B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) (RD)
[2012] NSWADTAP 26
•17 July 2012
Administrative Decisions Tribunal
New South Wales
Case Title: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) (RD) Medium Neutral Citation: [2012] NSWADTAP 26 Hearing Date(s): 15 May 2012 Decision Date: 17 July 2012 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President
M Hole, Judicial Member
C Bennett, Non-judicial MemberDecision: 1. Within the amount of costs ordered to be paid in the Appeal Panel's decision of 6 April 2010, the amount to be included by virtue of paragraph (a) of Order 3 is to be assessed under Division 11 of Part 3.2 of the Legal Profession Act 2004 by a costs assessor appointed under that Division.
2. (a) Within 21 days of the date of this decision, the Respondent is to file and serve its submissions on the costs incurred by it since the Appeal Panel's decision of 6 April 2010.
(b) Within a further 21 days, the Appellants are to file and serve their submissions on this question.
(c) If the Appellants' submissions incorporate any application for costs to be awarded in their favour, the Respondent will have a further 21 days within which to file and serve submissions in reply.
(d) The matter will then be determined 'on the papers' under section 76 of the Administrative Decisions Tribunal Act 1997.
(e) There will be general liberty to apply.Catchwords: Costs - accounting firm engaged by successful party to conduct proceedings - appearances by firm's employee possessing legal qualifications - costs order - basis of assessment of costs - procedure for assessment Legislation Cited: Administrative Decisions Tribunal Act 1997
Interpretation Act 1987
Legal Profession Act 1987
Legal Profession Act 2004
Legal Profession Amendment Act 2005
Retail Leases Act 1994
Victorian Civil and Administrative Tribunal Act 1998 (Vic)Cases Cited: Alan Edward Lewis v Paul Adrian Doran [2008] NSWSC 186
B & L Linings Pty Ltd and L & B Linings Pty Ltd v Chief Commissioner of State Revenue [2005] NSWADT 129
B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (No 3) (RD) [2007] NSWADTAP 32
B & L Linings Pty Ltd & anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14
B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue [2008] NSWCA 208
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55
B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21
Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60
Law Society of New South Wales v Stephen Gary Spring and Another [2007] NSWSC 1273
Legal Services Commissioner v Galitsky (No 2) [2008] NSWADT 153
Portale v Law Society of New South Wales (No 1) (2010) 10 DCLR (NSW) 194; [2010] NSWDC 59Texts Cited: Category: Costs Parties: B & L Linings Pty Ltd (First Appellant)
L & B Linings Pty Ltd (Second Appellant)
Chief Commissioner of State Revenue (Respondent)Representation - Counsel: Counsel
T Thawley (Appellants)
I Latham (Respondent)- Solicitors: Kemp Strang Lawyers (Appellants)
Crown Solicitor (Respondent)File number(s): 059044 Decision Under Appeal - Court / Tribunal: - Before: Revenue Division - Date of Decision: 10 June 2005 - Citation: B & L Linings Pty Ltd and L & B Linings Pty Ltd v Chief Commissioner of State Revenue [2005] NSWADT 129 - Court File Number(s) 046025 Publication Restriction:
DECISION
Introduction
This is the sixth decision given by us in these lengthy proceedings, in which the Appellant taxpayers, B & L Linings Pty Ltd and L & B Linings Pty Ltd, disputed the amounts of payroll tax over four years (2000 - 2003) that the Respondent, the Chief Commissioner of State Revenue, had assessed them to be liable to pay.
The First Appellant, B & L Linings Pty Ltd ('B & L'), was established in 1987 to supply and install linings made of plasterboard and cornices in dwelling houses and apartments. It acted as a principal contractor to home building companies.
In 1992, the two directors and shareholders of B & L established the second Appellant, L & B Linings Pty Ltd ('L & B'), in which they were again the sole directors and shareholders. During the relevant period L & B's principal function was to fulfil B & L's contracts with home building companies, chiefly by subcontracting with various sole traders, partnerships and companies. It also operated a maintenance/service division.
In 2001-02, the people working for L & B comprised a small full-time staff and a number of 'entities', which it described as subcontractors. The 'entities' were a mixture of companies, partnerships and sole traders.
The Appellants' objections to the Respondent's assessments were based on a claim that they were entitled to exemption from payroll tax with respect to most of these 'entities'. The Respondent's decision to disallow the objections was affirmed, in relation to 36 'contentious entities', by the Tribunal at first instance (B & L Linings Pty Ltd and L & B Linings Pty Ltd v Chief Commissioner of State Revenue [2005] NSWADT 129).
On appeal, however, we held that the grounds of objection should be upheld for the most part. In a decision delivered on 2 July 2007 (B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (No 3) (RD) [2007] NSWADTAP 32 - 'the third appeal decision') we determined that the Appellants were entitled to exemption with respect to 31 out of the 36 'contentious entities'.
Pursuant to directions given in this decision, the Appellants applied for a costs order. The costs sought by them included the amount of fees that they had paid or were liable to pay to a firm of chartered accountants called Byrons. The Appellants had engaged Byrons to assist them in the preparation of their objections to the Respondent's assessments and to provide services relating to the conduct of the proceedings at first instance and on appeal. A substantial component of the fees relating to the conduct of the proceedings was attributable to the work done by Mr John Eager, an employee of Byrons, in his capacity as the Appellants' agent during most of the hearings.
In the submissions made to us on this matter, it was common ground that the Tribunal's power to award costs in these proceedings derived from section 88 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). At that time, the criterion for awarding costs, stated in section 88(1), was that there must be 'special circumstances warranting an award of costs'.
On 27 March 2008, we delivered our decision on the Appellants' application for costs (B & L Linings Pty Ltd & anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14 - 'the first costs decision').
In paragraphs [73] to [88] of this decision, we discussed the question whether costs awarded under section 88(1) of the ADT Act could include the costs incurred by a successful party in engaging an agent, who is not an Australian legal practitioner, to represent him or her. At [86], we concluded that costs of this nature could be awarded. At [88], we stated:-
The Appellants' submissions on this matter included the suggestion that, if we held that costs could and should be awarded in respect of Mr Eager's services as their agent, the President of the Institute of Chartered Accountants might be asked to nominate an expert to conduct an assessment of the fees charged to the Appellants by Byrons. The Commissioner's submissions contained a request, in which the Appellants acquiesced, that if matters reached this stage, the Commissioner would wish to be heard on the procedure to be adopted in assessing these costs...
Order 1 of the first costs decision was that the Respondent should pay certain limited components of the Appellants' costs of the Tribunal proceedings, both at first instance and on appeal. Orders 2 and 3 gave effect to our conclusion that costs could be awarded with respect to fees paid to an agent who was not an Australian legal practitioner and our recognition that the procedure to be adopted in assessing such costs may require further consideration by us. Order 2 was in these terms:-
These costs are to include amounts in respect of
(a) fees paid or payable by the Appellants to Byrons, Chartered Accountants, for work done by its employee, Mr John Eager, in his capacity as the Appellants' agent in these proceedings and
(b) any additional out-of-pocket expenses incurred by the Appellants in consequence of the conduct identified in Order 1.
