Bell Lawyers Pty Ltd v Pentelow & Anor

[2018] HCATrans 264

[2018] HCATrans 264

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S205 of 2018

B e t w e e n -

BELL LAWYERS PTY LTD ABN 96114514724

Applicant

and

JANET PENTELOW

First Respondent

DISTRICT COURT OF New South Wales

Second Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2018, AT 11.07 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 applicant.  (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 Court is of course familiar with the proposition which has been expressed both in and by this Court in the past, namely that the operation of the so‑called Chorley exception is a matter of importance.  We raise that perhaps obvious point immediately because we do need to confront the predictable criticism of our application that it concerns only a matter of costs which are, according to some people’s lives, at least relatively modest. 

However, one of the reasons why the Chorley exception is of importance is that it represents a considerable entrenchment for a considerable class, the size of which is affected by this case, in the indemnity principle which has been a common theme in enacted provisions and judicial understanding of enacted provisions across a long period.

KIEFEL CJ:   In the usual case involving the Chorley exception the lawyer acts for themselves.

MR WALKER:   Yes.

KIEFEL CJ:   Here there is the additional feature that the lawyer party has actually retained counsel.

MR WALKER:   Quite.  Solicitors and counsel.

KIEFEL CJ:   Yes.  So, on one view that might work a disadvantage for this being an appropriate vehicle but I think in your submissions you have attempted to turn it to an advantage.

MR WALKER:   Very much so and for, with great respect, the reasons that Justice Meagher identifies.  In order for the so‑called exception to have operated in favour of the barrister who was not appearing for herself and without any other assistance, there needed to be what was frankly called an extension.  His Honour points out that that really is quite at odds with the way this Court had, we submit, authoritatively expressed the role of the so‑called rule of practice, vis-à-vis the various enacted costs provisions and his Honour, with respect, correctly discerned that the guidance from this Court in Cachia v Hanes was do not extend this anomaly.

KIEFEL CJ:   But does it not raise a question of whether you actually come within the exception in the first place?

MR WALKER:   Quite so.

GORDON J:   Can I ask another question practically about that?  Was the retainer by the barrister of the solicitors in evidence?  In other words, was there a carve‑out for her work?  When I go to a solicitor I get a letter of engagement; I engage them to do a task.

MR WALKER:   Yes.

GORDON J:   This barrister had engaged a firm of solicitors to act for her.

MR WALKER:   She is not charged – she was not invoiced, to use the language, for her work as a barrister.

GORDON J:   There was a prior question, though, was there not, and that is what was the terms of the retainer, that is was her work carved out of the retainer at the beginning?  So I could go to you and ask you to – ask the solicitors to act for me to do matter X but not do certain work.

MR WALKER:   Normally it is not so much a carve‑out as a permission or authority to brief another practitioner, to retain another practitioner.  There is no specific reference, on my understanding of the facts ‑ ‑ ‑

GORDON J:   I could not find it.

MR WALKER:   ‑ ‑ ‑ to conscious animadversion to the possibility of she herself doing the work and of course the history in the various courts showed that others did work that barristers do and that she in fact appeared with as well as on her own on various occasions.  It is for those reasons, in our submission, that it provides a very good vehicle because it tests, first of all, whether the principle is applicable at all in a case which frankly is seen as an extension by the majority in the Court of Appeal and we say that is a matter of importance, given Cachia v Hanes, that this Court resolve for the country in a way that the President has several times suggested it is for this Court and only this Court.  Not only does an exception exist but would it apply in a case like this?

GORDON J:   So that means there are three questions.  Is the Chorley exception still good law?  Second, does it extend to barristers and, third,

does it extend to barristers who have retained a solicitor and counsel to appear for them?

MR WALKER:   Exactly.  The Chief Justice’s question to me raises something which, in our submission, excites a real concern as to whether doctrine has been correctly found by the Court of Appeal.  It is for those reasons, in our submission, that the case presents a satisfyingly comprehensive opportunity to look at something which is of importance.  Yes, it can be said it is only costs.  Yes, it could be said in this case, relatively modest.  But we are talking about a phenomenon which is costs and the costs of litigation loom large in the Court’s supervision as a matter of its doctrine of how and why they can be ordered to be paid. 

Costs shifting is a critical part of the administration of justice and it is for those reasons, in our submission, that the predictable responses of our friends concerning it being costs and only a relatively modest amount ought not to be seen as a disqualification from special leave.  This presents, therefore, as an ordinary and therefore typical and therefore useful case to be examined by this Court.  May it please, your Honours.

KIEFEL CJ:   Thank you.  Yes, Mr Reynolds.

MR REYNOLDS:   If the Court pleases.  Your Honours will recall that almost exactly 12 months ago leave was granted in the case of Coshott v Spencer which raised very similar issues to this case.  Now, although leave in that case was later revoked on the ground that it was an inappropriate vehicle, that makes it difficult for me to say that the issues raised here are not important enough to warrant special leave in an appropriate case.

What we submit, though, is that this is not an appropriate case and the interests of justice do not support a grant of special leave here.  Now, I say that for a number of reasons.  The first is a matter my learned friend has already confronted, namely that there is a very small amount of money at issue in this case.  We are talking here at most about two sums of $22,000 – at most.  That is still not to be the subject of an assessment and, as your Honours appreciate, self‑represented lawyers usually do not fare very well on that assessment and, indeed, there are principles that work against them in the assessment of those costs, particularly that those costs need to be necessary costs.

So we are talking here about a sum, as I say, which amounts to no more than $44,000 approximately.  The costs even of running an appeal in this Court for either side would far exceed that and we submit that that on its own would make this an inappropriate case for special leave. 

In addition to that, your Honours will have noticed from the chronology set out in my learned friend’s submissions that notwithstanding that this is only a very small amount of money, my client has already had to endure seven levels of adjudication.  There has first of all been the original Local Court, then the Supreme Court, then a costs assessor, a review panel, then the District Court, the Court of Appeal and we are now on special leave in the High Court of Australia.

I submit that it would be inimical to the interests of justice and perhaps more importantly contrary to the established requirement that litigation be just, cheap and quick that her ordeal be prolonged any longer.  Enough is enough, as we say. 

I respectfully submit that the preferable course for this Court, notwithstanding that there are issues of significance, would be to await a case where the amount in issue is substantial.  It is, I submit, nigh on certain that such a case will present itself to your Honours sooner rather than later.  This is an issue which, as the submissions in this case show, arises very frequently and it is likely that a suitable vehicle will arise very soon.  If the Court pleases, those are my submissions.

KIEFEL CJ:   Is there anything in reply, Mr Walker?

MR WALKER:   Your Honours, one of course sympathises with the tortuous path that litigants in this position take on both sides.  However, that is what the system provides when somebody seeks to have costs of this kind ordered in their favour.

KIEFEL CJ:   There will be a grant of special leave in this matter.  What is your time estimate, Mr Walker?

MR WALKER:   It will be less than a day.

KIEFEL CJ:   Would you agree with that, Mr Reynolds?

MR REYNOLDS:   I agree.

KIEFEL CJ:   Thank you.  Would you ensure that your solicitors obtain a copy of the directions from the Deputy Registrar.

AT 11.18 AM THE MATTER WAS CONCLUDED