B & L Linings Pty Ltd v Chief Commissioner of State Revenue

The applicability of the regime of costs assessment contained in the LP Act 2004 39The starting-point of our reasons for our first conclusion is an analysis of relevant provisions within Division 11 contained in the Further Submissions filed by the Respondent. In the main, we endorse this analysis. We also believe it to be supported by certain aspects of Division 11 that did not receive express mention in the parties' written submissions or at the hearing. 40We may commence, as Mr Latham did in the Respondent's Further Submissions, by pointing out that there are two different definitions of costs in the LP Act 2004. 41The first of these, contained in section 4, is a definition for the purposes of the Act as a whole. The relevant provisions are as follows:- costs - see definition of legal costs legal costs means amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest. 42Two phrases within this definition of 'legal costs' - 'law practice' and 'legal services' - are also defined in section 4. These definitions are:- law practice means: (a) an Australian legal practitioner who is a sole practitioner, or (b) a law firm, or (c) a multi-disciplinary partnership, or (d) an incorporated legal practice, or (e) a complying community legal centre. legal services means work done, or business transacted, in the ordinary course of legal practice. 43The second definition of 'costs' is in section 302, near the commencement of Part 3.2 of the Act. Significantly, it is a definition for the purposes of this Part only. It is as follows:- costs includes fees, charges, disbursements, expenses and remuneration. 44In contrast to the definition of 'legal costs' in section 4, this broad definition is not restricted to costs charged by, or payable to, a 'law practice'. Nor indeed is it restricted to costs payable for the provision of 'legal services'. In addition, it does not purport to be an exhaustive definition, because it is preceded by the term 'includes'. 45We will mention here two more definitions contained in section 302. 'Costs agreement' is defined to mean 'an agreement about the payment of legal costs' and 'costs assessment' to mean 'an assessment of legal costs under Division 11'. 46Part 3.2 is headed 'Costs disclosure and assessment'. It commences with section 301, which defines the 'purposes' of the Part as follows:- (a) to provide for law practices to make disclosures to clients regarding legal costs, (b) to regulate the making of costs agreements in respect of legal services, including conditional costs agreements, (c) to regulate the billing of costs for legal services, (d) to provide a mechanism for the assessment of legal costs and the setting aside of certain costs agreements. 47Most of the provisions within Part 3.2 are concerned with 'legal costs'. This term means, as just indicated, the amounts chargeable by or payable to a 'law practice' for the provision of 'legal services'. A particular focus of the Part is the extent of the liability of clients, who are defined in section 4 to include persons 'to whom or for whom legal services are provided', to pay 'legal costs' to a 'law practice'. 48The headings for many of the eleven Divisions in the Part illustrate these points. They include 'Costs disclosure' (Division 3), 'Legal costs generally' (Division 4), 'Costs agreements' (Division 5), 'Billing' (Division 7), and 'Mediation of costs disputes' (Division 8). 49Each of Divisions 9, 10 and 11 is also concerned with the liability of clients to pay 'legal costs' to a 'law practice'. But in addition, the payment of costs pursuant to an order by a court or tribunal receives explicit attention. 50In Division 9, which is headed 'Maximum costs in personal injury damages cases', this topic is dealt with in section 338(4)(b) and section 340. In Division 10, headed 'Costs in civil claims where no reasonable prospect of success', it is dealt with in section 348. 51Division 11, headed 'Costs assessment', contains the provisions of prime importance for the present decision. Like its predecessors, it focuses substantially on the liability of clients to pay 'legal costs' to a 'law practice'. There are provisions, for example, enabling a client to apply to the Manager, Costs Assessment for the assessment of 'the whole or any part of legal costs' (section 350(1)) and enabling a law practice that has provided a bill of costs to make a similar application (section 352(1)). Section 361 requires that, subject to defined exceptions, a costs assessor must assess the amount of any disputed costs by reference to any relevant costs agreement. Section 362, headed 'Criteria for costs assessment', lists a number of matters to which a costs assessor must or may have regard when conducting an assessment of 'legal costs'. They include matters directly bearing upon the relationship between a client and a 'law practice', such as 'the retainer and whether the work done was within the scope of the retainer' (see subsection (2)(f)). 52There are however five sections within Division 11, which we will now reproduce in whole or in part, that deal expressly and specifically with the assessment of costs that are payable pursuant to an order of a court or tribunal. The term 'party/party costs' appears more than once as a description of such costs, though it is not defined within the Act. 53Division 11 has seven Subdivisions. Within Subdivision 1, headed 'Applications', subsections (1) and (2) of section 353 state:- 353 Application for assessment of party/party costs (1) A person who has paid or is liable to pay, or who is entitled to receive or who has received, costs as a result of an order for the payment of an unspecified amount of costs made by a court or a tribunal may apply to the Manager, Costs Assessment for an assessment of the whole of, or any part of, those costs. (2) A court or tribunal may direct the Manager, Costs Assessment to refer for assessment costs payable as a result of an order made by the court or tribunal. Any such direction is taken to be an application for assessment duly made under this Division. 