Bhagat v Cowley Hearne Solicitors

[2001] HCATrans 470

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S203 of 1999

B e t w e e n -

HARI BHAGAT

Applicant

and

COWLEY HEARNE SOLICITORS

First Respondent

GRANT SMITH
TYNDALL FUNDS MANAGEMENT (NSW) LIMITED
TYNDALL FUNDS MANAGEMENT AUSTRALIA LIMITED
MICHAEL WILKINS
SIR RON BRIERLEY
GARY WEISS

Second to Seventh Respondents

Application to Re-Open

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 23 NOVEMBER 2001, AT 2.00 PM

Copyright in the High Court of Australia

MR H. BHAGAT appeared in person.

MR I.R. PIKE:   May it please the Court, I appear for the second to seventh respondents.  (instructed by Mallesons Stephen Jaques)

KIRBY J:   The Deputy Registrar has given us a certificate which informs us that the solicitor for the first respondent, Cowley Hearne Solicitors, has indicated that the first respondent has reached a settlement agreement with the applicant and will take no further steps in the proceedings.

MR BHAGAT:   That is right, your Honour.

KIRBY J:   Yes, very well.

MR BHAGAT:   Your Honour, on account of the settlement, the notice of motion should be amended – the notice of motion.

KIRBY J:   Yes.  You are asking to amend the notice of motion.  What is the ‑ ‑ ‑

MR BHAGAT:   Because of the settlement with the first respondent, the notice of motion needs to be amended, so could you please ‑ ‑ ‑

KIRBY J:   Yes.  What is the amendment you seek?

MR BHAGAT:   Your Honour, can you delete “Mr R.D. Wilson” in paragraph 1 of the notice of motion?

KIRBY J:   Yes.

MR BHAGAT:   And paragraph 2 of notice of motion, “Mr Wilson”.  Order No 3 stands.  Order No 4 stands.  Order No 5 is otiose.  Order No 6 is otiose because of the settlement.

KIRBY J:   I see.  So order number ‑ ‑ ‑

MR BHAGAT:   No 5 and 6.

KIRBY J:   They are withdrawn, are they?

MR BHAGAT:   They are otiose.

KIRBY J:   They are still pressed?

MR BHAGAT:   They are not pressed.  They are otiose.

CALLINAN J:   Otiose.

KIRBY J:   Otiose, I see.  Very well.

MR BHAGAT:   They are neither withdrawn, but they are otiose.

KIRBY J:   You are therefore in substance asking that we vacate the order made by this Court on 17 October 2000?

MR BHAGAT:   That is right.

KIRBY J:   But what would be the point of doing that if you are not pressing forward with an application for special leave to appeal?  Why would we bother?

MR BHAGAT:   Your Honour, exactly – I will tell you exactly why you should bother.  The fact is that on 8 September and on 17 October, when this matter was heard before the High Court, counsel for the second and seventh respondents misled the Court and ‑ ‑ ‑

KIRBY J:   I know all that.  I have read the material.  But why would we reopen a special leave refusal if you were not pressing an application for special leave to be reopened and heard further?

MR BHAGAT:   Because I am quite happy for the proceedings to be dismissed, but the costs should be awarded to me because counsel on 8 September and 17 October misled the Court.

KIRBY J:   But we would only order costs in your favour if you succeeded.

MR BHAGAT:   Not necessarily, your Honour.  That is in the interests of justice, if they have misled the Court, they must be ‑ ‑ ‑

KIRBY J:   So this application is really just about costs?

MR BHAGAT:   That is right.

KIRBY J:   That is something which would not normally engage the attention of the High Court, least of all to reopen an order that has been made by two Justices of the Court.

MR BHAGAT:   That is nothing to do with the orders made by the two Justices.  They misled the High Court on 8 September and 17 October.

KIRBY J:   So you say.

MR BHAGAT:   This Court is the highest court in the land and a clear signal should be sent to solicitors and counsel who mislead the High Court of Australia.  That is why I am seeking these costs.

KIRBY J:   Yes.

MR BHAGAT:   And I can prove to the Court that they mislead the High Court.

KIRBY J:   Now, you are reading, in support of your application, a motion, an affidavit sworn 13 December 2000, is that correct?

MR BHAGAT:   That is right, your Honour.  That is right.

KIRBY J:   Is that the only affidavit you seek to read?

