The inherent supervisory jurisdiction of the Supreme Courts summarised by the NSW Court of Appeal

My case note of Hartnett v Bell [2023] NSWCA 244 is here. The purpose of this sister post is to reproduce the summary of the law relating to the superior courts’ inherent jurisdiction to supervise the charging of and discipline its officers which Bell CJ set out at [123]:

‘Several statements of authority may be noted at the outset of the consideration in relation to the Court’s inherent and supervisory jurisdiction:

1. The Court’s inherent jurisdiction “can be exercised in any circumstances where the requirements of justice demand it and thus cannot be restricted to closed and defined categories of cases”: McGuirk v University of New South Wales [2010] NSWCA 104 at [178] (McGuirk); Reid v Howard (1995) 184 CLR 1 at 16; [1995] HCA 40 (Reid); Tringali v Stewardson Stubbs & Collett Ltd [1966] 1 NSWR 354; (1966) 66 SR (NSW) 335 at 344;

2. “The juridical basis of [the inherent jurisdiction] is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner”: IH Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23 at 27-28, as cited in McGuirk at [185];

3. “The inherent power of a court to control and supervise proceedings includes the power to take appropriate action to prevent injustice”: Hamilton v Oades (1989) 166 CLR 486 at 502; [1989] HCA 21;

4. The inherent jurisdiction “is not confined to a situation in which there is no statute or rule of court that could possibly apply to what is to be done in that regard. The true rule is that a court may exercise its inherent or implied powers in a particular case, even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision”: Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 427; [1993] FCA 121(Landsal) (with added emphasis), citing Taylor v Attorney-General [1975] 2 NZLR 675 at 680, 687-688and 692-693;

5. The Court can do whatever “may be necessary to prevent any injustice occurring with respect to matters which come within its cognizance”: Ex parte Farren; Re Austin (1960) 77 WN (NSW) 743 at 744, cited in Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285 at 287;

6. The inherent jurisdiction of the Court overlaps with, but is not displaced by, s 23 of the Supreme Court Act 1970 (NSW): McGuirk at [177];

7. On the other hand, “the inherent power and the jurisdiction conferred by s 23 of the Supreme Court Act are to be exercised only as necessary for the administration of justice”, and “the power is not at large”: Reid at 16-17;

8. The inherent jurisdiction cannot authorise the making of orders excusing compliance with statutory obligations or preventing the exercise of authority deriving from statute: Reid at 16; Commonwealth Trading Bank of Australia v Inglis (1974) 131 CLR 311 at 318-319; [1974] HCA 17; Doyle v The Commonwealth (1985) 156 CLR 510 at 518; [1985] HCA 46;

9. The inherent jurisdiction does not extend to making orders simply because the Court believes it would be fair to do so: see, for instance, Moore & Anor v Assignment Courier Ltd [1977] 2 All ER 842 at 846; see also The Siskina [1979] AC 210 at 262;

10. The Court has an inherent or general jurisdiction to regulate the costs, charges and disbursements claimed by officers of the Court, and to prevent exorbitant demands: Woolf at 678;

11. The Court may exercise its inherent jurisdiction in relation to a solicitor’s costs “in the way it might think fit”: Storer & Co v Johnson (1890) 15 App Cas 203 at 206.

12. This well-established supervisory jurisdiction is designed to impose on solicitors higher standards than the law applies generally. The jurisdiction is disciplinary and compensatory. It is not exercised for the purposes of enforcing legal rights, but for the purpose of ensuring honourable conduct on the part of the Court’s own officers. It is distinct from any legal rights or remedies of the parties, it is unaffected by anything which affects the strict legal rights of the parties, and it is not limited to technical principles: Atanaskovic First Instance at [29]-[30], approved in Atanaskovic at [127];

13. Statutory provisions dealing with the issue of lawyers’ costs are complementary to this inherent jurisdiction, and do not oust it: Woolf at 678; Pryles & Defteros (a firm) v Green [1999] 20 WAR 541; [1999] WASC 34 at [24] (Pryles); see also Re Jabe; Kennedy v Schwarcz [2021] VSC 106 at [46] (Re Jabe) and s 264 of the Legal Profession Uniform Law 2014 (NSW). The two jurisdictions are enlivened by different acts and must be analysed separately: Whyked Pty Limited v Yahoo!7 Pty Limited [2008] NSWSC 477 at [18];

14. Further, “there is an overlap between the Court’s general jurisdiction to review solicitors’ remuneration and the doctrines of undue influence, unconscionable transaction and fiduciary conflict as they apply to solicitors and clients”: Malouf v Constantinou [2017] NSWSC 923 at [136]; see also Kowalski at [25];

15. More specifically, “there remains an inherent jurisdiction of the Court to make orders that a legal representative personally pay the opposing party’s costs directly for unnecessary or wasted costs, that power arising out of the Court’s supervisory jurisdiction with respect to legal practitioners admitted by the Court”: NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838 at [44], citing Re Felicity; FM v Secretary, Department of Family and Community Services (No 4) [2015] NSWCA 19 at [15];

16. The purpose of the jurisdiction of the Court with respect to costs charged by its officers is “to secure that the solicitor, as an officer of the court, is remunerated properly, and no more, for work he does as a solicitor” (emphasis added): Electrical Trades Union at 1050; see also Re Jabe at [44];

17. The exercise of supervisory jurisdiction over officers of the Court is not governed by “strict legal rights and duties or matters of technicality.” Rather, “in exercising supervisory jurisdiction, the Court does not engage in a final determination of legal rights but determines whether one of its officers should be held to ethical and honourable behaviour”: Atanaskovic First Instance at [80]-[81];

18. The jurisdiction to scrutinise the remuneration of officers of the Court is not limited to cases of exorbitant overcharging: Atanaskovic at [145]. Nor is it limited by any contractual arrangements made between the parties: Pryles at [24], which will engender “jealous” scrutiny by a Court: Clare v Joseph [1907] 2 KB 369 at 376;

19. The inherent jurisdiction extends to making orders for solicitors to repay an amount charged to their own client: see, e.g., Harrison at 538.’

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