Gurappaji v Phillips
[2021] VSC 11
•22 January 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S ECI 2019 00999
| KAVITHA SIDDIAH GURAPPAJI | Plaintiff |
| v | |
| INGRID MARY PHILLIPS (who is sued as the administrator of the estate of RICHARD BERIAN PHILLIPS, deceased) | First Defendant |
| and | |
| REGISTRAR OF TITLES | Second Defendant |
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JUDGE: | Moore J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 22 January 2021 |
CASE MAY BE CITED AS: | Gurappaji v Phillips |
MEDIUM NEUTRAL CITATION: | [2021] VSC 11 |
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COSTS – Plaintiff made application for an adjournment of the trial date – Application unsuccessful – Whether costs should be awarded on an indemnity basis – Whether costs should be paid forthwith – Whether senior counsel’s costs should be above scale – Whether first defendant should be reimbursed expenses usually borne by the plaintiff – Where first defendant’s costs of the plaintiff’s application to be paid by the plaintiff on an indemnity basis – Where no stay to be ordered on costs order – Where senior counsel’s costs fixed at scale – Supreme Court Act 1986 s 24 – Supreme Court (General Civil Procedure) Rules 2015 r 63.34 – Oshlack v Richmond River Council (1998) 193 CLR 72 – Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 – Lenehan v Powercor Australia Ltd [2020] VSC 82 – Setka v Abbott (No 2) [2013] VSCA 376.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | D Collins QC with K Mihaly | Alan Sheppet & Associates |
HIS HONOUR:
On 9 December 2020, I delivered oral reasons for judgment dismissing a second application by the plaintiff for an adjournment of the trial of the proceeding (the second adjournment application). The first defendant sought her costs of that application. I granted the plaintiff, who was self-represented, until 5:00pm on 9 December 2020 to file short written submissions on costs. I later varied the time by which the plaintiff was to file and serve submissions and any supporting affidavits in respect of costs to 4:00pm on 8 January 2021.
Consistent with orders made by me, the first defendant filed an affidavit dated 17 December 2020 by her solicitor, Alan Sheppet, and written submissions on costs.
On 14 January 2021, the plaintiff emailed to my chambers an unsigned document entitled ‘Costs Submissions by the Plaintiff’ (the plaintiff’s submissions). The plaintiff’s submissions were then filed on 21 January 2021.
I outlined the background to this proceeding in my oral reasons for judgment dismissing the second adjournment application. The following matters may be noted:
(a) On 28 August 2020, I set down the trial of the proceeding to commence on Monday 7 December 2020 with an estimate of five days and a further five days commencing on 1 February 2021.
(b) On 15 October 2020, I granted the plaintiff’s then solicitor leave to cease acting for her. The plaintiff remained self-represented in the proceeding until 9 December 2020, as noted below.
(c) On 23 November 2020, the plaintiff sent an email requesting that the proceeding be listed for an urgent directions hearing so that she could seek an adjournment of the trial date to give her time to appoint new solicitors.
(d) I listed the proceeding for a directions hearing on 25 November 2020 and treated the plaintiff’s email of 23 November 2020 as an application for an adjournment.
(e) The plaintiff did not appear before the Court on 25 November 2020. Her application for an adjournment was dismissed with costs.
(f) The plaintiff made the second adjournment application on the first day of the trial on 7 December 2020, before opening submissions. The application was heard over two days. It was dismissed shortly before the Court rose on 8 December 2020. I delivered oral reasons on the morning of 9 December 2020.
(g) After delivery of my reasons for dismissing the plaintiff’s second adjournment application, on 9 December 2020, the plaintiff made a third application for the adjournment of the trial. On that occasion, the plaintiff was legally represented (solely for the purpose of that application). I also dismissed this third application for an adjournment.
(h) Immediately after I dismissed the plaintiff’s third adjournment application, the plaintiff contacted my chambers complaining of a sudden medical emergency which would render her unable to appear for the remainder of the day. The plaintiff did not further appear before the Court that day and I adjourned the trial until 11 December 2020.[1]
(i) On 11 December 2020, I made orders including orders adjourning the trial to 1 February 2021.
[1]The parties had previously been advised that I was unable to hear the trial on 10 December 2020.
The first defendant seeks orders providing for:
(a) the payment forthwith of her costs of the plaintiff’s second adjournment application on an indemnity basis, fixed in the sum of $41,542.70; and
(b) the reimbursement forthwith of $8,894.79, being the amount in respect of the costs of the preparation of an e-court book and the setting down for trial fee paid by the first defendant which should have been borne by the plaintiff in the first instance.
