Coshott v Barry and Board

[2010] NSWSC 1324

CITATION:	Coshott v Barry & Board [2010] NSWSC 1324
HEARING DATE(S):	12 November 2010
JUDGMENT DATE :	30 November 2010
JUDGMENT OF:	Garling J
DECISION:	Summons summarily dismissed in part. The defendants’ notice of motion filed 27 September 2010 is otherwise dismissed.
CATCHWORDS:	PRACTICE AND PROCEDURE – Summary dismissal of part of summons – Where plaintiff had previously appealed cost assessments to the District Court of NSW pursuant to the Legal Profession Act 2004 – Where the District Court had determined one appeal on its merits – Where the parties had settled another appeal – Where the plaintiff was not party to one of the cost assessments – Whether part of the current proceedings is an abuse of process – Res judicata – Anshun estoppel. - ADMINISTRATIVE LAW – Judicial review – Ultra vires
LEGISLATION CITED:	Civil Procedure Act 2005 District Court Act 1973 Legal Profession Act 2004 Supreme Court Act 1970 Uniform Civil Procedure Rules 2005
CATEGORY:	Procedural and other rulings
CASES CITED:	Agar v Hyde (2000) 201 CLR 552 Bahadosi v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44 Batistatos v Newcastle City Council (2006) 226 CLR 256 Blair v Curran (1939) 62 CLR 464 Bracks v Smyth-Kirk (2009) 263 ALR 522 Dayeian v Davidson [2010] NSWCA 42 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Druett v Director General of Community Services [2001] NSWCA 126 Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Johnson v Gore Wood and Co (a firm) [2002] 2 AC 1 Kirk v Industrial Court of NSW (2009) 239 CLR 531 Newmont Yandal Operations Pty Ltd v The J Aron Corporation & Ors (2007) 70 NSWLR 411 O’Connor J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 PNJ v R (2009) 83 ALJR 384 Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 Spencer v The Commonwealth of Australia (2010) 84 ALJR 612 Spruill v Director General of the Department of Community Services [2001] NSWCA 413
PARTIES:	Ljiljana Coshott (Plaintiff) Stephen Michael Barry (1st Defendant) Martin Pearce Board (2nd Defendant)
FILE NUMBER(S):	SC 2010/234928
COUNSEL:	S. Bliim (Plaintiff) M. Castle (1st and 2nd Defendants)
SOLICITORS:	Self-represented (Plaintiff) Yeldom Price O'Brien Lusk (1st & 2nd Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

GARLING J

TUESDAY, 30 NOVEMBER 2010

2010/234928 LJILJANA COSHOTT v STEPHEN MICHAEL BARRY & MARTIN PEARCE BOARD

JUDGMENT

1 HIS HONOUR: Stephen Barry and Martin Board are solicitors who formerly acted for Mrs Ljiljana Coshott.

2 They obtained a number of Certificates of Determination of Costs with respect to various of the matters in which they acted for Mrs Coshott.

3 Mrs Coshott has brought proceedings in the Supreme Court of NSW by a summons seeking to have a declaration made that each of the relevant costs certificates are “… ultra vires and the costs assessors had no jurisdiction to issue them”. Consequential orders are sought to deal with the effects of such a declaration.

4 The solicitors have brought a notice of motion seeking orders in respect of four of the eight challenged costs certificates, which would have the effect of terminating the claim brought by Mrs Coshott in this Court with respect to those four costs certificates, without there being a full hearing.

5 I have decided, for the reasons below, that the solicitors are entitled to succeed in respect of two of the costs certificates for which they have brought claims, but not in respect of the other two costs certificates. I have also decided that in order to ensure that the summons is brought to a prompt hearing, I should give various directions for the proper case management of the matter.

Summary Termination of Proceedings

6 The notice of motion of the solicitors seeks the summary termination of part of the proceedings. The effect of such summary termination is that the plaintiff is denied any hearing on the merits.

7 The solicitors rely upon rule 13.4(1) of the Uniform Civil Procedure Rules 2005 which provides:

“If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim.”

