Ezekiel-Hart v Law Society of the Australian Capital Territory

[2013] ACTSC 182

EMMANUEL TAM EZEKIEL-HART v THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY, ROBERT REIS, LARRY KING and ROD BARNETT

[2013] ACTSC 182 (23 August 2013)

PRACTICE AND PROCEDURE - where orders erroneously recorded on bench sheet – “costs of and incidental to”   

Court Procedures Rules2006 (ACT) rr 425, 1605, 1751

EX TEMPORE JUDGMENT

No.   SC 303 of 2009

Judge:             Master Mossop
Supreme Court of the ACT

Date:              23 August 2013

IN THE SUPREME COURT OF THE     )
  )          No.   SC 303 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:EMMANUEL TAM EZEKIEL-HART

Plaintiff

AND:THE LAW SOCIETY OF THE AUSTRALIAN NATIONAL CAPITAL TERRITORY

First Defendant

ROBERT REIS

Second Defendant

LARRY KING

Third Defendant

ROD BARNETT

Fourth Defendant

ORDER

Judge:  Master Mossop
Date:  30 August 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The Registrar draw up orders and enter the orders of the Court on 31 August 2009 in the form filed 2 June 2011 except deleting the words “this application” and inserting “the proceedings”.

1. The filed orders marked as entered 20 May 2010 and filed 2 May 2011 be notated that they have been superseded by the orders made pursuant to order 1.

1. The application dated 9 August 2013 is dismissed.

1. The application dated 16 August 2013 is dismissed.

1. There are two applications presently before me. The first is an application in proceedings filed by the plaintiff seeking to clarify the meaning of certain orders of the Court made on 31 August 2009. The second is an application filed by the defendants on 16 August 2013 seeking that the plaintiff’s application in proceedings be struck out pursuant to rule 425 of the Court Procedures Rules2006 (ACT). Both applications are misconceived and must be dismissed.

2. The application of the plaintiff concerns proceedings between the plaintiff and the Law Society and three other named defendants, which were commenced on 17 March 2009. The defendants in those proceedings applied on 29 July 2009 to have the proceedings struck out. The orders sought on that application were to the effect that the proceedings be struck out under rule 425, and proceedings dismissed pursuant to that rule or, alternatively, that summary judgment be given under rule 1147. No specific order was sought in the application in relation to costs. Chief Justice Higgins made orders on 31 August 2009, striking out the claim, dismissing the proceedings and entering judgment for the defendants.

3. The bench sheet kept by the associate dated 31 August 2009 recorded the order of the Court in relation to costs as, “HH orders the plaintiff pay the defendants’ costs incidental to this application”. 

4. The order of the Court was made when it was pronounced in Court, see rule 1605(1)(b). The order could not be enforced or appealed unless it was filed. The decision of the Court was subject to a purported appeal which was ultimately dismissed as incompetent by President Gray of the Court of Appeal: [2010] ACTCA 6. Leave to appeal to the High Court was dismissed: [2010] HCASL 210. There have been other proceedings subsequently between the parties.

5. On 17 May 2010, the plaintiff filed for settlement by the registrar draft orders which recorded the order for costs in the terms recorded on the bench sheet.  That draft was approved and signed by a deputy registrar on 20 May 2010.  The order in relation to costs was, “[a]nd there be an order that the plaintiff pay the defendants’ costs incidental to this application”.  Subsequently, the defendants filed a draft order which provided, in relation to costs, “[t]he plaintiff pay the defendants’ costs of and incidental to this application”.  The registrar approved that draft and it was filed on 2 May 2011.  No order was made in relation to the earlier affected order.  In particular, no order under the slip rule, r 6906, or under the inherent powers of the Court, was made at that time.  There is no clear explanation from the file as to how the situation was permitted to arise where two mutually inconsistent orders were perfected in relation to a single order of the Court.

6. A bill of costs was filed on 14 April 2011 and a notice of objection to a bill of costs was filed on 30 August 2011.  That notice of objection contended that the order of the Court was for costs of the day.   The bill was subject to an assessment, and on 7 September 2011, the bill was assessed at $32,707.56.  I am told, although there is no clear evidence of it, that the costs permitted were only the costs of the application in proceedings which led to the proceedings being dismissed rather than the costs of the whole of the proceedings.  That approach would have been consistent with the defendants’ version of the perfected order which refers to the costs of the application rather than the cost of the proceedings.

7. A certificate of assessment was sealed on 16 September 2011.  No application for reconsideration of the decision of the registrar was filed under rule 1851, hence it was not open to the plaintiff to seek review of the reconsideration decision pursuant to rule 1855.   The certificate of assessment, when signed, sealed, and filed by the registrar, operates as if it were an order of the Court, see rule 1835(6).  The cost assessment formed the basis of bankruptcy proceedings.  A bankruptcy notice was issued on 13 June 2012 in part reliant upon the costs assessment.  On a date which is recorded in Mr Phelps’ affidavit as 6 June 2013, a sequestration order was made by a registrar of the Federal Circuit Court.   That order has been subject to further proceedings in the Federal Circuit Court.

8. In relation to the order that was made on 31 August 2009, although Mr Ezekiel-Hart told me that he did have a transcript of proceedings for that day, it was not in evidence before me.  Because of the contest over the terms of the order made and in the absence of a transcript, I obtained and listened to the audio recording of the proceedings on that day and, in particular, the terms of the orders made orally in open court by his Honour.  The order pronounced orally by his Honour was, “the plaintiff pay the defendants’ costs of and incidental to the proceedings”.  Two points should be noted.  The order includes the “of and” contained in the defendants’ filed version of the orders.  Secondly, the order refers to costs of the “proceedings” not the “application” which differs from the bench sheet and from both of the filed versions of the order.

