Mietto v G4S Custodial Services Pty Ltd
[2010] VSC 304
•25 June 2010
IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COSTS COURT
No. S CI 2010 01371
| MARK MIETTO | Plaintiff |
| v | |
| G4S CUSTODIAL SERVICES PTY LTD | Defendant |
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ASSOCIATE JUDGE: | Wood AsJ |
WHERE HELD: | Melbourne |
DATE OF REVIEW HEARING: | 21 June 2010 |
DATE OF REVIEW DECISION: | 25 June 2010 |
CASE MAY BE CITED AS: | Mietto v G4S Custodial Services |
MEDIUM NEUTRAL CITATION: | [2010] VSC 304 |
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TAXATION - unqualified cost consultant - allowance for attendance.
REASONS ON REVIEW
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Warne | JN Zigouras & Co |
| For the Defendant | Mr M. La Pirow | Marsh & Maher |
HIS HONOUR
BACKGROUND
The plaintiff’s application (“Review”) seeks a review of a decision made by a Costs Registrar on 29 March 2010 in a party and party taxation of the defendant’s costs. The taxation was on County Court scale and the rulings sought to be reviewed only relate to two items in the defendant’s bill of costs. The review is stated to be pursuant to 63.56.1 of the Supreme Court(General Civil Procedure)Rules 2005 (“the Supreme Court Rules”).
The first item is item 72 in the bill which is a claim for “Attending Taxation Call over” in the sum of $125 which was allowed on taxation. The second item is item 73 in the bill which is a claim for “Attending Taxation of Costs - (estimate)”. This was claimed in the bill at $188 but allowed in the sum of $376 at taxation.
GROUNDS OF REVIEW
The plaintiff’s grounds of objection in the Review for both items are virtually identical and state as follows :
The person in attendance …was not a legal practitioner, nor a clerk of a legal practitioner and therefore there is no entitlement to a monetary allowance for such an attendance. The plaintiff refers to the decision of Warne v Collard (unreported) in the Practice Court before his Honour Judge F.B. Lewis, County Court No. 199806545 made 5.12.2000 (attached).
The document attached (referred to in the grounds) was only the order of Judge Lewis, not the reasons for judgment in Warne v Collard (“Warne”). The reasons are presumably not available.
Warne v Collard
In Warne his Honour was hearing a review from rulings made by a Registrar. The Registrar’s reasons in Warne were also filed in the Review. It is clear that the Judge overturned an allowance made by the Registrar in that bill (item 166) which represented an allowance for an unqualified person to appear at the taxation hearing. The ruling therefore has direct application to item 73 in the current bill. The Registrar’s reasons in Warne mainly deal with the question of whether an unqualified cost consultant should be granted leave to appear. This is quite a separate question to the issue of whether an allowance under the scale can be made for an appearance by an unqualified individual. The Review before me only relates to the allowance of a sum of money for the appearance.
The only part of the reasons that deal with a justification of an allowance for a sum of money for the appearance relies on item 28(b) of the County Court scale. This item in the scale is for an attendance “which requires the personal attention of the solicitor or managing clerk and involves the exercise of skill or legal knowledge”.
The Registrar’s reasons state “the allowances to Costs consultants on taxation are made pursuant item 28(b) as it involves the “exercise of skill or legal knowledge”. This justification obviously found no favour with the Judge as the allowance was reversed on review.
THE CURRENT REVIEW
At the call over of the Review on 4 May 2010 the Court was advised that affidavit material might be required and the matter would require a hearing date, as opposed to being dealt with by way of written submissions. The matter was fixed for hearing on 21 June 2010. The defendant was directed to file and serve a written submission and any affidavit material by 25 May 2010. The defendant filed written submissions on 25 May 2010 but no affidavit material. The plaintiff filed written submissions on 7 June 2010 but no affidavit material.
