Bell Lawyers Pty Ltd v Pentelow & Anor
[2019] HCATrans 91
[2019] HCATrans 091
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S352 of 2018
B e t w e e n -
BELL LAWYERS PTY LTD ABN 96114514724
Appellant
and
JANET PENTELOW
First Respondent
DISTRICT COURT OF NEW SOUTH WALES
Second Respondent
KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 9 MAY 2019, AT 9.45 AM
Copyright in the High Court of Australia
MR B.W. WALKER, SC: May it please the Court, I appear with my learned friend, MS M. CASTLE, for the appellant. (instructed by Bell Lawyers)
MR G.O’L. REYNOLDS, SC: If the Court pleases, I appear for the first respondent with my learned friend, MR D.P. HUME. (instructed by Castagnet Lawyers)
KIEFEL CJ: Yes, Mr Walker.
MR WALKER: Your Honours, the statute which is the ultimate source of power to make the order for costs in this case is to be found in the book of authorities, the Civil Procedure Act 2005 (NSW), at tab 3. Could I take you immediately to section 98, pages 46 and 47 of the print that is reproduced where your Honours will see a collection of expressions familiar over the now more than a century of statutory costs provisions in this and like jurisdictions.
One sees that a costs order is the exhaustive means of obtaining costs, see section 98(2) and one sees in subsection (6) an expansion or clarification, as the case may be, of the notion of costs. In section 98 the expression “costs” is of course a pivotal expression and in section 98, for the purposes of cases such as the present, though not for the purposes of all the cases in section 98, the costs are costs in relation to proceedings. Thus one goes to section 3(1) of the Act, which is at page 10 of the print in the book, and one sees the expression “costs” used in relation to proceedings is there defined to mean:
costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration.
Your Honours appreciate that the way in which the case has been argued, and to a degree determined below, can now be characterised as involving a question with an enactment in those terms – particularly the meaning, such as it should be, to be given to the word “payable” and the definition of “costs” - is an enactment that precludes the application of the so‑called Chorley exception, extended, as we say it ought to be understood as having been so extended, by the Court of Appeal in this case.
EDELMAN J: Does the word “payable” appear in the legislation in other jurisdictions?
MR WALKER: It does in some of the legislation and, more to the point, some of the, I call it, delegated legislation court rules. It appears in a variety of different contexts. Your Honours will appreciate that some High Court Rules, at relevant times, refer to costs payable to barristers and solicitors. It has not been uniformly used, or used in such a way, as to produce a uniform meaning and one of the questions in this case, which we submit should be answered as Justice Meagher did in the court below, is to understand “payable” as meaning costs where a liability has been incurred by reason of the conduct of the proceedings.
Your Honours, I have just referred to this notion of the Chorley exception. I do not need to labour the point. Your Honours are well familiar with the notions to which that label has been affixed. I will come to the law in this Court shortly. But, I have also referred to the notion of an extension of it. Why that is important, as your Honours appreciate, is that, again, in line with the manner in which Justice Meagher concluded his reasoning in dissent in the Court of Appeal below, if this be an anomaly, that is a so‑called rule of practice which insufficiently is supported by a principle as to easily permit or welcome extension, then as an anomaly it ought not to be extended, which gives rise to the question in this case, well was the first respondent really seeking an extension.
The first way in which it can be seen how the matter was argued below is to appreciate that there was no appeal by way of rehearing on questions of fact in the proceedings below and that led to an inquiry as to whether or not a conclusion concerning whether the first respondent had ever relevantly been unrepresented or was representing herself became a source of what I will call some jurisdictional dispute below, which does not carry over into the proceedings in this Court.
Could I take you in the core appeal book, please, to page 65 – the reasons of the Acting Chief Justice. In her Honour’s paragraph 1, about line 12, her Honour described her understanding of the first respondent’s presentation of the case, namely, that it was a claim based upon what she, the first respondent, described:
as an extension of the Chorley exception –
Then, if one goes over the page to 66, paragraph 5, the finding that:
The applicant was represented by a solicitor in the Local Court proceedings and by solicitors and senior counsel in the Supreme Court proceedings. In each proceeding, the applicant had undertaken certain preparation work.
There is then a description of that work and, in order to put to one side, I hope, an issue that seemed to loom large at first instance, does not seem to have mattered so much in the Court of Appeal and certainly does not matter at all here so far as we are concerned, the work there described does not raise any difficulties being performed by a person with a barrister’s practising certificate in New South Wales.
Could I then go over to page 69, where Justice Beazley in her paragraph 19 sets out her understanding of the well‑established rule, which is sometimes called in the literature including judgments the primary rule, is that:
a self-represented litigant is not entitled to professional costs for acting for herself or himself –
a recognised exception, known as the Chorley exception, where a self‑represented litigant is a solicitor. Could I then take your Honours to page 97, paragraph 115. Her Honour expresses the conclusion that the Chorley exception applies to barristers and that is to be understood, we submit, as her Honour saying that that does not involve an extension. The second half of that first sentence in paragraph 115 records that matter of jurisdiction that does not trouble this Court. Over the page, on page 98, in paragraph 116, her Honour makes it very clear. She says:
I should emphasise that I have concluded that this case involves an application of the Chorley exception to the facts and is not an extension of it. The applicant in this case did not seek a departure from any previous decision of the High Court. Rather, she sought a determination as to whether the Chorley exception applies to barristers in circumstances where she –
that is, being a barrister:
was not a self‑represented litigant but undertook legal work in the litigation in which she was represented.
On the other hand, as your Honours understand, bound as his Honour regarded himself, correctly, with respect, by this Court’s pronouncements in Guss and Cachia, Justice Meagher at page 105, paragraph 137, correctly regarded the matter as requiring faithful application of the reasoning and conclusion in Coshott. That is in the Court of Appeal, the later history of which your Honours are well familiar with. His Honour says:
Thus, what follows assumes that Guss established that a costs power limited to costs that are “payable” authorises awards to solicitors appearing in person in respect of amounts that are not “payable” to anyone. It does not assume, however, that Guss resolved the difficulties inherent in that construction of such a power.
Then his Honour turns, with respect, correctly to the question:
whether the Chorley exception, as it operates under Civil Procedure Act s 98, should be extended to barristers.