54Subdivision 3, headed 'Party/party costs', comprises sections 364, 365 and 366. These three sections are as follows:- 364 Assessment of costs-costs ordered by court or tribunal (1) In conducting an assessment of legal costs payable as a result of an order made by a court or tribunal, the costs assessor must consider: (a) whether or not it was reasonable to carry out the work to which the costs relate, and (b) whether or not the work was carried out in a reasonable manner, and (c) what is a fair and reasonable amount of costs for the work concerned. (2) In considering what is a fair and reasonable amount of legal costs, a costs assessor may have regard to any or all of the following matters: (a) the skill, labour and responsibility displayed on the part of the Australian legal practitioner or Australian-registered foreign lawyer responsible for the matter, (b) the complexity, novelty or difficulty of the matter, (c) the quality of the work done and whether the level of expertise was appropriate to the nature of the work done, (d) the place where and circumstances in which the legal services were provided, (e) the time within which the work was required to be done, (f) the outcome of the matter. (3) An assessment must be made in accordance with the operation of the rules of the relevant court or tribunal that made the order for costs and any relevant regulations. (4) If a court or a tribunal has ordered that costs are to be assessed on an indemnity basis, the costs assessor must assess the costs on that basis, having regard to any relevant rules of the court or tribunal and relevant regulations. 365 Effect of costs agreements in assessments of party/party costs (1) A costs assessor may obtain a copy of, and may have regard to, a costs agreement. (2) However, a costs assessor must not apply the terms of a costs agreement for the purposes of determining appropriate fair and reasonable costs when assessing costs payable as a result of an order by a court or tribunal. 366 Court or tribunal may determine matters This Division does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis. 55The fifth section dealing expressly with 'party/party costs' is section 367A. It forms part of Subdivision 4, which has the heading 'Determinations', and is in the following terms:- 367A Determinations of costs assessments for party/party costs A costs assessor is to determine an application for an assessment of costs payable as a result of an order made by a court or tribunal by making a determination of the fair and reasonable amount of those costs. 56For completeness, it should be mentioned that a number of other provisions within Division 11 are apt to cover the assessment of 'party/party costs', as well as of legal costs payable by a client to a law practice. An example is section 362, which requires that assessments of costs must accord with any regulation or other legislation fixing the amount of those costs. 57The crucial proposition for which Mr Latham contended, and with which we agree, is that section 367A, since it uses the term 'costs' as opposed to 'legal costs', provides for determinations by costs assessors of any 'costs' falling within the broad definition of this term in section 302. The scope of such determinations embraces 'fees, charges, disbursements, expenses and remuneration'. They are not limited to determinations as to the amount of 'legal costs' payable to a 'law practice'. 58As Mr Latham submitted, this view of section 367A conforms with one of the four 'purposes' of Part 3.2 formulated in section 301. While paragraphs (a), (b) and (d) of this section set out purposes defined by reference to 'law practices', 'legal costs' and/or 'costs agreements', paragraph (c) is not limited in these ways. The purpose that it describes relates instead to the 'costs' of 'legal services'. In addition, two further features of the provisions relating to 'party/party costs' in Division 11 support this view of the scope of section 367A. 59The first is that section 353, in providing for the making of applications for the assessment of such costs, uses the term 'costs', not 'legal costs'. Applicants may apply under subsection (1) irrespective of whether or not the costs to which their application relates are 'legal costs' payable to a 'law practice'. The same applies to a direction by a court or tribunal under subsection (2) that some or all of the costs payable under an order that it has made - such as the Costs Order in these proceedings - should be referred for assessment. 60Secondly, sections 364 and 365 establish an overriding criterion of fairness and reasonableness for the assessment by a costs assessor of 'party/party costs' that relate only to 'legal costs'. In addition, they elaborate on this criterion to a significant extent. Section 367A also stipulates that determinations of party/party costs must be 'fair and reasonable'. If this section were to be read as applying only to 'legal costs', it would appear to be redundant. It would simply repeat in short form what is set out at length in sections 364 and 365. 