Pentelow v Bell Lawyers Pty Ltd (ACN 114 524 724) trading as Bell Lawyers

[2016] NSWDC 186

District Court

New South Wales

Medium Neutral Citation:	Pentelow v Bell Lawyers Pty Ltd (ACN 114 524 724) trading as Bell Lawyers [2016] NSWDC 186
Hearing dates:	5 August 2016; further submissions to 17 August 2016
Date of orders:	25 August 2016
Decision date:	25 August 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Summons dismissed (2) Cost reserved, with liberty to apply
Catchwords:	COSTS – appeal under s 384 Legal Profession Act 2004 (NSW) – Chorley exception – barrister retains solicitor and senior counsel to appear on her behalf – whether barrister litigant entitled to profit costs for work done by her in addition to work carried out on her behalf – held Chorley exception for solicitors acting for themselves should not be extended to barristers – notice of contention as to whether barrister litigant’s costs were “costs payable” under the Civil Procedure Act 2005 (NSW) – whether costs order in favour of barrister litigant made pursuant to s 75A Supreme Court Act 1970 (NSW) or s 98 Civil Procedure Act 2005 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 3, 4, 98, 99 and Sch 1 Judiciary Act 1903 (Cth), s 55B Legal Profession Act 2004 (NSW), s 384 Legal Profession Uniform Law 2014 Supreme Court Act 1970 (NSW), ss 75A and 76
Cases Cited:	Ada Evans Pty Ltd v Santisi [2014] NSWSC 538 AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSC 37 Atlas v Kalyk [2001] NSWCA 10 Broadbent v Medical Board of Australia [2015] FCA 717 Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 Croker v Commissioner of Taxation (2002) 124 FCR 286; [2002] FCA 1432 Dobree v Hoffman [1996] WAR 36 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036 Finn v McIntosh (District Court of NSW, Johnstone DCJ, 23 December 2010, unreported) Fong v Chan (1999) 46 OR (3d) 330, [1999] OJ No 4600 George v Fletcher (Trustee) (No 2) [2010] FCAFC 71 Guss v Veenhuizen (No 2) (1976) 136 CLR 47 Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd [2004] SASC 161 Hawthorn Cuppaidge & Badgery v Channell (1992) 2 Qd R 488 Hunter v City of Joondalup [2016] WASC 444 Khan v Lord Chancellor [2003] 1 WLR 2385 Khera v Jones [2006] NSWCA 85 Kuny v Beamish [2003] MJ No 97, [2003] MBQB 47 London Scottish Benefit Society v Chorley, Crawford and Chester [1884] 13 QBD 872 Malkinson v Trim [2003] 1 WLR 463 Malouf v Malouf [2006] NSWCA 83 McGuirk v UNSW [2010] NSWCA 104 McIlwraith v Ilkin (Costs) [2007] NSWSC 1052 McIlwraith v Ilkin [2008] NSWCA 11 Metwally v University of Wollongong (1985) 60 ALR 68 Milillo v Konnecke [2009] NSWCA 109 Muldoon v Church of England Homes Burwood (2011) 80 NSWLR 282 Murphy v Arnoldus-Lewis [2009] NSWCA 142 Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111 Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers (No 2) [2013] NSWSC 288 Pritchard Englefield (a firm) and Another v Steinberg (Supreme Court Costs Office, Master Rogers, 27 March 2003) R v Boswell, R v Halliwell [1987] 2 All ER 513 R v Stafford Stone and Eccleshall Magistrates' Court, ex parte Robinson [1988] 1 All E R 430 Radich v Kenway [2014] QDC 60 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39 Santisi v New South Wales Bar Association [2006] NSWADT 4 Short v Crawley (No 45) [2013] NSWSC 1541 Soia v Bennett [2014] WASCA 27; (2014) 46 WAR 301 Von Reisner v Commonwealth (No 2) [2008] FCA 430 Waller v Freehills (2009) 258 CLR 67 Walsh v Bennetts (No 2) [2015] WASC 122 Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Wang v Farkas (No 4) [2014] NSWCA 234 Wilkie v Brown [2016] NSWCA 128 Winn v Garland Hawthorn Brahe (Ruling No. 1) [2007] VSC 360 Worchild v Peterson [2008] QCA 26
Texts Cited:	Ritchie’s Uniform Civil Procedure
Category:	Procedural and other rulings
Parties:	Plaintiff: Janet Pentelow Defendant: Bell Lawyers Pty Ltd (ACN 114 524 724) trading as Bell Lawyers
Representation:	Counsel: Plaintiff: Mr L Robberds QC Defendant: Ms M Castle   Solicitors: Plaintiff: Castagnet Lawyers Defendant: Bell Lawyers
File Number(s):	2015/355803
Publication restriction:	None

Judgment

Background

1. The plaintiff, a barrister, brings an appeal under s 384 Legal Profession Act 2004 (NSW) (“the LPA”) against the determination of the Review Panel of 23 October 2015 refusing her entitlement to costs claimed for work she did on her own behalf in proceedings where she was a party represented by solicitors and senior counsel. The entitlement of the plaintiff’s solicitor and senior counsel were, subject to adjustments, confirmed, and no appeal is brought in relation to that part of the assessment.

2. The plaintiff had commenced proceedings in the Local Court against the defendant, an incorporated legal practice, after a dispute about her professional fees for appearing on behalf of the defendant’s client (Milillo v Konnecke [2009] NSWCA 109). The plaintiff initially was represented by a solicitor, Mr Muggleton and, in the Supreme Court, by senior counsel: Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers [2013] NSWSC 111. Although not appearing for herself at the hearings, the plaintiff represented herself on four directions hearings and to take judgment.

3. In Pentelow v Bell Lawyers Pty Ltd trading as Bell Lawyers (No 2) [2013] NSWSC 288, Schmidt J made orders disposing of the whole proceedings rather than remit them to the Local Court, for the following reasons:

“[1] …Rather than seeking orders returning the matter to the Local Court, as s 41 of Local Court Act 2007 envisages, they have agreed on orders finally disposing of the first instance proceedings. The defendant also seeks an order under the Suitors Fund Act 1951.

[2] The just, quick and cheap course envisaged be taken by s 56 of the Civil Procedure Act 2005, is certainly to make orders in the terms which the parties have agreed. I was referred to a number of cases where the view was taken that such orders could be made, given the provisions of s 75A of the Supreme Court Act 1970 and Rule 50.16 of the Uniform Civil Procedure Rules 2005 (see Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230; Pacific Asia Express Pty Ltd v Renegade Gas Pty Ltd [2010] NSWSC 1188 at [33] - [41]; Pool Data Systems Pty Ltd v Bayliss [2011] NSWSC 224 at [144] - [145] and Owners Strata Plan 4003 v Mustafa [2012] NSWSC 780).

[3] In this case, the appeal having resolved various questions of law lying between the parties, they have been able to agree on the orders which should be made in relation to the underpinning factual controversy between them which was not addressed in the Local Court. In Thaina Town (On Goulburn) Pty Ltd it was observed at [103]:

“103 This Court must be concerned that the course of administration of justice in this State does not impose unnecessary cost burdens on parties by adopting a narrow interpretation of statutory powers conferred upon the Court to ensure the just and efficient administration of justice. Where no new findings of primary fact are required to be made, this Court should exercise a power conferred upon it in wide terms so as to ensure that the costs of legal disputation is minimised and thereby apply the guiding principle in s56 of the Civil Procedure Act 2005 to the exercise of powers conferred by an Act other than that Act or by Rules of Court, so as to facilitate the just, quick and cheap resolution of the issues in dispute in civil proceedings.””

4. The defendant then made an application for assessment of costs of the bill provided by the plaintiff’s solicitors following Schmidt J’s orders. That bill (totalling $144,425.45) included not only solicitors’ costs in the Local Court ($35,883.03) and Supreme Court ($20,416) and senior counsel’s fees ($37,262.50), but also claims by the plaintiff for her own legal work in the Local Court ($22,605.00) and in the Supreme Court ($22,275.00). The plaintiff’s claims for these sums, which were rejected both by the costs assessor and the Review Panel, are the subject matter of this appeal.

