Ryan v Registrar of the Supreme Court of the Australian Capital Territory and Buhagiar
[2004] ACTCA 18
•25 August 2004
RYAN v REGISTRAR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY and BUHAGIAR
[2004] ACTCA 18 (25 August 2004)
PRACTICE AND PROCEDURE - appeal - refusal to make absolute an order nisi for writ of certiorari – jurisdiction of registrar to make an order that a party pay costs – costs order made consequent upon an aborted application for taxation of a bill of costs – nature of registrar’s power under Legal Practitioners Act 1970.
PRACTICE AND PROCEDURE – denial of natural justice – withdrawal of disputed bill of costs to be taxed – dates for directions hearing and taxation vacated - appellant not advised of proceedings seeking order for costs – costs order made ex parte in absence of appellant.
Legal Practitioners Act 1970 (ACT), ss 178 – 186, 188, 190, 191
Supreme Court Act 1933, ss 9, 10, 23(1), 23
Federal Magistrates Court Rules 2001 (Cth), r 21.09(3)
Family Law Rules 2004 (Cth)
Supreme Court Rules (ACT), O 65, Sch 3 6(d)
Passey v Bandarage (trading as City First Solicitors) [2002] ACTSC 105 (28 October 2002).
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 32 - 2003
No. SC 452 of 2003
Judges: Higgins CJ, Crispin P and Gray J
Court of Appeal of the Australian Capital Territory
Date: 25 August 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 32 - 2003
) No. SC 452 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:EUNICE CATHERINE MARY RYAN TRADING AS RYANS BARRISTERS AND SOLICITORS
Appellant
AND:THE REGISTRAR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
AND:MICHAEL ANTHONY BUHAGIAR
Second Respondent
ORDER
Judges: Higgins CJ, Crispin P and Gray J
Date: 25 August 2004
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The order purportedly made by the Registrar of the ACT Supreme Court on 17 June 2003 be quashed.
The order for costs made by Connolly J on 9 September 2003 be vacated.
There be no order made as to costs either of the proceedings before Connolly J or of this appeal.
IN THE SUPREME COURT OF THE ) No. ACTCA 32 - 2003
) No. SC 452 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:EUNICE CATHERINE MARY RYAN TRADING AS RYANS BARRISTERS AND SOLICITORS
Appellant
AND:THE REGISTRAR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
First Respondent
AND:MICHAEL ANTHONY BUHAGIAR
Second Respondent
Judges: Higgins CJ, Crispin P and Gray J
Date: 25 August 2004
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
This is an appeal against a decision of Connolly J handed down on 9 September 2003. The proceedings in question involved an order made by the Registrar of the Supreme Court of the Australian Capital Territory on 17 June 2003 in matter number SC 192 of 2003.
That order, if it be correctly so described, was in respect of an application on behalf of the second respondent for the taxation by the first respondent (the Registrar) of a Solicitor/Client Bill of Costs dated 27 March 2003 which had been delivered by the appellant to the second respondent. The order, as expressed, was -
Ryans Barristers and Solicitors, pay the costs of and incidental to the solicitor/client bill filed in relation to Mr Buhagiar on 15 April 2003 pursuant to section 180 of the Legal Practitioners Act.
The taxation itself did not proceed. That order was made in the absence of the appellant, after both parties had advised the Registrar that taxation of the Bill of Costs was no longer required.
On 8 August 2003 Gray J granted an order nisi for a writ of certiorari to quash that order. It was contended that the Registrar had no jurisdiction to have entertained the application in the first place, nor to have made an order for costs in respect of it.
The facts underlying the matter were not in dispute. The appellant, a solicitor, had, between 17 April 2001 and 22 May 2003, acted for the second respondent in relation to family court proceedings. The second respondent’s then partner had been employed in the appellant’s legal firm and, it seems, had recommended to him that he use the appellant’s services in relation to those proceedings.
On 5 March 2003, the appellant prepared a “statement of account” which was then rendered to the second respondent claiming payment for her firm’s services. That account claimed a total of $24,675.75. It was accompanied by previous accounts rendered, itemised time costing details and a list of disbursements.
