KIEFEL CJ, BELL, KEANE AND GORDON JJ. As a general rule, a self‑represented litigant may not obtain any recompense for the value of his or her time spent in litigation. Under an exception to the general rule, a self‑represented litigant who happens to be a solicitor may recover his or her professional costs of acting in the litigation. This exception is commonly referred to as "the Chorley exception", having been authoritatively established as a "rule of practice" by the Court of Appeal of England and Wales in London Scottish Benefit Society v Chorley.
One issue raised by this appeal is whether the Chorley exception operates to the benefit of barristers who represent themselves. Another, more fundamental, issue is whether the Chorley exception should be recognised as part of the common law of Australia.
The Chorley exception has rightly been described by this Court as "anomalous". Because it is anomalous, it should not be extended by judicial decision to the benefit of barristers. This view has previously been taken by some courts in Australia. Dealing with the matter more broadly, however, the Chorley exception is not only anomalous, it is an affront to the fundamental value of equality of all persons before the law. It cannot be justified by the considerations of policy said to support it. Accordingly, it should not be recognised as part of the common law of Australia.
The proceedings
The appellant, an incorporated legal practice, retained the first respondent ("the respondent"), a barrister, to appear in proceedings in the Supreme Court of New South Wales in a matter under the Family Provision Act 1982 (NSW). Following the conclusion of those proceedings, a dispute arose as to the payment of the respondent's fees.
The appellant paid only a portion of the bill rendered by the respondent for her services, and the respondent sued the appellant for the balance of her fees in the Local Court of New South Wales. She was unsuccessful in that proceeding, but appealed successfully to the Supreme Court of New South Wales. The appellant was ordered to pay the respondent the balance of her unpaid fees. Orders for costs were also made in the respondent's favour in relation to both the Local Court and the Supreme Court proceedings.
The respondent was represented by a solicitor in the Local Court proceeding, and by solicitors and senior counsel in the Supreme Court proceeding. In each proceeding, the respondent had undertaken preparatory legal work which included, among other things, compiling written submissions, drawing her affidavit evidence, legal research, reviewing submissions in reply, and advising senior counsel on various issues. The respondent also attended court in person on a number of directions hearings and for the purpose of taking judgment.
The respondent forwarded a memorandum of costs to the appellant pursuant to those costs orders. The total sum claimed was $144,425.45, which included $22,605 for "Costs incurred on her own behalf" in the Local Court proceeding and $22,275 for the "Provision of Legal Services Provided by herself" in the Supreme Court proceeding.
The appellant refused to pay the costs claimed for the work undertaken by the respondent herself. Pursuant to s 353 of the now‑repealed Legal Profession Act 2004 (NSW), the appellant made an application for assessment of the costs claimed by the respondent. The costs assessor rejected the respondent's claim for the costs of the work she had performed herself on the ground, among others, that in New South Wales the Chorley exception does not apply to barristers.
The costs assessor's decision was affirmed on appeal by the Review Panel. The respondent appealed against the decision of the Review Panel to the District Court of New South Wales, but her appeal was dismissed by the primary judge (Judge Gibson).
The Court of Appeal
The respondent sought judicial review of the decision of the District Court in the Court of Appeal of the Supreme Court of New South Wales. The primary issue was whether the respondent could rely upon the Chorley exception. A subsidiary issue arose as to whether the respondent was a "self‑represented" litigant, but this issue was held not to be amenable to judicial review as it concerned a finding of fact. That subsidiary issue need not be further considered. The Court of Appeal proceeded on the basis that the issue was whether the Chorley exception applied to the respondent as a barrister, in circumstances where she had undertaken legal work in litigation in which she was represented.
The Court of Appeal held by majority (Beazley A‑CJ and Macfarlan JA, Meagher JA dissenting) that the respondent was entitled to rely upon the Chorley exception for the same reason that a solicitor is so entitled, namely, that her costs were quantifiable by the same processes as solicitors' costs.
Meagher JA, in dissent, expressed reservations as to the continued application of the Chorley exception to solicitors, but accepted that he was bound by authority to hold that the exception still exists. Nevertheless, his Honour rejected the "extension" of the Chorley exception to barristers.