61We should add here that an implication arising from the heading of section 367A is in conflict with what we believe to be the correct interpretation of the section. The wording of this heading is 'Determinations of costs assessments for party/party costs'. Under section 302, as mentioned above at [45], 'costs assessment' is defined to mean 'an assessment of legal costs under Division 11' (emphasis added). We do not believe, however, that this implication should be taken to undermine our interpretation of the section. Under section 35(2) of the Interpretation Act 1987, a heading to a provision of an Act 'shall be taken not to be part of' the Act. 62Section 367A was inserted into the LP Act 2004, along with a number of other amending provisions, by the Legal Profession Amendment Act 2005. This Act was in fact enacted before the LP Act 2004 itself came into force on 1 October 2005. Neither the Explanatory Memorandum for the amending Bill of 2005 nor the Second Reading Speech refers specifically to section 367A. 63Only very few cases disclosed by our research and that of the parties make any reference to this section. It seems that the only case in which it has been discussed to any significant extent, being one on which Mr Latham placed strong reliance, is Alan Edward Lewis v Paul Adrian Doran [2008] NSWSC 186. 64In this case, the successful defendants in Supreme Court proceedings obtained a costs order in their favour. They then sought a declaration to the effect that the 'reasonable value' of a substantial quantity of time and effort expended by one of them in locating, inspecting, collating and analysing documents for the purpose of preparing affidavits and giving evidence was 'capable' of constituting a 'disbursement' in the assessment of these costs under section 364 of the LP Act 2004. 65In the course of the hearing, the defendants moved to amend their claim by including an alternative declaration in the following terms:- "1A Alternatively to paragraph 1, above, a declaration that as part of the assessment of costs by a costs assessor pursuant to s 367A of the Legal Profession Act 2004 (NSW) the reasonable value of the time spent by the first defendant in preparing his affidavit evidence, in preparing to give oral evidence and in attending court at the hearing is capable of falling within the meaning of the terms 'costs' as defined by s 302(1) of the Legal Profession Act 2004 (NSW)." 66In an ex tempore judgment, Hammerschlag J refused to grant either declaration. At [40 - 42], he pointed out that the definition of 'costs' in section 302 of the LP Act 2004 applied to section 367A. At [50 - 54], in the course of explaining his reasons for refusing the declaration originally sought, he said:- 50 The declaration originally sought concerns, and concerns only, requirements imposed on an assessor in making an assessment of "legal costs" which are the subject of an order. 51 The definition of "legal costs" is to be contrasted with the definition of "costs" in s 302 of the Act. 52 The definition of legal costs and the process provided for in s 364 of the Act are directed to assessing those costs (whether by way of services rendered or the incurring of disbursements) where the activity gives rise to, or may give rise to a liability to, a law practice. 53 The term "disbursements" in the definition in s 4(1) of the Act is a term of expansion intended to comprehend amounts payable, or which may become payable, to the law practice beyond amounts only for the provision of legal services. However, it remains a requirement that those disbursements actually be or potentially be charged for, or be or become a liability to the law practice. 54 Section 364 of the Act is not intended to govern the assessment process in respect of costs which fall within an order but are not "legal costs" within the definition of s 4(1). The assessment process for those costs is governed by s 367A of the Act. 67At [76], his Honour stated that he considered the alternative declaration to be 'futile', principally on the ground that '[w]hether the value of time spent on any of the matters sought to be covered by the alternative formulation of the declaration is costs will depend on the facts, which is a matter for the assessor'. 68In oral submissions in reply, Mr Thawley argued that because the provisions comprising Subdivision 3 of Division 11 (i.e. sections 364 to 366) appear under the heading 'Party/party costs' and relate only to 'legal costs', they should be taken to govern section 367A. In consequence, he maintained, Hammerschlag J's ruling that the term 'costs' in section 367A extended to costs that were not 'legal costs' was erroneous and should not be followed. 69We do not consider that any such implication from the terms of the LP Act 2004 is sufficient to override the reasoning outlined above. If Mr Thawley's claim were correct, the definition of 'costs' in section 302 would appear to be superfluous. We treat the use of this term in section 367A, in preference to 'legal costs', as having the significance attributed to it by Hammerschlag J. 70In further support of the proposition that the LP Act 2004 should be construed as providing for the assessment of party/party costs that are not 'legal costs', Mr Latham pointed out that courts and tribunals have regularly awarded party/party costs to parties that were represented in the proceedings by their own 'in-house' lawyers, not by any 'law practice' or employee of a 'law practice'. Amongst a number of cases cited by him to illustrate this, the decision of the Supreme Court in Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 contains valuable observations on the questions with which we have to deal here. 71In that case, the Commonwealth Bank ('the CBA') successfully defended proceedings brought against it in the Local Court and obtained an award of costs. Both the solicitor on the record for the CBA and the solicitor (Mr Lanser) who had carriage of the proceedings on its behalf were employed by it. The CBA made an application under section 202 of the Legal Profession Act 1987 ('the LP Act 1987') for its costs to be assessed. 