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Branson v Tucker [ 2012] NSWCA 310  (26 September 2012)

Last Updated: 28 September 2012

This decision has been amended. Please see the end of the decision for a list of the amendments.

Case Title:	Branson v Tucker
Medium Neutral Citation:	[2012] NSWCA 310
Hearing Date(s):	17 August 2012
Decision Date:	26 September 2012
Jurisdiction:
Before:	Beazley JA at [1] Campbell JA at [2] Barrett JA at [121]
Decision:	1. Grant leave to the Applicant to appeal. 2. Direct the Applicant to file a notice of appeal, in accordance with the draft contained in the White Book, within 7 days of the date of delivery of these reasons. 3. Refuse leave for the Applicant to argue that the aspects of this Court's decision in Attard v James Legal Pty Ltd [2010] NSWCA 311 that are identified at [92]-[94] of the reasons for judgment in the present case, are incorrectly decided. 4. Appeal dismissed. 5. Applicant to pay costs of the Respondents of the application for leave to appeal and of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - recovery of costs - by barrister - bill of costs rendered to a firm of solicitors by a barrister pursuant to a costs agreement - dispute over charges after time expired to seek assessment under the Legal Profession Act 2004 - barrister commenced action to recover charges - defence pleaded that charges were not reasonable having regard to skill of barrister and requirements of work undertaken - barrister moved the court to strike out the defence on the basis that the Legal Profession Act provided an exclusive regime for assessing the reasonableness of costs - strike out refused - the jurisdiction of the District Court to determine the reasonableness of disputed items in a bill of costs rendered by a law practice or practitioner in the course of the legal practice or practitioner suing for unpaid fees is not ousted by the statutory costs assessment regime COSTS - recovery of costs - by barrister -barristers were traditionally not engaged by contract to provide services - common law position altered by statute - a costs agreement provided by a barrister in accordance with the Legal Profession Act may be sued upon as part of a contract to provide legal services - court accordingly has jurisdiction to hear the matter as it would a contract claim involving disputed items of charge PRACTICE AND PROCEDURE - Court of Appeal - leave to challenge Court's own previous decision; application for - circumstances in which leave will be granted - requirement that sitting judges have strong conviction that previous decision was incorrect - requirement not met - leave refused
Legislation Cited:	Civil Procedure Act 2005 Corporations Act 2001 (Cth) District Court Act 1973 Interpretation Act 1987 Legal Profession Act 1987 Legal Profession Act 2004 Legal Profession Regulations 2002 Sale of Goods Act 1923 Solicitors Act 1843 (Eng) Solicitors Act 1974 (Eng) Uniform Civil Procedure Rule 14.28
Cases Cited:	Estate of Rosalind Allwood v Peter Vivian Benjafield [2009] NSWSC 1383 Alpine Beef Pty Ltd v Trycill Pty Ltd (No 2) [2010] FCA 286 Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136 Aquilina Holdings Pty Ltd v Lynndell Pty Ltd (No 2) [2008] QSC 98 Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 Attard v James Legal Pty Ltd [2010] NSWCA 311 Coshott v Barry [2012] NSWSC 850 In Re Foss, Bilbrough, Plaskitt & Foss [1912] 2 Ch 161 Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Harrison v Tew [1990] 2 AC 523 Heydon v NRMA Limited [2000] NSWCA 374; (2000) 51 NSWLR 1 House v R [1936] HCA 40; (1936) 55 CLR 499 Jones & Son v Whitehouse [1918] 2 KB 61 Keesing v Adams [2010] NSWSC 336 In re Park; Cole v Park (1888-1889) 41 ChD 326 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 Santo v Childs Family Kindergarten Limited [2007] NSWLEC 117 State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474 In the Matter of Windy Dropdown Pty Ltd [2010] NSWSC 1099 Woolf v Snipe [1933] HCA 5; (1933) 48 CLR 677
Texts Cited:
Category:	Principal judgment
Parties:	Christopher Charles Branson (Applicant) David Tucker (First Respondent) Richard Cowen (Second Respondent) David Schwarz (Third Respondent)
Representation
- Counsel:	Counsel: L P Robberds QC; A E Maroya (Applicant) M G McHugh; P Wallis (Respondents)
- Solicitors:	Solicitors: Allsop Glover (Applicant) Patterson Houen & Commins as town agents for Tucker & Cowen, Brisbane (Respondents)
File number(s):	2010/137517
Decision Under Appeal
- Court / Tribunal:
- Before:	Quirk DCJ
- Date of Decision:	23 May 2011
- Citation:
- Court File Number(s)	2010/137517
Publication Restriction:

JUDGMENT

1. BEAZLEY JA: I have had the opportunity to read in draft the reasons of Campbell JA. I agree with his Honour's reasons and the orders he proposes. I also agree with the additional comments of Barrett JA.

2. CAMPBELL JA:

Nature of the Case

3. The Applicant is a barrister who holds a commission as Queen's Counsel. The Respondents are a firm of solicitors. The Respondents briefed the Applicant in September 2009 to advise and appear for some clients of the Respondent in litigation then pending in the Federal Court of Australia in Sydney. It is common ground that, even though the Respondents are a Brisbane-based firm, the relevant law to apply is the law of New South Wales.

4. The Applicant has sued the Respondents in the District Court seeking to recover fees. The Statement of Claim alleged that on 29 September the Applicant entered into a costs agreement with the Respondents. In response to that allegation the defence pleaded certain additional facts concerning the relation between the Applicant and the Respondents, but did not either deny or not admit that a contract was entered between them on that day. Pursuant to UCPR 14.26, that is an admission, subject to the extra facts pleaded in the defence, that a costs agreement was entered: Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [61]- [63].

5. It is only fair to note that, so far as obtaining court orders in the Federal Court proceedings is concerned, the Applicant could not have been more successful. The claim against the Respondents' clients was dismissed (Alpine Beef Pty Ltd v Trycill Pty Ltd [2010] FCA 136), and an order was made that the costs of the clients of the Respondent be paid by the opposite party in the litigation on an indemnity basis, from a date prior to that on which the Applicant was retained by the Respondents (Alpine Beef Pty Ltd v Trycill Pty Ltd (No 2) [2010] FCA 286).

6. The present application is for leave to appeal from a decision of her Honour Judge Quirk on 23 May 2011. Her Honour dismissed a Notice of Motion that the Applicant had brought, which sought to have struck out under UCPR 14.28 a defence and cross-claim that the Respondents had filed. Her Honour also made orders that the Respondents had sought in a Notice of Motion that her Honour heard at the same time, and granted leave to the Respondents to file and serve an amended defence and cross-claim. The application has been heard on a basis whereby the Court has heard all the argument that would be put if leave to appeal were to be granted.

7. Mr Lionel Robberds QC and Mr Adrian Maroya appeared for the Applicant on the hearing of the application. Mr MG McHugh appeared for the Respondents. The written submissions of the Applicant, in which many of the arguments that I attribute below to the Applicant are to be found, were prepared by counsel other than Mr Robberds.

The Factual Background

8. On 29 September 2009, the Applicant sent to the Respondents a document that disclosed the basis of his fees and contained an invitation to enter a costs agreement. It stated:

"The basis of the calculation of my fees is as follows:

(a) For time spent on reading, preparation, conferences, consultations, drafting or settling documents (including written submissions), advising generally and for all other work, $900.00 per hour or part thereof;

(b) For each hearing day, $7,000.00 per day."

9. Those charges were stated to be exclusive of GST. The document recorded that the case in question was listed for hearing from 14-18 December 2009 - that is, for five days. The document gave an estimate of fees, as follows:

"It is very difficult to predict how many hours of professional time I will need to expend in order to provide the advice you have sought and to prepare for the hearing of this matter. Notwithstanding these difficulties and any unforeseen matter that may arise, I estimate that the total of my fees will be approximately $65,000.00 exclusive of GST."

10. The document included a provision that interest would be charged, at a specified rate, on any fees that were outstanding more than thirty days after rendering of a tax invoice. Another provision made the fees due and payable within thirty days of the date of the barrister signing a tax invoice or a letter enclosing such an invoice.

11. As preparation of the case advanced, the Applicant made a number of upward revisions of his estimate of fees, as follows:

12. The total fees ultimately rendered were $252,147.50. However, that was an amount inclusive of GST, while the estimates had been exclusive of GST. The amount of fees ultimately rendered exclusive of GST was $229,225.

13. The Applicant rendered a total of five memoranda of fees as the matter progressed. The first three and the fifth of them were paid promptly, but the fourth memorandum of fees, dated 18 December 2009 for an amount of $109,532.50, was questioned and, at least initially, not paid.

14. The memorandum of fees that was not paid was itemised as relating to work performed from 7 December 2009 to 18 December 2009 inclusive. Its line items included various conferences and preparation, and a "brief on hearing" fee for each of the five days on which the matter had been set down.

15. On 1 March 2010, the Respondents sought to have that memorandum of fees assessed pursuant to the provisions of the Legal Profession Act 2004 ("the LP Act"). The Manager, Costs Assessment, of the Supreme Court refused to submit it for assessment, on the basis that the 60 day period allowed by s 351(3) LP Act had elapsed. There was once a dispute about whether the Respondents had actually received the memorandum of fees on the date it bears, or on a later date that was less than 60 days before 1 March 2010, but that dispute is not a live one for the purpose of this application.

