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[2004] HCA 27
procedural. The application to review taxation was granted. The Minister was declared entitled to recover the disallowed counsel-fee items, the taxing officer was directed to complete the taxation...
24 cited instruments linked from this judgment.
The Minister had incurred legal costs in three proceedings involving Goldie. Some claimed fees were for AGS lawyers performing the role of counsel, and the taxing officer had disallowed them under a rule that excludes counsel fees in specified employment situations. Gummow J concluded that the rule did not cover this arrangement: the AGS was a separate statutory corporation, not a practitioner or firm of practitioners, and its counsel was salaried by the AGS rather than by the Commonwealth. The Minister could therefore recover the disallowed items through taxation. The Court did not decide broader questions about the validity or full statutory operation of the rule.
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The judgment concerns three High Court proceedings involving Brian Gerald James Goldie and the Minister for Immigration and Multicultural Affairs. In two proceedings, Goldie had sought relief under s 75(v) of the Constitution. A Justice dismissed those applications on 3 September 2001 and ordered costs in favour of the Minister. In the third, Goldie applied for special leave to appeal from a Full Court of the Federal Court. He did not prosecute that application, and a Deputy Registrar issued a certificate of deemed abandonment on 21 June 2002. The costs of that application were also payable to the Minister, subject to taxation if the parties did not agree: [1].
The Minister’s legal work was carried out by the Australian Government Solicitor (AGS). Mr Corbould, an AGS solicitor, had conduct of the proceedings. Mr Macliver, another AGS lawyer, performed the role of counsel. The relevant AGS practice was to deliver a brief marked with daily and hourly rates for an AGS lawyer acting as counsel. The AGS then invoiced for those services and consolidated the amount with other legal-service charges to its client: [14]-[17].
At taxation, the fees claimed for the in-house counsel services were disallowed. The amounts were $8,420.70 and $4,605.80 in the two constitutional applications and $5,072.30 in the special leave proceeding: [5]. The initial decision was upheld on review by another Deputy Registrar, who considered that O 71 r 93 of the High Court Rules applied. The Minister then sought review by a Justice under O 71: [5]-[7].
Gummow J granted the review. The central question was whether r 93 prevented the Minister from recovering the counsel fees because Mr Macliver was salaried by the AGS. The Court concluded that the AGS was neither a “practitioner or firm of practitioners” nor “the Commonwealth” within the meaning of that rule. The Minister was therefore entitled to recover the disallowed items, and the taxing officer was directed to complete the taxation on that basis: [22]-[29].
The starting point was the wording and structure of O 71. Rule 74 generally allows costs and expenses that appear necessary or proper for the attainment of justice or for maintaining or defending a party’s rights. Rule 91 provides that counsel fees may be allowed in an amount the taxing officer considers reasonable. Rule 93 then limits that general approach by excluding a counsel’s fee where the practitioner is paid by, or receives a salary from, a practitioner or firm of practitioners, the Commonwealth or a State: [18].
The Court considered the AGS’s statutory status. Following amendments made principally by the Judiciary Amendment Act 1999, the AGS was a body corporate under s 55M(a) of the Judiciary Act. Its functions included providing legal services to the Commonwealth and, in specified circumstances, to a Minister. It could charge for those services, and s 55P(2) stated that an amount charged could be recovered by the client as costs incurred by that client: [9]. The AGS was not funded by parliamentary appropriation after 1 September 1999, and a substantial part of its revenue came from fees paid by clients: [13].
That status mattered to the first part of r 93. Gummow J held that the “practitioners” referred to in the rule were persons whose names were entered in the relevant register. The AGS itself was a corporate entity, not one of those persons and not a “practitioner or firm of practitioners”: [22]. The conclusion was about the entity employing the lawyer, not whether Mr Macliver was himself qualified or able to practise.
The second part of the analysis concerned whether the salary came from “the Commonwealth”. Gummow J read the term in the context of the rule. It identified the body providing the salary, so the relevant question was the identity of the entity in a contractual relationship with the practitioner. Mr Macliver’s employer was the AGS, a corporation, and there was no contract between him and the Commonwealth: [23].
