Karwal v Skrzypczak

[2007] NSWSC 931

CITATION:	Karwala v Skrzypczak Re Estate of Ratajczak [2007] NSWSC 931
HEARING DATE(S):	30 July 2007
JUDGMENT DATE :	23 August 2007
JURISDICTION:	Equity Division Probate List
JUDGMENT OF:	Windeyer J at 1
DECISION:	Order respondent indemnify the applicant against the costs payable by her to the extent of $9,000.
CATCHWORDS:	COSTS - unnecessary costs - claim for costs order against barrister to indemnify successful party against her own costs - matters for consideration - LEGAL PRACTITIONERS - incompetence of counsel - claim that barrister pay part of costs - Civil Procedure Act 2005 s99(c)
LEGISLATION CITED:	Civil Procedure Act, s99(c)
CASES CITED:	Bagley v Pinebelt Pty Limited [2000] NSWSC 655 Briginshaw v Briginshaw (1938) 60 CLR 336 Harley v McDonald [1999] 3 NZLR 545 Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Limited & Ors [2006] NSWSC 155 In Re a Barrister (Wasted Costs Order) (No 1 of 1991) [1993] QB 293 Leicester v Walton (22 November 1996, NSW Court of Appeal) Ridehalgh v Horsefield and other cases [1994] ch 205
PARTIES:	Maria Karwala (Plaintiff) Jadwiga Skrzypczak (Defendant/Applicant on notice of motion) Ignatius Nwafor (Respondent to notice of motion)
FILE NUMBER(S):	SC 100898 of 2003
COUNSEL:	Mr S Galitsky (Applicant on notice of motion) Mr R J Weber SC (Respondent to notice of motion)
SOLICITORS:	G A Kinsey (Applicant on notice of motion) Moray & Agnew (Respondent to notice of motion)

- 20 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

THURSDAY 23 AUGUST 2007.

100898/03 MARIA KARWALA V JADWIGA SKRZYPCZAK IN THE ESTATE OF WLADYSLAW RATAJCZAK

JUDGMENT on notice of motion for costs

1 By notice of motion filed on 8 May 2006, the defendant/cross-claimant, Mrs Skrzypczak, seeks an order under s99(2)(c) of the Civil Procedure Act 2005 that Mr Asuzu, the barrister who appeared for the plaintiff, Mrs Karwala, indemnify the defendant against part of her costs incurred and payable by her to her solicitors. The hearing was delayed pending an appeal to the Court of Appeal. Section 99 is as follows:

99 Liability of legal practitioner for unnecessary costs
(cf Act No 52 1970, section 76C; SCR Part 52A, rules 43 and 43A)
(1) This section applies if it appears to the court that costs have been incurred:

(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.

(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following:

(a) it may, by order, disallow the whole or any part of the costs in the proceedings:
(i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or
(ii) in the case of a solicitor, as between the solicitor and the client,
(b) it may, by order, direct the legal practitioner:
(i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or
(ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,
(c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party.


(3) Before making such an order, the court may refer the matter to a costs assessor (within the meaning of Part 3.2 of the Legal Profession Act 2004 ) for inquiry and report.

(4) The court may direct that notice of any proceedings or order under this section with respect to a legal practitioner be given:

(a) in the case of a barrister, to the instructing solicitor or client, or both, as the court may direct, or
(b) in the case of a solicitor, to the client.

(5) The court may give ancillary directions to give full effect to an order under this section, including directions to a legal practitioner to provide a bill of costs in assessable form:

(a) to the court, or
(b) to a party to the proceedings, or
(c) in the case of a barrister, to the instructing solicitor or client, or both, or
(d) in the case of a solicitor, to the client.

(6) A party’s legal practitioner is not entitled to demand, recover or accept:

(a) in the case of a barrister, from the instructing solicitor or client, or
(b) in the case of a solicitor, from the client,


any part of the amount for which the legal practitioner is directed by the court to indemnify any party pursuant to an order referred to in subsection (2) (c).

(7) In this section, client includes former client.

2 The action was a contested Probate action. It was heard over 10 days. The contest was between a will made in 1961 propounded by the plaintiff and wills made in 1992 and 1995 propounded by the defendant/cross-claimant. I found for a will in the Polish language made on 24 November 1995. It is not necessary to set out the facts, all of which are included in my judgment of 29 March 2006.

3 The successful defendant/cross-claimant seeks an order that counsel for the plaintiff personally pay the costs incurred by the defendant, or the costs beyond a four day hearing or such portion of the costs of the proceedings as the court should determine.

4 The barrister was represented on the hearing of the motion by Mr Weber SC, who assisted the court by setting out clearly the four grounds which he relied upon in opposing the application. It is convenient to set the four grounds out here and to then deal with them in order. I make it clear that this is not because the onus is on the barrister, which it is not, but as a convenient way of dealing with the grounds 1, 2 and 3. The grounds are as follows:

1. The court has already finally judicially determined the questions of costs.

2. Alternatively, the orders sought are beyond the court’s power under relevant legislation and the court cannot exercise its inherent jurisdiction to make the orders sought.

3. Alternatively, the application is brought for a purpose foreign to the principles which underlie s99 of the Civil Procedure Act 2005 .

4. There is no established reason upon which the orders should be made.

Ground 1

5 Ground one is without foundation. The orders pursuant to the judgment were made on 29 March 2006. One of those orders was to reserve the right to make an application for the order now sought, provided it was made within 28 days. It is correct that the motion was not filed until 8 May 2006, but at the commencement of the hearing of the motion I extended that time without any real opposition.

