Atlas v Kalyk

[2001] NSWCA 10

CITATION:	ATLAS v KALYK [2001] NSWCA 10
FILE NUMBER(S):	CA 40449/00
HEARING DATE(S):	12 February 2001
JUDGMENT DATE:	12 February 2001
PARTIES :	ATLAS CORPORATION PTY LIMITED v FRANCIS GARY KALYK
JUDGMENT OF:	Meagher JA at 13; Handley JA at 1; Sheller JA at 14

LOWER COURT JURISDICTION :	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	SC 10817/00
LOWER COURT JUDICIAL OFFICER :	Hulme J

COUNSEL:	L J Ellison (Appellant) V R W Gray (Respondent)
SOLICITORS:	Paul Ward-Harvey & Co (Appellant) Frank G Kalyk (Respondent)
CATCHWORDS:	COSTS - assessment - litigant in person not entitled to professional costs - exception if litigant is a solicitor
CASES CITED:	Cachia v Hanes (1994) 179 CLR 403 Guss v Veenhuizen [No 2] (1976) 136 CLR 47 Dobree & Ors v Hoffman (1996) 18 WAR 36 Garcia v National Australia Bank Ltd (1998) 194 CLR 395
DECISION:	Appeal dismissed with costs

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.

(1996) 18 WAR 36 not followed.

ORDERS

Appeal dismissed with costs.

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 Court pursuant to SCR Pt 12 r 2.

4    Mr Ellison, for the appellant, the unsuccessful party in the underlying litigation, submitted that this Court should apply the general principle established in Cachia v Hanes (1994) 179 CLR 403 that a litigant appearing in person is not entitled to recover professional remuneration or profit costs from the unsuccessful party. He further submitted that this Court should not apply the exception to that general rule which has, hitherto, been applied in this State in the case of solicitors who act for themselves in litigation.

5    This exception was referred to in Guss vVeenhuizen [No 2] (1976) 136 CLR 47. In that case a lawyer acting for himself had briefed counsel in proceedings in the High Court in which he was a party. Difficulties arose in relation to the taxation of his costs because through an oversight in the High Court Registry, his name had not been entered on its Registrar of Practitioners. The majority held that any difficulties arising from the absence of his name in the Register of Practitioners did not bar his right to recover his taxed costs including his profit costs. The majority, Gibbs ACJ and Jacobs and Aickin JJ, said at 51:

"The appellant did not claim costs incurred by him in retaining the professional services of a solicitor in his litigation. He appeared in person. He sought taxation of costs on the basis that he was a solicitor who acted for himself and did so according to the well-established rule of practice which entitles a person, being a solicitor, to certain professional costs in those circumstances. London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872. See also H Tolputt & Co Ltd v Mole [1911] 1 KB 87, 836. Those authorities establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the Court and its officers".

6    This statement was referred to by the majority in Cachia v Hanes (1994) 179 CLR 403 at 412 where they said "both the general principle and the exception have been accepted in this Court".

7    However, the majority in that case (at 411) described the established exception in respect of solicitors who represent themselves as "somewhat anomalous". They continued (411):

"The justification given for the privileged position afforded to a solicitor acting for himself is somewhat dubious, but it serves to emphasise the general rule".

8    Subsequently, at 412 their Honours said:

"If the explanations for allowing the costs of a solicitor acting for himself are unconvincing, the logical answer may be to abandon the exception in favour of the general principle rather than the other way round".

9    It is nevertheless clear that the majority did not overrule Guss v Veenhuizen [No 2] and their statements about the position in the case of solicitors acting for themselves in litigation were only dicta. It might be said, with respect, that although solicitors representing themselves in litigation have no need of any indemnity against professional costs paid or payable to another practitioner, there is still scope for the indemnity principle. Such solicitors will have spent time and trouble representing themselves and, to that extent, they will have lost the opportunity of using that time doing professional work for other clients and being remunerated accordingly. The indemnity in the case of solicitor litigants is, therefore, against the opportunity cost rather than the direct cost of their professional time spent on their own case.

10    In the end, despite the decision of the Western Australian Full Court in Dobree & Ors v Hoffman (1996) 18 WAR 36, I am of the view that the duty of this Court is as described in Garcia v National Australia Bank Ltd (1998) 194 CLR 395 where at 403 the majority said:

"It should be emphasised it is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled".

11    The decision in Guss v Veenhuizen [No 2] allowed a solicitor to recover his professional costs of acting for himself in litigation. The statements of the majority in that case were not dicta.

12    In my judgment this Court should follow Guss vVeenhuizen [No 2] and should therefore dismiss this appeal with costs.

13    MEAGHER JA: I agree.

14    SHELLER JA: I agree.

15    MEAGHER JA: The order of the Court is, therefore, the appeal is dismissed with costs.

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