QRS v Legal Profession Board of Tasmania (No 2)

[2017] TASFC 13

[2017] TASFC 13

COURT:       SUPREME COURT OF TASMANIA (FULL COURT)

CITATION:   QRS v Legal Profession Board of Tasmania (No 2) [2017] TASFC 13

PARTIES:     QRS

v

LEGAL PROFESSION BOARD OF TASMANIA

LAW SOCIETY OF TASMANIA

FILE NO:     FCA 1136/2017

DELIVERED ON:   20 November 2017

DELIVERED AT:    Hobart

HEARING DATE:   13 October 2017

JUDGMENT OF:    Blow CJ, Marshall and Porter AJJ

CATCHWORDS:

Procedure – Civil proceedings in State and Territory courts – Costs – Taxation and other forms of assessment – Solicitor's costs – Solicitor party – Australian lawyer admitted but not holding practising certificate – Whether entitled to costs as solicitor acting for himself.

Legal Profession Act 2007 (Tas), ss 5, 6.

London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872; Guss v Veenhuizen(No 2) (1976) 136 CLR 47, distinguished.

Worchild v Peterson [2008] QCA 26; Rogers v Roche [2017] QCA 145, referred to.

Aust Dig Procedure [1695]

REPRESENTATION:

Counsel:

Appellant:                In person

Respondents:  N Readett

Solicitors:

Appellant:                In person

Respondents:  Simmons Wolfhagen

Judgment Number:  [2017] TASFC 13

Number of paragraphs:     19

Serial No 13/2017

File No FCA 1136/2017

QRS v LEGAL PROFESSION BOARD OF TASMANIA (No 2)

REASONS FOR JUDGMENT     FULL COURT

BLOW CJ

MARSHALL AJ

PORTER AJ

20 November 2017

Orders of the Court

1        That the respondents pay the appellant's costs of the appeal, limited to out of pocket expenses.

2 That each respondent be granted an indemnity certificate pursuant to s 8 of the Appeal Costs Fund Act 1968.

Serial No 13/2017

File No FCA 1136/2017

QRS v LEGAL PROFESSION BOARD OF TASMANIA (No 2)

REASONS FOR JUDGMENT     FULL COURT

BLOW CJ

20 November 2017

1                  I agree with Marshall AJ.

File No FCA 1136/2017

QRS v LEGAL PROFESSION BOARD OF TASMANIA

and LAW SOCIETY OF TASMANIA (No 2)

REASONS FOR JUDGMENT     FULL COURT

MARSHALL AJ

20 November 2017

2                  This judgment deals with an application for costs by the successful appellant following the publication of the judgment of the Full Court in QRS v Legal Profession Board of Tasmania [2017] TASFC 10. The Full Court held that the primary judge had pre-judged the issue as to whether she had jurisdiction to deal with an interlocutory application filed by the appellant. The Full Court also held that the primary judge erred in finding that she had no jurisdiction to deal with that application. After the publication of the reasons for judgment of the Full Court, the appellant sought an order for costs.

3                  The appellant claims an entitlement to recover costs based on what is known as the Chorley exception.  It was recognised in London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872, that a solicitor acting for himself is entitled to the same costs as if the litigant had employed a solicitor. The Chorley exception was applied by the High Court of Australia in Guss v Veenhuizen(No 2) (1976) 136 CLR 47.

4                  The respondents do not dispute the applicability of the Chorley exception, but say that it does not apply to the appellant. That is because the respondents say that although the appellant was admitted to the legal profession on 30 January 2017, he never became a legal practitioner.  They say he has never held a practising certificate and has never been a solicitor.

5                  All parties referred the Court to the recent Queensland Court of Appeal judgment in Rogers v Roche [2017] QCA 145. At [13] in Roger, Fraser JA said:

"A litigant who appears in person is entitled to recover the legal costs of the suit paid by the litigant but is not entitled to any payment for his or her time occupied in the litigation, except that a solicitor who acts for himself or herself in litigation is entitled to the same costs as if the litigant had employed a solicitor (there is a qualification that some items, such as obtaining instructions and attendances, by their nature are not recoverable) the rationales expressed by the Judges in Chorley for the exception is that the costs of a litigant who is a solicitor are measurable by the Court, but the costs of unqualified litigants acting for themselves are not so measurable, and the solicitor should not be precluded from recovering costs because the solicitor might instead employ another solicitor, whose costs are likely to be greater."

6                  At [31] of his reasons, Fraser JA referred to the entitlement of a lawyer to recover costs "who is an Australian lawyer" entitled to practise in the court.

7                  In Worchild v Peterson [2008] QCA 26, it was recognised by McKenzie AJA at [10] and [11] that a solicitor must be authorised to practise at the time of the relevant hearings to fall within the Chorley exception discussed in Guss.

