Gorczynski v Perera & Ors

[2007] HCATrans 199

[2007] HCATrans 199

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S136 of 2004

B e t w e e n -

PETER FRANCIS GORCZYNSKI

Applicant

and

RAVINI NELUKA PERERA

First Respondent

REBECCA PATRICIA DEE

Second Respondent

LEICHHARDT COUNCIL

Third Respondent

Summons for Directions

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 7 MAY 2007, AT 2.20 PM

Copyright in the High Court of Australia

MR P.F. GORCZYNSKI appeared in person.

MR W.J. VAN EDE:   If it please the Court, I appear for the first respondents.  (instructed by Tebbutt E.H. & Sons)

MR A.I. TONKING:   May it please the Court, I appear for the second respondent.  (instructed by Pike Pike & Fenwick)

HIS HONOUR:   Yes, Mr Gorczynski.  

MR GORCZYNSKI:   Your Honour, essentially this application is an application to seek an extension of time to ‑ ‑ ‑

HIS HONOUR:   Do you rely on an affidavit?

MR GORCZYNSKI:   Yes, your Honour.

HIS HONOUR:   That is your affidavit of 2 April 2007.

MR GORCZYNSKI:   2 April.

HIS HONOUR:   Any objections to that?  I have read the affidavit.

MR VAN EDE:   No, your Honour.

HIS HONOUR:   You rely on an affidavit, I think, Mr Van Ede, of Nyree Deirmendjian of 3 May 2007?

MR VAN EDE:   That is so, your Honour.

HIS HONOUR:   Any objections to that?  I have read the affidavit.

MR GORCZYNSKI:   No, your Honour.

HIS HONOUR:   Yes, go ahead.

MR GORCZYNSKI:   Just one thing.  I received the affidavit of Ms Deirmendjian at approximately 3.15 on Friday, 4 May served by express post.  I seek leave if I may to rely on a short affidavit and some documents in response to that affidavit.

HIS HONOUR:   Have you filed the affidavit?

MR GORCZYNSKI:   No, your Honour, I have not had time to do that.  I have it here; it is only a brief affidavit and the documents contained are ‑ ‑ ‑

HIS HONOUR:   Why do you not just tell me what is in the affidavit and the documents.

MR GORCZYNSKI:   Sure.  Essentially, the refusal of consent to the extension of time by the respondents relies on a request that I made to them, to which they replied by asking me to sign irrevocable authorities to do with matters which I say are not related to the application for taxation.  They nevertheless rely on certain documents from other proceedings to give rise to those irrevocable authorities.  They withheld their consent on the basis that I did not sign those irrevocable authorities.  What I seek to tender if the argument goes down that path, which I say it does not need to, is to tender some documents why I say that those irrevocable authorities or consents were in fact unconscionable.

HIS HONOUR:   At some stage there has to be an end to the issues in this litigation, so let us see how the argument develops and, if you want to renew your application to lead that evidence, then you can do so.  Why do you not just tell me at the moment what your application is and why I should grant it.

MR GORCZYNSKI:   The application is very simple.  Initially I was granted an extension of time to lodge objections to the bill on the basis that, firstly, under the rules I am not permitted to lodge objections to an application for taxation, or bill of costs, until the taxing officer makes an assessment of those costs in my absence.  I was given a deadline to lodge the objections to the bill.  There was a problem with my former solicitor who says he was not acting for me and had no instructions to accept the service of the bill.  The short of it is that the Deputy Registrar, Mr Grey, because of circumstances at the time, gave me an extension of time to file the objections. 

I was not able to meet that extension of time in that we were moving office and I could not locate all the material for the file, and the short of it is that I rang the Registry at half past 3 on the day that the objections were due and said, “Firstly, I have an inquiry about the filing fee and, secondly, immediately I get off the phone I’m on the way up to the Court to file the objections.  I have all the material there”.  I arrived here at the Registry at exactly 10 past 4.  I came to the Registry, the Registry was still open and there was another customer being served and eventually I spoke to Mr Grey.

HIS HONOUR:   How many time limits for filing of this objection have you so far failed to meet?

