question 1
12 Applicant's submission: The applicant submits that any entitlement to recover costs on a party/party basis for work done by persons purportedly acting as a barrister or solicitor is conditional upon the person undertaking the work, having the right to practise as a barrister or solicitor in federal courts at the time the work was undertaken.
13 In making this submission, the applicant makes no submission in relation to the effect, if any, of these issues on any contract for legal services between the respondents and their respective legal advisors.
14 Also the applicant does not dispute that the respondents may be entitled to recover the costs of such persons as a clerk or managing clerk in the event they do not have the right to practise as a barrister or solicitor in federal courts at the time the work was undertaken.
15 The applicants shortly states three reasons, which tend to overlap, in support of their submission:
· First, work done by persons who were not, at the time such work was undertaken, entitled to practise as a barrister or solicitor in federal courts is not work done by a barrister or solicitor and cannot be remunerated as such.
· Secondly, s 55B operates as a statutory bar to the allowance of professional costs in respect of work done in the (purported) capacity of a barrister or solicitor when by force of the Judiciary Act such person was not entitled to practise as such.
· Thirdly, a respondent has no entitlement under s 78 of the Judiciary Act to be represented by persons who are not entitled to practise as a barrister or solicitor in federal courts and any costs incurred by a respondent in respect of such persons are not costs that were necessary or proper for the attainment of justice or for maintaining or defending the rights of a party and should be disallowed under O 62, r 19 of the FCR.
16 In relation to the first reason advanced, the applicant relies on the following authorities: Kenna v Conolly [1943] ALR 151 per Rich J at 152; Guss v Veenhuizen (No 2) (1976) 136 CLR 47 per Gibbs ACJ, Jacobs and Aitkin JJ at 52; Mason and Murphy JJ at 60; Minister for Works v Australian Dredging and General Works Pty Ltd [1986] WAR 235 per Burt CJ at 238; Wallace J at 240 and Kennedy J at 241, 242; Browne v Barber [1913] 2 KB 553 per Kennedy LJ at 580; Fowler v Monmouthshire Railway and Canal Company (1879) 4 QBD 334 per Cockburn CJ at 336; Mellor J at 336 and Lush J at 336; Kent v Ward (1894) 70 LTNS 612 per Lord Esher MR at 614; Smith LJ at 614 and Davey LJ at 614; Lloyd v Hill [2004] NSWSC 652 per Studdert J at [41]; Cannon St Pty Ltd v Karedis [2006] QSC 078; 229 ALR 699 per White J at [72]; Cannon Street Pty Ltd v Karedis (2006) 1 Qd R 505 per Williams JA at [29] and Jerrard JA at [46]. However, the applicant acknowledges Elders Trustee and Executor Co Ltd v Estate of Herbert (1996) 132 FLR 24 may stand against the propositions they put.
17 In relation to the second reason, the applicant relies upon Guss v Veenhuizen (No 2) (1976) 136 CLR 47 per Gibbs ACJ, Jacobs and Aitkin JJ at 52.
18 Respondents' submissions: Put very shortly, the first respondent (Dr Gray) submits that the Court's jurisdiction, or power to award costs is unaffected by the entitlement to practise in federal courts under s 55B and s 55C of the Judiciary Act, and the Court has and retains a discretion when taxing costs or, in relation to the assessment of costs on a gross sum basis, when having regard to the nature of the work done and the identity and qualifications of persons who have done that work.
19 The second respondent (Sirtex), in summary, submits there is a long standing and binding authority for the proposition that a successful litigant's costs already paid to an uncertificated solicitor are recoverable from the unsuccessful litigant, notwithstanding a legislative prohibition on the uncertificated solicitor recovering such costs from his client. As Sirtex has already paid the costs in dispute it is entitled to recover them according to this principle.
20 Further, Sirtex contends that the authorities relied upon by UWA in support of its submission are distinguishable and do not support UWA's argument.
21 Consideration: The primary inquiry that needs to be undertaken in order to answer the first question raised is whether there is any statutory provision or other established principle that disentitles a party with the benefit of a costs order in the Federal Court from recovering the costs and fees of a person who undertook work on their behalf as a barrister and/or solicitor when, at the time such work was undertaken, such person was entitled to have their name entered on the Register of Practitioners maintained under s 55C(1) of the Judiciary Act but did not, and so were not entitled under s 55B(3) of the Judiciary Act to practise as a barrister or solicitor in a federal court.
22 Sections 55A, 55B and 55C appear in Part VIIIA of the Judiciary Act which was introduced by the Judiciary Act 1966 (Cth). It replaced s 49 which had simply conferred upon any person entitled to practise as a barrister or solicitor in any State the right to practise in any federal court. Section 49(4) had provided for a Register of Practitioners to be kept at the principal registry and gave the High Court the power to cause a name to be struck off the Register in the following terms:
The High Court may direct the name of any person to be struck off the Register upon proof that he has been guilty of conduct which renders him unfit to be allowed to continue to practise as a barrister or solicitor, or that he has been deprived by the Supreme Court of the State, by virtue of his right to practice wherein he was registered, of the right to practise in that State as a barrister or solicitor.
The 1966 amendment enacted ss 55A, 55B(1) - (3) and s 55C in substantially their present terms. Subsections (4) - (10) of s 55B were introduced by later amendments.
23 In De Pardo v Legal Practitioners Complaints Committee (2000) 97 FCR 575; 170 ALR 709; [2000] FCA 335 (De Pardo), French J (with whom Whitlam J agreed) at [17] noted that what may be discerned in Pt VIIIA of the Judiciary Act, its statutory predecessor in s 49 and the policy disclosed by the Second Reading Speech to the amending legislation in 1966, is a scheme which is "entirely complementary to State schemes for the admission of practitioners".
24 French J at [14] - [16] laid out that scheme as follows:
[14] By s 55A, a person admitted to practise as a barrister or solicitor, or both, under rules made by the Justices of the High Court in pursuance of s 86(ga) of the Judiciary Act is entitled to practise in any federal court as a barrister or solicitor or both. Practitioners' Admission Rules 1956 (Cth) were made which appear in Vol 3 of the 1956 Consolidation of Statutory Rules at p 2854. They were amended by Practitioners Admission Rules 1978 (Cth) (SR No 151 of 1978) and repealed by Practitioners Admission Rules 1982 (Cth) (SR No 119 of 1982). The Roll of Barristers and Solicitors admitted pursuant to the Rules continues. There are no current rules of the High Court under which a person may become entitled to practice in a federal court. However s 55B provides that entitlement to practise as a barrister or solicitor, or both, in the Supreme Court of a State or Territory confers the like entitlement to practise in any federal court. It also provides for the discretionary establishment of Registers of Practitioners with a right to practise in courts exercising federal jurisdiction and Territory courts exercising 'federal-type jurisdiction'.
