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  • The Court has jurisdiction to make a personal costs order against a legal practitioner, but the threshold of conduct enlivening this jurisdiction is high. The Court will only make such orders in clear cases.
  • Courts may require legal practitioners who make submissions against an opposing lawyer to explain or justify the basis on which those submissions are made.
  • Personal costs orders against legal practitioners should not be sought gratuitously or prematurely, and such conduct will be taken seriously by courts.

A costs order may be made directly against a legal practitioner pursuant to section 99 of the Civil Procedure Act 2005 (NSW) (‘CPA’). For the Court’s jurisdiction to be enlivened, either s 99(1)(a) or s 99(1)(b) must apply and the Court must be satisfied that costs have been incurred:

‘(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or

(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.’

Due to the serious nature of a personal costs order, an application for a personal costs order against a legal practitioner must:

  1. be made with proper notice to the legal practitioner, in order to allow the practitioner a full and sufficient opportunity to answer it (Myers v Elman [1940] AC 282 at 318; Orchard v South Eastern Electricity Board [1987] 1 QB 565 at 572; Ridehalgh v Horsefield [1994] Ch 205 at 229 cited in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 (‘Lemoto’) at [92]); and
  2. be supported by complete particulars akin to the degree of particularity required in a disciplinary complaint (Lemoto at [146]; Mitry Lawyers v Barnden [2014] FCA 918 at [59]–[65]).

The onus is on the applicant to prove facts establishing the serious neglect, serious incompetence or serious misconduct, consistent with the civil standard set out in Briginshaw v Briginshaw (1938) HCA 34.

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