Wende v Horwath (No 2)

This matter concerned an appeal to the Court of Appeal of New South Wales from a determination of a review panel under the *Legal Profession Act 2004* (NSW). The appeal had previously been before the Court of Appeal, which had determined a question of law and remitted the proceedings to the District Court. The present appeal arose from the District Court's subsequent orders.

The legal issues before the Court of Appeal included the scope of the District Court's powers upon a remitter after a question of law had been determined by the Court of Appeal, and whether the District Court had correctly interpreted and applied section 384(2) of the *Legal Profession Act 2004* (NSW) in this context. Further questions related to the proper approach to costs certificates in the context of a costs assessment, and whether the substantive outcome of proceedings, which was unlikely to alter liability, should affect orders as to costs.

The Court of Appeal reasoned that the District Court's powers on remittal were not limited to simply implementing the Court of Appeal's previous decision, but extended to making final orders, including the assessment of costs. The Court clarified that the District Court retained the power to remit the assessment of costs to the Manager, Costs Assessment, and to make orders regarding the costs of the parties in the District Court, including those incurred subsequent to the first judgment of the Court of Appeal. The Court also addressed the requirements for costs certificates, noting that a separate certificate was not necessarily required for each costs order subject to assessment.

The Court of Appeal set aside the orders made by the District Court on 23 October 2014 and 1 April 2015. The proceedings were remitted to the District Court for it to make final orders, including the potential remittal of costs assessment, orders as to the costs of the parties in the District Court, and specification of any costs payable. The first respondent was ordered to pay 50% of the applicants’ costs in the Court of Appeal.