Guss v Veenhuizen

The Judiciary Act 1903 Cth at that time provided by s. 49 (1) and (2) as follows:

(1.) Any person entitled to practise as a barrister or solicitor or both in any State shall have the like right to practise in any federal Court or in any Court of a Territory under the control of the Commonwealth.

(2.) Provided that before so doing he shall produce to the Principal Registrar evidence showing that he is so entitled and in what capacity, and the Principal Registrar shall thereupon enter his name in a Register of Practitioners to be kept at the Principal Registry.

When in the present proceedings the costs which had been ordered to be paid came to be taxed, the respondent raised the objection that the appellant was not entitled to practise in the High Court because his name did not appear in the Register of Practitioners and was therefore not entitled to the costs detailed in his bill. Then for the first time the appellant became aware that by some inadvertence or error the Principal Registrar in 1962 had not entered his name on the Register of Practitioners pursuant to s. 49 (2).

In 1966 the Judiciary Act had been amended by replacing the s. 49 provision with new ss. 55B and 55C which are as follows:

(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or

(b) is for the time being entitled, under a law (including this Act) in force in a territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory,

has the like entitlement to practise in any federal court.

(2) A person is not entitled to practise in a federal court as a solicitor by reason of paragraph (b) of the last preceding sub-section unless -

(a) he has been admitted to practise as a solicitor or legal practitioner by the Supreme Court of the Territory; or

(b) he practises as a solicitor in the Territory and his sole or principal place of business as a solicitor is in the Territory.

(3) A person is not entitled to practise as a barrister or solicitor in a federal court by reason of sub-section (1) of this section unless his name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.

(1) For the purposes of the last preceding section, the Principal Registrar of the High Court shall cause a Register of Practitioners to be kept at the Principal Registry of the High Court and a copy of the Register to be kept at every District Registry.

(2) Where it is shown to the satisfaction of the Principal Registrar that a person would, but for sub-section (3) of the last preceding section, be for the time being entitled by reason of that section to practise as a barrister or solicitor, or as both, in federal courts, the Principal Registrar shall cause the name of the person, and the capacity in which he is to be entitled to practise, to be entered in the Register of Practitioners.

The Registrar upheld the objection raised by the respondent and disallowed the bill of costs. The appellant now asks for a review of the Registrar's decision.

The appellant did not claim costs incurred by him in retaining the professional services of a solicitor in his litigation. He appeared in person. He sought taxation of costs on the basis that he was a solicitor who acted for himself and did so according to the well established rule of practice which entitles a person, being a solicitor, to certain professional costs in those circumstances. London Scottish Benefit Society v. Chorley, Crawford and Chester [1] . See also H. Tolputt & Co. Ltd. v. Mole [1] . Those authorities establish that the litigant in person does not recover such costs in such circumstances in the capacity of a solicitor, but because, he happening to be a solicitor, his costs are able to be quantified by the Court and its officers. In London Scottish Benefit Society v. Chorley, Crawford and Chester, Brett M.R., said [2] :

It was contended for the plaintiffs that there is no difference as regards the right to costs between a solicitor and an ordinary person; and for the defendants it was contended that the costs of a solicitor, who is party to a suit, ought substantially to be taxed as if he had been acting for a different person. I think neither contention correct. I cannot think that any privilege of a solicitor exists. I am wholly unable to agree to any argument standing upon that footing. I should have thought that a person wrongfully brought into litigation ought to be indemnified against the expenses to which he is unjustly put; but there cannot be a perfect indemnity, because it is impossible to determine how much of the costs is incurred through his own over-anxiety. 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. Bowen L.J. said [3] : 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. The question before us does not depend on the privileges of a solicitor. Fry L.J. was of the same opinion, and said [3] : "This is not a question as to a solicitor's privilege." 1. (1884) 13 Q.B.D. 872. 2. [1911] 1 K.B. 87, 836. 3. (1884) 13 Q.B.D., at p. 875. 4. (1884) 13 Q.B.D., at p. 877. 5. (1884) 13 Q.B.D., at p. 877.