…
[15] Section 55C(6) and (7) are machinery provisions relating to the alteration of the Register.
[16] In the Second Reading Speech for the Bill which became the Judiciary Act 1966, the then Attorney-General, speaking of the new Part VIIIA said:
Let me now take the position as to practitioners in the High Court and other federal courts. Persons who are for the time being entitled to practise in the Supreme Court of a State or Territory will have the like entitlement to practise in federal courts. To show that they are 'for the time being entitled' they will need to hold a current practising certificate from a State or Territory in any case where the State or Territory makes this a test. The Chief Justice has already issued directions to this effect, and the Bill adopts the Chief Justice's approach. Territory practitioners do not at present need to hold practising certificates and, therefore, they will be able to practise in federal courts without holding such certificates. A State solicitor who has no current practising certificate will not, however, be able to take advantage of this provision. (Australia, House of Representatives, Debates (1966), p359)
25 French J at [50] explained that there is, by virtue of s 55B(1), a primary entitlement to practise in any federal court, which flows from the entitlement to practise in the State or Territory court. Leaving aside the special provisions relating to Territory practitioners (s 55B(2)), the primary entitlement is qualified by the requirement that the person's name appears in the Register of Practitioners, established under s 55C and kept in the High Court (s 55B(3)). There is a derivative entitlement which flows from the primary entitlement to practise in any federal court, namely an entitlement to practise in any court of the State in relation to the exercise by it of federal jurisdiction or in any court of an internal territory in relation to a federal‑type jurisdiction (s 55B(4)). The right to practise in the court of a particular State exercising federal jurisdiction or the court of a particular Territory exercising federal‑type jurisdiction may be further qualified by a requirement of registration in a Register of Practitioners kept by the Chief Justice of the Supreme Court of that State or Territory (s 55B(5)). It appears no such Register has been established for any State or Territory. French J suggested that were such a Register established, the right to practise in the relevant State or Territory exercising federal jurisdiction could be lost by removal from the Register (s 55B(7)).
26 As French J further explained at [51], the Register of Practitioners kept in the High Court will have entered in it names of persons who have a primary entitlement to practise in federal courts. Absent any current rule for admission of federal practitioners directly by the High Court, the only route to the Register of Practitioners is via admission in a State or Territory.
27 At [52], French J noted the power of the High Court to remove from the Register the name of a person who has been guilty of conduct that justifies it in doing so (s 55C(5)). In that event, the person whose name has been removed would lose the entitlement to practise in federal courts and the derivative entitlement to practise in courts exercising federal jurisdiction outside any State or Territory in which that person had been admitted in State courts exercising federal jurisdiction or territory courts exercising federal‑type jurisdiction. It would not however appear to affect the right to practise in the courts of States in which that person had been admitted, whether such courts were exercising federal or non‑federal jurisdiction.
28 French J further noted, at [53], there is no role for federal courts other than the High Court in removing practitioners from the Register of Practitioners: Yamaji v Westpac Banking Corporation (No 1) (1993) 42 FCR 431 at 432 - 433. However, that limitation does not affect the power of federal courts to make orders affecting the supervision of the conduct of legal practitioners, where such orders are necessary to redress a breach of duty to the Court or to maintain the integrity of its procedures: Caboolture Park Shopping Centre Pty Ltd (In liq) v White Industries (Qld) Pty Ltd (1993) 45 FCR 224 at 232 - 233. His Honour noted, at [53], that the Federal Court has an implied incidental power to ensure the observance of professional duties to the Court and the integrity of its own procedures.
29 All of this confirms, as French J explained at [54], that the legislative scheme of Pt VIIIA of the Judiciary Act is complementary to that of state legislation. In the case of De Pardo this analysis was important to the finding of French J that the disciplinary procedures of the Legal Practitioners Act 1893 (WA) in Western Australia were not inconsistent with the provisions of the Judiciary Act and therefore invalid by virtue of s 109 of the Commonwealth Constitution.
30 What might also be said to arise from this analysis is that the legislative scheme of the Judiciary Act Pt VIIIA is designed to impose a set of federal law requirements as to who can practise as a legal practitioner in federal courts, or in relation to matters in state or territory courts that involve the exercise of federal jurisdiction or federal‑type jurisdiction, that complements, but also builds upon State (and Territory) regulations in this regard, as some of the authorities discussed below demonstrate.
31 The two questions stated also arise against a background of detailed regulation of the legal profession over many years in Australia. There has long been legislation governing the entitlement of a legal practitioner to practise in Australian courts and to charge and recover fees, particularly where they do not hold a relevant practising certificate - that is to say, are uncertificated. In this regard, the laws of the Australian States and Territories have tended to follow the form of such regulation first introduced by legislation in the United Kingdom.
32 Federal law, however, did not initially deal directly with the regulation and disciplining of legal practitioners. As explained above, the legislative scheme of Part VIIIA of the Judiciary Act concerning the right of legal practitioners to practise in federal courts , while complementary to that of existing State and Territory legislation, has changed this position to some extent. The right to practise in federal courts is dependent on a person having good standing in a State or court. However, as explained above, the High Court has a supervisory jurisdiction in respect of practitioners whose names appear on the Register of Practitioners kept by the High Court, and the Federal Court is not without, what might be termed, general supervisory controls over practitioners despite having only a statutory, and not an inherent, jurisdiction in this regard.
33 While there are powers in the High Court to deal with a person whose name appears on the Register of Practitioners kept in the Court, that has been, to this point, it seems, a fall‑back position. The primary means of admitting, and removing, the names of the persons from the Register of Practitioners kept by the High Court is through the system of State regulation. If a person is no longer able to practise in a State, this has the inevitable consequence of removing their entitlement to practice in a federal court (s 55B(1)).
34 As the examination of a number of judicial decisions below demonstrates, the laws in particular State and Territory jurisdictions governing the right of a legal practitioner to recover costs if uncertificated seem to have been interpreted in one of two ways when it comes to the recovery of party and party costs where one party has been successful in a proceeding. Either the relevant statute has been interpreted as permitting recovery by a party for costs innocently paid in fact to an uncertificated lawyer, on the basis that they are entitled to be indemnified for costs reasonably and properly incurred in the prosecution of a proceeding, regardless of the fact that the practitioner may have been uncertificated at material times; or the view is taken that, by the statute, Parliament has intended, in effect, that the debt between a client and a legal practitioner should be considered extinguished where the legal practitioner at material times was uncertificated, so that there is no sum, whether paid or not, that is capable of being the subject of indemnification under a costs order.
35 In Fowler v Monmouthshire Canal Company (1879) 4 QBD 334, the English Court of Appeal considered new legislation which had replaced that considered in the earlier cases of Fullalove v Parker (1862) 31 LJCP 239, Re Jones (1869) LR 9 Eq 63 and Re Hope (1872) LR 7 Ch App 766, of which more is said below. The new Act - s 12 of Act 37 & 38 Vict. c. 68 - provided that:
No costs, fee, reward or disbursement on account of or in relation to any act or proceeding done or taken by any person who acts as an attorney or solicitor without being duly qualified so to act shall be recoverable in any action, suit, or matter, by any person or persons whomsoever.