72The Assessor adopted the view that, in order to ensure that the CBA did not make a profit from the costs being awarded to it, he should not proceed on the basis of a District Court scale that was often used as a guide by assessors when assessing Local Court costs. Instead, he made a written request to the CBA to calculate and notify to him 'the cost of Mr Lanser's time to the Bank as an employee of the Bank, expressed in units of 1 hour'. The letter also requested advice as to the hourly value of the time spent on the proceedings by all other employees of the CBA. 73The CBA sought a declaration in the Supreme Court to the effect that the Assessor was not entitled to make this request. Davies A-J granted this declaration. 74At 336 [8], his Honour formulated the question debated before him as 'whether the Assessor was entitled to require that a calculation be made of the cost to the CBA of the legal services which its officers required'. At 336-337 [10], he identified as a 'flaw in the Assessor's reasoning' an assumption that the hourly sum charged internally in the CBA for Mr Lanser's time 'involved an element of profit'. He added: 'It would be surprising if the actual cost to the CBA of the legal services did not substantially exceed any sum which the Assessor would be likely to award.' 75Davies A-J then stated at 337 [11]:- In a case where an employed solicitor is involved, the traditional approach has been to award costs on a basis comparable to the costs which would have been incurred and allowed on taxation had an independent solicitor been engaged. The assumption has been made that, in an ordinary case, the indemnity principle will not be infringed by taking this approach. 76In the ensuing paragraphs of his judgment, his Honour referred to authorities establishing and illustrating this principle, including 19th century English cases and 20th century Australian cases. He then made the following observations, at 339 [20 - 22]:- 20 There is a point of principle behind the approach enunciated in all these cases. It is that employed solicitors are not to be treated as second-class professionals. Lawyers are entitled to practice in their profession in a number of ways, one of which is to be a legal officer in a corporation which engages in commercial activities... 21 Practitioners who choose to carry on their profession as an employee of the Crown, of a statutory authority or of a corporation are entitled to have their work assessed on the same basis as that of independent solicitors exercising comparable skills in the performance of comparable work. It is not the manner in which the practitioner carries on his or her profession which counts, it is the nature of the work, the time spent and the skill, care and responsibility involved. Assessors are chosen for their expertise in assessing a fair and reasonable reward for the work done by practitioners, not for their skill in determining the operational costs of a commercial enterprise. 22 In many cases, the possibility that an assessment on the usual basis might result in a profit has been disregarded... 77Significantly for present purposes, the provisions of the LP Act 1987 applying to the assessment conducted in this case were the same, in all material respects except one, as the equivalent provisions of the LP Act 2004. The CBA's application for assessment was made under section 202 of the 1987 Act. Subsections (1) and (2) of this section were in the same terms as their equivalents (subsections (1) and (2) of section 353) in the 2004 Act. Section 208F(1) and section 208G of the 1987 Act (both of which were reproduced in his Honour's judgment at 338 [15]) contained criteria for the assessment of party-party costs that now appear, with some variations, in subsections (1) and (2) respectively of section 364 of the 2004 Act. Sections 208H and 208I, which were the remaining provisions within Subdivision 3 (headed 'Party/party costs') of Division 6 of Part 11 of the 1987 Act, have been reproduced verbatim in sections 365 and 366 of the 2004 Act. 78The exception, which is important, is that the 1987 Act contained no separate concept of 'legal costs' such as is defined in section 4 of the LP Act 2004. Instead, the definition of 'costs' in the former Act, contained in section 3, was the same as is now found in section 302 of the latter Act. Section 3 stated: 'costs includes fees, charges, disbursements, expenses and remuneration.' 79What this analysis of the Hattersley case illustrates is that under the LP Act 1987 the amount of party/party costs payable under a costs order to a party represented by lawyers whom it employed could be the subject of an assessment by a costs assessor. It was treated as beyond dispute that such an assessment was within the range of tasks that could be referred to an assessor. The breadth of the definition of 'costs' in section 3 made this clear. On account of the absence of any competing concept of 'legal costs', comprising only costs paid or payable to a 'law practice', the reasoning leading to this result was straightforward. 80Furthermore, the references by Davies A-J to the existence of a 'traditional approach' to assessing such costs and to the confirmation of this approach in decisions spanning a long period of time provide support for the view that Parliament is unlikely to have intended, in the 2004 Act, to remove the assessment of such costs from the range of tasks performed by costs assessors. Its inclusion of section 367A in amending legislation of 2005 that came into operation concurrently with the 2004 Act itself may well have been prompted by the realisation that without any such amendment the new assessment provisions, being restricted to 'legal costs', would have had precisely that effect. 81As we view the matter, the interpretation of section 367A for which Mr Thawley contended, restricting its scope to the assessment of 'legal costs' only, would rule out the assessment of party/party costs when the successful party was represented by one or more in-house lawyers (as in Hattersley) or by any other lawyer or lawyers not falling within the definition of a 'law practice'. Such an interpretation is not expressly mandated by the terms of the legislation - in fact, we believe the contrary to be the case - and would produce an undesirable outcome in terms of policy. 