Burrows v Macpherson & Kelley Lawyers

td (2020) 102 NSWLR 259; [2020] NSWCA 98 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33 Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; [2003] NSWCA 10 Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268; [2000] NSWCA 294 James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 Maund v Crown in right of the State of New South Wales [2013] NSWCA 226 McIlwraith v Ilkin (Costs) [2007] NSWSC 1052 Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 94 ALJR 818 New South Wales v Commonwealth (2006) 229 CLR 1; [2006] HCA 52 Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150 PM Works Pty Ltd v Management Services Australia Pty Ltd trading as Peak Performance PM [2018] NSWCA 168 Prest v Petrodel Resources Ltd [2013] 2 AC 415; [2013] UKSC 34 Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34 The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 The London Scottish Benefit Society v Chorley (1884) 13 QBD 872 United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15 Wilkie v Brown [2016] NSWCA 128 Texts Cited: A Burrows, "The Relationship Between Common Law and Statute in the Law of Obligations" (2012) 128 Law Quarterly Review 232 C Witting, Liability of Corporate Groups and Networks (Cambridge University Press, 2018) Category: Principal judgment Parties: Zali Burrows (Applicant) Macpherson & Kelley Lawyers (Sydney) Pty Ltd (First Respondent) Melinda Di Condio (Second Respondent) Representation: Counsel: R Winfield (Applicant) D Neggo (Respondents)

Solicitors: Macpherson Kelley Pty Ltd (Respondents) File Number(s): 2020/219817; 2020/17047 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: Unreported Date of Decision: 20 December 2019, 26 February 2020, 28 February 2020 Before: Craig QC ADCJ File Number(s): 2015/00323343

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] Ms Burrows retained Macpherson & Kelley (Sydney) Pty Ltd ("M&K Sydney") to act for her in proceedings in the Family Court in 2011 against her former partner, Mr Alexander. Ms Di Condio was the solicitor with carriage of Ms Burrows' matter. On 4 October 2011, the Family Court made a costs order in favour of Ms Burrows. On 1 February 2012, M&K Sydney erroneously applied to the Supreme Court to have the costs assessed; the application was returned to M&K Sydney the following day and refunded. On 18 April 2012, Ms Burrows wrote personally to the Family Court saying she was self-represented. It appears, however, that she continued to receive advice from M&K Sydney. In October 2012, Ms Burrows applied to the Family Court to quantify the costs order. Other substantive aspects of the Family Court proceedings remained in dispute at that time. There was evidence indicating Ms Burrows was represented by Legal Aid in relation to parenting matters and appeared for herself in relation to costs. On 2 August 2013, the Registrar made orders in terms of "Consent Orders" signed by the parties, which commenced with the words "That all prior Orders are discharged and dismissed". In November 2015, Ms Burrows sued M&K Sydney and Ms Di Condio in contract and in tort in the District Court, claiming they had caused her loss by failing to enforce the 4 October 2011 costs order. M&K Sydney was represented in the District Court proceedings and the subsequent appeal by M&K Lawyers Group Pty Ltd ("M&K Lawyers Group"), an incorporated legal practice and the sole shareholder of M&K Sydney (which had ceased to carry on business by the time of the District Court proceedings). The amount recoverable under the costs order appears to have been some $12,239.83 (the total fees charged by counsel and solicitors were $4,785 and $12,763.35 respectively). Ms Burrows claimed an additional $50,000 for aggravated damages and $50,000 for exemplary damages. It was common ground that the costs assessment application made to the Supreme Court had been misconceived and should have been brought in the Family Court. Rule 19.21 of the Family Law Rules 2004 (Cth) provided that "[a] person entitled to party and party costs must serve an itemised costs account on the person liable to pay the costs within 28 days after the end of the case". The primary judge found that although r 19.21 imposed an obligation to serve an itemised cost account, the parties had continued in dispute after 1 November 2011 as Mr Alexander had filed an application on that date seeking that the costs order (and other orders) be discharged. His Honour rejected Ms Burrows' submission that the orders of 2 August 2013 were limited to discharging the parenting orders and did not extend to the costs order. His Honour further held that even if that construction were wrong, since Ms Burrows' application to the Family Court to have the costs assessed had been made after she had terminated her retainer with M&K Sydney, it was for her to pursue and agitate it, which she had failed to do. It followed that she had not demonstrated damage caused by the respondents for the purposes of her negligence claim and she had failed to mitigate any loss for her contract claim. Ms Burrows' claims for exemplary and aggravated damages were also dismissed. M&K Sydney thereafter sought a gross sum costs order against Ms Burrows in the amount of $130,000. The motion was listed for 6 February 2020, however Ms Burrows sought and obtained an adjournment until 26 February 2020. On 26 February, counsel for Ms Burrows sought a further adjournment to 28 February 2020, which was refused. The primary judge made a lump sum costs order in favour of M&K Sydney in the amount of $130,000. Ms Burrows sought leave to appeal to the Court of Appeal in respect of the substantive decision, the second adjournment decision and the costs decision. The application for leave was heard concurrently with the substantive issues on appeal. The issues on appeal were: (i) whether the primary judge erred in finding that M&K Sydney had not been required to serve an itemised costs account by 1 November 2011 and that the 4 October 2011 costs order had been discharged by the orders of 2 August 2013, such that no breach of duty of care or contract by M&K Sydney, and no loss by Ms Burrows, had been established (grounds 1-12 and 13.1); (ii) whether the primary judge erred in refusing Ms Burrows' second adjournment application, and whether that refusal amounted to a denial of procedural fairness (grounds 15-17); and (iii) whether the primary judge misapplied Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007 in awarding costs in favour of M&K Sydney in respect of work done by M&K Lawyers Group (grounds 13.2 and 14). The Court held, granting leave to appeal in respect of proposed grounds 13.2 and 14 and dismissing the appeal: As to issue (i), per Leeming JA (Meagher JA and White JA agreeing):

Judgment

1. MEAGHER JA: I have had the benefit of reading Leeming JA's judgment in draft. Unless indicated otherwise in what follows, I agree with his Honour's reasons and proposed orders. In my additional observations with respect to proposed grounds of appeal 13.2 and 14 I have adopted his Honour's abbreviations for the two incorporated legal practices.
2. The first, M&K Sydney, was the client and a wholly owned subsidiary of the second, M&K Lawyers Group, which provided legal services to the first. Until about October 2012 M&K Sydney carried on a legal practice under the name "Macpherson Kelley". From that time M&K Lawyers Group conducted the legal practice carried on under that name. In mid-July 2011 Ms Burrows retained M&K Sydney to act for her in Family Court proceedings. That retainer continued until October 2012. It is not suggested that M&K Lawyers Group ever provided legal services to Ms Burrows. The negligence proceedings brought by her against M&K Sydney were commenced in November 2015. M&K Lawyers Group acted on behalf of M&K Sydney in the defence of those proceedings.