MR BHAGAT:   That is the only affidavit.

KIRBY J:   Yes, have you seen this affidavit, Mr Pike?

MR PIKE:   Yes, we have, your Honour.

KIRBY J:   Do you have any objection to the affidavit?

MR PIKE:   No, I do not.

KIRBY J:   Do you wish to cross-examine Mr Bhagat about the affidavit?

MR PIKE:   No, your Honour, we do not wish to.

KIRBY J:   Yes, very well, thank you.

MR BHAGAT:   Your Honour, as far as this affidavit is concerned, you may also strike out “Mr Wilson” because he represented ‑ ‑ ‑

KIRBY J:   We cannot amend the affidavit.  It is simply that you are not pressing forward ‑ ‑ ‑

MR BHAGAT:   Yes, I am not pressing forward with ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ any relief against Mr Wilson.

MR BHAGAT:   That is right, because Mr Wilson represented the first respondent.

KIRBY J:   Yes.

MR BHAGAT:   Now, your Honour, as far as Mr Pike is concerned, because he was there on 17 October, I say that Mr Pike failed to inform the Court on 17 October.  If you look at the transcript of the hearing on 17 October at page 75.

KIRBY J:   Where is that?

MR BHAGAT:   Page 75 with bundle of documents with the notice of motion.

KIRBY J:   Yes, we have that.

MR BHAGAT:   If you look at page 75, you will see what transpired on 17 October.

KIRBY J:   Yes, I did read that.

MR BHAGAT:   You will see that as far – and with regard to their duty of special candour in the case of an ex parte application, they must show the utmost fairness and good faith and see that all relevant matters, whether for or against the application, are brought to the attention of the Court.  Now, in this, your Honour, you will see that nothing had been said in this transcript that they did show the utmost fairness and good faith, since they did not bring any matters against the application to the attention of the Court.  I refer the Court to Re Cooke (1889) 5 TLR 407, Lord Justice Fry at 409.

Your Honours, by reason of my letters dated 31 August 2000, which is at page 49 of the same bundle just now – if your Honour will look at that page 49.

KIRBY J:   Yes.

MR BHAGAT:   Have you looked at page 48, pages 48 and 49?  Your Honours, this clearly indicates at paragraph 8 that I am involved in proceedings No 4626 and the solicitors for the second and seventh defendants are engaged with me in multiple proceedings and they know exactly what proceedings I am appearing and what matter.  So they were fully aware, even on 31 August, that I was appearing in proceeding No 4626 on 17 October.  But coming to that, your Honour, the next is my letter of 2 October, which is at page 71.  You will see that I have mentioned in that letter that I am appearing – at paragraph 4(c) on page 72, you will see that – I do not want to go through the whole thing, but you can see that I have mentioned that I am appearing on 17 October.

Now, the next letter which is – that is right, they knew very well that I was appearing on 17 October and at the hearing and the transcript, when the matter was set down on 17 October, none of them said that the applicant is appearing on 17 October in proceedings No 4626 and it would be unfair to list the matter on 17 October.  I mean, it was right and proper and fair to do so, but they deliberately withheld this from the High Court in order to mislead the Court and so to more or less embarrass the Court into setting a date which they knew I could not possibly attend, your Honour.  I am a litigant in person and ‑ ‑ ‑

KIRBY J:   Yes, but you were before Justice Hodgson that day.

MR BHAGAT:   That is right.

KIRBY J:   And, as I understand it, the suggestion was that you made no application to Justice Hodgson to adjourn the proceedings before his Honour for a short time to permit you to come to this Court to argue the case.  Now, Mr Bhagat, this is the highest court in Australia and I cannot believe that if you had made that application to a judge of the Supreme Court that the judge would have refused such an application.

MR BHAGAT:   Your Honour is making a prejudgment.  First of all, your Honour should realise that I am a litigant in person without legal representation.

KIRBY J:   I realise that.  I realise that.

MR BHAGAT:   May I just continue, your Honour?

KIRBY J:   You have quoted the passage in my reasons in Wentworth v Rogers, I think it was.  I am very tender to the rights of litigants in person, but I am also mindful of the busy press of duties of this Court.