In these circumstances, s. 55B of the Judiciary Act does not create a statutory bar to the allowance of professional costs because the appellant does not claim assessment of costs on the basis that they were in respect of work done in a capacity which by force of the statute he was not entitled to exercise. The work was done by him in person and the only question is whether in the special circumstances here existing he was entitled to the benefit of the rule of practice established by the authorities to which we have referred. The answer depends on the true basis of the rule. Since its basis is not one of privilege to a solicitor (in which case it might be argued that the precise qualification must be satisfied) but is that work done by a solicitor can be quantified on a taxation of costs, there is no reason why work done by the appellant whose lack of the precise qualification was the result of an error of an officer of the Court, should not have the benefit of the rule of practice. If the error had not been on the part of an officer of the Court but had been the fault of the party himself, the Court would not attempt to assess his capacity to do the work done by him. He would be regarded as in the same position as an ordinary layman. But when the lack of qualification cannot be regarded as a lack of capacity because it has occurred simply through the error of a Court officer, then the principle to which we have referred earlier in these reasons is applicable and the Court should treat him as though he had the qualification which brings him within the rule of practice.

(1.) Unless the Court or a Justice in a particular case otherwise directs, bills of costs and fees which -

(a) are payable to barristers and solicitors entitled or admitted to practise in the Court in respect of business transacted by them in the Court or its offices; and

(b) have been directed by a judgment or order to be taxed,

shall be taxed, allowed and certified by a Registrar who, in these Rules, is referred to as "the taxing officer".

(2.) The taxing officer shall appoint a time for taxation on the application of the party claiming taxation.

Rule 19 provides for the method and manner of quantifying awarded costs in the ordinary case. It does not affect the long established rule of practice which gives certain professional costs to a litigant in person who is a solicitor. It therefore provides no obstacle to the extension of that rule of practice to the very special circumstances of this case. It is understandable that the taxing officer did not himself extend the rule of practice to the circumstances of this case but now that the matter is before the Full Court of this Court it is proper that we should do so and should refer the taxation of costs back to the District Registrar with a direction that it should proceed on the basis that the appellant is entitled to professional costs according to the rule of practice governing the costs allowed to a litigant in person who is a solicitor.

It follows from what we have said above that the applicant is entitled not only to his own professional costs but also to his outgoings, whether they be filing fees or fees paid to counsel properly briefed.

It is not necessary upon the approach which we have expressed to determine whether the Court may make an order for the rectification of a Register of Practitioners maintained by its principal officer for the purpose of correcting clerical or other errors made by that officer or his staff nor whether such an order may be made nunc pro tunc.

There is, however, authority under English legislation relating to entitlement to practise as attorneys and solicitors that the Court may at least in some cases rectify the Register, or direct enrolment in the Register, nunc pro tunc, but the authorities suggest that this kind of order should not be made where it affects vested rights of third parties.

Those authorities concern two Acts, namely, 2 Geo. II c. 23 being "an Act for the better regulation of attorneys and solicitors" and 37 Geo. III c. 90 being "an Act for granting to his Majesty certain stamp duties on the several matters therein mentioned and for better securing the duties on certificates to be taken out by solicitors, attorneys and others practising in certain Courts of Justice in Great Britain". The former is a general Act relating to the admission to practise of attorneys, solicitors and others in the various Courts of Law and Equity. It provides that duly qualified persons must be "examined, sworn, admitted and inrolled" before being entitled to practise and required the appropriate officers of each Court "from time to time, without fee or reward, to inroll the name of every person who shall be admitted an attorney in the said respective Courts of Law in rolls or books to be provided and kept for that purpose" and there was a like provision with respect to Courts of Equity. By s. XXIV a penalty of fifty pounds was made recoverable by any person who should prosecute any person instituting or defending proceedings on behalf of another "without being admitted and inrolled as aforesaid". The latter Act imposed an additional requirement for entitlement to practise, namely the payment of certain stamp duty and the obtaining from the Stamps Office of a duly stamped certificate in respect of each year during which the practitioner was in practice. It also provided for such certificates to be entered in one of the Courts in which the person concerned "shall be admitted, enrolled, sworn or registered" and that a fee was to be charged by such officer. It provided that solicitors and others must obtain such certificates before commencing carrying on or defending any action or suit or any proceedings whatsoever in the said Courts. There is a provision that any person might sue for a penalty of fifty pounds and that the attorney practising without such a certificate should be "made incapable to maintain or prosecute any action or suit in any Court of Law or Equity for recovering any fee, reward or disbursement on account of prosecuting, carrying on or defending any action, suit or proceeding" without such certificate.