The power to award costs and Bell Lawyers

1. In Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 93 ALJR 1007 the question was whether a barrister, who whilst retaining an incorporated legal practice to act on her behalf had also undertaken preparatory legal work as a party to proceedings, was entitled to recover her "fees" for doing so pursuant to a costs order made in her favour. In the present case the question is whether M&K Sydney as the defendant in proceedings brought by Ms Burrows was entitled to an order for payment of legal costs said to be due to M&K Lawyers Group for professional legal services provided by it in those proceedings.
2. The answers to these questions ultimately turn on whether the expenditure or fees in issue were or are recoverable as "costs" ordered to be paid by a Court in New South Wales exercising the power conferred under Civil Procedure Act 2005 (NSW), s 98(1).
3. Recognising that to be the position, in Bell Lawyers the plurality addressed the "proper effect" of section 98(1), taking account of the definition of "costs" in section 3(1), in the context of the "broader question whether the Chorley exception" remained part of the common law of Australia (at [13]-[16]).
4. The "Chorley exception" was a qualification to the general principle according to which the statutory authority to award costs has been understood and exercised (per Gageler J at [59]). That general principle continues to be that according to the common law "costs are awarded by way of indemnity (or, more accurately, partial indemnity) … for professional legal costs actually incurred in the conduct of litigation" (Cachia v Hanes (1994) 179 CLR 403 at 410-411; [1994] HCA 14). Under the exception "a self-represented litigant who happens to be a solicitor may recover his or her professional costs of acting in the litigation" (plurality in Bell Lawyers at [1]).
5. In Bell Lawyers it was decided (Nettle J dissenting) that the Chorley exception is not a part of the common law of Australia.
6. Had the Chorley exception continued as a qualification to the general principle informing the common law notion of costs, the existence of that qualification to the general principle would have been a factor to be taken into account in construing the language of section 98 and the "costs" definition in section 3(1). See Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269; [2003] HCA 33 at [36] (per McHugh J); and Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309; [2004] HCA 40 at [19] (per Gleeson CJ).

The present case and Bell Lawyers

1. Applying the construction of "costs payable" (s 3(1)) adopted by the plurality and Gageler J, it is necessary that M&K Sydney as client incurred a liability to M&K Lawyers Group, as legal services provider, for the professional costs sought to be made the subject of the award of costs in the District Court. Subject to Ms Burrows' contention, dealt with below, that question should be answered in the affirmative. The latter's undertaking and provision of the relevant legal services pursuant to an express or implicit request that it do so gave rise to an entitlement to be paid.
2. If her contention that M&K Sydney and M&K Lawyers Group were to be regarded as one and the same legal entity (whether incorporated or not is not clear) is made out, it would follow that there could be no "costs payable" within the first part of the section 3(1) definition. However, for the reasons given by Leeming JA there is no basis in the evidence for disregarding the legal reality of the separate incorporated legal practices. The first was alleged to have incurred a liability to Ms Burrows at a time when it was carrying on a legal practice as Macpherson Kelley. The second then provided legal services to the first in the proceedings subsequently brought by Ms Burrows and at a time when it was carrying on that legal practice.
3. That conclusion makes it unnecessary to consider what the position may have been if there was only one incorporated legal practice which was both party to the litigation and acting for itself by its employed solicitors in defending it. It would seem that the cost to the incorporated legal practice of providing the services of its employed lawyers would be within the extended definition of "costs" (Bell Lawyers at [44], [50], [60], [68]), the present case not being one in which the party seeking the order for costs is an incorporated legal practice and the costs claimed are for work performed by its sole director and shareholder.
4. LEEMING JA: This application for leave to appeal, which was heard concurrently as if it were an appeal, is brought from three judgments of the District Court. The applicant, Ms Zali Burrows, was a party to proceedings in the Family Court in 2011. She retained the first respondent, Macpherson & Kelley (Sydney) Pty Ltd ("M&K Sydney"), to act for her. The second respondent, Ms Melinda Di Condio, was the employed solicitor who had carriage of the matter. Years later, Ms Burrows sued the respondents in the District Court, claiming they had failed to enforce a costs order obtained in her favour. By that time, M&K Sydney had ceased to carry on business, although the company continued in existence. Its sole shareholder, Macpherson Kelley Pty Ltd, then known as M&K Lawyers Group Pty Ltd ("M&K Lawyers Group"), was an incorporated legal practice which conducted the defence of the District Court proceedings on behalf of its subsidiary. After a four day trial, Ms Burrows' proceedings were dismissed. M&K Sydney then sought a lump sum costs order, which was opposed. The District Court granted one adjournment sought by Ms Burrows, but refused a second, and ultimately made a lump sum costs order.

Challenge to the principal judgment (proposed grounds 1-12)

1. Proposed grounds 1-12 allege error in the principal judgment of the District Court dismissing Ms Burrows' action, heard over four days, for a relatively small amount of damages, all said to be derived from her former solicitors' failure to enforce a costs order in her favour made by the Family Court. It is not necessary to summarise the proposed grounds of appeal, save to say that they seek to challenge many aspects of his Honour's reasons on breach, loss, the construction of the Family Law Rules and the orders made by the Family Court.