The power to order costs
The power to make an order for costs is conferred on the courts of New South Wales by s 98(1) of the Civil Procedure Act 2005 (NSW), which provides:
"Subject to rules of court and to this or any other Act:
(a) costs are in the discretion of the court, and
(b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and
(c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis."
Section 3(1) of the Civil Procedure Act defines "costs" as follows:
"costs, in relation to proceedings, means costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration."
On one view, the reference to "costs payable" in this definition is an indication that an order for costs may be made only in respect of costs payable by the party in whose favour the order is made to another person for services rendered. On this view the Chorley exception is inconsistent with the statutory definition of costs and, costs being a creature of statute, the Chorley exception has been displaced by the Civil Procedure Act.
This view, which commended itself to Meagher JA below, was advanced by the appellant in argument in this Court. The respondent argued that the legislature did not intend to abrogate the Chorley exception by ss 3 and 98(1) of the Civil Procedure Act in the absence of clear words to that effect. It is preferable to address the proper effect of ss 3 and 98(1) of the Civil Procedure Act in the context of a discussion of the broader question whether the Chorley exception should be recognised as part of the common law of Australia. The examination of that question may conveniently proceed by reference to the principal authorities referred to by the parties in the course of argument in this Court.
Chorley
One may begin with a consideration of the reasons said to support the Chorley exception. In that case, Brett MR stated the general rule, and the exception to it, in the following terms:
"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. He has to pay the fees of the court, that is money paid out of pocket; but for loss of time the law will not indemnify him. When, however, we come to the case of a solicitor, the question must be viewed from a different aspect. There are things which a solicitor can do for himself, but also he can employ another solicitor to do them for him; and it would be unadvisable to lay down that he shall not be entitled to ordinary costs if he appears in person, because in that case he would always employ another solicitor."
It may be said immediately that the view that it is somehow a benefit to the other party that a solicitor acts for himself or herself, because the expense to be borne by the losing party can be expected to be less than if an independent solicitor were engaged, is not self‑evidently true. A self‑representing solicitor, lacking impartial and independent advice that the court expects its officers to provide to the litigants they represent, may also lack objectivity due to self‑interest. That may, in turn, result in higher legal costs to be passed on to the other party in the event that the self‑representing solicitor obtains an order for his or her costs.
Importantly, the view that solicitors should be encouraged to act for themselves is contrary to the modern orthodoxy that it is undesirable, as a matter of professional ethics, for a solicitor to act for himself or herself in litigation. In McIlraith v Ilkin (Costs), Brereton J said:
"Where a solicitor represents a litigant, the court is entitled to expect the litigant to be impartially and independently advised by an officer of the court. Indeed, where the court concludes that a solicitor is not in a position to give impartial and independent advice to a party, because of the solicitor's own interest in the outcome, the court has restrained the solicitor from continuing to act ... Where a solicitor acts for himself or herself there cannot be independent and impartial advice, and this is in principle a strong reason for holding that a solicitor litigant should not be entitled to costs of acting for him or herself."
The view expressed by Brereton J is reflected in rr 17.1 and 27.1 of the Australian Solicitors' Conduct Rules, which have been adopted in New South Wales, Victoria, Queensland, South Australia and the Australian Capital Territory. Rules broadly equivalent to rr 17.1 and 27.1 of the Australian Solicitors' Conduct Rules also appear in the conduct rules of Western Australia and the Northern Territory.
In Chorley, Bowen LJ explained the rationale for the exception as follows:
"Professional skill and labour are recognised and can be measured by the law; private expenditure of labour and trouble by a layman cannot be measured. It depends on the zeal, the assiduity, or the nervousness of the individual. Professional skill, when it is bestowed, is accordingly allowed for in taxing a bill of costs; and it would be absurd to permit a solicitor to charge for the same work when it is done by another solicitor, and not to permit him to charge for it when it is done by his own clerk."