Now, at that point, in our submission, it is to be questioned whether there had been any understanding of the Chorley exception, before the decision in this case, that it applied to a person who was in no sense self‑represented but who had been a lawyer, spent time on his or her own case. Many people who are litigants, not just corporations with hordes of employees, many people who are litigants spend a lot of their time on their case instructing, as it is called, or assisting or considering the advice of their lawyers who represent them.
The primary rule is that there is no recompense for that undoubted loss or burden, unless by specific heads, such as through witness preparation and witness attendance. In our submission, it is thus to be understood that the so‑called Chorley exception has been applied by the decision of the reasoning of the majority below to a case where there is no self‑representation but there is work done by attendance, concern and time by a litigant who happens to be a lawyer.
KIEFEL CJ: Was the original rationale for the general rule that the law did not provide full compensation?
MR WALKER: Yes. Now, the word “indemnity” is used in many of the expressions of the underlying principle of the costs rule but in more recent times it requires, in the same breath, a rapid qualification of that by reference to it being a partial indemnity and, as a matter of semantics, wonder whether that is not simply and always, an oxymoron.
But the fact is that the indemnity, which is the underlying principle of the statutory costs jurisdiction in all the forms that we have been able to find in different places and different times, is in all but the most exceptional case that can hardly inform argument here, is always partial. That is because even with lawyers there is the concern with what has been variously called the overanxious litigant or one might sometimes say, from bitter experience, the oversolicitous representative.
So, usually, under the head of “reasonableness”, sometimes under rather more harsh expressions, it is simply not true that one simply needs to present the invoice in order to obtain the payment from the losing party against whom costs have been ordered. So it has always been a partial indemnity. But one thing is clear is that it has never included compensation for the time and trouble per se of being a litigant. The time and trouble per se of being a litigant is, as a matter of, we would submit, policy decision that may have become a principle, part of the disadvantage or detriment of suing or being sued that the relevant Parliaments and the judges interpreting those enactments have determinatively excluded from the notion of costs, notwithstanding that in any economic or social sense the cost of litigation very heavily, very prominently, includes just that.
So that advising commercial clients, suing or being sued, has always involved ensuring that they understand that what is sometimes called “executive time” is understood as being a cost of their participation in the litigation. That shades into the so‑called opportunity cost reasonings, to which I will be coming fairly soon, which, in our submission is a red herring. It would be a wrong direction and does not underlie any of the hitherto understood rationale, such as it be, of the Chorley exception.
GAGELER J: Mr Walker, is there something in the Bar Rules that prevented the solicitor from briefing the barrister to perform the work identified in paragraph 5 of Justice Beazley’s judgment?
MR WALKER: Yes, and it just occurs to me now that there is, I think, an inescapable requirement for a client and the relation between barrister and client inescapably involves the client serving – the barrister serving the client and subordinating barrister’s interests to the client’s interests whereby they must be different people, though the notion of being delivered a brief to appear for one’s self is, in our submission, alien to the barristers’ rules.
GORDON J: That same sort of idea underpins, does it not, the solicitors’ rules, that you must act independently and impartially and all of those ethical obligations that are imposed upon practitioners.
MR WALKER: Your Honour anticipates me. I am bound to say that the matter that Justice Gageler asked, on my understanding of the proceedings at all levels below, was not to the forefront. There was discussion about barristers’ rules but I do not think that aspect came up, no doubt because the arguments below and, for that matter the argument here, do not involve the proposition that it was simply professional rules that forbids a solicitor litigant from benefitting from the Chorley exception.
Your Honour is absolutely right. The solicitors’ rules are not rules which can naturally be read as regulating the way in which one acts in self‑interest but is for one’s self. Indeed, as soon as you pose the notion of discipline, one poses the notion of a complaint and as soon as you pose that notion, you are looking at a very – I would have thought – severely incapacitated person to either act for themselves or for anyone else.
KIEFEL CJ: Mr Walker, perhaps you could provide a note identifying the relevant rules – Bar rules and those relating to solicitors – perhaps within seven days.
MR WALKER: Yes, of course.
KIEFEL CJ: And a seven‑day response then for Mr Reynolds.
MR WALKER: If it please, your Honours. Your Honours, that leads me then to come to the appearance in this Court of the Chorley exception. By way of preface before I come to the High Court case, your Honours will have seen in our written submissions – upon which I do not wish to address beyond what we have said in paragraph 23 of our written submissions – that we think that in the calendar year before Chorley, Mr Justice Faucett in the New South Wales Supreme Court drew the short straw to consider what clearly was a contested practice, that is, the case itself shows it was a contested practice – and I will not go to his Honour’s reasons, which we commend to your Honours.
I summarise it as follows. His Honour was at a loss to understand how the practice books had repeatedly asserted on the basis of cited authorities – three cited authorities – the existence of the so‑called rule by way of exception. His Honour, with respect, convincingly demonstrates that the footnotes do not support the text in the practice books. But, if I may say so, with great respect, surrendered, as it were, to the professional inertia of the practice books and the practice which is no doubt an arguably possible way to proceed in relation to what has been called after all a rule of practice.
In our submission, it may, purely in hindsight, be a matter of regret that there was not a more thoroughgoing statutory analysis. But, that was a case which - we think was the earliest reception of that so‑called rule of practice in an Australian jurisdiction. Such misgivings were expressed, as his Honour very frankly does, about whether it could be justified in principle.
Your Honours, the decision that I first want to go to, of course, is Guss v Veenhuizen (1976) 136 CLR 47. In the reasons of the majority at page 51 there is a description of the nature of the claim there. The solicitor appeared in person – that “appeared” means as in entering an appearance. He was in fact represented by counsel, relevantly:
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 –
to which I will come in a moment. Your Honours appreciate that the manner by which Mr Guss succeeded was that he escaped the statutory prohibitions that you will see recorded on the previous page, page 50 of the Commonwealth Law Report, by reason of him not being a solicitor for a client but rather representing himself, a matter which cut no ice with the minority in Guss. But it produced, of course, a need, which we must accept makes this an important pronouncement of the Court, a need to understand whether being in that sense a self‑represented litigant, that is, a litigant appearing in person, whether there was a capacity for him to take advantage of the Chorley exception.
Your Honours will see that there is a citation in the text at page 51 of H Tolputt & Co Ltd v Mole [1911] 1 KB 87, 836. I will not take you to it. It reproduces the ultimate finding or holding in Chorley, against the background of what can only be described as truly bizarre facts by which a solicitor who was also a registrar of the local, I will call it, District Court, was sued for what I will call misfeasance as such, successfully defeated that action, sought costs, which were required to be taxed, lo and behold, before the Registrar of that very court. He had been sued in his own court, in the sense of him being sued in the court of which he was the actual registrar.
