Barrow v National Crime Authority
[2001] QSC 138
•29 May 2001
SUPREME COURT OF QUEENSLAND
CITATION: Barrow & Ors v. National Crime Authority & Anor [2001] QSC 138 PARTIES: ALLAN BARROW
(plaintiff)
WEI YAN YU
(second plaintiff)
SCOTGEM PTY LTD
(ACN 011 057 337)
(third plaintiff)
SINO PACIFIC AUSTRALIA PTY LTD
(ACN 011 046 683)
(fourth plaintiff)
BONDREEF PTY LTD
(ACN 068 172 412)
(fifth plaintiff)
GRAY AND MALONEY (a firm)
(sixth plaintiff)
KENT HACKER
(seventh plaintiff)
v
NATIONAL CRIME AUTHORITY
(first defendant)
BRIAN DOBRICH
(second defendant)FILE NO/S: SC No 979 of 1995 DIVISION: Trial Division at Brisbane PROCEEDING: Civil Trial ORIGINATING COURT: Brisbane DELIVERED ON: 29 May 2001 DELIVERED AT: Brisbane HEARING DATE: Written submissions JUDGE: White J ORDER: Robertson O’Gorman pay the costs of all parties incurred as a consequence of the adjournment to 3 May of the hearing about costs to be assessed on the standard basis CATCHWORDS:
PROCEDURE - COSTS - JURISDICTION - PERSONS NOT PARTIES TO PROCEEDINGS- non-party solicitors seeking adjournment to consider allegations of impropriety in non-client’s affidavit - costs of adjournment. COUNSEL: Ms E Wilson (on 30 April 2001) for first to fifth and seventh plaintiffs
Mr P Janssen (solicitor) for sixth plaintiff
Mr G Robinson was present in court on 3 May and made written submissions after judgment on 11 May 2001 on behalf of Robertson O’GormanSOLICITORS: Robertson O’Gorman for first to fifth and seventh plaintiffs on 30 April 2001
Nicholsons for sixth plaintiff
As is mentioned in the primary judgment in this proceeding (delivered 11 May 2001), the matter was called for trial on 30 April 2001. Written orders with which the parties agreed were handed up including that the plaintiffs pay the defendants’ costs of the proceeding and other associated costs to be assessed on an indemnity basis. Mr P Janssen, solicitor, who appeared on behalf of the sixth plaintiff wished to make submissions as to why no order as to costs ought to be made against that party or, if made, that such costs should be assessed only on the standard basis. He proposed to rely on two affidavits already filed, that of Ms Peta Stillgoe filed on 16 March 2000 and that of Mr Stephen Gray filed on 26 April 2001. Mr Janssen was in a position to make his submissions and gave a brief overview of the orders which he would be seeking about costs. At p 6 of the transcript on 30 April Mr Janssen said
“… we would be prepared, in the alternative [to no order as to costs] to - there is a number of alternative propositions I could put to your Honour in your exercise of discretion as to costs in this matter, but primarily we would be prepared to bear our own costs so long as we don’t have to pay anyone else’s, but if there was an order for costs we would want to be indemnified by the other plaintiffs only in respect to Mr Gray, given the fact that he did it bound by the duty as officer of the Court and as duty to his client as a solicitor to lend his name to the proceedings, that any order for costs be on a party and party basis if there were to be any orders against the sixth plaintiff. In all the circumstances we would ask no order be made…”
Ms E Wilson of counsel appeared instructed by Robertson O’Gorman for the first to fifth and seventh plaintiffs on 30 April. She informed the court that the firm Robertson O’Gorman were concerned about certain allegations in Mr Gray’s affidavit about the firm and that Robertson O’Gorman wanted to respond or be given an opportunity to respond and it was not in a position to do so that day. She said that she had discussed this with Mr D Boddice of counsel who appeared for the defendants but not, it seems, with Mr Janssen. Mr Boddice had no objection to an adjournment to permit Robertson O’Gorman to respond.
Mr Janssen stated that the material had been served “well in advance” although, in fact, the affidavit of Mr Gray had only been served on Robertson O’Gorman as solicitors for the first to fifth and seventh plaintiffs on the afternoon of Friday, 27 April.
It was understood by those who sought it that there may be costs consequences in granting the adjournment and the costs were reserved.
