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Major firm claims costs assessment ‘infected by error of law’
A major Australian law firm has objected to a costs assessor’s determination, claiming it was “infected by error of law”.
Naomi Neilson
Clayton Utz (CU) requested the Supreme Court of the Northern Territory “stand in the shoes of the assessor” and make the determination instead on the grounds the assessor, Robert Perry, erred when he assessed the “fairness and reasonableness of the amount of legal costs” owing by Ceccon Transport.
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In the firms’ submission, CU claimed the assessment did not consider the criteria for a costs assessment and instead considered whether the costs were “reasonable and proportionate”.
In a May 2022 hearing, both CU and Ceccon Transport agreed that the determination should be appealed and set aside.
However, earlier this month, Justice Sonia Brownhill found the court does not have the jurisdiction to determine the costs in Mr Perry’s place, particularly given the fact-finding nature of the work.
Despite a submission from CU that the court would not need to inquire “or give any consideration to the fairness and reasonableness” as it is just a “mechanical task” of applying rates and the work performed, the court disagreed.
Justice Brownhill said the court would be required to make a finding of fact as to costs disclosure, rates and the period they applied.
“Those findings were not made by the costs assessor. The court would be required to make them … To do so would be beyond the constraints of the court’s power,” Justice Brownhill found.
The court heard that Ceccon disputed some of CU’s rates, including what it said were the “unreasonable” fees for solicitors internally conferencing and a claim for solicitors attending to the same task.
The costs assessor had used “words to the effect” of Clayton Utz’s legal costs being reasonable, but also mentioned the costs involved the “doubling up”, duplication of work and in-house lawyer conferencing. He did “not believe … [they] were reasonable”.
CU submitted that in the event the court concluded it did not have the power or jurisdiction to make the determination, the parties should be heard on consequential orders. The court agreed.
