Bugeja v Norris Somers

[2013] NSWDC 307

District Court

New South Wales

Medium Neutral Citation:	Bugeja v Norris Somers [2013] NSWDC 307
Decision date:	01 November 2013
Before:	Cogswell SC DCJ
Decision:	Dismiss the notice of motion
Catchwords:	Appeal - procedure - stay of proceedings - concurrent proceedings in two courts - not an abuse of process - relief sought significantly different - security for costs - concern about stifling opportunity to litigate - no requirement for payment.
Legislation Cited:	Legal Profession Act 2004 (NSW), s 384. Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(c), 51
Category:	Interlocutory applications
Parties:	Norris Somers (Applicant) Elizabeth Bugeja (Respondent to Application)
Representation:	Counsel: E A White (Applicant) G P George (Respondent to Application)
File Number(s):	DC 2013/00286402

Judgment

Introduction

1. A firm of solicitors acted for a woman in family law proceedings. She disputed their costs. The firm had its costs assessed by a costs assessor. The assessor determined those costs. The woman has appealed to this Court against that determination. However, the firm of solicitors has asked me to prevent her proceeding with her appeal. Alternatively, they have asked me to order her to pay money into court as security against costs that may be ordered against her of the appeal. The woman's name is Elizabeth Bugeja. The firm of solicitors is Norris Somers.

History

1. The background to the litigation has many twists and turns. A solicitor who originally practised as Norris Somers acted for Mrs Bugeja. That solicitor died. Another solicitor, at some stage it seems, took over the practice. When he sought from Mrs Bugeja the costs of her Family Court proceedings she said that she had an arrangement with the solicitor who had died. The effect of the arrangement was that she had paid the bill. This was not acceptable to the new solicitor. He took a couple of steps to remedy the situation, so far as he was concerned. He secured an order from the Family Court of Australia over an amount of $38,000 which Mrs Bugeja was owed by her husband. That $38,000 is now sitting in trust. The second thing he did was to submit what he said was his bill - his bill unpaid by Mrs Bugeja - for assessment by a costs assessor under the Legal Profession Act 2004 (NSW). But things became even more complicated.

1. Before proceeding further I should say that I have referred to a dead solicitor, a solicitor who took over the practice and a firm known as Norris Somers. There is, I understand, a live issue about the ownership of the name Norris Somers or the practice and the date when the ownership was assumed. I do not have to determine those matters and I am, in order to determine the case that has been given to me today, simply going to refer the dead solicitor and the new solicitor.

1. The new solicitor submitted his costs assessment on 31 May 2012. On 19 July 2012 his application was referred to a particular costs assessor. On 6 August 2012 Mrs Bugeja, through her solicitors, made a submission to the costs assessor. The submission was substantial and set out reasons why she should not have to pay any of the assessed costs. However, about six weeks later Mrs Bugeja decided to seek much more significant relief than simply making a submission to the costs assessor. She brought proceedings in the Supreme Court. In the Supreme Court she sought an order that the costs assessment being conducted, in respect of which she made a submission, be stayed. She sought orders about the $38,000 which was being held in trust and she sought other orders.

1. The Supreme Court summons was filed by Mrs Bugeja on 26 September 2012 and was given directions for the filing of evidence on 24 October. The new solicitor sought from the Supreme Court an order for security for his costs of the Supreme Court proceedings. He was successful and the Supreme Court ordered Mrs Bugeja to pay $12,500 into court as security for the new solicitor's costs. She did that on 6 March 2013. The order had been made on 29 January 2013. Coincidentally, the day before she paid that money into court something unexpected happened so far as Mrs Bugeja was concerned. Although she had sought an order from the Supreme Court staying the progress of the assessment, the costs assessor issued his assessment on 5 March 2013. The new solicitor had been successful and the costs assessor assessed the costs owing to him by Mrs Bugeja in an amount of over $30,000.

1. Mr G P George, who appears as counsel for Mrs Bugeja before me today, has been somewhat critical of the costs assessor in proceeding with his assessment in circumstances where there were proceedings for them to be permanently stayed. He points out the costs assessor in fact had filed a submitting appearance which provided that the costs assessor "submits the orders of the Court". That is apparent from exhibit 2. I do not accept Mr George's criticism, although on the other hand I can understand why his client may have been lulled into believing that the assessment process may not have continued once she filed proceedings and the submitting appearance was filed. I make no criticism of the assessor in filing a submitting appearance. He was submitting to the orders of the Court, but of course no order had been made. He was simply proceeding with his job appropriately and expeditiously. In hindsight it might have been more appropriate for Mrs Bugeja to have sought a temporary stay of the process of determining the costs.

1. Once the certificate was issued the new solicitor had it registered in the Local Court and in accordance with the law it became a judgment against Mrs Bugeja.

1. About a month after getting the judgment, on 9 August 2013, the Supreme Court case came on for hearing before Rothman J, on 17 September 2013. It is common ground in these proceedings that his Honour was unwilling to hear the matter, as a judgment had been entered in the Local Court based on a certificate and if he was to proceed to hear the case he might find himself issuing a conflicting judgment. His Honour declined to proceed with the hearing on that day and apparently suggested that the appropriate course was for Mrs Bugeja to challenge the certificate which had been issued by the costs assessor. Mrs Bugeja took that advice and within a week filed, in this Court, a summons seeking leave to appeal from the costs assessment. That summons will be heard, subject to orders I make today, in due course. It will be an appeal against the assessment provided for by s 384 of the Legal Profession Act.

