Re Jenkins[2022] QCA 154

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  In March 2021, Ms Jenkins applied for admission to the legal profession.  Mr Worcester objected to her admission.  The Court of Appeal ordered that the contested issues of fact be heard and determined in the Trial Division.  That hearing took place before Dalton J, and her Honour’s reasons were published on 22 April 2022.^[1]  Mr Worcester had been given leave to appear as an objector on his own behalf.^[2]  The Board also took an active role in the hearing before Dalton J, pursuing objections of its own.
2. [2]
   Following delivery of Dalton J’s reasons, Ms Jenkins decided not to pursue her application for admission.  Ms Jenkins reached agreement with the Board in relation to its costs of the proceeding; but no agreement was reached with Mr Worcester, who indicated that he sought to recover his outlays from Ms Jenkins.  On 7 June 2022, the Court of Appeal, as presently constituted, made the following orders:

2. 1.The application for admission of [Ms Jenkins] (‘the Applicant’) to the legal profession (BS 2896/22) is dismissed.

2. 2.As between the Applicant and the Legal Practitioners Admissions Board (‘the Board’), the Applicant pay the Board’s costs of the application in the fixed amount of $20,000 upon such terms and conditions as are contained in the Deed of Settlement made between the Applicant and the Board.

2. 3.Reserve the question of outlays as between the Applicant and the Objector.

3. [3]
   Directions were also made on that day for the filing of material and submissions.
4. [4]
   Mr Worcester seeks to recover from Ms Jenkins the sum of $8,558.11 as outlays he says he has incurred, comprised of:

   1. (a)
      $1,654.49 (the cost of the transcript for the hearing on 2 November 2021);
   2. (b)
      $1,708.36 (the cost of the transcript for the hearing on 4 November 2021);
   3. (c)
      $1,322.26 (the cost of the transcript for the hearing on 17 February 2022);
   4. (d)
      fees for professional services said to have been provided to Mr Worcester by a Mr Robert Butler, of Donnelly Law Group;

      1. by reference to an invoice issued on 28 October 2021 (for reviewing material and conferences) – $660.00;
      2. by reference to an invoice issued on 22 May 2022 (for reviewing transcripts and affidavits, conferencing, drafting outline of submissions and attending Supreme Court to take the decision) – $2,750.00;
   5. (e)
      $160.00 (for a courier, on 25 May 2021);
   6. (f)
      $160.00 (for a courier, on 24 May 2021); and
   7. (g)
      $143.00 (comprising a Supreme Court filing fee of $60.00 incurred on 24 May 2021 plus an “urgency fee” and “administration fee” charged by GlobalX).
5. [5]
   Mr Worcester’s evidence is that these amounts were paid by “entities controlled by” him, Worcester & Co and Worcester Pty Ltd.  I will proceed on the basis that the amounts were paid by these entities on behalf of Mr Worcester, such that the outlays can be said to have in fact been paid by the person seeking to recover them.^[3]
6. [6]
   As explained by Dalton J in Re Legal Practitioners Admissions Board and Jenkins [2021] QSC 246, an objector such as Mr Worcester is not a participant in the proceeding by which an applicant seeks to be admitted to the legal profession unless and until the Court of Appeal gives them leave to do so.
7. [7]
   However, having been given leave to appear as an objector, a person in Mr Worcester’s position does become a participant in the proceeding.  I deliberately use the word participant, rather than “party” because, in my view, an objector is not a “party” to the proceeding which is an application for admission to the legal profession.  Mr Worcester does not contend otherwise.
8. [8]
   Section 15 of the Civil Proceedings Act 2011 (Qld) empowers the court to award costs in all proceedings unless otherwise provided.  That power is certainly broad enough to permit an order for costs to be made against a non-party to a proceeding.^[4]  A question arises, though, as to whether the section empowers the court to award costs in favour of a non-party, such as an objector.
9. [9]
   In my view, the discretion conferred by s 15 of the Civil Proceedings Act is sufficiently wide to contemplate this;^[5] and there is no provision that provides otherwise.  It is unnecessary to address this issue further, however, because the applicant does not contend otherwise; instead submitting that “there is no doubt” it is within the power of the court to make an order for costs in favour of the objector.  This appears to have been Dawson J’s view, in Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 203, where his Honour observed that the “circumstances in which it would be appropriate to award costs to a non-party would necessarily be confined, but that is a question of discretion, not jurisdiction”.^[6]  However, adopting the language used by Mason CJ and Deane J in the same case (at 193), as the applicant submits, the discretion (to award costs in favour of a non-party) should be exercised only if the interests of justice require that it be made.
10. [10]
    Mr Worcester was, at the earliest, granted leave to appear as an objector by the Court of Appeal’s order made on 7 June 2021.^[7]  Accordingly, in my view, costs which Mr Worcester incurred prior to that date (those referred to in subparagraphs (e), (f) and (g) above) are not recoverable as outlays.
11. [11]
    Mr Worcester cannot recover the fees for professional services he says were paid to Donnelly Law Group.  He did not retain a solicitor to act on his behalf in the conduct of his objection – he represented himself.  Mr Worcester is a solicitor, as he says “of nearly 40 years’ practice”.  He cannot recover costs reflecting the value of his own work as a participant in the proceeding (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333).^[8]  That he – an experienced solicitor – has chosen to seek assistance from another solicitor in relation to his objection is a matter for him, but I do not regard it as in the interests of justice to make an order that the applicant compensate him for these expenses.
12. [12]
    That leaves the costs of the transcript sought to be recovered.  The hearing before Dalton J took place over three days, on 2 and 4 November 2021 and then 17 February 2022.  The submissions prepared by Mr Worcester, and filed on 1 March 2022, are comprehensive, including references to the transcript, which would have been of assistance to the trial judge in a matter such as this, which involved many factual findings.  Where there is substantial oral evidence, as there clearly was in this case, the transcript is necessary in order to prepare submissions which are of assistance to the Court.  In my view, it is in the interests of justice that an order be made requiring the applicant to pay the objector’s costs, being the outlays incurred by him in obtaining the transcript of the three days of hearing, on 2 and 4 November 2021 and 17 February 2022.
13. [13]
    As the invoices are included within the material before the court, those costs can be fixed.
14. [14]
    I would therefore order that the applicant pay the objector’s costs, being his outlays, fixed in the amount of $4,685.11.

15. [15]
    MULLINS P:  I agree with the Chief Justice.
16. [16]
    FLANAGAN J:  I agree with the Chief Justice.