Wentworth v Wentworth: Estate of George Neville Wentworth

INTRODUCTION AND OVERVIEW 1 The present proceeding is an application by Miss Wentworth as Plaintiff for costs against Deputy Registrar Howe, the Crown in right of the State of New South Wales and the Defendant. It arises out of the review by this Court in its supervisory jurisdiction of Deputy Registrar Howe's decision not to disqualify himself on the ground of bias and/or apprehended bias. Miss Wentworth claims not only costs pertaining to that review, but also costs of and incidental to the taxation and earlier collateral challenges to it. There is therefore a preliminary question as to whether the latter costs could be recovered at all in these proceedings. In addition the Plaintiff seeks uncontroversial directions for the future conduct of the taxation. 2 This application follows my judgment of 6 February 1998 wherein I concluded that Deputy Registrar Howe had so conducted the taxation as to give rise to a reasonable apprehension of the possibility of bias on the part of the Plaintiff but made no determination of actual bias. His determinations, made in the taxation of the Plaintiff's bill of costs (filed 21 February 1992) were set aside including his reconsideration of the taxation and his cost orders made in relation to the taxation. I did not set aside, but declared severable, certain interim certificates issued by Deputy Registrar Howe to the extent they cover the amounts paid. I declined in that judgment to make the general cost orders then sought by the Plaintiff against the Defendant for "the whole of the costs of the taxation process to date including the costs of all applications which have arisen to date from the entire failure of the taxation process, on an indemnity basis". 3 The present proceeding raises the issue of the precise status, functions and degree of immunity, if any, of a taxing officer carrying out the taxing of a bill of costs and its reconsideration under the then applicable Rules of the Supreme Court ("the Rules") (Pt 52) as they stood prior to the amendments gazetted on 2 October 1992. 4 The issue of amenability of a taxing officer to costs orders is an important one in the administration of justice in this Court. It is not covered by authority dealing with the precise point. It may be accepted that there is jurisdiction to make an order in appropriate circumstances against a non-party though such an order is to be approached with caution and will always be exceptional; see s76 of the Supreme Court Act 1970 ("the Act") and Pt 52A r4(2) and (5) of the Rules and the authorities later cited. But such an order will not be made where a judicial function is exercised, or its equivalent. Thus if that officer's position in exercising that function be equated to that of a superior court judge, such a judge enjoys immunity from civil action and cost orders, except where he or she knowingly acts outside jurisdiction (Sirros v Moore [1975] 1 QB 118). If that officer's position is instead equated to that of an inferior court such as a magistrate at common law, the level of immunity still requires the relatively high hurdle that the officer concerned "has been perverse, guilty of corruption, or gross ignorance or similar serious misconduct"; Ex parte Blume & Anor; Re Osborn & Ors (1958) 75 WN(NSW) 411; Anstee v Werry (NSWSC, Smart J, 5 September 1986, unreported). Miss Wentworth contends that the findings of my judgment satisfy that level of misconduct so described, notwithstanding that no finding of actual bias was made. 5 However, Miss Wentworth principally contends that the status and functions of a taxing officer are quasi-judicial, meaning merely administrative and lacking essential attributes of the judicial process. She points to the status of the Deputy Registrar as an employee of the State who, though described as an officer of the court is not a judicial officer. The taxing officer in the taxation process issues a certificate which itself, unlike a judgment or court order, is incapable of grounding a bankruptcy notice or of being enforced without a court order. She contends that reference to "judicial", when so qualified by the description "quasi", means only that the taxing officer, though exercising an administrative function of taxation, must nonetheless apply the rules of natural justice. She cites H W R Wade Administrative Law 5th ed. (Clarendon Press - Oxford, 1982) at 45 (and see also 458-9): "A quasi-judicial function is an administrative function which the law requires to be exercised in some respects as if it were judicial. The stock example is a minister deciding whether or not to confirm a compulsory purchase order or to allow a planning appeal after a public inquiry. The decision itself is administrative, dictated by policy and expediency. But the procedure is subject to the principles of natural justice, which require the minister to act fairly towards the objectors and not (for example) to take fresh evidence without disclosing it to them. A quasi-judicial decision is therefore an administrative decision which is subject to the principles of natural justice." (In the later 1994 7th ed., this passage is repeated, though the last sentence reads "A quasi-judicial decision …… is subject to some measure of judicial procedure, such as the principles of natural justice".) She contends that Deputy Registrar Howe, having failed to apply the rules of natural justice, invokes the undoubted jurisdiction to make orders against a non-party (s76 of the Act and Pt 52A r4(2) and (5). She seeks to call in aid by analogy principles applicable to the action for misfeasance in public office in contending that the jurisdiction should be exercised. This could only be by analogy, as no such action has been brought. Alternatively, she invokes the inherent power of the Court to do what is just and proper in the circumstances. 6 The position to the contrary is that the status and functions of a taxing officer are properly described as judicial or quasi-judicial or otherwise enjoy what I term a derivative immunity; that in consequence they enjoy such a level of immunity as would preclude any cost order in the circumstances. After setting out the salient facts, I deal with the various circumstances which give rise to the various levels of immunity. SALIENT FACTS 7 Miss Wentworth, as Plaintiff in proceedings 3748/89, alleged bias and apprehended bias against Deputy Registrar Howe, in the conduct of taxation proceedings, contending that he should have disqualified himself for that reason from the conduct by him of the taxation of the Plaintiff's bill of costs. The taxation proceedings were associated with a strenuously fought application made by the Plaintiff under s7 of the Family Provision Act 1982 (NSW). An agreed chronology prepared by the Deputy Crown Solicitor's office is in the file. It gives some insight into the unconstrained ramifications of this litigation. I concluded in a written judgment dated 6 February 1998 (at 62-3) as follows: "My conclusions can be stated in summary form as follows: 1. I am satisfied that it has been firmly established that Taxing Officer Howe so conducted the taxation as to give rise to a reasonable apprehension of the possibility of bias on the part of the Plaintiff, based upon the matters which I have earlier identified. It follows that the determinations of Taxing Officer Howe in the taxation, including the reconsideration must be set aside save as to his determination that the relevant interim certificates should issue and payments be made thereunder in the amounts actually paid; in addition any cost orders made by Taxing Officer Howe in relation to the taxation must be set aside. 2. No order as to costs is made in relation to the present proceedings." 