Malouf v Mavrakis t/as Mavrakis & Associates Lawyers (No 2) [2026] NSWCA 176

Catchwords: COSTS – costs assessment – d etermination – review/appeal – application for judicial review of District Court on appeal against decision of review panel under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) – where District Court is to have “all the functions of the review panel” – District Court required to conduct a rehearing of the application for review and consider for itself the question whether the costs are fair and reasonable – where primary judge failed to exercise statutory task – jurisdictional error established ADMINISTRATIVE LAW – privative clause – discussion of history and context of s 176 of the District Court Act 1973 (NSW) Court of Appeal Supreme Court New South Wales Amendment notes Medium Neutral Citation: Malouf v Mavrakis t/as Mavrakis & Associates Lawyers (No 2) [2026] NSWCA 176 Hearing dates: 18 August 2026 Date of orders: 28 August 2026 Decision date: 28 August 2026 Before: Payne JA at [1]; Ball JA at [2]; Griffiths AJA at [66] Decision: (1) To the extent necessary, extend the time for the filing of the Summons until 13 March 2026; (2) Set aside the orders made by the District Court on 12 December 2025, 13 February 2026 and 5 March 2026; (3) Remit the matter to the primary judge to be determined in accordance with these reasons for judgment; (4) There be no order for costs in this Court. Catchwords: COSTS – costs assessment – d etermination – review/appeal – application for judicial review of District Court on appeal against decision of review panel under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) – where District Court is to have “all the functions of the review panel” – District Court required to conduct a rehearing of the application for review and consider for itself the question whether the costs are fair and reasonable – where primary judge failed to exercise statutory task – jurisdictional error established ADMINISTRATIVE LAW – privative clause – discussion of history and context of s 176 of the District Court Act 1973 (NSW) Legislation Cited: Criminal Law Amendment Act 1883 (46 Vic No 17) s 176 District Court Act 1973 (NSW) ss 167, 176 Justice Acts Amendment Act 1900 (NSW) Justices Act 1902 (NSW) s 146 Justices Legislation Repeal and Amendment Act 2001 (NSW) Legal Profession Act 2004 (NSW) s 384(1) Legal Profession Uniform Law Application Act 2014 (NSW) ss 68, 70(5), 83, 85, 89, Sch 1 Legal Profession Uniform Law (NSW) ss 172, 174, 178, 199, 200, 204 Supreme Court Act 1970 (NSW) s 69 Uniform Civil Procedure Rules 2005 (NSW) rr 20.14, 36.16(3A), 59.10 Cases Cited: Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 D v C; Re B (No 2) [2018] NSWCA 310 Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 Evans v Donaldson (1909) 9 CLR 140; [1909] HCA 46 Ex parte Sweeney (1906) 4 CLR 716; [1906] HCA 73 Ffrost v Stevenson (1937) 58 CLR 528; [1937] HCA 41 Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 Khamiss v Director of Public Prosecutions ( NSW) (No 2) (2025) 118 NSWLR 112; [2025] NSWCA 193 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 McCabe v Riechelmann (No 2) [2023] NSWDC 201 Malouf v Mavrakis t/as Mavrakis & Associates Lawyers [2026] NSWCA 113 Mavrakis t/as Mavrakis & Associates Lawyers v Malouf [2025] NSWDC 511 Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604 ; [2022] NSWCA 209 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; [2001] HCA 30 Reznitsky v District Court of New South Wales [2015] NSWCA 194 Rodger v De Gelder [2015] NSWCA 211 Texts Cited: Sir Alfred Stephen and Alexander Oliver, Criminal Law Manual: Comprising the Criminal Law Amendment Act of 1883 (Sydney, 1883) Category: Principal judgment Parties: Connor John Malouf (Applicant) George Mavrakis t/as Mavrakis & Associates Lawyers (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: KJ Sanders (Applicant) Submitting Appearance (First Respondent) Submitting Appearance (Second Respondent) Solicitors: S&R Lawyers Pty Ltd (Applicant) PH Litigation & Advisory (First Respondent) Crown Solicitor for NSW (Second Respondent) File Number(s): 2026/4082 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Civil Citation: Mavrakis t/as Mavrakis & Associates Lawyers v Malouf [2025] NSWDC 511 Date of Decision: 05 December 2025 Before: Weber SC DCJ File Number(s): 2023/273933 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not to be read as part of the judgment] A solicitor acting for a client in a personal injury claim terminated his retainer before the conclusion of the claim and applied for assessment of his costs. An assessor found that the solicitor’s costs were payable on termination of the retainer and gave a certificate of determination of costs in the amount of $111,274.54. The client applied for review of the determination. At the time of the assessment and the Review Panel’s determination, the client’s personal injury claim had not been resolved. The Review Panel gave a substituted determination of $31,158.63 reflecting the solicitor’s disbursements and concluded that the solicitor was not entitled to recover his professional fees. The Review Panel concluded that: (1) the solicitor had not complied with his disclosure obligations under s 174 of the Legal Profession Uniform Law (NSW) ( LPUL ), with the result that the costs agreements issued by the solicitor were void; (2) the solicitor had failed to contract out of the provisions in Sch 1 to the Legal Profession Uniform Law Application Act 2014 (NSW) ( LPULAA ) limiting costs in personal injury matters, such that at the time of the assessment he had no entitlement to payment of his costs; (3) the Review Panel was not required to assess the solicitor’s professional fees, but had it been required to do so, it would have assessed them at $55,000 including GST, for a