The Appellants appealed unsuccessfully to the Court of Appeal against our orders in the third appeal decision. They also applied to this Court for leave to appeal from our orders in the first costs decision. By consent, the Court first granted leave to appeal, then allowed this appeal: see B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue [2008] NSWCA 208; B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55. The Court set aside our orders in part, and remitted the matter of costs to us, subject to specified limitations, for reconsideration and decision according to law. Its orders were:-
1. The appeal be allowed.
2. That part of the decision of the appeal panel in refusing to award costs except to the extent set out in orders 1, 2 and 3 of the decision of 27 March 2008 be set aside and be remitted to the Appeal Panel for reconsideration and decision according to law.
3. The respondent pay the appellant's cost of the appeal. Such costs to include costs of the application for leave to appeal.
As a result of legislation coming into force on 1 January 2009, section 88 of the ADT Act was amended. A new version of subsection (1) was enacted, to the effect that prima facie the parties should bear their own costs. But a wholly new provision, subsection (1A), substituted for the former criterion of 'special circumstances' a new criterion, requiring that the Tribunal should award costs when it is 'fair' to do so.
By virtue of transitional provisions (see ADT Act, Schedule 5, clause 43(2)(i)), the amended version of section 88 applies to the costs of the present proceedings even though they were commenced, and the substantive decisions were made, before 1 January 2009. In its decision allowing the Appellants' appeal against the first costs decision, the Court of Appeal agreed with the parties that 'the old s 88 will not apply to any re-consideration of the matter by the Appeal Panel' (B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2009] NSWCA 55 at [2]).
In a later decision, delivered on 6 April 2010 after a further hearing (see B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 5) (RD) [2010] NSWADTAP 21 - 'the second costs decision'), we retained Order 1 of the first costs decision. This seemed to us to be required by the second order made by the Court of Appeal. We also inserted, as Order 2, an award of further costs to the Appellants. Subject to one significant amendment, described below at [18], we repeated, as Order 3, the terms of Order 2 of the first costs decision. We reproduced, as Order 4, the terms of Order 3 of this decision.
The four orders thus made in the second costs decision were in the following terms:-
1. The Respondent is to pay the Appellants' extra costs occasioned by the following aspects of its conduct in the course of these proceedings:-
(a) Contesting, in submissions made to the Tribunal on 20 January 2005, the Appellants' claim that remuneration paid to 18 of the entities was exempt from pay-roll tax on the ground that they had worked for the second Appellant for less than 90 days in the tax year 2002, but subsequently (on 13 September 2006) conceding this claim.
(b) Causing the hearing of the appeal fixed for 20 December 2006 to be vacated.
(c) At the hearing of the appeal on 2 April 2007, rendering it necessary for the Appellants to reargue, with reference to evidence recently tendered by the Respondent, the issue already determined by the Appeal Panel in its decision of 28 June 2006.
2. The Respondent is to pay 75% of the remainder of the Appellants' costs of the proceedings, both at first instance and on appeal.
3. These costs are to include amounts in respect of
(a) fees paid or payable by the Appellants to Byrons, Chartered Accountants, for work done by its employees as agents of the Appellants in these proceedings and
(b) any additional out-of-pocket expenses incurred by the Appellants in consequence of the conduct identified in Order 1.
4. If the parties cannot agree as to the amount of these costs, the Appellants have liberty (within 42 days of the date of these reasons) to apply to the Tribunal for an order to be made by the Appeal Panel determining the mode of assessment and for any other order required to give effect to this decision regarding their application for costs.
Henceforth, we will refer to Orders 1 to 3 collectively as 'the Costs Order'.
In the second costs decision at [62 - 63], we observed that the Court of Appeal left 'intact', and 'must be taken to have implicitly endorsed', our ruling in the first costs decision that the costs awarded to the Appellants should include amounts in respect of fees paid or payable by the Appellants to Byrons for work done by its employee, Mr Eager, in his capacity as their agent in these proceedings. In paragraph (3) of Order 3 of the Costs Order, we expanded the range of this ruling. This paragraph states that the costs paid by the Respondent are include amounts in respect of fees paid or payable by the Appellants to Byrons for work done by all of its relevant employees, not just Mr Eager.
At an interlocutory hearing on 29 June 2010, it was noted that the Respondent would not pursue an appeal against the second costs decision, and the following orders were made by consent:-
1. The orders made by the Appeal Panel on 6 April 2010 are confirmed.
2. The Respondent and the Appellants are to use reasonable endeavours to agree the amount of costs that the Respondent is to pay to the Appellants in respect of the costs orders made on 6 April 2010.
3. In the absence of agreement between the Appellants and the Respondent in accordance with Order 2, liberty be granted generally to the Appellants to apply to the Tribunal for an order to be made by the Appeal Panel determining the mode of assessment and for any other order required to give effect to its decision regarding their application for costs.
4. Grant liberty to further apply.
Subsequently, the parties reached agreement on the amount of costs to be paid with respect to the fees paid or payable to the Appellants' current solicitors, Kemp Strang, and to counsel retained by them. But the parties were unable to agree on the quantum, or on an appropriate mode of assessment, of the costs to be paid by the Respondent in respect of the fees paid or payable by the Appellants to Byrons. Accordingly, the Appellants applied to the Tribunal for determination of the matters set out in Order 4 of the second costs decision.
These matters were the subject of a hearing before us on 15 May 2012. At previous directions hearings, a timetable had been laid down for the filing of further evidence (for which leave was granted) and of written submissions. At the hearing, Mr Thawley of counsel appeared for the Appellants and Mr Latham of counsel for the Respondent.
Outline of the parties' evidence and main contentions
As already indicated, the criterion for awarding costs stated in subsection (1A) of section 88 of the ADT Act is that the Tribunal must be satisfied that it is 'fair' to award costs. Paragraphs (a) to (e) of this subsection list a number of factors to be taken into account by the Tribunal. But in the present context, a different paragraph within section 88 is of prime importance: namely paragraph (b) of subsection (2). This subsection states:-
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
The Appellants contended that, availing ourselves of the flexibility granted by the concluding words of paragraph (b), we should order assessment on a basis other than that set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 ('the LP Act 2004'). The Respondent contended that assessment under Division 11 was both permitted under this Act and appropriate in the circumstances.
The written and oral submissions of the Respondent also contained a 'formal' submission that in the first costs decision we erred in holding that costs awarded under section 88 could include costs paid or payable to an agent who was not an Australian legal practitioner. But this submission was not pressed at the hearing. Mr Thawley's submissions on behalf of the Appellants included a statement that the Respondent, during the appeal against this decision to the Court of Appeal, chose not to contest this ruling. For this reason, and for the reasons given in the second costs decision, we treat this question as resolved in the Appellants' favour.