The second respondent declined to pay that account. Consequently, the appellant re-calculated her account, purportedly in accordance with a Costs Agreement dated 17 April 2002 and the Family Court Scale. That bill, asserted to be “in taxable form”, was delivered on 27 March 2003. It claimed $58,728.76, less $5,661.72 paid, leaving a balance then claimed of $53,067.04.
At this stage Mr Dennis Farrar, solicitor, of Farrar Gesini and Dunn, entered into the fray on behalf of the second respondent. Mr Farrar wrote to the appellant on 9 April 2003, noting that, despite the references to the Family Court Scale, the bill rendered was in fact drawn on the basis of the Costs Agreement of 17 April 2003.
Mr Farrar contended that the Registrar of the Supreme Court “would be prepared to tax the account”. He wrote to the Registrar the same date requesting her to tax the appellant’s bill “pursuant to s 180 of the Legal Practitioners Act”. That is a reference to the Legal Practitioners Act 1970 (ACT) (“LPA”).
Apparently pursuant to that request, the Registrar set the matter down for a “directions hearing” on 19 May 2003 and allocated 17 June 2003 as the date for the “taxation” to proceed.
On 7 May 2003 the appellant wrote to Mr Farrar. She conceded that the bill had been incorrectly drawn and withdrew it. She advised it would be redrawn “fully in accordance with out [sic – ‘our’] Costs Agreement”.
The appellant then, on the same date, so informed the Registrar in writing, pointing out to her that she had no power to tax the bill which had been rendered as it was drawn pursuant to a costs agreement.
Having then received notices in respect of the abovementioned hearing dates, the appellant, on 14 May 2003, wrote requesting that those dates be vacated.
On 16 May 2003, Mr David Harris, a solicitor employed by the appellant, rang the Court Registry, following up on the letter of 14 May 2003, and was told, “The matter is no longer listed and you are not required to attend” and “We will inform Farrar Gesini and Dunn, if they appear, that the matter is not proceeding”.
It is not clear whether anybody attended upon the Registrar on 19 May 2003. However, on 29 May 2003, Mr Farrar wrote to the appellant’s firm noting that the bill had been withdrawn. Nevertheless, he claimed costs incurred in preparation for the taxation of it in the sum of $750.
Further to that claim, Mr Farrar wrote to the Registrar, seeking that the date for taxation not be vacated but that the issue of his client’s costs be then resolved by the making of an order in his favour for costs incurred in preparation for the taxation.
Unfortunately, neither Mr Farrar nor the Registry informed the appellant that the matter was still being pursued in that respect. Consequently, Mr Farrar attended upon the Registrar on 17 June 2003 and the Registrar, in the absence of the appellant, made the order referred to above.
On 19 June 2003, Mr Farrar wrote to the appellant advising his client’s claim for costs was now assessed at $1,500.
On 1 July 2003, the appellant wrote to Mr Farrar rejecting that claim, contending that the Registrar lacked any jurisdiction to have taxed the bill under s 180 of the Legal Practitioners Act. Hence, she contended, the submission of that bill to the Registrar for taxation did not “enliven the jurisdiction of the Supreme Court in respect of the matter”.
Pursuant to that contention, the order nisi for a writ of certiorari to quash the Registrar’s costs order was taken out and the matter came before Connolly J for argument on 15 August 2003. His Honour delivered his decision on 9 September 2003. That decision is the subject of this appeal.
His Honour noted that whilst the proceedings under the Family Law Act, the subject of the appellant’s bill of costs, had been heard in the Federal Magistrates Court, r 21.09(3) of the Federal Magistrates Court Rules 2001 (Cth) provided that they did not purport to regulate fees as between solicitor and client. A note to the Rules referred the reader to the rules for the recovery of costs between solicitor and client applying within the jurisdiction in which the costs were incurred.
Thus the dispute between the appellant and the second respondent fell to be resolved according to the LPA. Sections 178 – 185 LPA provide a statutory regime in this Territory for resolving a dispute as to costs between solicitor and client.
His Honour noted, correctly in our view, that the appellant, given that there was a costs agreement with the second respondent, could not invoke the procedure under ss 180 and 181 LPA, that is, to seek a taxation of the bill according to the Supreme Court Scale.