This reasoning is not persuasive. The notion that the "private expenditure of labour and trouble by a layman cannot be measured" is not the basis for the general rule. The general rule that a self‑represented litigant may not obtain any recompense for his or her time spent on litigation is not based on a concern about the difficulty of valuing the appropriate amount of recompense, but, as was explained by the majority in Cachia v Hanes, because "costs are awarded by way of ... partial indemnity ... for professional legal costs actually incurred in the conduct of litigation". Accordingly, to say that the value of legal services rendered by a solicitor to himself or herself can be measured is not to justify an exception to the general rule.
In addition, in Cachia, Mason CJ, Brennan, Deane, Dawson and McHugh JJ, commenting on the rationale for the exception suggested by Bowen LJ, said:
"Those assertions that it would be 'unadvisable' or 'absurd' to refuse to allow a solicitor who acts for himself 'to charge' for the work done by himself or his clerk ignore the questionable nature of a situation in which a successful litigant not only receives the amount of the verdict but actually profits from the conduct of the litigation."
Further, there is no reason why, in principle, the reasonable value of the time of any litigant cannot be measured. The courts regularly value the provision of labour or services in the context of quantum meruit claims. To act upon a principle that evidence enabling the quantification of the value of the time of non‑solicitor litigants in person should not be received or acted upon by the courts is to exalt the position of solicitors in the administration of justice to an extent that is an affront to equality before the law. To say that practical difficulties may arise in taking evidence to value the time of non‑lawyers spent in the course of litigation is merely to identify a reason why, as a matter of policy, the general rule should not be abolished. No doubt such practical difficulties as might be expected to arise in that event could be addressed in legislation for the abolition of the general rule. The need to address practical questions of this kind is one reason why the abolition of the general rule is properly a matter for the legislature rather than the courts. The point to be made here, however, is that to suggest that practical difficulties may attend the abolition of the general rule is not to identify a reason that supports the Chorley exception.
In Chorley, Fry LJ expressed his agreement with Bowen LJ, and went on to say that "[t]his is not a question as to a solicitor's privilege". Notwithstanding this remark by Fry LJ, there is an air of unreality in the view that the Chorley exception does not confer a privilege on solicitors in relation to the conduct of litigation. In Australia, as early as Pennington v Russell [No 2], the exception was recognised as the solicitor's privilege that, to modern eyes, it patently is. A privilege of that kind is inconsistent with the equality of all persons before the law.
Guss v Veenhuizen [No 2]
In Guss v Veenhuizen [No 2], a majority of this Court proceeded on the basis that the Chorley exception was otherwise applicable on the facts of the case, and decided that the exception was not excluded by the terms of the legislation that applied in that case. Whether the Chorley exception should be recognised as part of the common law of Australia was not argued in Guss. Instead, the case turned on whether the solicitor litigant was precluded from recovering costs in respect of his own time and services by reason of the circumstance that he was, without fault on his part, not on the Court's Register of Practitioners.
The question whether the Chorley exception should be recognised as part of the common law of Australia is now squarely before the Court, and has been the subject of full argument. Insofar as the Chorley exception might be said to be part of the common law of Australia on the authority of Guss, the appellant submitted that the Court should reconsider that aspect of the decision in Guss. It submitted that the foundation upon which the exception rests is infirm in point of principle.
It might be said that, since the question whether the Chorley exception is part of the common law of Australia was not in dispute in Guss, the decision in that case may be said to "lay[] down no legal rule concerning that issue". In CSR Ltd v Eddy, Gleeson CJ, Gummow and Heydon JJ observed that "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". However, given that the present appeal was conducted on the basis that abandoning the Chorley exception would require the Court to depart from the authority of Guss in that respect, it is necessary to address the considerations relevant to that question.
In John v Federal Commissioner of Taxation, Mason CJ, Wilson, Dawson, Toohey and Gaudron JJ identified considerations relevant to the exercise of this Court's undoubted power to review and depart from its earlier decisions. These included the following circumstances: that the earlier decisions did not "rest upon a principle carefully worked out in a significant succession of cases"; that the earlier decisions had "achieved no useful result but on the contrary had led to considerable inconvenience"; and that the earlier decisions "had not been independently acted on in a manner which militated against reconsideration".
