Hughes v Janrule Pty Ltd

Case [2011] ACTCA 23

PAUL JOHN HUGHES v JANRULE PTY LTD [2011] ACTCA 23 (26 October 2011)

PROCEDURE – costs – costs of unsuccessful application for security for costs – adjournment sought when counsel not available to represent successful party on hearing date – successful party’s failure to lodge timely submissions – misconceived written submissions made by successful party – no order as to costs of security for costs application – responsibility of successful party for his lawyers’ approach to the application – whether lawyers should be permitted to charge successful party in respect of responding to security for costs application.

PROCEDURE – courts and judges generally – whether acceptable to email submissions to Judge’s chambers instead of filing and serving them – whether generally acceptable to communicate with Judge’s chambers in relation to a matter without advising other parties.

Court Procedures Rules 2006 (ACT), rr 1703(2)(g), 1753(3)

Benjaminv GB Franchising Australia Pty Ltd [2008] ACTCA 11
Edwards Madigan Torzillo Briggs Pty Ltd v Gloria Stack & Ors [2003] NSWCA 302
Hughes v Janrule [2010] ACTSC 5
Hughes v Janrule [2011] ACTCA 15

No. ACTCA 7-2010
No. SC 261 of 2006

Judge:             Penfold J
Supreme Court of the ACT

Date:              26 October 2011

IN THE SUPREME COURT OF THE                )

)          No. ACTCA 7-2010
AUSTRALIAN CAPITAL TERRITORY  )          No. SC 261 of 2006

)

COURT OF APPEAL  )

BETWEEN:PAUL JOHN HUGHES

Appellant

AND:JANRULE PTY LTD

Respondent

ORDER

Judge:  Penfold J
Date:  26 October 2011
Place:  Canberra

THE COURT ORDERS THAT:

  1. There will be no order in respect of the costs of the application between the appellant and the respondent.

  1. The appellant’s lawyers, United Legal, may file, within 3 weeks from the date of this judgment, affidavit evidence and written submissions as to why United Legal should be permitted to charge the appellant for any work undertaken on or after 4 May 2010 in relation to the respondent’s application for security for costs (the relevant work).

  1. If affidavit evidence and submissions as described in Order 2 are not filed by 16 November 2011, then United Legal must not charge the appellant for any of the relevant work (as described in Order 2).

Introduction

  1. On 9 August 2011, I handed down my judgment in Hughes v Janrule [2011] ACTCA 15 (the security for costs decision). That judgment concerned an application, made by the respondent Janrule, for security for costs to be provided by the appellant Mr Hughes against the judgment of the Master in Hughes v Janrule [2010] ACTSC 5. I refused the application to order security for costs against Mr Hughes, but made no order about the costs of the application, and invited written submissions from the parties about the appropriate costs order.

  1. As in my earlier judgment, I shall refer to Janrule as the respondent and Mr Hughes as the appellant.

Submissions

Filing of submissions

  1. In inviting written submissions about costs, I ordered that any initial submissions were to be filed and served by 23 August 2011 and…

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AGLC
Hughes v Janrule Pty Ltd [2011] ACTCA 23
Case
[2011] ACTCA 23
Decision Date

CaseChat Overview and Summary

This matter concerned an application for security for costs made by Janrule Pty Ltd (respondent) against Mr Hughes (appellant) in relation to a prior judgment. Following the court's refusal of the application for security for costs, written submissions were invited from the parties regarding the costs of that application. The respondent lodged its submissions on time, but the appellant emailed unsigned and undated submissions to the associate of the judge without indicating they had been filed or served on the respondent. These submissions were later lodged. The court also considered the circumstances surrounding an adjourned hearing date for the security for costs application, where the appellant's counsel sought an adjournment on the morning of the hearing due to a medical appointment, with the request only being communicated to the respondent the day before.

The court was required to determine whether to make an order for the costs of the security for costs application, and specifically, whether the appellant should be permitted to charge his lawyers for responding to that application. Further, the court considered the propriety of emailing submissions to a judge's chambers without filing and serving them, and communicating with chambers without advising the other parties. The court also examined the reasonableness of the appellant's actions in seeking an adjournment on the day of the hearing without prior notice to the respondent.

Penfold J noted that the appellant's counsel had sought an adjournment on the morning of the hearing due to a medical appointment, which was only communicated to the respondent the day before. The judge found no sufficient explanation for the lack of earlier communication or for the appellant's decision to wait until the hearing day to seek an adjournment, especially as the hearing was unlikely to commence until the afternoon. Regarding the written submissions, the judge observed that the appellant's submissions were emailed to chambers without proper filing and service, and without advising the respondent. The judge considered the appellant responsible for his lawyers' approach to the application.

Ultimately, there was no order made in respect of the costs of the application between the appellant and the respondent.

Orders

Orders of the court

1.

There will be no order in respect of the costs of the application between the appellant and the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 9 August 2011, I handed down my judgment in Hughes v Janrule [2011] ACTCA 15 (the security for costs decision). That judgment concerned an application, made by the respondent Janrule, for security for costs to be provided by the appellant Mr Hughes against the judgment of the Master in Hughes v Janrule [2010] ACTSC 5. I refused the application to order security for costs against Mr Hughes, but made no order about the costs of the application, and invited written submissions from the parties about the appropriate costs order. As in my earlier judgment, I shall refer to Janrule as the respondent and Mr Hughes as the appellant. In inviting written submissions about costs, I ordered that any initial submissions were to be filed and served by 23 August 2011 and any submissions in reply by 30 August 2011. The respondent’s written submissions were lodged on 23 August. On 29 August 2011, the appellant emailed undated and unsigned written submissions in reply to my associate, but without any indication that those submissions had been filed or served on the respondent, and apparently without copying the email to the respondent’s lawyers. Those submissions were then lodged later that same day. The respondent submitted that either: The respondent’s submissions raised the following issues: The appellant’s submissions can be summarised as follows: I set out below a chronology of events leading up to the hearing that was listed before me on 19 May 2010. Thus, the appellant had two weeks’ notice of the hearing date on 19 May. On the morning of 19 May, the appellant appeared by counsel, who indicated: I adjourned the matter until the afternoon in order to deal with another Court of Appeal application that was ready to proceed. When the hearing resumed that afternoon, the appellant was represented by his solicitor, not by counsel who had appeared that morning. No explanation was offered for the unavailability of senior counsel. Junior counsel’s absence was explained by reference to the fact that he had recently had a hip replacement and had an associated medical appointment that morning. There was no suggestion that this was an emergency appointment or involved a particularly long consultation, and I see no reason to assume that it was other than an appointment scheduled some time previously, or that it was an appointment for a consultation that would occupy the whole day. The request for an adjournment was nevertheless only advised to the respondent’s counsel the day before the scheduled hearing. If there was any good reason why the original junior counsel could not have negotiated a hearing time during the specified day that enabled him to attend his medical appointment as well, it was not drawn to my attention. Equally, no good reason was identified for the appellant’s decision to wait until the day set for the hearing to seek an adjournment, rather than making an earlier attempt to re-schedule the hearing day. As it turned out, I would not have been able to hear the application until the afternoon anyway, and it may be that the original counsel could have been available at that time.

Ratio Decidendi

Legal Principle Established

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