The Issues As Pleaded

16. On 2 June 2010, the Applicant filed a Statement of Claim in the District Court, seeking to recover the amount of the unpaid memorandum of fees from the Respondents. The Statement of Claim also sought interest, in accordance with the relevant provision of the costs agreement, and costs.

17. On 14 July 2010, the Respondents paid the disputed memorandum of fees, under cover of a letter saying that the fees were paid under protest and without prejudice, and that the Respondents would seek to recover any excessive fees that had been charged and paid. After the payment "under protest", the Applicant's claim related solely to recovery of interest and costs.

18. The Respondents filed a defence and cross-claim on 23 July 2010.

19. The Applicant's Notice of Motion sought both an order that the Respondents' defence and cross-claim be struck out pursuant to UCPR 14.28, and also an order for summary judgment for the Applicant pursuant to UCPR 13.1. It appears that the latter claim was either not pressed, or not pressed strongly, before the primary judge. Her Honour observed that relief under UCPR Part 13 required evidence from the plaintiff or some responsible person that the defendant "has no defence to the claim, or no defence except as to the amount of any damages claimed", and that no such affidavit had been filed on behalf of the Applicant. That made dismissal of the application under UCPR Part 13 inevitable.

20. Uniform Civil Procedure Rule 14.28 provides:

"(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1)."

21. There were some lack of clarity before the primary judge about upon which of the paragraphs in UCPR 14.28(1) the Applicant relied, but in the present application it was paragraph (a) that was relied upon.

22. Affidavits were read on the application before the primary judge that set out the various documents that had passed between the Applicant and the Respondents, and between their respective solicitors after litigation concerning the disputed fees was threatened. There was also an affidavit from an employee of the Respondents who had had the carriage of the Federal Court matter that identified what he saw as the problems with the disputed memorandum of fees. At the risk of some oversimplification, they included:

On any day when there was a hearing, the Applicant charged both the quoted daily fee, and also separate fees for conferences. That might give rise to an argument about whether the Applicant was entitled to make both those charges upon the correct construction of the part of the fee disclosure document that I have set out at [8] above.

The full daily fee was charged for the fifth day, even though the actual hearing occupied only half an hour on that day.

From the commencement of the retainer until the day before commencement of the trial, a total of 158 hours was charged for preparation. The affidavit evidence of both sides at the trial occupied no more than two and a half lever arch folders. The time charged for preparation seemed excessive.

Over the period 20-23 December 2009, a total of forty one hours was charged for preparation of final submissions. Those submissions were produced through a collaborative effort of the Applicant, his junior, and his instructing solicitor. The time charged seemed excessive, particularly bearing in mind that the legal issues in the case "were not by any means novel". Those issues were a misleading and deceptive conduct claim, a limitation claim, an alleged novation of contract, and an alleged breach of statutory warranties under the Sale of Goods Act 1923.

The fees actually charged significantly exceeded all the estimates that were given.

23. The defence pleaded, amongst other things, that:

The fees charged were far in excess of the estimates.

The hours charged were in excess of what was reasonably and necessarily required.

There was an implied term of the retainer that the Applicant would exercise reasonable skill and care in performing the retainer, that obligation was breached by charging for more hours than was reasonable or necessary, the Respondents have suffered loss by reason of that breach, and are entitled to set off that loss against the Applicant's claim.

The cross-claim repeated the matters pleaded in the defence.

24. The amended defence made these allegations somewhat more precise, by contending that the standard for what fees were reasonable was that appropriate to a Queen's Counsel "assisted by a Senior and capable Junior Counsel" (which might be intended to be a reference to either a junior, who was both senior and capable, or to a solicitor and a capable junior). The amended cross-claim that the judge allowed contended that there was an implied term that the fees charged would be fair and reasonable having regard to the Applicant being a Queen's Counsel, and the rate of charge at which he provided services. It pleaded a breach of that implied term. It pleaded in the alternative that the Applicant was under a duty of care to ensure that the work performed and the fees to be charged were fair and reasonable, and that that duty was breached.

Relevant Provisions of the LP Act

25. The present application is made against the background of provisions contained in the LP Act that govern the manner in which barristers can be engaged, and the charging of legal costs.

26. Section 83(3) LP Act 2004 provides:

"Contracts

A barrister or solicitor may enter into a contract for the provision of services with a client or with another legal practitioner. The barrister or solicitor may accordingly sue and be sued in relation to the contract."

27. Part 3.2 LP Act, which runs from s 301 to s 400 inclusive, provides some regulation of costs disclosure and assessment concerning legal services. In accordance with s 6 LP Act, an "Australian legal practitioner" is defined as an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate. Under the definition of "law practice" in s 4 LP Act, one of the ways in which it is possible to be a "law practice" is by being "an Australian legal practitioner who is a sole practitioner". The Applicant fits within each of these definitions of "Australian legal practitioner" and "law practice". In accordance with the definition in s 4 LP Act, "law practice" includes a "law firm". Under the definition of "law firm" in s 4 LP Act, the Respondents would be a "law firm".

28. Section 301 provides:

"The purposes of this Part are as follows:

(a) to provide for law practices to make disclosures to clients regarding legal costs,

(b) to regulate the making of costs agreements in respect of legal services, including conditional costs agreements,

(c) to regulate the billing of costs for legal services,

(d) to provide a mechanism for the assessment of legal costs and the setting aside of certain costs agreements."

29. Section 309 requires a law practice to disclose certain matters to a client relating to legal costs. However, s 312(1)(c)(i) provides that such disclosure is not required to be made if the client is "a law practice or an Australian legal practitioner".

30. There is a definition of "client" in s 4 LP Act, but it is not an exhaustive definition. All the definition says is that "client includes a person to whom or for whom the legal services are provided". If one seeks to ascertain the meaning of "client" by reference to the context in which it is used in the LP Act, there is some equivocation in the LP Act about who is a "client".

31. In the present case, the Applicant's letter of 29 September 2009 was addressed to one of the Respondents, and expressly said:

"My offer to enter into this Costs Agreement is directed to you as principal. I will not enter into a Costs Agreement with you as agent for your clients."

32. There is the admission on the pleadings, to which I have earlier referred, that there is a costs agreement between the Applicant and the Respondents. In these circumstances, as applied to s 312(1)(c)(i) the Respondents were the "client" of the Applicant. Thus, s 312(1)(c)(i) had the effect that s 309 did not impose any obligation on the Applicant to disclose anything concerning costs to the Respondents. However, the costs disclosure letter is still capable, in accordance with its terms, of being an offer to enter into a costs agreement, that has been accepted.

33. The following further provisions of the LP Act are relevant:

"319 On what basis are legal costs recoverable?

(1) Subject to the provisions of this Part, legal costs are recoverable:

(a) in accordance with an applicable fixed costs provision, or

(b) if paragraph (a) does not apply, under a costs agreement made in accordance with Division 5 or the corresponding provisions of a corresponding law, or

(c) if neither paragraph (a) or (b) applies, according to the fair and reasonable value of the legal services provided.

326 Effect of costs agreement

Subject to this Division and Division 11, a costs agreement may be enforced in the same way as any other contract."

34. Division 11 of Part 3.2 runs from s 349A to s 395A. It includes s 351:

"351 Application for costs assessment by law practice retaining another law practice

(1) A law practice that retains another law practice to act on behalf of a client may apply to the Manager, Costs Assessment for an assessment of the whole or any part of the legal costs to which a bill given by the other law practice in accordance with Division 7 (Billing) relates.

(2) If any legal costs have been paid without a bill, the law practice may nevertheless apply for a costs assessment.

(2A) An application for a costs assessment may be made even if the legal costs have been wholly or partly paid.

(3) An application under this section must be made within 60 days after:

(a) the bill was given or the request for payment was made, or

(b) the costs were paid if neither a bill was given nor a request was made.

(4) An application cannot be made under this section if there is a costs agreement between the client and the other law practice."

35. Notwithstanding the meaning that "client" has in s 312(1)(c)(i), in the language of s 351, the Respondents are "a law practice", the Applicant is "another law practice", and "the client" is the Respondents' client. As there was no costs agreement between the client and the Applicant, s 351(4) did not prohibit the Respondents from seeking an assessment of the costs of the Applicant, provided they made application within the sixty days provided for by s 351(3).

36. Section 366 provides:

"This Division does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable or that the amount of the costs is to be determined on an indemnity basis."

37. Other provisions in Division 11 establish the right of various people other than a law practice that has retained another law practice to apply to the Manager, Costs Assessment for an assessment of legal costs. Division 11 also contains provisions governing how the application for costs assessment is to be made, who is to be notified of it, the manner in which applications are referred to costs assessors and considered by those assessors, and the manner in which a costs assessor determines an application for a costs assessment. There is provision for any determination of a costs assessor to be reviewed by a panel, which in turn can issue a certificate concerning its determination. A further appeal lies to (now) the District Court concerning certain decisions relating to costs assessment. There are provisions concerning the manner in which costs assessors are appointed, and their obligations and protections when acting as costs assessors.

The Judgment Below

38. The Applicant contended before the primary judge that the defence and cross-claim were clearly untenable and could not succeed, and for that reason should be struck out. Some, but not all, of the cases to which this Court has been taken in the present application were deployed in support of that contention. The judge expressed the view that:

"I do not believe that the Court is in a position to undertake the kind of investigation necessary, given the legal arguments, to enable it to form the view that the defence and cross-claim are untenable, or so unarguable that such an order should be made."