number of reasons. The solicitor appealed to the District Court under s 89 of the LPULAA, which provides that the appeal was by way of rehearing (s 89(4)) and that the primary judge had “all the functions of the review panel” ( s 89(2) ). The functions of the review panel , set out in s 85 of the LPULAA , include “review [of] the determination of a costs assessor”: s 85(1). Under subs (2) the review panel has “all the functions of a costs assessor in relation to the assessment concerned and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment”. The appeal was stayed pending resolution of the client’s personal injury claim, which occurred in July 2024 for $500,000. The primary judge concluded that: (1) Sch 1 to the LPULAA did not apply “until the amount recovered has been determined”, and in any event did not apply in view of the amount recovered; (2) noncompliance with s 178 of the LPUL only had the consequence that "the presumption that the fees are reasonable is lost" and the solicitor was required to have his costs assessed before they could be recovered in court proceedings. The primary judge did not assess the claim for costs and made orders reinstating the assessor’s determination. The client applied for judicial review of the primary judge’s decision under s 69 of the Supreme Court Act 1970 (NSW). The Court (Ball JA, Payne JA and Griffiths AJA agreeing) held, setting aside the orders made by the primary judge and remitting the matter to the primary judge: On appeal under s 89, the District Court must conduct a rehearing of the application for review and in doing so must consider for itself the question whether the costs are fair and reasonable having regard to the matters referred to in s 200 of the LPUL. The primary judge did not do that. Rather, having concluded that Sch 1 of the LPULAA did not apply and that the assessment of fair and reasonable costs was unaffected by any failure to comply with the disclosure obligations imposed by s 174 of the LPUL other than that “ the presumption that the fees are reasonable is lost ” , his Honour simply accepted the costs assessor ’ s assessment because of the “ benefits which costs assessors enjoy over the Court ” . That is not what s 89 of the LPULAA required or permitted him to do : at [54], [60]. Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98, referred to. The primary judge ’ s error was jurisdictional . If the primary judge had undertaken his own assessment of the reasonableness of the costs, it would have been necessary for him to consider the matters referred to by the Review Panel as reasons why it would have substituted a lower determination of the solicitor ’ s costs than the determination reached by the assessor. There is realistic possibility that on consideration of those matters, the primary judge would have agreed with some or all the views expressed by the Review Panel : at [55]. LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12, applied. Discussion of the history and context of s 176 of the District Court Act 1973 (NSW): at [38]-[47]. Evans v Donaldson (1909) 9 CLR 140; [1909] HCA 46; Ffrost v Stevenson (1937) 58 CLR 528; [1937] HCA 41; Reznitsky v District Court of New South Wales [2015] NSWCA 194; Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69, referred to. JUDGMENT PAYNE JA : I agree with Ball JA. BALL JA : The applicant, Mr Connor Malouf, disputes the amount of costs he is liable to pay to Mr George Mavrakis, a solicitor who acted for him in a personal injury claim. In 2022, a costs assessor determined that the applicant was liable to pay Mr Mavrakis $109,519.80 for his professional fees and disbursements. The determination was the subject of an application for review by the applicant, and an appeal to the District Court of NSW by Mr Mavrakis. By an amended summons filed on 24 June 2026, the applicant seeks judicial review of the decision of Weber SC DCJ ( the primary judge ) made on 5 December 2025, and associated orders, the effect of which was to reinstate the certificate given by the costs assessor: see Mavrakis t/as Mavrakis & Associates Lawyers v Malouf [2025] NSWDC 511 ( primary judgment or PJ ). The orders made by the primary judge were stayed by Griffiths AJA on 15 June 2026: see Malouf v Mavrakis t/as Mavrakis & Associates Lawyers [2026] NSWCA 113. To the extent necessary, the applicant also seeks an extension of time to file his summons . The Uniform Civil Procedure Rules 2005 (NSW) ( UCPR ) r 59.10 requires proceedings for judicial review to be commenced within three months of the date of the relevant decision. The primary judge made his decision on 5 December 2025 , but the orders were not entered until 12 December 2025. If the relevant date is the date the orders were entered, the application was within time. If the relevant date was the date the primary judge delivered reasons for judgment, it was six days late. Submitting appearances have been filed by the first respondent, Mr Mavrakis , and the second respondent, the District Court, with the result that there is no active contradictor. Background The applicant was badly injured in an incident in April 2017, in his final year of high school. His father and tutor at the time , Mr Sam Malouf ( Mr Malouf ), approached Mr Mavrakis on 2 May 2017 for advice in relation to making a claim for damages on the applicant ’ s behalf. Mr Mavrakis started working on the claim the same day. Mr Mavrakis acted for the applicant until about May 2021, including in proceedings commenced by Mr Malouf as the applicant ’ s tutor in January 2020. Mr Mavrakis issued four costs agreements over the course of his retainer. The first costs agreement, dated 25 September 2017 and issued on 20 October 2017, gave an estimate of $30,000 inclusive of GST for fees and disbursements up to the commencement of proceedings. The