8 My reasons for that conclusion are set out at length in the written judgment. No finding of actual bias was made. 9 Earlier, at page 62, I had this to say in regard to the Plaintiff's then application for costs orders against the Defendant, Mr Peter Wentworth: "Finally the Plaintiff seeks cost orders against the Defendant and in particular an order that the Defendant pay the costs of the Plaintiff of the whole of the taxation process to date including the costs of all applications which have arisen to date from the entire failure of the taxation process, on an indemnity basis. In my judgment no such orders should be made. The Defendant has it is true put the Plaintiff to proof regarding the matter of bias, but the Defendant was entitled to do this. The Plaintiff would be put to proof in any event whether the Defendant had played a role or not in the initial stages of the present proceedings. It would be wholly inappropriate for cost orders to be made against the Defendant in the circumstances. Moreover the Defendant was entitled to contest the Plaintiff's contentions before the Taxing Officer, though it is to be regretted that the proceedings overall were contested by both parties in so unconstrained a way. However it is not possible to attribute a preponderance of responsibility for this to either party. All of this has, as Clarke JA observed (Wentworth v Wentworth at 36) "meant that the court, and officers of the court, have been required to spend an excessive amount of court time in resolving one incidental aspect of litigation between two people." That said, I do not detract from the Plaintiff's right to have this aspect of the Taxing Officer's determinations dealt with by this Court." 10 Subsequently, on 1 July 1998, I made orders in the following terms: "1. Subject to order 2, the determinations of Taxing Officer Howe made in the taxation of the Plaintiff's Bill of Costs filed 21 February 1992, including the reconsideration of the taxation and any orders made in relation to the taxation, be set aside. 2. The Interim Certificates issued by Taxing Officer Howe on the dates listed below, to the extent they cover the amounts paid thereunder by the Defendant to the Plaintiff, are not set aside but declared severable from the rest of the taxation." 6 April 1992 1 September 1992 10 May 1994" 11 When those orders were made, the Plaintiff foreshadowed that she wished to have the opportunity to put submissions regarding the conclusion reached in my judgment that no order as to costs should be made in relation to the present proceedings and in particular, that she would be putting submissions that cost orders should be made against both the Defendant and, as had not previously been foreshadowed, against Deputy Registrar Howe. As Miss Wentworth had not had the opportunity to address me on costs before I handed down the judgment of 6 February 1998, I acceded to her request to make submissions, and these were made in writing on 13 August 1998 as well as orally and were subsequently elaborated in oral and written argument before me. Dr Birch, as amicus curiae, has again assisted the court with submissions. 12 The Plaintiff's written submissions consisted of her initial submissions of 13 August 1998, further submissions of 6 and 9 November 1998, written submissions dated 25 March 1999 in reply to Dr Birch's earlier written submissions of December 1998 and, finally, her written submissions dated 29 March 1999 in reply to Dr Birch's further written submissions of 25 March 1999. In addition both Miss Wentworth and Dr Birch addressed me orally. The Plaintiff thus was afforded a full opportunity to address me on the issues she raises. 13 By letter dated 29 March 1999 the Defendant, Mr Peter Wentworth, and Deputy Registrar Howe were invited, if they wished, to put any matters, in relation to any orders that I may make in relation to costs and were given until 6 April 1999 to indicate their position. Similarly, the Crown in right of the State of New South Wales, has been informed of the proceedings and given an opportunity to put any matters it may wish. None of Mr Wentworth, Deputy Registrar Howe or the Crown in right of the State of New South Wales have chosen to make any submissions. The Plaintiff had earlier notified Deputy Registrar Howe of her intention to seek the cost orders in relation to him by letter dated 19 March 1999 sent by facsimile on that date. In view of the shortness of that notice, I concluded that it was appropriate that Mr Wentworth be given this additional opportunity to make such submissions if he so chose. PRINCIPAL ISSUES 14 The Plaintiff's submissions raise three general issues. First Issue - Jurisdiction and Discretion in relation to Cost Orders and their Potential Scope: (i) Whether an order of costs can and should be made against Deputy Registrar Howe and/or the Crown in right of New South Wales either by reference to the principles of misfeasance in public office, if capable of application at all, or as otherwise just and equitable, and, if so, (ii) whether any such order for costs could extend beyond the costs of the review before me to include, as sought by the Plaintiff, costs of the associated taxation and re-consideration before Taxing Officer Howe, the review of that reconsideration by Master McLaughlin and the costs of the appeal before the Court of Appeal insofar as related to the foregoing taxation, and all costs incidental to those proceedings? Second Issue - Cost Orders against the Defendant: Can and should any order for costs be made against the Defendant, Mr Peter Wentworth, and, if so, the scope of such cost order having regard to the answer to the previous question? Third Issue - Future conduct of the Taxation: What directions can and should now be made for the future conduct of the taxation following the setting aside, save for interim certificates of the earlier determinations of Deputy Registrar Howe in the taxation? First Issue - Jurisdiction and discretion in relation to cost orders and their potential scope 15 In seeking a cost order against Deputy Registrar Howe, Miss Wentworth puts her claim as follows. (i) The costs sought to be recovered fall into two categories. First there are the costs of the successful application to set aside the determinations of Deputy Registrar Howe. This is made pursuant to the court's inherent supervisory power by way of review not appeal, to control the authority which it delegates to its taxing officers; see page 24 of my judgment of 6 February 1998. I refer to these costs, for convenience, as "the review costs". Second, as elaborated in the agreed chronology, there are the costs of the taxation and reconsideration before Deputy Registrar Howe, the costs of that reconsideration referable to the hearings before Master McLaughlin, and the costs associated with the proceedings in the Court of Appeal culminating in its judgment of 21 February 1996. The relevant points of the Court of Appeal judgment are quoted in my judgment of 6 February 1998 at pp 17-18. The Court of Appeal expressly stated that it made no order as to costs in relation either to the Plaintiff's successful appeal and the Defendant's successful cross appeal. The proceedings were remitted by the Court of Appeal to the Equity Division for proper determination of the review of the taxation and its reconsideration. This meant review of the decision of the Taxing Officer on the reconsideration, under the then applicable rules being Division 7 of Part 52 of the Rules. This second category of costs also includes costs incidental to the relevant proceedings. I refer to these various costs as "non-review costs". (ii) Deputy Registrar Howe was not a named party to the proceedings nor joined as such but nonetheless is within the definition of "party" in s19 of the Act. Under that definition, "party" includes "any defendant". "Defendant" is in turn defined by s19 of that Act as including "any person served with a statement of claim or summons, or served with notice of or entitled to attend any proceedings". But in any event, he is nonetheless amenable to the discretion of the court to make a cost order as a non-party. The amicus curiae concurred in the contention that this result followed from Part 52A r4(5)(e) of the Rules. This provides that sub-rule (2), precluding the Court from making an order for costs against a non-party, does not apply where the express exception in r4(5)(e) applies. That exception is to make a cost order "in exercise of [the court's] supervisory jurisdiction over its own officers". Clearly enough Deputy Registrar Howe is included as an "officer", by virtue of s121(1) of the Act. Furthermore, under