Lewis v De Silva - [2023] NTSC 77

CITATION:Lewis v De Silva & Anor [2023] NTSC 77
PARTIES:LEWIS, Peter

v
DE SILVA, DAVID

And
LAW SOCIETY NORTHERN TERRITORY

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-00135-SC
DELIVERED:  1 September 2023
HEARING DATE:  4 May 2023
JUDGMENT OF:  Burns J

Legal Practitioners’ Disciplinary Tribunal Rules 2011 (NT) Rule 23
Legal Profession Act 2006 (NT) s 12, s 670 and s 669
Supreme Court Rules 1987 (NT) Rule 63
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, Alice Springs Town Council v Mpweteyerre Aboriginal Corp (1997) 115 NTR 25, Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; 235 FCR 308, Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554, Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192, Plenty v Dillon (1991) 171 CLR 635, Lewis v De Silva and Law Society NT (No. 2) LPDT No. 2020 – 02855 – SC, Northern Territory v Sangare (2019) 265 CLR 164, Tarry v Price (No 2) (1987) 88 FLR 270, referred to.
REPRESENTATION:
Counsel:
Plaintiff:Self–Represented
First Defendant:  C Ford
Second Defendant:                  T Liveris
Solicitors:
Plaintiff:Self–Represented
First Defendant:  De Silva Hebron Barristers & Solicitors
Second Defendant:                  Law Society Northern Territory
Judgment category classification: C
Judgment ID Number:                   Bur2314
Number of pages:  44

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Lewis v De Silva & Anor [2023] NTSC 77

No. 2023-00135-SC
BETWEEN:

PETER LEWIS

AND:

DAVID DE SILVA

AND:

