Harlen & Hellyar (No 2)
[2020] FamCA 413
•18 May 2020
FAMILY COURT OF AUSTRALIA
| HARLEN & HELLYAR (NO. 2) | [2020] FamCA 413 |
| FAMILY LAW – COSTS – several applications dealt with by judges and registrars where costs orders were reserved – injunction application heard by McEvoy J – applicant seeking reserved costs on various applications – dissection of factual scenario surrounding each costs order – review of authorities. |
| Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth), ss 90UI, 117 Family Law Rules 2004 (Cth), r 13.07 Statute of Gloucester 1278, 6 Edw 1 |
| Andrews v Barnes (1888) 39 Ch D 133 Briginshaw & Briginshaw (1938) 60 CLR 336 Cachia & Hanes (1994) 179 CLR 403 Cholmondeley v Lord Clinton [1815] 34 ER 515 Commissioner of Australian Federal Police v Razzi (No 2) (1991) 101 ALR 425 Corporation of Burford v Lenthall (1743) 2 Atk 551 Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd [1995] 1 VR 1 Goodridge & Beadle (No 2) [2019] FamCA 786 Harlen & Hellyar [2020] FamCA 21 Jones & Coxeter (1742) 26 ER 642 Kallinicos v Hunt (2005) 65 NSWLR 561 Knight & FP Special Assets Ltd (1992) 174 CLR 178 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Lionheart Management Group Pty Ltd v Stanley [1999] VSC 502 Re JJT; ex parte Victoria Legal Aid (1998) 195 CLR 184 Talbot v General Television Corporation Pty Ltd [1980] VR 224 |
| APPLICANT: | Ms Harlen |
| RESPONDENT: | Mr Hellyar |
| FILE NUMBER: | MLC | 13634 | of | 2017 |
| DATE DELIVERED: | 18 May 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | The Honourable Justice Wilson |
| HEARING DATE: | 5 & 14 May 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr J.W. St John QC |
| SOLICITOR FOR THE APPLICANT: | Peter Szabo Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr P. M. O’Shannessy SC |
| SOLICITOR FOR THE RESPONDENT: | Mann Lawyers |
Orders
The applicant’s costs of and incidental to the application before McEvoy J determined on 28 January 2020 be paid on a party party basis by the respondent.
The applicant’s costs of and incidental to the hearing on 26 June 2019 are costs of and incidental to the hearing on 2 August 2019 to be paid on a party party basis by the respondent.
The applicant’s costs of and incidental to the hearing on 2 August 2019 be paid on a party party basis by the respondent.
The applicant’s costs of and incidental to the application on 14 February 2020 be paid on a party party basis by the respondent, limited to junior counsel’s costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Harlen & Hellyar has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 13634 of 2017
| Ms Harlen |
Applicant
And
| Mr Hellyar |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Introduction
On 5 May 2020 this proceeding was transferred to my docket following the delivery of reasons for judgment by the Honourable Justice McEvoy on 28 January 2020 in Harlen & Hellyar.[1]
[1] [2020] FamCA 21.
On that application his Honour was concerned with the applicant’s claim for an injunction restraining the respondent’s solicitors. The applicant asserted that she had imparted confidential information to those solicitors when they had been retained by the applicant. McEvoy J made an order as follows –
1.That Z Lawyers in the State of Victoria, Solicitors, be restrained from acting on behalf of the respondent in these proceedings.
2.That the matter be listed before Registrar Sudholz on 14 February 2020 at 9:30 am for further directions.
It will be apparent that his Honour made no order as to costs, whether reserving them or awarding them.
When this proceeding came before me on 5 May 2020 Mr St John One of Her Majesty’s Counsel informed me that pursuant to his client’s application in a case filed 28 February 2020, his client (the applicant) sought the following orders –
1. The Respondent pay the Applicant’s costs of and incidental to the Applicant’s Application in A Case filed 21 June 2019, and the Respondent’s Response thereto filed 10 July 2019, including her costs of the hearings on 26 June 2019, 4 August 2019 & 14 February 2020, such costs to be assessed on a party/party basis and in default of agreement within 21 days, such costs be taxed.
2.That the attendance of Senior Counsel on each of the said days of hearing be certified as proper.
3.The Respondent pay the Applicant’s costs of this Application assessed on a party/party basis.