second, issued to Mr Malouf on 7 December 2018, gave an identical estimate . The third, issued to Mr Malouf on 11 February 2020, gave an estimate of total costs up to and including final hearing of $171,900 including GST. It included an additional paragraph stating that Mr Malouf and the applicant would be responsible for the “ pre-payment of all medico-legal assessments or any other expert ” necessary for the preparation of the applicant ’ s proceedings. The fourth, issued to Mr Malouf by email on 7 May 2021, estimated total costs up to and including the final hearing to be $215,113 including GST. None of the costs agreements stated that Mr Mavrakis ’ s fees and disbursements were conditional on achieving a successful outcome or payable only at the conclusion of the claim or otherwise contingent on achieving a successful outcome. However , Mr Mavrakis provided his services on the basis that he would seek payment of disbursements as they were incurred but would not charge for his professional fees until the conclusion of the claim. Mr Mavrakis issued invoices for disbursements, which Mr Malouf and the applicant did not pay. In May 2021, Mr Malouf signed a deed acknowledging a debt of some $28,000 owed to Mr Mavrakis in respect of disbursements. Later in 2021, Mr Mavrakis terminated his retainer for non-payment of his disbursements . On 29 March 2022 , Mr Mavrakis issued a bill of costs for $151,801.90 and applied for it to be assessed under s 68 of the Legal Profession Uniform Law Application Act 2014 (NSW) ( the LPULA A ) . The costs assessment On 21 October 2022, the assessor issued his certificate of determination of costs, and his reasons. He allowed $ 109,519.80 , comprising fees of $77,9 7 7.02 including GST, expenses of $1,750 and disbursements of $29,792.78. The assessment excluded the fees of counsel who was originally retained by Mr Mavrakis on the applicant ’ s behalf and who continued to act for the applicant after termination of Mr Mavrakis ’ s retainer. The assessor concluded that Mr Malouf had received each of the costs agreements issued by Mr Mavrakis, that it was part of the agreement between the parties that “ expenses were payable by ” the applicant and Mr Malouf, and that “ fees were generally payable on termination of the [retainer] ” . The assessor issued a certificate of determination of costs in the amount of $111,274.54, which included part of the filing fee paid in relation to the application. Mr Mavrakis filed the certificate of determination with the Supreme Court on 16 November 2022, with the consequence that under s 70(5) of the LPU L AA the certificate took effect as a judgment of the court. Application for review The applicant applied for review of the determination under s 83 of the LPULA A , and on 1 May 2023 the Review Panel issued its certificate of determination of review and its reasons. The Review Panel gave a substituted determination of $31,158.63, which was the amount of the disbursements claimed by Mr Mavrakis less the filing fee for the application for review. The Review Panel concluded that Mr Mavrakis was not entitled to recover his professional fees. In reaching that conclusion, the Review Panel concluded that Mr Mavrakis had not complied with his disclosure obligations under s 174 of the Legal Profession Uniform Law (NSW) ( LPUL ) , because: (a) the first costs agreement had not been given “ when or as soon as practicable after instructions are initially given in a matter ” : see s 174(1)(a); (b) the first costs agreement did not contain an estimate of total costs; and (c) items claimed in the bill of costs showed that the “ estimate ” in the 7 May 2021 costs agreement of costs up to the commencement of proceedings had been exceeded by August 2020, with the result that Mr Mavrakis “ was required to update his estimate, certainly from September or October 2020 by the latest ” . One result of that conclusion was that Mr Mavrakis had failed to contract out of Sch 1 of the LPULA A , which operate s to fix the maximum costs for legal services provided to a party in connection with a claim for personal injury damages if the amount recovered does not exceed $100,000 : see cl 4 . In particular, cl 2 of Sch 1 provides that if the amount recovered on a claim for personal injury damages does not exceed $100,000, the maximum costs for legal services provided to a plaintiff are fixed at the greater of 20% of the amount recovered or $10,000: see Sch 1, cl 2(1)(a). At the time of the costs assessment and of the Review Panel ’ s determination, the applicant ’ s claim for personal injuries had not been resolved. Consequently, according to the Review Panel, Mr Mavrakis had no entitlement to payment of his costs at the time of the assessment. It gave the following reasons : 5.42 It is not for the Review Panel to speculate as to the possible outcome of the proceedings. There are no guarantees of success in litigation. 5.43 The Review Panel considers that at the time Mr Mavrakis filed the application for assessment, in the circumstances, where he failed to contract out of Schedule 1 costs, he had not [sic] entitlement to costs as the amount of these will depend on the outcome of the proceedings. In the circumstances the Review Panel considers that the Costs Assessor erred in determining the fair and reasonable amount of costs due to Mr Mavrakis. 