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  • Recent cases have determined that NCAT does not have power to determine certain cases between residents of different states.
  • The considerations in those cases raise the question of whether a costs assessor can determine an assessment between residents of different States.
  • A definitive answer must await judicial determination but, in the meantime, this article considers a number of aspects of the issue.

It seldom arises that constitutional aspects of legal costs require consideration, though it does happen: see Cassimatis v Australian Securities and Investments Commission [2016] FCA 131, 334 ALR 350 and Coshott v Parker [2015] NSWSC 197. However, a question arising from recent cases involving proceedings in NCAT is whether a costs assessor under the NSW costs assessment scheme has jurisdiction to determine applications for assessment where the parties are residents of different states? This issue arises under s 75(iv) of the Constitution, which provides that matters between residents of different States are within the original jurisdiction of the High Court (the so-called diversity jurisdiction’). The High Court has recently held that a State parliament cannot confer adjudicative authority to determine matters between residents of different States on a body which does not meet the description of a ‘court of a State’. 

The topic is a complex one and detailed treatment of all aspects of it is beyond the scope of this article. Consideration is confined to the situation which exists under the Legal Profession Uniform Law (‘LPUL’) and the Legal Profession Uniform Law Application Act 2014 (‘Application Act’), which are significantly different from the Legal Profession Act 2004. Furthermore, in any costs assessment in which a corporation is a party, the question will not arise, as the High Court has held that in the context of s 75(iv) a corporation is not capable of being a resident’ of a State (Australasian Temperance And General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290). Furthermore, that the opposing parties are residents of different States is the ‘only permitted distribution of parties’ which will invoke the diversity jurisdiction (Rochford v Dayes (1989) 84 ALR 405 at 406; Watson and Godfrey v Cameron (1928) 40 CLR 446).

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