MR GORCZYNSKI:   Only two, the second occasion by 10 minutes.

HIS HONOUR:   Is the objection now ready for filing?

MR GORCZYNSKI:   Yes.

HIS HONOUR:   So that if I extended the time for filing the objection until 4.00 pm this afternoon it could be filed, could it?

MR GORCZYNSKI:   Yes.  I have the fee, I have – in fact, I have served the notice of objection.

HIS HONOUR:   Is that what you seek, an extension of time for filing the objection until 4.00 pm today?

MR GORCZYNSKI:   Precisely.  My argument simply is this, that I would not be here today and the parties would not be here today if they had not unreasonably withheld their consent to the request for an extension that I made several weeks ago on the basis that I came to the Registry 10 minutes late but the Registry refused ‑ ‑ ‑

HIS HONOUR:   When you came to the Registry 10 minutes late, it was 10 minutes late to comply with the second time limit that had been fixed.

MR GORCZYNSKI:   Yes, precisely, but in the overall scheme I would submit that that 10 minutes was – if I can say one thing.  When I rang at half past 3 – and it is deposed in my affidavit – I asked the Registry whether it was possible for the Registry to stay open if I was a few minutes late because I anticipated I might be caught in traffic.

HIS HONOUR:   What is the reason you were late?  I was not quite clear about that from your affidavit.

MR GORCZYNSKI:   The short of it is that the Registry initially gave me until 8 March to file objections in the normal course.

HIS HONOUR:   Yes, but that is the first time that you did not comply with ‑ ‑ ‑

MR GORCZYNSKI:   Yes, that was the first time.

HIS HONOUR:   I was now asking you about the second one.

MR GORCZYNSKI:   On the second occasion – what happened on the first occasion was that my former solicitor, because of his own admissions about not having done certain things, said he would provide me with an outline of draft objections which I could then add to.  I received that on 8 March, the day that the first deadline expired.  I contacted the Registry, explained the circumstances and they said, “We’ll give you an extension until”, I believe, “22 March”.

HIS HONOUR:   At 4.00 pm.

MR GORCZYNSKI:   At 4.00 pm.  Between 8 March and 22 March both the Registry – that is Deputy Registrar Carlsund I believe I spoke with – and my former solicitors knew that I was actually moving office.  We had packed up all our files and we were literally moving office in the course of the next two to three weeks – in fact, two weeks.  I was hopeful that I would have been able to file the objections by the 22^nd.  In fact, I had completed the objections and came to the Court on the 22^nd by the deadline date with all the documentation ready to file, including the filing fee, except for 10 minutes late.

HIS HONOUR:   I am still not sure why you were late.

MR GORCZYNSKI:   Two points.  One is I was caught up in the moving of my office and being able to locate all the files that I needed and, secondly, that when I rang at half past 3 that day, had it not been for an extra 10 minutes of being caught in traffic, I would have filed it on time.  I rang at half past 3 prior to coming here, asked the Registry whether they would extend the time by a few minutes so that if I was caught in traffic I could file it within time, and the Deputy Registrar at that point said, “No, we gave you till 4 o’clock.  That’s the end of it”.  I was nevertheless already on the way here.  I arrived here at 10 past 4 and that is when the Registry said, “No, we said 4 o’clock today”.

HIS HONOUR:   Am I right in thinking that the total amount of money involved in these costs is about $9,000?

MR GORCZYNSKI:   From the respondents’ point of view, that is correct, your Honour.

HIS HONOUR:   How much is the amount the subject of the disputes?

MR GORCZYNSKI:   I say that if the objections are allowed – and I do not believe I have been unreasonable in the objections – it would be reduced about $2,000.

HIS HONOUR:   So there is about $7,000?

MR GORCZYNSKI:   There is about $7,000 involved.  The circumstances of the bill are unusual in that the way that the proceedings were conducted on the special leave application, the first respondents, the party here, not the second respondent, relied entirely on the submissions of the second respondent and in effect had no work to do.  So I queried how it could be that they could raise a bill of $10,000 when ‑ ‑ ‑

HIS HONOUR:   These disputes are all about the first respondents’ bill?