LAW SOCIETY NORTHERN TERRITORY

CORAM: BURNS J
REASONS FOR DECISION
(Delivered 1 September 2023)
Background

The plaintiff, Peter Lewis, applies for judicial review of proceedings in the Northern Territory Legal Practitioner Disciplinary Tribunal (the Tribunal). The first defendant, David De Silva, is a legal practitioner who is a director of M.P. (NT) Pty Ltd, which trades as the law firm De Silva Hebron (the Law Firm). The Law Firm acted for the plaintiff in a work health matter. A disagreement arose between the plaintiff and the Law Firm. While it is unnecessary for present purposes to consider the nature of the dispute in detail, in his written submissions dated 9 March 2023 the plaintiff states that the matter began in August 2009 when he believed the Law Firm overcharged him.
As a result of the dispute about the fees owing to the Law Firm, some form of cost assessment was undertaken which resulted, the plaintiff says, in him still owing the Law Firm a relatively small sum. The plaintiff suggested to the Law Firm that it write off this debt, but the firm declined to do so and commenced proceedings to recover the money. The recovery proceedings were unfortunately marred by a clerical error on the part of the Law Firm in the preparation of the documents commencing the proceedings such that the Law Firm claimed more than the amount it was entitled to. In addition, the Law Firm attempted to serve the plaintiff with the documents commencing the claim at an incorrect address when they had prior notice of the plaintiff’s new address.
As a result of these errors on the part of the Law Firm, it obtained default judgment against the plaintiff for a sum greater than it was entitled to. That judgment was subsequently set aside. This was clearly not one of the Law Firm’s finest moments, and the plaintiff’s irritation with the Law Firm may be excused. Whether his actions in pursuing the first defendant over these matters as he has was wise is a matter on which I express no opinion.
The plaintiff completed and lodged a written complaint dated 12 August 2015 against the first defendant. This complaint was made to the second defendant, the Law Society of the Northern Territory (the Law Society). On 22 July 2020 the Law Society dismissed the plaintiff’s complaints. No costs order was made against the plaintiff. As I understand it, the Legal Profession Act2006 (NT) (the LPA) contains no provision permitting a costs order to be made where a complaint to the Law Society is unsuccessful.
The plaintiff was dissatisfied with the decision of the Law Society. He appealed the decision to the Tribunal as permitted by the provisions of Part 4.10 of the LPA. The plaintiff was not represented by a legal practitioner in that proceeding. It is unnecessary to set out the details of the plaintiff’s complaints against the first defendant. It is sufficient to note that on 16 September 2021 the Tribunal dismissed the plaintiff’s appeal and ordered the plaintiff to pay the costs of the first defendant, “with costs to be taxed in default of agreement” (the Costs Order).[1] There is no provision for any appeal from the decision of the Tribunal, including the decision to order costs.
There can be no doubt that the Tribunal had the power to make the Costs Order. That power is specifically granted by section 512 of the LPA, which provides:
Costs of appeal
The Disciplinary Tribunal may make the order as to costs of the appeal it considers appropriate.
The parties could not agree on the amount of costs that the plaintiff should pay to the first defendant pursuant to the order made by the Tribunal.
On 2 August 2022 the first defendant filed an application in this Court for taxation of the costs under Order 63 of the Supreme Court Rules 1987 (NT) (the SCR). The reason for the first defendant proceeding in that way was that while the LPA makes provision for costs to be ordered by the Tribunal it makes no provision specifically permitting the amount of those costs to be fixed by a Registrar of the Tribunal or any other person. As I understand it, the first defendant ultimately accepted that this Court did not have jurisdiction to tax the costs ordered by the Tribunal, and he withdrew his application.
On 25 October 2022, the first defendant wrote to the Tribunal seeking to have the matter relisted for directions on costs. On 2 November 2022 the first defendant filed an affidavit in the Tribunal exhibiting a Bill of Costs and seeking taxation of costs. This affidavit and annexed Bill of Costs was served on the plaintiff but not on the Law Society. The Bill of Costs was the same document that had earlier been filed in this Court in the abandoned application of 2 August 2022.
On 3 November 2022 the Acting Registrar of the Tribunal signed an order listing the taxation of costs before the Tribunal at 9 am on 5 December 2022.
The Bill of Costs filed by the first defendant claimed a sum of $92,912.75. On 15 November 2022 the first defendant wrote to the Tribunal advising that he would only be seeking to recover the sum of $30,591.00 on taxation, being the sum paid by the Law Firm to counsel and which was reimbursed to the firm by the first defendant on 8 November 2022.
On 5 December 2022 the Tribunal determined that the amount of costs payable to the first defendant by the plaintiff was $39,591.00, being the amount sought for counsel’s fees. A formal written order to that effect was provided by the Tribunal on 3 January 2023.
The Plaintiff’s application for judicial review
In his Originating Motion the plaintiff, who continued to represent himself, pleaded his application for relief and the reasons for seeking relief in the following form (omitting paragraphs 1 and 2 which made claims for interlocutory relief):
ORDERS – The plaintiff seeks a review into the question of whether the Taxation of Costs process and order of the LPDT made on 5 December 2022 was lawful and reasonable and seeks the following orders of the Supreme Court:
(3.)an order of Certiorari – the Court sets aside the order made by the Legal Practitioners Disciplinary Tribunal made on 5 December 2022
(4.)The Court orders that, as the Legal Practitioners Disciplinary Tribunal had no jurisdiction to conduct a Taxation of Costs and continues to have no such jurisdiction, the Legal Practitioners Disciplinary Tribunal shall not at anytime accept an application/summons for a taxation of costs and shall not conduct any taxation of costs process
(5.)The Court orders that the Northern Territory of Australia shall pay (an amount to be determined) to Mr Peter Lewis in lieu of filing fees paid and costs within 28 Days and this payment is as a consequence of the Legal Practitioners Disciplinary Tribunal improperly and without lawful basis accepting an application/summons and bill of costs for a Taxation of Costs process and conducting said taxation of costs process to the detriment of Mr Peter Lewis.
(6.)The Court orders that (an amount to be determined) in lieu of costs will be paid by Mr De Silva to Mr Lewis within 28 Days on account of making an application/summons to the Legal Practitioners Disciplinary Tribunal and this was because the Tribunal had no jurisdiction to accept an application for and conduct a taxation of costs, and, Mr De Silva through his experience knew ONLY a Court had jurisdiction to conduct Taxation of Costs processes, and, the Supreme Court had dismissed his previous application for a Taxation of Costs, and, Mr De Silva had no proper costs at the time of the original LPDT “Costs Order” on 16 September 2021 and had no proper costs that could reasonably be included in the bill of costs subsequent to that order that he provided to the Supreme Court and the LPDT.
(7.)Any other order the Court see fit to make
The plaintiff went on to suggest that this Court may choose to focus on the following questions which he asserted are relevant to his application:
(1.) Did the Legal Practitioners Disciplinary Tribunal have jurisdiction and authority under the Legal Profession Act or any other Act to accept and act on an application/summons made under NT Supreme Court Rule 63.36 from Mr De Silva for a Taxation of Costs process?
(2.)   Were the Legal Practitioners Disciplinary Tribunal and the three members sitting as the Tribunal, qualified to, and have sufficient experience, and show the requisite independence and objectivity, to conduct a Taxation of Costs?
(3.) Was the application/summons and bill of costs provided to the LPDT prior to 2 November 2022 under Supreme Court Rule 63.36, actioned in accordance with that Rule and properly considered by a statutory appointed Taxing Master as required under Supreme Court Rules?
(4.)   Did Mr De Silva have any proper costs that were paid by him or bound by contract to be paid by him to his own law firm at the time of the original LPDT “costs” order made on 16 September 2021?
