FEDERAL COURT OF AUSTRALIA

Kelly v Hall & Wilcox [2026] FCA 567

ORDERS

THE COURT ORDERS THAT:

1.    The parties provide draft orders (either agreed or marked-up to identify disagreement) setting out the separate questions to be determined by the Court via email to the Chambers of Needham J by 22 May 2026.

2.    Until the orders referred to in order 1 are made, and pursuant to s 37AI of the Federal Court of Australia 1976 (Cth) (Act), the appendix to these reasons be kept confidential and not be published or disclosed to or by any person or entity and not be disclosed in the open part of any Court transcript, and be restricted to:

(a)    the parties;

(b)    the parties’ legal representatives;

(c)    individuals at the Commonwealth of Australia administering the Fair Entitlements Guarantee Scheme;

(d)    any referee appointed by the Court in this proceeding;

(e)    the presiding judge; and

(f)    necessary court staff.

THE COURT NOTES THAT:

A.    Any ongoing suppression order sought by any of the parties is to be the subject of evidence and/or submissions as to why it is necessary in the interests of justice (see s 37AF of the Act).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

NEEDHAM J:

1    This matter came before me on 9 April 2026 for a contested hearing on case management. The question raised is whether I should make an order to appoint an expert costs assessor as a referee to inquire into, and determine, the fairness and reasonableness of costs charged by the respondent to the applicants, and the timing of that reference.

2    It is common ground that a referral to a costs assessor should occur, but the parties disagree as to when that should happen. As that is the case, I do not need to determine whether the issues with the legal fees charged by the respondent, raised by Ms Colleen Platford for the applicants in her affidavit sworn 14 August 2025 and the confidential and open exhibits thereto, are established, save to note that the matters raised by Ms Platford give rise to concerns as to the fairness and reasonableness of the costs charged by the respondent and by way of disbursements such as counsel fees.

Background

3    The first applicant is Mr Morgan Kelly and Ms Martie Tziotis, who were appointed as joint and several special purpose liquidators of the second-to-twenty-first applicants (together, the Hastie Group) in August 2024. The special purpose liquidators were appointed by Black J in the Supreme Court of New South Wales [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. The respondent, a national firm of solicitors, had acted for the various voluntary administrators and then-liquidators of the Hastie Group (since 31 May 2021, the sole liquidator of the Hastie Group companies has been Mr Craig Crosbie).

4    Each of the Hastie Group companies was wound up in 2013. The liquidator and the Hastie Group commenced proceedings no. VID1277/2017 Hastie Group Ltd (in liq) v Multiplex Constructions Pty Ltd (formerly Brookfield Multiplex Constructions Pty Ltd) (the Main Proceedings) against subcontract counterparties. Hall & Wilcox acted for the Hastie Group and the liquidator; senior counsel was briefed along with a number of junior counsel. The Main Proceedings had two main parts, referred to as the Bank Guarantee Case and the Receivables Case. For the purposes of this determination, I do not need to go into any detail as to the nature of those cases.

5    In 2022, Middleton J decided against the applicants on liability in the Main Proceedings in Hastie Group Ltd (in liq) v Multiplex Constructions Pty Ltd (formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280; (2022) 410 ALR 531 (the liability judgment). The Main Proceedings were funded by the Commonwealth pursuant to the Fair Entitlements Guarantee Scheme (FEG Scheme) as a way of seeking to recover funds paid by the Commonwealth as financial assistance to former employees of the Hastie Group.

6    As the applicants noted in their written submissions, “The Hastie Group and the Liquidator were wholly unsuccessful”.

7    An appeal was filed from the liability judgment. The Commonwealth, through the department administering the FEG Scheme, sought a second opinion on the prospects of the appeal. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] ([REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]), [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]; [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. The grounds of appeal were reformulated to a single ground, but that ground was dismissed with costs in Hastie Group Ltd (in liq) v Multiplex Constructions Pty Ltd (formerly Brookfield Multiplex Constructions Pty Ltd) (Leave to Appeal) [2024] FCAFC 61.

