The parties' submissions on the issue of competency
60The respondent essentially relied upon the reasoning of the primary judge in submitting that her appeal was competent. She further submitted that there had been, in effect, a "decision" of the costs assessor on a matter of law which arose in the proceedings and that he had made a sufficiently definite expression of intention as to constitute a "decision" within the meaning of s 208L(1).
61Although the respondent accepted that the word "decision" was a word of "indeterminate meaning" as stated in Chaney at 100, nevertheless it was contended that the statute distinguished in clear terms between an appeal against a "decision" (s 208L) and an appeal against a "determination" (s 208M). In order to determine the application for assessment it was necessary for the costs assessor to make a decision as to the contracting out issue. Section 208L did not require a decision that is identified and provided for as a separate procedure under the Act but only a decision "as to a matter of law arising in the proceedings to determine the application". In its context, therefore, the concept of a "decision" was quite different from that of a "determination". Only the latter needed to be final. Further, as a matter of legal policy, it was appropriate that there should be a right of appeal as to a matter of law arising in proceedings even where the latter had not been completed by the making of a determination.
62The appellants drew the Court's attention to a number of provisions of which the following are of significance. Section 208J(1) provides that on the making of a determination a costs assessor is to issue to each party a certificate that sets out his or her determination. Section 208J(1A) empowers a costs assessor to issue more than one certificate in relation to an application for costs assessment which certificate may be issued at different stages of the assessment process. Section 208JAA obliges a costs assessor to ensure that a certificate issued under s 208J that sets out his or her determination is accompanied by a statement of reasons for the determination. Furthermore, s 208K provides that a costs assessor's determination of an application is binding on all parties to it and that no appeal or other review lies in respect of the determination except as provided by, relevantly, ss 208L and 208M. I have set out at [44] and [45] above the text of ss 208L and 208M. It is noteworthy that the headings to both ss 208L and 208M (which were accepted to form part of the Act) refer to an appeal "against decision of costs assessor".
63One decision referred to by the appellants to this Court but not mentioned by the primary judge is that of the Supreme Court of South Australia sitting in Banco in Mobitel (International) Pty Ltd v Dun & Bradstreet (Australia) Pty Ltd (1979) 22 SASR 288. The case involved a ruling by the Chairman of the Credit Tribunal set up under the Consumer Credit Act 1972 (SA) on a question of law. The ruling given by the Chairman was described by him in his reasons as the "Chairman's ruling on preliminary questions of law". Section 25(1) of the Consumer Credit Act provided that any person aggrieved by a decision or order of the Tribunal shall be entitled to appeal to the Supreme Court against that decision or order. The issue that arose was whether the Chairman's ruling on a preliminary question of law was a decision of the Tribunal in respect of which a right of appeal existed.
64Walters J, with whom King CJ and Zelling J agreed, observed (at 291) that in the case of a decision of a statutory tribunal, a right of appeal from any decision made by it must be plainly given by the legislation by which the tribunal is created and that no right of appeal can be presumed. Further, that right must be shown to exist by clear and unequivocal language.
65His Honour concluded (at 292) that a ruling of the Chairman of the Tribunal on a question of law did not "fill the character" of a decision or order of the Tribunal. Rather, his determination on a question of law was merely a part of the judicial process which is invoked in order to decide the issues arising on an appeal before the Tribunal in contradistinction to a decision of the Tribunal that determines the substantive rights of the parties litigating the appeal. Until the Tribunal has made a decision, the determination of the Chairman on a question of law had, in a sense, an inchoate effect only. It rested with the Tribunal ultimately to say what will be its decision after conforming to the Chairman's ruling.
66I do not consider that the decision in Mobitel is of great assistance. Although the relevant legislation provided that any question of law was to be determined by the Chairman of the Tribunal, s 25(1) of the Consumer Credit Act provided for an appeal only by a person aggrieved by a "decision or order of the Tribunal". Walters J properly drew a distinction between a decision or order of the Tribunal on the one hand and a ruling of the Chairman of the Tribunal on a question of law on the other. There being no statutory right of appeal from the ruling of the Chairman on a question of law as distinct from an appeal from a decision or order of the Tribunal itself, it followed that the appeal in that case was incompetent. The distinction upon which Walters J relied is not present in the instant case.