MR GORCZYNSKI:   Yes, and what I put to the taxing office in my objections is a set of factual circumstances with evidence as to how it could be that the first respondents could claim $10,000 in circumstances where the second respondent, who did all the work in the Court, claimed a bill of 14.

HIS HONOUR:   That seems to assume a rather physical approach to what constitutes work in Court.

MR GORCZYNSKI:   It is on the basis, your Honour, of the notice that was filed by the first respondents in the Court saying that they relied on the submissions of the second respondent entirely.

HIS HONOUR:   At all events, if you are permitted to file this out of time, that is something that the taxing officer will have to resolve.

MR GORCZYNSKI:   Precisely.  It is a question of a roughly $7,000 difference.

HIS HONOUR:   Is there anything else you want to say as to why I should grant an extension of time until 4 o’clock this afternoon?

MR GORCZYNSKI:   Only on the basis of the material in my further affidavit which goes to the reasonableness or otherwise of the first respondents’ refusal.

HIS HONOUR:   I can tell you that I am not going to try and decide whether some contract is unconscionable for the purpose of resolving this dispute about $7,000 in relation to a bill of costs unless I take the view that for some reason that at the moment I cannot see it goes to the issues that I have to resolve.

MR GORCZYNSKI:   Yes, your Honour, and in the submission that I have made, the factors that the Court looks at in resolving that issue are several and we apparently seem to have some common ground on that.

HIS HONOUR:   Mr Gorczynski, if I were to grant you the extension of time you seek, which I take to be until 4 o’clock this afternoon, what do you say to the submissions by your opponents that you should in any event pay the costs of this application which is rendered necessary by your failure to comply with the extensions that have already been given?

MR GORCZYNSKI:   Your Honour, I can only answer that properly if I could take you to the material upon which they relied in refusing to grant the consent that I sought in the first place.

HIS HONOUR:   Well, do so.

MR GORCZYNSKI:   Thank you.  Your Honour, I would like to rely on an affidavit sworn today.

HIS HONOUR:   Have you shown the other side this affidavit?

MR GORCZYNSKI:   No, I am about to give them a copy.

HIS HONOUR:   Mr Gorczynski, you must have known before you came here that you were going to rely on this material.  Why have you not shown it to the other side this morning?

MR GORCZYNSKI:   Your Honour, I did not know because the affidavit that they relied on of 3 May was received by me, as I say, at 3.15 on Friday last week.

HIS HONOUR:   File the affidavit.  You have not seen this yet?

MR VAN EDE:   No, your Honour.

MR TONKING:   No, your Honour.

HIS HONOUR:   I will get Mr Gorczynski to show you his copy and you can tell me in due course whether you have an objection to it.  You tell me what follows from this and what relevance it has to the question of whether you should pay the costs in any event of today’s proceedings.

MR GORCZYNSKI:   Yes, your Honour.  If I can take you to my affidavit that has been allowed without objection, you will see at annexure H, which is page 31 of my affidavit of 3 April – sorry, I beg your pardon.  If you go back two pages at page 28 you will see my letter, annexure G, dated 29 March in which I asked for their consent to an extension of time, with the draft consent orders on the following page seeking to file the objection by 4.00 pm Monday, 2 April.  Then you will see at page 31 their response dated 30 March which attaches two irrevocable authorities and directions to pay – sorry, one direction to pay and the other an agreement.  In the direction to pay, they are asking me to pay an amount of $188,963.49 in favour of the respondents’ solicitors on settlement of the sale of my property.  The property was on the market and is on the market at the moment. 

The $188,000, your Honour, if I can take you to page 34, is a letter dated 26 March which is referred to in the letter of 30 March.  In this letter in the first paragraph, second sentence, they say:

The Applications for Assessment of Costs amount to $177,939.49 –

which are costs of not the High Court proceedings but other proceedings between the parties, and then they say:

Additionally a further award of costs was made pursuant to consent orders on 15 March 2007 ‑ ‑ ‑

HIS HONOUR:   Are these orders for costs that have been made against you in the past?

MR GORCZYNSKI:   The order for $11,000, no, your Honour.  That is an order made against my solicitor in person.

