In a judgment released on Monday (7 November), Her Honour Monika Schmidt AJ ordered that Elizabeth Ramsay and Alan Robert Conolly, both partners at Conolly & Co, pay costs to barrister Jill Gatland. 

Ms Gatland was employed under a contract for the law firm, which had a “contractual obligation” to pay her, yet didn’t. 

In eight invoices, the barrister alleged she was unpaid, concerning a number of different matters spanning back as far as 2016 — three of which were brought before the court.  

The invoices were originally disputed by the firm, whereafter Ms Gatland was informed that “her application was out of time and thus could not proceed to costs assessment”.

Magistrate Jennifer Atkinson in the NSW Local Court had previously ordered Mr Conolly and Ms Ramsay to pay a fixed sum of $38,358.48, including interest, in April this year in respect of the disputed costs, which the pair then took to appeal in the Supreme Court. 

In the recent judgment, which dismissed the appeal, Justice Schmidt said she was “satisfied that Atkinson LCM was correct in concluding that Ms Gatland was not prevented by the Application Act from seeking to recover her unpaid costs under the three disputed out of time invoices in the Local Court. Those proceedings were within the legislative contemplation”.

“Ms Gatland was entitled to pursue the costs Ms Ramsay and Mr Conolly still refused to pay, in the usual way in a court of competent jurisdiction, so long as they were pursued within other applicable limitation periods,” the judgment stated. 

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“The result of the review panel’s decision that the application was time barred and Ms Ramsay and Mr Conolly’s decision not to seek an extension of time for the costs assessment, thus could not estop the pursuit of those costs in the Local Court.”

As soon as she had received a brief from the firm, Ms Gatland expected a signed costs agreement from Conolly & Co — but after she didn’t receive one, she assumed that the agreement and disclosure had been accepted, for which Judge Atkinson ruled in favour of in the NSW Local Court. 

Her Honour noted that the costs assessor had concluded that Ms Gatland’s rates were fair, reasonable and proportionate, falling at the lower end of the range that counsel usually charged, a view not challenged in the Local Court, despite Ms Ramsay and Mr Conolly having pleaded that they did not agree that the fees charged were reasonable. 

“The effect of the case advanced for Ms Ramsay and Mr Conolly was that Atkinson LCM fell into error, the result of a law practice’s application for costs assessment, even if brought out of time, so that the costs cannot be assessed under the statutory scheme. It having [sic] the draconian outcome that thereby, the law practice’s common law contractual right to recover the unpaid costs is lost,” the judgment stated. 

However, the “draconian” result Ms Ramsay and Mr Connolly hoped for fell short, as Her Honour stated in her judgment that despite contending for such an outcome for when an out of time costs application is made, “the legislative scheme itself contemplates the pursuit of legal proceedings in respect of unpaid costs which cannot be assessed”.

The appeal for the costs order was therefore dismissed, with parties given seven days to make further submissions to the court.