(see Carson v Pickersgill and Sons (1885) 14 QBD 859). A litigant cannot make a profit out of costs. So, where a solicitor cannot recover costs from the litigant, that litigant cannot recover costs from the other party, (Re Sweeting (1898) 1 Ch 268 at pp 272-3; Browne v Barber (1913) 2 KB 553 at 580. In Oliver on the "Law of Costs" the learned author at page 1 says '... where a judgment or order provides for the payment of costs to a party by another party, ... such costs do not belong to the solicitor; they are the property of the client and are given to him as an indemnity or partial indemnity against the costs he has incurred in the proceedings.' So it is clear that, if a party pays no costs he has nothing against which to be indemnified, (Gundry v Sainsbury (1910) 1 KB 645); see also Carson v Pickersgill (supra)." (emphasis mine) I agree with this general statement of the law. In re Hope (supra) shows that the position is different if the client has already paid monies to his unqualified solicitor on account of his costs of the action. Those monies can be recovered on taxation. 18. The Master concluded:- "I am satisfied that section 22(4) of the Legal Practitioners Act is not a provision, as submitted by the plaintiff, which 'entitles legal practitioners with particular types of practising certificates to recover their own costs and disbursements'. The section is clearly designed to prevent a practitioner, who does not hold a practising certificate, from recovering costs and disbursements. Therefore, neither Davis nor Conley are entitled to recover costs and disbursements from their client. It follows that, if they are not, neither is Dawsons. It follows further that, if the plaintiff pays no costs to its solicitors in respect of work done by them, there

is nothing against which the plaintiff is to be indemnified." 19. I respectfully agree with the first paragraph of this conclusion. As to the second, I consider that both Messrs Davis and Conley are not entitled to recover costs and disbursements for professional work they carried out in this Territory litigation, but Mr Conley's disentitlement does not flow from s.22(4). If TNT has paid nothing to Dawsons by way of its costs for this litigation, TNT has nothing to recover in that regard from Interstate on taxation, since Dawsons are not entitled to recover from TNT. I consider, however, on the basis of In re Hope (supra) that s.22(4) of the Act does not prohibit TNT from recovering from Interstate on taxation advances it has already paid to Dawsons on account of their proper costs and disbursements in this litigation. (iii) The significance of the decision in Australian Dredging 20. Relying on Minister for Works v Australian Dredging and General Works Pty Ltd (1986) WAR 235, Interstate also submitted that since neither Messrs Davis nor Conley held practising certificates they (and thus Dawsons) were not entitled to recover for professional legal work performed in the conduct of litigation before this Court, since they lacked a right of audience before it. (It also submitted that both counsels' fees and the costs of WK were properly viewed as disbursements payable by Dawsons as principal solicitors with the carriage of the action, and could not be recovered by Dawsons for the same reason that they could not recover their own profit costs.) In Australian Dredging (supra) the company retained Victorian solicitors and counsel to appear in an arbitration in Western Australia; neither the counsel nor the solicitors were admitted to practise in that State. (In the present case, the plaintiff's counsel were both entitled to practise as barristers in the Northern Territory, while Mr Davis was a practitioner, though uncertificated.) Most of the work in "getting up" the case was done by that legal team in Victoria; the Victorian solicitors were clearly acting as principal solicitors and not as agents for Western Australian solicitors, whose services were in fact engaged just the day before the hearing began though they were described in the Bill of Costs as "principals". The company succeeded in the arbitration and the Minister was ordered to pay costs. The company's Bill of Costs included items for counsels' fees as paid and for the professional costs of the Victorian solicitors in getting up the case. Whether the company could recover those amounts on taxation was the substance of the question before the Court of Appeal. (The costs of the Western Australian solicitors were not in issue; Kennedy J. at p 243 clearly considered they were payable.) The Minister relied on two grounds to support his submission that the company could not recover those two items of costs. 21. The first ground was that the Legal Practitioners Act 1893 (WA) prohibited the carrying on of legal work by a person other than a certificated practitioner; all the Judges found it unnecessary to decide the case upon that ground, though Wallace J. (at p 241) appeared to accept that the prohibition in s.77 of that Act had been breached. There was nothing in the Western Australian Act corresponding to s.22(4) of the Act. Section 76 provided that only certificated practitioners could act in all legal proceedings in court, and s.77 provided that only certificated practitioners could engage in legal business. 