The reasons are therefore entertaining as to that notion of a rule of necessity for being a judge in your own cause and it involves odd notions of three shillings being charged for attending upon oneself to obtain the issue of a subpoena, for example. It does not add anything to the case in relation to justifying the so‑called exception.
KIEFEL CJ: Mr Walker, I think you referred to Justices Mason and Murphy as being in the minority, but not in the result?
MR WALKER: Yes and no. The extent of recovery that their Honours understand is to be seen on page 60 and therefore the grant of the review sought, the allowing of the bills costs to the extent indicated is, we think, rather less because they would not allow for what I will call solicitors’ work but of course they allowed for the disbursement of counsels’ costs.
I perhaps should have made that clearer when I went first to that. I had been calling the Acting Chief Justice and Justices Jacobs and Aickin the plurality until I observed that I think there is a different outcome reached by reason of Justices Mason and Murphy regarding sections 55A and 55B of the Judiciary Act as having an effect quite different from that seen by the majority, as I think they are. Your Honours see the manner by which the majority proceeded at page 51. “Those authorities” – and really it is only Chorley because Tolputt does not add anything:
establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor –
and there was the beginning of the reasoning by which Mr Guss escaped the consequences of the inadvertence of the High Court register itself:
but because, he happening to be a solicitor –
and that is an evocative expression; this is not just some incidental, coincidental character like happening to be an accountant, “happening to be a solicitor” means that the time and trouble devoted to litigation, which is of course par excellence where solicitors can do work, but where also accountants can do work and do do work, becomes entitled to an exception for solicitors not accountants.
KIEFEL CJ: You say that the appellant Guss escaped statutory prohibitions because he was not acting as a solicitor.
MR WALKER: Yes.
KIEFEL CJ: But the majority rectified the register nunc pro tunc, and their order is at page 57.
MR WALKER: Your Honours, that is not how I read their penultimate paragraph:
It is not necessary in the present case for a decision to be made on the question whether the applicant should be entitled to have the register rectified nunc pro tunc so as to perfect his entitlement to the costs awarded to him because for the reasons set out above we think that he is already entitled to them.
KIEFEL CJ: So the order relating to the register was an incidental order?
MR WALKER: Yes - I am sorry. When your Honour refers to an order rectifying, the paragraph I have just read, I read as being a decision by the majority that they did not need to do it and, unless I am much mistaken, there is no such effect.
KIEFEL CJ: I see. You are quite right. I have, in fact, misread it.
MR WALKER: There is no such effect achieved by the orders noted on page 61.
KIEFEL CJ: Yes.
BELL J: Mr Walker, President Beazley, at core appeal book 74, paragraph 38, suggests that the reasoning in the joint reasons in Guss at page 52 is opaque on the question of why, had Mr Guss’ non‑registration been his fault, the order would not have been made. What is your submission respecting the analysis in that part of the joint reasons on page 52 where their Honours say:
If the error had not been on the part of an officer of the Court but had been the fault of the party himself, the Court would not attempt to assess his capacity to do the work done by him. He would be regarded as in the same position as an ordinary layman.
MR WALKER: I think the short one‑word answer is illegality – that you would not entertain a claim by a person for an assessment as if – on the basis of “as if solicitor” – if, by dint of common law principles of illegality, you are falling foul of a prohibition was something that the common law would not regard as incidental. Their Honours do not say Mr Guss was not caught by the prohibition but, rather, that it was not his fault.
BELL J: Yes.
MR WALKER: So they would not impute to him the consequences of illegality. I think that is the only way one can understand their Honours to be proceeding.
BELL J: Yes.
MR WALKER: That is how, in particular, we read, and submit your Honours should read the expression “the Court would not attempt to assess his capacity to do the work done by him”. There would be purely fictitious elements to that approach unless one was taking a principled bar to judicial determinations such as imposed by illegality.
BELL J: Yes. Thank you.
MR WALKER: Your Honours, therefore, we accept page 52 – middle of the page, “In these circumstances” – being the phrase that follows, setting out the purple passages from Chorley, shows that this Court was, by this majority in Guss, holding that that exception could apply in order to provide the route to relief for Mr Guss. I need to draw to attention one of those contexts in which the word “payable” will be found in the variety of provisions, both statutory and rules, peppering the cases. At page 53, then Order 71, rule 19 is set out and you will see the word “payable” in relation to:
bills of costs and fees –
is used to describe costs and fees which –
are payable to barristers and solicitors -
So the payment there – “payable” there captures what, across the Tasman, they call the “invoice principle”, that is, there has been the incurring of a liability. One need not go into the niceties historically if whether barristers could sue ‑ they can now - payable say the invoice for profit costs for the solicitor plus disbursements for barrister’s fees all being in the solicitor’s invoice to the client. Payable is payable by the client or perhaps payable by the solicitor and then by the client.
Then in the next paragraph on page 53 comes the reasoning which, in that case, conduced the result which found favour with the majority. This is where one finds a reading of the rule against the pre‑existence of the Chorley exception, which produced the particular outcome. In our case, the so‑called Chorley exception is plainly pre‑existing section 98 and its all‑important definition in section 3 of the Civil Procedure Act (NSW). The question is whether equally, as apparently in this next paragraph starting with word “Rule 19”, the pre‑existing Chorley exception survives rather than is affected by that the subsequent rule in that case, the subsequent statute in our case.
The way in which their Honours reasoned that is to say that it provides for the method and manner of quantifying awarded costs in the ordinary case and we have an immediate contrast. Section 98 is an exhaustive and specific statutory basis for the award, including relevantly, modes of quantification by other provisions of that and other statutes of costs.
So application of the same technique – how does a piece of, in that case, delegated legislation affect a pre‑existing position understood at common law in relation to a statutory jurisdiction of costs, exactly the same technique would produce an opposite result in our submission. Guss, in other words, does not govern this case, but if it did, in our submission, it should, for the reasons we have written and to which I will come briefly, it should be overruled by this Court in that regard. Interestingly, their Honours in that very paragraph, in the middle of page 53, having said that the rule:
does not affect the long established rule of practice -
go on to say:
It therefore provides no obstacle to the extension of that rule of practice to the very special circumstances of this case.
