CITY OF DARWIN v CAROLYN REYNOLDS
[2022] NTLC 26
•21 November 2022
CITATION:City of Darwin v Carolyn Reynolds
[2022] NTLC 026
PARTIES:CITY OF DARWIN
v
CAROLYN REYNOLDS
TITLE OF COURT: LOCAL COURT
JURISDICTION: BUSINESS TENANCY
FILE NO(s):21934192
DELIVERED ON: 21 November 2022
DELIVERED AT: DARWIN
HEARING DATE(s): 9 November 2022
JUDGMENT OF: GORDON JR
CATCHWORDS:
Taxation of Costs - Form and content of Notice of Objection to Bill of Costs –
Application for adjournment refused - Leave to be heard at taxation refused.
Local Court (Civil Jurisdiction) Rules 1998
City of Darwin v Carolyn Reynolds [2020] NTLC 5
Reynolds v City of Darwin [2021] NTCA 3
REPRESENTATION:
Counsel:
Applicant:Kirby Dixon
Respondent: Self
Solicitors:
Applicant:Minter Ellison Lawyers
Respondent: N/A
Judgment category classification: B
Judgment ID number: [2022] NTLC 026
Number of paragraphs: 69
IN THE LOCAL COURT
AT DARWIN IN THE
NORTHERN TERRITORY OF AUSTRALIA
Claim No. 21934192
BETWEEN:
CITY OF DARWIN
Applicant
AND:
CAROLYN REYNOLDS
Respondent
REASONS FOR DECISION
(Delivered 21 November 2022)
Judicial Registrar Gordon
A Taxation of costs was conducted in this matter on 9 November 2022. Prior to conducting the taxation the Respondent’s application for an adjournment was refused and she was denied leave to be heard at the taxation. I indicated to the parties that written reasons in relation to those decisions would be provided. These are those reasons.
On 23 August 2022 the Applicant filed a Summons for Taxation in accordance with Part 38 Division 3 of the Local Court (Civil Jurisdiction) Rules 1998. The Bill of Costs, filed contemporaneously, contained a brief narrative of the proceedings, in accordance with R38.12(2), which provided:
2.1“The Applicant commenced proceedings in the Local Court on 11 September 2019.
2.2The matter was heard in the Local Court by Judge Alan Woodcock on 5 March 2020.
2.3On 26 August 2020, Judge Woodcock handed down a judgment finding in favour of the Applicant but did not make an order on costs (Local Court Decision).
2.4On 27 August 2020, the Respondent appealed the Local Court Decision to the Supreme Court of the Northern Territory.
2.5The matter was heard in the Supreme Court of the Northern Territory by Barr J on 9 October 2020.
2.6On 30 October 2020, Barr J handed down a judgment finding in favour of the Applicant but reserved the question of costs (Supreme Court Decision).
2.7On 5 November 2020, the Respondent appealed the Supreme Court Decision to the Court of Appeal of the Northern Territory.
2.8On 27 June 2022, the Court of Appeal handed down a judgment on the papers in favour of the Applicant and relevantly ordered:
the Appellant (Ms Carolyn Reynolds) is to pay the Respondent's (City of Darwin's) costs of the proceeding before the Local Court in File No. 21934192 on the standard basis, with those costs to be agreed or taxed by the Local Court taxing officer in default of agreement…
2.9Counsel were not briefed in the proceedings and did not appear at the hearing.
2.10The parties cannot agree the costs and as such the question of cost is to proceed to taxation.”
The Summons for Taxation was marked returnable 5 October 2022.
Rule 38.13 sets out the process for objecting to and participating in a taxation of costs:
38.13
Notice of objection(1) If the party who is to pay costs objects to any items in a bill, the party must file and serve a notice of objection to those items in accordance with Form 38B and provide in the notice the reason for each objection.
(2) A party must file and serve a notice of objection not later than 7 days before the date fixed for the taxation.
(3) If a party who is to pay costs fails to file and serve a notice of objection, there is a presumption that the party has no objection to the bill.
(4) Nothing in sub rule (3) is to be taken to affect the discretion of thetaxing officer to tax off items.
(5) A party who is to pay costs and who does not file a notice of objection is not entitled to be heard at the taxation without the leave of the Court.