After noting the submission of the Respondents that the costs agreement had an implied term that reasonable care and skill would be employed in performance of the retainer, the judge said that she accepted the Respondents' arguments that:

"... it may be that the Court retains the power to assess whether the fees claimed by the plaintiff are fair and reasonable, which obligation arises from both the implied term at law, and under the duty of care."

The Applicant's Submissions

39. The Applicant contended, in the court below and in this Court, that Division 11 of the LP Act provides an exclusive scheme whereby bills of costs are to be assessed by costs assessors. Even if it were possible, concerning some contracts whereby a non-lawyer does work on the basis of a schedule of rates, for a client sued for the price of work done to allege that the work charged for was more than was reasonably necessary, that possibility is not open when a legal practitioner sues to recover fees that have been charged in accordance with an agreed schedule of rates. That is because the exclusive scheme under Division 11 is one of the exceptions that s 326 LP Act recognises to a costs agreement being enforceable in the same way as any other contract. As the Respondents did not seek to exercise their right to seek assessment under Division 11 in time, they cannot now seek to question the reasonableness of the costs by a procedure that does not arise under Division 11. It is convenient to consider first some specific arguments put by the Applicant.

Assistance from Santo v Childs Family Kindergarten Limited?

40. The Applicant relied upon a remark of Pain J in Santo v Childs Family Kindergarten Limited [2007] NSWLEC 117 at [4]. Her Honour was considering the terms in which she should make an order for payment of costs of one party to litigation by another party to that litigation. The solicitor for the successful party contended that the order for the unsuccessful party to pay the costs of the successful party should extend to an order to cover, in the event of an assessment, the reasonable costs of any law practice acting on that assessment. Counsel for the Applicant informed us, without objection, that frequently costs assessors do not allow the costs of a lawyer of attending concerning a costs assessment, but only allow the lesser rate of charge that there would be for a costs consultant attending concerning that assessment. The solicitor for the successful party in Santo submitted to Pain J that such an order should be made because he had a very efficient billing system, that would enable him to produce a party/party bill with comparative ease, but that if he were to produce the bill rather than engage a costs assessor to produce it, he would be unlikely to be adequately remunerated.

41. Pain J declined to make that order. In the course of her judgment, she said, at [4]:

"Part 3.2 Costs Disclosure and Assessment provides a comprehensive process for the assessment of costs; see particularly s 319, s 357, s 359, s 363 and s 364."

42. Of the sections referred to by her Honour, I have set out s 319 at [33] above. Section 357 sets out the procedure for referral of applications for costs assessment to costs assessors. Section 359 contains some procedural provisions concerning the manner in which costs assessors should make their assessment. Sections 363 and 364 set out various criteria that a costs assessor must consider, and other criteria that the costs assessor may have regard to in conducting an assessment.

43. Her Honour's remark was made in a universe of discourse which contemplated that there was to be an assessment of costs. She was being asked to depart from the provisions of s 369, which provided that the costs of a costs assessment should be decided by the costs assessor, by requiring a particular type of costs to be allowed. Even if her Honour were right in concluding that Part 3.2 provides a comprehensive process for the assessment of costs when there is a referral of costs to an assessor, that says nothing about whether referral of costs to an assessor is to be the only way in which the reasonableness of legal costs might be ascertained when there has been no referral to an assessor. In any event, what her Honour said was that the procedure under Part 3.2 was "comprehensive", not that it was "exclusive". Santo does not advance the Applicant's contention, that Division 11 provides the exclusive means by which the reasonableness of legal costs can be assessed.

Assistance from Wentworth v Rogers?

44. The Applicant also relied upon Wentworth v Rogers [2006] NSWCA 145; (2006) 66 NSWLR 474. Ms Wentworth had been ordered to pay the costs of certain litigation to Mr Rogers, and a cost assessor had assessed those costs. Ms Wentworth had appealed unsuccessfully to the Common Law Division against that assessment. (At the time relevant in Wentworth, the appeal to a court concerning cost assessments lay to the Common Law Division rather than, as it now lies, to the District Court.) She then appealed to the Court of Appeal against the decision in the Common Law Division. The case arose under the Legal Profession Act 1987 ("the 1987 Act"). The Applicant accepts that, though there are some differences of expression between the provisions of the 1987 Act concerning the recoverability of legal costs and the analogous provisions in the LP Act, there is no difference in substance between those provisions in the two Acts.

45. Basten JA described the "substantive" issue in Wentworth, at [68] as being:

"... whether the first appellant, Ms Wentworth, having been unsuccessful in civil proceedings brought in the Court, could be liable to a costs order in favour of the successful party, Mr Rogers, if he himself had incurred no liability to pay legal costs to his solicitors and barrister."

In other words, the issue concerned the operation of the "indemnity principle" in the law of costs. The terms of the agreement relating to costs that had been entered between Mr Rogers and his legal advisers fell well short of crystalline. In particular, there was a real issue of construction about whether under that agreement Mr Rogers had any liability to his legal advisers against which he could seek indemnity. There was also what Basten JA described at [68] as the second issue, namely "whether the costs assessor had power to determine the terms and validity of any agreement or arrangement with respect to costs entered into between the Respondent and his legal advisers."

46. Basten JA, at [179] expressed the view that there were significant statutory indications that the assessor did not have power to determine those issues. Ultimately, however, he said at [185]:

"Unless it is necessary to determine that question in order to deal with the present appeal, in my view the question should be treated as open for further consideration in a case in which it squarely arises."

47. The passage on which the Applicant relies, in Wentworth v Rogers, is the sentence I italicise in the judgment of Santow JA at [48]:

"I consider that the costs assessor in this case necessarily had to determine in the first instance whether the indemnity principle had application in the circumstances in which Mr Rogers was placed. I consider that the effect of Graham v Aluma-Lite Pty Ltd and Wentworth v Rogers [1999] NSWCA 403 required that the costs assessor do so rather than the judge at first instance, here Sperling J. Here I differ respectfully from the conclusion of Basten JA to the contrary. As it happens, nothing hangs on that difference. I agree with Basten JA that it is clearly too late to re-open the decision of Sperling J that he did not have power to consider the issue. The whole purpose of the Act is for these kinds of matters to be resolved, subject to the review power, by the costs assessor operating expeditiously, economically and in a less formal way than a court. That, as here, a court may ultimately be faced with an application to review such a determination, does not detract from that consideration." (emphasis added)

The remark of Santow JA on which the Applicant relies was differing from the tentative opinion of Basten JA that costs assessors had no such power.

48. The other member of the Court, Hislop J, noted, at [216], that in some areas Santow JA's conclusions differed from those of Basten JA. Hislop J went on to say:

"However as those differences do not affect the overall result, I prefer to express no concluded opinion on them."

Thus, the remark of Santow JA that the Applicant relies upon is not part of the ratio decidendi of the case. Santow JA himself recognised that "nothing hangs on [the] difference" between himself and Basten JA.

49. Even so, Santow JA's remark is entitled to respectful consideration. According it that, the sentence on which the Applicant relies occurs in a context very far removed from the present. Santow JA was providing a reason why, when there was a referral to a costs assessor, the costs assessor should have power to determine any question that arose in the course of that assessment, and in particular to decide whether on its correct construction a costs agreement created a liability on the party who had the benefit of the costs order. Santow JA's remark says nothing about whether the costs assessment process provided under the 1987 Act is the only means by which the reasonableness of legal costs can be ascertained.

Assistance from LP Act Not Conferring Power for District Court to Decide Reasonableness of Costs?

50. The Applicant also points out that s 384 and 385 LP Act confer certain rights of appeal against decisions of costs assessors to the District Court. However, he submits, nowhere in the LP Act is there to be found any provision enabling a judge of the District Court to decide what is a "fair and reasonable" assessment of a bill of costs in circumstances where the bill has not first been considered by a costs assessor.

51. While it is true that no provision of the LP Act confers such jurisdiction on the District Court, that does not lead to a conclusion that it is only in exercise of its appellate jurisdiction under ss 384 and 385 that the District Court can consider whether legal charges are fair and reasonable. Section 44(1) District Court Act 1973 confers on the District Court jurisdiction to hear and dispose of actions of a kind which if brought in the Supreme Court would be assigned to the Common Law Division, and in which the amount claimed does not exceed the court's jurisdictional limit. Section 4 District Court Act defines that jurisdictional limit at $750,000. It was the jurisdiction conferred by s 44 that the Applicant invoked in his claim against the Respondents for breach of contract. It is likewise the jurisdiction under s 44 that the Respondents seek to invoke in their defence and cross-claim, when they contend that there has been a breach of a term that is implied in the self-same contract upon which the Applicant sues. Whether such a defence and cross-claim is arguable must depend upon considerations other than the scope of the jurisdiction conferred on the District Court pursuant to the LP Act.

Assistance from Aquilina Holdings?