22. The Court upheld the Minister's second ground that the taxable items in the Rules allowing for "counsel fees" and "getting up the case for trial" were confined to fees payable to counsel who had a right of audience before the Court, and to fees of solicitors who were certificated practitioners. Kennedy J. added, at p 242:- "Furthermore, I do not consider that the respondent can rely upon O 66, r 19 (which in general provided that payments and expenses necessary in the conduct of the litigation were allowable) and seek to have agency charges specially allowed, because it is abundantly clear that the Victorian solicitors were acting throughout as principals and not as agents. The proposed bill of costs indicates that it was the Victorian solicitors who had instructions from the respondent to institute proceedings. The instructions for brief were also given to the Victorian solicitors, and it would seem that the great bulk of the work was performed prior to the date upon which the Western Australian solicitors, who were described in the bill as principals, were initially instructed. They appear not to have been instructed until 8 November 1981, which was apparently the day prior to the first day of hearing and almost two years after the initial instructions were given to the Melbourne solicitors." 23. It can be seen that the decision in Australian Dredging turned upon the interpretation of certain terms in the costs Rules. I have not been referred to any corresponding provisions in the Territory Rules. (iv) Other matters 24. The Master then considered the question whether there was any other basis on which TNT could recover on taxation the costs payable to WK for its legal work, WK being sub-agent for TNT's solicitors, Dawsons. He considered that there was no privity of contract between TNT and its sub-agent WK; hence TNT was not liable to WK for the latter's fees, for which Dawsons was solely responsible. I agree with that conclusion. It followed from the effect of s.22(4) on Dawsons' ability to "bill" TNT, that TNT could not recover those fees from Interstate on taxation. As to this conclusion, I observe that if Dawsons had already paid the costs of WK and had received monies from TNT in reimbursement of these costs, or had simply received monies from TNT on account of WK's costs, s.22(4) of the Act did not prohibit TNT from recovering from Interstate those monies it had paid, on taxation - see In re Hope (supra). 25. The Master concluded that he had no power to allow on taxation the costs and disbursements of either Dawsons or WK; that is to say, TNT had no recoverable costs. It follows from what I have stated above, that I consider that such a conclusion cannot be drawn until it is ascertained whether TNT paid Dawsons (or WK) monies on account of costs and disbursements relating to this litigation. If it did not, the Master is correct. If it paid such monies, the Bill of Costs is taxable to the extent of the items covered by those payments, and to the extent of the monies paid. (b) The request to reconsider 26. TNT asked the Master to reconsider his decision, under Rule 63.55(1). In addition, or perhaps as an alternative to its earlier submissions, it now contended that WK were its solicitors in the action and, as solicitors on the record, its principal solicitors. In view of what was admitted to be the real situation, this was a submission to proceed upon a fictional basis for taxing purposes. I said earlier that WK should be regarded as on the court record as solicitors for TNT. 27. TNT also submitted that s.22(4) of the Act did not have extra-territorial effect, and therefore did not preclude Dawsons from charging TNT for legal work performed in New South Wales, in preparing TNT's case in the Territory action, as that was work for which Dawsons was authorized to charge under New South Wales legislation. The submission was that the prohibition in s.22(4) related only to legal work done by uncertificated practitioners, while in the Territory. 28. In grappling with these new submissions Interstate contended that the proper law of the contract of retainer between TNT and Dawsons was the law of the Northern Territory; it was that law and thus s.22(4) of the Act, which governed the question whether Dawsons could recover its fees, and so no question whether the Act operated extra-territorially arose for consideration. It also contended that since WK were in fact sub-agents of Dawsons, WK could not be treated as TNT's principal solicitors in the action, in place of Dawsons. 