MR BHAGAT:   Quite right.  I absolutely concede that this is the highest court and under no circumstances should I act in a manner which would in any way reduce the dignity of this Court.  Now, I will tell you exactly what my circumstances were, your Honour, for you to ‑ ‑ ‑

KIRBY J:   I know you were cross-examining an officer of the Commission.

MR BHAGAT:   Not quite that.  The fact is this, that there was a five‑day hearing.  There was a mound of affidavits.  It is impossible for a litigant in person who is arguing one case to suddenly switch to another case.  It is impossible, for me particularly.  It may be possible for you ‑ ‑ ‑

KIRBY J:   Did you ask Justice Hodgson for a short adjournment or a long adjournment or any adjournment?

MR BHAGAT:   No, I did not ask.  Why I did not ask, because I would be prejudiced in that matter.  I would not be able to argue that matter in 4626 if I had sought an adjournment.  This would have interrupted my matter.  I would not have been able to, first of all, argue the matter on 17 or 18 October – 17 October, and then at the same time, then rush to the High Court.  I would be in a totally confused state, your Honour.  I would not know whether I was coming or going.  I mean ‑ ‑ ‑

KIRBY J:   You did not ask for an adjournment for the day?

MR BHAGAT:   I could not ‑ ‑ ‑

KIRBY J:   You did not ask for an adjournment for an hour, for a day or at all?

MR BHAGAT:   I would be prejudiced if I asked for an adjournment in the proceedings 4626.  There was no way I could ask for an adjournment.  If I asked for an adjournment, I would be trying to walk on two cases at the same time.  It is impossible for me to do that, and there was no way – I would be totally prejudiced in proceedings No 4626.  It is not that I did not – the fact was, your Honour, you are trying to focus the blame on me.  Why not look at the fact on 17 October?

KIRBY J:   I am not trying to focus the blame on you at all.  I am trying to deal fairly with your application.

MR BHAGAT:   Yes.

KIRBY J:   But the position is that you have had a number of cases in this Court, where the case was adjourned and the Court made it clear that it intended to proceed with the case.  We have to be fair, not only to you, but to the other parties, and you were aware that the Court, being the highest court in the country, was minded to deal with your case.  It had already adjourned the matter once; it made it clear that it would be intending to deal with the matter when it was returned on the second occasion, and yet you did not even ask Justice Hodgson for an adjournment, even for a day, in order to allow you to come here.

MR BHAGAT:   Your Honour, I have told you before that there was no way I could do it physically.  I would be prejudiced in my proceedings in No 4626.  It is all very well for you to say.  You are professionally qualified.  I am not professionally qualified.  It is not possible for a man who is not professionally qualified who is arguing one case to suddenly switch to argue another matter.  It is just not possible because I would be totally confused.

The other point is, your Honour, you must say that on the date that they adjourned the case on 8 September, at that time, they knew that I could not appear on 17 October.  So these people misled the Court into – the Court itself on 8 September made a date which I could not possibly appear on and the fact was that the respondents knew about this and then they kept quiet deliberately to mislead the Court so that I would not be able to appear on the 17th and I would be embarrassed and prejudiced.

Your Honour, I would like to also show to you that Mr Preston also deliberately misled the Court.  So if they have misled the Court, they must be penalised for it, and the fact that it is the highest court in the land, counsel and solicitors should get a clear signal that they cannot mislead the High Court of Australia.  So the other point, your Honour, I wish to say is this, that Mr Preston on 8 September knew that it was impossible for me to appear as litigant in person.  Before that, I would say even Mr Pike, as a litigant in person without legal representation ‑ ‑ ‑

CALLINAN J:   What were they supposed to do, Mr Bhagat, that they did not do?

MR BHAGAT:   Exactly.

CALLINAN J:   No, you tell me, what were they supposed to do?

MR BHAGAT:   They were supposed to inform the Court on 8 September that, “Your Honours, please do not list the matter on 17 October, list it on some other day”.

CALLINAN J:   They had no obligation to do that at all.

MR BHAGAT:   They had an obligation, your Honour.

CALLINAN J:   Just listen to me for a moment.  You should not come into this Court and say unjustifiable things about people.  Now, what you are saying is unjustifiable and you should not make those ‑ ‑ ‑

MR BHAGAT:   What is unjustifiable?  What is unjustifiable?

CALLINAN J:   Please be quiet.

MR BHAGAT:   What is unjustifiable?