The principal evidence filed by the Appellants in advance of the hearing on 15 May 2012 comprised copies of the following documents: (a) a spreadsheet listing the times and attendances for which Byrons had claimed payment from them, including many attendances by Mr Eager and a number of attendances by Mr Dickie, an accountant and a member of Byrons; (b) time sheets providing particulars of these attendances; and (c) a number of invoices relating to expenses, paid by Byrons on behalf of the Appellants, which according to Mr Cussen, a partner of Kemp Strang, could properly be claimed as disbursements under the Costs Order. These documents were annexed to an affidavit sworn by Mr Cussen. Also annexed was a copy of a letter from him to the Respondent's solicitor (the Crown Solicitor), in which the spreadsheet and time sheets were enclosed and a very substantial sum was quoted as the total of costs and expenses paid or payable by the Appellants to Byrons.
At the hearing, Mr Cussen's affidavit was admitted, subject to certain deletions on account of objections by Mr Latham, and Mr Cussen was briefly cross-examined.
In his submissions on behalf of the Appellants, Mr Thawley argued that the Appeal Panel should proceed in one or other of two ways. The first and preferable course of action, he maintained, was that the Panel should itself determine the amount of costs payable under the Costs Order. In so doing, it might, if it thought fit, obtain evidence from an independent expert appointed to assist it. Alternatively, it could appoint a suitably qualified accountant or lawyer to assess the costs payable. Whichever of these two options it chose, it should not assess the costs, or require that they be assessed, under Division 11 of Part 3.2 of the LP Act 2004.
The principal evidence filed by the Respondent in advance of the hearing on 15 May 2012 was as follows.
First, it filed (a) an affidavit sworn by Ms Holly Morgan, a solicitor employed by the Crown Solicitor, annexing copies of a number of documents relating to arrangements between Byrons and Mr Eager that Kemp Strang had made available and (b) a selection of affidavits and transcripts of evidence admitted into or prepared for the Tribunal proceedings. These revealed the following matters: (i) during the period when Mr Eager appeared for the Appellants in first instance and appellate hearings before the Tribunal, he was a local legal practitioner and held a current certificate entitling him to practise as a solicitor; (ii) his remuneration from Byrons included amounts in respect of 'legal practice profit' and 'legal fees'; (iii) he claimed reimbursement of his practising fees and indemnity insurance from Byrons; (iv) both in witnessing affidavits and in signing written submissions, he described himself as a solicitor or a lawyer; and (v) the range of tasks that he undertook for the Appellants included tendering evidence, cross-examining witnesses and making oral submissions.
Secondly, the Respondent filed an affidavit by Ms Lisa Huleatt, a solicitor employed by the Crown Solicitor. In it, she outlined information obtained by her in the course of telephone conversations with employees of the Institute of Chartered Accountants Australia, the Institute of Public Accountants Australia and an organisation called Certified Practising Accountants Australia. She stated that, according to these sources, these organisations did not provide assessments of fees charged by accountants and the President of the Institute of Chartered Accountants Australia did not appoint other members of this Institute to conduct such an assessment.
At the hearing, this material filed by the Respondent was admitted into evidence.
In his submissions on behalf of the Respondent, Mr Latham argued that Mr Eager, being at the time a solicitor holding a practising certificate, indisputably provided 'legal services' as defined in the LP Act 2004, and that the Appellants' costs, so far as referable to those services, should therefore be assessed under Division 11 of Part 3.2 of that Act. As an alternative, he suggested, the Appeal Panel might appoint a suitably qualified costs assessor as an 'assessor' under section 34 of the ADT Act and treat his/her decision as the decision of the Panel, pursuant to section 34(3), or it might instruct such a person to prepare a report, which could be the subject of cross-examination and the basis of a final decision by the Panel.
In a document headed 'Further Submissions', which was filed and served only five days before the hearing on 15 May 2002, Mr Latham sought to reinforce his primary contention by referring to the wording of a number of sections of the LP Act 2004 and to relevant case law.
At the hearing, Mr Thawley indicated that despite the relatively late service of these Further Submissions, he was in a position to deal with them in his oral addresses to us.
Summary of our conclusions
Our conclusions on this matter can be summed up as follows.
First, the task of assessing the disputed item of costs within the Costs Order - namely, 'the amounts... in respect of fees paid or payable by the Appellants to Byrons, Chartered Accountants, for work done by its employees as agents of the Appellants in these proceedings' - falls within the range of tasks that may be fulfilled by a costs assessor pursuant to Division 11 of Part 3.2 of the LP Act 2004.
Secondly, in the circumstances of the present case, it is a task that is best fulfilled in this manner, rather than in any of the other ways proposed in the parties' submissions.
We will now explain our reasons for arriving at these conclusions, referring as appropriate to the opposing arguments advanced by counsel.
The applicability of the regime of costs assessment contained in the LP Act 2004
The starting-point of our reasons for our first conclusion is an analysis of relevant provisions within Division 11 contained in the Further Submissions filed by the Respondent. In the main, we endorse this analysis. We also believe it to be supported by certain aspects of Division 11 that did not receive express mention in the parties' written submissions or at the hearing.
We may commence, as Mr Latham did in the Respondent's Further Submissions, by pointing out that there are two different definitions of costs in the LP Act 2004.
The first of these, contained in section 4, is a definition for the purposes of the Act as a whole. The relevant provisions are as follows:-
costs - see definition of legal costs
legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest.
Two phrases within this definition of 'legal costs' - 'law practice' and 'legal services' - are also defined in section 4. These definitions are:-
law practice means:
(a) an Australian legal practitioner who is a sole practitioner, or
(b) a law firm, or
(c) a multi-disciplinary partnership, or
(d) an incorporated legal practice, or
(e) a complying community legal centre.
legal services means work done, or business transacted, in the ordinary course of legal practice.
The second definition of 'costs' is in section 302, near the commencement of Part 3.2 of the Act. Significantly, it is a definition for the purposes of this Part only. It is as follows:-
costs includes fees, charges, disbursements, expenses and remuneration.
In contrast to the definition of 'legal costs' in section 4, this broad definition is not restricted to costs charged by, or payable to, a 'law practice'. Nor indeed is it restricted to costs payable for the provision of 'legal services'. In addition, it does not purport to be an exhaustive definition, because it is preceded by the term 'includes'.
We will mention here two more definitions contained in section 302. 'Costs agreement' is defined to mean 'an agreement about the payment of legal costs' and 'costs assessment' to mean 'an assessment of legal costs under Division 11'.
Part 3.2 is headed 'Costs disclosure and assessment'. It commences with section 301, which defines the 'purposes' of the Part as follows:-
(a) to provide for law practices to make disclosures to clients regarding legal costs,
(b) to regulate the making of costs agreements in respect of legal services, including conditional costs agreements,
(c) to regulate the billing of costs for legal services,
(d) to provide a mechanism for the assessment of legal costs and the setting aside of certain costs agreements.
Most of the provisions within Part 3.2 are concerned with 'legal costs'. This term means, as just indicated, the amounts chargeable by or payable to a 'law practice' for the provision of 'legal services'. A particular focus of the Part is the extent of the liability of clients, who are defined in section 4 to include persons 'to whom or for whom legal services are provided', to pay 'legal costs' to a 'law practice'.