8                  Under the Legal Profession Act 2007 ("the Act"), "Admission to the legal profession" means admission to practice as a lawyer, legal practitioner, barrister, solicitor, barrister and solicitor, solicitor and barrister, but "does not include the grant of a practising certificate under this Act or a corresponding law". Under s 5, an "Australian lawyer" is "a person who is admitted to the legal profession under this Act or a corresponding law". In s 6, "Australian legal practitioner" and "local legal practitioner" are both defined by reference to "an Australian lawyer who holds a current local practising certificate".

9 Although admitted to the legal profession on 30 January 2017, the appellant did not, at the time of the hearing of the appeal, hold a practising certificate. There is no evidence that the appellant has ever held a practising certificate. To hold a practising certificate one must satisfy certain requirements, such as supervised legal practice under s 59 of the Act, and the obligation to hold insurance under s 45 of the Act.

10                 The submission of the respondents that the appellant was, and remains, unqualified to perform work as a solicitor or legal practitioner is a persuasive one.  He is not entitled to his costs under the Chorley exception.  The only costs he should be entitled to are his out of pocket expenses.

11                 There is no basis for the extension of the Chorley exception to those admitted to the legal profession, but not yet admitted to practice.  In Cachia v Hanes (1994) 179 CLR 403 at 413, although not overruling Guss, the High Court held that the Chorley exception was "limited and questionable".  The exception was not extended to allow barristers to recover their fees in the cases of Winn v Garland Hawthorn Brahe (a firm) [2007] VSC 360, and Murphy v Legal Services Commission [2013] QSC 253.

12 The appellant claims that at all relevant times he was admitted as a solicitor. He relies on s 13(2)(m) and (n) of the Act. Section 13 prohibits a person engaging in legal practice without being an Australian legal practitioner. Section 13(2)(m) and (n) provide exceptions to that prohibition to permit someone to appear or defend themselves in person, or act on their own behalf in legal proceedings without being an Australian lawyer. Those provisions do not permit someone who is not admitted as an Australian lawyer to be treated as an Australian lawyer when acting in his or her own interests. As the respondents submit, no offence will be committed under s 13(1) if a person performs the acts set out in s 13(2), including pars (m) and (n). Those provisions do not have the effect of allowing a person to engage in legal practice without holding a current practising certificate when acting as a self-represented litigant.

13 Each respondent seeks a certificate under s 8(1) of the Appeal Costs Fund Act 1968. Section 8(1)(b) provides that:

"(1)     Where an appeal —

(a)   …

(b)   to the Full Court of the Supreme Court from a decision of that Court held before a single judge …

succeeds, the Supreme Court may, on application made in that behalf, grant to the respondent to the appeal or to one or more of several respondents to the appeal an indemnity certificate in respect of the appeal."

14                 Counsel for the respondents refer to the fact of pre-judgment of the issue below concerning the status of the interlocutory application as being beyond the control of the respondents.  Counsel also refer to the difficulty attending the interlocutory application, given that it sought final orders.  Counsel also submitted that the respondents' contentions on the jurisdictional issue were not put recklessly and had some support in a decision of a Master of the Supreme Court of South Australia in HSBC Bank v Russo [2012] SASC 9, per Lunn M. Counsel refer to comments made by the Full Court in the appeal about the appellant using the "wrong process", and the case being "an unusual one".

15 There are sufficient reasons on this matter, as referred to above, to warrant the grant to each respondent of an indemnity certificate under s 8(1)(b) of the Appeal Costs Fund Act.

16                 In Tasmanian Pulp and Forest Holdings v Woodhall [1972] Tas SR 41 at 43, Burbury CJ observed that the purpose of the Appeal Costs Fund Act is:

"… to cast the burden of legal costs incurred by an unsuccessful respondent to an appeal onto litigants generally (through statutory levies made on their originating process) where through no fault of such a respondent the lower court, in which he succeeded has gone wrong in law and that error is corrected on appeal."

17 In the appeal the respondents were not at fault on the issue of pre-judgment. This alone should suffice to grant an indemnity certificate. In addition there were difficult questions of law attending the resolution of the status of the interlocutory application which were exacerbated by problems with its form, identified by Blow CJ at [5].

18                 Having regard to the foregoing, the Court should order that:

1    The respondents pay the appellant's costs of the appeal, limited to out of pocket expenses, to be taxed in default of agreement.

2 Each respondent is granted an indemnity certificate pursuant to s 8 of the Appeal Costs Fund Act 1968.

File No FCA 1136/2017

QRS v LEGAL PROFESSION BOARD OF TASMANIA

and LAW SOCIETY OF TASMANIA (No 2)

REASONS FOR JUDGMENT     FULL COURT

PORTER AJ

20 November 2017

19                 I agree with Marshall AJ.