Background
DLaw Pty Ltd, a law practice, issued invoices to its former client, Croft Developments Pty Ltd, which paid them and later applied under s 198 of the Legal Profession Uniform Law (NSW) to have the costs assessed. After DLaw issued further invoices, Croft amended its application to include them. The Manager, Costs Assessment accepted the amended application and referred it to a costs assessor, who determined it.
DLaw sought declaratory relief in the Supreme Court, contending that the statutory scheme did not permit amendment of a costs-assessment application. The primary judge held that the scheme implied such a power. DLaw then sought leave to appeal, while related judicial-review proceedings remained pending and a statutory review panel had completed—but not yet published—its determination of the costs assessment.
The Court’s Holding
The Court of Appeal unanimously refused leave to appeal, with costs. Although the existence of a power to amend was arguable and of some public importance, the Court did not decide that question. It identified several possible statutory bases for such a power but concluded that this was not the appropriate proceeding in which to resolve the issue.
The application was both too late and premature: the assessor had already made a determination and statutory review had occurred, yet related issues remained for decision in separate proceedings. Broader statutory appeal routes would permit correction of errors after publication of the review decision. The declaratory relief might also have no practical utility because neither the assessor nor the review panel would be bound, the assessor’s determination was not challenged for quashing, and other unresolved questions could make amendment immaterial.
Key Takeaways
- The Court left open whether the New South Wales costs-assessment scheme contains an implied power to amend an application to add later invoices.
- An issue of public importance does not automatically justify leave to appeal; utility, timing, available remedies and the interests of justice remain decisive.
- Courts may refuse judicial review where it would fragment an ongoing statutory process and effective review or appeal mechanisms can address any error.
Why It Matters
The decision cautions practitioners against isolating and appealing an intermediate issue while related costs-assessment proceedings, statutory reviews and judicial-review claims remain unresolved. Even a significant question about the administration of the costs-assessment regime may be deferred until it can be decided in a proceeding that resolves the parties’ dispute comprehensively.
It also confirms that the supposed power to amend a costs-assessment application remains unsettled at appellate level. The refusal of leave should not be read as endorsing the primary judge’s conclusion that such a power exists.