The first of these cases is Ex parte Fry [4] where the applicant had been regularly admitted to practise and enrolled as an attorney in the Court of King's Bench. He had regularly taken out his certificate and paid the appropriate stamp duty and caused that certificate to be entered regularly pursuant to 37 Geo. III c. 90 s. XXVII save in the preceding year. In that year the failure to pay the fee arose by reason of the negligence of his clerk and the omission had not come to his knowledge until within the month prior to the date of the application. It appeared that he had not omitted to make the entry from any improper motive and that he was not aware of any proceeding having been commenced against him for the recovery of penalties. Patteson J. said "I think the name may be entered nunc pro tunc, which will protect him from any penalties he may have incurred by practising without such entry having been made". In Ex parte Swift [5] the Court of Common Pleas refused such an application notwithstanding that the omission to make the appropriate entry pursuant to 2 Geo. II c. 23 was due to an error or oversight of an officer of the Court. The reason for refusing the application was that an action for penalties had been commenced against him for practising as an attorney in the Court of Common Pleas without his name having been duly entered in the roll of attorneys. Tindal C.J. said "I fear we have no authority to accede to the present application. If the interests of another party had not been involved, we might have lent our aid to the applicant to release him from future embarassment; but here we are required by our own act to arrest an action already commenced. That is going further than we feel authorised to do. The power of entering judgments nunc pro tunc is always exercised subject to the rights of third persons" [5] and the rest of the Court concurred. The proceedings followed an earlier action Humphreys v. Harvey [6] . The attorney in question (Swift) was duly enrolled in the Court of King's Bench as an attorney and was under the statute entitled to become enrolled without payment of further fee in the Court of Common Pleas. It appeared that the attorney had signed the roll on which attorneys entered their names when they were sworn in the Court of Common Pleas and also an instrument by which the judge authorized the admission, but he had not taken this instrument to the Clerk of the Warrants in order to have his name enrolled in that officer's book. His affidavit stated that when he signed the roll in Court upon being sworn, he was told by the officer in attendance that his admission was complete and he said that he was ignorant of the usage to enrol admissions with the Clerk of the Warrants. In the case in question the attorney had acted for the defendant and after the verdict had been found for the defendant, counsel for the plaintiff sought to stay the proceedings without payment of costs to the defendant or his attorney on the ground that the defendant's attorney had not been duly enrolled. Tindal C.J. said [7] that "The question is, whether, when an attorney has not been duly enrolled, and that fact is brought to our knowledge, we can assist him to recover costs against an adverse party, for which costs he could not maintain an action against his own client. And I am of opinion we cannot. It might perhaps be a hardship, if the Court could not so far exercise a discretion in the matter, as to cover advances made by the client in the course of the cause, and Reeder v. Bloom [8] proceeded on the general assumption, that in the course of a cause money usually passes from the client to his attorney. The authority of that case, if it be attempted to push it further, is weakened by the decision in Young v. Dowlman [9] ; and that brings us to the question in this cause, whether the enrolment of the attorney be a condition precedent to his recovering costs." Reeder v. Bloom [8] was a case where on the basis that the successful plaintiff had advanced moneys for the conduct of the action to his attorney who proved not to be enrolled, the Court nonetheless ordered the unsuccessful party to pay the costs. Tindal C.J. further said, after examining the statutes and noting that no amount had been advanced to the attorney [10] , "When, therefore, it is brought to the knowledge of the Court, that the attorney has not been duly enrolled, and our interference will not be prejudicial to the client, we cannot allow his attorney to continue proceedings in order to the recovery of costs, in a case where the attorney could not recover them against his own client." The other members of the Court concurred. Bosanquet J. said "Costs when recovered are paid for the benefit of the suitor, and the Court will not enforce the payment by the opposite party where the suitor has not incurred any expense or liability" [11] .

1. (1835) 3 Dow. 338. 2. (1835) 1 Bing. (N.C.) 734 [131 E.R. 1300]. 3. (1835) 1 Bing. (N.C.) 734 [131 E.R. 1300]. 4. (1834) 1 Bing. (N.C.) 62 [131 E.R. 1041]. 5. (1834) 1 Bing. (N.C.), at p. 65 [131 E.R., at p. 1042]. 6. (1825) 3 Bing. 9 [130 E.R. 416]. 7. (1829) 3 Y. & J. 24 [148 E.R. 1078]. 8. (1825) 3 Bing. 9 [130 E.R. 416]. 9. (1834) 1 Bing. (N.C.), at p. 66 [131 E.R., at pp. 1042-1043]. 10. (1834) 1 Bing. (N.C.), at p. 67 [131 E.R., at p. 1043].