Costs ordered by the Family Court

1. Ms Burrows retained M&K Sydney in around July 2011 to act on her behalf in Family Court proceedings. The litigation was listed for an interlocutory hearing on 4 October 2011, and M&K Sydney had retained counsel to appear at that hearing. It is not perfectly clear, but it appears that Mr Chris Frawley was the solicitor on the record as acting for Ms Burrows. He was at the time a "Principal Lawyer" of M&K Sydney, which he said was "roughly equivalent" to a partner. It also appears that at no stage was any of his time billed in respect of Ms Burrows' proceedings in the Family Court.
2. Shortly before the hearing on 4 October 2011, it seemed that the dispute had been resolved. Orders in respect of the children were made by consent on the day. Costs of the litigation remained in issue. On 4 October 2011, the Family Court, constituted by a Principal Registrar, heard argument, gave brief reasons and ordered: "2. The mother's costs be paid by the father Stephen Alexander on a party/party basis as agreed or in default of agreement, as assessed. 3. That Counsel's costs are certified."
3. The fees charged by counsel and the law firm were $4,785 and $12,763.35 respectively. At trial, Ms Burrow's case was that the total amount that could be recovered under the order for solicitor costs and disbursements, including counsel fees, based on Schedule 3 of the Family Law Rules 2004 (Cth) in the form it then took, was $12,239.83. (There was a dispute, not resolved during the hearing in this Court, and which need not be resolved for present purposes, whether the cost assessor's report from which this amount was derived was ultimately read. The amount was mentioned in the parties' submissions and in the judgment of the primary judge.)

Ongoing proceedings in the Family Court

1. On 1 November 2011, Mr Alexander filed an application seeking that the costs order be discharged (this appears to have been pursuant to r 18.08(2) of the Family Law Rules). However, it seems that his application was not immediately served.
2. The primary judge proceeded on the basis that Ms Burrows terminated the retainer with her solicitors at some stage thereafter (at [34]). Based on the submissions in this Court, I think that finding was wrong, although it is easy to see why his Honour concluded that that had occurred prior to 18 April 2012. By letter of that date, to which the primary judge referred, Ms Burrows wrote personally to the Family Court seeking an assessment of the costs order, saying that she had formerly been represented by M&K Sydney but was now self-represented. However, Ms Winfield, who appeared for Ms Burrows in this Court but not in the District Court, pointed to emails between Ms Burrows and Ms Di Condio at around this time, and also to the firm's time costing, which suggested that advice was still being provided, and in some cases correspondence drafted, by employed solicitors in the firm, and that Ms Burrows was advised that it would be in her interests to make her application as an unrepresented litigant. On the view I take, nothing turns on this error of fact.
3. What precisely happened to Mr Alexander's application is not clear from the materials. It is clear that an application was made (in around February 2012) to the Supreme Court for the costs order to be assessed. Ms Burrows submits, and it may be the case, that M&K Sydney was involved in making that application. It is common ground that that application was misconceived, and that the order if it were to be quantified needed to be the subject of an application to the Family Court under Schedule 3 of the Family Law Rules. Part of Ms Burrows' complaint concerns the costs incurred needlessly in making the application to the Supreme Court. By my count around $648 was involved. According to Ms Winfield, the amount was closer to $2,400. I suspect that Ms Winfield's sum includes amounts after 2 February 2012 when it became clear that the application had to be made under the Family Law Rules rather than to the Supreme Court.
4. Around a year after the costs order had been made, in October 2012, Ms Burrows made an application to the Family Court to quantify the costs order. The documents relating to that application appear not to have been in evidence. However, it seems clear from further documents supplied to the Court during the hearing of the appeal without objection, which had inadvertently been omitted from the appeal book although they had been tendered at trial (they became pages 923A-C of the blue book) that that dispute was live until at least August 2013, because it was specifically addressed by order 12 made by a Registrar on 5 June 2013 under the heading "Costs". The same document records that a solicitor apparently from Legal Aid appeared for Ms Burrows in relation to "Parenting", while Ms Burrows appeared for herself in relation to "Costs".

Proceedings in the District Court

1. In November 2015, Ms Burrows sued her former solicitors in contract and tort in the District Court. Her principal complaint was that they had caused her loss by failing to enforce the costs order in her favour made on 4 October 2011. She relied upon r 19.21 of the Family Law Rules 2004 which required a person entitled to party/party costs to serve an itemised costs account on the person liable to pay the costs "within 28 days of the end of the case". By the time of the trial, it was accepted that no such itemised cost account was supplied.
2. It is not necessary to summarise all of the defences advanced by the first respondent at trial. Not all were successful. Nonetheless, by judgment delivered on 20 December 2019, the primary judge entered judgment for the defendants.
3. His Honour's reasons may sufficiently be summarised as follows.
4. First, the primary judge appears partially to have accepted Ms Burrows' submission that there was an obligation to serve an itemised costs account in accordance with r 19.21, but nonetheless found that the parties continued in dispute, reflected in the extant challenge by Mr Alexander to discharge the costs order and other orders after 1 November 2011.
5. Secondly, the primary judge rejected Ms Burrows' submission that the consent orders made on 2 August 2013 were limited, as a matter of construction, to discharging the parenting orders and did not discharge the costs order. His Honour relied, inter alia, upon the ordinary meaning of the words of the order, coupled with the fact that the parenting orders themselves had also been made on 4 October 2011, and the costs order made on that date was merely consequential.
6. Thirdly, in the event that that construction of the orders were wrong, the primary judge stated that her application for payment of a fixed sum or leave to bring an assessment remained to be determined, but since her application had been made subsequent to terminating M&K Sydney's retainer (which his Honour regarded as occurring no later than 18 April 2012), it was for her to pursue and agitate it, which she had failed to do. It followed that she had not demonstrated damage caused by the respondents for the purposes of her claim in negligence. It also followed, according to his Honour, that she had failed to mitigate any loss for the purposes of her claim in contract.

