BHP Billiton Limited v Registrar of the Dust Diseases Tribunal of New South Wales

[2010] NSWSC 562

CITATION:	BHP Billiton Limited v Registrar of The Dust Diseases Tribunal of New South Wales [2010] NSWSC 562
HEARING DATE(S):	13 May 2010
JUDGMENT DATE :	2 June 2010
JUDGMENT OF:	Price J at 1
DECISION:	1 I declare the third defendant's application for assessment of party/party costs filed on 18 September 2009 is not a proper application for costs assessment under s 353(1) LPA to be dealt with under Division 11 of Part 3.2 LPA.2 I declare the first defendant's referral of the costs application to the second defendant under s 357 LPA to be invalid. 3 I make an order pursuant to s 69 Supreme Court Act quashing the decision of the first defendant to refer the costs application to the second defendant under s 357 LPA. 4 I make an order pursuant to s 69 Supreme Court Act prohibiting the second defendant from dealing with the costs application under the LPA. 5 The First Cross-Claim filed by the third defendant on 8 February 2010 be dismissed. 6 I shall hear the parties as to costs.
CATCHWORDS:	PRACTICE AND PROCEDURE - declaratory relief - cross-vested proceedings - costs assessment - construction of s 353(1) Legal Profession Act - whether general rule of statutory construction applies - whether section applies to order for costs by District Court of South Australia - whether sufficient connection when legal work carried out in New South Wales - whether full faith and credit should be given to judgment of Master of District Court of South Australia - whether proceedings should be finalised
LEGISLATION CITED:	Commonwealth of Australia Consitution Act s 118 Dust Diseases Tribunal Act 1989 s 10(1), s 11, s 12 Evidence Act 1995 s 185 Interpretation Act 1987 s 12(1), s 12(1)(a), s 12(1)(b) Jurisdiction of Courts (Cross-Vesting) Act 1987 s 5 Legal Profession Act 2004 s80, s 350, s 353, s 353(1), s 357, s 364(3), s 367A, s 368(5), s 396(1) Supreme Court Act 1970 s 23, s 63, s 69 Service and Execution of Process Act 1992 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	BHP Billiton Ltd v Schultz (2004) 221 CLR 400 Commissioner of Taxation v Nestle Australia Ltd (1986) 12 FCR 257 Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 Harris v Caladine (1991) 172 CLR 84 Hilton v Wells (1985) 157 CLR 57 Law Society of New South Wales v Glenorcy Pty Ltd (2006) 67 NSWLR 169 O’Connor v Healey (1967) 69 SR 111 Pallas v Finlay (1985) 61 ALR 220 R v Commonwealth Court of Conciliation & Arbitration, Ex parte Whybrow & Co (1910) 11 CLR 1 Re Iskra; Ex parte Mercantile Transport Co Pty Ltd (1962) 5 FLR 219 Solomons v District Court of NSW (2002) 211 CLR 119 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 Wentworth v Lloyd (No 2) 34 BEAV 454
PARTIES:	BHP Billiton Limited - First Plaintiff Wallaby Grip Limited - Second Plaintiff Wallaby Grip (BAE) Pty Ltd (in liquidation) - Third Plaintiff Wallaby Grip (BAE) Pty Ltd (in liquidation) - Fourth Plaintiff Amaca Pty Ltd - Fifth Plaintiff Registrar of The Dust Diseases Tribunal of New South Wales - First Defendant Jens Lichtenberger - Second Defendant Trevor John Schultz - Third Defendant/First Cross-Claimant
FILE NUMBER(S):	SC 30122/09
COUNSEL:	Mr D McLure (Plaintiffs/Cross-Defendants) Mr A McSpedden (Third Defendant/First Cross-Claimant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

2 June 2010

30122/09 BHP Billiton Limited v
Registrar of the Dust Diseases Tribunal of
New South Wales

JUDGMENT

1 HIS HONOUR

: These claims for orders and declaratory relief concern legal costs incurred in New South Wales prior to the transfer of proceedings to South Australia pursuant to s 5 Jurisdiction of Courts (Cross-Vesting) Act 1987.

2 The principal issue for consideration is whether in the circumstances of this case the provisions of s 353(1) Legal Profession Act 2004 (LPA) apply to an order for costs made by the District Court of South Australia.