In other words, with respect, differently from the way Justice Beazley proceeded in her reasons. In this case the majority in Guss did regard the extra elements or extra characteristics of Mr Guss as such a claimant as involving an extension. They saw no obstacle to the extension pro tanto. Hence their comment:
It is understandable that the taxing officer –
I interpolate, not being the High Court:
did not himself extend the rule of practice -
But, they said, it is now with us:
it is proper that we should do so –
that is, extend the rule of practice:
refer the taxation of costs back to the District Registrar with a direction that it should proceed on the basis that the appellant is entitled to professional costs according to the rule of practice -
Now, that rule of practice, as we know - and this case does not involve any taxation - but we know it recognises that there is a true difference between acting for another, using the jargon “acting for oneself”. Well, one thing is you do not sensibly attend upon yourself any more than you sensibly make agreements with yourself.
NETTLE J: Mr Walker, is the extension referred to in the middle of 53 anything more than an extension to a solicitor that was not on the roll?
MR WALKER: I cannot say, your Honour, because it is not clear to me that the rule of practice can itself ever be articulated so as to cover that proposition because, I should say, there are cases which have said somebody who happens to have legal qualifications but is not entitled to practice does not benefit from this so‑called exception. So I cannot say that this is an extension which would be articulated in the terms you have just put it.
If anything it seems to be – and no doubt attracting their Honours’ expression, “the very special circumstances of this case”, it seems to be a person who has done all that they could have done to be registered, but who by mishap not due to any fault on his part, had not achieved the registration which, by the relevant time, not originally but by the relevant time, was a prerequisite of being able to practice. That is indeed very special. It would not lead to articulation of an extension as broadly as your Honour put to me, we think, with respect.
NETTLE J: Thank you.
MR WALKER: Of course the matter, notoriously, did not stay there. The first thing to note about Guss is that there does not seem to have been any contradictor of the either existence of the Chorley exception, or its application in circumstances of the kind obtaining there, special or not. As we have tried to show by selective citation of what we think are all the relevant milestones, it can hardly be said, starting with Pennington v Russell, that the course of Australian authority shows the application of an incremental judicial technique by which a matter of doctrine is tested and refined, or as the language has it, “worked out”. It is simply treated as a given, in the passages to which I have taken you in Guss.
Now, that does not mean it is not authoritative. But it does lend a different quality to it as a matter of stare decisis when your Honours possess the powers you do today. However, I have to recognise, by reason of the next case to which I would come, that there has been such an occasion in this Court and the invitation that we have as a second fallback position in our argument today was well understood but not taken up.
Now, that is Cachia v Hanes (1994) 179 CLR 403. I should note the record of summary of argument at page 405, about point 7 or so, shows that as a fallback position in Mr Jackson’s argument in that case, for the unfortunate engineer litigant, Mr Cachia, was that Guss:
was wrongly decided and ought not to be followed.
On the other hand, as the note of Mr Bennett’s argument makes clear he presciently urged deference to other agencies of legal change – in particular, Parliament – in order to achieve that outcome.
Your Honours, it would be otiose for me – given the exchange of written submissions and the reasons below – to touch upon every utterance in Cachia upon which we rely. They are well known. They are the hallmarks, in our submission, of something which really should not be called a “principle” which probably should achieve only the rather grudging title of “rule of practice”.
Even then, we would submit that it is an extraordinary notion that a rule of practice being, it seems, founded on practice, many of the cases involve the judges consulting with subordinate officers of the court to find out what happens – how you find out about practice, I suppose - it is extraordinary to contemplate that ought nowadays be regarded as entrenching upon an ordinary contextual and purposive understanding of a statute such as section 98 with its section 3 definition, to put it mildly.
EDELMAN J: What does its status as a rule of practice really mean now? I can understand that it was an informing rule of practice in the 19th century. Calling it a rule of practice now, is that anything more than saying that the words “costs” or “costs payable” are ambulatory words that are given effect based upon the courts’ interpretation of prevailing circumstances?
MR WALKER: No, no. But as such, in our submission, it would never be said that a court’s understanding of prevailing circumstances justifies departing from the basic rule which is to apply the statute.
EDELMAN J: Yes.
MR WALKER: Understand the statute and apply the statute and never to start with the assumption that a redrafted statute has not produced – if only at the margins – differences of outcome. You never assume that conclusion.
EDELMAN J: It is just that the phrase “rule of practice” now has something of a difficulty where the reason for the practice is because of court rulings about the meaning of the statute.
MR WALKER: Yes. When one says “the statute” there is no monolithic statute. There is no platonic essence of a costs statute. That is heresy, in our submission. Costs statutes are not special. Yes, costs are special to courts in the same way that professional discipline is special to courts. Each may be regulated as areas of concern by statute to which the courts will, of course, pay exactly the same level of regard as they do for statutes in any area.
Now, as in all statutory interpretation there will be a question which, at its grotesquely irrelevant extreme – for this case – involves the notion of not disturbing fundamental rights, et cetera. The notion that this case involves anything of that kind is, as we say, grotesque. On the other hand, it is a familiar – by no means irrefragable – principle of statutory interpretation that understanding the pre‑existing state of affairs – I use that generally because it will involve legislative law, judge‑made law and, apparently, practice – is usually part of the context properly called into account whenever considering a statute which is not a pioneer in its field. We accept that.
However I urge, it is an illogical assumption of conclusion ever to start that inquiry by assuming no change. The tart response to the no change intended is in that case why has there been an alteration of the enacted wording and because we are not allowed either imaginatively or actually to cross‑examine legislators, let alone to count numbers, it is just the enacted text in which we find intention and for which we construe purpose.
In our submission, section 98 is really intractable in that regard and there was not, notwithstanding the use of the word “payable” in the rule in a different context, there was not in Guss any such word having any such intractable effect so as to mean that Guss determines the case against us. As your Honours appreciate, our first argument is it simply does not produce a binding outcome for our case and the Court of Appeal was in the majority wrong to think so.
Your Honours, the quoted passages from Chorley that you will find at page 411 in Cachia include the well‑known disavowal of any notion of a privilege of a solicitor, and the Master of the Rolls emphatically said:
I am wholly unable to agree to any argument standing upon that footing.
But in our submission, particularly when one considers an engineer, Mr Cachia, in a land support case, an accountant in practically any financial case, a doctor in a medical negligence case – and one can multiply examples; you do not have to be professionals – a farmer in an agricultural contamination case – one can see that of course the solicitor is being treated differently and by reason of the metier in question.
