Lake v Municipal Association of Victoria (No 2)
[2018] VSC 660
•1 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S ECI 2018 01119
| GEOFF LAKE | Plaintiff |
| v | |
| MUNICIPAL ASSOCIATION OF VICTORIA | Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 1 November 2018 |
CASE MAY BE CITED AS: | Lake v Municipal Association of Victoria (No 2) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 660 |
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COSTS – Successful self-represented plaintiff – Barrister – Member of the Victorian Bar – Entitled to costs for work as counsel – Entitled to reasonable disbursements – Supreme Court Act 1986 ss 3(1), 24 (1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | - |
| For the Defendant | Mr M Osborne QC | Minter Ellison |
HIS HONOUR:
On 24 September 2018 I made orders declaring that no casual vacancy has arisen under the Municipal Association Act 1907 or the Municipal Association of Victoria Rules (or any other relevant instrument) in respect of the position of the President of the Municipal Association of Victoria.[1]
[1]Lake v Municipal Association of Victoria [2018] VSC 561.
The plaintiff, Geoff Lake, was the successful party. He is a practising barrister at the Victorian Bar who represented himself in the proceedings. He now seeks orders by written submissions that the defendant, the Municipal Association of Victoria, pay both his disbursements and his costs on a standard basis. Only the claim for costs on a standard basis is opposed. I have taken into account the parties’ written submissions and the authorities to which they refer. Those submissions extended the discussion about costs substantially beyond the brief submissions made when judgement was delivered.
It is settled law that, as a general rule, when a litigant appears in person the only costs awardable to him are out of pocket expenses. One carve-out from this general rule is the Chorley exception, named for the case of London Scottish Benefit Society v Chorley,[2] in which a firm of solicitors defending themselves in person were awarded costs.
[2](1884) 12 QBD 872.
The Chorley exception was adopted by a majority of the High Court in Guss v Veenhuizen (No 2),[3] who explained that:
… the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the Court and its officers.[4]
[3](1976) 136 CLR 47 (‘Guss’).
[4]Ibid 51.
There has been some suggestion, most notably by the High Court itself in Cachia v Hanes,[5] that this is ‘a somewhat anomalous exception’. Nevertheless, it remains the law.
[5](1994) 179 CLR 403, 411 (‘Cachia’).
However, there is debate over whether the Chorley exception is limited to solicitors, or extends to barristers as well. The relevant decisions[6] include that of Kaye J in Winn v Garland Hawthorn Brahe (A Firm),[7] who stated that:
In my view, the exception stated in Guss' case does not apply to counsel who appears on his or her own behalf. That follows for two particular reasons. Firstly the courts, and in particular the High Court in Cachia v. Hanes, have emphasised that the exception to the rule should not be expanded at all, particularly because of its anomalous nature…
The second reason why I consider that the exception stated in Guss' case and in Chorley's case should not apply to counsel's fees is that counsel's fees are different, of their very nature, to costs and fees charged by a solicitor. As Mr Moon has correctly pointed out, counsel fees are a disbursement to the client and not a profit cost. For those reasons it seems to me that the counsel's fees can be properly distinguished from solicitor's costs.[8]
[6]See Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036; Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294; Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538; cf Murphy v Legal Services Commissioner(No 2) [2013] QSC 253; Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd [2004] SASC 161.
[7][2007] VSC 360 (‘Winn’).
[8]Winn [9]-[10].
However, there are particular relevant facts present in this case that were not present in Winn, where the appellant who was seeking costs was a practising barrister in Queensland and was not entitled to practise in Victoria as a solicitor in her own right, although she was admitted to practice as a barrister and solicitor of the Supreme Court of Victoria.[9] The plaintiff in this proceeding is a member of the Victorian Bar, but is of course not entitled to carry out the work of a solicitor.
[9]Ibid [2], [8].
The recent decision of the New South Wales Court of Appeal in Pentelow v Bell Lawyers Pty Ltd[10] is also relevant. In it, Beazley ACJ[11] decided that the Chorley exception did apply to barristers. Her Honour stated that:
Under the previous system of taxation of costs, barristers’ fees were treated as a disbursement in a solicitor’s bill of costs, and the common law position, that barristers could not sue to recover fees because there was no contract between the barrister and the instructing solicitor, continued… That position was changed by the Legal Profession Reform Act, which permitted a barrister to enter into a contract for the provision of legal services, and to sue and be sued on it: see Legal Profession Act 1987, s 38I; … Legal Profession Uniform Law, s 198.
There may have been a question whether a barrister would be entitled to costs in a costs regime where the quantification of costs was by reference to scales of costs, as was the case in Guss v Veenhuizen (No 2), Cachia v Hanes and Hartford Holdings v CP (Adelaide). Indeed, that appears to have been one of two bases of the decision in Winn v Garland Hawthorn Brahe, the other being Kaye J’s view that the courts, particularly the High Court in Cachia v Hanes, had emphasised that the Chorley exception should not be expanded at all. It explains, in part at least, the decision in Hartford Holdings v CP Adelaide (see [130]-[131]), where Doyle CJ observed that if a claim were made for the work of appearing as a barrister, “it would appear in a Bill of Costs lodged for taxation by a solicitor [and] would appear as a disbursement”. However, in his Honour’s view, the claim was not “for reimbursement for work done or expenses incurred by … counsel retained by a party”.
However, as I have sought to explain, the basis upon which costs are assessed has changed radically…[12]
[10][2018] NSWCA 150.
[11]Macfarlan JA agreeing and Meagher JA dissenting.
[12]Ibid [93]-[95].
Beazley ACJ, having referred to the similarity of some work done by barristers and solicitors,[13] and the fact that both barristers’ and solicitors’ time can be legally quantified for the purpose of costs,[14] concluded that nothing in either Guss or Cachia excluded barristers in New South Wales from the Chorley exception.[15]
[13]Ibid [90].
[14]Ibid [90]-[95].
[15]Ibid [96]-[98].
Not all of the features to which Beazley ACJ referred necessarily apply to Victorian barristers, as in Victoria there are scales of barristers’ fees stipulated in the Supreme Court Rules.
Additionally, this Court has a general discretionary power to award costs under s 24(1) of the Supreme Court Act 1986, which Act under s 3(1) defines ‘costs’ to include ‘fees, charges and disbursements’. Therefore, I consider that costs, for the purposes of s 24(1), include barristers’ fees.
Being of the view that the Court has a discretionary power to award costs to the plaintiff, I consider it appropriate in this case, which involved at least some complexity, to award him part of his costs.
The order that I will make will be to the effect that the defendant pay the plaintiff his fees as a barrister for appearances and for barrister’s work associated with those appearances on a standard basis together with disbursements reasonably incurred in connection with this proceeding, but such order does not include costs for any work that would ordinarily be performed by a solicitor. In default of agreement, I will order that the costs and disbursements that I have awarded be fixed by the Costs Court.
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