(5.)   Was the original “Costs” order made by the original Tribunal on 16 September 2021 a result of a proper and reasonable and unbiased consideration of the facts, the reason for the appeal, the actions of Mr De Silva and the Law Society, the financial circumstances of the appellant, the reasonable costs of Mr De Silva at the time and without the benefit of submissions from the parties on costs
(6.)   Did Mr De Silva have any proper costs that were paid by him or bound by contract to be paid by him to his own law firm at the time he filed the application/summons and a bill of costs for a Taxation of Costs with the Supreme Court in August 2022?
(7.)   Did Mr De Silva have any proper costs that were paid by him or bound by contract to be paid by him to his own law firm at the time he provided the same application/summons and a bill of costs with the Legal Practitioners Disciplinary Tribunal in October 2022?
(8.)   Was the application/summons and bill of costs filed by Mr De Silva in the Supreme Court in August 2022 and provided to the LPDT in October 2022, made within a reasonable or acceptable or lawful timeframe as calculated from the original “Costs” order made in the LPDT on 16 September 2021?
(9.)   Was the Order made by the LPDT dated 5 December 2022 properly based in law and does it provide Mr De Silva with the basis for an enforcement action against the plaintiff/appellant?
In above 9 questions the plaintiff argues the Court should respond “No” and take that into account in making orders as requested above.
(10.) Did the failure of Mr De Silva to serve a copy of his application/summons and bill of costs on the Law Society NT as the Second Respondent in the LPDT Proceedings LPDT 2020 – 02855 – SC prior to the Directions Hearing on 2 November 2022 prevent the Law Society from advising the Chairperson of the LPDT that the Tribunal had no jurisdiction nor authority to accept Mr De Silva’s application nor to conduct a Taxation of Costs?
(11.) Was the failure of the Chairperson of the LPDT at the Directions Hearing on 2 November 2022 to direct Mr De Silva to serve a copy of his application/summons and bill of costs on the Law Society, a serious breach of procedure and the Legal Profession Act which guarantees a place for the LSNT in any proceeding in the Tribunal?
(12.) Did the absence of the Law Society having input in the Taxation of Costs process in the LPDT and making no appearance at the hearing on 5 December 2022 render that hearing not only questionable but without lawful basis under the Legal Profession Act and as a consequence the order should be set aside or rescinded?
(13.) Did the members of the LPDT on 5 December 2022:
·make errors in law in conducting a taxation of costs process,
·fail to seek proper legal advice from independent sources available to the Tribunal on the jurisdictional issue,
·act with the apprehension of bias in dismissing the risk that their action was unlawful,
·fail to give adequate weight to the time delay in Mr De Silva making his application,
·fail to give adequate weight to the fact that Mr De Silva did not make any cost repayment to his own law firm prior to providing his application to the Tribunal,
·fail to give adequate weight to the admission by Mr De Silva that he could easily reverse the alleged part-payment to his law firm on or about 8 November 2022,
·fail to give adequate weight to the unreasonableness of Mr De Silva’s bill of cost,
·fail to connect Mr De Silva’s admission of “problems” with claiming those charges in the bill of costs attributed to his own law firm staff ($60,000) while he still claimed the fees paid by his law firm to counsel($30,000)
In the above 4 questions the plaintiff argues the Court should respond “Yes” and take that into account in making the orders as requested.
In the above, the references by the plaintiff to “LPDT” and “LSNT” are obviously references to the Tribunal and to the Law Society.
The first defendant’s summonses
The first defendant filed two summonses in these proceedings, on 1 February 2023 and 4 April 2023 respectively. Each of the summonses sought orders directed towards enforcement of the Costs Order made by the Tribunal. It will only be necessary to refer to the second summons which was filed on 4 April 2023, as that was the document containing the orders that the first defendant ultimately sought. That summons was directed to the plaintiff, advising him that the first defendant would be seeking the following orders from this Court:
1.    Alternatively or additionally to the orders sought in the First Defendant’s Summons filed 1 February 2023, a declaration that the Plaintiff is indebted to the First Defendant in the sum of $30,591 plus interest in accordance with the Supreme Court Act 1979 (NT) in respect of the order of the Northern Territory Legal Practitioners Disciplinary Tribunal dated 5 December 2022 in proceeding No. LPDT 2020 – 02855 –SC.
2.    The Plaintiff pay the First Defendant’s costs of and incidental to this application and the proceeding;
3.    Such further or other order as this Honourable Court deems appropriate.
The plaintiff submitted that the filing of these summonses by the First Defendant “extended the issues” that this Court must decide in the present proceeding as, the plaintiff submitted, the summonses ask the Court to “validate” the process of the appeal in the Tribunal, including decisions made by the Tribunal in the course of the appeal. That submission must be rejected.
The first defendant seeks via the summonses, and the second summons in particular, a declaration that the Costs Order made by the Tribunal is enforceable as a debt against the plaintiff. This is a question of law regarding the effect of the Costs Order and in no way opens the door for the plaintiff to re-agitate the matters that were determined by the Tribunal. The only additional question raised by the summonses, beyond the issues raised by the plaintiff’s application for judicial review, is whether the effect of the Tribunal’s Costs Order is to create a debt owing by the plaintiff to the first defendant upon which the first defendant may recover through ordinary court processes.
The parties’ submissions
The plaintiff’s primary submissions
In a document titled “Plaintiff’s Outline of Submissions” and dated 9 March 2023 (the plaintiff’s primary submissions), the plaintiff makes a number of complaints regarding the Law Society’s handling of his complaints against the first defendant. It is no part of my function in the present proceeding to adjudicate upon the legitimacy of those complaints. The plaintiff’s application for judicial review is directed towards the Tribunal’s decision of 5 December 2022 ordering him to pay the first defendant costs in the sum of $30,591.00.
In his primary submissions the plaintiff submitted that there was “no proper purpose in making the costs order” against him. He expanded on this submission by stating that the members of the Tribunal knew that the first defendant was a director of M.P. (NT) Pty Ltd “and that he was indemnified from all legal costs either through company/director insurance or through the principle of vicarious liability”. In addition, the plaintiff submitted that the Tribunal knew at the time that it made the Costs Order that there was no mechanism provided by the LPA for the first defendant to enforce any costs order made by the Tribunal. The plaintiff complained that the Tribunal did not seek submissions from the parties before or after making the order that the plaintiff pay the first defendant’s costs on 16 September 2021.
The plaintiff submitted that the making of the order on 16 September 2021 that the plaintiff pay the first defendant’s costs was for an improper purpose. The plaintiff submitted:
·     only the first defendant could benefit from the Costs Order;
·     it would appear that the plaintiff was being “punished” for an application which he made to the Tribunal that the Chairperson recuse themselves; and
·     the order could deceive the plaintiff into believing payment had to be made under the order and that such an order was enforceable.
In addition, the plaintiff submitted that the first defendant had engaged in deceptive conduct in an attempt to obtain monies from the plaintiff. The plaintiff alleged that the first defendant knew that the costs of the appeal incurred by “the law firm” including counsel’s fees were covered by way of indemnity provided by his position as director of M.P. (NT) Pty Ltd either through insurance, deed of indemnity or the principle of vicarious liability. In support of this submission, the plaintiff stated that the first defendant had initially sought varying amounts for professional costs including counsel’s fees which he submitted had not been confirmed by any Bill of Costs. The plaintiff submitted that this demonstrated an intention by the first defendant to get money from him where there was no just or lawful cause.
The plaintiff alleged that the first defendant engaged in a planned process to take financial action against the plaintiff as “payback” for the plaintiff making his complaint, lodging an appeal, and having the first defendant’s judgment against him set aside in the Local Court.

