Legal Aid Commission of WA v Edwards, J.D

[1982] FCA 184

Re: THE LEGAL AID COMMISSION OF WESTERN AUSTRALIA
And: JON DAVID EDWARDS; KENNETH CHARLES REDMAN; PETER GERALD JOHNSON; TERENCE
JOHN McDONNELL (1982) 64 FLR 126
No. WA G43 of 1981
Administrative Law - Costs

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Toohey J.(1)

CATCHWORDS

Administrative Law - taxation of costs - family law regulations - whether Legal Aid Commission can apply - relationship of Commission and practitioner.

Administrative Decisions (Judicial Review) Act 1977 (Com.) s.10

Family Law Act 1975 (Com.) ss. 117, 118, regs. 197, 198

Legal Aid Commission Act 1976 (W.A.) ss.14, 40, 41, 49, 50A

Legal Aid Commission (Costs) Rules 1979 (W.A.) r.5, 6

Costs - Family Court proceedings - Solicitor-client costs - Bill rendered to Legal Aid Commission - Application for taxation - Whether Commission "person to be charged with costs of proceedings" - Legal Aid Commission Act, 1976 (W.A.), ss. 14, 40, 50A - Family Law Act 1975 (Cth), ss. 117, 118 - Family Law Regulations, regs. 197, 198 - Administrative Decisions (Judicial Review) Act 1977 (Cth), s. 10(2)(b).

HEADNOTE

In accordance with the provisions of the Legal Aid Commission Act, 1976, private legal practitioners were selected to perform legal services on behalf of an assisted person, a party to proceedings in the Family Court. Section 50A of that Act provides that the legal relationship between the Commission and the practitioners shall be similar to that of "instructing solicitor and agent". The private practitioners rendered a bill of costs to the Commission which then sought to file in the Family Court a notice seeking taxation of such costs. A Deputy Registrar refused to accept such notice as the Commission was not "a person to be charged with costs of proceedings" within the meaning of the Family Law Regulations, reg. 198.

Held, that the scheme of the Legal Aid Commission Act, 1976 is inconsistent with the notion that the Commission is a person who is to be charged with, that is, who has assumed an obligation to pay, the costs of proceedings.

HEARING

Perth, 1982, July 26; August 24. #DATE 24:8:1982

W. J. Millar, for the applicant.

J. R. McKechnie, for the first respondent.

P. G. Johnson, for the second and third respondents.

Cur. adv. vult.

Solicitor for the applicant: L. W. Roberts Smith.

Solicitor for the first respondent: C. Le B. Langoulant, Crown Solicitor for Western Australia.

Solicitors for the second and third respondents: Gibson & Gibson.

H. W. FRASER

JUDGE1

Regulation 198 of the Family Law Regulations, made pursuant to the Family Law Act 1975 (Com.), allows "a person to be charged with costs of proceedings" under that Act to file in court a notice disputing the account. In that event the costs are taxed in accordance with the regulations.

The applicant, the Legal Aid Commission of Western Australia, sought to challenge a bill of costs rendered by the second, third and fourth respondents in a matter in respect of which the applicant had granted legal aid. The first respondent, the Deputy Registrar of the Family Court of Western Australia, declined to accept for filing the applicant's notice seeking a taxation of costs.

In an earlier decision I held that the action of the first respondent was a decision of an administrative character made under an enactment, hence reviewable on application under the Administrative Decisions (Judicial Review) Act 1977. The matter has proceeded a step further and I am now asked to determine whether the first respondent was justified in refusing to accept the applicant's notice.

The basis of that refusal may be found in a letter written by the first respondent to the applicant on 6 November, 1981. It contained this paragraph.
"Neither the Family Law Act 1975 nor the Family Court Act 1975-1979 confers jurisdiction in regard to disputes between solicitors and agents, and it would not appear that you are a person to be charged with costs of proceedings within the meaning of that term in Regulation 198 of the Family Law Regulations; rather, you appear to be a person under a statutory liability to pay an agent for the performance of duties an amount to be approved by a legal aid committee".

The question to be answered is whether, in terms of reg.198, the applicant is a person to be charged with the costs of the proceedings in which the second, third and fourth respondents were solicitors for one of the parties and in respect of which legal aid was granted.

The Legal Aid Commission was created by the Legal Aid Commission Act 1976 of Western Australia. It is empowered to provide legal assistance by way of legal aid and legal advice. Section 40 confers upon an assisted person an entitlement to select a private practitioner from a panel of names and, where an assisted person does not wish to exercise that right, empowers legal aid committees to select a practitioner from that panel. Section 41 of the Act provides that where a private practitioner performs legal services on behalf of an assisted person,
"he shall not accept any payment for performing those services other than the payment or payments to which he is entitled under section 14".

The basis of payment to which a private practitioner is entitled is found in s.14. A fee may be determined in accordance with the scale prescribed in rules made pursuant to the Act; alternatively there may be prescribed a percentage of the fees that would be payable to the practitioner in the ordinary course of practice and are approved in accordance with the section. The Legal Aid Commission (Costs) Rules 1979 prescribe, for relevant purposes, 90% as the percentage of fees payable to a private practitioner in the ordinary course of practice (Rule 5) and also prescribe fees and scales of fees for various services (Rule 6). Thus the entitlement of a practitioner in respect of legally assisted services may be a fixed amount, an amount to be found within a range, or a percentage of the fees that would normally be charged.

Where a private practitioner performs services by way of legal assistance,
"the Commission shall pay to him for and in respect of the performance of those services such fees and expenses as the Commission determines." (s.14(2)).