The “Chorley exception”

5. The plaintiff’s entitlement to costs for her own legal work, as well as for work done by her solicitor and senior counsel, are submitted to arise as an extension of the “Chorley exception”, an exception to the rule forbidding such costs to litigants in person unless they are solicitors: London Scottish Benefit Society v Chorley, Crawford and Chester [1884] 13 QBD 872). The plaintiff submits that this exception should extend to barristers, whether or not the barrister retains other legal representatives as well.

6. The entitlement of the plaintiff to make such a claim for her own costs, in circumstances where she had briefed solicitors and another barrister to represent her, was the subject of animated correspondence between the parties on assessment. The costs assessor disallowed the whole sum claimed for the work the plaintiff had done on her own behalf, both on the basis that the Chorley exception did not extend to barristers, and because Ms Pentelow had instructed first solicitors and, in the Supreme Court, senior counsel.

7. The Review Panel, in the determination appealed from, affirmed both this decision and the reasons given by the Costs Assessor, stating (at paragraph 20):

“It is evident to the Panel on considering the Assessor’s file and his reasons that he carefully considered the submissions of both parties in relation to this issue which he dealt with in detail at paragraph 10 of his Reasons. In essence it appears to the Panel that the Assessor was of the view that [the plaintiff] was not a self-represented lawyer in either the Local Court proceedings or the Supreme Court proceedings because she had instructed solicitors to appear for her in the Local Court proceedings. Furthermore she had instructed solicitors and counsel to appear for her in the Supreme Court proceedings and she did not appear as junior counsel to Senior Counsel in the Supreme Court proceedings. The Assessor also determined that in NSW the “Chorley exception” only applied to solicitors and not to barristers. The Panel is of the opinion that it was open to the Assessor to make the findings which he did in this regard and the Panel finds no basis for altering the Assessor’s determination on this issue. Accordingly, this Ground it not made out.”

The Grounds of Appeal

8. The Grounds of Appeal in the Summons are as follows:

“1 The Review Panel erred in law in determining that the plaintiff legal practitioner and barrister could not recover the costs of any professional work undertaken by her in the Local Court or the Supreme Court proceedings (“the proceedings”) because ‘the Chorley exception’ only applied to solicitors and not barristers in New South Wales.

2 The Review Panel should have determined that ‘the Chorley exception’ applied to legal practitioners in NSW, that is, to solicitors and barristers: Pennington v Russell (No 2) [1883] 4 NSWLR (Eq) 41; Ogier v Norton (1904) 29 VLR 536; R v Boswell [1987] 1 WLR 705; Cachia v Hanes (1994) 179 CLR 403; Khan v Lord Chancellor [2003] 1 WLR 2385; Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036; Zikmann v Randwick Council [2004] NSWLEC 445; Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538.

3 The Review Panel erred in law in determining that even if the ‘Chorley exception’ applied to barristers in NSW the plaintiff could not recover the costs of any of the professional work undertaken by her in the proceedings because she retained or instructed other legal practitioners who acted and appeared for her in the proceedings “and she did not appear as a junior counsel to senior counsel in the Supreme Court proceedings.”

4 The Review Panel should have determined that the ‘Chorley exception’ applied to a legal practitioner who is a party to proceedings who carries out professional work in the proceedings whether or not the work is appearing as an advocate or as junior counsel or non-appearance preparatory work including advising or drafting documents such as pleadings and affidavits and whether or not he or she sues in person or by a solicitor and irrespective of whether or not he or she carries out some or all of the work in the case.

5 The Review Panel erred in law in determining that the plaintiff could not recover the costs of the preparatory and other professional work undertaken by her in her own case as well as the costs of the work performed by the other lawyers that carried out work in the proceedings: Martin v Armstrong (1916) 33 WN (NSW) 50; Hawthorn, Cuppaidge & Badgery v Channell [1992] Qd R 488; Farkas v Northcity Financial Services Pty Ltd (supra).

6 The Review Panel erred in law in failing to assess what was a fair and reasonable amount of costs for the professional work undertaken by the plaintiff in the proceedings.”

The Notice of Contention

9. The defendant brings a Notice of Contention in relation to the decision of the Costs Review Panel, arguing that the costs are not recoverable under Schmidt J’s orders because they are not “costs” under s 99 Civil Procedure Act 2005 (NSW) (“the Civil Procedure Act”), as they do not meet the statutory definition of “costs payable” under s 3.

10. The Notice of Contention was filed out of time but this point was not taken by the plaintiff. However, a s 75A argument (s 75A Supreme Court Act 1970 (NSW)) was raised, in part in response to the Notice of Contention.

The Section 75A argument

11. The plaintiff contends that Schmidt J made orders for costs of the Supreme and Local Courts under s 75A Supreme Court Act 1970 (NSW) and not under s 98 Civil Procedure Act 2005 (NSW).

12. Section 75A is one of the few remaining provisions after large sections of the Act (and, in particular, s 76 Supreme Court Act, which empowered that court to award costs) were repealed. Section 76 has now been replaced by s 98 Civil Procedure Act, which grants any court to which the Act applies the power to award costs).

13. This argument was never put to the Assessor or to the Review Panel, and counsel for the defendant submits it cannot therefore be an error of law made in the course of the determination and should be disregarded. At all relevant times during the costs assessment the plaintiff’s case was that the costs order was made under s 98 Civil Procedure Act.

14. The raising of a ground of appeal inconsistent with the way in which the costs assessment was conducted is generally difficult to justify, and I note the reliance on Metwally v University of Wollongong (1985) 60 ALR 68 in other appeals from costs assessments such as AJH Lawyers v Mathieson Nominees Pty Ltd [2015] VSC 37 and Radich v Kenway [2014] QDC 60.

15. There are two reasons why I consider that I should determine the s 75A argument. The first is that courts have, on occasion, permitted parties to raise arguments not thought of before, notwithstanding Metwally (such as in Broadbent v Medical Board of Australia [2015] FCA 717). Failure to identify the relevant legal principles or evidence is a problem courts (especially appellate courts) have to deal with on a regular basis, and courts may take a flexible approach, depending upon the individual circumstances of the case.

16. The second (and more significant) reason is that this argument is a reply to the defendant’s reliance upon obiter comments in Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 and Wang v Farkas (No 4) [2014] NSWCA 234 to the effect that the Chorley exception does not survive the provisions of the Civil Procedure Act, a submission relevant to the notice of contention. As Ms Castle is able to meet the argument, I propose to allow it to proceed, having regard to the novel and difficult issues Ms Castle raised about the future of the Chorley exception (not only in relation to barristers, but generally) in relation to her client’s notice of contention.

The issues for determination

17. Much of the argument proceeded on the basis of the degree to which (if at all) the Chorley exception could be extended. However, the grounds for appeal, the reasons given by the Review Panel and s 75A / notice of contention demonstrate that the issues for determination go well beyond merely extending the Chorley exception from self-represented solicitors to barristers.

18. The parties each provided me with authorities in support of their respective arguments and urged me to distinguish or, in the case of Mr Robberds QC, to regard as wrongly decided, decisions to the contrary. However, as Ms Castle notes in her written submissions (at paragraph 8), cases which do not decide the Chorley exception in relation to barristers, or which reflect a statutory costs regime with materially different provisions, need to be viewed in context, for the reasons explained by Campbell J in Muldoon v Church of England Homes Burwood (2011) 80 NSWLR 282 at [39]-[40]:

“[39] Reasons for judgment are not authority for a matter that has been assumed, rather than actually decided, in the course of those reasons for judgment: Baker v R [1975] AC 774 at 788; Archer v Howell (1992) 7 WAR 33 at 46; Savouts v Minister for Immigration and Multicultural Affairs [2000] FCA 1059 at [32]–[33]; R (Kadhim) v Brent London Borough Council Housing Benefit Review Board [2001] QB 955 at [20]–[25], [33]–[39], 962–963, 965–966; Markisic v Commonwealth [2007] NSWCA 92 ; 69 NSWLR 737 at [56].