8    The Walker Second Opinion and a further document referred to as the Rule 120 Note were in evidence, but are subject to an interim suppression order due to the nature of their content.

The case management hearing

9    Each party relied on an affidavit of a solicitor setting out the history and background of the costs invoiced and paid. These affidavits are also subject to the interim suppression order. Each party also relied on an affidavit from a specialist solicitor in costs assessment.

10    The parties’ positions are, respectively:

(a)    For the applicants: that I should now refer the question of whether the costs are fair and reasonable to an expert costs assessor, suggesting Mr Christopher Wall as a potential referee, and appoint a counsel assisting. In doing so, I should exclude from the cost assessor’s consideration questions which require judicial determination (importantly, [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]; [REDACTED] [REDACTED] [REDACTED] [REDACTED]. These were referred to as the Excluded Matters. When the cost assessor’s report is prepared, I would then conduct a hearing on the Excluded Matters, and at the same hearing determine whether to adopt the cost assessor’s report.

(b)    For the respondent: that I determine the Excluded Matters first, then refer the question of costs with the findings I have made to the costs assessor. That would require the matter to return to me once more, on the question of the adoption of the cost assessor’s report.

The competing considerations

11    I am asked to determine this matter having regard to the principles of civil case management and practice as set out in s 37M of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and in exercise of the jurisdiction of this Court to make orders in s 23 of that Act. There have been decisions of this Court providing for, effectively, a taxation of costs. Justice Sheppard said in Keith Hercules and Sons v Steedman (1987) 17 FCR 290 (Sweeney, Lockhart and Sheppard JJ) at 303:

The power is not one which the Court would exercise very often. Usually the matter would be left to be dealt with in the more conventional way under statutes such as the [relevant Supreme Court legislation].

12    As pointed out by the applicants, the costs assessment process set out in Part 4.3 of the Legal Profession Uniform Law (LPUL) is unavailable to the Hastie Group and its liquidators; they are a “commercial or government client” (s 170 of the LPUL). The legislative history and reasons for this exclusion are explained by Payne JA in Bryony Adams on her own and on behalf of all the partners in the firm known as Herbert Smith Freehills v PlayUp Ltd [2026] NSWSC 89 at [24] to [32].

13    The lack of remedy for the applicants was contended to be a “special fact” (see CCOM Pty Ltd v Jiejing Pty Ltd (unreported, G124 of 1991, BC9405757) at 7 (Cooper J)), along with the significant quantum of the fees, the fact that the Commonwealth funded the fees as part of a scheme to protect the interests of employees of insolvent companies, and the concerns raised by the applicants as to the issues with the fees being not fair and reasonable (a matter not accepted by the respondent, although the referral to a costs assessor is not contested).

14    The questions which go to the making of the order and the exercise of my discretion to refer may be dealt with by answering the following questions:

(a)    Should the costs issue be referred to a costs assessor instead of being determined by the Court?

(b)    Should the matter be referred first prior to the determination of what have been referred to as Excluded Matters, bearing in mind:

(i)    whether one or two hearings before me will arise;

(ii)    which path is more efficient;

(iii)    are there barriers to determining the Excluded Matters first; and

(iv)    are there benefits to determining the Excluded Matters first?

15    During the hearing, the orders proposed by the applicants and the respondent evolved; I asked the parties to provide revised orders reflecting the matters which developed during the course of argument. The applicants provided revised orders on 13 April 2026 but the respondent was not in agreement with them; further submissions were provided as to the form of the orders.

Should the matter be referred or determined by the Court?

16    This matter can be dealt with briefly. While neither party suggested that I should determine the matter myself (as submitted, the usual mode of civil litigation; see s 39 of the FCA Act), I still need to make a determination to refer the matter to a referee and to be satisfied that such a reference is appropriate. The matters raised by Lee J in Kadam v MiiResorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 at [57] are relevant, particularly the “efficient use of the judicial and administrative resources available”, the disposal of matters in a timely manner, and the resolution of disputes in a proportionate manner having regard to the importance and complexity of the issues in dispute.