4. Such further or other Order the Court deems appropriate.
In her application in a case filed 21 June 2019 the applicant sought orders enjoining Z Lawyers from acting on behalf of the respondent in this proceeding. In the respondent’s response to that application in a case filed 10 July 2019, the respondent opposed the making of the orders enjoining Z Lawyers from acting for the respondent. The applicant also sought her costs on the hearings on 26 June 2019, 4 August 2019 (which should be a reference to 2 August 2019) and 14 February 2020. She sought those costs on a party party basis.
In debate with Mr St John QC and Mr O’Shannessy SC on 5 May 2020 I enquired whether the parties preferred for the costs application referable to the application before McEvoy J to be heard and determined by his Honour or whether they wished those costs to be determined by me. They agreed that I should determine the costs issues raised in the applicant’s application in a case sealed 3 March 2020 expressed to have been filed on 28 February 2020.
On 5 May 2020 I made directions for the parties to file and serve written submissions on costs and I agreed to give judgment on costs at noon on 18 May 2020, which I am now doing.
Synopsis
For the reasons that follow, costs should be payable in the manner set out hereunder.
The applicant’s costs of and incidental to the application before McEvoy J determined on 28 January 2020 should be paid on a party party basis by the respondent.
The applicant’s costs of and incidental to the hearing on 26 June 2019 are costs of and incidental to the hearing on 2 August 2019, on a party party basis by the respondent.
The applicant’s costs of and incidental to the hearing on 2 August 2019 should be paid on a party party basis by the respondent.
In my view the applicant’s costs of and incidental to the application on 14 February 2020 should be paid on a party party basis by the respondent.
Before going to the details of each discrete court hearing for which costs orders were sought, it is relevant to make certain preliminary observations about costs in litigation in this court.
Legal principles relating to costs
In Cachia & Hanes[2] the plurality of the High Court held that it has not been doubted since 1278 when the Statute of Gloucester of the United Kingdom introduced the notion of costs to the common law that costs are awarded as a partial indemnity for professional legal costs actually incurred in the conduct of litigation. In Knight & FP Special Assets Ltd[3] the High Court contrasted the common law position with respect to costs with a position in equity. I surveyed the learning on point in Goodridge & Beadle (No 2).[4]
[2] (1994) 179 CLR 403.
[3] (1992) 174 CLR 178.
[4] [2019] FamCA 786.
Two early illustrations of equity’s treatment of costs warrant consideration. The first was Jones & Coxeter.[5] In that case the Lord Chancellor held that the award of costs was entirely discretionary and could be ordered at the time of the decree, unlike at common law where an order for costs had to await final judgment. The discretionary nature of costs in equity lay in its attachment to the conscience as Lord Hardwicke LC held in Corporation of Burford v Lenthall.[6] The second important early exposition of costs in equity was the decision in Andrews v Barnes.[7] There, the court held that equity’s power to order costs arose from the general and inherent power of the Lord Chancellor, the exercise of which carried with it a very wide discretion. Hence, in the Court of Chancery general orders for costs were made that included “full costs”, “good costs”, “double costs” and others.
[5] (1742) 26 ER 642.
[6] (1743) 2 Atk 551.
[7] (1888) 39 Ch D 133.
Since the enactment of the Family Law Act, a statutory regime has replaced equitable and common law concepts relating to costs in family law litigation. No narrow construction is to be applied to the provisions of s 117(1), 117(2) and 117(2A) of the Family Law Act, as was held in Re JJT; ex parte Victoria Legal Aid.[8] In that case Kirby J was of the view that whatever may have been the source of the court’s power to order costs, on and from the commencement of the Family Law Act the sole repository of the power to make a costs order has been the statute.
[8] (1998) 195 CLR 184, 201.
Ordinarily each party bears his or her (occasionally its) own costs in family law litigation. That is for the simple reason that s 117(1) of the Family Law Act makes provision for an order to that effect. Section 117(2) of the Family Law Act enables an order to be made pursuant to which one party is ordered to pay costs. Illustrations of costs orders under s 117(2) include indemnity costs orders or an order for costs to be paid on a particular basis or at a particular rate. Those orders are permissible yet in arriving at an order other than one to which s 117(1) applies, the court must undertake an examination and consideration of the elements in s 117(2A) of the Family Law Act.
In this case the applicant sought a costs order in relation to specific appearances.
Submissions of the respondent
Both parties filed written submissions. Those were –
a)for the applicant, written submissions dated 5 May 2020 and reply submissions dated 13 May 2020; and
b)for the respondent, written submissions dated 12 May 2020.