8 Over 100 years ago, in the High Court of Australia, O’Connor J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92 said:

“ Prima facie every litigant has a right to have matters of law as well of fact decided according to the ordinary rules of procedure which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing an action as frivolous and vexatious will never be exercised unless the plaintiff’s claim is so obviously untenable that it cannot possibly succeed.”

9 Over 60 years ago, in the High Court of Australia, Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:

“The application is really made in the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the Court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.”

10 Over 40 years ago, in the High Court of Australia, Barwick CJ said in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128-9:

“… the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion.
…
… the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’ …”.

11 Over 25 years ago, the High Court of Australia said in Fancourt v Mercantile Credits Limited (1983) 154 CLR 87 at 99:

“The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.”

12 About 10 years ago, in the High Court of Australia, Gaudron, McHugh, Gummow and Hayne JJ said in Agar v Hyde (2000) 201 CLR 552 at [57]:

“Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.”

13 Most recently, in the High Court of Australia, French CJ and Gummow J in Spencer v The Commonwealth of Australia (2010) 84 ALJR 612 said at 620 [24]:

“The exercise of powers to summarily terminate proceedings must always be attended with caution. That is so whether such disposition is sought on the basis that the pleadings fail to disclose a reasonable cause of action or on the basis that the action is frivolous or vexatious or an abuse of process. The same applies where such a disposition is sought in a summary judgment application supported by evidence. …”

14 These principles are, as can be seen, of longstanding and of the clearest kind. I am bound to apply them in this case.

Costs Certificate 0017354/2008

15 This costs certificate was issued by Mr Peter Scammel, a costs assessor, in respect of a party/party costs order made by James J on 20 February 2008 in this Court in proceedings in which Mrs Coshott and her bankrupt husband, Mr Coshott, were the plaintiffs in a professional negligence action against Mr Barry, who was their former solicitor. Mr and Mrs Coshott were unsuccessful in the action and were ordered to pay Mr Barry’s costs.

16 On 24 February 2010, Mrs Coshott filed a further amended summons commencing an appeal, and a summons seeking leave to appeal in the same document, in the District Court of NSW, seeking to appeal against this costs certificate.

17 The amended summons included the following appeal grounds:

“1. The costs assessor acted ultra vires by proceeding with the assessment and making a determination against one only of the joint costs respondents.”

18 The orders sought in that appeal included that the costs certificate be set aside and that the costs assessment applications be returned to be dealt with by a cost assessor in accordance with the law.

19 That appeal was lodged pursuant to the provisions of s 384 and s 385 of the Legal Profession Act 2004. This is a statutory route by which a party to an application for a costs assessment who is dissatisfied with the decision of the costs assessor has, as a matter of right, an appeal on a matter of law, or alternatively, an appeal on any other basis by leave. Upon any such appeal, the District Court may affirm the costs assessor’s decision, make such determination in relation to the application as should have been made by the costs assessor, or may remit its decision on the question to the costs assessor with an order that the costs assessor redetermine the application.

20 Submissions were filed by Mrs Coshott and Mr Barry. At the heart of Mrs Coshottt’s submissions was the argument that the original costs order made by James J was a joint one, which was only capable of enforcement against both Mr and Mrs Coshott. It was argued that, therefore, the costs assessor could only issue a costs certificate against both Mr and Mrs Coshott, and not against Mrs Coshott alone.

21 Since the bankruptcy of Mr Coshott had the effect of staying any proceedings in which he was involved, it was argued that the whole of the costs assessment proceedings were stayed and that the cost assessor had no power to proceed against Mrs Coshott alone.

22 The matter came on for hearing on Thursday, 17 June 2010 before McLoughlin DCJ. Counsel appeared for both parties. The matter proceeded to be heard with evidence being tendered and submissions being made.

23 McLoughlin DCJ dealt with the matter upon the basis that, in the District Court, Mrs Coshott was the only plaintiff maintaining the claim because, it was conceded by counsel for both Mr and Mrs Coshott, Mr Coshott was not entitled as an undischarged bankrupt to bring such application or commence the proceedings.

