IN THE COUNTY COURT OF VICTORIA
AT melbourne
commercial DIVISION
general cases list	Revised
Not Restricted
 Suitable for Publication	

Case No. CI-18-03754 

ROTSTEIN COMMERCIAL LAWYERS PTY LTD 	Plaintiff	
		
v		
		
JAMES SACKL (formerly known as Andrew Sackl) & Ors according to schedule attached  	Defendants	

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JUDGE:	HIS HONOUR JUDGE COSGRAVE	
WHERE HELD:	MELBOURNE	
DATE OF HEARING:	3 May 2022	
DATE OF JUDGMENT/RULING:	5 May 2022	
CASE MAY BE CITED AS:	Rotstein Commercial Lawyers Pty Ltd v Sackl & Ors (No 2)	
MEDIUM NEUTRAL CITATION:	[2022] VCC 585		

REASONS FOR RULING
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Subject:	          COSTS
Catchwords: 	Order 79 – Costs – Legal Practitioners – Disbursements or expenses   incurred in litigation
Legislation Cited:    County Court Civil Procedure Rules 2018 (Vic)
Cases Cited:	Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; London Scottish Benefit Society v Chorley (1884) 13 QBD 872; United Petroleum Australia Pty Ltd v Herbert Smith Freehills [2020] VSCA 15
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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A Christopherson 	Rotstein Commercial Lawyers Pty Ltd	
			
For the Eighth Defendant	No appearances	Christopher Anthony Dale	

HIS HONOUR:

1	In this matter, the plaintiff submits that it should recover the costs of the successful application. These costs comprise counsel’s fees of and incidental to the application. The plaintiff asks that the costs be fixed in the sum of $3,850 based on an affidavit which set out the anticipated counsel fees for the application.
2	The eighth defendant contends that there should be no order for costs in favour of the plaintiff because:
(a)	the decision of the High Court in Bell Lawyers Pty Ltd v Pentelow prevents a lawyer from recovering costs of acting for himself or herself in representing themselves in litigation;
(b)	the eighth defendant, through its lawyer Mr Dale, has conferred a benefit on the court and the public by assisting the court. It made submissions which helped to resolve an unusual and difficult issue of law. This involved an element of public importance and accordingly, it would be inappropriate to make any order as to costs.
3	On my reading of the Bell Lawyers decision, the court accepted that, as a general rule, self-represented litigants could not recover any recompense for the value of the time the litigant spent in the litigation. But there was a long-standing exception whereby a solicitor who was a self-represented litigant could recover his or her professional costs of acting in the litigation. This was referred to as “the Chorley exception” because it was established as a rule of practice by the English Court of Appeal in London Scottish Benefit Society v Chorley. The High Court has now decided that the Chorley exception should no longer be recognised as part of the common law in Australia.
4	In my view, the Bell Lawyers case does not prevent a solicitor from recovering disbursements or expenses incurred in litigation where the solicitor litigant is represented either by another solicitor (independent of the former’s firm) or by counsel. I note that in United Petroleum Australia Pty Ltd v Herbert Smith Freehills, the Court of Appeal found that Freehills could not recover costs in relation to work performed by its own employees on the firm’s behalf in connection with the litigation. However, the court said that this did not mean that Freehills was not entitled to recover other costs such as disbursements incurred in the course of the litigation. 
5	In the present case, the plaintiff is not seeking to recover costs for work performed by members or employees of the firm. The costs sought relate only to counsel’s fees and therefore, fall beyond the scope of the principle established in Bell Lawyers. I note that the eighth defendant made no objection to the quantum of costs sought.
6	While the present case might, to a degree, have clarified the law regarding the operation of Order 79 of the County Court Civil Procedure Rules 2018 (Vic), the public interest character of the litigation was limited. For example, the litigation did not involve state instrumentalities or major environmental considerations. The litigation was essentially private in nature being a dispute between a firm of solicitors and an individual (together with various corporate entities controlled by him) who allegedly retained the firm to perform legal work and then did not pay for the same. In my view, the benefit to the public in having the eighth defendant attend court and make submissions about a relatively novel area of law did not outweigh the fundamentally private nature of the litigation. Accordingly, costs should follow the event. 
7	I make the following orders: 
1.	The sum of $50,000 together with any interest allocated or received in respect of that money paid into court by the first to eighth defendants pursuant to the order of Judge Marks made on 10 April 2019 be paid to the plaintiff. 
2.	The eighth defendant pay the plaintiff’s costs of and incidental to the application fixed in the sum of $3,850.

SCHEDULE OF PARTIES

Rotstein Commercial Lawyers Pty Ltd 	

Plaintiff 	

and 	

James Sackl formerly known as Andrew Sackl 	
First Defendant
 	
Entopia Biotechnologies Pty Ltd 	Second Defendant 	
		
Ad Astra Institution Pty Ltd
	Third Defendant 	
Advanced Microwave Industries Pty Ltd 	Fourth Defendant 	
		
Dash Technologies Pty Ltd formerly Merlin Skill Mobility (Aus) Pty Ltd 	Fifth Defendant 	
		
Karma3 Upcycling Pty Ltd 	Sixth Defendant 
	
Merlin Technologies Pty Ltd 	Seventh Defendant 
	
Student Group Pty Ltd 	Eighth Defendant 	
		
Mark Yorston 	Ninth Defendant 	
		
Yorston Legal Pty Ltd 	Tenth Defendant