Mr Autore's submissions
30Mr Autore says that it appears that a great deal of the work was carried out by the barrister before he sent a costs agreement and disclosure, see [7] and [11] of the affidavit of Mr Folino-Gallo [CB 217]; fax [CB 224] dated 15 March 2010; and tax invoice [CB 232]. This is relevant to the ability (or not) of the solicitor to comply with his obligations under s 309, noting 311(2).
31The covering letter enclosing the barrister's costs agreement [CB 230] stated that he had complied with his obligations under s 310(2). The solicitor's submission is that it does not and cannot because:
(1) As noted this correspondence came after much of the work had already been done. On any view the barrister simply could not comply with his disclosure obligations.
(2) The second sentence of the last full paragraph refers to "the information set out above". There is no such information 'above' relevant to any costs disclosure. It should also be noted that this letter concerns the client Great Wall Resources and three other parties - making it even harder to know what work was to be done.
(3) That sentence refers to the information in the costs agreement as being sufficient to enable the solicitor to comply with s 310(1). That obligation in 310(1) is mandatory and includes the matter in 309(1)(c):
"An estimate of the total legal costs if reasonably practicable or, if that is not reasonably practicable, a range of estimates of the total legal costs and an explanation of the major variables that will affect the calculation of those costs."
(4) There is no estimate of the total legal costs in the letter or the costs agreement. Assuming that was not reasonably practicable, nor is there an applicable range of estimate of the total legal costs. Nor is there an explanation of the major variables that will affect the calculation of those costs disclosed in the costs agreement. Rather, the barrister purports to assert the mandatory compliance by the solicitor is still possible "having regard to your knowledge of the matter and your own professional expertise and experience".
32According to Mr Autore, this cannot be the required disclosure, as the barrister must disclose to the other law practice the information necessary for the other law practice to comply with subsection (1). The obligation to disclose under s 310(2), he says, is the barrister's alone and the legislation makes no provision on any construction to cast this obligation onto a solicitor by simple expedient.
33Moreover, s 309(1)(c) goes further than just an estimate if that is not reasonably practicable and requires "... a range of estimates of the total legal costs and an explanation of the major variable that will affect the calculation of those costs".
34The importance of costs disclosure to clients is self evident and by virtue of s 317(7), a failure can be a breach of the professional conduct rules. It could hardly be suggested where the barrister's own Association suggest a similar compliance is enough. However, it was submitted that this is wrong and the law clearly provides that estimates must be given and indeed, updated when necessary.
35In construing these provisions, Mr Autore says that the first purpose set out in s 301 is apposite. In support of this proposition, senior counsel for Mr Autore referred to Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423-424.
36More recently in Certain Lloyd's Underwriters v Cross [2012] HCA 56; [2012] 248 CLR 156, the High Court (per French CJ and Hayne J) set out some basic principles of statutory construction at [23] to [26]. They read:
"Some basic principles
23 It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:
"This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, n particular the mischief it is seeking to remedy."
24 The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, "[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute" (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision "by reference to the language of the instrument viewed as a whole", and "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed".
25 Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure. Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others, to recognise that to speak of legislative "intention" is to use a metaphor. Use of that metaphor must not mislead. "[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have" (emphasis added). And as the plurality went on to say in Project Blue Sky:
"Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning."
To similar effect, the majority in Lacey v Attorney-General (Qld) said:
"Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts." (footnote omitted)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
26 A second and not unrelated danger that must be avoided in identifying a statute's purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions. As Spigelman CJ, writing extra-curially, correctly said:
"Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case." (emphasis added)
And as the plurality said in Australian Education Union v Department of Education and Children's Services:
"In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose." (footnote omitted)
37Senior counsel for Mr Autore also referred to the second reading speech of the Act (New South Wales Legislative Assembly Parliamentary Debates (Hansard) 7 December 2004 at 13404), where Mr Bob Debus noted:
"Part 3.2 sets out the requirements in relation to the costs disclosure and assessment. This includes what must be included in a costs disclosure statement, billing, and having legal fees assessed. Generally, the provisions in the bill apply if a client first instructs the law practice in the matter in New South Wales. When the client first instructs the practice, the law practice must give the client a costs disclosure statement detailing the information specified in clause 309(1). This includes an estimate of the total costs, an estimate of the amount the client will be able to recover and how the costs can be assessed. There are certain exceptions from the requirement to disclose as outlined in clause 312. These include a client who has already received a disclosure notice and who has waived further disclosure, a public company and the holder of a financial services licence. As a general rule a client will not be required to pay legal costs in respect of matters that have not been disclosed unless the costs have been assessed under division 11."
38This part of the second reading speech, in my view, does not assist in the interpretation of ss 309 and 310 of the Act.
39Finally, Mr Autore submitted that there was no costs agreement in relation to the fees of $16,912.50. This submission is incorrect. There is a costs agreement dated 16 March 2010, addressed to Great Wall Recourses v Davidovic; Great Wall Resources v Bell Morgan (Anthony Kosseris); Great Wall Resources v Raffeletos; and Great Wall Resources associated matters. That costs agreement is referable to the fees of $16,912.50.
40I should also record that in his submissions, Mr Autore referred to Branson v Tucker [2012] NSWCA 310. Both parties have agreed that Branson is not of assistance because what was said by Campbell JA at [29] to [32] was obiter dicta.