With leading Sydney barristers Bret Walker SC (for Bell) and Guy Reynolds SC involved – along with their junior counsel and instructing solicitors – the bill for the case could be a minimum $100,000 by the time it is decided.

During the hearing, Ms Pentelow made a plea – to no avail – around the expense of going to Australia's top court.

"We submit that that on its own would make this an inappropriate case for special leave," Mr Reynolds argued.

'Predictable criticism'

Mr Walker had already conceded there would be "predictable criticism" that the claim "concerns only a matter of costs which are, according to some people's lives, at least relatively modest".

Chief Justice Susan Kiefel.

"One of course sympathises with the tortuous path that litigants in this position take on both sides," the silk said. "However, that is what the system provides when somebody seeks to have costs of this kind ordered in their favour."

He added that "one of the reasons why the Chorley exception is of importance is that it represents a considerable entrenchment for a considerable class".


"She was not invoiced, to use the language, for her work as a barrister."

Mr Walker argued that "costs shifting is a critical part of the administration of justice".

Bret Walker SC won special leave for his client Bell Lawyers ..."costs shifting is a critical part of the administration of justice". Penny Bradfield

"Yes, it can be said it is only costs. Yes, it could be said in this case, relatively modest. But we are talking about a phenomenon which is costs and the costs of litigation loom large in the Court's supervision as a matter of its doctrine of how and why they can be ordered to be paid."

Justice Gordon noted, "there are three questions. Is the Chorley exception still good law? Second, does it extend to barristers and, third, does it extend to barristers who have retained a solicitor and counsel to appear for them?"

The case will likely be heard in the first half on 2019, with both sides agreeing it would only take one day.