52. The Applicant also relies upon remarks of Daubney J in Aquilina Holdings Pty Ltd v Lynndell Pty Ltd (No 2) [2008] QSC 98 at [6]. The registered proprietors and second mortgagee of a parcel of land had succeeded in litigation in which they contended that they had a superior claim to the proceeds of sale of the land in question to the claim of a company that had lodged a caveat against the land. The caveator had been ordered to be wound up after the hearing. In that context, the second mortgagees applied for an order fixing their party/party costs. Daubney J refused that application. He said concerning the Queensland rule permitting the court to fix costs:

"The second mortgagees have also applied for an order that the Court fix their costs pursuant to UCPR rule 687(2)(c). This rule is particularly useful, and apposite for use, in situations such as the determination of costs on interlocutory applications on procedural matters, in which the quantum of costs is typically modest and there is clearly a cost benefit for the parties in having an immediate fixing of the costs rather than requiring them to expend further, perhaps greater, costs on an assessment. In such a case, which will usually arise when a judge is sitting in the Applications jurisdiction, the avoidance of delay and the achievement of an appropriately just resolution at a minimum of expense to the parties may warrant a judge adopting a robust approach to the fixing of costs. It must be borne in mind, however, that the primary position under the UCPR is that costs are to be assessed - rule 687(1). The Court, of course, has a discretion to depart from that primary position, but in my view should only do so in appropriate cases, such as those I have mentioned. In particular, the availability of a discretion to depart from the assessment regime provided for under the rules of court ought not be seen as a licence for judges to be asked to act as costs assessors." (emphasis added)

53. The Applicant relies on the sentence that I have italicised. However, the passage I have quoted, when considered in full, does not support the submission that assessment of costs provides the only means by which the quantum of costs can be determined under the relevant Queensland legislation. Indeed, it explicitly recognises that at least sometimes a judge might act as a cost assessor. In any event, it is not Queensland legislation that governs the position in the present case.

Assistance from Estate of Rosalind Allwood?

54. The Applicant also relied on the Estate of Rosalind Allwood v Peter Vivian Benjafield [2009] NSWSC 1383. So far as presently relevant, that case arose under the 1987 Act. It was the effect of s 199 of that Act and Regulation 52 of the Legal Profession Regulations 2002 that, if a client had paid costs without a bill of costs having been rendered, the client could apply to the Manger, Costs Assessment for an assessment of those costs if the application was made within twelve months of the request for payment. Mathews AJ held that, even though certain documents that had been generated by the solicitor in question and had been sent to the client did not comply with the statutory requirements for a bill of costs, they were nonetheless a request for payment. Further, more than twelve months had passed after those requests were made. The plaintiff in Allwood sought an order "that the time for an application by the plaintiff for assessment of costs ... pursuant to s 199 of the [1987 Act] be extended to a date determined by this honourable Court." No provision of the 1987 Act conferred on the court power to extend the time within which a memorandum of fees could be submitted for assessment under the statutory scheme. It was submitted that the Court had inherent jurisdiction to give that leave notwithstanding that the statutory time limit had expired.

55. Her Honour was not satisfied that the Court had that inherent jurisdiction.

56. Mr McHugh did not argue that Allwood was wrongly decided. In my view, Allwood is not an authority that shows that the defence that the Respondents seek to present in the District Court is not fairly arguable. The first reason for reaching that conclusion, and the more important reason, is that the order that was sought in Allwood was an order for assessment, in accordance with the statutory scheme, save only that it was not made within the time required by the statutory scheme. That is not what the Respondents seek in the District Court. Rather, the Respondents seek to have the District Court decide the reasonableness of the fees as part of a submission that the Applicant has no contractual entitlement to the full amount claimed.

57. The second reason is that there was a measure of tentativeness in her Honour's conclusion. She said, at [30]:

"I should say at the outset that, for reasons which I shall give shortly, I am not satisfied that the court has the inherent jurisdiction primarily urged by the plaintiffs. However I am firmly of the view that it does have inherent jurisdiction, in appropriate cases, to order the delivery of a bill of costs. There is a corresponding statutory power to the same effect. Moreover the effect of exercising this power and ordering the delivery of a bill of costs will be to provide a further opportunity for the plaintiffs to seek an assessment of those costs."

58. She also said, at [34]-[36]:

"It is therefore at least arguable that the granting of leave to apply for an assessment outside the statutory time limit is inconsistent with the clear terms of the legislation. If that be the case, the court's inherent jurisdiction must be taken to be displaced by the legislation.

In the end, I am not persuaded that I can or should invoke the court's inherent jurisdiction in the manner primarily sought by the plaintiffs.

Had my finding in this regard been determinative of the issues between the parties, I would have explored the matter in greater detail. However I propose in any event to make orders which will ultimately lead to the plaintiffs receiving the relief which they seek."

59. Her Honour ultimately made orders for the delivery of bills of costs, under the Court's inherent jurisdiction and a statutory power contained in s 209C of the 1987 Act, and expressed the view that once those bills were delivered a fresh period would start running within which application could be made for an assessment of costs.

Assistance from Doctrine of Coherence?

60. The Applicant also seeks to invoke "the doctrine of 'coherence' between legislative remedies on the one hand, and common law on the other", as outlined by Spigelman CJ in State of New South Wales v Paige [2002] NSWCA 235; (2002) 60 NSWLR 371 at [92]- [93]:

"However, as Gleeson CJ has noted in Brodie (at 532 [31]): 'Legislation and the common law are not separate and independent sources of law; the one the concern of parliaments, the other the concern of courts. They exist in a symbiotic relationship'

When considering the issue of coherence it is necessary to give close consideration to the statutory scheme: specifically whether a common law duty is 'inconsistent' or 'incompatible' with the statute and, relevantly in this case, the regulations. (See, for example, Crimmins (at 13 [3], 16 [18], 39 [93], 46 [114], 72 [203]-[213]); Sullivan v Moody (at 582 [60]).) However, issues of coherence may arise even if there is no direct inconsistency. It may be enough if the effect of imposing civil liability is to 'distort [the] focus' of the statutory decision-making process. (Crimmins (at 101 [292]) per Hayne J.)"

61. The issue with which Spigelman CJ was there concerned was whether a duty of care in tort should be recognised in circumstances where none of the established categories of circumstance in which duties of care existed were applicable, and recognising the duty of care would cut across a statutory scheme for the regulation of a particular subject matter. That issue is well removed from the Applicant's submission in the present case.

Consideration

62. The other matters argued do not admit of neat division into arguments of the Applicant and of the Respondents. Thus I will now proceed by considering arguments of both the Applicant and the Respondents that bear upon the correctness of the Applicant's contention.

63. It can readily be accepted that the only specific provision that the LP Act makes for assessing the reasonableness of legal costs is the system of assessment. Further, the Applicant correctly submits that s 319(1)(c) LP Act allows legal costs to be recoverable according to the fair and reasonable value of the legal services provided (ie, on a quantum meruit) only in circumstances where there is no fixed cost provision, and where there is no applicable costs agreement. In the present case there is no fixed cost provision, but there is an applicable costs agreement. Thus, s 319(1)(c) is not applicable here.

64. However, the defence and cross-claim of the Respondents implicitly accept that the Applicant is entitled to recover whatever fees are properly payable to him in accordance with the costs agreement. What the defence and cross-claim assert is that it is the costs agreement itself that imposes, through an implied term, a limitation to the effect that those services for which the Applicant is entitled to be paid are those that were reasonable and necessary, in light of his standing and level of professed skill as evidenced by the rate of fees he charged, to carry out the retainer.

65. In other contexts, it has been held that there is an implied term in a lawyer's retainer that he or she will exercise reasonable care and skill: Astley v Austrust Ltd [1999] HCA 6; (1999) 197 CLR 1 at [46]- [47] per Gleeson CJ, McHugh, Gummow and Hayne JJ. However whether there is an implied term of the type for which the Respondents contend might depend on the facts of this particular case. Understandably when it might depend on factual matters not yet investigated, the Applicant has not argued on the present application that the implied term that is alleged does not, or cannot, exist.

66. Considering whether the Respondents' allegation is unarguable because Division 11 provides the exclusive means of deciding the reasonableness of legal costs requires a more general consideration of the circumstances and manner in which barristers are entitled to sue for their fees.

How Barristers can Sue for Fees

67. In Keesing v Adams [2010] NSWSC 336 at [13]- [20], Brereton J helpfully collected the authorities relating to the inability, until legislation intervened, of a barrister to sue to recover his fees. See also Heydon v NRMA Limited [2000] NSWCA 374; (2000) 51 NSWLR 1 at [148], [363], explaining why the action bought against the barrister in that case was based solely in tort, not in contract.

68. Section 38I of the 1987 Act was introduced into the 1987 Act in 1993. Section 38I performed the same function as s 83(3) LP Act now performs of permitting a barrister to enter into a contract for the provision of legal services, and to sue and be sued on it. In Keesing v Adams, Brereton J noted, correctly in my view, that the contract for legal services that s 38I of the 1987 Act permitted was different to the "agreement as to the costs of the provision of legal services" that was permitted by s 185 of the 1987 Act. He observed, correctly, at [22]-[23]:

"While s 38I permitted a barrister to enter into a contract for legal services for the provision of legal services with a solicitor or a lay client, it did not require the barrister to do so. The result ... was that a barrister could continue if he or she wished, generally or in any particular case, to render legal services on the conventional non-contractual basis, or could choose to render legal services generally or in a particular case on a contractual basis by entering into a contract for provision of legal services with a client. If the barrister rendered services on the conventional basis, the fee would not be recoverable at law, because there would be no contract on which a barrister could sue.