The plaintiff further alleged that when there was no agreement from him to pay any amount of costs to the first defendant, the “law firm” then incurred further costs by engaging another firm to do a Bill of Costs and filing a Summons for a Taxation of Costs in this Court under Rule 63 of the SCR. This Summons was subsequently dismissed on the basis that this Court lacked jurisdiction to undertake a taxation of the first defendant’s costs. The plaintiff alleged that the first defendant filed the Summons and Bill of Costs in an attempt to mislead this Court into conducting a Taxation of Costs to the financial benefit of the first defendant.
It was the plaintiff’s submission that after this Summons had been dismissed in this Court, the first defendant then proceeded to file the same Summons and Bill of Costs with the Tribunal seeking a taxation under Rule 63 by the Tribunal. The plaintiff submitted that the first defendant knew that the Tribunal had no authority to conduct a taxation of costs under Rule 63 of the SCR.
In his initial submissions, the plaintiff stated that the Chairperson of the Tribunal convened a directions hearing on the application for a taxation of the costs of the first defendant on 5 November 2022. The plaintiff stated that although a transcript of that directions hearing was not available, he recollected that he strenuously argued that the Tribunal had no authority or jurisdiction to conduct a taxation of costs under Rule 63 and that this process was reserved to this Court where an experienced Taxing Master would conduct the process. The plaintiff submitted to the Tribunal that it would be acting unlawfully in engaging in the proposed taxation of costs and recommended to the Chairperson of the Tribunal that they seek independent legal advice. The plaintiff stated that the Chairperson dismissed all arguments from the plaintiff and issued an order that the taxation of costs under Rule 63 would go ahead on 5 December 2022.
The plaintiff complained that the second defendant was not served with the Summons and Bill of Costs and nor did the Tribunal direct the first defendant to serve those documents on the second defendant.
The plaintiff alleged that the “Chairperson of the Tribunal” acted unlawfully in accepting the Summons and ordering that the taxation proceed. The plaintiff alleged that the possible motivation for this action was for the personal financial benefit of the first defendant and “to somehow justify or validate the original cost order made by the Tribunal on 16 September 2021”.
In his original submissions, the plaintiff stated that the second defendant was not present at the taxation of costs on 5 December 2022 as it had not been served with the relevant documents. The plaintiff stated that no one on the Tribunal raised a concern about the absence of the second defendant and the potential breach of the second defendant’s rights under the LPA.
The plaintiff contended that in conducting the taxation of costs the Tribunal failed to take into account that the liability for costs rested with the “company and law firm” and not the first defendant. The plaintiff contended that the “company and law firm” had liability for all costs, including counsel’s fees.
The plaintiff also contended that the Tribunal members should have been aware of their own inexperience in the area of taxation of costs. The plaintiff stated that “invariably a Taxation of Costs under Rule 63 by a Taxing Master matches claimed costs against a schedule and 100% of the claimed costs is usually reduced to maybe 75%.” The plaintiff complained that the Tribunal “very quickly” agreed to an order for the full amount claimed by the first defendant. The plaintiff alleged that the Tribunal acted improperly for the benefit of the first defendant and to cover-up the Tribunal’s error in ordering that the plaintiff pay the first defendant’s costs on 16 September 2021.
The plaintiff made submissions directed to the first defendant’s summons of 1 February 2023 (the second summons dated 4 April 2023 not having been filed at the date the plaintiff filed his original submissions). It is unnecessary to set out those submissions here.
The first defendant’s initial submissions
The first defendant submitted that the Tribunal had power under section 512 of the LPA to make an award of costs and that the Tribunal was entitled to adopt whatever procedure is considered appropriate in that regard pursuant to Rule 23 of the Legal Practitioners’ Disciplinary Tribunal Rules 2011 (NT) (the Tribunal Rules), including applying a relevant rule of the SCR, with necessary modifications. Rule 23 of the Tribunal Rules provides:
Procedure if no rule or practice direction
(1)If, in proceedings, the procedure for taking a step or for the exercise of a power by the Disciplinary Tribunal is not prescribed by these Rules and no practice direction for the procedure has been issued, the Tribunal may apply the procedure it considers appropriate.
(2)Without limiting subrule (1), the Tribunal may apply (with the necessary modifications) a relevant rule of the Supreme Court Rules 1987.
The first defendant submitted that, incorporating relevant provisions from the SCR, the Tribunal had available to it under Rule 23:
a)    any procedure they considered appropriate (no doubt within the bounds of procedural fairness);
b)    power to fix costs in a gross sum under SCR 63.04 (5), with the necessary modifications;
c)    power to fix costs as an appeal court under SCR 63.07 (c) with the necessary modifications; and
d)   power to tax costs under SCR 63.35 with the necessary modifications.
While the Tribunal described its process as a “taxation”, the first defendant submitted that no significance should be attached to that word. The first defendant submitted that, by whatever name, the process which was engaged in by the Tribunal was one of assessing the amount of the first defendant’s costs. Use of the word “taxation” by the Tribunal did not compel the Tribunal to follow the precise process of taxation as set out in the SCR. The term “taxation” is not defined in the SCR, and the first defendant referred to G E Dal Pont, Law of Costs, (LexisNexis, 4^th ed, 2018) at [15.2], citing Kearney J in Tarry v Price (No 2) (1987) 88 FLR 270, at 271:
The process of taxation ‘involves the examination of a bill of costs, and the determination of the amount, fair and reasonable in the circumstances, to which the successful party is entitled bearing in mind that the scale of costs applicable.
The first defendant observed that there is no scale of costs provided under the Tribunal Rules, but the Supreme Court guidelines on taxation of counsel’s fees gives wide latitude in allowing those fees, saying:
A fee commensurate with the daily rate will be allowed, sufficient to reward counsel for the need to refresh his (sic) memory if the case is interrupted by lengthy adjournments.
In deciding upon a rate within a range, the Taxing Master will usually have regard to the standing of counsel involved, and the fees reasonably charged by counsel in matters of a similar kind.
The first defendant submitted that the only costs which the Tribunal was called upon to assess were counsel’s fees set out in an invoice dated 17 June 2021 for work undertaken from 12 October 2020 to 17 June 2021. There were only 37 entries, recording time at 6-minute increments and charging at $450 per hour. Counsel who had been briefed in the proceeding before the Tribunal was described as a senior junior counsel who had subsequently been appointed as a judge of the Local Court.
The first defendant submitted that the power of the Tribunal to adopt any procedure they considered appropriate, including any provision of the SCR with necessary modifications, legitimised the approach taken by the Tribunal in the present matter. The procedure adopted by the Tribunal, the first defendant submitted, was a legitimate exercise of the powers conferred upon the Tribunal. The first defendant submitted to the Tribunal a bill in taxable form that had been professionally drafted and which had earlier been submitted to this Court. The Tribunal heard from both the plaintiff and the first defendant, considered the bill and made orders requiring the plaintiff to pay to the first defendant costs equivalent to counsel’s fees. No amount was ordered on account of the professional costs incurred by the Law Firm.
Turning to the plaintiff’s criticism of the expertise of the members of the Tribunal in assessing costs, the first defendant submitted that it is a sufficient answer to that criticism that Parliament created the Tribunal under the provisions of the LPA and invested it with power to award costs, and to determine the procedure to be adopted in assessing costs. The first defendant referred to the decisions of Electric Light and Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554 at 559 per Dixon CJ and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd [2015] FCAFC 123; 235 FCR 308 at [48] (Dowsett, Tracey and Katzmann JJ) as authority for the proposition that Parliament takes bodies that it invests with power as it finds them.
In any event, the first defendant submitted that the Tribunal had sufficient experience to perform the function of assessing costs in the present matter. The first defendant referred to the provisions of the LPA which had the effect of requiring that a person appointed as Chairperson of a Legal Practitioners’ Disciplinary Tribunal constituted under that enactment must have practised as a legal practitioner in Australia or New Zealand for at least 7 years and be entitled to be issued a local practising certificate. The first defendant submitted that the Chairperson of the Tribunal that made the order of 5 December 2022 had practiced as a legal practitioner in Australia for over 30 years. In other words, even if the question of the Tribunal’s expertise in assessing costs of the type ordered by it in favour of the first defendant was a relevant issue in the present application for judicial review, there could be no reason to doubt that the Tribunal had sufficient expertise to undertake the relatively simple process of assessing counsel’s fees as claimed by the first defendant.
