(f) the outcome of the matter.
16 It is to be noted that s 208F(1)(b) uses the term "costs for the work" and not "costs of the work". Neither that provision nor any of the paragraphs of s 208G contain any element which suggests that a distinction should be drawn between the work of an independent solicitor and comparable work performed by a solicitor employed by a corporation.
17 The general appropriateness of treating the work of an employed lawyer on the same basis as that of an independent lawyer has been accepted since the decision in The Attorney-General v Shillibeer (1849) 4 Ex 606, (1849) 154 ER 1356. In that case, the question was whether the Solicitor of Excise, who was paid a fixed yearly salary, was entitled to the costs of an ordinary solicitor on a taxation as between party and party. Baron Parke, in delivering the judgment of the Exchequer Court, held that the Crown was entitled to the ordinary costs of suit as between subject and subject. As one ground for adopting this view, his Lordship pointed to the difficulty of determining the cost of one suit. As the Solicitor was entitled to a yearly salary, his activities in relation to other suits would have to be taken into account, if apportionment was required.
18 Similarly, in Raymond v Lakeman (1865) 34 Beav 584, (1865) 55 ER 761, Sir John Romilly held that salaried solicitors employed by a corporation were entitled to recover costs on the ordinary basis. In Galloway v Corporation of London (1867) LR 4 Eq 90, Sir W Page Wood VC held that the Corporation of London was entitled to have its costs taxed in the usual way notwithstanding that it employed its own solicitor.
19 Counsel for the Attorney General, Mr Leeming, has referred me to many Australian cases which have applied the same principle, including Lenthall v Hillson [1933] SASR 31, Nolan v George [1959] QdR 315, Blackall v Trotter (No. 1) [1969] VR 939, McCullum v Ifield (1969) 2 NSWR 329 and Bank of Western Australia Ltd v O'Neill [1999] WASC 10. In McCullum v Ifield, the Government Insurance Office was held to be entitled to recover party and party costs on the ordinary basis notwithstanding that its solicitor was employed by it. Taylor J said, at p 528, "It has been held that a party who employs a solicitor who is paid a salary by way of remuneration may nevertheless recover full costs on a party and party basis".
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. Section 48F of the Legal Profession Act makes this perfectly clear. It provides that the restrictions which exist upon the sharing of the receipts do not apply to any business conducted by a practitioner on behalf of his or her employer if the business concerns a proceeding or transaction to which the employer or a related body is a party.
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. Thus, in The Attorney-General v Shillibeer, Baron Parke said, at p 1359, "We think that the costs of this case are to be taxed on the same principle as if the Crown solicitor himself were conducting each suit at the expense of the Crown in the ordinary way". As I have mentioned above, his Lordship considered it impractical to apportion an annual salary of the solicitor of Excise so as to arrive at a cost of the particular suit.
23 In Bank of Western Australia Ltd v O'Neill, White J similarly disregarded the possibility of a profit and held, "The bill of costs should have been taxed on the same basis as a bill of costs rendered by a certificated practitioner who is not the employee of the party in whose favour the costs have been awarded". In Lenthall v Hillson, Angas Parsons and Napier JJ placed no limitation on the order as to costs which they made and, at p 36, expressed the following point:-
"We think that the principle that costs are given as an indemnity can be carried too far. It comes from the unwritten law, and depends upon considerations of public policy and convenience, and it follows that it must be reasonably understood and applied".
24 In some cases it has been said that it is for the party objecting to the allowance of the usual costs to prove that the allowance will give more than an indemnity. In Henderson v Merthyr Tydfil Urban District Council [1900] 1 QB 434, Channell J said at p 437:-
"It is for the party objecting to the allowance of the usual costs under such circumstances to shew (sic) that the allowance will give more than an indemnity, and in all ordinary cases, such as the present, it is impossible for him to shew (sic) it. In some cases, however, he might be able to do so."
25 However, in Re Eastwood (deceased); Lloyds Bank Ltd v Eastwood, the Court did not lay down any point as to onus of proof, merely limiting itself to the comment that, "There may be special cases in which it appears reasonably plain that that principle [of indemnity] will be infringed if the method of taxation appropriate to an independent solicitor's bill is entirely applied".
26 Although there may be cases where it would be open to an assessor to investigate the issue of the costs of the employing corporation, so as to ensure that the principle of indemnity is not infringed, this task is not one which should be undertaken without a good and sufficient cause. The principle of indemnity is one which must be applied flexibly and reasonably. It is not one of the factors specified in either s 208F or s 208G. There are no facts in the present case which show any cause for undertaking the task requested or directed by the Assessor.
27 I need hardly mention that, in the present case, the task of assessing the cost of the litigation to the CBA would be very difficult, for the Local Court proceedings were only a very small part of the activities of the corporation. First, there would be the problem of allocating direct labour costs as between the Local Court proceedings and other work undertaken by the relevant legal officers. Then there would be the problem of allocating the direct costs of items such as accommodation, plant and consumables. The costs of maintenance, cleaning and the like would have to be apportioned. Then it would be necessary to allocate and apportion the indirect costs, including the overheads which are inherent in the carrying on of the operations of the CBA. It would be a long and expensive task. If cost-accountants and actuaries became involved, the expense of the exercise would be likely to exceed the party and party costs otherwise to be awarded for the Local Court proceedings. One of the reasons why the practice embraced in the cases I have mentioned has been adopted is because any other approach would be likely to introduce into the taxation of costs complexities which are unwarranted.
28 For these reasons, I am satisfied that the Assessor has approached his task on the wrong basis.
29 Mr R E Quickenden of counsel, the Amicus Curiae, has submitted that, even if it is found that the Assessor erred in his approach, the Court ought, in the exercise of its discretion, to refuse to make an order.
30 I agree with Mr Quickenden that, in general, it is thoroughly undesirable to engage in judicial review of proceedings which are at an interlocutory stage. In many fields, courts have made it plain how undesirable this is. See Sankey v Whitlam (1978) 142 CLR 1 at 25-26 and Director-General of Social Services v Chaney (1980) 31 ALR 571. In Overton Investments Pty Ltd v Carnegie [2000] NSWSC 581, I discussed some of the problems involved in reviewing proceedings which have not been heard and determined. The powers conferred on the Court by its inherent jurisdiction and ss 23 and 75 of the Supreme Court Act should not be exercised lightly so as to overcome the restrictions which exist on the ambit of the prerogative writs.
31 However, I am satisfied that, in the present case, the request or direction given by the Assessor would, if complied with, have led to an assessment of the costs on a wrong basis and that fulfilment of the request or direction would have involved the CBA in a very great deal of unnecessary work and expense. In the circumstances, I think it is appropriate to make an order. See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-582 and Attorney General for New South Wales v Smits (1998) 45 NSWLR 521.
32 I shall declare that the Assessor is not entitled to make the request or direction set out in item (1) of his letter of 17 September 1999. I shall declare that the Assessor is entitled, if he so chooses, to request or direct that the Commonwealth Bank of Australia redraw the bill of costs so that it claims, inter alia, allowances for time spent.
33 Counsel for the CBA did not seek an order as to costs.
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