5.44 This does not apply to the disbursements, which given the Panel's determination of the nature of the costs agreement and the provisions of Schedule 1 are payable at present whatever the outcome. [footnote omitted] In addition , the Review Panel concluded that , as a consequence of the failure to comply with the disclosure obligations in s 174 : (a) the costs agreements were void under s 178, with the consequence that Mr Mavrakis could not recover his costs in accordance with those agreements ; (b) under s 178(1)(2) Mr Mavrakis was not entitled to recover costs until they were assessed, with the consequence that he was not entitled to interest on the disbursements he was entitled to recover ; and (c) Mr Mavrakis was liable to pay the costs of assessment under s 204(2)(a) and (b). Section 204 relevantly provides that unless a costs assessor “ believes that in all the circumstances it is not fair and reasonable for the costs to be paid otherwise ” the law practice is to bear the costs of a costs assessment if the law practice has failed to disclose a matter required to be disclosed in the manner required by Division 3 (which includes s 174) or the law practice ’ s costs have been reduced by 15% or more on the assessment. In view of those conclusions, t he Review Panel considered it was not required to assess Mr Mavrakis ’ s professional fees . However, it said that , had it been required to do so, it would have assessed Mr Mavrakis ’ s “ fair and reasonable ” costs at $55,000 including GST. It gave the following reasons for reducing the professional fees allowed by the costs assessor: (a) The time claimed for letters to medical and other experts seeking reports especially as a number were settled by counsel; (b) The claims made and the time taken following up experts, counsel, the client, the court and others for reports and documents; (c) The claims made and the time taken in arranging appointments and conferences; (d) Travel time claimed at the Solicitor’s full rate. The panel determines that this should be charged at 50% of the rate in accordance with the [C osts A ssessment R ules Committee] guidelines; (e) Letters which merely attach a document for which a separate charge has been made to draft or peruse such document; (f) Many claims would not have occupied the solicitor for a period of six minutes and accordingly the Panel has reduced the time and costs of those claims to an amount which is considered to be fair and reasonable for the work done; (g) The time for a number of attendances such as conferences and drafting pleadings is excessive given the input of counsel for the same work; (h) Attendances such as perusing brief documents or short telephone calls which occupied the solicitor for much less than six minutes; (i) Many attendances were either in the nature of administrative work which should have been incorporated in the solicitor’s hourly rate or work charged at paralegal rates. The Review Panel also concluded that Mr Mavrakis was liable to pay the costs of the review. The decision of the primary judge On 28 August 2023, Mr Mavrakis commenced proceedings in the District Court exercising his statutory right of appeal against the decision of the Review Panel under s 89 of the LPULAA. That section gives a right of appeal to the District Court, but only with leave if the amount of costs in dispute is less than $25,000, or to the Supreme Court, but only with leave if the amount of the costs in dispute is less than $100,000. Subsection (2) provides that “ The District Court or the Supreme Court (as the case requires) has all the functions of the review panel ” . Subsection (4) provides: An appeal is by way of 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. The proceedings before the District Court were stayed pending resolution of the applicant ’ s personal injury claim . That claim was resolved on 15 July 2024 by way of a consent judgment in the applicant ’ s favour for $500,000 and for payment of the applicant ’ s costs in the agreed sum of $200,000 ( the Consent Judgment ) . The primary judge concluded that the Review Panel erred in concluding that the effect of the cost capping provisions in Sch 1 of the LPULA A was that Mr Mavrakis could not recover his professional fees, on the basis that: ( a ) cl 2 of Sch 1 “ has no work to do until the amount recovered has been determined ” ; ( b ) it was wrong for the Review Panel to apply “ the costs capping provisions when the outcome of the proceedings was not known ” . In support of the first of these propositions, the primary judge referred to McCabe v Riechelmann (No 2) [2023] NSWDC 201 ( McCabe ) : see PJ[26]-[27]. The primary judge also exercised his power to admit fresh evidence on the appeal, consisting of the C onsent J udgment. Based on th e C onsent J udgment, his Honour concluded that the costs capping provisions in respect of personal injury claims contained in Sch 1 of the LPULA A had no application . As to the adequacy of disclosure in the costs agreements , the primary judge considered that s 178 of the LPUL did not have the consequence that the costs agreements were void ab initio or that Mr Mavrakis was not entitled to payment for his services, but rather that Mr Mavrakis was required to have his costs assessed before they could be recovered in court proceedings: PJ[29]-[37]. His Honour concluded: [38] Thus, in my view, a matter of non-disclosure has no role to play at a cost assessment beyond its role in leading to a conclusion that, by dint of the non-disclosure, the presumption that the fees are reasonable is lost. This loss of the presumption leads to a requirement for the legal practitioners to undertake a costs assessment before they can seek to recover the fees concerned. To my mind, it would be unsatisfactorily circuitous for the issue of non-disclosure to be raised at the very costs assessment which the non-disclosure required. His Honour considered it unnecessary to decide other issues raised on the appeal (which included a challenge to the contingent assessment of costs made by the Review Panel). He said: [47] I am conscious of the benefits which costs assessors enjoy over the Court in matters of costs assessment which were described by Basten JA in G azecki v McCabe Lawyers Pty Ltd at [43], which have been extracted earlier in these reasons. [48] Accordingly, I consider the appropriate order to be [sic] to determine the proceedings as one reinstating the certificate for determination of costs assessment, which certificate was produced on 21 October 2022. On 12 December 2025, the primary judge relevantly made the following orders: 1. Sets aside the Review Panel’s Certificate of Determination of Review dated 1 May 2023 and Orders that the First Defendant pay the Plaintiff the sum of $111,274.54. 