Bechara trading as Bechara and Company v Bates

[2016] NSWCA 294

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bechara trading as Bechara and Company v Bates [2016] NSWCA 294
Hearing dates:	27 May 2016 and subsequently on the papers
Date of orders:	01 November 2016
Decision date:	01 November 2016
Before:	Beazley P; Meagher JA; Payne JA
Decision:	The lump-sum costs order payable by the applicant to the respondent in the sum of $12,000 pursuant to s 98 of the Civil Procedure Act 2005 (NSW) be payable by the applicant within 28 days.
Catchwords:	COSTS – Chorley exception – respondent barrister – respondent instructed solicitors and appeared for himself as counsel – respondent made application for gross sum costs order in respect of a) solicitors’ costs and disbursements excluding counsel’s fees and b) counsel’s fees for professional work performed by respondent himself – whether definition of “costs” contained in s 3 of the Civil Procedure Act 2005 (NSW) does away with Chorley exception – whether Chorley exception applies to self-represented barrister
Legislation Cited:	Civil Procedure Act 2005 (NSW) ss 3, 98 Evidence Act 2005 (NSW) s 91 Judiciary Act 1903 (Cth) s 26 Legal Profession Act 2004 (NSW) ss 4, 364 Legal Profession Uniform Law (NSW) ss 6, 172, 178 Legal Profession Uniform Law Application Act 2014 (NSW) Part 7 Div 3 Supreme Court Act 1970 (NSW)
Cases Cited:	Ada Evans Chambers P/L v Santisi [2014] NSWSC 538 Atlas v Kalyk [2001] NSWCA 10 Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 Bechara v Bates (No 4) [2015] NSWSC 1722 Beling v Sixty International SA (2015) 228 FCR 194; [2015] FCA 250 Cachia v Hanes (1994) 179 CLR 403 Dobree v Hoffman (1996) 18 WAR 36 Guss v Veenhuizen (1976) 136 CLR 34 Hamod v New South Wales [2011] NSWCA 375 Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 Khera v Jones [2006] NSWCA 85 London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 McIlraith v Ilkin (Costs) [2007] NSWSC 1052 Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Wilkie v Brown [2016] NSWCA 128 Winn v Garland Hawthorn Brahe (No 1) [2007] VSC 360
Category:	Costs
Parties:	Maria Bechara trading as Bechara and Company (Applicant) Philip Bates (Respondent)
Representation:	Counsel: No appearance for the applicant Respondent appeared for himself as counsel   Solicitors: Applicant self-represented Bannister Law (Respondent)
File Number(s):	2016/32811
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law - Civil Citation: Bechara v Bates (No 3) [2015] NSWSC 1588 Date of Decision: 29 October 2015 Before: Adamson J File Number(s): 2015/115082

headnote

[This headnote is not to be read as part of the judgment]

On 27 May 2016 the Court dismissed Ms Bechara’s amended summons seeking leave to appeal from a judgment and orders of Adamson J made on 29 October 2015. Ms Bechara was not present at the hearing of the application. The respondent Mr Bates, a barrister, appeared for himself as counsel instructed by solicitors. Mr Bates made an oral application for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in respect of a) solicitors’ costs and disbursements excluding counsel’s fees and b) counsel’s fees for professional work performed by Mr Bates himself.

The issue on appeal was whether the Court should make the gross sum costs order sought. This involved consideration of whether the Court could make an order for costs in respect of a self-represented barrister.

Held (Beazley P, Meagher and Payne JJA):

(1) Generally self-represented litigants are unable to claim professional costs. An exception, known as the “Chorley exception”, applies in the case of a litigant in person who is a solicitor: [22]-[27].

London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 and Guss v Veenhuizen (1976) 136 CLR 34 applied.

(2) There is no authority of the High Court or an intermediate Court of Appeal as to whether the Chorley exception applies in respect of a self-represented barrister: [30].

(3) In the absence of any submissions put by Ms Bechara she may be taken to have conceded that the Court can make an order for costs in respect of a self-represented barrister: [65]-[70]

Wilkie v Brown [2016] NSWCA 128 applied.