Cockburn CJ held that this provision had the effect of extending the operation of the former Act to prevent not merely the solicitor himself, but also his client, from recovering such costs. As a result, the uncertificated practitioner's costs could not be recovered as party and party costs. His Lordship noted at 336:
There can be no doubt that this construction may in particular instances operate harshly, but we have only to consider whether the words cover the case before us, in this they certainly do.
Mellor J and Lush J, each at 336, agreed with this view.
36 The former Act was that considered in Fullalove v Parker and the other cases mentioned. Section 26 of 6 & 7 Vict. c. 73, provided:
No person who as an attorney or solicitor shall sue, prosecute, defend, or carry on any action or suit, or any proceedings in any of the courts as aforesaid, without having previously obtained a stamped certificate which shall be then in force, shall be capable of maintaining any action or suit at law or in equity for the recovery of any fee, reward or disbursement for or in respect of any business, matter, or thing done by him as an attorney or solicitor as aforesaid whilst he shall have been without such certificate as last aforesaid.
Willes J, with whom Byles J agreed, found that it was too late for the defendant to raise an objection that the plaintiff's solicitor was not duly certificated to prosecute a proceeding in London, but expressed the view nonetheless, at 1138:
Undoubtedly, if the plaintiff's attorney is uncertificated, he is disabled from recovering costs; and the plaintiff would not be entitled to recover for payments made in respect of services rendered by the attorney under such circumstances, except where he has made advances to this attorney without notice of his disability. Where such advances have been made, they cannot be recovered back; for, the debt is due, though the attorney is disabled from bringing an action to recover it.
37 In Re Jones, Lord Romilly MR considered the application of the same legislation considered in Fullalove v Parker in circumstances of a disputed taxation of costs between a solicitor (Jones) and his own client, in respect of costs incurred while Jones was uncertificated. The Master of the Rolls applied Fullalove v Parker and held that the debt was still subsisting and the Act did not take away the right of the solicitor to set off the debt, or apply to its discharge, money already in his hands. Lord Romilly MR, in reciting the reasons for this earlier given in Fullalove v Parker, made it clear that the attorney, though uncertificated was entitled to retain the money so advanced and that the plaintiff would have a right to recover this from the defendant.
38 In Re Hope, the English Court of Appeal considered that Fullalove v Parker and Re Jones applied and, at 767, said that while no person as an attorney or solicitor should carry on an action or suit without being certificated, there was nothing to prevent the client from paying the attorney and the want of a certificate could not create any impropriety on the part of the client in doing so. The Court added, at 767:
No doubt [the client] might have refused to pay the costs incurred, but he was bound in honour to pay them, and if he had done so, and there was nothing to show that he had not, he had a right to recover them from the person who had been ordered to pay.
39 As noted, in Fowler the Court took the view that under the new legislation that replaced this legislation, the position had changed and there was no right of recovery at all of costs paid to an uncertificated legal practitioner. Kent v Ward (1894) 70 LTNS 612 and Browne v Barber [1913] 2 KB 553 held to the same effect as Fowler.
40 In Elders Trustee and Executor Co Ltd v Estate of Herbert (1996) 132 FLR 24; 111 NTR 25 the Court of Appeal of the Supreme Court of the Northern Territory dealt with the costs recovery position in the Northern Territory where uncertificated out‑of‑Territory legal practitioners had acted for the successful party who had the benefit of a costs order from the trial judge. Section 22(4) of the Legal Practitioners Act 1974 (NT) relevantly provided:
A legal practitioner is not entitled to recover any costs or disbursements in respect of any work of a professional nature done by him as a legal practitioner if, at the time at which the work was done, he was not the holder of a current unrestricted practising certificate or restricted certificate class 2.
Gallop J, with whom Thomas J agreed (and with whom Kearney J appears to have agreed on this point) explained that when an order for costs was made in favour of a party, they were entitled to be indemnified for all costs properly paid out in the maintenance of the action and in that regard referred to Cachia v Hanes (1994) 179 CLR 403 per Mason CJ, Brennan, Deane, Dawson and McHugh JJ at 410 - 411. Gallop J then referred to what Kearney J had held in an earlier case about the operation of s 22(4). In TNT Bulkships Ltd v Hopkins (1989) 65 NTR 1, Kearney J had regard to s 22(4) and held that: (1) a successful plaintiff cannot recover the costs of his uncertificated solicitor from the defendant except as to monies he has already paid to that solicitor on account of his costs in the action; (2) no costs were recoverable by the plaintiff on taxation for professional work done by a solicitor as he was not a legal practitioner in the Territory; (3) no costs were recoverable by the plaintiff for professional work done by another uncertificated practitioner, save in respect of monies paid prior to taxation; (4) s 22(4) is directed specifically at a person who is a legal practitioner but who lacks a practising certificate; (5) there was, in effect, no real question that the out‑of‑Territory lawyers were acting as agents. Gallop J said (111 NTR at 33) that he did not agree with Kearney J about the operation of s 22(4). However, his Honour considered that Kearney J was correct, whatever the operation of s 22(4), in deciding the costs and disbursements already paid were recoverable and that all of the old cases - Fullalove v Parker, Re Jones, Re Hope and Fowler - supported that proposition.
41 With respect, it seems to me that the correct principle to be drawn from the older cases cited by Gallop J, in the light of Fowler, is that, provided the statute governing a legal practitioner's fees does not have the effect of extinguishing the debt between a legal practitioner and client because the practitioner was, at material times, uncertificated (and absent any other statutory rules governing the recovery of party and party costs), then, if the fee has been paid by the client without notice of the practitioner's disability, they can recover it as party and party costs under a costs order. Fowler elucidates this principle, although the result in that case was different from the earlier cited cases.
42 As a result, it seems to me that the Elders case is authority for the proposition that, having regard to s 22(4) of the Territory Act at material times, the successful party to the proceeding was entitled to be indemnified, as part of its party/party costs, in respect of the charges actually paid to an uncertificated practitioner, and no more.
43 This view is supported, in my view, by the analysis in the subsequent Cannon Street cases in the Supreme Court of Queensland. In Cannon Street Pty Ltd v Karedis [2006] 1 Qd R 505, the Queensland Court of Appeal had occasion to consider a related question concerning the entitlement of a successful party to recover its legal practitioners' costs where they were not certificated under Queensland legislation, but were on the Register of Practitioners kept by the High Court, in a case where the Queensland Supreme Court was exercising federal jurisdiction. Section 209(2) of the Supreme Court Act 1995 (Qld), provided:
A person who is not a barrister or solicitor of the Supreme Court shall not be entitled to claim or recover or receive directly or indirectly a sum of money or other remuneration for appearing or acting on behalf of another person in the Supreme Court.
