Jorgensen v The Supreme Court of the Australian Capital; Territory (No 3)
[2023] ACTSC 396
•14 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jorgensen v The Supreme Court of the Australian Capital Territory (No 3) |
Citation: | [2023] ACTSC 396 |
Hearing Date: | 14 December 2023 |
Decision Date: | 14 December 2023 |
Before: | Curtin AJ |
Decision: | (1) The plaintiff is to pay the amici curiae’s costs of the proceeding as a sum in gross in the amount of $12,500.00 (incl GST). (2) Each party is to pay their own costs of this application. |
Catchwords: | COSTS – PRACTICE AND PROCEDURE – Application for gross sum costs order – application by amici curiae – where amici curiae appeared partly at request of Court – submissions of amici curiae of significant assistance to Court – costs awarded – gross sum order appropriate to save the parties the difficulties, inconvenience, and expense of assessment |
Legislation Cited: | Court Procedure Rules 2006 (ACT) rr 1401, 1700, 1720, 1721, pt 2.17 |
Cases Cited: | Jorgensen v The Supreme Court of the Australian Capital Territory (No 2) [2023] ACTSC 358 |
Parties: | Alan Bradley Jorgensen ( Plaintiff) The Supreme Court of the Australian Capital Territory ( Defendant) Cheryl Wilson (Amicus Curiae) Graham Ashworth (Amicus Curiae) Ailsa Wilson (Amicus Curiae) Graeme Donald (Amicus Curiae) |
Representation: | Counsel Self-represented ( Plaintiff) T Gaffney ( Amici Curiae) |
| Solicitors Self-represented ( Plaintiff) Ashurst ( Amici Curiae) | |
File Number: | SC 161 of 2023 |
CURTIN AJ:
EX TEMPORE (REVISED)
1․Before me today is an application by the amici curiae that the plaintiff, being Mr Jorgensen, pay the costs of the amici of the proceedings (but not the costs of this application) as a gross sum in the amount of $12,500.00 (or such other amount as the Court deems fit) pursuant to r 1720(3)(c) of the Court Procedure Rules 2006 (ACT) (the Rules). The amici also seek an order that payment be made by the plaintiff within 28 days of the costs order (if made) and that each party pay their own costs of this application.
2․The substantive background to this application is set out in my judgment of 30 November 2023: see Jorgensen v The Supreme Court of the Australian Capital Territory (No 2) [2023] ACTSC 358 (Jorgensen (No 2)).
3․In Jorgensen (No 2), I recorded at [19]-[25] the reasons why I granted leave to the amici to appear and make submissions.
4․In short, I formed the view that granting leave to the amici would assist me in being properly informed of any relevant material and would ensure that all relevant submissions and legal arguments were put and tested before me, given that Mr Jorgensen was not legally trained. I formed the view that I would be significantly assisted by the submissions of the amici, and that any costs of the parties or any delay consequent on granting that leave was not disproportionate to the expected assistance I would receive.
5․The amici read the affidavit of Ms McKean, affirmed on 6 December 2023, to which she annexed various costs documents.
6․Mr Jorgensen was given the opportunity to serve any evidence on the costs’ application. Suffice to say, Mr Jorgensen did not serve any affidavit evidence or any other evidence or identify any documents upon which he wished to rely on this application. I took it that there was no evidence tendered by him.
7․The amici provided written submissions dated 6 December 2023.
8․After noting the above background to the application, the first issue to consider is whether, by reason of being an amicus rather than a party to the proceedings, the amici should be entitled to a costs order.
9․The court’s power to award costs is set out in pt 2.17 of the Rules.
10․In r 1700 of the Rules, the word ‘party’ is defined as follows:
1700 Definitions—pt 2.17
In this part:
…
party includes a person not a party to a proceeding by or to whom assessed costs of the proceedings are payable.
…
11․Rule 1721(1) of the Rules says:
1721 Costs—general rule
(1)The costs of a proceeding or of an application in a proceeding are in the discretion of the court.