It is necessary to synthesise the contents of each.
In her two sets of written submissions, on behalf of the applicant it was contended as follows –
a)she had been unable to obtain a hearing to pursue her claim for interim maintenance for reasons all beyond the applicant’s control.
b)at any interim hearing that the applicant seeks it cannot be determined whether the agreement in issue in this case, namely the 12 February 2014 agreement (“the impugned agreement”) is valid and the terms of the impugned agreement prevent the making of an order for property or spousal maintenance.
c)the terms of the impugned agreement are largely irrelevant for the determination of an order for interim spousal maintenance by force of the operation of s 90UI(1) and (2) of the Family Law Act.
d)according to the criteria set out in s 90UI(1) and (2) of the Family Law Act the applicant contends (and she says the respondent has not denied) that the applicant is not able to support herself in the absence of an income-tested pension.
e)the financial condition of the applicant was desperate for the purposes of s 117(2A)(a) of the Act.
f)the applicant was not assisted by legal aid for the purposes of s 117(2A)(b) of the Act.
g)the conduct of the respondent has been one of uncooperation in relation to the provision of documentation for the purposes of ss 117(2A)(c) and (d) of the Act.
h)the applicant has been wholly successful for the purposes of s 117(2A)(e) of the Act.
i)the respondent has consistently refused to agree to meeting the applicant’s costs for the purposes of s 117(2A)(f) of the Act; and
j)so far as any other relevant matter was concerned for the purposes of s 117(2A)(g) of the Act, the applicant said the disparity of the financial position of the parties warranted the making of a costs order.
On behalf of the respondent, in written submissions dated 12 May 2020 the respondent said costs should be reserved or the respondent opposed the making of a costs order against him. He said in broad terms that any determination about costs should await the trial of this proceeding at which time the court is better informed of all issues in the case including the circumstances of the entry into the impugned agreement. It was put that if after a full trial nothing nefarious was found about the impugned agreement then the restraint application may be seen in a different light. At an equally broad overview level, the respondent said that the applicant has continued to refuse to produce documents. That precipitated the respondent’s application of 16 March 2020. The respondent argued that on five bases the costs application should be reserved or dismissed, those being –
a)delay;
b)the applicant was not wholly successful before McEvoy J;
c)the respondent’s solicitor and not the respondent was enjoined so the respondent’s conduct was not in issue;
d)the applicant refused to identify the quantum of costs sought prior to the filing of her application in case; and
e)the callover on 26 June 2019 and the appearance before the registrar on 14 February 2020 did not warrant the appearance of silk.
Very helpfully, in the respondent’s submissions counsel prepared a chronology recording events between the date of separation said to be on 6 September 2017 and the event on 14 February 2020 being the date of orders of the registrar. That chronology recorded appearances before the registrar, chambers orders made by the registrar, orders by Williams J and Johns J as well as appearances before McEvoy J over a different period.
The way this litigation unfolded also raised a curious aspect. Mr Hellyar began the litigation on 27 December 2017 when he filed his initiating application for orders enforcing the impugned agreement. On the first return of that application on 15 February 2018 Johns J made what the chronology called final orders by consent. In the observations column of the respondent’s chronology, Mr O’Shannessy SC wrote that no suggestion was made of fraud or forgery about the impugned agreement when the matter was before Johns J. Mr O’Shannessy SC has foreshadowed that the first, or one of the first issues to be dealt with in this case is whether any issue in the nature of a res judicata or issue estoppel arises in those circumstances. Being the trial judge in this case let me say now, ahead of trial presently fixed for July 2020 that it will be abstract in the extreme and logically unhelpful at best for the first issue in the case to be whether an issue estoppel arises or whether the final orders made by consent by Johns J on 15 February 2018 creates a res judicata. While I accept without reservation Lord Denning’s immortal epitaph from Lazarus Estates Ltd v Beasley[9] that “fraud unravels everything”, the time and place within a trial for debate about that is squarely within the bailiwick of the trial judge. Of course I will hear argument on the point, but the trial will be much more meaningful if it unfolds with greater logic.
[9] [1956] 1 QB 702.