THE DEFENDANT’S WRITTEN SUBMISSION
These were arranged under the following headings and in summary the defendant makes the following points :
Procedure
The applicable review provisions are those contained in the County Court Rules and not the Supreme Court Rules. Issue is also taken with the form of the Notice of Review and the significance of the failure to object to Item 72 when the matter was taxed by the Costs Registrar.
Substantive Submission
Two questions are identified :
(a)Must a person appearing at a call-over of the list, or on the taxation of the bill be a legal practitioner before his client is entitled to an allowance for the necessary and proper costs of his attending?
(b)If the first question is answered in the negative, are the terms of the engagement by the solicitor of a clerk relevant to his client’s entitlement to recover the costs of that attendance?
Further, what significance, if any, is to be placed on the decision of Judge F.B. Lewis in Warne v Collard and the reasons of the Costs Registrar.
First question
In relation to question a) above reference is made to the recognition of unqualified costs clerks (Application of William James Byrne[1]). Reference is also made to what is understood to be Supreme Court practice of not allowing a fee for an appearance by an unqualified costs clerk.
[1][1913] VLR 197.
Legal Profession Act 2004
Under this heading there is an analysis of this Act in relation to references to clerks, and legal services. The Legal Profession Regulations are relied upon for the notion of clerk “ad hoc” who can be regarded as an employee even if engaged under a contract for services on a temporary or casual basis. Reliance is also placed upon Law Institute of Victoria v Maric[2] (“Maric at first instance”) and other cases discussed below.
[2][2006] VSC 361.
The call over
It is submitted that there was no dispute about this issue before the Costs Registrar. Reliance is placed on Shrapnel v Laing[3] (“Shrapnel”) (cited in Oliver “Law of Costs” at page 187) for the proposition that no review of a taxation will be allowed if the matter was not raised in the objections. Further it is stated that the scale provides for an allowance for a solicitor’s attendance and a lesser sum for a clerk’s attendance, and “the amount sought in the bill was for a solicitor’s attendance”.
[3](1887) 20 QBD 334 at 337.
The taxation
It is submitted that in effect once leave to appear is granted then there is an acceptance that the appearance is a necessary or proper step and then there is no basis to challenge the right of recovery of those costs.
THE PLAINTIFF’S WRITTEN SUBMISSION
In summary, the plaintiff submits that the review is a Costs Court matter as the taxation occurred after 31 December 2009. Further, the proceeding is a review (not an appeal), and there is no need to find specific error. The review merely invokes a fresh exercise of the Court’s discretion.
In relation to the substantive submission the plaintiff describes the County Court practice as contrary to the approach in Warne. The Supreme Court practice is to be preferred in any event and a distinction is drawn between a clerk in the employment of the solicitor and one from an independent business. The point is made that the granting of leave does not carry an entitlement to costs (Scott & Anor v Northern Territory & Ors[4] is cited).
[4][2005] NTCA 4.
In relation to the assertion by the defendant that no objection was taken to the attendance at the call over (item 72) at the taxation before the Costs Registrar, the submission is made that: “Item 72 ought to follow item 73. At all times in the taxation, the defendant was represented by “RJD Legal Services” as agents for Marsh and Maher (see front-sheet of the Bill of Costs). “RJD Legal Services” and those who appeared by it were not a qualified person”.
By way of comment, these written submissions are dated 7 June 2010. By omission of any statement countering the assertion in the defendant’s written submission that there was no dispute about this item before the Costs Registrar it could be inferred that it is conceded that no objection was made at taxation to this item. The initial objections dated 26 February 2010 considered by the Costs Registrar state “Not yet occurred” in relation to the call over (item 72) as it did not occur until 1 March 2010. The reasons of the Costs Registrar dated 17 May 2010 state at paragraph 5 in relation to item 72:
The plaintiff’s representative did not make submissions at taxation in relation to item 72. I note that the written objection has no bearing on the item claimed. There was no evidence before me as to who appeared at the call over on behalf of the defendant. Other than being noted in the list of objections, item 72 was not contested at the taxation and accordingly, I allowed the claim.
