Muriniti v Kalil

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.