Judgment

1. THE COURT: On 27 May 2016 the Court, comprising Meagher and Payne JJA dismissed Ms Bechara’s amended summons seeking leave to appeal from a judgment and orders of Adamson J made on 29 October 2015.

2. The orders of the Court were that the summons be dismissed with costs. Ms Bechara did not appear at the hearing on 27 May 2016 and was not present in Court at the time the orders were made. The respondent, Mr Bates, was present and appeared for himself as counsel.

3. On 27 May 2016, the respondent, Mr Bates, made an oral application for a lump-sum costs order. The Court directed that he file written submissions by 4 pm on 10 June 2016 and that Ms Bechara respond to those written submissions by 4 pm on 24 June 2016. The Court indicated that it would determine the application on the papers. Given the importance of the matter and the increasing number of such applications, the Court was reconstituted comprising Beazley P, Meagher and Payne JJA to consider the application.

4. In compliance with those orders submissions were filed by Mr Bates on 10 June 2016. An affidavit of service of Alix Calais, Managing Clerk at Bannister Law, the solicitor for the respondent, sworn 17 June 2016, was also filed.

5. That affidavit establishes that:

1. on 30 May 2016 on behalf of the respondent Ms Bechara was made aware of the orders of the Court, both by email and by delivery of a letter to her business premises; and

2. on 10 June 2016 a copy of the respondent’s written submissions as to costs were delivered to the business address of Ms Bechara.

6. No submission or other material has been filed by Ms Bechara.

7. The Court is satisfied that its orders have been complied with and that the respondent has brought sufficiently to Ms Bechara’s attention the orders of the Court and the orders and submissions in relation to the present question.

8. On 7 July 2016, the Court was informed that Ms Bechara had on 5 July 2016 been made bankrupt on a petition by a creditor.

9. On 15 August 2016 Mr Bates made further written submissions, the effect of which was that this Court should reach the same result as the earlier decision in Wilkie v Brown [2016] NSWCA 128 at [49] about the present question.

Application for a lump-sum costs order

10. The respondent’s application made orally on 27 May 2016 was for a lump-sum costs order to be specified in the gross sum $21,016.50 pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW). That sum comprised:

1. $8,916.50 for solicitors’ costs and disbursements (other than counsel’s fees); and

2. $12,000 for counsel’s fees for professional work performed by the applicant himself in opposing the summons seeking leave to appeal.

Section 98 of the Civil Procedure Act

11. Section 98 of the Civil Procedure Act relevantly provides:

98 Courts powers as to costs

(1) Subject to rules of court and to this or any other Act:

(a) costs are in the discretion of the court, and

(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

(2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court.

(3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings.

(4) In particular, at any time before costs are referred for assessment, the court may make an order to the effect that the party to whom costs are to be paid is to be entitled to:

...

(c) a specified gross sum instead of assessed costs, ...

Should the Court exercise its discretion to make a gross lump-sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act?

12. The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123.

13. The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing).

14. A “broad brush” approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7].

15. The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814].

16. Subject to considering the question of the barrister’s own costs in appearing for himself which is addressed below, the Court is satisfied that this is an appropriate case in which to make a lump-sum costs order. The applicant has litigated a number of interlocutory steps including in this Court since the statement of claim was filed in the Local Court on 27 May 2014. The applicant has been wholly unsuccessful.

17. Those unsuccessful steps, together with the applicant’s breaches of court orders have increased the amount claimed in the statement of claim of $83,178.12 including costs to a total amount of $148,000, which is the amount the applicant was ordered by Emmett AJA on 8 March 2016 to pay into court, but did not pay.

18. The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamod v State of New South Wales at [816]-[817] is apposite.

The solicitors’ costs and disbursements

19. The Court received evidence in the form of an itemised tax invoice prepared by Bannister Law dated 26 May 2016 totalling $8,916.50 (including GST). That amount was comprised of $8,684.50 in professional fees and $232 in non-counsel disbursements. Work done by a senior solicitor was charged at $500 per hour exclusive of GST and by a paralegal at $300 per hour exclusive of GST. These rates seem, on their face, to be reasonable.

