Douglas v McLernon [No 4]
[2016] WASC 320 (S)
•21 DECEMBER 2016
DOUGLAS -v- McLERNON [No 4] [2016] WASC 320 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 320 (S) | |
| Case No: | CIV:1930/2012 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 21/12/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Orders issued | ||
| B | |||
| PDF Version |
| Parties: | OLIVER GEORGE DOUGLAS TERENCE JOHN McLERNON TONI FITZGERALD LAURENCE KERRY FITZGERALD ANTHONY BILLIS PAUL MATICH |
Catchwords: | Practice and procedure Costs application Unrepresented defendant Case dismissed at trial on the basis of no case to answer Previous periods of legal representation Application for costs |
Legislation: | Nil |
Case References: | Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403 Douglas v McLernon [No 3] [2016] WASC 319 Douglas v McLernon [No 4] [2016] WASC 320 Marsh v Baxter [No 2] [2016] WASCA 51 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
TERENCE JOHN McLERNON
Defendant
- Plaintiff
AND
TONI FITZGERALD
Third Defendant
LAURENCE KERRY FITZGERALD
Fourth Defendant
- Plaintiff
AND
TERENCE JOHN McLERNON
First Defendant
TONI FITZGERALD
Fourth Defendant
LAURENCE KERRY FITZGERALD
Fifth Defendant
- Plaintiff
AND
TERENCE JOHN McLERNON
First Defendant
TONI FITZGERALD
Fourth Defendant
LAURENCE KERRY FITZGERALD
Fifth Defendant
Catchwords:
Practice and procedure - Costs application - Unrepresented defendant - Case dismissed at trial on the basis of no case to answer - Previous periods of legal representation - Application for costs
Legislation:
Nil
Result:
Orders issued
Category: B
Representation:
CIV 1930 of 2012
Counsel:
Plaintiff : Mr G Mukherji
Defendant : In person
Solicitors:
Plaintiff : Tindall Gask Bentley Lawyers
Defendant : In person
CIV 2306 of 2012
Counsel:
Plaintiff : Mr G Mukherji
Third Defendant : In person
Fourth Defendant : In person
Solicitors:
Plaintiff : Tindall Gask Bentley Lawyers
Third Defendant : In person
Fourth Defendant : In person
CIV 2307 of 2012
Counsel:
Plaintiff : Mr G Mukherji
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Solicitors:
Plaintiff : Tindall Gask Bentley Lawyers
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
CIV 2308 of 2012
Counsel:
Plaintiff : Mr G Mukherji
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Solicitors:
Plaintiff : Tindall Gask Bentley Lawyers
First Defendant : In person
Fourth Defendant : In person
Fifth Defendant : In person
Case(s) referred to in judgment(s):
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Douglas v McLernon [No 3] [2016] WASC 319
Douglas v McLernon [No 4] [2016] WASC 320
Marsh v Baxter [No 2] [2016] WASCA 51
1 KENNETH MARTIN J: Under [336] of my substantive reasons for decision in relation to the actions CIV 1930 of 2012, CIV 2306 of 2012, CIV 2307 of 2012 and CIV 2308 of 2012, which were heard together at trial in June 2016, Douglas v McLernon [No 4] [2016] WASC 320, I reserved a period of time (subsequently extended) to allow two of the three in person defendants (Ms Toni Fitzgerald and her brother, Mr Laurence Fitzgerald, who were defendants in three of the four actions that were determined) to make written submissions in relation to costs orders, given trial outcomes in their favour.
2 Mr Laurence Fitzgerald has not made any submission concerning his costs. On that basis, dismissal of the three actions against him has been effected on the basis that there be no orders as to costs concerning him. Those orders will stand.
3 Ms Toni Fitzgerald has availed herself of the opportunity to file affidavit material seeking an award of costs in her favour in a number of respects as enumerated in her affidavits of 19 and 28 October 2016, then 14 November 2016.
4 It is apparent that in the filing of this affidavit material Ms Fitzgerald still acts in person, with a consequence that there is something of an imperfect understanding about the nature of the exercise. It will be remembered (see my separate reasons, Douglas v McLernon[No 3] [2016] WASC 319) that I dismissed all three actions brought against Ms Fitzgerald by the plaintiffs on the basis I was not satisfied that the plaintiffs had established a case for her to answer. At that time during the trials she was appearing in person and over a video link from New South Wales.
5 It now appears by material appended to Ms Fitzgerald's affidavit that she outlaid $192.50 as a disbursement to a corporation, Whygo Pty Ltd, on 22 June 2016 in order to use a video link facility for the purposes of participating in her ultimately successful no case to answer submission at the trials. At other periods as the trials proceeded she and Mr Laurence Fitzgerald were participants by telephone link. In these circumstances, it is appropriate that a disbursement which she has incurred in respect of accessing a video conference facility in New South Wales, which was necessary for her to participate in the trials, should be met by the plaintiffs. Ms Fitzgerald should be reimbursed for that out of pocket disbursement. As I read the written submissions filed on behalf of the plaintiffs (of 26 October 2016 and then 10 November 2016) that disbursement aspect of her application is not opposed by them: see par 23 of the plaintiffs' written submissions of 10 November 2016.