ORAL SUBMISSIONS AT THE HEARING
Plaintiff’s oral submissions
There was considerable departure from the written submissions in oral argument at the hearing on 21 June 2010.
These fell into five broad categories.
(i)The applicable regime and review ought to be governed by the Supreme Court practice and Rules.
(ii)There is a distinction that is recognised between employees of a solicitor and independent third party contractors. This was applied in Sophiadakis & Ors v AleksandarReljic & Anor[5] where the work of a private investigator taking witness statements was disallowed as a disbursement, in part because it was regarded as solicitors’ work and in part due to the lack of supervision and accountability issues.
(iii)What may be termed an illegality argument and that the allowance of costs would reward unqualified legal practice. That is, the preparation work prior to leave to appear being given would represent a departure from the indemnity principle. Any contract for that part of the work would be void against public policy and void for illegality at common law and there would be no liability to pay the fee. Reference was made to s.2.2.2(5) of the Legal Profession Act2004 where recovery of a fee can be justified where an unqualified person has engaged in legal practice.
(iv)To allow scale fees for appearances by unqualified individuals would encourage unqualified practice.
(v)This related to the flaw in the justification for the allowance by the Costs Registrar of the sum for appearing at taxation on the basis that to disallow it would have been a departure from the previously applied County Court practice without adequate notice to the parties.
[5][1999] VSC 147.
The plaintiff’s oral submissions made reference to a number of cases - Cornall v Nagle[6] (“Nagle”), Felman v Law Institute of Victoria[7] (“Felman”), Law Institute of Victoria v Maric[8] (“Maric on appeal”), Scott v Northern Territory[9] (“Scott “) and Sophiadakis & Ors v Aleksandar Reljic & Anor[10] (“Sophiadakis”).
[6](1995) 2 VLR at 210.
[7](1998) 4 VR 324.
[8](2008) 21 VR 11.
[9](2005) NTCA 4.
[10](1999) VSC 147.
It was also put from the bar table that the Costs Registrar reasons were incorrect to the extent that objection to an attendance at the call over (item 72) was taken orally at the initial taxation.
The reliance of the defendant in the written submissions upon a definition of “employee” in Schedule 2 to the Legal Profession(Amendment)Regulations2007 was criticised on the basis that this had no application as it related to presumptions about taking or using a name, title or description.
Defendant’ oral submissions
The defendant made reference to In re Sanderson; Ex parte the Law Institute of Victoria[11] (“Sanderson”), Felman and the Application of William James Byrne[12] (“the Managing Clerks Cases”).
[11](1927) VLR 394.
[12](1913)VLR 164.
In summary a number of points fell into the following broad categories
(i)An objection to the attempt by the plaintiff to expand a limited review in relation to two rulings on taxation into a general question of illegality of the activities of unqualified costs consultants.
(ii)The attempt by the plaintiff to challenge the findings of fact of the Costs Registrar in relation to how item 72 was argued below without any evidence being adduced was inappropriate.
(iii)The concept of costs clerks has been judicially recognised (Managing Clerks Cases) and there was no holding out to be a legal practitioner (Sanderson).
Having reserved my decision on 21 June 2010, I now publish my reasons.
REASONS FOR DECISION
Review Process
The Supreme Court Act1986 now includes s.17D(1)(b) which states :
(1) The Costs Court -
…
(b)has jurisdiction to hear and determine the assessment, settling, taxation or review of costs in proceedings in -
(i) the County Court;
(ii) the Magistrates' Court;
(iii)VCAT - if, by or under any Act, the Rules or the Rules of those courts or VCAT, costs are to be assessed, settled, taxed or reviewed by the Costs Court.
The expression “the Rules” in the Act means the Supreme Court(General Civil Procedure)Rules2005 and the “Rules of those Courts” in the context of this Review means the rules of the County Court Civil Procedure Rules2008 (“County Court Rules”) pertaining to the County Court scale.