The broader statutory structure reinforced that reading. Part VIIIB of the Judiciary Act dealt with the AGS, while Pt VIIIA dealt with “Attorney-General’s lawyers”. In relation to services by Attorney-General’s lawyers, s 55G referred to fees charged by the Commonwealth. By contrast, s 55P addressed charges by the AGS. Gummow J treated this statutory distinction between the AGS and the Commonwealth as relevant to r 93: [24], [26].
The Court also considered the consequences of the competing construction. Treating the AGS as the Commonwealth for r 93 could raise questions about whether the rule detracted from s 55P, which allowed recovery of AGS charges as client costs. It could also produce a different costs position for a Minister engaging the AGS than for a private party engaging an incorporated legal practice. Section 64 of the Judiciary Act provided for costs in suits involving the Commonwealth as nearly as possible on the same basis as in suits between private parties: [26]-[27]. Those points supported the construction adopted, but the Court did not decide the broader questions about the rule-making power or the complete operation of ss 55G and 64: [25].
The judgment describes O 71 as having been adopted in 1952, when the legal profession and legal practices were organised differently. The Minister argued that r 93 should be read in the context of the contemporary statutory arrangements and developments in legal practice, including the AGS’s corporate form: [19]-[21]. The Court accepted that the AGS’s later statutory status was relevant to interpreting the rule.
Before the 1999 amendments, the Rules’ reference to practitioners and firms would have operated against a different institutional landscape. The judgment does not set out a comprehensive account of the law before those amendments, or decide how r 93 applied to every earlier employment model. It does explain that the 1999 Act inserted Pt VIIIB, established the AGS as a body corporate, and authorised it to provide and charge for legal services: [9]-[13].
After this decision, the rule’s references to a “practitioner or firm of practitioners” and “the Commonwealth” could not simply be extended to the AGS on the basis that it provided legal services for the Commonwealth or employed Commonwealth lawyers. For the arrangement before the Court, the AGS remained distinct from the Commonwealth for the purpose of r 93: [22]-[26]. The decision did not strike down r 93, amend its text, or determine all possible applications to incorporated legal practices. It resolved the specific issue concerning the AGS and the fees claimed in these proceedings.
The Court also relied on s 64’s equal-costs framework. Section 64 provided that, in a suit involving the Commonwealth or a State, rights and costs awards should be as nearly as possible the same as in a suit between private parties: [2]-[3]. The comparison with private incorporated practices supported the conclusion that construing the AGS as the Commonwealth for r 93 could create an unexplained difference in costs recovery: [27]. The Court did not decide a general rule for every government legal entity or every form of in-house practice.
At [22], Gummow J said that the AGS, “as a corporate entity, is not” a practitioner or firm of practitioners within r 93. In plain English, the rule’s first category did not cover an employer just because it employed lawyers and supplied legal services. The AGS’s distinct corporate status meant it was not itself a practitioner or a firm for this rule.
At [23], the judgment explains that r 93 directs attention to the body that provides the salary and the entity in contractual relationship with the lawyer. The relevant employer was the AGS, not the Commonwealth. The point was not that the AGS had no connection to government; rather, the statutory and employment arrangements treated the AGS as a separate entity for this purpose.
At [24], the Court contrasted Pt VIIIA with Pt VIIIB. Section 55G dealt with services supplied by Attorney-General’s lawyers and referred to the Commonwealth charging fees. Section 55P dealt with fees charged by the AGS. In ordinary terms, Parliament had used separate provisions for these distinct arrangements, which supported treating the AGS and the Commonwealth as different entities when reading r 93.
At [26], Gummow J stated that “the term ‘the Commonwealth’ is not used in any expanded sense which would embrace the AGS.” That is the direct answer to the second part of the taxation issue. The word “Commonwealth” in r 93 did not include the AGS simply because the AGS was a public-sector body.
Finally, the order at [29] granted review, declared that the Minister could recover the disallowed fees and directed the taxing officer to complete the taxation. This was a costs-taxation ruling, not a decision on the underlying immigration proceedings.
The judgment is most directly relevant where a costs claim includes fees for a lawyer employed by the AGS who performed the role of counsel, and the opposing party argues that O 71 r 93 bars those fees because the lawyer received a salary. The key features here were a separately incorporated AGS, a salaried AGS lawyer acting as counsel, a fee raised for that work and invoiced to the client, and a taxation decision disallowing the fee under r 93: [9], [14]-[18].
