Coshott v Barry

The LPA

1. The matters in respect of which the Solicitors sought to recover costs were ones in which they received instructions prior to 1 October 2005. Accordingly, Part 11 (Legal Fees and Other Costs) of the LPA applied to their assessment. [9]
2. The Costs Assessor was required to determine the application for assessment by confirming the bill of costs or, if satisfied that the disputed costs were unfair or unreasonable, by substituting for the amount of the costs an amount that, in his or her opinion, was a fair and reasonable amount. [10] The Costs Assessor was empowered in an assessment to determine that interest was not payable on the amount of costs assessed or on any part of that amount and also to determine the rate of interest (not exceeding the rate referred to in s 190 (4)), [11] but this did not authorise the giving of interest on interest. [12]
3. Section 208J of the LPA provided: "208J Certificate as to determination (1) On making a determination, a Costs Assessor is to issue to each party a certificate that sets out the determination. (1A) A Costs Assessor may issue more than one certificate in relation to an application for costs assessment. Such certificates may be issued at the same time or at different stages of the assessment process. (2) In the case of an amount of costs that has been paid, the amount (if any) by which the amount paid exceeds the amount specified in any such certificate may be recovered as a debt in a court of competent jurisdiction. (3) In the case of an amount of costs that has not been paid, the certificate is, on the filing of the certificate in the office or registry of a court having jurisdiction to order the payment of that amount of money and with no further action, taken to be a judgment of that court for the amount of unpaid costs, and the rate of any interest payable in respect of that amount of costs is the rate of interest in the court in which the certificate is filed. (4) For this purpose, the amount of unpaid costs does not include the costs incurred by a Costs Assessor in the course of a costs assessment. (4A) To avoid any doubt, this section applies to or in respect of both the assessment of costs referred to in Subdivision 2 of this Division (practitioner/client costs) and the assessment of costs referred to in Subdivision 3 of this Division (party/party costs) …" (Emphasis added.)
4. The scheme for which s 208J(3) provides is not an exhaustive mechanism for enforcement of the obligation of a client to pay to a solicitor the unpaid amount of costs. Thus, apart from taking the step of filing a certificate in the office or registry of a court, the effect of which is that there is to be taken to be a judgment of that court for the amount of unpaid costs, the solicitor would also be entitled to sue the client under the general law for payment of the unpaid amount of costs shown in the Costs Assessor's certificate. In that regard, LPA, s 208K provides that a Costs Assessor's determination of an application is binding on all parties to the application and no appeal or other review lies in respect of the determination. Thus, in proceedings brought by a solicitor for recovery of unpaid costs, a certificate would be conclusive evidence of the amount of costs attributable to the work done by the solicitor.
5. "Bill of costs" in LPA, Pt 11, s 173(1) "means a bill of costs for providing legal services". The reference to "costs" in s 173(1) directs the reader to the definition in LPA, s 3, where "costs" are defined to "include fees, charges, disbursements, expenses and remuneration".
6. It is also relevant to note the terms of LPA, s 190 which appeared in LPA Pt 11, Div 4 ("Interest, security for costs and bills of costs") and, at the material time, provided: "190 Interest on outstanding costs (1) A barrister or solicitor may charge interest on the unpaid costs for legal services provided by the barrister or solicitor, if the costs are unpaid 30 days or more after the barrister or solicitor has given a bill of costs for those services in accordance with this Division. (2) A barrister or solicitor may not charge interest on the unpaid costs for legal services unless the bill of costs for those services contains a statement that interest is payable and of the rate of interest. (3) A barrister or solicitor may also charge interest on the unpaid costs for legal services in accordance with a costs agreement. (4) A barrister or solicitor may not charge interest under this section or under a costs agreement at a rate that exceeds: (a) except as provided by paragraph (b) - the rate prescribed under the Supreme Court Act 1970 in respect of unpaid judgments of the Supreme Court, or (b) the rate prescribed by the regulations."
7. Proceedings for the recovery of costs by a barrister or solicitor for providing legal services could not be commenced or maintained against any person unless at least 30 days had passed since a bill for those costs was given to the person in accordance with LPA, Pt 11, Div 4. [13]

The Bankruptcy Act

1. Section 58(1) of the Bankruptcy Act provides that, where a debtor becomes a bankrupt, the property of the bankrupt, not being after acquired property, vests forthwith in the Official Trustee or other trustee of the estate of the bankrupt. Section 58(3) provides that, after a debtor has become a bankrupt, it is not competent for a creditor: "(a) to enforce any remedy against the person or the property of the bankrupt in respect of a provable debt; or (b) except with the leave of the Court, … commence any legal proceedings in respect of a provable debt or take any fresh step in such a proceeding."
2. It was common ground that no leave had been given to the Solicitors to file either certificate of determination.
3. "Provable debt" means a debt or liability that is provable in bankruptcy. [14] Section 82 specifies what debts are provable in bankruptcy.
4. Section 58(3) is complemented by s 60. Under s 60(1)(b), the Court may, at any time after the presentation of a bankruptcy petition, stay any legal process against the personal property of the debtor in respect of the non-payment of a provable debt. Under s 62, where a bankrupt is a contractor in respect of a contract jointly with another person or other persons, that person or those persons may sue or be sued in respect of the contract without the joinder of the bankrupt.
5. Under s 82(1), all debts and liabilities, present or future, certain or contingent, to which a bankrupt is subject at the date of the bankruptcy, or to which he or she may become subject before his or her discharge by reason of an obligation incurred before the date of the bankruptcy, are provable in the bankruptcy.

Civil Procedure Act

1. Where a form is prescribed by, or approved under, an Act or statutory rule, strict compliance with the form is not necessary, but rather substantial compliance is sufficient; however if a form prescribed by, or approved under, an Act or instrument requires the form to be completed in a specified manner, or requires specified information to be included in, attached to or furnished with the form, the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information. [15] Mrs Coshott did not contend that the alterations that the Solicitors effected to the Form 45 certificates meant they were not valid means by which to file the certificates of determination. That no doubt recognised the fact, at least, that departures from approved forms may be necessary from time to time to accommodate the proper application of the rules to particular situations. [16]
2. An adjudication or award, a certificate of which may be filed in the court under any other Act, "may not be enforced until it has been entered in accordance with" the UCPR. [17]
3. Part 4 of the UCPR concerns "Preparation and Filing of Documents". It applies to and in respect of any document that is prepared by or on behalf of a person (whether or not a party) for use in proceedings. [18] When an originating process is accepted for filing, a case number or other unique identifier is to be assigned to the proceedings commenced by the process and endorsed on the process. [19]
4. UCPR, Pt 36 deals with "Judgments and Orders". In November 2008, when the solicitors sought to enforce the certificates, it provided that a cost assessor's certificate could be filed in the proceedings to which it related, or in fresh proceedings, whether in the same court or another court. [20] If, in relation to proceedings in which a cost assessor's certificate was filed, there was also filed an affidavit sworn not earlier than 14 days before it was filed, stating, if the affidavit was filed with the certificate, how much of the amount of costs included in the certificate had not been paid, and otherwise, the amount of the costs included in the certificate that, at the time the certificate was filed, had not been paid, then the registrar was empowered to enter judgment for the amount of the costs that had not been paid, without a direction of the court or request of a party. [21]
5. Any judgment of a court is to be entered. [22] Unless the court otherwise orders, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. [23] A reference to a judgment or order of the court in UCPR r 36.11 includes a reference to any judgment or determination, adjudication or award that has been filed or registered in the court, or of which a certificate has been filed or registered in the court, as referred to in CPA, s 133(2). [24]
6. If in any proceedings a registrar gives a certificate, makes an order or decision or does any other act, the court may, on application by any party, review the certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. [25] Such an application must be made within 28 days of the certificate or other act, but that time may be extended. [26]