The applicable Rule that covers the Review processes is 63.56.1 of the Supreme Court Rules because they apply to any decision of a Costs Registrar constituting the Costs Court. The issue of the applicable scale is settled by s.17J(2)of the Supreme Court Act1986 which states that in the exercise of its jurisdiction under s.17D(1)(b) of that Act the Costs Court may tax or review costs in accordance with the Rules of the Supreme Court or “The Rules, including any scales of costs, of the court in which the costs originated”.
In my view the applicable rules in relation to the review provisions are the Supreme Court Rules. Sub-sections 17H(2)(a) & (b) of the Supreme Court Act1986 state that the review is to be made within the time period allowed by the Rules and otherwise in accordance with the Rules. The basis of taxation (and any relevant Rule in relation to the actual application of the scale) are those of the court of origin.
Therefore the review process is governed by 63.56.1 of the Supreme Court Rules and not the County Court Rules as submitted by the defendant.
In my view the basis of the review is a de novo hearing in relation to a review of a Costs Court decision constituted by a Costs Registrar by the Costs Court constituted by a Costs Judge.
Appeals from decisions of Associate Judges generally are to Judges by way of re hearing de novo (see Rule 77.05(7)). The nature of the review of a decision of a Costs Registrar can be gleaned from the rule itself. First, a Costs Judge shall “reconsider and review” (see Rule 63.56.1(6)(a)) and secondly they “may receive further evidence” (see Rule 63.56.1(7)). Costs Registrars are not obliged by the Rules to provide written reasons (cf Rule 63.56.1(8) which applies to a Costs Judge). The classification of the review as a de novo hearing is also consistent with the approach taken in the High Court case of Harris vCaladine.[13]
[13][1991] 172 CLR 84.
Item 72 – Call over
The submission of the defendant that issue cannot be taken with item 72 on review because it was not objected to before the Costs Registrar has some merit. The Review process is for reviewing and reconsidering rulings made in relation to items about which there was some controversy before the Costs Registrar. The process would be open to abuse if parties approached the review process on the assumption that there was an unrestricted entitlement to review items they did not previously object to or that were not in dispute.
I have no basis to question the accuracy of the description of the way the matter proceeded before the Costs Registrar as described in his reasons in relation to the conduct of the taxation. In effect these were findings of fact. The plaintiff had the option to file an affidavit in relation to this issue and elected not to. Their written submissions do not traverse the issue and I cannot attach weight to an assertion from the bar table by counsel for the plaintiff that his instructions were contrary to the description of what occurred in the reasons of the Costs Registrar. I must presume the Costs Registrar is accurately describing what occurred and therefore must assume the plaintiff tacitly consented to the claim in item 72 at taxation.
Consistent with the decision in Shrapnel this item is not varied on review. Lord Esher MR stated at 337 in that case (when considering a review of taxation of costs):
Upon such an application it is necessary that the person who seeks a review should shew that he has taken his objections at taxation when before the master. The applicant is bound by those objections to the taxation, and the only question for the court is whether they are to be sustained or negatived. In all other respects the taxation must be taken to have been right.
In the present case I am not prepared to grant leave to agitate this item on review.
Item 73 - Taxation
One of the most critical aspect of the Review is the County Court scale itself. The preamble to the County Court scale states “Scale of Fees and costs to be paid to Counsel and Practitioners between party and party and between Practitioner and Client”.
There is no dispute that the person who appeared before the Costs Registrar in this matter was not Counsel or Practitioner (I take “practitioner” to mean “legal practitioner” which is a term used throughout the Legal Profession Act 2004). Solicitor and practitioner are both referred to in the County Court scale and are interchangeable (for example - see item 25(a) for a reference to practitioner and item 23 for a reference to solicitor). Rule 63 of the Supreme Court Rules and Rule 63A of the County Court Rules are also not consistent in their terminology. For example Rule 63.44 refers to lawyer, the heading to 63.23 and 63A.23 also refers to lawyer but the term solicitor is used in the body of these rules and elsewhere (for example 63.48 and 63A.48).
