Harris v Villacare Pty Limited - [2012] NSWSC 452

Supreme Court

New South Wales

Medium Neutral Citation: HARRIS v VILLACARE PTY LIMITED [2012] NSWSC 452
Hearing dates: 14, 22 July, 29 September 2011
Decision date: 08 May 2012
Jurisdiction: Common Law
Before: RS Hulme J
Decision:
(i) Pursuant to s 99(2)(a)(ii) of the Civil Procedure Act 2005, disallow as between Stewart William Cameron of Hickson's Lawyers on the one hand and Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited on the other 80% of the costs of counsel in considering, settling or otherwise dealing with the affidavit (in draft or final form) of Doyle Morgan John Myles of 24 May 2011;
(ii) Order, pursuant to s 99(5) of that act that the said Stewart William Cameron pay to Villacare Pty Limited the sum of $1,003.20 on account of the costs of counsel in considering, settling or otherwise dealing with the affidavit (in draft or final form) of Doyle Morgan John Myles of 24 May 2011;
(iii) Order, pursuant to s 99(2)(b)(ii) of the Civil Procedure Act 2005 that Doyle Morgan John Myles and Stewart William Cameron of Hickson's Lawyers pay to Villacare Pty Limited the sum of $1,964.16;
(iv) Order that the said Stewart William Cameron provide to each of Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited a copy of these orders and reasons;
(v) Grant liberty to apply by Notice of Motion returnable before me at 9.30 am on Thursday 17 May 2012, and served on Villacare Pty Limited and Allianz Australia Workers Compensation (NSW) Limited on or before Monday 14 May 2012, in respect of quantification the subject of Mr Bartos' report, and any consequent adjustment of the amounts referred to in orders (ii) and (iii) hereof.

Catchwords: Legal practitioner - costs - incurred without reasonable cause - affidavit unduly long -practitioner ordered to pay
Legislation Cited: Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Workers Compensation Act 1987
Workers Compensation Regulation 2010
Workplace Injury Management and Workers Compensation Act 1998
Cases Cited: DJZ Constructions Pty Ltd v Paul Pritchard [2010] NSWSC 1472
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Category: Costs
Parties: RICHARD HARRIS v VILLACARE PTY LIMITED
Representation: P: J de Greenlaw
D: D J Price
Hicksons Lawyers: R Burbidge QC/D J Price
P: Gerard Malouf & Partners
D: Hicksons Lawyers

File Number(s): 2010/407668

Judgment

RS HULME J: These reasons arise out of disquiet I experienced during the hearing of an application for preliminary discovery on the issue of whether or not there had been such an incurring of costs that the solicitors for the Respondent to the application should be made to bear them, or some of them personally. I identified two matters as inspiring my disquiet, firstly, the volume of material, in particular, an affidavit by a Mr Myles, a solicitor in the employ of the Defendant's solicitors, Hicksons Lawyers, and secondly, the fact that, there being evidence in an affidavit from a Mr Chandra suggesting that the Plaintiff's…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWSC 452
Decision Date: 08 May 2012

CaseChat Overview and Summary

The case involved Harris, a plaintiff, and Villacare Pty Limited, the defendant. The dispute centred around the recovery of legal costs incurred by the plaintiff, which were deemed to have been incurred without reasonable cause. Additionally, the plaintiff's affidavit was considered excessively lengthy, leading to an order for the plaintiff's legal practitioner to pay costs. The matter was heard in the Supreme Court of New South Wales.

The primary legal issues before the court were whether the plaintiff's legal costs were incurred unreasonably and whether the affidavit was unduly long. The court needed to determine if the costs were justified and if the length of the affidavit was necessary and appropriate. The court also needed to consider the implications of these findings on the practitioner's responsibility to ensure that costs and documents submitted were reasonable.

In its reasoning, the court found that the plaintiff's legal costs were indeed incurred without reasonable cause. The court was particularly critical of the length of the affidavit, which it deemed excessively long and not necessary for the resolution of the case. The court held that the practitioner should have exercised better control over the costs and the length of the affidavit. Consequently, the practitioner was ordered to pay costs for these shortcomings. The court emphasised the importance of legal practitioners ensuring that costs and documents are reasonable and proportionate to the matter at hand.

The final orders of the court were that the plaintiff's legal practitioner was to pay the defendant's costs associated with the unreasonable recovery of costs and the unduly long affidavit. This decision underscored the need for legal practitioners to be mindful of the costs they incur and the documents they submit, ensuring they are necessary and proportionate.

Orders