[40] In CSR Ltd v Eddy [2005] HCA 64; (2005) 226 CLR 1 at [13] Gleeson CJ, Gummow and Heydon JJ said:

… where a proposition of law is incorporated into the reasoning of a particular court, that proposition, even if it forms part of the ratio decidendi, is not binding on later courts if the particular court merely assumed its correctness without argument. “[T]he presidents [sic], … sub silentio without argument, are of no moment.” R v Warner (1661) 1 Keb 66 at 67 [83 ER 814 at 815].

By a footnote to the first sentence just quoted, their Honours added:

Baker v R [1975] AC 774 at 787–789 per Lords Diplock, Simon of Glaisdale and Cross of Chelsea and Sir Thaddeus McCarthy (holding the Court of Appeal for Jamaica not bound by a Privy Council decision in which “the Board were doing no more than assuming for the purpose of disposing of the particular case, and without any further consideration on their own part, that the proposition of law relevant to the issue of fact in dispute between the parties to the appeal had been formulated correctly by counsel for both parties in agreement with one another”). See also National Enterprises Ltd v Racal Communications Ltd [1975] Ch 397 at 405–406 per Russell LJ; at 407 per Cairns LJ; at 408 per Sir John Pennycuick; Barrs v Bethell [1982] Ch 294 at 308 per Warner J; Re Hetherington [1990] Ch 1 at 10 per Sir Nicolas Browne-Wilkinson V-C.”

19. The parties have each provided bundles of authorities for my consideration, inviting me to refuse to follow, distinguish and/or reconcile differing views set out in a series of judgments reflecting differing views as to the nature and extent of a rule of exception which has notoriously been described by the High Court in Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14 (“Cachia”) as “somewhat anomalous” and “somewhat dubious”. Some of the issues I have been invited to consider include:

1. The correct approach to the applicability of an interstate intermediate appellate court’s rejection of the extension of the Chorley principle to barristers: Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd [2004] SASC 161 at [116] – [134] and of Finn v McIntosh (District Court of NSW, Johnstone DCJ, 23 December 2010, unreported), both of which Ms Castle submits are binding (the former in accordance with Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 and the latter by reason of the District Court’s appellate jurisdiction on costs appeals) and both of which Mr Robberds QC submits are wrong in law.

2. The expressions of views as to the general undesirability of the Chorley exception in a series of judgments by courts which nevertheless apply Chorley (for example, Khera v Jones [2006] NSWCA 85 at [6]; McIlwraith v Ilkin (Costs) [2007] NSWSC 1052).

1. The effect of obiter expression as to the continued applicability of the Chorley exception in light of s 3 Civil Procedure Act 2005 (NSW) in Wang v Farkas [2014] NSWCA 29 at [26] – [37] and Wilkie v Brown [2016] NSWCA 128 at [33] – [49]).

2. The meaning of Bergin J’s asserted silence on the applicability of the Chorley exception to barristers in Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036. This was an application by a barrister for interest on his Chorley exception costs, after he had been awarded such costs in an assessment which was not appealed from. As this finding by the costs assessor was not challenged or criticised by Bergin J as an impermissible extension of the Chorley exception, Mr Robberds QC submits that her Honour must have approved it. (In my view, the more concerning issue is that Farkas v Northcity Financial Services Pty Ltd demonstrates that costs assessors are making inconsistent determinations in relation to the extension of the Chorley exception to counsels’ fees, an undesirable situation which may be of relevance to any application for leave to appeal this judgment).

3. The correct approach to two decisions of the New South Wales Court of Appeal (Wang v Farkas, at [12] and [29], and Khera v Jones, at [6]), both of which refer with approval to the intermediate appellate court’s rejection of the Chorley exception in Dobree v Hoffman [1996] WAR 36. Dobree v Hoffman has been doubted and not followed by the same court (differently constituted) which handed down this decision: Soia v Bennett [2014] WASCA 27; (2014) 46 WAR 301.

4. Whether Guss v Veenhuizen (No 2) (1976) 136 CLR 47 amounts to an extension to the Chorley exception by permitting a self-represented solicitor whose name was not on the High Court roll to claim costs under the Chorley exception.

5. The impact of decisions in other jurisdictions extending the Chorley exception to barristers (Khan v Lord Chancellor [2003] 1 WLR 2385).

20. While the resolution of so many warring decisions appears daunting, I consider there is a clear strand of authority consistently opposing the extension of the Chorley principle.

21. As Daubney J correctly stated in Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 at [16]:

“[16]There is no authority which supports the proposition that the “anomalous” and “somewhat dubious” exception in favour of a self-represented solicitor extends to a self-represented barrister. In the absence of clear authority, I am not prepared to extend the ambit of an exception which is itself of such questionable application.”

22. This was also the view expressed by Kaye J in Winn v Garland Hawthorn Brahe (Ruling No. 1) [2007] VSC 360 and by Johnstone DCJ in a decision of this court, Finn v McIntosh. As is set out in more detail below, I concur with their Honours’ reasoning for so doing in each of these cases, and I similarly concur with (and am bound to follow) the decision of the Full Court of the Supreme Court of South Australia to the same effect in Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd).

23. Mr Robberds QC submits that these are wrongly decided and invites me to prefer the judgments I have set out in my summary at paragraph 19 above. Among these is the more recent decision of Ada Evans Pty Ltd v Santisi [2014] NSWSC 538, in which leave to appeal Local Court’s decision to make a costs award in favour of a self-represented barrister was refused, and two decisions in the United Kingdom where self-represented barristers have been successful in such claims.

24. I have set out in more detail below my reasons for preferring to adopt the approach taken by the authorities to which I refer in paragraphs 21 and 22 above. As I propose to dismiss the summons, my observations concerning the notice of contention (set out at the end of the judgment) are brief.

The grounds of appeal in the summons

25. The parties agree that the issues listed in the Summons (see above) are whether the Review Panel erred in each of its reasons for dismissing the appeal, namely holding that the ‘Chorley exception’ applied only to solicitors and not to barristers in New South Wales and in additionally holding that the plaintiff is not entitled to claim fees when she retained solicitors and counsel to appear for herself.

26. I shall deal first with the arguments about the extension of the Chorley exception from solicitors to barristers.

Extension of the “Chorley exception” to barristers

27. The Chorley exception, when first enunciated, was limited to solicitors as opposed to other members of the public, no matter how well-qualified, for good reason. Litigants in person are not entitled, absent legislation to the contrary, to compensation for the time spent in preparing or conducting legal proceedings. The rationale for this rule (to quote Corboy J in Hunter v City of Joondalup [2016] WASC 444 at [8]) is the “long established common law rule” that cost orders are intended as a partial indemnity for the costs incurred by a successful party where they have engaged legal representation in proceedings. As is noted in Cachia at 410 – 411 (citing the Statute of Gloucester), this is because the costs which might be awarded to a litigant extended to the legal costs of the suit, “but not to the costs and expences of his travell and losse of time [original spelling retained]”.

28. As Corboy J goes on to note, a successful litigant is entitled to an order for costs to the extent that he has incurred a liability to pay the practitioner who appeared for him at the hearing, but is not otherwise entitled to “compensation” for the time he spent in preparing for and appearing at the trial or the hearing of the appeal.

29. The High Court in Cachia sets out compelling reasons for not permitting litigants in person to claim compensation of this kind, many of which are repeated by Brereton J in McIlwraith v Ilkin [2007] NSWSC 1052 at [25]. As the majority judgment in Cachia noted, all too frequently, the burden of ensuring that the necessary work of a litigant in person is done falls on the court administration or the court itself, and the court process lengthened and made more difficult as a result. (Two recent examples of this may be seen in McGuirk v UNSW [2010] NSWCA 104 at [43] and Walsh v Bennetts (No 2) [2015] WASC 122). The benefits of these additional indulgences litigants in person obtain as a result carry with them the corresponding burden of not being able to claim for the time spent preparing for or appearing in the proceedings. The “somewhat anomalous” and “somewhat dubious” Chorley exception serves to emphasize this general prohibition, as the High Court notes in Cachia.