CALLINAN J:   To make allegations that these people showed a want of candour which they were obliged to show to the Court.

MR BHAGAT:   Exactly.  Now, I will tell you why they have not shown due candour and they are obliged to show to the Court.

CALLINAN J:   That is rubbish, Mr Bhagat.

MR BHAGAT:   I beg your pardon, that is not rubbish.  Did you read Re Cooke ‑ ‑ ‑

CALLINAN J:   That is rubbish.  That is rubbish and you should not be saying it loosely about people in the way in which you are.

MR BHAGAT:   Your Honour is biased against me.  You are already – the fact is this, you have not even heard my case and you are already prejudging it.  Now, I will tell you exactly why Mr Preston misled the Court.  Now, first of all, Mr Preston misled the Court in responding to Mr Justice Gleeson’s question.  Now, you look at page 58, your Honour.

KIRBY J:   Yes.

MR BHAGAT:   Page 58, responding to Mr Justice Gleeson’s question:

that the consequence of adjourning it until March or April of next year would be to achieve a large part of the practical effect that is sought to be achieved by this special leave application ‑

in stating that – now, Mr Preston stated that what was, in effect, being sought:

was an extension of time within which to appeal for, in a sense, an unlimited period of time whilst he was able to litigate other proceedings which he has commenced.  That was one factor they took into account as to why it was inappropriate to extend time to appeal.

Now, Mr Preston failed to disclose, in breach of his duty of special candour in an ex parte application, in order to mislead the Court – your Honour, kindly note that the “extension of time within which to appeal” did not apply to the second and seventh respondents, as the second and seventh respondents were not a party to the hearing before Master Harrison.  Now, if you look, your Honours, in the supplementary application, page 304.

KIRBY J:   Yes.

MR BHAGAT:   If you look at page 304, now you will see that – sorry, page 305 – no, first of all, the motion was in 304 the motion of the first respondent.  Now, in page 305 you will see at line 55 the Master says:

As far as I can see you do not have a motion on to have your part of the application struck out.

This is in respect of the second and seventh respondents.  Now, if you look again at page 311, line 55, it says:

you are not a party to these proceedings.

So, again, on page 312, I have mentioned that there are these second and seventh respondents at line 10, I am not a party to these proceedings.

KIRBY J:   I notice that their then counsel, Mr Perram, said that you had been engaging “in a guerilla war with” his “instructing solicitor” and ‑ ‑ ‑

MR BHAGAT:   Where is this, your Honour?

KIRBY J:   That is on page 305, and 312 he says that:

Very serious allegations have been raised of contempt against solicitors . . . All sorts of vexatious matters and scandalous matters.

MR BHAGAT:   Well, that is fine, they may say that.  What I am trying to raise – point out to you here in this transcript is that this notice of motion only concerned the first respondent, not the second and seventh respondents.  So the extension of time for appeal did not apply to the second and seventh respondents.  So Mr Preston had no business to say that as far as his clients were concerned, it was a ‑ ‑ ‑

KIRBY J:   I realise that, Mr Bhagat, but you have got yourself entwined in litigation which has really gone on and on, but ultimately, it is all about purely procedural matters of discretionary decisions that are made by judges throughout this nation every day in the thousands, if not tens of thousands, and the High Court of Australia cannot be involved in those matters.

MR BHAGAT:   No, I am only asking the High Court of Australia to be aware of the people who mislead the Court when they appear before it.

KIRBY J:   Well, you say “mislead”, but, as Justice Callinan says, you have got to be careful when you use those assertions because it can very damaging.  It goes onto the transcript.  It goes on the Internet and people who cannot really defend themselves have these serious things said about them.  So you have got to be very careful in saying these ‑ ‑ ‑

MR BHAGAT:   Of course, your Honour, I am very careful ‑ ‑ ‑

CALLINAN J:   So far you have demonstrated no basis at all for saying any of them.

MR BHAGAT:   I beg your pardon, your Honour.

CALLINAN J:   Neither in your material here, nor in what you are telling the Court.

MR BHAGAT:   You are already biased judge.

CALLINAN J:   Do not dare – Mr Bhagat ‑ ‑ ‑

MR BHAGAT:   It is known that your Honour supports people in Queensland and that is why you are here in this Court and you are making ‑ ‑ ‑

KIRBY J:   Just a moment, Mr Bhagat.