s76 of the Act, costs are in the discretion of the court and that discretion extends to awarding costs against a non-party; Knight v F P Special Assets Ltd (1992) 174 CLR 178 approving Aiden Shipping Ltd v Interbulk Ltd [1986] 1 AC 965. The Court of Appeal in Leicester v Walton (NSWCA, 22 November 1995, unreported) determined that the jurisdiction of the Supreme Court to award costs against a non-party was to be determined by looking at the Act, the Rules and any other relevant act. Thus the general power in s76 is limited by Part 52A r4(2) unless within the exception of r4(5), as is the case here where r4(5)(e) applies. (iii) Though courts should approach such an order with caution and an order against a non-party will always be exceptional, here the taxing officer's connection with the proceeding is sufficiently close and his conduct in the taxation found to be such as to warrant the exercise of the discretion to order costs against him, in the exercise of the court's supervisory jurisdiction over its own officers. In particular, the conduct here was constituted by breach of the rules of natural justice as set out in accordance with the findings in my judgment of 6 February 1998. (iv) In addition to the matters set out above, reliance is placed upon such finding as providing the basis for a finding of misfeasance in public office by Deputy Registrar Howe such that costs, by analogy to such a claim for damages or compensation, should be awarded against Deputy Registrar Howe. This is both in the category of review costs and non-review costs. (v) The court's jurisdiction to award costs is based on the amplitude of jurisdiction conferred by s23 of the Act to do that which may be necessary for the administration of justice in New South Wales assisted by s76 and to the extent applicable, the Rules. It is contended that the combination of this jurisdiction and associated power under the Rules permits the court to make the cost orders sought including for non-review costs. (vi) It is contended that Deputy Registrar Howe enjoys neither judicial immunity nor the protection available to officers of inferior courts such as magistrates and justices of the peace nor indeed the immunity granted to non-judicial officers such as tribunal members, arbitrators, referees and witnesses. It is contended that the exercise of the functions of a taxing officer in a taxation process is merely "quasi judicial" meaning only that such functions must be exercised in accordance with natural justice but remain administrative. As such he enjoys no immunity. (vii) An order may also be sought under the Suitors' Fund Act 1951 (NSW), even if it be the case that the terms of that Act did not strictly apply by reason of there being no "appeal", or at any rate no appeal against "the decision of a court"; see s6(1) of the Suitors' Fund Act. (viii) Finally, it is contended that the Crown is liable for any cost orders made against Deputy Registrar Howe, on the basis that he is a Crown employee and that ss5 and 9 of the Crown Proceedings Act 1988 (NSW) and s7 of the Law Reform (Vicarious Liability) Act 1983 (NSW) directly or by analogy, apply to remove any impediment there might otherwise be in making an order for costs also against the Crown. It is said to be by analogy, as s7 of the Law Reform (Vicarious Liability) Act deals only with vicarious liability on the part of a "master" "in respect of a tort committed by his servant ……" and no tort is pleaded here. 16 I have set out Miss Wentworth's argument in skeletal form and now turn to examining more closely its various links, starting with the scope of any potential cost orders, assuming jurisdiction. The jurisdictional conclusion in (ii) above is, save as indicated, non-controversial. Clearly enough, subject to any immunity, there is a limited and exceptional jurisdiction to make a cost order against a non-party. However, I do not consider (in the alternative submission Miss Wentworth makes) that Deputy Registrar Howe was a "party" within s19 of the Act, as a person "served with notice of or entitled to attend any proceedings". Indeed Miss Wentworth earlier argued strenuously to the contrary so far as entitlement to attend. All my judgment of 12 September 1996 (at 7) did was to give him the opportunity if he so chose, to apply to become an intervenor, a matter, as I then made clear, to be considered at the time if he did so. He was never formally served with notice of the proceedings but rather at my direction given copies of the relevant materials. But nothing hangs on that, as the jurisdiction point is otherwise made out. Scope of Potential Cost Orders 17 So far as review costs are concerned, on the reasons earlier set out, it is clear enough that this Court has jurisdiction to award such costs against a non-party, in the sense of a person who is not formally a party to the proceedings. 18 But non-review costs are in an entirely different category. Self-evidently, a single judge of this Court could not add to or vary any cost order made by the Court of Appeal, such as, for example, that made in the judgment to which I have earlier made reference, delivered on 21 February 1996. There the Court of Appeal declined to make any order as to costs in relation either to Miss Wentworth's appeal or the Defendant's cross-appeal. As was said by Gaudron J in the context of an application for special leave to appeal in Leila Shaw v John Crichton and Neil Crichton ([1999] HCA S101/98, 12 March 1999) para 55: "…… court orders are not subject to attack in collateral proceedings; more particularly, given the court's hierarchy, orders of this Court are not subject to collateral attack in inferior courts" Gaudron J referred to this as a well established principle. Indeed it is axiomatic and applies mutatis mutandis to a single judge of this court in relation to the Court of Appeal. 19 The remaining non-review costs, namely those in respect of the appearances before Deputy Registrar Howe and costs incidental thereto, arise for consideration in the exercise of this Court's supervisory jurisdiction over its own officers. The present proceedings cannot, as I say in my earlier judgment of 6 February 1998, be in any sense a review within the Rules nor an appeal. Rather they arise under the inherent power of this Court to review a taxing officer's decision "for the Court always retains to itself power to supervise and control the authority which it delegates to its Taxing Officers ……"; see Wentworth v Wentworth (NSWCA, 21 February 1996, unreported) per Clarke JA at 8 cited at page 24 of my judgment of 6 February 1998. 20 Dealing with the items comprised in the non-review costs that did not involve appearances before the Court of Appeal, it is clear from the Court of Appeal judgment, in particular Clarke JA's criticism that Miss Wentworth embarked on that attack before the Master without first seeking a reconsideration of the taxation before the Taxing Officer, that the Court of Appeal not only did not but would not have awarded any costs in relation to those applications comprised in the collateral attack; see Clarke JA at 10 quoted at page 17 of my judgment of 6 February 1998. I see no basis for my doing otherwise. 21 Thus what remains to be considered in the non-review costs is the actual conduct of the taxation before Deputy Registrar Howe. The jurisdiction to award costs finds its ultimate source in s76 of the Act where the expression "costs" is defined in s76(2) in these terms: "(2) In subsection (1) the expression "costs" includes - (a) costs of or incidental to proceedings in the Court, including the administration of estates and trusts; (b) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal as well as the costs of or incidental to the appeal; and (c) in the case of proceedings transferred to or removed into the Court, the costs of or incidental to the whole proceedings, both before and after the transfer or removal." 