District Court

1. On 25 October 2013, the Solicitors filed a notice of motion in the District Court seeking orders setting aside the judgment against Mr Coshott and, pursuant to UCPR r 49.19, review of the decision of the Registrar of the District Court not to enter judgment for interest. On 19 December 2013, Mr and Mrs Coshott filed a notice of motion in the District Court seeking to have the registration of the First Certificate set aside. On 31 January 2014, the Solicitors filed an amended notice of motion in the District Court seeking removal of Mr Coshott as a party pursuant to UCPR r 6.29, and various orders (pursuant to UCPR rr 36.11, 36.15, 36.17 and 49.19) to the intent that the record of the judgment be amended to include the interest component.
2. The motions were heard by Taylor DCJ. Following the bankruptcy of Mr Coshott, he could no longer prosecute the motion of 19 December 2013, since that was a matter for his trustee in bankruptcy. Accordingly, Mrs Coshott alone moved on that motion. On 13 March 2014, his Honour ordered that Mrs Coshott's motion of 19 December 2013 be dismissed, and on the Solicitors' motion, ordered that Mr Coshott be removed as a party to the proceedings in the District Court. On 2 April 2014, his Honour directed the entry of judgment for the Solicitors against Mrs Coshott in the sum of $37,528.84 for interest (in addition to the already recorded judgment for the amount of the certified costs).
3. In his first decision, Taylor DCJ summarised the issues in the case as concerning "the effect on a costs determination of the bankruptcy of one of two respondents after the [First Certificate] was issued but before it was registered, and the recovery by solicitors of interest on costs up to the date of determination of the costs assessment." [27]
4. Taylor DCJ held that the filing of the First Certificate fell within the proscription in s 58(3)(b) of the Bankruptcy Act as it was "simultaneously both the commencement and conclusion of the proceedings, obtaining a file number and a judgment in the one action". His Honour added that "[e]ntering judgment was traditionally a step taken by a party and constitutes a fresh step (see Doran v Isaacs (1912) 12 SR (NSW) 699, ANZ Banking Group Ltd v Computer Plus [1992] 1 VR 607 at 608)". [28]
5. Accordingly, his Honour held that the filing of the First Certificate was "to commence [a] legal proceeding" within the meaning of s 58(3)(b). [29]
6. However, his Honour also held that filing the First Certificate against both Mr and Mrs Coshott, at the time the former was bankrupt, was not fatal to the judgment against Mrs Coshott, as proceedings were not defeated because of the wrongful joinder [30] and the error could be cured by ordering Mr Coshott's removal as a party to the proceedings. [31] Once Mr Coshott was removed as a party, he was not a party to the deemed judgment and the contravention of s 58(3)(b) of the Bankruptcy Act had been remedied. [32]
7. His Honour rejected an argument that the Solicitors advanced that Mrs Coshott was estopped from maintaining a claim to set aside the registration of the certificate by reason of the judgment in Coshott v Barry & Anor [2012] NSWSC 850 ("Coshott SC") (which we discuss below), on the basis that the claim she advanced before him, the bankruptcy of Mr Coshott, had not been ventilated in those proceedings. [33]
8. On the interest issue, his Honour rejected Mrs Coshott's submission that the Costs Assessor was empowered to determine the amount of interest and include it in the certificate. His Honour held that while the assessor had purported to determine that interest was payable and the interest rate in reliance on LPA, s 208E, that section empowered an assessor only to disallow a claim for interest in whole or in part and to determine the rate of interest, and that a certificate filed under s 208J(3) was deemed to be a judgment only "for the amount of unpaid costs", not including interest. [34]
9. Had his Honour been of the view that the Costs Assessor was empowered to award interest, his Honour would have been disinclined to accept Mrs Coshott's submission that the matter should return to the Costs Assessor and if he resisted awarding interest (as he had) the appropriate remedy was in the nature of prerogative relief. In his Honour's view, it would have been open to the Court to vary the deemed judgment under UCPR r 36.16(3) to include interest. [35]
10. On the basis that, as his Honour had held, the Costs Assessor could not award interest, his Honour held that by filing the Form 45 with the First Certificate and a supporting affidavit which quantified the interest said to be payable, the Solicitors (albeit irregularly) had invoked the Court's general jurisdiction in respect of money claims, pursuant to which they were entitled to judgment for the amount of interest (subject to waiving the irregularity and dispensing with certain rules of court, and after affording Mrs Coshott an opportunity to be heard). [36]
11. Subsequently, in Barry DC2, having afforded Mrs Coshott an opportunity to put on evidence and make further submissions as to why the amount specified should not be awarded as interest, his Honour rejected Mrs Coshott's contentions that he should not award the Solicitors interest and gave judgment for the Solicitors for $37,528.84, comprising $24,132.52 being interest from 30 days after deemed service of the bill of costs until the date of the certificate, plus $10,396.32 pre-judgment interest from 1 January 2009 under Civil Procedure Act, s 100 ("Interest up to judgment"). [37] His Honour also ordered that Mrs Coshott pay 90 per cent of the Solicitors' costs of the notice of motion. [38]
12. While Mrs Coshott also challenges that judgment, she does not challenge the quantification of the interest claimed or the conclusion that there was sufficient compliance with s 190, but only as a consequence of her challenge to the earlier judgment that a claim for interest was validly instituted by the Form 45.

Local Court

1. The Local Court proceedings took a similar procedural course to those in the District Court.
2. On 28 October 2013, the Solicitors filed a notice of motion in the Local Court seeking orders setting aside the judgment against Mr Coshott and review of the decision of the Registrar of the Local Court not to enter judgment for interest. On 6 January 2014, Mr and Mrs Coshott filed a notice of motion in the Local Court seeking to have the registration of the Second Certificate set aside. On 23 January 2014, the Solicitors filed an amended notice of motion in the Local Court seeking removal of Mr Coshott as a party pursuant to UCPR r 6.29 and orders having the effect of entering judgment which included interest on the unpaid costs.
3. The motions in the Local Court were heard by Bradd LCM. As was the case in the District Court, following the bankruptcy of Mr Coshott, he could no longer prosecute the motion of 6 January 2014. Accordingly, again, Mrs Coshott alone moved on that motion.
4. Magistrate Bradd held that although the Solicitors could not enforce the judgment against Mr Coshott, by virtue of s 58(3)(a), the effect of s 62 of the Bankruptcy Act was that they could enforce it against his joint debtor, Mrs Coshott. His Honour also held that by reason of UCPR r 6.30(1) (proceedings do not abate as a result of a person's bankruptcy if a cause of action in the proceedings survives), the Solicitors could enforce the judgment without the removal of Mr Coshott as a party. [39] Nevertheless, his Honour ultimately made an order removing Mr Coshott as a party to the proceedings. [40]
5. On the interest issue, Bradd LCM held that upon filing the Second Certificate the Solicitors were entitled to interest on the basis stated in the Costs Assessor's note as well as the assessed costs. As no amount of interest had been recorded by the Court, the judgment had not been entered, the record made in the Court's computerised records system had no legal effect, and the Court had power to correct its record. [41] His Honour ordered that the judgment be entered for enforcement against Mrs Coshott in the sum of $41,099.84 with effect from 11 November 2008 (being the date on which the Form 45 was filed), being a sum that included interest in accordance with the Assessor's determination up to the date of filing. [42]

Supreme Court proceedings

1. As we have said, other proceedings between the parties appear to have occupied some of the years between the giving of the bills of costs and the lower court proceedings. Relevant for present purposes is Coshott SC, on which the Solicitors rely to contend that Mrs Coshott is estopped from agitating the bankruptcy question.
2. In those proceedings, Mrs Coshott filed a summons in the Supreme Court (the "Supreme Court summons") seeking declarations and orders in relation to 6 costs assessments that the Solicitors had obtained in relation to bills of costs given to Mr and Mrs Coshott - including the subject assessments. Buddin J directed that part of the relief claimed in that summons proceed by way of a separate determination pursuant to UCPR r 28.2.
3. In the separate determination hearing, Mrs Coshott sought, relevantly, prerogative relief to prevent the Solicitors enforcing the First and Second Certificates and the deemed judgments that arose upon their being filed in the relevant court, on the basis that the Solicitors' causes of action in respect of each Certificate were statute-barred. McCallum J held that it was unnecessary to determine that issue as it was common ground that the two certificates were filed so as to take effect as judgments within six years of the date on which the Solicitors' cause of action first accrued and, accordingly, the two judgments were properly obtained and were not liable to be set aside. [43]
4. After McCallum J determined the separate question, Mrs Coshott pursued an order she had sought in the Supreme Court summons to restrain the Solicitors from enforcing the three costs judgments made in the Local and District Courts, pending the final determination of the Supreme Court proceedings. Her Honour determined that that stay should only be granted on condition that Mrs Coshott pay the disputed amount into Court. [44]
5. Finally, the balance of the Supreme Court summons came before Adams J for determination on 20 November 2013. On that occasion, Mrs Coshott sought to have the hearing date vacated and also to have the proceedings in the District Court and the Local Court transferred to the Supreme Court to be heard together with the Supreme Court proceedings. The Supreme Court summons had been amended since the separate determination hearing before McCallum J to add prayer for relief 2A, "that the 'judgments' entered upon registration of Certificates of Determination … in the Local Court and the District Court be set aside or permanently stayed as having been entered irregularly, illegally, or against good faith (UCPR rr 36.15, 36.16 and the Court's inherent jurisdiction)."
6. The grounds relied upon to support that prayer for relief were that the "judgments" were irregular and in breach of LPA s 208J "as they were entered for amounts which exceeded the amount of the unpaid costs and included costs of the assessment" and were in breach of s 58(3) of the Bankruptcy Act as they were entered after the date of Mr Coshott's bankruptcy and, too, because the amounts also included interest for periods prior to the date of issue of the Certificates of Determination in breach of the Legal Profession Act, the Civil Procedure Act and the UCPR.
7. The adjournment application was advanced on the basis that Mrs Coshott could not succeed on the basis of the material before the Court at that stage but, on further examination, further material might become available to enable her to proceed. Counsel who appeared for Mrs Coshott submitted, apparently in relation to the two judgments the subject of these proceedings, that the issue would be that those judgments were entered against Mr and Mrs Coshott at the time when Mr Coshott was an undischarged bankrupt and, accordingly, contrary to the Bankruptcy Act. He noted that the Solicitors had raised issues about Anshun estoppel and res judicata.
8. At the time the proceedings were before Adams J, the Solicitors had filed their notices of motion in each of the District and Local Courts seeking to set aside the judgments entered against Mr Coshott.
9. Adams J refused the application for an adjournment and, too, the application to transfer the District Court and Local Court proceedings into the Supreme Court. Following that ruling, Mrs Coshott sought an order dismissing the proceedings pursuant to UCPR r 29.8(1). His Honour acceded to that application.
10. The dismissal of the Supreme Court summons did not prevent Mrs Coshott from bringing fresh proceedings or claiming the same relief in fresh proceedings, save to the extent there had been a determination on the merits in the proceedings. [45]