44 At first instance, in Cannon St Pty Ltd v Karedis(2006) 229 ALR 699 at 711, White J considered that s 209(2) of the Supreme Court Act 1995 extinguished the debt. At [53], her Honour said this:
[53] The further question then arises whether the defendants may recover as costs sums already paid against the plaintiffs. This will depend on whether s 209(2) extinguishes the debt otherwise owing by the defendants to their new New South Wales solicitors so far as the law of Queensland is concerned or merely bars the remedy. If the former, the defendants may not recover the costs, whether or not they have been paid. If only the remedy is barred, on the indemnity principle, the defendants may recover the fees and charges on a costs assessment since they have already been paid.
45 White J recognised, at [54], the authorities cited above which held that, although an uncertificated solicitor cannot maintain an action to recover fees, to the extent that fees had been paid, the client is entitled to enforce a costs order against the other party to the litigation, and specifically cited Re Jones; Re Hope; as well as Elders Trustee and Executor Co Ltd v Estate of Herbert. However, at [55], her Honour also agreed with what Wilson J held in Maggbury Pty Ltd v Hafele Australia Pty Ltd [2002] 1 Qd R 183 that s 209 extinguished such a debt.
46 Strictly speaking, this holding of White J is obiter dicta because White J then went on to consider the effect of s 55(4) of the Judiciary Act in circumstances where the Queensland Supreme Court was exercising federal jurisdiction and noted that a solicitor is thereby granted a right of audience in the Court. Her Honour considered, at [72], that this entitled the solicitor to receive costs related to the preparation and hearing in the Court, notwithstanding the effect of the Queensland legislation.
47 In the Court of Appeal, Williams JA delivered a judgment with which Jerrard JA agreed (but added some reasons of his own). Williams JA at [30] made it clear that s 209 of the Queensland Act properly construed did not operate to in any way restrict the right of a practitioner to recover fees where the right to appear in the State court exercising federal jurisdiction is governed by the Judiciary Act. Consequently, the decision in Cannon St Pty Ltd v Karedis ultimately depended upon the application of the Judiciary Act provisions to permit legal practitioners who were not certificated in Queensland to appear in the Queensland Supreme Court, which was exercising federal jurisdiction, by virtue of the right of audience granted by s 55B of the Judiciary Act, and to claim their costs for so doing.
48 Incidentally, Williams JA, at [29], observed that none of the provisions of the Judiciary Act refer to a practitioner's entitlement to recover fees. However, his Honour considered that to be understandable because such an entitlement essentially comes from the contract between the client and his solicitor. His Honour added at [29]:
[29] There is certainly nothing in the Judiciary Act which suggests that a practitioner's right to charge and recover fees for appearing in a State court exercising federal jurisdiction is in any way restricted.
49 Importantly, for present purposes, although again strictly obiter, Williams JA, at [30], accepted the analysis of s 209 given by White J at first instance. His Honour did not doubt that where a statutory provision extinguishes a client's obligation to pay the fees of an uncertificated practitioner they cannot be recovered as party and party costs, in ordinary circumstances, under the Queensland law as it then stood.
50 A question then firstly arises, in respect of the entitlement of a party to recover costs in the instant case before this Court, whether there is any relevant federal legislation the equivalent of the new legislation considered in Fowler or s 209 of the Queensland legislation considered in the Cannon Street cases, which is intended to and has the effect of extinguishing a debt between a client and a legal practitioner where the legal practitioner, at material times, was uncertificated; or whether the Federal Court of Australia Act 1976 (Cth) (FCA) and FCR properly construed operate so as to prevent the recovery of the costs of an uncertificated practitioner as part of party/party costs.
51 No legislation the equivalent of that considered in the old English cases, or in Elders or in s 209 of the Queensland legislation has been suggested by the parties in their submissions. This perhaps is not surprising when one has regard to the complementary scheme of Federal‑State regulation set out above. It has not been a feature of federal legislation to regulate lawyers for disciplinary or fee purposes in the manner of the State or Territory legislation referred in the authorities just cited.
52 However, the absence of such regulatory controls in respect of legal practitioners is not the end of the costs story in relation to the recovery of costs in federal courts, as other authorities show. A question remains whether the costs of an uncertificated lawyer, so far as the federal Register of Practitioners is concerned, may be recovered as party and party costs by a successful litigant under the FCA and the FCR.
53 In Guss v Veenhuizen (No 2) (1976) 136 CLR 47,the question arose whether a solicitor (who was a member of a firm of solicitors in Victoria) who had acted in his own cause and instructed counsel to appear for him on an appeal in the High Court, in circumstances where he was admitted to practise as a solicitor in the Supreme Court of Victoria but did not have his name on the Register of Practitioners maintained for the purposes of s 55B and s 55C of the Judiciary Act, was entitled to have his bill of costs taxed to the extent of the filing fees and counsel's fees covered by it.
54 Gibbs ACJ, Jacobs and Aickin JJ held that the solicitor was entitled to recover his costs under a rule of practice that a solicitor who acts for himself in litigation is entitled to his professional costs. In these circumstances, s 55B of the Judiciary Act was not a bar to a solicitor being allowed professional costs on the ground that they are claimed in respect of work done by him in person and not as a solicitor.
55 Mason and Murphy JJ, however, at 60, only allowed the solicitor a lesser sum on account of disbursements and instructing counsel, although on a similar basis:
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 counsel's fees, notwithstanding that counsel accepted the brief in ignorance of the appellant's lack of entitlement to practise in the High Court.
56 The whole of the Court seems, therefore, to have recognised or assumed that s 55B of the Judiciary Act did in fact create a statutory bar to the allowance of professional costs in an ordinary case, if a person who is admitted in a State has not had their name entered on the Register of Practitioners kept by the High Court. In this regard, Gibbs ACJ, Jacobs and Aickin JJ, at 52, observed:
In these circumstances [the solicitor having acted in his own cause], s 55B of the Judiciary Act does not create a statutory bar to the allowance of professional costs because the appellant does not claim assessment of costs on the basis that they were in respect of work done in a capacity which by force of the statute he was not entitled to exercise. The work was done by him in person and the only question is whether in the special circumstances here existing he was entitled to the benefit of the rule of practice established by the authorities to which we have referred.
57 Mason and Murphy JJ, at 59, noted that the provisions s 55B(1) and s 55B(3) are "clear and unambiguous":
They apply without qualification to the entitlement of persons to practise in federal courts and regulate comprehensively that entitlement.
Their Honours added, at 59, that it was not to be thought that the words of s 55B(3) give expression to a requirement which is merely formal in character and has no intrinsic or historic importance. Their Honours observed:
Entry on a roll or register is the traditional mark of entitlement to practise in the courts and it provides the court with a ready means of ascertaining whether a person is entitled to practise before it.