22 The last two categories of costs in paras (b) and (c) quoted above clearly could not include non-review costs. There is no appeal to the Court, for the reasons earlier set out nor a transfer or removal to the Court. The first category, that of costs "of or incidental to proceedings in the court", is capable of catching costs in the taxation, being costs incidental to proceedings in this Court in which the relevant cost orders were made. Furthermore, the definition of costs is an inclusive one. It is capable of covering categories of costs cognate with those expressly described, such as a costs of the taxation before Deputy Registrar Howe. 23 There is also a powerful argumentum ab inconvenienti . To conclude otherwise would mean that such costs would fall into a black hole where they can never be recovered despite setting aside the taxation and whatever may follow in regard to the future conduct of the taxation. 24 It would be a surprising conclusion that the Court's power of supervision did not extend to a jurisdiction to making cost orders against a court officer in a proper case where that court officer exercises a function which is incidental to proceedings in the court. Discretion in relation to costs against a non-party; Principles 25 That there be jurisdiction to award costs does not of course mean that the discretion so to do should be exercised. It is convenient that I now turn to those considerations that should affect an exercise of that discretion. 26 Turning now to the question of discretion in relation to awarding costs against a non-party, I first set out some governing principles. (1) The discretion is to be exercised "judicially and in accordance with general legal principles pertaining to the law of costs"; Knight v F P Special Assets Ltd (supra) at 192 per Mason and Deane JJ; Vestris v Cashman [1998] SCSA S6852 at 21. (2) The context of the particular exercise of discretion is likely to be critical; here that context is the exercise by the court of "its supervisory jurisdiction over its own officer" and that in turn is affected by whether immunity is available for that officer in exercising the function he does, depending on whether judicial, quasi-judicial, or merely administrative. (3) A connection with a judicial proceeding in which the cost order is to be made is a necessary condition of the proper exercise of the jurisdiction or power; Burns Philp & Co Ltd v Bhagat [1993] 1 VR 203 at 219; Bischof v Adams [1992] 2 VR 198; Vestris v Cashman (supra); C E Heath Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (SC(Vic), Batt J, 1 September 1995, unreported) (4) There must be a causal connection between the non-party and the occasion for ordering costs; Bischof v Adams (supra); C E Heath Underwriting & Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd (supra); Vestris v Cashman. (5) Improper conduct of a non-party may be a factor, but is not a necessary feature; see Vestris v Cashman. (6) The existence of an immunity from suit; Symphony Group Plc v Hodgson [1994] QB 179 at 192H; Najjar v Haines (1991) 25 NSWLR 224 at 249F; the nature of the immunity sought and the category or status of the person seeking that immunity, for example whether the immunity is from some form of civil action such as defamation or is in relation to a witness; nonetheless the immunity may share a common basis of policy and principle such as giving effect to the public interest in securing the utmost freedom to those who preside over judicial proceedings, subject only to the constitutional or other remedies for removal from office; see Mann v O'Neill (1996-97) 191 CLR 204 at 239 per Gummow J. (7) Related to the public interest in securing the utmost freedom to those who preside over judicial proceedings, is the underlying policy that those required to exercise judicial functions should have freedom to speak and act without fear of reprisal, with the corollary that it will be subverted if, while the author is free from attack, his or her subordinates in the form of officers of the court required to record and dispatch the judge's decisions are not protected; see Crispin v Registrar of the District Court [1986] 2 NZLR 246 at 252. (8) Finally, an order against a non-party should be approached by the court with caution; C E Heath Underwriting and Insurance (Australia) Pty Ltd v Daraway Constructions Pty Ltd and an order against a non-party will always be exceptional; Symphony Group Plc v Hodgson (supra) at 192H; Aiden Shipping Co Ltd v Interbulk Ltd (supra) at 980F; per Clarke JA; Najjar v Haines (supra) per Clarke JA at 249 in relation to appeal proceedings; Vestris v Cashman. Characterising the functions of a Taxation Officer - Judicial or Derivative Immunity and at what level? 27 Turning from general principles or factors affecting the exercise of the discretion, it is first necessary to characterise the functions exercised by the Deputy Registrar when carrying out a taxation. Are those functions to be characterised as judicial or quasi-judicial, and, if so, do they give rise to immunity at the level of a superior court or non-superior court? Or are the functions to be characterised as wholly administrative, enjoying no immunity though referred to as quasi-judicial? 28 I deal first with immunity in general terms. Three categories of immunity emerge from the cases. For convenience I shall call them "absolute immunity" as applicable to a superior court, "qualified immunity" as applicable to a inferior court, and "derivative immunity" from connection to, or analogy with, a judicial proceeding. Absolute Immunity 29 This immunity of judicial officers of superior courts has been described as a "well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity"; see Re East; ex parte Nguyen (1998) 159 ALR 108. 30 In Sirros v Moore the majority of the Court of Appeal stated as a broad principle that all judicial officers, in both superior and inferior courts, should be immune from suit except where he [or she] knowingly acts outside jurisdiction (at 136, 149). The extension of the principle to all judicial officers is certainly not settled in this country. Indeed in the case of magistrates a different, qualified immunity obtains at common law, as I explain shortly. Sirros itself concerned the action of a High Court judge. Lord Buckley, who was in the minority, would have restricted the principle only to a justice of a superior court. 31 Sirros has been acknowledged by the New South Wales Court of Appeal in cases dealing with the judicial immunity of superior court judges: see Attorney-General for New South Wales v Agarsky (1986) 6 NSWLR 38, a brief judgment by Kirby P (as he then was) upon which he elaborated in Rajski v Powell (1987) 11 NSWLR 522. In Rajski v Powell Priestley JA noted that Kirby P's formulation of the principle in Agarsky (supra) suggested that judges must always act in good faith. His view (at 528), with which Hope JA agreed, was that the issue of 'good faith' arises with judges of superior courts only where they act, in fact, outside their jurisdiction and then only in the limited sense explained. Thus as Kirby P explained (at 532) "jurisdiction" in judicial immunity cases refers to the "broad and general authority" conferred upon the court and upon the judge to hear and determine issues. He cites Woodhouse J in Nakhla v McCarthy [1978] 1 NZLR 291 (at 301) where the latter says: "'Authority to decide' is the test, not the mode of the decision nor the manner in which the powers... have been exercised or not exercised." This concept of jurisdiction is quite different from that used in judicial review proceedings. The cases thus suggest that Sirros to that limited extent only qualifies the traditional immunity in requiring that the judge must honestly believe he or she is exercising jurisdiction: see Moll v Butler (1985) 4 NSWLR 231; Rajski v Powell. Rajski v Powell, along with the absolute privilege in defamation upheld in Mann v O'Neill (supra) was cited by the High Court in Re East; ex parte Nguyen (supra) at 115 as an authority for the general immunity. Qualified Immunity - the Common Law Protection for Magistrates 32 The traditional common law position with respect to magistrates is that costs will not be awarded against a magistrate "unless he has been perverse, guilty of corruption or gross ignorance or similar serious misconduct": Ex parte Blume & Anor; Re Osborn & Ors (supra); Anstee v Werry (supra). While a case of apparent, as distinct from actual, bias would not be expected