Background

3 As the present dispute has arisen towards the end of a long and arduous litigious journey for the parties, it is useful to recount the events which have brought the present applications to this Court.

4 Trevor John Schultz, the third defendant/cross-claimant in the present proceedings suffered from asbestosis and asbestosis-related plural disease. On 9 August 2002, Mr Schultz commenced proceedings in the Dust Diseases Tribunal of New South Wales (the DDT) against BHP Billiton Limited and three other defendants. The defendants are the plaintiffs in the present proceedings. For the sake of convenience I will refer collectively to the plaintiffs as BHP Billiton.

5 BHP Billiton applied to have the DDT proceedings transferred to the Supreme Court of South Australia pursuant to s 5 Jurisdiction of Courts (Cross-Vesting) Act 1987. After various appeals, the High Court on 7 December 2004 ordered that the DDT proceedings be removed into the Common Law Division of this court and thereupon be transferred to the Supreme Court of South Australia: BHP Billiton Ltd v Schultz (2004) 221 CLR 400.

6 On 30 November 2005, the Supreme Court of South Australia remitted the proceedings to the District Court of South Australia. Mr Schultz’s claim was ultimately settled on terms agreed between the parties and on 22 February 2007 judgment was entered by consent for Mr Schultz in the District Court of South Australia. By consent the court ordered BHP Billiton to pay Mr Schultz’s costs as agreed or taxed.

7 Mr Schultz then lodged in the District Court of South Australia a bill of costs for taxation on a party/party basis for the legal work done in South Australia. He also served a party/party bill of costs for the legal work undertaken in the DDT. A disagreement then arose between the parties as to the basis upon which Mr Schultz was entitled to have the DDT costs assessed. Mr Schultz contended that these costs were to be determined in accordance with the LPA.

8 BHP Billiton, on the other hand, argued that the DDT costs should not be taxed “in accordance with the New South Wales rate assessment principles” but on the applicable South Australian scale.

9 The argument came before Master Rice of the District Court of South Australia who in a reserved judgment delivered on 8 September 2009, relevantly, made the following orders:

“1. As a consequence of the consent orders made in this action and on the issue of the procedure to tax costs for legal work in the DDT, I refuse [Mr Schultz’s] application …that he is entitled to his costs in SA, for the legal work done in the DDT, by adopting the procedures of the Legal Professions (sic) Act (NSW) (2004).

…

2. The plaintiff is at liberty:

(i) to refer the bill of costs for work done in the DDT to the taxing authorities in NSW for determination, or

(ii) to lodge a party/party bill of costs in SA pursuant to the District Court Rules (SA) for legal work done in the DDT on behalf of the plaintiff. I note the defendant’s do not oppose this approach.”

10 Following the refusal by Master Rice to have the DDT costs assessed in accordance with the LPA, Mr Schultz applied to this court on 18 September 2009 for assessment of party/party costs and to have the costs application referred to a costs assessor. The costs which were the subject of the application were stated to be “the costs payable by the Costs Respondents as a result of proceedings in the Dust Diseases Tribunal at Sydney No 308 of 2002.”

11 It is apposite to observe that the DDT had not made an order for costs before the proceedings were transferred. The sole order for costs was the order made by consent in the District Court of South Australia.

12 The Registrar of the DDT referred the costs application to Mr Lichtenberger, a cost assessor on 16 November 2009.

13 BHP Billiton responded to Mr Schultz’s application and the referral to the cost assessor by seeking declaratory relief in this court. Mr Schultz seeks declaratory relief by a cross-summons.

The relief claimed

14 By a summons filed on 4 December 2009, BHP Billiton seeks the following declaratory relief:

1. A declaration that Mr Schultz’s application for assessment of party/party costs is not a proper application for costs assessment under s 353 LPA to be dealt with under Division 11 of that Act.

2. A declaration that the referral of the costs application by the first defendant, the Registrar of the Dust Diseases Tribunal of New South Wales to the second defendant, Mr Lichtenberger under s 357 LPA was invalid.

15 BHP Billiton also asks for orders pursuant to s 69 Supreme Court Act 1970 quashing the decision of the Registrar to refer the application to the costs assessor and prohibiting the costs assessor from dealing with the application.

