Birketu v Castagnet [2022] NSWSC 1435

Supreme Court New South Wales

Medium Neutral Citation: Birketu v Castagnet [2022] NSWSC 1435 Hearing dates: 26 September 2022 Date of orders: 26 October 2022 Decision date: 26 October 2022 Jurisdiction: Common Law Before: Brereton JA Decision: (1) Declare that under the costs order made in proceedings 2018/164411 on 19 June 2020 being the subject of the cost assessment proceeding 2022/029349 before the first defendant, the second defendants are not entitled to recover costs for work done by the employed solicitors of their own firm. (2) Otherwise dismiss the summons. (3) Order that the second defendants pay one half of the plaintiff's costs of the proceedings in this Court, subject to order (4) below. (4) Without confining the jurisdiction or the discretion of the relevant assessor in any other way, direct that in the assessment of the costs recoverable by the plaintiffs under order (3) above, the costs of exhibiting and reproducing the documents that comprise tabs 1 through to and inclusive of tab 6 of exhibit CAP1 referred to in the affidavit of Craig Anthony Powell of 29 July 2022, be disallowed. Catchwords: COSTS – General rule that self-represented litigant cannot recover costs of its own time – Chorley exception for self-represented litigants who are themselves lawyers – Abrogation of Chorley in Bell Lawyers v Pentelow – Whether abrogation extends to bar recovery of costs of employed solicitors of a litigant law firm acting for itself – Historical right of litigant law firm to recover costs of its employed solicitors derives from Chorley exception, and not "employed solicitor exemption" which permits recovery of costs of "in-house" solicitors – Held that abrogation of Chorley exception in Bell Lawyers extends to preclude recovery of costs of employed solicitors of litigant law firm acting for itself ADMINISTRATIVE LAW – Remedies – Certiorari – Reviewability of decision – Indication in correspondence by costs assessor that it will consider an element of a claim in the course of assessment, rather than as a preliminary point, has no a discernible effect on legal rights – Decision not amenable to certiorari – Whether reviewable error of law – Mere indication of intention to embark on process is not itself a jurisdictional error ADMINISTRATIVE LAW — Remedies — Equitable remedies — Declaratory relief – Substantive question of principle – Application of law to circumstances relevant to pending costs assessment – Resolution of question would simplify costs assessment – Binding decision made by Court on preliminary point in costs assessment Legislation Cited: Legal Profession Uniform Law Application Act 2014 (NSW) s 83, s 89, s 93C Supreme Court Act 1970 (NSW), s 69(3) Cases Cited: Atanaksovic v Birketu [2020] NSWSC 573 Atanaskovic Hartnell v Birketu (2021) 105 NSWLR 542; [2021] NSWCA 201 Atanaskovic v Birketu [2019] NSWSC 1006 Atanaskovic v Birketu [2020] NSWSC 779 Attorney General v Shillibeer (1849) 4 Exch 606; (1849) 154 ER 1356 Bank of Western Australia Ltd v O'Neill (Supreme Court of Western Australia, White J, 22 January 1999, unreported). Bell Lawyers v Pentelow (2019) 269 CLR 333; [2019] HCA 29 Blackall v Trotter (No 1) [1969] VR 939 Burrows v MacPherson & Kelley Lawyers (Sydney) [2021] NSWCA 148 Cachia v Hanes (1994) 179 CLR 403 Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595 Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333; [2001] NSWSC 60 Environment Protection Authority v Taylor Woodrow (Australia) Pty Ltd (No 2) (1997) 97 LGERA 368 Frieda and Geoffrey, Re [2009] NSWSC 133 Galloway v Corporation of London (1867) LR 4 Eq 90 Henderson Borough Council v Auckland Regional Authority [1984] 1 NZLR 16 Henderson v Merthyr Tydfil Urban District Council [1900] 1 QB 434 Hot Holdings Pty Limited v Creasey (1996) 185 CLR 149; [1996] HCA 44 Irving v Gagliardi; Ex parte Gagliardi (No 2) (1895) 6 QLJ 200 Johnson v Santa Teresa Housing Association (1992) 83 NTR 14; (1992) 107 FLR 441 Lenthall v Hillson [1933] SASR 31 London Scottish Benefit Society v Chorley (1884) 13 QBD 872 McCullum v Ifield (1969) 90 WN (NSW) Pt 1 525; [1969] 2 NSWR 329 Nolan v George [1959] Qd R 315 Pennington v Russell (No 2) (1883) 4 LR (NSW) Eq 41 R v Collins; ex parte ACTU-Solo Enterprises Pty Ltd (1976) 8 ALR 691 Raymond v Lakeman (1865) 34 Beav 584; (1865) 55 ER 761 Ritson v Leighton [2015] NSWCA 62 Spencer v Coshott (2021) 106 NSWLR 84; [2021] NSWCA 235 United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15 WA Grubb Pty Ltd, Ex parte; Re Johnston (1949) 66 WN (NSW) 224 Walton v McBride (1995) 36 NSWLR 440 Texts Cited: JW Shaw QC & FJ Gwynne, "Certiorari and Error on the Face of the Record" (1997) 71 ALJ 356 Report of the Chief Justice's Review of the Costs Assessment Scheme (2013) Category: Principal judgment Parties: Birketu Pty Ltd (first plaintiff) WIN Corp Pty Ltd (second plaintiff) Maurice Jocelyn Castagnet (first defendant) John Ljubomir Atanaskovic, Anthony Geoffrey Hartnell, Jeremy Martin Kriewaldt, Michael John Sophocles, Jon Thomas Skene & Lawson Andrew Jepps, trading as Atanaskovic Hartnell (second defendant) Representation: Counsel: B Walker AO SC w A Vincent (plaintiffs) DFC Thomas SC w D Birch (defendants)