Sims v Chong

Consideration 4 The Court's discretion to grant a costs certificate under s 6(1) of the Act may be exercised, pursuant to s 6(3), if, "in the opinion of the court, it would be appropriate for the Attorney-General to authorize a payment under this Act to the respondent" in respect of her costs incurred in relation to the appeal. 5 Mr Sims represented himself in the proceedings before the primary judge but he had the benefit of pro bono senior and junior counsel in the appeal. The fact that Ms Chong paid for the preparation of the application books does not affect matters, since, as events turned out, she would have had to pay Mr Sims' costs of doing so had he undertaken that role. 6 In our earlier reasons, we held that the primary judge ought not to have exercised the power to order summary dismissal of Mr Sims' proceedings. That was essentially because, in the circumstances, it was not sufficiently clear, in accordance with settled authority on each of the three bases argued, that they ought be determined without a trial of the issues: Sims 230 FCR at 362 [76]-[77], 363-364 [85]-[87], 364-365 [91]-[92], [95]-[96]. We also noted that the statement of claim clearly required amendment and the primary judge had to face difficulties in addressing and identifying Mr Sims' arguments (at 365-366 [97]). 7 There is no presumption in favour of the grant of a costs certificate under s 6(1) of the Act: Bullock v The Federated Furnishing Trades Society of Australasia (No 2) (1985) 5 FCR 476 at 477 per Smithers, Sweeney and Woodward JJ; Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research (No 2) [2013] FCAFC 73 at [16] per North, Rares and Robertson JJ. 8 Here, Ms Chong chose to apply to his Honour for the summary dismissal of Mr Sims' claim, and she defended that course and his Honour's reasons for acceding to it in the proceedings before us. Each of those forensic positions was one that Ms Chong chose to take. Each involved the risk that she would be unsuccessful and be ordered to pay Mr Sims' costs: cf Gurnett v The Macquarie Stevedoring Co Pty Ltd [No 2] (1956) 95 CLR 106 at 112-114 per Dixon CJ; Bullock 5 FCR at 478-479. Ms Chong's decisions to seek and then defend the summary dismissal of Mr Sims' claim caused her to incur the costs for which she now seeks the grant of a certificate under s 6(1) of the Act. 9 In our opinion, there is nothing in the circumstances that suggests that it would be appropriate for the Attorney-General to authorise payment of the costs that Ms Chong has had to pay under the costs order made on 12 August 2015. That order was a consequence of her forensic decisions in the proceedings before the primary judge and us. Indeed, as we observed in our earlier reasons (230 FCR at 365 [95]) it was not clear that the reach of advocate's immunity extended to circumstances, such as those Mr Sims alleged, namely, that Ms Chong had made a misrepresentation to him, before her retainer, as to her skill and competence to undertake the retainer. It was not appropriate to summarily dismiss, among others, that issue as Ms Chong had sought.