17    I have had regard to the common process of referring a costs assessment to an expert costs assessor. The assessment of costs is both a specialist area and one which takes a deal of painstaking fact-finding and application of specialist knowledge. I accept the applicants’ submission that it would “unduly burden the Court were it to be undertaken other than through a reference process”.

18    I consider that the matter is suitable for referral to a costs assessor. In accordance with the complexity of assessing more than $18 million worth of costs incurred over three complex hearings, the proposal by the applicants that there be a counsel assisting appointed makes practical sense.

19    I am persuaded that it is appropriate to refer the costs to a costs assessor for assessment.

Factors for and against the timing proposed by each party

20    The applicants wish for the referral to be made now, and for the Excluded Matters to be determined thereafter, at the same hearing where I will consider whether the cost assessor’s report should be adopted. This would result in a single judicial determination and, it is contended, less expenditure on costs. The respondent contends that it is not possible to refer the costs question without the further Excluded Matters first being judicially determined.

21    The revised orders proposed by the applicants are appended to these reasons (slightly amended from the version provided due to internal referencing errors).

22    As will be seen from sub-paragraphs 2(m) to (p) of Annexure A to the revised orders, the Excluded Matters cover whether costs were fair and reasonable given:

(a)    [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]; [REDACTED]

(b)    the matters in the Walker Second Opinion and the Rule 120 Note.

23    Otherwise, the costs assessor would be asked to determine the fairness and reasonableness of the costs charged to the applicants. In particular, the costs assessor is asked to determine the fairness and reasonableness of the hourly and daily rates charged and of the allocation of work between various practitioners (see proposed question 3).

24    [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED]; [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED], [REDACTED] [REDACTED]. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

25    The applicants were keen to take a “refer now, determine legal questions later” approach on the basis that two judicial determinations (one of the legal questions, and then one of the adoption of the referral) would both increase court costs, and possibly involve the Court in determining issues of credit of witnesses at the first stage, which may impact upon my ability to continue as docket judge if there were a successful application for me to recuse myself. The applicants submitted:

If the referee is examining the Costs for the purposes of determining whether they are fair and reasonable, the additional work required to identify the extent to which the Costs were incurred in the Bank Guarantee Case or the Receivables Case, or related to one of the other specified work items, will be minimal.

26    On the other hand, the respondent pointed to possible confusion by the exclusion of two legal questions which must, it submitted, have an impact on whether the costs are indeed fair and reasonable. The respondent submitted that to exclude the factual and legal questions would be unworkable, because the answers to the Excluded Matters are central to the task of the costs assessor. The respondent questioned the utility of a more limited referral, and contended that the appropriate course would be for those questions not to be excluded. It also pointed to the issue of reputational damage, and the importance of determining the matters relating to the fairness and reasonableness of the costs judicially with the assistance of the costs assessor.

Consideration of the arguments

27    Both parties acknowledged that their proposed option is not perfect. It is perhaps a question of what is the least worst option, given that a referral is inevitable.

28    I have come to the conclusion that the Excluded Matters should be determined first. [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]. Once those matters are determined the costs assessor will be able to know on what basis the costs were incurred in coming to the determination as to which costs were indeed “fair and reasonable”. This is not merely a question of mechanically applying hourly rates of the appropriate level of a solicitor’s or barrister’s expertise to do particular tasks; [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] must be relevant to whether costs were reasonably charged, or whether the allocation of work between senior and junior counsel or between solicitors of varying seniority was appropriate. The applicants contended that asking the costs assessor to undertake this task, only referring to those matters and not to [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], would not add to the costs or complexity of the costs assessor’s task. I am of the view that given the complexity of the proceedings and the changing legal landscape before and after Hamersley, and the considerable amounts involved, it is reasonably foreseeable that the costs assessor would need to know whether particular work should have been undertaken in the way that it was. I do not agree that excluding the Excluded Matters is likely to have a minimal impact on the costs assessor’s task.