A private practitioner who has performed services and is dissatisfied with a decision of a legal aid committee or of an officer of the Commission regarding his fees may apply in writing to a review committee for a review of the matter. The decision of a review committee is "final and conclusive" (s.49(3)).

It is, I think, necessary to mention only one other section of the Legal Aid Commission Act, s.50A introduced by the amendments made in 1978. It reads:
"50A. Subject to this Act, where a private practitioner selected pursuant to section 40 performs services on behalf of an assisted person the respective rights, privileges and obligations of the Commission, the assisted person and a private practitioner shall be similar to those that would be applicable if the relationship between the Commission and the assisted person was that of solicitor and client and the relationship between the Commission and the private practitioner was that of instructing solicitor and agent".

Regulation 198 lies within Part XXI of the Family Law Regulations, introduced as part of the extensive amendments made by Statutory Rules 1980 No.215. The context in which the regulation finds itself might suggest that it is concerned with party and party rather than solicitor-client costs. Part XXI is headed Orders For Costs and begins with reg.197, dealing with orders made under s.117(2). That sub-section operates by way of exception to the principle expressed in s.117(1) that each party to proceedings under the Act bears his own costs. But that is not the way reg.198 is viewed. The learned authors of Australian Family Law and Practice speak of the regulations providing "a complete code as to solicitor-client costs", in which context they discuss reg.198 (Vol.2 p.47,311). Presumably this follows from the fact that reg.197(3) obliges the Court, when making an order under s.117(2), to fix the amount of costs, thus leaving no scope for taxation. Apart from the possibility of an order under s.118, there is nothing for reg.198 to operate upon other than solicitor-client costs.

In any event the debate before me proceeded on the assumption that reg.198 was concerned with solicitor-client costs. Mr. McKechnie, counsel for the first respondent, suggested that the scope of the expression "person to be charged" might be measured with reference to those empowered to appear in proceedings before the Family Court. Thus it would extend to interveners as well as parties but no further. In my view that places an unwarranted restriction upon the language of reg.198. The words chosen are, I think, aimed at the situation in which not only the client, as that term is ordinarily understood, but someone else may be responsible for the practitioner's costs. It may be a friend or a relative.

The expression "person to be charged" should be given its ordinary meaning so as to include anyone who falls within that description. In Re Wilde (1910) 1 Ch.100 was concerned with the position of a country solicitor and his London agent. It was accepted that the country solicitor was "the party chargeable" with the London agent's bill of costs under s.37 of the English Solicitors Act 1943, hence entitled to an order for taxation of those costs. Since s.50A of the Legal Aid Commission Act equates the roles of the Commission and the practitioner with those of instructing solicitor and agent, that decision might seem to lend some support to the applicant's case. But the words "person to be charged" cannot be isolated from the context in which they appear; it is necessary to look at the regulation in its entirety and at the special position of the applicant.

In my view the applicant is not a person to be charged with the costs of proceedings under the Family Law Act. That is not because it is incapable of being such a person. It is a body corporate, hence a person for the purposes of any legislative provision. But it is not a person to be charged with the costs of proceedings under the Act. It has an obligation, arising from its parent Act, but it is to pay "such fees and expenses as the Commission determines". When a practitioner submits a bill of costs to the Commission, those costs are assessed by an officer or by a legal aid committee. If dissatisfied with that assessment the practitioner may seek a review by a review committee whose decision is final. The Legal Aid Commission Act creates its own code whereby legal assistance is granted, work assigned to legal practitioners and practitioners remunerated for that work. The Commission has, by statute, the right and obligation to determine fees and expenses payable to practitioners where legal assistance has been granted, but in accordance with the scheme of the Act. That scheme is inconsistent with the notion of a person who is to be charged with, that is who has assumed an obligation to pay, the costs of proceedings.

A number of authorities have recognised the inherent jurisdiction of the Court over its own officers including power to order delivery of a bill of costs and its taxation. The authorities are noted by Brinsden J. in James v. Bradley (1980) W.A.R. 11 at p.19. Putting to one side for a moment the existence of the Family Law Regulations and any implications that may flow from the fact that they are the product of Federal legislation, I am of the opinion that the inherent jurisdiction referred to does not extend to a situation in which the legislature has prescribed a system for the assessment of costs within a scheme of legal aid.

No constitutional issue is raised by this application. The Family Court of Western Australia exists by reason of a proclamation made pursuant to s.41(2) of the Family Law Act and that Court is invested with the jurisdiction exercisable by the Family Court of Australia. The question is not whether reg.198 prevails over provisions of the Legal Aid Commission Act or whether it yields to those provisions. Rather the question is whether the applicant, having regard to the provisions of the Legal Aid Commission Act, is truly a person to be charged with the costs of proceedings within the language of reg.198.

For the reasons given, I am of the opinion that it is not such a person.

The view I have taken makes it unnecessary to say more about the operation of the Administrative Decisions (Judicial Review) Act, except perhaps as to s.10(2)(b). That paragraph empowers the Court, in its discretion, to refuse to grant an application made under the Act where
"adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court or by another tribunal, authority or person, of that decision, conduct or failure.".
The "decision, conduct or failure" complained of in the present application relates to the first respondent's refusal to accept the applicant's notice. That is not a decision reviewable other than by this Court. The bill of costs itself is of course reviewable by the Legal Aid Commission but that is another matter. Section 10 of the Judicial Review Act is not a relevant consideration.

The application should be dismissed with costs.