//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWSC 1067
Supreme Court of NSW
2026-09-08
Griffiths AJ
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: McGinn v Law Society of New South Wales (No 2) [2026] NSWSC 1067
Hearing dates: On the papers
Date of orders: 8 September 2026
Decision date: 08 September 2026
Jurisdiction: Common Law
Before: Griffiths AJ
Decision: The plaintiff is ordered to pay the defendant’s costs of the proceedings on the ordinary basis.
Catchwords: COSTS — Party/Party — Whether it is “in the interests of justice” to make an order for costs, departing from the general rule in s 247(7) of the Legal Profession Uniform Law 2014 (NSW) that no order as to costs be made on appeal under that section — Where plaintiff’s cause of action lacks reasonable prospects of success — Where plaintiff’s claim involves unsubstantiated allegations of fraud and dishonesty — Where the serious legal and evidentiary deficiencies of the plaintiff’s claim were made clear to the plaintiff by the Fidelity Fund Management Committee prior to the proceedings — Where plaintiff’s conduct during the course of the proceeding was unreasonable — Interests of justice favour the plaintiff paying the defendant’s costs on ordinary basis
Civil Procedure Act 2005 (NSW), s 56 Legal Profession Uniform Law 2014 (NSW), ss 128, 247 Legal Profession Uniform Law Application Act 2014 (NSW), s 118
Cases Cited: McGinn v Law Society of New South Wales [2026] NSWSC 987
The Solicitors’ Trust v Oxenbould (2013) 22 Tas R 235; [2013] TASFC 2
Category: Costs
Parties: Wai Chi Sophia McGinn (plaintiff)
Law Society of New South Wales (defendant)
Representation: Counsel:
H Rogers (defendant)
Solicitors:
Law Society of New South Wales (defendant)
Plaintiff (self-represented)
File Number(s): 2026/00006627
Publication restriction: Nil
On 19 August 2026, the Court dismissed the plaintiff’s appeal under s 247 of the Legal Profession Uniform Law 2014 (NSW) (the Uniform Law) seeking relief against three decisions of the Fidelity Fund Management Committee (the Fidelity Fund): see McGinn v Law Society of New South Wales [2026] NSWSC 987 (the primary judgment or PJ). The Court made orders that costs would be determined separately on the papers, without a further hearing, with each party to file and serve an outline of written submissions on costs within 14 days thereof. This judgment records my reasons and decision on costs.
By written submissions filed 2 September 2026, and as foreshadowed in their earlier written submissions filed 2 July 2026, the Law Society of New South Wales (the Law Society) seeks an order that Ms McGinn pay its costs of the proceedings on the ordinary basis. Ms McGinn did not provide an outline of written submissions within 14 days, however, by an email dated 2 September 2026 from my Chambers (being the last day in which the parties were permitted to file and serve written submissions on costs), I provided Ms McGinn with an additional two days within which to file and serve her submissions on costs.
No order for costs is to be made on an appeal under this section unless the designated tribunal is satisfied that an order for costs should be made in the interests of justice.
This provision displaces the general rule that costs follow the event. Generally, therefore, in appeals under s 247 of the Uniform Law no order as to costs will be made. However, the Court retains a discretionary power to make a costs order in particular circumstances, namely, where it is in the interests of justice.
The matters able to be taken into account in considering the “interests of justice” are neither identified nor limited by the Uniform Law. It follows that all relevant matters or considerations may be taken into account in determining where the interests of justice lie: see The Solicitors’ Trust v Oxenbould (2013) 22 Tas R 235; [2013] TASFC 2 at [106]-[107] (Crawford CJ, Tennent and Wood JJ agreeing), dealing with the corresponding provision in Tasmanian legislation.
Ms McGinn is a self-represented litigant and the Law Society accepts that she should not be held to the same standard as a litigant who is legally advised and represented. As a self-represented litigant, some allowances may be made for Ms McGinn’s lack of legal training and, despite her considerable litigation experience in this and other courts, her lack of familiarity with the conduct of litigation. However, even taking those matters into account, for the following reasons the interests of justice favour an order that Ms McGinn pay the Law Society’s costs of the proceedings.
On 4 September 2026, Ms McGinn filed a brief outline of written submissions on costs. She claims that her submissions were made under duress. She contends that the Law Society’s submissions are “false” and, without filing a notice of motion, she asked for the Law Society’s costs application to be summarily dismissed.