HIS HONOUR:   No, the order for $177,939.

MR GORCZYNSKI:   Yes, your Honour, the matter that came to the High Court ‑ ‑ ‑

HIS HONOUR:   Sorry, is the order for $177,939 an order for costs that was made against you in the past?

MR GORCZYNSKI:   Yes, your Honour.

HIS HONOUR:   When was that order made?

MR GORCZYNSKI:   That order was made – there was orders made on 3 February 2004 in their favour and similarly orders made in my favour, so they are offsetting orders.

HIS HONOUR:   When was the order for costs of $177,000 made against you; in what year?

MR GORCZYNSKI:   It was made in – initially one set of orders was made in 2004, another set of orders made in ‑ ‑ ‑

HIS HONOUR:   Have you paid those costs?

MR GORCZYNSKI:   No, they have not been assessed yet, your Honour.  They are the subject of an assessment that is still ongoing.

HIS HONOUR:   There is a dispute going on about those costs too?

MR GORCZYNSKI:   The assessment has not yet started, and offsetting against that 177 for me is a set of orders made in my favour which we have calculated in the order of $316,000.  All I am saying about that is put that aside for the moment, but they are basically unassessed costs – sorry, not basically; they are unassessed costs.  The $11,000 though, which is made up in the 188 that they have asked me to pay, is not a costs order against me.

HIS HONOUR:   The question I asked you that you need to address is this.  We are here because of your default, we are here because you have failed to comply with two time limits on your lodging a document and the other side have not consented and do not consent to such an order being made.  They are going to try and persuade me in a little while that I should not make such an order.  My question to you is; if I do make an order of the kind you are seeking, since we are here as a result of your default, why should you not pay the costs?

MR GORCZYNSKI:   Well, your Honour, I would say simply that my request for a consent to an extension that was made on 30 March, the terms on which they would agree to consent to the extension I say were unconscionable and they were not entitled to make those demands on me.  It is as simple as that.

HIS HONOUR:   They were obliged to consent?

MR GORCZYNSKI:   I would simply say that the terms that they tried to force me to agree to were just simply ‑ ‑ ‑

HIS HONOUR:   You did not accept them.

MR GORCZYNSKI:   I did not accept them, no, because they were not entitled to make those demands.

HIS HONOUR:   So we have got to the situation where they tried to get you to agree to something as a condition of their consenting and you would not agree to it.

MR GORCZYNSKI:   That is the short of it, yes.

HIS HONOUR:   I understand that.  We are here, they have not consented, you want the order made.

MR GORCZYNSKI:   Yes.  The short of my response to that, your Honour, is if whatever demand they put on me was a reasonable request, that is another thing, but to make demands on me which they were never entitled to make one way or the other ‑ ‑ ‑

HIS HONOUR:   But you have not accepted their demands.

MR GORCZYNSKI:   That is why we have ended up here.

HIS HONOUR:   No, we have ended up here because you did not comply with time limits.

MR GORCZYNSKI:   Yes, your Honour, I cannot argue against that.  It is that the ‑ ‑ ‑

HIS HONOUR:   What do you want me to take from this further affidavit that you have filed?

MR GORCZYNSKI:   Your Honour, if I could take you to the two irrevocable authorities which they tried to force me to sign, you will see again that on page 32 they demanded of me to pay $188,000‑odd which was made up of $177,000‑odd plus $11,000.  The $11,000 is not a costs order made against me at all; it was made against my solicitor in person.  Secondly, those costs of $177,000 have not been assessed and they are the subject of a massive dispute.  Thirdly, on the other irrevocable authority, they in essence asked me to agree to reinstate brick pavers pursuant to Land and Environment Court orders dated 27 June 2002.  There is no such order made against me to reinstate brick pavers on my own property.  The orders in fact were made against the respondents.  So that demand there also has no basis whatsoever.  So in essence, the two demands made on me were unreasonable, completely unreasonable.  Costs have not ‑ ‑ ‑

HIS HONOUR:   And you have never complied with them.

MR GORCZYNSKI:   Sorry?

HIS HONOUR:   You have not complied with them.