29. The Master reconsidered his February decision on 7 September 1989. I turn to his September decision. (c) The Master's reasons of 7 September 1989 30. At p 6 of his reasons for his reconsidered decision of 7 September 1989, the Master said:- "There is no evidence of what precisely were the terms of the contract between the plaintiff and WK (the Contract), but the Bill of Costs makes it clear that the plaintiff instructed Dawsons to prosecute the action and Dawsons retained WK as their agents." (emphasis mine). It is clear, I think, that the reference in this extract to "WK" was a simple error, and the Master intended to refer to "Dawsons". That this is so appears from the later discussion relating to the "proper law of the Contract". The contract which the Master had in mind in that discussion was "the Contract ... for Dawsons to represent the plaintiff in legal proceedings" (p 7). The Master held (at p 8) that the proper law of that contract was Northern Territory law, and so s.22(4) of the Act applied; and accordingly the plaintiff's argument that the Act did not have extra-territorial effect was simply misdirected, in the circumstances. 31. The Master rejected (p 9) TNT's submission "that s.22(4) cannot apply to Mr Conley because he was never a legal practitioner", on the ground that to accept that submission would mean that a person who did not hold a practising certificate (not having been a legal practitioner in the first place) "is nevertheless entitled to recover costs in the Territory" (p 9). The Master considered that an interpretation of s.22(4) which had that result was absurd. He identified the mischief at which s.22(4) was directed as "the very situation which has occurred here", namely:- "... that persons, not qualified (within the meaning of the Act) to practise in the Territory, should do so and recover fees." (p 9) With respect, I do not accept this analysis; a person who is not a "legal practitioner" within the definition of that term in the Act cannot recover professional legal costs, because he cannot lawfully practise law in the Territory. He cannot charge for activity which it is not lawful for him to carry on. Section 22(4) is directed specifically at a person who is a legal practitioner but who lacks a practising certificate; Mr Conley was not in that category, while Mr Davis was. 32. The Master distinguished McCullie v Butler (1962) 2 QB 309 and rejected TNT's submission that WK as solicitors on the record should ipso facto be treated by the Court as "the principal solicitors". He considered that applying the general law of agency, which governed their contractual relationship, to the facts of the case, Dawsons were TNT's principal solicitors in this litigation, and WK their agent and solicitors on the record. He observed that while an English country solicitor, as opposed to his London agent, was treated in England as the principal solicitor in relation to the client, the Supreme Court Practice (Eng) (1985) volume 2 at para.3883 stated:- "... in regard to other parties in an action the London agent is the solicitor of the client, with the general authority of a solicitor over the procedure, including authority to compromise (Re Newen (1903) 1 Ch 812) to give consent (Withers v Parkes (1860) 5 H and N 725) and to grant indulgences - except that his authority is limited by the authority of his principal, the country solicitor, and the instructions of the client." (emphasis mine) 33. He cited Cordery on Solicitors (8th ed.) at p 279 to similar effect:- "In relation to the opposite side and to third parties, the London agent whose name is on the record, is treated as the solicitor in the action, and as such he is liable for costs occasioned by misconduct on the part of the country solicitor. The agent has power to waive irregularities, grant indulgence, give consent, or compromise, and otherwise bind the client in the ordinary course, and documents are generally produced at the agent's office. But the agent's authority is limited by the authority of and in accordance with the directions of his immediate

principal, the country solicitor, and he cannot go beyond them, nor take any steps in a cause after his authority is revoked." (emphasis mine) 34. I consider that the relationship between a foreign solicitor and a Territory solicitor is not the same as that existing between two Territory solicitors; see Re Lamrock, Brown and Hall [1908] VicLawRp 37; (1908) VLR 238. In that case a firm of Victorian solicitors had employed a firm of English solicitors to apply for special leave to the Privy Council. As to their charges, Cussen J. considered at p 254:- "I think the proper conclusion ... is that the charges of the English solicitors were not taxed as part of the bill, but were moderated as if they had been charges made by a commission agent. It was said that it had been decided in England that the charges of a London agent should be included in detail as part of the bill of a country solicitor. This may be so, the principle being that in such a case there is no privity between the client and the London solicitor, who, so far as the client is concerned, may be regarded as acting as the clerk for the