82A passage supporting our view on this matter appears in another decision cited by Mr Latham. In Portale v Law Society of New South Wales (No 1) (2010) 10 DCLR (NSW) 194; [2010] NSWDC 59, the Law Society of New South Wales, having obtained in 2003 an order for costs in disciplinary proceedings brought against a solicitor in this Tribunal, applied in 2008 for these costs to be assessed. The solicitor applied for review of the assessment by a review panel. Following confirmation of the assessment by the panel, he appealed to the District Court under section 384 of the LP Act 2004, which permits appeals on questions of law. 83In the appeal, the first ground of appeal put forward by the solicitor was that the assessor and the review panel 'erred in law with regard to the definitions of "legal costs", "law practice" and "legal service" contained within s 4 of the Legal Profession Act 2004'. He maintained that the Law Society could not recover any costs because the costs that it claimed were not 'legal costs' within the definition of section 4 of this Act. This was the case, he said, because the Society was not itself a 'law practice' and in the Tribunal proceedings it had not been represented by a 'law practice'. 84Cogswell DCJ held first that the questions to be resolved were governed by the LP Act 2004, not the Act of 1987, even though the Tribunal's costs order had been made during 2003. His Honour then rejected the first ground of appeal in the following passage (at 197-198 [16 - 18]):- 16. The effect of Mr Portale's argument is this. Unless a party/party costs order is obtained by a party for whom a law practice acted then those party/party costs are not recoverable by that party. It would follow that institutions such as the Law Society and corporations - large or small - which employ their own lawyers to act for them in litigation, are precluded from recovering any party/party costs in that litigation. I would be surprised if the legislature intended to bring about such a radical change in the day to day conduct of litigation without making such a change unambiguously clear. 17. It seems to me that the definition "legal costs" in the 2004 Act attempts a generic definition of the kinds of payments that can be classified as "legal costs". It does this by adopting a very broad classification. Such costs are amounts of money which fall into one of two categories. One category is amounts which a law practice has actually charged a person or which a person has actually become liable to pay to a law practice. The other category comprises amounts which are of a kind which "may be charged" by, or which a person "may become liable to pay" to a law practice for the provision of legal services. Mr Portale argued that "may be charged" or "may become liable to pay" referred to a future event as distinct from the past event of having been charged or having become liable. I do not think the definition attempts to fix a point of time and look backwards and forwards. I think the definition attempts to define legal costs in a global way by reference to what a lawyer has actually charged for and what a lawyer is entitled to charge for. 18. Another way of describing the latter category is amounts of a kind which may be charged by a law practice or of a kind which a person may become liable to pay to a law practice. Such a reading of the definition would encompass both bills actually charged by a law practice to a client and party/party bills where the provision of legal services has not been made to the person receiving the bill but to someone else. The way of determining whether or not such a party/party bill is one for "legal costs" is to ask whether the amounts in the bill are amounts of a kind that "may be charged by a...law practice" or of a kind which "a person...may become liable to pay to a law practice for the provision of legal services". 85The solicitor's second ground of appeal was that the assessor and review panel erred in law in 'still applying Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333, an authority which has been specifically overridden by definitions of "legal practice" and "legal costs" within s 4 of the Legal Profession Act 2004'. Cogswell DCJ held at 198 [21] that this ground failed because, like the first ground, it was based on an erroneous view of the meaning of 'legal costs' in section 4 of the LP Act 2004. He added that in his opinion Commonwealth Bank of Australia v Hattersley was still good law and had been correctly applied in the costs assessment. 86It would appear from the reports of this case that the wider definition of 'costs' in section 302 of the LP Act 2004 and the terms of section 367A were not brought to his Honour's attention. Whether, being aware of these provisions, he would have dismissed the solicitor's appeal by reference to them rather than through the reasoning contained in paragraphs [17] and [18] is a matter of conjecture. We are bound to say, with respect, that in our opinion this reasoning relies on a somewhat strained interpretation of the definition of 'legal costs' in section 4. But his Honour's observation in the last sentence of paragraph [16] accords entirely with our views, as also does his opinion, expressed in paragraph [21], that Commonwealth Bank of Australia v Hattersley is still 'good law'. 87Two matters remain to be discussed in this section of our reasons. 