Court of Appeal proceedings

1. On 10 April 2014, Mrs Coshott filed a notice of appeal in the Court of Appeal, purporting to appeal (as of right) from the orders made by Taylor DCJ on 13 March 2014 and 2 April 2014 and from the orders made by Bradd LCM on 20 March 2014. The notice of appeal asked that the orders of both courts be set aside and that the filing of the First and Second Certificates and the entry of judgment in both courts be set aside.
2. An affidavit by Mrs Coshott's solicitor sworn on 10 April 2014 baldly asserted that the amount "directly or indirectly involved" in the decisions exceeded $100,000. The affidavit did not comply with UCPR r 51.22 as it failed to provide any evidentiary basis for that assertion. [46] Clearly, neither the orders of Taylor DCJ or of Bradd LCM involved amounts exceeding $100,000.
3. Further, it was highly irregular to file one notice of appeal from orders made in different courts, notwithstanding that similar issues may have been raised. Clearly again, leave to appeal would be required in relation to the District Court orders. [47] Leave would not be required in relation to the Local Court orders if the appeal were limited to a question of law. [48] However, any appeal from the Local Court would lie to the Common Law Division and not to the Court of Appeal. [49]
4. At the commencement of the hearing, Mr Brabazon said that Mrs Coshott no longer pressed the notice of appeal in relation to the District Court proceedings.
5. On 23 July 2014, Mrs Coshott filed a summons in this Court seeking leave to appeal from the orders made by Bradd LCM on 20 March 2014, so far as leave may be required, and an extension of time for seeking leave to appeal. She also sought an order that the summons and the appeal be heard together pursuant to s 51 of the Supreme Court Act.
6. Also on 23 July 2014, Mrs Coshott filed a summons in this Court seeking judicial review of the orders made by Taylor DCJ on 13 March 2014 and 2 April 2014 and of the orders made by Bradd LCM on 20 March 2014 (the "Judicial Review Summons"). However, at the commencement of the hearing, Mr Brabazon confined Mrs Coshott's claims, in so far as they affect the orders of the Local Court, to the application for leave to appeal and the draft amended notice of appeal.
7. In the Judicial Review Summons, Mrs Coshott sought an extension of time for filing the summons, that Taylor DCJ's orders in both judgments be set aside, that the filing of the First Certificate in the District Court be set aside and that entry of judgment on the record of the District Court in favour of the Solicitors against Mrs Coshott be set aside.
8. In both the Judicial Review Summons and the draft amended notice of appeal, Mrs Coshott asserted that the courts below had erred in declining to set aside the filing of each certificate in circumstances where its filing was prohibited by s 58 of the Bankruptcy Act and no leave of the Court referred to in that provision had been obtained and, too, in ordering that judgment be entered for interest on the basis that the "deemed judgment for costs" consequent upon the filing of each certificate did not entitle the Solicitors to a "deemed judgment for interest on costs".
9. The Solicitors foreshadowed that they would rely on a notice of contention if leave was granted to Mrs Coshott to appeal out of time. Their draft notice of contention indicated that they would contend that Mrs Coshott was precluded from asserting that the judgments of the District Court and the Local Court should be set aside, by issue or Anshun estoppel [50] arising from the outcome of Coshott SC, or because it would be unreasonable, oppressive and an abuse of process to do so.
10. The Solicitors also indicated that they would contend, alternatively, that the filing of the First Certificate and the Second Certificate, and the entry of judgment by the respective Registries on the basis of those certificates, did not constitute the enforcement of a remedy against Mr Coshott in respect of a provable debt or constitute the commencement of any legal proceeding in respect of a provable debt or the taking of a step in such a proceeding within the meaning of s 58(3) of the Bankruptcy Act.

Applicant's submissions

1. Mr Brabazon first submitted that by filing the two certificates, the Solicitors commenced "legal proceedings" in respect of a "debt provable in Mr Coshott's bankruptcy without leave of a court exercising bankruptcy jurisdiction." Accordingly, those proceedings were incompetent.
2. Secondly, Mr Brabazon submitted that it was not open to the Solicitors to file a cost assessor's certificate of determination against only one of multiple paying parties. This was because s 208J(3) only permitted the filing of the certificate itself, rather than any limited or modified filing. The certificate, once filed, was "not a judgment in an action in the … District Court", but was deemed to be a judgment "for enforcement purposes" in the sense explained by Handley AJA in Frumar v The Owners of Strata Plan 36957. [51] Filing the certificate against both Mr and Mrs Coshott was prohibited by s 58(3)(b) of the Bankruptcy Act, absent leave from a court exercising bankruptcy jurisdiction.
3. Accordingly, Mr Brabazon submitted that it was not open to either court below to remove Mr Coshott as a party because he had neither been "improperly or unnecessarily joined", nor "ceased to be a proper or necessary party" within the meaning of UCPR r 6.29. Once the certificates were filed, they were taken to be a judgment and the "proceedings" that their filing "commenced" were complete at that point. There was no "room" for the operation of the rules concerning joinder and removal of parties.
4. Mr Brabazon also submitted that it was not open to the Solicitors to enforce the certificates against Ms Coshott alone pursuant to s 62 of the Bankruptcy Act because that provision regulates suits, whereas the filing of the certificates was of a sui generis character arising under the LPA, s 208J(3). While the Solicitors could, subject to the discretion of the Manager, Costs Assessment, have applied for assessment against Mrs Coshott alone, or have sought to pursue recovery of the costs against Mrs Coshott alone by legal process, s 208J(3) did not enable registration of a certificate in respect of only one of two joint parties.

Solicitors' submissions

1. Mr Oliver submitted, in reliance upon the analysis of the legal effect of a filed certificate of costs assessment adopted in Frumar, [52] that such a filed certificate, although deemed by statute to be a judgment, was not in fact a judgment and did not become a judgment even when entered. Rather, as McCallum J had concluded in Coshott SC, [53] where there was no existing proceeding to which a certificate of determination related, the filing of the certificate was taken to be, or to commence, a fresh proceeding in which judgment was deemed to have been given, but not yet entered.
2. On that basis, as Taylor DCJ had held, Mr Oliver argued that the Court was empowered to exercise all powers properly exercisable in respect of the proceedings of the kind that the "proceeding" commenced by the filing of the certificate was taken to be, including the power to remove parties or to set aside or vary the judgment.
3. Secondly, Mr Oliver submitted that although the Solicitors accepted that filing the certificates of determination meant that a "proceeding" was taken to have been commenced in which judgment was taken to have been given, by force of a statutory fiction enacted by the LPA, that "proceeding" was not "a legal proceeding" for the purposes of s 58(3)(b) of the Bankruptcy Act. That provision, he contended, had no application to a deemed "proceeding" in which the only "judgment" was one deemed to have been given pursuant to a statutory fiction enacted by State law. Accordingly, he argued that the "deemed judgment" did not constitute the commencement of, or the taking of a step in, "a legal proceeding" for the purposes of s 58(3)(b).
4. Alternatively, Mr Oliver submitted that if the filing or entry of the certificates constituted the commencement of a legal proceeding in respect of a provable debt or the taking of a fresh step in such proceedings contrary to s 58(3)(b) of the Bankruptcy Act, there was no error in the courts below refusing to set aside the "registration" of each "proceeding" below. He contended that in order to succeed on the bankruptcy issue, the applicants would have to establish that no order of the courts below was effectual to avoid or remedy the contravention of s 58(3), and that the specific order they sought was one to which they were legally entitled.
5. Next, Mr Oliver contended that the applicant's argument hinged upon the central contention that it "was not open to file the certificate otherwise than in its own terms" because s 208J(3) of the LPA made "no provision for limited or modified filing". He argued that that contention was contrary to the natural meaning of "with no further action" in s 208J(3), as Taylor DCJ had held in Barry DC1. [54] It was also difficult to reconcile with Kassem & Secatore as joint liquidators of Pan Pacific Age Care Services Pty Ltd (in liq) & Anor v Koutavas, [55] where Ward J (as her Honour then was) held that a deemed judgment was taken to be given on the date when a certificate was filed, not when the certificate was issued by the Costs Assessor.
6. Mr Oliver submitted that while s 208J(3) provided that upon filing, a determination certificate was taken to be a judgment, it was s 133 of the CPA which rendered that judgment enforceable. The effect of filing the certificate was to give the certificate the force of a judgment given by a judicial officer. Accordingly, the powers of the Court to order that the judgment be entered only against a non-bankrupt costs debtor were enlivened.
7. Finally, Mr Oliver submitted that if the Court was of the view that filing the certificates did commence a "legal proceeding" for the purpose of s 58(3)(b), then the applicant could not "have it both ways". If there was a proceeding in the Court, then all the Court's powers in relation to such proceedings, including the powers to regulate parties to proceedings, must necessarily be enlivened.