24 The reasons for judgment of McLoughlin DCJ extend over 11 pages. Relevantly, his Honour made this finding with respect to ground 1 of the appeal, which was the ground to which I have earlier referred. His Honour found that Mrs Coshott had not made out her submissions on ground 1 saying:

“Quite clearly the costs assessor did act within power and quite properly in proceeding to assess the costs and to assess them only against Mrs Coshott.”

25 His Honour concluded his judgment by saying:

“Accordingly, I am satisfied that there is no error of law established under s 384 [of the Legal Profession Act ] and there is no matter established under s 385 which would entitle the Court to exercise a discretion in favour of the plaintiff. The result is that the summons is dismissed. I order the plaintiff to pay the defendant’s costs of the summons.”

26 On 30 July 2010, the District Court of NSW issued a formal form of judgment which reflected the orders made by the court.

27 The solicitors submit that the claim in this Court with respect to this costs certificate raises an issue which is either res judicata or alternatively one to which the principles in Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589 would apply.

28 In Blair v Curran (1939) 62 CLR 464, Dixon J said at 531-2:

“A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies. The estoppel covers only those matters which the prior judgment … necessarily established as the legal foundation or a justification of its conclusion ….”

29 See also Handley AJA in Newmont Yandal Operations Pty Ltd v The J Aron Corporation & Ors (2007) 70 NSWLR 411 at [198]-[199].

30 Thus the solicitors submit that since the issues in the District of NSW, and in this Court, are identical the maintenance of the current action in this Court in so far as it deals with this costs certificate is res judicata and therefore an abuse of process.

31 It is clear from the judgment of McLoughlin DCJ that he heard, and disposed of adversely to Mrs Coshott, the question of law of whether the costs assessor exceeded his powers, and hence acted ultra vires, by proceeding with the assessment, and issuing the costs certificate only against Mrs Coshott.

32 The judgment of McLoughlin DCJ was a final one. There was no right of appeal against it.

33 That is because there is no right of appeal to the NSW Court of Appeal unless it is provided for by the District Court Act 1973. Section 127 of that Act provides for a general right of appeal. The terms of that section do not include a right to appeal arising with respect to a statutory appeal to the District Court: see Druett v Director General of Community Services [2001] NSWCA 126 at [11]-[13] (per Hodgson JA, Giles JA and Ipp AJA agreeing); Spruill v Director General of the Department of Community Services [2001] NSWCA 413 at [24] per Beazley JA.

34 The question posed by Mrs Coshott’s summons in this Court with respect to the costs certificate is identical to that which McLoughlin DCJ heard and ruled upon.

35 In those circumstances, a very clear case of res judicata can be seen. As well, because the claim involving this costs certificate is a collateral attack on a final decision by another court of competent jurisdiction, it amounts to an abuse of process: Johnson v Gore Wood and Co (a firm) [2002] 2 AC 1 at 30-3 per Bingham LJ.

36 The attempt of Mrs Coshott to relitigate the question of whether Mr Scammell, the costs assessor, acted ultra vires when issuing this costs certificate is doomed to fail. It cannot possibly succeed. It is an abuse of process.

37 The solicitors are entitled to succeed on their notice of motion in so far as it deals with this costs certificate.

Costs Certificate 91968/2003

38 This costs certificate was issued by Mr G.A. Salier on 29 October 2008.

39 The solicitors were the applicants for the costs certificate. Mr Robert Coshott was the only respondent to that application.

40 The solicitors submit that the present plaintiff, Mrs Coshott, has no standing to challenge a costs certificate issued in respect of a different respondent, namely her husband, being a matter in which she had no relevant interest.

41 The solicitors submit that for this reason it is appropriate that this claim in the proceedings be summarily dismissed.

42 Mr Bliim of counsel, who appeared for Mrs Coshott, in oral submissions accepted, entirely property and appropriately, that this submission was correct.

43 I am satisfied that Mrs Coshott cannot possibly succeed on this part of her claim. It is manifestly groundless. Summary dismissal is appropriate.

44 The solicitors are entitled to succeed on their notice of motion in so far as it relates to this costs certificate.

Costs Certificates 92068/2003 and 90495/2004

45 Each of these costs certificates was issued by Mr G.A. Salier on 29 October 2008. They were issued at the same time as the costs certificate to which I have just referred, but in respect of a different matter.

46 Each of these costs certificates name the solicitors as the applicants and Mr Coshott and Mrs Coshott, the present plaintiff, as the respondents.

47 The solicitors submitted that, in respect of these costs certificates, since Mrs Coshott had appealed to the District Court under the statutory right of appeal contained in s 384 of the Legal Profession Act, and that appeal had been finally disposed of, then, the maintenance of the proceedings in this Court amounted to an abuse of process.

48 On 26 November 2008, Mrs Coshott had filed a summons in the District Court in which she claimed relief with respect to these costs certificates upon the following grounds:

“A. Section 384 Appeal
(1) The costs assessor erred by taking into account matters which were not properly before him and/or irrelevant to his duties under the Legal Profession Act 2004.
(2) The costs assessor failed to take into account and/or give proper weight to the previous bills/accounts rendered by the defendant in the matters which were the subject of the determinations;
(3) The costs assessor erred by not performing his duties under the Legal Profession Act 2004 to apply his own mind to whether items claimed should be disallowed due to negligence or were unnecessary or being outside the term of the retainer.”

49 In addition, Mrs Coshott relied upon two further grounds to justify a grant of leave to appeal under s 385 of the Legal Profession Act.

50 In an amended summons by way of an appeal, filed on 1 July 2009, Mrs Coshott appended ten particulars of the appeal. It is not necessary to set out here all of the particulars of the appeal which were provided. It is relevant to note however that neither the grounds nor the particulars included any allegation which suggested that the costs assessor had acted ultra vires, nor did they include any grounds which suggested that it was not open to the costs assessor to proceed with the costs determination because of the bankruptcy of Mr Coshott and the fact that the original costs order, upon which the costs certificates were based, was only a joint one.

51 In short, the claims made in the District Court of NSW, arguably, did not reflect the particular claims being made by this Court.

52 The appeal was in due course listed for hearing before Robison DCJ on 15 December 2009. There is no evidence before me that there was any evidence or submissions filed in advance of the hearing date in the District Court.

53 On 15 December 2009, before the matter commenced to be heard by Robison DCJ, the parties entered into an agreement to resolve the proceedings. The agreement was encapsulated in handwritten terms which were to the following effect:

“By consent:

1. Proceedings dismissed.

2. The plaintiffs to pay the defendants’ costs including their costs of representing themselves, on a party/party basis as agreed or assessed, including costs reserved and costs of Notices to Produce and First Defendant’s Notice of Motion returnable 20/11/2009.

3. Note the Agreement of the parties that the defendants will accept the sum of Eighty-Five Thousand Dollars from Ljiljana Coshott in satisfaction of:
(a) the costs owed to the defendants in the matters of Citibank and Vardas; and
…
(c) costs pursuant to Order 2;

upon the proviso that the sum is paid to the defendants on or before 15 February 2010 and further that no portion of the sum is determined by any court or tribunal to be a preference payment by Ljiljana Coshott and provided further that Robert Coshott does not appeal or seek leave to appeal from Order of Robison J made 15.12.09 dismissing Robert Coshott’s proceedings.
4. Note the further Agreement between the second plaintiff and the defendants to refer to arbitration under the Commercial Arbitration Act 1984 their dispute as to the defendants’ entitlement to recover from the second plaintiff interest on the defendants’ costs and disbursements in the Citibank and Vardas matters and the rate of interest to be paid on the basis that if the parties cannot agree on the identity of the Arbitrator within 14 days then an Arbitrator is to be appointed by the President of the NSW Bar Association.”

54 When the handwritten terms were handed up to his Honour, the Court made orders in accordance with paragraphs 1 and 2 of the terms of settlement. Paragraphs 3 and 4 did not require any court orders since they merely asked the court to note the agreement of the parties set out in those paragraphs.

55 The result therefore, achieved by consent, was that the proceedings challenging the costs certificates was dismissed and the plaintiffs, Mr and Mrs Coshott, were ordered to pay the defendants’, the solicitors, costs.

56 In this Court, the solicitors submit that the maintenance of the claim with respect to these costs certificates is an abuse of process because Mrs Coshott is seeking to relitigate an issue which was previously determined.

57 The meaning of the term “abuse of process” was recently considered by the High Court of Australia in Batistatos v Newcastle City Council (2006) 226 CLR 256. Gleeson CJ, Gummow, Hayne and Crennan JJ noted at [9]:

“What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum …”.

58 In PNJ v R (2009) 83 ALJR 384 at [3], the Court said:

“It is not possible to describe exhaustively what will constitute an abuse of process. It may be accepted, however, that many cases of abuse of process will exhibit at least one of three characteristics: (a) the invoking of a court’s processes for an illegitimate or collateral purpose; (b) the use of the court’s procedures which would be unjustifiably oppressive to a party; or (c) the use of the court’s procedures would bring the administration of justice into disrepute.”

59 In commenting upon this decision in Bracks v Smyth-Kirk (2009) 263 ALR 522 at 551 [144], McColl JA said:

“Two other general observations should be made. First, the power to stay proceedings permanently, or dismiss them on the ground that they are an abuse of process should be exercised with caution … Second, a decision to stay or dismiss proceedings on the basis that they are an abuse of process involves the exercise of discretion.”

60 The argument of the solicitors, in support of the relief with respect to these costs certificates, included at least the following steps:

(a) The order made by the District Court, dismissing the proceedings, even if by consent, can form the valid basis for a res judicata argument which presents a bar to the proceedings in this Court;

(b) Even though the amended summons commencing an appeal in the District Court did not include as a ground that the decision by the costs assessor was ultra vires, the principles of Anshun would preclude Mrs Coshott now attempting to relitigate the matter;

(c) The commencing of the appeal under the Legal Profession Act in the District Court was inconsistent with now alleging jurisdictional error in the costs determination, on the basis that the costs assessor was acting ultra vires in carrying out his task. In this respect, the solicitors relied upon the decision of the NSW Court of Appeal in Dayeian v Davidson [2010] NSWCA 42 at [38] per Campbell JA (Basten and Macfarlan JJA agreeing).

61 Mrs Coshott as well as contesting these arguments argued that having regard to the fact that the only relevant order made in the District Court of NSW was that the proceedings be dismissed, the provisions of s 91 of the Civil Procedure Act 2005 meant that it was open to her to commence and maintain the proceedings in this Court without being at risk of the order of dismissal presenting a bar to these proceedings, in so far as the proceedings challenge the two costs certificates.

62 As well, Mrs Coshott submitted that it was at least arguable that because the costs assessor’s decision was ultra vires, it constituted no decision at all: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. Hence, the District Court of NSW proceedings did not preclude the exercise by this Court of its undoubted power under s 69 of the Supreme Court Act.

63 It is necessary to keep in mind that the prism through which these submissions are to be considered, is not one that demands that the submissions of Mrs Coshott are correct, but merely one that requires them to present an arguable path to the relief which she seeks, and that the grant of summary dismissal of those parts of the claim would be inappropriate.

64 In other words, Mrs Coshott submits that her claim is not “obviously untenable that it cannot possible succeed”.

65 A consideration of these submissions commences with an understanding of the nature of the proceedings in which the costs assessor is engaged.

66 An assessment of costs is a creature of statute. It is provided for in Part 3.2 of Chapter 3 of the Legal Profession Act. In particular, Division 11 of that Part provides for a process where an application may be made to the Manager Costs Assessment for an assessment of the whole or any part of a bill for legal costs. The Manager is responsible for referring the matter to a costs assessor who must determine the application having followed the statutory requirements in s 359 to s 363 inclusive.

67 Once the costs assessor has made a determination, s 368 provides that a certificate of that determination is to be issued to each party and the Manager Costs Assessment. The certificate sets out the determination made by the costs assessor. More than one certificate may be issued in relation to the same application for a costs assessment.

68 Subdivision 5 of Division 11 of Part 3.2 enables a party dissatisfied with a determination made by a costs assessor to apply for a review of the determination. Any review is referred by the Manager Costs Assessment to a review panel which has functions allocated to it under that subdivision.

69 Subdivision 6 of Division 11 of Part 3.2 provides for appeals to the District Court of NSW against the decision of either the cost assessor or the review panel. As has been noted earlier, s 384 gives a party dissatisfied with the decision of a costs assessor a right of appeal to the District Court on a matter of law. Section 385 gives a party the right to seek leave of the District Court to appeal to that court against a determination on matters of fact.

70 Section 372 is of importance. It provides:

“A costs assessor’s determination of an application is binding on all parties to the application and no appeal or other assessment lies in respect of the determination except as provided by this division.”

71 The terms of this section do not make it plain that it was intended to remove any jurisdiction of the Supreme Court to grant relief or a remedy by way of a judgment or order in the nature of prohibition or certiorari or the like. Even if the section did intend to so limit the jurisdiction of the Court, it is now clear that it is constitutionally impermissible for the NSW Parliament to deprive this Court of its supervisory jurisdiction with respect to inferior courts and tribunals, which would include a costs assessor and the District Court of NSW: Kirk v Industrial Court of NSW (2009) 239 CLR 531 at [96], [98]-[100].

72 Once the District Court has heard and determined an appeal, including any application for leave to appeal, there is no further right to appeal from the decision of the District Court to the NSW Court of Appeal. That is because the right of appeal to the District Court of NSW is created by a statute, the Legal Profession Act, and as I have noted in par 33 above, s 127 of the District Court Act does not permit any appeal.

73 It is clear however that even though no further relief can be granted by way of an appeal from a judgment or order of the District Court, the provisions of s 69 of the Supreme Court Act remain in place, thus ensuring that this Court retains its supervisory jurisdiction.

74 I am not satisfied that it has been proved by the solicitors that any res judicata exists to the requisite degree necessary on the motion. In other words, I am not satisfied that Mrs Coshott’s position is obviously untenable and she cannot possible succeed.

75 That is because, on the evidentiary material available to me, and in the light of s 91 of the Civil Procedure Act that:

(a) there has not been any final judicial determination involving any issue of law; and

(b) there is not any, or any sufficient identity, of issues between the grounds and particulars of the appeal to the District Court and the issues apparently relied upon in this Court.

76 I am not satisfied that the principle of Anshun would prevent Mrs Coshott from proceeding with her claim for relief in this Court with respect to these two costs certificates. Whilst the solicitors’ submissions have much to commend them, I cannot so completely dismiss Mrs Coshott’s arguments that I should, in my discretion, summarily dismiss this claim for relief in these proceedings.

77 That is because:

(a) the order made by the District Court was one that the proceedings be dismissed. Where there has not been any determination on the merits of the claim for relief, then s 91(1) of the Civil Procedure Act has the effect that the plaintiff is not prevented from claiming the same relief in joint proceedings;

(b) The consequences of this is that an order, of the kind made here, by consent, and without any hearing is no different from a discontinuance of the proceedings;

(c) In this particular case, the Consent Orders said nothing at all, and made no provision about, the costs certificates. The orders did not provide for the status of the two costs certificates. They were not set aside and varied. No doubt, if the conditional agreement set out in paragraph 3 of the consent orders had not been able to be performed, then the solicitors would have reverted to the costs certificates which would be enforced as judgments.

(d) The failure to include, in the District Court proceedings, the basis now articulated by Mrs Coshott, has not, having regard to the disposition of those proceedings, so clearly given rise to circumstances in which an Anshun estoppel would succeed, as would justify summary dismissal.

78 The third basis upon which the solicitors seek to have summary dismissal is that the decision of the NSW Court of Appeal in Dayeian v Davidson [2010] NSWCA 42 at [38] is authority for the proposition that pursuing a statutory appeal to the District Court of NSW under the Legal Profession Act is taking a path which is inconsistent with seeking prerogative relief in this Court.

