Pentelow v Bell Lawyers Pty Ltd - [2018] NSWCA 150 - NSWCA 2017 case summary — Zoe

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Pentelow v Bell Lawyers Pty Ltd

[2018] NSWCA 150

Court of Appeal (NSW)|2017-08-10|Before: Beazley ACJ, Macfarlan JA, Meagher JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2017-08-10

Before

Beazley ACJ, Macfarlan JA, Meagher JA

Catchwords

[1994] HCA 14 Coshott v Spencer [2017] NSWCA 118 Craig v South Australia (1995) 184 CLR 163
[1995] HCA 58 Dobree v Hoffman (1996) 18 WAR 36 Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203
[2004] NSWCA 154 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
[2007] HCA 22 Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036 Garcia v National Australia Bank Ltd (1998) 194 CLR 395

Source

Original judgment source is linked above.

Catchwords

[1994] HCA 14 Coshott v Spencer [2017] NSWCA 118 Craig v South Australia (1995) 184 CLR 163[1995] HCA 58 Dobree v Hoffman (1996) 18 WAR 36 Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203[2004] NSWCA 154 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2007] HCA 22 Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036 Garcia v National Australia Bank Ltd (1998) 194 CLR 395[1976] HCA 57 Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd (2004) 234 LSJS 66[2004] SASC 161 Hawthorn Cuppaidge & Badgery v Channell (1992) 2 Qd R 488 Kelly v The Queen (2004) 218 CLR 216

Judgment (22 paragraphs)

[1]

Background

The applicant had been briefed as counsel by the respondent in proceedings brought by a client of the respondent under the Family Provision Act 1982 (NSW). There was subsequently a dispute as to her fees. The applicant sued the respondent in the Local Court for the balance of her unpaid fees but was unsuccessful in those proceedings. The applicant successfully appealed to the Supreme Court. Judgment was entered in her favour for the balance of the fees that she had claimed. An order for costs was also made in her favour in respect of the Local Court and the Supreme Court proceedings: see Pentelow v Bell Lawyers Pty Ltd [2013] NSWSC 111; Pentelow v Bell Lawyers Pty Ltd (No 2) [2013] NSWSC 288.

[2]

The application for judicial review

The applicant, in her summons for judicial review, contended that the primary judge erred in law or committed jurisdictional error in making the following findings on the appeal from the Review Panel (the grounds for judicial review): "(1) the Chorley exception does not apply to a barrister; (2) [the applicant] in both proceedings was not a self-represented lawyer, meaning thereby that she was not a litigant in person; (3) [the applicant] was not entitled to recover professional costs for her work in acting for herself because the Chorley exception or rule of practice only applies to self-represented solicitors and [the applicant] was neither self-represented or a solicitor; and (4) irrespective of the circumstances, a successful barrister litigant who acts for himself or herself is never entitled to recover professional costs in respect of his or her own time and services."
The applicant addressed the specific alleged errors of law raised under two broad headings: first, whether the Chorley exception applies to barristers who represent themselves in civil proceedings and in respect of whom a costs order has been made; and secondly, whether the applicant was a self-represented litigant. The applicant claimed that the primary judge failed to exercise power and fell into jurisdictional error in failing to determine that she was entitled to professional costs or compensation for her work in acting for herself. The applicant submitted that her Honour further erred in not determining the amount of costs to which she was so entitled or, alternatively, in not remitting the matter back to the Review Panel with a direction that it determine the costs to which she was entitled on the basis that the Chorley exception applied to the legal work she had undertaken.
The first of the broad challenges encompasses grounds 1, 3 and 4 of the grounds for judicial review. The second broad challenge encompasses ground 2 of the grounds for judicial review.
The applicant contended that the alleged errors arose from her Honour's reasons at [86]-[87]. At [86], her Honour referred to Hawthorn Cuppaidge & Badgery v Channell (1992) 2 Qd R 488, in which Ambrose J stated, at 491: "I can find no authority to support the proposition advanced by the defendant to the effect that because the solicitor retained by the plaintiffs did some of the work preparatory to trial, the plaintiffs are unable to recover costs for the professional work which they did themselves but may recover only the costs properly paid to their retained solicitor for that part of the preparatory work which he performed. In fact, such a contention seems to my mind to be inconsistent with the basis of the rule enunciated in [Chorley]."
Her Honour then stated, at [87]: "That would not be a problem if [the applicant] were indeed a solicitor. The problem with this submission is that [the applicant] is a barrister, not a solicitor, and should not be doing the work of a solicitor …"

[3]

Question of law or question of fact

In order to be entitled to relief by way of judicial review, the applicant must establish either error of law on the face of the record or jurisdictional error: Supreme Court Act, s 69(3); Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58. The applicant's challenge in ground 2 of the grounds for judicial review that she was not a "self-represented lawyer", does not raise either type of error. Rather, as framed, it is a challenge to a finding of fact and is thus not amenable to judicial review. Accordingly, that ground must fail.
However, the applicant argued that, if the Chorley exception applies to barristers who are litigants, then a barrister may recover costs for undertaking legal work in proceedings to which they were a party, notwithstanding that they were legally represented in those proceedings: see Hawthorn Cuppaidge v Channell.
This raises a separate issue of whether this is simply a way of reframing what is a question of fact to give it the appearance of a question of law, or whether it truly raises a question of law or a question of mixed fact and law and is thereby judicially reviewable. In order to determine that question, I consider that the best way to proceed is to determine first whether the Chorley exception extends to barristers and then to determine whether the issue to which I have just referred raises a question of law or a question of mixed fact and law, or whether it is only a question of fact.
I should add, at this early stage, that it does not appear that the factual question whether the applicant was a self-represented litigant was in issue before the primary judge. The grounds of appeal before the primary judge, considered below at [105], did not raise that question and nor could they have properly done so, as the appeal to the District Court was on a question of law. Further, the primary judge, at [5], identified the issue before her, as articulated by the applicant, as being that the Chorley exception "should extend to barristers, whether or not the barrister retains other legal representatives as well". I will return to this issue later in these reasons.

[4]

General observations

The rule is well established that a self-represented litigant is not entitled to professional costs for acting for herself or himself in legal proceedings: Chorley; Cachia v Hanes (1994) 179 CLR 403; [1994] HCA 14. There is a recognised exception, known as the Chorley exception, where a self-represented litigant is a solicitor: see Chorley at 875-878.
The exception was applied in Australia in Guss v Veenhuizen (No 2) (1976) 136 CLR 47; [1976] HCA 57. In recent years, the exception has been the subject of a number of decisions, both in New South Wales and in other Australian jurisdictions. These cases do not all speak with one voice and, in some instances where the exception has been applied, doubt has been expressed as to its principled application.
However, there is no authority binding on this Court, either directly or pursuant to the principle stated in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22, as to whether the Chorley exception applies to barristers. Accordingly, notwithstanding the recent judicial attention that has been given to the exception, it is necessary to again consider its underlying rationale and to review the authorities so as to determine whether it is consistent, as a matter of principle, with the Chorley exception: first, that a barrister litigant be entitled to recover costs for legal work; and secondly, that a barrister who is legally represented be entitled to recover for legal work he or she undertook for the purposes of those proceedings.
It is worth noting that as the question whether the Chorley exception applies or should apply to barristers has not been determined, either by the High Court or by any intermediate appellate court, a question arises as to whether it is appropriate for this Court to embark upon a determination of that question. Although the Court has jurisdiction to deal with the issue, the question is whether it is appropriate to do so. This question is particularly pertinent having regard to the authorities which have doubted the continued appropriateness of the rule in any event.