The respondent helpfully (literally, by shading with emphasis in the chronology) how the solicitors Z Lawyers continued to act during the currency of 18 court events or filings. Whether or not that was the case, the fact remained that such a state of affair was squarely within the discretionary issues that fell for consideration by McEvoy J when his Honour was addressing whether or not to grant the injunction that his Honour ultimately granted pursuant to which Z Lawyers was restrained from continuing to act. In other words, by the granting of the injunction, his Honour must be taken to have considered, but rejected, the fact that Z Lawyers continued to act from 12 November 2018 to 23 July 2019. On 28 January 2020 that firm was restrained from further acting. The fact that the firm continued to act from 12 November 2018 to 23 July 2019 and was restrained from further acting on 28 January 2020 does not tell against the making of a costs order while that firm was so acting. McEvoy J considered the issue whether it would be oppressive to remove the respondent’s solicitors and whether too much time had elapsed to legitimately so order. His Honour enjoined Z Lawyers nevertheless. To my way of thinking that was the correct approach. Were it otherwise a litigant could take advantage of delays in being heard, arguing that those delays bolstered his, her or its position for the refusal of the injunction application. If grounds existed, as they did in this case, for the making of the order, delay by the applicant – not through complications in being heard – may have been relevant. McEvoy J did not regard the delay argument as meritorious. Nor do I. Self-evidentially, his Honour regarded the administration of justice ground as predominantly important. For what it is worth, I take a similar view.
The respondent placed substantial store in the contention that it would be unjust for the respondent to be visited with a costs order unless and until a final determination was made after trial about the involvement of Z Lawyers in the creation of the impugned document. To my mind, that contention merges into one proposition two separate and distinct matters. The costs of the proceeding is one and the costs of the application before McEvoy J is the other. McEvoy J found that it was appropriate to bring the injunction application. Among the authorities that his Honour considered, the decisions in Talbot v General Television Corporation Pty Ltd,[10] the decision of Hayne J in Farrow Mortgage Services Pty Ltd (in liq) v Mendall Properties Pty Ltd,[11] and the decision of Gillard J in Lionheart Management Group Pty Ltd v Stanley,[12] plus Eldon LC’s decision in Cholmondeley v Lord Clinton[13] were not among them. Those cases made it clear beyond doubt that a court has undeniable jurisdiction to restrain a solicitor from breaching his or her confidential obligations arising from the fiduciary relationship between the solicitor and the client. McEvoy J was unquestionably correct in granting the injunction, if on no other basis than the administration of justice ground. His Honour found that the applicant was entitled to the order. The applicant was wholly successful. In my view costs are appropriately awarded in favour of the applicant against the respondent.
[10] [1980] VR 224.
[11] [1995] 1 VR 1, 5.
[12] [1999] VSC 502.
[13] [1815] 34 ER 515.
So far as the allegations of fraud are concerned, the proof of those must await a full trial. If the applicant fails in her contentions, it does not follow axiomatically that costs follow the event. No presumption of costs exists. I accept that the allegations of fraud are serious. Members of the legal profession are bound by strict ethical rules about allegations of fraud. In this case One of Her Majesty’s Counsel, learned in the law, satisfied himself of the validity of the fraud allegations. Mr O’Shannessy SC correctly points out that those allegations must be proved according to s 140 of the Evidence Act, formally known as the Briginshaw[14] standard. However, the costs of the proceeding or even the costs associated with the allegations of fraud are discrete from the injunction application, in my view. It is far from uncommon for an interlocutory injunction application to be heard, then granted yet the plaintiff’s or the applicant’s proceeding in the overall fails. In that eventuality there is no impropriety in an order for costs to be made on the interlocutory order yet a different costs order is made following trial. As to the argument that the applicant is likely to spend any sum paid in respect of costs thereby jeopardising the respondent’s prospects of recovering costs if he is successful in the overall, I do not find it at all persuasive. I say that for several reasons. First, in the absence of a specific order a party is entitled to do what he, she or it pleases with a payment made in relation to costs. Second, even with the limited information available to me at this stage, I have been able to deduce that the applicant’s financial circumstances are poor. She may well need to apply any amount ordered to be paid in respect of costs towards her own ongoing legal fees. She is entitled to do that, but it does not follow that determining costs after a trial represents a more just allocation.
[14]Briginshaw & Briginshaw (1938) 60 CLR 336.