However, his Honour made no comment upon the advice given to the appellant that the date had been vacated nor the lack of advice to her that Mr Farrar’s request had, apparently, reinstated it. His Honour, correctly, noted that Mr Farrar’s request to have the issue of his client’s costs clarified was entirely proper. There was however, no consideration given to whether the order of 17 June 2003 should fail on natural justice grounds. His Honour’s reasons for making the order sought were expressed as follows:
24It was entirely proper for this to be done, and it seems to me that the Registrar would clearly have had jurisdiction to hear and entertain this application, even if, had it proceeded, she would probably have concluded that, on the evidence that there was in place a costs agreement, she did not have jurisdiction to proceed to tax the costs. The question of whether or not there was a costs agreement is a jurisdictional fact, and a body expressing limited jurisdiction clearly may embark on an enquiry to determine the existence of such a jurisdictional fact (see discussion M Aronson and B Dyer: Judicial Review of Administrative Action (LBC, 2nd ed, 2000) 194 ff. It seems to me to follow that the Registrar would have had jurisdiction to make consequential orders as to costs. The Registrar in undertaking a taxation has a specific power to tax the costs of the taxation (Schedule 3, Supreme Court Rules 6(d) in addition to the general power conferred on the Registrar in s 10 of the Supreme Court Act 1933 (the Supreme Court Act) (and in identical terms on the Master by s 9) by which the Registrar in exercising her jurisdiction exercises the jurisdiction of the Court. This general power is the source of the Registrar’s (and the Master’s) power to order costs on interlocutory applications, a power regularly exercised in this Court. The general power of the Court to order costs is that set out in s 23(1) of the Supreme Court Act –
The Court shall have jurisdiction to award costs in all matters brought before the court, including matters dismissed for want of jurisdiction.
The Registrar, when exercising the jurisdiction of the Court, exercises this power.
25It is of course not the law that the fact that a court does not have jurisdiction to make a final order does not mean that it may not make orders as to costs. Indeed, a misconceived application seeking to invoke a jurisdiction that does not exist would, in the normal course of events, result in the application being dismissed with an adverse costs order. There would be no question that such a costs order is valid, and indeed s 23 makes this clear.
On the hearing of this appeal the confusion apparent in the proceedings leading up to the decision appealed from did not abate.
The appellant was mainly concerned to correct an error, caused by the confusing presentation of the original bill, that she had charged out some items at $1,400.40 per hour. Of course, she had not. Her rate, as agreed, had been $220.00 per hour and that rate had been further discounted in view of the previous relationship of the appellant’s firm with the second respondent’s partner.
Next, it was submitted that there had been a process available under the Family Law Rules 2004 (Cth), to resolve the dispute. The relevance of this escapes us. It is not apparent that they had retrospective effect. In any event, the issue was whether, given the Registrar had no power to tax the appellant’s bill, for whatever reason, she could, nevertheless, make the costs order in dispute.
This contention and related contentions concerning the “general law” were also irrelevant.
The final contention approached the real issue, at least “… through a glass, darkly …” (1 Corinthians 13 v 12). That contention simply asserted that, if the Registrar had no power to tax the bill, she had no power to order costs.
The second respondent’s contentions were, perhaps as a result, no more to the point. They assumed that the Registrar was exercising the jurisdiction of the Supreme Court pursuant to O 65 of the Supreme Court Rules as, indeed, his Honour had done and hence exercised the power of the Court under s 23(1) of the Supreme Court Act 1933 (‘Supreme Court Act’) to award costs:
… in all matters brought before the Court, including matters dismissed for want of jurisdiction.
THE REAL ISSUE
None of the parties analysed the true effect of the relevant provisions of the LPA. Nor did they assist his Honour with any such analysis.
The relevant provisions in Part 15 of the LPA are as follows:
179 Right to request statement
(1) Subject to subsection (2), a person who is liable to pay or, being so liable, has paid, a solicitor’s costs or disbursements may request in writing the solicitor to give to the person an itemised statement of the costs and disbursements.