9. If there was any doubt about the issue, the defendants’ version, insofar as it refers to costs of and incidental to the application, is the only order which made sense.  An order that a party pay costs incidental to an application or, indeed, proceedings, is not one which would have had any useful meaning or one which I have ever known to be made.  I do not accept Mr Ezekiel‑Hart’s submissions that such an order would be appropriate because when the Chief Justice was dealing with the strike out application brought by the defendants, he was dealing with an application which sought an indulgence from the Court.  In my view, the application that his Honour was dealing with clearly did not fall within that category. 

10.  There is a debate as to whether the words “and incidental to” add anything to an order that a party pay costs of an application or proceedings.  My view is that it does not, and an order that a party pay costs, is sufficient.   Rule 1751(2) provides, “[i]n assessing costs on a party and party basis, the registrar must allow all costs that the registrar considers were fair and reasonable for the attainment of justice or for enforcing or defending the rights of the party whose costs are being assessed”.  Further, costs of proceedings, a term used in the general costs provision in rule 1721, is expressly defined in rule 1700 to include costs incurred prior to proceedings and costs of attempts to settle proceedings either before or after the commencement of proceedings.  Therefore, the addition of the words “of and incidental to” are superfluous, and as this case demonstrates such superfluity adds to the potential for confusion and error.

11.  The position is, therefore:

(1)   The plaintiff’s filed version of the Chief Justice’s orders which reflects the associate’s bench sheet is wrong in that it omits the words “of and”. 

(2)   The defendants’ filed version of the Chief Justice’s orders is correct insofar as it includes “of and”. 

(3)   Both versions of the orders are incorrect insofar as they refer to the “application” because they should refer to the “proceedings”. 

(4)   While the bill drawn up by the defendants relates to the costs of the whole of the proceedings, to which, under the Chief Justice’s order as pronounced, they were entitled, it appears that costs were assessed on a basis confined to the costs of the application in proceedings.  However, given that the defendants were entitled under the order pronounced, to an approach that was broader than the assessment, any error, if it existed, does not provide a basis for the plaintiff to impeach the certificate of assessment.

12.  Given the fact that none of the documents prepared, namely, the associate’s bench sheet, the plaintiff’s filed version of the order, the defendants’ filed version of the order, accurately reflect the order made by the Chief Justice, I am satisfied that I should make an order which ensures that the record of the Court accurately reflects the orders made by the Chief Justice.

13.  The defendants have indicated that they will rely on the assessed costs order and not seek, if they could, any more favourable assessment as a consequence of any amendment that I make to correct the records of the Court.  Given that the erroneous order resulted from the accidental omission from the associate’s record of the orders that were made by the Court, an order correcting the order is permitted by rule 6906.  This is also within the inherent power of the Court (see Civil Procedure ACT at [6906.20]).

14.  Therefore, I will order:

1. That the Registrar draw up and enter the orders of the Court on 31 August 2009 in the form filed on 2 May 2011, except deleting the words “this application” and inserting “the proceedings”.

2. That the filed orders, marked as entered on 20 May 2010 and filed on 2 May 2011, be notated that they have been superseded by the orders entered pursuant to order 1.

15.  The plaintiff’s application seeks what appear to be declarations concerning the costs recoverable under the order.   Although the terms of the application are difficult in some respects to understand, the effect of the orders sought appears to be an attempt to confine the costs payable under the order to costs of the 55 minutes of hearing on 31 August 2009 or at least to the costs of the day and not to the whole of the proceedings or the whole of the application.

16.  There are two reasons why the application must be dismissed.  First, as I have explained above, the order of the Court was that the plaintiff pays the costs “of and incidental” to the proceedings.  The contentions of the plaintiff in the application that has been made are inconsistent with the orders of the Court.  Second, if there was to be a contest as to the amount permitted on assessment by the Registrar, the rules required that that be done by way of an application for reconsideration under rule 1851 and by an application for review under rule 1855 and not by a collateral process such as this.  I see no reason why the procedures set out in the Court Procedures Rules should not be enforced in the present case.

17.  As a consequence, the third order that I will make is that the application in proceedings dated 9 August 2013, be dismissed.

18. The defendants have also put on an application seeking that the plaintiff’s application in proceedings be struck out under rule 425, and seeking that judgment be entered for the respondents. Rule 425 has no application to interlocutory applications. It applies to pleadings (see rule 425(1)). The application for judgment makes no sense. Judgment has already been given.

19.  The fourth order, therefore, that I will make, is that the application in proceedings dated 16 August 2013 is dismissed.

20.  Two final comments should be made.  First, nothing I have said and no order that I have made is intended to affect the validity or operation of the certificate of assessment as it has effect as if it were an order of the Court and no order of the Court has been made varying it or setting it aside.   Second, this case emphasises the importance of the accuracy of recording by associates of the orders of the Court and the importance that associates verify with the relevant judicial officer, or by listening to the audio of proceedings, the terms of the orders which they record on bench sheets.  It illustrates the potential for waste of time and money that can arise from inaccuracies in the recording process.   

21.  As a consequence, I will make each of the four orders which I have anticipated, and I will hear the parties as to costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.

Associate:

Date:   2 September 2013

Counsel for the plaintiff:  The plaintiff appeared in person
Counsel for the defendants:  Mr A M Hijazi
Solicitors for the defendants:  Phelps Reid Lawyers
Date of hearing:  23 August 2013

Date of judgment:  23 August 2013