As for the illustration used by Wilcox J ordering half only of a party’s costs in Commissioner of Australian Federal Police v Razzi (No 2),[15] all aspects of costs have always been within the purview of the trial judge. That includes the imposition of costs, the basis of their imposition and whether some, all or none of them should be ordered. Judges possess a high degree of latitude in the making of costs orders. Costs can be ordered on one basis for all of the case save for the time and effort spent on one particular issue. Razzi’s case seems to be little more than one illustration of that matter. In the Federal Court of Australia and in the Federal Circuit Court of Australia I am familiar with a method of ordering costs by which the judge makes an order for a precise lump sum of costs to be paid thereby avoiding the time-consuming and expensive process of taxing costs. In my view that method has real merit in relation to the costs of and incidental to the application determined by McEvoy J. Yet neither party applied for me to do that in this case.
[15] (1991) 101 ALR 425.
The respondent sought to dismantle the applicant’s application for costs by arguing that s 117(2A)(c) refers to the conduct of the party rather than to the conduct of the party’s legal representative. That is true. But in this case the costs application was brought on the basis that the respondent persevered in his resistance to the applicant’s motion to restrain the respondent from using Z Lawyers. In my view there is no incongruity in ordering a party to pay costs where that party’s solicitors are enjoined from acting. In most cases, the party whose solicitors are enjoined ordinarily refuses to acquiesce in the making of the injunction or he or she refuses to agree that the solicitors cease acting. Usually the solicitors have no independent say in whether they continue to act. The case cited by Mr O’Shannessy SC, Kallinicos v Hunt[16] was described as “the leading case” in this field. Yet it seemed to me to be a fact-specific application in a particular set of circumstances. I did not draw from it a proposition of universal application that costs should be ordered against the solicitor who is enjoined. It would be peculiar if that were the law as the solicitor is no more than the agent of the client, the litigant, here being the respondent.
[16] (2005) 65 NSWLR 561.
The respondent argued that the applicant refused to tell the respondent, twice, how much the applicant sought by way of costs. The respondent said that “by refusing to answer the respondent’s simple request, the applicant foreclosed any possibility of a negotiated outcome and locked the parties into an unnecessarily costly dispute about the appropriate costs order in abstracto.”
In my view that was something of an overstatement. Even if costs had not been agreed, it was nevertheless open – dare I say usual – for the respondent to have undertaken to retain other solicitors in place of Z Lawyers having regard to the significant possibility or even likelihood that an order would be made on the administration of justice grounds to enjoin that firm from further representing the respondent. Had such an undertaking been given, costs could have been agreed to be taxed if the applicant and the respondent were unable to resolve the question of costs. That did not involve a fully itemised bill of costs in taxable form. It is not correct to say that by the applicant failing to provide a precise costs figure “the applicant foreclosed any possibility of a negotiated outcome and locked the parties into an unnecessarily costly dispute…”.
In my view, the respondent must pay the applicant’s costs of and incidental to the hearing and determination before McEvoy J judgment in which was handed down on 28 January 2020, such costs to include the costs of Queen’s Counsel.
The application on 14 February 2020
The applicant sought orders for the payment of costs reserved by a registrar on 14 February 2020. Mr St John QC represented the applicant on that day. Junior counsel represented the respondent. The registrar’s orders reflected intense focus on documents held by Z Lawyers that revealed the extent to which that firm had previously represented or advised the applicant. Paragraph 1 was extensive in its reach. Paragraph 2 required that firm not to supply a copy of the documents provided under paragraph 1 to any person without the written consent of the applicant’s solicitors. Paragraph 3 contained a restraint. Precisely how the registrar had power to make an order in the nature of an injunction was not stated. But at all events, by that paragraph that firm was restrained from “communicating or disclosing to any person, including the Respondent and/or any legal practitioner acting on his behalf, any information of whatsoever nature and kind arising from their acting on behalf of the Applicant.” By paragraph 4 of those orders the registrar required the respondent to give discovery under rule 13.07 of the Family Law Rules as at four dates, namely 30 June 2012, 14 October 2012, 10 February 2014 and 30 June 2019. Paragraphs 5 and 6 were unimportant for present purposes. Paragraph 7 recorded a reservation of costs. The words of the order were peculiar, yet relatively common in this court. It was as follows –
The costs of today of all parties are reserved NOTING that the applicant may seek costs against Z Lawyers as well as against the Respondent if the Applicant is ultimately successful.