MR GORCZYNSKI:   Have not complied with?

HIS HONOUR:   Complied with the demands.  You do not have to.

MR GORCZYNSKI:   I do not have to but if they had made a demand otherwise reasonable, then that would be the case.  When you actually look at the first demand, it is not that they are objecting to the taxation proceeding; they are simply wanting to force me into paying moneys up front that they are not entitled to.  So it is not that it is a reasonable demand, it is just an unreasonable demand in both circumstances. 

So yes, I have refused to agree to those but, as I say, if they had been reasonable about this – because at the end of the day, what is the prejudice?  The costs orders were made in 2004 and 2005 in lower courts and in the High Court.  They did not seek assessment of the bills until November 2006.  It is nothing to do with me about that; that is their own choice.  They, for whatever reason, decided to lock me out of the taxation process by endorsing the bill under a particular rule which refuses to allow me to file any objections in the first place, yet in their submissions they complain I never lodged any objections to the bill.  I mean, I cannot; I am not allowed to by the rules. 

So on the one hand, what they are effectively doing is saying, “We’ll agree to consent to the extension of time if you agree to these demands”.  On the other hand, they are complaining in their submissions that they served the bill of costs in November, I have never sought to lodge any objections to it and therefore I have been a bad boy, but when you look at the rules, your Honour, the rules prevent me from lodging any objections to the bill until they have first been assessed by the taxing officer. 

So if I can put it to you this way; had they served the bill of costs on me at whatever date – it does not matter but, nevertheless, when they did – and said, “Here’s our bill.  What do you say about this, Mr Gorczynski?”, I could have, if time permitted and circumstances had been – I could have lodged the objections and given it to them and said, “Look, you say 10, I say 2”, or whatever the figure is, “Let’s see if we can agree on something in between”.

But that is not the path they took, your Honour.  The path they took was to – I can take you to the rule.  The path they took was to apply rule 57.01.2 and that says:

Where a party indorses a bill with a request under rule 57.01.1 –

If you come down to rule 57.01.5 it says:

Where a Taxing Officer has been asked to make an assessment –

which is the indorsement –

no notice of dispute or notice of objection may be filed –

By their own request they have filed a bill with the Court specifically requesting that I be prevented from lodging objections.  Then in their written submissions to this Court today they are complaining about me not having lodged objections at any time upon service of the bill.  I cannot lodge the objections; I simply cannot do it by the rules. 

Then when I have asked for a 10 minute extension of time, which is what it amounted to, they have said, “No, we’re not going to let you unless you give in to these demands”, which I say were unreasonable.  Now, by asking the Court to refuse the extension of time, they are trying to lock me out again from the taxation process.  They know that there is a hot dispute about the amount in question.  It is $10,000 and, your Honour, I agree it is a small amount in this Court but in the overall picture it is yet another component of the whole dispute. 

I say simply the basis on which they refused that consent was unreasonable and if they had agreed to it, there was no prejudice to them at all and they cannot really claim prejudice.  They did not seek to file a bill for nearly a year and a half after the orders were made, so where is the complaint, where is the damage?  There is none.  For that I have been brought here to stand in front of you.  They have brought their solicitors.  Costs have been incurred out of all proportion for something that could have easily been agreed to, the objections filed and we would be on with it.  It is an argument as to the reasonableness of what they have done, your Honour.  That is what it comes to.

HIS HONOUR:   Is there anything else you want to say?

MR GORCZYNSKI:   No, your Honour.  As I say, this affidavit that I now refer to simply attaches a copy of the terms of the agreement made in the Land and Environment Court as to what works that needed to be carried out.  I say there was no works required by me to be carried out on my own land, which is part of the demand they put on me.  There is a copy of the order made in the Supreme Court in relation to that $11,000 demand.

HIS HONOUR:   Yes, I have read the affidavit of Peter Francis Gorczynski of 7 May 2007.

MR GORCZYNSKI:   Sorry, your Honour, if you go to page 42 of the exhibit to that affidavit, you will see down at order No 6 it states:

The Defendant’s solicitor pay the Plaintiff’s costs as agreed or assessed.