The first defendant also submitted that the Tribunal is not empowered by the provisions of the LPA or the Tribunal Rules to seek legal advice.
Regarding the plaintiff’s complaint that the Law Society had not been served with the Summons and Bill of Costs before the Tribunal made the Costs Order on 5 December 2022, the first defendant submitted that it was unnecessary for the Law Society to be served with those documents because no order was being sought against the Law Society. In addition, the Law Society had not complained that it was not served with these documents or given an opportunity to appear before the Tribunal on the assessment of costs. The first defendant submitted that the entitlement of the Law Society to appear in proceedings of the Tribunal under section 508 (2) does not translate into an entitlement on the part of the plaintiff to insist upon its appearance. The entitlement given to the Law Society to appear is for its benefit, and the public benefit, and not that of the plaintiff.
The first defendant also provided submissions directed towards answering each of the questions raised by the plaintiff in his Originating Motion (see [14] above). I will not set out those submissions here but I will address the questions posed by the plaintiff later in this judgment.
In his primary submissions, the first defendant addressed his Summons filed 1 February 2023. The first defendant referred to the absence of enforcement mechanisms within the provisions of the LPA regarding costs orders made on appeal by a Legal Practitioners Disciplinary Tribunal. The first defendant submitted that he has a statutory right to the amount of the Costs Order made by the Tribunal, and referred to the well-known principal that where there is a right, the law will provide a remedy.[2] The first defendant submitted that his right to be paid the amount of costs ordered by the Tribunal had been infringed by the plaintiff’s refusal to pay the amount ordered by the Tribunal. As such, a declaration that the amount of costs awarded to the first defendant by the Tribunal was due and owing to the first defendant was appropriate.
First defendant’s supplementary submissions
The first defendant filed supplementary submissions dated 18 April 2023 directed towards both of the summonses filed by him seeking declaratory relief. The supplementary submissions were limited to the conditions for granting declarations in circumstances similar to those of the present case. The first defendant submitted that superior courts have inherent, discretionary power to grant declaratory relief which may be exercised with the applicant has a real interest in the relief, unless the question is purely hypothetical or will produce no foreseeable consequence.[3]
The jurisdiction to grant declaratory relief is a very wide and limited only by the courts own discretion.[4] A declaration of rights may be granted where a statute creates a duty without expressly creating a civil remedy for breach of the duty.[5] A declaration may be granted even where a statute creates an alternative remedy, unless expressly or impliedly excluded.[6] The first defendant submitted that this applies a fortiori where a statute creates a right without providing a remedy.
Law Society’s submissions
The Law Society provided submissions dated 14 April 2023 in which it asserted that many aspects of the plaintiff’s application for judicial review, and the accompanying original submissions of the plaintiff, were misguided in that judicial review is not concerned with the merits of the Tribunal’s decision but is limited to the extent of the Tribunal’s power and the legality of the exercise of that power.
The Law Society’s submission regarding the application for judicial review was that the express power in section 512 of the LPA enabling the Tribunal to make an order as to costs necessarily carried with it the implied power to do everything incidental and consequential to such an order, including ordering that the costs be taxed and determining the procedure for quantification. The Law Society submitted that no error on the part of the Tribunal had been established, and that the plaintiff’s Application should be dismissed with costs.
Regarding the first defendant’s Summonses, the Law Society accepted that these were primarily matters between the plaintiff and the first defendant about which it was inappropriate for the Law Society to make detailed submissions.
Plaintiff’s submissions in reply
The plaintiff addressed the submissions made by the Law Society and the first defendant separately. Regarding the submissions made by the Law Society the plaintiff denied that his primary reason for proceeding with the application for judicial review was for the purpose of obtaining a merits review of the decision of the Tribunal. He submitted that he sought judicial review of the decision of the Tribunal to conduct a taxation of costs under Rule 63 of the SCR. He went on to state: “I am asking for the Court to ensure the decisions made by the Tribunal on 5 December 2022 were properly made within the legal limits of the power of the Tribunal”. The plaintiff made the further submission that the question of whether the first defendant had incurred any costs at all was a question of law and as the first defendant was a director of the Law Firm which had incurred the costs of the 2021 Tribunal process, the first defendant had no entitlement to a costs order as he had not personally incurred any costs in that process. In addition, as the first defendant had director’s indemnity insurance, he had incurred no liability for legal costs.
The plaintiff asserted that he was not challenging the legality of the Costs Order made by the Tribunal on 16 September 2021. What he did challenge was the “change” made to those orders by the Tribunal on 5 December 2022, in that there was no provision in the orders made by the Tribunal on 16 September 2021 for any review or reconsideration of costs other than for a process of taxation of costs in the absence of agreement between the parties. As there was no agreement between the parties, the plaintiff submitted, the only further process allowed by the orders of 16 September 2021 was a taxation of costs. The plaintiff submits that the Tribunal did not conduct a taxation of costs.
The plaintiff further submitted that a taxation of costs under Rule 63 of the SCR is a function reserved to this Court only and is not a process that could be undertaken by the Tribunal. The plaintiff went on to submit that it would be a “dangerous precedent” for the Tribunal to choose parts of Rule 63 to implement while discarding the remainder of the Rule. The plaintiff’s ultimate submission was that section 512 of the LPA did not empower the Tribunal to conduct a process of taxation of costs under Rule 63, because that process is reserved for a Taxing Master in this Court.
The plaintiff submitted that the Law Society had admitted in its written submissions that the Costs Order made by the Tribunal was unenforceable. I will digress at this point to note that the actual submission made by the Law Society and to which the plaintiff refers was in the following terms:
The First Defendant’s Outline of Submissions correctly point out that there is no express provision in the LPA or the LPDT Rules that enables the enforcement of orders for costs made under s. 512.
(Emphasis added)
The plaintiff also complained that the Tribunal should have dealt with costs issues at the “hearing stage” in April 2021, but did not go so far as to suggest that the Tribunal had been barred from considering the issue of costs when it did. The plaintiff submitted, however, that this Court has “the clear jurisdiction to review the lawfulness of the decisions of the 2022 Tribunal and the Court may well consider ANY aspect of the actions of the 2022 constituted Tribunal as to whether those actions were in accordance with the law”.
The plaintiff reiterated his submission that the first defendant had incurred no legal costs, including counsel’s fees, because these had been incurred by the Law Firm and/or were covered by director’s indemnity insurance.
In summary, regarding the submissions made by the Law Society, the plaintiff identified the following matters as errors of law made by the tribunal:
a) accepting a request by the first defendant to order costs under Rule 63;
b) not ordering that the first defendant serve documents on the Law Society;
c) conducting a process under the guise of Rule 63 which was not a taxation of costs; and
d) failing to acknowledge that as a director of the Law Firm the first defendant had no costs which he was entitled to claim.
The plaintiff noted that the Law Society had made no submissions concerning the first defendant’s failure to serve the costs documents on the Law Society. The plaintiff submitted that service of documents on parties to a proceeding is an essential part of the legal process. He submitted that the failure to serve a party is a “dangerous precedent” even if that party later chooses not to participate. The plaintiff contended that the failure to serve the costs documents on the Law Society “was a serious breach of rules of procedure and most probably the law”. The plaintiff speculated that the failure of the Law Society to condemn the actions of the first defendant in not serving the costs documents on it may have arisen from a desire not to criticise the first defendant or the “new Chairperson” of the Tribunal.
Turning to the submissions made by the first defendant, the plaintiff correctly identified that the Costs Order made by the Tribunal on 16 September 2021 related to the costs incurred by the first defendant and not by the Law Firm. The plaintiff reiterated his submission that the only consequences which could have flowed from the Costs Order made by the Tribunal on 16 September 2021 were either agreement as to costs between the parties or a taxation of costs under Rule 63 of the SCR. He reiterated the submissions which he had made regarding these contentions in the process of addressing the submissions made by the Law Society.

