Under LPA04, there is an appeal as of right from a decision of a costs assessor (and a review panel), as to a matter of law, to the District Court: LPA04 s 384. There is also an appeal by leave against the determination of the application by a costs assessor (including a review panel) (LPA04 s 385) which lies, in the case of a practitioner/client assessment, to the District Court (LPA04 s 385(1)) and, in the case of a party/party assessment, to the court or tribunal that made the costs order: LPA04 s 385(2). If leave is granted, the appeal is a hearing de novo: LPA04 s 385(4).

The LPA04 arrangements continue to apply to practitioner/client (and third party) assessments and appeals where the client first instructed the law practice before 1 July 2015 (Legal Profession Uniform Law 2014, Sch 4, cl 18), and to party/party assessments and appeals where the proceedings to which the costs relate were commenced before 1 July 2015: Legal Profession Uniform Law Application Regulation 2015, reg 59.

Under LPULAA, as originally applicable,³ there is an appeal as of right from a decision of a review panel as to a matter of law, to the District Court. There is also an appeal by leave from the decision of a review panel generally, to the District Court. If leave is granted, the appeal is by way of rehearing, with fresh evidence or evidence in addition to or in substitution for the evidence before the review panel or costs assessor being permissible with the leave of the court. The significant changes from the LPA04 arrangements are, first, that there is no longer a direct appeal to the District Court from a first instance assessor, but only from a review panel, so that parties are required to exhaust their review rights before appealing to a court; and, secondly, that the appeal is now by way of rehearing, and not de novo.

The initial LPULAA arrangements apply to “uniform law” (formerly practitioner/client) assessments and appeals where the client first instructed the law practice on or after 1 July 2015 (Legal Profession Uniform Law 2014, Sch 4, cl 18), and to “ordered costs” (formerly known as party/party costs) assessments and appeals where the proceedings to which the costs relate were commenced on or after 1 July 2015: Legal Profession Uniform Law Application Regulation 2015, reg 59.

Under the current LPULAA (LPULAA s 89), there is an appeal from a decision of a review panel to:

The current LPULAA arrangements commenced on 24 November 2015. In the absence of any specific transitional provision, they should be considered to apply to appeals and applications for leave to appeal instituted on or after that date, in respect of assessments to which LPUL and/or LPULAA otherwise apply.

By s 89(1) of the LPULAA, a party to a costs assessment that has been the subject of a review may appeal against a decision of the review panel to:

It is worth noting the following matters about the scope of the appeal under s 89(1). First, it is limited to an appeal “against a decision of the review panel”. Secondly, there is an appeal as of right to the District Court where the amount of the costs in dispute is $25,000 or above or to the Supreme Court where the amount of costs in dispute is $100,000 or above, but otherwise by leave. Thirdly, the appeal is by way of rehearing: s 89(4) of the LPULAA. Fourthly, although fresh evidence or other evidence not before the review panel or costs assessor may be adduced, it is only by leave of the court.

The court is not given specific powers by s 89, but has “all the functions of the review panel”: s 89(2). The effect of that section was discussed in Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259 at [42] in these terms:

That the appeal is not a de novo hearing, but a rehearing, means that the powers of the court are exerciseable only upon demonstration, having regard to all the evidence, that there was some legal, factual or discretionary error in the decision of the review panel: Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [7]–[8]; Sweeten v Haggerty [2025] NSWSC 673 at [19]. It is important to emphasise, however, that the court is not “conducting the type of review that the review panel is authorised to undertake. The Court is conducting an appeal by way of rehearing”: Mirus Australia Pty Ltd v Wilson [2023] NSWSC 1432 at [22].

The fact that different types of error can be the subject of an appeal under s 89(1) has led to suggestions that different standards of review may apply depending on the nature of the error alleged. Thus, in Gazecki the following was said at [43]:

This approach has been endorsed in Mirus at [20] and in Keybridge Capital Ltd v Bell Potter Securities Ltd [2024] NSWSC 831 at [20].