solicitor actually employed. Those cases have, I think, little or no bearing on the present matter. In the first place, I doubt whether, the client having provided the moneys to pay the costs in London, there was not privity. Secondly, the relation between a solicitor in Australia and a solicitor in London is very different from that existing between a country solicitor and his London agent: cf. Hyndman v Ward (1809) 15 TLR 182; and thirdly, the charge of the English solicitor was not included in the bill at all, and was included in the cash account only as a lump sum. A solicitor, if he wishes a charge to be allowed, must give details so as to enable his claim to be dissected, and taxation to be had." (emphasis mine) 35. The Master concluded that the principal solicitor need not necessarily be the solicitor on the record. I respectfully agree, provided that both solicitors, principal and agent, are entitled to practise within the jurisdiction. The "principal solicitor" is simply the solicitor directly retained by the client for the purpose of the litigation in question; their relationship is that of solicitor-agent and client-principal. An interstate solicitor, entitled to practise in the Territory, retained by a client to conduct litigation in this Court, will usually in turn retain a Darwin solicitor as his agent. This is done as a practical matter flowing from requirements in the Rules that a party to litigation have an address for service close to the Court; see, for example, the current Rule 6.05. (To have obtained a practising certificate, the interstate solicitor must have an address in the Territory at which he practises; see s.23(a) of the Act.) Ex hypothesi, both principal solicitor and agent have the right to practise in the Territory; both are subject to the discipline of the Act and this Court. The position is quite different where an interstate solicitor, who lacks the right to practise in the Territory, is retained by a client who wishes to conduct litigation in the Territory. The interstate solicitor cannot be the solicitor on the record, as he cannot practise law in the Territory. He cannot legitimately, therefore, as a principal solicitor engage a Territory solicitor as his agent, for the purpose of conducting the litigation in the Territory; he may of course instruct a Territory solicitor, acting simply as agent for his client. Likewise, a Territory solicitor cannot conduct Territory litigation as agent for an unqualified interstate solicitor as principal solicitor. In such a situation, the Territory solicitor must, as a matter of law and of necessity, be the solicitor on the record, responsible for the conduct of the Territory litigation, and also principal solicitor to the client in relation to the litigation. That is what the Act requires. It is the position which should have obtained here. Manifestly, it did not. 36. The Master considered (as he had in February) that if a solicitor purported to act as agent for an unqualified person as principal solicitor, neither that person's costs nor the solicitor-agent's costs could be recovered on taxation. For that proposition he relied on Re Sweeting (supra) a decision which followed Fowler (supra) in its approach to s.12 of the Solicitors Act 1874 (Imp). I dealt with this earlier. 37. He considered that WK were entitled to recover their fees from Dawsons for professional work they had done, but that entitlement did not affect the question whether Dawsons could in turn recover its costs and disbursements (including WK's fees) on taxation. I have expressed my views on this conclusion at p 14. 38. In the result the Master affirmed his decision of 24 February 1989. I now turn to the case as argued in this Court. The plaintiff's submissions 39. Mr Mildren QC for TNT submitted that until the Act came into force on 1 July 1974 the right of interstate lawyers to practise law in the Territory rested upon s.55D(1) of the Judiciary Act (C'th). He informed the Court that the practice until 1974 had been that the name of the principal solicitors from interstate, thereby entitled to practise in the Territory, was recorded on the papers filed in Court in an action as the solicitors for their client-party, while their Darwin agent was recorded thereon as agent. This practice continued, apparently by force of inertia, though incorrectly, after the Act came into force, since it is clear that after 1 July 1974 interstate solicitors not on the Territory Roll created under the Act were no longer entitled to practise law in the Territory. Dawsons were in that category; they are simply a firm of foreign solicitors as far as the Territory is concerned. Mr Mildren rightly conceded therefore that Dawsons' name should not have appeared on the backsheets of the papers filed in Court in this action. I consider that in the light of this historical explanation, little weight is to be attributed to the description on the backsheet. (a) Should a fictional approach be adopted? 