67In Chaney, Deane J, with whom Fisher J agreed, was dealing with the provisions of s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) pursuant to which a party to a proceeding before the Tribunal may appeal to the Federal Court on a question of law "from any decision of the Tribunal" in that proceeding. The President of the Tribunal had ruled that it had jurisdiction to review the decision of the Director-General in question and made an interim order pending the outcome of the appeal, which the Tribunal had not yet heard and determined. The question that arose was whether an appeal lay from the ruling and interim order of the President, it being contended that an appeal to the Federal Court under the relevant provision of the AAT Act lay only from a decision of the Tribunal which constitutes the effective decision or determination of the application for review. In this respect Chaney had similarities to Mobitel. However, some of the reasoning of Deane J in Chaney is instructive.
68Deane J noted (at 99) that it was apparent the Tribunal had not, at the relevant stage, purported to make any determination disposing of the application for review which had been made to it. All that had happened was that it had made a ruling on a preliminary question of jurisdiction, and it had made an interim order pending the determination of the application for review.
69As to the meaning of the word "decision", his Honour said (at 100):
"The word 'decision' is a word of indeterminate meaning. In some contexts, it can refer to the mental process of making up one's mind. In the context of judicial or administrative proceedings, the word will ordinarily refer to an announced or published ruling or adjudication. In such a context, the word 'decision' may be apt to include the determination of any question of substance or procedure, including, for example, rulings on procedural questions such as whether particular evidence should be received, or the meaning of the word may be limited to a determination effectively resolving an actual substantive issue. When the word 'decision' has the last-mentioned limited meaning, it can refer to any such determination whether final or intermediate ... Further, though it is not necessarily a word of art, there is high authority for saying that even without such a context the 'natural, obvious and prima-facie meaning of the word "decision" is decision of the suit by the Court'." (Citations omitted.)
70Although at 101 Deane J recognised that the statutory language could accommodate a preliminary decision due to the fact that s 44(1) provided for an appeal from "any decision of the Tribunal", nevertheless his Honour rejected that argument, observing (at 102) that if an appeal could be brought at any intermediate stage of the proceedings, that would involve disruption of the proceedings before the Tribunal as the latter would be obliged by s 46 of the AAT Act to send to the Federal Court all documents that were before the Tribunal in connection with the proceedings to which the appeal related. His Honour continued:
"It would seem unlikely that it was the legislative intent that any party to a proceeding should be entitled to disrupt its orderly hearing before the Tribunal by instituting an appeal, as of right, from any of the various 'decisions', involving a question of law, which the Tribunal might find itself called upon to make in the course of dealing with the proceeding before it and which might ultimately prove irrelevant to the final operative decision. In the context of the clear right to appeal, on a question of law, from the ultimate decision of the Tribunal and of the intermediate procedure of stating a question of law for the decision of this Court, it would seem more likely that it was the legislative intent to limit judicial intervention during the actual hearing before the Tribunal to the supervisory, and, to some extent, discretionary, jurisdiction provided by the prerogative writs."
71The convenience argument encapsulated in the above passage was further reiterated by his Honour at 103 where he said:
"The issue is whether such an appeal lies, instanter, from a ruling or adjudication upon the road to ultimate decision, regardless of whether that ruling or adjudication may prove irrelevant to the ultimate decision or whether further evidence, increased understanding or, indeed, plain reconsideration may lead to its reversal by the Tribunal itself before the ultimate decision is delivered. It may be suggested that the proliferation of opportunities to appeal should be seen as a safeguard of the rights of the individual subject. Such a suggestion would, in my view, be misconceived."
Accordingly, Deane J held that an appeal under s 44(1) lay only from a decision of the Tribunal which constituted the effective decision or determination of the application for review.
72Both the appellants and the primary judge also referred to some observations of Mason CJ in Bond at 335-339 where his Honour dealt with the meaning of "decision". After noting that the word had a variety of potential meanings and referring to what Deane J had said in Chaney at 100, the Chief Justice held (at 339) that the relevant conclusion of the Tribunal in that case was not a determination for which the legislation provided. It was no more than a step in the Tribunal's reasoning on the way to its final determination of the issue before it. Although it was an essential step in the reasoning by which the Tribunal chose to support its final determination, that circumstance was not enough to invest the conclusion with the characteristics which would qualify it as a reviewable decision.
73A similar question as to the meaning of "decision" arose in Clisdell v Commissioner of Police (1992) 31 NSWLR 555. That case concerned the availability of an appeal pursuant to s 54 of the Government and Related Employees Appeal Tribunal Act 1980 (NSW), which conferred a right of appeal "against any decision of the Tribunal on a question of law". Sheller JA (with whom Handley and Cripps JJA agreed) expressed the view (at 558) that an appeal from a decision of a court is an appeal from a "judicial act which affects adversely the rights claimed by the appellant", and not an appeal from "a pronouncement by the court of an opinion upon a question of law" (citing Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 624 (Lord Porter)). Sheller JA adopted (at 558, 560) the view expressed by Mason CJ in Bond at 338 that the word "decision" means an ultimate or operative determination, and not a mere expression of opinion or statement which can have no effect on a person (Mason CJ also indicated there that he did not consider this to mean antecedent conclusions that contribute to the ultimate or operative decision are beyond the reach of review).
