Unrepresented barristers’ entitlement to costs in cases involving them personally

In Winn v GHB [2007] VSC 360, a barrister was personally a party in some litigation. She was admitted in Victoria but at the relevant time was practising in Brisbane under a Queensland practising certificate. She taxed her solicitors’ fees, and acted for herself. She appealed successfully from the order of the Taxing Master. She successfully sought an order for costs, but the only costs she was entitled to were costs of travelling to and from Victoria from Queensland for the hearings because the exception to the rule that unrepresented litigants are not entitled to costs except for out of pocket expenses applies only to solicitors and does not extend to barristers.Unrepresented litigants are generally not entitled to costs: Cachia v Hanes (1994) 179 CLR 403. The exception is when solicitors act for themselves: Guss v Veenhuizen (No. 2) (1976) 136 CLR 47. Though heavily criticised, Guss remains good law in NSW (Atlas Corporation Pty Ltd v Kalyk) and Victoria (Brott v Almatrah [1998] 2 VR 83) but not in Western Australia (Dobree v Hoffman (1996) 18 WAR 36)). But in this case, Justice Kaye held that barristers are not solicitors, and by virtue of the conduct rules of the Victorian Bar and of s. 2.4.35 of the Legal Profession Act, 2006 [sic.: 2004?], the barrister could not have been acting as a solicitor in her own matter, and the rule should not be expanded to extend to counsel acting for themselves. Rather, the High Court has said that the exception should be limited to the greatest extent possible.

The case for barristers to read before they despair of getting costs orders in their favour in their own cases in which they represent themselves seems to be R v Boswell [1987] 1 WLR 705. There, Leggatt J made an exception to the rule because of a particular rule ‘which entitled, in certain narrowly prescribed circumstances, counsel to brief another counsel to appear on his or her own behalf in respect of a costs dispute’. Haven’t read the case myself, and can’t quite make out what it stands for from Justice Kaye’s decision, but there it is, tucked away for future reference, should you or I need it.

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