Leave should not be granted in respect of proposed grounds 1-12

1. In light of the above, these proposed grounds may be resolved concisely.
2. First, the claims for aggravated and exemplary damages were at all times scarcely arguable, if indeed they were arguable at all. None of the proposed grounds challenged the rejection of those claims. Exemplary damages are not available for breach of contract: Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; [2003] NSWCA 10 at [28]. They are not available for a claim in negligence where there was no conscious wrongdoing, and no conscious wrongdoing was alleged: see Gray v Motor Accident Commission (1998) 196 CLR 1; [1998] HCA 70 at [22]. It is unnecessary to consider the availability of aggravated damages (which this Court doubted were available in negligence in Hunter Area Health Service v Marchlewski (2000) 51 NSWLR 268; [2000] NSWCA 294 at [110]) because once again nothing was alleged that was reasonably capable of warranting any award of such damages even if they were available. It follows that the amount in issue in this part of the appeal is very substantially less than the $100,000 threshold imposed by s 101(2)(r) of the Supreme Court Act 1970 (NSW).
3. Secondly, the costs of preparing for and running a four day trial in the District Court must vastly have exceeded the original claimed failure to enforce an interlocutory costs order, which Ms Burrows quantified at $12,239.83. Regrettably, litigation where the costs exceed the amount in issue is not unfamiliar. Such litigation is a poor candidate for a grant of leave. Section 60 of the Civil Procedure Act 2005 (NSW) reflects an important legislative purpose that costs be proportionate to what is at stake: see Condensing Vaporisers Aust Pty Ltd trading as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [25] and [28].
4. Thirdly, it is generally only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable: The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]. Plainly, proposed grounds 1-12 raise no question of principle or public interest.
5. Further, none of Ms Burrows' submissions raises a reasonably clear injustice. Indeed, none identifies even a reasonably arguable error which might, if corrected, lead to a different outcome. That is so for the following reasons.

Challenge to the refusal of the second adjournment (proposed grounds 15-17)

1. These proposed grounds challenged the dismissal of Ms Burrows' application for an adjournment on 26 February 2020. Grounds 15 and 17 assert error in refusing the adjournment, and ground 16 alleges that there was a denial of procedural fairness because Ms Burrows would have been "allowed" to address the complexities in the relationship between the two incorporated legal practices and whether one was independent from the other. Ms Burrows adduced evidence that had the adjournment been granted, she would have tendered documents suggesting a close relationship between M&K Sydney and M&K Lawyers Group. These included statements of a trust account (which showed that $50 held by M&K Sydney on trust for her was transferred to a trust account of M&K Lawyers Group in her favour), correspondence of M&K Lawyers Group with a footer that referred to "Macpherson + Kelley Lawyers (Sydney) Pty Ltd" and other emails which illustrated a confusion between M&K Sydney and M&K Lawyers Group. All were said to refute representations which were said to have been made to the Court that the two companies were independent.

Factual background

1. Judgment on Ms Burrows' action was delivered on 20 December 2019. The primary judge directed that any application for a special costs order be notified by 24 January 2020. Notification was given on that day that a gross sum costs order in the amount of $130,000 was sought against Ms Burrows, based on a series of non-compliances with directions and the previous history of Ms Burrows contesting her obligation to pay outstanding fees which had been assessed. The motion was listed on 6 February 2020. Ms Burrows sought an adjournment for 8 weeks, based on the size of the amount, the decision in Bell Lawyers, the fact that she was a sole practitioner mostly appearing in legal aid matters, and the fact that a further affidavit of Mr Frawley had only just been served. The application was not made by motion, was unsupported by evidence and appears only to have been notified by email on the previous evening. Counsel appeared on Ms Burrows' behalf, and obtained an adjournment, in circumstances which the primary judge described as "entirely unsatisfactory", on the basis that the Bell Lawyers decision raised an important point of principle. His Honour directed an exchange of outlines of submissions, and that Ms Burrows file and serve any evidence in response by 19 February 2020, and set the motion for hearing on Wednesday 26 February 2020.
2. No part of Ms Burrows' application for leave to appeal challenges that decision.
3. It must have been clear to all that the adjournment for 20 days granted on 6 February was unlikely to be extended further without good reason. Yet Ms Burrows filed no evidence nor any outline of submissions as directed. Counsel appeared for her on 26 February to seek a further adjournment until Friday 28 February at 2pm. He told the Court, in answer to his Honour's question, that no previous notice had been given to the other side of the application. He tendered an email which suggested that Ms Burrows' computer had malfunctioned on the previous day. No other evidence was tendered. The respondents opposed the application for an adjournment, saying that no basis had been put forward for a second adjournment and that he was not confident that the matter could be heard and determined on the Friday afternoon. During submissions, the trial judge explored in some detail the possibility and practicality of the hearing being adjourned until Friday, but ultimately refused the adjournment, giving an oral judgment.

Reasons of the primary judge

1. After setting out the background and the parties' submissions, the primary judge gave the following dispositive reasoning: "Having heard the respective arguments, I invited Mr Foster to seek instructions from the plaintiff in order to determine two matters. First, if I was to adjourn the matter and gave directions for a written outline of submissions by 5pm tomorrow, whether that direction would be likely to be met. Upon his return to court he indicated that would be so. That said, while it may reflect the present intention of the plaintiff, taking into account her history of compliance with procedural directions, both in the substantive proceedings and in the various interlocutory steps that preceded it, as recorded in the affidavit of Mr Frawley, that history shows compliance with such directions to be poor. Indeed, the plaintiff's failure to comply with directions given for the conduct of the present motion demonstrated that to be the case. The second matter, which is of concern, arose out of the capacity of the plaintiff to argue the case on Friday. Mr Foster fairly stated that he was in another case on Friday and that he was not confident that he would necessarily be available to advance the submissions intended to be put on behalf of the plaintiff. Should he not be available, then it was left uncertain as to who it was who would appear for the plaintiff, whether herself or some other legal practitioner. That is unsatisfactory. As I had indicated on the last occasion and repeated again this morning, the essential issue that seems to arise in this notice of motion is the entitlement of the defendant to recoup its professional costs as a result of its success in the proceedings, having regard to the decision in Bell Lawyers. There the question arose, but was not decided as to whether an incorporated law practice had the same advantage in being able to recoup costs as did a corporation, who employed lawyers to conduct its litigation. It is unfortunate that I am not given the benefit, nor is Mr Neggo given the benefit, of a written outline of submissions directed to that important topic for consideration today. I am conscious of the fact that, although the plaintiff framed her case in a way which was very optimistic as to the damages she would succeed in recovering, in reality her case was all about a sum of money that was little more than $12,000, as is reflected in my principal judgment. The costs incurred in this litigation now seem to be out of all proportion to the amount that was originally at stake. In the circumstances it seems that the proceedings must be brought to an end and brought to an end promptly. For those reasons I am not prepared to grant the adjournment that has been sought."