20. The Court is entitled to take into account that if assessed the usual rule would be that only a proportion of total costs would be recovered. Having regard to the broad discretion available in making a lump-sum costs order the Court allows an amount of $5,000 on behalf of solicitors’ costs and disbursements as a lump sum under s 98(4)(c) of the Civil Procedure Act.

The barristers’ costs and disbursements

21. A quite different question arises in relation to the fees charged by Mr Bates to Bannister Law, whose client was Mr Bates.

22. As a general rule a self-represented litigant is unable to claim professional costs, even if they win their case. As the plurality observed in Cachia v Hanes (1994) 179 CLR 403 at 410-411, costs are awarded by way of indemnity or partial indemnity for professional legal costs actually incurred and were never intended to be comprehensive compensation for any loss suffered by a litigant, and in particular any loss of time.

23. There is, however, a recognised (and somewhat controversial) exception in the case of a litigant in person who is a solicitor.

The Chorley exception

24. That exception is usually known at the “Chorley exception”, a reference to London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872. In that case, based on the statute there under consideration, solicitors who were parties to litigation and did not retain another firm of solicitors to represent them were held to be entitled to claim their own professional costs as costs from the losing party, even though they had no liability to pay a solicitor for acting for them.

25. The High Court accepted the “Chorley exception” in Guss v Veenhuizen (1976) 136 CLR 34. Guss was a case decided under s 26 of the Judiciary Act 1903 (Cth) which provided:

The High Court and every Justice thereof sitting in Chambers shall have jurisdiction to award costs in all matters brought before the Court, including matters dismissed for want of jurisdiction.

The word “costs” was not defined in the Judiciary Act.

26. In Guss Gibbs ACJ, 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.

27. Their Honours went on to cite with approval various passages of Brett MR and Bowen LJ in Chorley.

28. The Chorley exception has been widely criticised over more than two decades: see Cachia at 411-412; Dobree v Hoffman (1996) 18 WAR 36 at 41 (Parker J); Khera v Jones [2006] NSWCA 85 at [3] (Mason P and Ipp JA); McIlraith v Ilkin (Costs) [2007] NSWSC 1052 at [16] (Brereton J); Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 at [16] (Daubney J); and Beling v Sixty International SA (2015) 228 FCR 194; [2015] FCA 250 at [56] (Mortimer J).

29. Nonetheless, this Court is bound by the decision in Guss, to the extent that current legislative provisions are materially similar to those considered by the High Court in that case.

Whether the Chorley exception applies to self-represented barristers

30. There is no authority of the High Court or an intermediate Court of Appeal as to whether the Chorley exception applies to a self-represented barrister. Unlike the cases concerning solicitors acting for themselves, this case concerns a barrister acting for himself as the client with an independent firm of solicitors briefing him.

31. The following passages from the decision of the plurality in Cachia v Hanes provide a caution against extending the Chorley exception (at 412-414):

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. However, it is not necessary to go so far for the purposes of the present case. It suffices to say that the existence of a limited and questionable exception provides no proper basis for overturning a general principle which has, as we have said, never been doubted and which has been affirmed in recent times.

...

Rather too much emphasis may have been given in the cases to costs which are awarded to a solicitor acting for himself. They are awarded upon an exceptional basis and not upon the basis upon which costs are ordinarily awarded, namely, as an indemnity for legal costs actually incurred. It is, we think, not possible to reason by way of the exception that litigants in person are treated unequally and then to conclude that the very basis upon which costs are ordinarily awarded should be abandoned so that the exception becomes the rule [footnotes omitted].

32. There is some first instance authority suggesting that the Chorley exception should not be extended to barristers appearing for themselves. In Winn v Garland Hawthorn Brahe (No 1) [2007] VSC 360 Kaye J said (at [10]-[15]):

I turn then to the costs claimed by the appellant for counsel's fees. In my view, the exception stated in Guss' case does not apply to counsel who appears on his or her own behalf. That follows for two particular reasons. Firstly the courts, and in particular the High Court in Cachia v. Hanes, have emphasised that the exception to the rule should not be expanded at all, particularly because of its anomalous nature. With two exceptions to which I shall shortly refer, the rule has never been expanded to entitle a barrister acting for himself or herself to an order for costs in his or her favour in respect of counsel fees.