CALLINAN J:   Mr Bhagat, if you continue, I will have to warn you to stop doing it.

MR BHAGAT:   Well, I am stopping doing it.

CALLINAN J:   Thank you.

MR BHAGAT:   Now, the only thing I am saying, your Honour, is that you are prejudging me and the fact is that you are not even prepared to look at the fact that Mr Preston misled the Court on 8 September.

CALLINAN J:   I have read what you have drawn my attention to and it does not support what you are saying.

MR BHAGAT:   How does it not support?  Give me your reasons, your Honour.

CALLINAN J:   Do not ask me questions, I am telling you I have read what you have indicated to me ‑ ‑ ‑

MR BHAGAT:   You may have read it, but that ‑ ‑ ‑

CALLINAN J:   ‑ ‑ ‑ and it does not support what you are saying.

MR BHAGAT:   The fact is, your Honour, this is the highest court, this is the last point of stop, as far as I am concerned, and I suggest to your Honour that you should at least give me a fair go.

KIRBY J:   Well, we are giving you a fair go. 

MR BHAGAT:   You are not giving me a fair go.

KIRBY J:   You make the point that you want to make.

MR BHAGAT:   Okay, your Honour.  So the point is this, what I am trying to make is that Mr Preston misled the Court in breach of his duty of special candour since the extension of time in which to appeal did not apply to the second and seventh respondents, as the second and seventh respondents were not a party to the hearing before Master Harrison on 28 May.

KIRBY J:   Now, we have read all the background material and I notice the red light is on.  Is there anything important that you have not said that you want to say in, say, two minutes?

MR BHAGAT:   Well, that is all, your Honour.  As far as I am concerned, I am quite happy for these proceedings to be dismissed, but the fact is that – because they are otiose now because the first respondent has settled and I did not settle on these proceedings with the opposite side because I wanted to bring to the attention of this Court that counsel have misled the High Court of Australia.  Thank you, your Honours.

KIRBY J:   Yes, the Court does not need your assistance, Mr Pike.

This application has a very long history.  On one view, its initial genesis may be traced back to litigation as long ago as 1989.  In 1997 the applicant sued seven defendants in the Supreme Court of New South Wales.  In that proceeding he sought, inter alia, an order that a judgment of Justice Studdert in 1996 in defamation proceedings be set aside on the grounds of fraud. 

In 1998 a Master of the Supreme Court of New South Wales ordered that an amended statement of claim be struck out against one defendant.  Subsequently, the other defendants (the contesting respondents in these proceedings) sought to have the amended statement of claim also struck out against them.  The Master granted an extension of time for further proceedings.  The applicant failed to comply with that time limit.  The applicant appealed.  Justice Hulme in the Supreme Court refused leave to appeal.  So did the Court of Appeal of New South Wales. 

The applicant’s application for special leave to appeal to this Court came before this Court in 2000.  It was adjourned because of the illness of the applicant.  In October 2000 the application was heard by the Court constituted by Justices McHugh and Callinan.  It was then dismissed in the absence of the applicant.  He was involved in litigation before another judge of the Supreme Court of New South Wales, Justice Hodgson.

The applicant does not contest today that he failed to ask Justice Hodgson to adjourn the proceedings before him to permit him to appear in this Court.  He simply did not appear in this Court.  He sought yet another adjournment.  That request was refused by this Court as then constituted.  Now the applicant seeks to reopen that adverse decision and the dismissal which followed.  However, today he made it clear that the only purpose of his motion to reopen the proceedings was so that this Court might make a different order, namely one dismissing the application but with costs in his favour.

The applicant confirmed that, so far as he was concerned, the real point of his motion was to have a different disposition of costs of the proceedings which would inferentially be substantial.  I explained to the applicant that this Court, unless perhaps by consent of parties, would not ordinarily take the serious step of reopening its earlier order simply to provide more beneficially in favour of one party in respect of costs.

Before this Court today the applicant has made various assertions of fraud and breach of professional duty against many people.  We see no evidence to support any of these assertions.  The time has come to give these proceedings their quietus.  The relief sought by the applicant is refused.  The applicant must bear the costs.

MR PIKE:   Might I just put one further application?  It is the second to seventh respondents’ application that those costs be on an indemnity basis.  We make that application, fully appreciating the recent remarks of this Court as to the exceptional nature.  There are only two matters I wish to put to you.