79 The judgment of Campbell JA (with whom Basten and Macfarlan JJA agreed) does not go so far as to say that there is a necessary inconsistency between the two sources of relief. What it does say is that careful thought needs to be given by a dissatisfied litigant before choosing either of the available paths.

80 One basis why careful thought needs to be given is because the grant of prerogative relief by this Court is a matter of discretion. A relevant issue in the exercise of that discretion is that there is available another form of appeal against a relief from the decision under challenge: Bahadosi v Permanent Mortgages Pty Ltd (2008) 72 NSWLR 44 at [2] per Giles JA.

81 I am not satisfied to the requisite degree that the argument succeeds.

82 No doubt, the solicitors will rely heavily on these discretionary aspects when arguing against the claims of Mrs Coshott with regard to these two Certificates. But I am not persuaded that an argument, that a Court would refuse relief on only a discretionary basis must strong as it is ultimately succeed and therefore have the consequence that Mrs Coshott’s submissions are so without merit that there should be a summary dismissal of her claims on these costs certificates.

83 I am not prepared to grant summary relief as sought by the solicitors in respect of these claims.

Case Management

84 In light of my findings, there will be no further need to address costs certificate numbers 0017354/2009 and 91968/2003.

85 With respect to the balance of the costs certificates which are challenged by the summons of Mrs Coshott, I wish to make some observations which will lead to some case management orders.

86 The summons was filed on 14 July 2010, which is over 5 months ago. The summons relates to costs certificates, the earliest of which were issued in October 2008.

87 The proceedings which gave rise to the applications to have costs assessed and determined occurred in some cases as far back as 2003 and 2004.

88 No steps have been taken, as yet, in the current proceedings to ensure they will be ready for a hearing at an early opportunity.

89 The summons of Mrs Coshott is bad in form for a number of reasons:

(a) Although prayer 2 seeks an order that the costs certificates be set aside, which seemingly is a claim for relief under s 69 of the Supreme Court Act , the relevant decision makers have not been joined as parties;

(b) The terms of the various prayers for declarations and orders are unacceptable, vague and imprecise; eg, “ Declaration that the defendant has failed to handover two undertakings given by her to the plaintiff to pay monies ”. The following comments may be made: Which of the two defendants is the subject of this prayer? When were the undertakings given? What was the precise term or terms of the undertaking, and how have these been a breach? Similarly criticisms may be made of the other prayers for relief;

(c) The form of the summons does not remotely approach the requirements of r 6.12A of the UCPR.

90 It is also quite unclear from the only affidavit filed in support of the summons, which is that sworn by Mr Robert Coshott and filed on 14 July 2010, what evidence is relied upon to ground the claim for relief.

91 Accordingly, in the orders which follow, I propose a strict timetable for compliance by the parties, and to make an order for the hearing of the matter.

Orders

(1) Pursuant to r 13.4 of the UCPR, the summons is dismissed in part in so far as it relates to Certificates of Determination 0017354/2008 and 91968/2003.

(2) The plaintiff is to file and serve an amended summons, the form of which is to comply with r 6.12A of the UCPR, on or before 4pm, Friday 3 December 2010.

(3) The defendants are to file and serve a statement setting out briefly but specifically the defendants’ response to the plaintiff’s summons, including the legal grounds for opposition to the relief claimed, on or before 4pm, Friday 17 December 2010.

(4) The plaintiff is to file and serve any affidavit evidence upon which it intends to rely, on or before 4pm, Friday 14 January 2011.

(5) The defendants are to file and serve any affidavit evidence upon which it intends to rely, on or before 4pm, Friday 21 January 2011.

(6) The plaintiff is to file and serve any affidavit evidence in reply on or before 4pm, Friday 28 January 2011.

(7) The parties are to file and serve written submissions on or before 4pm, Friday 4 February 2011.

(8) List the matter for hearing on Friday, 25 February 2011 for one day.

(9) Each party to pay her and their own costs of the notice of motion for summary dismissal.

(10) Plaintiff to pay the defendants’ costs of and occasioned by the amendment of her summons.

(11) Liberty to apply on 72 hours’ notice.

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