Leave should not be granted

1. Very little was said in support of these proposed grounds orally. Ms Burrows' written submissions advanced only two points. One was that in circumstances where the primary judge had reserved for 20 months, a short extension was not unreasonable, in light of her other professional and personal commitments. The second was that she was unable to retrieve from her computer documents which asserted the lack of independence between the two incorporated legal practices.
2. The time taken for the primary judge to deliver the substantive judgment is regrettable, but provides no sound reason for Ms Burrows to obtain a second adjournment of a hearing concerning costs, in circumstances where she had repeatedly failed to comply with the court directions and provided no evidentiary basis for her application, save that her computer had broken the previous day. There was nothing to suggest that Ms Burrows had taken any steps to prepare evidence by the (already adjourned) date of 19 February 2020. There was no explanation for the continuing failure on the part of Ms Burrows to comply with directions. There was no explanation for the absence of earlier notice of the application for an adjournment (which appears only to have been given minutes before it was made).
3. Ms Burrows and her counsel, and the Court, were subject to the overriding obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings. Section 56(3) of the Civil Procedure Act 2005 (NSW) imposed a duty upon Ms Burrows "to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court". Plainly that duty was breached, repeatedly, and without real explanation. I do not regard the assertion that Ms Burrows' duties to another client in a criminal trial precluded or excused her from complying with her own obligations as plaintiff in civil proceedings commenced by her against her former solicitors, for the entirety of February, as a satisfactory explanation. The fact that Ms Burrows was not only a party but a legal practitioner meant that she should have been acutely conscious of her obligations to the Court.
4. Granting the adjournment would have increased costs, in a matter that was only about costs, and in which costs already had exceeded, by an order of magnitude, the principal claim. Granting the adjournment would also have increased delay, and run the risk, in the event the hearing could not be completed in the time available on Friday, of substantially increasing delay. There was no basis founded in evidence to think that a hearing on the Wednesday would be less just than a hearing on the Friday. Indeed, practicalities favoured proceeding on the Wednesday, being a day when counsel for Ms Burrows was in fact available. He had other commitments on Friday, and it was not clear how extensive those commitments would prove to be.

The challenge to the costs order (proposed grounds 13 and 14)

1. Ms Burrows submitted that the abolition of the "Chorley exception" in Bell Lawyers meant that the costs order ought be set aside and replaced by one confined to the actual disbursements incurred by the first respondent, exclusive of the costs based on the time and hourly rates of principals and employed solicitors of the successor incorporated legal practice.
2. This was argued by counsel on both sides before the primary judge on Wednesday 26 February 2020. The primary judge reserved and delivered judgment that Friday 28 February 2020. His Honour considered that the principle identified in Bell Lawyers was "directed to the identification of the legal entities, namely the companies, that differed as between the defendant and the incorporated legal practice representing the defendant company in these proceedings". It followed that there was no self-representation. His Honour saw no basis to lift the corporate veil. This amounted to an acceptance of the primary submission advanced on behalf of the respondents.
3. The primary judge noted that Ms Burrows accepted the appropriateness of a lump sum of $130,000, including disbursements of $38,651.63, in the event that he came to the conclusion as to the effect of Bell Lawyers which he reached.

New submissions on appeal

1. Ms Burrows' oral submissions raised a range of considerations which her counsel accepted (transcript, 19 February 2021, p 32) had not been made to the primary judge. This included that there was no evidence of any tax invoice rendered, or disclosure in accordance with the rules, or indeed any obligation to pay let alone capacity to pay.
2. The respondents maintained that there was plainly albeit implicitly a request to the new incorporated legal practice to provide legal services to defend the District Court action. Even if there were no contract, the performance of work pursuant to a request gave rise to an entitlement to be paid. The non-compliance with disclosure and the non-existence of any tax invoice was not to the point, so it was said, in circumstances where Ms Burrows at first instance had agreed on quantum and the appropriateness of a lump sum costs order, and made a single submission, namely, that Bell Lawyers stood in the way of any recovery in respect of work done by the firm.
3. I agree with the respondents. The evidence established work done by M&K Lawyers Group at the request of M&K Sydney. That gives rise to either a contractual or a quasi-contractual liability on the part of the client. Of course, that entitlement may be subject to statute, and if there were non-compliance with the costs disclosure obligations in ss 174-177 of the Uniform Law, then s 178 provided that the client was not required to pay the costs, and the law practice was forbidden to commence or maintain proceedings to recover the costs, until those costs had first been assessed. The operation of those provisions in relation to an incorporated legal practice providing legal services to its own subsidiary is far from clear, but I see no reason why any contravention, even if established, precludes the making of a lump sum costs order. I note that such an order was made in Bechara trading as Bechara and Company v Bates [2016] NSWCA 294 where similar points were raised but not fully argued.
4. I am conscious that applications for lump sum costs orders can give rise to acute conflicts where fees are high or where there is a dispute as to whether the disclosure requirements have been satisfied: see for example Crosby v Fica (No 4) [2018] NSWSC 632. However, the fact that the incorporated law practice owned the client means that there is no realistic possibility that the difference between the lump sum and solicitor/client fees will ever be sought, which goes some way to alleviating those issues.