29    In their reply submissions, the applicants said:

[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

The fundamental principle is that an assessment of a solicitor and client’s costs will not allow a fee for work that is useless, unnecessary or excessive for accomplishing the object the client had in view: Ryan v Hansen (2000) 49 NSWLR 184 at 199. Further, costs of an unusual sum or nature, described as an “unusual expense” are not to be allowed between a lawyer and client unless the lawyer has been authorised by the client after full prior disclosure: Dal Pont, Law of Costs, 5th ed. [5.28]. An expense can be unusual either because it is not ordinarily incurred, or due to its amount, and it must also be borne in mind that the costs – while not immediately unusual – may blow out: Law of Costs [5.34]. Such warnings must be given before the expenditure is incurred.

30    This submission is an argument for the earlier determination of the Excluded Matters, not for their being determined after the costs assessor has done the work.

31    In answer to the respondent’s rhetorical question – “what to keep, and what to refer?” – I find that the Excluded Matters should be determined prior to the matter being referred to a costs assessor. In coming to this decision, I have given close consideration to the drawbacks of this route as follows.

The need for two hearings

32    The applicants referred to the two hearings as being “substantial multi-day hearings involving overlapping issues”, those issues being the Excluded Matters as a separate question, and then whether to adopt, vary, or reject the costs assessor’s report. The applicants took me to the review of authorities by Young J in AWB Limited v Cole (No 2) [2006] FCA 913; (2006) 253 FCR 288 at [26]-[40], which were helpfully summarised by Rares J in City of Swan v Lehman Brothers Australia Ltd [2009] FCA 784; (2009) 73 ACSR 86 at [27]. The following principles are relevant here: the general rule is that all issues of fact and law should be determined at the one time; however, if it is “just and convenient” for an order for a separate question to be made, then the Court may determine the issue as a separate question. Where a question may not resolve all issues, it may still be appropriate to order a separate question if other factors are present. In particular, whether the separate question will contribute to the saving of time and cost; whether there is overlap between the separate question and the trial; and whether the determination will prolong, rather than shorten, the proceedings. The applicants submitted that a separate question is not appropriate because it will not be finally dispositive of the proceedings if determined in one way (City of Swan at [27]).

33    Undoubtedly, two hearings may be longer than one. Thoughtfully, the applicants pointed to the burden on the Court in needing to prepare two judgments rather than one. In response to this aspect, Hall & Wilcox contended that any additional work required would not be conducted by the Court but by the costs assessor. Without the Excluded Matters being first determined, the costs assessor would need to make their own determination as to factual matters, including, importantly, the appropriateness of the allocation of work, which the respondent submitted “stand[s] to be informed by: (a) instructions; (b) litigation objections; and (c) the merits and complexity of the cases advanced on behalf of the Hastie [Group]”.

34    I have taken all of these matters into account, but the one important factor is that the proposed separate question is in effect the only one to be determined in these proceedings. The first applicants, in their Originating Application, seek that the respondent pay to them “an amount equal to the difference between: (i) the total sum paid for the Legal Invoices and (ii) the sum that represents, upon taxation, the fair and reasonable amount in respect of the Legal Invoices”. Once the Excluded Matters are determined, the costs assessor can determine fairness and reasonableness, including matters of allocation of work amongst practitioners of varying seniority (a factor which incorporates a question of proportionality given the prospects of success).

35    While there may be two separate hearings, once the Excluded Matters are determined by this Court, and the costs assessor has provided their report, it is likely that the question of adoption, rejection, or variation of the report will not take as much time as the combined hearing would have taken. The reference process before the costs assessor may, realistically, also be shorter. I am not persuaded that the efficiencies of the process contended for by the applicants are so significant that they tend against the determination of the Excluded Matters as a separate question. In any event, it is possible that matters may need to be determined in advance or during the costs reference on the revised orders proposed by the applicants; order 8 contemplates application to the Court should any of the questions need to be revised or removed, or new questions added, and order 11 envisages applications for directions from the Court on 24 hours’ notice.