Consideration

1. The question arising under s 58 of the Bankruptcy Act is whether the filing by the Solicitors of the First Certificate in the District Court and the filing of the Second Certificate in the Local Court and the consequent entry of judgment in those courts was in some way invalidated because it constituted a step that was incompetent by operation of s 58. A distinction must be drawn between the enforcement of a remedy against the property of a bankrupt, on the one hand, and the commencement or the taking of a fresh step in a legal proceeding, on the other. The levy of execution against the lands or goods of a bankrupt would be an example of the former. The absolute bar imposed by s 58 must be construed so as to apply only to the enforcement of remedies, including extra-curial remedies, as distinct from the institution of legal proceedings and their maintenance up to the point of the recovery of judgment. The institution and maintenance of such proceedings will not be subject to the constraints imposed by s 58 if leave be granted. [56]
2. The object of bankruptcy law is to ensure that the assets of a bankrupt are distributed rateably or equitably amongst all creditors and that one creditor does not obtain an undue advantage over the other creditors. [57] Any mechanism to secure that object can allow for the recovery of assets by only one person, namely, the trustee in bankruptcy. In exercising that function, the trustee will be required to make administrative decisions or judgments, but it is for the trustee alone to make those decisions or judgments, in the interest of creditors as a whole. That is to say, individual creditors have no rights to decide to pursue or not pursue the assets of the bankrupt with a view to the satisfaction of individual debts. [58] To that end, the trustee is also charged with the determination of the debts or liabilities of the bankrupt that are to share rateably or equitably in the assets of the bankrupt, to the exclusion of ordinary proceedings in the courts. Those objects are achieved by s 58 and s 82 of the Bankruptcy Act to which we have earlier referred.
3. Section 58(3) would have no effect on the operation of s 208K of the LPA in so far as a certificate of determination issued by a Costs Assessor is made conclusive evidence of the amount owing to a solicitor by a client. Thus, a certificate could be relied on by a solicitor in support of a proof of debt in relation to unpaid legal costs. On the other hand, it may be that the filing of a certificate of determination and the subsequent entry of judgment against a bankrupt would, by the operation of s 58(3), be incompetent, such that they must be taken to be a nullity as regards the bankrupt and the trustee in bankruptcy. That is to say, notwithstanding the entry of the judgment, the trustee may still reject a proof of debt on the basis that the judgment debtor did not have a provable debt. At that point, s 208K may come into play.
4. However, that has nothing to do with the operation of s 208J(3) in relation to Mrs Coshott. Even if the filing of the First Certificate and the Second Certificate and the entry of judgment in relation to Mr Coshott may have been incompetent, and thereby void, that says nothing about the filing of the certificates and entry of judgment in relation to Mrs Coshott. There is nothing in the scheme and policy of the regime provided for in the Bankruptcy Act that would prevent a creditor of joint debtors, one of whom is a bankrupt, from enforcing the obligation against the joint debtor who is not bankrupt. Indeed, that is expressly contemplated by s 62 of the Bankruptcy Act.
5. Section 58 is concerned only with a provable debt in relation to Mr Coshott. There is no rationale for construing s 58 as having any operation in relation to any proceedings that may be taken by a creditor of some other person, such as Mrs Coshott, notwithstanding that Mrs Coshott and the bankrupt were jointly liable for the particular obligation.
6. So long as the object of the bankruptcy legislation, of ensuring that all of the property of the bankrupt comes under the control of the trustee in bankruptcy and that all creditors are treated pari passu, is maintained, and so long as the resolution of disputes as to whether an asserted obligation of the bankrupt is a provable debt can only be determined within the regime laid down by the Bankruptcy Act, there is no reason to construe s 58 as impinging in any way on the right of a creditor of a person other than the bankrupt to take whatever steps are open to that creditor against that other debtor. Whether or not the steps taken by the Solicitors in relation to Mr Coshott were invalid and whether or not the purported entry of judgment against him was invalid, there is no reason to construe s 58 as in any way affecting the steps taken by the Solicitors against Mrs Coshott and the entry of judgment against her. The inclusion of Mr Coshott on the Form 45 lodged in each of the courts did not, by the operation of s 58, in any way invalidate the process as against Mrs Coshott.
7. Accordingly it was, in our view, unnecessary for the Solicitors to seek Mr Coshott's removal as a party. They could, and still can, merely enforce the judgments "given" upon the filing of the certificates against Mrs Coshott alone. It is, in this light, unnecessary to determine whether either court below had power to remove Mr Coshott as a party.

Solicitors' submissions

1. The Solicitors accepted that, if the Court was of the view that they could enforce the judgments arising from the filing of the two certificates notwithstanding that Mr Coshott was named on the face of the judgments, they did not need to press the issue estoppel point.
2. Otherwise, the Solicitors submitted that the proceedings were an abuse of process by reason of either, or both, issue estoppel or Anshun estoppel, to the extent that they sought to challenge the decision in Coshott SC dismissing Mrs Coshott's motion for an order setting aside the "registration" of the certificates of determination.
3. The Solicitors argued that the agitation of the bankruptcy issue constituted an attempt to agitate an issue which could, and should, have been raised in Coshott SC. They contended that the orders sought in the present proceedings were the same as those sought in Coshott SC. They also relied upon the fact that McCallum J found that that the judgments entered on the filing of each certificate "were properly obtained and not liable to be set aside". [59] Thus, they argued that these findings gave rise to an issue estoppel which precluded Mrs Coshott from further disputing the validity of the "registration" of the certificates.
4. Alternatively, the Solicitors submitted that Mrs Coshott's failure to raise the bankruptcy issue in Coshott SC gave rise to an Anshun estoppel. They contended that the bankruptcy issue bore so closely the determination as to whether the "judgments" had been properly entered that it should have been raised in Coshott SC. Further, they submitted that it would be oppressive to permit Mrs Coshott to raise the bankruptcy issue at a late stage when they had agreed not to enforce their judgments pending determination of Mrs Coshott's challenge to their validity. [60]
5. For res judicata purposes, Mr Oliver submitted that the finality of a judgment was not determined by reference to the nature of the proceedings in which it was delivered, but by whether it was final and conclusive on its merits. Although the judgment was interlocutory, the true question was whether McCallum J's determination was such that it would have been impossible for the same parties to re-agitate the question in later proceedings." [61] He submitted that it was clear that that was the case.

Applicant's submissions

1. In oral submissions, Mr Brabazon submitted that although the matters raised before this Court could have been raised in Coshott SC, and would, if successful, have resulted in the judgments being set aside or permanently stayed, there was never a final adjudication of the Supreme Court proceedings, and in any event, an issue estoppel or Anshun point could not be raised in the face of a statute.

Consideration

1. In light of our conclusion on the bankruptcy issue, it is unnecessary to determine the estoppel issue. However, we would note in this context that despite the many arguments that the Solicitors advanced on this point, prima facie, the estoppel argument would not run, on the basis that there cannot be an estoppel in the face of a statute. [62] Although the parties referred to this proposition, neither fully argued it. The question whether a statute has the effect of precluding an estoppel must turn on a consideration of the relevant legislation. Having regard to the purposes of the Bankruptcy Act as explained above, in particular, in ensuring the rateable distribution of the bankrupt's assets amongst all creditors and precluding individual creditors acting on their own initiative, [63] we would be of the view that there can be no estoppel in the face of that statute. [64]

Applicant's submissions

1. Mr Brabazon accepted that interest ran on the certificates of determination after they were filed, pursuant to the final clause of LPA, s 208J(3), but contended that - at least unless the assessor had quantified the interest and included it in the certificate - interest on the outstanding costs for the period from when the respective bills of costs were given until they were filed in November 2008 could not be included in the deemed judgment.
2. Mr Brabazon embraced Taylor DCJ's conclusion that a certificate filed under s 208J(3) was taken to be judgment for the amount of unpaid costs only, not including any interest on those costs. [65] Because the Solicitors also accepted that Taylor DCJ's approach was to be preferred to Bradd LCM's conclusion that the Solicitors were entitled to interest as well as the assessed costs on filing the certificate, he submitted that the only live question on the interest issue was whether, by filing the Form 45 certificate, Taylor DCJ correctly concluded that the Solicitors had invoked the ordinary civil jurisdiction of the Court on a claim for interest.
3. Mr Brabazon submitted that it was not open to Taylor DCJ to infer that by filing the Form 45 and supporting affidavit, the Solicitors had intended to invoke the ordinary civil jurisdiction of the Court to claim interest or had done so in fact. Rather, he contended that each Form 45 proceeded on the basis that the Solicitors were entitled to have interest included in the "judgment" consequent upon the filing of the certificate, rather than asserting any other basis for that entitlement. However, if it was accepted that filing those documents did invoke the respective courts' jurisdiction to award interest, he argued that such filing must be the commencement of a legal proceeding within the meaning of s 58(3)(b).
4. Accordingly, on Mr Brabazon's submissions, because a Costs Assessor could not include an amount for pre-filing interest in a certificate of determination, a legal practitioner who wanted to recover interest which accrued after the bill of costs was given to the client had to sue the client in debt, rather than take the s 208J(3) route. A possible alternative was to take the s 208J(3) route to enter judgment for the assessed costs and bring separate proceedings in debt to recover the interest.
5. Finally, Mr Brabazon also contended that any later invocation of the lower courts' jurisdictions to recover the interest components - for example by the Solicitors' motions - was statute barred. While such claims could have been instituted in 2008 (when the Forms 45 were filed), the limitation period had expired before 2013, when the Solicitors' motions were filed in the District Court and Local Court proceedings.