16 By a cross-summons filed on 9 February 2010 Mr Schultz asks for an order that BHP Billiton pay his costs of the proceedings in the DDT relating to work done in the period from 22 August 2001 to 23 September 2004. Mr Schultz seeks a declaration that:

(a) His party/party costs being the subject of the order, are assessable under the provisions of the LPA, and
(b) Subject to assessment in accordance with the provisions of the LPA (including any review or appeal in respect of such assessment), costs are payable in the assessed amount.

17 The first and second defendants submit to the orders sought, save as to costs.

Submissions

18 Mr McLure for BHP Billiton contended that as no order as to costs has been made by a NSW court or tribunal, the costs application is not a proper application for a costs assessment to be dealt with under Division 11 of Part 3.2 LPA. Mr McLure submitted that the words “court or tribunal” in s 353 mean a court or a tribunal in New South Wales and not a court or tribunal in other states and territories in Australia for the following reasons:

(i) It is beyond the legislative competence of the New South Wales Parliament to empower New South Wales officers to conduct assessments of orders for costs made by courts or tribunals of other jurisdictions. Such a law would lack the necessarily relevant territorial connection (even a remote or general connection) with New South Wales.
(ii) Section 12(1) Interpretation Act 1987 reflects a general rule of construction which confines a State enactment to State proceedings and officers unless excluded by a contrary intention and no contrary intention appears in the LPA. The express terms of Division 11 of Part 3.2 strongly suggest, Mr McLure argued, that the LPA is directed at the courts and tribunals of New South Wales. No provision in Division 11 of Part 3.2 refers to litigation in another jurisdiction. On the contrary, the Division is so drawn, Mr McLure submitted, as to emphasise the control of the cost assessment process by New South Wales institutions.
(iii) A judge is “an officer” within the meaning of those words in s 12(1)(a) Interpretation Act and a court is constituted by its judges. Mr McLure contended that a court which is constituted by statute such as the DDT or District Court of New South Wales is a “statutory body” within the meaning of s 12(1)(a).
(iv) The District Court of South Australia does not have the power to make an order for costs of proceedings conducted in the DDT as s 10(1) Dust Diseases Tribunal Act vests exclusive jurisdiction in the DDT to hear and determine proceedings referred to in ss 11 and 12.

19 As to the declaratory relief sought by the cross-summons, Mr McLure contended that the jurisdictional basis for the relief sought is not identified. By force of the orders of the High Court transferring the proceedings to the Supreme Court of South Australia, any jurisdiction of this court or of the DDT in the pending litigation is spent. A fundamental premise of the cross-vesting regime following transfer is that the transferee court is seized of all jurisdiction to determine the action completely. It is the scheme of the cross-vesting legislation that the transferee court, not the transferor court is empowered to make any order as to costs, including costs relating to the conduct of the proceedings before the transfer, if those costs had not already been dealt with at the time of transfer. Mr McLure submitted that a costs order by this court in proceedings which had been transferred to South Australia, would circumvent both the legislative design of the cross-vesting legislation and the orders of the High Court.

20 On the other hand, Mr McSpedden for Mr Schultz submitted that s 353(1) LPA applies to the costs order made by the District Court of South Australia because the entitlement to costs has sufficient nexus with the State of New South Wales and s 353(1) in the present circumstances has extra-territorial operation. Mr McSpedden put to me that provided a law relating to the assessment of costs can be said to have been for the peace, order and good government of New South Wales, the NSW Parliament may enact such a statute even though it has extra-territorial operation. The degree of nexus that is required must be considered in the context of the particular legislation. Mr McSpedden pointed out that in the present case there are strong connections with the State of New South Wales as the costs were incurred in proceedings in a New South Wales Tribunal and Mr Schultz’s liability for costs arose in this State before the proceedings were cross-vested. Section 12(1)(b) Interpretation Act does not require every matter or thing referred to in a statutory provision to occur in New South Wales.

21 In response to BHP Billiton’s submissions concerning s 12(1)(a) Interpretation Act, Mr McSpedden argued that a court is not an “officer, office or a statutory body.” As to BHP Billiton’s further argument that the structure of the LPA suggests control of the cost assessment process by New South Wales institutions, Mr McSpedden contended that those provisions come into effect when jurisdiction is invoked and logically say nothing about the interpretation of the section creating jurisdiction. Mr McSpedden submitted that the argument founded on the exclusive jurisdiction of the DDT was misconceived as once proceedings were cross-vested the DDT no longer had jurisdiction. If the court holds that for an assessment of costs to take place under s 353(1) LPA it is necessary for there to be a costs order of a New South Wales court, Mr McSpedden contended that this court has power to make an order “nunc pro tunc” to enable costs to be assessed. This court should give, Mr McSpedden submitted, full faith and credit to the costs orders of the District Court of South Australia.

