Muriniti v Mercia Financial Solutions Pty Ltd

The applicant, a legal practitioner, appealed to the New South Wales Court of Appeal against personal costs orders made against him by the primary judge. These orders were made pursuant to Schedule 2 of the *Legal Profession Uniform Law Application Act 2014* (NSW) and section 99 of the *Civil Procedure Act 2005* (NSW). The applicant had acted as the legal practitioner for the defendant in the proceedings below, where he had made allegations of fraudulent misrepresentation and conspiracy without any proper evidentiary basis, thereby breaching his professional ethical duties.

The Court of Appeal was required to determine several legal issues. Firstly, it considered whether leave to appeal was required by a legal practitioner subject to a third-party costs order, and whether the appeal fell within the exception to the leave requirement for decisions not solely as to costs. Secondly, the Court examined whether the applicant had made a sufficient attempt to satisfy the requirements for challenging an earlier decision of the Court of Appeal as "plainly wrong." Finally, the Court addressed whether the applicant had been denied procedural fairness, either by the primary judge failing to consider all his arguments or by treating findings from the substantive judgment as beyond challenge for the purposes of the costs application.

The Court reasoned that leave to appeal was not required under section 101(2)(c) of the *Supreme Court Act 1970* (NSW) because the decision under appeal was not one "as to costs only," given the nature of the personal costs orders sought against a legal practitioner. The Court found that the applicant had made no real attempt to meet the stringent requirements for challenging a prior appellate decision as plainly wrong. Furthermore, the Court held that there was no denial of procedural fairness, as the applicant's arguments in the costs application were largely a repetition of those rejected in the substantive judgment, and he had been afforded a full opportunity to explain his conduct and rebut the statutory presumption arising under clause 6 of Schedule 2 to the *Legal Profession Uniform Law Application Act 2014* (NSW). The Court affirmed that in applications for costs against a legal practitioner, it is entitled to rely on findings made in the substantive judgment, provided the practitioner has had a fair opportunity to respond.

The appeal was dismissed with costs.