Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 3)

[2018] ACTCA 63

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:

Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory (No 3)

Citation:

[2018] ACTCA 63

Hearing Date:

On the papers

DecisionDate:

6 December 2018

Before:

Elkaim, Loukas-Karlsson and Charlesworth JJ

Decision:

The respondent is to pay the appellant’s disbursements set in the sum of $1,000.

Catchwords:

COSTS – whether the Chorley exception applies to the appellant

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 1720(3)(c)

Cases Cited:

Cachia v Haines (1994) 179 CLR 403

London Scottish Benefit Society v Chorley (1884) 13 QBD 872
Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150

Parties:

Lindsay John Burridge (Appellant)

Chief Magistrate of the Magistrates Court of the Australian Capital Territory (First Respondent)

James McCue (Second Respondent)

Representation:

Counsel

Self-represented (Appellant)

Ms K McCann (Second Respondent)

Solicitors

Self-represented (Appellant)

ACT Government Solicitor (First Respondent)

ACT Director of Public Prosecutions (Second Respondent)

File Number:

ACTCA 20 of 2017

Decision under appeal: 

Court:  ACT Supreme Court

Before:  Mossop AsJ

Date of Decision:         18 November 2016

Case Title:  Burridge v Chief Magistrate of the  Magistrates Court of the Australian Capital Territory

Citation: [2016] ACTSC 332

THE COURT:

1. The substantive reasons in this matter were given by the Court on 5 October 2018.

1. The appeal was allowed. The orders made in the Court below were set aside. This included an order concerning costs.

1. No further order was made as to costs. Following the handing down of the decision the appellant sought costs. A timetable was set for written submissions.

1. The appellant’s written submissions state that he wants his disbursements and also “general costs”. The appellant assessed his disbursements at $1,894.

1. His claim for disbursements is, in principle, not resisted.

1. In relation to his general costs, the appellant suggested a figure of $3,000, specifically put on a without prejudice basis and in order to achieve a settlement of the issue.

1. The claim for general costs is opposed by the respondent.

1. The appellant was self-represented throughout the proceedings. The general rule is that a self-represented litigant is not entitled to professional costs (Cachia v Haines (1994) 179 CLR 403). The appellant does not argue with this proposition, but rather says that as a “legal practitioner of this Supreme Court, and inter alia the High Court of Australia” he is entitled to a costs order.

1. In support of his application the appellant referred to the decision of the New South Wales Court of Appeal in Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150. In Pentelow the Court was dealing with a claim for costs by a barrister who had carried out some of the legal work herself in proceedings to recover fees owed to her by a firm of solicitors. The primary issue in contention was whether the Chorley principle (derived from London Scottish Benefit Society v Chorley (1884) 13 QBD 872) extended to barristers.

10.  Although the Court found in the barrister’s favour, that does not assist the appellant in this case. This is because the appellant, while he may have been admitted some years ago as a solicitor in the Australian Capital Territory, ceased to practice long before the onset of these proceedings. There can be no suggestion he incurred solicitor’s costs in the preparation of his own matter.

11.  Accordingly, this is simply not a matter where the exception to the general rule concerning self-represented litigants applies. The appellant’s application for general costs must fail.

12.  In relation to disbursements, as already noted, the second respondent concedes the entitlement of the appellant to recover his disbursements. The respondent has not commented upon the assessment of $1,894 put forward by the appellant.

13.  This Court is not able to assess the manner in which the above sum has been calculated. For example, the Court has no evidence of the number of occasions the appellant needed to park his motor car at Civic. It also does not know how many pages the appellant needed to photocopy through the proceedings, commencing in the Magistrates Court.

14.  On the other hand, it would seem to be an unfortunate waste of time and expense if costs of this magnitude needed to be assessed independently.

15. Rule 1720(3)(c) of the Court Procedures Rules 2006 (ACT) permits a court to decide an amount for costs. This matter commenced in the Magistrates Court, went to the Supreme Court and then on to the Court of Appeal. There would no doubt have been a significant amount of disbursements.

16.  The Court is of the view that the matter should be brought to finality. This is best achieved by fixing the disbursements at a set sum. Having regard to the details provided by the appellant, none of which were criticised by the respondent, but allowing for the details being untested, the Court sets the amount of disbursements at $1,000.

17.  The Court makes the following order: The respondent is to pay the appellant’s disbursements set in the sum of $1,000.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Loukas-Karlsson and Justice Charlesworth.

Associate:

Date: 6 December 2018