Mendonca v Legal Services Commissioner (No 2)

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Mendonca v Legal Services Commissioner (No 2) [2020] NSWCA 145

Hearing dates:

On the papers

Decision date:

16 July 2020

Before:

Basten JA; Leeming JA; McCallum JA

Decision:

Dismiss the motion dated 19 May 2020 with costs

Catchwords:

COSTS — party/party — appeals — general rule that costs follow the event applied

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Legal Profession Uniform Law Application Act 2014 (NSW), Sch 9 Pt 5 cl 23

Uniform Civil Procedure Rules 2005 (NSW), r 41.2

Cases Cited:

Council of the Law Society of NSW v DXW [2019] NSWCATOD 101

Mendonca v Legal Services Commissioner [2019] NSWSC 409

Mendonca v Legal Services Commissioner [2020] NSWCA 84

Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11

Category:

Costs

Parties:

Gerard Mendonca (Applicant)
Legal Services Commissioner (Respondent)

Representation:

Counsel:
Applicant self-represented
R Withana (Respondent)

Solicitors:
Office of the Legal Services Commissioner (Respondent)

File Number(s):

2019/142142

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Civil

Citation:

Mendonca v Legal Services Commissioner [2019] NSWSC 409

Date of Decision:

16 April 2019

Before:

Wilson J

File Number(s):

2018/00214619

Judgment

1. THE COURT: On 7 May 2020, the Court determined Mr Mendonca’s application for leave to appeal from the decision of a judge of the Common Law Division. The Court dismissed the application for leave to appeal with costs: Mendonca v Legal Services Commissioner [2020] NSWCA 84.

2. By Notice of Motion dated 19 May 2020, Mr Mendonca seeks to have the costs order varied so as to require the respondent to pay Mr Mendonca’s costs (which would be confined to disbursements, since he represents himself). Alternatively, Mr Mendonca seeks an order that each party pay its own costs.

3. The motion should be dismissed, and the costs order made on 7 May 2020 should stand, for the following reasons.

4. The relevant background is that, after unsuccessfully suing his former employer, Mr Mendonca lodged formal complaints against the lawyers who acted for him in those proceedings, including a complaint against the solicitor. The Law Society of New South Wales closed that complaint without taking any disciplinary action. Mr Mendonca then requested the Commissioner of Legal Services to undertake an internal review of that decision. The Commissioner declined to do so. The decision of the primary judge was to dismiss Mr Mendonca’s application for judicial review of the Commissioner’s decision. [1]

   1. Mendonca v Legal Services Commissioner [2019] NSWSC 409.

5. While costs are in the discretion of the Court,[2] the general rule or “usual order” is that costs follow the event. [3] In Oshlack v Richmond River Council, [4] McHugh J (who was in dissent as to the outcome but whose discussion of the principles is often cited) explained at [67]:

“The expression the ‘usual order as to costs’ embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an…