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[2025] QSC 23
A company claimed the costs of its barrister’s fees pursuant to a costs order but a costs assessor disallowed these costs. The company then applied to overturn that costs assessment in the present proceedings, however, the company failed to comply with the procedural requirements for making that application. Freeburn J held that the application should be dismissed on that basis. However, his Honour went further and held that the costs were not “necessary and proper” in circumstances where the company’s barrister had breached the professional rules requiring independence as he was also the sole director and shareholder of that company. Accordingly, the application was dismissed.
Freeburn J
14 February 2025
Following the dismissal of an appeal by Brisbane Angels Nominees Pty Ltd (“Brisbane Angels”), the Court of Appeal ordered that Brisbane Angels pay the costs of Stockingham Pty Ltd (“Stockingham”). Stockingham claimed the costs of counsel’s fees, but these costs were disallowed by a costs assessor. The present proceedings concerned a review of that costs assessment, as Stockingham had applied for orders that the court allow the fees to be claimed. [1]–[3], [5], [8].
After setting out the relevant principles governing an application to review the decision of a costs assessor, Freeburn J recognised that Australian lawyers are entitled to charge and be allowed the costs under the scales of court costs, but the scales of the Supreme Court and District Court do not specifically provide for the fees of a barrister. In those circumstances, the relevant issue was whether the barrister’s fees were “necessary and proper”. [12].
Brisbane Angels argued that Stockingham’s application should be dismissed because it failed to comply with r 742 Uniform Civil Procedure Rules 1999 (“UCPR”), namely because Stockingham did not state specific and concise grounds for objecting to the costs assessment certificate, and because that certificate did not have attached to it a copy of any written reasons for the decision given by the costs assessor. Freeburn J accepted that failing to comply with these requirements was an irregularity and in circumstances where Stockingham did not seek to explain its non-compliance or seek an order to cure the non-compliance, his Honour held that Stockingham’s application should be dismissed for breaching the UCPR. [14]–[15], [22]–[24].
Brisbane Angels also argued that the barrister’s fees were not “necessary and proper”. While rejecting Brisbane Angels’ argument insofar as it relied on the concept of “necessary”, Freeburn J considered that the fees were not “proper”. That was because the barrister in question was retained by Stockingham and yet held 95 per cent of the shares in Stockingham and was its sole director, such that he had a material financial interest in the outcome of the case and should have refused to accept the brief for Stockingham pursuant to r 95(g) Barristers’ Conduct Rules. Freeburn J referred to r 95 as being designed to ensure that barristers are independent, and r 25 as providing that barristers have an overriding duty to the Court and to the administration of justice. [25], [28]–[31], [33].
In the present circumstances, Freeburn J framed the issue as the Court “being asked to exercise its discretion to permit a barrister to recover his professional fees in circumstances where he has acted contrary to the rule requiring independence”. Freeburn J held that because the Court has a legitimate interest in ensuring that barristers appearing in court are independent, the application to interfere with the costs assessment ought to be dismissed. [36], [39].
A Lukacs