Ms McGinn also relied upon an affidavit filed 4 September 2026. In her affidavit, Ms McGinn argues that I have not provided her with sufficient time to file a response on costs and have denied her procedural fairness (in an email dated 2 September 2026, Ms McGinn sought a direction that she be given 14 days from 2 September 2026 to prepare a response to the Law Society’s submissions on costs and also complained that hearing the issue of costs on the papers was procedurally unfair). She also repeated her claim that the Law Society has failed to file an affidavit.
In several emails dated during the period 26 August 2026 to 4 September 2026 addressed to my Chambers, Ms McGinn threatened to sue me for exemplary damages for misfeasance in public office if I proceeded to make orders on costs. She attached a writ of summons, a notice of a constitutional matter, and supporting affidavit which she said she proposed to file in the High Court. In a separate email dated 2 September 2026 she also threatened to join my Associate as a “con-current wrongdoer”.
For the following reasons, I reject Ms McGinn’s contentions regarding costs and uphold the Law Society’s request for costs.
First, I do not accept that Ms McGinn has been forced to provide her submissions under duress or that she has been denied procedural fairness. The Court made orders on 19 August 2026 providing for both parties to file submissions on costs within 14 days. The Law Society complied with that direction and Ms McGinn was given an additional two days to provide her submissions which, in the events that occurred, would also be in response to those of the Law Society. Nor was it procedurally unfair to determine the issue of costs on the papers.
Secondly, Ms McGinn continues to labour under a misapprehension that the Law Society needed to file an affidavit to support its position on costs. No such affidavit was required.
Thirdly, Ms McGinn’s appeal lacked reasonable prospects of success. The crux of Ms McGinn’s complaints in relation to her first and second claims on the Fidelity Fund, being her claims against Fraser Clancy Lawyers and Wilshire Webb Staunton Beattie respectively, was that adverse costs orders made against her in previous proceedings were “trust property” within the meaning of s 128 of the Uniform Law. That premise was fundamentally misconceived: see PJ [99]–[101], [108]. So too was the further premise that, assuming the adverse costs orders were “trust property”, they were held for Ms McGinn’s benefit: PJ [99], [102], [108].
The third claim against the Fidelity Fund, in relation to Willis & Bowring, ultimately rested on Ms McGinn’s assertion that the misspelling of her name (“Waichi” instead of “Wai Chi”) on certain testamentary documents prepared for her by that firm was fraudulent or dishonest: PJ [111]–[112]. There was, however, no evidence or basis to support a finding that this error was made fraudulently or dishonestly. The misspelling, taken at its highest, was a drafting error: PJ [111].
Fourthly, and relatedly, Ms McGinn’s case involved allegations of fraud or dishonesty that were made without any evidentiary basis: PJ [103], [107], [111]–[112]. While Ms McGinn is not a lawyer, self-represented litigants can reasonably be expected to understand that serious allegations of dishonesty should not be made without supporting evidence. The same may be said regarding her threats to bring proceedings against me and my Associate unless the Court acted in a way which was acceptable to Ms McGinn.
Fifthly, the serious legal and evidentiary deficiencies in Ms McGinn’s three claims against the Fidelity Fund were fully and clearly explained by the Fidelity Fund Management Committee in its reasons for disallowing her claims, such that it should have been clear to Ms McGinn that her claims were misconceived and without any proper foundation. This is not a case in which the problems facing Ms McGinn’s claims were exposed for the first time after the appeal in this Court was filed.
Sixthly, and related to the fourth and fifth points, Ms McGinn’s conduct during the course of the proceedings was not reasonable. Ms McGinn made numerous interlocutory applications — including an application to vacate the final hearing, an application for summary judgment, an application for adjournment, and two applications for my recusal on the grounds of actual bias — all of which lacked reasonable prospects of success, were unsupported by any evidence and were rejected. Responding to those applications occupied a substantial amount of time and resources for the Law Society and were contrary to Ms McGinn’s “duty to assist the court to further the overriding purpose” of facilitating the “just, quick and cheap resolution of the real issues in the proceedings” (see s 56 of the Civil Procedure Act 2005 (NSW)).
Finally, the Law Society’s legal costs of defending these proceedings are payable out of the Fidelity Fund itself: see Legal Profession Uniform Law Application Act 2014 (NSW), s 118(b). Those costs reduce the resources available to other claimants on the Fidelity Fund and to the Law Society when investigating other claims. I consider that it would not be in the interests of justice for the Law Society’s costs of defending misconceived and unreasonable claims on the Fidelity Fund to be borne entirely by the Fidelity Fund itself.
The Fidelity Fund should be compensated on the ordinary basis for the costs it has incurred in defending these proceedings, having regard to all the matters set out above.
**********
McGinn
Law Society of New South Wales (No 2)