[5]

London Scottish Benefit Society v Chorley

In Chorley, an action had been brought against solicitors for money had and received by former clients. The solicitors defended the action themselves without engaging external solicitors. Judgment and costs were awarded in their favour. On taxation of their costs, the question arose whether they were entitled to costs for the legal work they had undertaken for the purposes of the proceedings. The taxing master had ruled that, in his experience, it had always been the practice to allow solicitors their costs in these circumstances, except certain charges for instructions: see London Scottish Benefit Society v Chorley (1884) 12 QBD 452.
The entitlement of the solicitors to their professional costs in acting for themselves was upheld in the Court of Appeal (UK). Brett MR, at 875, first referred to the general rule that a self-represented litigant was not entitled to professional costs as follows: "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."
His Lordship continued, in relation to a litigant who, being a solicitor, represented himself or herself: "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."
His Lordship concluded, at 876: "The true rule seems to be that when a solicitor brings or defends an action in person, he is entitled to the same costs as an ordinary litigant appearing by a solicitor, subject to this restriction, that no costs which are really unnecessary can be recovered. Of this kind are the costs of instructions and attendances."
It would appear that the reference to "instructions and attendances" in this passage is a reference to a solicitor's instructions to and attendances upon himself or herself, which could only notionally occur: see R v Boswell [1987] 2 All ER 513 at 517 per Leggatt J.
Bowen LJ, who first observed, at 876, that "[c]osts are the creation of statute", based his reasoning even more directly on the fact that a solicitor's skill and time could be measured. His Lordship referred, at 876-877, to Lord Coke's Institutes of the Laws of England as to the "true view of the law of costs", explaining that, as he understood it, the law was: "… that only legal costs which the Court can measure are to be allowed, and that such legal costs are to be treated as expenses necessarily arising from the litigation and necessarily caused by the course which it takes."
His Lordship continued, at 877: "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."
Both Brett MR and Bowen LJ rejected the proposition that the principle was based upon any position of privilege of the solicitor.
Fry LJ also agreed that a solicitor litigant should be entitled to costs. His Lordship stated, at 877-878: "I am of the same opinion. This is not a question as to a solicitor's privilege. I think that the conclusion at which we have arrived will be beneficial to the public, because if the rule were otherwise a solicitor who is party to an action would always employ another solicitor, and whenever he is successful he would recover full costs; whereas under the rule of practice laid down by us, a solicitor who sues or defends in person will be entitled, if he is successful, to full costs, subject to certain deductions, of which his unsuccessful opponent will get the benefit."

[7]

Guss v Veenhuizen (No 2)

In Guss v Veenhuizen (No 2), the Court was concerned with the question whether Mr Guss, a barrister and solicitor of the Supreme Court of Victoria, was entitled to costs in proceedings that he had, as a party, successfully prosecuted on appeal in the High Court. Mr Guss had acted as the solicitor on the record in the High Court proceedings, but had instructed counsel on his behalf. On taxation, the taxing officer disallowed Mr Guss' bill on the basis that, at the time the costs and disbursements were incurred, he had not been entitled to practice in the High Court. Mr Guss' name was not on the register because of an administrative oversight by the Registrar of the Court. The majority, Gibbs ACJ, Jacobs and Aickin JJ, considered that the Chorley exception applied and that Mr Guss was entitled to his professional costs for acting for himself in the proceedings. Mason and Murphy JJ upheld the taxing officer's refusal to allow the costs and did not consider the Chorley exception.
In their joint judgment, the majority observed, at 51, that Mr Guss had not claimed costs incurred by him in retaining the professional services of a solicitor. Rather, his claim was brought on the basis that, as a solicitor who acted for himself in the litigation, he was entitled to costs in accordance with the Chorley exception. As the work was done by him in person, the question for the court was whether he was entitled to the benefit of the "rule of practice" established by the Chorley exception.
The majority considered that the administrative error whereby Mr Guss' name was left off the High Court roll was not a bar to the claim for costs and, applying Chorley, held that Mr Guss was entitled to his own professional costs and his disbursements. In considering the Chorley exception, their Honours observed, at 51, 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."
Their Honours reiterated, at 52, that whether Mr Guss was entitled to his costs depended upon "the true basis of the rule", which they identified in the following terms: "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 [Mr Guss] 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."
Their Honours further stated, at 52, that had the omission to be registered on the High Court's register been the fault of the solicitor: "… 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."
The references to "precise qualification" and "lack of qualification" in these passages were references to the requirement for a legal practitioner to be registered on the High Court's Register of Practitioners in order to appear as a solicitor or barrister in that court. As I understand the point being made by their Honours, it was that, in the usual case, a solicitor's professional costs in the High Court can be assessed by a taxing officer, but only if the solicitor is registered on the High Court roll. However, because Mr Guss' non-registration was not his fault, his "capacity" to do the work of a solicitor was not in question. I should add that their Honours did not expressly explain why, if Mr Guss' non-registration had been his fault, they would not have made the order that they did. Presumably, however, it was a reference to the Court's discretion as to whether or not to award costs.
The Court accepted that Mr Guss was entitled to his professional costs even though he was self-represented in the proceedings.

[8]

Cachia v Hanes

The opponents of any extension of the Chorley exception, or, indeed, its continued application, usually commence by reference to the observation of the majority in Cachia v Hanes, at 411, that the exception is "somewhat anomalous". The litigant in Cachia v Hanes was not a solicitor but an engineer appearing in person, who had sought to claim costs on the basis of an hourly rate for the time he spent on preparation and the conduct of his case in court. The question whether he could recover those amounts turned on the applicable statutory provisions. The majority explained, at 409-410: "It is fundamental to the appellant's argument that the time he lost in preparing and conducting his case constitutes 'costs' within the meaning of [the Supreme Court Rules1970 (NSW), r 23(2)]. He is, however, unable to sustain that proposition. The 'costs' provided for in the Rules do not include time spent by a litigant who is not a lawyer in preparing and conducting his case. They are confined to money paid or liabilities incurred for professional legal services. It is only in that sense that the Rules speak of 'costs'. … Schedule G, which contains the relevant scale of costs, as in force when the appellant did the work and now, contains nothing, apart from its provision for allowances to witnesses, which indicates that the costs for which it provides are otherwise than costs in the conventional sense, namely remuneration for work performed by a solicitor or a solicitor's clerk. Indeed, the clear indications are that the costs provided for are costs of that kind. … To use the Rules to compensate a litigant in person for time lost would cut across their clear intent. Costs, within the meaning of the Rules, are reimbursement for work done or expenses incurred by a practitioner or practitioner's employee. Compensation for the loss of time of a litigant in person cannot be said to constitute costs within the meaning of the Rules."
Their Honours also noted, at 411, the statement of Bowen LJ in Chorley that "[c]osts are the creation of statute", introduced to the common law in 1278 by the Statute of Gloucester 1278 (UK) 6 Edw 1 c 1, and "were never intended to be comprehensive compensation for any loss suffered by a litigant". Their Honours, at 412, then referred to the observation of Bowen LJ that it would be "unadvisable" or "absurd" to allow a self-represented solicitor to "charge" for legal work undertaken in the litigation, stating that that assertion ignored: "… the questionable nature of a situation in which a successful litigant not only receives the amount of the verdict but actually profits from the conduct of the litigation."
Their Honours postulated, at 412-413: "If the explanations for allowing the costs of a solicitor acting for himself are unconvincing, the logical answer may be to abandon the exception in favour of the general principle rather than the other way round. However, it is not necessary to go so far for the purposes of the present case. It suffices to say that the existence of a limited and questionable exception provides no proper basis for overturning a general principle which has, as we have said, never been doubted and which has been affirmed in recent times."
Their Honours characterised the issue in Guss v Veenhuizen (No 2) as being whether the solicitor was precluded from claiming professional costs "by reason of the fact that he was not on this Court's Register of Practitioners". Their Honours pointed out, at 412, that it had not been argued in that case that a self-represented litigant who was a solicitor was never entitled to recover professional costs. It is pertinent to note, as observed by the majority, at 416, that in the United Kingdom, legislation had been introduced entitling a litigant in person to costs: see Litigants in Person (Costs and Expenses) Act 1975 (UK). Their Honours added that the costs of a litigant in person were not recoverable if "not contemplated by the relevant legislation or rules".
With respect to the majority's characterisation of the issue in Guss v Veenhuizen (No 2), to which I have just referred, I have understood the basis of the decision differently, as the passages at 52 of Guss v Veenhuizen (No 2) cited above would appear to indicate.

[9]