KIRBY J:   Yes.

MR PIKE:   One is the nature of the application and its futility.  The second point is your Honours should have before you an affidavit of Ms Noonan, my instructing solicitor.

KIRBY J:   Where is that?

MR PIKE:   It was filed on 14 November, your Honours.  It forms a separate stapled document.  If your Honours go to ‑ ‑ ‑

KIRBY J:   Is this the affidavit of Tania Maree Noonan, sworn 13 November 2000?

MR PIKE:   It is, your Honour.

KIRBY J:   Yes, I have seen that.  Where ‑ ‑ ‑

MR PIKE:   At page 4 of that.

KIRBY J:   Have you seen this affidavit, Mr Bhagat?

MR BHAGAT:   Yes, your Honour, but I object to this affidavit because the point is this has been filed not with the Registrar’s permission, I do not know – because every time I file a document, I am told by the Registrar, “You must use it in the applicant’s book of supplementary material or applicant’s book.  You can’t just file affidavits”.

KIRBY J:   That may be so, but we now have, as it were, a motion by counsel seeking an enlargement of an order for costs that would normally follow the order of the Court and he seeks on that motion to read the affidavit of Ms Noonan.

MR BHAGAT:   I object to that motion being moved in this Court because I have had no time to look at that motion and I am a litigant in person.  So they should seek another date for that.

KIRBY J:   The note I have on my copy of the document is that it was filed on 14 November, which is a week ago, more than a week ago.

MR BHAGAT:   What is it, a notice of motion?

KIRBY J:   No, the affidavit of Tania Maree Noonan.

MR BHAGAT:   Yes, that is right, filed on 14 November.

KIRBY J:   Did you have the copy of that affidavit on 14 November or soon afterwards?

MR BHAGAT:   Yes, I got that, I got that and I ignored it because I was informed by the Registrar that all the evidence must be in the applicant’s book or applicant’s supplementary material.  It cannot just be filed ad lib, otherwise it would just – people would go helter skelter, and the documents must be filed in the proper form.

KIRBY J:   Yes.  It was filed.  It has the Court’s stamp.  It was, perhaps, out of time for consideration in respect of your motion, but it is now tendered in support of the application for an enlargement of the cost order.  The stamp shows that it was filed on 14 November.  You accepted you received it on or soon after that day.

MR BHAGAT:   Yes.

KIRBY J:   So you have had it for more than a week ‑ ‑ ‑

MR BHAGAT:   That is right

KIRBY J:   ‑ ‑ ‑ and I do think there is any prejudice to you in our looking at it.  It is a very exceptional case in which the Court would ever make an order for indemnity costs and that has been acknowledged by Mr Pike, but I think he ought to have the advantage of having whatever evidence he wants to put before us on that motion and, therefore, for my own part, I would allow him to read it.  If you can show any particular prejudice, the Court would protect you.  Do you have a copy of the affidavit with you now?

MR BHAGAT:   I have, your Honour.  What I would say is that, first of all, it is not moved in support of a notice of motion.

KIRBY J:   No, it is an oral motion to enlarge the order for costs which is the type of motion that is made quite frequently in the Court, so that we will hear the motion, we will read the affidavit and, if you wish to, you can say what you want to say about it and we will consider any submission that you have as to any prejudice that you are facing by reason of this late application.

MR BHAGAT:   Fine, your Honour.  What I will do is then I will ‑ ‑ ‑

KIRBY J:   Just sit down for a moment, Mr Bhagat, and we will hear what Mr Pike has to say.

MR PIKE:   All I wish to ‑ ‑ ‑

CALLINAN J:   What is the point, Mr Pike, that the affidavit makes?

MR PIKE:   The simple point is there is a letter that is at page 4, annexure A.

KIRBY J:   Page 4.

MR PIKE:   Page 4, if one looks at the page numbering in the top centre of the page, your Honour.  It is the first page after the execution of the affidavit.  It is an affidavit from my instructing solicitors to Mr Bhagat of 19 July 2001.

KIRBY J:   Yes.  My copy of that affidavit says – it is cut off at the bottom.  It just says ‑ ‑ ‑

MR PIKE:   Has your Honour looked at the page before that?  I think your Honour may have what is the facsimile transmission confirmation.

KIRBY J:   Yes, I do have that, yes.

