Fahid Rahman v Rodney Kent and Tim Orlizki t/a Kent Attorneys

1. [1]

   HER HONOUR: This decision concerns a dispute between a law firm and a former client as to whether a solicitor can claim compensation for self-representation.

2. [2]

   The plaintiff is Fahmid Rahman (“Mr Rahman”). The defendant is Rodney Kent and Tim Orlizki t/as Kent Attorneys (“Kent Attorneys”). Mr Duc of counsel appeared for the plaintiff. Mr Oliziki, solicitor, filed a submitting appearance and appeared for the defendant at the hearing via video link. He did not wish to make any submissions. Hence there is no active contradictor.

3. [3]

   The plaintiff relied upon a court book that he prepared.

Summons Seeking Judicial Review

1. [4]

   By summons filed 19 May 2020, the plaintiff seeks:

   1. (1)

      That the Orders of the Local Court on 4 February 2019 in the amount of $1,820.20 and $1,876.60 be set aside.

   2. (2)

      That the Orders of the Local Court on 27 June 2019 in the amount of $2,139.40 be set aside.

   3. (3)

      That the Orders of the Local Court on 8 August 2019 in the amount of $3,000.00 be set aside

   4. (4)

      That the matter be subject to an order in the nature of certiorari in proceedings 2017/273885 and 2018/204097.

   5. (5)

      An order that time to lodge the application for judicial review be extended to the date of filing this application.

   6. (6)

      In the alternative, that proceedings 2017/273885 and 2018/204097 be transferred to the Supreme Court of New South Wales.

   7. (7)

      In the alternative that proceedings no 2017/273885 and 2018/204097 are not enforceable because of the High Court’s decision in Bell Lawyers v Pentelow [2019] HCA 29.

Details of Decisions

1. [5]

   The decision maker was the Local Court of NSW.

2. [6]

   The decisions to be reviewed are the decisions of 4 February 2019, 27 June 2019 and 8 August 2019.

3. [7]

   The plaintiff seeks relief from the whole of the decisions.

Judicial review generally

1. [8]

   The plaintiff seeks a judicial review pursuant s 69 of the Supreme Court Act 2005 (NSW). Sections 69(3) and (2) of the Supreme Court Act read as follows:

The Grounds of judicial review are as follows:

1. [9]

   The orders being challenged relate to costs orders made by the Court in favour of a solicitor who was self-represented.

2. [10]

   The Local Court did not have jurisdiction to make a costs order in the matter as the Chorley exception has never been the common law of Australia (see Bell Lawyers).

3. [11]

   There was an error on the face of the record, the error being the order for costs in favour of a self-represented legally qualified litigant.

4. [12]

   The costs order was not made in accordance with s 99 of the Civil Procedure Act 2005 (NSW). Section 99 of the Civil Procedure Act does not appear to be applicable here. Later the plaintiff refers to s 98(1) which is reproduced later in this judgment.

Background

1. [13]

   The plaintiff’s outline of the background facts are incomplete as it appears that there were proceedings both in the District Court and in the Local Court.

2. [14]

   I will refer to the plaintiff’s summation of the background together with my references to court documents in the court book. There is not a complete record of court documents in the court book.

3. [15]

   Mr Rahman is a former client of Mr Rodney Kent (“Mr Kent”) and Mr Tim Orlizki (“Mr Orlizki”), partners, trading as Kent Attorneys.

4. [16]

   The solicitors had their legal practitioner/client legal costs for acting for him assessed by a costs assessor. A costs assessment took place and that costs assessment underwent a review by a Costs Assessment Review Panel. The plaintiff was found to owe legal fees to Kent Attorneys. Mr Rahman was ordered to pay Rodney Kent and Tim Orlizki trading as Kent Attorneys the sum of $12,215.50 (CB 6).

5. [17]

   In the affidavit of the plaintiff dated 31 May 2021 he deposes:

6. [18]

   Mr Rahman appealed the decision of the Costs Review Panel in the District Court. He says that both Mr Kent and Mr Orlizki, partners of Kent Attorneys, appeared in the proceedings before the courts representing themselves.

7. [19]

   On 8 September 2017 it seems that the costs assessment was registered as a deemed judgment of the Local Court. As best as I can understand it, around 14 February 2019 the examination order was issued by Kent Attorneys in the Local Court. The plaintiff then paid the amount of the assessed costs that was then due and owing.

8. [20]

   That leaves in dispute the solicitor’s costs and disbursements arising from the issue and hearing of examination orders.

9. [21]

   The plaintiff in his grounds of judicial review has referred to the decisions on 4 February 2019, 27 June 2019 and 8 August 2019.