Other Australian authorities

The Chorley exception has continued to be applied to the professional costs of self-represented solicitors at first instance and by intermediate appellate courts in the various Australian State jurisdictions as well as in the Federal Court, albeit on occasion with criticism as to its continued application: see Atlas Corp Pty Ltd v Kalyk [2001] NSWCA 10; Khera v Jones [2006] NSWCA 85; A & D Douglas Pty Ltd v Lawyers Private Mortgages Pty Ltd [2006] FCA 690; McIlraith v Ilkin [2007] NSWSC 1052.
As there has been an extensive review of the authorities by this Court in Wilkie v Brown [2016] NSWCA 128; Bechara v Bates [2016] NSWCA 294; and Coshott v Spencer [2017] NSWCA 118, it is not necessary to embark upon that task again. Rather, more assistance is to be gained by considering the criticisms of the underlying rationale for the exception to ascertain whether, as a matter of principle, including by reference to the relevant costs rules, there is a proper basis for allowing the costs claimed by the applicant in this case.
In McIlraith v Ilkin, Brereton J, at [25], considered that: "Were the question untrammelled by authority, I might well have taken the same course as the Supreme Court of Western Australia in Dobree. In particular, I would question the proposition, which underlies the Chorley exception, that as a solicitor can employ another solicitor to do the work he or she should be entitled to recover the costs of doing the work him or herself. To the contrary, there seems to me a substantial reason to do so. Where a solicitor represents a litigant, the court is entitled to expect the litigant to be impartially and independently advised by an officer of the court. Indeed, where the court concludes that a solicitor is not in a position to give impartial and independent advice to a party, because of the solicitor's own interest in the outcome, the court has restrained the solicitor from continuing to act (see, for example, Kallinicos v Hunt (2006) 64 NSWLR 561). Where a solicitor acts for himself or herself there cannot be independent and impartial advice, and this is in principle a strong reason for holding that a solicitor litigant should not be entitled to costs of acting for him or herself."
The same approach was taken by this Court in Khera v Jones. In that case, Mason P and Ipp JA referred, at [2], to the observation in Cachia v Hanes that the exception was "somewhat anomalous" and that it rested upon a "'somewhat dubious' justification". Mason P and Ipp JA continued, at [6], as follows: "Were the matter uncluttered by authority we would favour the approach in Dobree. But there is little reason to think that this Court would depart from its firm and comparatively recent decision in Atlas. Nor are the prospects of engrafting an exception on the Chorley exception, related to 'unemployed' solicitors, of sufficient weight to merit a grant of leave that would add a further costly chapter to this litigation. These matters could only be addressed by the High Court."
In Dobree v Hoffman (1996) 18 WAR 36, the Full Court of the Supreme Court of Western Australia refused to apply the Chorley exception in favour of a solicitor litigant. At 45, Parker J (Rowland and Steytler JJ agreeing), held that Guss v Veenhuizen (No 2) was not binding on the Court's determination for two principal reasons. First, his Honour considered that the application of the Chorley exception was not directly in issue in Guss v Veenhuizen (No 2), such that the judgment did not have the force of binding precedent on that point.
Secondly, and "more importantly", his Honour considered that Guss v Veenhuizen (No 2) was concerned with the practice of the High Court, and not with that of the Supreme Court of Western Australia as regulated by the Supreme Court Act 1935 (WA) and its rules of court. Parker J, at 51, considered that the relevant Western Australian statutory provisions and instruments provided no foundation for the application of the Chorley exception in Western Australia and that, having regard to the criticism of the rule in Cachia v Hanes, it ought not be applied.
However, Dobree v Hoffman was expressly overruled in Soia v Bennett (2014) 46 WAR 301; [2014] WASCA 27 at [78]-[86] per Pullin JA (Newnes and Murphy JJA agreeing). Pullin JA was particularly critical of statements in Dobree v Hoffman to the effect that Guss v Veenhuizen (No 2) did not have precedential effect on the unargued question of the validity of the Chorley exception in Australia. His Honour stated, at [80]: "In Guss v Veenhuizen (No 2), it was necessary that the successful litigant be a lawyer if he was to recover costs. The court decided that because he was a lawyer litigant in person, then, based on the Chorley exception, he was entitled to his costs, subject to the resolution of an issue about whether he was a lawyer if his name was not on the High Court roll of practitioners. A necessary material fact in Guss v Veenhuizen (No 2) was that the successful litigant was a lawyer. The decision was that because he was a successful litigant and a lawyer, he was entitled to his costs because of the Chorley exception. On that reasoning, the reference to the Chorley exception formed part of the ratio of the case … However, even if what was said by the majority in Guss v Veenhuizen (No 2) should be characterised as obiter, it was, as already mentioned, 'seriously' considered obiter of the High Court and it should have been followed by the Full Court in Dobree v Hoffman: see [Farah Constructions v Say-Dee] at [134]."
His Honour also found it relevant that other Australian jurisdictions, including New South Wales, Victoria, Queensland, South Australia and the Federal Court, had applied the Chorley exception and had refused to follow Dobree v Hoffman: see [77] and [80]-[81] and the cases cited therein. His Honour considered, at [82], that it was highly desirable that the same rule of practice should apply in all jurisdictions until the High Court decided otherwise. In relation to the criticisms of the rationale of the Chorley exception, his Honour considered, at [84], that there "should not be a rush" to abolish the Chorley exception without further considered debate on the subject. Special leave to appeal from Soia v Bennett to the High Court was refused: Soia v Bennett [2014] HCASL 248.
Before leaving this recapitulation of the case law, reference should be made to Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29, in which Basten JA observed, at [28], that the word "payable" in the definition of "costs" in the Civil Procedure Act 2005 (NSW), s 3 might at some stage require the reconsideration of the Chorley exception in civil proceedings in New South Wales. However, in Coshott v Spencer, which involved costs claimed by a solicitor, this Court considered, at [107], that the Chorley exception continued to apply in New South Wales and that the Civil Procedure Act, ss 3 and 98 did not, as a matter of statutory construction, require a different outcome. In this regard, it should be noted that s 3 is not confined to "costs payable". Rather, costs are defined, in relation to proceedings, as "costs payable in or in relation to the proceedings, and includes fees, disbursements, expenses and remuneration". The respondent did not seek to re-argue the point of principle decided in Coshott v Spencer. Coshott v Spencer was the subject of a grant of special leave, which was subsequently revoked during the hearing of the appeal.

[10]