Solicitors' submissions

1. The Solicitors accepted Taylor DCJ's conclusion that a judgment entered pursuant to LPA, s 208J(3) was limited to "the amount of unpaid costs". Accordingly, they did not seek in this Court to maintain their submission that the entry of the deemed judgment in the Local Court was a nullity. [66] The consequence was that the Solicitors conceded that the reasoning of Bradd LCM supporting his order entitling them to pre-filing interest was erroneous. Rather, they submitted, his Honour should have taken the course taken by Taylor DCJ and should, on the evidence before him, have given judgment against Mrs Coshott for interest under the LPA, s 190(1) in the amount of $12,894.32 with effect from 11 November 2008.
2. The Solicitors next submitted that as the applicant did not complain that Bradd LCM had failed to give her an opportunity to adduce evidence on the question of the quantum of interest payable on the unpaid costs, and, in any event, that there would be no right of appeal, even with leave, against his Honour's factual finding on that question, the case was appropriate for the Court of Appeal to exercise its s 75A(10), Supreme Court Act power to give the judgment for interest that ought to have been given in the Local Court. [67]
3. The Solicitors noted that the only basis upon which Mrs Coshott challenged the interest award in the District Court was that the District Court's jurisdiction to hear and determine an action on their cause of action to recover interest was not validly invoked.
4. Mr Oliver submitted that the Solicitors had regularly invoked the District Court's civil jurisdiction to give a judgment on their cause of action to recover interest on unpaid costs from Mrs Coshott pursuant to LPA, s 190(1) and to order payment of pre-judgment interest on the judgment sum awarded by filing the Form 45 with the certificate of determination attached bearing the seal of the Court and specifying a claim for interest accrued since the date of their bill of costs. It was implicit in that filing that the court in which the documents were filed was going to exercise "some sort of jurisdiction".
5. Mr Oliver contended that the combined effect of CPA, s 133, UCPR r 36.10(1) and s 44(1)(a) of the District Court Act 1973 (NSW) (the "District Court Act") required that orders made, and judgments given, or taken to have been given, in the proceedings taken to have been commenced by their filing of a certificate of determination in the District Court, were taken to be orders made and judgments given "in an action" for the purposes of s 127(1) of the District Court Act.
6. Accordingly, the District Court was taken to have jurisdiction to give, in the deemed action, a judgment on the Solicitors' cause of action to recover interest on unpaid costs from Mrs Coshott pursuant to s 190(1), LPA and to award pre-judgment interest in respect of the judgment sum awarded.
7. Mr Oliver submitted that it was open to Taylor DCJ to allow the Solicitors to move for judgment for interest because they had filed an affidavit setting out the basis on which they were entitled to such an award. He submitted that even if that was not correct, if the filing of the certificate could be deemed to have commenced a proceeding of any kind, it was difficult to see how in principle that was any different from allowing the Solicitors to move on a cause of action that had not originally been pleaded in a statement of claim, but had been added to the claims in the proceedings after they were commenced. He submitted that ss 14 and 63 of the CPA enabled Taylor DCJ to treat the failure to file a statement of claim as an irregularity which did not invalidate the claim.
8. As to Mr Brabazon's limitation point, Mr Oliver submitted that no limitation point was taken at the hearing before Taylor DCJ. If it had been taken, s 65(2)(c) of the CPA would have provided the necessary power to make directions to enable the document to be amended to include a cause of action, even though it had been time-barred at the date when the amendment was sought to be made.