30. The extent of this exception to date has been for solicitors acting on their own behalf (or instructing counsel to appear) to claim costs for work of a legal nature that has been carried out, in accordance with the limits of the exception as set out in London Scottish Benefit Society v Chorley, Crawford and Chester:

“When an ordinary party to a suit appears for himself, he is not indemnified for loss of time; but when he appears by solicitor, he is entitled to recover for the time expended by the solicitor in the conduct of the suit. When an ordinary litigant appears in person, he is paid only for costs out of pocket. He cannot himself take every step, and very often employs a solicitor to assist him: the remuneration to the solicitor is money paid out of pocket. When, however, we come to the case of a solicitor, the question must be viewed from a different aspect. … The true rule seems to be that when a solicitor brings or defends an action in person, he is entitled to the same costs as an ordinary litigant appearing in person, subject to this restriction, that no costs which are really unnecessary can be recovered.”

(See also the summary of these principles by Basten JA in Wang v Farkas [2014] NSWCA 29 at [10]-[11]).

31. There was a possible extension of this exception in Guss v Veenhuizen. The appellant (Mr Guss) acted as solicitor on the record and instructed counsel on his own behalf. After the respondent was ordered to pay Mr Guss’s costs of the proceedings, the respondent’s solicitors took a preliminary objection to any payment to Mr Guss, on the basis that Mr Guss was not entitled to practise in the High Court, his name not having been entered on the relevant register of practitioners under s 55B Judiciary Act 1903 (Cth), as well as because he was not represented by a solicitor. It would appear that his name not being on this register was due to an error by the High Court registrar.

32. Gibbs ACJ, Jacobs and Aickin JJ stated (at 51):

“The appellant did not claim costs incurred by him in retaining the professional services of a solicitor in his litigation. He appeared in person. He sought taxation of costs on the basis that he was a solicitor who acted for himself and did so according to the well-established rule of practice which entitles a person, being a solicitor, to certain professional costs in those circumstances: London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872; [1881–5] All ER Rep 1111. See also Tolputt & Co Ltd v Mole [1911] 1 KB 87; 836 (CA). Those authorities establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the court and its officers.”

33. The problem for Mr Guss was not so much that he was a solicitor acting for himself, but that his name was not entered on the relevant role of practitioners who were entitled to appear (and thus to charge fees). Their Honours went on to observe:

“In these circumstances, s 55B of the Judiciary Act does not create a statutory bar to the allowance of professional costs because the appellant does not claim assessment of costs on the basis that they were in respect of work done in a capacity which by force of the statute he was not entitled to exercise. The work was done by him in person and the only question is whether in the special circumstances here existing he was entitled to the benefit of the rule of practice established by the authorities to which we have referred. The answer depends on the true basis of the rule. Since its basis is not one of privilege to a solicitor (in which case it might be argued that the precise qualification must be satisfied) but is that work done by a solicitor can be quantified on a taxation of costs, there is no reason why work done by the appellant whose lack of the precise qualification was the result of an error of an officer of the court, should not have the benefit of the rule of practice. If the error had not been on the part of an officer of the court but had been the fault of the party himself, the court would not attempt to assess his capacity to do the work done by him. He would be regarded as in the same position as an ordinary layman. But when the lack of qualification cannot be regarded as a lack of capacity because it has occurred simply through the error of a court officer, then the principle to which we have referred earlier in these reasons is applicable and the court should treat him as though he had the qualification which brings him within the rule of practice.”

34. Mr Robberds QC submits (written submissions, paragraph 16) that the basis of the rule is that the solicitor does not recover costs in his capacity as a solicitor (though I note Mr Guss in fact needed to be the solicitor on record to brief counsel, direct access not being available in 1976: see Guss at [11]) but because, as a litigant in person who was also a solicitor, his costs were able to be quantified by the court and its officers.

35. Guss is, in my opinion, a very limited extension of the Chorley exception to permit a solicitor whose name was left off the register in error by the High Court registrar, and therefore a case which turns on its own facts. The nature of the objection was a narrow one. A substantial part of the judgment (the majority judgment at [11] – [17]; Murphy and Mason JJ at [1] – [10]) deals with whether Mr Guss’s name could be restored to the register, with the majority not determining this issue because the Chorley exception applied. As Murphy and Mason JJ also agreed that the Chorley exception applied, Mr Guss was able to claim his costs on that basis. It is a case turning on its own narrow facts, and its principal relevance is to restate, in Australia, the rationale for the Chorley exception, namely that the reason for that exception is that the self-represented solicitor’s costs are able to be quantified by the court and its costs assessors (Guss at 51 – 52).

36. Mr Robberds QC submits that the reasons for the extension of the Chorley exception to Mr Guss, this rule “will also apply to a barrister who is a party and appears in person because a barrister’s professional costs are also able to be quantified by the Court and its officers” (written submissions, paragraph 16(d). Is this the case?

Extension of the Chorley exception to barristers in New South Wales

37. As noted above, in New South Wales, the principles underlying the Chorley exception are “settled, subject only to further consideration by the High Court”: Waller v Freehills (2009) 258 CLR 67. The exception has been confirmed in Atlas v Kalyk [2001] NSWCA 10; while a differently composed Court of Appeal expressed the view, in Khera v Jones [6], that Dobree v Hoffman was a better expression of the law, the Chorley exception still applies. What is not settled, however, is that any extension of this exception is permitted to self-represented litigants other than solicitors. That question (not the availability of the Chorley exception) is the issue I am asked to determine.

38. As noted above, first instance decisions in New South Wales, Queensland and Victoria as well as the Full Court of the Supreme Court of South Australia have all considered this question and have held to the contrary. Common to these decisions (for example, Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd at [130] – [131] and Finn v McIntosh at [18]) are warnings that the Chorley exception is just that – an exception, which should not be widened. In Winn v Garland Hawthorn Brahe (Ruling No. 1) at [10], Kaye J, refusing an application by a barrister to claim costs under the Chorley exception noted (at [15]), “the injunction of the High Court that the exception, albeit longstanding, should now be construed narrowly and should not be permitted to expand.”

39. Mr Robberds QC submits that the High Court has not in fact said that the exception should be construed in this way, and that Kaye J overlooks the statement in Guss that the rationale for permitting solicitors to charge is because this enables quantification of such costs to be more easily determined than those claimed by litigants in person (Guss at pp. 51 – 2). However, as Daubney J points out in Murphy v Legal Services Commissioner (No 2) at [7], the High Court in Cachia described the Chorley exception as “limited and questionable” (see also Worchild v Peterson [2008] QCA 26 at [4]), which his Honour thought (and I agree) to be significant.

40. The only decision in New South Wales which is directly in point is Finn v McIntosh. Johnstone DCJ, a judge of this court with very extensive experience in costs assessments, dismissed an appeal from a determination that the plaintiff, a barrister, was not entitled to claim costs for appearing for herself as counsel. (The barrister, Ms McIntosh (nee Carelli) did not appeal from the costs assessor’s ruling that she was not entitled to claim costs for work which would have been performed as a solicitor).

41. The background to Finn v McIntosh was as follows. In Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39, the NSW Court of Appeal recorded orders in favour of Ms Carelli, namely that Mr and Mrs Finn “pay the costs of Ms Carelli of the appeal, the Finns to have a certificate under the Suitors’ Fund Act 1951if so entitled.” The Court also recorded, in the space for both “barrister” and “solicitor” in “Appearances” the headnote, the representation “J Carelli - (in person)”. Did that mean that the barrister was entitled to costs for work she performed for herself?

42. Johnstone DCJ noted at [34]:

“34. Whilst the Chorley exception survives in New South Wales, the High Court has very clearly said that it must not be allowed to expand: Cachia v Hanes (1994) 179 CLR 403.”

43. Johnstone DCJ also noted the doubts expressed as to the Chorley exception generally by Brereton J in McIlwraith v Ilkin (Costs) [2007] NSWSC 1052. However, Brereton J nevertheless made a costs order in favour of the self-represented solicitor and that decision was upheld by the Court of Appeal: McIlwraith v Ilkin [2008] NSWCA 11, and I do not consider it necessary to set out those doubts, informative and well-founded though they are.