No one doubts that in each of those other cases – engineer, doctor, farmer, accountant – that I have illustrated, that depending upon rules from time to time, they may have some of their time and trouble recompensed through witness fees. They may, although as your Honours appreciate, it is a bold counsel indeed and many court rules will not permit anyone to be so bold as to call a party as his or her own expert.
It is for those reasons, in our submission, that it is one thing to disavow the notion of privilege of a solicitor, but it does not alter the fact that there is a unique position being created for a solicitor. One of the questions in this case is, if that be as their Honours said in introducing their quotation “somewhat anomalous”, why one would extend it to a barrister who is represented by solicitors and barrister is an open question which, in our submission, should be answered as Justice Meagher proposed below.
In that reasoning, again I do not wish to spend time elaborating more than I need to matters we have already written, at the foot of the Master of Rolls’ extracted quotation on page 411, there is the well‑known passage where his Lordship says:
it would be unadvisable to lay down that he shall not be entitled to ordinary costs if he appears in person, because in that case he would always employ another solicitor.
It is admirably confident in its assertion as a reason. But in our submission, it is lacking even intuitive empirical support. The excellent reason for a solicitor litigant to employ another solicitor has little to do with visiting a financial burden upon a losing party. It has everything to do with achieving that detachment from a case which is regarded as what we have to sell, among other things, of course.
Justice Brereton, latterly in New South Wales, has drawn to attention just how, if things were tabula rasa, that might be a very important basis of principled reasoning against this so‑called exception at all. But, in our submission, even in terms of the financial burden on a losing party, that assertion is an odd one, bearing in mind that the point at which one is deciding to employ another solicitor is not a point when you can be assured, in nearly every case, that you are going to win or not.
If you are going to lose, then it will have been cheaper to do the work yourself rather than to employ a colleague and pay the professional costs by way of partial indemnity on the other side. So, in our submission, his Lordship was over‑ready to preclude a holistic analysis of the possibilities which one can imagine ought to play in the self‑interested reasoning of a person at the relevant time before they have run the case when they are deciding whether to act for themselves or to retain another.
Their Honours, having quoted from their Lordships at page 412, make another comment that I do not need to dwell on, but which I call in aid, questioning how, as a matter of principle, this what I would call, with respect, sociological prognostication, provides a basis for the exception. It is sociological, because it seeks to predict the behaviour of people in various social positions, and it is a prognostication because it is a prediction.
The notion that your Honours see in particular in that comment starting with the paragraph, the words, “Those assertions”, the notion is clearly intended is to be one of distaste with which their Honours refer to not only receiving the amount of verdict, but actually profiting from the conduct of the litigation. That must be a reference to the unique position of a solicitor as a person, with or without a profession, engaged in time‑exerting work, time and trouble on their own litigation.
However, their Honours then turn to the question of stare decisis, which I have conceded, subject to, obviously, distinguishing appropriately, as can be done in this case. Their Honours note at point 7, as something important to note, that there was not a contradictor on the general propositions and then, although the next paragraph commences with the word “If”, we would respectfully urge that your Honours read what follows as an adoption of a position by their Honours that the explanations for the exception are unconvincing.
The ratio of the decision, unfavourable to that which I urge doctrinally before you today, is nonetheless one that favours our position in another sense. The explanation is found at the top of page 413 – there is the ratio of this part of their decision:
It suffices to say –
so we have moved away from any rhetorical “if” at this point –
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.
The general principle is no recompense or compensation for time and trouble lost in conducting your own litigation. Your Honours appreciate what a massive area of revolutionary change it would be to allow that by way of costs or indeed by way of a claim at law. That is very much a matter for Parliament.
Their Honours then quote, in particular, from words in the Court of Appeal of England and Wales in Buckland v Watts [1970] 1 QB 27, at 37 to 38 in the reasons of Sir Gordon Willmer and there, there is, with respect, a pungent and interesting explanation given for what I have described as, if not a privilege, certainly a unique position enjoyed by a lawyer. His Lordship emphasises, in the middle of the page:
It is because there has been an exercise of professional legal skill that a solicitor conducting his own case successfully is treated differently from any other successful litigant in person conducting his own case. We are not concerned with the exercise of other professional skills.
I interpolate. Well, of course not because the claim before the Court is with respect to legal costs. But the general principle precludes the engineer, the accountant, the farmer, the doctor, and, in our submission, his Lordship is really referring to the fact that the Chorley exception and the articulation of costs, statutes or rules or practices has never entrenched upon that general principle which excludes the accountant, the engineer, the farmer, the doctor. At the foot of that quoted passage, his Lordship professes an inability to find ground:
either in principle or on authority, for allowing him anything by way of remuneration for the exercise of a professional skill which he has not got.
It is neat and powerful to put it that way, but that is because, with respect, one is focusing upon the provision of legal services and it does not answer the question as to why there ought to be only for lawyers the recovery of costs when doing it for oneself, whereas it is notorious – expert witnesses are the classic example, but it is not the only way – that the costs of litigation including those that may be taxed and obtained from losing parties will include the necessary inputs of other professions. Hence, the very premise of the admissibility of expert opinion evidence. We, the lawyers, including the judges, need the help.
Their Honours immediately, having set out that rather powerful, but, we submit, flawed justification, say of it and of material in that vein:
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.
That is the converse of the primary rule – no recompense for time and trouble:
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.
With respect, we urge that on your Honours as a reason to hold, in this case, that even if stare decisis requires the rule as understood – the rule of practice as understood in Guss and in Cachia – to stand in this Court, then it should not be extended in the fashion necessary for the first respondent to succeed in this case. My fallback position, as your Honours appreciate, is that that is a state of affairs which ought not to continue any longer in this Court and your Honours should overrule the so‑called rule. The next two paragraphs, in particular, are paragraphs upon which we rely in support of what I will call the reopening and overturning of those authorities.
Could I draw to attention a comment by their Honours after they had considered what had been done legislatively in the United Kingdom? That is at pages 416 and 417. What has been done legislatively there is, as it were, subsume the exception within a broader legislated recovery for litigants in person. At the foot of 416, the top of 417, their Honours say:
the English legislation and rule represent a straightforward approach to the problem, in contrast to the approach adopted in some cases where courts have treated the loss in earnings of a litigant incurred in the course of the presentation or conduct of his case as a disbursement (45).