The proceedings for enrolment nunc pro tunc were embarked upon in the following year after a clerk to the attorney who had been acting for the successful party in Humphreys v. Harvey [12] had instituted proceedings against Swift to recover the penalty prescribed by the statute, and it was his vested right which the Court regarded as the obstacle to making an order nunc pro tunc.

The fact that some orders nunc pro tunc may properly be made demonstrates that the Court does not regard the removal of what would otherwise be a bar to the recovery of costs as being the kind of vested right to which Tindal C.J. referred, for it must always be the case that the rectification of the roll or register nunc pro tunc will have the effect of perfecting the attorney's right to recover costs from his clients and destroying what would otherwise be a defence. Other considerations were applicable to a case where proceedings had actually been commenced for the recovery of penalty but like considerations did not apply to the case of potential proceedings for penalty when none had actually been instituted.

It is not necessary in the present case for a decision to be made on the question whether the applicant should be entitled to have the register rectified nunc pro tunc so as to perfect his entitlement to the costs awarded to him because for the reasons set out above we think that he is already entitled to them.

The appellant was admitted to practice as a solicitor in the Supreme Court of Victoria on 1st March 1962. Since 2nd March 1962 he has held a practising certificate from the Law Institute of Victoria. He says, and it is not disputed, that shortly after his admission in the Supreme Court he attended the office of the Registrar of the High Court in Melbourne and requested that his name be entered in the Register of Practitioners of the High Court. He believes that he then had with him and produced his certificate of admission to practise in the Supreme Court of Victoria and his practising certificate, thereby doing all that was required to be done by him so as to entitle him to practise in the High Court under the provisions of the Judiciary Act 1903 (as amended) in its then form. By s. 49 (1) of the Act as it then stood any person entitled to practise as a solicitor in any State had "the like right to practise in any federal Court", subject to s. 49 (2), which provided that "before so doing he shall produce to the Principal Registrar evidence showing that he is so entitled and in what capacity, and the Principal Registrar shall thereupon enter his name in a Register of Practitioners to be kept at the Principal Registry". Notwithstanding this provision the appellant's name was not entered in the Register.

The appellant was successful in an appeal (Guss v. Veenhuizen [13] ) which he brought to this Court and which was heard in the February Sittings in Melbourne this year. He acted as solicitor on the record and instructed counsel on his own behalf. The Court delivered judgment on 14th May 1976. The respondent was then ordered to pay the appellant's costs of the appeal and of the proceedings below. In accordance with O. 71, r. 19, the appellant's bill of costs came before a registrar for taxation. For the respondent a preliminary objection was taken, it being submitted that the appellant was not entitled to lodge a bill of costs claiming professional costs and disbursements because he was not entitled to practise in the High Court when the costs and disbursements were incurred, as his name was not entered in the Register of Practitioners in accordance with the requirements of ss. 55B and 55C of the Judiciary Act. These sections were introduced into the Act by Act No. 55 of 1966; they replaced the old s. 49.

So far as they are material these sections provide:

(a) is for the time being entitled to practise as a barrister or solicitor, or as both, in the Supreme Court of a State; or

(b) is for the time being entitled, under a law (including this Act) in force in a Territory, to practise as a barrister or solicitor, or as both, in the Supreme Court of that Territory,

has the like entitlement to practise in any federal court.

(3) A person is not entitled to practise as a barrister or solicitor in a federal court by reason of sub-section (1) of this section unless his name appears in the Register of Practitioners kept in accordance with the next succeeding section as a person entitled to practise in that capacity.

(1) For the purposes of the last preceding section, the Principal Registrar of the High Court shall cause a Register of Practitioners to be kept at the Principal Registry of the High Court and a copy of the Register to be kept at every District Registry.

(2) Where it is shown to the satisfaction of the Principal Registrar that a person would, but for sub-section (3) of the last preceding section, be for the time being entitled by reason of that section to practise as a barrister or solicitor, or as both, in federal courts, the Principal Registrar shall cause the name of the person, and the capacity in which he is to be entitled to practise, to be entered in the Register of Practitioners.

By s. 5 (2) of the Judiciary Act 1966 the Register kept under s. 49 was to be incorporated with and form part of the Register kept under s. 55C.

The taxing officer upheld the respondent's objection and disallowed the bill of costs. The appellant being dissatisfied with the disallowance of the bill by the taxing officer, he filed and served an objection in writing to the disallowance and sought a review. This application for review has come on for hearing before the Full Court.