40. Relying on McCullie v Butler (supra) at p 313, Mr Mildren submitted that Dawsons should be treated simply as the foreign solicitors-agents of WK, the solicitors on the record, and Dawsons' charges were properly taxable as WK's disbursements. That is the correct approach to fees charged by a lawyer employed in foreign jurisdiction; McCullie (supra) illustrates it. In McCullie (supra) the litigation had been conducted in England by English solicitors, but solicitors in Scotland were also involved for the plaintiff. In reviewing the taxation of the plaintiff's Bill of Costs, Diplock J. (as he then was) observed at p 313:- "... the position is a little complicated by the fact that the Scottish solicitors, and, indeed, the applicants (the English solicitors) in this case, apparently regarded their position as being the principals, of whom the applicants were the agent, which is a complete reversal of the true situation. Accordingly, they rendered their bill to the next friend of the plaintiff, and on reading their bill it is quite apparent that they were putting in an ordinary bill as if they were the solicitors having conduct of the action and not acting merely as agents for the applicants for the services required to be done by the professional agent in Scotland." (emphasis mine) His Lordship then gave some illustrations of this error by the Scottish solicitors, including an item they had charged for as "Instructions for Brief", as to which his Lordship observed that the (English) law involved was "a law which so far as they were concerned was foreign law". So it is in principle with Northern Territory law, as far as Dawsons are concerned. His Lordship continued at p 314:- "It is quite evident, therefore, that there are a number of items in that account which are quite inappropriate to the proper position of the Scottish solicitors in this case, namely, as professional agents doing in Scotland on the instructions of the English solicitors those things which were reasonable and necessary to be done in Scotland for the preparation of the case." (emphasis mine). 41. As to this submission I consider that the situation in McCullie (supra) is clearly distinguishable. There the English solicitors, who had the sole conduct of the litigation, instructed Scottish lawyers to do various things connected with the litigation, because the plaintiff and others had moved to Scotland. Here it seems that TNT and its documents were in NSW, not the Territory; Dawsons, however, (the foreign lawyers) admittedly had the conduct of the litigation in the Territory throughout. That was not the case in McCullie. I note that Diplock J. also observed in McCullie (supra) that it was not a case of one solicitor acting as agent for another because such an agency could operate only as between solicitors practising in the same jurisdiction. The Scottish solicitors were simply foreign agents, as were Dawsons, here. 42. Mr Mildren submitted that the guiding rule in the taxation of costs was Order 64 Rule 54, which provided for all "necessary and proper" costs, charges and expenses to be allowed. That is of course correct. Mr Mildren submitted that the approach adopted in Mitchell v Mitchell (1971) 19 FLR 100 should be followed. In that case a firm of Tasmanian solicitors were solicitors on the record. They had been instructed by a firm of Queensland solicitors to appear for the client. It was contended on taxation that no costs could be allowed in respect of a Bill of Costs drawn by the Queensland solicitors, because they were not on the record and only the Bill of Costs of the solicitor on the record could be taxed. Neasey J. held that this submission was misconceived, in light of the Tasmanian equivalent of Order 64 Rule 54. I respectfully agree. In that case, it seems clear that the Tasmanian solicitors had the actual carriage of the divorce proceedings in Tasmania as well as being the solicitors on the record. The Queensland solicitors were clearly simply foreign professional agents for the Tasmanian principal, in relation to the Tasmanian proceedings. The only question was whether the costs which the client had incurred with the Queensland solicitors were "necessary and proper" in terms of the costs Rule, and the taxing officer had correctly held that they were. I consider that the situation was similar to that in McCullie (supra) and different to the situation here, where the foreign agents (Dawsons) had the carriage of the action. 