The reasoning also makes the identity of the employer important. A lawyer’s professional qualification, or the fact that the lawyer performed counsel-like functions, does not alone answer whether the salary was received from “the Commonwealth” under r 93. The Court focused on the legal identity of the employing entity and the relevant contractual relationship: [22]-[24].
The decision may be relevant to arguments about statutory corporations and incorporated legal practices, but its holding should not be treated as resolving every such case. Gummow J observed that private incorporated legal practices were not caught by the wording of r 93 in the same way as a practitioner or partnership, and used that point in considering s 64: [27]. The judgment does not decide the treatment of every corporate legal-services provider, every salary arrangement, or every form of counsel fee.
The procedural setting also matters. This was a review of taxation under O 71, and the Court considered whether the particular items could be allowed under the applicable costs rules. It did not determine whether the underlying proceedings were correctly decided, nor did it reconsider the costs orders themselves: [1], [6]-[7], [28]-[29].
The supplied judgment contains no discussion of later decisions applying, distinguishing or questioning Goldie. It was decided in 2004, and the material provided does not establish how subsequent courts have treated it. No conclusion about later treatment can therefore be drawn from this text alone.
The authorities identified within Goldie are earlier decisions. The judgment cites Austral Pacific Group Ltd (In liq) v Airservices Australia and Australian Securities and Investments Commission v Edensor Nominees Pty Ltd in relation to the meaning of “the Commonwealth” in s 64: [2]. It cites Airservices Australia v Canadian Airlines International Ltd in the discussion of the statutory financial-accountability framework: [11]. Gummow J refers to Guss v Veenhuizen [No 2] when describing the form of order to make following the review: [28]. These citations do not establish later treatment of Goldie.
For research purposes, the judgment itself supports a narrow statement of its holding: for the AGS arrangements before Gummow J, r 93 did not disallow the claimed counsel fees because the AGS was neither a practitioner or firm of practitioners nor the Commonwealth within that rule. Whether later courts have extended or limited that reasoning requires sources not included here.
Gummow J expressly left some questions undecided. At [25], he said it was unnecessary to discuss the relationship between r 93 and the rule-making power in s 86 of the Judiciary Act, or the impact of ss 55G and 64. The judgment therefore does not provide a final answer on whether a rule framed in this way could alter, impair or detract from the statutory fee-recovery provisions.
The Court also identified, without resolving in the abstract, potential consequences of construing “the Commonwealth” broadly. Such a construction could raise a question about the operation of s 55P and whether AGS charges remained recoverable as client costs: [26]. It could also create a difference between parties using the AGS and private parties using incorporated legal practices, engaging the equal-treatment principle in s 64: [27]. The holding avoided those difficulties through its construction of r 93, rather than deciding the full reach of the statutory provisions.
The judgment does not specify how r 93 would apply to all other government legal-service structures, to a lawyer employed directly by a government department, or to a statutory entity with a different legislative framework. The contrast with Attorney-General’s lawyers under Pt VIIIA is relevant, but Gummow J expressly said that further discussion of the interaction between that Part and r 93 was unnecessary: [24]-[25].
Nor does the decision prescribe how counsel fees should be assessed for reasonableness. Rule 91 leaves that question to the taxing officer, and the order directs the officer to complete taxation accordingly: [18], [29]. The judgment resolves the threshold exclusion issue, not the amount ultimately allowed under every applicable taxation principle.
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GUMMOW J
Matter No. P1/2001
RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR RESPONDENTS
EX PARTE BRIAN GERALD JAMES GOLDIE & ANOR APPLICANTS/PROSECUTORS
Matter No. P22/2001
RE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR RESPONDENTS
EX PARTE BRIAN GERALD JAMES GOLDIE APPLICANT/PROSECUTOR
Matter No. P47/2001
BRIAN GERALD JAMES GOLDIE APPLICANT
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
Re Minister for Immigration and Multicultural Affairs; Ex parte Goldie
Re Minister for Immigration and Multicultural Affairs; Ex parte Goldie
Goldie v Minister for Immigration and Multicultural Affairs
[2004] HCA 27
15 June 2004
P1/2001, P22/2001 and P47/2001
ORDER
(1) Application to review taxation granted.