It may fairly be said that the decision in Guss proceeded upon an uncritical acceptance of the authority of Chorley, and so did not establish a principle carefully worked out in a succession of cases in this Court. Importantly, the decision in Chorley - on the authority of which Guss stands - departed from principle in several respects, as this Court explained in Cachia.
Cachia v Hanes
As to whether the recognition of the Chorley exception in Guss is a "useful result", the criticisms of the majority in Cachia strongly suggest a negative answer.
Although the Court in Cachia was not invited to abolish the Chorley exception, the majority's criticisms of the Chorley exception substantially undermine the authority of the decision in Chorley, and consequently the authority of Guss. In Cachia, the majority, in discussing the decision in Guss, described the Chorley exception as "somewhat anomalous" and stated that the justification for the exception was "somewhat dubious". As noted above, their Honours were of the view that to permit a self‑represented solicitor to recover costs - which are the solicitor's reward for the exercise of professional skill - gives rise to the possibility of allowing the solicitor to profit from his or her participation in the conduct of litigation. That possibility is unacceptable in point of principle.
In that regard, costs are a creature of statute. It has never been thought that any of the ubiquitous statutory provisions empowering courts to order costs are available to compensate a litigant for his or her time and trouble in participating in litigation. That is because costs are awarded by way of indemnity; they are not awarded as compensation for lost earnings, much less as a reward for a litigant's success. The courts have long regarded the statutory power to make an order for costs as confined by the concern to provide the successful party with a measure of indemnity against the expense of professional legal costs actually incurred in the litigation. Thus, the majority in Cachia said:
"It has not been doubted since 1278, when the Statute of Gloucester introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant."
In Cachia, it was argued that Guss was wrongly decided and ought not be followed in its affirmation of the general rule that orders for costs are not available to self‑represented litigants. The majority did not accept that argument, but in the course of their criticism of the Chorley exception they said:
"It is ... important to note that no general submission was advanced in [Guss] to the effect that a successful solicitor litigant who acts for himself is never entitled to recover 'costs' in respect of his own time and services."
The majority went on to say:
"If the explanations for allowing the costs of a solicitor acting for himself are unconvincing, the logical answer may be to abandon the exception in favour of the general principle rather than the other way round. However, it is not necessary to go so far for the purposes of the present case. It suffices to say that the existence of a limited and questionable exception provides no proper basis for overturning a general principle which has, as we have said, never been doubted and which has been affirmed in recent times."
In Cachia, Toohey and Gaudron JJ dissented in this regard. Their Honours concluded that the "general principle" should not be applied because of the expansive view they took of the Supreme Court Rules 1970 (NSW), which authorised the making of orders for costs.
In the view of the majority in Cachia, if the anomaly were to be removed by abolishing the general rule, it could appropriately be done only by legislation and not judicial decision. It was noted that this course had been taken in England. It may also be noted that in New Zealand, suggestions that the courts should abrogate the general rule have been rejected on the basis that such a course is a matter for the legislature. In Canada, on the other hand, the courts have not shrunk from abrogating the general rule by judicial decision.
The majority in Cachia, in rejecting the argument that the Chorley exception disproves the general rule, noted that "[i]f costs were to be awarded otherwise than by way of indemnity, there would be no logical reason for denying compensation to a litigant who was represented" and "[t]hat would in some cases dramatically increase the costs awarded to a successful litigant", especially in corporate litigation of complexity where a litigant "may expend considerable time and effort in preparing its case". Further, so far as the general rule is concerned, and "[p]utting to one side the question posed by the relatively rare exception of a solicitor acting in person, there is no inequality involved: all litigants are treated in the same manner". On the other hand, "if only litigants in person were recompensed for lost time and trouble, there would be real inequality between litigants in person and litigants who were represented, many of whom would have suffered considerable loss of time and trouble in addition to incurring professional costs". These considerations weighed with their Honours in declining the invitation to abolish the general rule on the basis that such a course was a matter for the legislature. Importantly for present purposes, their Honours recognised that the Chorley exception, though "relatively rare", involved inequality before the law.