The headings for many of the eleven Divisions in the Part illustrate these points. They include 'Costs disclosure' (Division 3), 'Legal costs generally' (Division 4), 'Costs agreements' (Division 5), 'Billing' (Division 7), and 'Mediation of costs disputes' (Division 8).
Each of Divisions 9, 10 and 11 is also concerned with the liability of clients to pay 'legal costs' to a 'law practice'. But in addition, the payment of costs pursuant to an order by a court or tribunal receives explicit attention.
In Division 9, which is headed 'Maximum costs in personal injury damages cases', this topic is dealt with in section 338(4)(b) and section 340. In Division 10, headed 'Costs in civil claims where no reasonable prospect of success', it is dealt with in section 348.
Division 11, headed 'Costs assessment', contains the provisions of prime importance for the present decision. Like its predecessors, it focuses substantially on the liability of clients to pay 'legal costs' to a 'law practice'. There are provisions, for example, enabling a client to apply to the Manager, Costs Assessment for the assessment of 'the whole or any part of legal costs' (section 350(1)) and enabling a law practice that has provided a bill of costs to make a similar application (section 352(1)). Section 361 requires that, subject to defined exceptions, a costs assessor must assess the amount of any disputed costs by reference to any relevant costs agreement. Section 362, headed 'Criteria for costs assessment', lists a number of matters to which a costs assessor must or may have regard when conducting an assessment of 'legal costs'. They include matters directly bearing upon the relationship between a client and a 'law practice', such as 'the retainer and whether the work done was within the scope of the retainer' (see subsection (2)(f)).
There are however five sections within Division 11, which we will now reproduce in whole or in part, that deal expressly and specifically with the assessment of costs that are payable pursuant to an order of a court or tribunal. The term 'party/party costs' appears more than once as a description of such costs, though it is not defined within the Act.
Division 11 has seven Subdivisions. Within Subdivision 1, headed 'Applications', subsections (1) and (2) of section 353 state:-
353 Application for assessment of party/party costs
(1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs.
(2) A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division.
Subdivision 3, headed 'Party/party costs', comprises sections 364, 365 and 366. These three sections are as follows:-
364 Assessment of costs-costs ordered by court or tribunal
(1) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider:
(a) whether or not it was reasonable to carry out the work to which the costs relate, and
(b) whether or not the work was carried out in a reasonable manner, and
(c) what is a fair and reasonable amount of costs for the work concerned.
(2) In considering what is a fair and reasonable amount of legal costs, a costs assessor may have regard to any or all of the following matters:
(a) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter,
(b) the complexity, novelty or difficulty of the matter,
(c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done,
(d) the place where and circumstances in which the legal services were provided,
(e) the time within which the work was required to be done,
(f) the outcome of the matter.
(3) An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs and any relevant regulations.
(4) If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal and relevant regulations.
365 Effect of costs agreements in assessments of party/party costs
(1) A costs assessor may obtain a copy of, and may have regard to, a costs agreement.
(2) However, a costs assessor must not apply the terms of a costs agreement for the purposes of determining appropriate fair and reasonable costs when assessing costs payable as a result of an order by a court or tribunal.
366 Court or tribunal may determine matters
This Division does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis.
The fifth section dealing expressly with 'party/party costs' is section 367A. It forms part of Subdivision 4, which has the heading 'Determinations', and is in the following terms:-
367A Determinations of costs assessments for party/party costs
A costs assessor is to determine an application for an assessment of costs payable as a result of an order made by a court or tribunal by making a determination of the fair and reasonable amount of those costs.
For completeness, it should be mentioned that a number of other provisions within Division 11 are apt to cover the assessment of 'party/party costs', as well as of legal costs payable by a client to a law practice. An example is section 362, which requires that assessments of costs must accord with any regulation or other legislation fixing the amount of those costs.
The crucial proposition for which Mr Latham contended, and with which we agree, is that section 367A, since it uses the term 'costs' as opposed to 'legal costs', provides for determinations by costs assessors of any 'costs' falling within the broad definition of this term in section 302. The scope of such determinations embraces 'fees, charges, disbursements, expenses and remuneration'. They are not limited to determinations as to the amount of 'legal costs' payable to a 'law practice'.
As Mr Latham submitted, this view of section 367A conforms with one of the four 'purposes' of Part 3.2 formulated in section 301. While paragraphs (a), (b) and (d) of this section set out purposes defined by reference to 'law practices', 'legal costs' and/or 'costs agreements', paragraph (c) is not limited in these ways. The purpose that it describes relates instead to the 'costs' of 'legal services'. In addition, two further features of the provisions relating to 'party/party costs' in Division 11 support this view of the scope of section 367A.
The first is that section 353, in providing for the making of applications for the assessment of such costs, uses the term 'costs', not 'legal costs'. Applicants may apply under subsection (1) irrespective of whether or not the costs to which their application relates are 'legal costs' payable to a 'law practice'. The same applies to a direction by a court or tribunal under subsection (2) that some or all of the costs payable under an order that it has made - such as the Costs Order in these proceedings - should be referred for assessment.
Secondly, sections 364 and 365 establish an overriding criterion of fairness and reasonableness for the assessment by a costs assessor of 'party/party costs' that relate only to 'legal costs'. In addition, they elaborate on this criterion to a significant extent. Section 367A also stipulates that determinations of party/party costs must be 'fair and reasonable'. If this section were to be read as applying only to 'legal costs', it would appear to be redundant. It would simply repeat in short form what is set out at length in sections 364 and 365.
We should add here that an implication arising from the heading of section 367A is in conflict with what we believe to be the correct interpretation of the section. The wording of this heading is 'Determinations of costs assessments for party/party costs'. Under section 302, as mentioned above at [45], 'costs assessment' is defined to mean 'an assessment of legal costs under Division 11' (emphasis added). We do not believe, however, that this implication should be taken to undermine our interpretation of the section. Under section 35(2) of the Interpretation Act 1987, a heading to a provision of an Act 'shall be taken not to be part of' the Act.
Section 367A was inserted into the LP Act 2004, along with a number of other amending provisions, by the Legal Profession Amendment Act 2005. This Act was in fact enacted before the LP Act 2004 itself came into force on 1 October 2005. Neither the Explanatory Memorandum for the amending Bill of 2005 nor the Second Reading Speech refers specifically to section 367A.
Only very few cases disclosed by our research and that of the parties make any reference to this section. It seems that the only case in which it has been discussed to any significant extent, being one on which Mr Latham placed strong reliance, is Alan Edward Lewis v Paul Adrian Doran [2008] NSWSC 186.
In this case, the successful defendants in Supreme Court proceedings obtained a costs order in their favour. They then sought a declaration to the effect that the 'reasonable value' of a substantial quantity of time and effort expended by one of them in locating, inspecting, collating and analysing documents for the purpose of preparing affidavits and giving evidence was 'capable' of constituting a 'disbursement' in the assessment of these costs under section 364 of the LP Act 2004.