Cross-examination of witnesses

36    The applicants strongly contended that a factor tending against the preliminary determination of the Excluded Matters was the possibility of witnesses cross-examined on that hearing being the subject of credit findings. The applicants characterised this as tending against the case management principles espoused in s 37M of the FCA Act. In written submissions the possibility of a need for a fresh eye was raised; in oral argument it was contended that any credit findings “would mean your Honour is disqualified from hearing the adoption and any further matters that need to be considered”. That last submission should not be put so highly; it is not automatic that I would be disqualified, and it is not clear to me that the same witnesses would necessarily be called on the separate question and on the question of adoption of the costs assessor’s report. I am of course not making any preliminary determination on this point.

The utility of a separate question

37    The applicants referred me to Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1 and in particular to the comments of Kirby and Callinan JJ at [170] that “[s]ingle-issue trials should … only be embarked upon when their utility, economy, and fairness to the parties are beyond question”. Their Honours said (at [168]) that “savings in time and expense are often illusory” and that “[t]he attractions of trials of issues … are often more chimerical than real”. I note that their Honours were in dissent in the outcome, but the points they raised in relation to trials of issues within tort trials are well made. That case was a tort trial in which the Court made a determination as to whether a duty of care was owed, but made no findings on the question of a breach of that duty; here, the questions to be determined as separate questions are the determinations which will ensure that the costs assessor has all of the information they require to assess fairness, reasonableness, and proportionality.

The separate question should be determined first

38    I agree with the assessment of the respondent that hearing the Excluded Matters first is the more desirable of two imperfect options. Doing my best using the Excluded Matters in sub-paragraphs 2(m) to (p) in the annexure to the applicants’ revised orders, the separate questions would cover, taking into account the Walker Second Opinion and the Rule 120 Note:

(a)    [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED];

(b)    [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED].

39    It may be that the parties would wish to refine these questions to ask more specific questions as to facts ([REDACTED], “[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]?”) or law ([REDACTED], “[REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED]?”) and I will ask the parties to bring in an agreed order, or an order with areas of disagreement clearly marked-up, within 14 days of the date of these reasons.

40    My current view is that the appropriate costs order is that the costs of this application be costs in the cause, but I have not heard argument on that point and if the parties wish to agitate for a different costs order, that can be dealt with in the proposed orders.

41    I will make an interim suppression order pursuant to s 37AI of the FCA Act over the appendix to these reasons until orders for the separate question are made. Any ongoing suppression order sought should be the subject of evidence and/or submissions as to why it is necessary in the interests of justice (see s 37AF of the FCA Act).

Associate:

Dated:    8 May 2026

APPENDIX – APPLICANTS’ PROPOSED REVISED ORDERS

Form 1

Rule 2.13(2)

Short Minutes of Order

No.    NSD336/2025

Federal Court of Australia

District Registry: New South Wales

Division: General

Morgan John Kelly and Martie Maree Tziotis in their capacities as joint and several special purpose liquidators of the Second to Twenty-First Applicants as listed in the schedule

Applicants

Hall & Wilcox (ABN 58 041 376 985)

Respondent

JUDGE:            Justice Needham

DATE OF ORDER:        

WHERE MADE:        Sydney

THE COURT ORDERS THAT:

1.    Pursuant to s 37P(2) and s 54A of the Federal Court of Australia Act 1976 (Cth) and r 28 of the Federal Court Rules 2011 (Cth) (FCR):

(a)    the questions set out in Annexure A to these Orders (Relevant Questions) (noting that, pursuant to order 8 below, the parties have leave to apply to the Court in the event that they consider that any of the questions should be revised or removed, or that additional questions should be included) be referred to a referee (Referee) for the purposes of the Referee conducting an inquiry into the Relevant Questions (Reference) and providing a report in writing to the Court on the Relevant Questions stating, with reasons, the Referee’s opinion on the Relevant Questions (Report);