43. Mr Mildren submitted that courts do not enquire as to which of 2 firms of solicitors involved are the principal solicitors and which the agent, but accept that the solicitors on the record are the principal solicitors. That is to say, it is to be taken that the solicitor on the record is the solicitor who has been retained by the client, and who has had the conduct of the action. Mr Mildren relied on Tabruby Pty Ltd v Bain Refco Commodities Ltd (unreported decision, Deputy Registrar of the Supreme Court of the Australian Capital Territory, February 1988). The factual situation there was apparently similar to the situation in this case. The Bill of Costs consisted of a Bill by Canberra solicitors, and a Bill by NSW solicitors. The plaintiff claimed the costs of the NSW solicitors under a Rule of Court providing for the charging for legal work done "by a lawyer practising in a place" outside the ACT. That is a provision commonly found in court Rules; see for example, Rule 63.42 in the current Supreme Court Rules, which is distinct from the provision for agency work in Rule 63.40. That is to be expected, since solicitor-agency connotes a relationship between practitioners practising in the same jurisdiction, as Diplock J. pointed out in McCullie (supra). It was conceded in Tabruby (supra) that in reality the NSW solicitors (not admitted to practise in the ACT) were the principal solicitors, as Dawsons were in this case. In Tabruby the name of the NSW solicitors was on the backsheets, as here. The plaintiff argued that "the fiction of Canberra solicitors is a legal fiction endorsed by the Court". The Deputy Registrar concluded that notwithstanding which solicitor did what work, the Canberra solicitors "can and must be the solicitors on the record and therefore the principal solicitors". He proceeded to tax the Bill of Costs of the New South Wales solicitors as disbursements incurred by the Canberra solicitors. It does not clearly appear which firm of solicitors had the conduct of the action, though presumably it was the NSW solicitors. If that were so, I am unable to accept that that reality, and its consequences, could or should be ignored in this jurisdiction, when it comes to the taxation of costs, by reliance upon a legal fiction. To do so, it seems to me, would set at naught the provisions of the Act, and place at risk the protection of the public with which the Act is concerned. 44. In short, since it was admitted before the Master that Dawsons were the principal solicitors for TNT and had the carriage of the action, with WK acting as their Territory agent, I do not consider that that admitted reality can or should be brushed aside, so as to treat Dawsons as simply the foreign agent of WK, and WK as solicitors having the carriage of the action. (b) The territorial reach of s.22(4) of the Act 45. In the alternative Mr Mildren submitted that it did not matter if WK were not regarded as principal solicitors, since the Act does not have extra-territorial effect. The argument ran that s.22(4) of the Act does not preclude Mr Davis - who was a "legal practitioner" in terms of the Act - from receiving from his client TNT in New South Wales costs earned by Dawsons for legal work in relation to this litigation, carried out in New South Wales. Mr Mildren noted that other sub-sections in s.22 of the Act used the limiting words "in the Territory"; he conceded that neither Mr Davis nor Mr Conley could recover professional costs for legal work they carried out in relation to this litigation, in the Territory. I do not accept this submission. I consider that costs cannot be recovered for professional work carried out by Mr Davis, an uncertificated practitioner, in "getting up" a case heard in this Court, irrespective of whether he carried out that work inside or outside the Territory. I accept that since Mr Conley was never a "legal practitioner" in terms of the Act, s.22(4) has no application to him at all. 46. I note that entry of a person's name on the Roll of Legal Practitioners following admission, is one prerequisite to practising law in the Territory as a solicitor. The other is the possession of a current practising certificate. One concern of the Act is with entitlement to practise as a solicitor in the Territory. Legal practitioners possessing practising certificates have the statutory exclusive right under the Act to practise law in the Territory as solicitors. This is for the protection of the public; such practitioners are required, for example, to have their trust accounts audited, to contribute the to Fidelity Fund, to carry professional indemnity insurance, and they are subject to the discipline of the statutory Complaints Committee and the Court. I consider that the observations by Wallace J. on the Legal Practitioners Act 1893 (WA) in the Australian Dredging case (supra) at p 239 are equally applicable to the Act:- "Whilst its effect may be to create a monopoly in the hands of those involved in the administration of the law ... the clear purpose thereof is to serve the public interest by establishing and maintaining standards of learning and conduct necessary to be admitted to practise and to continue to so practise. Hence the disciplinary power in the Supreme Court which is exercised in a supervisory capacity." 