2. Sets aside the Review Panel’s Certificate of Determination of Review Substitution dated 1 May 2023 and Orders that the First Defendant pay the Plaintiff’s costs of the Assessment in the sum of $3,856.05. 3. Sets aside the Review Panel’s Certificate of Determination of Review Panel Costs dated 1 May 2023 (Certificate of Review Panel’s Costs) and Orders that the First Defendant pay to the Plaintiff the Review Panel’s costs in the sum of $13,574.55. On 13 February 2026, the primary judge, on the application of Mr Mavrakis, varied the orders under UCPR r 36.16(3A) by deleting from order 1 the words “ and Orders that the First Defendant pay the Plaintiff the sum of $111,274.54 ” and inserting in their place the words “ and affirm the Determination of the Costs Assessor dated 21 October 2022 ” , and by making a similar amendment to order 2. The effect of those amendments was to preserve the judgment that Mr Mavrakis had obtained from the Supreme Court on registration of the costs assessor ’ s certificate of determination . Their practical effect was to permit Mr Mavrakis to recover interest on the $111,274.54 and $3,856.05 from the time the judgment was registered. On 5 March 2026 , the primary judge ordered the applicant to pay Mr Mavrakis ’ s costs of the appeal. The application for judicial review By his amended summons, the applicant advances five grounds for review (a sixth ground, ground 3, was not pressed at the hearing ) . By ground 1, the applicant contends that the primary judge “ fell into error of law ” in his construction and application of s 174 of the LPUL. Section 174 relevantly 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) … (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. The primary judge is said to have mis-applied that section by concluding that a failure to comply with that section simply led to the loss of a presumption that the legal fees charged by a legal practitioner were fair and reasonable and a requirement to have costs assessed. According to the applicant, the primary judge ought to have found that the non-compliance was relevant to the assessment itself. By ground 2, the applicant contends that the primary judge “ fell into an error or law ” by concluding that cl 2 of Sch 1 of the LPULA A had no application to the costs assessor ’ s assessment because at the time of the assessment the quantum of the applicant ’ s claim had not been determined. According to the applicant, the primary judge should have concluded that the Review Panel ’ s conclusion on the issue at the time it was arrived at was correct. By ground 4, the applicant says that the primary judge “ fell into an error of law ” by failing to assess costs himself. By ground 5, the applicant says that the primary judge denied him procedural fairness by refusing to permit his counsel to make any submissions on the quantum of costs. By ground 6, the applicant contends that the primary judge “ erred ” by amending the orders made on 12 December 2025 in the way that he did. Relevant legal principles There is no right of appeal from a decision of the District Court made under s 89 of the LPULAA to the Supreme Court. Instead, the applicant ’ s application is brought under s 69 of the Supreme Court Act 1970 (NSW), which preserves the Supreme Court ’ s jurisdiction to grant the relief that it would have been entitled to grant by writ but which (with certain exceptions) substitutes for the power to issue writs the power to grant relief by way of judgment or order . Accordingly, this Court may by judgment or order grant relief in the nature or certiorari in cases of jurisdictional error or error of law on the face of the record: see D v C; Re B (No 2) [2018] NSWCA 310 at [4] ( D v C ) . In the case of decisions of the District Court, the power to grant relief in the nature of certiorari is qualified by s 176 of the District Court Act 1973 (NSW) ( the District Court Act ) , which provides: 176 No proceedings in the nature of certiorari No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court However, s 176 does not preclude relief for jurisdictional error: Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; [2010] HCA 1. Relevantly, a n inferior court may fall into jurisdictional error by wrongfully denying or failing to exercise its jurisdiction: see Craig v South Australia (1995) 184 CLR 163 at 177 ; [1995] HCA 58 . The failure may be actual or constructive. Constructive failure to exercise jurisdiction may arise “ where the decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter ” : Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604 ; [2022] NSWCA 209 at [12] (Kirk JA, White and Mitchelmore JJA agreeing). One kind of error of that type , identified in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24] , involves a failure to respond to a “ substantial, clearly articulated argument relying upon established facts ” . Another involves those circumstances where a decision-maker misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided, or misunderstands the nature of the opinion it is required to form: see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 ; [2001] HCA 30 at [41] (Gaudron J); Rodger v De Gelder [2015] NSWCA 211 at [95] (Gleeson JA, Macfarlan and Leeming JJA agreeing). Generally, an error will only be jurisdictional if it is material. As the High Court explained