THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40449/00 CLD 10817/00
MEAGHER JA
HANDLEY JA
SHELLER JA
12 February 2001
ATLAS CORPORATION PTY LIMITED v FRANCIS GARY KALYK
The appellant was the unsuccessful party in litigation with its former solicitors in which the first respondent, a solicitor, had acted for himself and his partners. Costs were awarded against the appellant and the assessor upheld a claim for professional costs. The appellant challenged that decision on appeal arguing that a litigant in person is not entitled to recover professional costs and that the Court should not continue to recognise an exception in the case of solicitors.
HELD: dismissing the appeal: (1) Guss v Veenhuizen [No 2] (1976) 136 CLR 47 affirmed both the general principle that a litigant in person may not recover professional costs and the exception in the case of solicitors who act for themselves. (2) Cachia v Hanes (1994) 179 CLR 403 did not overrule Guss vVeenhuizen [No 2]. Statements in this case about the position of solicitors who acted for themselves were only dicta.
THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40449/00 CLD 10817/00
MEAGHER JA
HANDLEY JA
SHELLER JA
12 February 2001
ATLAS CORPORATION PTY LIMITED v FRANCIS GARY KALYK
JUDGMENT
1 HANDLEY JA: On 22 August 1997 the firm, of which the respondent Francis Kalyk is a member, recovered judgment against the appellant for professional fees earned while acting as solicitors for the appellant.
2 The assessment of the costs incurred by the firm in the recovery proceedings came before Assessor Quickenden in the ordinary course. He upheld the claim of the firm to recover their professional costs, although claimed by one of their members who was acting for himself and his partners.
3 An appeal from that decision to the Supreme Court on a question of law was initiated by summons dated 6 April 2000. On 6 June the summons was referred by a Registrar to Hulme J who referred it to this…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Atlas v Kalyk [2001] NSWCA 10
Case
[2001] NSWCA 10
Decision Date
CaseChat Overview and Summary
The appeal concerned the entitlement of a litigant in person to recover professional costs. The appellant, Atlas, sought to recover costs as a litigant in person, arguing that they should be entitled to professional costs. The respondent, Kalyk, opposed this claim. The matter was heard in the Court of Appeal of New South Wales.
The central legal issue before the Court of Appeal was whether a litigant in person, who is also a solicitor, is entitled to recover professional costs for work they have undertaken on their own behalf in litigation.
The Court of Appeal held that a litigant in person is generally not entitled to recover professional costs, as the purpose of such costs is to compensate for the expense of engaging a legal professional. However, the Court recognised an exception to this rule: where the litigant in person is a solicitor, they may be entitled to recover costs for work that would ordinarily be performed by a solicitor, provided that the work was reasonably and necessarily done. The Court applied the principle that costs are intended to indemnify a party for expenses reasonably incurred, and in the case of a solicitor litigant, this can extend to their own professional time and expertise.
The appeal was dismissed, and Atlas was ordered to pay Kalyk's costs.