In Re Sharpe; Ex Parte Donnelly, Lockhart J observed that the 1994 Legal Profession Act, though not expressly stating that a barrister may sue for the recovery of the fees, impliedly assumed that right in ss 184, 191 and 192. His Honour does not appear to have been referred to s 38I. ... [T]he correct position is that a barrister who chooses to enter into a contract for legal services can, by way of s 38I, recover his or her fees at law pursuant to that contract. A barrister who elects to render services on the conventional non contractual basis would not be entitled to recover fees at law and would be left to the traditional extra curial remedies."

69. Brereton J also correctly observed, at [25], that an agreement as to the costs of the provision of legal services "may form part of, but is a distinct concept from, a contract for the provision of legal services." He also observed, correctly, at [30], that the mere entry of a costs agreement does not create a liability to pay costs where otherwise there is no liability - such a contractual liability to pay for legal services can only arise under a contract for the provision of legal services. However, if there were not a contract for the provision of legal services, "it is difficult to see any utility in entering into a costs agreement" - there is no point in having an agreement about the price of an item, if there is not also a legal obligation to pay that price.

Can Reasonableness of Fees be Contested other than by Assessment?

70. Various English cases have recognised that there can be occasions when a court can decide the reasonableness of legal fees, in circumstances where there has been no taxation of costs. The English system whereby a specialist who was not a judge but who had experience of the quantum of legal costs would assess, in a way binding on the parties, the reasonableness of legal costs was called taxation. No submission was made that the differences between the system of taxation of costs, and the system for assessment of costs that was created by the 1987 Act and the LP Act, provided a reason why principles stated in such cases were not applicable in New South Wales now.

71. In re Park; Cole v Park (1888-1889) 41 ChD 326 arose in an action, of a type now moribund, for administration by the court of a deceased estate. Solicitors claimed that a sum of money was due to them from the estate concerning certain bills of costs that had been rendered to the testator more than a year before the testator's death. The Solicitors Act 1843 (Eng) permitted a bill to be referred for taxation within twelve months of delivery, or in certain other special circumstances. It was admitted that there were no such special circumstances. The executor contended that some of the charges in the bills of costs were unreasonable. The Chief Clerk (the officer of the court who in the ordinary course had control of administrations by the court of deceased estates) referred the bills to the Taxing Master. When the solicitors objected, the propriety of the Chief Clerk's order was referred to Stirling J for consideration. Stirling J held, in brief, that it had been wrong to refer the whole bill to the Taxing Master, but that it was appropriate to refer to the Taxing Master those items on the bill that appeared to the Chief Clerk to require explanation.

72. A submission specifically made by counsel for the solicitors was, at 328:

"... the Court has now no jurisdiction to direct taxation of a solicitor's bill of costs delivered more than twelve months before the death of the client. As to such bills the Solicitors Act, 1843, is conclusive; and if the client does not choose to avail himself of the right of taxation thereby conferred upon him, he must be taken to have accepted his liability. The Court has no power to deal with solicitors' bills of costs under its general jurisdiction over the officers of the Court."

73. Stirling J rejected that submission. He held, at 331, that in dealing with solicitors' costs "the Court has three-fold jurisdiction". He held that the first two ways in which the Court could deal with solicitors' costs, namely by requiring a taxation of the costs under the statutory jurisdiction conferred by the Solicitors Act, and under its "general jurisdiction over the officers of the Court", were not available in the case before him. However the third method was (at 332):

"... the ordinary jurisdiction of the Court in dealing with contested claims. This action is one for the administration of a testator's estate, and under the judgment a claim is brought in by persons who allege that they are creditors in respect of certain bills of costs. It is contended on their behalf that the investigation of this claim which takes place in Chambers is merely in substitution for a common law action, and that the Claimants ought to be placed as nearly as may be, having regard to the different forms of procedure, in the position in which they would have been if they had brought an action at common law against the testator's legal personal representative for the amount of this bill. To that general proposition I agree."

74. That passage refers to the procedure that was adopted when there was an administration of a deceased estate by the court. There would be an advertisement for anyone claiming to be a creditor of the estate to submit details of his claim by a particular date, and an administrative officer of the court would decide in Chambers whether to admit those claims as debts properly payable from the estate. What matters for present purposes is that, in carrying out that administrative process, the court officer sought to put the person who claimed to be a creditor in the same position as he would have been in if he had sued in the common law courts to recover the debt which he claimed.

75. Counsel for the solicitors submitted that, in applying that principle "there was an absolute rule of law which prevented any investigation of the bill at all, if it had been delivered for more than a year, and no objection had been raised to it". Stirling J rejected that submission also, saying at 333-334:

"The Courts of Common Law dealt with an action on a solicitor's bill of costs in the same way as they would deal with an action on an ordinary tradesman's bill containing a number of items. If it were shewn that the bill had been delivered for a considerable time, and had never been objected to by the person to whom it had been delivered; and if the bill on the face of it seemed to be fair and reasonable, a jury would no doubt be told that, in the absence of anything to the contrary, it was conclusive against the person charged and that they ought in such a case to find a verdict for the plaintiff. Applying that to the case of a solicitor's bill, if such a bill has been delivered for more than a year, and the person to whom it was delivered has never sought to have it referred to taxation, or made any objection to it, and the bill on the face of it appears to be a reasonable bill, and contains no extraordinary charges, then it would seem a very reasonable thing that the jury should be told that the defendant in the action ought not now to be allowed to question the bill if he has nothing to allege against it, and that as against him a verdict should go for the plaintiff for the amount of such reasonable bill.

But I cannot believe that the very eminent Judges whose decisions have been referred to ever meant to lay down as an absolute rule that under no circumstances could the bill be looked into after the period for taxation has elapsed.

For example, supposing it were stated and proved that the person charged had, during the whole period from the delivery of the bill to the bringing of the action been incapacitated by ill health from attending to business, and suppose further that, when the bill came to be looked into, it contained, on the face of it, charges that were evidently exorbitant; for example, suppose every letter written was charged at two guineas, instead of the ordinary charge, I cannot conceive that Lord Mansfield or Lord Eldon, or any other Judge, ever meant to lay down the rule that under such circumstances, simply because the bill had been delivered for more than a year and had never been referred to taxation, the Judge was bound to direct the jury that the charge was a reasonable one for the solicitor to make; and that in spite of any explanation that might be given on behalf of the defendant they must at once return a verdict against him for the amount.

It appears to me that the Judges treated the non-taxation of the bill within the year after its delivery as an admission by the defendant that the bill was a reasonable one and was due; but an admission which, like every other admission, could be explained by evidence as to the circumstances under which it was not taxed, or as to the amount of the bill."

76. The decision of Stirling J was upheld on appeal to the Court of Appeal, the report of which follows immediately after the report of the first instance judgment. Cotton LJ accepted, at 338 that the claim was to be dealt with as if it were an action at law, and continued:

"If it were so, of course the fact of the testator's having had those bills of costs so long without making any objection is prima facie evidence in favour of their being right, but it is nothing more than prima facie evidence, and if any objection were taken that objection would have to be considered, and the matter would have to be dealt with upon hearing the evidence on both sides, unless it could be referred to the Taxing Master, who is the usual and proper person to decide whether costs are reasonable.... though the delivery of the bill of costs and its not being objected to for a length of time is prima facie evidence in favour of the bill, it does not prevent objections being taken to particular items."

77. Similarly, in Jones & Son v Whitehouse [1918] 2 KB 61, the English Court of Appeal refused leave to a solicitor to sign judgment on the amount of his bill of costs, in circumstances where the time for the client to seek taxation had passed, and there were no special circumstances that would permit the court to extend that time. Pickford LJ, at 65, held that In re Park decided:

"... that, if the client could point out any items as being extravagant, he could have those items, and only those items, inquired into... If he can specify certain items as being extravagant, and can thus show a plausible ground of defence as to them, he could have those items, and those items only, taxed, but not the whole bill. Though there is no right to have the bill taxed under the Act, the Court may still under its general jurisdiction order any of the items to be enquired into."

78. Warrington LJ put the matter slightly differently, saying at 66:

"... at the trial the defendant would be allowed to question the reasonableness of the particular items in the bill which were objected to, and to have those items settled by the tribunal. In what way they should be settled in any particular case is a mere matter of convenience. In that case Stirling J referred the item to the taxing Master and this Court affirmed his order."

79. In Re Foss, Bilbrough, Plaskitt & Foss [1912] 2 Ch 161 was a summons taken out by the liquidator of the company seeking the taxation of some solicitors' bills that had been rendered to the company more than 12 months before the liquidator had been appointed. Without holding that there were special circumstances that would have justified an order for taxation under the Solicitors Act, Neville J held that it was appropriate to make the order. His reasons were pragmatic, and particularly tied to the circumstance of a liquidation. He said, at 166:

"The liquidator has a right against the solicitor to claim an account, and the solicitor a right to prove that for the amount of his costs, and what may be ultimately due from one to the other cannot be properly ascertained without taxation."

80. In Woolf v Snipe [1933] HCA 5; (1933) 48 CLR 677 at 678-9 Dixon J held that:

"The superior Courts of law and equity possess jurisdiction to ascertain, by taxation, moderation, or fixation, the costs, charges and disbursements claimed by an attorney or solicitor from his client, and that jurisdiction is derived from three sources and falls under three corresponding heads.