(b)    the Reference commence within 14 days of the making of these Orders or on such other date as directed by the Referee;

(c)    the Referee consider and implement such manner of conducting the Reference as will, without undue formality or delay, enable a just, efficient, timely and cost-effective resolution of the Reference to allow completion of the Report including, if the Referee thinks fit:

(i)    the making of enquiries electronically, by telephone or in writing;

(ii)    direct communication without intervention of lawyers of any expert retained on behalf of a party and/or any person whom the Referee believes may have information relevant to the Reference;

(iii)    in order to facilitate the Referee implementing the just, efficient, timely and cost-effective resolution of the Reference, the Referee is to make such directions as the Referee considers appropriate as to the conduct of the Reference;

(iv)    without limiting (i), (ii) and (iii), to the extent the Referee considers it is necessary or appropriate for the Referee to obtain any submission from any party, the Referee may make any direction the Referee considers appropriate in relation to such submissions including that any submissions be provided wholly in writing and be limited in length and topic; and

(v)    without limiting (i), (ii) and (iii), to the extent the Referee considers it is necessary or appropriate, the attendance of any person and the production of documents be compelled by subpoena.

2.    The laws of evidence will not apply in relation to the Reference.

3.    By [time and date], the Referee submit the Report to the Court, addressed to the District Registrar, in accordance with FCR 28.66.

4.    In the Report, the Referee:

(a)    make, to the extent it was necessary for the Referee to make any findings of fact in order to express the Referee’s opinion on the Relevant Questions, a statement of the facts found by the Referee from which the Court may draw such inferences as it thinks fit; and

(b)    may submit any question arising on the Reference for the decision of the Court and provide alternative opinions on the Relevant Questions which depend upon how the Court determines any question submitted to the Court.

5.    Within 10 business days, the legal representatives for the parties are to confer and take reasonable steps to seek to agree on a proposed referee for the reference.

6.    Within 12 business days:

(a)    the legal representatives for the parties are to send a joint communication to the Associate to Needham J with the name, charge out rates and curriculum vitae of the agreed proposed referee, and Needham J will, subject to further order of the Court, make an order that the person identified as the agreed proposed referee will be appointed as the Referee;

(b)    in the absence of agreement as per subparagraph (a):

(i)    the legal representatives for the Applicants and the Respondent are each to send a communication to the Associate to Needham J with the names of two proposed referees, their charge out rates, and their curriculum vitae; and

(ii)    Needham J will select a referee from one of the four shortlisted names provided by the parties and order that person be appointed as the Referee.

7.    The parties deliver to the Referee forthwith a copy of these Orders, together with a copy of FCR 28 and a copy of the Relevant Material.

8.    The parties be granted leave to apply to the Court in the event that they consider that any of the questions should be revised or removed, or that additional questions should be included.

9.    Any amendments to Annexure A whether by agreement or on a contested basis, are to be the subject of an order made by the Court.

10.    If for any reason the Referee is unable to comply with the order for delivery of the Report to the Court by the date in this order, the Referee is to provide to the District Registrar an interim report setting out the reasons for such inability and an application to extend the time within which to deliver the Report to the Court to a date when the Referee will be able to provide the Report.

11.    The Referee and the parties have liberty to seek directions with respect to any matter arising in the Reference upon application made on 24 hours’ notice or such other notice ordered by the Court.

12.    Within 5 business days, the parties provide each other with the names and charge out rates of two nominees to act as counsel assisting (Counsel Assisting) the Referee with any questions the Referee has about the conduct of the Reference and the preparation of the Report, and the Referee is directed to confer with Counsel Assisting as to the form of the Report.

13.    Within 10 business days, the legal representatives for the parties are to confer and take reasonable steps to seek to agree on a proposed Counsel Assisting for the reference.

