Hopkins v Edwards (No 2) - [2020] VSC 698

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE
COMMERCIAL COURT

COMMERCIAL LIST

S CI 2017 04443

FRASER CAMPBELL HOPKINS & ANOR	Plaintiffs
v
JAMES CAMPBELL EDWARDS & ORS	Defendants

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JUDGE:	LYONS J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	22 October 2020
CASE MAY BE CITED AS:	Hopkins v Edwards (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 698

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COSTS – Assessment of costs in lieu of taxation – Costs to be paid from charitable trust – Assessment by special referee under Order 50 of Supreme Court (General Civil Procedure) Rules 2015 or private assessment – Assessment by special referee ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Prolegis Lawyers
For the 1^st to 4^th, 6^th, 8^th and 9^th Defendants	Mr P Solomon QC with Dr E Boros	Gadens Lawyers
For the 7^th Defendant	Dr P Bender	Victorian Government Solicitor

HIS HONOUR:

In my reasons as to the costs of this proceeding dated 31 July 2020,[1] I determined that each of the plaintiffs and the active defendants were entitled to their standard costs of the proceeding to be paid from the Trust. I requested that the legal representatives of the plaintiffs, the active defendants and the Attorney confer in an attempt to reach an agreement on the most efficient and cost effective way for those costs to be assessed.
[1]Hopkins v Edwards [2020] VSC 456 (the ‘first Reasons’). For convenience, in these reasons, I will use the terms defined in the first Reasons.

That process has now been completed. However, agreement has not been reached. As a result, I have received and read the following material:

(1) the plaintiffs’ submissions dated 18 September 2020;

(2) the active defendants’ submissions dated 18 September 2020 and the affidavit of Mr Patrick Walsh sworn the same date; and

(3) the Attorney’s submissions dated 12 October 2020.

As no party has requested an oral hearing, I will decide this issue on the papers.

In summary, the plaintiffs seek orders that the assessment of costs be referred to a special referee pursuant to r 50.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the ‘Rules’). They originally proposed that Ms Elizabeth Harris of Harris Cost Lawyers Pty Ltd be appointed as special referee. They have recently proposed that Ms Cate Dealehr of the Australian Legal Costing Group be appointed as special referee instead. They also proposed a term of the order that the decision of the special referee will be final and binding upon the plaintiffs and the active defendants but not the Attorney.

By contrast, the active defendants propose determination of the costs by the certification of those costs by an independent costs consultant (the ‘certification process’). This would be a private process and not subject to court review. They propose Mr John White, a costs lawyer and consultant, undertake this task. The active defendants submit that this certification process would be…

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: [2020] VSC 698
Decision Date: 22 October 2020

CaseChat Overview and Summary

The case of Hopkins v Edwards (No 2) involved the determination of costs to be paid by a charitable trust. The matter was heard in the Supreme Court of New South Wales, which had jurisdiction over the dispute. The central issue was whether the costs should be assessed by a special referee appointed under Order 50 of the Supreme Court (General Civil Procedure) Rules 2015 or if a private assessment would suffice. The court was required to consider the appropriate process for the assessment of these costs, given their unique nature and the implications for the charitable trust involved.

The legal question before the court was whether the particular circumstances of the case warranted the appointment of a special referee for the assessment of costs. The court had to weigh the potential advantages of a private assessment against the need for an impartial, court-appointed expert to ensure fairness and accuracy in the calculation of costs. The court examined the precedent and rules governing such assessments, particularly focusing on the potential impact on the charitable nature of the trust and the importance of transparency in the cost-assessment process.

In reaching its decision, the court concluded that the unique nature of the costs and the implications for the charitable trust necessitated the appointment of a special referee. The court reasoned that a special referee would provide the necessary impartiality and expertise to ensure that the assessment was conducted fairly and accurately. The court further noted that the public interest in the proper administration of the charitable trust supported the appointment of a referee under Order 50 of the Rules. Consequently, the court ordered that the costs be assessed by a special referee appointed under the relevant provisions.

The final orders of the court were that the costs in dispute would be assessed by a special referee appointed under Order 50 of the Supreme Court (General Civil Procedure) Rules 2015. This decision aimed to ensure that the assessment process was transparent, impartial, and appropriate given the unique circumstances of the case and the charitable nature of the trust involved.

Orders