Pentelow v Bell Lawyers Pty Ltd

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Case Copied 73 min read

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150
Hearing dates: 10 August 2017
Decision date: 13 July 2018
Before: Beazley ACJ at [1];
Macfarlan JA at [121];
Meagher JA at [122]
Decision:

(1)   Summons for judicial review allowed in part;

 

(2)   Set aside the orders of the District Court made on 25 August 2016;

 

(3)   Remit the matter to the District Court to determine in accordance with law;

 

(4)   The respondent to pay the applicant’s costs of the summons for judicial review;

 (5)   Note that the intent of order 3 is that the District Court remit the matter to the Review Panel to deal with in accordance with law, whether that be to undertake the assessment of the costs to which the applicant is entitled, or to further remit the matter to a costs assessor to undertake the assessment.
Catchwords: COSTS – whether Chorley exception applies to barristers – whether applicant, a barrister litigant who retained solicitors and senior counsel in proceedings, was self-represented – whether Chorley exception applied to applicant in circumstances where applicant retained legal representatives but also undertook legal work herself
Legislation Cited: Civil Procedure Act 2005 (NSW)
Legal Profession Act 1987 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Reform Act 1993 (NSW)
Legal Profession Regulation 2005 (NSW)
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Application Act 2014 (NSW)
Legal Profession Uniform Law Application Regulation 2015 (NSW)
New South Wales Bar Association Barristers’ Conduct Rules (8 August 2011)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690
Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538
Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617
Atlas Corp Pty Ltd v Kalyk [2001] NSWCA 10
Bechara v Bates [2016] NSWCA 294
Branson v Tucker [2012] NSWCA 310
Burford v Allan [1998] SASC 6693
Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14
Coshott v Spencer [2017] NSWCA 118
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Dobree v Hoffman (1996) 18 WAR 36
Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203; [2004] NSWCA 154
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036
Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48
Garnett v Bradley (1878) 3 App Cas 944
Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576
Guss v Veenhuizen (No 2) (1976) 136 CLR 47; [1976] HCA 57
Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd (2004) 234 LSJS 66; [2004] SASC 161
Hawthorn Cuppaidge & Badgery v Channell (1992) 2 Qd R 488
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Khan v Lord…
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Details
Case
[2018] NSWCA 150
Decision Date

CaseChat Overview and Summary

The applicant, a barrister, sought judicial review of a District Court order concerning costs. The dispute arose from the applicant's entitlement to costs in underlying proceedings where she had acted as a litigant in person, despite having retained solicitors and senior counsel. The Court of Appeal of New South Wales was required to determine whether the *Chorley* exception to the general rule that a successful party should recover their costs applied to a barrister litigant in circumstances where they had engaged other legal representatives but also performed legal work themselves.

The central legal issue was whether the applicant could be considered "self-represented" for the purposes of the *Chorley* exception, which allows for the recovery of costs incurred in engaging legal representation even by a litigant in person, where the litigant has acted reasonably. The court had to consider the extent to which the applicant's own legal work and the engagement of external counsel impacted her status as a litigant in person and the applicability of the *Chorley* exception.

The Court of Appeal allowed the summons for judicial review in part, setting aside the District Court's orders of 25 August 2016. The matter was remitted to the District Court to determine in accordance with law, with the intention that the District Court would remit the matter to the Review Panel to deal with the assessment of costs. The respondent was ordered to pay the applicant’s costs of the summons for judicial review.

Orders

Orders of the court

(1) Summons for judicial review allowed in part;

(2) Set aside the orders of the District Court made on 25 August 2016;

(3) Remit the matter to the District Court to determine in accordance with law;

(4) The respondent to pay the applicant’s costs of the summons for judicial review;

(5) Note that the intent of order 3 is that the District Court remit the matter to the Review Panel to deal with in accordance with law, whether that be to undertake the assessment of the costs to which the applicant is entitled, or to further remit the matter to a costs assessor to undertake the assessment.

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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