Costs
The plaintiff’s submissions on costs are largely misdirected. They principally set out the plaintiff’s opposition to an order for costs in favour of the first defendant: (a) ‘following the adjournment of the trial on 9 December and 11 December 2020 after [the plaintiff] had fallen ill’; and (b) with respect to the third adjournment application made by the plaintiff on 9 December 2020.[2] Neither of these matters are raised by the first defendant in her present application for costs. The plaintiff’s submissions fail to address whether she should be required to pay the first defendant’s costs of the second adjournment application.
[2]Erroneously described by the plaintiff in her submissions as the ‘second discrete [adjournment] application’.
The Court’s jurisdiction in relation to costs is conferred by s 24(1) of the Supreme Court Act 1986. The Court’s discretion in relation to costs is to be exercised judicially and in accordance with Order 63 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules).
The usual order as to costs ‘embodies the important principle that, subject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour’.[3] Here the second adjournment application was a discrete application brought by the plaintiff which was unsuccessful. There is no good reason in the circumstances not to make the usual order as to costs.
[3]Oshlack v Richmond River Council (1998) 193 CLR 72, 97, [67].
The first controversy in relation to costs is whether costs should be awarded on a standard basis, or whether the circumstances of the case justify the award of indemnity costs. In that regard, the first defendant submitted that indemnity costs were justified because the plaintiff’s conduct caused loss of time to the Court and other parties. This is an established basis for the grant of indemnity costs.[4]
[4]See Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, [7], discussing Australian Electoral Commission v Towney (No. 2) (1994) 54 FCR 383, 388 (Foster J).
There is no doubt that the plaintiff’s conduct resulted in a substantial and excessive loss of Court time. There are two matters of principal significance. First, the occasion for the plaintiff’s application arose because of her failure to bring and appear at an application for an adjournment before the trial. The trial had been set down since 28 August 2020. The plaintiff’s failure to bring an adjournment application before the commencement of the trial had the consequence that the first defendant incurred the cost of two trial counsel at the hearing of the application. The plaintiff’s failure is only underscored by the fact that she did not appear at the directions hearing on 25 November 2020 when her first application for an adjournment was to be heard.
Secondly, even allowing for the plaintiff’s status as a self-represented litigant, the second adjournment application was conducted inefficiently and characterised by unnecessary repetition. There is no good reason why it took nearly two days to hear the application. The fact that it took such an inordinate period of time reflected the plaintiff’s lack of preparation for the hearing which resulted in the need for several adjournments in the hearing of the plaintiff’s application. It also reflected the diffuse, confusing and repetitive manner in which the plaintiff pressed her application.
For these reasons, subject to the matter dealt with in [15]–[20] below, special circumstances do exist so as to warrant an order that the plaintiff pay the first defendant’s costs of the second adjournment application on an indemnity basis.
The next controversy is whether the costs to be paid by the plaintiff should be fixed as proposed by the first defendant. The amount of costs sought by the first defendant is $41,542.70, which amount is comprised of the following:
(a) $24,200, for senior counsel to appear on the second adjournment application;
(b) $7,200 for junior counsel to appear on the second adjournment application;
(c) $7,562.50 for the first defendant’s instructing solicitor to instruct at the second adjournment application;
(d) $1,967.10 for the transcript of the second adjournment application; and
(e) $613.10 for the Court’s first day of hearing fee which was paid by the first defendant.
The fact that the above amounts have been incurred by the first defendant is established on the evidence before me. It is also clear from the above that the first defendant’s costs in relation to the second adjournment application are discrete and readily ascertainable. Subject to the specific matter dealt with below, it is therefore appropriate to fix the first defendant’s costs in respect of the second adjournment application to be paid by the plaintiff.
The amount claimed by the first defendant for senior counsel is above the scale amount.[5] The first defendant submits that certification of senior counsel’s fees above scale is justified having regard to the complexity of the matter, the difficulty or novelty of the questions involved, and the skill, specialised knowledge or responsibility of senior counsel. It was submitted that those factors should be considered by reference to the case as a whole, rather than the second adjournment application per se, given that the adjournment application was made without notice at the commencement of the trial. In that regard, it was submitted that the first defendant should be wholly indemnified as to senior counsel’s fees of the second adjournment application because:
[5]Senior counsel’s daily fee rendered in this matter is $12,100.00 (GST incl). The daily fee for senior counsel prescribed by item 19 of Appendix A of the Rules is $9,060 daily fee (GST excl).
(a) of the questions of law in the case, ‘taking into account overlapping doctrines of equity’;
(b) the first defendant’s case lacks the deceased’s evidence and thus is inherently circumstantial;
(c) the fact that the plaintiff is self-represented means that significant care and skill is required in her cross-examination and the overall fair conduct of the trial; and
(d) the plaintiff’s delinquent conduct in the proceeding ought result in the first defendant receiving a full indemnity of her costs.
I accept that, because the second adjournment application was brought at the commencement of the trial, it is appropriate to consider the above factors by reference to the case as a whole.
