Khera v Jones

[2006] NSWCA 85

NEW SOUTH WALES COURT OF APPEAL

CITATION:      KHERA v JONES [2006]  NSWCA 85

FILE NUMBER(S):
40230/2005

HEARING DATE(S):            On the papers

DECISION DATE:     21/04/2006

PARTIES:
Jaswant KHERA v Ian R D JONES

JUDGMENT OF:      Mason P Ipp JA    

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):        SC 11588/2004

LOWER COURT JUDICIAL OFFICER:     Harrison M

COUNSEL:
Claimant: Jaswant Khera
Opponent: Ian R D Jones

SOLICITORS:
Claimant: Self
Opponent: Self

CATCHWORDS:
COSTS - self-represented litigant - professional costs - Chorley exception - recovery by solicitor litigant - solicitor unemployed when litigation takes place. (ND)

LEGISLATION CITED:
Legal Profession Act 1987

DECISION:
Leave to appeal refused.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40230/2005
SC 11588/2004

MASON P
IPP JA

Friday 21 April 2006

Jaswant KHERA v Ian R D JONES

JUDGMENT

1. THE COURT:     This application involves a question of general importance, namely the scope of the rule of practice that a self-represented solicitor in litigation is entitled to professional costs in a taxation or its equivalent (see generally Guss v Veenhuizen (No 2) (1976) 136 CLR 47). That rule of practice is itself an exception to a general rule that a self-represented person is not entitled to recover compensation for time spent in preparing and conducting the case (Cachia v Hanes (1994) 179 CLR 403). The exceptional rule for solicitors is often referred to at the Chorley rule since it was most clearly stated in London Scottish Benefit Society v Chorley (1884) 13 QBD 872.

2. In Cachia, the Chorley rule was described (at 411) as “somewhat anomalous” and resting upon a “somewhat dubious” justification. Indeed, the majority hinted (at 412-413) that the exception ought perhaps to be abandoned. The Full Court of the Supreme Court of Western Australia took this step in Dobree v Hoffman (1996) 18 WAR 36, dismissing an appeal from the judgment of Ipp J at first instance.

3. If the “rule of practice” deserves continuing application, the present case is a most undeserving applicant for inclusion.  Indeed, it casts further doubt on the sustainability of the Chorleyrule.

4. The claimant and respondent are both solicitors who represented themselves in acrimonious District Court proceedings that resulted in costs orders in favour of the opponent. The costs have been assessed by a costs assessor in the sum of $22,099.71, based on an hourly rate of $250. The claimant’s appeal against that assessment (under s208L of the Legal Profession Act 1987) was dismissed by Master Harrison in the judgment that is subject to this application for leave to appeal (see Khera v Jones & Ors [2005] NSWSC 122). The appeal to the Supreme Court that was determined by the Master is limited to matters of law and the only such matter is the application of the Chorley exception.  At the time the opponent was conducting the relevant litigation in the District Court he was no longer working as a solicitor although he…