1. At this point we return to the case which has come before me today for me to decide. A month after Mrs Bugeja filed her summons appealing from the costs assessment, the new solicitor filed a notice of motion in this Court on 23 October 2013 asking for two principal orders. The first was that Mrs Bugeja's appeal be "stayed as an abuse of process of the Court on the ground that the plaintiff has concurrent proceedings on foot in the Supreme Court". The second principal relief was that Mrs Bugeja "provide security for the defendant's costs in an amount of $25,000".

Issues before me

1. That is what I have to decide today, whether I should either stay Mrs Bugeja's appeal or make her provide security or do neither.

Counsel

1. I might add here that I have been greatly assisted by the submissions and, I might add, patience of the counsel who appeared for Mrs Bugeja, Mr G P George, and Mr E A White of counsel who appeared for the new solicitor. Both have put on evidence which I have read and written submissions, which I have read, and have guided me through the complexity of the various proceedings as well as the authorities and relevant provisions of the Uniform Civil Procedure Rules 2005 (NSW).

Staying the proceedings

1. I will deal first with Mr White's argument that I should stay the proceedings. He argues under UCPR 13.4(1)(c) that the appeal is an abuse of process of the Court because they are pursuing proceedings which are concurrent with the Supreme Court; proceedings brought by Mrs Bugeja for substantially the same causes of action.

1. I have decided not to stay the proceedings. It seems to me that Mrs Bugeja had no choice but to bring these proceedings. She had reached the stage in the Supreme Court where a judge of that Court had indicated that he was not prepared to proceed with her case there until she challenged the costs assessor's certificate. I make no comment whatsoever about that indication by Rothman J, apart from saying that I quite understand his Honour's position. The effect of it was that Mrs Bugeja had to bring these proceedings in order to pursue the relief that she ultimately sought. It must be borne in mind that her position is that she has paid all the money that she owes in respect of her Family Court proceedings and that the $38,000 held in trust should be paid to her and that the $12,500 she has paid into the Supreme Court should be paid back. That is a significant issue which needs to be determined. As presently advised she has no choice but to have that determined in this Court.

1. It is true that a similar, if not the same, issue was raised in the Supreme Court. One can understand why she took the Supreme Court proceedings and, as I said, perhaps she was lulled into complacency and assumed that the assessment would not proceed. But, as Mr George points out, the relief sought by her in the District and the Supreme Court are quite different. In this Court she is seeking to have the certificate of determination of the costs assessor set aside. In the Supreme Court she is seeking more extensive orders, which only the Supreme Court can give, including an order in respect of the $38,000 held in trust. Realistically it seems to me that the Supreme Court proceedings may well be resolved by the outcome of these proceedings so that hopefully no further costs would be incurred in the Supreme Court proceedings. Nevertheless the relief sought is significantly different.

1. To my mind, the taking of these proceedings is not an abuse of the process of this Court and it is not unreasonable for her to leave the Supreme Court proceedings on foot, pending the outcome of these proceedings.

Security for costs

1. I turn now to the application by Mr White on behalf of the new solicitor for an order that Mrs Bugeja provide security for his costs. I accept Mr White's argument that such an order does not require special circumstances in accordance with UCPR 51. It is acknowledged that Mrs Bugeja is a resident of Malta. A solicitor deposes in an affidavit to the effect (from his information and belief) that she owns property there and travels regularly back to Australia.

1. What bothers me about the application for security of costs in these proceedings is this. Whilst it seems that Mrs Bugeja is not impecunious, it is not apparent that she has significant funds at her disposal. There is tied up, here in Australia, the $38,000 and the $12,500 which is in the Supreme Court. There is a live issue about whether or not she owes any money at all. As I have said before, on her case she has already paid for all her legal costs and owes nothing. On her case, she should get the $38,000 back plus the $12,500. My concern is, given that live issue at stake in these proceedings, that her opportunity to litigate it may be stifled. She made an attempt to litigate it in the Supreme Court but has now been referred to this Court because of the circumstances which I have described. That was, in part, perhaps the result of her lack of vigilance in the Supreme Court proceedings but nevertheless she is doing what she had to do given the indication by the Supreme Court. To my mind it would be unfair of me to require her to provide more security.

1. I do appreciate that the new solicitor has already expended a substantial amount of money in defending the Supreme Court proceedings but he has the money which has been paid as security in those proceedings. In addition, there is an asset within the jurisdiction of some $38,000 which would hopefully be available to meet any verdict and costs. Yes, I acknowledge that it would not be enough but it is not a perfect world. I must try to do justice between the efforts of a person who says he is owed money and the efforts of the alleged debtor who says she owes nothing. That dispute has come to the courts. It seems to involve a very live and substantial issue which should be determined by the courts. The alleged debtor has already paid, or been deprived of temporarily, just over $50,000 of her own funds which remain in this jurisdiction. I think the case should now proceed to be determined, on its merits, without the requirement for Mrs Bugeja to provide further security.

Order

1. For those reasons, I refuse orders 1 and 3 sought in the notice of motion filed 23 October 2013

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Decision last updated: 27 March 2014