Queensland Law Society

Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150

Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150

Catchwords

Costs – whether the Chorley exception applies to barristers – whether the applicant, a barrister litigant, was self-represented – whether Chorley exception applies to the applicant.

Executive summary

Ms Pentelow (‘the applicant’), a barrister, brought proceedings against Bell Lawyers (‘the respondent’) for recovery of costs associated with her partial self-representation under the Chorley exception.[1] The costs were disallowed by a costs assessor and a Review Panel on the grounds that the applicant was not self-represented and that the Chorley exception does not apply to barristers. Upon the District Court dismissing an appeal by the applicant, the applicant applied to the Supreme Court of New South Wales for judicial review of the District Court decision.

The majority found that the Chorley exception should not be rejected on the basis that the applicant was a self-represented barrister, that the question of whether the applicant is a self-represented litigant is a question of fact not amenable to judicial review, and the applicant was entitled, as a matter of principle, to recover legal costs for work she undertook herself.

Subsequently, the Court allowed the summons for judicial review and ordered that the orders of the District Court be set aside and remitted to the District Court for determination in accordance with law.

Background

The applicant, a barrister, was retained by the respondent to act for their client in proceedings. Subsequent to that representation, the applicant brought proceedings against the respondent for recovery of her fees in both the Local and Supreme Court.

The applicant claimed costs for legal work she had personally undertaken in the Local Court and Supreme Court proceedings pursuant to the Chorley exception.

The costs were disallowed by a costs assessor and, subsequently, a Review Panel on two bases: first, the applicant was not a self-represented litigant as she was represented by solicitors and senior counsel in the Land Court and Supreme Court proceedings; and second, the Chorley exception did not apply to barristers.

The applicant appealed to the District Court, but was unsuccessful on the same basis.

Subsequently, the applicant applied for judicial review of the District Court decision to the Supreme Court of New South Wales.

Issues

The principal issues were:

  1. Whether the Chorley exception applies to barristers;
  2. Whether the applicant was a self-represented litigant; and
  3. Whether the Chorley exception applied to the applicant in circumstances where she engaged legal representatives but also undertook legal work herself.

Issues considered

With respect to the first issue, the majority (Beazley ACJ with Macfarlane JA agreeing) held that although solicitors and barrister are registered on different rolls and their conduct is governed by the rules of different associations, this does not provide a principle basis upon which to reject the application of the Chorley exception to legal work undertaken by a self-represented litigant who is a barrister. Having regard to the rationale for the exception, this is particularly so as it is not based on the type of work undertaken by solicitors, rather, it is based on the fact that the work undertaken can be quantified.[2] Consequently, the majority found that the primary judged erred in dismissing the appeal.[3]

In contrast, Meagher JA dissented, finding that, having regard to the scope of s 98 of the Civil Procedure Act 2005 (NSW) and the statutory source of the power to award costs, to extend the Chorley exception to barristers would trench further upon the plain language of the Civil Procedure Act, which reflects the general conception of costs as being awarded by way of indemnity for legal costs actually incurred.[4]

With respect to the second issue, the majority held that the question whether the applicant was a self-represented litigant is a question of fact and is therefore not amenable to judicial review.[5]

With respect to the third issue, the majority held that this issue raised a question of mixed fact and law and was therefore amenable to judicial review.[6] Subsequently, the majority concluded that although the applicant engaged legal representation, she was entitled, as a matter of principle, to recover costs for legal work she undertook herself.[7] However, whether she was entitled to recover her costs as claimed is a matter for costs assessment.[8]

Accordingly, the Court ordered that the summons for judicial review be allowed in part, the orders of the District Court be set aside, and the matter be remitted to the District Court for determination in accordance with law.[9]

The respondent has since been granted special leave to appeal the matter to the High Court of Australia.[10]

 

Liam O'Shaughnessy

Ethics Clerk

As approved by Grace van Baarle, Manager, Ethics Solicitor, QLS Ethics and Practice Centre



[1] See London Scottish Benefit Society v Chorley (1884) 13 QBD 872.

[2] Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150, [90], [97], [115].

[3] Ibid [115].

[4] Ibid [138]-[142].

[5] Ibid [15], [82].

[6] Ibid [113]-[115].

[7] Ibid [96]-[98], [111]-[112].

[8] Ibid [87].

[9] Ibid [120].

[10] Transcript of Proceedings, BELL Lawyers Pty Ltd v Pentelow [2018] HCATrans 264.