the plaintiff’s summons in proceedings 922 is listed on 10 December 2025, which means there are just two working days between the date this matter was heard and the hearing.

11. [76]

    The plaintiff accepted that, in the event it is successful and the process now being undertaken is without jurisdiction, it will not bear on any cost for work done by the Assessor. The plaintiff submitted however, that it would be put to time and trouble in responding to a process that should not continue. As a practical matter, the plaintiff accepted that nothing was likely to be required of it before the hearing on Wednesday. The judge who hears the matter on Wednesday will have a much better sense of the merits of the plaintiff’s argument in the 922 proceedings. I would, as a result, not order a stay based on the arguments in the 922 proceedings.

12. [77]

    If the plaintiff is successful in the 922 proceedings, the costs assessment will be brought to a halt and the 984 proceedings will be redundant. If unsuccessful in the 922 proceedings, the plaintiff intends to continue with the 984 proceedings. Those proceedings are, as noted above, for mention in February 2026. There is, therefore, the real prospect the plaintiff will, if unsuccessful in the 922 proceedings, be required to engage in a process it submits, based on the contentions in the 984 proceedings, should not continue.

13. [78]

    The orders sought in the 984 proceedings are, per the amended summons:

14. [79]

    There appears to be, on the face of various of these proposed orders, reason to doubt a court would make a declaration in the particular form sought. Putting that issue to one side, it can be seen that each of the orders sought is concerned with the costs assessment process, with the exception of proposed order 8, which makes a contention going to jurisdiction. An obstacle to the plaintiff obtaining a stay in the 984 proceedings based on complaints in relation to the process (as opposed to the jurisdictional complaints raised in the 922 proceedings), is the presence of a statutory scheme for review.

15. [80]

    Division 5 of Pt 7 of the Legal Profession Uniform Law Application Act provides for a system of review of costs assessments. In Wilson v Mirus Australia Pty Ltd [2024] NSWCA 111, Basten and Gleeson JJA observed at [27]:

16. [81]

    If dissatisfied with the determination of the review panel, Div 6 of Pt 7 provides for an appeal to either the District Court or this Court, depending on the amount in dispute. In the present circumstances, there appears to be no issue that any appeal would be to this Court. Of note, s 89(2) provides that the Court has all the functions of the review panel. Section 89(4) of the Act provides that the 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”.

17. [82]

    Given the statutory process for review, and the nature of the relief sought in all but order 8, I would be slow to interfere with the process provided by Parliament by granting a stay: see Griffith v Australian Broadcasting Corporation [2013] NSWSC 750, Johnston v Boyd [2023] NSWSC 194 and Nano Logistics Pty Ltd v Harper James Law Group Pty Ltd [2024] NSWSC 251. That is not to say that there will not be occasion where interference with the process is warranted. Indeed, that would be the result if the plaintiff is successful in the 922 proceedings. But to stay the proceedings on the basis of the arguments raised as to the process in the 984 proceedings would require something more than has been put forward by the plaintiff. I am in this regard far from convinced that allowing the assessment to continue will result in “an assessment of the costs on a wrong basis”: Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60.

18. [83]

    Order 8 raises a question as to the appropriate jurisdiction in the event the plaintiff’s costs agreement is declared void. In that event, there is a question as to whether the assessment process is required to be undertaken in New South Wales, where the plaintiff is located, in Victoria where the first defendant is located, or in Western Australia where the litigation took place. Thus, in the event that the costs agreement is found not to be valid, the Assessor will need to confront this issue. This determination can be revisited on a review and, if necessary, on an appeal. Thus, while apparently going to jurisdiction, proposed order 8 is not relevantly distinguishable from the other orders sought with respect to the availability of review. Given this, I would not grant a stay based on proposed order 8.

Conclusion

1. [84]

   While I would allow the plaintiff to file the proposed amended summonses in the 922 and the 984 proceedings, I would also observe that this could have been achieved very simply given the first defendant’s attitude and the Registrar’s order of 8 August 2025. I would otherwise dismiss the appeal. It will be necessary to hear the parties on costs.

Orders

1. [85]

   I order as follows:

   1. (1)

      Leave is granted for the plaintiff to file and serve an amended summons in proceedings 2025/00243922 by 4 pm on 8 December 2025 in the form contained in Exhibit TOC-2 to the affidavit of Tara O’Connell affirmed 15 August 2025.

   2. (2)

      Leave is granted for the plaintiff to file and serve an amended summons in proceedings 2025/00243984 by 4 pm on 8 December 2025 in the form contained in Exhibit TOC-2 to the affidavit of Tara O’Connell affirmed 15 August 2025.

   3. (3)

      The plaintiff’s appeal is otherwise dismissed.