Rogers v Roche & Ors

This recent Court of Appeal decision considered the exception to the rule that a litigant in person is not entitled to recover his own costs for the time occupied in litigation, where the litigation in person is himself or herself a solicitor, as determined in the case of London Scottish Benefit Society v Chorley, Crawford and Chester, and upheld by the High Court in respect of s 26 of the Judiciary Act 1903 (Cth) in Guss v Veenhuizen (No 2). Fraser JA delivered the leading judgment, and held that s 15 of the Civil Proceedings Act 2011, together with the relevant provisions of the UCPR, did not justify a conclusion that the regulatory scheme in Queensland is materially different in effect from the legislative provision considered in Guss v Veenhuizen (No 2). Accordingly, he followed that decision and allowed part of the appellant solicitor’s costs of the appeal on the standard basis.

Fraser and Gotterson JJA and Burns J

23 June 2017

This matter raised the issue whether an Australian lawyer, entitled to practice in the Supreme Court of Queensland, could recover professional costs under a costs order made by a court pursuant to s 15 of the Civil Proceedings Act 2011. [1].

The appellant, a South Australian solicitor, was injured in an accident at a resort in Queensland. [2]. He retained the respondents as solicitors to recover compensation from the resort. [2]. Unsatisfied with the amount ultimately awarded at trial, the appellant commenced proceedings against the respondents, alleging negligence, breach of retainer, and various breaches of fiduciary duty. [2].

The respondents applied to strike out the appellant’s claim and pleading on the grounds that (i) his claims were not maintainable by reason of advocates’ immunity, and (ii) they involved an abuse of process. [3]. The primary judge acceded to that application, and struck out the majority of the appellant’s claim. [3]-[4]. The appellant successfully appealed to the Court of Appeal. [5]. The court held that no part of the appellant’s claim was an abuse of process, and that advocates’ immunity precluded only so much of the appellant’s claim as relied upon allegations of wrongful conduct during the litigation stage. The Court set aside various orders of the primary judge. [5].

On the issue of costs, the appellant argued that he was entitled to costs orders that reflected his substantial success. [7]. The Court noted that the “overall result was very much more favourable to the appellant than it was to the respondents”. [8]. Taking a “broad approach” the Court held that if the appellant were entitled to recover costs for his time, then the appropriate order would be that the respondents pay 60 per cent of the appellant’s costs in the Trial Division and in the appeal. [10].

The appellant argued that he was “entitled to recover costs for the time occupied in the litigation” under the Chorley exception: London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872. [12]. As Fraser JA (with whom Gotterson JA and Burns J agreed) explained:

“The rule of practice stated in Chorley is that a litigant who appears in person is entitled to recover the legal costs of the suit paid by the litigant but is not entitled to any payment for his or her time occupied in the litigation, except that a solicitor who acts for himself or herself in litigation is entitled to the same costs as if the litigant had employed a solicitor.” [13].

His Honour noted that the Chorley exception had been accepted by the High Court in Guss v Veenhuizen (No 2) (1976) 136 CLR 47, and he also referred to authorities which had held that, absent a statutory provision that was materially different from the provision considered in the High Court decision (Judiciary Act 1903 (Cth), s 26), Guss v Veenhuizen (No 2) should be followed. [14]. His Honour stated that “[t]his Court should adopt the same view”. [14].

The respondents argued that the “Chorley exception [was] inconsistent with provisions in the UCPR and the Legal Profession Act 2007”. [15]. Fraser JA observed that the power of courts in Queensland to order costs is conferred by s 15 of the Civil Proceedings Act 2011 which provides that “a court may award costs in all proceedings unless otherwise provided”. [18]. His Honour noted that s 15 “does not differ from s 26 of the Judiciary Act in a way which is material for the application of the High Court’s decision in Guss v Veenhuizen (No 2)”. [18]. Accordingly, his Honour said, the appellant was entitled to succeed unless it was “otherwise provided”. [18].

His Honour considered the various provisions relied upon by the respondents (at [19]-[27]), but ultimately found that the statutory provisions and rules relied upon did not “justify a conclusion that the regulatory scheme in Queensland is materially different in effect from the legislative provision considered in Guss v Veenhuizen (No 2)”. [28]. His Honour therefore concluded:

“Unless and until the High Court decides to the contrary or the regulatory scheme is reformed in a material way, where a costs order is made by a court under s 15 of the Civil Proceedings Act 2011 against a party to a proceeding in favour of another party who is an Australian lawyer entitled to practice in the court, the lawyer is entitled to recover costs described in applicable items in the relevant scale of costs.” [31].

The Court ordered that the respondents pay 60 per cent of the appellant’s costs on the standard basis. [33].

J English