That is in relation to the $11,000.

HIS HONOUR:   I think you mentioned that earlier.

MR GORCZYNSKI:   Yes.  So clearly they knew that the $11,000, they were not entitled to claim it from me, yet that is what they did.  I do not need to trouble you as to how that costs order came about but it is there.  So, as I say, there is that.  If you like, I can show you the order made in the Land and Environment Court which is not an order made on me to reinstate any brick pavers; it is an order made on them.  So again, the things they have asked of me are simply – they were not in any position to ever ask of me, and for 10 minutes extension of time this would not have been necessary today, your Honour.  That is what it comes down to.  That is essentially all I have to say.

HIS HONOUR:   Thank you, Mr Gorczynski.  Yes, Mr Van Ede.

MR VAN EDE:   Your Honour, in the submissions of the first respondents, Mr Gorczynski’s conduct in bringing to the Court today an affidavit which he has made no attempt to serve on either of the respondents in these proceedings actually characterises his conduct in relation to this aspect of the matter.  His characterisation of his own delay, in our submission, is generous in the extreme to say that what it all comes down is a delay of 10 minutes.  The reality for Mr Gorczynski was that he has had at least since 8 March personal conduct of preparing the objections to the bill of costs.  On each occasion when a deadline draws near, something happens at the last moment. 

Your Honour even gave Mr Gorczynski the opportunity to expand upon his two‑line paragraph 11 in his affidavit in order to explain why he missed the 4.00 pm on 22 March deadline.  In our submission, the explanation is still not satisfactory.  There is no explanation in his affidavit or from himself in any detail about what actually still needed to be done by him personally between 8 March and 22 March.  For example, he deposes that the solicitor was preparing a draft.  Nowhere does he annex a draft so that we can see how much work still needed to be done, and yet by his own word he attempts to get to the Court in the last half an hour that the Registry is open. 

Everything is left until the last moment.  There is no explanation for that.  Why did he not come in the morning?  Why did he not come the previous day?  Why is everything left until the absolute last possible moment?  It is the same in relation to making arrangements for the extension.  The Registrar of the Court is rung on the last afternoon to organise an extension.  That is the factual matrix within which Mr Gorczynski’s application sits and that is a lack of response initially to the bill of costs and then delay, delay and delay. 

Your Honour, in relation to the conduct of the first respondents in this matter, we say that nothing prejudicial has occurred.  The bill of costs

was served in accordance with the rules on his solicitor who was on the record in the proceedings.  There is no dispute about that.  We have done nothing wrong by doing that.  The first respondents were not consulted in relation to the first extension granted by the Registrar.  That occurred and the first respondents lived with that.  The first respondents waited until after the deadline of 8 March before filing their application for a certificate of taxation to issue.

There is absolutely nothing wrong in the conduct of the first respondents and, as your Honour so rightly characterised it, this matter has come to an end.  The request by the first respondents in relation to the applicant’s request for consent was a commercial one.  There is no doubt about that, your Honour, but we are not required to consent.  For the applicant to come here and say that it is the first respondents’ lack of consent which brings us here today is to totally torture the nature of this application.  It is his delay which brings us here today.  It is his delay which caused him to obtain a further extension and it is him or his legal advisers who did not respond to the bill in any way, shape or form initially.  The conduct is that of the first respondents and it is for those reasons that not only should this application be refused, but the first respondents should also be entitled to the costs of today.

HIS HONOUR:   Mr Tonking, where do you fit into this picture?

MR TONKING:   Your Honour, my client is not a respondent to the summons.  We are here today because the Registry wrote to us putting us on notice of it.  I actually only came into the matter this morning when other counsel was unavailable.  I do not seek costs of today.

HIS HONOUR:   Mr Gorczynski, do you want to say anything in reply to Mr Van Ede?

MR GORCZYNSKI:   Yes, your Honour, if I can.  I will try and be a bit more brief.  In my initial affidavit of 3 May you will see that my solicitors who were acting for me during the High Court proceedings took the view which was put to the Deputy Registrar by their letter of 22 February.  That is on page 8 of my affidavit.  They took the view that, for whatever reason, they believed that they were not acting for me or able to act for me at the time because they took the view that the retainer had ceased upon the hearing of the High Court appeal and the decision on the costs order.  That is the normal procedure under the Legal Profession Act if you retain the person for a specific period of work.  They took the view that their work had completed and they were not authorised to act for me beyond that point.

