Bechara trading as Bechara and Company v Bates [2016] NSWCA 294

On 27 May 2016 the Court dismissed Ms Bechara’s amended summons seeking leave to appeal from a judgment and orders of Adamson J made on 29 October 2015. Ms Bechara was not present at the hearing of the application. The respondent Mr Bates, a barrister, appeared for himself as counsel instructed by solicitors. Mr Bates made an oral application for a gross sum costs order under s 98(4)(c) of the Civil Procedure Act 2005 (NSW) in respect of a) solicitors’ costs and disbursements excluding counsel’s fees and b) counsel’s fees for professional work performed by Mr Bates himself.

The issue on appeal was whether the Court should make the gross sum costs order sought. This involved consideration of whether the Court could make an order for costs in respect of a self-represented barrister.

Held (Beazley P, Meagher and Payne JJA):

(1) Generally self-represented litigants are unable to claim professional costs. An exception, known as the “Chorley exception”, applies in the case of a litigant in person who is a solicitor: [22]-[27].

London Scottish Benefit Society v Chorley, Crawford and Chester (1884) 13 QBD 872 and Guss v Veenhuizen (1976) 136 CLR 34 applied.

(2) There is no authority of the High Court or an intermediate Court of Appeal as to whether the Chorley exception applies in respect of a self-represented barrister: [30].

(3) In the absence of any submissions put by Ms Bechara she may be taken to have conceded that the Court can make an order for costs in respect of a self-represented barrister: [65]-[70]

Wilkie v Brown [2016] NSWCA 128 applied.