Australian jurisdictions

There have been a number of cases in New South Wales where self-represented barristers have been awarded their costs. In Farkas v Northcity Financial Services Pty Ltd [2006] NSWSC 1036, it was assumed that the Chorley exception applied, and in Bechara v Bates, the opposing party failed to appear so that the matter proceeded on the basis that it had been conceded that the exception applied to barristers.
In Ada Evans Chambers Pty Ltd v Santisi [2014] NSWSC 538, a magistrate had allowed the professional costs of a barrister who had acted for himself in proceedings in the Local Court. Adamson J refused the plaintiff leave to appeal from the Local Court decision in circumstances where she considered that it was open to the magistrate to exercise his discretion to allow the barrister's professional costs. In doing so, her Honour observed, at [29], that the distinction between solicitors' and barristers' work was less important than previously, in circumstances where there is now a common admission as legal practitioners.
Adamson J also considered it relevant that in Farkas v Northcity, Bergin CJ in Eq had not questioned a self-represented barrister's entitlement to costs. Adamson J further considered that, despite the importance of the point, it would not be desirable for it to be determined by the Supreme Court in a case "where the costs of doing so are already grossly disproportionate to the amount originally in issue in the proceedings".
There are, however, cases where the courts have refrained from extending or applying the rule to barristers: see Winn v Garland Hawthorn Brahe [2007] VSC 360; Murphy v Legal Services Commissioner (No 2) [2013] QSC 253; Hartford Holdings Pty Ltd v CP (Adelaide) Pty Ltd (2004) 234 LSJS 66; [2004] SASC 161. In Winn v Garland Hawthorn Brahe, Kaye J considered that the exception did not apply to the professional costs for solicitors' work undertaken by an interstate barrister who was not entitled to practice in Victoria as a solicitor. His Honour also refused to extend the exception to the barristers' work undertaken by the applicant. In doing so, his Honour accepted the submission that counsels' fees were different from solicitors' costs in that the former are "a disbursement to the client and not a profit cost". His Honour also considered that the decision in Cachia v Hanes amounted to an "injunction of the High Court that the exception, albeit longstanding, should now be construed narrowly and should not be permitted to expand".
Murphy v Legal Services Commissioner (No 2) concerned a costs claim made by the applicant, a barrister, who had successfully represented himself. The applicant argued that the Chorley exception should be extended to self-represented barristers on the basis that "an award of costs will include costs for the application of professional legal skills where the value of the professional time can be quantified on an assessment of costs": see [8]. Daubney J stated, at [16], with reference to the comments of the High Court in Cachia v Hanes, as follows: "There is no authority which supports the proposition that the 'anomalous' and 'somewhat dubious' exception in favour of a self-represented solicitor extends to a self-represented barrister. In the absence of clear authority, I am not prepared to extend the ambit of an exception which is itself of such questionable application."
In reaching this conclusion, his Honour noted, at [10]-[11], that he found no assistance from the United Kingdom authorities to which he was referred, principally because under the Litigants in Person (Costs and Expenses) Act, self-represented litigants were entitled to recover loss of earnings for time spent in preparing and presenting a case.
The respondent placed particular emphasis on the decision in Hartford Holdings v CP (Adelaide) as an appellate decision in another Australian jurisdiction where the question of a legal practitioner's entitlement to costs for appearing for himself arose. In South Australia, the jurisdiction where the proceedings were conducted, the profession is 'fused', that is, a legal practitioner is admitted as a barrister and solicitor.
Mr Sallis, a legal practitioner who appeared for himself, was one of a number of plaintiffs in proceedings in which he was successful. The primary judge had accepted that he was entitled to his professional costs in respect of work he undertook which was the work of a solicitor. However, the primary judge refused to allow costs to the extent that they represented costs for work as if undertaken by counsel or on the basis of the scale of fees applicable to counsel. The basis of refusal was on the grounds of public policy: see [123]-[124].
Doyle CJ (Gray and Besanko JJ agreeing) stated, at [125], that the decision of the primary judge was correct, being "required of him, in light of … Cachia". Doyle CJ did not consider that it was necessary to consider the broader question of public policy in relation to the entitlement of a self-represented litigant to recover the costs of preparation for legal proceedings, in respect of which his Honour acknowledged that there were: "… arguments for and against the view that an unrepresented litigant should be entitled to recover substantial compensation by way of costs for the time and effort committed to the presentation and preparation of a case."
However, Doyle CJ noted that that question was foreclosed by the decision in Cachia v Hanes. His Honour then moved to a consideration of whether Mr Sallis was entitled to costs of appearing for himself. In that regard, his Honour considered, at [128], that the "costs" provisions under consideration in Cachia v Hanes were relevantly the same as applied in the case under consideration, being costs of and incidental to proceedings including on appeal.
In Doyle CJ's opinion, as stated at [129], the majority decision in Cachia v Hanes was that: "… the expression 'costs', absent a reason to give it a more extended meaning, refers to reimbursement for work done or expenses incurred by a practitioner, and does not include compensation for the loss of time of the litigant in person." See also Burford v Allan [1998] SASC 6693 to the same effect.
Doyle CJ observed that a different approach had been taken in England: see Khan v Lord Chancellor [2003] 2 All ER 367 and Malkinson v Trim [2003] 2 All ER 356, but in respect of different statutory provisions. His Honour noted that, in any event, the approach in the United Kingdom did not reflect the law in Australia. His Honour observed, at [130], that had Mr Sallis been briefed to appear in the matter, his costs, if not agreed, would have appeared in a bill of costs as a disbursement and been assessed by the taxing officer by reference to law and practice and the Guide to Counsel Fees published by the Masters of the Court.
Doyle CJ continued, at [131]: "In the present case the claim is not a claim for reimbursement for work done or expenses incurred by Mr Sallis as counsel retained by a party. He appeared in his own right … The claim is, in substance, a claim to compensate Mr Sallis as a litigant in person for the time that he spent in connection with the case, assessing that compensation as if the work done was performed by counsel retained by a party to the case. Accordingly, consistently with what the majority said in Cachia, it is not a claim for costs as that term is understood in the Rules."
His Honour concluded, at [131], that the Chorley exception should not be extended so as to enable Mr Sallis to claim costs in respect of work undertaken as if he had been retained as counsel. His Honour stated as follows: "The exception in favour of a solicitor who acts for himself should not be extended to the present case. Unless the High Court determines otherwise, that exception should be confined to its present limits. Although, in South Australia, practitioners are admitted as solicitors and barristers, and can practice in both capacities, or in one only, a distinction remains as a matter of law and practice between the role of solicitor and that of counsel, and between the position of solicitor and that of counsel. Different professional duties attach to each capacity, although there is a considerable overlap."
Doyle CJ recognised, at [132], the logic of extending the exception, particularly in a jurisdiction where legal practitioners were admitted as barristers and solicitors, but considered that the decision in Cachia v Hanes, in which "the majority took the view that this anomalous exception was not to be extended", required the contrary position to be taken and that the exception not be extended. His Honour was further of the opinion that, in any event, it was "more consistent with principle to restrict the exception to its present limits". The "principle" that was relevant, in his Honour's consideration, was the independence required as between counsel and client and the fact that counsel owed duties to the court. Doyle CJ further reasoned that: "The only basis for a claim by [Mr Sallis] for the allowance that he seeks is that had he not acted as his own counsel, he might have retained counsel and thus incurred costs equivalent to the allowance that he now claims. However, in principle, that is not a reason for allowing the claim, because in substance that is to argue that an unrepresented litigant should be compensated in costs either by reference to the costs that the litigant would have incurred had the litigant been represented, or by reference to the time and effort that the litigant committed to the case and thus avoided the need to retain counsel. Cachia makes it plain that that reasoning cannot be accepted."

[11]

UK jurisdiction

The Court was referred to three cases where self-represented barristers were held to be entitled to their fees: Boswell; Khan v Lord Chancellor; and R (Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court [2016] 1 WLR 4506.
In Boswell, junior counsel had appeared for himself and senior counsel before a taxing master in relation to their costs in other proceedings. On appeal from the taxing master, junior and senior counsel had engaged other counsel to appear for them. Leggatt J, at 517, after referring to the Chorley exception, accepted as correct a submission that "costs recoverable where one counsel instructs another must be the same in principle as where one solicitor instructs another". His Honour added: "Indisputably an appellant solicitor or counsel can conduct his own appeal. An attempt to equate such a professional person with a litigant in person is unhelpful because the [1982 regulations] do not limit the scope of the remuneration recoverable by an appellant, and such an appellant brings to bear professional skill and labour, the value of which can as readily be assessed as if they were performed for him by another lawyer."
Boswell was referred to in argument in the Bar Standards Board case, but was not considered by the Court in its judgment. In the Bar Standards Board case, a barrister successfully defended herself in disciplinary proceedings brought by the Bar Standards Board. She was, at all times, self-represented before the Disciplinary Tribunal. The Court of Appeal (UK) held that the Tribunal had wrongly applied the Civil Procedure Rules in relation to costs and that, under the Bar's Disciplinary Tribunals Regulations, which applied, the Tribunal had a broad discretion as to costs. McCombe LJ (King LJ agreeing) held, at [19], that as the Civil Procedure Rules did not apply, "the best guidance for the tribunal in assessing costs remains the common law as stated in [Chorley]".
In coming to this conclusion, the Court of Appeal approved the decision in Khan v Lord Chancellor, in which a barrister who had represented himself in criminal proceedings was held to be entitled to his professional costs on the basis of the Chorley exception. Mitchell J considered, at [51]-[53], that the Chorley exception properly extended to a self-represented barrister and that there were no policy objections to the extension of the rule.
It is relevant to note that in each of Boswell and the Bar Standards Board case, it was recognised that whether the costs claimed were reasonable was a matter to be determined in the exercise of the taxing officer's discretion.

[12]

Applicant's submissions

The applicant submitted that although a self-represented party is not entitled to professional costs in relation to legal proceedings, including recompense for the time spent in preparing proceedings, and may only recover disbursements, that rule does not apply to a self-represented solicitor: Chorley; Guss v Veenhuizen (No 2); Cachia v Hanes. The applicant submitted that, having regard to the underlying rationale for the rule, the Chorley exception applies to a barrister who is a party to proceedings and acts for himself or herself, for the same reason as a solicitor is so entitled, namely, that a barrister's costs are able to be quantified by the same processes as are solicitors' costs.
The applicant submitted that she was a self-represented legal practitioner and that, as such, she was entitled to her professional costs for the work she performed, both in preparation for the hearing in the Local Court and on the appeal to the Supreme Court, and for the appearance work she did in both courts. She described the work she undertook as being preparatory work for the purpose of the hearings and that it was work that could be carried out by either a barrister or a solicitor. Having regard to her reliance upon the decision in Hawthorn Cuppaidge v Channell, I understand the applicant's submission to be that, to the extent that she undertook legal work, she was self-represented. I return to that decision below.
The applicant submitted that in those decisions where the court declined to apply the Chorley exception to costs for work done by a self-represented barrister, the court had not understood the underlying rationale of the rule, namely, that the costs of the self-represented solicitor were able to be quantified, as noted above. The applicant also submitted that, in the language of some of the authorities, she was "qualified" to be a solicitor, in the sense that she had the necessary legal qualifications, and submitted that her status as a barrister was dictated by the rules of the legal profession in New South Wales, which require a person to be registered either on the roll of solicitors or the roll of barristers. She further submitted that there was no longer any necessary distinction between much of the work of barristers and solicitors and, to the extent that legal work was prohibited to a barrister, such as conveyancing, she had not undertaken that type of work for the purpose of the proceedings.