88The first is the extent, if any, to which the services rendered to the Appellants by Byrons, in respect of which the Respondent is entitled to an amount by way of costs under the Costs Order, were or included 'legal services'. This issue arises because while the broad definition of 'costs' in section 302 does not contain any terms confining them to costs paid or payable for legal services, the wording of section 301, where the purposes of Part 3.2 are set out, suggests that where neither costs for 'legal services' nor 'legal costs' are involved to any significant extent, the provisions of the Part do not have a role to play. 89Mr Thawley maintained that the services rendered by Mr Eager were not 'legal services', even though he was at the time an Australian legal practitioner. This submission by Mr Thawley relied strongly on the considerations that the Appellants engaged Byrons, an accountancy firm - not Mr Eager - to represent them and that other employees of Byrons were also involved in fulfilling Byrons' obligations under its contract with the Appellants. 90In our opinion, however, the Respondent's evidence, described above at [29], as to the nature of the tasks performed by Mr Eager establishes clearly that in so far as he rendered services to the Appellants in his capacity as an employee of Byrons, they wholly or substantially comprised 'legal services'. They were indistinguishable from the services that one or more barristers and/or solicitors would normally provide to a client instituting and maintaining legal proceedings such as these. To quote from the definition of legal services in section 4, they constituted 'work done, or business transacted, in the ordinary course of legal practice'. 91In so ruling, we rely, as Mr Latham did in his submissions, on the judgment of Barr J in Law Society of New South Wales v Stephen Gary Spring and Another [2007] NSWSC 1273. In this case, the Law Society sought injunctive and declaratory relief against an individual, Mr Spring, and a company called Lolly Pops QVB Pty Ltd ('Lolly Pops'), of which he was the director. The ground of the Society's claim was that these two defendants contravened sections 14 and 15 of the LP Act 2004 by acting, in return for remuneration, for a party in proceedings within the Retail Leases Division of this Tribunal and by advertising their services as a 'retail lessee advocate and agent'. They acted in these ways even though Mr Spring was not an Australian legal practitioner and Lolly Pops was not an incorporated legal practice within the meaning of this Act. 92Section 14(1) states that a person who is not an Australian legal practitioner must not engage in 'legal practice' within this jurisdiction. Section 15(1) states that such persons must not represent or advertise that they entitled to engage in legal practice in this jurisdiction. So far as relevant, section 15(2) states that a director of a body corporate must not represent or advertise that the body corporate is entitled to engage in legal practice unless the body corporate is an incorporated legal practice or a complying community legal centre. But by virtue of sections 14(2) and 15(3), these provisions do not apply to 'legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth'. 93The Law Society's claim failed on the ground that section 71 of the ADT Act and section 77C of the Retail Leases Act 1994 provided authorisation for the conduct of Mr Spring and of Lolly Pops. Barr J explained his reasoning on this matter as follows, at [55] and [75]:- 55 The Administrative Decisions Tribunal Act and the Retail Leases Act are laws of New South Wales. S71 of the former Act authorises representation by an agent in proceedings before the Tribunal, subject to the power of the Tribunal in subs(2) to order that the parties may not be represented by an agent of a particular class for the purpose of making oral submissions to it. S77C of the latter Act provides, despite s71 of the former, that where proceedings concern a lease within the purview of the Act, the parties may appear in person or be represented by a lawyer or other agent, thereby removing the power of the Tribunal to make an order about representation under s71(2) of the former Act. A person who represents a party before the Tribunal engages in legal practice. So the Administrative Decisions Tribunal Act and the Retail Leases Act amount to a law under whose authority such an agent may engage in legal practice. By virtue of subs 14(2)(a) of the Legal Profession Act, subs 14(1) does not apply. 75 It follows that the work done by Mr Spring was done in accordance with an exception to the requirements of s14 Legal Profession Act and that there has been no breach of that section. By the proper concession of senior counsel for the Law Society, there has been no breach of s15 by reason of the advertisements on the ARLM website and no other breach of any provision of the Legal Profession Act. 94In the first costs decision, we referred to this case (see paragraphs [81] and [87]) in deciding that the costs awarded to the Appellants should include costs in respect of the fees paid or payable by them to Byrons for the work done by Mr Eager as their agent. 95In the present context, the relevant passages in Barr J's judgment are those in which he described the services rendered by Mr Spring to his client in the Tribunal proceedings. At [40] and [53], his Honour said:- 40 The work done comprised the preparation of an amended application and summons to produce, drafting correspondence to be sent to the solicitors for the other side, drafting and amending correspondence to be sent to the Tribunal, corresponding with solicitors and the Tribunal, drafting and amending affidavits, providing legal advice on costs, on statutory causes of action and on jurisdiction, advising how to proceed at the hearing and how to conduct it, advising on settlement and drafting submissions, as well as attending the Tribunal, appearing there and adducing evidence, including by cross-examination, and making oral argument and submissions. 