The final date for the filing of an Objection was 28 September 2022.
On 28 September 2022 the Respondent purported to file an Objection, under cover of a ‘Form 23B Summons for Production of Documents’. The filing was declined by Registry and a blank Form 38B was provided to the Respondent. The Form 38B was lodged with the Registry by email on 30 September 2022.
During various communications with Registry prior to the date for taxation the Respondent foreshadowed an application for an adjournment on medical grounds. The Respondent was directed to seek the views of the Applicant as to the proposed adjournment and provide medical evidence in support of the request.
On 4 October 2022 at 2.37 pm an email was received from the Respondent which stated: “As previously advised I am currently unwell and awaiting an operation at RDH on Friday 7th October 2022. As previously advised I do not feel well enough to attend court tomorrow and respectfully request an adjournment to these proceedings.”
The accompanying medical certificate is annexed to these reasons and marked “A”.
At the commencement of the taxation on 5 October the Applicant confirmed they did not consent to the adjournment. The Applicant raised serious concerns about the Respondent wilfully seeking to unreasonably delay the taxation on misleading or erroneous medical grounds.
The Applicant noted the findings of Local Court Judge Woodcock in City of Darwin v Carolyn Reynolds [2020] NTLC 5 at [46]:
“I accept the Respondent has seriously high blood pressure and was unwell at periods during these proceedings, and various adjournments were granted to accommodate her. Ultimately, the hearing had to be attended to, it is a matter of short duration and the Applicant was entitled to have it heard.
It was apparent, quite apart from being unwell, the Respondent was endeavouring to delay the proceedings and muddy the waters. This included exaggeration, untruths and red herrings of various types. On the evidence before me, I do not accept her assertion that she has a brain injury, was struck by lightning or has Post Traumatic Stress Disorder (PTSD) as she claims.”
Similar issues arose before the Court of Appeal in Reynolds v City of Darwin [2021] NTCA 3 with their Honours noting at [2]-[4]:
[2] The appeal was originally listed to be heard on 17 February 2021. On that day, the appellant made application to adjourn the hearing of the appeal, principally on the basis that her medical condition precluded her from properly prosecuting the matter at that time, and on the basis that she had not had adequate opportunity to take legal advice and to procure legal representation in relation to the matter. The application for an adjournment was granted...
[3] At the commencement of the hearing, the appellant made an application for a further adjournment of the appeal, essentially on the same grounds. That application was not supported by any medical evidence beyond a bare certification from a general practitioner that the appellant is suffering from a “medical condition” and is “unfit” in some unspecified manner. The application was opposed by the Respondent on the ground that the due and proper administration of justice now requires the determination of the matter…[4] This Court would ordinarily be slow to refuse an application for adjournment made by an unrepresented litigant. However, in the circumstances of the present case there is no real prospect that the appellant will be able to take the steps she asserts are necessary in the prosecution of this appeal.”
The Medical Certificate relied upon to adjourn the Taxation on 5 October 2022 plainly suffers from similar deficiencies which diminish the weight that can be placed upon it for the purposes of adjourning and delaying the finalisation of a Court process.
In particular, the Certificate certifies the Respondent “unfit for full duties” on 28 September 2022 “with the following restrictions: 27/9/22”, - the meaning of which is unclear. The Certificate was dated 4 October 2022 and appears to be retrospective, purportedly covering the period 27 September 2022 to 14 October 2022.
The Certificate is at best confusing and at worst nonsensical. Nonetheless, in the absence of the Respondent I erred on the side of caution. Adopting the most favourable interpretation the Certificate does appear to indicate a medical unfitness for not only the date of the taxation, but also the final day that the Respondent had to file her Notice of Objection.
I also took the opportunity to issue procedural Orders in an effort to put the self-represented Respondent on clear notice of the expectations of the Court to enable her participation in the taxation. Those directions were as follows:
1. The Taxation of Costs Hearing is adjourned to 9 November 2022 at 10.00 am.
2. The Respondent to file any Form 38B Notice of Objection to the Bill of Costs by close of business on 26 October 2022.
3. Any Notice of Objection to the Bill of Costs must provide individual, specific and relevant objections to any item objected too. An objection may be used more than once however any item objected to must have an individual objection.