In the course of the hearing, the defendants moved to amend their claim by including an alternative declaration in the following terms:-
"1A Alternatively to paragraph 1, above, a declaration that as part of the assessment of costs by a costs assessor pursuant to s 367A of the Legal Profession Act 2004 (NSW) the reasonable value of the time spent by the first defendant in preparing his affidavit evidence, in preparing to give oral evidence and in attending court at the hearing is capable of falling within the meaning of the terms 'costs' as defined by s 302(1) of the Legal Profession Act 2004 (NSW)."
In an ex tempore judgment, Hammerschlag J refused to grant either declaration. At [40 - 42], he pointed out that the definition of 'costs' in section 302 of the LP Act 2004 applied to section 367A. At [50 - 54], in the course of explaining his reasons for refusing the declaration originally sought, he said:-
50 The declaration originally sought concerns, and concerns only, requirements imposed on an assessor in making an assessment of "legal costs" which are the subject of an order.
51 The definition of "legal costs" is to be contrasted with the definition of "costs" in s 302 of the Act.
52 The definition of legal costs and the process provided for in s 364 of the Act are directed to assessing those costs (whether by way of services rendered or the incurring of disbursements) where the activity gives rise to, or may give rise to a liability to, a law practice.
53 The term "disbursements" in the definition in s 4(1) of the Act is a term of expansion intended to comprehend amounts payable, or which may become payable, to the law practice beyond amounts only for the provision of legal services. However, it remains a requirement that those disbursements actually be or potentially be charged for, or be or become a liability to the law practice.
54 Section 364 of the Act is not intended to govern the assessment process in respect of costs which fall within an order but are not "legal costs" within the definition of s 4(1). The assessment process for those costs is governed by s 367A of the Act.
At [76], his Honour stated that he considered the alternative declaration to be 'futile', principally on the ground that '[w]hether the value of time spent on any of the matters sought to be covered by the alternative formulation of the declaration is costs will depend on the facts, which is a matter for the assessor'.
In oral submissions in reply, Mr Thawley argued that because the provisions comprising Subdivision 3 of Division 11 (i.e. sections 364 to 366) appear under the heading 'Party/party costs' and relate only to 'legal costs', they should be taken to govern section 367A. In consequence, he maintained, Hammerschlag J's ruling that the term 'costs' in section 367A extended to costs that were not 'legal costs' was erroneous and should not be followed.
We do not consider that any such implication from the terms of the LP Act 2004 is sufficient to override the reasoning outlined above. If Mr Thawley's claim were correct, the definition of 'costs' in section 302 would appear to be superfluous. We treat the use of this term in section 367A, in preference to 'legal costs', as having the significance attributed to it by Hammerschlag J.
In further support of the proposition that the LP Act 2004 should be construed as providing for the assessment of party/party costs that are not 'legal costs', Mr Latham pointed out that courts and tribunals have regularly awarded party/party costs to parties that were represented in the proceedings by their own 'in-house' lawyers, not by any 'law practice' or employee of a 'law practice'. Amongst a number of cases cited by him to illustrate this, the decision of the Supreme Court in Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 contains valuable observations on the questions with which we have to deal here.
In that case, the Commonwealth Bank ('the CBA') successfully defended proceedings brought against it in the Local Court and obtained an award of costs. Both the solicitor on the record for the CBA and the solicitor (Mr Lanser) who had carriage of the proceedings on its behalf were employed by it. The CBA made an application under section 202 of the Legal Profession Act 1987 ('the LP Act 1987') for its costs to be assessed.
The Assessor adopted the view that, in order to ensure that the CBA did not make a profit from the costs being awarded to it, he should not proceed on the basis of a District Court scale that was often used as a guide by assessors when assessing Local Court costs. Instead, he made a written request to the CBA to calculate and notify to him 'the cost of Mr Lanser's time to the Bank as an employee of the Bank, expressed in units of 1 hour'. The letter also requested advice as to the hourly value of the time spent on the proceedings by all other employees of the CBA.
The CBA sought a declaration in the Supreme Court to the effect that the Assessor was not entitled to make this request. Davies A-J granted this declaration.
At 336 [8], his Honour formulated the question debated before him as 'whether the Assessor was entitled to require that a calculation be made of the cost to the CBA of the legal services which its officers required'. At 336-337 [10], he identified as a 'flaw in the Assessor's reasoning' an assumption that the hourly sum charged internally in the CBA for Mr Lanser's time 'involved an element of profit'. He added: 'It would be surprising if the actual cost to the CBA of the legal services did not substantially exceed any sum which the Assessor would be likely to award.'
Davies A-J then stated at 337 [11]:-
In a case where an employed solicitor is involved, the traditional approach has been to award costs on a basis comparable to the costs which would have been incurred and allowed on taxation had an independent solicitor been engaged. The assumption has been made that, in an ordinary case, the indemnity principle will not be infringed by taking this approach.
In the ensuing paragraphs of his judgment, his Honour referred to authorities establishing and illustrating this principle, including 19th century English cases and 20th century Australian cases. He then made the following observations, at 339 [20 - 22]:-
20 There is a point of principle behind the approach enunciated in all these cases. It is that employed solicitors are not to be treated as second-class professionals. Lawyers are entitled to practice in their profession in a number of ways, one of which is to be a legal officer in a corporation which engages in commercial activities...
21 Practitioners who choose to carry on their profession as an employee of the Crown, of a statutory authority or of a corporation are entitled to have their work assessed on the same basis as that of independent solicitors exercising comparable skills in the performance of comparable work. It is not the manner in which the practitioner carries on his or her profession which counts, it is the nature of the work, the time spent and the skill, care and responsibility involved. Assessors are chosen for their expertise in assessing a fair and reasonable reward for the work done by practitioners, not for their skill in determining the operational costs of a commercial enterprise.
22 In many cases, the possibility that an assessment on the usual basis might result in a profit has been disregarded...
Significantly for present purposes, the provisions of the LP Act 1987 applying to the assessment conducted in this case were the same, in all material respects except one, as the equivalent provisions of the LP Act 2004. The CBA's application for assessment was made under section 202 of the 1987 Act. Subsections (1) and (2) of this section were in the same terms as their equivalents (subsections (1) and (2) of section 353) in the 2004 Act. Section 208F(1) and section 208G of the 1987 Act (both of which were reproduced in his Honour's judgment at 338 [15]) contained criteria for the assessment of party-party costs that now appear, with some variations, in subsections (1) and (2) respectively of section 364 of the 2004 Act. Sections 208H and 208I, which were the remaining provisions within Subdivision 3 (headed 'Party/party costs') of Division 6 of Part 11 of the 1987 Act, have been reproduced verbatim in sections 365 and 366 of the 2004 Act.
The exception, which is important, is that the 1987 Act contained no separate concept of 'legal costs' such as is defined in section 4 of the LP Act 2004. Instead, the definition of 'costs' in the former Act, contained in section 3, was the same as is now found in section 302 of the latter Act. Section 3 stated: 'costs includes fees, charges, disbursements, expenses and remuneration.'