That is explained in Mr Chaffey’s letter to the Deputy Registrar on 22 February.  He certainly acknowledges that he received the bill of costs and he took the view that he was not in a position to accept service.  He had no instructions from me, he was unable to obtain my instructions because I was absent, and he relied on a case called Diemasters Pty Ltd v Meadowcorp, which is apparently an authority as to when does a solicitor’s retainer cease and to what extent is he obliged to act for the client or former client?  Mr Chaffey took the view he was not in a position to accept service and I believe he certainly advised the other side about that.

I certainly was not aware of the bill of costs.  The letter I am speaking of is on page 8 of my affidavit of 3 April.  You will see the reference to Diemasters down at the very bottom of the page.  I am aware of that case because I have read it and essentially it says that there is no such thing as a permanent retainer by any solicitor and that is an unreality.  That is the view he took.  I cannot take it any higher than that.  He certainly made that point to the Registrar and he also made the point that in the circumstances of the way the bill was filed with that particular indorsement under the rule, that there were certain matters in the bill, which is set out on page 2 of that letter, that ought to be brought to the taxing officer’s attention and that there was a certain claim in the bill that was certainly not in his view reasonable or acceptable.

So when it is said here that the bill was served on Mr Chaffey in accordance with the rules, that is the view taken by the respondents but it is certainly the view of Mr Chaffey.  The problem that created at the end of the day is that I never got to see the bill of costs until it was sent to me by Mr Chaffey on 19 February – that is set out in my affidavit – and in any event I could not do anything about it.  So when it is said here today that I received the bill of costs and did not make any response to it, I say again I am prevented under the rules from filing any objections or dealing with it at their request, so that is not a fair complaint to make against me.

Secondly, the first respondents do not come to this Court with clean hands because by their own admission in their own affidavit of Ms Deirmendjian, at paragraph 3 you will see that they too failed to comply with the rules.  They failed to serve the bill of costs in accordance with the rules, and they admit that in this paragraph, and they too had to seek an extension of time.  I am not a solicitor, I do not know the rules in and out.  They are solicitors, they do.  The excuse for not serving the bill was that Ms Deirmendjian was on leave.  That is their excuse.  But they are a firm of solicitors; they could have served the bill anybody in their firm at any time.  They did not, yet they complain about my default.  It is the pot calling the kettle black.

As I say, it is the conduct of what transpired after 22 February that led to this situation.  I can only explain, and I have explained, that I received a draft objection from Mr Chaffey.  Yes, I have not tendered it.  If I had it here I would.  It is simply an outline that says, “General objections 1, 2, 3.  Peter, fill in the rest as you wish”.  I received that on 8 March, which was the final day for the first deadline date.  I explained to Mr Chaffey prior to that that if he was going to draft the objections, I needed it well before that on 9 March because 9 March I was physically moving office and it would be impossible for me to deal with anything at the last moment. 

But that is what occurred.  I have deposed that in my affidavit.  What other explanation can I give about that?  I cannot.  The fact is I did not receive the draft until 8 March and I could not therefore file it on 8 March.  I then sought the extension from the Court.  They granted it to 22 March and I had until technically 4.00 pm on 22 March to file it.  Whether I rang the Court at half past 3 or tried to get to the Court at half past 3, that is not relevant.  I had until 4 o’clock to get there.  If I did it at 5 to 4, I would be within time, nobody would care.  The fact is that at half past 3 I rang the Court because I felt I am going to have problems getting there from where I was.  I asked the Court if they could hold the Registry open for a few minutes in case I was late.  That application obviously was not allowed, because when I got here at 10 past 4 it was rejected.

So to say that I have consistently failed to comply – there is two by me and one by them but at the end of the day, as I say, we are only here because of their refusal to grant the request.  The prejudice is not to them, it is to me if you refuse to grant the extension.  I will be prejudiced by the sum of at least $8,000 plus the filing fee for the application plus the costs of these people here today.