The footnote there includes a decision, Boswell [No 2] (1992) 39 FCR 288, which had proceeded in that fashion. Mr Bennett had asked in fallback, in argument, for that case to be counted wrong. That seems to be the upshot of what then happens. Their Honours said:
Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparations or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible.
All that I can say to Boswell [No 2], for which I have no brief and which does not matter to our case, is that it is possible that it survives that stricture because their Honours in that case read the relevant legislation as permitting the recovery that was ordered in that case. Otherwise, as their Honours point out, that such a person, as a litigant, will need probably to qualify as a witness in order to get ordinary witness fees.
Now, your Honours, what one does not find in Cachia, has not seen in Chorley and of course is not discussed in Guss is what is the position of a person such as the first respondent who was, as I say, fully represented - a solicitor on the record, another person, retainer, and then advocacy in the Supreme Court by counsel retained.
At point 7 of our summary we have noted a point that I have sufficiently covered, namely, the rationale such as it is that the exception should exist because quantification is possible is, in our submission, putting everything in the reverse order. That something can be done is absolutely no reason why it should be done. That it can be done is no doubt essential to make out that it should be done, but the capacity to do so could not possibly justify the normative outcome. Otherwise, for example, you would not worry about matters such as the Master of the Rolls protested played no part, namely, the notion of privileging solicitors.
In our submission, in any event the notion that quantification can be done applies just as effectively as witness fees, allowances, made clear in all of the various regimes that have permitted that over different times and places. But that is absolutely no reason why other people should not equally have their time and trouble as a litigant in person reimbursed.
If they could have their witness work assessed, they could have their instructing work assessed or their input into the factual allegations in a pleading assessed, et cetera, et cetera. That is what the primary rule sets its face against. That, in our submission, is what is subverted by the Chorley exception in the manner which receives no principal justification in the cases.
Point 8 of our summary we have already covered in one sense. It is, in our submission, simply wrong to proceed on the basis that that is in the nature of things or is bound to happen or is entailed logically in the proposition. As we point out, an encouragement to lawyer litigants in person to be involved, not on their own but in assisting a team of lawyers, is just as likely, one would have thought as a matter of propensity, to increase the costs rather than to contain them.
Then we come to a matter which we think that may be a point of real distinction between our friends and us. It is clear that if one were conducting a royal commission into the award of costs to a litigant in person or, indeed even more broadly, the need to indemnify all litigants for the costs incurred in litigation, then one would of course look at what, for a very large corporation, would be the executive and other time and trouble removed from making money from customers and put into helping with the litigation and, for more humble litigants, the impossibility of attending to remunerated work while having to be with solicitors, barristers or judges. The primary rule says no compensation for that.
But if the self‑represented lawyer is simply to be given, by way of the partial indemnity under a costs order, a monetary equivalent ascertained by asking the, in fact, impossible question, what would you have charged if you were not one person but two, then clearly enough something in the nature of an opportunity cost, as Justice Handley has referred to it, is lurking behind this notion. If I did not have to be a litigant, either because you unjustly resisted my claim or you made an unjust claim against me, this being spoken to the losing party, then I would have been off making money as a solicitor. In our submission, that is a matter which involves completely unjustified, unsubstantiated assumptions.
At common law, that kind of cost can be part of a claim for damages, say in contract under section 18 as it now is, or in negligence. But it requires proof of the existence of the opportunity, which very often lends itself to a chance analysis, that is reduction by way of uncertainties and it always involves the proof on the balance of probabilities, that such an opportunity or chance existed at all before one then comes to the pricing of it. None of that would apply, notwithstanding that this is an approach which illegitimately introduces a compensatory, rather than partial indemnity approach, to the participation of a person as a litigant person.
EDELMAN J: Well, it is compensatory in the sense that a quantum meruit is sometimes described as compensatory.
MR WALKER: Yes. Yes, but it compensatory in this case for something which no other litigant in person is ever compensated for, or no other litigant, fully represented, is compensated for, in particular, under the so‑called exception the lawyer does not have to prove that he or she would have been getting fees anything like that for the time which has been counted as attracting something in the nature of professional fees, legal costs, profit costs for the time in question.
KIEFEL CJ: Do you say that taken out of the context of a cause of action where loss of chance might be an appropriate remedy it gives the benefit out of litigation to which Cachia v Hanes referred?
MR WALKER: That is right. It is another way in which the profit to be disapproved. I am not suggesting “profit” is a word that should attract disapproval automatically – far from it, but in that passage, it was seen to have been seen as an undesirable outcome, not least because it is only available for that class of litigant, let alone litigant in person.
GORDON J: Even more so, though, when you have the concept that under the Act you are not entitled to act for yourself, or you are not encouraged to act for yourself. It seems odd that you would be rewarding something which on its face is either not encouraged at its least and maybe not permitted.
MR WALKER: Your Honours, I do not think, standing here, I can too lightly lend myself to the notion that this Court should send the message that everyone should be represented.
GORDON J: Not at all.
MR WALKER: Neither does this Court. This Court has never taken that approach; your Honour is not suggesting it. So care has to be taken to ensuring that by commendation of professional detachment we do not introduce, as it were, a detriment for people who are not represented. The liberty to appear for yourself is a fundamentally important one, I submit.
KEANE J: But if it is to be preserved then it cannot be altered by us on any principled basis.
MR WALKER: No.
KEANE J: Then what a court can do, what the exercise of judicial power can do, is ensure equality before the law.
MR WALKER: Exactly. Your Honour anticipates me, yes. Yes, exactly. That liberty is very important; and therefore we should be very careful not, in order to deal with this not very important commercial area of the recovery of money by lawyer litigants, not only in person, but represented and assisting, hence the extension – we have to be very careful that we do not, with respect, entrench a position where, call it privilege or not, there is unequal treatment for inadequate justification. That is the proposition that we urge on your Honours in order to make a clean sweep, to get rid of the lot, if your Honours are not persuaded that distinguishing will suffice.
Then, of course, I come to paragraphs 10 and 11 of our outline. That really is where everything should be determined as a primary way of the case against what I have just been saying – that would be a means of deciding this case which does not require your Honours to say that your predecessors in Guss and Cachia were respectively wrong and too cautious.
Of course you have to construe the word “payable” in section 3. The only other possible meaning, apart from that which Justice Meagher convincingly explains, with respect, is that “payable” simply means payable by the losing party under an order of costs. That is a completely tautologous way in which the word in section 3 would be understood. In our submission, for limited purposes, borrowing it from across the Tasman, it is the invoice principle that that word “payable” is referring to.