to rise to the level where immunity was lost, an extreme case of breach of the rules of natural justice might conceivably do so in refusing to hear at all from a party; see Ex parte Taylor (1924) 41 WN(NSW) 81. That case should be contrasted with Cummins v McKenzie [1979] 2 NSWLR 803 where Sheppard J, in an application based on denial of natural justice, itself based on a misconception of the law falling not far short of gross ignorance, declined to award costs against the magistrate, despite hardship to the applicant in having to bear the costs of putting right an injustice. He cited Ex parte Vincent (1900) 6 WN(NSW) 215, where no cost order was made despite what the court there characterised as an astounding blunder. The situation in Ex parte Taylor (supra) is in any event distinct from what occurred in Wentworth where the refusal to hear was much more limited, though in a respect sufficient to give rise to a finding of apparent bias. 33 The extension in Sirros of the common law principle of judicial immunity to judicial officers of inferior courts such as magistrates has been doubted by members of the House of Lords in McC v Mullan [1984] 3 All ER 908 eg per Lord Bridge at 923. More recently in Warren v Warren [1996] 3 WLR 1129, a case concerned with the compellability of a district court judge in the UK, Lord Woolf with whom Butler-Sloss LJ and Saville LJ agreed, approved Lord Bridge's refusal in McC (supra) to follow Lord Denning in Sirros in "sweeping away" any distinctions between magistrates and other judges. 34 This extension of immunity to all judges and judicial officers has not as yet been addressed squarely by New South Wales courts. The Court of Appeal in Spautz v Butterworth (1996) 41 NSWLR 1 (a case concerning protection for a magistrate who had issued a warrant outside his jurisdiction) did not decide the point on the basis the ground was not taken in the court below; see Spautz v Dempsey (NSWSC, Young J, 27 April 1993, unreported). Statutory protection under s144 of the Justices Act 1902 (NSW) was, in any event, available in the circumstances. Derivative Immunity 35 This species of immunity is closely akin to what might be termed immunity by analogy so I have, for convenience, grouped the two together. In immunity by analogy what confers the immunity on a non-judicial body such as a board of inquiry is close similarity to, rather than connection with, judicial proceedings. This is illustrated by Tampion v Anderson [1973] VR 321. There McInerney J determined that judicial immunity from defamation proceedings had been extended by analogy to "persons presiding at or constituting a tribunal authorised by law to conduct an inquiry proceeding judicially, that is to say in a manner as nearly as possible similar to that in which a court of justice acts in respect of an inquiry before it". 36 In the United Kingdom, Trapp v Mackie [1979] 1 WLR 377 concerned the immunity of a witness from an action in defamation in an inquiry into the dismissal of a headmaster. It followed a line of cases which assert that the factor affording absolute privilege to witnesses (amongst others) is the similarity of the proceedings in question to a court of justice. Lord Diplock set out four considerations which indicate whether a proceeding would attract an absolute rather than a qualified privilege. These are: (i) under what authority the tribunal acts, (ii) the nature of the question into which it is its duty to inquire, (iii) the procedure adopted by it in carrying out the inquiry, (iv) the legal consequences of the conclusion reached by the tribunal as a result of the inquiry. 37 Further the proceeding must be "recognised by law". What this means was not expanded upon since the inquiry was constituted under an Act of Parliament. The Board of inquiry in Trapp v Mackie (supra) was said to be no different from a civil proceeding in a court. McHugh J discussed these considerations in Mann v O'Neill. 38 Other examples of immunity by analogy include: local councils acting quasi- judicially insofar as owing no duty of care: Smaill v Buller District Council [1998] 1 NZLR 190; Welbridge Holdings Ltd v Metropolitan Corporation of Greater Winnipeg (1970) 22 DLR (3d) 470 39 Likewise proceedings undertaken by an arbitrator which are akin to a judicial proceeding may be protected depending on the precise ambit of the arbitrator's role. Thus in Arenson v Casson Beckman Rutley & Co [1977] AC 405 at 423 (a case about an auditor acting as valuer and claiming immunity as if an arbitrator) it was said that the essence of a judicial decision is that it "decides a dispute" (at 424). "[T]he essential prerequisite for him to claim immunity as an arbitrator is that, by the time the matter is submitted to him for decision, there should be a formulated dispute between at least two parties which his decision is required to resolve. It is not enough that the parties who may be affected by the decision have opposed interests - still less that the decision is on a matter which is not agreed between them". An auditor in the role of a valuer of shares was not, unlike an arbitrator, immune from a negligence suit. An architect engaged to issue interim certificates was likewise held to be not acting judicially; Sutcliffe v Thackrah [1974] AC 727 at 735, 744. 40 However, the referee in Najjar v Haines was found by Kirby P and Rogers AJA to have immunity from suit on the basis that the report provided by the referee was integral to the decision making process of the judge. Clarke JA allowed an immunity "at least where there is no question of fraud or good faith involved" (at 250). 41 A churchwarden acting as a returning officer was said to have duties which were "neither entirely ministerial nor wholly judicial" and the exercise of his judgment or discretion in the admission or rejection of votes required immunity from action (500 possible actions it was said) so that he could perform his duties. The court determined that malice was necessary to found an action; Tozer v Child (1857) 7 EL & BL 377; 119 ER 1286; applying Cullen v Morris (1813) 2 Stark 577; 171 ER 741. These cases rest on a distinction between acting ministerially, that is to say essentially without discretion, and acting judicially, that is to say with a discretion - but not with a discretion at large, as by reference merely to the public interest, which rather points to an administrative function; compare the Takeover Panel under the corporations legislation in Precision Data Holdings Ltd v Wills (1991) 173 CLR 167. 42 Finally, the general council of the Royal College of Surgeons, which acted under statutory powers, was held immune from action in the absence of malice after it directed the registrar of the dentists' register to remove the name of a dentist from the register without allowing him to explain the withdrawal of his diploma in dental surgery in Partridge v The General Council of Medical Education and Registration of the United Kingdom (1890) 25 QBD 90. The case was decided on the basis that this was not "merely a ministerial act" but the act of a body upon which was imposed a public duty to exercise a discretion and they would not be liable for an erroneous exercise of that discretion. 43 I turn now to the other species of derivative immunity, where functions or powers are exercised which are ancillary or incidental to the exercise of judicial power, or collateral to it. Thus in the context of division of powers, Gould v Brown (1997-98) 151 ALR 395 per Brennan CJ and Toohey J at 412; per Gaudron J 426 and per Kirby J at 503 concluded that non-judicial functions may be sufficiently "incidental" to the exercise of judicial power so as to stamp them with a judicial character. For example a Registrar conducting an examination under court supervision of a witness for the purpose of a court winding up, though not determining the rights and liabilities of adversaries, is nonetheless exercising a function incidental to the judicial power to wind up so as to share its judicial character, though not strictly judicial. 