[13]

Respondent's submissions

The respondent submitted that the applicant was not self-represented in the proceedings and, further, that the primary judge was correct to hold that the Chorley exception does not apply to self-represented barristers. The respondent contended that the underlying rationale for the Chorley exception was weak, as had been recognised in various cases. The respondent urged the Court, in particular, to follow the reasoning in Hartford Holdings v CP (Adelaide), especially at [131]-[132]. The respondent also relied upon the observation of Brereton J in McIlraith v Ilkin, at [25], where his Honour said that, were the matter untrammelled by authority, he would have held that a self-represented solicitor was not entitled to costs.
The respondent submitted that, in any event, the assessment of costs had changed significantly since Chorley and Guss v Veenhuizen (No 2). Solicitors' costs are no longer determined by taxation officers who were judicial officers of the court and assessment is no longer based on a system of scales of costs for specific items of professional work, as was the position in those cases. The respondent submitted that, when the court in Chorley spoke of what was measurable, it was referring to the fact that the taxing officers had scales of costs by reference to which the value of professional legal work was measured. Costing is now assessed on a time costing basis and that assessment is undertaken by private practitioners who are not officers of the court, albeit the appointment of costs assessors is governed by statute: see Legal Profession Act 2004, s 390; Legal Profession Uniform Law Application Act 2014 (NSW), s 93C.
The respondent also submitted that the value of the time of other litigants could be appropriately assessed by a court or by a costs assessor with the assistance, if necessary, of expert evidence or by the provision of other relevant information. It followed, on this argument, that the underlying rationale for the Chorley exception no longer held good, as had been acknowledged by the High Court in Cachia v Hanes and by other Australian courts in the decisions which have been discussed.
Finally, the respondent contended that under the New South Wales Bar Association Barristers' Conduct Rules (8 August 2011) (Bar Rules), to which the applicant was bound, the applicant was not entitled to the costs that she now claims. The respondent submitted that pursuant to the Legal Profession Act 2004, ss 22-34, all practitioners are admitted to the roll of the Supreme Court as a local lawyer and then elect to practice as a barrister or as a solicitor in accordance with the rules of the Bar Council and Law Society respectively: Legal Profession Act 2004, s 41.
However, in oral submissions, the respondent accepted that it is difficult to maintain the distinction between solicitors' work and barristers' work when, although there is work a barrister cannot do, there is much crossover and certain work, such as drafting pleadings and affidavits, can be done by both. Notwithstanding that this was so, the respondent maintained that the application of the Bar Rules was significant because, while the applicant is entitled to represent herself, she could not charge for any work that contravened the Bar Rules and could not, under a party/party costs order, be paid for that work. This, the respondent submitted, fortified the policy arguments against extending the Chorley exception to barristers.

[14]

Consideration of the application of the Chorley exception

As I understand her submissions, the applicant accepted that the primary judge found, or at least did not disturb the finding of the Review Panel, that she was not a self-represented litigant. As discussed earlier, whether the applicant was or was not a self-represented litigant is a question of fact and, as such, is not amenable to judicial review. However, given the applicant's reliance on Hawthorn Cuppaidge v Channell, the question whether the Chorley exception applies to a barrister who undertakes legal work in the course of litigation in which the barrister is legally represented remains in issue. Before determining that question, it is appropriate to have regard to the rules that govern costs and the assessment of costs as were applicable to the litigation in which the costs in this case were ordered.
Relevantly, for present purposes, the costs order made in favour of the applicant was made pursuant to the Civil Procedure Act. Section 98(1)(a) provides that, subject to that Act or any other Act, costs are in the discretion of the court. Section 98(1)(b) provides that "the court has full power to determine by whom, to whom and to what extent costs are to be paid". The Uniform Civil Procedure Rules 2005 (NSW), r 42.1 provides that subject to Pt 42, costs follow the event unless it appears to the court that some other order should be made. "Costs" are defined in the Civil Procedure Act, s 3, as set out above at [53].
The assessment of costs ordered by a court is also governed by statute. The respondent sought an assessment of the costs claimed by the applicant, which included her claim for work that she undertook in the proceedings, albeit she was represented. As the Local Court and Supreme Court proceedings in respect of which the relevant costs orders were made commenced before 1 July 2015, the statutory provisions relevant to the assessment of costs are contained in the Legal Profession Act 2004 and the Legal Profession Regulation 2005 (NSW): see Legal Profession Uniform Law Application Regulation 2015 (NSW), r 59.
Part 3.2 of the Legal Profession Act 2004 governs costs disclosure and assessment. Division 11 of that part deals with costs assessment. Section 353 provides for a party to make an application for an assessment of party/party costs payable by reason of a costs order made by a court or a tribunal.
Section 363 provides that a costs assessor must consider whether it was reasonable to carry out the work to which the legal costs relate, whether the work was carried out in a reasonable manner and the fairness and reasonableness of the amount of costs in relation to the work. It also provides a list of factors relevant to the question of what is a fair and reasonable amount of legal costs.
It was not suggested that, if the applicant is entitled to recover costs for the legal work that she undertook, the costs she claims could not be the subject of assessment. Whether the costs claimed would be allowable or allowed as claimed is a different question. Some matters for which the applicant claimed costs appeared, on their face, to be referable to her position as the client in the case. Attendance upon counsel for conferences and her attendance in court as a witness are examples. However, those matters are matters for costs assessment if the applicant is entitled, as a matter of principle, to claim for legal work she undertook, and are not the subject matter of the summons for judicial review presently under consideration.
The respondent's opposition to the application of the Chorley exception in the present case was based essentially on there being restrictions on the type of work that may be undertaken by a barrister. The respondent also submitted that the Court should apply the decision in Hartford Holdings v CP (Adelaide), which it contended was persuasive authority that the Chorley exception did not apply to, and should not be extended to, barristers.
The applicant, as a barrister, was bound by the Bar Rules. Pursuant to r 15, the work of a barrister includes, relevantly: appearing as an advocate: r 15(a); giving legal advice: r 15(e); preparing or advising on documents to be used by a client or by others in relation to the client's case or other affairs: r 15(f); carrying out work properly incidental to the kinds of work referred to in r 15: r 15(g); and such other work as is from time to time commonly carried out by barristers: r 15(h). Certain work is proscribed under the Bar Rules, including: serving court processes: r 17(f); conveyancing: r 17(g); and obtaining probate and letters of administration: r 17(i). It was not suggested that the applicant had engaged in such work.
It will be immediately apparent from the Bar Rules, and is now accepted, that there is a significant degree of commonality in the work of barristers and solicitors. This includes, relevantly, the preparation of court documents and preparing legal advices. Accordingly, the fact that barristers and solicitors are registered on different rolls and their conduct is governed by the rules of different associations does not provide a principled basis upon which to reject the application of the Chorley exception to legal work undertaken by a self-represented litigant who is a barrister. This is particularly so when it is appreciated that the rationale of the Chorley exception is not based on the type of work solicitors undertake, per se. Rather, it is based on the fact that the work undertaken can be quantified.
At the time that Chorley was decided, costs were the subject of taxation by court officers, based upon costs scales for items of work specified in the relevant schedule. That was also the position in Guss v Veenhuizen (No 2), Cachia v Hanes and Hartford Holdings v CP (Adelaide), where the costs payable pursuant to an order for costs were subject to taxation on the basis of costs scales contained in schedules to the relevant rules. That remained the position in New South Wales until the commencement of the Legal Profession Act 1987 (NSW) as amended by the Legal Profession Reform Act 1993 (NSW), which removed the costs scales in favour of a system of costs assessment by costs assessors, being Australian legal practitioners appointed pursuant to the legislation.
Since that time, solicitors' legal costs have, in large measure, if not exclusively, been charged and assessed on a time costing basis, by reference to what is fair and reasonable: see Legal Profession Act 1987, s 208F; Legal Profession Act 2004, s 364. The position remains the same under the Legal Profession Uniform Law (NSW), ss 172 and 199 and the Legal Profession Uniform Law Application Act.
Under the previous system of taxation of costs, barristers' fees were treated as a disbursement in a solicitor's bill of costs, and the common law position, that barristers could not sue to recover fees because there was no contract between the barrister and the instructing solicitor, continued: see Branson v Tucker [2012] NSWCA 310 at [67]-[69] per Campbell JA (Beazley and Barrett JJA agreeing). That position was changed by the Legal Profession Reform Act, which permitted a barrister to enter into a contract for the provision of legal services, and to sue and be sued on it: see Legal Profession Act 1987, s 38I; Legal Profession Act 2004, s 83. Barristers' fees may now be the subject of assessment: see, for example, Legal Profession Act 1987, ss 199 and 200; Legal Profession Act 2004, ss 350 and351; Legal Profession Uniform Law, s 198.
There may have been a question whether a barrister would be entitled to costs in a costs regime where the quantification of costs was by reference to scales of costs, as was the case in Guss v Veenhuizen (No 2), Cachia v Hanes and Hartford Holdings v CP (Adelaide). Indeed, that appears to have been one of two bases of the decision in Winn v Garland Hawthorn Brahe, the other being Kaye J's view that the courts, particularly the High Court in Cachia v Hanes, had emphasised that the Chorley exception should not be expanded at all. It explains, in part at least, the decision in Hartford Holdings v CP Adelaide (see [130]-[131]), where Doyle CJ observed that if a claim were made for the work of appearing as a barrister, "it would appear in a Bill of Costs lodged for taxation by a solicitor [and] would appear as a disbursement". However, in his Honour's view, the claim was not "for reimbursement for work done or expenses incurred by … counsel retained by a party".
However, as I have sought to explain, the basis upon which costs are assessed has changed radically. The definition of "costs" in the Civil Procedure Act, this Court's decision in Coshott v Spencer, in which it was determined that the Chorley exception continued to apply in New South Wales to a self-represented solicitor, and the significant commonality in the work that may be performed by solicitors and barristers, all point in favour of the Chorley exception applying where the self-represented litigant is a barrister.
I am also of the opinion that there is nothing in the High Court's decision in Guss v Veenhuizen (No 2) which proscribes the application of the Chorley exception to work undertaken by a self-represented litigant who is a barrister. There does not seem to be a difference in principle where a barrister engages legal representation but personally undertakes certain legal work which could otherwise have been done by the legal representatives. Indeed, in Guss v Veenhuizen (No 2), the appellant was a self-represented solicitor who had briefed counsel to appear. In other words, there is nothing in Guss v Veenhuizen (No 2) which indicates that the principle is limited to cases where the solicitor undertook all of the legal work. That approach has already been taken in Australia in Hawthorn Cuppaidge v Channell, which is discussed below.
In my view, the obiter comments in Cachia v Hanes do not preclude this Court from determining whether the Chorley exception, as applied to barristers, falls within the underlying principle upon which Chorley was based, as determined by the High Court in Guss v Veenhuizen (No 2). The subject matter of Cachia v Hanes was an attempt to claim costs for work done by a self-represented litigant who was not a solicitor or a barrister. The High Court's comments were made in that context, and at a time when barristers' costs were, as I have explained, a disbursement in a legal bill rendered to the client and not subject to the same system of taxation as solicitors' costs. As I have explained earlier, both the practice of the law and the manner in which solicitors' and barristers' costs are assessed has changed. In practice, there is significant overlap in the work done by each and costs may be assessed in New South Wales under the same costs assessment processes.
Accordingly, I do not consider that the High Court's obiter observations in Cachia v Hanes has any direct application to the circumstances of this case. It follows that I do not consider that this Court is circumscribed by those observations: see Farah Constructions v Say-Dee. I should also add that, having regard to the significant commonality of work undertaken by barristers and solicitors and to the common costs assessment scheme, I consider that what is involved is an application of existing High Court authority to similar circumstances as arose in Guss v Veenhuizen (No 2). Whether that is so or whether the application of the Chorley exception to barristers is a permissible application of the principle is, of course, a matter ultimately for the High Court, as is the continued application of the exception itself.
In Garcia v National Australia Bank Ltd (1998) 194 CLR 395; [1998] HCA 48, the plurality "emphasised", at [17], in circumstances where this Court had not followed the High Court's decision in Yerkey v Jones (1939) 63 CLR 649; [1939] HCA 3, "it is for [the High Court] alone to determine whether one of its previous decisions is to be departed from or overruled." The High Court's observation in Garcia v National Australia Bank is indicative of the more general proposition, found in Farah Constructions v Say-Dee, that it is not for an intermediate court of appeal to effect changes to well-established principle.
There is also a real question as to whether, in accepting that the Chorley exception applies to barristers, the Court is doing no more than, as a matter of precedent, applying the principle in Chorley as that principle was adopted and applied in Guss v Veenhuizen (No 2), or whether to do so is to extend the principle.

