COSTS – solicitor acting in person/ gross sum costs order

COSTS – solicitor acting in person – whether exception to general rule that litigant in person not entitled to costs for time spent in preparation of case

COSTS – gross sum costs order – whether order appropriate – whether quantum reasonable

Wilkie v Brown [2016] NSWCA 128 (26 May 2016)

In this matter, the applicant sought judicial review of a costs assessment in relation to legal services provided by the respondent, her former solicitor. The applicant indicated she intended to withdraw her application the day before the hearing of her summons. The respondent, who was self-represented, appeared on the hearing and filed a notice of motion seeking his costs by way of a lump sum in the amount of $5,161.20.

The general rule is that a litigant in person who is successful is entitled to recover disbursements but is not entitled to claim costs for time spent in the conduct of the litigation: Cachia v Hanes [1994] HCA 14. The issue to be determined was whether the principle from London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 (Chorley), that a solicitor acting in person may recover professional costs, applied to proceedings in this Court.

The respondent filed written submissions but no submissions were filed by the appellant.

Beazley P, with whom McColl and Gleeson JJA agreed, noted that there was binding High Court authority that costs may be awarded to solicitors appearing for themselves: Guss v Veenhuizen (No 2) [1976] HCA 57. 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 as it was stated that Guss v Veenhuizen was not binding. The Court considered various other cases where the Chorley case had been applied or not.

The principles in relation to the Court’s power to award costs were noted and the wording of the sections was analysed: s 98(1) and s 3(1) of the Civil Procedure Act 2005 (NSW). In particular, the introduction of the word payable in the definition of costs. The respondent suggested an interpretation that the definition extend to any costs ‘payable’ pursuant to costs orders made in proceedings, so if a costs order was made which included his own costs in acting for himself, those costs would be ‘payable’ to him. The principles of statutory construction were noted.

Taking into account the analysis of cases and statutory interpretation, it was found that it was not appropriate to finally determine the questions of principle raised but the applicant may be taken to have conceded that the respondent was entitled to his professional costs.

In relation to whether a gross sum costs order was appropriate, the court’s discretion is contained in s 98(4) of the Civil Procedure Act. The principles relevant to the exercise of the discretion are detailed in Hamod v State of New South Wales and Anor [2011] NSWCA 375. Taking into account the lengthy history and the applicant’s conduct, the Court was satisfied that a gross sum costs order was appropriate and the sum claimed was reasonable.