For these reasons, in the absence of a compelling reason to the contrary, this Court should now accept the "logical answer" and hold that the Chorley exception is not part of the common law of Australia, as foreshadowed by the majority in Cachia.
Independently acted upon?
The respondent advanced several arguments with a view to identifying a compelling reason to maintain the authority of Guss and Chorley.
The respondent emphasised that there had been no rejection of the Chorley exception by any Australian legislature. It was said that if Guss were to be overruled in relation to its acceptance of the Chorley exception, the intention of the various legislatures would be subverted. In particular, the respondent argued that the Civil Procedure Act itself embraced the Chorley exception. She submitted that the New South Wales legislature demonstrated an intention to maintain the Chorley exception by explicitly including within the definition of "costs" the different types of costs, such as "fees, disbursements, expenses and remuneration".
In particular, it was argued on behalf of the respondent that the word "remuneration" in the definition of "costs" is apt to encompass costs within the Chorley exception. The respondent submitted that the recovery by a lawyer for work on his or her own case is "remuneration" for the exercise of professional skill by a qualified legal professional. On the other hand, it was said that there is no basis for valuing the work of a non‑lawyer because he or she cannot recover "remuneration for the exercise of a professional skill which he has not got".
This argument should be rejected. Both the anomalous nature of the Chorley exception, and the difference between the position of a lawyer acting for himself or herself and that of a lawyer representing another person, are reflected in the definition of "costs" in s 3(1) of the Civil Procedure Act. That definition is a "means and includes" definition. In BHP Billiton Iron Ore Pty Ltd v National Competition Council, this Court explained that:
"As a general proposition, the adoption of the definitional structure 'means and includes' indicates an exhaustive explanation of the content of the term which is the subject of the definition, and conveys the idea both of enlargement and exclusion. In doing so, the definition also may make it plain that otherwise doubtful cases do fall within its scope."
In s 3(1) of the Civil Procedure Act, the "means" part of the definition, in referring to "costs payable", is a restatement of the general rule that costs are awarded only for professional costs actually incurred. The "includes" part of the definition, in referring to "remuneration", can be seen readily enough to encompass remuneration for professional services rendered under a contract of service as well as remuneration for professional services rendered under a contract for services. In so doing, it "makes plain" that the cost of professional legal services rendered by an employed lawyer is included in the definition of "costs". The definition, being otherwise exhaustive, leaves no room for the Chorley exception as a matter of legislative intention. "Remuneration" is simply not a word which is apt to include the notion of payment to a person by himself or herself for work done by himself or herself.
By contrast, in McGuire v Secretary for Justice, the Supreme Court of New Zealand concluded by majority that the applicable rules of court "proceed on the basis of the continued operation of both the [general] rule and the [Chorley] exception".
Unacceptable inconvenience
The respondent argued that serious inconvenience would be occasioned in relation to the use of in‑house solicitors by governments and corporations, including incorporated legal practices, if the Chorley exception were not recognised by this Court as part of the common law. It was argued that governments and other employers, and incorporated legal practices operating through a sole director, would be prevented from recovering costs for professional legal services rendered by employed solicitors.
This submission fails to appreciate that in relation to the use of in‑house solicitors, such arrangements have been treated as being outside the general rule because it is accepted that the recovery of the professional costs of in‑house solicitors enures by way of indemnity to the employer, as is confirmed by the inclusion of "remuneration" in the definition of "costs" in the Civil Procedure Act. Where a government or corporate litigant has been represented by an employed solicitor, the courts have proceeded on the footing that the actual cost to the government or corporation of the legal services provided by its employed solicitor would not exceed, in any substantial amount, the sum recoverable by it for professional legal costs. In Commonwealth Bank of Australia v Hattersley, Davies A‑J explained that:
"[W]here an employed solicitor is involved, the traditional approach has been to award costs on a basis comparable to the costs which would have been incurred and allowed on taxation had an independent solicitor been engaged. The assumption has been made that, in an ordinary case, the indemnity principle will not be infringed by taking this approach."