58 Their Honours also referred to O 71, r 19 of the High Court Rules (Cth), which materially provided at that time that:
(1) Unless the Court or a Justice in a particular case otherwise directs, bill of costs and fees which -
(a) are payable to barristers and solicitors entitled or admitted to practise in the Court in respect of business transacted by them in the Court or its offices; and
(b) have been directed by a judgment or order to be taxed, shall be taxed, allowed and certified by a Registrar who, in these Rules is referred to as 'the taxing officer'.
(2) The taxing officer shall appoint a time for taxation on the application of the party claiming taxation.
59 Mason and Murphy JJ, at 59 - 60, noted that:
The expression appearing in the rule, 'barristers and solicitors entitled or admitted to practise in the Court', looks not only to the entitlement of a person to practise which is conferred by s. 55B but also to the right to practise which arises when a person is admitted by the court itself to practise in accordance with s. 55A of the Judiciary Act.
60 In other words, the Court generally recognised that the entitlement of a party to recover costs under this rule remained dependent upon the terms of the Act governing the power of a court to order costs and any particular rules governing the assessment of costs. Order 71, r 19 of the High Court Rules considered in Guss limited a bill of costs and fees to those payable to a barrister or solicitor "entitled to practise in the Court". That expressly brought into play the question whether the name of the solicitor, whose costs were being claimed, appeared in the Register of Practitioners kept by the High Court. As it did not, on a proper reading of the judgments of the Court, the Court was not prepared to ignore the strict requirements of O 71, r 19 when read with s 55B. Rather, it applied a special rule that was considered still to exist in the State of Victoria, concerning the entitlement of a solicitor acting on his or her own behalf to recover, in the view of the majority, his professional costs or in the view of the minority, certain limited costs and disbursements including counsel's fee.
61 In these circumstances, in my view, the decision in Guss is not consistent with the exception contended for by Sirtex, that costs paid by an innocent party to an uncertificated practitioner may still be recovered under the general indemnity principle, at least not in relation to such a costs regime as applied in that case. The Court made no reference to such an exception. Rather, the view taken was that unless a party could show that the costs claimed fell under O 71, r 19 they were irrecoverable. In this regard, the words in O 71, r 19(1)(a), costs and fees which "are payable" are not in my view intended to refer to charges and fees which remain unpaid at the time of taxation, but include all relevant charges and fees whether at the point of taxation they have been paid or not.
62 In an older case, involving a review of taxation by the Principal Registrar of the High Court, Rich J in Kenna v Conolly [1943] ALR 151 at 151 - 152, found that, as neither of two practitioners had complied with the requirements of the former s 49 of the Judiciary Act 1903 - 1940 (Cth) requiring a person to enter their name on a Register of Practitioners kept in the principal registry as an entitlement to practise as a barrister or solicitor or both in any federal court, "they were not acting as such before this court, and were disqualified from appearing before the court, and consequently no fees are payable to them". Rich J in so finding relied upon Brown v Barber and Kent v Ward, both of which cases have been referred to above and were to the same effect as Fowler.
63 In Guss at 60, Mason and Murphy JJ observed that the decision in Kenna v Conolly related only to items consisting of counsel's fees and did not relate to filing fees which constitute an outgoing and expense necessarily incurred by the appellant whether he acts for himself or not. To the extent to which the decision of Rich J denied the right to recover disbursements in respect of counsel's fees, their Honours did not think that the decision of Rich J should be followed in the case before them. As noted above, they referred to the rule of practice mentioned above and thought it was enough 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. Accordingly, the bill of costs of Mr Guss should be allowed to the extent indicated. Their Honours did not, however, appear to doubt that Kenna v Conolly was otherwise rightly decided.
64 In Minister for Works v Australian Dredging and General Works Pty Ltd [1986] WAR 235, the Full Court of the Supreme Court of Western Australia ultimately ruled that counsel and solicitors from the State of Victoria, who were engaged in an arbitration in Western Australia under the Arbitration Act 1895 (WA), were not persons in respect of whose costs a costs order could apply within the meaning of s 76 and s 77 of the Legal Practitioners Act 1893 (WA). Burt CJ, at 238, noted that "counsel fees" in Item 14 of the Fourth Schedule of the Rules of the Supreme Court was confined to fees paid to counsel who are certificated practitioners or who, although they are not certificated practitioners, have a right of audience before the Supreme Court as could be the case when the Court is exercising federal jurisdiction under s 55B(4) of the Judiciary Act. The Chief Justice also held that fees paid to solicitors for getting up the case for trial are confined to such fees paid to solicitors who are certificated practitioners. The Chief Justice considered this was the same position as reached in Fowler.
65 Kennedy J, at 242, in an approach not dissimilar to that of the Chief Justice, observed that:
The clear assumption in O 66 and in the Fourth Schedule is that, where solicitors and counsel are referred to, they will be persons who are permitted to act in legal proceedings in the Supreme Court. Only certificated practitioners may so act - see s 76 of the Legal Practitioners Act - unless, of course, the court is, in the particular matter, exercising federal jurisdiction, in which event any person entitled to practise as a barrister or solicitor in any federal court has a right of audience - s 55B(4) of the Judiciary Act …
66 Bleby J came to a similar conclusion regarding the entitlement of a party to recover its uncertificated interstate solicitors' costs in Santos Ltd v Delhi Petroleum Pty Ltd [2005] SASC 242.
67 In the instant case, as noted above, on 14 August 2008, French J ordered that the assessment of Sirtex's costs against UWA proceed by way of gross sum, in accordance with O 62, r 4 of the FCR. For present purposes, I accept (as do the relevant parties) that the principles applicable to a claim for a gross sum costs order under O 62, r 4(2)(c) are those enumerated by Sackville J in Seven Network Ltd v News Ltd [2007] FCA 2059 at [25] - [32], as follows:
[25] The authorities establish a number of principles applicable to a claim for a gross sum costs order to be made pursuant to FCR, O 62 r 4(2)(c):
(i) The purpose of the subrule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum v Johnson (No 2), at 120, per von Doussa J, applying Leary v Leary [1987] 1 All ER 261; Harrison v Schipp (2002) 54 NSWLR 738, at 742 [21] per Giles JA.
(ii) An order that costs be assessed as a gross sum does not envisage that any process similar to that involved in taxation should take place. On the contrary, the Court applies a much broader brush than would be used on a taxation of costs pursuant to O 62: Beach Petroleum v Johnson (No 2), at 120, 124, per von Doussa J; Harrison v Schipp, at 743 [22], per Giles JA.
(iii) The Court should be confident that the approach taken to the estimate of costs is logical, fair and reasonable. The Court should be astute to avoid both overestimating the recoverable costs and underestimating the appropriate amount, for example by applying an arbitrary discount to the amounts claimed: Beach Petroleum v Johnson (No 2), at 123, per von Doussa J.