44. Johnstone DCJ’s conclusion was that “there is no express statement by a superior court in New South Wales that the Chorley exception extends to self represented barristers” (at [40]) and there were express findings in other courts (such as the Supreme Court of Victoria) that it did not. His Honour concluded:

“Having regard to the anomalous nature of the exception, the criticism of the basis upon which it is said to rest as being unprincipled, and the clear statements that the exception should not be further expanded, I consider that in New South Wales the Chorley exception does not extend to apply to self represented barristers.”

45. While I do not accept Ms Castle’s submissions that judgments of this court on costs are “binding on the Review Panel (and thus on this court) by reason of the District Court’s place in the framework of the appellate structure for appeals” (submissions, paragraph 17, citing Short v Crawley (No 45) [2013] NSWSC 1541 at [66]), I consider this decision should be given the fullest weight of judicial comity, not only because it is directly in point, but also because of Johnstone DCJ’s experience in costs appeals and costs generally.

46. This brings me to Ada Evans Pty Ltd v Santisi. The plaintiff, a barristers’ chambers, was unsuccessful in an application for leave to appeal out of time in an appeal from a judgment by a magistrate had extended the Chorley exception to the plaintiff in Local Court proceedings (a barrister). In Ritchie’s Uniform Civil Procedure (at [42.2.7]) this case is noted as authority for the proposition “barrister litigant entitled to recover costs.” Is this correct?

47. As I have already noted, Adamson J was refusing leave, principally because of the small sum involved ($8,000) rather than deciding the issue. If her Honour had been deciding the issue, she should have been assisted by being provided relevant authorities such as Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd and Finn v McIntosh. Nor do I agree with her Honour’s characterisation of the judgment of Bergin J in Farkas v Northcity Financial Services Pty Ltd as being supportive of the extension of the Chorley exception to barristers. Bergin J’s refusal to award interest on costs to a self-represented barrister did not amount to a considered acceptance of the correctness of the costs assessor awarding that barrister costs.

48. In refusing leave to appeal on proportionality grounds, Adamson J accepted the parties’ assurances that the magistrate had been referred to the relevant authorities. I accept Ms Castle’s submissions that, given the other bases upon which leave to appeal was refused, her Honour’s remarks about the extension of the Chorley principle in those circumstances are obiter and should be viewed in the context in which they were made.

49. If I have erred in this regard, then I would consider that Adamson J wrongly decided this issue, noting that her Honour should have been assisted by being referred to the relevant authorities.

50. Further, Adamson J’s remarks are one of a series made where the court was unable to determine this issue for reasons of the same kind, namely the inverse proportion between the amount of money in question and the complexity of the issues raised. I note Beazley JA’s similar reluctance, in Wilkie v Brown, to determine the Chorley exception extension in proceedings where one party was a litigant in person and the sum involved was small ($5,000). In Murphy v Arnoldus-Lewis [2009] NSWCA 142, the Court of Appeal dismissed an appeal of a like nature (in relation to a Local Court award of $4,313 “expenses” to a non-lawyer by the Local Court where there had clearly been jurisdictional error). Adamson J’s judgment is no more an endorsement of an extension of the Chorley exception to barristers than Murphy v Arnoldus-Lewis is an endorsement of the jurisdictional error from which leave to appeal was refused.

Attempts by non-lawyers to extend the Chorley exception

51. I briefly note that there have been attempts by litigants in person whose qualifications fall short of a barrister with a current practising certificate to extend the Chorley exception to themselves: George v Fletcher (Trustee) (No 2) [2010] FCAFC 71; see also Von Reisner v Commonwealth (No 2) [2008] FCA 430 and Croker v Commissioner of Taxation (2002) 124 FCR 286; [2002] FCA 1432 (but cf Guss v Veenhuizen (No 2)).

52. In Khera v Jones (at [6]) an unemployed solicitor was held still to be entitled to claim costs, but it was a point of sufficient uncertainty to worry the court. In Pritchard Englefield (a firm) and Another v Steinberg (Supreme Court Costs Office, Master Rogers, 27 March 2003), an American attorney with a current practising certificate in the relevant United States jurisdiction but with no right of appearance in the United Kingdom was not permitted to claim fees for work in the United Kingdom.

53. For the sake of completeness, I should add that, in George v Fletcher (Trustee) (No 2), where the Full Court of the Federal Court denied an accredited mediator recognised by the Queensland Law Society an entitlement to fees, their Honours added:

“[15]The power to award costs conferred by s 43 of the Federal Court of Australia Act does not extend to the awarding to a litigant who is not a legal practitioner of any amount of costs in respect of time spent in the preparation of his or her case or in the presentation of that case in court: Cachia v Hanes (1994) 179 CLR 403. Insofar as the judgment of the Full Court in Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) (1992) 39 FCR 288 stands for the proposition that a non-practitioner party can recover an amount in respect of earnings shown to have been lost while preparing or presenting his or her case, that case is inconsistent with Cachia v Hanes and should no longer be followed. Secretary, Department of Foreign Affairs and Trade v Boswell (No 2) was decided after Cachia v Hanes had been decided at intermediate appellate level but before it had been authoritatively determined by the High Court as the ultimate court of appeal.

[16]Because Ms George is not a legal practitioner entitled to appear before this court, it is unnecessary to consider whether, having regard to London Scottish Benefit Society v Chorley (1884) 13 QBD 872, she should, exceptionally, and perhaps questionably (Cachia v Hanes at 412–414), be allowed any amount in respect of legal professional costs in respect of the preparation for and presentation of her appeal.”

[Emphasis added]

54. As the emphasized words show, the Full Court of the Federal Court similarly consider any extension of the Chorley exception to be exceptional. While the Full Court’s reference to both barristers and solicitors (at [14]) could be seized upon as indicating some support for the extension of the exception to barristers, I do not see it as anything other than a general statement of the pre-requisite for any such applicant to have a practising certificate of some kind. In the absence of submissions from the parties (who did not refer to any of the Federal Court’s judgments in relation to the Chorley exception) I decline to speculate further.

55. There being no New South Wales or Federal Court decisions dealing directly with this issue which support the plaintiff’s submissions for an extension of the Chorley exception, I next consider the intermediate appellate court decision of Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd [2004] SASC 161.

Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd [2004] SASC 161

56. This was a claim by a barrister who was a litigant in person who sought costs for the time that he spent on the case as if it were work done by counsel, a claim similar to that made by Ms Pentelow.

57. At [131] – [132] Doyle CJ summarised his views as to why the Chorley exception should not be extended to counsel:

“[131] …The claim is, in substance, a claim to compensate Mr Sallis as a litigant in person for the time that he spent in connection with the case, assessing that compensation as if the work done was performed by counsel retained by a party to the case. Accordingly, consistently with what the majority said in Cachia, it is not a claim for costs as that term is understood in the Rules. The exception in favour of a solicitor who acts for himself should not be extended to the present case. Unless the High Court determines otherwise, that exception should be confined to its present limits. Although, in South Australia, practitioners are admitted as solicitors and barristers, and can practice in both capacities, or in one only, a distinction remains as a matter of law and practice between the role of solicitor and that of counsel, and between the position of solicitor and that of counsel. Different professional duties attach to each capacity, although there is a considerable overlap.

[132] I recognise that it might be said, as a matter of logic, that at least in a state in which practitioners are admitted as solicitors and barristers, and can practice as such, the so-called "anomalous exception" should be extended to a case like this. But I consider that the decision in Cachia requires a decision to the contrary. If it does not, I consider that it is in any event more consistent with principle to restrict the exception to its present limits. The role of counsel is one that requires a degree of independence between counsel and client, and the recognition and performance of duties to the court of a substantial nature. As the Judge observed, there are good reasons why a person with a direct interest in litigation should not be permitted to act as counsel. There are solid arguments against extending the exception, because that may encourage a practitioner to appear in person. As I have already pointed out, Mr Sallis did not appear as counsel. He was acting only for himself, and not for any other of the plaintiffs. The only basis for a claim by him for the allowance that he seeks is that had he not acted as his own counsel, he might have retained counsel and thus incurred costs equivalent to the allowance that he now claims. However, in principle, that is not a reason for allowing the claim, because in substance that is to argue that an unrepresented litigant should be compensated in costs either by reference to the costs that the litigant would have incurred had the litigant been represented, or by reference to the time and effort that the litigant committed to the case and thus avoided the need to retain counsel. Cachia makes it plain that that reasoning cannot be accepted.”