47. Mr Mildren submitted that it was incorrect to approach the questions in issue by seeking to determine the proper law of the contract between WK and Dawsons; in his submission that question was irrelevant. I note that it had arisen as a result of TNT's submissions to the Master, on his review. I accept the submission. I also accept that it is clear that if a Territory firm of solicitors engages an interstate firm as its foreign professional agent to perform work interstate in connection with Territory litigation, the proper charges of the interstate firm are taxable as an item in the Territory's firm's disbursements, and the proper law of their contract is irrelevant. That was not the factual situation here. 48. Mr Mildren submitted that what was required to be determined was whether in this action there was a person who carried out legal work in the Territory without possessing a certificate to practise law in the Territory. I do not accept this formulation, in so far as it is restricted to examining whether the legal work was carried out in the Territory. 49. Mr Mildren noted that there was no evidence before the Master and no finding by him, in relation to the application to this case of ss.131 and 132 of the Act, which deal with offences by unqualified persons. Further, in his submission, those provisions do not apply to acts done outside the Territory; for example, to the drawing up in New South Wales of affidavits to be used in a Territory proceeding. Mr Mildren relied on Freehold Land Investments v Queensland Estates Pty Ltd [1970] HCA 31; (1970) 123 CLR 418. In that case the majority in the High Court emphasized that, in general, a statute of a State is not intended to have extra-territorial operation, being ordinarily limited to what is done in that State. I consider that no question of offences under the Act has been raised. It cannot be suggested that any offence is committed when, adopting the words of Diplock J. in McCullie (supra) at p 314, a professional agent does interstate on the instructions of Territory solicitors those things which are reasonable and necessary to be done interstate for the preparation of the Territory case. That was not the factual situation here; Dawsons admittedly were not acting under the instructions of WK. 50. Mr Mildren submitted that the meaning of s.22(4) of the Act was clear, and that the reason why persons who were not legal practitioners could not recover professional costs for legal work in the Territory was because ss.131 and 132 made it illegal for them to do the work; they could not recover fees for work which it was illegal for them to do. On this approach, s.22(4) was confined in its operation to legal practitioners who lacked a practising certificate. I indicated earlier that I take that view of s.22(4). A person who is not a legal practitioner as defined in s.6 of the Act cannot recover in this Court costs for professional work he does anywhere, in connection with litigation in this Court of which he has the conduct, because he lacks lawful authority to conduct such litigation; the situation is quite different when he is not conducting the litigation, but acting as professional agent on the instructions of a Territory solicitor. 51. Mr Mildren submitted that the decision in Australian Dredging (supra) should either be distinguished on its facts, or treated as wrongly decided. It is, I think, distinguishable, since it turned upon the interpretation of particular Rules. 52. Relying on Guss v Veenhuizen [1976] HCA 57; (1976) 136 CLR 47, Mr Mildren submitted that a solicitor not on the Territory Roll could recover as disbursements fees he had paid to counsel whose name was on the Roll. I note that in that case the solicitor was himself party to the proceedings, and the fact that he was not on the High Court Roll was due to an error by a Court officer. The case is distinguishable for those reasons. 53. Mr Mildren submitted that there is no legal rule in the Territory preventing a barrister, admitted to practise in the Territory from accepting a brief from an unqualified person. That is, I think, correct; the position in the Territory accords with that in Victoria as to which Mason and Murphy JJ. said in Guss v Veenhuizen (supra) at p 60:- "To the extent to which the decision (in Kenna v Conolly (1943) 17 ALJ 32) denies the right to recover disbursements in respect of counsel's fees we do not think that it should be followed in this case. Without expressing any view as to the position in New South Wales it is enough for us to say that although in Victoria there is a practice that counsel will not accept instructions from unqualified persons to act for them there is no legal