44 Another illustration of derivative immunity, not in a division of powers context, but rather in defamation, comes from the New Zealand case of Crispin v Registrar of the District Court (supra). A Registrar who mistakenly entered judgment against the wrong party of the same name was held immune from defamation proceedings. This was either on the basis that the act in question (entry of judgment) was a judicial act (at 251) or, even if it was not, was nonetheless, as an administrative act, covered by judicial immunity because collateral to a judicial proceeding. The policy basis was the judge's necessary freedom to speak and act without fetter of reprisal, which must necessarily extend to the court's subordinate staff. 45 That case can be contrasted with the position of the Registrar of the High Court of New Zealand, who was, in Seatrans (Fiji) Ltd v Attorney-General [1986] 2 NZLR 240, held to owe a duty of care to act upon an order of the Court to pay a specified amount into an interest-bearing account after it had been paid into court. Carrying out the order was said to be "neither a responsibility of a judicial nature, nor would it be in connection with the execution of the judicial process". A distinction clearly lies between such an administrative act - neither analogous to a judicial process nor sufficiently connected to it - and the taxation function. 46 That immunity, being derivative, should find its level by reference to the judicial process with which it is connected or compared. Where, as here, taxation is connected to a Supreme Court proceeding, this means it would find its level at the level of a superior court. 47 An alternative approach to ascertaining the level of immunity in a derivative context lies in identifying the public interest or basis of principle underpinning judicial immunity and then asking: what level of immunity is necessary to serve that interest or basis of principle in the context in which the question of immunity arises. That interest or basis of principle has been expressed in the following ways: (i) "to preserve the integrity, independence and resolve of the judiciary, and to ensure that justice may be administered by such judges in the courts, independently and on the basis of their unbiased opinion - not influenced by any apprehension of personal consequences"; Rajski v Powell per Kirby P at 528. (ii) to give "effect to the particular public interest in securing the utmost freedom to those who preside over judicial proceedings, subject only to the constitutional or other remedies for removal from office." Mann v O'Neill per Gummow J at 239-240. (iii) permitting civil liability attaching to persons involved in civil proceedings "would impede enquiry as to the truth and justice of the matter and jeopardise the 'safe administration of justice'": Mann v O'Neill per Brennan CJ, Dawson, Toohey, Gaudron JJ at 213; whilst the overriding consideration in respect of whether or not an absolute privilege against defamation will attach is 'whether there will emerge from the proceedings a determination the truth and justice of which is a matter of public concern" (Mann v O'Neill at 212 citing Lincoln v Daniels [1962] 1 QB 237 per Devlin LJ at 255-256). (iv) to prevent harassment of judicial officers by vexatious litigation by litigants not able to accept the finality of decisions against them: McC at 916; Rawlinson v Rice (1998) 1 NZLR 454 at 464 48 Application of that basis of principle gives this answer in the present context. The prospect of being sued unjustifiably for apparent bias, either in damages or for costs, could have a serious inhibiting effect on a court official doing his or her duty fearlessly and independently. It is enough for the safe administration of justice in the case of apparent bias, that disqualification can result. That safe administration may be jeopardised by tempting vexatious litigation with the prospect of cost orders and civil liability. Just as importantly, the court official, like the tribunal, will typically and properly, as in the present case, have played no role in contesting the application for disqualification, under the self-denying Hardiman principle. Thus, as I said in my judgment of 12 September 1996 (NSWSC Santow J, 12 September 1996, unreported): "In cases where prerogative relief is sought on the basis of an apprehension of bias of a member of a Tribunal, the member is named as a party as he or she is the person whom it is sought to prohibit: Re JRL; Ex Parte CJL (1986) 161 CLR 342. But even in such cases the Tribunal member does not take an active part in the proceedings and any attempts by the Tribunal to do so are discouraged on the basis that if the member becomes actively involved in the proceedings, there is a risk that his or her impartiality in the subsequent proceedings may be endangered: R v Australian Broadcasting Tribunal Ex Parte Hardiman (1980) 144 CLR 13 at 35-36; Commonwealth of Australia v Human Rights & Equal Opportunity Commission (1995) 133 ALR 629 at 639-641. More fundamentally, such an active involvement is unnecessary if not inappropriate given the principle of judicial immunity by which judges are immune from liability for damages for acts committed within their judicial jurisdiction, even where the judge is accused of acting maliciously. As Kirby P(as he then was) pointed out in Rajski v Powell (1987) 11 NSWLR 522 at 535, apart from history and authority, there are ample policy reasons in the public interest based on judicial independence supporting such an immunity, including the fact that otherwise it would leave the Judge open to costs orders against him or her." 49 It would be unfair to maintain the Hardiman principle if the public official or tribunal were vulnerable to cost orders or damages. That was expressly recognised by Wilcox J in denying an application that the Australian Broadcasting Tribunal be ordered to pay the costs of a successful party seeking judicial review of its decision; Our Town FM Pty Ltd v Australian Broadcasting Tribunal & Anor (No. 3) (1987) 77 ALR 609 at 611. Wilcox J found that although the Tribunal's error had been a cause of the applicant incurring costs, it would only be in an exceptional case proper to order the Tribunal to pay those costs. 50 As was said by Mahoney AP in Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662, the taxation process is judicial or quasi-judicial involving the exercise of discretion. Handley JA in Attorney-General for New South Wales v Kennedy Miller Television (1998) 43 NSWLR 729 at 739 considered that an assessor assessing costs under the new costs regime to be exercising a judicial function, though this had been contrary to the assumption made at trial and before the Court of Appeal. I do not consider that Mahoney AP was using the qualifying word "quasi" simply to state, in loose terms, that the rules of natural justice were to be applied, whilst insisting the function exercised was merely administrative. 51 Clearly enough, the taxation process is not a wholly judicial function. Thus the taxation certificate can neither constitute a final judgment or order, nor an order for payment of a sum of money ( Re Cartwright; ex parte Cartwright v Barker [1975] 1 WLR 573 followed in Wilmot v Buckley (1984) 2 FCR 540 and later Federal Court cases in the bankruptcy context). Rather liability depends upon a separate order for costs for the source of liability is always the original order or judgment. But while the taxing officer's certificate is rendered enforceable by the court order, it in turn is an incident of the court order, necessary to quantify the recoverable costs in terms of that order. It does so as an integral part of the court's processes. Thus Handley JA in Attorney-General for New South Wales v Kennedy Miller Television (supra) at 739: "Costs orders had been made in favour of Kennedy Miller which created obligations in the nature of contingent debt. Certificates of the costs assessor quantified these obligations, subject to appeal, and those certificates also enable the judgment creditor to fix the date on which the debt becomes payable. The process of assessment under the Act and the Regulation thus enables the inchoate or contingent obligation created by a court order to be converted into a legally enforceable judgment debt. It seems to me therefore that a costs assessor in assessing party and party costs is determining or at least working out the legal rights and duties of the parties under an order of the court and must therefore be exercising a judicial function." 