Burnett v FitzGerald and Browne (No 2)

[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

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.
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.
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.
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.

CaseChat Overview and Summary

Burnett v FitzGerald and Browne (No 2) was a legal case where Burnett, the plaintiff, sued FitzGerald and Browne, the defendants, over an issue that was not specified in the text. The case was heard in an Australian court. The main point of contention was whether the plaintiff was entitled to recover certain costs from the defendants. Specifically, the plaintiff sought to recover costs associated with a solicitor who was also a party to the proceedings, arguing that these costs should be classified as "solicitor's profit costs" rather than "solicitor's own costs".

The court needed to decide whether the costs incurred by the plaintiff's solicitor, who was also a party to the proceedings, could be classified as "solicitor's profit costs". This distinction was crucial because "solicitor's profit costs" are recoverable from the opposing party, whereas "solicitor's own costs" are not. The court examined the nature of the solicitor's involvement and the applicable legal principles to determine the appropriate classification of these costs.

The court held that the costs incurred by the plaintiff's solicitor, who was also a party to the proceedings, should indeed be classified as "solicitor's profit costs". The reasoning was based on the solicitor's dual role as both a party and a legal representative, which created a profit-making opportunity for the plaintiff. Consequently, the plaintiff was entitled to recover these costs from the defendants. The court's decision was grounded in the principle that where a solicitor acts in a capacity that generates profit for the client, the costs associated with that role can be considered as recoverable costs.

As a result of the court's decision, the plaintiff was granted the right to recover the costs associated with the solicitor who was also a party to the proceedings. These costs were deemed to be "solicitor's profit costs" and were therefore recoverable from the defendants. The final orders reflected this outcome, allowing the plaintiff to claim these specific costs from the defendants.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established