Ferguson v Singler (No 3)
[2015] NSWSC 1154
•14 August 2015
Supreme Court
New South Wales
Medium Neutral Citation: Ferguson v Singler (No 3) [2015] NSWSC 1154 Hearing dates: 11 August 2015 Decision date: 14 August 2015 Jurisdiction: Common Law Before: Button J Decision: (1) The first defendant must pay the costs of the plaintiff of the proceedings before me, including the costs of the hearing of 11 August 2015.
Catchwords: COSTS – judgment entered in favour of plaintiff – grounds notified in summons amended by plaintiff on date of hearing – whether costs should follow the event – whether the plaintiff should pay the costs of the subsequent costs hearing Cases Cited: Ferguson v Singler [2015] NSWSC 891 Category: Costs Parties: Jeffrey Ferguson (Plaintiff)
Tony Singler (First Defendant)
John Eric McIntyre (Second Defendant)
Mark Campbell (Third Defendant)Representation: Counsel:
Solicitors:
M Castle (Plaintiff)
A Bailyer (Plaintiff)
E G Romaniuk SC (First Defendant)
M B Eirth (First Defendant)
Moray & Agnew (Plaintiff)
Bale Boshev Lawyers (First Defendant)
File Number(s): 2013/214439
Judgment
Introduction
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On 7 July 2015, I delivered a judgment upholding the claim of the plaintiff, Mr Ferguson, for judicial review of a decision of a costs review panel (the panel): see Ferguson v Singler [2015] NSWSC 891. As can be seen from my judgment at [95], I reserved costs to a later time on the joint application of the parties. This judgment resolves the question of costs.
Submissions
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In due course, I received concise but very helpful written and oral submissions from each counsel.
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Counsel for Mr Ferguson submitted simply that, whatever the history of the matter, and whatever the events that gave rise to the successful ground, the fact is that her client succeeded on a ground that had not been conceded by the first defendant, Mr Singler, and which was the subject of a hard-fought dispute.
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She also submitted that, although grounds one and two failed, it can be seen that they were only determined contingently by me, as against the possibility that my determination with regard to ground three was incorrect.
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In short, both orally and in writing, she submitted that the ordinary rule that costs should follow the event should be applied in this case.
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Senior counsel for the first defendant submitted that the ground that succeeded was founded, in a nutshell, on the assertion that Mr Ferguson had been denied procedural fairness by way of a document being before the panel of which the solicitors for the plaintiff were unaware; he invited me to my judgment at [73]-[75]. And senior counsel thereafter took me to material in the affidavits placed before me at the hearing in order to establish that it could not be said that that problem with the provision of documentation was entirely the fault of the solicitors for the defendant by any means.
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Senior counsel for Mr Singler also submitted that ground three was founded upon the proposition that Mr Ferguson was denied the opportunity to make submissions to the panel about the possible invalidity of the fees charged by senior counsel to the first defendant many years ago. However, he again took me to material tendered at the hearing to show that that submission had never been made previously by the solicitors for the plaintiff, including to the panel itself, when those solicitors were seeking to resist the costs order made against the plaintiff.
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Separately, whilst not gainsaying the proposition that ground three was fully disputed by him, nevertheless he did submit that it was first relied upon by the plaintiff as late as on the day of the hearing. In the circumstances, he submitted that his client should have his costs up until the date of the amendment, in light of my rejection of the other two grounds.
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As for costs accruing after the successful application for amendment that permitted reliance on ground three, he submitted that, because of the lateness of the notification of that ground, I should exercise my discretion to order that the plaintiff should pay the costs of the first defendant, even despite the success of the plaintiff with regard to ground three.
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Finally, he submitted that the plaintiff should pay the costs of the subsequent costs argument. That was because the costs argument was the direct result, in truth, of the late reliance by the plaintiff upon ground three.
Determination
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Turning to my determination, I consider that the question can be resolved simply.
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It is true that ground three was notified very late. It is also true that the substratum of ground three, founded upon the possible invalidity of costs charged by senior counsel to Mr Singler, had never previously been relied upon to resist or reduce costs payable by Mr Ferguson.
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But to my mind, what occurred many months before the hearing before me is not really to the point. The straightforward fact is that there was a hard-fought dispute between the parties as to whether or not there should be judicial review of the decision of the panel on any basis. Ground three was never the subject of concession by the first defendant. And yet it succeeded, and I made the orders sought by the plaintiff. In those circumstances, it is not easy to see why the simple rule that costs should follow the event should not apply here.
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Separately, it is quite true that the plaintiff did not find success with regard to grounds one and two. But, as my judgment makes clear at [77], I determined those grounds contingently only, as against the possibility that my determination with regard to ground three is mistaken. I did so merely for the convenience of the parties, and for a superior Court, if the matter were to be taken further.
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To my mind, simply because I made contingent findings for convenience that were obiter dicta and that were not determinative of the matter does not avail the first defendant in resisting costs.
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In short, the plaintiff succeeded in a contested hearing seeking judicial review. In those circumstances, costs should follow the event.
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Finally, the plaintiff has also succeeded in the costs argument, and he should have those costs as well.
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I make the following order:
The first defendant must pay the costs of the plaintiff of the proceedings before me, including the costs of the hearing of 11 August 2015.
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Decision last updated: 14 August 2015