[15]

Was the determination of the applicant's entitlement to costs as a barrister who in part undertook legal work in the preparation of her case a question of law or a question of mixed fact and law?

This brings me then to the question whether the applicant established that the determination of her entitlement to costs as a barrister who in part undertook legal work in the preparation of her case raises a question of law or a question of mixed fact and law.
I have already referred to the fact that the Review Panel, whose decision was the subject of the appeal to the District Court, had found no basis upon which to alter the finding of the costs assessor that the applicant was not self-represented because she had retained lawyers to act for her. The matter was before the Review Panel pursuant to the Legal Profession Act, ss 373 and 374, whereby a party to a costs assessment may seek a review of the assessment. Pursuant to s 375(2), the Review Panel has: "… all the functions of a costs assessor … and is to determine the application … in the manner that a costs assessor would be required to determine an application for costs assessment." The Panel may affirm the costs assessor's determination or set it aside and make its own determination.
The effect of the Review Panel's determination was that it found or, alternatively, acted on the basis that the applicant was not a self-represented litigant. This is apparent from that part of the Review Panel's findings, extracted by the primary judge at [7] as follows: "… it appears to the Panel that the Assessor was of the view that [the applicant] was not a self-represented lawyer in either the Local Court proceedings or the Supreme Court proceedings because she had instructed solicitors to appear for her in the Local Court proceedings. Furthermore she had instructed solicitors and counsel to appear for her in the Supreme Court proceedings and she did not appear as junior counsel to Senior Counsel in the Supreme Court proceedings."
The Review Panel observed that the costs assessor had also found that the Chorley exception did not apply to barristers and concluded that "it was open to the Assessor to make the findings which he did". The Panel considered that there was "no basis for altering the Assessor's determination on this issue".
The primary judge, at [8], set out the grounds of appeal, which, so far as is relevant to the present issue, were as follows: "3 The Review Panel erred in law in determining that even if the 'Chorley exception' applied to barristers in NSW [the applicant] could not recover the costs of any of the professional work undertaken by her in the proceedings because she retained or instructed other legal practitioners who acted and appeared for her in the proceedings 'and she did not appear as a junior counsel to senior counsel in the Supreme Court proceedings.' 4 The Review Panel should have determined that the 'Chorley exception' applied to a legal practitioner who is a party to proceedings who carries out professional work in the proceedings whether or not the work is appearing as an advocate or as junior counsel or non-appearance preparatory work including advising or drafting documents such as pleadings and affidavits and whether or not he or she sues in person or by a solicitor and irrespective of whether or not he or she carries out some or all of the work in the case. 5 The Review Panel erred in law in determining that the plaintiff could not recover the costs of the preparatory and other professional work undertaken by her in her own case as well as the costs of the work performed by the other lawyers that carried out work in the proceedings …" (citations omitted)
As I have indicated, the error of law for which the applicant contends is said to be contained in [86]-[87] of the primary judge's reasons, set out above at [13]-[14]. It is also appropriate to make reference to [88], where her Honour observed that it is difficult to see how a barrister could justify charging for work done in breach of the Bar Rules in so far as those rules prohibit a barrister from doing certain work that is characterised as solicitors' work. I agree with that observation but, to my mind, that is a costs assessment issue.
In Guss v Veenhuizen (No 2), the appellant had performed the work of a solicitor in his matter, but had briefed counsel to present the case in the High Court. A case closer to the present, and upon which the applicant particularly relied, was Hawthorn Cuppaidge v Channell. In that case, the plaintiffs, a firm of solicitors, had retained other solicitors to appear for them in litigation against the defendant. An order had been made that the defendant pay the plaintiffs' costs. The plaintiffs had undertaken some of the legal work themselves in preparation for the hearing. Costs for that work had been allowed by the taxing officer, save for certain items, such as costs for "attending upon or instructing themselves". The question in issue before Ambrose J was whether the plaintiffs were entitled to recover professional costs for the work they had personally undertaken.
It was not in dispute that had the plaintiffs done no legal work, they would have been entitled to recover the costs of the legal work performed by their retained solicitor. It was also not in dispute that had they done all the professional work of a solicitor in the preparation of the litigation, they would have been entitled to their professional costs in accordance with the Chorley exception.
Ambrose J stated, at 491, that he could find no authority to support the proposition that because the plaintiffs had retained a solicitor to do part of the work, they were not also entitled to their professional costs for the work they had done. His Honour considered that any such proposition was inconsistent with the Chorley exception, having regard to the rationale for the rule. His Honour referred to Ogier v Norton, where a solicitor who had done part of the preparatory work but had later engaged another solicitor was held to be entitled to costs for the professional work he had undertaken.
Ambrose J also referred, at 492, to Martin v Armstrong, observing that that decision was inconsistent with the defendant's claim that the plaintiffs were not entitled to any costs for the work they had performed. His Honour added, however, that there was an "exception" to the application of the Chorley exception, such as had been identified by the taxing officer. His Honour was not prepared to descend into further detail, stating that it was otherwise for the taxing officer to determine the costs that fell within or without the rule. Ambrose J referred to the same point made in Ogier v Norton, where Madden CJ, after referring to the principle that self-represented solicitors who conduct their own litigation are entitled to their professional costs, observed, at 538: "Of course there are exceptions to the costs to be allowed. For example, it would be absurd to allow him costs for instructing himself or for attendances on himself, and things of that kind which would involve a duplication of himself as client and as solicitor."
In the present case, the primary judge, at [87], accepted the reasoning in Hawthorn Cuppaidge v Channell, but considered that that decision had no application because the applicant was a barrister and not a solicitor. As I understand her Honour's reasons, she did not dispute that if Chorley applied, the applicant could have claimed costs for the legal work that she undertook that was not otherwise proscribed to her.
Accordingly, notwithstanding that the applicant in ground 2 of her grounds for judicial review contended that the primary judge erred in law in finding that she was not a self-represented litigant, that ground must be understood in the context of the matters in issue before the primary judge. The question whether the applicant was a self-represented litigant was not in issue per se. Rather, the issue raised by grounds 3, 4 and 5 was whether the Chorley exception applied to her as a barrister in circumstances where she had retained lawyers but nonetheless did aspects of the legal work herself.
In my view, this raised a question of mixed fact and law. It has been held, although not in the context of judicial review pursuant to the Supreme Court Act, s 69, that an appeal on a question of law encompasses an appeal on a question of mixed fact and law: see Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8 at [8]; NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281 at [8]; Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 at [62].
Accordingly, her Honour's determination of this issue was amenable to judicial review.