If that plain understanding of the governing statute is followed, then the appeal should be allowed and the Court of Appeal should have dismissed the appeal to it. It is quite impossible to understand, as we note in the last sentence of proposition 11, it is quite impossible to understand how anything could be favourably different for the first respondent as a barrister – that is, as distinct from being a solicitor in that regard.
Your Honours, anticipating slightly, in proposition 12, in a way that I hope your Honours have gathered from our opening propositions, the Chorley exception becomes, in our submission, an alien in this area of costs – statutory costs recovery, the partial indemnity, no compensation otherwise for time spent for the litigant. The Chorley exception becomes a complete alien in that discourse and disturbs those understandings of the various statutes if it is to be seen as a rule relating to the recovery for loss of earnings.
If it is to be seen in that fashion, then it is impossible to understand why that would not apply to people whose earnings are otherwise than as legal professionals and it is impossible to understand why the chance is regarded by this means as 100 per cent and at full value. It is an exceptional proposition, the so‑called Chorley exception. This Court has used that language to describe it. I do not need to go back over that in Guss and Cachia. It is quite wrong to regard it as simply a manifestation of other general principles.
KIEFEL CJ: But it is put against you that it is an exception of very long standing, which has been applied regularly by the courts in Australia.
MR WALKER: That is true. Its application – well, it depends on what “very long standing” means. Prehistory before the 1880s is not clear, although Mr Justice Faucett, I think, noted with what I respectfully suggest is some dismay that there had been propositions put on the basis of authorities that did not seem to support it for quite some time. We do not know all that much about practice and that would not be an appropriate way in any case to assess the standing of the principle in law.
Maybe I am showing my age, your Honours, but 1880s is scarcely since time immemorial and it is about a matter of practice and intersecting with professional discipline, all of which has changed in that time. Thank goodness for courts. They are no longer as intimately and day to day involved in the tempering of legal costs as they used to be. Probably it is now a semi‑pathological jurisdiction in terms of professional misconduct and overcharging.
KIEFEL CJ: I think it was said in relation to judicial method, in PGA v The Queen, that if the foundation for a common law rule is removed - it no longer exists - then that provides a basis for no longer maintaining the rule. But, as I understand your argument, you go further and say there never was any foundation for the rule?
MR WALKER: That is right. There never was a foundation, or the foundation given - and it is very difficult to understand why in Chorley – how in Chorley you could avoid seeing the espoused reason as being, “We can do this”. That just did not supply then a reason and cannot now supply a reason. Protestations that it had nothing to do with the privilege of a solicitor never began to grapple in Chorley or in the cases that have slavishly followed it since, never began to grapple with the fact that, call it privilege or not, it is a unique position enjoyed by solicitors who are not the only people who offer valuable assistance in their own cause in litigation. Mr Cachia is a standing example of that.
Your Honours, finally in proposition 13 we have noticed the decision and reasoning from the Supreme Court of New Zealand in McGuire [2018] NZSC 116. It is found at tab 9 of the book of authorities. Your Honours can see what might be called the trans‑Tasman taxonomy in paragraph [55] at page 293 of the bundle. After referring to a judgment that they overrule, Joint Action Funding, their Honours say:
the general understanding was that a successful litigant in person was entitled to recover disbursements but not costs. We will refer to this as “the primary rule”. As an exception to the primary rule, a litigant in person who was also a lawyer could recover costs. We will refer to this as “the lawyer in person exception”.
We understand that is the Chorley exception:
A party who had conducted litigation using an employed lawyer –
and I interpolate that is not just legal firms nowadays; that is banks, insurance companies and governments:
could also recover costs. We will refer to this as “the employed lawyer rule”.
Now, the analysis in this country has not been so elaborate and in particular, as we have drawn to attention, the word “remuneration” which is included in “costs” in section 3(i) of the Civil Procedure Act is a model of the manner by which that which has to be statutory, namely, the recovery of costs, can be regulated as to what may be included within it, and the word “remuneration” plainly applies to the person who is employed by you to conduct, for example, your crash and bash insurance panel beating claims, or to conduct your pension appeals if you are government.
It is no doubt a question for what used to be called taxing masters or cross‑assessors to assess claims from time to time, but none of that means that you needed something in the nature of a so‑called employed lawyer rule. In our submission, there is a grave danger of that kind of reasoning, supposing that there is something in the nature of the common law of costs out in the ether, which is interfered with from time to time by meddling legislatures. Nothing could be further from the truth.
Relevantly, the costs jurisdiction is peculiarly, exclusively, and always statutory. The common law of statutory interpretation is important for the reasons I have earlier touched on and the common law of statutory interpretation obviously includes consideration of pre‑existing states of affairs but not, in our submission, in the notion of there being rules out in the ether called primary rule were a person…..the employed lawyer rule.
Could I ask your Honours then to turn, in the New Zealand reasons, to page 297, paragraph [65]? The rules there set out principles in terms as principles, 14.2 you see there. There is a stipulation of “general principles”. In those general principles one sees, alarmingly for the profession, in paragraph (e) on page 298:
an appropriate daily recovery rate . . . time should not depend on the skill or experience . . . or on the time actually spent . . . or on the costs actually incurred -
That adverb “actually” was used in (e) but not in (f):
an award of costs should not exceed the costs incurred by the party claiming costs –
For the life of me I cannot put to your Honours an argument that suggests that it would do any violence to the understanding of (f) to read it as if the word “actually” was inserted before “incurred” because it is impossible to understand how you can incur costs without incurring costs. In paragraph [66], one can see the technique there adopted was to say of that rule, which, after all, only congregates general principles, that it did not:
abrogate the lawyer in person exception –
because, as a rule, apparently – restating general principles – it was a privilege:
(which merely restated a principle of long standing) –
In our submission, that is, with respect, a wrong approach to the interpretation of costs statutes and cost rules. The question is whether something has happened. You do not start by saying there is something pre‑existing and superior to the Act or the rule which can hardly be supposed that the Act or the rule has overcome. In our case, we have an Act. We do not have to worry about the different status of a rule. In our case, we have the “more explicit language” to which their Honours refer at the foot of their paragraph [66]. Page 303, in paragraph [82], what are called:
public policy justifications for the primary rule –
are referred to. They are described as:
distinctly contestable –
We accept that that is the hallmark of something which ordinarily calls for parliamentary rather than judicial transformation. Immediately, their Honours refer to a practice and to some of the imaginable consequences of the practice, and one of the corollaries being that it:
provides a reasonable basis for not allowing represented litigants to recover costs in respect of their own time and trouble.