Proposed grounds of appeal and notice of contention

1. Proposed ground 13.1 challenged the order on the basis that judgment should have been entered in Ms Burrows favour. This ground falls with grounds 1-12.
2. By proposed grounds 13.2 and 14, Ms Burrows pointed to a range of matters pointing to the identicality of M&K Sydney and M&K Lawyers Group. She said that the latter was at all times the 100% shareholder of the former, that Mr Frawley was a Principal Lawyer of both companies at all material times, as a result of which, so she maintained, there was a lack of independence. She said that the primary judge had failed properly to consider the issue of independence, which was a significant part of the reasoning in Bell Lawyers and that his Honour had erred in failing to lift the corporate veil between the two incorporated legal practices. She said that it was necessary to consider the individual legal practitioners employed by both incorporated legal practices.
3. It was put orally: "we say that the way the companies are intertwined, the same personalities et cetera, indicates that they are the same company in effect, especially if the subsidiary company is no longer trading, but the practice has been taken over by the holding company, then it's somewhat artificial to say, 'Well, we'll siphon off that other company in the work that it did, and we're acting for it,' when the holding company is now doing all the work that the subsidiary company used to do in Sydney."
4. The submission continued: "the facts in this particular case are that notwithstanding there were two ACNs, there really was only one firm or one practice. And that's the difference in this case. That's the tricky part of this particular argument. There just isn't any evidence of the separation, notwithstanding two separate ACNs."
5. It may be seen that Ms Burrows' principal submission was that in substance the same incorporated legal practice defended the proceedings which had been brought against it, such that this was a case of a self-represented solicitor seeking to recover that solicitor's own costs.
6. By paragraph 2 of a notice of contention, the respondents submitted that the abolition of the Chorley exception did not extinguish or otherwise affect the entitlement of an incorporated legal practice, where it was a self-represented party to litigation, to be indemnified in relation to the professional costs and remuneration of its employed solicitors, at least where that incorporated legal practice was not a vehicle for a sole legal practitioner who was the only director and shareholder of the practice.

The significance of "independence"

1. Ms Burrows reiterated a general submission that M&K Sydney was not "independent" from M&K Lawyers Group. In one sense it is trite that the two companies were not independent. One owned the other. One by members' resolution could at any time cause the other to perform any corporate act. There may also very well have been day-to-day control of the subsidiary's board.
2. However, it may be noted that this is the opposite of the usual case where independence is in issue. Ordinarily, applications to "pierce the corporate veil" seek to extend the liability of a subsidiary to the parent shareholders. One can also contemplate submissions that legal advice by employees of the client might not be independent. But in the present case, the incorporated legal practice owned and controlled the client, not vice versa. I shall return to the significance of "independence" amongst the considerations relied on in Bell Lawyers.

The evidence on which Ms Burrows relied

1. The evidence established that M&K Sydney had, in 2011, employed Mr Frawley as a "Principal Lawyer". After July 2015, Mr Frawley was employed as a "Principal Lawyer" by M&K Lawyers Group. He was one of some 13 Principal Lawyers. Each of the lawyers who worked to defend the District Court proceedings were employees of M&K Lawyers Group and reported to Mr Frawley.
2. M&K Lawyers Group changed its name to Macpherson Kelley Pty Ltd on 1 May 2019. It seems that both incorporated legal practices traded under the name "Macpherson Kelley".
3. For reasons which were not explained in evidence, Mr Frawley became one of the directors of M&K Sydney in March 2014. At no stage had he been a director of M&K Lawyers Group. However, at all material times after Ms Burrows had commenced proceedings in the District Court, M&K Lawyers Group acted for M&K Sydney, with Mr Frawley as both director of the client, and Principal Lawyer of the incorporated legal practice.
4. Ms Burrows did not contend that the restructuring was intended to obtain any advantage in the event that the Chorley exception was overturned, or in any other way connected with her claim.
5. Ms Burrows pointed to the evidence, parts of which suggested that from time to time employed solicitors failed to distinguish one incorporated legal practice from the other, and other parts of which reinforced the distinction (for example, the transfer of $50 in the M&K Sydney trust account to the M&K Lawyers Group trust account). She also placed reliance on an email to the Family Court from an employed solicitor of M&K Lawyers Group, seeking access to the file, on the basis that her firm had acted for Ms Burrows in 2011. She contended that the request showed that M&K Lawyers Group "improperly accessed [Ms Burrows'] confidential and sensitive affidavit materials regarding her parenting matter in the Family Court, when this action would not have been taken by an independent legal entity representing another legal entity in [a] civil matter". I disagree. The solicitor told the Family Court, squarely and unambiguously, that her firm had acted for Ms Burrows but no longer did so. There was no occasion at the time for the solicitor to clarify that her firm had restructured such that she was now employed by the incorporated legal practice which was the 100% shareholder of the incorporated legal practice which Ms Burrows had once retained.

The significance of statute

1. There are two statutory regimes in play. The first comprises the provisions which permit a company to be treated as a solicitor. That is a relatively new development. The second is the provisions empowering a court to order costs. They date back many centuries.
2. The power conferred on the District Court to order costs is found in s 98(1) of the Civil Procedure Act. It provides that (a) costs are in the discretion of the court, (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. The power is subject to rules of court and to "this or any other Act". "Costs" are defined in s 3(1) to mean "costs payable in or in relation to the proceedings" and to include "fees, disbursements, expenses and remuneration".
3. The reasoning in Bell Lawyers concerned the recovery of costs by a natural person who was a barrister as well as a party, and most of the decisions (not least of which is Chorley itself) concern solicitors who were sole practitioners or partnerships. Only by dint of statute can a company provide legal services and therefore fall within the ambit of the Chorley exception or some extrapolation of it. An essential part of the legal analysis is the statute which requires the conclusion that the legal services (which in fact were provided by natural persons without whom the company cannot act at all) were provided by the company. Only by reason of that statute does the question whether a company infringes a restriction on the ability to recover party/party costs arise. Thus, on the view I take, it is necessary to start with statute, as is so often the case: see Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union [2020] HCA 29; 94 ALJR 818 at [14].
4. Incorporated law practices have been permitted under New South Wales legislation, in various forms, since the Legal Profession (Solicitor Corporations) Amendment Act 1990 (NSW). That statute permitted firms to incorporate as "solicitor corporations" by application to the Law Society Council for a certificate of approval. A report by the Commonwealth Attorney-General in 1998 was critical of the restrictions imposed by the Law Society, and recommended that a more flexible corporate structure be permitted. In circumstances that need not be summarised here, that led to the enactment of the Legal Profession Amendment (Incorporated Legal Practices) Act 2000 (NSW), which permitted (under new Division 2A of Part 3) legal services to be provided by corporations incorporated under the (former) Corporations Law and subsequently the Corporations Act 2001 (Cth), so long as they had one director who held an unrestricted practising certificate. The general regulatory approach was that the existing regime applicable to solicitors was extended to apply to incorporated legal practices. In particular, new s 47J(1), which was titled "Application of Part 11 (Legal fees and other costs)", provided: "Part 11 applies to legal services provided by an incorporated legal practice as if a reference in that Part to a solicitor included a reference to the incorporated legal practice and to any external administrator."