10. [22]

    From the court book, I have extracted the orders made by the Local Court.

The examination order

1. [23]

   On 8 September 2017, in proceedings 2017/273885 in the Local Court in Rodney Kent and Tim Orlizki t/as Kent Attorneys (as first plaintiff) v Fahmid Rahman (as first defendant), a decision was entered that the first defendant is to pay the first plaintiff the sum of $12,215.50. The order is not referred to by Mr Rahman.

2. [24]

   On 11 July 2018, in proceedings 2018/204097 in the Local Court, Rodney Kent & Tim Orlizki t/as Kent Attorneys (as first plaintiff) v Fahmid Rahman (as first defendant) a decision was entered against the first defendant in the sum of $1,925.00 (CB 8).

3. [25]

   On 4 February 2019, in proceedings 2017/273885 orders were made that $1876.60 costs were payable by Mr Rahman to the plaintiff and in proceedings 2018/204097 an order was made that $1820.20 costs were payable by Mr Rahman to the plaintiff. The examination summaries were listed for hearing on 18 February 2019 at 9.30am. Mr Kent appeared for the plaintiff. There was an appearance by Mr Rahman (transcript 4 February 2019 CB 29-34).

4. [26]

   On 14 February 2019, Kent Attorney’s advised the Local Court that it did not intend to proceed with the Examination Order, as Mr Rahman had paid the amount due.

5. [27]

   On 27 June 2019, the applicant (Mr Rahman) in proceedings 2018/204097 Rodney Kent & Tim Orlizki t/as Kent Attorneys (as first plaintiff) v Fahmid Rahman, was ordered to pay $2,139.40 forthwith (CB 147).

Local Court order dated 8 August 2020

1. [28]

   While the plaintiff seeks to set aside the order of 8 May 2020, the hearing in the Local Court occurred on 5 August 2020 before Magistrate McIntyre. Mr Kent appeared for the plaintiff/applicant. There was no appearance of or for Mr Rahman. Mr Kent advised the court that he had an email from Mr Rahman which stated:

2. [29]

   On 8 August 2019, in proceedings 2017/273885, the Court ordered that the motion be dismissed and the applicant pay $3,000.00 to the respondent forthwith (CB 148A).

3. [30]

   On 31 October 2019, in proceedings 2017/273885, Mr Angelkov appeared for Kent Attorneys and Mr Duc appeared for Mr Rahman before Magistrate McIntyre. There was a notice of motion filed by Mr Rahman to set aside the costs orders that were originally made (CB 35). The matter was adjourned part heard to 19 February 2020.

4. [31]

   On 19 February 2019, at page 1 of the transcript lines 30-50 (CB 46) Mr Duc stated:

5. [32]

   After a short adjournment, at page 10 of the transcript lines 20-45 (CB 55), Mr Duc and Mr Angelkov stated:

6. [33]

   At pages 13 to 14 of the transcript, Her Honour stated:

7. [34]

   Her Honour asked Mr Duc to confirm his argument and its basis at transcript page 15 lines 14 to 22 (CB 60):

8. [35]

   Despite what Mr Duc said to the magistrate, that there were some administrative issues in filing the summons in the Supreme Court on 19 February 2020, the summons was actually not filed in this Court until 19 May 2020, some three months later. Mr Rahman now seeks to have the orders of the lower courts set aside on the basis that the costs, although costs able to be awarded by the Court, are not enforceable and thus are irregular, on the basis set out in Bell Lawyers where the High Court held that lawyers cannot seek costs in their own cause.

The decision in Bell Lawyers v Pentelow [2019] HCA 29 (“Bell Lawyers”)

1. [36]

   In Bell Lawyers it was held that as a general rule a self-represented litigant may not obtain costs for the value of their time in litigation. The High Court’s decision made plain that the “the Chorley exception”, which permits a self-represented solicitor to recover their own professional costs of acting in litigation, is not part of the Australian common law.

2. [37]

   In Bell Lawyers, Bell Lawyers Pty Ltd retained Ms Janet Pentelow, barrister, to appear in the Supreme Court of New South Wales. At the conclusion of those proceedings a dispute arose between the parties as to the payment of Ms Pentelow’s fees.

3. [38]

   Ms Pentelow then forwarded a bill of costs to Bell Lawyers, which in addition to fees for her legal practitioners, included sums for costs incurred on her own behalf and for the provision of legal services by her. Although Ms Pentelow had been represented by a solicitor in the Local Court, and by solicitors and counsel in the Supreme Court, she had undertaken preparatory legal work and had also attended court.