6 More substantive legal costs claims as are now foreshadowed under Ms Fitzgerald's affidavit material concern the following three payments which she seeks to recoup, namely:
(a) a payment of $1,302.40 to Ms Sue Chrysanthou, a barrister of Blackstone Chambers at Martin Place, Sydney. Ms Fitzgerald appends a copy of that barrister's tax invoice, as sent to a Mr Purcell of O P O'Neill Partners (solicitors of Hunter Street, Sydney). This is invoice 2623 of 3 September 2012. But O P O'Neill Partners do not appear to have ever been solicitors of record for Ms Fitzgerald in those actions. I set out the court's record concerning her period of legal representation in due course;
(b) an amount of $1,122 that was paid to Hotchkin Hanly Lawyers. The claim in respect of these moneys on the face of it would appear to be misconceived. Hotchkin Hanly were at a point solicitors of record for the plaintiffs. What appears to have occurred is that at some earlier point the former case manager, Le Miere J, had issued an adverse interlocutory costs order against Ms Fitzgerald as defendant, favouring each plaintiff. Orders were made against her then in respect of a payment of $374 to each plaintiff (ie, $374 x 3 = $1,122). The interlocutory costs amounts then appear to have been paid to Hotchkin Hanly on Ms Fitzgerald's behalf by a Mr Brownlee, some time thereafter. In those circumstances, a pursuit of a claim in respect of this adverse interlocutory costs order is not a feature that can be disturbed by the later successful trial outcome for Ms Fitzgerald. The underlying interlocutory circumstances surrounding the making of those adverse costs orders by Le Miere J are not entirely clear to me, although there is speculation in the opposing materials filed on the part of the plaintiffs, to the effect that the adverse interlocutory costs order against Ms Fitzgerald issued by Le Miere J following an event of non-appearance at a scheduled interlocutory hearing. I say no more about that other than the paid amount is not recoverable by reason of the trial outcomes in her favour;
(c) perhaps most substantively, Ms Fitzgerald seeks a costs order in respect of an amount of $15,000 which she says was paid on her behalf to the West Australian law firm CS Legal, a trading name for the corporation 'The Pier Group Pty Ltd'. Materials before the court appended to Mr Joyce's affidavit filed on behalf of the plaintiffs, as attachment SJ 3 (pages 13 - 14 of Mr Joyce's affidavit of 26 October 2016) indicates that CS Legal became solicitors of record for Ms Fitzgerald and Mr Laurence Fitzgerald on 24 February 2014. The court's integrated case management system (ICMS) record show that CS Legal were the solicitors of record for Ms Fitzgerald, only in the period from 24 February 2014 to 20 May 2014. After that they ceased to be solicitors of record. Furthermore, the ICMS records of the court show that at all other times, namely, in the period between 4 September 2012 to the present time, Ms Fitzgerald has been self-represented in the three actions concerning her - at least as regards the state of the court record.
Evaluation
7 Various issues are raised by the exchanged materials and rival submissions concerning the account of CS Legal, including as to whether that law firm was acting for Ms Fitzgerald as well as her brother, whether there ever was a settlement of the account, and whether the account was, in fact, met by Ms Fitzgerald. As to the latter point, however, the significant issue would appear to be whether there was a liability for the account which she incurred an exposure to: see the reasons of the Court of Appeal in Marsh v Baxter [No 2] [2016] WASCA 51 as regards legal costs liabilities.
8 In the presenting circumstances, it is not appropriate I resolve these contested issues concerning Ms Fitzgerald's claimed costs. The appropriate forum for that to occur is on a taxation of costs conducted before a Registrar of this court.
9 In the circumstances, the appropriate order which will issue to cater for the contingency of Ms Fitzgerald pursuing a claim of taxed costs in respect of an account paid in respect of advice received from barrister Sue Chrysanthou and for the period of legal representation provided just short of three months by CS Legal, is an order allowing her to claim and tax those costs.
10 Consequently, I would resolve the present application in respect of each of the three actions where Ms Fitzgerald was a participant defendant on a basis that she will receive her taxed legal costs of those actions from the plaintiffs, including any appropriate disbursements she has incurred, on a party-party basis. Any taxation would necessarily proceed, however, on a basis that by reason of the principle explained in Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403, such a recoupment on a taxation in respect of legal costs has no application towards periods when a participant party is self-represented.
11 Effectively then, the claim for costs by Ms Fitzgerald as foreshadowed concerning the invoice of barrister Sue Chrysanthou and the invoice of CS Legal will fall to be assessed at a taxation.
0
4
1