in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 ( LPDT ) : [6] In some cases, where an error is established, the error will be jurisdictional irrespective of any effect that the error might or might not have had on the decision that was made in fact. In other cases, the potential for an effect on the decision will be inherent in the nature of the error. An example of the former is apprehended or actual bias. An example of the latter is unreasonableness in the final result. In such cases, the error necessarily satisfies the requirement of materiality. [7] In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision-making process is ordinarily to be interpreted as incorporating such a “threshold of materiality” in the event of non-compliance. ( emphasis in original; footnotes omitted) There is also a question whether s 176 is limited to criminal proceedings. It appears in Pt 4 of the District Court Act which is entitled “ The criminal jurisdiction of the Court ” . In D v C , the Court proceeded on the basis that s 176 had no application to civil proceedings. Moreover, in Reznitsky v District Court of New South Wales [2015] NSWCA 194 at [45] (note 29), the Court questioned the applicability of s 176 to the exercise of appellate jurisdiction by the District Court under s 384(1) of the Legal Profession Act 2004 (NSW) (the predecessor to s 89 of the LPULAA) . And in Bookarelli Pty Ltd v Katanga Developments Pty Ltd [2017] NSWCA 69 , an applicant for judicial review of a costs appeal framed its summons on the assumption that s 176 applied. In explaining why the summons should be dismissed, Sackville AJA found it unnecessary to decide whether that assumption was correct, although he pointed out in a footnote to the location of s 176 within Pt 4: see [ 9 ]. Section 176 has a long history. It is the modern derivative of a line of privative clauses restricting the availability of certiorari in relation to appeals from summary convictions in the Courts of Quarter Sessions (which were abolished by s 167 of the District Court Act ) . For the history of appeals to Quarter Sessions , see Ex parte Sweeney (1906) 4 CLR 716 ; [1906] HCA 73 and Khamiss v Director of Public Prosecutions (NSW) (No 2) (2025) 118 NSWLR 112 ; [2025] NSWCA 193 . An early antecedent of s 176 appears in the Criminal Law Amendment Act 1883 (46 Vic No 17 ) ( the Amendment Act ), a statute which combined provisions of six Imperial statutes passed in 1861 and which re-enacted more than fifty colonial statutes: see Sir Alfred Stephen and Alexander Oliver , Criminal Law Manual: Comprising the Criminal Law Amendment Act of 1883 ( Sydney, 1883) at v-vi. Part X of the Amendment Act dealt with summary proceedings before justices. A person liable to imprisonment or fine under the Amendment Act could be proceeded against and convicted in a summary way: s 428. There was a right of appeal against the summary conviction to the next Court of General Sessions under s 440. Section 444 provided: Every district or place mentioned in any information deposition conviction summons warrant or order before or by any Justice shall without any allegation to that effect be taken to be in this Colony and within the jurisdiction of such Justice unless the contrary be shewn—And no conviction or adjudication on appeal shall be removed by any writ or order into the Supreme Court and no warrant of commitment shall be held void by reason of any defect therein provided it is therein alleged that the party has been convicted and if there is a valid conviction to sustain such commitment. Section 444 of the Amendment Act was repealed in 1900 by the Justice Acts Amendment Act 1900 (NSW). That statute allowed for certain matters to be dealt with summarily by justices, and, in s 9, provided a right of appeal against conviction to the Quarter Sessions. Section 9(3) provided: (3) No application to quash or vary any conviction or order of a Justice or Justices shall be made to any Court of Quarter Sessions except by way of appeal as herein provided. Two years later, the Justices Act 1902 (NSW) ( the Justices Act ) was passed to “ consolidate the Statutes relating to Magistrates and Justices of the Peace, to proceedings before and in the nature of appeal from and to proceedings against such Magistrates and Justices; and to other matters in connection therewith ” . S ection 122(1) conferred a right of appeal to Quarter Sessions on “ every person who, for any offence, act, or omission, has, by the conviction or other order of a Justice or Justices … been adjudged to be imprisoned or otherwise punished, or to pay any fine or penalty, or to suffer any forfeiture, or to pay any sum of money ” . Section 146 provided: No conviction or order of a J ustice or J ustices, or adjudication upon appeal of a Court of Quarter Sessions, shall be removed by any writ or order into the Supreme Court. Section 146 was interpreted as not applying to the exercise of a jurisdiction independent ly of the Justices Act : see Evans v Donaldson (1909) 9 CLR 140 at 151 ; [ 1909 ] HCA 46 (Griffith CJ) ( Evans ) ; Ffrost v Stevenson (1937) 58 CLR 528 at 575 ; [1937] HCA 41 (Dixon J). In Evans , Griffith CJ observed at 151 -152 : I think it is manifest that [the Justices Act ], which was a consolidation of existing law, relates only to matters with respect to convictions and orders of justices in Petty Sessions, and to orders made for the purposes with which the Act is dealing. It relates entirely to proceedings instituted by way of complaint calling upon a man to show cause why he should not be punished, or have an order made against him for payment of money. Sec. 146 has in my opinion no application to the case of an order made by justice in the exercise of a jurisdiction altogether different. The Justices Act , including s 146 , was repealed in December 2001 by the Justices