HIS HONOUR:   What costs of these people here today?

MR GORCZYNSKI:   They will no doubt – if you grant me the extension and you order me to pay costs, then they will be ‑ ‑ ‑

HIS HONOUR:   Which people are you talking about?

MR GORCZYNSKI:   I am sorry, it would be the first and second respondents.

HIS HONOUR:   You just heard the second respondent say they are not seeking their costs of these proceedings.

MR GORCZYNSKI:   Your Honour, I misunderstood that.  Then it is the costs of the – I did not hear that they were not seeking their costs.  I was paying attention to something else.  I thank them very much for that, but there are the costs of the first respondents that would be involved.  Given the length of their submissions, they will probably put quite a bill in for that

but, as I say, it just comes back to the fact that what was the real problem with allowing me to file the document back on 2 April?  Was there any real prejudice?  What was the harm, what was the damage to them?  There was none and, as a result, we are here today with further costs.  That is all I have to say.

HIS HONOUR:   Thank you.

This is an application for an extension of time for filing the applicant’s objection to a certain bill of costs.  The bill of costs is a bill for an amount of approximately $10,000 arising out of an unsuccessful application by the present applicant for special leave to appeal to this Court from a decision of the Court of Appeal of New South Wales.  The application for special leave to appeal was dismissed on 4 March 2005 by Justices McHugh and Heydon.  The time for filing the applicant’s objections to the bill of costs had originally been already extended once until 4.00 pm on 22 March 2007.  The applicant failed to comply with that time limit.  He turned up at the Court office after 4.00 pm, by which time the time limit had expired. 

Subsequently, the applicant sought the first respondents’ consent to a further extension of time.  The first respondents indicated that they would consent on certain commercial conditions which the applicant has set out to persuade me were unreasonable.  I am prepared to assume for the purposes of this argument that the conditions which the first respondents attached to their willingness to consent to a further extension of time were not conditions they could reasonably have expected the applicant to consent to.  I make that assumption in favour of the applicant for the reason that in order to investigate the question of the reasonableness of those conditions would probably require a greater amount of time and a greater amount of expenditure of legal costs in investigating that proposition than is involved in the applicant’s objections to the costs with which we are presently concerned.

Nothing, however, of relevance to this application follows from that.  The applicant did not consent to the conditions that the first respondents asked him to consent to, so nothing has resulted from their attempt to persuade him to accept those conditions.  We are back in the situation that the applicant failed to comply with the extension of time he was earlier given and the first respondents were not obliged to agree to any further extension of time.  Having regard to the previous history of the applicant’s conduct, the first respondents were simply faced with an opponent in this litigation who had delayed, failed to comply with time limits, and in my view the explanation that has been given by the applicant in his affidavit in support of this application still does not adequately explain why he failed to comply with the deadline of 4.00 pm on 22 March 2007.

However, because the applicant is at this stage of the proceedings an unrepresented litigant, as I gather he has been off and on in the past, again I am prepared to assume in favour of the applicant that the reason he has not given an adequate explanation for his failure to comply with the time limit is that he did not properly appreciate the detail that might be necessary in order to support such an application.

Because the amount of money involved is small, because it is desirable that this aspect of the litigation be brought to some finality and because I cannot see from the evidence any particular prejudice that would flow to the first respondents from making an order of this kind, I am prepared to extend the time for filing the applicant’s objections until 4.00 pm today.  The applicant has said in the course of argument that he would be in a position to do that.  On the question of costs, it seems to me that the applicant should pay the first respondents’ costs of this application which was caused as the result of his own still inadequately explained default in failing to comply with previous time limits.

The orders I make are as follows:

1.The time for filing the applicant’s objections to the bill of costs be extended from 4.00 pm on 22 March 2007 until 4.00 pm today.

2.The applicant must pay the first respondents’ costs of this application.

The second respondent has been represented by counsel in these proceedings but counsel has informed me that no question of the second respondent’s costs arises.

The Court will adjourn.

AT 3.07 PM THE MATTER WAS CONCLUDED