58. Mr Robberds QC first submits that this decision can be distinguished on its facts because the counsel making the claim in those proceedings (Mr Sallis) had a direct interest in the litigation, which might affect counsel’s judgment when acting as an advocate, and that he appeared for himself. Mr Robberds QC submitted that this was not so in the case before me, as the plaintiff did not appear as advocate at the hearings in the Local or Supreme Court.

59. However, examination of the work the plaintiff did (Exhibit 1, Tab 3) shows that the plaintiff not only made a series of five appearances on directions hearings and to take judgment, but that she prepared judgment summaries for senior counsel, prepared her own appeal brief (item 115) and drafted her own affidavit (items 124,130 and131). She carried out much of this legal work at the request of the solicitors she instructed. In other words, she is seeking what Doyle CJ called (at [131]) “compensation as if the work done was performed by counsel retained by a party to the case”. There is no factual difference warranting the distinguishing of this case on its facts.

60. Mr Robberds QC also submitted that the Full Court of the Supreme Court of South Australia’s judgment in Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd was one of four decisions where judges had erroneously declined to make an order for costs in favour of a barrister, and which I should decline to follow (written submissions, paragraph 44). That error is asserted to be the expression of the views at [130] – [131] set out above, namely that if the court made an order for costs in favour of the successful litigant in person barrister the court would be “extending” (at [131]) the exception, something the High Court had warned against in Cachia.

61. Both these statements are asserted to be incorrect statements of law for the following reasons:

1. Firstly, the Full Court of the Supreme Court of South Australia failed to apply the true basis of the Chorley exception, namely that the solicitor appearing for himself does not recover costs in the capacity of a solicitor but because he or she, happening to be a solicitor, can render costs able to be quantified by the court and its assessors. In those circumstances, this decision is wrong in law and I should not follow it.

2. Secondly, the inclusion of barristers does not amount to an expansion of the basis of the exception because that basis is not one of privilege to a solicitor, but because the solicitor’s work can be quantified on assessment of costs. A barrister’s work can be quantified in the same way.

3. Thirdly, the party seeking costs in Cachia was not a barrister but an engineer. The question of whether a successful self-represented barrister could recover costs was not mentioned in the judgment and not a matter that would have been considered by the High Court. (By inference from this submission, I assume that the concerns the High Court expressed about litigants in person profiting from litigation might not have been expressed, or expressed differently.)

4. Fourthly, although it is often said that the High Court required that the Chorley exception should not be expanded (or, to use the expression in Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd at [131], extended), this was not what the High Court had said, and the High Court had in fact extended the Chorley exception to Mr Guss, who was not a solicitor entitled to practise in the High Court.

62. The Full Court did apply the basis of the Chorley exception; what the Full Court went on to do, however (as did Kaye J, Daubney J and Johnstone DCJ) was to note the essentially different roles of solicitors and barristers, even in a State with a fused profession. That much can be seen by the very different way solicitors’ and barristers’ bills are put in for assessment, with careful itemisation of solicitors’ costs, but with the barristers’ fees listed as a disbursement. Put simply, those differences are that a solicitor can appear in court and do the work of a barrister, but a barrister cannot do all of the work of a solicitor, by reason of the Bar Rules and the independent role a barrister must play.

63. Ms Castle illustrated this point by tendering the Bar rules and pointing to the restrictions on barristers performing a wide range of tasks, some of which she noted the plaintiff performed in this litigation. Mr Robberds answered this by saying that these were matters for the costs assessor to disallow, but that does not resolve the problem.

64. For the same reasons as those given by the Full Court, Kaye J, Daubney J and Johnstone DCJ, I consider the fundamental difference between the roles of solicitors and barristers, both in the work they do and the way in which they charge, prevents the extension of the Chorley exception.

65. There are also the issues raised in the recent decision of the New South Wales Court of Appeal in Wilkie v Brown [2016] NSWCA 128, where the Court of Appeal permitted a solicitor (not a barrister) to claim a lump sum under the Chorley exception, but in terms so hedged by doubt, and with such reservations about the entitlement of any self-represented lawyer (barrister or solicitor) that no comfort can be derived for the plaintiff from its contents. This decision is referred to in more detail in relation to the defendant’s notice of contention.

Consideration of the Chorley exception in the United Kingdom and Canada

66. Mr Robberds QC referred me to two decisions in the United Kingdom, namely Khan v Lord Chancellor [2003] 1 WLR 2385 (“Khan”) and Malkinson v Trim [2003] 1 WLR 463.

67. These decisions are of very limited applicability, as the entitlement of a litigant in person to costs in criminal proceedings in the United Kingdom is the subject of specific legislation designed to permit litigants in person to claim. A particularly helpful explanation of these rules (which are for the payment of a successful criminal defendant’s costs out of Central Funds, as opposed to a costs order in civil proceedings) and the entitlement of litigants in person to claim costs in both civil and criminal proceedings was given by Leggatt J in R v Boswell, R v Halliwell [1987] 2 All ER 513 at 518. Leggatt J explained his payment of counsel’s fees to a self-represented member of the bar, by reference to the regulations in relation to criminal proceedings and their interaction with changing views’ of barristers’ entitlements to act for themselves in criminal matters, adding:

“At first sight the conclusion may appear unexpected, especially to older practitioners, since before the advent of legal aid there was no one to whom counsel could charge a fee for appearing on his own behalf. Thereafter some time elapsed before counsel was permitted, as a matter of professional etiquette, to argue in his own cause, and it is only lately that one counsel has been permitted to instruct another and pay him a fee, without the intervention of a solicitor. It may well be, therefore, that the draftsman of the 1982 regulations did not have in mind or foresee that concatenation of events which has resulted in the present appeals being allowed.”

68. Leggatt J held that counsel's notional fee on the appeal constituted a reasonable cost incurred by him in connection with the appeal. In arriving at that decision, the line of authority establishing solicitors' rights when acting as litigants in person in civil proceedings was invoked, but was not determinative of the issue.

69. In R v StaffordStone and Eccleshall Magistrates' Court, ex parte Robinson [1988] 1 All E R 430 at 433 Simon Brown J explained the rationale of R v Boswell, R v Halliwell as follows:

“The question before the court there was whether counsel appearing for himself on an appeal against the taxation of his earlier submitted fee was entitled to a notional fee for the appeal hearing.”

70. That question fell to be decided by reference to reg 11(14) of the Legal Aid in Criminal Proceedings (Costs) Regulations 1982, SI 1982/1197. So far as relevant that enabled the taxing master to allow the appellant (counsel in person acting on his own appeal) “a sum in respect of part or all of any reasonable costs … incurred by him in connection with the appeal.”

71. In Murphy v Legal Services Commissioner (No 2), Daubney J heard and rejected a similar argument about the applicability of English judgments permitting claims for self-represented barristers (at [10] – [11]:

’[10] The applicant also sought to rely on several English authorities, such as Buckland v Watts, which, it was submitted, are authority for the proposition that quantifiable, legal work may be liable to be compensated with an award for costs. Those cases are distinguishable from the present case, not least because the relevant UK legislation contains express provisions concerning the recovery of costs by litigants in person generally. Under the Litigants in Person (Costs and Expenses) Act 1975 (UK), litigants are entitled to recover loss of earning incurred during the course of preparing and presenting a case. The plurality in Cachia referred to these provisions as a significant point of distinction between the English and Australian authorities:

Clearly, that is merely an indirect way of recompensing a litigant for time spent in the preparation or conduct of his case which, if it is not contemplated by the relevant legislation or rules, is not permissible. Of course, a litigant who qualifies as a witness is entitled to the ordinary witness’s fees.

[11] The UK authorities do not assist the applicant’s present argument.”