MR PIKE:   Sorry, if your Honour goes to the page before that, the simple point is this is a letter inviting Mr Bhagat to withdraw the motion and pointing out to Mr Bhagat, in the event that he did not withdraw the motion, we reserved our right to rely upon it in support of an application for costs on an indemnity basis. 

KIRBY J:   Yes.

MR PIKE:   The response is two pages on, page 6, the offer is not accepted.

CALLINAN J:   What is the date of the response, Mr Pike?

MR PIKE:   The date of the response is 20 July, you will see on the left hand at about point 2 of the page.  Does your Honour have the response which is two pages on from the initial letter?

CALLINAN J:   I have the 20 July.

MR PIKE:   Yes.  The “Attn:  Robyn Ann Chalmers, Dear Madam” and the simple point is, your Honour, that that was not accepted.  We are here today purely because the offer of a walk‑away was rejected.  When one has regard to the nature of the application and its futility, in my submission, this is one of those exceptional cases where the High Court ought to order costs on an indemnity basis.

KIRBY J:   Yes.

MR PIKE:   That is all we would wish to put before the Court.

KIRBY J:   Yes.  What do you say about this, Mr Bhagat?

MR BHAGAT:   Yes, your Honour, I would like to say this, that as far as my acceptance with the – by the first respondent was, I settled with the proceedings because the first respondent agreed to settle all proceedings with me.  Now, you will see this letter.  I have said that I – paragraph 4, if you read paragraph 4 of the letter, I have said that I am prepared to settle these proceedings, providing they settle all proceedings, the same way that I settled with the others.  So I am not saying that I was not prepared to settle these proceedings.

KIRBY J:   No, no, but they say that they made an offer which they assert was a very fair one.  They say:

We are instructed therefore to invite you to discontinue your motion on the basis that our clients are prepared to bear their own costs incurred to date in respect of it.

So that that was, in a sense, quite a generous offer and you did not take it up, but instead pressed on with the application to the Court.

MR BHAGAT:   Have you read my letter of 20 July?

KIRBY J:   Yes, I have.

MR BHAGAT:   Have you read paragraph 4?

KIRBY J:   Yes, you wanted all costs ‑ ‑ ‑

MR BHAGAT:   Exactly, I wanted all, including this.

KIRBY J:   Well, you took your chances and you have lost.

MR BHAGAT:   Yes, but, your Honour ‑ ‑ ‑

KIRBY J:   And they say, “You have put us to the cost and expense and worry of having to come along to the High Court, you have taken up the time of the Court, and the only real sanction against that is that you should have to pay not just the standard costs, but all of the costs that have been legitimately incurred in defending ourselves”.

MR BHAGAT:   Your Honour, is your Honour’s name Justice Kirby?

KIRBY J:   Yes.

MR BHAGAT:   Then you have given a judgment in Wentworth v Rogers.

KIRBY J:   Yes, I know that judgment well.

MR BHAGAT:   Particularly on indemnity costs.

KIRBY J:   Yes.

MR BHAGAT:   And the fact is this, I have not been delinquent.  I have done the best I can.  I have not tried to in any way mislead the Court.  I believed truly that I had a case against the respondents, that they had misled the Court.  It was not that I have tried – I have not been guilty of any misconduct.  So whatever I have done, I have done genuinely in good faith.

KIRBY J:   But the suggestion is that they made what, in my experience, is quite an unusual and generous offer simply to bear their own costs if you discontinued the matter and, instead, you pressed on.

MR BHAGAT:   Well, I pressed on, but I asked them to discontinue all proceedings, that is all.  I mean, I was quite prepared to save costs in every matter, not only in this.  The other reason is that, your Honour, I said in case they did not accept it, then the fact was that I certainly had, in my mind, a genuine claim that they had misled the High Court of Australia.  Now ‑ ‑ ‑

KIRBY J:   Yes, we have been through that and the Court has decided against you there ‑ ‑ ‑

MR BHAGAT:   Exactly, but the point, just ‑ ‑ ‑

KIRBY J:   ‑ ‑ ‑ so we are only now dealing with the level of the costs that should be made against you.

MR BHAGAT:   Yes, the fact is that the reason why I pressed on was because I expected the Court would rule in my favour that they had misled the Court.

KIRBY J:   Yes.

