Jordan v Baronglow Pty Ltd & Ors

[2009] HCATrans 195

[2009] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A10 of 2009

B e t w e e n -

NEVILLE JORDAN

Applicant

and

BARONGLOW PTY LTD NOW KNOWN AS ACN 081472102 PTY LTD

First Respondent

DAVID GRAHAM THOMAS

Second Respondent

RONALD HOWARD WILLING

Third Respondent

Summons for extension of time

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 12 AUGUST 2009, AT 11.41 AM

Copyright in the High Court of Australia

__________________

MR N. JORDAN appeared in person.

MR D.G. THOMAS appeared in person.

HIS HONOUR:   Mr Jordan, I understand, do I, that you wish to also appear on behalf of Baronglow?  Is that right?

MR JORDAN:   In a formal sense, yes, sir.  I am the director of Baronglow, but Baronglow intends to play no active part in this application.

HIS HONOUR:   Yes, if I simply, for the moment, treat you as appearing on your own behalf as a plaintiff in the proceeding.  Mr Jordan, you are applying, are you not, by summons of 24 July 2009, is that right?

MR JORDAN:   Yes, sir.

HIS HONOUR:   Let me just take hold of the summons if I may.  In support of that summons there is an affidavit which you have sworn on 16 July.  Is that right?

MR JORDAN:   It is, sir.

HIS HONOUR:   Mr Thomas, is there any objection to my reading that affidavit?

MR THOMAS:   No objection, if your Honour pleases.

HIS HONOUR:   Now, Mr Jordan, you are asking for an order that Mr Thomas file and serve a bill in taxable form relating to some costs that were ordered by the Full Court of the Supreme Court of South Australia on 2 June 2009 and you are also asking, are you, for an order that the time fixed by the rules for your filing your outline of argument be extended until after that bill of costs is filed.  Is that right?

MR JORDAN:   Sir, in the first instance, in relation to my order sought, No 1, that Mr Thomas file and serve the bill in taxable form, there has been no change in that respect since the application was made.  In relation to paragraph 2, the application to extend the outline and notice of appeal, they were not filed when the application was made but there is a provision in the rules in relation to self‑representing applicants providing for the deadline to be fatal if something is not filed.

Now, in my affidavit I have referred to the fact that much the same argument is being run here as was run in A24 of 2008.  Both that case and this case deal with the proposition of a solicitor who is also a party being self‑representing acting as his own solicitor and recovering costs on scale on that basis.  The outline that has been lodged is a cut‑down version of what was lodged in A24.  The document that has been lodged has a qualification at the beginning of it that says “This is lodged to keep the application alive”.  So the order sought, No 2, is probably more appropriately now described as an application to file amended outline of argument.  I do not think the notice of appeal changes.

HIS HONOUR:   Well, why should this Court make the order that you first seek?

MR JORDAN:   In that respect I would rely on paragraphs 1 to 6 of my affidavit and I say that this is an application for special leave in circumstances where what is put forward is the Cachia v Hanes point or the Western Australian Full Court in Dobree v Hoffman point, a proposition that a solicitor is not entitled to recover any costs or work done for himself as a party.  There are authorities the other way and there has been a description of the point as involving a division of judicial opinion.  In my dealings with Deputy Registrar Musolino, she has indicated that in the course of the Registry’s preparation of papers for the Court and for the determination, that there is a need for completeness.

There is nothing before the Court in the current papers to tell the Court what work was done and who did it.  For example, if Mr Thomas briefed the solicitor’s work to another solicitor, and that solicitor did the work and Mr Thomas paid for it, then that would not be caught by the application and the decision that the application seeks, whereas if he has done all the work himself it is caught.  So the basis of the application is that the Court has no knowledge of what work was involved and by whom it was done and that may or may not constitute an impediment.  The submission that is made is that it is more desirable that the bills be before the Court so that the Court can see what work was done and by whom.

HIS HONOUR:   But is the consequence of what you are telling me that the costs ordered by the Full Court of the Supreme Court of South Australia in June 2009 have not yet been fixed or determined?

MR JORDAN:   No, Mr Thomas has not – I cannot say that he has not prepared a bill, but he has certainly not served one on me and my understanding is that he has not delivered one to the Supreme Court either.