The current regime applicable to incorporated legal practices

1. The Legal Profession Uniform Law Application Act 2014 (NSW) makes applicable as a law of New South Wales the Legal Profession Uniform Law (which is Schedule 1 to the Legal Profession Uniform Law Application Act 2014 (Vic)). The uniform law distinguishes "law firms" and "law practices". The former are defined to be partnerships consisting only of Australian legal practitioners or Australian-registered foreign lawyers (with a proviso that there must be at least one Australian legal practitioner). The latter is defined to mean "(a) a sole practitioner; or (b) a law firm; or (c) a community legal service; or (d) an incorporated legal practice; or (e) an unincorporated legal practice": s 6. Thus every law firm is a law practice, but while an incorporated legal practice is a law practice, it is not a law firm.
2. The definitions in s 6 also define a "principal" of a law practice differently depending on the type of practice. A sole practitioner is a principal, as is a partner of a law firm. A principal of an incorporated legal practice is a person who "holds an Australian practising certificate authorising the holder to engage in legal practice as a principal of a law practice", and, if the practice is a company, is "a validly appointed director of the company".
3. It will be seen that a "Principal Lawyer" is quite different from a "principal" for the purposes of the Uniform Law. Mr Frawley was a "Principal Lawyer" of M&K Sydney when that incorporated legal practice provided legal services to Ms Burrows, but he was never during that period a "principal" of that incorporated legal practice (for he only became a director of the company in 2014).
4. Law practices are regulated by Part 3.2 of the Uniform Law. That part is introduced by s 32: "Legal services may be provided under any business structure, subject to the provisions of this Law and the Uniform Rules."
5. Principals of law practices are required to ensure that all legal practitioner associates of the practice comply with their obligations, and may be subject to disciplinary measures if that does not occur. Section 38(1), within that Part, provides: "An Australian legal practitioner who provides legal services in the capacity of an officer, director, partner or employee of a law practice, or in the capacity of a corporate legal practitioner or government legal practitioner, does not lose the professional privileges of an Australian legal practitioner."

Bell Lawyers Pty Ltd v Pentelow

1. The High Court held in Bell Lawyers that "the Chorley exception" was no longer part of "the common law of Australia". That was a reference to what had been held to flow from the decision of the English Court of Appeal in The London Scottish Benefit Society v Chorley (1884) 13 QBD 872 (although the same approach had previously been adopted in the United Kingdom and in the colony of New South Wales) that while a costs order in favour of an unrepresented litigant does not extend to that person's time, but "only for costs out of pocket", a solicitor who brings or defends proceedings is entitled to the same costs as an ordinary litigant who appears by solicitor. Sir William Brett MR rested his decision on pragmatic considerations: that there are things which a solicitor can do for himself, but for which he could also employ another solicitor or a clerk, and that if the solicitor could not recover for his own time, he would always employ another: at 875. Bowen LJ acknowledged that costs were the creature of statute, regarded the statutory entitlement to costs as being confined to costs which could be measured, and distinguished between a solicitor's professional skill and labour and that of any other litigant on the basis that the former could be measured by the law, while "private expenditure of labour and trouble by a layman cannot be measured" because it depended on "the zeal, the assiduity, or the nervousness of the individual": at 877.
2. Ms Pentelow, a barrister, had been retained by the incorporated legal practice Bell Lawyers. Bell Lawyers and the barrister fell into a dispute concerning the latter's fees, and the barrister sued. Although the barrister was separately represented in the course of that latter litigation, she also performed some work on her own behalf, in respect of which she sought to recover from Bell Lawyers pursuant to orders that it pay her costs. Bell Lawyers succeeded in the High Court, and did not have to pay any amount for the costs attributable to work done by Ms Pentelow.
3. The High Court decision holds that a legal practitioner who is a natural person cannot recover costs for legal services provided by him or her in the prosecution or defence of his or her own litigation. Ms Pentelow was a barrister, but all judgments save that of Nettle J extend to legal practitioners more generally.
4. But what precisely is "the Chorley exception" which the High Court abrogated? What Chorley itself decided is an unsafe guide to what "the Chorley exception" is. The decision pre-dated companies being able to provide legal services. Did "the Chorley exception" apply where legal services were supplied by an incorporated legal practice?

Common law or statute?

1. Complicating an understanding of the effect of the reasoning in Bell Lawyers is an anterior question. Was the issue presented for determination in the High Court, and is the issue presented for determination in this appeal, to be regarded as a question of statutory construction, or the development of the common law?
2. Earlier decisions of this Court favoured an approach based on statutory construction, turning on the word "payable" in the power to make costs orders: see Wilkie v Brown [2016] NSWCA 128 at [40]-[43], Bechara v Bates at [64]; Coshott v Spencer [2017] NSWCA 118 at [106]-[107] and Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150 at [83]-[95] (Beazley ACJ), [125]-[128] and [137]-[140] (Meagher JA, dissenting).
3. The joint judgment in Bell Lawyers recorded that "costs are a creature of statute" at [33], and identified the source of the power to make the order for costs in the Civil Procedure Act 2005 (NSW): at [13]-[14]. The joint judgment deferred the consideration of statute (at [16]) returning to it at [40]-[45] when dealing with a submission that the "Civil Procedure Act itself embraced the Chorley exception". The submission was that the explicit inclusion of "fees, disbursements, expenses and remuneration" within the definition of "costs" demonstrated an intention to maintain "the Chorley exception". The focus was on "remuneration", which was said to extend to the recovery by a lawyer for work on his or her own case. This submission was rejected at [43]-[44], including the following passage which is highly relevant for the position of employed solicitors: "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."

Piercing the corporate veil?