(2) A request under subsection (1) shall be made –
(a) in the case of a person who has not paid a solicitor’s costs or disbursements – within 3 months after receiving a written account of those costs or disbursements; or
(b) in the case of a person who has paid a solicitor’s costs or disbursements – within 3 months after paying those costs or disbursements; or
(c) within such further time as the registrar allows.
(3) The person making the request shall, if that person is not the client, cause a copy of the request to be given to the client.
(4) Where –
(d) a solicitor receives a request under subsection (1) from a person who has paid the costs and disbursements to which the request relates; and
(e) the solicitor does not, within 3 months of the date of receiving the request or within such further time as the registrar allows, give to the person an itemised statement of the costs and disbursements;
the solicitor is liable to repay the amount of the costs and disbursements to the person.
(5) Where a solicitor receives a request under subsection (1) and the client is given a copy of that request under subsection (3) –
(a)any proceedings instituted in respect of those costs and disbursements are stayed; and
(b)proceedings may not be instituted for the recovery of those costs and disbursements;
until the expiration of 1 month after the solicitor gives an itemised statement of those costs and disbursements to the person who made the request.
(6) Where a solicitor gives an itemised statement to a person other than the client in accordance with a request made under subsection (1), the solicitor shall inform the client that the solicitor has given the statement to the person.
180 Notice for taxation
(1) A person to whom a statement is delivered under this part may -
(a) within 1 month after delivery of the statement; or
(b) within such further time as the registrar allows;
give notice to the registrar, to the solicitor by whom the statement was delivered and, if the person is not the solicitor’s client, to the client that the person giving notice wishes to have the amount payable by him or her determined by taxation.
(2) Notwithstanding subsection (1), a person is not entitled to give notice under that subsection after judgment has been entered in proceedings for the recovery of the costs of disbursements, or any part of the costs or disbursements, specified in a statement delivered under this part.
(3) Subsection (1) applies whether or not the costs or disbursements to which a statement relates have been paid.
(4) The registrar shall not allow further time for the giving of notice under subsection (1) unless the registrar is satisfied that it was not practicable for notice to be given within 1 month after the delivery of the statement.
181 Form of notice etc
(1) A notice under section 180(1) shall be in writing and shall be accompanied by the statement to be taxed and a copy of the statement.
(2) Where notice is given to the registrar under section 180(1), the registrar shall fix a time and place for the taxation and shall give notice of the time and place so fixed to the person requesting the taxation and to the solicitor concerned.
182Taxation in absence of party
(1) Where a person gives notice under section 180(1) and fails to appear at the time and place fixed by the registrar under section 181(2), the notice shall be deemed to have been withdrawn.
(2) Where a person gives notice under section 180(1) that he or she wishes to have a statement taxed and the solicitor who delivered the statement does not appear at the time and place fixed by the registrar under section 181(2), the registrar shall, subject to subsection (1), proceed with the taxation.
190 Agreement as to costs
(1) The preceding provisions of this part, other than 179 and 189, do not apply in respect of the costs to be paid to a solicitor for work to which an agreement under this section relates.
(2) A solicitor may make an agreement with a person that the amount of the costs (excluding disbursements) payable, or to be payable, by the person to the solicitor for work of a professional nature already undertaken, or to be undertaken, for the person by the solicitor shall be the amount specified in, or ascertainable in accordance with, the agreement.
(3) An agreement referred to in subsection (2) is not enforceable unless a note or memorandum containing the terms of an agreement is signed by the person liable to pay the costs to which the agreement relates.
(4) A note or memorandum of an agreement signed in accordance with subsection (3) is evidence of the terms of the agreement.
(5) A solicitor who is a party to an agreement under this section is not entitled, in respect of work to which the agreement relates, to receive an amount for costs (including disbursements) greater than the amount specified in, or ascertainable in accordance with, the agreement.
191 Powers of court where contract not fair and reasonable
(1) Where, on an application by a person who has made an agreement with a solicitor under section 190, the court is satisfied that the agreement is not fair and reasonable, the court may, by order –
(a)direct that the amount payable under the agreement be reduced to an amount specified in the order; or
(b)declare that the agreement is not binding on the parties to the agreement.