14.    Within 12 business days:

(a)    the legal representatives for the parties are to send a joint communication to the Associate to Needham J with the name and charge out rates of the agreed proposed Counsel Assisting, and Needham J will, subject to further order of the Court, make an order that the person identified as the agreed proposed Counsel Assisting will be appointed as Counsel Assisting the reference;

(b)    in the absence of agreement as per subparagraph (a):

(i)    the legal representatives for each of the Applicants and the Respondent are to send a communication to the Associate to Needham J with the names of two proposed Counsel Assisting and their charge out rates; and

(ii)    Needham J will select a Counsel Assisting from one of the four shortlisted names provided by the parties and order that person be appointed as Counsel Assisting.

15.    Without affecting the powers of the Court as to costs, the parties are, in the first instance:

(a)    to be jointly and severally liable to the Referee for the fees payable to both the Referee and Counsel Assisting; and

(b)    to pay the fees payable to the Referee and Counsel Assisting in equal shares such that, pending further order:

(i)    50% of the fees payable to the Referee and Counsel Assisting are to be borne by the Applicants; and

(ii)    50% of the fees payable to the Referee and Counsel Assisting are to be borne by the Respondent.

16.    The parties are to raise any objection to the prospective adoption of the Report by [date].

17.    The proceeding be adjourned for a further case management hearing (including as to directions for any application to adopt the Report) at [time and date].

Annexure A

Questions

1.    Having regard to your answers to Question 2, and excluding from your consideration the matters referred to in subparagraphs (a)-(p) in Question 2, to what extent, if any, were the costs charged to the Liquidator and/or the Hastie Entities and recovered by Hall & Wilcox (including solicitors’ fees and counsel’s fees) not fair and reasonable?

2.    For the purpose of Question 1, and noting the matters you are to exclude from your consideration as set out in subparagraphs (a)-(p) below, please also state (i) the total amount of legal costs and legal disbursements charged; and (ii) to what extent, if any, were the costs charged to the Liquidator and/or the Hastie Entities and recovered by Hall & Wilcox not fair and reasonable, for:

(a)    the Bank Guarantees Case;

(b)    the Bank Guarantees Case, for the period:

(i)    up to 23 November 2020, being the date of the 23 November 2020 Memorandum; and

(ii)    after 23 November 2020;

(c)    the Bank Guarantees Case, for the period:

(i)    up to 9 February 2024, being the date of the Rule 120 Note (noting however that you are not to consider the matters raised in that memorandum per subparagraph (p) below); and

(ii)    after 9 February 2024;

(d)    the Receivables Case;

(e)    the Receivables Case, for the period:

(i)    up to the date of the Hamersley Appeal Decision; and

(ii)    following the Hamersley Appeal Decision;

(f)    the Receivables Case, for the period:

(i)    up to 9 February 2024, being the date of the Rule 120 Note (noting however that you are not to consider the matters raised in that memorandum per subparagraph (p) below); and

(ii)    after 9 February 2024;

(g)    the Appeal Proceedings;

(h)    the Appeal Proceedings up to and including 8 September 2023, being the date of the Walker Second Opinion (noting however that you are not to consider the matters raised in that memorandum per subparagraph (b) below);

(i)    the preparation for and attendance at the case management hearing on 15 November 2019 before Middleton J;

(j)    the preparation for and attendance at the hearing of the Liquidator’s and the Hastie Entities’ interlocutory application on 21 May 2020 before Middleton J in the Main Proceedings, as recorded in Hastie Group Limited (in liq) v Multiplex Constructions Pty Ltd (Formerly Brookfield Multiplex Constructions Pty Ltd) [2020] FCA 1824, which was handed down on 22 December 2020;

(k)    the fees charged by Michael Wyles KC in respect of his consideration of the reasons of Middleton J in Hastie Group Limited (in liq) v Multiplex Construction Pty Ltd (formerly Brookfield Multiplex Constructions Pty Ltd) (No 3) [2022] FCA 1280, handed down on 2 November 2018; and

(l)    the preparation of the 23 November 2020 Memorandum.