53 The functions of advising on evidence, drafting and settling letters and affidavits and making oral and written submissions are, in actions before courts and tribunals, the stuff of barristers' and solicitors' work... As senior counsel for Mr Spring conceded, much of what Mr Spring did would be characterised as engaging in legal practice. It may be accepted that the work that Mr Spring did was legal practice as contemplated by ss14 and 15 of the Legal Profession Act. 96The work done by Mr Eager, an Australian legal practitioner at the relevant time, was indistinguishable in general terms from the work done by Mr Spring, who was not such a practitioner. If, as Barr J held, Mr Spring engaged in legal practice and therefore rendered 'legal services' (see the definition of 'legal services' in section 4, quoted above at [42]), so, a fortiori, did Mr Eager. 97The final matter requiring discussion here is whether it is significant that the fees charged to the Appellants were those of an accountancy firm, Byrons, not of the agent, Mr Eager, who represented them in the proceedings and whom we have just held to have rendered 'legal services' to them. In this context, Mr Thawley relied on the fact that a number of the services provided by Byrons to the Appellants involved activity by employees of Byrons who were not Australian legal practitioners. Since Byrons was not a 'law practice', he argued, it must follow from this feature of the situation that Byrons did not render 'legal services'. 98In our opinion, there are two answers to this contention. 99First, the Costs Order did not stipulate that the Respondent should pay to the Appellants the actual amount of 'the fees paid or payable by the Appellants to Byrons'. It stipulated instead that an amount of costs 'in respect of' these fees should be paid. Both the direction that, in our opinion, we may give under section 353(2) of the LP Act for this amount to be assessed and the costs assessor's determination of a 'fair and reasonable amount' under section 367A would be applicable to an amount of costs 'in respect of' Byrons' fees, not simply to those fees. 100Secondly, as Mr Latham submitted, the fees or costs generated by the work of employees other than Mr Eager are quite apt to be assessed as disbursements. To do so would be to treat them in the same way as work performed by non-lawyers within a law practice is treated when assessing the amount that should be paid on account of party/party costs under the provisions applicable to 'legal costs' - i.e., sections 364 and (if relevant) 365 of the LP Act 2004. 101For the foregoing reasons, we conclude that the assessment of the amount of costs to be paid in respect of fees paid or payable by the Appellants to Byrons, pursuant to Order 3(a) of the Costs Order, falls within the range of assessments that may be undertaken by a costs assessor under Division 11 of Part 3.2 of the LP Act 2004.

The appropriateness of the LP Act's regime of costs assessment 102Because we have the power, under section 88(2) of the ADT Act, to order assessment other than under the LP Act 2004, the question whether some alternative approach to assessment would be more appropriate in this case requires consideration. 103There are actually two distinct issues within this question. The first is whether the basis of the assessment to be undertaken should be, to adopt the formulation in section 88(2)(b) of the ADT Act), 'a basis set out in' Division 11 of Part 3.2 of the LP Act or 'some other basis'. The second is as to the procedure to be adopted in obtaining an assessment. 104With regard to the first and most important of these issues, we believe the following to be factors of major importance. The costs that we are considering are 'costs in relation to proceedings' before the Tribunal (see ADT Act, section 88(1A)). The proceedings with which we are dealing, while lengthy and protracted, did not have any unusual feature suggesting that costs assessment under the LP Act 2004 would be inappropriate, other than the fact that the Appellants employed an accountancy firm (Byrons), rather than a law practice, to conduct their case. The spreadsheet and other evidentiary material tendered by the Appellants at the hearing before us reveal that a very high component of the work undertaken by Byrons for the purposes of the proceedings was performed by Mr Eager, a solicitor holding a practising certificate. There is nothing in this material, or in any other evidence put before us, to suggest that the tasks carried out by Mr Eager differed in any material respect from the tasks normally performed by barristers and/or solicitors pursuant to instructions from clients to represent them in civil proceedings. 105Mr Thawley in his submissions referred to the contribution shown in the spreadsheet to have been made by Mr Dickie, an accountant and a member of Byrons. This was significant, but not on a scale comparable to that of Mr Eager. Mr Dickie also gave evidence in the first instance proceedings before the Tribunal (see B & L Linings Pty Ltd and L & B Linings Pty Ltd v Chief Commissioner of State Revenue [2005] NSWADT 129 at [34 - 43]). Given the nature of this case, it is not surprising that accounting expertise such as he could provide should have been brought to bear in the preparation and presentation of the Appellants' case. But there is nothing before us to suggest that Mr Dickie's contribution constituted an unusual feature indicating that costs assessment under the LP Act 2004, which would focus primarily on the legal services rendered by Mr Eager, would be inappropriate. 