[Citations omitted]

72. I respectfully agree with and adopt Daubney J’s reasons for refusing the extension of the Chorley exception.

73. The same is the case in Canada. No reference was made by the parties to Canadian authorities, so these comments are brief. The relevant authorities are analysed by the Ontario Court of Appeal in Fong v Chan (1999) 46 OR (3d) 330, [1999] OJ No 4600 at [8], [21] and [23], where the court noted a submission that the distinction between solicitors’ and counsel’s fees continued to govern this area of the law but considered that the indemnity should be extended because, inter alia, of the entitlement of a self-represented litigant had suffered a lost opportunity to earn income, a point also made by Beard J in Kuny v Beamish [2003] MJ No 97, [2003] MBQB 47.

74. While at first blush this may appear to be evidence of extension of the exception, the key difference is demonstrated by Beard J’s explanation in Kuny v Beamish of “current Manitoba legislation” demonstrating “a change in the common law of costs”. This legislation meant there was “no longer a blanket prohibition against awarding costs, other than disbursements, to a self-represented litigant” (at [18]) is the explanation for the extension of the rule. In the absence of legislation prevailing over the common law prohibition against awarding costs to self-represented litigants, these cases are of no assistance to this court.

75. I consider that authorities in jurisdictions outside Australia need to be viewed in the context of the relevant costs rules applicable in those jurisdictions, and are accordingly of very little assistance.

Applicability of the Chorley exception where solicitors and/or counsel are retained

76. As the Review Panel noted in paragraph [20] of the determination, the other factor that they considered the costs assessor had correctly taken into account was the fact that the plaintiff retained both solicitors and, in the Supreme Court, senior counsel, who appeared on her behalf. In those circumstances, the plaintiff should not be entitled to claim.

77. Mr Robberds QC submits that this should not be a bar because this had been the fact situation in Farkas v Northcity Financial Services Pty Ltd. A barrister was represented at trial by Mr Walker SC and Mr Lancaster of counsel. When a costs order in favour of the barrister was made, and those costs assessed, all counsel sought orders for interest on their costs. The issue before Bergin J was whether all counsel, including the barrister who instructed other barristers to appear on his behalf, were entitled to interest on costs.

78. Bergin J was not hearing an appeal from the costs assessor. All that her Honour was doing was determining whether to grant interest on the costs already assessed by the costs assessor. Her Honour had no difficulty with the applications for interest on costs from counsel retained to appear but had this to say about the barrister who sought interest on the costs he received for acting for himself:

“[13] The next submission made by Mr Villa which appears to me to have some force is that interest should not be awarded on the costs awarded to the plaintiff for the work that he did, described by the Costs Assessor as work of “junior counsel in the proceedings”. Mr Villa relied upon s 101(5)(a) which refers to the date or dates on which the costs “were paid” to submit that s 101 provides for the award of interest on money that has been paid over to another party. Mr Muddle submitted that notwithstanding the provisions of s 101(5)(a) the plaintiff did not have the use of the funds that were ordered to be paid as costs and although they were not “paid” they were “payable”. Although the expression “payable” is used in s 101(4) of the Act, it seems to me that the purpose of the subsection read in the context of s 101(5), is to award interest on amounts that have actually been paid. Work that was done by the plaintiff saved him having to pay costs over to a third party. He had the benefit of having the skills to reduce the costs that were to be paid by doing the work himself. I am not satisfied that I should exercise my discretion to award interest on these costs.

…

Conclusion

[15] I am satisfied that the plaintiff is entitled to an award of interest: (1) on his costs from the date on which the costs were paid by the plaintiff until the date those costs were paid by the fourth defendant; and (2) on the GST amount from the date the claim was notified to the date the amount was paid by the fourth defendant. I refuse the plaintiff’s application for an award of interest on the costs awarded to him for the work he provided as “junior counsel in the proceedings”. [Emphasis added]

79. I have set out paragraph 15 of her Honour’s judgment because it confirms that the plaintiff was only awarded interest on costs for the barristers other than himself who performed legal work. I note that the description of this case in Ritchie’s at [42.2.27] (“barrister entitled to interest on costs relating to the work he did as a junior counsel”) should be read in this light.

80. The issue of the barrister’s actual entitlement to costs was not an issue for Bergin J to determine; the issue was one of interest on costs, which her Honour refused, for the reasons set out above. However, Mr Robberds QC submits that her Honour’s decision is authority for the proposition that not only should the Chorley exception be extended to barristers, but that it should also be extended to barristers who are not self-represented at the trial, but represented by other barristers. In his written submissions he states:

“Had her Honour been of the view that the costs assessor was wrong in determining that the plaintiff was entitled to costs for work undertaken by him as junior counsel, you would expect that her Honour would have brought that view to the attention of the parties. Her Honour said nothing in her judgment about this issue, and it is submitted that the conclusion to be drawn from the judgment is that her Honour was of the view that the costs assessor was correct in allowing the costs of the work carried out by the plaintiff “as junior counsel” in his own case.”

81. Part of the reason for the submission that Bergin J favoured this extension of the Chorley exception is that her Honour set out what appears to be the entirety of the costs assessor’s reasons in her judgment (at [8]), the inference being that her Honour approved them.

82. The rationale for the costs assessor’s determination as set out therein was as follows:

“The litigant in this matter is a barrister and it is submitted that much of the work undertaken by the litigant was work undertaken by a solicitor and therefore offends some of the New South Wales Barrister’s Rules. It is fair to say that the distinction between barristers and solicitors in this day is considerably less than before, and indeed it is acceptable, although unusual, for barristers to accept a brief direct from the public without the intervention of a solicitor. Both barristers and solicitors are legal practitioners under the Act. It is the style under which they seek to practice under different practice rules which sets them apart.”

83. Her Honour also noted that the costs applicant had carried out some work as junior counsel in the proceedings as well as work of a solicitor or paralegal nature (all of which is the case in the appeal before me) and disallowed only that part of the work which was work done by a solicitor:

“I have also had regard to the nature of some of the work undertaken by the Costs Applicant as junior counsel in the proceedings. I have disallowed items where I am of the view that such work is more properly work done by either junior solicitors or paralegals such as collation, cross-referencing and tagging of documents.”

84. Does this amount to acceptance of both the Chorley exception extension to barristers and its applicability where other lawyers are retained? A similar submission was put to Daubney J in Murphy v Legal Services Commissioner (No 2), who commented:

“[9] The applicant pointed to Farkas v Northcity Financial Services Pty Ltd as authority for the proposition that a self-represented barrister is entitled to costs. In Farkas, the applicant applied for an order pursuant to s 101(4) of the Civil Procedure Act 2005 (NSW) that a defendant to that proceeding pay interest on the amount of costs awarded to the plaintiff. The case did not concern the question of whether a self-represented barrister is entitled to an award of costs but held only that there was no entitlement to interest in circumstances where there had been no challenge to a costs assessor having allowed those costs. This case does not provide any authoritative basis for the position advanced by the present applicant.”

85. I agree with Daubney J. There was no challenge to the costs assessment and it would not have been appropriate for such an issue to be raised before Bergin J.

86. Mr Robberds QC also relies upon Hawthorn Cuppaidge & Badgery v Channell (1992) 2 Qd R 488, where Ambrose J stated at 491 that:

“I can find no authority to support the proposition advanced by the defendant to the effect that because the solicitor retained by the plaintiffs did some of the work preparatory to trial, the plaintiffs are unable to recover costs for the professional work which they did themselves but may recover only the costs properly paid to their retained solicitor for that part of the preparatory work which he performed.

In fact, such a contention seems to my mind to be inconsistent with the basis of the rule enunciated in London Scottish Benefits Society v Chorley.”

87. That would not be a problem if the plaintiff were indeed a solicitor. The problem with this submission is that the plaintiff is a barrister, not a solicitor, and should not be doing the work of a solicitor, as Ms Castle pointed out in her analysis of the Bar Rules. In Finn v McIntosh, the barrister plaintiff expressly limited her cross-appeal to exclude any appeal from the determination that she was limited to claim for work done as a barrister, and did not dispute the finding of the costs assessor that she should not be able to charge for solicitor-related work.

88. There are similar Bar Rules problems in relation to the plaintiff charging for work as a barrister. Ms Castle took me through those rules, and it is difficult to see how a barrister could justify charging for work done in breach of those rules.