What this analysis of the Hattersley case illustrates is that under the LP Act 1987 the amount of party/party costs payable under a costs order to a party represented by lawyers whom it employed could be the subject of an assessment by a costs assessor. It was treated as beyond dispute that such an assessment was within the range of tasks that could be referred to an assessor. The breadth of the definition of 'costs' in section 3 made this clear. On account of the absence of any competing concept of 'legal costs', comprising only costs paid or payable to a 'law practice', the reasoning leading to this result was straightforward.
Furthermore, the references by Davies A-J to the existence of a 'traditional approach' to assessing such costs and to the confirmation of this approach in decisions spanning a long period of time provide support for the view that Parliament is unlikely to have intended, in the 2004 Act, to remove the assessment of such costs from the range of tasks performed by costs assessors. Its inclusion of section 367A in amending legislation of 2005 that came into operation concurrently with the 2004 Act itself may well have been prompted by the realisation that without any such amendment the new assessment provisions, being restricted to 'legal costs', would have had precisely that effect.
As we view the matter, the interpretation of section 367A for which Mr Thawley contended, restricting its scope to the assessment of 'legal costs' only, would rule out the assessment of party/party costs when the successful party was represented by one or more in-house lawyers (as in Hattersley) or by any other lawyer or lawyers not falling within the definition of a 'law practice'. Such an interpretation is not expressly mandated by the terms of the legislation - in fact, we believe the contrary to be the case - and would produce an undesirable outcome in terms of policy.
A passage supporting our view on this matter appears in another decision cited by Mr Latham. In Portale v Law Society of New South Wales (No 1) (2010) 10 DCLR (NSW) 194; [2010] NSWDC 59, the Law Society of New South Wales, having obtained in 2003 an order for costs in disciplinary proceedings brought against a solicitor in this Tribunal, applied in 2008 for these costs to be assessed. The solicitor applied for review of the assessment by a review panel. Following confirmation of the assessment by the panel, he appealed to the District Court under section 384 of the LP Act 2004, which permits appeals on questions of law.
In the appeal, the first ground of appeal put forward by the solicitor was that the assessor and the review panel 'erred in law with regard to the definitions of "legal costs", "law practice" and "legal service" contained within s 4 of the Legal Profession Act 2004'. He maintained that the Law Society could not recover any costs because the costs that it claimed were not 'legal costs' within the definition of section 4 of this Act. This was the case, he said, because the Society was not itself a 'law practice' and in the Tribunal proceedings it had not been represented by a 'law practice'.
Cogswell DCJ held first that the questions to be resolved were governed by the LP Act 2004, not the Act of 1987, even though the Tribunal's costs order had been made during 2003. His Honour then rejected the first ground of appeal in the following passage (at 197-198 [16 - 18]):-
16. The effect of Mr Portale's argument is this. Unless a party/party costs order is obtained by a party for whom a law practice acted then those party/party costs are not recoverable by that party. It would follow that institutions such as the Law Society and corporations - large or small - which employ their own lawyers to act for them in litigation, are precluded from recovering any party/party costs in that litigation. I would be surprised if the legislature intended to bring about such a radical change in the day to day conduct of litigation without making such a change unambiguously clear.
17. It seems to me that the definition "legal costs" in the 2004 Act attempts a generic definition of the kinds of payments that can be classified as "legal costs". It does this by adopting a very broad classification. Such costs are amounts of money which fall into one of two categories. One category is amounts which a law practice has actually charged a person or which a person has actually become liable to pay to a law practice. The other category comprises amounts which are of a kind which "may be charged" by, or which a person "may become liable to pay" to a law practice for the provision of legal services. Mr Portale argued that "may be charged" or "may become liable to pay" referred to a future event as distinct from the past event of having been charged or having become liable. I do not think the definition attempts to fix a point of time and look backwards and forwards. I think the definition attempts to define legal costs in a global way by reference to what a lawyer has actually charged for and what a lawyer is entitled to charge for.
18. Another way of describing the latter category is amounts of a kind which may be charged by a law practice or of a kind which a person may become liable to pay to a law practice. Such a reading of the definition would encompass both bills actually charged by a law practice to a client and party/party bills where the provision of legal services has not been made to the person receiving the bill but to someone else. The way of determining whether or not such a party/party bill is one for "legal costs" is to ask whether the amounts in the bill are amounts of a kind that "may be charged by a...law practice" or of a kind which "a person...may become liable to pay to a law practice for the provision of legal services".
The solicitor's second ground of appeal was that the assessor and review panel erred in law in 'still applying Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333, an authority which has been specifically overridden by definitions of "legal practice" and "legal costs" within s 4 of the Legal Profession Act 2004'. Cogswell DCJ held at 198 [21] that this ground failed because, like the first ground, it was based on an erroneous view of the meaning of 'legal costs' in section 4 of the LP Act 2004. He added that in his opinion Commonwealth Bank of Australia v Hattersley was still good law and had been correctly applied in the costs assessment.
It would appear from the reports of this case that the wider definition of 'costs' in section 302 of the LP Act 2004 and the terms of section 367A were not brought to his Honour's attention. Whether, being aware of these provisions, he would have dismissed the solicitor's appeal by reference to them rather than through the reasoning contained in paragraphs [17] and [18] is a matter of conjecture. We are bound to say, with respect, that in our opinion this reasoning relies on a somewhat strained interpretation of the definition of 'legal costs' in section 4. But his Honour's observation in the last sentence of paragraph [16] accords entirely with our views, as also does his opinion, expressed in paragraph [21], that Commonwealth Bank of Australia v Hattersley is still 'good law'.
Two matters remain to be discussed in this section of our reasons.
The first is the extent, if any, to which the services rendered to the Appellants by Byrons, in respect of which the Respondent is entitled to an amount by way of costs under the Costs Order, were or included 'legal services'. This issue arises because while the broad definition of 'costs' in section 302 does not contain any terms confining them to costs paid or payable for legal services, the wording of section 301, where the purposes of Part 3.2 are set out, suggests that where neither costs for 'legal services' nor 'legal costs' are involved to any significant extent, the provisions of the Part do not have a role to play.
Mr Thawley maintained that the services rendered by Mr Eager were not 'legal services', even though he was at the time an Australian legal practitioner. This submission by Mr Thawley relied strongly on the considerations that the Appellants engaged Byrons, an accountancy firm - not Mr Eager - to represent them and that other employees of Byrons were also involved in fulfilling Byrons' obligations under its contract with the Appellants.
In our opinion, however, the Respondent's evidence, described above at [29], as to the nature of the tasks performed by Mr Eager establishes clearly that in so far as he rendered services to the Appellants in his capacity as an employee of Byrons, they wholly or substantially comprised 'legal services'. They were indistinguishable from the services that one or more barristers and/or solicitors would normally provide to a client instituting and maintaining legal proceedings such as these. To quote from the definition of legal services in section 4, they constituted 'work done, or business transacted, in the ordinary course of legal practice'.