1. "'Piercing the corporate veil' is an expression rather indiscriminately used to describe a number of different things." So commenced Lord Sumption's analysis of the expression in Prest v Petrodel Resources Ltd [2013] 2 AC 415 at 478; [2013] UKSC 34 at [16]. The most common objective of invoking the principles associated with departing from the prima facie distinction between shareholder and company is to attribute liability of the company to the shareholder. But the present case is unusual, in that Ms Burrows' objective is to cause M&K Sydney to be self-represented and therefore within "the Chorley exception" abrogated in Bell Lawyers and thus unable to recover professional costs incurred by its parent M&K Lawyers Group.
2. It is well settled that mere control is not sufficient to disregard corporate identity. In James Hardie & Co Pty Ltd v Hall (1998) 43 NSWLR 554 at 583-584, Sheller JA said, when declining to create a duty of care owed by the parent company to an employee of its subsidiary: "It has been suggested that in company law the corporate veil between parent and subsidiary may be lifted where the latter was so controlled by the former as to be its agent for the purposes of liability: Smith, Stone & Knight Ltd v City of Birmingham [1939] 4 All ER 116. However, in Woolfson v Strathclyde Regional Council [1978] SLT 159 (at 160) Lord Keith of Kinkel said, in approving the reasons for the judgment appealed from, that the separate legal status of a limited company and its incorporators must, as held in Salomon v A Salomon & Co Ltd, normally receive full effect in relations between the company and persons dealing with it. His Lordship referred to a passage in the judgment of Ormerod LJ in Tunstall v Steigmann [1962] 2 QB 593 at 601 to the effect that any departure from a strict observance of the principles laid down in Salomon v A Salomon & Co Ltd has been made to deal with special circumstances when a limited company might well be a facade concealing the true facts. This passage was discussed by Dr Rixon in an article "Lifting the Veil between Holding and Subsidiary Companies" in 102 LQR 415. The learned author observed (at 423): 'That the corporator has "complete control of the company" is not enough to constitute the company a mere facade; rather that term suggests, in the context, the deliberate concealment of the identity and activities of the corporator. Certainly the term calls to mind expressions used by the Court when lifting the veil in (cases which are then cited), all cases in which the company was formed in order to enable the corporator to do through, and under the cover of, the company what he might not do openly and in person.'"

Miscellaneous points

1. Accordingly, it is not necessary to express a view on the correctness of United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15, although the respondents submitted that it was clearly wrong, if not distinguishable. The Victorian Court of Appeal was not dealing with the position of an incorporated legal practice, nor was it dealing with a case where the litigant was represented by a different corporation. I see no reason to lengthen these reasons with a full account of the careful reasoning of that Court (which I have found of assistance in preparing these reasons). I acknowledge that insofar as the Victorian Court of Appeal regarded the "employed solicitor" rule as inapplicable to a firm of solicitors, as opposed to a corporation or statutory authority (see at [101]-[121]), then it tends against the conclusion I have reached. But that is scarcely surprising. As I have sought to explain, there is a tension between the abrogation of "the Chorley exception" and the retention of the "employed solicitor" rule. I do not think that tension undermines the reasoning applicable to the present, materially different, case. The position would be different if I had acceded to Ms Burrows' submission concerning piercing the corporate veil.
2. A possibility raised in the course of argument with Ms Winfield and Mr Neggo was that the conclusion I have reached is one which might be abused. A solicitor who is sued might incorporate a legal practice, of which he or she was a principal, and cause that company to conduct his or her defence, and in that fashion evade the outcome of Bell Lawyers in the event that a favourable costs order was obtained. However, there is a general principle in the law that what is prohibited directly cannot be done indirectly: see Caltex Oil (Australia) Pty Ltd v Best (1990) 170 CLR 516 at 522-523; [1990] HCA 53; Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346; [2000] HCA 34 at [29], approved in New South Wales v Commonwealth (2006) 229 CLR 1; [2006] HCA 52 at [228]. And there is a specific principle in cases where a corporate structure has been adopted so as to evade an existing obligation, identified by Lord Sumption in Prest v Petrodel at [35] as follows: "[T]here is a limited principle of English law which applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil for the purpose, and only for the purpose, of depriving the company or its controller of the advantage that they would otherwise have obtained by the company's separate legal personality."

Orders

1. For those reasons, M&K Sydney was not a self-represented litigant, and its ability to obtain a costs order based on its representation by M&K Lawyers Group is unaffected by anything in Bell Lawyers. Leave should be granted in relation to proposed grounds 13.2 and 14, but the appeal should be dismissed. Otherwise leave should be refused.
2. Ms Burrows purported to file a notice of appeal on 20 March 2020, and an amended notice of appeal on 8 October 2020. That appeal is incompetent in the absence of a grant of leave. Wisely, she also filed a summons seeking leave to appeal, on 27 July 2020. Given that a notice of appeal has already been filed, there is no point in requiring Ms Burrows to file a further notice of appeal confined to the only grounds which raise a question of principle.
3. The orders reflecting the above which I propose are as follows: In proceeding 2020/17047:
4. Dismiss the appeal as incompetent.
5. Ms Burrows to pay the respondents' costs. In proceeding 2020/219817:
6. Grant leave to appeal, confined to proposed grounds 13.2 and 14, and otherwise dismiss the summons filed on 27 July 2020.
7. Dispense with the need to file and serve a notice of appeal limited to proposed grounds 13.2 and 14.
8. Appeal dismissed with costs.
9. WHITE JA: I substantially agree with the reasons for judgment of Leeming JA. I would add the following observations.
10. I agree for the reasons Leeming JA gives that the applicant requires leave to appeal and that leave should be refused in respect of grounds 1 to 12 and 15 to 17 of the purported amended notice of appeal. I agree that leave should be given in respect of grounds 13.2 and 14.
11. The law practice conducted by the respondent, Macpherson & Kelley Lawyers (Sydney) Pty Ltd ("M&K Sydney") acted for the appellant in her family law proceedings. She unsuccessfully sued M&K Sydney in the District Court. The primary judge made a gross sum costs order in favour of M&K Sydney premised on the finding that the costs to which M&K Sydney was entitled as the successful defendant included professional fees payable to M&K Lawyers Group Pty Ltd ("M&K Lawyers Group") that represented M&K Sydney in the District Court proceedings (J [37]).
12. M&K Sydney is a wholly owned subsidiary of M&K Lawyers Group (now called Macpherson Kelley Pty Ltd). M&K Sydney traded under the name "Macpherson Kelley". Mr Chris Frawley deposed that the business previously carried on by M&K Sydney has, since about 2012, been carried on by M&K Lawyers Group.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2021