Barrow v Bolt (No 2)
[2013] VSC 234
•6 May 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2012 02412
| DAVID CHARLES BARROW | Plaintiff |
| v | |
| ANDREW BOLT THE HERALD & WEEKLY TIMES PTY LIMITED | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 May 2013 | |
DATE OF ORDERS: | 6 May 2013 | |
DATE OF REASONS: | 7 May 2013 | |
CASE MAY BE CITED AS: | Barrow v Bolt & Anor (No 2) | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 234 | |
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PRACTICE AND PROCEDURE – Unsuccessful interlocutory appeal – Costs – Successful respondents’ costs – Whether to fix successful respondents’ costs – Allegedly impecunious litigant – Supreme Court Act 1986, s 129(3) – Supreme Court (General Civil Procedure) Rules 2005, r 63.20.1.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendants | Mr S. Mukerjea | Kelly Hazell Quill |
HIS HONOUR:
On 6 May 2013, I dismissed the plaintiff’s appeal from certain orders made by Daly AsJ on 3 April 2013.[1] Upon the dismissal of the appeal, the defendants sought an order for costs against the plaintiff, and an order fixing those costs. I was told that the actual costs were $7,000, but that the defendants only sought an order in the sum of $2,500.
[1]Barrow v Bolt & Anor [2013] VSC 226.
The plaintiff resisted the making of an order for costs against him and resisted having those costs fixed in any amount. After hearing argument, I ordered costs against the plaintiff fixed in the sum of $2,500 and then stayed the operation of that order. These are the reasons for the costs order and order staying those costs.
The principal basis upon which the plaintiff resisted the defendants’ applications in respect of costs was the plaintiff’s alleged impecuniosity.
No material was put before me concerning the plaintiff’s financial affairs. In essence, it appeared that I was expected to simply accept that the plaintiff is impecunious as a result of a number of envelopes on the Court file, each envelope having attached to it a memorandum executed by a deputy prothonotary waiving the payment of fees. Each memorandum is in substantially identical terms. The first memorandum[2] is in the following terms:
Upon reading the affidavit of David Charles Barrow sworn 30 April 2012 and, upon being satisfied that the payment of the prescribed fee of $767.40 for the filing of a writ, would cause the applicant financial hardship.
The said application to waive the payment of the fee of $767.40 is hereby granted.
[2]Dated 30 April 2012.
It would seem from the envelopes on the Court file that the plaintiff has successfully applied for and been waived the payment of the following prescribed fees in respect of this proceeding:
–$767.40 for the filing of a writ;
-$342.10 for the filing of a summons in October 2012;
-$162.80 for the issuing of a subpoena in December 2012;
-$342.10 for the filing of the summons heard and determined by Daly AsJ; and
-$342.10 for the filing of the notice of appeal from the orders of Daly AsJ.
Each of these prescribed fees was waived pursuant to s 129(3) of the Supreme Court Act 1986. Section 129(3) provides:
The prothonotary or a deputy prothonotary at or for the place where a proceeding is to be heard may, having regard to the income, day-to-day living expenses, liabilities and assets of the person liable to pay a fee prescribed under sub-section (1)(a), waive payment of that fee if, in his or her opinion, the payment of that fee by that person would cause him or her financial hardship and, in that case, that prescribed fee is not payable.
The plaintiff is not a stranger to litigation. The present proceeding is not the plaintiff’s first. In Super Choice Now Pty Ltd v Brisconnections Management Company Limited,[3] Goldberg J granted the applicant leave “to commence and carry on this proceeding otherwise than by a solicitor by Mr David Charles Barrow of [Mr Barrow’s address] notwithstanding that he is not a solicitor”. As Goldberg J’s judgment demonstrates, at that time, the plaintiff was the sole director of the applicant. In that proceeding, the applicant, as corporate trustee for the Julie Anne Barrow Charitable Trust, was seeking orders to set aside five separate creditor’s statutory demands addressed to it for the respective amounts of $2,472,000, $536,666, $116,000, $110,000 and $2,385,000.[4]
[3](2009) 259 ALR 451.
