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Birketu v Castagnet

Birketu v Castagnet

Case [2022] NSWSC 1435 26 October 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Birketu v Castagnet [2022] NSWSC 1435
Hearing dates: 26 September 2022
Date of orders: 26 October 2022
Decision date: 26 October 2022
Jurisdiction: Common Law
Before: Brereton JA
Decision:
(1)   Declare that under the costs order made in proceedings 2018/164411 on 19 June 2020 being the subject of the cost assessment proceeding 2022/029349 before the first defendant, the second defendants are not entitled to recover costs for work done by the employed solicitors of their own firm.
(2)   Otherwise dismiss the summons.
(3)    Order that the second defendants pay one half of the plaintiff’s costs of the proceedings in this Court, subject to order (4) below.
(4)   Without confining the jurisdiction or the discretion of the relevant assessor in any other way, direct that in the assessment of the costs recoverable by the plaintiffs under order (3) above, the costs of exhibiting and reproducing the documents that comprise tabs 1 through to and inclusive of tab 6 of exhibit CAP1 referred to in the affidavit of Craig Anthony Powell of 29 July 2022, be disallowed.

Catchwords:
COSTS – General rule that self-represented litigant cannot recover costs of its own time – Chorley exception for self-represented litigants who are themselves lawyers – Abrogation of Chorley in Bell Lawyers v Pentelow – Whether abrogation extends to bar recovery of costs of employed solicitors of a litigant law firm acting for itself – Historical right of litigant law firm to recover costs of its employed solicitors derives from Chorley exception, and not “employed solicitor exemption” which permits recovery of costs of “in-house” solicitors – Held that abrogation of Chorley exception in Bell Lawyers extends to preclude recovery of costs of employed solicitors of litigant law firm acting for itself
ADMINISTRATIVE LAW – Remedies – Certiorari – Reviewability of decision – Indication in correspondence by costs assessor that it will consider an element of a claim in the course of assessment, rather than as a preliminary point, has no a discernible effect on legal rights – Decision not amenable to certiorari – Whether reviewable error of law – Mere indication of intention to embark on process is not itself a jurisdictional error
ADMINISTRATIVE LAW — Remedies — Equitable remedies — Declaratory relief – Substantive question of principle – Application of law to circumstances relevant to pending costs assessment – Resolution of question would simplify costs assessment – Binding decision made by Court on preliminary point in costs assessment

Legislation Cited:
Legal Profession Uniform Law Application Act 2014 (NSW) s 83, s 89, s 93C
Supreme Court Act 1970 (NSW), s 69(3)

Cases Cited:
Atanaksovic v Birketu [2020] NSWSC 573
Atanaskovic Hartnell v Birketu (2021) 105 NSWLR 542; [2021] NSWCA 201
Atanaskovic v Birketu [2019] NSWSC 1006
Atanaskovic v Birketu [2020] NSWSC 779
Attorney General v Shillibeer (1849) 4 Exch 606; (1849) 154 ER 1356
Bank of Western Australia Ltd v O'Neill (Supreme Court of Western Australia, White J, 22 January 1999, unreported).
Bell Lawyers v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Birketu v Castagnet

Details

AGLC: Birketu v Castagnet [2022] NSWSC 1435
Case: [2022] NSWSC 1435
Decision Date: 26 October 2022

CaseChat Overview and Summary

The case of Birketu v Castagnet involved a dispute concerning the recovery of costs by a self-represented law firm acting for itself, specifically in relation to the costs of its employed solicitors. The case was heard in the Federal Court of Australia. The central issue was whether the law firm could recover costs of its own solicitors when it had acted for itself, following the abrogation of the Chorley exception in Bell Lawyers v Pentelow. The law firm argued that the historical right to recover costs of employed solicitors derived from the Chorley exception, rather than the "employed solicitor exemption," and thus should not be affected by the Bell Lawyers decision.

The court was required to determine whether the abrogation of the Chorley exception extended to bar the recovery of costs of employed solicitors of a litigant law firm acting for itself. The court held that the abrogation of the Chorley exception in Bell Lawyers does extend to preclude such recovery of costs. The reasoning was that the historical right of a litigant law firm to recover costs of its employed solicitors was predicated on the Chorley exception, not the "employed solicitor exemption." The court found that the mere indication of intention to embark on a process of costs assessment did not constitute a jurisdictional error, and therefore, the decision was not amenable to certiorari.

The court concluded that the decision of the costs assessor to consider an element of the claim in the course of the assessment, rather than as a preliminary point, did not have a discernible effect on the legal rights of the parties involved. The court also held that the substantive question of principle regarding the application of law to the circumstances relevant to the pending costs assessment was not a matter that would be reviewed via declaratory relief, as it would not simplify the costs assessment process. The binding decision made by the Court on a preliminary point in the costs assessment was deemed appropriate in this context.

Orders