4. [39]

   Bell Lawyers refused to pay the costs for the work personally undertaken by Ms Pentelow. The matter was sent for costs assessment and the assessor rejected Ms Pentelow’s claim for the costs of the work she had performed herself.

5. [40]

   The costs assessor’s decision was affirmed on appeal before the Review Panel and in the District Court of New South Wales. Ms Pentelow applied for a judicial review of the District Court decision in the Court of Appeal.

6. [41]

   The Court of Appeal held by majority, that Ms Pentelow was entitled to rely upon the Chorley exception despite her being a barrister and not a solicitor. Bell’s Solicitors appealed the Court of Appeal’s decision to the High Court of Australia.

7. [42]

   The High Court, by majority, held that the Chorley exception should not be recognised as part of Australian common law as it is an anomaly that represents an affront to the fundamental value of equality of all persons before the law and cannot be justified by the policy said to support it.

8. [43]

   The nature of the Chorley exception was said to be inconsistent with the statutory definition of costs in s 3(1) of the Civil Procedure Act 2005 (NSW). The High Court referred to s 98(1) Civil Procedure Act NSW 2005. Those sections read:

9. [44]

   The relevant paragraphs of the judgment concerning the decision that costs in relation to legal practitioners representing themselves were not part of the common law of Australia are at [3], [39], and [53]. They read:

10. [45]

    The High Court was critical of the Chorley exception and the ramifications that it could have in practice in its application as it relates only to solicitors, engendering privilege and inequality before the law. It highlighted the undesirability of circumstances in which a solicitor would act for themselves. Underlining this concern is the maintenance of objectivity as a result of the solicitor's own self-interest, the lack of an impartial mind may inadvertently increase legal costs.

11. [46]

    The decision of Kiefel CJ, Bell, Keane and Gordon JJ was that the Chorley exception was never part of the common law of Australia. Gageler and Edelman JJ agreed with the plurality.

12. [47]

    Nettle J, in dissent, agreed with the ultimate result. However His Honour stated that whilst the Chorley exception did not extend to barristers and ought not to be applied in this particular case, His Honour did not agree with the abolition of the Chorley exception from Australian common law. His Honour was of the view that the decision had wider ramifications which may arise from abrogating the exception. His Honour suggested that the abrogation of the exception should be considered by parliament where the nature and the extent of the potential regulatory and fiscal consequences could be measured and balanced.

13. [48]

    The court left open the question in relation to a solicitor employed by an incorporated legal practice for which they are a sole director and shareholder who is party to proceeding.

14. [49]

    For subsequent decisions on this topic see Burrows v Macpherson and Killey Lawyers (Sydney) Pty Ltd [2021] NSWCA 148, and United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 128.

15. [50]

    The plaintiff in his submission relied on the High Court’s ruling in Bell Lawyers as a general rule that a self-represented litigant may not obtain any compensation for the value of their time spent in litigation, as the High Court in Bell Lawyers held that the Chorley exception should not be recognised as part of the common law of Australia.

16. [51]

    As such the costs ordered by the lower court against him are unrecoverable as Kent Attorneys were aware of the decision made in Bell Lawyers while they pursued litigation. The plaintiff also submitted that the orders of the Local Court are unenforceable and made without power to do so.

17. [52]

    The plaintiff seeks for the litigation against him to be concluded. The matter is still before the Local Court of NSW awaiting this judgment of this Court.

Resolution

1. [53]

   While this judicial review raises an interesting legal question, it is not one for determination here. Section 69(2) of the Supreme Court Act states that jurisdiction of the court to grant relief does not apply to any writ of execution for the enforcement of a judgment or order of the Court or any writ in aid of such a writ of execution. An examination order is an order for the enforcement of a judgment. Therefore the Supreme Court Act s 69(2) applies and the plaintiff cannot seek a judicial review pursuant to s 69(3) of the Supreme Court Act.

2. [54]

   If I am wrong and the plaintiff is entitled to seek judicial review in this court, the costs payable to the court registry for the issue of an examination order apply regardless of whether the party issuing it is a legal practitioner. The compulsory payment of this fee by the legal practitioner does not put in a preferred position to ordinary litigants. The amount of professional costs awarded to the solicitor in seeking to enforce his judgments are modest. In the exercise of my discretion, for these reasons I would dismiss the application for judicial review.

3. [55]

   The result is that the plaintiff’s application for judicial review fails.

Costs

1. [56]

   Costs are discretionary. Normally costs follow the event. However as the defendant filed a submitting appearance, I make no order as to costs.

   1. (1)

      The summons filed 19 May 2020 is dismissed.

   2. (2)

      There be no order as to costs