Blanch v Smith

Category: Costs

Parties: Stephanie Blanch (Appellant)
Kirralie Smith (Respondent)

Representation: Counsel:
T O’Rourke (Appellant)
Solicitors:
Inner City Legal Centre (Appellant)
Solve Legal (Respondent)

File Number(s): 2023/75275

JUDGMENT

Introduction and Background

1. The Appellant successfully appealed against a judgment of the Local Court, declining to grant her an apprehended violence order in the circumstances set out in my judgment of Blanch v Smith [2024] NSWDC 631 (“the Judgment”) delivered on 20 December 2024.

2. The Appellant thereafter made an application for costs.

3. Pursuant to a timetable set by the Court, the Appellant filed written submissions seeking costs and prepared the appropriate affidavit.

4. The Respondent did not wish to be heard and does not challenge the Appellant’s evidence.

The Fees Charged

5. The affidavit filed for the Appellant from Karen Rita Beashel, Principal Solicitor of the Inner City Legal Centre, dated 3 February 2025 provides the following unchallenged evidence:

6. The Inner City Legal Centre appeared for the Appellant both in the Local Court and on the Appeal on a no fee or pro bono basis.

7. Tahn O'Rourke was retained as Counsel on the Appeal on a conditional basis on the terms set out in her costs agreement dated 12 July 2024, which was accepted by the Appellant as a condition of Ms O’Rourke taking the brief to advise and appear.

8. That agreement provided relevantly that:

(a) Payment is conditional on the successful outcome of the matter and the granting of her fees through an order for the payment of her costs by the Court; (b) Ms O’Rourke’s daily hearing fee was $2,400.00 for every day or part thereof occupied by, listed or set aside for any Court appearance; (c) A directions hearing fee of $500.00 for mentions and directions hearing; (d) An hourly rate of $240.00 rounded up to the nearest quarter hour, for conferences, chamber work (including reading, researching and preparing written advice) and preparation; (e) The ability to pass on any disbursements such as photocopying and printing; and (f) The charges were exclusive of GST.

4. On the successful outcome of the proceedings in favour of the Appellant, on 3 February 2025, Ms O’Rourke rendered a Tax Invoice in the sum of $8,624.55 plus GST in the sum of $862.45, totalling $9,487.000.

5. That Tax Invoice was attended with a schedule itemizing the work done by Ms O’Rourke in the preparation of the matter.

6. The Respondent does not challenge that the fees are reasonable both as to the hourly rate and the extent of preparation.

7. To the extent necessary to do so where there is no challenge by the Respondent, given the complexity of the matter, I find that the fees are entirely reasonable.

Resolution of the Application and Reasons to Order Costs

8. This application for costs is confined to the costs incurred in preparing for and concluding the appeal before the District Court.

9. Whether or not the Court awards costs in favour of the Appellant is a matter of discretion for the Court.

10. Costs in regard to applications under the Crimes (Personal and Domestic Violence) Act 2007 (NSW) (the Act) are governed by s 99.

11. Relevantly s 99 provides that:

12. Costs that can be claimed extend to professional expenses and disbursements (including witnesses’ expenses) in respect of proceedings before a court (but not court fees payable to a court).

13. A court may, subject to s 99A, award professional costs.

14. The costs must be paid by the person to the registrar of the court, for payment to the applicant, in the case of costs awarded against a defendant.

15. An order as to professional costs may specify the amount of any professional costs payable or may specify that it is to be the amount as agreed or assessed.

16. The Appellant relied on the observations made by Gleeson CJ at [79] of Ohn v Walton (1995) 36 NSWLR 77. In short, it is just and reasonable that the successful party should be reimbursed for costs incurred, by way of compensation for costs incurred, so long as it is not otherwise unjust or unreasonable.

17. Section 28 of the Crimes (Appeal and Review) Act 2001 (NSW) (‘CARA’) provides that in determining an appeal, the District Court may exercise any function that the Local Court could have exercised in the original proceeding.

18. Subject to s 70 of the CARA, the District Court may make such order as to the costs to be paid by either party (including the Crown) as it thinks just.

19. The Appellant caused Counsel’s costs to be incurred, the subject of a conditional costs agreement and ought be reimbursed for those costs. The Inner City Legal Centre appeared for the Appellant before the Local Court and the District Court on a no cost basis. As a result, no costs are claimed or could be ordered for the representation by the solicitors in either jurisdiction.

20. It is just and reasonable that the Respondent pay the amount claimed by the Appellant for Counsel in respect of the appeal. It was appropriate to brief Counsel in such a case. Counsel appeared for the Respondent. To use the words of Kiefel J (as her Honour then was) in Ly v Jenkins (2001) 187 ALR 178 at [161] (a decision relied on by the Appellant), such an order would be “just in the outcome and reasonable in its terms.”

21. For the reasons set out in the Judgment, the Appellant has been put to considerable expense in protecting her rights. She was the victim of “a sustained campaign of belittling, harassment and intimidation” and did nothing to bring this case upon herself other than to protect those rights. The matter was made more complex, necessitating the need for Counsel, by the Respondent’s reliance on the constitutional matter.

22. Finally, it is in the public interest that Counsel take briefs on a conditional costs basis so as to afford litigants the opportunity of obtaining proper legal representation. Appropriate costs orders when their clients have been wholly successful ought be made.

23. Costs are only to compensate the Appellant. They are not to punish the Respondent. There is no submission put by the Respondent that for any reason, the Appellant having been successful, she ought not have her costs.

24. In those circumstances, I make the order for costs.

Is it Appropriate to make an Order Specifying the Amount?

21. There is incontrovertible evidence that the costs were incurred. There is no submission put that those costs are not reasonable.

22. This case was complex and in particular the Respondent invited the Court to embark on a detailed consideration of constitutional questions. The Respondent was represented by a solicitor and Counsel, as was the New South Wales Attorney-General, who was required by the Respondent’s approach, to intervene. It is not suggested that the approach was unreasonable. It does however make the Appellant’s claim for Counsel’s costs entirely reasonable.

23. In all the circumstances it is just and reasonable to make an order for costs in the total amount set out in Counsel’s Tax Invoice. That is the amount sought in the Appellant’s written submissions and about which the Respondent takes no issue. It is also in my view entirely reasonable having regard to the complexity of the case.

24. The costs are to be paid within 28 days.

Orders

25. I make the following orders:

26. The Respondent is to pay the Appellant’s costs in the sum of $9487.00.

27. The Costs set out in Order 1 are to be paid within 28 days, that is by Friday 25 April 2025.

28. Such costs are to be paid by the Respondent to the Registrar of the District Court to be paid to the Appellant.

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