Cameron v Ofria

[2007] NSWCA 37

New South Wales

Court of Appeal

CITATION:	CAMERON v OFRIA & ORS. [2007] NSWCA 37 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	27/02/07
JUDGMENT DATE:	27 February 2007
JUDGMENT OF:	Beazley JA at 20,22; Ipp JA at 1; Campbell JA at 21
EX TEMPORE JUDGMENT DATE:	27 February 2007
DECISION:	Appeal upheld; Set aside orders of Phegan DCJ to the extent I have indicated; Order that Mr Cameron and Mr. Ofria pay their own costs; No order made for costs as regards Mrs Ofria; Order that a Suitor's Fund certificate issue to Mr and Mrs Ofria if they are otherwise entitled
CATCHWORDS:	COSTS – interlocutory application – whether appropriate to make order for costs to be paid before conclusion of proceedings – whether trial judge erred in exercising his discretion by ordering that the appellant should not be given a date for hearing unless and until the appellant pays the respondent’s costs of the cross-claim – discretion exercised for penal purposes – trial judge failed to consider affidavit material of the appellant when exercising his discretion – order set aside
CASES CITED:	Fiduciary Limited v Morningstar Research Pty Limited (2002) 55 NSWLR 1 Oshlack v Richmond River Council (1998) 193 CLR 72
PARTIES:	Robert William Cameron (Appellant) Roland Ofria and Marlene Ofria (First Respondents) Bruce Vernon Dennis (Second Respondent)
FILE NUMBER(S):	CA 40047/06
COUNSEL:	D. Rofe QC (Appellant) Roland Ofria (in person) Marlene Ofria (in person) (first respondents) No appearance (third respondent)
SOLICITORS:	McLaughlin & Riordan (Appellant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	166/2005
LOWER COURT JUDICIAL OFFICER:	Phegan DCJ
LOWER COURT DATE OF DECISION:	12/12/2005

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA040047/06

BEAZLEY JA

IPP JA

CAMPBELL JA

TUESDAY 27 FEBRUARY 2007

ROBERT WILLIAM CAMERON v ROLAND OFRIA

AND TWO ORS

JUDGMENT

1 IPP JA: This appeal concerns a costs order made by Phegan DCJ in an interlocutory application. The appellant, Mr Cameron, and the respondents, Mr and Mrs Ofria, were parties to that application. By that application, Mr and Mrs Ofria sought to strike out Mr Cameron's cross-claims against them. They were successful and his Honour awarded the costs of the application to them. That order is not now under challenge. His Honour, in addition, ordered that Mr Cameron should not be given a date for the hearing of the trial between him and Mr and Mrs Ofria until the costs of the application were paid. Mr Cameron seeks to set this order aside.

2 At one point in the appeal Mr Cameron claimed that all the orders made by Phegan DCJ should be set aside. On the morning of the appeal, however, Mr Rofe QC (who appeared for Mr Cameron) informed the Court that the only relief that Mr Cameron now sought was the overturning of the order that required Mr Cameron to pay the costs before obtaining a trial date.

3 I am satisfied that in making that order Phegan DCJ made two errors in discretion.

4 The first was that he made the order to penalise Mr Cameron. This is apparent from a passage in the transcript of the hearing before his Honour. Mr Rofe, who then also appeared for Mr Cameron, in the course of submissions pointed out that making the order in question would be some sort of penalty and his Honour said:

"I don't shrink from that, it's precisely what it is."

5 The reason why Phegan DCJ thought that a penalty should be imposed is that Mr Cameron was a very experienced barrister and in his Honour's opinion he should have known better than to file the cross-claims which his Honour thought should be struck out.

6 There is authority at the highest level that costs should not be awarded by way of punishment to an unsuccessful party; costs are awarded simply to indemnify a successful party in a litigation (see Oshlack v Richmond River Council (1998) 193 CLR 72 at 75 per Brennan CJ)

7 The second error the judge made was to decline to read Mr Cameron's affidavit material in the case. His Honour was of the opinion that he could determine the matter without reading that evidence. In that respect, he was wrong.