Consideration

1. The effect of these submissions is that in this Court, Mrs Coshott supported the reasoning of Taylor DCJ that a deemed judgment under s 208J(3) was confined to costs only and could not include interest (and thus that Bradd LCM was in error), but contended that there was no effective invocation of the Court's ordinary jurisdiction and that his Honour had erred in giving judgment for the Solicitors on that basis. The Solicitors also embraced Taylor DCJ's reasoning that a deemed judgment under s 208J(3) was confined to "the amount of unpaid costs" and could not include interest, and abandoned the submission that the entry of the deemed judgment in the Local Court was a nullity. Instead, they contended that the Local Court should have taken the course adopted by Taylor DCJ, and that this Court on appeal should, in the absence of any complaint about the quantum of Bradd LCM's order or of a denial of an opportunity to be heard on the question, exercise the powers of the Local Court and give judgment against Mrs Coshott for the amount of interest included in Bradd LCM's judgment. [68]
2. On the face of the parties' submissions before this Court, the issue thus turns on whether by filing the Forms 45 there was an effective, if irregular, invocation of the ordinary jurisdiction of the Court in which it was filed in an action at law for a money sum (being the interest claimed). However, underlying that issue is the articulation of a coherent approach to interest on costs in the practitioner/client context, including in particular whether a Costs Assessor is empowered to allow interest and include the amount of interest in the certificate.
3. The problem is illustrated by the impasse that confronted the Solicitors when in late 2012, having discovered that the entries in the courts' computer records included no interest component, they approached the Registry and the Costs Assessor, to be told by the Registry that judgment is entered only for the amount stated on the certificate, and by the Costs Assessor that he was authorised to determine whether interest was payable and the rate of interest, but not to award interest. These difficulties arise because, while s 208E gives an assessor certain functions with respect to interest, it does not expressly authorise an assessor to include an amount for interest in a certificate. Yet, the deemed judgment provided for by s 208J(3) is founded on the "amount of costs" specified in the certificate "with no further action". Absent an amount for interest having been quantified by the assessor, it is not included in the deemed judgment and s 208J(3) does not authorise a judgment for any other amount or component. A consequence of the judgment of Taylor DCJ, if correct, is that in order to recover interest a practitioner must, after having the costs assessed, bring an action at law to recover the interest component. [69]
4. However, for the reasons that follow, we are of the opinion that a Costs Assessor's function includes determining a claim for interest on a bill of costs and including the amount so determined in the certificate.
5. The function of a Costs Assessor is to determine an application for assessment by confirming the bill of costs or, if satisfied that the disputed costs are unfair or unreasonable, by substituting for the amount of the costs in the bill an amount that, in his or her opinion, is a fair and reasonable amount. [70] The Assessor must issue a certificate setting out the determination, and it is the "amount of costs" specified in the certificate that founds the remedies given by s 208J(2) and (3), according to whether the costs are paid or unpaid.
6. By s 3, "costs" includes fees, charges, disbursements, expenses and remuneration. Within Pt 11, s 173 applies the definition in s 3, and a note explains that "costs" includes barristers' and solicitors' fees as well as other items that may be charged by barristers and solicitors (such as expenses and disbursements).
7. LPA, s 190 authorises a legal practitioner to charge interest on unpaid costs, if the costs are unpaid 30 days or more after the client has been given a bill, or in accordance with a costs agreement, provided that the bill contains a statement that interest is payable and of the rate, and provided also that the rate cannot exceed the prescribed rate for interest on unpaid judgments of the Supreme Court, or the rate (if any) prescribed by the regulations. Thus the section authorises a "charge" for interest, not only where the costs agreement makes provision for it, but also where it does not. Implicitly, if interest can be charged, so it can be recovered.
8. As, by virtue of s 190, interest is an item that can be charged by a legal practitioner to a client, it falls within the definition of "costs" in s 3 and s 173. There is no specific exclusion - as there is for example, in s 208J(4), in respect of costs of the assessor. The contrary construction would disregard the correspondence of the word "charges" in the definition, with "charge" in s 190.
9. Section 208E provides that a Costs Assessor may, in an assessment, determine that interest is not payable on the amount of costs assessed or on any part of that amount, and determine the rate of interest (not exceeding the rate referred to in s 190(4)). At first sight the form in which s 208E(1) is expressed is unusual, because it may appear - as indeed Taylor DCJ thought - to authorise only a "negative" decision, to disallow interest (in whole or in part). But there are strong contrary indicia, in addition to the section heading itself ("Interest on amount outstanding").
10. First, a power to determine that interest is not payable implies that it is otherwise payable. Secondly, the power to determine the rate of interest is necessarily incidental to allowing - not disallowing - interest. Thirdly, s 208E(3), in providing that the section does not authorise the giving of interest on interest, would be otiose if the section did not authorise the giving of interest at all. Fourthly, the result would be extraordinary and cumbersome - while an assessor would be empowered to determine the amount of costs and disbursements recoverable, and that interest not be payable or that a particular rate of interest apply, the assessor would not be able to quantify the interest and include it in the certificate. The practitioner would then have to bring a separate proceeding at law to recover interest (often a relatively small sum, at disproportionate cost), notwithstanding that most of the essential integers had been decided by the assessor. Such an outcome is not readily to be attributed to the legislature.
11. There would also be great difficulty in the application of s 208J(2) and (3). Subsection (2) applies in the case of "an amount of costs that has been paid", and provides that the amount by which the amount paid exceeds the amount specified in the certificate may be recovered as a debt. Subsection (3) applies in the case of "an amount of costs that has not been paid", and provides that the certificate is, upon being filed in a court, "taken to be a judgment of that court for the amount of unpaid costs". In each case, what is recoverable - either as a debt or under the deemed judgment as the case may be - is not the amount specified in the certificate, but the difference between the amount of the certified costs and the amount that has been paid on account of them. Payments on account may have been made in respect of and/or applied to interest as well as principal, and segregating them at the point of filing the certificate or suing for the debt would introduce additional complexities.
12. In our view, the purpose of s 208E was to confirm the assessor's power to determine claims for interest, including that interest not be payable notwithstanding s 190, and not to exclude the determination of a claim for interest from the assessment or the certificate.
13. In rejecting Mrs Coshott's submission that the power to determine the amount of interest was implicit in LPA, s 208E(1), Taylor DCJ gave a number of reasons for the contrary view.
14. The first (at [56]) was that the provision only expressly empowers the assessor to disallow a claim for interest (in whole or in part) and determine the rate, and that if the assessor was also empowered to determine the amount of interest, it would seem to have been a straightforward matter for the legislature to say so, rather than leave it to be implied. We have addressed this, above.
15. The second (at [57]ff) related to the consequences of determining interest. His Honour thought that the notion that if the assessor determined the amount of interest and recorded it on the certificate, then the filing of the certificate would create a judgment allowing interest to be enforced as a judgment debt, was contrary to the terms of s 208J(3), as the certificate is only taken to be a judgment "for the amount of unpaid costs" - not the interest, or any other matter specified in the certificate. For reasons already given, we do not agree that the defined term "costs" does not include interest. His Honour mentioned the reference to interest in the final part of s 208J(3) as a textual consideration that suggested that "unpaid costs" do not include interest, but that reference is to interest after filing the certificate, the intent being that, after filing, interest accrues at the court rate, rather than the rate determined by the assessor. The circumstance that specific provision is made for the recovery of interest after filing the certificate in that way, but not in respect of recovery of interest up to the date of the certificate, in fact supports the view that it was assumed to be covered by the assessment process and included in the certificate.
16. His Honour referred to Drummond and Rosen Pty Ltd v Easey and Ors (No 2) [71] as authority that the definition in s 3 did not include interest on costs. It is true that in Drummond and Rosen, Handley AJA (with whom Tobias JA agreed) said: "41 The function of a costs assessor in a party and party assessment, as defined in s 208F(2) of the 1987 Act, was to determine the costs payable as a result of an order made by a Court or Tribunal. The definition of costs in s 3 did not include interest on costs. The position was different as between practitioner and client. Section 190 permitted a legal practitioner to charge interest on costs in accordance with a costs agreement, or if it was claimed in a bill of costs. Section 208E(1) gave costs assessors the power to disallow any claim for interest in whole or in part, and to determine the rate of interest but the section did not apply to a party/party assessment (subs (4))."
17. However, that was said in the context of a party/party assessment, in which it is plain that interest is outside the purview of an assessor. In the context of a party/party assessment, interest (under CPA s 101) is not a charge by a legal practitioner on a client, but a sum ordered to be paid by one party to another. In the context of a practitioner/client assessment, however, interest is a charge by the practitioner on a client. When Handley AJA said that the definition of costs in s 3 did not include interest on costs, his Honour was referring to party/party interest under CPA s 101, as the following sentences of the passage cited make clear.
18. Taylor DCJ also thought (at [61]) that another matter that militated against the assessor determining the amount of interest and specifying it on the certificate was that it was impossible for the assessor to determine the amount of interest up to the filing of the certificate, which necessarily occurs after the issue of the certificate; thus, the assessor is unable to determine the amount of interest up to the date of judgment since that date is unknown at the date of the certificate. While his Honour rejected Mrs Coshott's argument that the consequence that the interest between the date of the certificate and the date of judgment might be lost is likely to be de minimis and immaterial, on the basis that that depends on the period between the two events, it is in fact substantially if not entirely in the control of the practitioner, having uplifted the certificate, as to whether there is any lacuna at all between the date of the certificate and its filing. In our view, in so far as the potential for a lacuna in this respect may tend against the view that an assessor can quantify interest, it is manifestly outweighed by the inability of a practitioner to recover interest except through a separate action if the assessor cannot.
19. It follows that a Costs Assessor's function includes determining a claim for interest made in a bill of costs, including by quantifying it, and "the amount of costs" referred to in s 208J(3) includes any interest component so determined. Accordingly, in our view the Costs Assessor could and should, in respect of each of the Solicitors' bills of costs, have not only determined that interest was payable and the applicable rate, but quantified it and included it in each certificate.
20. Had the Costs Assessor done so, the deemed judgment upon filing would have included the interest component. However, the assessor not having done so, the amount of costs certified did not include interest. Because the remedies given by s 208J(2) and (3) are founded on the "amount of costs" specified in the certificate, they cannot operate on an unquantified statement that interest is payable at a particular rate. The deemed judgment under s 208J(3) entered in the records of the court of filing must reflect the operation of s 208J(3), and no more. [72] While such a deemed judgment will not necessarily be identical to the certificate - because it is not for the amount specified in the certificate, but for so much of it as is unpaid - the only integers are the certified amount and the amounts paid on account. There is no authority for the inclusion of any other amount.
21. Accordingly, contrary to the holding of Bradd LCM, the deemed judgment that arose upon filing the certificates did not include interest, and could not do so in the absence of a sum for interest being specified in the certificates. And, contrary to Taylor DCJ's alternative holding, the record could not be corrected, nor the Certificate varied by the Court, to include the interest component, because the result would not reflect the operation of s 208J(3). While it may be accepted that the District Court and the Local Court have power to correct their records, including in respect of a judgment recorded as the result of filing a certificate of determination of costs, [73] that is a power to cause the record to reflect what it ought to be, and pursuant to s 208J(3) it ought to be for the difference between the amount stated in the certificate and the amount that has been paid.
22. As the Costs Assessor did not determine that interest was not payable, and did not determine a rate that differed from the rate prescribed for unpaid judgments (but merely "noted" that interest was payable at that rate), the Solicitors remained entitled to interest pursuant to s 190, and could recover it by an action at law. Assessment by an assessor, culminating in filing a certificate under s 208J(3), is not the only means by which a practitioner may recover costs from a client; it is also open to the practitioner to sue for those costs at law, the only constraint being imposed by s 192, that proceedings for the recovery of costs must not be commenced or maintained against any person unless at least 30 days have passed since a bill for those costs was given to the person. Thus it remained open to the solicitors, their claim for interest not having been determined by the assessor, to sue during the limitation period for the interest to which they were entitled pursuant to s 190.
23. Taylor DCJ held that they did so, by filing the Form 45 and supporting affidavit, reasoning that while the regular procedure for invoking the Court's jurisdiction to determine such a claim is by statement of claim, invoking that jurisdiction by the incorrect initiating process was an irregularity only, and did not of itself invalidate the proceeding.
24. However, in our view, the Forms 45 did not invoke the relevant jurisdiction at all. A Form 45 does not in terms claim any relief from the court in which it is filed; it does not even request entry of judgment in accordance with the accompanying certificate. It is no more than a "cover sheet", simply attaching a copy of the certificate and providing "details" of it. A reference in those "details" to interest is not a claim for an award of interest from the court in which it is filed, but particulars of the interest payable under the certificate. The function of the accompanying affidavit is solely to disclose to what, if any, extent the certified amount has been paid, so as to enable judgment to be entered only for the unpaid amount in conformity with s 208J(3); [74] it is not a means for quantifying a claim for interest. As Handley AJA said in Frumar (at [42]), "entry of judgment on a filed certificate is a ministerial act"; it does not involve adjudication of a claim. Likewise, the filing of the certificate does not initiate any claim.
25. Thus it was correctly submitted for Mrs Coshott that the Solicitors did not intend, and could not be inferred to have intended, when they filed the Form 45, to invoke the ordinary civil jurisdiction of the court. More relevantly, however, viewed objectively, no reasonable observer would have understood the Forms 45 to have been the institution, albeit irregular, of a contractual or statutory claim for a money sum in the nature of interest in the ordinary civil jurisdiction of the Court.
26. This might be distinguished, for example, from an irregular commencement of proceedings by summons where a statement of claim was required: it would not be disputed that if a money claim, required to be instituted by statement of claim, were incorrectly instituted by summons, proceedings had nonetheless been commenced so as to stop the limitation period from running. In such a case, CPA ss 14 and 63 would enable a court to treat the proceedings as validly commenced, notwithstanding the irregular initiating process. But no one would understand the filing of a certificate under a Form 45 to institute an action at law to recover a sum of money in the nature of interest. The Form 45 was the vehicle for obtaining the filing of the certificate under s 208J(3) and no more. The Forms 45 were not an irregular means of commencing an action, but no commencement of an action at all. CPA ss 14 and 63 have no operation in those circumstances.
27. It follows that we are unable to accept Taylor DCJ's basis for finding that there was jurisdiction to give judgment for the interest component. No other basis for invocation of that jurisdiction in either the District or Local Courts was suggested.
28. The proper remedy for the Solicitors was to apply for an order in the nature of mandamus that the Costs Assessor perform his duty and quantify the interest component and include it in the certificate. They did not do so.
29. Accordingly, we conclude: 1. A Cost Assessor's function includes determining a claim for interest on a bill of costs, and including the amount so determined (up to the date of the certificate) in the certificate; 2. A deemed judgment under s 208J(3) is founded on "the amount" specified in the certificate - including any interest component of that amount - but cannot include interest not quantified in the certificate; 3. Because the assessor did not quantify interest, the courts correctly entered judgment only for the certified amounts, which did not include interest; 4. The courts could not "correct" or "vary" the computer record, the certificate or the deemed judgment so as to include the interest component, because that would result in a judgment that did not conform with s 208J(3). 5. There was no effective invocation of the ordinary jurisdiction of the courts to give a judgment on a contractual or statutory claim for money in the nature of interest by the filing of the Form 45, or otherwise.
30. Bradd LCM was in error in holding that the deemed judgment should have included interest quantified in accordance with the assessor's notation, where the Costs Assessor had not included an amount for interest in the certificate; and Taylor DCJ was in error in his Honour's alternative holding that the deemed judgment could be varied or corrected to include the interest component. Taylor DCJ was in error in holding that the Solicitors had, by filing the Form 45, invoked the ordinary civil jurisdiction of the District Court. The orders of Bradd LCM and Taylor DCJ should be set aside, leaving on foot the deemed judgments as originally entered.