[4]Since then, there has been other litigation in this Court, including Barrow v McLernon & Anor [2012] VSC 134 (see further, Barrow v McLernon & Anor (No 2) [2012] VSC 313).
The judgment in Super Choice Now Pty Ltd v Brisconnections Management Company Limited,[5] makes reference to an affidavit filed by the plaintiff on 10 July 2009.[6] In that affidavit, the plaintiff described himself as the sole major donor of the Julie Anne Barrow Charitable Trust – although (perhaps inconsistently) the plaintiff also said that the charitable trust was impecunious and could not afford to pay for legal advice or legal representation in court proceedings.[7]
[5](2009) 259 ALR 451.
[6]Ibid [8].
[7]Pro bono representation was also said to be “not appropriate”.
The material filed in the present proceeding and material filed in this Court in other proceedings[8] discloses that the plaintiff is or has been a director of other companies. When I asked the plaintiff about this, he admitted from the Bar table to being a director of Defamate Pty Ltd and Settlemate Pty Ltd. However, he said these companies were deregistered and had no assets. In addition to these companies, the plaintiff also admitted to being a director of Chockablock Productions Pty Ltd. However, he said this company was a trustee of his superannuation fund and had no assets.
[8]See Barrow v McLernon & Anor [2012] VSC 134 and Trkulja v Barrow [2013] VSC 227.
It is also apparent that the plaintiff has a business selling bound copies of court rules. When asked about this, he said that this business had only produced $8 of income in the last nine months.
It may be that each deputy prothonotary who has made an order in favour of the plaintiff knows about these companies and is more fully conversant with the plaintiff’s financial affairs than I am on the material presently before me. However, as I said in argument, the material put before me from time to time has led me to be unable to form any view one way or the other as to the true position of the plaintiff’s financial affairs. Therefore, notwithstanding whatever might be the relevance of the plaintiff’s alleged impecuniosity, I was (as I said in argument) not satisfied that the plaintiff had established before me anything in respect of his financial affairs which might have impacted on the question of whether or not he should be ordered to pay the costs of his unsuccessful appeal. Certainly, the plaintiff’s own description of himself from time to time as a professional accountant member of CPA Australia, and as an Australian lawyer and officer of the Supreme Court of Victoria did not assist me in concluding that he might, more likely than not, be impecunious.
Fixing the costs of this appeal will obviate the need for a taxation. Further, fixing the costs will save time and expense being incurred by the parties. However, care obviously needs to be taken to ensure that the amount fixed is not in excess of the amount that would be arrived at by a more detailed taxation.[9]
[9]Cf Harrison v Schipp (2002) 54 NSWLR 738, 743 [22]; WM Wrigley JR Company v Cadbury-Schweppes Pty Ltd [2006] FCA 1186 [9]; and Thomas v Powercor (No 9) [2012] VSC 207.
In this case, I am well satisfied that the amount of $2,500 sought by the defendants is fair and reasonable to the plaintiff. It is less than the defendants would receive on taxation, even if one disregarded in their entirety the fees of, and associated with, briefing senior counsel. The material filed by the plaintiff on this appeal was voluminous. For example, the plaintiff’s second affidavit filed in support of the appeal, together with its exhibits, ran to some 903 pages.[10]
[10]See the plaintiff’s affidavit affirmed 1 May 2013. See also the plaintiff’s affidavit affirmed 29 April 2013 which, together with its exhibits, ran to some 251 pages.
The defendants sought an order that the plaintiff pay the amount of $2,500 forthwith. Rule 63.20.1 provides:
If an order for costs is made on an interlocutory application or hearing, the party in whose favour the order is made shall not tax those costs until the proceeding in which the order is made is completed, unless the court orders that the costs be taxed immediately.
The effect of r 63.20.1 is that where an order for costs to be taxed is made in an ordinary interlocutory application, the party against whom the order is made will not have to pay those costs until the proceeding is completed. While it is appropriate (in order to save time and additional expense) to fix the costs of the plaintiff’s appeal, I see no reason at this stage to deprive him of the benefit of the ordinary position that the costs of an interlocutory application should not be paid until the conclusion of the proceeding. For this reason, on 6 May 2013, I ordered the costs order to be stayed.
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