Winn v Garland Hawthorn Brahe

[2007] VSC 360

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 3503 of 2005

JULENE WINN	Appellant
v
GARLAND HAWTHORN BRAHE (A Firm)	Respondent

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JUDGE:	Kaye J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2007
DATE OF RULING:	29 June 2007
CASE MAY BE CITED AS:	Winn v Garland Hawthorn Brahe (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 360

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Costs – Application for costs by successful appellant – Appellant self-represented – Appellant a practising barrister interstate – Not entitled to costs incurred in capacity of solicitor, or to counsel’s fees – Entitled to reasonable travel expenses.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	No appearance by or for the Appellant
For the Respondent	Mr E Moon	Garland Hawthorn Brahe

HIS HONOUR:

1. In this matter, I gave judgment on 14 December 2006.  I allowed the appeal by the appellant, Ms Winn, from the order of the taxing master made on 19 October 2006 and made other consequential orders.  As Ms Winn was not in attendance that day I stood over any outstanding issue and in particular the issue relating to costs.  There has been some delay in bringing this matter back before me because Ms Winn lives and practices interstate.  The matter has come back before me today.  The appellant was not able to be present but filed written submissions in support of her application for costs.

1. The appellant was admitted to practice as a barrister and solicitor of the Supreme Court of Victoria on 16 August 2005.  On 28 September 2006, she was appointed to the Queensland Bar and is currently a practising barrister in Queensland.  By her submissions she has claimed three categories of costs.  First, she has claimed costs which would ordinary be claimed by a party engaging a solicitor.  Secondly, she has claimed costs for counsel's fees, and thirdly, she has claimed costs for allowable reasonable expenses for travel.

1. Mr Moon, who appears on behalf of the respondent, has submitted that Ms Winn should not be entitled to the first two categories of costs but should only be allowed the third category.  As an alternative submission, he put to me that if Ms Winn was entitled to counsel's fees then she would not be entitled to the third category, being the reasonable expenses for travelling to attend before me on the appeal.

1. The applicable principles are quite longstanding and not significantly in dispute.  There has now been a longstanding rule of practice that a solicitor who is admitted to practice in a jurisdiction is entitled to an award of costs where that solicitor has acted for himself or herself as a litigant and succeeds in the litigation.  See for example London Scottish Benefit Society v. Chorley, Crawford and Chester,[1] Guss v. Veenhuizen (No.2).[2]

   [1](1884) 13 QBD 872.

   [2](1976) 136 CLR 47, 51 - 52.

1. On the other hand, it is well established that a litigant in person other than a solicitor is not entitled to costs including costs arising from time spent in preparing for the case.  See Buckland v. Watts,[3] Cachia v. Hanes.[4]

   [3][1970] 1 QB 27.

   [4](1994) 179 CLR 403.

1. I should say that the rule which was stated by the High Court in Guss[5] in 1976 has been seriously doubted by the High Court in Cachia v. Hanes.[6] As a result, that rule has no longer been followed by the Full Court of Western Australia: see Dobree and Ors v. Hoffman.[7]  However, in Brott v. Almatrah,[8] Batt J held that he was bound by the rule and therefore held that the solicitor who represented himself in the Magistrates' Court with success should have been entitled to an order for costs.

   [5](1976) 136 CLR 47.

   [6](1994) 179 CLR 403, 411 - 413.

   [7](1996) 18 WAR 36.

   [8][1998] 2 VR 83.

1. The same view has been adopted by the New South Wales Court of Appeal in Atlas Corporation Pty Ltd v. Kalyk.[9]  Like Batt J, I consider that I too am bound by the statement of the rule in Guss' case, notwithstanding the well justified criticisms of that rule stated by the High Court in Cachia's case.  Indeed, Mr Moon did not argue to the contrary.

   [9][2001] NSWCA 10.

1. I turn then to the three categories of costs claimed by the appellant in this case.  In my view, Mr Moon is correct in submitting that the appellant is not entitled to costs which were incurred in the capacity of a solicitor.  The appellant is not entitled to practice in Victoria as a solicitor in her own right.  She is bound by the Victorian Bar Rules if she appears here and thus may only practice as a member of counsel.  Secondly, in my view s.2.4.35 of the Legal Profession Act 2006 precludes her from practising as a solicitor in an unrestricted capacity in the State of Victoria, as she is only an interstate legal practitioner and does not hold a practising certificate in this State.

1. For those reasons, what has been described as the anomalous exception permitting solicitors acting for themselves to an order for costs would not apply to the applicant in this case and she would therefore not be entitled to an order for costs in respect of the costs claimed by her in the capacity as a solicitor.

1. I turn then to the costs claimed by the appellant for counsel's fees.  In my view, the exception stated in Guss' case does not apply to counsel who appears on his or her own behalf.  That follows for two particular reasons.  Firstly the courts, and in particular the High Court in Cachia v. Hanes,[10] have emphasised that the exception to the rule should not be expanded at all, particularly because of its anomalous nature.  With two exceptions to which I shall shortly refer, the rule has never been expanded to entitle a barrister acting for himself or herself to an order for costs in his or her favour in respect of counsel fees.

   [10](1994) 179 CLR 403.

1. The second reason why I consider that the exception stated in Guss' case and in Chorley's case should not apply to counsel's fees is that counsel's fees are different, of their very nature, to costs and fees charged by a solicitor.  As Mr Moon has correctly pointed out, counsel fees are a disbursement to the client and not a profit cost.  For those reasons it seems to me that the counsel's fees can be properly distinguished from solicitor's costs.

1. The two cases to which Mr Moon quite properly referred me, and in which counsel have been held to be entitled to costs for appearing on their own behalf, may be adequately distinguished.  The first case is the decision of the Court of Queen's Bench in R v. Boswell.[11]  In my view, the decision of Leggatt J in that case turned on the particular rule which entitled, in certain narrowly prescribed circumstances, counsel to brief another counsel to appear on his or own behalf in respect of a costs dispute.

   [11][1987] 1 WLR 705.

1. Leggatt J[12] made it clear that he relied on that rule to permit counsel in those circumstances to claim costs where that counsel had appeared for himself.  It is clear from the statement of reasons by Leggatt J that His Lordship considered that that rule was a necessary added factor which would entitle counsel in that case to avail himself of the statement of the rule in Chorley's case.

   [12]Ibid, 710.

1. The other case to which I have been referred by Mr Moon is the decision of the Supreme Court of Victoria in Ogier v. Norton.[13]  In that case, counsel who appeared on his own behalf was held to be entitled to an order for costs for work as a solicitor, in other words in that case the plaintiff claimed costs for acting as a solicitor.  In my view, the case can be distinguished because both the Victorian Bar Rules and the legislation preclude the appellant in this case from acting as a solicitor in this jurisdiction.

   [13](1904) 29 VLR 536.

1. Bearing particularly in mind the injunction of the High Court that the exception, albeit longstanding, should now be construed narrowly and should not be permitted to expand, I therefore agree with the submission that has been put to me on behalf of the respondent that the exception does not cover the case of counsel acting for himself or herself.

1. For those reasons, I am of the view that the appellant in this case is not entitled to an award of costs in respect of counsel's fees.  Mr Moon submitted to me that if I was of that view then he would not oppose an order that the appellant be entitled to her reasonable expenses in respect of the appeal.

1. I therefore shall made an additional order in this matter that the appellant be entitled to reasonable expenses in respect of travelling to attend the appeal in this matter, such expenses to be taxed in default of agreement.

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