The plaintiff submitted that the submissions made by the first defendant regarding his failure to serve the costs documents on the Law Society were “an error in law and contrary to long-standing legal procedures”. The plaintiff suggested that this Court should make a strong, adverse comment against the first defendant on this issue.
The plaintiff noted that the first defendant had not denied “the operation of the principle of vicarious liability where the company M.P. (NT) Pty Ltd trading as De Silva Hebron was liable for all legal costs to defend a director of the company Mr De Silva because of his actions in signing the applications in 2013 for the company and that was the basis of the complaint to the Law Society in August 2015 and that was the basis for the rehearing of the complaint in the LPDT in April 2021”. As I understand this submission, the plaintiff submits that the Law Firm was vicariously liable for any costs incurred by the first defendant in the proceedings relating to his complaint against the first defendant because the first defendant had signed on behalf of the Law Firm the legal process which commenced the debt recovery proceedings against the plaintiff and which ultimately gave rise to the plaintiff’s complaint to the Law Society.
The plaintiff submitted that there was a “reasonable doubt as to the conduct of the appeal in April 2021 and the reasonableness of the 16 September 2023 (sic) costs order and the lawfulness of the subsequent actions of the 2022 constituted Tribunal”. As a consequence, the plaintiff submitted that this Court should not exercise any discretion to make a declaration as sought by the first defendant.
Consideration – Application for judicial review
Throughout his submissions, the plaintiff suggested at different points that this Court can, and should, revisit the subject matter of his complaints to the Law Society regarding the first defendant and which ultimately were rejected not only by the Law Society but also by the Tribunal. I decline to do so. The ambit of the plaintiff’s application for judicial review is found within the Originating Motion filed by him on 20 January 2023. The issues raised in that document were the legality of the process of determination of costs payable to the first defendant by the Tribunal and resulting in the order of 5 December 2022 and whether, as a question of law, there were any costs which had been incurred by the first defendant in the proceedings before the Tribunal. As the plaintiff does not have the benefit of legal training, I will nevertheless go beyond those issues in an attempt to answer the questions posed by him in his Originating Motion.
As I observed earlier, there can be no doubt that the Tribunal had the power to order that the plaintiff pay the costs of the first defendant arising out of the proceedings before the Tribunal. This is precisely what section 512 of the LPA says. The discretion vested in the Tribunal by section 512 is wide, permitting the Tribunal to make the order as to costs “it considers appropriate”. The precise terms of the Costs Order made by the Tribunal on 16 September 2021 were:
The Appellant’s to pay the costs of the First Respondent of and incidental to this Appeal with costs to be taxed in default of agreement
The reference to the “Appellant” in that order was undeniably a reference to the plaintiff. In these proceedings, the plaintiff has not suggested otherwise. Contrary to the submission made by the plaintiff, the use of the word “taxed” by the Tribunal does not imply a requirement that any particular procedure for the taxation be adopted, much less that the only body which can tax the costs is a judicial body with specific powers and procedures directed towards the taxation of legal practitioners’ costs.
One of the ordinary meanings of the word “tax” as found in the Oxford English Dictionary, Second Edition, Vol XVII, p 678 is “To estimate or determine the amount of (a tallage, fine, penalty, damages, etc); to assess; …; also, to settle the price or value of.” It may be true that the use of the word in that sense is now usually restricted to legal settings, but that does not detract from the essential point that within that setting it merely means to determine or assess an amount which must be paid. The existence of statutory requirements for procedures by which a taxation is to take place in particular bodies, such as are found in the SCR regarding the taxation of costs in Supreme Court proceedings, does not alter the general meaning of the words “tax”, “taxed” or “taxation” in this context; those procedures are not inherent in the meaning of the words and only apply in particular statutory circumstances. For this reason, the plaintiff’s submission that a process of taxation of costs is one that is reserved to a judicial body with a Taxing Master is misconceived.
Similarly, the plaintiff’s complaint that there was no evidence that the Tribunal possessed the expertise to conduct a process of taxation is misconceived. The Legal Practitioners’ Disciplinary Tribunal is established by section 669 of the LPA. Its members are appointed by the Attorney-General for the Northern Territory.[7] The necessary qualifications for appointment to the Tribunal are found in section 670 (1) of the LPA. There was no suggestion that those members who constituted the Tribunal on 16 September 2021 or 5 December 2022 were not properly appointed. Any personal doubts experienced by the plaintiff regarding the qualifications and experience of the members of the Tribunal are simply irrelevant.
The order made by the Tribunal on 16 September 2021 may be divided into 2 constituent parts. The first part is an order that the plaintiff pay the costs of the first defendant (using their respective descriptions in the present proceedings) of and incidental to the appeal which had been dismissed by the Tribunal. The second constituent part of the order provided for alternative mechanisms by which those costs were to be assessed. The first alternative was that the costs could be agreed between the parties. The second alternative was that, in the absence of agreement, the costs were to be taxed. It will be observed that there is no reference in the terms of the order made by the Tribunal on 16 September 2021 to any provisions of the SCR, including Rule 63.
It is accepted by all parties that neither the LPA nor the Tribunal Rules contain an express provision addressing the mechanism by which an order for costs made by the Tribunal under section 512 may be ascertained and/or enforced. Contrary to the submission made by the plaintiff, however, the fact that there is no express provision for the ascertainment or enforcement of costs orders in either the LPA or the Tribunal Rules does not dictate the conclusion that section 512 is, as described by the plaintiff, “a hollow provision”. To reach that conclusion one must either hypothesise that the legislature made an error by overlooking these issues, or alternatively deliberately enacted a provision which could have no practical effect. Courts do not lightly attribute either negligence or irrationality to the legislature; particularly where there exists orthodox means of giving effect to the obvious legislative intention.
The obvious legislative intention behind section 512 of the LPA is to permit a Legal Practitioners’ Disciplinary Tribunal to order that the costs of a party to an appeal be paid by another party. The power is granted in wide terms to allow the Tribunal to do practical justice in any particular case. If the relevant statutory provisions extended no further than section 512 itself, there would be much to be said in favour of the Law Society’s submission that the power on the part of the Tribunal to assess costs should be inferred from the legislative grant of the power to order costs. As Mildren J (with whom Martin J agreed) said in Alice Springs Town Council v Mpweteyerre Aboriginal Corp (1997) 115 NTR 25 at 35:
Where, by an Act of Parliament, a right or a power is created, there must by implication carry with it the power to do everything which is indispensable for the purpose of exercising the right or power, or feeling incidental or consequential to the power itself: see Craies on Statute Law, 7^th Edn., pps 258 – 9; Pearce and Geddes, Statutory Interpretation in Australia, 4^th Edn., para 2.21; Re Sterling (1978 – 9) 30 ALR 77 and 83 per Lockhart J, (who applied the principle to imply a power in the Federal Court of Australia to set aside a bankruptcy notice); Dunkel v Deputy Commissioner of Taxation (NSW) (1991- 92) 99 ALR 776 at 780; Australian Securities Commission v Bell (1991) 104 ALR 125, esp at 137 per Shepperd J ; Johns v Conner (1992) 104 ALR 465 at 473; Zuijs v Wirth Brothers Pty Ltd (1955) 93 CLR 561 at 574.
It follows that a power to assess the amount of costs is necessarily implied from the existence of the power to make the costs order. This arises from the application of long-standing legal principles to the circumstances of the present case.
The remaining issue is whether the Tribunal made an error of law in adopting the procedure which it did for assessing the costs. As I have already stated, Rule 23 of the Tribunal Rules gives the Tribunal the power to determine its own procedures for the exercise of a power where the procedure has not been prescribed by the Tribunal Rules or by practice direction. It follows that the Tribunal was entitled in the present case to adopt the procedure which it did in receiving the memorandum of counsel’s fees together with evidence of payment of those fees, hearing submissions from the plaintiff and the first defendant and determining for itself the costs that were payable.
It is apparent from the transcript of the hearing before the Tribunal on 5 December 2022 that the Tribunal was cognizant of its power to adopt and adapt provisions of the SCR to craft what it considered to be appropriate procedures for the assessment of the amount payable by the plaintiff under the Costs Order of 16 September 2021. The transcript makes it plain that the Tribunal was not purporting to exercise the jurisdiction of this Court in conducting the taxation of the first defendant’s costs on 5 December 2022, but was exercising its own jurisdiction by adopting and adapting the procedures found in the SCR as permitted by Rule 23 of the Tribunal Rules. In any event, even if (contrary to my finding) the Tribunal was mistaken regarding the source of its jurisdiction to assess the first defendant’s costs, that fact would be irrelevant because the Tribunal had jurisdiction as a matter of law to proceed as it did.
Contrary to the submission made by the plaintiff, the Tribunal did not alter its Costs Order of 16 September 2021 by making the further orders on 5 December 2022. The orders made on 5 December 2022 simply gave effect to the earlier orders. The order that the costs of the first defendant be taxed in the absence of agreement carried within it an acknowledgement that the Tribunal would need to make further orders if there was no agreement between the parties. This follows from the accepted fact that there were no procedures set out in the LPA or the Tribunal Rules for assessing a costs order made under section 512 of the LPA. The only way in which the costs could be taxed was by the Tribunal making further orders regarding the procedure to be adopted. There can accordingly be no suggestion that the Tribunal was functus officio after making the orders of 16 September 2021.
The fact that the first defendant did not serve on the Law Society a copy of the papers which he filed in November 2022 seeking taxation of his costs does not lead to the conclusion that the Tribunal made an error of law in proceeding with the taxation on 5 December 2022. The Law Society had no interest in the first defendant’s application for a taxation of his costs. Procedural fairness to the Law Society did not require the first defendant to serve those documents on the Law Society. Procedural fairness to the plaintiff did not require service of the documents on the Law Society; the plaintiff could have had no expectation that the Law Society would (or could) make any submissions that he could not make. Service of the documents would simply have resulted in unnecessary cost.
There is no merit in the plaintiff’s submission that the issue of costs should have been considered by the Tribunal as part of the hearing of the substantive appeal. I presume that the plaintiff refers in this submission to those costs issues which he has sought to ventilate in the current proceeding. There is no principle of law that would require the Tribunal to have adopted that course and accordingly no error of law has been demonstrated.
For the above reasons, I am not satisfied that the Tribunal made an error of law in determining that it had the power to assess the costs payable by the plaintiff to the first defendant pursuant to the orders of 16 September 2021 or in adopting the procedure which it did to assess the amount of these costs.