12․Those Rules provide the court with sufficient power to make an order for costs in favour of an entity or person who was not a party to the proceedings and includes an amicus.
13․The next question is to identify factors relevant to the exercise of the discretion to award costs to the amici. Those were usefully summarised in Madafferi v The Queen (No 2) [2021] VSCA 4; 63 VR 143 at [20], namely:
Whether a particular case is an exceptional case justifying a costs order in favour of amici curiae depends on the circumstances, including the nature of the case, and the nature of the amici curiae’s involvement and contribution. The following matters may be relevant in that assessment:
(d)whether the amici curiae were appointed by, or appeared at the request of, the Court, as opposed to having successfully sought leave to appear;
(e)whether the proceeding depended on the participation of amici curiae, for instance because the amici curiae played the role of, or obviated the need for, a contradictor, including where a party is unwilling or unable to participate in the proceeding;
(f)whether the submissions of the amici curiae were of particular or significant assistance to the Court;
(g)whether the submissions of the amici curiae assisted in resolving issues of wider legal importance, transcending the interests of the parties to the proceeding;
(h)whether the amici curiae were independent counsel appointed to assist the Court and the administration of justice, or an interested non-party, such as a statutory body or officer of the Crown; and
(i)the outcome of the proceeding, although it is not a bar to a costs order in favour of amici curiae that their arguments were unsuccessful.
(Citations omitted.)
14․In this case, the amici appeared at least partly at the request of the Court because of the need for an amicus, as set out in my earlier judgment in the paragraphs identified.
15․As it turned out, that need was well-established, and in those circumstances, for the reasons I set out in my earlier judgment, the amici should be entitled to seek costs.
16․The evidence can be shortly stated. The amici (in substance, being the respondents to the associated appeal proceedings) were represented by the same firm of solicitors and counsel as appeared in the associated appeal matter: see Jorgensen v Wilson [2023] ACTCA 45. The matters I heard and determined in my judgments in these proceedings and the appeal matter substantially overlapped and were heard together.
17․The total sum billed by the amici in appearing in both proceedings was $74,298.35 (incl GST).
18․Of that sum, the amici seek a gross sum order in the sum of $12,500.00, with an application for the same sum to be payable by Mr Jorgensen in the appeal proceedings, making a total sum claimed of $25,000.00 out of a solicitor-client bill of approximately $75,000.00. In other words, the total amount sought in both proceedings is about one third of the solicitor-client amount.
19․The principles applicable to the award of a gross sum figure have been addressed in a number of authorities. I need only refer to a summary of those principles set out by Mossop J in Jorgensen v Wilson (No 3) [2023] ACTSC 124 (Jorgensen (No 3)).
20․In these proceedings, as in Jorgensen (No 3), the amici (respondents to the appeal) were provided by the Australian Securities and Investments Commission with assistance for these proceedings under Appendix E of the Legal Services Directions 2017 (Cth). In short, the amici’s legal bills were being met by Comcover.
21․The question whether a party in that same position was entitled to claim costs was determined by Mossop J in Jorgensen (No 3) in favour of the party seeking costs. I agree with his Honour.
22․The next question is whether there should be a gross sum figure.
23․In Jorgensen (No 3), his Honour referred to a number of matters as to the state of the evidence before his Honour, which would provide a secure foundation for the making of the order sought. One of the matters his Honour referred to was the lack of evidence as to an hourly rate, and the lack of evidence of the work undertaken by the solicitors. Similar factors exist in this case, but those factors, in my view, do not stand in the way of making the order sought because of the relative proportion of the amount sought compared to the total sum invoiced for the work undertaken.