(2) The Minister to recover the items for counsel's fees which were disallowed.
(3) The taxing officer to complete taxation accordingly.
(4) Mr Goldie to pay the Minister's costs of the summons.
Representation:
H C Burmester QC for the Minister for Immigration and Multicultural Affairs in all matters (instructed by Australian Government Solicitor)
No appearance for Brian Gerald James Goldie
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Minister for Immigration and Multicultural Affairs; Ex parte Goldie
High Court – Practice – Costs – Taxation – Counsel fees – Australian Government Solicitor ("AGS") providing services of both solicitor and counsel – Brief marked at a daily rate and an hourly rate delivered by AGS solicitor to AGS in-house counsel – Invoices of fee raised for performance of services in the role of counsel and consolidated with other charges – Whether allowances should be made for AGS in-house counsel fees where in-house counsel acting as counsel – Whether fees allowed under High Court Rules, O 71 r 91 – Whether AGS is a practitioner or firm of practitioners within the meaning of High Court Rules, O 71 r 93 – Whether AGS is the Commonwealth within the meaning of High Court Rules, O 71 r 93.
Words and phrases – "Australian Government Solicitor", "in-house counsel", "practitioner or firm of practitioners", "the Commonwealth".
Judiciary Act 1903 (Cth), ss 55A-55ZI and 64.
High Court Rules (Cth), O 71.
GUMMOW J. In three proceedings in this Court instituted in 2001, a lawyer employed by the Australian Government Solicitor ("the AGS") appeared for one of the parties, the Minister for Immigration and Multicultural Affairs ("the Minister"). Two of these proceedings (P1/2001 and P22/2001) were applications by Mr B G J Goldie under s 75(v) of the Constitution and were dismissed by a Justice on 3 September 2001 with costs orders in favour of the Minister. The other proceeding was an application by Mr Goldie (P47/2001) for special leave to appeal against a decision of the Full Court of the Federal Court. That application was not prosecuted and, on 21 June 2002, a Deputy Registrar issued a certificate of deemed abandonment under O 69A r 13(2) of the High Court Rules ("the Rules"). As a result, Mr Goldie was required to pay the costs of the Minister in respect of the special leave application, these to be taxed unless agreed upon between the parties.
Section 64 of the Judiciary Act 1903 (Cth) ("the Judiciary Act") provides:
"In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject." (emphasis added)
The term "suit" is defined in s 2 as including any action or original proceeding between parties. The Minister is included in the term "the Commonwealth" as used in s 641.
One effect of s 64 is to make it clear there is no room in federal law for the application of the principle that at common law the Crown neither paid nor received costs, it being in the Prerogative not to pay them to a subject and beneath the dignity of the Crown to receive them2. The common law rule had not been completely applicable to Chancery proceedings3 and, in any event, in England general provision to the effect now found in s 64 of the Judiciary Act had been made by legislation beginning with the Crown Suits Act 1855 (UK)4, s 1.
Bills of costs were filed by the Minister in respect of each proceeding and the taxation was conducted by a Deputy Registrar. Mr Goldie did not appear at the taxation and had previously, on 24 April 2002, voluntarily departed Australia. The evidence before me indicates that he remains outside Australia.
At the taxation, a question arose as to allowances to be made for fees for "in-house counsel". Claims were made for such fees in the sums of $8,420.70 and $4,605.80 in respect of the two applications under s 75(v) and $5,072.30 in respect of the special leave application. Those fees were disallowed and on 26 September 2003 the Minister sought a review of that ruling. That review was undertaken by another Deputy Registrar who, on 30 January 2004, issued written reasons for his decision that the earlier decision to disallow the fees in question was correct.
There is now before the Court a summons filed on 12 March 2004 in each of the proceedings P1/2001, P22/2001 and P47/2001 for an order to review the taxation respecting the disallowance of in‑house counsel's fees.