I now turn to the plaintiff’s submission that as a matter of law the first defendant had not incurred any costs that could be recovered against the plaintiff and that the Tribunal fell into error in concluding that the first defendant had incurred counsel’s fees. The first basis for that submission was that the first defendant had not incurred those fees and the Law Firm had. The starting point in considering these submissions is an understanding that while the first defendant was a director of the incorporated Law Firm, he and the company were separate legal entities. As a director of the company, the first defendant was not entitled to use the company’s monies as his own. The complaint made by the plaintiff was against the first defendant personally and alleged misconduct against him personally. The plaintiff did not draw my attention to any statute, legal principle or decided cases to the effect that a company has an obligation or duty to indemnify its office holders against costs arising out of alleged misbehaviour, even where that misbehaviour may be alleged to have occurred in the course of the company’s business. I am certainly unaware of any such obligation. I will add that the principle regarding vicarious liability can have no application in the present circumstances where it is alleged that the first defendant had personally engaged in misconduct as a lawyer. The proceedings before the Tribunal did not involve any allegation that the company should be held liable for the first defendant’s alleged wrongdoing.
It is commonplace for law firms to brief counsel on behalf of clients. The firm then has an ethical obligation to pay counsel’s fees properly incurred. The firm then has a right to recover those fees from the client. The Tribunal was entitled to proceed on the basis that the Law Firm had briefed counsel to appear at the Tribunal proceedings not on its behalf but on behalf of the first defendant. Any other conclusion would frankly have been absurd. The Law Firm was not a party to the proceedings before the Tribunal. The preparedness of the Tribunal to proceed on that basis without requiring the first defendant to produce a written agreement between the first defendant and the Law Firm was not an error of law. There was ample evidence from the way in which the proceedings were conducted before the Tribunal to allow it to conclude that counsel was briefed on behalf of the first defendant.
The second basis on which the plaintiff advanced the submission that there were no costs incurred by the first defendant in the Tribunal proceedings was that as a director of the incorporated Law Firm the first defendant would have been entitled to be indemnified against such costs by professional indemnity insurance of some form. There was no evidence before the Tribunal that there was any relevant policy of insurance or, most importantly, the terms of any such policy. The plaintiff submitted that the first defendant had not denied the existence of any such policy, but the fact is there was no evidence of such a policy.
Even if I were to assume for the purpose of addressing this submission that the first defendant was the holder of a policy of insurance that would entitle him to be indemnified against the cost of briefing counsel in the proceedings before the Tribunal, this does not assist the plaintiff. There was no evidence that the first defendant had made a claim against the policy. There is no legal obligation on a party holding a policy of insurance to make a claim on the policy, even where the policy holder would be entitled to be indemnified under the policy. A policy holder may, for example, make a decision that the possibility of a premium increase after making a claim may make it uneconomic to make a claim in a particular case. The plaintiff would have no right to complain if that were the case, because the policy of insurance exists for the first defendant’s benefit and not that of the plaintiff.
In any event, if there was a policy of insurance indemnifying the first defendant against payment of counsel’s fees in the proceedings before the Tribunal, and the first defendant had been indemnified by his insurer for those costs, this would not assist the plaintiff. The insurer would be entitled under the doctrine of subrogation to recover from the plaintiff any amount paid to the first defendant under the policy. The insurer would also have a claim in equity to be reimbursed by the first defendant if the first defendant recovered the full amount of counsel’s fees from both the plaintiff and the insurer, but there is no suggestion that this has occurred in the present matter.
The plaintiff has not established that the Tribunal made an error of law in determining that the amount of counsel’s fees which he was liable to pay to the first defendant was $30,591.00.
Consideration – the first defendant’s summonses
There can be no doubt that the combined effect of the orders made by the Tribunal on 16 September 2021 and 5 December 2022 was to create a debt of $30,591.00 owed by the plaintiff to the first defendant.[8] Contrary to the plaintiff’s submission there is no doubt attending the conduct of the appeal before the Tribunal, the reasonableness of the Costs Order or the lawfulness of the orders made by the Tribunal such that this Court should exercise its discretion not to make the declaration sought by the first defendant in his summons dated 4 April 2023. The making of the declaration sought by the first defendant will clarify the effect of the Tribunal’s orders in any subsequent proceedings to enforce the orders made by the Tribunal.
The above is sufficient to dispose of both the plaintiff’s Originating Motion and the first defendant’s Summonses. I will nevertheless provide answers to the questions posed by the plaintiff in the Originating Motion:
(1.) Did the Legal Practitioners Disciplinary Tribunal have jurisdiction and authority under the Legal Profession Act or any other Act to accept and act on an application/summons made under NT Supreme Court Rule 63.36 from Mr De Silva for a Taxation of Costs process?
Answer: The Tribunal had jurisdiction pursuant to section 512 of the LPA and Rule 23 of the Tribunal Rules to conduct an assessment, or taxation, of counsel’s fees payable by the plaintiff to the first defendant. In assessing the amount of counsel’s fees payable, the Tribunal was exercising its own jurisdiction and not that of the Supreme Court.
(2.)   Were the Legal Practitioners Disciplinary Tribunal and the three members sitting as the Tribunal, qualified to, and have sufficient experience, and show the requisite independence and objectivity, to conduct a Taxation of Costs?
Answer: The Tribunal was properly appointed under the LPA and had the responsibility of exercising the jurisdiction vested in the Tribunal, including assessing costs payable under a costs order made by the Tribunal.
(3.) Was the application/summons and bill of costs provided to the LPDT prior to 2 November 2022 under Supreme Court Rule 63.36, actioned in accordance with that Rule and properly considered by a statutory appointed Taxing Master as required under Supreme Court Rules?
Answer: The Tribunal had the power under Rule 23 of the Tribunal Rules to apply any procedure it considered appropriate in assessing the counsel’s fees payable by the plaintiff to the first defendant, including adopting any procedure found in the SCR, adapted as necessary by the Tribunal. The Tribunal was not required to adopt that part of any procedure in the SCR which provided for a taxation by a Taxing Master.
(4.)   Did Mr De Silva have any proper costs that were paid by him or bound by contract to be paid by him to his own law firm at the time of the original LPDT “costs” order made on 16 September 2021?
Answer: The Tribunal was entitled to find that the plaintiff had retained the Law Firm to act on his behalf and that the Law Firm had instructed counsel to appear on behalf of the first defendant. The first defendant had a legally enforceable obligation to pay the disbursement for counsel’s fees paid on his behalf by the Law Firm. The plaintiff has not demonstrated any error of law on the part of the Tribunal.
(5.)   Was the original “Costs” order made by the original Tribunal on 16 September 2021 a result of a proper and reasonable and unbiased consideration of the facts, the reason for the appeal, the actions of Mr De Silva and the Law Society, the financial circumstances of the appellant, the reasonable costs of Mr De Silva at the time and without the benefit of submissions from the parties on costs
Answer: The plaintiff has not demonstrated that the Tribunal made any error of law in making the order of 16 September 2021.
(6.)   Did Mr De Silva have any proper costs that were paid by him or bound by contract to be paid by him to his own law firm at the time he filed the application/summons and a bill of costs for a Taxation of Costs with the Supreme Court in August 2022?
Answer: The plaintiff has not demonstrated that the Tribunal made any error of law in making the order of 5 December 2022
(7.)   Did Mr De Silva have any proper costs that were paid by him or bound by contract to be paid by him to his own law firm at the time he provided the same application/summons and a bill of costs with the Legal Practitioners Disciplinary Tribunal in October 2022?
Answer: The plaintiff has not demonstrated that the Tribunal made any error of law in making the order of 5 December 2022.
(8.)   Was the application/summons and bill of costs filed by Mr De Silva in the Supreme Court in August 2022 and provided to the LPDT in October 2022, made within a reasonable or acceptable or lawful timeframe is calculated from the original “Costs” order made in the LPDT on 16 September 2021?
Answer: The plaintiff has not demonstrated that the Tribunal made any error of law in making the order of 5 December 2022
(9.)   Was the Order made by the LPDT dated 5 December 2022 properly based in law and does it provide Mr De Silva with the basis for an enforcement action against the plaintiff/appellant?
Answer: Yes
(10.) Did the failure of Mr De Silva to serve a copy of his application/summons and bill of costs on the Law Society NT as the Second Respondent in the LPDT Proceedings LPDT 2020 – 02855 – SC prior to the Directions Hearing on 2 November 2022 prevent the Law Society from advising the Chairperson of the LPDT that the Tribunal had no jurisdiction nor authority to accept Mr De Silva’s application nor to conduct a Taxation of Costs?
Answer: Any failure of the first defendant to serve on the Law Society the costs documents associated with his claim for costs against the plaintiff did not result in the Tribunal making an error of law in proceeding with the taxation of counsel’s fees on 5 December 2022 and in making the order against the plaintiff.
(11.) Was the failure of the Chairperson of the LPDT at the Directions Hearing on 2 November 2022 to direct Mr De Silva to serve a copy of his application/summons and bill of costs on the Law Society, a serious breach of procedure and the Legal Profession Act which guarantees a place for the LSNT in any proceeding in the Tribunal?
Answer: No.
(12.) Did the absence of the Law Society having input in the Taxation of Costs process in the LPDT and making no appearance at the hearing on 5 December 2022 render that hearing not only questionable but without lawful basis under the Legal Profession Act and as a consequence the order should be set aside or rescinded?
Answer: No
(13.) Did the members of the LPDT on 5 December 2022:
·make errors in law in conducting a taxation of costs process;
Answer: No
·fail to seek proper legal advice from independent sources available to the Tribunal on the jurisdictional issue;
Answer: No. The Tribunal was under no legal obligation to seek such advice.
·act with the apprehension of bias in dismissing the risk that their action was unlawful;
Answer: No. The procedure adopted by the Tribunal was lawful.
·fail to give adequate weight to the time delay in Mr De Silva making his application;
Answer: The plaintiff has not demonstrated that the Tribunal made any error of law in making the order of 5 December 2022.
·fail to give adequate weight to the fact that Mr De Silva did not make any cost repayment to his own law firm prior to providing his application to the Tribunal;
Answer: The plaintiff has not demonstrated that the Tribunal made any error of law in making the order of 5 December 2022.
·fail to give adequate weight to the admission by Mr De Silva that he could easily reverse the alleged part-payment to his law firm on or about 8 November 2022;
Answer: This was irrelevant.
·fail to give adequate weight to the unreasonableness of Mr De Silva’s bill of cost;
Answer: It is clear from the Transcript of proceedings before the Tribunal on 5 December 2022 that the Tribunal was aware of the submissions made by the plaintiff as to the reasonableness of the claim for counsel’s fee. The plaintiff has not established that the Tribunal made an error of law in making the orders of 5 December 2022.
·fail to connect Mr De Silva’s admission of “problems” with claiming those charges in the bill of costs attributed to his own law firm staff ($60,000) while he still claimed the fees paid by his law firm to counsel($30,000);
Answer: The plaintiff has not established that the Tribunal made an error of law in making the orders of 5 December 2022. In particular, the plaintiff has overlooked that counsel’s fees were incurred for services of a third-party, being counsel.