74The appellants submitted that the decision of Einstein J in Currabubula, insofar as his Honour determined that a right of appeal from a purported decision of a costs assessor on a question of law which arose during the course of the proceedings gave rise to a right of appeal, was wrong and that that part of the decision should be overruled. It is therefore necessary to refer to some of the passages in Einstein J's reasons. At [76], his Honour referred to what Deane J had said in Chaney and Mason CJ had said in Bond, noting that one matter which exercised the mind of the Chief Justice in Bond was the undesirability of the fragmentation of administrative decision making which would be attended by a broader interpretation of the meaning of "decision". At [77] his Honour noted that it was nevertheless made clear by the Chief Justice that the meaning of the word "decision" must be determined by the context in which the word is found.
75At [80] Einstein J noted that the distinction between a "determination" and a "decision" was clear from the terms of s 208L(1) and that that distinction was reinforced by s 208M, which provided a separate right of appeal against the determination of the application. His Honour continued:
"If s 208L(1) only permits an appeal on a question of law after a final determination of the costs assessor, then the section is otiose, for an appeal under s 208M is an appeal de novo: see s 208M(4). The distinction the Act draws between the appeal procedures is not sufficiently explained ... upon the ground that one (s 208L(1)) contains a right of appeal while the other (s 208M) contains only an avenue of appeal upon leave. In my view, the different appeal procedures direct themselves to different situations. To my mind, the Act clearly contemplates that a decision is something different from and anterior to a determination of the assessment. The use of the present tense in s 208L(1) - 'arising in the proceedings to determine' - rather than the past tense - 'arose in the proceedings to determine' - demonstrates that the statute intended to create an appeal right while proceedings to determine the application were extant."
76In essence, the appellants' submissions as to the competency of the respondent's appeal may be summarised as follows:
(a)There is no statutory power in the Act to make a preliminary ruling as the costs assessor had purported to do in the present case;
(b)Nor did the Act include a power to isolate separate questions of law such as that conferred in UCPR Pt 28;
(c)As the ruling of the costs assessor had no statutory status it was not binding either on the parties or on himself;
(d)The primary judge looked at the matter from the wrong perspective as an appeal is a creature of statute so that before a ruling, decision or other conclusion can be appealed, the statutory power to appeal must be identified;
(e)Although the meaning of the word "decision" must depend on its context, it has usually been held to refer to a final determination of a particular form of procedure or, at least, a particular specifically authorised step in that procedure, as distinct from a ruling or reasoning given along the way;
(f)One of the factors which has influenced this approach is the undesirability that procedures, either quasi-curial or administrative, should be bifurcated as a result of "interlocutory" appeals or challenges: this is so notwithstanding that it may be convenient in some cases for legal issues to be determined in a preliminary manner;
(g)Even if there is no right of appeal against the costs assessor's decision under s 208L, that does not mean that the Court does not have power to provide declaratory relief or, as Deane J pointed out in Chaney, relief by way of prerogative writ. However, such relief is discretionary thus leaving the Court with the flexibility to provide a remedy but only in appropriate cases. On the other hand, if s 208L provides a right of appeal as held by the primary judge, the Court would be required to entertain every single complaint made by a party to a costs assessment which raised or arguably raised a matter of law;
(h)Although in Currabubula Einstein J referred to the distinction between a "decision" and "determination", a distinction more easily seen in s 208M, such textual considerations are not of overwhelming significance. Plainly s 208L must confer a right of appeal with respect to a decision as to a matter of law which is embodied in a final determination. The phrase "decision of a costs assessor as to a matter of law arising in the proceedings to determine the application" is better understood as conferring a right of appeal against any decision on a matter of law involved in determining the application;
(i)While the words "decision" and "determination" are used in s 208M, suggesting some difference between them, a comparison of s 208L(2) with s 208M(1) and (5) suggests that in ss 208L and 208M the words are used interchangeably;
(j)Furthermore, s 208K (to which I have referred at [62] above) refers only to a "determination": it would be paradoxical if a costs assessor's determination was protected from curial review but an "interlocutory" decision was not.