(iv) Although the power to assess a gross sum for costs involves the exercise of a discretion, it is necessary to bear in mind fundamental principles applicable to an assessment of costs on a party and party basis. These include the principles contained in O 62 r 19 (embodying the 'necessary or proper' test) and those stated in Stanley v Phillips (1966) 115 CLR 470, at 478, per Barwick CJ (on a party and party taxation the emphasis is upon obtaining adequate representation to enable justice to be done, not upon the propriety of steps taken to ensure maximum success in the cause): Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1, at 4-5 [12]-[15], per O'Loughlin J; Charlick Trading Pty Ltd v Australian National Railways Commission [2001] FCA 629, at [6]-[8], per Mansfield J.
(v) Although the methodology permitted by O 62 r 4(2)(c) initially involves a broader approach than on a normal taxation, the provisions of O 62 and Schedule 2 provide assistance in fixing an appropriate gross sum: Charlick Trading Pty Ltd v ANRC, at [10], per Mansfield J.
[26] The last point should be developed a little further. FCR, O 62 r 4(2)(c) authorises the Court to order that, instead of taxed costs, the successful party should be entitled to a gross sum costs order. The subrule contains no express direction that the Court is to apply the detailed criteria that are laid down in O 62 and Schedule 2. On the contrary, the subrule apparently leaves the question of quantification at large.
[27] Rule 4(2)(c) is, however, located within an Order that makes detailed provision for the assessment of party and party costs. It would be extremely odd if the more expeditious procedure contemplated by r 4(2)(c) resulted in either a successful or an unsuccessful party being exposed to an assessment of costs which simply ignores or overrides the basic principles applicable to a taxation of costs. I accept Mr Sheahan's submission that it would be an error for a Court to use its power under r 4(2)(c) to assess a gross sum clearly higher than that which would be allowed on a taxation of costs.
[28] On the other hand, it must be borne in mind that r 4(2)(c) establishes a procedure that applies instead of taxed costs. As the cases have stressed, the object of the procedure is to avoid the expense, delay and aggravation that would be involved in a taxation of costs, especially in a lengthy and complex case such as this. The procedure is intended to replace the potentially elaborate process contemplated by O 62 and Schedule 2, whereby a taxing officer meticulously analyses a specially prepared bill of costs by reference to individual items, some of which have distinctly Dickensian overtones.
[29] It is necessary for the Court to have sufficient information to enable it to make a logical, fair and reasonable estimate. In this respect, as the parties agreed, Telstra bears the onus of establishing that its claim to a gross sum satisfies the applicable test. In practice, this may involve the parties adducing evidence from expert costs assessors addressing whether the costs claimed by the successful party were 'necessary or proper for the attainment of justice or for maintaining or defending the rights of a party' (O 62 r 19) or, in more general terms, whether the amounts sought would have been recoverable on a taxation of costs.
[30] Care should be taken, however, to ensure that the process does not take on too many of the characteristics of a taxation of costs. There is a danger, perhaps reflected to a limited extent in some of the evidence adduced on this application, that the parties will descend too far into the minutiae of the rules governing a taxation and will spend disproportionate time analysing the application of specific items in Schedule 2 to the costs claimed by the successful party. The process should direct attention primarily to issues of principle that explain the differences in the positions taken by each party in relation to the assessment of recoverable costs. For the most part, the reports and oral evidence of the experts in this matter concentrated on the more general issues.
[31] Given that experts should not undertake a detailed analysis of Schedule 2 of the kind that is required on a taxation of costs, it is virtually inevitable that their opinions as to the appropriate gross sum costs order, at least in relation to lengthy and complex proceedings, will be based on incomplete material or on an incomplete understanding of the nuances of the litigation. Both experts recognised this point in their evidence. Ms Harris, for example, readily agreed that it was difficult for her to assess whether and to what extent Telstra's solicitors performed work beyond that necessarily or properly required to defend the proceedings, because she had only limited material available to her concerning the issues in the proceedings and the nature of the legal work required to address them satisfactorily. Accordingly, her opinion was founded on her experience in assessing costs or preparing bills of costs in litigation which was not necessarily comparable to this case.
[32] A further difficulty, perhaps peculiar to these proceedings, is that neither expert, despite extensive experience as a costs assessor, has had to prepare a bill of costs or to tax costs in proceedings of such complexity and of such dimensions. In particular, neither has had experience with a case involving the great volume of documentation, in paper or electronic form, that this case has generated. Consequently, insofar as their opinions rest on the usual practice in taxations of costs, the force of those opinions may be affected by the fact that this case has extremely unusual, if not unique, characteristics. This comment is not a criticism of either Ms Ashe or Ms Harris. It merely reflects the necessary limitations of the expert evidence in providing guidance on the issues I must address. As Einstein J pointed out in Idoport Pty Ltd v National Australia Bank Ltd [2007] NSWSC 23, at [117], a court is entitled to form its own view as to where a case falls within the possible range of recoveries, given its own appreciation of the factors bearing on the assessment.
[Emphasis in original]
68 In this context, French J also ordered on 14 August 2008, that unless otherwise directed, the amount of lump sum costs be assessed pursuant to the Adjusted Fees Methodology described in the affidavit of Elizabeth Mary Harris, sworn 8 August 2008. That affidavit of Ms Harris relevantly describes at [64] of Exhibit EMH1, the applicable method for calculating solicitors' fees as follows:
[64] … in this method the solicitor's time records are reviewed and adjusted to allow only work which a Taxing Officer would hold as recoverable on a party/party basis ('the base hours'). The base hours have been multiplied by the appropriate Item 31 hourly rate to achieve a base figure for fees ('the base scale fees'). A second adjustment is then undertaken to accommodate the different scale rates applicable to different types of work ('the adjusted fees'). Finally, a loading is applied to the adjusted fees being the loading the general care and conduct which a Taxing Officer would allow on a taxation of costs …
69 I accept then that the rate for calculating each solicitor's fees is Item 31 of the Federal Court Scale of Costs. The parties do not contend otherwise.
70 Item 31 distinguishes between "solicitors" and "managing clerks".
71 Item 31 was expressed in the same terms in the form of the Scale that applied from 30 August 2004 to 20 December 2004 and from 23 December 2004 to 31 July 2006, though the rates in each of these periods was different.
72 Item 31 makes no express reference to whether the names of such solicitors appear in the Register of Practitioners held by the High Court.
73 However, Item 31 makes a significant distinction as to the monetary value in attendance by a "solicitor" compared with a "managing clerk". The time of a solicitor is treated as more than 4.5 times the value of the managing clerk. This undoubtedly reflects the expectation that a solicitor will have greater legal knowledge and experience and their work will be intrinsically worth more than that of a managing clerk.
74 The question that remains for determination here, is whether the "solicitor" referred to in the Scale must be one who is entitled to practise in a federal court, not just any solicitor who happens to be admitted to practise and holds a practising certificate under the law of a State or Territory.