HIS HONOUR:   Is the consequence that we simply do not know whether any claim is made by Mr Thomas for costs of a kind that would raise, what you say, is a point about which there is a division of judicial opinion?

MR JORDAN:   Yes, sir.  Mr Thomas and I both know, because we have been involved, but the Court does not.

HIS HONOUR:   And whether or not such a claim is made, that is whether or not Mr Thomas claims to be entitled to charge amounts of a kind which you say are disputable on the bases you have identified, has not yet been decided by a taxing officer of the Supreme Court of South Australia?

MR JORDAN:   No, sir.  No application has been made to a taxing officer, let alone any decision.

HIS HONOUR:   Is not the complaint which you foreshadow a complaint that is premature until we know (a) whether a claim is made and (b) whether, if a claim is made, the claim is allowed?

MR JORDAN:   No, sir.  With respect, that is not the position.  There is clear evidence on documents before the Court of some things Mr Thomas has done to which the costs order would relate.  For example, there are judgments that acknowledge his appearance so there is no doubt that some things are demonstrated by the papers but there is, in my respectful submission, an inadequacy and deficiency in that there are a number of other things, a number of other items of work performed by Mr Thomas and the detail as to who performed that work and what the work was and what charge is made for it is not at all before the Court at this stage.

HIS HONOUR:   I should say to you, Mr Jordan, that the points you make seem to me, at the moment, to lead to the conclusion that until we know whether there is a claim made, until we know whether that claim is allowed, the whole debate is academic and hypothetical.  What more will we know if we know only that Mr Thomas makes a claim?  We do not know whether it is going to be allowed or not by the Supreme Court of South Australia.  They are the body whose order for costs has to be carried into effect.

MR JORDAN:   In my respectful submission, the Full Court, when it made the order on 2 June, made that order on an appearance of Mr Thomas, so to all intents and purposes, Mr Thomas was awarded the costs of that appearance then and there.  That is an example of the operation of the costs order, to award costs in circumstances where the Full Court knew it was awarding costs to a legal practitioner who was appearing for himself as a party in the proceedings.  The three orders of Justice Bleby of 21 February 2008; of Justice Gray of, I think, 28 March 2008 and the order of his Honour Justice Sulan in 2008 were all orders that were made and those orders record Mr Thomas’ appearance.  Those three orders were contained in the case book before the Full Court.

So again, those three appearances on documents before the Supreme Court when the Full Court made the order and now as documents in the papers in this Court demonstrate that the costs order made on 2 June 2009 was awarding costs to a legal practitioner who was acting in the capacity of representing himself as a party in the proceedings.  In paragraph 5 of my affidavit of 16 July I say that I respectfully submit “on the basis of completeness” that this order should be made. 

There are clear items that the Full Court order awards, but what is missing is the complete picture and there have been other taxations in the Supreme Court where this issue has been put forward and those taxations have completed and both Mr Thomas and I have an expectation of what the bills will say, especially so if they are drawn in the same style and form as the earlier bills, but at this point of time before this Court in the context of completeness there is a very incomplete picture which can be remedied if Mr Thomas draws his bills in taxable form and either files them and serves them on me, in which case I will file them here or he files them here himself.

HIS HONOUR:   Yes.  Is there anything you wish to add, Mr Jordan.

MR JORDAN:   Sir, only briefly, two – if I may I will make all my submissions now.  The issue of health, in the event that there is a failure on the application for orders – order No 1, I have deposed in paragraphs 7 to 11 as to my current circumstances and particularly in paragraphs 10 and 11 in relation to some difficulties I presently have and rely on those depositions for an extension of time.

HIS HONOUR:   An extension of time to do what, Mr Jordan?  What further step is it that you would wish to take?

MR JORDAN:   File an amended outline of argument, if your Honour pleases.

HIS HONOUR:   How long do you seek for that to be done?

MR JORDAN:   I am currently certified on current treatments including Amitryptiline until 7 October.

HIS HONOUR:   Yes.

MR JORDAN:   My final submission, if your Honour pleases, is in paragraphs 12 and 13 of the affidavit raising the reference to the Full Court of the Federal Court in the Freehills matter and I seek to do no more than just draw that to the attention of the Court.

