39 The hearing of the notice of motion should not become a process of taxation or assessment of costs. It is nonetheless relevant to consider what might be determined as a fair and reasonable amount for counsels' fees if there were assessment by a costs assessor. In an assessment of costs pursuant to the Legal Profession Act 1987 a costs assessor must consider whether or not it was reasonable to carry out the work to which the costs relate and what is a fair and reasonable amount of costs for the work concerned (s 108F(1)). The costs are to be determined by assessing the amount of costs that, in the costs assessor's opinion, is a fair and reasonable amount (s 208F(2)), and the costs assessor may have regard to all or any of a number of stated matters (s 208G).
40 In determining whether an amount of the order of $63,998 can with sufficient confidence be found to be a fair estimation between the parties, the way they joined issue in the notice of motion is material. It is convenient to proceed by reference to Mr Harrison's submissions.
41 Mr Harrison accepted that he is liable under the orders for the costs of the appeals jointly and severally with Emibarb Pty Ltd. He submitted that on the proper construction of the orders he is liable only for 90 per cent of assessed costs directly referable to the appeal of the Harrison defendants and half of 90 per cent of the assessed costs common to the appeals of the Harrison defendants and the Cameron defendants. Although no figures were suggested, if that were so the sum which would be assessed as payable by Mr Harrison would be less than if the Harrison defendants and the Cameron defendants were jointly and severally liable for all the 90 per cent of the costs of the appeals.
42 Mr Harrison drew support from the decision of Master Malpass in Union des Assurances de Paris IARD v Petersen (3 March 1998, unreported). Two related insureds claimed indemnity from the one insurer in separate proceedings. The proceedings were heard together. The claims failed, and the proceedings were dismissed "with costs". The costs assessor took the view that the insureds could not have brought one proceedings and become jointly and severally liable to costs, and that in any event they did not. He considered that where the work related to both proceedings half the total allowance for the work should be attributed to each proceedings, and where the work could be identified as referable to one proceedings the amount allowed should be attributed to that proceedings. The Master held that the costs assessor had not erred in law, and that his determination -
" … may be seen as an exercise in which he gave consideration to the relevant matters and assessed an amount of costs for each proceeding which was in his opinion, a fair and reasonable amount."
43 In the present case there were two appeals, one by the Harrison defendants and the other by the Cameron defendants. But the relevant order was more explicit than that in Union des Assurances de Paris IARD v Petersen. It was, "Appellants pay 90 per cent of the respondent's costs of the appeals … ". Although there were separate notices of appeal, albeit in almost identical terms, there was the one set of appeal papers, and in substance the Harrison defendants and the Cameron defendants made common cause in the appeals. Construing the order according to its terms, as an order whereby each of the Harrison defendants and the Cameron defendants is liable for all the 90 per cent of the costs of the appeals in like manner to multiple parties to the one proceedings having joint and several liability, does not offend against the circumstances in which the order was made. In my opinion the words of the order are clear. Mr Harrison is liable for 90 per cent of the costs of the appeals, without the differentiation for which he contended.
44 Mr Harrison submitted that, even if that differentiation was not accepted, his liability does not include (a) any costs referable to Mrs Schipp's cross-appeal as to the insurers' costs (he had a costs order in his favour in that respect); or (b) any costs referable to the contingent cross-appeal against the insurers. He submitted that Mrs Schipp's evidence had to identify from the total of counsels' fees what fees were referable to what. The opinion of Mr Addison, he said, was little more than assertion. It was unsupported by any analysis by way of such identification; indeed, Mr Harrison submitted that the opinion was of such minimal probative value "as warrants exclusion under section 135 of the Evidence Act". Mr Harrison said that Mr Addison's reference to the written submissions was of little value, because number of pages was not a measure of intellectual effort or a sufficient guide to fair and reasonable costs. Given the doubt of which Mr Drummond gave evidence, he said, the Court could not be satisfied that at least 75 per cent of the total of counsels' memoranda of fees would be recoverable as costs of the appeals.
45 There was no objection to the affidavit of Mr Addison. It is too late for s 135 of the Evidence Act, although the weight to be given to Mr Addison's opinion is another matter.
46 Mr Drummond does not suggest that, so far as work related to what he called the Harrison appeal or the Cameron appeal, it was not reasonable to carry out the work; nor does he suggest that, so far as work related to the Harrison appeal or the Cameron appeal, the costs for the work concerned were not a fair and reasonable amount. On the affidavit evidence of Mr Addison and Mr Drummond, the issue between them concerned what work related to the Harrison appeal as distinct from the Cameron appeal, as distinct from the cross-appeal, and as distinct from what Mr Drummond called "other extraneous work". The only indication of extraneous matters was Mr Drummond's references to activity in proceedings 6425 of 1991, the original proceedings heard by Einstein J.
47 Mr Addison accepted that the total amount in the memoranda of fees would not be recovered on an assessment of costs. In the absence of cross-examination, I consider that I can take it that he anticipated the matters raised by Mr Drummond. As the parties left the evidence, finding what of the $85,330 was for work relating to the costs of the appeals (for the reasons earlier given meaning both what Mr Drummond calls the Harrison appeal and what he calls the Cameron appeal), as distinct from the cross-appeal and the extraneous work, will be central to finding whether an amount of the order of $63,998 is a fair and reasonable estimation of the costs payable in respect of counsels' fees.