In identifying the extent, if any, of the costs incurred for the items specified in subparagraphs (a)-(l) above which were not fair and reasonable, please do not have regard to the following matters, which are being reserved for determination by the Court:

(m)    the matter in Platford Affidavit at paragraph 158 (whether the costs incurred in the Bank Guarantee Case, or some of them, are not fair and reasonable because, [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED];

(n)    the matter in the Platford Affidavit at paragraph 79 (whether the costs incurred in the Receivables Case, or some of them, are not fair and reasonable because, [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED], [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED] [REDACTED];

(o)    the matter in the Platford Affidavit at paragraphs 152-153 (being the Walker Second Opinion); and

(p)    the matter in Platford Affidavit at paragraphs 58 to 63 and 152 to 154 (being the Rule 120 Note).

3.    Please ensure that, in answering Questions 1 and 2, you address (without having regard to the matters referred to in question (a)-(p)):

(a)    the extent (if any) to which, in your opinion, the hourly rates charged by Hall & Wilcox to the Liquidator and/or the Hastie Entities were not fair and reasonable;

(b)    the extent (if any) to which, in your opinion, the hourly and daily rates charged by counsel were not fair and reasonable;

(c)    the extent (if any) to which, in your opinion, the allocation of work between fee earners at Hall & Wilcox was not fair and reasonable;

(d)    the extent (if any) to which, in your opinion, the allocation of work between Hall & Wilcox and counsel was inappropriate so as to result in the costs being not fair and reasonable;

(e)    the extent (if any) to which, in your opinion, the allocation of work between King’s Counsel and junior counsel was inappropriate so as to result in the costs being not fair and reasonable;

Definitions

“23 November 2020 Memorandum” means the memorandum of advice prepared by Michael Wyles KC and Rodrigo Pintos-Lopez, dated 23 November 2020, in respect of the Bank Guarantee Case in the Main Proceedings.

“Appeal Proceedings” means Federal Court of Australia proceeding no. VID41/2023.

“Bank Guarantee Case” means the claims made by the Liquidator in the Main Proceedings described as being in respect of the bank guarantees or performance bonds.

“Hamersley Appeal Decision” means Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (in liquidation) (receivers and managers) appointed) (2018) 53 WAR 325, which was handed down on 21 September 2018.

“Hastie Entities” means the First and Fifth to Twenty-Second Applicants in the Main Proceedings.

“Liquidator” means the Second Applicant in the Main Proceedings (being Craig Crosbie), in his capacity as the liquidator of each of the Hastie Entities (and previously, prior to their retirement, Mr Crosbie, Ian Menzies Carson and David Laurence McEvoy as the joint and several liquidators of each of the Hastie Entities).

“Main Proceedings” means Federal Court of Australia proceeding no. VID1277/2017.

“Receivables Case” means the claims made by the Liquidator in the Main Proceedings described as being in respect of receivables owing to one or more of the Hastie Entities.

“Rule 120 Note” means the memorandum from Dr Jonathan Moore KC and Helen Tiplady to Hall & Wilcox dated 9 February 2024.

“Relevant Material” means the following documents:

1.    Originating Application filed 11 March 2025;

2.    Concise Statement filed 11 March 2025;

3.    Concise Statement in Response filed 5 June 2025;

4.    Confidential Affidavit of Colleen Anne Platford sworn 14 August 2025;

5.    Confidential Exhibit CAP-2;

6.    Affidavit of Wayne William Kelcey sworn 31 October 2025;

7.    Confidential Exhibit WWK-1; and

8.    Confidential Exhibit WWK-2.

“Walker Second Opinion” means the memorandum of advice provided by Bret Walker AO SC, Jonathan Moore KC and Helen Tiplady of counsel on 8 September 2023.

“Winding Up Proceedings” means Federal Court of Australia proceeding no. VID237/2022.

SCHEDULE OF PARTIES