In the first instance, the respondent sued the appellant for the balance of her fees in the Local Court of New South Wales but was unsuccessful. She then appealed to the Supreme Court of New South Wales where the appellant was ordered to pay the respondent the balance of the respondent's fees, as well as her costs for both the Local Court and Supreme Court proceedings.
Pursuant to the costs orders, the responded forwarded a memorandum of costs to the appellant, which included costs incurred on her own behalf. The appellant refused to pay the costs claimed for work undertaken by the respondent herself and made an application for assessment of costs. The costs assessor decided in favour of the appellant and rejected the respondent's claim for the costs of work she had performed herself on the ground that in New South Wales the Chorley exception does not apply to barristers. The respondent was unsuccessful in both her appeal to the Review Panel, and then to the District Court of New South Wales.
The respondent sought judicial review of the District Court decision in the Court of Appeal. The Court of Appeal held that the respondent, as a barrister, was entitled to rely on the Chorley exception as her costs were quantifiable by the same processes as solicitors.
The appellant appealed the decision of the Court of Appeal to the High Court of Australia.
The two principal issues determined by the Court was whether the Chorley exception applies to barristers who represent themselves in legal proceedings and, more broadly, whether it should be recognised as part of the common law of Australia.
However, as the Court in these proceedings highlighted, there is still a question whether this view would also apply to solicitors employed by an incorporated legal practice of which he or she is its sole director and shareholder. As the Court noted, the resolution of this question may require close consideration of the legislation which provides for incorporation of solicitors' practices and the intersection of that legislation with the provisions of the Civil Procedure Act in light of the general rule. Ultimately, the Court held that this is a matter for the legislature.
Solicitors and barristers should now think twice about representing themselves in litigation. While solicitors may have in the past chosen to self-represent to save costs, this will not necessarily be the cost-effective option as they will no longer be recompensed for their time and effort by way of costs orders. Besides, as the Court highlighted, it is often undesirable of legal practitioners acting for themselves in legal proceedings. This is because a self-representing solicitor, lacking impartial and independent advice, may also lack objectivity due to self-interest.
It will be interesting to see if the legislature would follow the course which has been taken in England and abolish the general rule to allow self-represented litigants, whether legal practitioners or not, to recover costs for their time and effort in litigation. Any such change, in my view, is unlikely in the near future.
McCabe Curwood's litigation and dispute resolution team is experienced in advising on and acting in all aspects of litigation, and regularly represents members of legal and other profession in disputes in different Courts. Do not hesitate to contact us if you require any assistance.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice that is specific to your particular circumstances.