MR BHAGAT:   It was a genuine belief.  It was not that I had acted with misconduct in not accepting their offer.  The fact was that Mr Preston and Mr Pike did not act with special candour.  Now the Court may not accept that plea, but I made it in a genuine manner.  I did not do it deliberately to try and make them incur larger costs and, so, consistent with your Honour’s judgment in Wentworth v Rogers.

KIRBY J:   Yes, thank you.  Anything in reply, Mr Pike?

MR PIKE:   Just very briefly.

KIRBY J:   What is involved in the difference between party and party costs and indemnity costs?

MR PIKE:   In this jurisdiction, there is a little amount, but not as much as I think in other jurisdictions, your Honour.  I cannot assist you in terms of a precise quantum and the rule nowadays is that with the new assessment procedure, the practice is generally that more gets allowed than previously did under the old taxation ‑ ‑ ‑

KIRBY J:   Maybe your solicitor who – and solicitors generally know more about these practical matters than counsel.

MR PIKE:   The note says 30 per cent, your Honour, so in my instructing solicitor’s experience, the difference between the party/party and indemnity costs is about 30 per cent.

KIRBY J:   Yes.

MR PIKE:   All I would wish to say is that whether genuinely believed or not, if the application was hopeless as an objective matter, that is the relevant determinant for your Honours.  That is all I would wish to say.

KIRBY J:   Yes, thank you.

This Court has just dismissed a motion brought by Mr Bhagat for the reopening of orders of the Court made on 17 October 2000 refusing a request for adjournment of an application for special leave and dismissing that application.  The Court dismissed that motion and it ordered that Mr Bhagat pay the costs.  That order would ordinarily carry the party and party costs of the contesting respondents.  Immediately that order was announced counsel for the second to seventh respondents moved the Court to enlarge the order of costs to provide an order for costs on an indemnity basis.

In support of that motion counsel read an affidavit of his solicitor, Ms Tania Maree Noonan.  Mr Bhagat objected to the reading of the affidavit.  However, the file note showed that the affidavit was filed on 14 November 2001.  Mr Bhagat acknowledged that he had received the affidavit at or about that time.  Accordingly, he has had sufficient time to consider the contents of the affidavit.  The Court therefore received the affidavit in support of the motion for costs.  In the event, there was no real dispute about the relevant portions of the affidavit.  They represented no more than an exchange of correspondence between the solicitors for the contesting respondents and Mr Bhagat.

In a letter of 19 July 2001 the solicitors for the respondents wrote to Mr Bhagat:

We are instructed . . . to invite you to discontinue your motion on the basis that our clients are prepared to bear their own costs incurred to date in respect of it.

In the event that you elect to continue with your motion, we reserve our clients’ rights to rely on this letter in support of an application for their costs of that motion on an indemnity basis, and generally.

In response to that letter, as annexed to the affidavit, is a letter from Mr Bhagat.  That letter stated:

With regard to your offer to discontinue my Motion on the basis that each side pay their own costs, I make a counter offer that all proceedings in all Courts in Australia involving your clients or related entities be dismissed with no order as to costs.

There was a huge gulf between the offer made by the solicitors for the contesting respondents and Mr Bhagat.  Unsurprisingly perhaps the respondents did not agree to the counter offer.  That was the position when the motion came before us.

It is true that the occasions for an award of costs on an indemnity basis will be rare.  They will be rare in cases where parties are legally represented and they will be rare in cases involving a litigant in person:  cf Wentworth v Rogers [No 5] (1986) 6 NSWLR 534 at 542‑543. However, this is one case, in my opinion, where such costs should be awarded. The applicant’s application was a hopeless one. It was made on voluminous material. It was presented in the face of the generous offer made by the respondents. Considerable time and expense would have been incurred by the respondents in responding to the application. Considerable time has been taken by the Court in preparing for, and dealing with, such an application supported by such voluminous documentation.

In those circumstances, the Court is of the view that the costs order should be on an indemnity basis and the Court so orders.

CALLINAN J:   I agree with one qualification.  I am of the opinion that a litigant in person should be at neither a disadvantage nor, indeed, any advantage with respect to any question whether indemnity costs or otherwise should be awarded.

KIRBY J:   The order of the Court is that the motion is refused.  The applicant must bear the costs on an indemnity basis.

AT 2.41 PM THE MATTER WAS CONCLUDED