Cheqrouni v Barhen [2026] ACTSC 3

1. This matter comes before me in relation to the question of costs of an appeal originally lodged in this court on 15 October 2025 and subsequently discontinued by notice of discontinuance lodged on 17 November 2025.

2. There is a long history of disputation between the parties, arising out of the respondent’s engagement by the appellant as his solicitor, which is summarised in an ex tempore decision of Elkaim AJ delivered on 14 November 2025.

3. For present purposes it is sufficient to note: (a) On 27 August 2025, the Magistrates Court gave summary judgment in respect of an undisputed component of costs, in the context of continuing proceedings in that Court in which the respondent seeks payment of various disputed amounts in relation to legal costs. (b) The appellant unsuccessfully applied to set aside the summary judgment order in that court. He then applied unsuccessfully to stay the enforcement of the summary judgment. That application was refused on 12 November 2025. On 13 November 2025, the appellant paid the amount due pursuant to the summary judgment order. (c) In the meantime, the appellant also applied separately in this court by way of originating application seeking a costs assessment. That is the application that was set aside by Elkaim AJ on 14 November 2025. (d) That brings me to this appeal lodged on 15 October 2025 in which the appellant appeals from the summary judgment order and the order refusing his application to set aside the summary judgement. (e) The appeal was discontinued by the appellant with the filing of a notice of discontinuance on 17 November 2025.

4. Pursuant to r 5171 of the Court Procedures Rules 2006 (ACT) an appellant may discontinue an appeal at any time before the hearing without the leave of the court. However, in the absence of some other order, subs (7) provides that the appellant must pay the costs of the other parties which are caused by the appeal that has been discontinued. The “other order” provision is reflective of the ultimate discretion that rests with the court in respect of matters of costs. The basis upon which the appellant seeks some other order in this case appears to be that once the summary judgment order of the Magistrates Court was confirmed, and he was unsuccessful in seeking to stay the order, he decided that the appeal to this court was futile.

5. There is nothing arising from the material that has been placed before me to suggest that the appeal had any reasonable prospects of success at any time, noting that the subject matter of the summary judgment order was an uncontested component of costs payable to the respondent. In the circumstances, had the respondent been represented in the appeal proceedings, there would have been no basis to vary the usual costs order applying upon discontinuance of an appeal. However, the respondent solicitor was self-represented for the purposes of the appeal proceedings.

Costs and self-represented litigants

6. As a general rule, a self-represented litigant cannot be compensated for their time spent in litigation. The costs provided for in the rules do not include time that a self-represented litigant spends in preparing and conducting their case. They are instead directed to monies paid or liabilities incurred for professional legal services: see Cachia v Hanes [1994] HCA 14; 179 CLR 403 at 409. For self-represented litigants, who are themselves lawyers, there was at one time an exception to that rule known as the “Chorley exception”, relying upon the UK decision of London Scottish Benefit Society v Chorley (1884) 13 QBD 872.

7. However, in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29; 269 CLR 333 at 354, the majority concluded that the Chorley exception was not part of the common law of Australia. The High Court made clear that its refusal to give effect to the Chorley exception did not disturb the well-established principle that in-house lawyers employed by governments and other agencies were engaged in such a way that their employer would be entitled to recover costs for the professional services they provide.

8. In response to my invitation to do so, the respondent provided written submissions in reply to those made by the appellant at the application hearing, directed in particular to the authorities referred to above. However, those submissions were in the nature of a repetition of the arguments put previously to the effect that the appellant’s case was hopeless. That much is accepted, and the absence of merit in the appeal would normally ensure that there was no variation of the usual order that the discontinuance ought to result in an order for costs in favour of the respondent.

9. The abnormal circumstance here is that the respondent was self-represented and, with reference to the decision of the High Court in Bell Lawyers, that leads inevitably to the respondent being denied an entitlement to costs. Conclusion

10. In reliance upon the respondent’s status as a self-represented litigant, albeit legally qualified, I am satisfied that he is unable to be compensated for his legal costs of the appeal.

11. I therefore make no order as to the costs of the appeal.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Muller.

Associate: Date: