Constantinidis v Kehagiadis
[2010] NSWSC 1261
•4 November 2010
CITATION: Constantinidis and Anor v Kehagiadis [2010] NSWSC 1261 HEARING DATE(S): 27 October 2010
JUDGMENT DATE :
4 November 2010JUDGMENT OF: Schmidt J DECISION: 1. The plaintiffs are to bear the defendant's costs of the September motion, as agreed or assessed.
2. The plaintiffs to bear the proposed defendants' costs of the August and September motions, as agreed or assessed.CATCHWORDS: PROCEDURE - Supreme Court procedure - New South Wales - notice of motion - amendment to pleading - leave to file further amended statement of claim - amendment to pleading - plaintiffs withdrew motion - costs - reconsideration of earlier costs orders against plaintiffs sought - unnecessary costs incurred by defendant and proposed defendants as result of plaintiffs' acts - no departure from usual rule - costs ordered - plaintiffs to bear costs as agreed or assessed LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005CATEGORY: Procedural and other rulings PARTIES: George Constantinidis - First Plaintiff
Gemma Constantinidis - Second Plaintiff
Meropi Kehagiadis - Defendant
FILE NUMBER(S): SC 2009/297696 COUNSEL: Mr M Dicker - Defendant
Mr N Beaumont for the proposed Second and Third DefendantsSOLICITORS: Plaintiffs - unrepresented
Defendant - Colin Biggers & Paisley
- IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SCHMIDT J
THURSDAY, 4 NOVEMBER 2010
JUDGMENT2009/297696 CONSTANTINIDIS AND ANOR v KEHAGIADIS
: By notice of motion filed on 28 September 2010, the first plaintiff, Mr Constandinidis sought orders:
"1 That the Original Amended Notice of Motion heard on the 7 th of September 2010, heard before his Honour Justice Hoeben, dated 22 nd June of 2010, be set aside under Reg.36.15(1) of the Uniform Civil Procedure Rules 2005.
2 That the original Amended Notice of Motion lodged by the plaintiffs on the 22 nd June of 2010 be dealt with.
3 All costs from the previous hearing of 7 th of September 2010, to be reserved.
4 Such further or other orders that the court sees fit."
2 The motion was supported by an affidavit sworn by Mr Constantinidis. At the hearing it was clarified that the amended notice of motion to which reference should have been made was that of 6 August 2010 and that what the plaintiffs in fact wished to pursue, was leave to file a further amended statement of claim dated 25 August 2010 (marked mfi1). By that amended pleading the joinder of Mr Tsolakis and Middletons was sought. The plaintiffs also wanted to pursue a reconsideration of the costs orders made against them by Hoeben J on 7 September.
3 No objection to that course was taken by the defendant, or by the two proposed defendants, Mr Tsolakis and Middletons, who were also represented at the hearing of the motion.
4 The proceedings are concerned with alleged professional negligence on the part of the defendant, Ms Kehagiadis, who formerly acted for the plaintiffs. Mr Constantinidis explained that the proposed addition of Mr Tsolakis reflected that he had acted for the plaintiffs before Ms Kehagiadis and that documents produced in the proceedings had left them in a position where it now appeared that it was Mr Tsolakis who was responsible for some of the negligence sought to be pursued in these proceedings and that it was Ms Kehagiadis who was responsible for further delays and difficulties, after she commenced acting for the plaintiffs. Middletons was the firm of solicitors who acted for Mr Tsolakis. How it was involved in the negligence about which the plaintiffs wish to complain in the proceedings, was not readily apparent on the submissions advanced by either Mr or Mrs Constantinidis.
MFI 1 - the further amended statement of claim of 25 August 2010
5 What next emerged was that Mr and Mrs Constantinidis, who are estranged, had differing opinions as to the case which they wanted to press. Mr Constantinidis did not then wish to press the joinder of Middletons, having decided that he needed to take legal advice, but Mrs Constantinidis did wish to pursue Middletons.
6 What then emerged after further consideration of written submissions which had been served for the defendant and proposed defendants, was that both Mr and Mrs Constantinidis wished a further opportunity to consider deficiencies which had been identified in their proposed pleadings. The result of those decisions was that the plaintiffs did not wish to press this aspect of their motion.
7 There was no objection to the alteration in the course proposed, but the defendant and the proposed defendants each sought an order for costs in their favour. The plaintiffs opposed such orders being made, relying on the history of the matter, which they alleged included a failure by the defendant to properly attend to the progress of the matter and her obligations to produce documents. It was complained that the proposed defendants ought not to have any orders made in their favour, because they were not yet even parties to the proceedings and ought not to have been heard by the Court. It was argued that consideration also had to be given to their role in delaying the hearing of the motion.
8 I am satisfied that in the circumstances it is appropriate that this aspect of the motion be dismissed and an order be made in favour of the defendant and the proposed defendants as to costs.
9 The usual order as to costs is that costs should follow the event. The plaintiffs were advised by Harrison J in March 2010, that their pleadings were deficient and needed to be put into proper form. Since then they have sought to file an amended statement of a claim, to deal with those deficiencies and a further amended statement of claim. They have elected not to press the relief sought in the motion in relation to that pleading, accepting that there are still problems which need to be addressed, if their pleadings are to adhere to the requirements imposed on all litigants by the Uniform Civil Procedure Rules 2005.
10 It necessarily follows that the defendant has been put to unnecessary cost as a result of preparing for and appearing at the hearing of the motion. While the plaintiffs are understandably concerned at their lack of progress in the proceedings, the view that this is as the result of events for which the defendant, and indeed the proposed defendants bear responsibility was not established. The state of the pleadings reflect the steps which the plaintiffs have taken, or have thus far failed to take. It was their decision not to press their motion, but to further amend their pleadings. Nothing in those circumstances warrants any departure from the usual order that costs should follow the event.
11 As to the proposed defendants, they appeared as the result of the service upon them of the proposed pleadings, as Registrar Bradford had directed. The proposed defendants appeared when the August motion came before Hoeben J for hearing on 7 September, as well as when the September motion came before me for hearing. I took the view that in the circumstances they should be given leave to appear. The result of the plaintiffs' decision not to press for the relief sought in relation to the amended pleadings is that the proposed defendants have incurred unnecessary costs. In this situation, I can see no reason for departure from the usual order that costs should follow the event.
12 The proposed defendants also pressed for an order for costs in respect of the proceedings on 7 September. They, too, were opposed by the plaintiffs. I will deal with that application below.
The costs order made by Hoeben J on 7 September 2010 and the proposed defendants' costs of that motion
13 The motion of 6 August 2010 was listed on 7 September for hearing before Hoeben J. There was then no appearance for the plaintiffs and the motion was dismissed, with an order for costs in favour of the defendant, his Honour having been informed that the defendants had since been served with the 25 August further amended summons, which it was understood that the plaintiffs now wished to pursue. That amended pleading was not before his Honour.
14 Before me the reason for the plaintiffs' absence was explained to be that on 30 August a close friend and business partner had died. The funeral was scheduled for 7 September and so Mr Constantinidis sent a fax to the Court on 2 September, informing that as self litigants, the plaintiffs could not attend the hearing. From the transcript of the proceedings on 7 September it is apparent that this message did not reach Hoeben J. The plaintiffs did not notify the defendant or proposed defendants of the position, even though their solicitors each made contact with the plaintiffs by email on 6 September. From those communications, it was apparent that they each understood that the hearing was proceeding the following day. The plaintiffs did not respond and made no effort to establish that their advice about their difficulties had resulted in an adjournment of the hearing.
15 There was no application made for a vacation of the hearing on 7 September as the Court’s Rules required, and no advice given to the defendant or proposed defendants of the difficulty which had arisen. As I explained to the plaintiffs, a court hearing may not be cancelled as if it were a restaurant reservation or a hairdressing appointment. The transcript of the proceedings before Hoeben J noted that attempts were unsuccessfully made to contact the plaintiffs. His Honour then acceded to the application that the motion be dismissed with costs in favour of the defendant, in circumstances where it appeared that the plaintiffs did not, in any event, wish to pursue the order being sought in the August motion. That understanding was correct. The position of the proposed defendants' costs was reserved until the plaintiffs could be heard, but a costs order was made in favour of the defendant.
