Mendonca v Legal Services Commissioner (No 2)

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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]

  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…

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Details
Case
[2020] NSWCA 145
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were the Legal Services Commissioner and Mr Mendonca. The dispute concerned an application by Mr Mendonca for an order that the Legal Services Commissioner pay his costs of an appeal. The court hearing this matter was the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the general rule that costs follow the event should apply to the Commissioner's application. This involved considering the specific circumstances of the case and whether there were any exceptional reasons to depart from the usual order.

The Court of Appeal applied the general rule that costs follow the event, finding no exceptional circumstances to justify a departure. The Court reasoned that the Commissioner had been successful in its opposition to Mr Mendonca's application.

Accordingly, the Court of Appeal dismissed the motion dated 19 May 2020 and ordered that Mr Mendonca pay the Legal Services Commissioner's costs of the motion.

Orders

Orders of the court

Dismiss the motion dated 19 May 2020 with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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