Macfarlan JA at [1]; Leeming JA at [2]; Brereton JA at [8].
Decision:
1. Allow the appeal, with costs;
2. Set aside the orders made in the District Court on 24 July 2020;
3. In lieu thereof, dismiss the application for a personal costs order, with costs.
4. Declare that in sending the papers to the Legal Services Commissioner the District Court failed to observe the requirements of procedural fairness.
Catchwords:
COSTS – Orders against non-parties – Personal costs orders against lawyers – Application for such orders should be made at conclusion of proceedings – Whether judge had regard to irrelevant considerations
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Muriniti v Kalil [2022] NSWCA 109
Case
[2022] NSWCA 109
Decision Date
CaseChat Overview and Summary
The appeal concerned an application for a personal costs order against a solicitor, Mr. Kalil, made by the primary judge in the District Court of New South Wales. The applicant, Ms. Muriniti, sought to uphold this order, which directed Mr. Kalil to pay a portion of the costs incurred by the respondents in defending proceedings that had been dismissed. The core of the dispute revolved around whether the primary judge had erred in making this order against Mr. Kalil personally.
The central legal issue before the Court of Appeal was whether the primary judge had properly exercised her discretion in making a personal costs order against Mr. Kalil. Specifically, the court had to determine if the judge had taken into account irrelevant considerations or failed to consider relevant ones when deciding to impose personal liability on the solicitor for the respondents' costs. The appeal also raised questions about the appropriate timing for such applications and the principles governing the imposition of personal costs orders against legal practitioners.
The Court of Appeal found that the primary judge had erred in her approach. Her Honour had considered the fact that Mr. Kalil had not been joined as a party to the proceedings until after the substantive hearing had concluded, and that the respondents had not sought costs against him until that point. The Court of Appeal held that while the timing of an application for a personal costs order is a relevant consideration, it should not be determinative, particularly where the conduct in question occurred during the proceedings. The court emphasised that the focus should be on the solicitor's conduct and whether it warranted a personal costs order, rather than the procedural steps taken by the parties. The court concluded that the primary judge had impermissibly fettered her discretion by placing undue weight on the timing of the application.
The Court of Appeal allowed the appeal, set aside the primary judge's order for a personal costs order against Mr. Kalil, and remitted the matter to the primary judge for redetermination according to law.
Orders
Orders of the court
23.
([488]). Her Honour made the orders which have been set out above. [48]