Falamaki v Wollongong City Council

[2009] HCATrans 56

[2009] HCATrans 056

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S89 of 2001

B e t w e e n -

DR MASOOD FALAMAKI

Applicant

and

WOLLONGONG CITY COUNCIL

Respondent

Summons

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 17 MARCH 2009, AT 9.48 AM

Copyright in the High Court of Australia

MR D.M. SHOEBRIDGE:   If the Court please, for the applicant on the summons.  (instructed by FCB Solutions at Work)

MR M.C. VASSILI:   If it pleases the Court, for the respondent.  (instructed Vassili Fozzard Lawyers and Consultants Pty Ltd)

HIS HONOUR:   I have read an affidavit of Julian Sefton which was filed on 3 December 2008 by the Council and also an affidavit of Dennis Charles Williams which was filed on 11 March 2009.  Is that the totality of your evidence, Mr Shoebridge?

MR SHOEBRIDGE:   It is, your Honour.

HIS HONOUR:   Is there any evidence that you want to rely on, Mr Vassili?

MR VASSILI:   Your Honour, yes.  The purpose of my appearance today, or the limit to my instructions are to seek an adjournment today.  I apologise to the Court firstly for the late seeking to tender material.  I received an affidavit this morning from Mr Falamaki and I would seek leave to tender ‑ ‑ ‑

HIS HONOUR:   Has Mr Shoebridge seen that?

MR VASSILI:   Yes, he has.

HIS HONOUR:   You wish to file that in Court?

MR VASSILI:   Yes, your Honour.  It goes to the issue of the adjournment.

HIS HONOUR:   Thank you.  Do you oppose the grant of leave to file it in Court, Mr Shoebridge?

MR SHOEBRIDGE:   No, your Honour.

HIS HONOUR:   Leave is granted to file in Court the affidavit of Masood Falamaki which was sworn on 17 March 2009.  I will just read it.  Yes, I think I have a general grasp of the points made by Mr Falamaki.  What is the precise basis on which the adjournment is sought?

MR VASSILI:   The basis upon which it is sought is, your Honour, as identified in the affidavit, your Honour, is that Mr Falamaki is essentially a self‑represented litigant apart from some assistance here and there from both myself and Mr Knaggs.  Compounding that is his wife recovering from now two operations dealing with cancer which requires his full energy and attention.  As the affidavit attests, there are seven sets of proceedings, five of which have been commenced by Council and it has been purely an economic and time constraint for him to properly prepare his case now in opposing the application by the applicant.  The affidavit identifies that Dr Falamaki has identified some inaccuracies in the affidavits in support of this application. 

While it is not clear in the affidavits what those inaccuracies are, my instructions are, your Honour, that they go to substantial issues in the leave application, accuracies as to instructing solicitors, Peedoms, knowing about or communicating to Council about the existence of a costs order.  As I understand their application, part of it is or the substance of it is that they did not know of this costs order.  Again, I apologise, this is being put from the Bar table and it is not in the affidavit, but my instructions are that Dr Falamaki wants the opportunity to put to the Court what those inaccuracies are which go to the heart, as I have submitted, to their application of not knowing.  It is an out of time application for costs and part of the consideration of the Court is what the reason for that delay is.  As I understand from the affidavits of the solicitor, Julian Sefton, and the other affidavit is that there was a lack of knowledge on their part as to the existence of costs.

Going back to the heart of the basis of the application for the adjournment, as I have said, your Honour, we are dealing with a predominantly self‑represented litigant.  It has just been a constraint on him in terms of time.  He was served ultimately in January.  There is some suggestion from the affidavit material from the applicant that he knew about the possibility that Council would pursue its costs but he did not formally know about it until January of this year.

HIS HONOUR:   That is two months ago – 12 January is about two months ago.  Let me just check one thing.  At least Mr Sefton’s affidavit would have been available at that time.  Mr Williams’ is, of course, of much more recent provenance.  So in a nutshell, the position is that Dr Falamaki will be contending the Council did know about the costs order and it is not just a series of mistakes by solicitors who are no longer involved in the case.  I have difficulty in seeing how he can prove that case.  I mean, I am not in any way disputing your bona fides in what you have been saying to me, but, what, he intends to cross‑examine Mr Sefton and Mr Williams in the light of affidavits that he will put on?