First, a jurisdiction exists founded upon the relation to the Court of attorneys and solicitors considered as its officers ...

Second, when a contested claim for costs comes before the Court it has jurisdiction to determine by taxation or analogous proceeding the amount of costs.

Third, there is a statutory jurisdiction ... "

81. In support of the second head of jurisdiction Dixon J gave references to In re Park; In re Foss, Bilbrough, Plaskitt & Foss; and Jones & Son v Whitehouse.

82. The House of Lords has recognised the continuing applicability of "the ordinary jurisdiction described in In re Park" in Harrison v Tew [1990] 2 AC 523 at 538 (per Lord Lowry, Lord Bridge of Harwich, Lord Ackner, Lord Oliver of Aylmerton and Lord Jauncey of Tullichettle agreeing). It recognised the continuing applicability of the "ordinary jurisdiction" even though on the facts of the particular case an action based in it would have failed. Such an action would have failed because the claim under consideration was made by a client who had already paid a bill, and was out of time to seek its taxation under s 70 Solicitors Act 1974 (Eng). Lord Lowry was of the view that the action available to the client would be an action seeking an account of money that came to the hands of the solicitor, and that any such action would have been met by a plea of settled account. Their Lordships did not give consideration to whether an argument in the "ordinary jurisdiction" of the type that the Respondents seek to run in the District Court would have failed.

83. The remarks in In re Park, Jones & Sons v Whitehouse, In Re Foss and Woolf v Snipe about the court deciding the reasonableness of fees might need some modification in their application to the present case. The reports in none of the cases are clear on the topic, but it would not be at all surprising if, in accordance with the usual practices of the times at which they were decided, the solicitors in those cases had been retained on a basis where there was no contractual agreement that they would be paid in accordance with a schedule of rates. It was far more common for solicitors to be retained on the basis that said nothing specific about fees, and for there to be an implied term in their retainer that they would charge reasonable fees for the work done (though sometimes there was a schedule of rates that was used on taxations as a guide to the reasonableness of the fees). If that were to be the case, when a court was exercising "the ordinary jurisdiction of the Court in dealing with contested claims" concerning fees, it would decide the reasonableness of the fees because reasonableness was the contractual basis on which the solicitor had an entitlement to be paid. On the Respondents' case, the question of reasonableness of the fees of the Applicant arises in a different way, through the implied term that the Respondents contend is found in the contract between the Applicant and the Respondents. Notwithstanding this possible difference, in the present case the role of the court in considering the quantum of the fees will still be one of deciding what fees, on the proper application of the contract in question, are actually due.

84. Ultimately whether the Applicant's contention is correct must depend upon the construction of the LP Act. No words in Division 11 say that it provides the only means by which the reasonableness of legal fees can be established. Further, as Mr McHugh points out, when s 301 states the purposes of Part 3.2 LP Act, one of those purposes is "to provide a mechanism for the assessment of legal costs". It is not "to provide the mechanism for the assessment of legal costs".

85. In Harrison v Tew the House of Lords held that s 70(4) Solicitors Act 1974 (Eng) implicitly removed an inherent jurisdiction of the Court to refer a bill for taxation. Section 70(1) of that Act set out a mechanism by which the party chargeable with a bill could have it taxed as of right if application was made within a month from its delivery. Section 70(2) conferred on the court jurisdiction to order taxation in certain circumstances. Section 70(4) said:

"The power to order taxation conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill ..."

86. The reasons of Lord Lowry, at 536, for holding that the inherent jurisdiction of the court to order taxation of the bill more than twelve months after it had been paid had been thereby removed were:

"One must distinguish between affirmative and negative provisions: the common law can co-exist with a statutory provision with which it is not inconsistent. Mr Newman, for the respondent, as well as introducing the quotation from Wade & Bradley, referred your Lordships to Coke, Institutes of the Laws of England (1817), cap 20, p 200 (Co 2 Inst 200):

'it is a maxim in the common law, that a statute made in the affirmative, without any negative expressed or implied, does not take away the common law: . . .'

Dillon LJ [1989] QB 307, 323 referred to Lord Wilberforce's statement in Shiloh Spinners Ltd v Harding [1973] AC 691, 724-725 and that case was applied in Official Custodian for Charities v Parway Estates Developments Ltd [1985] Ch 151, 165.

I might venture to remind your Lordships of the terms of section 41 of the Act of 1843:

'And be it enacted, that the payment of any such bill as aforesaid shall in no case preclude the court or judge to whom application shall be made from referring such bill for taxation, if the special circumstances of the case shall in the opinion of such court or judge appear to require the same, upon such terms and conditions and subject to such directions as to such court or judge shall seem right, provided the application for such reference be made within 12 calendar months after payment.'

That provision impliedly and section 70(4) of the Act of 1974 expressly were negative enactments which in my clear opinion ousted the inherent jurisdiction to refer a bill for taxation in conflict with what they laid down."

87. It is not necessary to decide what, if any, effect that reasoning has on an argument about whether s 351 LP Act took away the court's inherent power to order that a bill of costs be assessed. Lord Lowry's recognition that the "ordinary jurisdiction" recognised in In re Park continued notwithstanding that s 70(4) impliedly took away part of the inherent jurisdiction of the court shows that that reasoning does not result in the defence that the Respondents wish to run in the District Court being unarguable.

88. Section 98 Civil Procedure Act 2005 provides:

"(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

(a) costs up to, or from, a specified stage of the proceedings, or

(b) a specified proportion of the assessed costs, or

(c) a specified gross sum instead of assessed costs, or

(d) such proportion of the assessed costs as does not exceed a specified amount."

89. Mr McHugh submits that the existence of the Court's power under s 98 falsified any submission that Division 11 of the LP Act provides an exclusive scheme whereby bills of costs are to be assessed. He points out that, while the power under s 98 might most commonly be used when a judge is deciding how costs should be disposed of concerning a matter that he or she has already decided, the power conferred by the section is not limited to that situation. For example, White J made a lump sum costs order pursuant to s 98 in In the Matter of Windy Dropdown Pty Ltd [2010] NSWSC 1099. The lump sum costs order was made in proceedings that were brought by the administrators of a deed of company arrangement in which they sought directions under s 447D Corporations Act 2001 (Cth). The directions they sought concerned how they should deal with a costs order that Brereton J had made against the company in other proceedings. The party in favour of whom Brereton J had made that costs order was also a party to the application for directions. White J held that, as the costs in question had not been referred for assessment, he had jurisdiction under s 98(4) to make the order, and there was no necessity for the lump sum costs order to be made by the judge who had decided upon which party the liability for costs should fall ([49]-[50], [55]).

90. Mr Robberds did not argue that In the Matter of Windy Dropdown Pty Ltd was wrongly decided. While Mr McHugh did not argue that s 98 was a direct source of power for the District Court to decide the issues raised by the defence and cross-claim, I accept that the power that courts have under s 98 would provide a very significant exception to any exclusivity that there otherwise might be of the assessment scheme created under Division 11 of the LP Act.

91. Attard v James Legal Pty Ltd [2010] NSWCA 311 was an appeal concerning an action in which clients had sued their solicitor in the Supreme Court for breach of contract concerning the manner in which the solicitor had conducted certain litigation. That action failed, for reasons not presently relevant. The solicitor had cross-claimed, seeking payment of unpaid costs and disbursements pursuant to a costs agreement. Tobias JA (Beazley and Giles JJA agreeing) held that the pleading of the defence to the cross-claim was wide enough to include an allegation that the solicitor was not entitled to the amounts claimed because those amounts were excessive ([182](b)). As well, the solicitor had been cross-examined without apparent objection on some of the items in his memoranda of fees, and he had conceded that there had been an overcharge ([99]).

92. The trial judge had declined to make any order that would permit the reasonableness of the costs and disbursements to be determined. Tobias JA said, at [101]-[102]:

"At [15] her Honour found that the LPA did not empower her to make an order for assessment under its provisions. This was clearly so and no challenge is made to that finding. However, as an alternative, the appellants submitted that pursuant to rule 20.14 of the Uniform Civil Procedure Rules 2005 (UCPR), which permits reference to a referee for the determination of any question arising in the proceedings, she should appoint a referee who had costs assessing experience to determine an appropriate quantum of the costs claimed. Although this scenario had some initial attraction to her Honour, on reflection she considered (at [17]) that that course was not available to her or, if it was, that it was not appropriate. This was because the LPA provided specifically for the assessment of costs and imposed restrictions upon the manner in which the assessment was to be undertaken and the circumstances thereof.

In other words, as I understand her Honour's reasoning, the LPA in effect provided an exclusive code for the assessment of the costs of a legal practitioner with respect to the provision of professional legal services. It is this aspect of the supplementary judgment that the appellants challenge."

The "LPA" that his Honour was there referring to was the 1987 Act ([95]).