Applicant's submissions

1. Mr Brabazon contended that because the "proceedings" in the District Court were not an "action" within the meaning of s 127(1) of the District Court Act, [75] the Judicial Review Summons had been the only procedural course open to Mrs Coshott to challenge Taylor DCJ's orders. It was paradoxical that on Taylor DCJ's finding on the interest issue, the Solicitors had, albeit irregularly, invoked the District Court's civil jurisdiction; whereas had they done so regularly, they would have filed a statement of claim, and accordingly, there would have been a s 127(1) "action".
2. He submitted that both the Judicial Review Summons and the appeal from the Local Court decision raised the same questions of legal principle and public importance concerning the legal profession's entitlement, if any, to secure interest on bills of costs through the costs assessment process. Although the LPA had been repealed by the time of hearing, s 208J as it appeared in that Act was replicated as s 368 in the Legal Profession Act 2004 (NSW) (the "LPA 2004") and LPA, s 190 and s 208E also corresponded, save for immaterial differences, with s 321 and s 363A of LPA 2004.
3. In such unusual circumstances, he contended that it was appropriate to determine the challenge to Taylor DCJ's judgment by way of the Judicial Review Summons in which respect there was no doubt about the Court of Appeal's jurisdiction.
4. Mr Brabazon submitted that leave to appeal from the Local Court decision should be granted for the same reasons. Although he accepted that such an appeal would normally be heard in the Common Law Division, he argued that, having regard to the common issues arising in the challenges to the Local Court and District Court orders, it was expedient for the application for leave to appeal and the appeal from the Local Court orders to be heard in the Court of Appeal.
5. Insofar as delay was concerned, Mr Brabazon submitted that the Solicitors had been put on notice of the grounds ultimately advanced in the Judicial Review Summons insofar as the District Court was concerned, and the draft amended notice of appeal insofar as the Local Court was concerned, when the notice of appeal was filed on 10 April 2014. That notice was within time, having been filed within 28 days of the material date in each case. [76] Accordingly, he contended that the Solicitors were not materially prejudiced by the delay in filing on 23 July 2014 of the pleadings ultimately relied upon in relation to each lower court decision.

Solicitors' submissions

1. The Solicitors recited the history of frustrating attempts to persuade the applicant to file the correct process commencing proceedings to challenge the District and Local Court decisions. They did not, however, contend that they had suffered any prejudice in consequence of her obfuscation. They do not dispute the applicant's submission that the case raised important questions of legal principle and public importance.
2. However, Mr Oliver disputed the applicant's submission that the relevant District Court judgments were not given "in an action" and thus conferred no right of appeal pursuant to s 127 of the District Court Act and that her challenges to the judgments of the District Court were thus properly agitated by way of the Judicial Review Summons. Rather, he submitted that the Solicitors' proceeding to recover unpaid interest under s 190(1), LPA would be assigned to the Common Law Division if commenced in the Supreme Court and, if commenced in the District Court, was a proceeding within that Court's jurisdiction by reason of s 44(1)(a) of the District Court Act. [77]
3. Accordingly, the applicant had a right of appeal from the District Court in respect of both issues pursuant to District Court Act, s 127(2). However, leave was required to appeal on the bankruptcy issue because the judgment was interlocutory. Leave was also required to appeal on the interest issue because the amount at issue was less than $100,000. [78]
4. Mr Oliver submitted that because the applicant elected to file no summons for leave to appeal in the notice of appeal proceedings and abandoned those proceedings so far as they purported to be an appeal against any judgment of the District Court, leave could not be granted as it had not been sought. He further submitted that in circumstances where the applicant had a right of appeal, with leave, on both issues, which she had not elected to pursue, the Judicial Review Summons was an abuse of process and should be dismissed.
5. In the alternative, the Solicitors submitted that if the applicant had no right of appeal from the District Court decision on either issue, an extension of time for filing the Judicial Review Summons should not be granted, or, if time were to be extended, the application should be dismissed for any one or more of the following reasons. First, the applicant could not claim to have been unaware of the applicable time limit. Secondly, an application for review of the original "registration" of the certificate in 2008 was several years out of time, and in any event was res judicata. Thirdly, an application to review the judgment of the District Court had no reasonable prospect of success because it was an abuse of process and because if there are any legal errors in the judgments they were ones of which the applicant had no standing to complain and/or errors that had occasioned the applicant no substantial injustice. Fourthly, in the absence of any challenge to the fairness of the hearing in the District Court on the interest issue, there was no basis for considering that a re-hearing pursuant to any review of the judgment below on that issue would lead to any different result.
6. The Solicitors accepted that the applicant had an appeal as of right in respect of the Local Court decision on the interest issue. Insofar as the applicant accepts she requires leave to appeal (and an extension of time) in respect of the Local Court decision on the bankruptcy issue, Mr Oliver submitted that neither an extension of time nor leave should be granted for the same reasons as advanced in respect of the Judicial Review Summons. [79]

Consideration

1. In our view, the questions raised by the applicant are such as to warrant leave to appeal in relation to the Local Court proceedings insofar as it is required and to entertain the Judicial Review Summons.
2. Although the Local Court appeal should have been commenced in the Common Law Division, the proceedings are "for all purposes well commenced on the date of commencement in the Court of Appeal… [and] may be continued and disposed of in the Court of Appeal". [80] It is appropriate that the Local Court appeal be disposed of in this Court having regard to the identity of the issues it raises with those raised in respect of the District Court proceedings.
3. The Judicial Review Summons should have been filed within 3 months of the District Court decision. [81] We do not accept that the material date was 13 March 2014 insofar as the bankruptcy issue was concerned. On that day, although Taylor DCJ disposed of the proceedings insofar as they concerned the bankruptcy issue, he stood the proceedings over for final disposition of the interest issue. The proceedings were finalised on 2 April 2014 when Taylor DCJ gave final judgment for the Solicitors against the applicant in the sum of $37,528.84 on account of the interest issue. That disposed of the entirety of the proceedings in that Court and, in our view, that is the date from which time commenced to run.
4. The Judicial Review Summons was filed on 23 July 2014. Accordingly, it was approximately 3 weeks out of time. The Court can extend the time limited by UCPR r 59.10(1) on the basis "of such factors as are relevant in the circumstances of the particular case", including those set out in UCPR r 59.10(3). [82] It can be expected that the applicant should have advanced her case by use of the proper process at an earlier stage, however the Solicitors have been on notice of the challenge to the District Court decisions since 10 April 2014 and can point to no prejudice by the delay in invoking the correct form of relief.
5. The Solicitors contend that the Judicial Review Summons should not be entertained because the applicant had a right of appeal under s 127 of the District Court Act and, accordingly, the Judicial Review Summons was an abuse of process.
6. What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. [83] However many cases of abuse of process exhibit at least one of three characteristics: "(a) the invoking of a court's processes for an illegitimate or collateral purpose; (b) the use of the court's procedures [where it] would be unjustifiably oppressive to a party; or (c) the use of the court's procedures [which] would bring the administration of justice into disrepute." [84] We would not characterise the applicant's recourse to the Judicial Review Summons as falling into any of those categories.
7. Even assuming, without deciding, that the applicant had a right of appeal under s 127, it does not, in our view, preclude her relying upon the Judicial Review Summons; the very fact that doubt attends the availability of a right of appeal is an important consideration in this respect. By doing so, however, she limits the available relief, prima facie, to error of law on the face of the record of the District Court, or jurisdictional error.
8. Having regard, again, to the issues of importance raised by the applicant, we are of the view that the applicant should be granted an extension of time in respect of the filing of the Judicial Review Summons.

COSTS

1. Mrs Coshott has succeeded on one but failed on the other of two distinct issues in the proceedings in this Court. The result is that the judgments originally entered in both lower courts will be reinstated, which represents a substantial improvement in Mrs Coshott's position. The Solicitors should pay half of Mrs Coshott's costs in this Court.
2. In the courts below, Mrs Coshott's motions to set aside the registration of the certificates rightly failed, and prima facie she should bear the costs of those motions. The Solicitors' motions for interest should have failed, and prima facie they should bear the costs of those motions. While their motions for removal of Mr Coshott as a party were unnecessary, that issue was intertwined with Mrs Coshott's unsuccessful application to set aside the judgments. The proper outcome in the courts below would have seen both parties fail in their attempts to improve their position from that which obtained upon filing the certificates. In order to avoid multiple costs orders and set-offs, justice will be done if no order is made as to the costs in the courts below, to the intent that each party bear their own costs.

Orders

1. Mr Brabazon sought orders as set out in the Judicial Review Summons insofar as the District Court proceedings were concerned and in the summons seeking leave to appeal and the draft amended notice of appeal insofar as the Local Court proceedings were concerned. He accepted that, having regard to the manner in which the applications were finally advanced, it was appropriate to dismiss the notice of appeal of 10 April 2014 insofar as the District Court proceedings were concerned and to dismiss the Judicial Review Summons insofar as the Local Court proceedings were concerned.
2. We make the following orders:

In appeal proceedings 2014/00217301; 2014/00109540: (1) Grant leave to appeal from the decision of Bradd LCM of 20 March 2014. (2) Order Mrs Coshott to file the draft amended notice of appeal at White Book page 266 within 7 days of delivery of this judgment. (3) Appeal allowed in part. (4) Set aside the judgment entered by Bradd LCM on 20 March 2014 against Mrs Coshott in the sum of $41,099.84. (5) No order as to the costs of the Local Court proceedings, to the intent that each party bear its own costs. (6) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott's costs in this Court and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

Summons seeking judicial review - 2014/00217333: (7) Extend the time for commencing the proceedings seeking judicial review of the District Court decisions to 23 July 2014. (8) Set aside the orders of Taylor DCJ made on 2 April 2014. (9) Dismiss the Judicial Review Summons insofar as it sought to challenge the judgment and orders of Bradd LCM made on 20 March 2014. (10) No order as to the costs of the District Court proceedings, to the intent that each party bear its own costs. (11) Order Stephen Michael Barry and Martin Pearce Board to pay 50 per cent of Mrs Coshott's costs of the Judicial Review Summons and to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise qualified.