89. Should Ms Pentelow have appeared as her own junior counsel? What if she had made submissions to the court on her own behalf? Although not referred to by the parties, I note the potential problems identified in Malouf v Malouf [2006] NSWCA 83 at [164] – [179].

90. Mr Robberds QC also asked me to note that Ms Pentelow carried out legal work such as drafting at the request of her solicitors, which included some appearance work on directions hearings. That request is not referred to in the costs agreements and there is no costs agreement setting out Ms Pentelow’s own rates for the work she will carry out. While Adamson J in Ada Evans Chambers v Santisi was untroubled by Mr Santisi not having a costs agreement with himself, I see the requirement for costs agreements as a significant issue not only in relation to any extension of the Chorley extension to barristers but to the very exception itself.

91. I am satisfied that the Review Panel correctly took this factor into account in their determination as an additional reason for refusing the plaintiff’s claim for fees.

Conclusions concerning the grounds of appeal

92. For the reasons set out above I am satisfied that all grounds of appeal must be dismissed.

93. Although it is unnecessary in those circumstances for me to express a view about s 75A and the notice of contention, I propose to add some brief remarks in the event that these are of assistance or interest to the appeal which appears inevitable in these proceedings.

The section 75A argument

94. Section 75A sets out a series of provisions of a facilitative nature in relation to appeals to the Supreme Court from the Local Court. The relevant section is s 75A(10), which provides:

“(10) The Court may make any finding or assessment, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires”.

95. The plaintiff acknowledges that the costs assessor and Review Panel were addressed on the basis of ss 3(1) and 98 Civil Procedure Act but submits that “she was in error in doing so” (submissions of 17 August, paragraph 16). If so, it is hard to see how the Review Panel could have been in error.

96. The plaintiff now relies upon three documents provided to the assessor referring to s 75A (which I infer are relied upon to show that the Review Panel should have realised the parties needed to address s 75A and not s 98) in support of the contention that Schmidt J’s orders were made pursuant to s75A and not s 98 Civil Procedure Act as well as the reference to s 75A in her Honour’s judgment (at [4]) to submit that her Honour not only had power to, but did, replace the costs orders of the Local Court with costs orders made under s 75A and not s 98.

97. The submission is misconceived. The power to award costs under s 98 in courts at all levels in New South Wales covers the field, as the Civil Procedure Act applies, by s 4, to “each court referred to in Schedule 1”. Schedule 1 lists (relevantly for the purpose of these proceedings) the Supreme Court in “All civil proceedings”.

98. The result is that costs orders made in all proceedings in any court falling within the relevant jurisdiction are costs orders made under s 98, which replaces a series of separate powers to award costs (relevantly for the purpose of these proceedings, s 76 Supreme Court Act).

99. There are additional and more specific provisions in relation to special kinds of costs orders (such as indemnity costs) but the general power to award costs in all courts in New South Wales in all proceedings comes from s 98.

100. Is there any remaining power to grant costs carved out from s 98 by the retention of s 75A?

101. While s 75A(4) provides that “This section has effect subject to any Act”, as a matter of statutory construction, its language is facilitative and its provisions demonstrate that it is designed to give the court a general power to step into the shoes of the lower court to make or amend orders necessary to give effect to the appeal (such as revising or setting aside costs orders), but only insofar as the lower court has power to make those orders. The Court making such orders has the powers and duties of the lower court and, in relation to costs in the lower court, this requires the making of a costs order consistent with that power, namely s 98 Civil Procedure Act, which applies in the lower court as well as in the Supreme Court.

102. Further as to the statutory construction issue, in her helpful submissions in reply, Ms Castle also points to the use of the past tense (“ought to have been given or made”) in Section 75(10) and submits that this does not apply to orders disposing of the appeal proceedings themselves (i.e., to orders made which are other than orders the lower court should have made). It applies to the making of additional orders by the Supreme Court which ought to have been made. Ms Castle also submits that the phrase “which the nature of the case requires” similarly relates to the matter that was before the lower court, in circumstances where something has changed as a result of the appeal (for example, the Supreme Court has permitted fresh evidence).

103. I accept Ms Castle’s submission that these costs orders were made under s 98 and not s 75A. I see nothing in Schmidt J’s judgment to suggest her Honour thought otherwise. Accordingly I am satisfied that the costs orders were made under s 98 and the plaintiff’s submissions to the contrary must fail.

The notice of contention

104. Although the issues the subject of the notice of contention were included in the defendant’s submissions to the costs assessor and Review Panel, these submissions were not the subject of any findings, as the costs assessor determined the dispute in the defendant’s favour on the Chorley exception extension argument and the Review Panel endorsed those findings.

105. The issue may be identified in brief as follows. In Wang v Farkas, Basten JA observed that the enactment of the Civil Procedure Act had significant ramifications for the Chorley exception because “the term ‘professional costs’ as it appears in the Civil Procedure Act, part 2 of chapter 4 does not extend to a valuation of time devoted by a litigant, even if a legal practitioner, to his or her own proceedings” (emphasis added). The Civil Procedure Act introduced the word “payable” as a requirement for costs in the s 3 definitions in the Act, which created a new statutory framework which may exclude any Chorley exception:

“[28]The introduction of the emphasised word “payable” may at some stagerequire reconsideration of the application of Chorley in civil proceedings inthis State. It is not necessary for present purposes to resolve that question.”

106. Although, as noted in [28], Basten JA did not go on to resolve the issue, his Honour’s observations are of significance to the continued existence of the Chorley exception, for this reason. If s 3 means “costs incurred”, then the plaintiff would not be entitled to recover, under the costs orders made by Schmidt J, costs for the work she herself performed, because they were not costs payable by the plaintiff to herself, as opposed to a third party.

107. The plaintiff’s legal representatives dealt with this submission only in the briefest of terms during the costs assessment. The only submissions I have seen are the plaintiff’s responses to the costs assessor of 22 April 2014 and 1 September 2014, each of which states, in brief terms, that Basten JA’s remarks in Wang v Farkas are obiter, concern costs in criminal proceedings, and not relevant to the issues in Ms Pentelow’s claim for costs (Exhibit 1).

108. Since the Review Panel determination, Beazley P (Wilkie v Brown at [40]), has not only endorsed these obiter remarks but enlarged them, adding that not only the Civil Procedure Act but also the Legal Profession Uniform Law 2014 could impact upon whether costs were “payable” and upon the availability of the Chorley exception. This is a significant and complex argument which should be left to the Court of Appeal to develop, which is one of the reasons why I have refrained from doing more than note the parties’ submissions and make a few observations.

109. Mr Robberds QC’s submissions before me are but slightly augmented, although they are supplemented by the (previously unargued) submission that, contrary to the plaintiff’s letter of 1 September 2014 (Exhibit 1 p. 97), the costs in these proceedings were determined pursuant to s 75A and not s 98. As indicated above, I have accepted the defendant’s submissions that the orders were not, and could not be, made under s 75A.

110. Mr Robberds QC answers Wilkie v Brown by pointing out that the Court of Appeal did in fact permit the Chorley exception costs sought by the solicitor and that, if anything, the decision is in his client’s favour.

111. While I restrict my comments on the notice of contention to setting out these issues, I will take the opportunity of making the following observations. Beazley P’s perceptive analysis of the role of the Chorley exception must be correct, as her Honour is examining its applicability in a costs assessment system where costs must be payable in accordance with the relevant legislation. Practitioners should not be exempted from professional conduct rules, particularly those concerning costs disclosure and costs agreements, just because they are acting for themselves. To hold otherwise may open the gates to other self-represented litigants (or their lay advocates), untrammelled by the ethical obligations of the legal profession, to bring similar claims (see some of the examples of this set out earlier in this judgment).

112. Further, an essential part of these ethical obligations includes the provision of costs disclosures, which postdate the introduction of the Chorley exception and form part of the relevant statutory framework. Where there are costs payable there should also be costs disclosures. As to the importance of costs disclosures being made by counsel to direct access clients, see Santisi v New South Wales Bar Association [2006] NSWADT 4 at [25].

Costs

113. I was not addressed on costs, and grant liberty to apply.

Orders

1. Summons dismissed.

2. Costs reserved, with liberty to apply.

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Decision last updated: 18 May 2018