93. The Court of Appeal ordered that the amount due by the clients to the solicitors pursuant to the cross-claim

"... be referred to a referee experienced in the assessment of legal costs and disbursements for assessment as to the fairness and reasonableness of the costs claimed by the cross-claimants in their cross-claim upon condition that the [clients] pay to the [solicitors] 60% of the amounts referred to ... within 28 days ..." ([191](c))

94. Tobias JA's reasons for adopting that course were, at [179]-[181]:

Although there may be some doubt as to whether her Honour made a finding that Division 6 of Part 11 of the LPA provided a complete and exclusive code as to how legal costs were to be assessed, in my opinion if she had, she would be in error. This was clear from s 208I of that Act which provided that Division 6:

does not limit any power of a court or a tribunal to determine in any particular case the amount of costs payable ... "

As was pointed out by Kirby J in Ryan v Hansen [2000] NSWSC 354; (2000) 49 NSWLR 184 at [32], in performing their functions under the LPA, a costs assessor was not part of the Supreme Court and, therefore, was not an officer of the Court. In any event, there was nothing in Division 6 that in my view ousted the jurisdiction of the Supreme Court pursuant to UCPR 20.14 to refer to an appropriately qualified referee the determination of the legal costs and disbursements to which a solicitor is entitled.

Although the cross-claim was an action, in effect, for liquidated damages, that fact did not in my view prevent the court from exercising its discretion under UCPR 20.14 to refer the determination of the quantum of a client's liability to a solicitor for professional costs to an appropriately qualified referee. Nevertheless, the fact that there was a regime available under the LPA may bear upon the exercise of the court's discretion to engage that rule.

95. Though the judgment that was appealed against in Attard was a judgment of the Supreme Court, Schedule 1 of the UCPR does not impose any restriction on the availability in proceedings in the District Court of the referral procedure established by UCPR Part 20. At present none of the pleadings in the District Court specifically seek an order for reference of a type that was made in Attard. However, if the Respondent otherwise made out its case Attard would provide justification for the judge who eventually hears the proceedings making an order of a similar type to that made in Attard, if in the exercise of his or her discretion that was the appropriate way to proceed to quantify the Applicant's claim, or any particular items in the Applicant's claim.

Attard Wrongly Decided?

96. Mr Robberds applied for leave to argue that Attard was wrongly decided. The application was made in highly unsatisfactory procedural circumstances. The Practice Note governing the Court of Appeal, Practice Note SC CA 1, states at [38]:

"A party who proposes to seek leave to challenge the correctness of the decision of the Court of Appeal or of another Australian intermediate appellate court should notify the Registrar at the earliest opportunity. The letter should indicate the decision(s) likely to be challenged and their materiality to the instant proceedings."

97. The obvious purpose of that requirement is so that the Court can give consideration to sitting a bench of five or more to consider whether the previous decision should be overruled. In the present case, notwithstanding that written submissions had been filed, and Mr McHugh's written submission filed nearly eleven months before the hearing had referred to and relied upon Attard, the first that the Court heard of the application to argue that Attard was wrongly decided was in the course of Mr Robberds' oral submissions. Mr McHugh had been notified only the previous day.

98. Rather than adjourn the hearing for the purpose of considering whether to constitute a larger bench, both counsel agreed that the bench of three judges that had been assembled should hear the full argument, and decide whether leave to reargue Attard should be granted. In the event that the bench of three decided that that leave should be granted, both parties consented to a procedure whereby another two judges nominated by the President would consider the papers in chambers, without any further oral hearing, for the purpose of deciding whether Attard should be overruled.

99. As well as the arguments that I have already rejected earlier, Harrison v Tew provided an additional part of the basis upon which Mr Robberds submitted that Attard was wrongly decided. However, an important part of the reasoning of Tobias JA in Attard as to why the Division of the 1973 Act corresponding to Division 11 of the LP Act did not create an exclusive system of deciding the reasonableness of legal costs was that s 208I of the 1973 Act was inconsistent with any exclusivity. Section 208I of the 1973 Act is in identical terms to s 366 of the LP Act.

100. Another unsatisfactory aspect of the way in which leave was sought to argue that Attard was wrongly decided was that we were not taken to the text of the Solicitors Act 1974 (Eng), save in so far as it was quoted in the course of the speech of Lord Lowry in Harrison v Tew. Having ascertained them for myself, the provisions of Solicitors Act 1974 (Eng) governing remuneration of solicitors appear in ss 56-75. Those provisions do not contain anything that is analogous to s 208I of the 1973 Act. The presence of s 208I in the 1973 Act is a sufficient reason why Harrison v Tew does not provide a reason why the decision in Attard is arguably wrong.

101. An analogous argument to the one accepted by Tobias JA in Attard arises from s 366 of the LP Act. To counter that argument, Mr Robberds points out that s 366 appears in subdivision 3 of Division 11, which subdivision is headed "Assessment of party/party costs". He submits that the meaning of s 366 should be limited by reference to that heading. Pursuant to s 35(1) Interpretation Act 1987, such a heading is taken to be part of the Act, and thus is an available aid to construction of a provision that falls underneath that heading. Section 208I of the 1987 Act likewise appears in a subdivision 3, headed "Assessment of party/party costs" but in Attard Tobias JA had not mentioned that heading or considered its significance.

102. Mr Robberds submits that a limitation of the meaning of s 366 by reference to the heading is appropriate because, insofar as s 366 provides that "This Division does not limit any power of a court or tribunal to determine in any particular case ... that the amount of the costs is to be determined on indemnity basis", it is capable of having application only concerning orders for costs made concerning litigation. I do not accept that submission. Even concerning the phrase I have just quoted, the operation of s 366 is not confined to "party/party costs" in any conventional sense. Section 98 Civil Procedure Act (quoted in [88] above) empowers the court to order that costs be paid by someone who is not a party to litigation concerning which the court is making a costs order, and also empowers the court to make orders concerning costs of the administration of any estate or trust. While s 366 has a wider scope than saving the powers of a court to make indemnity costs orders under s 98 Civil Procedure Act (if only because it saves powers of tribunals to make orders that costs be determined on indemnity basis), at the least it saves the power of the courts to make orders within the full scope of s 98. That full scope is wider than deciding whether, and how, one party to litigation should pay the costs of another party.

103. Further, giving the words their ordinary meaning, in so far as s 366 provides that "this Division does not limit the power of a court or a tribunal to determine in any particular case the amount of cost payable" it is talking about the whole of Division 11. Read in accordance with that ordinary meaning it has the effect that Division 11 does not remove the power of the District Court in exercising "the ordinary jurisdiction of the Court in dealing with contested claims", to determine the amount of costs payable. No reason of history, context (other than the heading) or policy has been put forward why the words should not be given their ordinary meaning. While the heading is part of the Act, and so an available piece of context, it provides no reason to limit the clear meaning of the words of s 366.

104. Indeed, as Mr McHugh submits, there is some textual support for this ordinary meaning. It is in s 301 using the indefinite "a mechanism" - see [84] above.

105. The test by reference to which this Court overrules one of its own previous decisions is whether the judges who are considering the previous decision have a strong conviction that the previous decision was wrong: Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 at [294]- [301]. Having heard the arguments put forward on the applicant's behalf, I do not have a strong conviction that Attard was wrong. Indeed, in my view the reasoning of Tobias JA to which I have earlier referred is correct. Thus, whether leave should be granted will depend on whether there is a sufficient prospect that other judges will come to a view different to that which I now have, or that further consideration will cause me to change my present view. In my view, there is insufficient prospect of the test for the court overruling one of its own previous decisions being satisfied in the present case to warrant the grant of leave. I say that fully conscious of the extent to which judicial opinions can differ on a topic. I would decline to grant leave to argue that the aspects of Attard that I have identified at [92]-[94] above were incorrectly decided.

106. For these reasons I conclude that Division 11 of the LP Act does not provide an exclusive means by which the reasonableness of legal costs can be ascertained. Thus the defence that the Respondents seek to raise is not precluded by any such exclusivity.

Some Checks on Whether Division 11 is Exclusive

107. To test the correctness of the submission that the defence that the Respondents wish to raise was not arguable because the procedures in Division 11 are exclusive, the Court considered, in the course of argument, some examples that no-one says arise on the facts of the present case. As these are in the nature of checks on whether a conclusion arrived at on other grounds is correct, I mention them only at this late stage of the judgment.

108. The situation being considered was one where there was a fees agreement between a barrister and a client, and a barrister sued to recover fees when no assessment of fees had occurred. Mr Robberds QC accepted that if a barrister's memorandum of fees had deliberately included a charge for an item of work that the barrister had not performed, it would be open to the client to challenge that item, because it would be fraudulent. Implicitly, Mr Robberds was invoking the principle that "fraud opens everything": it is not unusual for a general legal proposition (like that Division 11 provides the only means by which the reasonableness of legal fees can be decided) to be subject to an exception when fraud is involved.

109. Mr Robberds also accepted that if an item had been included in the memorandum of fees by an innocent mistake, such as a barrister's secretary misreading or mistyping, the client could challenge his liability to pay for that item. Mr Robberds submitted that the justification for permitting that challenge was that, once the barrister discovered the mistake, it would be fraudulent to persist with the claim for the mistaken item.

110. I do not accept that that is a sufficient reason. Consider, applying Stirling J's analogy of how a tradesman goes about suing on an itemised bill, how a barrister would go about suing for fees in the "ordinary jurisdiction" when there was a fees agreement, but the memorandum of fees had not been submitted for assessment. The barrister would need to establish (either by affirmative proof, or an admission) that there was a contract for the provision of legal services, that there was an agreement for the rates payable for work, that each item of the work sued for had actually been done, that a bill of costs had been sent, and that it had not been paid. It would then be for the defendant to establish any matters of defence that were not matters of denial or non-admission. If a client wished to challenge his or her liability to pay a particular disputed item on the bill, one appropriate way to raise such a challenge would be a denial or non-admission on the pleadings that that item of work had been performed. If Mr Robberds' submission were correct, it would be possible for the barrister to have that defence struck out, provided the barrister had not realised that the item that was being challenged had been included in the bill by mistake. That seems an unlikely conclusion.

