PARTIES			DEBBIE LEANNE GODDARD (an infant by her 
				next friend WILLIAM JOHN GODDARD) v
NORTHERN TERRITORY HOUSING COMMISSION and ORS

TITLE OF COURT		In the Supreme Court of the Northern
				Territory of Australia

JURISDICTION		Interlocutory Application

FILE NUMBER		Alice Springs 27 of 1981

DELIVERED			10 September 1996

REASONS OF		Master Coulehan

Catchwords:

	PRACTICE - Northern Territory - taxation of costs - O.63.37(3)
	Supreme Court Rules - lodgment of documents - relevance

	PRACTICE - Northern Territory - taxation of costs - indemnity
	principle - legally assisted person - S.32 Legal Aid Act

	STATUTES - Northern Territory - Legal Aid Act S.32 -
	effect on indemnity principle

	STATUTES - Northern Territory - Legal Practitioners Act S.129
	legally assisted person

Cases referred to

	Cachia v Hanes and Anor 179 C.L.R. 403
	Sargood Bros. v The Commonwealth 11 C.L.R. 258

Representation

	Counsel
	Plaintiff		Ms Ridsdale
	Defendant		Mr Macdonald

	Solicitors
	Plaintiff		Messrs Morgan Buckley
	Defendant		Solicitor for the Northern Territory.
				
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
A/S 27 of 1981		DEBBIE LEANNE GODDARD (an infant
				by her next friend WILLIAM JOHN GODDARD)

					Plaintiff

				and

				NORTHERN TERRITORY HOUSING 						COMMISSION and ORS

					Defendants

MASTER COULEHAN: REASONS FOR DECISION
(delivered 10 September 1996)

The plaintiff has applied for the taxation of her costs pursuant to the order of Angel J. dated 24 November 1995.   The first defendant seeks a direction, pursuant to O.63.37(3), that the plaintiff lodge any documents in her possession, custody or power which may constitute an agreement on costs and disbursements between the plaintiff, her solicitors and the Northern Territory Legal Aid Commission (‘NTLAC’).

It is common ground that the plaintiff has been granted legal aid by the NTLAC and it is argued that it is likely that the plaintiff’s liability for costs is less than that ordinarily payable and that there is some documentation evidencing the plaintiff’s liability.   The first defendant relies on the principle that costs are only recoverable on the basis of indemnity (see Cachia v Hanes and Anor 179 CLR 403).
The Legal Aid Act provides for the granting of legal assistance by the Legal Aid Commission.   S.4(2) of the Act provides:
	“A reference in this Act to the provision of legal assistance 	shall 	be construed as a reference to the provision of legal 	services (including the giving of legal advice) without charge 	to the person to whom the legal assistance is provided with or 	without the 	making of a payment by the person, or the	 	provision of financial assistance to bring or defend a civil 	proceeding.”

Legal assistance may be provided on the basis of conditions, such as payment to the Commission of the full amount, or contribution towards, the cost of providing the assistance (S.29(1)(a) ).   It is implicit in the Act that the Commission will pay the fees of a private legal practitioner made available to provide assistance.   Payment may be deferred until reasonable steps have been taken for the recovery of party and party costs (S.30(12)(a) ).

The Guidelines published pursuant to S.12 of the Act provide that where an assisted person receives an award or an award of costs, that person will be required to pay the ordinary professional costs of the legal services provided.   (See Chapter 6, paragraph 3 and S.32 of the Act.).

There appears to be no question of an agreement of the kind contemplated by S.129 of the Legal Practitioners Act.   S.129(2) refers to an agreement between a legal practitioner and the person for whom the work is undertaken and S.31 of the Legal Aid Act prohibits payments to a private legal practitioner other than payments to which he is entitled under the Act.
The provision of legal assistance would probably fall foul of the indemnity principle but for S.32(1) which provides:
	“For the purposes of the making or enforcement of an order for 	costs, or the determination of an entitlement to costs, in a 	proceeding before a court in which an assisted person is a 	party, the person shall be deemed to be liable to pay the 	ordinary professional costs of the legal services provided 	to the person or in connection with the proceeding and any 	disbursements and out-of-pocket expenses incurred in or 	in connection with the provision of those services.”

The first defendant’s argument is that this provision must be read down, to the effect that the plaintiff is only entitled to recover the actual costs paid to her solicitors, probably 80% of the Supreme Court scale as provided by the scale of costs published by the NTLAC.   The basis for this is the rule that a statute will not be construed as taking away an existing right unless its language admits of no other reasonable construction.   (See Sargood Bros. v The Commonwealth 11 CLR 258, 279).

The difficulty with this argument is that it is clearly intended that the principle of indemnity be abrogated insofar as the provision of legal assistance by the NTLAC is concerned and the words “ordinary professional costs of the legal services provided” in S.32 are unambiguous.   There is no justification for construing the section in the manner suggested by the first defendant.

I conclude that the documents sought by the first defendant are irrelevant to the taxation and the application is refused.