4. Any Form 38B which includes statements in the form of a narrative of the proceedings or submissions will not be accepted for filing.
5. Should the Respondent fail to file a Form 38B in accordance with these Orders and in a form considered acceptable for filing by Registry, the Respondent will not be entitled to be heard at the Taxation of Costs Hearing, without leave of the Court.
6. Any further application for adjournment, by either party, will not be considered by the Court unless the other party has first been put on notice of the application to adjourn and their views on the adjournment sought.
7. The costs of today are the costs of the Applicant.
The Orders were distributed by email to the Applicant and to the Respondent on 5 October 2022 at 2.29pm.
On or about 26 October 2022 the Respondent lodged a further Form 38B, which commences with the following statement:
“The Requested Form 23 B (sic) was submitted on 28th September 2022 and the objects to the items in your biII of costs specified in that form for the reasons specified in relation to each item.
The objects marked in Pink and Orange highlighter are all items in the bill of costs that are in question along with the reasons specified in relation to all items and included below. The abuse of the Business Tenancies Act and lack of consideration by the local court of the Law of Property, Contracts, application of Government controls and Administrative law by the local court caused an miscarriage of justice by a bias conflicted Judge and bias from conflicted Justices and a Chief Justice. Which did not consider the lawful business Contract between to the Rock Centre Lease and HELP NT Mrs Reynolds. At no time did the City of Darwin consult with the people of Darwin, Schools, Climbing members, Juvenile diversionary clients, Military, Childcare facility parents, indigenous community lawful land owners (Larrakia and or The Carroll family (Mick Carroll). I allege that this entire case has been a politically motivated attempt to hurt, harm, harasses and cause hostilities towards Mrs Carolyn Reynolds (sic)”
What follows thereafter is 28 paragraphs across 6 pages which contains content in the nature of a chronology of the dispute and submissions in relation the conduct of parties and various people involved in the proceedings, including the Judicial Officers who have variously presided.
This material clearly violates the Order 4 of the Orders issued on 5 October 2022. It is irrelevant and unnecessary for the purposes of a taxation.
The taxation process is for the purpose of determining payable costs. The issues in dispute in the litigation and each parties views of the evidence and the correctness of the judicial determination (notably in this case the decision of the Local Court having been affirmed on appeal and by the Court of Appeal) is with respect, irrelevant.
Accepting the Respondents narrative has the potential to serve as a distraction and places onto the Court record matters which cannot be tested or challenged by the Applicant. It ought not to be included in a Notice of Objection and I have so ordered.
A plethora of dated medical material, irrelevant to the process of Taxation, was also lodged.
Finally the document concluded with “Annexure A” being the original Form 38A Summons for Taxation of Costs and the Bill of Costs filed by the Applicant. A sample of this document is attached to these reasons and marked “B”.
Each and every item claimed has been disputed by highlighting such items. There appears to be a ‘code objection’ or ‘objection tax code’ at the top of each column, although I am unable to discern what the ‘codes’ such as ‘dup’ ‘nr’ ‘exp dup’ and various others represent.
The Respondent was advised by Registry that the Form 38B was not compliant with the Orders of 5 October and would not be accepted for filing.
In my view the Respondent has failed to “provide individual, specific and relevant objections to any item objected too” as directed.
The Respondent has attempted to file a narrative &/or submissions despite being clearly directed not to.
The Respondent was on notice that a failure to file a Notice of Objection in accordance with the Rules and the Orders of 5 October 2022 would jeopardise her standing to be heard at the Taxation.
A final Form 38B Notice of Objection to Bill of Costs was received on 8 November, the date prior to the rescheduled taxation, together with an email seeking an adjournment. Although this document does briefly speak to more relevant matters such as the time taken, the complexity of the matter and reasonableness of the costs incurred, it still contains 6 pages of material irrelevant to the taxation. It seeks to be filed well outside the time allowed and is not compliant with the Rules nor my directions. It will not be accepted for filing and will not be placed on the Court file.
I note however, a further attachment to the email headed “Annexure A – Dispute of Costs” appears to be a legible, itemised list of disputed costs. Furthermore the document contains a “Cost Code Key” on its final page which sets out what the shorthand notations such as ‘Nr’ ‘dup’ ‘int’ pertain to.