Order 71 r 22 provides that every decision of a taxing officer shall be subject to "review by a Justice" and O 71 r 90 contains a more detailed provision for review by a Justice of the taxation in a case such as the present; on such an application (made under O 71 r 89(1)), further evidence may be received on the direction of a Justice. In the present case, such evidence was provided by affidavit of David George Riggs filed on 17 May 2004. Mr Riggs is the Chief Financial Officer at the AGS with responsibility for the practices followed by the AGS in charging for its legal services.
In order to appreciate the issues which have arisen on the taxation, it is necessary first to consider the provisions in the Judiciary Act for the establishment and functioning of the AGS.
Significant changes were made by the Judiciary Amendment Act 1999 (Cth) ("the 1999 Act") and references to the Judiciary Act are to that statute in its form after amendments principally by the 1999 Act. The 1999 Act inserted Pt VIIIB (ss 55I‑55ZE), which is headed "The Australian Government Solicitor". The AGS is a body corporate (s 55M(a)). Its functions include the provision of legal services and related services to the Commonwealth (s 55K(a)), and in performing that function the AGS may provide services to a Minister of the Commonwealth (s 55N(1)(c)). The AGS may charge fees in relation to the provision of those services, including for disbursements (s 55P(1)). Section 55P(2) states:
"If the AGS has charged a client an amount under subsection (1), the amount may be recovered by the client as costs incurred by the client."
The Explanatory Memorandum for the Bill which became the 1999 Act indicates that the intended operation of s 55P was that a client may recover costs in the same way as the client of a "private" legal practitioner subject to the usual rules and principles relating to costs and the taxation of costs5.
"(a) to do everything necessary or convenient for that purpose; and
(b) to practise as a barrister, solicitor, or barrister and solicitor in any court and in any State or Territory; and
(c) to all the rights and privileges of so practising".
The AGS is a Commonwealth authority within the meaning of the Commonwealth Authorities and Companies Act 1997 (Cth) ("the CAC Act"), being a body corporate incorporated for a public purpose by a statute of the Commonwealth (s 7(1)(a)). It is also a "GBE" or "government business enterprise" for the purposes of the CAC Act6. Following the repeal of the Audit Act 1901 (Cth)7, the CAC Act and related legislation, the Financial Management and Accountability Act 1997 (Cth) ("the FMA Act"), provide detailed rules concerning reporting and accountability in respect of the financial affairs of Commonwealth authorities.
The Judiciary Act provides that the AGS may be required to pay a dividend to the Commonwealth and to make a payment of a specified amount to ensure that it does not enjoy "net competitive advantages" over its competitors by virtue of "its public sector ownership" (s 55ZE(3)). The Attorney-General may issue directions applying to any work performed by or on behalf of the AGS in performance of its function (s 55ZF).
Since the commencement on 1 September 1999 of the 1999 Act, the AGS has not been funded by any appropriation by the Parliament. A significant proportion of its revenue, $96.8 million for the financial year 2002‑2003, is derived from fees rendered to clients.
Mr P J Corbould is a solicitor employed in the Perth office of the AGS. He had the care and conduct on behalf of the Minister of the three proceedings in question here. The terms and conditions of staff of the AGS are determined by the CEO (s 55ZB(2)) and those terms and conditions provide for the remuneration of AGS lawyers by salary.
The CEO also has decided that certain lawyers on the staff of the AGS are available to perform, if briefed, the functions normally performed by a barrister practising at the independent bar of the Supreme Court of a State or Territory when briefed by a solicitor of that Court. Generally, these lawyers are senior lawyers within the AGS who have responsibility approximating to those of a partner in a private firm of practitioners.
To an AGS lawyer performing the role of counsel, a brief is delivered marked at a daily rate and an hourly rate. At an appropriate time an invoice of fees will be raised for the performance of services in the role of counsel and will be consolidated with the other charges for which the client is invoiced. Funds collected by the AGS in payment of the invoice to the client, including fees for in‑house counsel, become part of the funds which are held by the AGS on its own account and such revenue is applied to meeting the running costs of the AGS, as well as to make payments to the Commonwealth under s 55ZE(3).
"Such fees may be allowed to counsel as in the circumstances of the case the taxing officer thinks reasonable."