In Ly v Jenkins, Kiefel J (as her Honour then was) adopted that explanation and the view expressed by Russell LJ, with whom Stamp and Lawton LJJ agreed, in In re Eastwood, decd:
"It is a sensible and reasonable presumption that the figure arrived at on this basis will not infringe the principle that the taxed costs should not be more than an indemnity to the party against the expense to which he has been put in the litigation."
Similarly, in the decision of the Court of Appeal of New Zealand in Henderson Borough Council v Auckland Regional Authority, Cooke J, with whom Woodhouse P and Richardson J agreed, said:
"In New Zealand I do not think it can be said to be improper for an employed barrister to represent his employer ... A fortiori an employed solicitor duly enrolled and with a current practising certificate may properly act as solicitor for his employer. Against that background it appears to me that the fact that an employed practitioner has acted for the successful party is not a sufficient reason for denying that party an award of party and party costs: after all, the time of a salaried employee has been occupied."
A decision by this Court that the Chorley exception is not part of the common law of Australia would not disturb the well‑established understanding in relation to in-house lawyers employed by governments and others, that where such a solicitor appears in proceedings to represent his or her employer the employer is entitled to recover costs in circumstances where an ordinary party would be so entitled by way of indemnity.
Whether the same view should be taken in relation to a solicitor employed by an incorporated legal practice of which he or she is the sole director and shareholder stands in a different position. It might be queried whether such a solicitor has sufficient professional detachment to be characterised as acting in a professional legal capacity when doing work for the incorporated legal practice. And it might be queried whether costs claimed by an incorporated legal practice for work of its sole director and shareholder are within the expansive view of indemnity that has been adopted in the authorities. In this regard, in McIlraith, Brereton J was disposed to attribute "no significance" to the circumstance that the party seeking an order for costs was an incorporated legal practice whose director was the solicitor who actually performed the work for which costs were sought. It is neither appropriate nor necessary to come to a conclusion as to whether Brereton J was correct in this regard.
The resolution of this question may require close consideration of the legislation which provides for incorporation of solicitors' practices and the intersection of that legislation with the provisions of the Civil Procedure Act in light of the general rule; and so the resolution of this question may be left for another day, when all the legislation that bears on the question has been the subject of argument.
It is sufficient for present purposes to say that whether or not an incorporated legal practice that is a vehicle for a sole practitioner should be able to obtain an order for costs for work performed by its sole director and shareholder is ultimately a matter for the legislature. Whether the Chorley exception is part of the common law of Australia is a matter for this Court.
A matter for the legislature
The respondent also argued that this Court should refrain from holding that the Chorley exception is not part of the common law because that is a task more appropriately dealt with by the relevant legislature or rules committee of a superior court. It was said that the legislature would be better placed than a court to decide whether the court's rules of practice should be altered or abrogated. This argument may be disposed of briefly. The majority in Cachia saw great difficulty in resolving the inconsistency between the general rule and the Chorley exception by judicial abolition of the general rule. No such difficulty was said to confront the taking of the logical step of holding that the exception is not part of the common law. The Chorley exception is the result of judicial decision, and it is for this Court to determine whether it is to be recognised in Australia.
Prospective overruling
The respondent submitted that if this Court were to alter or abrogate the Chorley exception, such a change should operate only prospectively so that the decision of the Court of Appeal in this case is not disturbed. Once again, this argument should be rejected for reasons that may be explained briefly. To hold that the Chorley exception is not part of the common law is to hold that there was no basis in law for the decision of the Court of Appeal. In Ha v New South Wales, Brennan CJ, McHugh, Gummow and Kirby JJ said:
"A hallmark of the judicial process has long been the making of binding declarations of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non‑judicial power. Prospective overruling is thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law."
Dawson, Toohey and Gaudron JJ expressly agreed with these observations.
Conclusion and orders
There is no compelling reason for this Court to refrain from taking the "logical step" identified in Cachia. The Chorley exception is not part of the common law of Australia.
The appeal should be allowed. Orders 1 to 4 of the Court of Appeal of the Supreme Court of New South Wales should be set aside. In their place it should be ordered that the summons for judicial review be dismissed and the first respondent pay the appellant's costs in the District Court and the Court of Appeal. The first respondent should pay the appellant's costs of the appeal to this Court.