Legislation Repeal and Amendment Act 2001 (NSW). Section 146 was replaced by s 176 of the District Court Act . At the time of its repeal, s 146 had been amended so that it was in the same terms as s 176. Despite the general terms in which s 176 is expressed, the location of the section in Pt 4 of the District Court Act and its history strongly suggest that it is limited to the criminal jurisdiction of the District Court. However, that point was not the subject of argument before this Court and for reasons which will become apparent it is unnecessary to decide the issue in the present context. In those circumstances, it is preferable not to express a final view on the issue in this case. Consideration The application for an extension of time It is unnecessary to consider whether the relevant date for the purposes of UCPR r 59.10 is the date the primary judge delivered reasons or the date the orders were entered. If the former, the application was filed only six days late. There was a reasonable explanation for the delay. There is no suggestion that Mr Mavrakis was prejudiced by the delay. Consequently, to the extent necessary, the extension of time sought by the applicant should be granted. Grounds 4 and 5 It is convenient to begin with grounds 4 and 5. Those grounds, if made out, raise jurisdictional errors. Moreover, if made out, they would be dispositive of the application, since they would require that the matter be referred back to the primary judge to determine the appeal in accordance with the law. In my opinion, ground 4 is made out . Under s 89(2) of the LPULAA , the primary judge had “ all the functions of the review panel ” . U nder s 89(4) the appeal was by way of rehearing. The functions of the review panel are set out in s 85 of the LPULAA. They include “ review [of] the determination of a costs assessor ” (subs (1)) . Under subs (2) the review panel has “ … all the functions of a costs assessor in relation to the assessment concerned and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment ” . Under s 199 (2) of the LPUL, a costs assessor must: (a) determine whether or not a valid costs agreement exists; and (b) determine whether legal costs are fair and reasonable and, to the extent that they are not fair and reasonable, determine the amount of legal costs (if any) that are to be payable. Section 200 sets out matters to be considered by a costs assessor in determining whether costs are fair and reasonable . The assessor must take into account the principles stated in s 172 ( in summary, that costs be proportionate and reasonably incurred and that they reflect the level of complexity of the matter , the experience and specialisation of the lawyers concerned, the urgency of the work , the time taken to do work , the terms of the retainer , the instructions given and the quality of the work). The assessor may also have regard to any other relevant matter, including whether the lawyer complied with the LPUL and Uniform Rules and any disclosures made. As Basten JA observed in Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98 at [42]-[43], in a passage quoted by the primary judge, there is some awkwardness in the wording of s 89 (2) of the LPULAA in circumstances where the functions of the review panel include reviewing “ the determination of a costs assessor ” . Nonetheless, it is plain from the terms of s 89 that the Court must conduct a rehearing and in doing so must consider for itself the question whether the costs are fair and reasonable having regard to the matters referred to in s 200 of the LPUL. The primary judge did not do that. Rather, having concluded that Sch 1 of the LPULAA did not apply and that the assessment of fair and reasonable costs was unaffected by any failure to comply with the disclosure obligations imposed by s 174 of the LPUL other than that “ the presumption that the fees are reasonable is lost ” , his Honour simply accepted the costs assessor ’ s assessment because of the “ benefits which costs assessors enjoy over the Court ” . That is not what s 89 of the LPULAA required or permitted him to do. Moreover, the error was obviously material in the sense stated by the High Court in LPDT . If the primary judge had undertaken his own assessment of the reasonableness of the costs, it would have been necessary for him to consider the matters referred to by the Review Panel as reasons why it would have substituted a lower determination of Mr Mavrakis ’ s costs than the determination reached by the assessor. There is realistic possibility that on consideration of those matters, the primary judge would have agreed with some or all the views expressed by the Review Panel. The primary judge gave as a reason for adopting the course he did that costs assessors were in a much better position than the Court to assess costs. That may be so. But two observations may be made about that point. First, the point cannot alter the statutory task that was required of the Court by s 89 of the LPULAA. Second, s 89 does not displace the mechanisms available to the Court to resolve disputes within its jurisdiction. Those mechanisms include the power to appoint a referee under UCPR r 20.14. Whether that will be appropriate in any particular case will depend , among other things, on the nature, number and complexity of the issues to be determined , the likely costs involved in a reference and the amount in issue. In view of those conclusions, it is not strictly necessary to deal with ground 5. However, it is appropriate to say something about it. The applicant relies on the following passage from the transcript of the hearing before the primary judge in support of this ground: HIS HONOUR: What’s the statutory basis for your submission that I can’t set aside the review panel’s decision which would have the effect of reinstating the