[16]

Conclusion

Although I have not found this matter to be without difficulty, I have concluded both that the Chorley exception applies to barristers and that the summons for judicial review raises a question of mixed fact and law. For the reasons I have given, I consider that the primary judge erred in law in dismissing the applicant's appeal on the bases I have discussed.
In particular, I should emphasise that I have concluded that this case involves an application of the Chorley exception to the facts and is not an extension of it. The applicant in this case did not seek a departure from any previous decision of the High Court. Rather, she sought a determination as to whether the Chorley exception applies to barristers in circumstances where she was not a self-represented litigant but undertook legal work in the litigation in which she was represented.
Given that there are cases in other common law jurisdictions where the Chorley exception has been applied to barristers, as well as Australian decisions where the rule has been applied, and where there is no decision of an Australian intermediate appellate court directly contrary to the proposition, I have concluded that it is appropriate for this Court to consider whether the exception ought to be applied in the circumstances that exist in this case. In doing so, I do not consider that this Court would be acting contrary to the statements of the High Court in Garcia v National Australia Bank and Farah Constructions v Say-Dee.
However, given the contentious and unresolved question of the application of the exception at all and the extent of its application, it is apparent that that question will eventually need to be resolved either by the High Court or by legislation, as has occurred in some other jurisdictions.
It should be noted that judgment in this matter was ready for delivery in December 2017, but that with the consent of the parties, judgment was delayed pending the outcome of the grant of special leave in Coshott v Spencer.

[19]

The statutory costs power

Costs as separately awarded in actions at common law are "entirely and absolutely creatures of statute": Garnett v Bradley (1878) 3 App Cas 944 at 962 (Lord Blackburn); see also Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 182-183 (Mason CJ and Deane J). Accordingly, the question in this application is to be resolved by construing the relevant statutory source of the power to award costs in this State, namely Civil Procedure Act, s 98(1), which provides as follows: (a) costs are in the discretion of the court, and (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 term "costs" is defined in s 3(1) to mean "costs payable in or in relation to the proceedings" and to include "fees, disbursements, expenses and remuneration" (emphasis added). Ordinarily, both parts of that definition would be construed only after their insertion into the substantive enactments to which they apply and with a view to giving them practical effect: Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103] (McHugh J); Minister for Resources v Dover Fisheries (1993) 43 FCR 565 at 574 (Gummow J). That approach would suggest that the first part refers to an underlying liability to pay costs incurred in or in relation to proceedings, rather than any prospective liability under a court order to defray those costs. The Court would presumably then only have power under s 98(1) to make an order requiring payment of an amount that is "payable" to someone (including in the form of fees, disbursements, expenses and remuneration: cf Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 at [16]-[21] (Davies AJ); Dyktynski v BHP Titanium Minerals Pty Ltd (2004) 60 NSWLR 203; [2004] NSWCA 154 at [100] (McColl JA, Davies AJA agreeing)).
The so-called "Chorley exception" is not identified as an alternative, non-statutory source of the power to make such an order in the circumstances. Rather, it describes a special rule of practice that has been recognised in the exercise of powers conferred and regulated by other procedural statutes and rules of court. Such recognition could give rise to further considerations in the construction of s 98(1). Material similarities between that provision and historical legislation construed as accommodating the Chorley exception would suggest an intention that the provision operate similarly: Geelong Harbour Trust Commissioners v Gibbs Bright & Co (1974) 129 CLR 576 at 584. Material differences would, however, suggest otherwise: Amalgamated Wireless (A/sia) Ltd v Philpott (1961) 110 CLR 617 at 624.
In any event, caution is required before construing s 98(1) according to a special rule derived from cases on other legislation. As McHugh J explained in Marshall v Director-General, Department of Transport (2001) 205 CLR 603 at [62], in terms adopted by a unanimous High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 258 at [31]: The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.

[20]

The Chorley exception

The first statute providing for the recovery of costs at common law, the Statute of Gloucester 1278, 6 Edw 1, c 1, only referred expressly to "the Costs of [the Demandant's] Writ". However, in accordance with the doctrine of the equity of the statute which then prevailed, it was extended "to all the legal costs of the suit, but not to the costs and expenses of his travel and loss of time": Sir Edward Coke, Institutes of the Lawes of England, (1st ed, 1642), Pt 2 at 288; see generally Nelson v Nelson (1995) 184 CLR 538 at 552-553 (Deane and Gummow JJ). Later English statutes, in force at the time of the Chorley litigation, referred more generally to a party's "costes" (23 Hen 8, c 15) or to "the costs of and incident to all proceedings in the High Court" (Rules of Court, Order 55 under Judicature Act 1875, 38 & 39 Vict, c 77).
Against that background, the decision of the Court of Appeal in London Scottish Benefit Society v Chorley (1884) 13 QBD 872 established that the time of a solicitor appearing in person was taxable as "costs". That conclusion was supported by considerations of policy: Brett MR (at 875) and Fry LJ (at 877-878) posited that solicitors would otherwise employ other solicitors, thereby incurring greater costs; and Fry LJ (at 877), that a solicitor's "[p]rofessional skill and labour are recognised and can be measured by the law". Implicit in that reasoning was a conception of "costs" as including the opportunity cost of self-representation: see Atlas v Kalyk [2001] NSWCA 10 at [9] (Handley JA, Meagher and Sheller JJA agreeing).
The rule in Chorley was then applied in Guss v Veenhuizen (No 2) (1976) 136 CLR 47. The appellant, who had obtained a costs order upon a successful appeal to the High Court, sought to recover the value of his work as a solicitor, as well as disbursements for filing and counsel's fees. The applicable source of power was Judiciary Act 1903 (Cth), s 26, which confers "jurisdiction to award costs in all matters before [that] Court". Order 71, rule 19 of the High Court Rules 1952 (Cth) provided, in the absence of any direction otherwise, for the Registrar to tax, allow and certify bills of costs and fees "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 "directed by a judgment or order to be taxed". Upholding an objection that the appellant was not so entitled because his name was not on the Court's Register of Practitioners, the Registrar disallowed the bill of costs.
On a review of that decision, the majority (Gibbs ACJ, Jacobs and Aickin JJ) held (at 53) that O 71, r 19 merely provided "for the method and manner of quantifying awarded costs in the ordinary case", without affecting "the long established rule of practice which gives certain professional costs to a litigant in person who is a solicitor". Describing the circumstances of the case as "very special", their Honours then directed the Registrar to proceed according to that long established rule of practice. On its face, that direction dispensed with the only provision limiting taxation to costs that were "payable", and no submissions or dicta were directed to the meaning of that word or its significance in relation to the power to award costs under Judiciary Act, s 26.
The Chorley exception was criticised in Cachia v Hanes (1994) 179 CLR 403 in terms outlined at [139]-[141] below. This Court nevertheless continued to follow Guss when exercising the costs power under Supreme Court Act 1970 (NSW), s 76, which defined "costs" as including "costs of and incidental to proceedings in the Court, including the administration of estates and trusts": see, eg, Dyktynski at [64], [99]. That provision was repealed and replaced from 2005 by Civil Procedure Act, ss 3, 98, supplemented initially by Legal Profession Act, Pt 3.2 and from 2015 by Legal Profession Uniform Law Application Act 2014 (NSW), Pt 7.
The application of Chorley under these provisions was doubted in this Court on several occasions. In Wang v Farkas [2014] NSWCA 29 at [28], Basten JA (Bathurst CJ agreeing and Beazley P relevantly agreeing) observed that the introduction of the word "payable" in the definition of "costs" in Civil Procedure Act, s 3 could "at some stage require reconsideration of the application of Chorley in civil proceedings in this State". In Wilkie v Brown [2016] NSWCA 128 at [43], Beazley P (McColl and Gleeson JJA agreeing) remarked on the materially identical definition of "legal costs" in Legal Profession Uniform Law, s 6(1): "At least on a preliminary view, the language does not appear to be apt to extend to the professional costs of a solicitor acting in person". Her Honour at [29] contrasted this source of power with that in the Judiciary Act, which did not expressly define "costs". And, in Bechara v Bates [2016] NSWCA 294 at [64], the Court (Beazley P, Payne JA and I) described the current language in both statutes as "arguably inconsistent with the judicial rationale for Chorley prior to 2005". In none of those cases was it necessary to determine finally the issue identified in Wang.
That issue was treated as squarely arising in Coshott v Spencer [2017] NSWCA 118. The first respondent in that case obtained a costs order against the applicant in a proceeding where the former was represented by an incorporated legal practice of which he was the principal. In an assessment of those costs, the applicant objected on the basis that the first respondent was a litigant in person whose work was not recoverable as "costs" within Civil Procedure Act, ss 3(1), 98(1). Beazley ACJ (McColl and Simpson JJA relevantly agreeing) observed (at [78] and [106]) that High Court Rules, O 71, r 19 included the word "payable", "governed costs in the High Court" at the time of Guss, and "did not affect the application of the Chorley exception"; inferred (at [106]) that the majority in Guss "had the express terms of [that] rule in mind"; and concluded (at [107]) that "this Court is bound by the decision in Guss" to hold "that s 98, by reference to the definition of "costs" in s 3 does not, by its express terms, render the Chorley exception inapplicable".
The respondent accepts the correctness of that conclusion for the purpose of this application whilst maintaining that the Chorley exception does not extend to barristers. Following the grant of special leave to appeal in Coshott (see [2017] HCATrans 263), which was after the hearing in this application, the parties were advised that it would be preferable not to deliver judgment until the High Court had determined the appeal. However, special leave in Coshott was revoked: [2018] HCATrans 81. In its reasons for doing so, the Full Court found that the matter was not an appropriate vehicle to reconsider the Chorley exception because this Court had not dealt with the threshold question "about whether the [applicant below] was in fact acting for himself", as opposed to being represented by the incorporated legal practice. The parties to this application were not invited to give further submissions after that revocation of special leave.
In the circumstances, the only course available is to proceed on the basis that the reasoning and conclusion in Coshott are correct. Thus, what follows assumes that Guss established that a costs power limited to costs that are "payable" authorises awards to solicitors appearing in person in respect of amounts that are not "payable" to anyone. It does not assume, however, that Guss resolved the difficulties inherent in that construction of such a power. Those difficulties must be confronted directly in determining whether the Chorley exception, as it operates under Civil Procedure Act, s 98, should be extended to barristers.