The second reason why I consider that the exception stated in Guss' case and in Chorley's case should not apply to counsel's fees is that counsel's fees are different, of their very nature, to costs and fees charged by a solicitor. As Mr Moon has correctly pointed out, counsel fees are a disbursement to the client and not a profit cost. For those reasons it seems to me that the counsel's fees can be properly distinguished from solicitor's costs.

...

Bearing particularly in mind the injunction of the High Court that the exception, albeit longstanding, should now be construed narrowly and should not be permitted to expand, I therefore agree with the submission that has been put to me on behalf of the respondent that the exception does not cover the case of counsel acting for himself or herself [footnotes omitted].

33. In Murphy v Legal Services Commissioner (No 2) Daubney J said:

There is no authority which supports the proposition that the “anomalous” and “somewhat dubious” exception in favour of a self-represented solicitor extends to a self-represented barrister. In the absence of clear authority, I am not prepared to extend the ambit of an exception which is itself of such questionable application.

34. On the other hand, there is some first instance authority that supports the extension of the Chorley exception to barristers acting on their own behalf. Ada Evans Chambers P/L v Santisi [2014] NSWSC 538 concerned an appeal from a Magistrate’s decision that the Chorley exception does apply to self-represented counsel. In refusing leave to appeal that decision Adamson J commented (at [29]):

In my view, leave, if sought, ought not be granted in the instant case to argue this ground. This is not to say that the question whether a legal practitioner who is a barrister is entitled to costs when also a litigant is not an important one. However, I consider that it was open to the Magistrate to exercise his discretion to allow the costs associated with the work Mr Santisi did. The distinction between solicitors and barristers has become less important in circumstances where all legal practitioners are admitted as such. Furthermore I do not consider that, even given the importance of the point, it would be desirable for it to be determined by this Court in the instant case where the costs of so doing are already grossly disproportionate to the amount originally in issue in the proceedings.

35. In Bechara v Bates (No 4) [2015] NSWSC 1722, the costs judgment arising out of the decision the subject of the application for leave to appeal in these proceedings, Adamson J granted Mr Bates a gross sum costs order in respect of an invoice that he raised which included the work he had done as counsel in his own case. Her Honour said (at [13]-[14]):

He said that he has not included in the amounts in the invoice any time he has spent as a client, as opposed to time spent as counsel on the case. His charge-out fee, as reflected in the invoice, was $400 per hour plus GST (not exceeding ten hours per day), which was the same charge-out rate he applied when performing work in the Haratsarismatter, in which he was instructed by Ms Bechara, and which featured in the narrative set out in the principal judgment. Mr Bates also explained that, in respect of 6 October 2015 (the day the hearing of the appeal was adjourned due to Mrs Bechara’s personal difficulties), he charged half his time to ‘litigant functions’ and the other half to ‘professional functions’. ...

Ms Bechara did not challenge any of the items or make any particular submission about the reasonableness of the fees or the appropriateness or otherwise of a gross sum costs order. The nature of the work done, and the time for which a charge has been made, do not strike me as being either excessive or unreasonable. The charge-out rate does not seem to me to be unreasonable. That Mr Bates charged his own time at the same rate as Ms Bechara was prepared to accept when she retained him to appear on behalf of her clients is further support for its reasonableness.

The current statutory provisions

36. In Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Basten JA said the following at [29] after referring to the costs provision at s 26 of the Judiciary Act extracted above:

Accepting that Guss v Veenhuizen is binding as to the correct construction of that language in any statute, in principle it would not bind this Court (or another court) in respect of a materially different statutory provision.

37. In the present case s 98(1) of the Civil Procedure Act apples, and has been set out at [11] above.

38. Section 3 defines “costs” and “ordinary basis” as follows:

"costs", in relation to proceedings, means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration.

"ordinary basis", in relation to the assessment of legal costs that a court has ordered to be paid, means the basis of assessing costs in accordance with Division 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014.