I do not approve of the widespread practice in this court of incorporating notations in orders. Orders should state steps or make provisions for the doing of things or restraints in doing things. A notation contains no such imperative. If an order is not complied with, the party entitled to the benefit of the order can apply to enforce the order. Conversely, a notation is little more than some narration about a particular event, frequently aspirational and frequently expressed to relate to some forthcoming event which may or may not come to pass. In my view, if the information provided to the court is a relevant factor on which the court has relied in making the relevant order then it may be appropriate for the court to record that it was informed about that particular factor. But to say in a notation to the body of the single sentence of paragraph 7 that the applicant may do something is wholly inappropriate. The simple order in paragraph 7 was that all parties’ costs of 14 February 2020 were reserved. The notation added nothing. It should not have been included in paragraph 7. The other notations to the order were completely otiose. They have no place in an order of a superior court.
When properly distilled the dispute on 14 February 2020 was one over discovery. It was more properly heard by a registrar. The orders made by the registrar reflected how nothing of any particular moment was entertained that day. The respondent made several points in relation to the costs of that day, namely –
a)the majority of the orders were made against Z Lawyers and not the respondent;
b)the conduct of the applicant is relevant in any consideration of a costs application; and
c)if a costs order were to be made against the respondent (which the respondent said should not be made in this case) then the costs of Queen’s Counsel should not be allowed.
It is necessary to take each of those contentions in turn.
The first argument was that the orders were made against the firm of solicitors, not the respondent, so the respondent should not be required to pay those costs. I do not agree. In the passages above I have set out my views that Z Lawyers was at all relevant times the respondent’s solicitors and therefore the agent of the respondent. That firm had no independent role in this proceeding but rather it had a representative role as the solicitors for the respondent. I do not accept that it would be correct or proper to fasten that firm with a costs order. In any event, if I did it may be that on principles relating to the law of principal and agent the agent might be entitled to seek indemnification in relation to those expenses. In my view, while the orders were expressed to have been made against the firm of solicitors, the party retaining that firm and providing instructions in relation to the conduct of that firm must assume full responsibility for the costs consequences of the conduct of that firm. I reject the respondent’s first argument.
The second argument advanced above amounted to the respondent saying that the applicant was not entitled to her costs as she was not blameless in the ongoing dispute over disclosure. To that a simple answer exists and it is this. If the respondent did not complain about the applicant’s conduct by bringing his own application for discovery then he cannot be heard now about what he says on some quid-pro-quo basis about deficiencies in the applicant’s conduct. That is to say the respondent has made no case about the applicant’s omissions in relation to discovery. If he does, or if he did, he was required to bring an application to pursue his grievances. But it is no basis to resist an order consequent upon a discovery order to say, in effect, that the opposite party (here, the applicant) was equally blameworthy when no step was taken to vindicate the respondent’s contentions. I reject the second basis of resistance as articulated above.
The third argument had merit. It was that the whole of Senior Counsel’s fees were not recoverable. The debate on the day in question was an unremarkable discovery fight, squarely the province of junior counsel. The argument on 14 February 2020 did not warrant Silk. It was an unremarkable application before a registrar. I will not certify for Queen’s Counsel for that hearing. Only fees appropriate to a junior are recoverable.
The 26 June 2019 hearing
On that day the date of the trial of the proceeding was vacated. The applicant disputed that on that day a callover was conducted. In chronological context a trial management conference had been conducted before Williams J on 4 April 2019. On 26 June 2019 the registrar heard the first return of the applicant’s application in a case the subject of McEvoy J’s determination on 28 January 2020. Silk and junior appeared for the respondent before the registrar and Mr St John QC appeared for the applicant. The registrar certified for the appearance of both senior and junior counsel. For reasons that are unexplained among the orders made that day, it seemed plain enough that the appearance before the registrar was merely the prelude, or the lead-up, to the matters with which McEvoy J was concerned on 2 August 2019. Those costs therefore form part of the applicant’s costs of and incidental to the appearance on 2 August 2019. As I have ordered the respondent to pay costs of and incidental to the matters determined by McEvoy J on 28 January 2020, the appearance on 26 June 2019 forms part of that, rendering the costs of the applicant’s appearance on 26 June 2019 payable by the respondent.
The 2 August appearance
The applicant’s application in a case dated 28 February 2020 spoke of an appearance on 4 August 2019. According to the court file McEvoy J heard argument on 2 August 2019 and reserved judgment. There was no appearance on 4 August 2019. Assuming the reference to 4 August 2019 was in truth a reference to 2 August 2019 as Mr St John QC told me today, the applicant’s costs should be paid by the respondent for reasons already mentioned.
Costs must be paid in accordance with the foregoing reasons.
I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 18 May 2020.
Associate:
Date: 1 June 2020
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