MR VASSILI:   Yes, they are my instructions.  Further to that point, some of his instructions to me were that he was seeking – and I do not wish to delve into the merits of this aspect of the instructions, but he has written to the Attorney‑General on the issue of perjury.  He holds not an insignificant belief or a slight belief that there are grave inaccuracies in those affidavits.   

I mean, there is one at paragraph 4, if I could take your Honour to it, just as an example that was given to me.

HIS HONOUR:   Paragraph 4 of?

MR VASSILI:   Of the affidavit of Julian Sefton, paragraph 4.  It is very early in setting up this pattern of not knowing.  He says that a solicitor, David Peedom, in August 2004, in the last sentence, your Honour, “ceased ‑ ‑ ‑

HIS HONOUR:   He “ceased to act due to his retirement”, yes.

MR VASSILI:   Yes, “from professional practice”.  One of the discrepancies, according to Dr Falamaki, is that he had not retired from professional practice.  He had moved to another practice.  Although that of itself is not significant, there is a whole chain of events which Council seeks to rely upon in explaining how it did not know that it could pursue its rights for costs.

HIS HONOUR:   Yes, very well.  What is your attitude, Mr Shoebridge, to the application?

MR SHOEBRIDGE:   Your Honour, it is opposed.  Firstly, Dr Falamaki has been aware of the substance of the Council’s case since 12 January and there really is no basis given for Dr Falamaki providing an affidavit saying he hopes to have an explanation on the day of the hearing.  Perhaps more crucially, your Honour, the evidence that Dr Falamaki, it appears, is seeking to put before this Court is attacking a straw man in terms of the applicant’s argument before this Court.  Paragraph 53 of Mr Williams’ affidavit makes that clear, your Honour.

HIS HONOUR:   Yes, I have paragraph 53 and you say that Dr Falamaki is attacking a straw man?

MR SHOEBRIDGE:   Yes.  Mr Williams’ explanation is that he overlooked providing McCabes with information in relation to the costs order – instructions in relation to the costs order because his focus was on the heavily litigated Supreme Court proceedings that Dr Falamaki had commenced and it was after that, on 11 November 2005, that Mr Williams got the rather unhelpful advice from McCabes that they were unaware of any costs order from the special leave application.  But Mr Williams is not asserting that he never knew, which is what Dr Falamaki, it appears, seems to take issue with. 

Your Honour, my friend has been in receipt of instructions since 5 March, although only filing a notice of appearance in this Court quite

recently.  So, your Honour, the adjournment appears to be futile insofar as it seeks to put evidence before the Court seeking to contest the state of mind of Mr Williams that the applicant does not assert and, in any event, Dr Falamaki has had two months to address this matter.  So, your Honour, it is opposed.

HIS HONOUR:   Yes, thank you.  Anything you want to say in reply on this question of the adjournment, Mr Vassili?

MR VASSILI:   Perhaps not in reply, but one other aspect that I would wish to raise is the issue of prejudice.  This being an out of time application, the applicant being a public authority, the prejudice to the applicant is insignificant and, in our submission, outweighed by the prejudice to Dr Falamaki in not being able to put before the Court his side of events and his dispute as to the factual basis of the application.

HIS HONOUR:   The matter of Falamaki v Wollongong City Council was listed this morning because the Council on 3 December 2008 filed a summons which it amended on 9 March 2009.  That summons arises out of the fact that although on 17 September 2002 Chief Justice Gleeson and Justices Gaudron and Callinan dismissed an application by Dr Falamaki for special leave to appeal to this Court with costs.  No step has been taken to have that costs order made the subject of taxation and execution and accordingly, the amended summons seeks a variety of forms of indulgence in relation to extensions of time and other types of leave.

The summons and the affidavit in support of it of Julian Peter Sefton, solicitor for the Council, was filed on 3 December 2008 but, according to an affidavit filed in Court this morning by Dr Falamaki, it was not served at that time and Dr Falamaki only learned of those documents when he telephoned the Registry of the High Court and was informed that they had been filed and he says he was not actually served until 13 January 2009.