75 In my view, the answer to this question is to be derived from an understanding of the operation and effect of the Rules generally and in particular O 62, r 8 FCR which deals with the topic of taxation of costs in the ordinary way and is made relevant to the assessment of gross sum costs under the principles enunciated above. Order 62, r 8 provides as follows:
(1) Unless the Court or a Judge in a particular case otherwise orders, bills of costs and fees which:
(a) are payable to legal practitioners in respect of business transacted by them in the Court or its registries; and
(b) have been directed by a judgment or order to be taxed or under these Rules are liable to be taxed without express direction;
shall be taxed allowed and certified by a taxing officer.
(2) Unless the taxing officer appoints a time for taxation under subrule 41(1), a bill will be assessed in accordance with rule 46.
(3) In subrule (2):
bill does not include a short form bill under:
(a) rule 40A; or
(b) rule 40B; or
(c) rule 13.03 of the Bankruptcy Rules.
[Emphasis in original]
76 This rule may immediately be compared with O 71, r 19 of the High Court Rules considered in Guss, which as noted above, expressly referred to the costs and fees which are "payable to barristers and solicitors entitled or admitted to practise in the Court". Rather r 8(1) deals with costs and fees which are payable to "legal practitioners in respect of business transacted by them in the Court or its registries". In other respects it may be seen that the two provisions are quite similar. However, the expression "legal practitioner" used in r 8(1) is not at large and is defined by O 1, r 4 FCR to mean a person:
(a) who is:
(i) a barrister; or
(ii) a solicitor; or
(iii) a barrister and solicitor; and
(b) who is lawfully entitled to practise as such in a federal court.
77 As a result of the definition of "legal practitioner" in O 1, r 4, the costs and fees which are payable under O 62, r 8 and may be the subject of a taxation certificate from the taxing officer, must be considered those payable to a practitioner who can demonstrate a right to practise in the Federal Court. That is to say, a person whose name appears on the Register of Practitioners kept by the High Court pursuant to s 55C of the Judiciary Act. Consistent with the decision of the High Court in Guss, this seems to me to be necessarily the case, "unless the Court or a Judge in a particular case otherwise orders" as provided for by O 62, r 8(1) and consistent with the broad discretion to award costs given by s 43(2) of the FCA. In this case, a gross sum costs order has been made, but in its operation it necessarily has regard for O 62, r 8.
78 In these circumstances, it appears to me not to the point that a party, such as the second respondent, has apparently already paid fees in respect of the work of an uncertificated practitioner. Under O 62, r 8(1) of the FCR, the taxing officer can only allow and certify costs and fees which are in fact payable to legal practitioners of the defined type, that is, whose names appear in the Register of Practitioners kept by the High Court under the Judiciary Act. In determining whether or not such costs are "payable", it does not matter whether the successful party has already paid the costs or not. The question is whether the costs charged have been paid in fact or remain to be paid to a certificated solicitor.
79 Therefore, notwithstanding the submission of the second respondent, Sirtex, that there is a special rule or exception in the case of the recovery of costs which have actually been paid to an uncertificated legal practitioner, I do not consider that recovery is permitted having regard to the terms of the gross sum costs order and the terms of O 62 of the FCR. In my view, cases such as Elders, and the older, pre‑Fowler cases cited above, were decided in a materially different cost regime from that under consideration here.
80 While the costs order in the instant case is for the assessment of costs on a gross sum basis under O 62, r 4, as noted above, I do not consider that costs can be finally assessed on this basis without regard being given to the primary entitlement a party has to recover costs and charges under the Second Schedule of the FCR. This necessarily brings into play the same issue concerning the charges of a person admitted as a practitioner in a State court not on the Register of Practitioners kept by the High Court.
81 I consider this to be the plain effect of the words used in the FCR and do not consider that the position is made unclear or ambiguous by virtue of the definition of "solicitor" that appears in O 1, r 4 of the FCR, such that it -
Includes a current practitioner within the meaning of subs 3(1) of the Legal Practice Act 1996 (Vic).
82 In the written submissions filed on behalf of Dr Gray, it is pointed out that the Victorian Act has now been repealed. On behalf of Dr Gray it is suggested that, although it is somewhat unclear why it was thought necessary to amend the FCR to include this definition, it seems likely that the updating of the definitions were intended to ensure that the renamed "practitioners" in Victoria were captured and it is clear that the amendment proceeded on the underlying assumption that "solicitor" was used in the FCR to refer to persons practising as such in several States not having in mind any limitation only to those solicitors whose name appeared in the High Court Register of Practitioners. Dr Gray's submissions go on to suggest that if it had been thought necessary to do so, the rule makers could have replaced all references in 2004, when the FCR were amended, to replace all references to solicitor to the new definition of "legal practitioner", however, they did not do so. As a consequence, Dr Gray submits O 62, r 8(1)(a) is intended to connote the concept of the solicitor on the record (who is obviously required to be entitled to practise) and is not directed to allowances of costs for individual practitioners contained on that solicitor's bill of costs.
83 On the face of it, however, the difficulty with that submission is that the expression "legal practitioner" used in O 62, r 8(1) is clearly defined to include a solicitor who is entitled to practise in the Federal Court. Further, O 62, r 8(1)(a) deals with "costs and fees which … are payable to legal practitioners in respect of business transacted by them in the Court or its registries". There is nothing in this particular form of wording to suggest that a particular species of solicitor - a "solicitor on the record" - is the only person who must be entitled to practise in the Federal Court and that other State certificated solicitors working under that person's supervision or control do not need to be certificated for their costs to be the subject of a properly taxed and certified bill of costs and fees for the purposes of O 62, r 8. Nothing in Guss suggests this distinction. Nor do the FCR or the FCA provide for such a person or approach.
84 The submissions filed on behalf of Dr Gray also draw attention to the fact that O 62, r 12 continues to refer to a "solicitor" and suggests that this must be intentional and intended to enable the costs and fees of a person who is a solicitor but not on the Register of Practitioners kept in the High Court. In my view, while plainly r 12, which deals with the scale of costs, refers to solicitors in r 12(1), this must, in light of the definition of "legal practitioner" in O 1, r 4, mean a solicitor whose name appears on the Register of Practitioners kept by the High Court. Rule 12(1) in that regard, expressly provides that:
… solicitors are, subject to these Rules, entitled to charge and be allowed the fees set forth in the Second Schedule …
[Emphasis supplied]
85 The fact that solicitors are, subject to the Rules, entitled to so charge again suggests that they must be persons whose names appear on the Register of Practitioners kept by the High Court.