106The disputed item of costs is costs 'in respect of' the fees paid or payable to Byrons. In their submissions to us, the parties were in agreement that criteria importing the values of 'fairness' and 'reasonableness' should be applied. Mr Latham argued for the same criteria as appear in subsections (1) and (2) of section 364 of the LP Act 2004 (see [54] above). In submissions in reply, Mr Thawley agreed that the criteria in subsection (1) were appropriate, but not those in subsection (2). It is well recognised that in applying criteria of this nature to the assessment of party/party costs under the LP Act 2004 and its predecessors, both the amount that the successful party is required to pay to its lawyers for costs and disbursements and an amount that can be fairly regarded as reasonable to obtain from the unsuccessful party are highly relevant factors. If the former amount is exorbitant, the unsuccessful party can legitimately claim that it be scaled down to or towards the latter amount. When the latter amount is the greater, the 'indemnity principle' to which Davies A-J referred in Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 (see [75] above) may be applicable. 107Assessment of party/party costs under the LP Act 2004 and its predecessors is an expert process, developed over many years, for resolving issues such as these. By contrast, the uncontradicted evidence adduced by the Respondent as to the assessment of accountants' fees by relevant professional bodies (see [30] above) provides no reason to believe that any such assessment would be informed by the expertise and experience required to take proper account of these particular considerations, specific as they are to the particular exercise of assessing party/party costs in legal proceedings. 108As already emphasised, the disputed item of costs is not defined in the Costs Order as simply the 'fees paid or payable by the Appellants to Byrons'. It is instead an amount 'in respect of' those fees. We are satisfied that for the reasons that we have just outlined, assessment of the costs thus defined under Division 11 of the LP Act 2004, utilising the criterion of 'fair and reasonable' stated in section 367A, is the most appropriate basis for determining such an amount. 109In view of this conclusion on the first of the two issues defined above, discussion of the second issue - that of the procedure to be adopted - can be relatively brief. 110In their submissions, the parties canvassed two alternative procedures for assessment. Within each of these, some variants were suggested. 111First, Mr Thawley submitted that the Tribunal should itself determine the disputed item of costs, with the rider that if the Tribunal thought fit, it could obtain evidence on one or more aspects of the assessment from an independent expert appointed by it. Mr Thawley indicated that the Appellants had a 'slight preference' for this approach because it was likely to be more economical than any other and the assessment would remain within the control of the Tribunal. He referred us to a number of instances of legislation - for example, section 111 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) - empowering a tribunal to fix an amount payable under a costs order. 112Mr Latham expressed opposition to this proposal, describing it as 'clumsy'. He drew our attention to a dictum of the Legal Services Division of the Tribunal in Legal Services Commissioner v Galitsky (No 2) [2008] NSWADT 153 at [23], to the effect that the Tribunal should not adopt the role of a costs assessor because it does not possess any expertise or experience in determining the quantum of fair and reasonable costs. 113While adhering to his primary argument that assessment of the disputed item of costs should be conducted by an assessor appointed under Division 11 of Part 3.2 of the LP Act 2004, Mr Latham observed that if instead the Tribunal chose to make its own determination, it could call 'an appropriate costs assessor' as a witness. He or she could be a single expert agreed by the parties or a witness called by the Tribunal of its own motion under section 83 of the ADT Act. The Tribunal could direct the assessor to write a report, permit cross-examination on the report and submissions by the parties, then reach its own decision. 114In reply, Mr Thawley suggested that the choice of an expert witness could be made by the Tribunal from lists of (for example) three candidates submitted by the parties. 115Our view on assessment by the Tribunal is as follows. We recognise that the Tribunal may and in practice does determine the amounts payable pursuant to costs orders made under section 88 of the ADT Act. But it only takes this step when the determination is comparatively simple. In proceedings that have been as lengthy and as complex as these proceedings, it does not purport to have the necessary expertise. 116Accordingly, assessment by the Tribunal could only take place if it had the benefit of expert assistance, following a procedure such as the parties outlined in their submissions. But the ultimate decision as to how much should be paid would still remain with the Tribunal. The observation that we have quoted from Galitsky would still, in our opinion, be pertinent. 117The second of the two alternative approaches put before us was that the Tribunal should appoint an assessor, whose determination of the amount payable would be final and would take effect as an order of the Tribunal. Mr Thawley advocated this approach, emphasising that the assessor should have the expertise appropriate for determining a fair and reasonable amount for the costs charged by an accountancy firm, as opposed to a law practice. Mr Latham did not oppose this procedure, as a less desirable alternative to assessment by an assessor appointed under the LP Act 2004, but maintained his claim that the principles of assessment set out in this Act should be applied. 118In the light of our decision that the basis of assessment of the disputed item of costs should be the basis set out in section 367A of the LP Act 2004, and since this Act, in section 353(2), prescribes a mechanism for the Tribunal to refer this item for assessment, we see no advantage in departing from the standard procedure applying to these circumstances. The assessment should be by a costs assessor appointed under Division 11 of Part 3.2 of this Act.

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