Order 71 r 94 states:
"When a practitioner acts in the capacities of both barrister and solicitor, or appears as counsel instructed by his partner acting as solicitor, neither he nor his partner may make a charge for 'instructions for brief' or for 'drawing' or 'engrossing brief', but, in lieu of those charges, the practitioner or partner, as the case may be, is entitled to such fees as are allowed by the taxing officer for 'preparing for trial' and for 'preparing brief notes for use on trial'."
Order 71 r 93 was given particular consideration on the taxation and on the review. It states:
"A counsel's fee shall not in any case be allowed to a practitioner who is a paid clerk of, or is in receipt of a salary from, a practitioner or firm of practitioners, or the Commonwealth or a State."
Reference also should be made to r 103 of O 71. It states:
"A fee to counsel (other than to a practitioner acting as both solicitor and counsel) shall not be allowed on taxation unless unconditional payment is vouched by the signature of counsel or otherwise proved to the satisfaction of the taxing officer."
The Rules were adopted in 1952. The power to make the Rules was that conferred by s 86 of the Judiciary Act. The power is expressed in terms of that which is "necessary or convenient to be made for carrying into effect the provisions of [the Judiciary Act] or so much of the provisions of any other Act as confers jurisdiction on the High Court or relates to the practice or procedure of the High Court". The provisions of the Judiciary Act there mentioned include Pt VIIIB.
In the submissions for the Minister, two points of immediate importance were made. The first is that the Rules are to be given an ambulatory interpretation in the sense that they should be read, if possible, in a fashion which accommodates changes made from time to time to the principal statute, the Judiciary Act, by such legislation as the 1999 Act read in conjunction with the CAC Act and the FMA Act. Thus, it is said, the general provision for the allowance of costs made in O 71 r 74 should be read so as to accommodate changes in legal practice made from time to time by the Judiciary Act itself.
The second submission focuses upon r 93 of O 71. This is a limitation or qualification to the general principles otherwise to be applied on taxation. It is submitted that when r 93 is read in context, particularly with rr 91, 94 and 103, the practitioners and firms of practitioners there referred to are individuals and partnerships in accordance with the general understanding in 1952 and thereafter as to the organisation of the legal profession and the conduct of the practice of law. This did not allow of receipt of instructions, and appearance on the court record, by corporate practitioner entities.
Mr Macliver was in the receipt of a salary but was that salary received from "a practitioner or firm of practitioners" within the meaning of r 93? The practitioners there referred to are those persons whose names are entered in the Register of Practitioners kept at the Registry of the Court under s 55C of the Judiciary Act. Subject to what may be wider rights conferred on them by s 55Q(1)(b), set out above, AGS lawyers who practise in the High Court would be expected to appear in that Register (ss 55C, 55D and 55I). The AGS itself, as a corporate entity, is not such a person and is not a "practitioner or firm of practitioners" within the meaning of r 93.
Was Mr Macliver "in receipt of a salary from ... the Commonwealth"? The term "the Commonwealth" is used in various senses particularly in Ch III of the Constitution and the Judiciary Act8. In r 93, the term "the Commonwealth or a State" is used to identify the body providing the salary to the practitioner whose fee is in question and attention thereby is directed to the party in contract with the practitioner to whom the salary is provided. Here, that entity is a corporation and there is no contract between Mr Macliver and the Commonwealth.
(1) Grant the application to review taxation.
(2) Declare that the Minister is entitled to recover the items for counsel's fees which were disallowed.
(3) Direct the taxing officer to complete taxation accordingly.
(4) Mr Goldie pay the Minister's costs of the summons.