24․In Jorgensen (No 3), Mossop J set out at [94] a number of considerations that may be taken into account, which stem from Polleycutt v Taylor [2020] ACTSC 158 (Polleycutt) at [8]. They include:
1.the avoidance of expense, delay, and aggravation involved in protracted litigation arising out of an assessment of cost;
2.whether the party required to pay costs is unlikely to do so, and where a formal assessment will add to the financial burden of the party entitled to the costs without the likelihood of recovering the extra costs spent;
3.the conduct of the litigation by the party liable for costs, including where that party has caused trouble, expense in the proceedings, delayed or failed to comply with court orders, or otherwise failed to ensure an expeditious and efficient disposal of the litigation;
4.the likelihood that the party liable for the costs will not attend the formal assessment; and
5.if the costs issue was simple, it may therefore be entirely appropriate to save the parties the difficulties, inconvenience, and expense of assessment.
25․In this case, the making of the order sought will avoid the expense, delay, and aggravation involved in protracted litigation arising out of an assessment of costs. In my view, there is a strong case for making the order because Mr Jorgensen has today, as recorded in the transcript, indicated that he will refuse to pay any costs, and I infer, will refuse to engage constructively in any formal costs assessment process. Therefore, if I do not make a gross sum costs order, there will be an additional significant financial burden on the amici.
26․Mr Jorgensen does not live in Australia and lives overseas, and has, at least up until now, appeared by AVL. Those two factors would increase the difficulty and expense for the amici in seeking to obtain an assessment and recovery of any costs order.
27․As to the third factor in Polleycutt, it does not seem to me that Mr Jorgensen has caused undue trouble and expense in the proceedings, nor has he, in my view, failed to ensure an expeditious and efficient disposal of the litigation, particularly taking into account that he is neither legally trained nor legally experienced.
28․However, he has routinely failed to comply with Court directions for the filing and service of, for example, submissions. That is a factor in the exercise of my discretion, although that alone of itself is of minor importance.
29․In my view, it is likely that Mr Jorgensen will not attend the formal assessment of costs. His demeanour in submissions, the content of emails to the Court, and the content of his oral submissions, all point to an attitude of belligerence towards the amici and the Court such that he, in my view, is likely to engage in conduct to frustrate the costs assessment process. In my view, this is a matter where it is entirely appropriate to save the parties, and particularly the amici, the costs, difficulties, inconvenience, and expense of assessment.
30․I should note that Mr Jorgensen was given five minutes to provide his oral submissions on this application for a special costs order. It was made clear to Mr Jorgensen when I did so that the five minutes would be enforced if his submissions were irrelevant to the costs issues I had to determine. I indicated to him that if he made submissions which were relevant to the cost issues then that five minutes of time would be extended.
31․I have, contrary to Mr Jorgensen’s submissions, power to impose such a time limit by the terms of rr 1401(4)(e) and (m) of the Rules, which say:
1401 Directions generally
…
(4)Without limiting subrule (1), the court may, at any time, do any of the following in relation to a hearing of a proceeding:
…
(e)limit the time to be taken by a party in presenting the party’s case;
…
(m)limit the time to be taken in making an oral submission;
…
32․I formed the view that Mr Jorgensen’s oral submissions were completely irrelevant to the issues I had to determine on this application. For example, Mr Jorgensen submitted that I was too inexperienced with judicial review proceedings. He submitted that this was a waste of time because this matter and the associated appeal matter will go to the High Court. He submitted that he reserved all rights (what rights he was reserving was not identified). He said that I had reserved certain leave for him to do various things in my judgment (he could not identify where that leave had been granted, and as far as I can recall, no such leave was granted).
33․He submitted that he didn’t know how the appeal could proceed (Mr Jorgensen frequently made submissions not differentiating between these proceedings and the associated appeal), and was submitting that, of course, Justice Mossop was wrong in various respects identified by Mr Jorgensen in the proceedings the subject of the judicial review: see Jorgensen v Wilson (No 2) [2023] ACTSC 40. None of those submissions were relevant to the issue of costs I had to determined. Hence the five minute time limit was enforced.
Orders
34․I make the following orders:
(1)The plaintiff is to pay the amici curiae’s costs of the proceeding as a sum in gross in the amount of $12,500.00 (incl GST).
(2)Each party is to pay their own costs of this application.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin Associate: Date: |
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