111. Further, if a barrister sued on a memorandum of fees and the client did not admit that a particular item of work had been done, it would be open to the barrister to have that non-admission struck out, unless the client could prove (perhaps just on a prima facie basis, as the strike-out would be an interlocutory application) that the item was fraudulently included, or that continuing to sue on it was fraudulent. If the non-admission is not an available defence, that striking out could be done before the client had had access to the interlocutory steps like discovery of the barrister's time records concerning work the barrister had done on the days for which the charges were made. That also seems an unlikely conclusion.

Principles for exercise of the jurisdiction under UCPR 14.28

112. Some parts of the Applicant's written submissions could be read as suggesting that, once the primary judge had embarked upon hearing the Applicant's notice of motion, she was bound to decide the questions of law that were involved in deciding whether the defences raised by the Respondents were legally available. The submissions could be read as suggesting that it was not enough for her Honour to dismiss the strike out motion on the basis that it was arguable that the Respondent's defences were legally available.

113. At the hearing, Mr Robberds did not seek to support that position. He submitted, correctly, that it is open to the judge who is deciding a strike out motion to decide a complex question of law in the course of so doing. Sometimes, if the matter has been fully argued and that question is one that, if decided one way, could either determine the entire litigation or simplify it considerably, it could be an appropriate exercise of discretion for a judge to decide such a question. However, the judge retains a discretion whether to decide the question, or to decline to strike out the pleading in question on the basis that the question is a fairly arguable one. In the present case, the primary judge took the latter course.

114. There is another reason why Mr Robberds was right in not seeking to argue that once the judge had embarked on hearing the notice of motion she was bound to decide the questions of law raised in it. Even if a judge has embarked on hearing a strikeout motion that involves a question of law of some complexity, another course open to the judge is to decide that the most efficient way of managing the litigation is to stand the motion over part-heard to the final hearing. Adopting that course might mean that the judge who heard the motion would also need to be the trial judge, but it is procedurally possible.

115. In his written submissions Mr McHugh submitted that the Applicant had not identified any error in the judgment of a type that would, in accordance with House v R [1936] HCA 40; (1936) 55 CLR 499, justify this court's intervention. The familiar test that Mr McHugh invokes was stated by Dixon J, Evatt and McTiernan JJ in House v R at 504-5:

"It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

116. None of the submissions made on behalf of the Applicant at the hearing in this Court explicitly dealt with Mr McHugh's challenge. However, I take the purport of the Applicant's submissions on the appeal to be that, in truth, the legal questions that her Honour thought were open are not in fact open, and for that reason the primary judge has made an error of law, which warrants this court's intervention.

117. An argument like that might be said to fit within the words used in House v R, "acts on a wrong principle". However, on reflection, I think they do not. What that statement requires the appellate court to identify is the principle upon which the primary judge actually acted. The principle upon which the primary judge acted in the present case is that if a defence is fairly arguable it should be allowed to proceed to trial. That principle is correct. It was justifiable for the trial judge to take the view that the defence was fairly arguable, in light of the evidence and argument that was before her.

118. Because this Court has had the benefit of full argument, I have decided the question of law that the primary judge held was arguable. I have done so in the interests of efficient conduct of the litigation, with a view to preventing the same arguments being repeated at any trial of the action in the District Court, and on an appeal from any final judgment that there might be in the District Court. However, it would have been open to this Court to uphold her Honour's judgment on a narrower basis, by holding that her Honour was right in deciding that the question was sufficiently arguable to justify the defence and cross-claim not being struck out.

119. As there are some complex questions involved in this application it is in my view appropriate to grant leave to appeal. However the appeal should be dismissed. Costs should follow the event.

Orders

120. I propose the following orders:

1. Grant leave to the Applicant to appeal.

2. Direct the Applicant to file a notice of appeal, in accordance with the draft contained in the White Book, within 7 days of the date of delivery of these reasons.

3. Refuse leave for the Applicant to argue that the aspects of this Court's decision in Attard v James Legal Pty Ltd [2010] NSWCA 311 that are identified at [92]-[94] of the reasons for judgment in the present case, are incorrectly decided.

4. Appeal dismissed.

5. Applicant to pay costs of the Respondents of the application for leave to appeal and of the appeal.

121. BARRETT JA: In this case, a barrister retained by solicitors to provide legal services for the benefit of the solicitors' client has sued those solicitors in the District Court to recover his fees or costs. Campbell JA explains the question that arose before the District Court judge and on which her Honour's interlocutory decision now challenged was given.

122. I agree that the orders proposed by Campbell JA should be made. I also agree with his Honour's reasons but wish to add some observations of my own.

123. The basic proposition for which the barrister contended before this Court is that, if a bill complying with s 332 and s333 of the Legal Profession Act 2004 was delivered by him to the solicitors, a combination of the circumstances that

(a) there was no application by the solicitors under s 351(1) for an assessment of the costs the subject of the bill; and

(b) because of s 351(3), it is no longer possible for such an application to be made

means that the solicitors must simply pay the billed amount and are unable to dispute their liability for that amount.

124. The barrister says that the provisions of the Legal Profession Act with respect to costs assessment represent the only legally available means of "assessment" of legal costs and that, unless those means have been employed and have produced a quantification, it is impossible to question the amount put forward by the claimant legal practitioner in his or her bill.

125. This is not so. In this case, the barrister's District Court proceedings are brought on the basis that there exists a "costs agreement" as defined by s 302 (that is, "an agreement about the payment of legal costs"). The costs agreement is pleaded in paragraphs 3 and 4 of the statement of claim. Such a costs agreement may, subject to provisions of the Act itself, "be enforced in the same way as any other contract" (s 326); and s 319(1)(b) lays down a general rule, subject to a like qualification, that legal costs "are recoverable under" a costs agreement.

126. A lawyer suing on a costs agreement to recover his or her remuneration brings an action in debt in the conventional way. The lawyer must plead the contract, including any implied terms for which he or she contends; and the defendant will likewise plead any appropriate defence - such as, for example, that the billed work was not done (so that a condition essential to the entitlement to be paid was not satisfied) or that the billed sum does not accord with the terms of the agreement. There is no reason why such proceedings should not incorporate a cross claim for alleged deficiencies in the work done of for some other relevant liability to which the person billed considers the lawyer to be subject.

127. The assessment process created by the Legal Profession Act, as it applies in a case of this kind, is no more than a means of quantification made available to the billing practitioner and the person billed. Either of them may resort to it or not as he or she chooses. The objective is to provide an efficient method of objective quantification by experienced practitioners and, in that way, to protect those upon whom lawyers impose charges and to regulate the conduct of lawyers.

128. If advantage is taken of the assessment procedure, the quantification it produces may, by the simple procedural step of filing the assessor's certificate of assessment in a court registry, be translated into a deemed judgment debt under s 368(5); and such a deemed judgment debt will supersede or operate to satisfy the contractual entitlement. Once a deemed judgment debt arises, there no longer exists any possibility of an action in contract to recover the lawyer's fees.

129. If, on the other hand, there is, for any reason, no quantification by means of the statutory assessment process, the matter falls to be dealt with in the same way as any other contractual claim or, if there is no costs agreement, on the basis of the statutory form of quantum meruit created by s 319(1)(c).

130. In the recent case of Coshott v Barry [2012] NSWSC 850, McCallum J succinctly described the interaction of the assessment system with contractual rights and obligations. She said (at [41]):

"A solicitor's entitlement to lodge an application for a costs assessment is not a source of right or title in itself. It is an aspect of the regulation of the legal profession under the Legal Profession Act 1987. The Act creates an administrative mechanism for quantifying legal costs in a variety of circumstances . . . To the extent that it provides for the assessment of costs payable under contract, I do not think it alters the fundamental nature of the right and title to those costs."

131. I agree with Campbell JA that this is not an appropriate occasion to revisit this Court's decision in Attard v James Legal Pty Ltd [2010] NSWCA 311. It is sufficient to say that, as was there recognised, where a question of the amount recoverable by a legal practitioner for costs arises, the mere existence of the assessment process under the Legal Profession Act does not preclude the deployment of the court's general jurisdiction in addressing the question according to the way in which it arises. It is only when the statutory mechanism has been put into operation and has resulted in quantification that the existence of the mechanism has a bearing on the determination of the recoverable amount.

132. Finally, it does not avail the barrister to point, as he does, to the observation of Pain J in Santo v Childs Family Kindergarten Ltd [2007] NSWLEC 117 at [4] that the Legal Profession Act provisions create "a comprehensive process for the assessment of costs". Her Honour there said nothing relevant to the present matter. She was concerned with the quite different case of party/party costs under an order for costs already made by the court where neither agreement nor assessment had yet resulted in quantification. Her decision was merely that it was premature to raise any question of possible quantification of party/party costs by the court itself when the assessment process had not been undertaken.

133. The District Court judge was correct to proceed on the basis that the Legal Profession Act provisions do not make untenable the defence and cross claim filed by the solicitors, in both their original and amended forms.

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Amendments