Whether s. 49 conferred on the appellant an entitlement to practise in the High Court, notwithstanding that his name was not entered in the Register of Practitioners, is a question which we do not find it necessary to decide. The appellant's entitlement, if any, to practise at the material time is governed by ss. 55B and 55C. The provisions of s. 55B (1) and (3) are clear and unambiguous. They apply without qualification to the entitlement of persons to practise in federal courts and regulate comprehensively that entitlement. By sub-s. (1) a person who is entitled to practise as a barrister or solicitor in the Supreme Court of a State is given "the like entitlement to practise in any federal court", but the sub-section is prefaced by the words "Subject to this section". Sub-section (3) then specifically denies the existence of any entitlement by virtue of sub-s. (1) "unless his name appears in the Register of Practitioners "

These words are too clear and too strong to permit of any qualification by reference to any pre-existing entitlement to practise which might be thought to have arisen under the less stringent terms of the superseded s. 49. And it is not to be thought that the words of s. 55B (3) give expression to a requirement which is merely formal in character and has no intrinsic or historic importance. Entry on a roll or register is the traditional mark of entitlement to practise in the courts and it provides the court with a ready means of ascertaining whether a person is entitled to practise before it. It would indeed be remarkable if it were otherwise, for then there would arise all the attendant complications which would flow from the necessity for making inquiries of a particular practitioner as to the source which he claimed for his entitlement and for verifying that source.

It is to be noticed that the Court's power to order that a person be not entitled to practise in federal courts and to suspend a person's entitlement to practise, which is conferred by s. 55C (5), is necessarily related to a person whose name appears in the Register of Practitioners, thereby indicating that the Register is a comprehensive catalogue of the names of those persons who are entitled to practise in federal courts.

What we have said disposes of the fundamental question which has arisen, although some passing reference should be made to O. 71, r. 19, as some reliance was placed upon its provisions. It was suggested that the rule might enable the Court to make an order making specific provision for the payment of costs of the kind claimed to the appellant. However, the rule does no more than provide for the taxation by the proper officer of bills of costs unless the court otherwise provides, as, for example, by assessing the costs and ordering the payment of the sums so assessed. The expression appearing in the rule, "barristers and solicitors entitled or admitted to practise in the Court", looks not only to the entitlement of a person to practise which is conferred by s. 55B but also to the right to practise which arises when a person is admitted by the court itself to practise in accordance with s. 55A of the Judiciary Act.

In his affidavit in support of his objection the appellant asked that the Register of Practitioners, in which his name has recently been entered following the discovery that it had not been entered in 1962, be amended so as to include his name from 2nd March 1962 or such other date prior to 5th August 1976 as the Court may hold appropriate. This application was not supported by oral argument. Nor could it be supported. Section 55B (3) plainly contemplates that the entitlement to practise arises upon entry in the Register and not before.

The decision of Rich J. in Kenna v. Conolly [14] relates only to items consisting of counsel's fees and solicitor's fees in a bill lodged by a solicitor who is not entitled to practise in the court by reason of his failure to comply with s. 49 of the Judiciary Act. The decision did not relate to filing fees which constitute an outgoing and expense necessarily incurred by the appellant whether he acts for himself or not. To the extent to which the decision denies the right to recover disbursements in respect of counsel's fees we do not think that it should be followed in this case. Without expressing any view as to the position in New South Wales it is enough for us to say that although in Victoria there is a practice that counsel will not accept instructions from unqualified persons to act for them there is no legal prohibition against an unqualified person instructing counsel to appear for him. In delivering a brief to senior and junior counsel to appear for him the appellant was exercising a legal right not denied to him by law and on this ground he is entitled to recover disbursements for counsel's fees, notwithstanding that counsel accepted the brief in ignorance of the appellant's lack of entitlement to practise in the High Court. In London Scottish Benefit Society v. Chorley, Crawford and Chester [15] (affirmed on appeal [16] ) Watkin Williams J. said [17] :

It seems to me that the word "costs," though a technical term now, may very well have been used to include, not merely money expended, but any real expenditure incurred by the party in defending himself against an unjust claim. If that expenditure takes the form of employing skilled persons to do the work necessary to insure success, this would fall within the expression "costs" in its primary sense 1. [1943] A.L.R. 151. 2. (1884) 12 Q.B.D. 452. 3. (1884) 13 Q.B.D. 872. 4. (1884) 12 Q.B.D., at p. 460.

We would therefore grant the review sought, allow the bill of costs to the extent indicated and direct the taxing officer to complete the taxation accordingly.