[21]

The barristers' extension

The extension of the Chorley exception to barristers is not supported in terms by either Guss or Coshott, both of which referred exclusively to solicitors appearing in person. Accordingly, the question before this Court was argued, and must be decided, at the level of principle. The primary focus of argument was whether any remaining distinction between solicitors and barristers in New South Wales could rationally be material to the awarding of costs to them as litigants in person. In my view, that was a false issue. I am prepared to assume, as the President accepts (at [91]-[95] above), that statutory reform permitting barristers to sue for fees and subjecting those fees to assessment has removed any such distinction. It does not follow, however, that the Chorley exception should be extended to barristers.
That exception was described by the majority in Cachia (Mason CJ, Brennan, Deane, Dawson and McHugh JJ) as "somewhat anomalous" (at 411) and "limited and questionable" (at 413). Their Honours (at 413-414) differentiated it from "the basis upon which costs are ordinarily awarded, namely as an indemnity for legal costs actually incurred". And they observed (at 409) that the "costs" for which Supreme Court Rules 1970 (NSW), r 23(2) provided "are confined to money paid or liabilities incurred for professional legal services". Those points apply a fortiori where the relevant source of power is in terms limited to costs that are "payable". The application of the Chorley exception with respect to solicitors under s 98 does not rest on any recognised principle or policy.
More significantly, the applicant's argument in this application resembles the primary submission for the appellant in Cachia, who sought unsuccessfully to recover the value of his work as a lay litigant in person. As recorded in the Commonwealth Law Reports (at 405), that submission drew an inference from the absence of any "reason for distinguishing between a layman and a solicitor who acts for himself" to support the conclusion that the value of a layman's time should also be recoverable as "costs". In rejecting that submission, the majority explained (at 414): … It is, we think, not possible to reason by way of the exception that litigants in person are treated unequally and then to conclude that the very basis upon which costs are ordinarily awarded should be abandoned so that the exception becomes the rule. Not only is it false reasoning, but it is not a course which is available having regard, not only to the quite clear case law upon the subject, but also, more importantly, to the plain import of the Rules which govern the jurisdiction of the Court to make an order for costs and any subsequent taxation of costs.
The applicant's argument adopts a milder form of that "false reasoning". It merely substitutes a barrister providing services to herself for the lay litigant doing the same. It does not identify any substantial reason to trench further upon the plain language of legislation conferring power to order costs, which itself reflects the general conception of costs in Anglo-Australian law as "awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation": Cachia at 410 (emphasis added); cf Atlas v Kalyk at [9]. If the Chorley exception is to survive and to inform the construction of the power to award costs, it can only do so as an "undesirable anomaly" that "should not be permitted in any class of case where its use [is] not covered by authority": Cassell & Co Ltd v Broome [1972] AC 1027 at 1087 (Lord Reid), quoted in CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [35] (Gleeson CJ, Gummow and Heydon JJ).
For these reasons, I would dismiss Ms Pentelow's application with costs.

Parties

Applicant/Plaintiff:

Pentelow

Respondent/Defendant:

Bell Lawyers Pty Ltd

Legislation Cited (15)

Legal Profession Act 1987(NSW)

Legal Profession Act 2004(NSW)

Legal Profession Reform Act 1993(NSW)

Legal Profession Regulation 2005(NSW)

Legal Profession Uniform Law Application Regulation 2015(NSW)

August 2011) Supreme Court Act 1970(NSW)

Family Provision Act 1982(NSW)

Civil Procedure Act 2005(NSW)

Legal Profession Uniform Law Application Act 2014(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Supreme Court Act 1970(NSW)

Supreme Court Act 1935(WA)

Judiciary Act 1903(Cth)

High Court Rules 1952(Cth)

Supreme Court Rules 1970(NSW)

Cases Cited (62)

Jones [2006] NSWCA 85 Knight v FP Special Assets Ltd (1992) 174 CLR 178 London Scottish Benefit Society v Chorley (1884) 12 QBD 452 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 Malkinson v Trim [2003] 2 All ER 356 Marshall v Director-General, Department of Transport (2001) 205 CLR 603 Martin v Armstrong (1916) 33 WN (NSW) 50 Maurici v Chief Commissioner of State Revenue (2003) 212 CLR 111; [2003] HCA 8 McIlraith v Ilkin [2007] NSWSC 1052 Minister Administering the Crown Lands Act v La Perouse Local Aboriginal Land Council (2012) 193 LGERA 276; [2012] NSWCA 359 Minister for Resources v Dover Fisheries (1993) 43 FCR 565 Murphy v Legal Services Commissioner (No 2) [2013] QSC 253 Nelson v Nelson (1995) 184 CLR 538 NSW Aboriginal Land Council v Minister Administering the Crown Lands Act (2007) 157 LGERA 18; [2007] NSWCA 281 Ogier v Norton (1904) 29 VLR 536 Pentelow v Bell Lawyers Pty Ltd (No 2) [2013] NSWSC 288 Pentelow v Bell Lawyers Pty Ltd [2013] NSWSC 111 R v Boswell [1987] 2 All ER 513 R (Bar Standards Board) v Disciplinary Tribunal of the Council of the Inns of Court [2016] 1 WLR 4506 Soia v Bennett (2014) 46 WAR 301; [2014] WASCA 27 Soia v Bennett [2014] HCASL 248 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 258 Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Wilkie v Brown [2016] NSWCA 128 Winn v Garland Hawthorn Brahe [2007] VSC 360 Wright v Trenchard (1895) 1 ALR 22 Texts Cited: Sir Edward Coke, Institutes of the Lawes of England, (1st ed, 1642) Category: Principal judgment Parties: Janet Pentelow (Applicant) Bell Lawyers Pty Ltd (Respondent) Representation: Counsel: In person (Applicant) M Castle (Respondent)

Solicitors: In person (Applicant) Bell Lawyers (Respondent) File Number(s): 2016/345890 Decision under appeal Court or tribunal: District Court Citation: Pentelow v Bell Lawyers Pty Ltd [2016] NSWDC 186 Date of Decision: 25 August 2016 Before: Gibson DCJ File Number(s): 2015/355803

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