22 A further basis of the order and declaration sought in the cross-summons, Mr McSpedden said, was the settlement agreement that was made upon the sending of the letter from DLA Phillips Fox to Turner Freeman dated 24 January 2007. Mr McSpedden argued that the effect of the settlement agreement was to substitute a new set of rights pursuant to the agreement in place of the rights that arose from the causes of action which were the subject of the proceedings. It was put to me that those rights are enforceable sometimes within the same proceedings in which the settlement occurs but in other cases required separate proceedings to be taken. This court has the power under s 23 Supreme Court Act 1970 to make orders enforcing the settlement. Another submission was that the court has the jurisdictional basis for making the order and declarations sought under s 63 Supreme Court Act as BHP Billiton had invoked the court’s jurisdiction and the granting of the order and relief sought would finally determine the controversy between BHP Billiton and Mr Schultz.

23 The cases referred to by counsel in argument included Solomons v District Court of NSW (2002) 211 CLR 119; R v Commonwealth Court of Conciliation & Arbitration, Ex parte Whybrow & Co (1910) 11 CLR 1; Wentworth v Lloyd (No 2) 34 BEAV 454; Re Iskra; Ex parte Mercantile Transport Co Pty Ltd (1962) 5 FLR 219; Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; Law Society of New South Wales v Glenorcy Pty Ltd (2006) 67 NSWLR 169; O’Connor v Healey (1967) 69 SR 111; Hilton v Wells (1985) 157 CLR 57; Commissioner of Taxation v Nestlé Australia Ltd (1986) 12 FCR 257; Pallas v Finlay (1985) 61 ALR 220; Darling Downs Investments Pty Ltd v Ellwood (1988) 18 FCR 510 .

The assessment of party/party costs under the LPA

24 Section 353 LPA is found within Chapter 3 Part 3.2 Division 11 Subdivision 1 LPA which deals with applications to the Manager, Costs Assessment for an assessment of legal costs. Section 350 permits clients or third party payers to apply for costs assessments and ss 351-352 relate to applications for costs assessments by law practices. Section 353(1) and (2) relevantly provide:

“ 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 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.”

25 Section 357 requires the Manager, Costs Assessment to refer each application to a costs assessor. Section 364 specifies the matters that the costs assessor must consider in conducting an assessment of legal costs payable “as a result of an order made by a court or tribunal.” 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 is not limited by Division 11: s 366. Section 367A requires a costs assessor 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. Subdivisions 5 and 6 provide for review of the determination of the costs assessor and appeals as to a matter of law. Costs assessors may be appointed by the Chief Justice of New South Wales: s 390.

Decision

26 The question is whether s 353(1) LPA applies to Mr Schultz’s application for assessment of costs. By its express terms, s 353(1) applies only where the liability or entitlement to costs arises as a result of an order for payment of an unspecified amount of costs made by “a court or tribunal.” Unlike the Service and Execution of Process Act 1992 (Cth) the LPA does not define what is meant by a “court” or a “tribunal”. The District Court of South Australia is plainly a court within that State and the costs order is an order for the payment of an unspecified amount of costs. BHP Billiton, however, seeks to confine a costs order to an order made by a New South Wales court and relies on the presumption that references in legislation are not to be given extra-territorial effect. This general rule of statutory construction is embodied in s 12(1) Interpretation Act which provides that in an Act or instrument references to New South Wales are to be implied.

27 It is unnecessary, in my opinion, to deal with the competing arguments as to whether a “court” falls within s 12(1)(a) Interpretation Act. As a general rule, a reference to a “court” in a New South Wales statute implies a limitation to a court in this State. In Solomons v District Court of NSW McHugh J said at 138:

“It is a long recognised rule of statutory construction that a reference to courts, matters things and persons in the legislation of a State is reference to courts, matters, things and persons in that State. In New South Wales that rule of construction is enshrined in legislation.”

