Sims v Chong (No 2)

Sims v Chong (No 2) involved a legal dispute where Mr Sims sued Ms Chong for alleged misrepresentation before her retainer as a lawyer. The case was heard by the Full Court of the Federal Court of Australia, which was asked to decide whether Ms Chong should be granted a certificate for the costs she incurred during the proceedings.

The primary legal issue was whether the Full Court should grant Ms Chong a certificate for the costs she incurred during the appeal. The Court had to consider if it was appropriate for the Attorney-General to authorize payment of these costs under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth). Ms Chong argued that the appeal revealed an error by the primary judge, her arguments were not improper or baseless, and she took on the responsibility of preparing the application books for the appeal. However, the Court noted that Ms Chong had chosen to apply for the summary dismissal of Mr Sims’ claim and defended that course before the primary judge and the Full Court. These forensic decisions involved the risk of being unsuccessful and being ordered to pay Mr Sims’ costs. The Court concluded that there was nothing in the circumstances that suggested it would be appropriate for the Attorney-General to authorize payment of the costs that Ms Chong had to pay.

The Full Court found that it was not appropriate to grant Ms Chong a costs certificate. The Court considered the discretionary nature of the grant of a costs certificate and the fact that Ms Chong chose to apply for the summary dismissal of Mr Sims’ claim and defended that course. The Court held that there was no presumption in favour of the grant of a costs certificate and that Ms Chong’s decisions to seek and defend the summary dismissal caused her to incur the costs for which she now sought the grant of a certificate.

The Full Court refused the application by the respondent for a costs certificate under s 6(1) of the Federal Proceedings (Costs) Act 1981 (Cth). The Court held that it was not appropriate for the Attorney-General to authorize payment of the costs that Ms Chong had to pay under the costs order made on 12 August 2015. The Court concluded that the circumstances did not suggest that it would be appropriate to grant Ms Chong a costs certificate.