I make the following formal orders:
a) The plaintiff’s Originating Motion seeking judicial review is dismissed;
b) On the first defendant’s Summonses dated 1 February 2023 and 4 April 2023 I make a declaration that the plaintiff is indebted to the first defendant in the sum of $30,591.00 plus interest in accordance with the Supreme Court Act 1979 (NT) in respect of the order of the Legal Practitioners’ Disciplinary Tribunal dated 5 December 2022 in proceeding No. LPDT 2020-02855-SC.
Costs
The plaintiff has been wholly unsuccessful and the first defendant has been wholly successful in these proceedings. The usual rule is that an unsuccessful litigant is required to pay the costs of the successful litigant or litigants. The plaintiff will be allowed 28 days from the date of publication of this judgment to file and serve on the first defendant and the Law Society any submissions he wishes to make relating to the costs orders I should make. Those submission are not to exceed four A4 pages in length. The first defendant and the Law Society will have 14 days after receipt of the plaintiff’s submissions to file and serve their submissions. The plaintiff will then have 7 days from receipt of those submissions to file and serve submissions in reply not exceeding four A4 pages in length. I will then decide the issue on the papers.

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[1] Lewis v De Silva and Law Society NT (No. 2) LPDT No. 2020 – 02855 – SC.

[2] Lewis v Australian Capital Territory [2020] HCA 26; (2020) 271 CLR 192 at [43]; Plenty v Dillon (1991) 171 CLR 635 at 655.

[3] Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, at 581-582.

[4] Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 435.

[5]Cutler v Wandsworth Stadium Ltd [1949] AC 398 at 407, 413.

[6] Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 at [58] – [59],

[7]LPA s 670 (3).

[8] Northern Territory v Sangare (2019) 265 CLR 164 at [35].