86 In a related submission, on behalf of Dr Gray, it is suggested that a taxing officer would err in the exercise of his or her discretion if they only allowed costs in respect of a qualified "solicitor" at the rate applicable to a person without any qualification at all. It is said that the Court has a supervening discretion as to costs particularly manifested on a gross sum application, such as that currently before the Court, and would also exercise its discretion in favour of allowing costs at the rate of a solicitor when a party has required a solicitor's work to defend their case and has engaged a solicitor to do it.
87 In my view, this submission must fail ultimately due to the express requirements of O 62, r 8. The taxing officer can only allow and certify costs and fees in a bill of costs that are payable to "legal practitioners" in respect of business transacted by them in the Court or its registries. A "solicitor" whose work is claimed, as I have just set out, must be a person entitled to practise in the Court. It is therefore not open, in my view, to the taxing officer simply to equate the work done by a person who is not entitled to practise in the Court as if they were entitled to practise in the Court. There is no "solicitor on the record" as such to whom the client pays the costs and who is able to justify the engagement of solicitors who are not on the Register of Practitioners and charge them out as if they were.
88 In this regard, Dr Gray in his submissions says that it has long been accepted that the taxing officer's duty as set out in provisions equivalent to O 62, r 19, includes the discretion to allow costs at a higher amount than in the scale: for example see Re Ermen (1903) 2 Ch 156; or McIver & Co Ltd v Tate Steamers Ltd [1902] 2 KB 184; Fat‑Sel Pty Ltd v Brambles Holdings Ltd (1985) 6 FCR 440. Dr Gray submits that this is because O 62, r 12 is subject to the FCR and O 62, r 19 is expressed affirmatively requiring a taxing officer to allow costs reasonably and properly incurred. The fact there exists a clear discretion to allow costs above the scale, tells against the view that a taxing officer is required to treat qualified persons as unqualified, just because they are not on the Register of Practitioners. If the work that an uncertificated person performed was work which involved the exercise of their skill and qualifications, then as long as that work was necessarily performed, its cost is likely to be necessarily or properly incurred and the taxing officer ought to allow the cost at the scale applicable to solicitors. It is further submitted that in the case of the qualified solicitors whose names have not been entered on the High Court Register of Practitioners, that a taxing officer would clearly be within power in adopting the rate applicable to "solicitors" in order to give effect to the underlying rationale of compensating a successful litigant for all costs reasonably and properly incurred.
89 Order 62, r 19 makes provision for costs to be allowed on taxation in the following terms:
On every taxation the taxing officer shall allow all such costs charges and expenses as appear to him to have been necessary or proper for the attainment of justice or for maintaining or defending the rights of a party, but, except as against the party who incurred them, costs shall not be allowed which appear to the taxing officer to have been incurred or increased:
(a) through over caution, negligence or misconduct;
(b) by payment of special fees to counsel or special charges or expenses to witnesses or other persons; or
(c) by other unusual expenses.
90 In my view, while the words "necessary or proper for the attainment of justice or for maintaining or defending the rights of party" are properly to be given a broad meaning to meet the justice of the case, as the authorities cited suggest, I do not consider they, in effect, permit the taxing officer to avoid the strictures of O 62, r 8(1), for example, which only permit the taxing officer to allow and certify costs and fees which are payable to legal practitioners in respect of business transacted by them. If a person is not a legal practitioner as defined, then it seems to me that it is not open to the taxing officer, in effect, to proceed as if they were. This approach must be adopted whether costs are assessed in the ordinary way or by way of gross sum under O 62, r 4 FCR in the manner ordered by French J in this case.
91 To act in the way advocated on behalf of Dr Gray would, in my view, ignore the guidance provided by Mason and Murphy JJ in Guss at 59 that the requirements of the Judiciary Act in respect of the entitlement of a person to practise and to have a right of audience in a federal court is merely formal in character and has no intrinsic or historic importance. While on the one hand, one can appreciate an argument that the complementary nature of Pt VIIIA of the Judiciary Act provisions and the State and Territory laws regulating the legal profession suggest that, so long as a legal practitioner is properly certificated in a relevant State or Territory, a party should be able to recover the costs of their involvement in a Federal Court proceedings, the above analysis of the requirements of the Judiciary Act and the Rules of the Federal Court suggest otherwise.
92 Accordingly, in my opinion, the answer to question 1 is "No".
93 The result of so finding, in my view, would seem to be this. While ordinarily on the taxation of a bill of costs under O 62, r 8 close regard would be had to the costs as prescribed by the FCR Second Schedule, as applicable in respect of particular work done, including by legal practitioners as defined in the FCR, and similar regard would be given to the Second Schedule costs for the purposes of the assessment of a gross sum, it is not open to equate the work done by a person who is a solicitor but not one whose name appears on the Register of Practitioners maintained under s 55C of the Judiciary Act as if they were such a solicitor. The same approach must necessarily spill over into the assessment of gross costs in this case under the particular gross sum costs order made by French J for the reasons given above.
94 That is not, to say, however, in my opinion, that the work actually done by an uncertificated practitioner is without value and cannot be the subject of assessment. That work would, in my view, be claimable as work done by a managing clerk or clerk or the like. It would be open to the taxing officer or the Court in a taxation or in assessing costs on a gross sum basis, to regard the nature of the work done. What is not appropriate, however, is for the discretion under O 62, r 19, to do justice in any case, to be exercised by simply equating work done by a practitioner who was at material times not on the Register of Practitioners with the work of a certificated practitioner.
95 The Second Schedule costs scale plainly anticipates that a solicitor who is entitled to practise in the Federal Court can engage persons other than duly certificated legal practitioners, as defined by O 1, r 4 of the FCR, to assist in the preparation and conduct of a proceeding in the Federal Court. For example:
· Item 28 provides for a "clerk" to do work in respect of the preparation of appeal books.
· Item 30 anticipates that attendances at the Court Registry may be made by a "clerk".
· Item 31 provides for either a "solicitor" or a "managing clerk" to engage in attendances that require "the attendance of the solicitor or managing clerk and involves the exercise of skill or legal knowledge". Plainly, it is anticipated that a managing clerk may have a certain amount of "skill or legal knowledge".
· Item 37 anticipates that a "managing clerk" might attend court or chambers or before the Registrar for hearing with counsel.
96 It may also be arguable that O 62, r 19 has application in relation to the performance of some of this work.
97 In that case, the work done by an uncertificated person, under the direction and supervision of a person or persons who are entitled to practise in the Federal Court, might be charged out at an appropriate clerk or managing clerk rate, depending on their degree of skill or legal knowledge, where skill or legal knowledge is required to some extent in the performance of that task. However, it would not be appropriate to make allowances that simply equate the value of the work done on the basis that the work was equivalent to that of a solicitor as provided for in the Second Schedule of the FCR.
98 It goes without saying, of course, that the issue that has fallen to me for determination in question 1 would not have arisen if the solicitors engaged by the respondents had in all cases taken the step of applying, on admission in State jurisdictions, to have their names entered on the Register of Practitioners kept by the High Court.