If error is shown, the court can substitute its own decision based on the facts and the law as they now stand: Gilmore at [7] citing Allesch v Maunz (2000) 203 CLR 172 at [23]; see also Mirus at [51]–[52], [89] and Bolton v Atanaskovic Hartnell [2024] NSWSC 833 at [38]–[40] (in relation to matters in the Supreme Court) where s 89 of the LPULAA and s 75A(10) of the Supreme Court Act 1970 (NSW) were held to empower the Court to set aside a certificate issued by a review panel, and to affirm the certificate issued by a costs assessor or to remit the matter for redetermination by a review panel. Further, when the appeal relates to ordered costs, the power in s 74(2) of the LPULAA, which enables a court or tribunal to refer for assessment costs payable under an order made by the court or tribunal, should be considered. If an order is made under that section, the procedure after referral is addressed in cl 35 of the Legal Profession Uniform Law Application Regulation 2025 (NSW).

By the leave requirements, the current provisions encourage appeals to be brought in an appropriate jurisdiction and discourage unnecessary litigation where the amount in issue is modest. Thus, leave to appeal is required (a) in the District Court, if the amount of costs in dispute on the appeal is less than $25,000, and (b) in the Supreme Court, if the amount of costs in dispute is less than $100,000.

The considerations relevant to granting leave to appeal are well established: leave to appeal will ordinarily only be granted “concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable”: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; Corcoran v Far [2020] NSWCA 140 at [12]. These principles have been accepted as applicable to an appeal under s 89(1): Wilson v Mirus Australia Pty Ltd [2024] NSWCA 111 at [14]–[15].

The Supreme Court may remit the matter to the District Court, and may remove proceedings from the District Court: LPULAA s 89(3), (3A). This power may be exercised to remove into the Supreme Court matters in which important questions of principle are involved, and to remit matters which do not involve issues warranting the attention of the Supreme Court.

Appeals and applications for leave to appeal should be commenced by summons in UCPR Form 84 (UCPR rr 6.4(1)(b); 50.4(1); 50.12(3)). The summons must specify the relief claimed (UCPR r 6.12); whether the appeal relates to the whole or part only (and if so what part) of the decision below (UCPR rr 50.4(1)(a); 50.12(3)(a)); the decision sought in place of the decision appealed from (UCPR rr 50.4(1)(b), 50.12(3)(b)); and a statement briefly setting out the grounds of appeal, including in particular any grounds on which it is contended that there is an error of law: UCPR rr 50.4(2); 50.12(4).

In an application for leave, a statement of the nature of the case, and the reasons why leave should be given: UCPR r 50.12(4).

The summons should also include any application for an extension of time (UCPR rr 50.3(2), 50.12(2)), and any incidental orders, such as a suspension of the operation of the determination: see [5-0630].

In the Supreme Court, appeals and applications for leave to appeal are assigned to the Common Law Division: SCA s 53(1); UCPR r 1.18.

An appeal must be instituted, or application made for leave to appeal, within 28 days of the date on which notice of the assessor’s or review panel’s decision is given to the appellant: UCPR rr 50.2, 50.3(1)(a), (c); 50.12(1)(a), (c).

The court may extend this time, and any such application for an extension of time to appeal must be included in the summons: UCPR rr 50.3(2), 50.12(2). On an application for extension of time, ordinarily the relevant considerations include the length of the delay and the explanation (or reason) for it, the prospects of success of the appeal (whether it is fairly arguable: Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114 at [19]) and the extent of any prejudice suffered by the respondent to the application, albeit these matters are by no means exhaustive: see generally Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [55]–[58].

On an application for an extension of time, the court is entitled to expect affidavit evidence.

When there is an appeal or an application for leave to appeal pending in the District Court, that Court, or the review panel appealed from, can suspend the operation of the decision under appeal, and end that suspension: LPULAA ss 90(1) and (2).

In relation to appeals, or applications for leave to appeal, to the Supreme Court, the power to stay proceedings includes the power in UCPR r 50.7 and s 67 of the CPA.

On such an application, the relevant considerations are analogous to those on an application for a stay of a judgment pending appeal, and include that the respondent is prima facie entitled to the fruits of the determination, whether the appeal has reasonable prospects of success, whether refusing a stay would render the right of appeal nugatory, and the balance of justice and convenience: see Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685, 694–695.

By the time an appeal of this kind is disposed of by the court, there will typically already have been a contested assessment process and a review, and in party/party matters the substantive litigation that has preceded the costs order under assessment. In that context, an order in respect of the costs of the appeal that requires a further assessment process protracts the dispute. There is great public interest in minimising the scope for further disputation, including assessment proceedings, and thus a great deal to be said for utilising the power of the court under CPA s 98(4)(c) to make a gross sum costs order in respect of the costs of the appeal.