HIS HONOUR:   Yes.  Yes, thank you, Mr Jordan.  Mr Thomas, what do you say about extending time for filing an amended outline of argument?

MR THOMAS:   If your Honour pleases, I was not aware that any outline of argument or written case had been filed at all.

HIS HONOUR:   No, it does not have to be served on you.

MR THOMAS:   No.  My position is that I would have no objection to a relatively short period of extension, if your Honour is so inclined.

HIS HONOUR:   Yes.

MR THOMAS:   But I would not consent – in fact, I would oppose any open‑ended kind of extension as would appear to be sought by paragraph 11 of Mr Jordan’s affidavit.

HIS HONOUR:   Yes.

MR THOMAS:   The point that I would like to make to your Honour, with respect, is that the applicant has deposed at paragraph 4 of his affidavit that the case that he intends to present to the Court on this special leave application is the same as the case he intended – or he did present to the Court on the previous special leave application, which was dismissed in April.  It would appear, therefore, that there would be very little work for Mr Jordan to do to prepare his written case on this special leave application if it is to be in identical or very similar terms to the one that was used on the previous occasion.  So, in my submission, there is no call for an extended extension of time.

HIS HONOUR:   Yes, thank you, Mr Thomas.  Is there anything you wish to add in reply, Mr Jordan?

MR JORDAN:   No, sir.

HIS HONOUR:   Yes, thank you.

On 29 June 2009, Neville Jordan filed an application for special leave to appeal from the whole of the order of the Full Court of the Supreme Court of South Australia given on 2 June 2009 in a proceeding pending in that court between Baronglow Pty Ltd as applicant, Mr Jordan as intervener applicant, Ronald Howard Willing as defendant and David Graham Thomas as respondent.

The orders that were made by the Full Court of the Supreme Court of South Australia on that day were that the applicant, which is to say Baronglow Pty Ltd, pay the costs of the respondent (on its face an order in favour of Mr Thomas) of and incidental to applications before Justice Bleby on 21 February 2008, Justice Gray on 28 March 2008 and Justice Sulan on 9 May 2008 and a further order that the costs are to be taxed if not agreed.

Mr Thomas is a legal practitioner.  The application for special leave to appeal proceeds on the premise that the order will require the applicant, Mr Jordan, to pay costs to Mr Thomas, including costs which either will or may include costs allowed to Mr Thomas as a legal practitioner acting on his own account in the proceedings.

Mr Jordan now applies in the application for special leave for an order that Mr Thomas file and serve a bill in taxable form pertaining to the costs ordered by the Full Court of the Supreme Court of South Australia on 2 June 2009.  In addition, Mr Jordan sought an order that the time within which he is to file his outline of argument and notice of appeal be extended until 14 days after the bills referred to in the first order sought are filed and served.

That second prayer for relief has now been reframed as an order seeking an extension of time within which to file an amended outline of argument to a date well into the future.  As is implicit in that reframing of the second form of order sought, Mr Jordan, having regard to those provisions of the rules which deem abandonment of an application for special leave in certain events had filed on 27 July 2009 a summary of argument in support of his application for special leave together with a draft notice of appeal which he would seek to propound in this Court.

The application for special leave which has been instituted by Mr Jordan is not the first such application for special leave brought by Mr Jordan in connection with litigation which led to the orders which he seeks to impugn by the present application.  It is, however, not necessary to embark upon any description of those earlier applications for special leave, each of which has been determined by orders dismissing them.

Rather, it is sufficient to notice that, as is implicit in the form of order which Mr Thomas seeks concerning the filing and service of a bill in taxable form, the costs ordered by the Full Court of the Supreme Court of South Australia on 2 June 2009 have not yet been fixed.  No bill of costs has yet been prepared.  No claim has yet been made by Mr Thomas, so far as the material presently before me reveals, which would identify whether Mr Thomas seeks any amount for costs attributable to work which he has done in connection with the litigation that might engage principles of the kind which Mr Jordan seeks special leave to dispute on appeal to this Court.

Not only does the evidence not show that any claim has been made for costs of a kind that would invoke principles of the kind which Mr Jordan seeks to challenge in this Court, no determination has yet been made by an appropriate taxing officer of the Supreme Court of South Australia whether costs of that kind should or should not be allowed to Mr Thomas.