52 In the same way an examination order connected with a winding-up carried out by a registrar is an integral part of the court's processes. It occurs under the supervision of the court as an incident of the judicial process of a winding-up. "Although a function might be characterised as administrative if conferred upon an administrative agency, a corresponding function might be characterised as judicial if conferred upon a court"; Gould v Brown (supra) at 413 citing R v Davison (1954) 90 CLR 353. While the taxing officer is not a judicial officer, clearly enough his or her functions are conferred on that officer as an officer of the court. This not in the sense that a solicitor or barrister is an officer of the court but as someone who is part of its structure. 53 Summing up: a taxing officer engaged in a taxation under the applicable Rules enjoys derivative immunity as for a judicial officer of a superior court rather than at the qualified level of immunity of a magistrate at common law. This is either (a) by reason of connection with the judicial proceedings in this Court as a superior court under which the relevant cost orders were made, that are then quantified by the taxation certificate, or (b) by reason of the taxation process being analogous to the judicial process, in replicating a judicial adjudication in which competing contentions are determined by applying the law to the facts as found, with its location at the level of a superior court being justified both by its connection to a superior court judicial process ((a) above) and this best serving the public interest underlying such immunity. That the taxation certificate still depends upon the judgment or cost orders for enforcement does not alter this result. Such immunity best serves the basis of principle underlying judicial immunity in the present context. I deal later with the consequence of that conclusion for the availability of cost orders against Deputy Registrar Howe, in the circumstances where his determinations have been set aside for apparent bias on the grounds elaborated in my judgment of 6 February 1998. 54 Finally, it is said that principles applicable to misfeasance in public office should apply by analogy, so as to render Deputy Registrar Howe amenable to a cost order. Such a proposition presupposes that either he has no immunity, or the level of immunity is not such as to justify protecting him in the circumstances of my earlier findings. Leaving aside the question of immunity, in circumstances where no such action has been brought, can such principles have any conceivable application here if only by analogy? The answer lies in the restricted scope of the tort itself. 55 It was said in Northern Territory v Mengel (1995) 185 CLR 307 and subsequently approved in Sanders v Snell [1998] HCA 64 that while the precise limits of this tort are still undefined, it is an intentional tort. Thus "the weight of authority here and in the United Kingdom is clearly to the effect that it is a deliberate tort in the sense that there is no liability unless either there is an intention to cause harm or the officer concerned knowingly acts in excess of his or her power." (at 345). For the purpose of deciding Mengel (supra), the majority considered it sufficient to proceed on the basis that the tort requires an act which the public official knows is beyond power and which involves the foreseeable risk of harm. It noted that there seems to be much to be said for the view that misfeasance extends to the situation of a public official recklessly disregarding the means of ascertaining the extent of his or her power; Mengel at 347. 56 In Sanders v Snell (supra) at 37 it is recognised that "inappropriate imposition of liability on public officials may deter officials from exercising powers conferred on them when their exercise would be for the public good". But "too narrow a definition of the ambit of liability may leave persons affected by an abuse of public power uncompensated. The tort of misfeasance in public office must seek to balance these competing considerations."; per Gleeson CJ and Gaudron, Kirby and Haine JJ. 57 My judgment of 6 February 1998 has no finding of any deliberate contravention of the rules of natural justice. There is likewise no finding that the taxing officer deliberately acted beyond power. There is furthermore no finding of actual bias but only a reasonable apprehension of the possibility of bias. Thus any analogy based upon the tort of misfeasance in public office to justify a cost order against Deputy Registrar Howe would not be justified, even were there no immunity. And as I have earlier concluded, there is immunity. 58 I am satisfied that the findings made in my judgment of 6 February 1998 are not such as to justify any order for costs against Deputy Registrar Howe whether review costs or, to the extent capable of being made, any non-review costs. No order for costs could in any event be made in relation either to the Court of Appeal or contrary to its determination. That conclusion follows whether the level of protection of his derivative immunity is taken to be that applicable to an officer of a superior court or an inferior court such as a magistrate at common law, though the former is considered the appropriate level. 59 In these circumstances, the question of any potential liability of the Crown in right of New South Wales does not arise. But in any event the Crown is clearly not an officer of the court. It cannot be made amenable to an order for costs in the present proceedings, in light of the provisions of Pt 52A r4 and the decision in Leicester v Walton (supra). I should add that in Attorney General for New South Wales v Agarsky , the Court of Appeal considered an application that the Attorney-General was liable in damages for the wrongful acts of certain judges and magistrates in New South Wales. In striking out the claim, the court found that an action is not maintainable where judicial officers act in good faith in the performance of their judicial duties. However, the proposition that the Attorney-General was liable for the conduct of judicial officers was also rejected. Second Issue - Defendant's position in relation to Cost Orders. 60 Can and should any order for costs be made against the Defendant, Mr Peter Wentworth, and, if so, what is the proper scope of such cost order having regard to the answer to the previous question? 61 In my earlier judgment of 6 February 1998, I concluded (at 62) that no order should be made that the Defendant pay the costs of the Plaintiff for the whole of the taxation process to date including the cost of all applications which have arisen to date from the entire failure of the taxation process, on an indemnity basis. I did so for reasons which I have earlier repeated at the commencement of this judgment. The reasons I gave related to an order for costs of the breadth thus described. I consider that no cost order of the breadth sought by the Plaintiff should be countenanced. 62 However, the question remains whether the Plaintiff should be entitled to a more limited cost order for what I have described as the review costs only and, if so, on what basis. The Plaintiff correctly points out that the Defendant resisted the contention of the Plaintiff that the taxing officer's determinations were vitiated by bias, or the appearance of bias. In the result, the determinations of Deputy Registrar Howe were set aside on the basis of apparent bias in the manner I have described. The Defendant played an active part in the proceedings up to 15 July 1997, resisting any such contention. Thereafter the Defendant played no active part in the proceedings, though not in any way waiving or withdrawing his opposition to any such orders. 