Mr Vassili, who is acting for Dr Falamaki, has made a number of points in support of his application that the proceedings be adjourned.  The purpose of the adjournment would be to enable Dr Falamaki to file evidence indicating inaccuracies in the affidavits on which the Council is relying.  Mr Vassili also points out that Dr Falamaki is self‑represented apart from some occasional assistance from himself and another solicitor.  He points out that Dr Falamaki’s wife has been seriously ill in that she has had two operations for cancer.  He points out that Dr Falamaki is involved in seven sets of proceedings with the Council.  He contends that the inaccuracies in the affidavits of the Council go to the heart of the application, the subject of the amended summons.

He says that Dr Falamaki instructs him that he wants to challenge the reasons given for the delay.  It seems that Dr Falamaki, in the face of a claim that the Council lacked knowledge that it was the beneficiary of the costs order of 17 September 2002, wants to contend that in truth the Council did have knowledge.  Finally, Mr Vassili pointed out that the seriousness of Dr Falamaki’s concerns is indicated by the fact that he has written to the Attorney-General alleging perjury.

Mr Shoebridge, who is appearing for Wollongong City Council, opposes the application for the following reasons.  First, Dr Falamaki has been aware of the Council’s case since 12 January 2009.  He argues that the evidence which Dr Falamaki wishes to call proving the Council’s knowledge of the costs order is attacking a straw man because Mr Williams, the corporate governance manager of Wollongong City Council, in his affidavit admits that he knew of the costs order but overlooked its existence because of the passage of time since it was made and the fact that he was focusing on Supreme Court proceedings.

Mr Shoebridge therefore submits that to grant an adjournment would be a futile thing if its only goal was to examine the Council’s state of mind because there is no contest about that state of mind, namely that a relevant officer did know of the costs order in question. 

In reply, Mr Vassili contended that his client would be prejudiced if he were not able to put his version of events before the Court in competition with those of the Council.  With all respect to Mr Vassili’s arguments, and Mr Vassili presented them lucidly and carefully, I have concluded that no case for an adjournment has been made out.  Dr Falamaki has had two months to deal as he sees fit with the evidence which has been filed against him and, even allowing for other claims on his time, there has been sufficient time to deal carefully, at least with Mr Sefton’s affidavit, and there has been – although the time has been short – some time in which to deal with Mr Williams’ affidavit.  Accordingly, to grant an adjournment would appear to be futile and I reject the adjournment application.

Now, I suppose, Mr Vassili, you have no further evidence other than the affidavit you filed in Court this morning?

MR VASSILI:   No further evidence.

HIS HONOUR:   Is there anything you want to say in addition to what you have said already in relation to the adjournment application, that is to say anything in opposition to the proposition that in relation to this costs order, which admittedly has been allowed to languish unenforced for an unconscionably long period of time, orders should now be made permitting the Council to have processes of taxation take place and then to execute it in whatever amount it is.

MR VASSILI:   Your Honour, as you would appreciate, it would be difficult to put something in terms very articulate to your Honour, but I might just convey the instructions or put this position.  Had Mr Falamaki had the opportunity to put some matters to you, it would have been matters of seeking to – the aspect of costs generally in terms of a self‑represented litigant coming before this Court in a situation Mr Falamaki found himself, not seeking to go behind the original costs order.  They were determined, but seeking then – if I could put it in this clumsy sense – having a second bite at the cherry, so to speak, and having a second attempt at an argument opposing a public authority that presses vigorously an argument of costs against a self‑represented litigant who feels aggrieved and comes before the Court is then subject to a costs order is doubly compounded by that public authority sitting on its hands and being, in essence, derelict in its duty, and then, in an opportune moment, strategically, seeks to recover costs from a self‑represented litigant.

I appreciate, your Honour, that that is a fairly clumsy set of words that I have constructed, but had we have had the opportunity, we would have put those matters to you and no doubt sought some assistance from some legal authority or guided you in that sense.  So thank you for that indulgence.

HIS HONOUR:   Not at all.  Thank you very much.  What do you say to that submission of Mr Vassili?

MR SHOEBRIDGE:   Although Mr Vassili submitted to you he did not wish to revisit the nature and the circumstances of the original costs order, your Honour, in truth, in my respectful submission, that is what Mr Vassili then sought to do.  On this application the costs order ought be taken as a given and the fact that a costs order was made against a self‑represented litigant is unusual but, on a special leave application, it was no doubt a matter that informed their Honours.

HIS HONOUR:   I do not know that it is all that unusual.  It is the rule.

MR SHOEBRIDGE:   Yes, your Honour.

