Solicitor comes a cropper in costs battle

Rising bills in solicitor's uphappy wrestle with large law shop ... The Chorley exception and life post-Chorley ... Another round ... Application "doomed to fail" ... Heresy ... Anthony-James Kanaan reports 

Burrows and brief

Zali Burrows – go-to solicitor for alleged corrupt mayors, underworld gang leaders, and terrorists, among others - has had a "heretical" application thrown out by the NSW District Court.

Burrows has failed to quash a costs order made against her, to the tune of $130,000, after the court dismissed a professional negligence claim she brought against her former family lawyers.

More than 11 years ago, Macpherson & Kelley Lawyers Sydney (M&K Sydney) represented Burrows in Family Court proceedings involving her former partner, Stephen Alexander. 

An order for $12,239.83 was made in Burrows favour for the family law costs, but M & K Sydney wrongly applied to the NSW Supreme Court in an effort to have the order enforced. 

Two months later, Burrows, having terminated her retainer with M & K, applied personally to the Family Court to have her costs order quantified - but the order lapsed after Alexander filed for it to be discharged.

In 2015, Burrows sued M & K in the District Court, claiming losses because of the erroneous filing. The firm was represented by Macpherson & Kelley Lawyers Group (M&K Group), the sole shareholder of M&K Sydney, which had since ceased trading. 

Her claim was unsuccessful, and M&K Sydney was awarded  costs of $130,000 – noting that fees for representing Burrows in the Family Court matter remained outstanding. 

Burrows unsuccessfully appealed to the NSW Court of Appeal in 2021 and failed in a special leave application to the High Court.

In a fresh case, Burrows sought to set aside the costs order by way of rule 36.15 of the UCPR, claiming that the order was obtained by fraud. 

Her application was predicated on the High Court decision of Bell Lawyers v Pentelow which abolished the Chorley exception in Australia. The Chorley rule formerly permitted solicitors to recover costs for their own professional fees while they were personally a party to a dispute. 

Burrows contended that the abolition of the rule should preclude costs recovery where a solicitor appears in proceedings to represent their incorporated employer. 

This is despite dicta in Bell Lawyers clearly stating that a cost in those circumstances was still recoverable post-Chorley. In the 2021 decision, the Court of Appeal found that M&K Group was a separate legal entity from M&K Sydney, and so Chorley did not arise for consideration at all. 

Against a High Court decision, Burrows' case was "doomed to fail" according to HH Justice Robert Weber SC. 

M&K Sydney moved that the court should dismiss the proceedings, on the basis that they disclosed no reasonable cause of action and were an abuse of process. 

Burrows pleaded that it was not appropriate for her case to be thrown out summarily as it was fertile ground for the "development of the law" of the Chorley principle - five years after it was expunged from Australian jurisprudence. 

HH noted that Burrow's "heretic" submission "involves the proposition that I should not follow the decisions of the Court of Appeal which in my view are on point, and binding on me". 

Burrows called on the court to follow the appellate decisions of other State courts in elision of the NSW authorities, a pleading which, according to HH, "flies in the face of the doctrine of stare decisis". 

The court dismissed the proceedings and ordered that Burrows pay M&K Sydney's costs for the case – adding to her growing outstanding debt to the firm. 

Last year there were reports that Macpherson Kelley had served Burrows with a bankruptcy notice. 

In July 2018 we reported Burrows' run-in with a Law Society and a Supreme Court order she pay costs of $54,000. 

Burrows v Macpherson and Kelly Lawyers (Sydney) Pty Ltd