On 3 May the date of the adjourned hearing, Mr G Robinson of counsel indicated to the court that he would seek leave to appear for Robertson O’Gorman “should it become necessary to do so”. He eventually concluded that it did not. There was no separate appearance on that day for the first to fifth and seventh plaintiffs.
When judgment was delivered on 11 May the question of the costs of the hearing on 3 May was raised. I asked Mr N Bailey, a solicitor with Robertson O’Gorman who appeared, whether for the first to fifth and seventh plaintiffs or for the firm or for both was not made clear, why Robertson O’Gorman ought not be ordered to pay the wasted costs incurred on 3 May. Mr Bailey was not in a position to make any submissions and wished to brief Mr Robinson. He was given leave to make submissions in writing with Mr Janssen to reply as advised.
It was only then that my attention was drawn to the affidavit of Mr Bailey sworn and filed on 2 May 2001. It had not been read on 3 May. The affidavit states that it was filed on behalf of the first to fifth and seventh plaintiffs in accordance with the requirements of r 431 of the UCPR. But it was, as its contents make clear, filed on behalf of the firm Robertson O’Gorman and related only to the need for an adjournment so that the firm could examine its files “relevant to the issues raised by Mr Gray in his Affidavit”.
Mr Robinson in his written submissions contends that there was no time for Robertson O’Gorman to be given carefully considered advice on the matters arising out of Mr Gray’s affidavit which had the potential [to] “seriously and adversely affect the firm”.
What particularly caused Robertson O’Gorman concern were allegations made by Mr Gray that he did not “specifically authorise any pleadings following the filing of the Writ” (para 9) and “Gray & Maloney did not instruct Messrs. Robertson O’Gorman to make the specific allegations contained in the Statement of Claim or in the Reply, and that I and my firm did not make, do not make, and have never made, the allegations against the NCA or its officers [the defendants] to which Mr Hansen of the Crown takes exception” (para 19).
There are two things to be said about the position taken by Robertson O’Gorman in seeking an adjournment to answer these (and other) allegations which it perceived as adverse to it in Mr Gray’s affidavit. Mr Janssen in his brief submissions on 30 April which I have set out above sought no orders against Robertson O’Gorman. Further, no notice was given to Robertson O’Gorman that the sixth plaintiff would seek to have the court make findings against Robertson O’Gorman when considering the matter of costs. Without such notice, Mr Gray’s affidavit should have been read by Robertson O”Gorman as demonstrating why no adverse costs orders should be made in favour of the defendants against the sixth plaintiff. The material clearly shows that the sixth plaintiff had, for a number of years, sought to avoid any costs consequences if it withdrew from the proceeding. Robertson O’Gorman had been involved as solicitors for Mr Barrow and his companies who constituted the first to fifth plaintiffs together with his de facto wife virtually since the time that the criminal charges were laid against Mr Barrow and orders were sought against the companies in early 1995. It is true that Robertson O’Gorman sought to withdraw as solicitors on the record in early 1997 and, indeed did so. At some unspecified time the firm again acted for all the plaintiffs except the sixth plaintiff including on 30 April 2001 which was the first day of trial. It should have been apparent to Robertson O’Gorman that Mr Gray was seeking to distance the sixth plaintiff from the allegations of impropriety made against the defendants.
Mr Robinson makes no submission that a court may not make an order for costs against a non party (in the strict sense) to a proceeding in an appropriate case. Rule 679 in Chapter 17 of the UCPR which is concerned with costs defines “party” to include “a person not a party to a proceeding by or to whom assessed costs are payable” See also Knight v FP Special Assets Ltd (1992) 174 CLR 178.
Since no findings of fact nor orders were sought against Robertson O’Gorman in Mr Gray’s affidavit nor by Mr Janssen on 30 April there was no need for an adjournment to be sought to protect any perceived interests of Robertson O’Gorman. It must have been plain to those experienced solicitors that any differences between Mr Gray and the firm constituted or would constitute a different proceeding were it to prove impossible to resolve those differences.
The defendants and the sixth plaintiff were caused to incur unnecessary costs in returning on 3 May at the request of Robertson O’Gorman. Accordingly, the order is that Robertson O’Gorman pay the costs of all parties incurred as a consequence of the adjournment to 3 May of the hearing about costs to be assessed on the standard basis.
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