16 While Mr Constantinidis accepted that his Honour was entitled to make the orders which he did, he pointed out that under the Rules, he could have adjourned the hearing of the motion to another day, so that the plaintiffs could be heard. Mrs Constantinidis argued that was what should have occurred and pressed for reconsideration of that order.
17 This is not an appeal from his Honour’s decision. There was no opposition to the reconsideration of the order sought, but the relief Mrs Constantinidis pressed was opposed in the circumstances.
18 The usual rule is that costs follow the event. In circumstances where the plaintiffs made no adjournment application; nor notified any difficulty to the defendant or proposed defendants; they made no response to communications which made it clear that the defendant and proposed defendants understood that the hearing of the motion was to proceed, that a costs order was made in favour of the defendant was unsurprising and it seems to me a just reflection of the unnecessary expense to which the defendant was put as the result of the approach which the plaintiffs adopted.
19 That the plaintiffs are labouring under difficulties because they have chosen to be self represented may well be accepted. Mr Constantinidis explained that he is a courier who works long hours and does not always regularly check his emails. Mr and Mrs Constantinidis are estranged and appear to wish to take differing courses in these proceedings. Mrs Constantinidis, while making extensive submissions, gave no explanation as to why she took the course she did, in relation to the hearing before Hoeben J. Parties who choose to represent themselves must ensure that they pay necessary attention to their proceedings if mistakes are to be avoided, which will result in costs orders being made against them. Failure to pay necessary attention to the these proceedings, is not a basis on which the ordinary rule as to costs may justly be departed from.
20 These considerations must also result in costs orders in favour of the proposed defendants in relation to the August motion. Their involvement in the proceedings reflects the steps which the plaintiffs have taken and the orders which Registrar Bradford earlier made. As a consequence the plaintiffs have served motions and amended pleadings upon the proposed defendants and they have appeared to be heard on these motions, where they were given leave to appear. While the plaintiffs disagreed with such leave being given, their views were not accepted. The result of the conclusions reached is that a costs order should now be made in the proposed defendants' favour in relation to the August motion, the plaintiffs having failed to appear on the motion, having neither made an adjournment application, been granted an adjournment, nor notified the proposed defendants of the difficulty which had arisen or what they proposed.
21 The plaintiffs also complained as to the delay which has resulted from the proposed defendants' participation in the hearing. That is not a matter relevant to a determination of the costs order here in question. Costs orders are not designed to punish parties, but to justly deal with the costs which are incurred as a result of steps which they take in the proceedings.
Further directions
22 It was agreed that further direction should be made as to the future conduct of the matter. They were:
1. The Plaintiffs serve a copy of any proposed Further Amended Statement of Claim on the solicitors for the Defendant and on the solicitors for Mr V. Tsolakis and Middletons, to the extent they propose to join those further parties, on or before 8 December 2010.
2. The Defendant and any proposed further defendants indicate their attitude to the proposed Further Amended Statement of Claim on or before 15 December 2010.
4. The matter listed for directions before the Registrar on 18 January 2011. The parties have leave to have the matter relisted on the giving of 3 days notice.3. If the Defendant or any proposed defendant, objects to leave being granted to the Plaintiffs are to file and serve a Notice of Motion seeking leave on or before 22 December 2010 on the defendants and any proposed further defendants.
23 The parties also referred to the possibility of mediation. That certainly seems to be an avenue worth exploring once the pleadings on which the plaintiffs wish to pursue their claims are settled. If necessary, it may be ordered by the Court.
24 In the meantime, the parties are encouraged to co-operate with each other as to the procedural matters which need to be attended to, in preparation of the matter for hearing. They are each reminded of their obligations under the Civil Procedure Act 2005 , which provides in s 56:
56 Overriding purpose
- (cf SCR Part 1, rule 3)
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3).
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
25 For the reasons given, I order that:
2. The plaintiffs to bear the proposed defendants' costs of the August and September motions, as agreed or assessed.1. The plaintiffs are to bear the defendant's costs of the September motion, as agreed or assessed.
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