The County Court Scale includes references to both clerk (items 15, 19, 25, 27 and 30) and managing clerk (items 25, 27 and 30). As a general proposition it could be said that this means clerks or managing clerks under the supervision of or in the employ of the solicitor or practitioner. This general proposition is consistent with 63.42 (4) which refers to “clerk of the solicitor”.
Rule 63.42(2)(b) of the Supreme Court Rules states that “work done in Victoria by a servant or agent of the solicitor shall be taken to have been done by the solicitor”. In my view this rule relates purely to the content of the bill of costs and how this bill is set out. It does not determine how an agent’s work is to be regarded or dealt with on taxation.
The notion of an appearance at the final taxation hearing by an unqualified person as advocate is problematic. The Costs Court is part of the Trial Division of the Supreme Court (see s.17C(1) of the Supreme Court Act1986). The taxation of the County Court costs order is the substantive proceeding and the taxation hearing is the final hearing or trial of a Supreme Court matter.
The plaintiff in effect urged that the Review be the vehicle and opportunity for the Court to consider the legality of the operation of unqualified costs consultants generally (see paragraphs 21(iii) and 26(i) above). The only order that can be made will relate to one item in the bill. It is clear from s.2.2.2(2)(f) of the Legal Profession Act2004 that an appearance after the granting of leave to an unqualified person by a Court does not of itself attract a penalty for engaging in legal practice.
An examination of the case law cited follows.
In the Northern Territory Court of Appeal case of Scott leave to appear was granted to an unqualified individual. A request for costs of the appearance calculated at the clerical rate in the scale was refused. This is analogous to the present situation with the exception that in the present circumstances the solicitor on record engaged the unqualified individual and in Scott there was no solicitor.
Teague J in Sophiadakis was dealing with a disbursement paid by a solicitor to an unqualified person to undertake a task which the judge thought was work of a solicitor. In that case an inquiry agent was taking witness statements. The decision was made not to allow the cost as a legal disbursement. In the judgment Teague J made reference (at paragraph 50) to the fact that work must be performed professionally “either by the solicitor personally or by a solicitor or clerk to whom the solicitor is professionally responsible”. Further on in the same paragraph he states “… it will not suffice if the work is contracted out to a person for whom the solicitor is not professionally responsible.”
In relation to the characterisation of the work of an unqualified costs consultant several cases are pertinent.
In Maric on appeal the judgment of Neave JA in the Victorian Court of Appeal is significant. What constitutes engaging in legal practice is to be found in the common law. At page 8 in the judgment, her Honour cites a passage from Nagle in which JD Phillips J identifies three ways in which a person who is not admitted to practice might be seen to “act or practice as a solicitor”. The first example is:
(1)by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor. This is the test in Sanderson.
For present purposes the second example is not relevant. The third example is:
(3)by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. For present purposes, it is unnecessary to go beyond the example of the giving of legal advice as part of a course of conduct for reward.
Reference is then made to Felman in which Kenny JA provides a qualification where legal advice might be given incidentally by someone working in a different field of expertise. Examples mentioned are architect and tax agent. This list was expanded to include customs agent or migration agent in a passage cited at page 26 in Maric on appeal.
Pausing at this point, general observations can be made in relation to point (1) in Nagle (recited at paragraph 49 above). Appearances in final hearings in the Supreme Court and in the taxation of costs is usually undertaken by legally qualified individuals. Advertising in the Law Institute Journal and offering services that include appearance work or having the descriptor “legal services” in a business name may carry inferences as to the qualification of an individual. I say this because “legal services “ is defined in s.1.2.1 of the Legal Profession Act 2004 as “work done, or business transacted, in the ordinary course of legal practice“. I note that the name of the costs consultant in the present case inserted in the bill of costs is “RJD Legal Services”. Section 2.2.3(1) of the Legal Profession Act2004 states that:
A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.