HIS HONOUR:   There might be some types of litigation in which it would not be made, but unfortunately it is just a price that has to be paid.

MR SHOEBRIDGE:   Your Honour, that is the circumstances the public authority finds itself in – involved in…..circumstances of litigation with Dr Falamaki.  The explanation for the delay is given in the affidavits and paragraph 18 of the written submissions sets out the factors that explain the delay, in my respectful submission.  It is unfortunate that there was the delay but the circumstances are explained, in my respectful submission, with Mr Williams being actively involved in litigation commenced by Dr Falamaki in respect of the same subject matter only a month after the conclusion of the special leave application.

That litigation, your Honour, you will note from the material in Mr Williams’ affidavit, has been protracted, it has been lengthy, it has involved numerous interlocutory judgments in that court and, understandably, the Council’s attention has been taken from the costs order that was made in September 2002.  There is no prejudice to Dr Falamaki.  The Council does not benefit from the delay in any way, shape or form.  No interest can accrue.  The Council is just simply seeking to have the costs that were ordered by this Court following the special leave application, your Honour.

HIS HONOUR:   Thank you.  Anything in reply, Mr Vassili?

MR VASSILI:   Only this, your Honour.  Just insofar as the last part of my friend’s submissions in terms of the prejudice, the prejudice is – when the costs orders were awarded at first instance, they were in the form of recompense for costs that the Council had been put to in defending the proceedings.  The timing of these proceedings, as your Honour has alluded to by the affidavit that was filed in Court today, takes on a new sphere.  It takes on a punitive sphere.  It is a strategic timing of these proceedings, so only to say that in the ordinary course of events, the issue of costs has been determined.

This transcends, in my submission, ordinary costs.  It is now an issue of punitive costs, in a sense, because of the disadvantage that Dr Falamaki has now faced by virtue of the seven sets of proceedings that he has, five of which commenced by Council, the fact that he has a large civil claim against him in the Supreme Court and the timing of these other proceedings – it is not coincidental that these proceedings enliven themselves at the same time that Dr Falamaki has a large civil claim against Council.

So it is conceded that – I mean Council can pick and choose, in essence, in the ordinary course of events when it pursues its costs orders, but in relation to this one, this is an out‑of‑time one and it is a significantly out‑of‑time application and to conclude the submissions, it should not be allowed a punitive attack on Dr Falamaki in this application.  Thank you, your Honour.

HIS HONOUR:   Thank you.  The applicant applied for special leave to appeal to this Court against orders of the Court of Appeal of the Supreme Court of New South Wales on appeal from the Land and Environment Court of New South Wales.  On 17 September 2002, that application was dismissed with costs.

On 3 December 2008, the respondent Council filed a summons which was amended on 9 March 2009 seeking leave to file a bill of costs pursuant to rules 4.03.2, 10.01.3 and 54.01 of the High Court Rules in furtherance of the costs order made on 17 September 2002. 

The thinking underlying that application is that since more than three years have elapsed since any step was taken in the proceedings, leave is needed under rule 4.03.2 before the step of applying under rule 54.01 for leave to file a copy of the bill of costs in relation to 17 September 2002 costs order is taken. 

The Council also seeks leave under rule 10.01.3 to issue execution.  This is necessary because the capacity to issue execution as of right only applies within six years of the relevant order and more than that time has elapsed since 17 September 2002.  In a sense, this part of the application is premature, but it is desirable to minimise the number of court appearances in relation to this much delayed and bitterly contested controversy.  The respondent also seeks leave under rule 4.02, if necessary, to extend the time stipulated in rule 10.01.1. 

What explanation does the Council offer for its delay?  It relies on the following factors:  preoccupation with fresh litigation filed by the applicant or involving the applicant in respect of the same subject matter in the Supreme Court of New South Wales; a failure by Council officers to bear in mind the costs order; a failure, after a change of solicitors, to inform the new solicitors of the costs order; and a failure of the new solicitors to respond correctly to a specific inquiry on that subject.  I should say that the Council’s present solicitors are not those, the subject of those criticisms.  Those appear to me to be sufficient explanations for the delay, unsatisfactory though it is. 