(2) Where, under subsection (1), the court directs that the amount payable under an agreement be reduced, the agreement is enforceable as if the amount specified in the order of the court were specified in the agreement as the amount payable under the agreement.
(3) Where, under subsection (1), the court declares that an agreement is not binding on the parties to the agreement –
(a)the court may make such further orders as it thinks necessary to restore the parties to the agreement to the position in which they would have been if the agreement had not been made; and
(b)this part (other than section 190) applies as if the agreement had not been made.
(4) Except by leave of the court, a person is not entitled to make an application under this section in respect of an agreement after the institution of proceedings for the recovery from that person of the amount payable under the agreement.
It is apparent that, if there is a costs agreement, the Registrar has no power to tax a bill prepared in conformity with it. An objection to the correctness of the bill and its actual conformity to the agreement would be determined in any action taken by the solicitor in a court of competent jurisdiction.
If the client objects to the reasonableness of the terms of the agreement itself, s 191 empowers the Court to decide if it is “fair and reasonable” and, if not, grant relief accordingly (See Passey v Bandarage (trading as City First Solicitors) [2002] ACTSC 105 (28 October 2002).
If a bill of cost is delivered in a form taxable by the Registrar, then the Registrar is, pursuant to s 182(2), empowered to proceed to tax it even in the absence of the solicitor who delivered it, if due notice has been given to the solicitor.
Section 184 alone empowers the Registrar to create a liability in the solicitor to pay costs to the client. That liability is not a result of any further taxation. It is assessed for a sum “forthwith after the completion of the taxation” (s 184(3) LPA). The reason for that is found in s 188:
Where a certificate of the registrar … specifies an amount as the amount that is, in the opinion of the registrar, due to a person to whom a statement has been delivered under this part, the amount so specified is recoverable by that person as a debt due to him or her by the solicitor by whom the statement was delivered.
Thus Part 15 LPA does not empower the Registrar to make an order for costs which can be taxed. It is also the case that in exercising the powers conferred upon her under Part 15, the Registrar is not exercising any power of the Court nor is the jurisdiction of the Court “enlivened” save by an application (if made) to review such a taxation (s 186) or to review the terms of a costs agreement (s 191).
It follows that the Registrar had no power under the Supreme Court Act or SupremeCourtRules to “order” costs to be paid by the appellant. The Registrar’s powers to do so are solely as provided by Part 15. They are conferred on the Registrar as persona designata not on the Court.
It follows that the order made by the Registrar was a nullity. It should be quashed accordingly.
In any event, in the circumstances, given that Mr Harris’ affidavit was in no way challenged, the fact that the appellant was given to understand that the date for taxation had been vacated, meant that the proceedings before the Registrar were fatally tainted by lack of natural justice. The cause for that is not clear, though it appears that neither the Registrar nor Mr Farrar had been appraised of the information imparted to Mr Harris by the Registry staff member he had spoken to. Neither thought that they should give notice to the appellant of Mr Farrar’s proposal to seek an order for costs. It was, apparently, not considered that the appellant might, even absent the express advice to Mr Harris, assume the matter of the proposed taxation was at an end with the withdrawal of the bill and advice that the dates for hearing were no longer required.
Nevertheless, that misunderstanding did not avoid the unfortunate fact that procedural fairness was in fact denied.
It follows that this appeal must be upheld and the order purportedly made by the Registrar on 17 June 2003 quashed.
In view of the mutual confusion preceding that purported order and the proceedings before his Honour, we consider that his Honour’s order as to costs should be vacated. That confusion continued before us. As a result there will be no order as to costs either on the appeal or before the learned primary judge.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 25 August 2004
Counsel for the Appellant: Ms E Ryan
Solicitor for the Appellant: Ryans
Counsel for the First Respondent: Mr Jorgensen
Solicitor for the First Respondent: ACT Government Solicitor’s Office
Counsel for the Second Respondent: Mr Farrar
Solicitor for the Second Respondent: Farrar Gesini & Dunn
Date of hearing: 7 May 2004
Date of judgment: 25 August 2004
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