Problematically however, each and every item claimed is disputed on the basis of being ‘nr’ which is defined by the Respondent in the Cost Code Key’ as follows “it was not reasonable to do the work, or it was not reasonable to include a claim for doing the work’. Plainly it is nonsensical to expect the Court to accept that any and all work done, in a successful litigation was not reasonable or not reasonably claimed.
Further, all items from 27 May 2015 to 10 October 2019 (items 1 – 192 of the Bill of Costs) are objected to due to ‘scope’. Scope explained by the Respondent as thus “This item is outside the scope of the costs order (i.e. this is work performed before any court proceedings were even contemplated. “. This is despite items 126 – 192 objected to being costs incurred after proceedings had been filed[1].
In my view, even a most cursory review of the new iteration of objections makes it clear the Respondent’s objections are unlikely to be helpful to the Court at taxation.
In all of the circumstances of the history of the matter and the taxation process to date, I am not satisfied that the Respondent is willing or able to participate in a reasonable or helpful manner in the taxation. She has demonstrated an unwillingness to abide by the directions of the Court and there remains significant indicators that the Respondent will attempt to utilise the taxation as a means to re-litigate her arguments.
These arguments have been dispensed with comprehensively. The Respondents case has failed. The Application was successful and by order of the Supreme Court the Applicant is entitled to their costs.
The Parties appeared before the Court on 9 November 2022 for the purposes of the taxation.
Noting that the Respondent was self-represented and had placed herself in a position whereby she required leave to be heard and had further indicated, including in the submissions under purported cover of a Notice of Objection to Bill of costs lodged on 26 October (not accepted for filing), that:
“Mrs Reynolds holds no legal qualifications and has never worked in the legal spheres, so would not have any ability to understand the process of costs, how these were awarded or the comprehension to run a case…”
That being so, I took the unusual step of conducting the taxation in an open Court, to ensure either party would be able to obtain a transcript of same, should they wish to do so.
The Respondent first sought to adjourn the taxation, in part as a result of being served with an Amended Bill of Costs the day prior. This amended Bill provided updated costs in relation to the taxation of costs only. The changes were tracked on the face of the document and it was clear that items 1 – 297 were unchanged.
Any prejudice to the Respondent by the late receipt of the additional costs could be ameliorated by simply adjourning the costs of taxation. There was no new or unexpected costs in the first 21 pages of the Bill and no reason why the Respondent had not been afforded enough time to prepare for same.
The Respondent continued to press for an adjournment of the entirety of the taxation, on the foreshadowed medical grounds.
The medical adjournment is supported by a document, which purports to be a reminder of an outpatient appointment on 1 November 2022, which has passed and is irrelevant, and confirmation of an upcoming procedure at Royal Darwin Hospital in December, the relevance of which to the taxation is not established.
Additionally there is a Medical Certificate from Top End Medical Centre date 8 November 2022 which states; “Ms Carollyn (sic) Jane Reynolds has a medical condition and is unfit for work from 08/11/2022 to 11/11/2022”. The explanation or correlation between this certification and period of unfitness and the Respondents ability to participate in a taxation is not specified.
When asked how the Court can have any confidence or reassurance that a further adjournment will resolve the issues preventing the taxation taking place today, the Respondent indicated that she anticipated to be fit to proceed in two weeks.
In my view this seemed extremely unlikely, given that the Respondent had communicated the following to the Court by email at 2.14 pm the day prior:
“I have written to Ms Sophie Cleveland from [Minter Ellison Lawyers} explaining my ongoing medical requirements. I have surgical procedures planned in November and 1st December 2022 and I am still managing chronic migraines and malignant hypertension which has a detrimental effect on my eye sight.
I am currently on medical leave from any work as I endeavour to resolve my medical issues caused by two assaults and considerable anaphylactic reactions to medications…
I again respectfully request an adjournment so that I am able to resolve my ongoing medical issues which have been misdiagnosed during the COVID 19 disruption to health services and lockdown period.”
The Respondent was advised that, in the absence of the evidence of a medical specialist that the Respondent would be fit to proceed within a nominated timeframe, the Court cannot accept her submission that an adjournment of 2 weeks would improve her medical status.