48 Mr Addison wrote the letter of 9 March 2001 in which, after referring to "the costs of the appeals", he said that counsels' memoranda of fees would be claimed in full. Unless it is reasonably apparent from the memorandum, I see no reason to speculate that an item relates to the extraneous work. Items in junior counsel's memoranda for 24 March 1999 ($150), 12 June 1999 ($500), 16 June 1999 ($225), 23 June 1999 ($37.50), 16 August 1999 ($75), 19 August 1999 ($150), 20 October 1999 ($675), 21 October 1999 ($1500), 22 October 1999 ($1500), 25 October 1999 ($300), appear to relate to extraneous work. Cross-reference to items for the same dates in senior counsel's less detailed memoranda suggests exclusion of items for 23 June 1999 ($80) and 16 August 1999 ($400). I exclude $5,593 from the $85,330.
49 The cross-appeal in relation to the insurers' costs placed little demand on counsel in comparison with the detailed attention to the facts and law in the principal area of dispute in the appeals. No more than 10 per cent of counsels' fees could be attributed to it, and I include in that junior counsel's item for drafting the notice of cross-appeal. I exclude $7,974 from the now $79,737.
50 Counsel prepared for the contingent claim to overturn the failure of the claim against Mr Harrison's insurers, although the hearing of the cross-appeal in that respect was deferred. Of the now $71,763, $24,225 was for the four hearing days of the appeal and the supplementary submissions. The items for the remaining $47,538 are often specifically directed to the appeals of the Harrison defendants and the Cameron defendants rather than the cross-appeal involving the insurers, and to attribute 10 per cent to preparation of the cross-appeal involving the insurers would be generous. I exclude $4,754 from the $71,763, again including in that junior counsel's item for drafting the notice of cross-appeal.
51 The result is $67,010. Mrs Schipp has an order for 90 per cent of her costs of the appeals, and 90 per cent of $67,010 is $60,309.
52 The apparent mathematical exercise is nonetheless an estimation. It is also not the end of the process of estimation. I bear in mind Mr Addison's opinion, and that Mr Drummond's opinion is one of doubt, not forthright denial; Mr Drummond's opinion appears also to be founded in part on separating out the costs of what he called the Cameron appeal. The mathematics brings an amount a little less than the $63,998, about 95 per cent of that amount. But I have made favourable allowances to Mr Harrison in the mathematics, and it must be repeated that while the approach must be logical, fair and reasonable, it is a broad approach. I am satisfied that it can fairly be estimated, on the broad-brush approach, that an amount of the order of 75 per cent of the total of counsels' memoranda of fees would be recoverable as costs of the appeals, and on the evidence that that amount is a fair and reasonable gross sum in respect of counsels' fees.
53 Mr Harrison submitted that even if the Court were so satisfied the orders claimed in the notice of motion should not be made, because it would be futile to make them. The argument ran as follows. Mrs Schipp's purpose is to call for payment under the bank guarantee. In the absence of agreement (and there was no agreement), calling for payment under the bank guarantee needed "the issue of a costs certificate". That could only mean a certificate issued by a costs assessor setting out the determination of an application for assessment of costs, see s 208J of the Legal Profession Act. Costs were no longer taxed by or in the Court, and the Court had no power to order that the registry issue a certificate of taxation to Mrs Schipp for the costs. Nor did the Court have power to order that the registry issue a certificate of determination; only a costs assessor could issue a certificate of determination, and the certificate of determination had to result from an application for assessment of costs and the making of a determination in the manner directed by the Legal Profession Act (see Division 6 of Part II). The Court could not make the second order sought or any order that the registry issue a certificate of determination, and since the first order sought would not enable Mrs Schipp to call for payment under the bank guarantee, the first order sought should not be made either.
54 I agree that the Court can not make an order in the terms of the second order sought. There is no longer taxation of costs, and under the Legal Profession Act there is assessment of costs. The costs assessor gives a certificate of determination, not a certificate of taxation. The registry does not issue a certificate of taxation, or a certificate of determination. The Court can not order that the registry issue a certificate of determination.
55 It does not follow that the first order sought should not be made. If the grounds for making it have been made out, that Mrs Schipp has the purpose of calling for payment under the bank guarantee does not stand in the way. She is entitled to the order even if her purpose can not be achieved.
56 In any event, I do not accept that Mrs Schipp's purpose can not be achieved. Section 208I of the Legal Profession Act preserves the Court's power "to determine in any particular case the amount of costs payable … ". Part 52A r 1(1) provides that Pt 52A applies to and in respect of, inter alia, "costs payable or to be assessed under any order of the Court"; by Pt 52A r 1(2) the application is subject to the Legal Profession Act. Costs may be payable under an order of the Court although not to be assessed under an order of the Court, and costs under an order pursuant to Pt 52A r 6(2)(c) are of that kind - a gross sum specified in the order instead of assessed costs. The order for payment of a gross sum will in due course be entered by the sealing of a minute of the order signed by the registrar or by the Judge or Master by whom it was made (Pt 41 r 13), and on payment of the prescribed fee the registrar must furnish to a party to any proceedings a certified or office copy of the minute of any order entered in the proceedings (Pt 41 r 15). I consider it fairly arguable that the furnishing of a certified copy of the minute of an order that Mrs Schipp is entitled to a gross sum specified in the order would be the issue of a costs certificate within the meaning of the bank guarantee. "Costs certificate" is not a term of art. The certified copy of the minute of order serves the same end as a certificate of determination, in that it is the best evidence of an amount payable to Mrs Schipp by way of costs. That appears to be what the bank guarantee intends.
57 I appreciate that National Australia Bank Ltd is not a party to Mrs Schipp's proceedings. What I have said addresses that part of Mr Harrison's argument in which he submitted that "the issue of a costs certificate" in the bank guarantee could only mean the issue of a certificate of determination in an assessment of costs. It is sufficient that a contrary view is fairly arguable.