LSB March 2018_Web

FROM THE EDITOR
Responsibility of the profession
to stand up to misinformation
MICHAEL ESPOSITO, EDITOR
Last year, the Judicial Conference of
Australia (JCA) issued 10 statements
in response to inaccurate or misleading
mainstream media coverage of the courts.
I suspect that that this noticeable increase
in statements from the Justice Conference
is due to both a deliberate decision to be
more proactive in circumstances where the
judiciary is unfairly attacked in the public
domain, and a worrying trend towards
undermining the integrity of the courts for
political gain.
In one particular lamentable case, the
JCA released a statement highlighting the
Herald Sun’s inaccurate reporting in an
Administrative Appeals tribunal decision
to grant Jadeep Singh a bridging visa. The
following day, the JCA was compelled
to issue another statement to correct the
Herald Sun’s erroneous report on the JCA’s
statement!
Minister for Home Affairs Peter Dutton,
a regular critic of the courts, recently
suggested that the public should have a say
in the election of judges. These comments
were met with pointed rebukes from
several quarters, including Law Council
President (and former SA Law Society
President) Morry Bailes, who said in a
Daily Telegraph article: “To have a healthy,
functioning democracy, we must ensure
that there is never any blurring between the
political and judicial spheres. If we create an
environment where judges are forced to act
like politicians, we all lose.”
Our current President Tim Mellor echoed
these concerns in a social media post that
stated: “Minister Dutton’s comments
suggesting the public assist in electing judges
is plainly contrary to principles of judicial
independence and impartiality which is a
cornerstone of democracy. Administration
of justice is not a popularity contest. It’s
about legal skill and competence.”
It is incumbent on the legal profession,
particularly representative bodies such as
the JCA, Law Council, and law societies,
to speak up when powerful people and
organisation spread misinformation about
the justice system. Such unchecked criticism
fans the flames of distrust and antipathy
towards our legal institutions, weakening
the pillars of an independent and impartial
judicial system.
It is not an easy task. Lawyers and judges
are easy targets as politicians and media
organisations have much to gain by taking
calculated and deliberate shots at the justice
system. The legal profession does not have
the platform to debate these issues on an
equal footing, but that just means we must
work harder to make our voices heard.
We must be ever vigilant and assiduous in
promoting a better understanding of the
role of the independent judiciary and its
fundamental role in upholding democracy. B
Update on Recovery by Solicitors of
Legal Fees When Acting in Person
BILL ERICSON, CHAIR, COSTS COMMITTEE
The High Court will be hearing an
appeal on the issue of whether a
solicitor who is a litigant in person is able
to recover an amount for legal fees under a
costs order made in their favour .
On 15 December 2017, the Court
granted special leave for an appeal in
Coshott v Spencer & Ors ([2017] HCA Trans
263). An issue in that appeal is the extent
to which a self represented solicitor in
litigation is able to recover costs on a
“party-party” basis for their own time
spent on the matter.
The current position in South Australia
is that where a costs order has been made
in favour a solicitor acting as litigant in
person, that party may recover pursuant to
that order an amount for their own legal
fees (notwithstanding that they have not,
of course, invoiced and paid themselves
for acting for themself) (see for example
Steicke v Connolly [2017] SASC 99). In
contrast, an unrepresented litigant who is
not a solicitor will only be able to recover
disbursement expenses under a costs order
(such as filing fees, experts’ reports, and
the like), and no amount for their own
time spent in the matter.
The High Court has previously made the
observation in (Cachia v Hanes (1994) 179
CLR 403) that this position is something
of an anomaly. While the Court did not
resolve the issue in Cachia, it appears that it
is now willing to do so in Coshott.
Any solicitor acting in person in litigation
(and for that matter any solicitors advising
clients who are parties to litigation against
a solicitor acting in person) should be
aware that a decision in Coshott may render
solicitors acting in person unable to
recover any amount for legal costs under a
costs order made in their favour.
The Law Society Costs Committee will
provide a further update when the High
Court delivers its decision in Coshott. B
March 2018 THE BULLETIN 5