39. The definition of “ordinary basis” in s 3 of the Civil Procedure Act uses the phrase “legal costs”. That phrase is not defined in the Civil Procedure Act. The definition (of “ordinary basis” in s 3) directs attention to Division 3 of Part 7 of the Legal Profession Uniform Law Application Act 2014 (NSW). The phrase “legal costs” is not defined in that Act, and does not even appear in Division 3 of Part 7. However, Division 3 of Part 7 requires a costs assessor to determine what is a fair and reasonable amount of costs for the work concerned (s 76(1)). In making that determination the costs assessor may have regard to the factors in section 172(1) and (2) of the Legal Profession Uniform Law (NSW) (s 76(2)). It is only in that Act – the Legal Profession Uniform Law (NSW) itself, rather than the Legal Profession Uniform Law Application Act – that the phrase “legal costs” is defined, as follows, in s 6:

legal costs means—

(a)  amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services; or

(b)  without limitation, amounts that a person has been or may be charged, or is or may become liable to pay, as a third party payer in respect of the provision of legal services by a law practice to another person—

including disbursements but not including interest; ...

40. As Basten JA noted in Wang v Farkas at [28], the introduction of the word “payable” in the definition of “costs” in the Civil Procedure Act may be a significant distinguishing feature from the provision the subject of the decision in Guss. It is also relevant that the definition in s 3 is exhaustive.

Mr Bates’ role in this case

41. Documents attached to Mr Bates’ submissions about costs in these proceedings indicated that Mr Bates, as client, instructed Bannister Law in two matters. The first (matter 143126) is the present proceedings. The second (matter 155353) involved bankruptcy proceedings against Ms Bechara.

42. In relation to the present matter, Mr Bates was both client and barrister, both instructing and being instructed by Bannister Law.

43. It is likely that there was a fees and costs disclosure agreement between him (as client) and Bannister Law in relation to the subject matter of the present case. At paragraph [10] of Adamson J’s judgment in Bechara v Bates (No 4) her Honour refers to a costs agreement between Mr Bates (as client) and Bannister Law dated 27 May 2014 (although her Honour’s statement cannot be treated as evidence of the existence of that fact: Evidence Act 2005 (NSW) s 91(1)).

44. Mr Bates has not put before this Court any costs agreement between him (as barrister) and Bannister Law. The only evidence that may be taken to indicate the existence of a retainer as counsel are two tax invoices issued by Mr Bates to Bannister Law.

45. The first tax invoice is dated 5 January 2016. It is for $7,612 (incl GST). It is annexed to the affidavit of Alix Calais (of Bannister Law) sworn on 19 February 2016. It bears the following notation:

1. The present tax invoice, dated 5 January 2016, is issued in respect of work carried out by Philip Bates, in the capacity of counsel, as distinct from the capacity of litigant, in respect of Supreme Court of NSW common law proceedings at Sydney no. SC 2014/00335144, which were finalised as Bechara v Bates [2014] NSWSC 1935 (McCallum J, 10 December 2014). McCallum J ordered that: “Order that the plaintiff [Bechara] pay the defendant’s [Bates’] costs of these proceedings including reserved costs and note that as the proceedings have come to a conclusion these costs are now payable.”

2. The present tax invoice adopts the same principles for billing and costing, for the 2014 Supreme Court Proceedings, that were approved by Adamson J, in subsequent related proceedings between the same parties, in Bechara v Bates (no. 4) [2015] NSWSC 1722 (28 November 2015) at pars [10]-[20] at hourly rate of $400.00 plus GST 10%.

46. The first tax invoice also bore the following additional note:

1. The instructing solicitor may apply to have the costs assessed under Part 3.2 Division 11 of the Legal Profession Act 2004 as amended (NSW), (‘the Act’), s 351, within 60 days after this bill was given or within 30 days of payment in full (whichever is the earlier);

2. The instructing solicitor may apply to set aside the costs agreement applicable to this bill pursuant to s 328 of the Act;

3. The instructing solicitor may refer a costs dispute about this bill for mediation pursuant to Part 3.2 Division 9 of the Act if the dispute is less than $10,000.

