BHP Billiton Limited v Registrar of The Dust Diseases Tribunal of New South Wales [2010] NSWSC 562

BHP Billiton Limited v Registrar of The Dust Diseases Tribunal of New South Wales [2010] NSWSC 562

Section 353(1) Legal Profession Act 2004 (NSW) does not apply to an order for costs made by a court or tribunal outside New South Wales, even if the legal work was carried out in New South Wales. The implication arising from s 12(1)(b) Interpretation Act 1987 and the structure of the LPA confines costs assessment processes to orders made by New South Wales courts or tribunals. The application and referral in this case were accordingly beyond power and invalid. The cross-claim seeking alternative declarations and orders was also dismissed as there was no jurisdictional or legislative basis for this court to provide the relief sought.

Jurisdiction
Australia
Judgment Date
02 June 2010
Procedural Posture
Principal Judgment / Judgment After Hearing of Applications for Declaratory Relief and Cross Claim
Outcome
Declaratory relief granted in favour of plaintiffs; cross-claim dismissed; question of costs reserved.
Legal Topics
['declaratory Relief' 'cross Vested Proceedings' 'costs Assessment' 'statutory Construction' 'full Faith and Credit']
['practice and Procedure'] ['declaratory Relief' 'cross Vested Proceedings' 'costs Assessment' 'statutory Construction' 'full Faith and Credit']

Case Brief

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Procedural Posture

Principal Judgment / Judgment After Hearing of Applications for Declaratory Relief and Cross Claim

Legal Issues

  1. 1 ['Whether s 353(1) Legal Profession Act 2004 (NSW) applies to an order for costs made by the District Court of South Australia' 'Whether an application for assessment of party/party costs relating to work done in the Dust Diseases Tribunal of NSW can be dealt with under Division 11 of Part 3.2 LPA' 'Whether the referring of the costs application to a costs assessor in NSW was valid' 'Whether the cross-claim seeking various declarations should succeed']

Ratio Decidendi

Section 353(1) Legal Profession Act 2004 (NSW) does not apply to an order for costs made by a court or tribunal outside New South Wales, even if the legal work was carried out in New South Wales. The implication arising from s 12(1)(b) Interpretation Act 1987 and the structure of the LPA confines costs assessment processes to orders made by New South Wales courts or tribunals. The application and referral in this case were accordingly beyond power and invalid. The cross-claim seeking alternative declarations and orders was also dismissed as there was no jurisdictional or legislative basis for this court to provide the relief sought.

Court Disposition

Declaratory relief granted in favour of plaintiffs; cross-claim dismissed; question of costs reserved.

Orders

  • ["Declaration that the third defendant's application for assessment of party/party costs filed on 18 September 2009 is not a proper application for costs assessment under s 353(1) LPA to be dealt with under Division 11 of Part 3.2 LPA." 'Declaration that the referral of the costs application by the first defendant...