Endnotes

1. Barry v Coshott [2014] NSWDC 51 ("Barry DC1") and Barry v Coshott (No 2) [2014] NSWDC 57 ("Barry DC2").
2. Barry and Board v R and L Coshott (Local Court (NSW), 20 March 2014, Bradd LCM, unrep) ("Barry LC").
3. Form 45 is that prescribed pursuant to s 17(1) of the Civil Procedure Act 2005 (NSW) (the "CPA"), for "Registration /filing of certificate of judgment/order." It is expressed to be made pursuant to CPA, s 133 and Uniform Civil Procedure Rules 2005 ("UCPR") r 36.11 (Entry of judgments and orders) and r 36.10 (Filing of cost assessors' certificates). The solicitors amended the standard form entry for "interest accrued since judgment/order made" to read "Interest accrued since the date of Bill of Costs". They also amended the standard heading to read "Registration Certificate of Costs Assessment". Properly, it should have referred to "Filing", not "Registration", but nothing turns on this.
4. UCPR 4.11.
5. The Local Court Form 45 was amended in the same way as that in the District Court. It included an amount of $13,120.12 representing interest accrued "since the date of the Bill". It was also accompanied by an affidavit sworn by Mr Barry on 7 November 2008 calculating the accrued interest.
6. Barry DC1 (at [3]); see Coshott v Barry [2007] NSWSC 1094; an appeal from that decision was dismissed: Coshott v Barry [2009] NSWCA 34.
7. Barry DC1 (at [11]).
8. Barry DC1 (at [9]).
9. Legal Profession Act 2004 (NSW), Sch 9, cl 2(a); cl 18(1).
10. LPA, s 208A.
11. LPA, s 208E(1); s 190(4) prevented a barrister or solicitor from charging interest under s 190 or under a costs agreement either that exceeded the rate prescribed under the Supreme Court Act 1970 (NSW) (the "SCA") or the rate prescribed by the regulations.
12. LPA, s 208E(3).
13. LPA, s 192(1).
14. Section 5(1).
15. Interpretation Act 1987 (NSW), s 80.
16. R v Baines (1840) 12 Ad & El 210 (at 226); 113 ER 792 (at 798 - 799); see also Australian Securities and Investments Commission (ASIC) v Michalik (No 2) [2004] NSWSC 1260; (2004) 62 NSWLR 335 (at [27]) per Palmer J.
17. CPA, s 133.
18. UCPR r 4.1.
19. UCPR r 4.11(1) and (2).
20. UCPR r 36.10(1). Such a certificate would only relate to existing proceedings if it was an assessment of party-party costs.
21. UCPR r 36.10(2). This rule was amended in 2010 and no longer provides for entry of judgment upon the filing of the Costs Assessor's certificate.
22. UCPR r 36.11(1).
23. UCPR r 36.11(2).
24. UCPR r 36.11(3).
25. UCPR 49.19
26. UCPR 49.20
27. Barry DC1 (at [1]).
28. Barry DC1 (at [24]).
29. Barry DC1 (at [25]).
30. UCPR r 6.23.
31. Barry DC1 (at [28] - [33]); (UCPR r 6.29).
32. Barry DC1 (at [42]).
33. Barry DC1 (at [49]).
34. Barry DC 1 (at [57 - [61]).
35. Barry DC1 (at [63] - [68], [70] - [72]).
36. Barry DC1 (at [78] - [79]).
37. Barry DC2 (at [45], [49]). This apparently involves a mathematical discrepancy of $3,000, which was not referred to in argument and, in light of the conclusions we have otherwise reached, is of no significance.
38. Barry DC2 (at [49]).
39. Barry LC (at [18]).
40. Barry LC (at [51]).
41. Barry LC (at [40]).
42. Barry LC (at [52]).
43. Coshott SC (at [11]; [44]). McCallum J later declined an application to reopen the hearing in relation to this aspect of the proceedings: Coshott v Barry & Anor (No 2) [2012] NSWSC 944.
44. Coshott v Barry (No 3) [2012] NSWSC 1248.
45. CPA, s 91.
46. Bracks v Smyth-Kirk [2009] NSWCA 401 (at [40]) per McColl JA (Allsop P and Young JA agreeing); Lorrimar v Serco Sodexo Defence Services Pty Ltd [2014] NSWCA 371 (at 70) per McColl JA (Macfarlan JA and Tobias AJA agreeing).
47. District Court Act 1973 (NSW), s 127(2)(c)(i).
48. Local Court Act 2007 (NSW), s 39(1).
49. Supreme Court Act, ss 48, 49, 53; Sch 4, Pt 8.
50. See Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589.
51. [2010] NSWCA 172 ("Frumar") (at [38]; see also [40]) (Macfarlan JA agreeing).
52. (at [38], [40], [42]).
53. (at [45], [47]).
54. (at [35] - [41]).
55. [2012] NSWSC 236 (at [23]); see also Barry DC1 (at [39]).
56. Fraser v Commissioner of Taxation (1996) 69 FCR 99 ("Fraser") (at 111 - 112); as the primary judge concluded (Barry DC1 (at [23] - [24]) Fraser (at 111) supports the proposition that s 58(3)(b) was applicable as the "filing of the [Form 45] certificate is simultaneously both the commencement and conclusion of the proceedings, obtaining a file number and a judgment in the one action [and] [e]ntering judgment was traditionally a step taken by a party and constitutes a fresh step".
57. Fraser (at 112).
58. Fraser (at 114).
59. Coshott SC (at [44]).
60. See Coshott SC (at [5]).
61. Castillon v P&O Ports [2007] QCA 364; [2008] 2 Qd R 219 (at [49] - [58]); see also Inasmuch Community Inc v Bright [2006] NSWCA 99 (at [60] - [62]) per Beazley JA (Mason P and McColl JA agreeing).
62. Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993 (at 1015) (Privy Council).
63. Fraser (at 114).
64. Cf Kok Hoong v Leong Cheong Kweng Mines Ltd (at 1017).
65. Barry DC1 (at [57]); Barry DC2 (at [12]).
66. Cf Barry LC (at [24]).
67. Supreme Court Act, s 75A(10).
68. In accordance with Supreme Court Act 1970, s 75A(6) and (10).
69. We note that the problem has been resolved, but only for matters in which first instructions are given after 1 July 2015, by the Legal Profession Uniform Law Application Act 2014 (NSW), s 70(1)(c)(i) and s 81, under which a Costs Assessor is expressly empowered to determine that interest is payable on unpaid costs and to include the amount of interest in the certificate.
70. LPA, s 208A(2).
71. [2009] NSWCA 331 at [41].
72. Croker v Commissioner of Taxation [2005] FCA 127 (at [14]) per Hely J.
73. Calandra v Murden [2015] NSWCA 231 (at [21]).
74. See now UCPR r 36.10(3); formerly (at the relevant time) UCPR r 36.10(2), as set out in Frumar at [41].
75. See Frumar (at [38]); Muldoon v Church of England Children's Home Burwood [2011] NSWCA 46; (2011) 80 NSWLR 282 (at [32]) per Campbell JA (Macfarlan JA agreeing).
76. UCPR r 51.16(1)(c).
77. Muldoon v Church of England Children's Homes Burwood [2011] NSWCA 46; (2011) 80 NSWLR 282 (at [ 26]-[33]) per Campbell JA, Macfarlan JA agreeing.
78. District Court Act, s 127(2)(a) and (c).
79. RWS (at [111] - [112]).
80. Section 51(2), Supreme Court Act.
81. UCPR r 59.10(1), a rule relevant because the Judicial Review Summons seeks the setting aside of Taylor DCJ's orders in both judgments and the setting aside of the filing of the First Certificate: UCPR r 59.10(5).
82. UCPR r 59.10(2); UCPR r 59.10(3).
83. Batistatos v Roads and Traffic Authority of New South Wales; Batistatos v Newcastle City Council [2006] HCA 27; (2006) 226 CLR 256 (at [1], [9]) per Gleeson CJ, Gummow, Hayne and Crennan JJ.
84. PNJ v R [2009] HCA 6; (2009) 83 ALJR 384 (at [3]), French CJ, Gummow, Hayne, Crennan and Kiefel JJ.

Amendments 31 August 2015 - Amendment to file number of Summons seeking judicial review on coversheet and also on last page. 21 July 2016 - 21 July 2016 - [17] Changing "10 October 2005" to "1 October 2005" [27] Changing "s 60(1)(a)" to "s 60(1)(b)" [33] Changing "or in which" to "or of which" [57] Deleting quotation mark [140] Deleting "(a)" after "s 127(1)" [152] Changing "they are" to "the proceedings are" fn 9: Changing "LPA" to "Legal Profession Act 2004 (NSW)" fn 16: Amendment to ER citation page numbers fn 19: Inserting "and (2)" after "r 4.11(1)" fn 37: Inserting "This apparently involves a mathematical discrepancy of $3,000, which was not referred to in argument and, in light of the conclusions we have otherwise reached, is of no significance." fn 74: Correcting typographical error fn 78: Changing "s 126" to "s 127" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 July 2016