It not being known whether costs of the kind which lie at the heart of the application for special leave are either claimed or should be allowed it would not be appropriate in this Court now to make an order of the kind first sought by Mr Jordan.  I decline to make an order that Mr Thomas file and serve a bill in taxable form relating to the costs ordered by the Full Court of the Supreme Court of South Australia on 2 June 2009.  What is done under the order of the Full Court of the Supreme Court of South Australia is a matter that should proceed, if at all, in accordance with the ordinary processes of the Supreme Court of South Australia.

As to the proposal now made by Mr Jordan that he should have a time within which to file an amended outline of argument, it is important to recognise the matters that Mr Jordan deposes to in his affidavit of 24 July 2009.  In particular, without going into the detail of those matters, it is enough to notice that Mr Jordan deposes to suffering a number of health issues which have affected his ability and are expected to be likely to continue to affect his ability to prepare an outline of argument and notice of appeal in a form adequate to make the points which he seeks to make in this Court.  Mr Jordan points to the fact that treatment, of a particular kind which he is now undertaking, is expected to continue at least into the early part of October this year and he seeks an extension of time that would encompass the whole of that period.

It is, however, important to recognise that although the present proceeding is one which in the ordinary course would proceed ex parte within the Court unless or until a Justice directed that the process be served on the opposite party the proceeding should, nonetheless, not be allowed to take an unduly extended time.

In all the circumstances, it seems to me that the appropriate course to take is to permit Mr Jordan to have a further time within which he may file an amended outline of argument but that the time so allowed should not be of the length which he seeks.  On balance, I consider that any amended outline of argument upon which Mr Jordan would seek to rely and any amended draft notice of appeal upon which he would seek to rely in support of his application for special leave to appeal to this Court should be filed no later than 11 September 2009.  If the leave is exercised by that date, so be it.  If it is not, the matter will proceed in accordance with the ordinary processes of the Court on the documents that have thus far been filed.

In all the circumstances, the disposition of the costs of the application made on notice to the respondent today is not without its difficulty.  On balance, however, I think that the appropriate course to follow in that regard is to order that, although the application for special leave to appeal will continue in the first instance ex parte, the costs of today’s proceedings should, nonetheless, be disposed of as costs in the proceeding.

If, in consequence of consideration on the papers in accordance with the ordinary practice of the Court, it were to be determined that the application should proceed on notice to the respondents, the costs will fall according to the ultimate disposition of the application for special leave.  If, by contrast, on consideration of the papers it is determined by two Justices that the proceeding should not be served on the opposite parties but should stand dismissed then it would follow from the fact of that dismissal that the costs of the summons today would be allowed in favour of the party who appeared to oppose the making of the orders that were sought.

Accordingly, the orders I will make today are an order extending time in the fashion earlier indicated.  Otherwise, the application of Mr Jordan stand dismissed.

I am told that I misspoke when I spoke of filing the amended documents.  I think that the ordinary habits of far too many years overtook me and I spoke of those orders being filed and served by 11 September 2009.  My intention was, and I will correct the transcript accordingly, that the amended documents be filed by 11 September 2009.  I am not, Mr Jordan, directing service of any papers on the respondents.  That is a matter that will depend upon consideration of the matters on the papers.  Mr Jordan, you wish to be heard further?

MR JORDAN:   If I may, your Honour.

HIS HONOUR:   Yes.

MR JORDAN:   In the first instance I acknowledge what your Honour has just said about the amended documents.  I think it would be remiss of me not to draw to your Honour’s attention that in the documents submitted with the application for special leave is the judgment of his Honour, Judge Lunn ‑ ‑ ‑

HIS HONOUR:   I have read that.

MR JORDAN:   A master of the Supreme Court and one of the two masters who does the taxing and he has unequivocally decided the point against me in that application.  So I make the submission, with respect, that the Supreme Court heard his Honour, Judge Lunn, has determined the point.

HIS HONOUR:   I was not unmindful of that fact.  Thank you, Mr Jordan.  The orders will be in the form I have indicated.

MR JORDAN:   Thank you, your Honour.

HIS HONOUR:   Adjourn the Court.

AT 12.15 PM THE MATTER WAS ADJOURNED