Pursuant to r 63.34 of the Rules, a legal practitioner for a party to whom costs are payable, whether the basis of taxation is a standard basis or the indemnity basis, shall be entitled to charge and be allowed costs in accordance with Appendix A of Schedule 3 of the Rules, unless the Court otherwise orders. This is subject to sub-rule 3 of r 63.34 which states:
63.34 Charges of legal practitioner
…
(3) The Court may, on special grounds arising out of the nature and importance or the difficulty or urgency of the case, allow an increase not exceeding 30 per cent of the legal practitioner’s charges allowed on the taxation of costs with respect to—
(a) the proceeding generally; or
(b) to any application, step or other matter in the proceeding.
…
The principles relevant to the application of r 63.34(3) are summarised in the judgments of Hayne J in Jenkins v GJ Coles & Co Limited[6] and the Full Court in The Mayor Councillors and Citizens of the City of Warrnambool v Tabone.[7] As recently observed by Nichols J:[8]
… As the authorities make clear, it is not sufficient that the case in question be demonstrated to be difficult, complex or “heavy”. The language of the rule must be observed: there be special grounds arising out of the nature and importance or difficulty of the case, to justify an increase on the costs otherwise to be allowed. The rule is commonly described as permitting a “complexity loading”, but mere complexity (or difficulty, urgency or importance) will not itself suffice to permit the exercise of the discretion conferred by the rule. A “special” factor must arise. What may constitute a special factor will vary from case to case.
As Marks J explained in Tabone, the increase permitted by the rule is not a bonus for legal work well done in difficult circumstances. It is not to be disembodied from the costs actually incurred. It is to apply only when the Court is satisfied of the existence of a relationship between the special grounds which arise, and the costs which are not in the circumstances fairly or adequately recoupable under the Court Scale.
[6](1993) 1 VR 155.
[7](Supreme Court of Victoria Appeal Division, Marks J, 25 August 1992) 10.
[8]Lenehan v Powercor Australia Ltd [2020] VSC 82, [74]-[75].
Although the matters relied upon by the first defendant for certification of senior counsel’s costs above scale may ultimately give rise to a level of complexity in the conduct of the trial, without more, that does not imbue the case with a special factor or feature so as to warrant the certification of costs in excess of the scale. In the business of the Trusts, Equity and Probate List, there is nothing particularly special or unique in the fact that the plaintiff is self-represented; that the plaintiff advances various claims in equity; and the fact that the first defendant’s case is to be established without the evidence of the deceased.
Accordingly, I will fix the first defendant’s costs to be paid by the plaintiff in the sum of $35,462.70.[9]
[9]Being the sum of the amounts set out in [13(b)]-[13(e)] and $18,120.00 in respect of senior counsel’s fees as prescribed by scale.
The final controversy in respect of costs is whether the plaintiff should be ordered to pay the first defendant’s costs of the second adjournment application forthwith. This is the effect of the fixation of the first defendant’s costs pursuant to r 63.03(2).
As submitted on behalf of the first defendant, the Court may order immediate payment of costs in circumstances including where there is prospect of considerable delay in completion of the proceeding, the interlocutory issue was discrete from the issues for final determination, and where the plaintiff is guilty of unsatisfactory conduct.[10]
[10]See Setka v Abbott (No 2) [2013] VSCA 376, [27].
The second adjournment application was wholly separate and discrete from the issues to be determined in the final determination of the plaintiff’s claims in the proceeding. Further, for the reasons given in my judgment dismissing the second adjournment application and the matters referred to in [10]-[11], the plaintiff acted unsatisfactorily in the bringing and conduct of that application. I will therefore not grant any stay on the costs order I will make.
Reimbursement
As I have noted, the first defendant seeks reimbursement of the costs of the preparation of the e-court book and the setting down for trial fee, which amounts to a total of $8,894.79. These amounts ought to have been paid by the plaintiff in the first instance, but were paid by the first defendant. She seeks the reimbursement of these amounts to ensure that, during the litigation, those costs are borne by the plaintiff as they would have been had she complied with the directions for trial. The first defendant submits that, because these costs ought to have been borne at first instance by the plaintiff and because the trial has not concluded, the amounts ought be reimbursed by the plaintiff as otherwise the first defendant will be partially financing the plaintiff’s conduct of her proceeding as a result of the plaintiff’s non-compliance with directions and failure to pay court fees.
In her submissions, the first defendant expressly states that she is not seeking a costs order in respect of the above amounts in respect of which she seeks reimbursement. Give the first defendant’s position, the source of power to make an order of the type sought is not clear and none is referred to by the first defendant in her submissions. In the circumstances, I am not persuaded that it would be appropriate to make the order proposed by the first defendant. The question of costs in relation to the preparation of the e-court book and the setting down for trial fee are reserved.
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