47. The second tax invoice is dated 27 May 2016. It is for $12,100 (incl GST). It is annexed to statutory declaration of Alix Calais (of Bannister Law) dated 27 May 2016. It bears the following notation:

This tax invoice has been calculated in accordance with the same party/party principles approved by Adamson J in the gross costs judgment in Bechara v Bates (no 4) [2015] NSWSC 1722 and excludes party/litigant functions such as giving instructions, conferring with my solicitors, advising my solicitors.

48. The second tax invoice also bore the following additional note:

Pursuant to Part 4.3 of the Legal Profession Uniform Law (NSW) (“UL”), the Legal Professional Uniform General Rules 2015 (“UGR”), the Legal Profession Uniform Law Application Act 2014 (NSW) (“AA”) and the Legal Profession Uniform Law Application Regulation 2015 (NSW) (“AR”):

1. A lay client or instructing solicitor may apply to have his or her legal costs assessed by a costs assessor in the event of a dispute. For NSW, the application is made to the Manager, Costs Assessment. The application must usually be made within 12 months after the bill is given to the client.

2. A lay client or instructing solicitor who complains about a lawyer or law practice to the designated local regulatory authority (for NSW, the Legal Services Commissioner) may include a costs dispute in the complaint. The time limit is usually 60 days after the costs become payable or 30 days after the law practice complies with a duly made request for an itemised bill.

3. The instructing solicitor may apply to set aside the costs agreement applicable to this bill.

(It may be noted that the first invoice refers to the Legal Profession Act 2004 (NSW) and the second invoice refers to the Uniform Law (and associated Acts). It is not entirely clear whether the old or new legislative scheme governs the relationship between Mr Bates (as counsel) and Bannister Law (as instructing solicitors). This would depend upon the date on which Bannister Law retained Mr Bates, about which there was no evidence. For present purposes it is unnecessary to determine this question.)

49. Both tax invoices refer to a “costs agreement applicable to this bill”. If there is such a costs agreement, it has not been tendered to this Court. As explained at [43] above, findings about these issues in other cases cannot be treated as evidence of the existence of that fact: Evidence Act s 91(1).

50. There are many possible consequences of the absence of a fees and costs disclosure agreement in the present case. For present purposes it is sufficient to refer only to s 178(1) of the Legal Profession Uniform Law [1] which provides:

(1) If a law practice contravenes the disclosure obligations of this Part—

(a)  the costs agreement concerned (if any) is void; and

(b)  the client or an associated third party payer is not required to pay the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority; and

(c)  the law practice must not commence or maintain proceedings for the recovery of any or all of the legal costs until they have been assessed or any costs dispute has been determined by the designated local regulatory authority or under jurisdictional legislation; and

(d)  the contravention is capable of constituting unsatisfactory professional conduct or professional misconduct on the part of any principal of the law practice or any legal practitioner associate or foreign lawyer associate involved in the contravention.

1. If the Legal Profession Act 2004 (NSW) applied Part 3.2 of that Act contains similar provisions.

Consideration

51. Returning to the significance of the introduction of the word “payable” in the definition of “costs” in the Civil Procedure Act, that word in ordinary parlance describes money or an amount which is liable or due to be paid by one person or entity to another.

52. The question here is whether the introduction of the word “payable” in the definition of “costs” in s 3 has the effect that “costs” refers only to amounts which answer that description which are liable or due to be paid by one or other of the parties to the proceedings, and in relation to them. Such a liability will usually only arise between a party and their lawyer if there has been compliance by the lawyer with the relevant statutory rule – here either the Legal Profession Act or the Legal Profession Uniform Law.

53. The binding application of Guss must take account of any statutory provision which is relevantly different from that considered by the High Court: Wilkie v Brown at [28].

54. In Wilkie Beazley P (McColl and Gleeson JJA agreeing) noted that the definition of costs in the Civil Procedure Act is different from the previous definition in the Supreme Court Act 1970 (NSW) and is materially different from the provisions under consideration in Guss: at [49].

55. The starting point of statutory construction is the language of the provision in the context in which it appears in the statutory scheme: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-384.

56. The language of s 3 of the Civil Procedure Act and the context in which it appears in the statutory scheme support the conclusion that the introduction of the phrase “costs payable in or in relation to the proceedings” defines the subject matter of the scope or existence of the power.

