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:
There will be no order in respect of the costs of the application between the appellant and the respondent.
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).
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
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.
Submissions
Filing of submissions
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
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
Ratio Decidendi
Legal Principle Established
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