See Austral Pacific Group Ltd (In liq) v Airservices Australia (2000) 203 CLR 136 at 143 [15], 152‑153 [48]; Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 582 [43]. ↩
Robertson, The Law and Practice of Civil Proceedings by and against the Crown and Departments of the Government, (1908) at 613. ↩
Robertson, The Law and Practice of Civil Proceedings by and against the Crown and Departments of the Government, (1908) at 621‑625. ↩
18 & 19 Vict c 90. ↩
Explanatory Memorandum for the Judiciary Amendment Bill 1998 at 6. ↩
Section 5 (definition of GBE or government business enterprise) and Commonwealth Authorities and Companies Regulations 1997, reg 4. ↩
Audit (Transitional and Miscellaneous) Amendment Act 1997 (Cth), s 3 and Sched 1, Item 1. See Airservices Australia v Canadian Airlines International Ltd (2000) 202 CLR 133 at 269 [402]. ↩
Australian Securities and Investments Commission v Edensor Nominees Pty Ltd (2001) 204 CLR 559 at 581‑582 [42]-[43]. ↩
Rule 93, in any event, would not apply to a counsel's fee rendered by the Solicitor-General of the Commonwealth. The holder of that statutory office receives such remuneration as is determined by the Remuneration Tribunal (Law Officers Act 1964 (Cth), ss 5, 6 and 7) and is not "in receipt of a salary". ↩
Goldie
Minister for Immigration and Multicultural Affairs
(2000) 203 CLR 136
(2001) 204 CLR 559
(2000) 202 CLR 133
(1976) 136 CLR 47
The application to review taxation was granted. The Minister was declared entitled to recover the disallowed counsel-fee items, the taxing officer was directed to complete the taxation accordingly, and Goldie was ordered to pay the Minister’s costs of the summons: [29].
Mr Peter Macliver is one of the AGS lawyers whom the CEO has decided to allow to perform the role of counsel just described. He has performed that role on a number of occasions as a member of the staff of the AGS in Perth. The invoices and fees in issue here are of the type described above with respect to an AGS lawyer performing the role of counsel.
Order 71 r 74 is a general provision for the allowance of taxation of "all such costs, charges and expenses as appear to [the taxing officer] to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party". Order 71 r 91 states:
In this regard, it is to be noted that the provisions of Pt VIIIB stand in the Judiciary Act separately and apart from Pt VIIIA (ss 55A-55H) which is headed "Legal practitioners". Part VIIIA contains in ss 55E-55G special provisions relating to "Attorney-General's lawyers". The latter are persons who, if not the "Secretary to the Attorney-General's Department", are "in" that Department and are "engaged under the Public Service Act 1999 [(Cth)]" (s 55E(1)(b)(ii)). In respect of provision of services of a legal professional nature provided by such lawyers, it is "the Commonwealth" which may charge fees which may be recovered by the client as costs incurred by the client (s 55G). That provision may be contrasted to s 55P respecting the charging of fees by the AGS. With respect to the charging and recovery of fees, the Judiciary Act thus distinguishes between the AGS and the Commonwealth. Rule 93 should be read in the light of that distinction.
It is unnecessary for present purposes to discuss the relationship between O 71 r 93 and the empowering provision in s 86 of the Judiciary Act, and the provisions in Pt VIIIA dealing with "Attorney-General's lawyers". In particular, it is unnecessary to consider for O 71 r 93 the impact upon the rule-making power of ss 55G and 64 of the Judiciary Act9.
It is sufficient for present purposes to indicate that in r 93 the term "the Commonwealth" is not used in any expanded sense which would embrace the AGS. Were the contrary construction to be adopted, a question would arise as to whether the rule altered, impaired or detracted from the operation of s 55P dealing with the charging of fees by the AGS and their recovery by the client of the AGS as costs incurred by the client.
A contrary interpretation of r 93 would also raise a question respecting the operation of s 64 of the Judiciary Act. Counsel for the Minister pointed out in his submissions that as an incorporated legal practice the AGS now is not unique in that regard. As is indicated above, r 93 does not apply to a practitioner who is in receipt of a salary from a "private" incorporated legal practice. If the AGS, a body corporate, fell within the term "the Commonwealth" in r 93, then parties such as the Minister who engage the AGS would be, in respect of recovery of costs, in a different position to private parties who engage another incorporated firm of practitioners. Section 64, which extends to the Minister, gave the Minister in the proceedings in question the same rights, as nearly as possible, as those of the other parties and provided for the award of costs as in a suit between subject and subject.
The decision on review of the original taxing officer's decision was on the basis that the disallowance was supported because the AGS is "the Commonwealth" for the purposes of O 71 r 93. The Court having reached the contrary conclusion, an order should now be made in the form indicated by Guss v Veenhuizen [No 2]10.
On the summons filed on 12 March 2004, I make the following orders:
(1976) 136 CLR 47 at 61. ↩