28 The implication arises at least from the terms of s 12(1)(b) Interpretation Act which provides:

“In any Act or instrument:

…

(b) a reference to a locality, jurisdiction or other matter or thing is a reference to such a locality, jurisdiction or other matter or thing in and of New South Wales.”

29 The general rule of construction may be rebutted by contrary intention. A statute may have extra-territorial operation if the statute is for the “peace, order and good government and it is necessary for its more effective operation to that end so to do”: Ex parte Iskra per Brereton J at 236. In Union Steamship Co of Australia Pty Limited v King the Full Court of the High Court (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said at 12-13:

“It has been said that the words “peace, order and good government” are now the source of whatever territorial limitations exist in relation to the Parliaments of the States: R v Foster; Ex parte Eastern and AustralianSteamship Co Ltd (1995) 103 CLR 256 at 307; Johnson v Commissioner of Stamp Duties [1956] AC 331. As Windeyer J noted in Foster (at 308), the words simply express the fact that in “a general and remote sense the purpose and design of every law is to promote the welfare of the community”, to use the words of Professor W Harrison Moore in Commonwealth of Australia , 2 ^nd ed (1910) pp 274-5.”

30 There must be an identifiable nexus between the legislation and the jurisdiction of the enacting Parliament. As the Full Court of the High Court in Union Steamship Co of Australia Pty Ltd v King explained at 51:

“Be this as it may, it is sufficient for present purposes to express our agreement with the comments of Gibbs J in Pearce (CLR at 518) where his Honour stated that the requirement for a relevant connexion between the circumstances on which the legislation operates and the State should be liberally applied and that even a remote and general connexion between the subject-matter of the legislation and the State will suffice.”

31 The connection in the present proceedings is not found in the court order but in the local content of Mr Schultz’s application for assessment which is confined to the costs incurred in the DDT.

32 The issue here, to my mind, is not whether s 353(1) might have extra-territorial operation but whether the limitation that is implied by the general rule of construction has been rebutted so that the section applies to an application for assessment of an order for costs made by a court outside New South Wales when the costs to be assessed are for work carried out in this State.

33 There is nothing in the LPA which clearly indicates that a reference to a “court” in s 353(1) is intended to extend beyond a court in this State. Save for s 396(1) which is discussed below, Chapter 3 Part 3.2 of the LPA does not speak of courts external to New South Wales. Specific reference to the Chief Justice of New South Wales is found in Subdivision 7. I consider that the LPA not only does not clearly evince an intention to rebut the presumption but a number of provisions indicate that the implied limitation applies:

(i) Section 364(1) LPA provides for the matters that the costs assessor
must consider in conducting an assessment of costs ordered by a court or tribunal. Section 364(3) is as follows:

“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.” (Italics added)

Had Parliament intended s 353(1) to apply to an order of a court outside New South Wales when legal work had been carried out in this State, it makes little sense that the costs assessor is obliged to assess the costs in accordance with the operation of the rules and relevant regulations of that court. In the circumstances of the present case, a construction of the term “court” so as to extend beyond the limits of this State, would require the costs assessment to be made in accordance with the District Court Rules 1987 (SA) which were extensively considered by Master Rice in his judgment.

(ii) Having made a determination under s 367A LPA on an application for
an assessment of costs payable as a result of an order made by a court, the costs assessor is obliged to issue a certificate that sets out the determination. Section 368(5) provides:
“In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money , and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed”. (Italics added.)
As the proceedings in the present case were cross-vested to South Australia, the court having “jurisdiction to order the payment of that amount of money” is the District Court of South Australia which made the order as to costs. In Harris v Caladine (1991) 172 CLR 84 by Toohey J said at 136:

“Jurisdiction is the authority which a court has to decide the range of matters that can be litigated before it…”
The costs assessor’s certificate when filed in the registry of the District Court of South Australia would become a judgment of that court. I do not think that Parliament intended to impose judgments on courts of other States. It is more likely that it was the intention of Parliament to confine the entry of judgments to New South Wales courts.