57. As Beazley P also noted in Wilkie at [42]:

The phrase “costs payable in or in relation to the proceedings” is of wide import and, on that basis, the construction for which the respondent contends is arguable, subject inter alia to what it means to order costs on the ordinary or indemnity basis: s 98(1)(c). That question requires consideration of the scheme for the assessment of costs in Pt 7 of the Application Act and of the relevant costs provisions of the Uniform Law which are set out above at [35]-[37].

58. The definition of “ordinary basis” in the Civil Procedure Act presently refers to the costs assessment provisions in the Legal Profession Uniform Law Application Act. Previously, the definition referred to the equivalent provisions in the Legal Profession Act.

59. Section 364 of the Legal Profession Act governed assessment of party and party costs ordered by a Court. It provides for assessment of legal costs only and speaks of legal costs being payable as a result of an order made by a court or tribunal: s 364(1).

60. It requires a cost assessor to consider whether or not it was reasonable to carry out the work to which the costs relate; whether or not the work was carried out in a reasonable manner; and what is a fair and reasonable amount of costs for the work concerned: s 364(1)(a)-(c).

61. Section 4 of the Legal Profession Act defined “costs” as requiring cross-reference to the term “legal costs” which in turn was defined as:

amounts that a person has been or may be charged by, or is or may become liable to pay to, a law practice for the provision of legal services including disbursements but not including interest.

62. A virtually identical definition of legal costs is now found in s 6 of the Legal Profession Uniform Law.

63. In discussing this almost identical definition, Beazley P (McColl and Gleeson JJA agreeing) noted in Wilkie at [43] that:

Prima facie, such amounts are costs that are incurred by the person in respect of legal services provided. At least on a preliminary view, the language does not appear to be apt to extend to the professional costs of a solicitor acting in person.

64. The statutory language now used is arguably inconsistent with the judicial rationale for Chorley prior to 2005, which was that a solicitor representing himself is entitled to be compensated not for fees which are payable to another solicitor, but rather the opportunity lost by the self-represented solicitor to bill other clients for his time: see Atlas v Kalyk [2001] NSWCA 10 at [9] per Handley JA, (Meagher and Sheller JJA agreeing).

Conclusion

65. In Wilkie Beazley P (McColl and Gleeson JJA agreeing) said:

The costs regime under the Application Act and the Uniform Law is labyrinthine and, at this stage, largely unexplored in the case law. The relevance of cases dealing with previous statutory schemes may be questionable. I have come to the conclusion that, in circumstances where there is a significant question as to whether the costs provisions now in force are materially different from those applied in Guss v Veenhuizen but the Court has not had the benefit of submissions from a contradictor, it is not appropriate to finally determine the questions of principle raised. In the absence of any submissions put by the applicant, she may be taken to have conceded the point. In that circumstance, I am inclined to accept that the respondent should have his costs of the summons.

66. The same conclusion should be reached here. It is not appropriate to finally determine the important questions of construction raised in this case.

67. In the absence of any submissions put by Ms Bechara, she may be taken to have conceded the point.

68. The Court received evidence in the form of an itemised tax invoice prepared by Mr Bates dated 27 May 2016 totalling $12,100.00 (including GST). The work was charged at $400 per hour exclusive of GST. This rate, on its face, seems to be reasonable.

69. The Court is entitled to take into account that if assessed the usual rule would be that only a proportion of total costs would be recovered. Having regard to the broad discretion available in making a lump-sum costs order the Court allows an amount of $7,000 on behalf of barristers costs as a lump sum under s 98(4)(c) of the Civil Procedure Act.

70. Together with the amount allowed for Mr Bates’ solicitor, a total lump sum award of $12,000.00, being approximately 60% of the total claimed, should be made.

Order

71. The Court orders that:

1. the lump-sum costs order payable by the applicant to the respondent in the sum of $12,000 pursuant to s 98 of the Civil Procedure Act 2005 (NSW) be payable by the applicant within 28 days.

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Endnote

Amendments

01 November 2016 - minor typographical amendments at [43] and [60]

01 November 2016 - hyperlinks removed

Decision last updated: 01 November 2016