That was the primary rule. Then:
Mechanisms for fixing costs are calibrated –
We insert, yes, by Act and rules – in this case by Act:
to the assessment of the work which lawyers carry out, as opposed to work carried out by, or the opportunity costs of, litigants in person.
That, in our submission, is scarcely a promising basis for maintaining an exception. Then in paragraph [83], they turn to the question of justifications in public policy:
Now that can only be so, if, of course, the duty that is called for from them to court –as well as to clients, is precisely the same as it is for all of us. As it is, as a matter of statute, may I seek from your Honours leave to append to the list of barristers’ rules, the statutory enactments that make it crystal clear that the status of being employed does not reduce or dispense in any respect from one’s individual duties as a lawyer, because that is an important part of the case.
These employed solicitors, whose capacity to obtain costs orders, notwithstanding they are employed rather than rewarded by job specific fees or profit costs, are in every case, as a matter of law, as one would expect as a matter of policy of the law, subject to precisely the same obligations and, in particular, in such a way that none of their employers can ever tell them, “Now, don’t you go telling the court of an adverse authority, or don’t you go correcting a mistake that a witness has made”. Those are illegal directions by an employer and would be unthinkable in a responsible corporation, certainly in a responsible government.
So, in our submission, what Justice Brereton has raised as a source of real concern gels as well with what, in our submission, must be true with respect to employed solicitors. There is no difference in the duty. Anticipating very slightly what we will do by putting together the list of barristers’ rules in answer to what Justice Gageler asked me when I was in‑chief, can I make it clear that the general proposition, which answers a deal of my learned friend’s arguments about what is supposedly entailed within our argument, is that a barrister must be independent, that whether you are acting as an advocate or whether you are advising or whether you are drawing and settling pleadings or, for that matter, affidavits you are not capable of being dictated to by your client or by those instructing on the part of your client as to how you will do that, consistently with your duty to the Court.
The rules are explicit about that. The very notion of advocacy or advice is nonsense on stilts with respect to yourself. You do not advocate on behalf of yourself; you speak for yourself. You do not advise yourself; you form your own opinion. In particular, you are not allowed to have briefs as a barrister where you are financially interested in the outcome or where your own conduct is likely to come into question.
KIEFEL CJ: Does that mean that the Court should view a barrister acting for themselves as not actually acting in that capacity?
MR WALKER: Exactly so.
KIEFEL CJ: So that you put them on the same level as the litigant in person?
MR WALKER: Exactly so, and very satisfyingly so. It would mean that such trouble as the barrister as litigant may get into for his or her conduct as a litigant would be by that other arm of professional misconduct that says that you may be judged unfit to continue in your profession because of conduct outside the profession. You would not be disciplined for having misbehaved as a barrister in, say, telling lies to the court.
BELL J: So it follows that in the case of an incorporated legal practice that is essentially a one‑woman practice, when that solicitor appears in litigation in which the practice is on the record to recover its costs or something of that character, there is no question of viewing it as an instance of self‑representation because of the corporate structure. So it is a question of how some solicitors choose to structure their practices.
MR WALKER: Exactly, your Honour, and the statute nowadays, in a development, clear social development, recognised and in fact permitted by Parliament, has permitted different – they call them different business structures for the practice of law.
BELL J: Yes.
MR WALKER: They will all require their own analysis. That is not particularly complex, because the structures are not particularly difficult. Your Honours, could I next turn to the question concerning the word “payable.” I do not want to repeat what I have said in‑chief. Our argument does not involve any more than the statutory text involves. Some kind of temporal bar by which only those obligations, whether they be legal or sounding in honour only, only those obligations extant, to use my learned friend’s word, at the time that the order for costs is made could possibly be then within the subsequent taxation.
Notoriously, for a start, many legal costs are simply that there is no obligation to pay until the process of taxation has concluded, et cetera, et cetera. But, in our submission – and my learned friend drew to attention other examples such as the incorporated costs of the costs assessment itself – the word “payable” simply does not apply that artificial limit that my learned friend attempted to apply.
In many ways and in some contexts the word “payable” might be simply understood to mean to be paid. The grammar of “to be paid” has a sense of obligation, very often, not just prediction, and “payable” of course often has the sense of obligation, not merely the capacity for it to be done. In our submission it might be that if we were using Latin “solvendo” would be used for both of those words, but it does not matter. What matters in this case is that the indemnity principle to which the cases speak lies obviously at the heart of the meaning that that ought to bear in the statute.
My learned friend said of the word “remuneration” that it would pick up Chorley costs. Surely not, unless one were, completely contrary to principle, to see Chorley costs, as my friend calls them, as a form of compensation for time lost from other remunerative work, that is, compensation for not being remunerated.
That argument is in a sense a phantom contention point. We do not have any objection to it being argued at all or decided. We simply point out that “remuneration” is not a word which is apt to include the notion of money to be paid for work done by a person for herself. I do not remunerate myself for work of that kind. In our submission, that is pushing statutory interpretation too far.
My learned friend raised the spectre of what he called captious distinctions among jurisdictions in Australia. Your Honours would know that there are no distinctions in Australia between the requisite independence called for by every advocate in relation to court proceedings, barrister or solicitor. There is certainly no distinction between any of the jurisdictions concerning the way in which work may be done in courts. Nowadays, those differences have gone. New South Wales is the last to change. It is for those reasons, in our submission, that there is nothing to fear in relation to a case from New South Wales being determined according to the New South Wales statute which is not, with respect, a strange one.
Finally, prospective overruling obviously is not the law. This is about the meaning of a statute, according to something that has morphed from the vague idea of rule of practice into the unsatisfactory notion of it being a principle. If it is a principle, it is only for the purposes of statutory interpretation, that is, it is something supposedly pre‑existing that needs to be borne in mind by those construing a new statutory text – here, the word “costs.”
The simple fact is if we persuade you that that is wrong then it is always been relevantly wrong and there is no room for prospective overruling. This is not a case, as it were, about procedure of a kind which can sensibly avoid retrospectivity. May it please the Court.
KIEFEL CJ: The Court reserves its decision in this matter and adjourns to 10.00 am on Tuesday, 14 May.
AT 3.35 PM THE MATTER WAS ADJOURNED
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