(iii) An intention that costs in proceedings cross-vested to this State from another State be dealt with in accordance with the LPA is found in s 396(1) LPA which is as follows:

“Application of Part to cross-vested matters
(1) The regulations may make provisions modifying the application of this Part to matters commenced in another jurisdiction and transferred to the Supreme Court under cross-vesting legislation of the Commonwealth or another State or Territory.” (italics added)

The modifying provisions permitted by regulation under s 396(1) are confined to proceedings transferred to New South Wales. There is no mention in the LPA of proceedings commenced here which are transferred to another State. The absence of such proceedings from the power to make modifying provisions fits neatly with a view that the cross-vesting legislation contemplates that the transferee court will determine all costs questions including those costs incurred prior to transfer unless an order as to costs has been made. Section 12 Jurisdiction of Courts (Cross-Vesting) Act permits the transferee court to make orders as to costs. A return to the jurisdiction from which the proceedings were transferred for a costs assessment unnecessarily adds to the length and expense of the litigation. I do not think that such a consequence was intended by Parliament.

34 The present circumstances are, in my opinion, different to those in Law Society of New South Wales v Glenorcy Pty Ltd in which Mason P at [43] referred to “the absurdities inherent in the Society’s approach to the legislation.” That case concerned the construction of s 80 Legal Profession Act 1987. There are good reasons for BHP Billiton’s approach in the present proceedings.

35 I do not consider that s 353(1) LPA should be construed so as to apply to an order for costs made by a court of another State or Territory. In my view, the rule of statutory construction that the term “court” is a reference to a court in New South Wales has not been rebutted. The required connection is the court order and not the content of the costs application. I conclude that an application may only be made to the Manager, Costs Assessment under 353(1) LPA for an assessment of costs when the order for costs was made by a court or tribunal in New South Wales. In my respectful opinion, the Master was incorrect in granting liberty to refer the DDT costs for assessment to this State. It follows that the referral by the first defendant of the costs application to the second defendant was beyond power and is invalid.

36 I turn now to the cross-claim. There is no merit in the argument that this court should invoke its jurisdiction under s 23 Supreme Court Act to enforce the settlement agreement in the letter dated 24 January 2007 from DLA Phillips Fox to Turner Freeman. This is not a case where terms have been agreed but not acted upon. In the present case, consent judgment was entered in the District Court of South Australia in accordance with the settlement agreement between the parties.

37 The argument advanced for Mr Schultz that full faith and credit should be given to the judgment of Master Rice is founded upon s 118 Commonwealth of Australia Constitution Act 1900 (Constitution) and s 185 Evidence Act 1995 (Cth). Section 118 Constitution provides that:

“Full faith and credit shall be given, throughout the Commonwealth to… the judicial proceedings of every State.”

38 Section 185 Evidence Act (Cth) relevantly is as follows:

“All…judicial proceedings of a State or Territory that are proved or authenticated in accordance with this Act are to be given in every court, …, such faith and credit as they have by law or usage in the courts…of that State or Territory.”

39 There is no equivalent provision for s 185 in the Evidence Act 1995 (NSW). However, s 185 Evidence Act (Cth) by its terms applies in all State and Territory courts.

40 I do not agree that Master Rice’s decision that the plaintiff was “at liberty to refer the bill of costs done in the DDT to the taxing authorities in New South Wales for determination” is sufficient to entitle Mr Schultz to the order that he seeks. I do not accept that the full faith and credit principle applies so as to oblige this court to follow the decision of an inferior court.

41 Although I agree that it is highly desirable to bring this long-lasting litigation to an end, I do not think BHP Billiton’s application provides the jurisdiction for this court to make the declarations sought under s 63 Supreme Court Act. Furthermore, this is not a case such as in Darling Downs v Ellwood where there had been a failure to act on a settlement agreement. There is an order for costs in the District Court of South Australia. It is undesirable that another order for costs be made by this court. Such an order would, in my opinion, be contrary to the legislative intent of the cross-vesting legislation.

42 The cross-claim should be dismissed.

Orders

43 The orders I make are as follows:

1. I declare the third defendant's application for assessment of party/party costs filed on 18 September 2009 is not a proper application for costs assessment under s 353(1) LPA to be dealt with under Division 11 of Part 3.2 LPA.

2. I declare the first defendant's referral of the costs application to the second defendant under s 357 LPA to be invalid.

3. I make an order pursuant to s 69 Supreme Court Act quashing the decision of the first defendant to refer the costs application
to the second defendant under s 357 LPA.

4. I make an order pursuant to s 69 Supreme Court Act prohibiting the second defendant from dealing with the costs application under the LPA.

5. The First Cross-Claim filed by the third defendant on 8 February 2010 be dismissed.

6. I shall hear the parties as to costs.

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