8 Mr Rofe was not given an opportunity of putting Mr Cameron's case fully before the judge. The affidavit material revealed details of Mr Cameron's financial position. Those details made it quite clear that he would not be able to pay the costs. That meant, in effect, that he would not be able to prosecute the trial. Mr Cameron's affidavit material further indicated that his claims against Mr and Mrs Ofria and another party to the proceedings were crucial to his attempt to satisfy a debt that he owed the Deputy Commissioner of Taxation. Without being able to satisfy the Deputy Commissioner he would not be able to continue practising and would not be able to earn a living. All these matters were relevant to the decision his Honour was required to make.

9 It therefore falls to this Court to decide the matter and to exercise a fresh discretion in regard to this issue.

10 In Fiduciary Limited v Morningstar Research Pty Limited (2002) 55 NSWLR 1, Barrett J set out the categories of case where it is generally appropriate to make an order for costs to be paid in respect of a particular aspect of the matter before the conclusion of the proceedings.

11 There are arguably two such categories that are presently relevant. The first is that the issue concerned a sufficiently self-contained and discrete matter. The second is that there was arguably some unreasonable conduct on the part of Mr Cameron. In my opinion, however, neither of these is operative in this case.

12 This was simply an ordinary interlocutory application in the general course of the proceedings. There was nothing out of the ordinary in the issue before the court. It was the kind of application where, according to the usual practice, costs are paid at the conclusion of the proceedings.

13 Secondly, although his Honour was correct in determining that the cross-claims were inappropriately filed, I do not regard the filing of those cross-claims as being unreasonable conduct of a kind that would justify an unusual costs order of the kind his Honour made. The mere fact that Mr Cameron was an experienced barrister was not material.

14 As I do not regard this matter as being unusual in any way, the ordinary order should apply. I would add that Mr Cameron's financial position and the other matters that he raised, both in his affidavit and through Mr Rofe in oral submissions, support the making of such an order.

15 Mr Ofria in submissions to this Court said that he was financially embarrassed as well. There is, however, no evidence in admissible form before this Court to support that propositon (if it is indeed relevant).

16 I would therefore uphold the appeal and set aside the order made by Phegan DCJ that Mr Cameron should not be given a date for the hearing of the trial until the costs of the application are paid. That is to say, the orders requiring Mr Cameron to pay Mr and Mrs Ofria's costs of the application in the District Court remain, but the order that prevents Mr Cameron from listing the matter for trial until those costs are paid should be set aside.

17 As regards the costs of the appeal, it was only this morning in the course of Mr Rofe's submissions that it became clear what relief Mr Cameron was seeking. For that reason I consider that Mr Ofria was entitled to come to court to oppose the very broad range of orders that, initially, were apparently being sought against him. To that extent I think that his conduct was justified. He was, however, the unsuccessful party and in my view, generally looked at, justice would be done if an order were to be made as between Mr Cameron and Mr Ofria that each party pay their own costs.

18 As regards Mrs Ofria, Mr Cameron through Mr Rofe indicated during the course of argument that no order for costs would be sought against her. Following that, I would of course make no order for costs in relation to Mrs Ofria.

19 In summary, I would uphold the appeal, set aside Phegan DCJ’s order to the extent that I have indicated, order that Mr Cameron and Mr Ofria pay their own costs, and make no order as regards Mrs Ofria. I would further order that a Suitor's Fund certificate issue to Mr and Mrs Ofria if they are otherwise entitled.

20 BEAZLEY JA: I agree.

21 CAMPBELL JA: I agree.

22 BEAZLEY JA: The orders of the court are those proposed by Ipp JA.

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05/03/2007 - Insertion of first respondent's surname on cover sheet - Paragraph(s) nil