In so ruling, we rely, as Mr Latham did in his submissions, on the judgment of Barr J in Law Society of New South Wales v Stephen Gary Spring and Another [2007] NSWSC 1273. In this case, the Law Society sought injunctive and declaratory relief against an individual, Mr Spring, and a company called Lolly Pops QVB Pty Ltd ('Lolly Pops'), of which he was the director. The ground of the Society's claim was that these two defendants contravened sections 14 and 15 of the LP Act 2004 by acting, in return for remuneration, for a party in proceedings within the Retail Leases Division of this Tribunal and by advertising their services as a 'retail lessee advocate and agent'. They acted in these ways even though Mr Spring was not an Australian legal practitioner and Lolly Pops was not an incorporated legal practice within the meaning of this Act.
Section 14(1) states that a person who is not an Australian legal practitioner must not engage in 'legal practice' within this jurisdiction. Section 15(1) states that such persons must not represent or advertise that they entitled to engage in legal practice in this jurisdiction. So far as relevant, section 15(2) states that a director of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice or a complying community legal centre. But by virtue of sections 14(2) and 15(3), these provisions do not apply to 'legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth'.
The Law Society's claim failed on the ground that section 71 of the ADT Act and section 77C of the Retail Leases Act 1994 provided authorisation for the conduct of Mr Spring and of Lolly Pops. Barr J explained his reasoning on this matter as follows, at [55] and [75]:-
55 The Administrative Decisions Tribunal Act and the Retail Leases Act are laws of New South Wales. S71 of the former Act authorises representation by an agent in proceedings before the Tribunal, subject to the power of the Tribunal in subs(2) to order that the parties may not be represented by an agent of a particular class for the purpose of making oral submissions to it. S77C of the latter Act provides, despite s71 of the former, that where proceedings concern a lease within the purview of the Act, the parties may appear in person or be represented by a lawyer or other agent, thereby removing the power of the Tribunal to make an order about representation under s71(2) of the former Act. A person who represents a party before the Tribunal engages in legal practice. So the Administrative Decisions Tribunal Act and the Retail Leases Act amount to a law under whose authority such an agent may engage in legal practice. By virtue of subs 14(2)(a) of the Legal Profession Act, subs 14(1) does not apply.
75 It follows that the work done by Mr Spring was done in accordance with an exception to the requirements of s14 Legal Profession Act and that there has been no breach of that section. By the proper concession of senior counsel for the Law Society, there has been no breach of s15 by reason of the advertisements on the ARLM website and no other breach of any provision of the Legal Profession Act.
In the first costs decision, we referred to this case (see paragraphs [81] and [87]) in deciding that the costs awarded to the Appellants should include costs in respect of the fees paid or payable by them to Byrons for the work done by Mr Eager as their agent.
In the present context, the relevant passages in Barr J's judgment are those in which he described the services rendered by Mr Spring to his client in the Tribunal proceedings. At [40] and [53], his Honour said:-
40 The work done comprised the preparation of an amended application and summons to produce, drafting correspondence to be sent to the solicitors for the other side, drafting and amending correspondence to be sent to the Tribunal, corresponding with solicitors and the Tribunal, drafting and amending affidavits, providing legal advice on costs, on statutory causes of action and on jurisdiction, advising how to proceed at the hearing and how to conduct it, advising on settlement and drafting submissions, as well as attending the Tribunal, appearing there and adducing evidence, including by cross-examination, and making oral argument and submissions.
53 The functions of advising on evidence, drafting and settling letters and affidavits and making oral and written submissions are, in actions before courts and tribunals, the stuff of barristers' and solicitors' work... As senior counsel for Mr Spring conceded, much of what Mr Spring did would be characterised as engaging in legal practice. It may be accepted that the work that Mr Spring did was legal practice as contemplated by ss14 and 15 of the Legal Profession Act.
The work done by Mr Eager, an Australian legal practitioner at the relevant time, was indistinguishable in general terms from the work done by Mr Spring, who was not such a practitioner. If, as Barr J held, Mr Spring engaged in legal practice and therefore rendered 'legal services' (see the definition of 'legal services' in section 4, quoted above at [42]), so, a fortiori, did Mr Eager.
The final matter requiring discussion here is whether it is significant that the fees charged to the Appellants were those of an accountancy firm, Byrons, not of the agent, Mr Eager, who represented them in the proceedings and whom we have just held to have rendered 'legal services' to them. In this context, Mr Thawley relied on the fact that a number of the services provided by Byrons to the Appellants involved activity by employees of Byrons who were not Australian legal practitioners. Since Byrons was not a 'law practice', he argued, it must follow from this feature of the situation that Byrons did not render 'legal services'.
In our opinion, there are two answers to this contention.
First, the Costs Order did not stipulate that the Respondent should pay to the Appellants the actual amount of 'the fees paid or payable by the Appellants to Byrons'. It stipulated instead that an amount of costs 'in respect of' these fees should be paid. Both the direction that, in our opinion, we may give under section 353(2) of the LP Act for this amount to be assessed and the costs assessor's determination of a 'fair and reasonable amount' under section 367A would be applicable to an amount of costs 'in respect of' Byrons' fees, not simply to those fees.
Secondly, as Mr Latham submitted, the fees or costs generated by the work of employees other than Mr Eager are quite apt to be assessed as disbursements. To do so would be to treat them in the same way as work performed by non-lawyers within a law practice is treated when assessing the amount that should be paid on account of party/party costs under the provisions applicable to 'legal costs' - i.e., sections 364 and (if relevant) 365 of the LP Act 2004.
For the foregoing reasons, we conclude that the assessment of the amount of costs to be paid in respect of fees paid or payable by the Appellants to Byrons, pursuant to Order 3(a) of the Costs Order, falls within the range of assessments that may be undertaken by a costs assessor under Division 11 of Part 3.2 of the LP Act 2004.
The appropriateness of the LP Act's regime of costs assessment
Because we have the power, under section 88(2) of the ADT Act, to order assessment other than under the LP Act 2004, the question whether some alternative approach to assessment would be more appropriate in this case requires consideration.
There are actually two distinct issues within this question. The first is whether the basis of the assessment to be undertaken should be, to adopt the formulation in section 88(2)(b) of the ADT Act), 'a basis set out in' Division 11 of Part 3.2 of the LP Act or 'some other basis'. The second is as to the procedure to be adopted in obtaining an assessment.
With regard to the first and most important of these issues, we believe the following to be factors of major importance. The costs that we are considering are 'costs in relation to proceedings' before the Tribunal (see ADT Act, section 88(1A)). The proceedings with which we are dealing, while lengthy and protracted, did not have any unusual feature suggesting that costs assessment under the LP Act 2004 would be inappropriate, other than the fact that the Appellants employed an accountancy firm (Byrons), rather than a law practice, to conduct their case. The spreadsheet and other evidentiary material tendered by the Appellants at the hearing before us reveal that a very high component of the work undertaken by Byrons for the purposes of the proceedings was performed by Mr Eager, a solicitor holding a practising certificate. There is nothing in this material, or in any other evidence put before us, to suggest that the tasks carried out by Mr Eager differed in any material respect from the tasks normally performed by barristers and/or solicitors pursuant to instructions from clients to represent them in civil proceedings.