original assessment? YOUNG: It’s the provision where once a review panel has made the decision, the cost assessor decision is set aside. But what you can do is you can impact the cost review panel’s decision. That’s it. HIS HONOUR: Wouldn’t that have the effect of reinstating the assessor’s? YOUNG: You can follow his reasons if your Honour would like to do that but your Honour has to assess the cost[s]. If you do it on the basis of what the cost assessor has done my only concern with that is you don’t have all the material before you. HIS HONOUR: Of course I don’t. YOUNG: You don’t have the file. Your Honour, as I understand it, doesn’t want to hear me on the other issues with the bill of costs. HIS HONOUR: Well not if they’re at the granular level, no. YOUNG: Yes, they are. If I could then take you to the final grounds of appeal. … However, his Honour ’ s response to counsel ’ s question “ Your Honour, as I understand it, doesn ’ t want to hear me on the other issues with the bill of costs ” , should not be understood as foreclosing further submissions on why the bill of costs should not simply be adopted by the primary judge. It remained open to counsel to make submissions explaining why the primary judge had to undertake an assessment of costs himself. And it remained open to counsel to point to the adjustments that the Review Panel thought needed to be made to the bill of costs and its reasons as reasons why the primary judge should not accept the conclusions of the costs assessor. The fact that counsel chose not to make submissions of that type does not mean that the primary judge denied the applicant procedural fairness. Ground 1 In view of the fact that the matter must go back to the primary judge, it is desirable to say something about ground 1. As has already been explained, the effect of s 89 of the LPULAA is that the District Court must conduct a rehearing of the application for review and, in doing so it has all the functions of the review panel, which includes determination of the application “ in the manner that a costs assessor would be required to determine an application for costs assessment ” ( s 85(2)). Accordingly, in determining the appeal, the Court was required to determine whether or not a valid costs agreement existed and to determine whether the legal costs were fair and reasonable and, to the exten t they were not fair and reasonable, determine the amount of legal costs (if any) that were payable : LPUL, s 199 (2) . In considering those questions, the Court was required to apply the principles stated in s 172 of the LPUL and was entitled to have regard, among other things, to whether Mr Mavrakis had complied with the LPUL and the Uniform Rules and any disclosure made by Mr Mavrakis: LPUL, s 200. It follows that the primary judge was not correct in concluding it was “ unsatisfactorily circuitous for the issue of non-disclosure to be raised at the very costs assessment which the non-disclosure required ” . Ground 2 Since the primary judge admitted the evidence of the C onsent J udgment and since that evidence made it clear that cl 2 of Sch 1 of the LPULAA did not apply, ground 2 does not arise. However, the approach taken by the primary judge and by the District Court in McCabe to cl 2 was not correct. Clause 2(4) of the LPULAA provides that “ When the maximum costs for legal services provided to a party are fixed by this Schedule … (a) a law practice is not entitled to be paid or recover for those legal services an amount that exceeds those maximum costs ” . That clause does not contain a temporal limitation. Consequently, it would be breached if a legal practice had recovered more than was permitted by the clause in advance of a determination of the client ’ s claim for personal injuries damages that meant that the limitation applied. That interpretation is consistent with the purpose of the provision, which is to prevent a legal practice from recovering a disproportionate amount in respect of legal fees where a claimant recovers less than $100,000, unless the fees are recoverable in accordance with a costs agreement that complies with the relevant provisions of the LPUL . Ground 6 In circumstances where the orders of the primary judge must be set aside, ground 6 does not arise. On a rehearing, the primary judge has all the functions of a review panel. Consequently, the primary judge may affirm the costs assessor ’ s determination or set aside the determination and substitute the determination that, in his opinion, should have been made by the costs assessor in accordance with the principles stated earlier. If the primary judge were to decide to affirm the determination, he would be entitled to make an order in the terms that he ultimately did. But the primary judge would first need to be satisfied that it was appropriate to affirm the costs assessor ’ s determination having regard to the matters referred to earlier in this judgment. Orders The primary judge ’ s orders must be set aside and the matter referred back to the primary judge. Although Mr Mavrakis filed a submitting appearance, he did not submit to an order for costs. The applicant indicated that, in those circumstances, he did not seek his costs of the summons. Accordingly, the orders I propose are: To the extent necessary, extend the time for the filing of the Summons until 13 March 2026; Set aside the orders made by the District Court on 12 December 2025, 13 February 2026 and 5 March 2026; Remit the matter to the primary judge to be determined in accordance with these reasons for judgment; There be no order for costs in this Court . GRIFFITHS AJA : I agree with Ball JA. ********** Amendments 28 August 2026 - Typographical error [66] - changed Griffiths from lowercase to uppercase for consistency. 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: 28 August 2026