Mr Vassili, who was appearing today for Dr Falamaki, advanced certain other reasons against making the orders sought.  He contended that a question arose as to whether it was right to enforce costs orders against self‑represented litigants.  He accepted that he was not seeking to go behind the costs order of 17 September 2002, but he questioned whether a court ought to accede to pressure from a public authority for costs orders having sat, to use his expression, “on its hands” for a long time before making the application.

He also made a second point that the enforcement of the costs order now was punitive.  The making of it in 2002 was not punitive because it was merely seeking compensation for the professional costs of solicitors and counsel incurred in preparing for the special leave hearings, but he submitted that the filing of the present application was punitive in view of the existence of seven other sets of proceedings, of which five had been commenced by Council.  He also submitted that the timing of the proceedings was influenced by the fact that Dr Falamaki had on foot a large civil claim against the Council.

As to the first of those two submissions, if there were to be any question raised about whether it was right that a litigant in person should have to pay – or for that matter, a private litigant generally – costs in relation to a dispute arising under the environmental legislation, the time to have raised it would have been before Chief Justice Gleeson and Justices Gaudron and Callinan in 2002.  The order having been made, I do not think that ground of criticism of it can now be successfully pressed.

As to the second of the submissions, in my judgment, the materials before the Court on this application do not support the criticism which was advanced on behalf of Dr Falamaki.  Accordingly, in my judgment, orders of the type which the Council seeks should be made except for one.  You seek a costs order, Mr Shoebridge.  Why should you have a costs order in your circumstances?  Is not just that there be no order as to costs?

MR SHOEBRIDGE:   Your Honour, I do not wish to say anything in relation to that.

HIS HONOUR:   Do you have anything to say about costs, Mr Vassili - on the assumption that I make an order that there be no order as to costs – in other words, that there be no order as to costs.  Do you want a more favourable order than that?

MR VASSILI:   We would say that in this particular – this is an unusual application.  It is an out‑of‑time application and Dr Falamaki has been put to costs by being pressed on to put his argument in reply.  Given the lateness of the service of the material and the reason that the matter finds its way before the Court as your Honour has articulated, we certainly would not oppose – we would be pressing for our costs.

HIS HONOUR:   A question as to costs arises.  In my opinion, the Council is not entitled to get any costs.  It did make an offer last year in which it stated that although it thought Dr Falamaki was liable to pay it approximately $35,000 in relation to 17 September costs order, it would accept $30,000.  That offer has not been accepted.  However, the letter in question did not foreshadow the present application and, in particular, it did not foreshadow the evidence on which the Council relies by way of explanation for its delay.  It is not possible to say whether or not either the offer or its rejection was unreasonable.  In those circumstances, an application to the Court by the respondent was necessary and it should, at least, bear its costs of that. 

However, on behalf of Dr Falamaki, it has been submitted that there should be a costs order in his favour and Mr Vassili has pointed to the fact that he has been put to expense by the application.  He has pointed to the lateness of the service of the material upon him.  In spite of those considerations, I think that the just order is that there be no order as to costs.  Each party should bear their own costs of this application. 

Accordingly, I make the following orders – or at least I propose to make them.  If either side has any objection to them, I will entertain argument about it:

1.That the respondent have leave to file and serve on the applicant a copy of the bill of costs to be taxed in relation to the costs order made by this Court on 17 September 2002.

2.The respondent have leave to issue execution on or before 17 September 2009 in relation to the costs so taxed.

Is there any problem with that, Mr Shoebridge or Mr Vassili?

MR VASSILI:   We would not oppose that.

MR SHOEBRIDGE:   Would your Honour be minded to grant the Council seven or14 days – 14 days in which to file the bill of costs?  It could be done within seven days, but just for clarity if leave could be given for seven days to file.

HIS HONOUR:   Do you want seven or 14?  I must say ‑ ‑ ‑

MR SHOEBRIDGE:   Your Honour, I think seven is appropriate in the circumstances.

HIS HONOUR:   Yes, are you happy with that?

MR VASSILI:   Yes, your Honour.

HIS HONOUR:   No other correction.  I will read the orders again with that change.

1.The respondent have leave to file and serve on the applicant within seven days a copy of the bill of costs to be taxed in relation to the costs order made by this Court on 17 September 2002.

2.That the respondent have leave to issue execution on or before 17 September 2009 in relation to the costs so taxed.

Thank you very much, gentlemen.  The Court will now adjourn.

AT 10.27 AM THE MATTER WAS CONCLUDED