Burnett v FitzGerald and Browne (No 2)

[2017] TASSC 35

[2017] TASSC 35

CITATION:              Burnett v FitzGerald and Browne (No 2) [2017] TASSC 35

PARTIES:  BURNETT, Gail
  v
  FITZGERALD and BROWNE

FILE NO:  1574/2016
DELIVERED ON:  30 May 2017
DELIVERED AT:  Hobart
HEARING DATES:  30 May 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Costs – Taxation and other forms of assessment  – Particular items – Solicitor's profit costs – Solicitor party.

Guss v Veenhuizen (1976) 136 CLR 47, applied.
London Scottish Benefit Society v Chorley, Crawford and Chester (1884) QBD 872 403; Soia v Bennett [2014] WASCA 27, followed
Cachia v Hanes (1994) 179 CLR, discussed.
Aust Dig Procedure [1695]

REPRESENTATION:

Counsel:
           Applicant:  In person
           Respondent:  Roland Browne
Solicitors:
           Respondent:  FitzGerald and Browne

Judgment Number:  [2017] TASSC 35
Number of paragraphs:  4

Serial No 35/2017

File No 1574/2016

GAIL BURNETT v FITZGERALD AND BROWNE (NO 2)

REASONS FOR JUDGMENT  BRETT J

30 May 2017

1. On 11 May 2017, I dismissed originating applications filed by the applicant seeking an extension of time for the institution of appeals. The respondent, a firm of legal practitioners, has applied for an order that the applicant pay its costs of the proceedings, on a party-party basis. Having regard to the merits of this matter, there is no reason why the usual outcome, that the successful party should have its costs, should not apply. The only matter which troubled me was whether it was appropriate to make such an order in circumstances where one of the respondents, Mr Browne, who is a member of the firm and a legal practitioner, himself conducted the proceedings.

2. In Australia, the rule of practice which in England is known as the Chorley exception, which arises from the decision of London Scottish Benefit Society v Chorley, Crawford and Chester (1884) QBD 872, has been generally applied since its endorsement by a majority of the High Court in Guss v Veenhuizen (1976) 136 CLR 47. The rule provides that a lawyer who represents himself in successful proceedings may recover professional costs. It is known as an exception because the usual rule is that a self-represented litigant is not usually entitled to professional costs, even if successful. In Cachia v Hanes (1994) 179 CLR 403, several members of the High Court, in obiter, doubted the ongoing appropriateness of the rule, but did not overrule it. As Mr Browne correctly submits, the Chorley exception has been accepted and applied by intermediate courts of appeal in most States and in the federal jurisdiction, by the Full Court of both the Federal Court and the Family Court. In Soia v Bennett [2014] WASCA 27, the Court of Appeal of Western Australia overturned a previous appellate decision in that State, which had refused to apply the rule, so as to bring the State jurisdiction into line with the federal jurisdiction and intermediate courts of appeal in other States.

3. As Mr Browne also correctly noted, the application of the Chorley exception in this State does not seem to have been the subject of a published decision. The High Court decision in Guss v Veenhuizen may not, strictly speaking, be binding on me as the comments relating to the application of the rule were assumed rather than decided by that court. However, in the light of the preponderance of highly persuasive judicial authority, I am satisfied that I should apply the rule in this case.

4. Accordingly, I order that the applicant pay the respondent's costs of and incidental to these proceedings to be taxed on a party-party basis. As Mr Browne correctly conceded, it is not appropriate to certify for counsel and I decline to do so.