Mr Thawley in his submissions referred to the contribution shown in the spreadsheet to have been made by Mr Dickie, an accountant and a member of Byrons. This was significant, but not on a scale comparable to that of Mr Eager. Mr Dickie also gave evidence in the first instance proceedings before the Tribunal (see B & L Linings Pty Ltd and L & B Linings Pty Ltd v Chief Commissioner of State Revenue [2005] NSWADT 129 at [34 - 43]). Given the nature of this case, it is not surprising that accounting expertise such as he could provide should have been brought to bear in the preparation and presentation of the Appellants' case. But there is nothing before us to suggest that Mr Dickie's contribution constituted an unusual feature indicating that costs assessment under the LP Act 2004, which would focus primarily on the legal services rendered by Mr Eager, would be inappropriate.
The disputed item of costs is costs 'in respect of' the fees paid or payable to Byrons. In their submissions to us, the parties were in agreement that criteria importing the values of 'fairness' and 'reasonableness' should be applied. Mr Latham argued for the same criteria as appear in subsections (1) and (2) of section 364 of the LP Act 2004 (see [54] above). In submissions in reply, Mr Thawley agreed that the criteria in subsection (1) were appropriate, but not those in subsection (2). It is well recognised that in applying criteria of this nature to the assessment of party/party costs under the LP Act 2004 and its predecessors, both the amount that the successful party is required to pay to its lawyers for costs and disbursements and an amount that can be fairly regarded as reasonable to obtain from the unsuccessful party are highly relevant factors. If the former amount is exorbitant, the unsuccessful party can legitimately claim that it be scaled down to or towards the latter amount. When the latter amount is the greater, the 'indemnity principle' to which Davies A-J referred in Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 (see [75] above) may be applicable.
Assessment of party/party costs under the LP Act 2004 and its predecessors is an expert process, developed over many years, for resolving issues such as these. By contrast, the uncontradicted evidence adduced by the Respondent as to the assessment of accountants' fees by relevant professional bodies (see [30] above) provides no reason to believe that any such assessment would be informed by the expertise and experience required to take proper account of these particular considerations, specific as they are to the particular exercise of assessing party/party costs in legal proceedings.
As already emphasised, the disputed item of costs is not defined in the Costs Order as simply the 'fees paid or payable by the Appellants to Byrons'. It is instead an amount 'in respect of' those fees. We are satisfied that for the reasons that we have just outlined, assessment of the costs thus defined under Division 11 of the LP Act 2004, utilising the criterion of 'fair and reasonable' stated in section 367A, is the most appropriate basis for determining such an amount.
In view of this conclusion on the first of the two issues defined above, discussion of the second issue - that of the procedure to be adopted - can be relatively brief.
In their submissions, the parties canvassed two alternative procedures for assessment. Within each of these, some variants were suggested.
First, Mr Thawley submitted that the Tribunal should itself determine the disputed item of costs, with the rider that if the Tribunal thought fit, it could obtain evidence on one or more aspects of the assessment from an independent expert appointed by it. Mr Thawley indicated that the Appellants had a 'slight preference' for this approach because it was likely to be more economical than any other and the assessment would remain within the control of the Tribunal. He referred us to a number of instances of legislation - for example, section 111 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - empowering a tribunal to fix an amount payable under a costs order.
Mr Latham expressed opposition to this proposal, describing it as 'clumsy'. He drew our attention to a dictum of the Legal Services Division of the Tribunal in Legal Services Commissioner v Galitsky (No 2) [2008] NSWADT 153 at [23], to the effect that the Tribunal should not adopt the role of a costs assessor because it does not possess any expertise or experience in determining the quantum of fair and reasonable costs.
While adhering to his primary argument that assessment of the disputed item of costs should be conducted by an assessor appointed under Division 11 of Part 3.2 of the LP Act 2004, Mr Latham observed that if instead the Tribunal chose to make its own determination, it could call 'an appropriate costs assessor' as a witness. He or she could be a single expert agreed by the parties or a witness called by the Tribunal of its own motion under section 83 of the ADT Act. The Tribunal could direct the assessor to write a report, permit cross-examination on the report and submissions by the parties, then reach its own decision.
In reply, Mr Thawley suggested that the choice of an expert witness could be made by the Tribunal from lists of (for example) three candidates submitted by the parties.
Our view on assessment by the Tribunal is as follows. We recognise that the Tribunal may and in practice does determine the amounts payable pursuant to costs orders made under section 88 of the ADT Act. But it only takes this step when the determination is comparatively simple. In proceedings that have been as lengthy and as complex as these proceedings, it does not purport to have the necessary expertise.
Accordingly, assessment by the Tribunal could only take place if it had the benefit of expert assistance, following a procedure such as the parties outlined in their submissions. But the ultimate decision as to how much should be paid would still remain with the Tribunal. The observation that we have quoted from Galitsky would still, in our opinion, be pertinent.
The second of the two alternative approaches put before us was that the Tribunal should appoint an assessor, whose determination of the amount payable would be final and would take effect as an order of the Tribunal. Mr Thawley advocated this approach, emphasising that the assessor should have the expertise appropriate for determining a fair and reasonable amount for the costs charged by an accountancy firm, as opposed to a law practice. Mr Latham did not oppose this procedure, as a less desirable alternative to assessment by an assessor appointed under the LP Act 2004, but maintained his claim that the principles of assessment set out in this Act should be applied.
In the light of our decision that the basis of assessment of the disputed item of costs should be the basis set out in section 367A of the LP Act 2004, and since this Act, in section 353(2), prescribes a mechanism for the Tribunal to refer this item for assessment, we see no advantage in departing from the standard procedure applying to these circumstances. The assessment should be by a costs assessor appointed under Division 11 of Part 3.2 of this Act.
Our orders
For the foregoing reasons, our principal order in this decision is in the following terms:-
Within the amount of costs ordered to be paid in the Appeal Panel's decision of 6 April 2010, the amount to be included by virtue of paragraph (a) of Order 3 is to be assessed under Division 11 of Part 3.2 of the Legal Profession Act 2004 by a costs assessor appointed under that Division.
Both parties indicated that they wished to be heard on the question of their costs incurred in the assessment of the costs payable to the Appellants under the Costs Order. We apprehend that any application made will chiefly if not entirely relate to the costs associated with the hearing on 15 May 2012. Our directions on this aspect of the proceedings reflect the fact that the Respondent has succeeded on the questions raised at that hearing.
We direct as follows. Within 21 days of the date of this decision, the Respondent is to file and serve its submissions on the costs incurred by it since the Appeal Panel's decision of 6 April 2010. Within a further 21 days, the Appellants are to file and serve their submissions on this question. If the Appellants' submissions incorporate any application for costs to be awarded in their favour, the Respondent will have a further 21 days within which to file and serve submissions in reply. The matter will then be determined 'on the papers' under section 76 of the ADT Act. There will be general liberty to apply.
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