People out of time to seek taxation in Victoria customarily file and serve a summons for taxation in the Costs Court, within the Trial Division of the Supreme Court of Victoria. A Judicial Registrar of that Court then refers the exension of time question to the Practice Court, again within the Trial Division, where it is heard by a Judge of the Court (as opposed to an Associate Judge or some other decision maker within the Court).
In my experience, such applications are not necessarily able to be accommodated in the business of the Practice Court, and more difficult ones end up being listed for trial as a cause, months away. Also in my experience, Judges of the Court are unimpressed to be bothered with such a trivial application. If there were a way for such applications to be listed before Associate Justices (especially an Associate Justice who is a Costs Judge) that would be good because (a) the time of Judges of the Court would not be taken up by these applications; (b) the applications would get heard much more quickly and (c) Costs Judges may be expected to be appropriate people to adjudicate these kinds of applications efficiently, consistently and therefore predictably.
One Supreme Court judge has already suggested that Associate Judges could hear these applications, but I am not aware of any such application having been determined by an Associate Judge. In this post I explore the none too simple statutory provisions which are germane to the question. It seems to me that there would have to be a referral to an Associate Judge by a Judge of the Court under r. 77.05 in order for an Associate Judge to be able to hear a s. 198(4) application.
But it also seems to me that the Court could arrive at a standard procedure for these kinds of applications which could be specified in the Practice Note for the Costs Court. Then r. 77.05 referrals could be made without a hearing on the papers as a matter of course. Better still, the judges of the Court could add s. 198(4) applications to the list in r. 77.01 of matters ordinarily to be heard by Associate Judges. Even better would be for the Legal Profession Uniform Law Application Act 2015 to be amended so as to nominate the Costs Court as the designated tribunal for applications to extend time.
Section 198(4) of the Legal Profession Uniform Law says
(4) However, an application that is made out of time may be dealt with by the costs assessor if the designated tribunal, on application by the costs assessor or the client or third party payer who made the application for assessment, determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period [specified in sub-s. (3)].
This peculiar drafting is explained by the need to accommodate within one uniform law very different costs schemes in operation in NSW and Victoria. The ‘costs assessor’ in Victoria is the Costs Court, which is a statutory court formed within the Trial Division of the Supreme Court, comprised of Associate Judges who have been allocated to the Costs Court: ss. 17C and 17D(1)(f) of the Supreme Court Act 1986 and s. 6 of the Uniform Law.
‘Designated tribunal’ is defined by s. 6 to mean ‘(a) a court or tribunal specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; or (b) a member or officer so specified or described of such a court or tribunal’.
The law of Victoria which specifies the Supreme Court as the court referred to in s. 198(4) is s. 10(3) of the Legal Profession Uniform Law Application Act 2015 (Vic).
Section 38 of the Interpretation of Legislation Act 1984 says that references to ‘Supreme Court’ in Victorian provisions are to be taken as references to the Supreme Court of Victoria, which does not help very much in working out who within the Supreme Court may grant the s. 198(4) extension.
Section 75 of the Constitution Act 1975 creates the Supreme Court and sub-s. (2) says it is comprised of the Judges, Associate Judges and Judicial Registrars which are appointed to it. Insofar as the Uniform Law is concerned, then, I can’t see why any of those officers should not hear a s. 198(4) application. But there are restrictions imposed by the Supreme Court on when decision makers other than Judges of the Court may constitute the Court and exercise its powers.
Section 17A of the Supreme Court Act 1986 says:
(1A) The Trial Division constituted by an Associate Judge may hear and determine all matters, whether civil or criminal, not required by or under this Act or any other Act or the Rules to be heard and determined— (a) by the Court of Appeal; or (b) by the Trial Division constituted by a Judge of the Court.
Certain matters which may not be heard by Associate Judges are specified in r. 77.02 of the Supreme Court’s civil procedure rules. Section 198(4) applications are not amongst them.
Section 75A of the Supreme Court Act 1986 says:
(4) The Trial Division may be constituted by an Associate Judge in the case of a proceeding for which provision is made by an Act or enactment or by rules of court for the Court or the Trial Division to be so constituted.
Rule 77.01 of the Supreme Court’s civil procedure rules specifies certain applications which may be heard by Associate Judges. Section 198(4) applications are not amongst them, whereas certain other applications under legislation regulating lawyers are amongst them.
Rule 77.05 allows Judges of the Court to refer matters outside those specified in r. 77.01 for hearing by Associate Judges, who then have all the powers of Judges of the Court.
In Gallin v SC Lawyers [2020] VSC 80 at [3], Macaulay J said:
Section 198 (4) provides that an application made out of time may be dealt with by the ‘costs assessor’ (in this jurisdiction, the Costs Court) if the ‘designated Tribunal’ (in this jurisdiction, the Court) determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application to be dealt with after the 12 month period. The question whether the application should be allowed out of time has been referred to me by the Costs Court pursuant to r 63.51 of the Supreme Court (General Civil Procedure) Rules 2015.
In a footnote to that paragraph, his Honour said:
‘Whether or not that was necessary need not be decided. Arguably, the application could be determined by an Associate Judge, preferably one who is not also the ‘cost assessor’. See: s 75(2) Constitution Act 1975, s 111(1)(b) Supreme Court Act 1986 and the definition of ‘designated tribunal’ in s 6 Legal Profession Uniform Law.’
Section 111(1) says ‘The Associate Judges (a) must assist in the general business of the Court; and (b) must perform the duties and exercise the powers and authorities imposed or conferred on them by or under this Act or any other Act or the Rules.’
As already noted, ‘Designated tribunal’ is defined by s. 6 to mean ‘(a) a court or tribunal specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; or (b) a member or officer so specified or described of such a court or tribunal’. It seems to me that when the ‘law of this jurisdiction’ (the Legal Profession Uniform Law Application Act 2015) specifies ‘the Supreme Court’ as the designated tribunal for s. 198(4) applications, sub-s. (b) is not involved. ‘So specified or described’ in that sub-section to my mind suggests a specification which said ‘the Supreme Court, or a Costs Judge of that Court’, for example, or ‘the Costs Court or any Costs Judge or Judicial Registrar of that Court’.
Rule 63.51 says ‘The Costs Court may refer to a Judge of the Court for directions any question arising on a taxation.’ Since the Costs Court in Gallin referred the extension of time question, and Macaulay J accepted the referral and exercised the Costs Court’s power, there must be ‘a taxation’ from the moment the summons for taxation is filed, even if it out of time, otherwise, the question of whether to extend the time in which to tax the costs could not be a question ‘arising on a taxation’. That is interesting for other purposes in the procedural law of taxations. For example, it follows that from the moment that a summons is filed, the Costs Court has the powers of an Associate Judge, including to exercise the Court’s inherent jurisdiction: rr. 63.35 and 77.01. A judicial registrar could therefore exercise the Court’s inherent jurisdiction to tax costs, even out of time costs, in a clear case, avoiding the pallaver of an unnecessary application for an extension of time.
More to come on the Costs Court’s inherent jurisdiction, and alternative statutory jurisdictions to tax costs…