In relation to point 3 in Nagle the general observation could be made that it is likely that unqualified costs consultants prepare documentation for use in proceedings (bills of costs and objections), and give advice about the making or acceptance of formal offers of compromise or Calderbank offers. In the course of drafting bills and objections the decision to claim or object to items involves interpreting court orders and the laws of costs and scrutinising the nature of the litigation that led to the costs orders in order to argue whether particular work was necessary or proper within the confines of the particular pleadings or relevant issues in the matter.
The point could be made that the occupations referred to above (paragraph 38) where incidental legal advice is given, all have registration and qualification requirements and are distinct occupations. Individuals conducting conveyancing and acting as industrial advocates are within the umbrella of legal practice but have statutory imprimatur. This is not so of unqualified costs consultants however the defendant relies on the judicial recognition of a costs clerk concept in the “Managing Clerks Cases”.
These cases were decided in 1913 and they deal with applications by individuals seeking to be entitled to admission to practice on the basis of their managing clerk status. There is a distinction drawn between a costs clerk and a managing clerk in the cases and it is clear that both are employed within firms of solicitors. In the descriptions of the duties by various individuals in these cases there is no mention of appearance work. I suspect the role of a costs clerk has evolved since then.
The County Court scale only makes reference to, and allowances for, counsel and solicitors appearing at various stages. For example, item 21 (mediation and case conferences), item 22 (directions hearings), item 25(a)(iii) (solicitor appearing at court). Allowances for a clerk at court are restricted to a situation where there is counsel appearing (item 25(a)(ii)). There is no allowance in the scale for a clerk (unqualified person) appearing at a hearing other than at a call over (item 15).
The fact that leave to appear is granted to an unqualified individual does not automatically entitle them to an allowance for their costs as suggested by the defendant. They are two separate concepts. Being granted leave to appear as an unqualified individual is not a right. Leave is sought, and if granted is an indulgence which carries no automatic right to be allowed costs, particularly when the scale makes no allowance.
Leaving aside the issue of whether some activities of unqualified costs consultants may in an individual case be classified as being engaged in legal practice or not, in my view the County Court scale makes no allowance, and hence no remuneration, for an unqualified costs consultant to appear at a taxation or any other hearing. The clerk ‘ad hoc’ principle traditionally relates to filing documents, file and title searching etc and has no application as the present circumstances involve an unqualified individual in effect being briefed to appear as advocate in lieu of counsel or a solicitor at the final hearing of a matter in the Costs Court.
This is not a new issue. The following passage appears in The Victorian Solicitor by Heymanson, Gifford and Coghill[14] at page 57:
the successful party to any litigation will not be allowed to recover costs of the action from the other party if his own solicitor was an unqualified person (Fowler v Monmouthshire Canal Co. (1879) 4 QBD 334; Halsbury 2nd Ed vol XXXI p 65 para 107).
The same applies to such an individual who appears in lieu of counsel or a solicitor at a trial or final hearing. For completeness I should say the Supreme Court practice so far as I am aware has been not to allow a claim for an allowance for appearances by unqualified individuals. My understanding is that this was also the practice prior to the retirement in 2006 of Master Bruce who was the Taxing Master for many years.
[14][1949 - Law Book Co].
The order of the Costs Registrar is varied to disallow the sum of $376 for item 73 in the bill. This sum represents the $188 claimed which should have been disallowed and $188 that was taxed on in error. The ruling in relation to $125 for item 72 in the bill is unchanged on review for the reasons outlined in paragraphs 35 to 37 above.
In relation to the costs of the review, two items were sought to be reviewed and the plaintiff was successful on one and unsuccessful on the other. On that basis there may be a justification for each side bearing their own costs however, I will give the parties the option of filing and exchanging written submissions on costs within 30 days.
WIDER POLICY ISSUES
I understand the Law Institute of Victoria is currently embarking on an accreditation process for lawyers who practice in the costs area and this development is presumably in recognition of the level of expertise involved in the conduct of legal practice in this area.