63 On consideration, I am satisfied that there is a sufficient case for a more limited cost order, but only for the period to 15 July 1997, when the Defendant ceased any active part in the proceedings. It is true, as I have said, that his attitude to the litigation did not change from one of opposition to the relief claimed by the Plaintiff, strenuously asserted in that earlier stage, to one of submission to any order the court might make. That he did not is perhaps understandable, given the fact that the Plaintiff for her part, did not retreat in any way from the extremity of her application to have the Defendant pay the whole of the costs of the taxation and on an indemnity basis. The argument that I set out in my judgment of 6 February 1998, to the effect that the Plaintiff would be put to proof in any event, whether the Defendant had played a role or not in the initial stages of the present proceedings, is however to my mind also an important consideration. Precisely the same costs could have been anticipated in testing the Plaintiff's contentions had the Defendant at that point consented to any order the Court might make. This is because the Court was asked to hear evidence and submissions on a number of allegations by Miss Wentworth, some very serious ones, before determining those matters which were necessary to resolve in order to determine whether the taxation officer's determinations should be set aside in whole or in part. Thus I would make no order for costs in relation to the period after 15 July 1997 when the Defendant played no part in extending the proceedings. 64 As to costs prior to 15 July 1997, so far as related to the review, it is fair to say that the Plaintiff's bias application was not of course an action against the Defendant in the conventional sense. However, the relief sought by the Plaintiff was the setting aside of orders that had been made by the taxing officer and of which the Defendant had the benefit. It could be said that the nature of the bias application, though in law not an appeal but a review, did in some respects do what an appeal might have done, in focusing necessarily upon the conduct of the adjudicator rather than the Defendant. Nonetheless, the Defendant adopted an uncompromising adversarial role which would in the earlier stage have extended the proceedings to that date. A Defence was filed and a Notice of Objection was given to portions of the evidence filed by the Plaintiff. The Defendant did not appear at the hearing but did appear at several of the interlocutory stages and also made detailed written submissions opposing the Plaintiff's application on a number of grounds, all of which were ultimately unsuccessful. A more detailed elaboration of steps taken by the Defendant is set out between pages 6 to 10 of my judgment of 6 February 1998 and indicates the way the Defendant dealt with these matters. 65 In all the circumstances, I consider that the proper cost order to be made is that the Defendant should pay the Plaintiff's review costs on a party and party basis up to but not after 15 July 1997 when the Defendant took no further part in the proceedings. So far as earlier costs of the taxation are concerned, not attributable to the Court of Appeal or otherwise in conflict with its orders and thus not including any collateral attack as described in paras 18 and 20 of this judgment, I would give leave for either party to make application in relation to such costs, but only after the completion of the further assessment pursuant to regulation 80, as elaborated in paras 66 to 68 of this judgment. Third Issue - Future Conduct of the Taxation 66 The third issue is not controversial. The Plaintiff does not take issue with the submission by Dr Birch as amicus curiae, that the matter is dealt with by the Legal Profession Regulations 1994 and in particular by regulation 80. This is in the following terms: "(1) This clause applies to costs which were the subject of a bill given to a client (or which were the subject of an order of a court or tribunal made) before 1 July 1994. (2) The former taxation provisions continue to apply (and new Part 11 of the Act does not apply) in respect of costs if application is made before 1 July 1995, whether for the taxation or assessment of the costs. (3) If, however, application is made on or after 1 July 1995 (whether for the taxation or assessment of the costs), the costs are to be assessed in accordance with new Part 11 of the Act. However, the former taxation principles apply to any such assessment and that Part is to be construed accordingly." 67 Dr Birch submitted, and I accept, that the matter is thus dealt with by force of the Regulation rather than requiring a direction of the court. Likewise, whether the costs are to be dealt with by taxation or by assessment appears to depend upon whether one treats the Plaintiff as making a fresh application consequent upon the earlier orders that I have made, or whether one treats whatever taxation or assessment as now to occur, as pursuant to the Plaintiff's original application. 68 I consider that the position at the current moment is that the orders of Deputy Registrar Howe having been set aside, there is the necessity for the Plaintiff to make fresh application in order to invoke the machinery for determination of the costs unascertained. That application would be in the current matter within the terms of Regulation 80(3) with the result that the determination ought to be dealt with as an assessment in accordance with the new Part 11 of the Legal Profession Act 1987 (NSW) as amended. Suitors' Fund Act 1951 (NSW) 69 There is one final matter and that concerns the possible application of the Suitors' Fund Act 1951 (NSW). As I presently see matters, I would be prepared to contemplate making an order under the Suitors' Fund Act 1951 (NSW) if Miss Wentworth wishes formally to apply for such an order, in relation to the costs earlier awarded against the Defendant. However, that must be the subject of a formal application and I will consider then any matters bearing upon that question. One immediate difficulty concerns whether proceedings before me constitute "an appeal" in the sense used in the Suitors' Fund Act 1951 (NSW) where it is defined in s2(1) in these terms: "'Appeal' includes any motion for a new trial and any proceeding in the nature of an appeal." 70 I observe that the expression "any proceeding in the nature of an appeal" may extend the normal notion of an appeal to encompass what in some respects bears some of the elements of an appeal. In that regard I note what Rolfe J in Full Brick Homes Pty Limited v Consumer Claims Tribunal & Ors (NSWSC, Rolfe J, 13 February 1997, unreported) regarded as being an "appeal" in the circumstances of that case. That case involved relief being sought against, inter alia, the Consumer Claims Tribunal whereby a declaration was sought that the order it had made was void for want of natural justice. It will be seen that the present proceedings are in that respect not dissimilar. Rolfe J did not however give any reasons for concluding that an "appeal" would encompass such proceedings but it can be appreciated that such a conclusion may conceivably also be open here. 71 There is however a further difficulty, namely that s6(1) of the Suitors' Fund Act requires not only an appeal but also that the appeal be "against the decision of a court". Section 2(1) of the Act defines "court" as including "such tribunals or other bodies as are prescribed". So far as I am aware, there has been no judicial decision concluding that a taxing officer exercising a taxation function culminating in certificates is thereby making "the decision of a court" in that defined sense. That difficulty was not present before Rolfe J. Miss Wentworth has in any event submitted that the taxing officer is exercising an administrative function, so that to treat the taxing officer as having made "the decision of a court" would not comport with those submissions. That is another reason why the matter will need further argument if Miss Wentworth determines that she wishes to make a formal application in relation to the Suitors' Fund. ORDERS 72 Before finalising any orders in relation to the issues dealt with in this judgment, I will give leave to any party to make any further submissions concerning the precise orders that should be made in conformity with this judgment and to submit draft orders. **********

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