This view was compounded and reinforced during the proceedings when the Respondent became agitated and frantic. When asked to take a seat and to calm down and compose herself, the Respondent began to wail ‘I can’t, I can’t, I can’t’.
After a 10 minute adjournment to allow the Respondent to collect herself, the Respondent attributed her lack of emotional regulation on a frontal lobe injury. No submission was made, nor medical evidence tendered, to suggest that this aspect of the Respondents parlous health would improve to any degree during the period of an adjournment.
The parties were advised that the only purpose for adjournment which would be for the purpose of the appointment of a litigation guardian.
The Applicant opposed any adjournment, noting that Respondent had now had a reasonable period of time to be adequately prepared to proceed and had already been afforded an earlier adjournment, which had not resulted in the Respondent being able to proceed.
The Applicant noted that the Respondent seems to have adequate cognitive ability to prepare a detailed chronology and submissions as to how the Courts had failed to accede justice to the Respondent, despite being directed such material was irrelevant and unnecessary. This appears to be in deliberate contrast to her claims of cognitive impairment when it comes to allowing the Applicant to deal with their costs Order.
I accept this submission.
The Applicant noted that Judge Woodcock considered the need for the appointment of a litigation guardian during the proceedings proper and drew the Courts attention to paragraph 47 of his reasons for decision[2].
His Honour found:
“I am not satisfied on all the evidence that the Respondent is a person under a disability such that she is incapable of managing her affairs in relation to this proceeding. lt would not have been appropriate to appoint a litigation guardian.”
I am satisfied therefore, that this issue has been dealt with. His Honour considered such an appointment and determined that is was not necessary or appropriate.
I have received no medical evidence or submissions to advance any such an application for the purposes of the Taxation. I have no evidence of a new or intervening event that would cause me to detract from His Honour’s conclusion in this regard.
The concerns surrounding the Respondents many varied and extreme health issues have been present and been pressed throughout all stages of this lengthy litigation. The Respondent has frequently made much of her lack of legal training and understanding and medical disabilities to the many Judicial Officers who have presided over this matter.
It remains the case that the Respondent is self-represented. She has not appointed a litigation guardian. She has not instructed a legal representative. Although I note with sympathy that these things can be easier said than done, I am unaware of any genuine attempts by the Respondent to engage appropriate assistance to improve her capacity to participate in the proceedings.
At the taxation on 9 November in submissions the Respondent alluded to an intention to obtain legal advice, however the most concrete this intention became, was words to the effect that her preferred legal counsel would be ‘ready soon’. She further advised the court that she had considered the suitability and availability of various family members, be it as a litigation guardian or a McKenzie Friend, but for many reasons, none were able to assist.
Her status as a self-represented litigant, despite her parlous health and clear lack of legal acumen is, in my view, by choice.
Certainly in terms of the Taxation, there is no evidence that would satisfy me that the Respondent is taking steps to change that situation. While she is entitled to and should take the utmost care with her personal health and wellbeing, it is not for the Applicant to be prevented from finalising the matter and recovering their costs while she does so.
The Respondents application for an adjournment is denied.
Furthermore, as a result of non-compliance with R38.13(5) of the Local Court (Civil Jurisdiction) Rules 1998, the Court Orders of 5 October 2022 and the Respondent’s inability to control or moderate her emotions during the course of submissions relating to an adjournment, the Respondent is not given leave to be heard at the taxation.
For completeness, I should note that as a result of the Respondents dismay, emotional distress and unacceptable conduct when the above decisions were indicated, the Respondent was excluded from the proceedings pursuant to section 38(2) of the Local Court Act 2015.
The Respondent was subsequently invited to re-enter the Courtroom and be present for the balance of the taxation if she is able to maintain control of her emotions and not interrupt or delay the proceedings. Although the Respondent availed herself of this opportunity, she was not able to remain silent or respectful and was again asked to leave.
The taxation was completed in her absence.
As a result of the taxation a total of $7,645.45 was taxed off the Bill of Costs which claimed a total of $87,732.18 in costs and disbursements.
The costs allowed total $80,086.73 and a certificate of taxation will issue in this amount.
“A”
“B”
[1] Proceedings being commenced by Form 30A Tenancy Application on Ii September 2019
[2] City of Darwin v Carolyn Reynolds [2020] NTLC 005
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