prohibition against an unqualified person instructing counsel to appear for him. In delivering a brief to senior and junior counsel to appear for him the appellant was exercising a legal right not denied to him by law and on this ground he is entitled to recover disbursements for counsels fees, notwithstanding that counsel accepted the brief in ignorance of the appellant's lack of entitlement to practise in the High Court." (emphasis mine) It followed, in Mr Mildren's submission, that at the very least TNT was entitled to recover the disbursements which Dawsons had made. I do not accept this submission; Guss v Veenhuizen (supra) is distinguishable, in that it concerned the rights of a litigant in person. Section 22(4) of the Act operates so as to prevent Dawsons recovering disbursements from TNT, and thus TNT from Interstate, subject to the qualification as to monies already paid by TNT to Dawsons, on account of costs and disbursements. 54. Mr Mildren submitted that the question of agency did not arise in this case, because WK as solicitor on the record was ipso facto to be treated as the principal solicitor, even if this was a fiction. I do not accept that submission, for the purpose of the taxation of costs, for the reasons mentioned when discussing the Master's decision of 7 September. 55. Mr Mildren submitted that there was in any event privity of contract between WK and TNT, on the basis that the facts disclosed an intention to create the relationship of principal and agent between TNT and WK. He relied on an affidavit by Mr Alderson of WK and observations of the Court of Appeal in De Bussche v Alt (1877-78) 8 Ch D 286 at pp 310-311. I reject that submission on the facts. The second defendant's submissions 56. Mr Riley QC for Interstate submitted that the Master had rightly found that Dawsons by conducting this litigation were in effect practising law in the Territory without any entitlement to do so. Dawsons therefore fell within the prohibition in s.22(4), which extended to all legal work they performed in connection with this litigation, whether within or outside the Territory, as neither Mr Davis nor Mr Conley held a practising certificate. Mr Riley set out in some detail the professional work which WK and Dawsons had respectively done, in relation to this litigation. This was not controverted in any way; it makes it clear - though it was already clear from the Bill of Costs and the submissions before the Master - that Dawsons had the conduct of the litigation, and WK played a very minor part. In Mr Riley's submission, Territory legal work had to be carried out by a practitioner possessing a Territory practising certificate; this included the getting up for trial of litigation in the Territory. 57. In general, I accept these submissions, for the reasons earlier set out. 58. Mr Riley submitted that Australian Dredging (supra) was authority for the proposition that a non-certificated legal practitioner could not recover his costs in circumstances such as obtained in this case. In his submission that case should be followed. I have already indicated that I consider the decision turned upon the interpretation of the West Australian Rules. 59. He submitted that Fowler (supra) and later cases showed that the award of costs is an indemnity and the losing party can take advantage of an inability on the part of the successful party's solicitor to recover his costs. I have indicated earlier my view that Fowler (supra) turned upon a statutory provision significantly different to s.22(4) of the Act, and is distinguishable on that ground. 60. He submitted that WK was the admitted agent of Dawsons which had incurred and was responsible for the payment of WK's fees, and the fees of counsel; and that there was no privity of contract between TNT and WK. I accept these submissions. Conclusions 61. It is unnecessary to express my conclusions at length, in view of the earlier discussion of the various points. Briefly, then, TNT instructed Dawsons as its solicitors with respect to this litigation in the Territory. Since no member of Dawsons held a Territory practising certificate, that firm was legally incompetent to conduct litigation in the territory. Quite properly, they engaged WK. Thereafter, however, their relationship with WK was not as is required. WK, though solicitors on the record, did not have the carriage of the action as they should have. The Court looks only to the solicitor on the record, as far as responsibility for the conduct of the litigation is concerned; that does not affect the reality of the situation, when it comes to a matter of taxing costs. Dawsons in fact had the carriage of the action, and the respective solicitors proceeded on the incorrect basis of Dawsons (as principal solicitors) and WK (as agent). 62. No costs are recoverable by TNT on taxation for professional work carried out by Mr Conley in connection with this litigation, whether inside or outside the Territory. 63. The same position obtains in relation to Mr Davis, with the important practical rider that any monies paid by TNT to Dawsons prior to taxation, on account of Dawsons' costs and disbursements in getting up the case (including counsels' fees and WK's costs) are recoverable, if taxed and allowed. 64. The appropriate order is that the Master now proceed to tax the plaintiff's Bill of Costs, in accordance with the law as stated herein. I think it is appropriate to reserve the question of the costs of this application and of the hearings before the Master thus far, until the outcome of the taxation of the Bill is ascertained. 65. Orders accordingly.