There are some practical issues that may arise from unqualified or disqualified individuals performing this work arising from inspecting files, preparing Court documents (bills or objections), giving advice to make or accept formal offers of compromise or Calderbank offers, and appearing at taxation hearings. For example, the potential waiver of legal professional privilege when an unqualified person inspects the file and the absence of professional indemnity insurance in the event of negligence. Unqualified cost consultants are unable to give undertakings in relation to unpaid disbursements (see 63A.43(2)(b)) and because they are not officers of the Court do not have ethical obligations to the Court, for example not to mislead, run untenable arguments or unnecessarily waste time.
Further, there may be an issue in relation to the legality of some individuals being paid in connection with a legal practice. Cost consultants are usually engaged by practitioners to prepare bills of costs or objections and appear at taxation. Some are not legally qualified at all or if they have legal qualifications do not have practising certificates. Some may be former practitioners either struck off the roll or who have had their practising certificate suspended or cancelled. A solicitor may or may not be aware of their status and the client may also not be fully appraised of the ramifications of their engagement.
One issue is that parties opposed to costs consultants would not necessarily know their status in order to oppose an application for costs, and it is undesirable for the Court to question every person who appears in a taxation as to their qualifications and admission status.
Pursuant to s.2.2.7(1)(a) of the Legal Profession Act2004 it is an offence for a law practice to knowingly have a lay associate who is a “disqualified” person. Section 1.2.1 includes removed from the roll, practicing certificate suspended or renewal refused in the definition of “disqualified person”.
A “lay associate” is someone who is employed or paid in connection with a legal practitioner’s practice (see s.2.2.5(a)(iii)) which would seem to cover engaging a costs consultant. A legal practice paying an unqualified costs consultant who is a disqualified person may therefore be committing an offence.
The issues identified may not be of concern to the same extent in other jurisdictions. For example, in Queensland their Supreme Court Act 1995 addresses the issue as follows :
Section 209 Appearance to be in person or by lawyer or person allowed by the judge
(1)In all matters and proceedings in the Supreme Court a party may appear in person or by a lawyer or by any person allowed by special leave of the judge in any case.
(2)A person who is not a lawyer is not entitled to claim or recover or receive directly or indirectly a sum of money or other remuneration for appearing or acting on behalf of another person in the Supreme Court.
This would suggest that an unqualified costs consultant would be unable to charge for the work done or be allowed on taxation a sum of money for their appearance.
My understanding of the practice in the Supreme Courts of South Australia, Western Australia, Queensland and Tasmania is that that costs consultants at present practising in those States are admitted practitioners and so the issue does not arise. There is a precedent in the Supreme Courts of South Australia and Tasmania for Masters allowing "costs clerks" who are actually employed by solicitors to appear by leave on taxations. In those cases it has been the practice to allow the costs of the attendance at clerk's rates.
My understanding of the situation in the United Kingdom is that costs consultants are known as Costs Draftsmen, who draw bills and also appear to argue them. Their status has been formalised and recognised to some extent. A number of years ago the Association of Law Costs Draftsmen (ALCD) was formed. This body now has rules and runs courses. Members progress from being Associates to Fellows. Fellows of ALCD are given limited rights to appear to argue costs cases and limited rights to conduct litigation relating to costs in their own right.
There has clearly evolved over time a mini industry of unqualified individuals who have become involved in the area of costing. Their status and the lack of transparency, regulation and confusion around their status are issues that may need to be addressed by legislation or considered by the Legal Services Commissioner or Law Institute of Victoria.
ORDERS MADE:
1.The order of the Costs Registrar made 29 March 2010 is varied pursuant to Rule 63.56.1(6)(b) Supreme Court(General Civil Procedure)Rules2005 by substituting the sum of “$3,736.40“ for “$4,112.40”.
2.The parties file and exchange any written submission in relation to the costs of the review within 30 days.
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CERTIFICATE
I certify that this and the preceding 16 pages are a true copy of the reasons of Associate Justice Wood published on 25 June 2010.
DATED this 25th day of June 2010
Sean Linehan
Associate to Associate Justice Wood
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