Ground 2

6 The applicant relied on two arguments in relation to ground two. The first argument was that the court has no inherent jurisdiction to make the orders sought. Counsel for the applicant accepted this, and I accept that there is no longer inherent jurisdiction in the court to make the order sought: Leicester v Walton (22 November 1995, Court of Appeal unreported). The second argument was that the court also lacked authority under s99 of the Civil Procedure Act. This was apparently based on a misapprehension of the grounds of the notice of motion. The applicant was clearly relying on s99(2)(c), under which a legal practitioner can be ordered to indemnify any party for the costs payable by that party. However, the respondent’s written submissions were directed to s99(2)(b)(i) under which a barrister can be ordered to pay the costs that an instructing solicitor or client has been ordered to pay to another person. However, in argument the respondent raised the extent of the power under s99(2)(c), specifically whether the court’s power to make an order under that section is limited to indemnification of a party against costs payable by that party to another party pursuant to court order, or whether it extends to ordering a barrister to pay the costs payable by a party to his or her own solicitor. Section 99(2)(c) could not be limited to the former of these, that is the power to make an order that a barrister indemnify a party against costs payable by that party to another party pursuant to a court order; that is precisely the order contemplated by s99(2)(b)(i). Section 99(2)(c) would be redundant if it were so limited. In the context of s99(2), ss 99(2)(c) clearly gives the court the power to order that a barrister pay the costs payable by a party to his or her own legal practitioner. This was accepted without argument in Bagley v Pinebelt Pty Limited [2000] NSWSC 655, in which Hamilton J made an order of that exact kind, although it does not appear the power question was argued and it may have just been accepted.

7 There is a very similar provision in the United Kingdom in s51(6) of the Supreme Court Act 1981. Orders against lawyers there are generally referred to as “wasted costs orders”. It has been held there in two cases, namely in In Re a Barrister (Wasted Costs Order) (No 1 of 1991) [1993] QB 293 and in Ridehalgh v Horsefield and other cases [1994] Ch 205, that courts should apply a three stage test when a wasted costs order is contemplated, the three stages being as follows: (1) has the legal representative of whom complaint is made acted improperly, unreasonably or negligently?, (2) If so, did such conduct cause the applicant to incur unnecessary costs?, (3) If so, is it, in all the circumstances, just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs? Under the relevant section there “wasted costs” means “any costs incurred by a party as the result of any improper, unreasonable or negligent act or omission on the part of any legal representative”. The decision in Ridehalgh dealt with a number of cases but it is only necessary to say that it was not suggested that orders could only be made for indemnity of a party ordered to pay the costs of another party. In fact the question before the court was not whether a legal practitioner can be ordered to pay the costs of the other party, but merely when it was appropriate to make such an order. In determining when such an order is appropriate, I consider the three stage procedure proper but directed of course to the wording of the Civil Procedure Act.

Ground 3 – application for purpose not intended by the rule.

8 This argument is put forward because it is said to be clear that the reason for the present application is that the plaintiff, Mrs Karwala, has no assets out of which the order for costs against her can be satisfied. One writ of execution levied against her in respect of one judgment for costs has been returned unsatisfied by the Sheriff, with a report that the plaintiff was on a pension and on inspection of her house she had no goods of value. So it is said that the real purpose of the defendant’s application is to obtain satisfaction of an order for costs against a person not subject to the order. That is of course one of the reasons for the defendant’s application, and litigants do face the risk of being unable to obtain satisfaction of costs ordered against impecunious litigants. In cases where the party liable to pay costs is an impecunious defendant there is always risk, particularly as security for costs cannot be obtained. In some ways this was a strange case. While the real action was fought out on the cross-claim for a grant in respect of a later will, Mrs Skrzypczak would not have needed to seek such a grant of the 1995 will had Mrs Karwala not sought a grant of the 1961 will. That is because the deceased had no assets of any value, having during his lifetime transferred his home to himself for life with remainder to Mrs Skrzypczak. It was that transfer that Mrs Karwala sought to upset, if she obtained a grant and standing. However, a claim under s99 is not made for an unauthorized purpose if costs have been incurred by reason of serious neglect, serious incompetence or serious misconduct of a legal practitioner as they would not otherwise have been incurred. A party with an order for costs after a six day trial which cannot be satisfied cannot, for the sole reason that the unsuccessful party is impecunious recover costs from the barrister of the other side; but if a trial which if properly conducted would have taken six days goes for 12 days through the serious negligence, serious incompetence or serious misconduct of a barrister, then the Act does allow for costs which should not have been incurred to be recovered if the requirements of the section are met. This is consistent with English cases, in which the impecuniosity of an unsuccessful litigant is often the catalyst for a wasted costs order being sought, but the decision to make such an order looks solely at the conduct of the legal representative, see Ridehalgh.

Ground 4 – that there is no basis for making the orders sought

9 I proceed on the basis that the proper approach is that determined by Sully J in Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Limited & Ors [2006] NSWSC 155, namely (1) the onus of proof is on the applicant, (2) the standard of proof is the civil standard understood in the terms set out in Briginshaw v Briginshaw (1938) 60 CLR 336, so that reasonable satisfaction as to proof of an issue is not produced by inexact evidence, (3) facts must be proved to establish serious neglect, serious incompetence or serious misconduct in the handling of the case which caused costs to be incurred which ought not to have been incurred and, (4) that these facts justify the making of an order.

10 Sully J dealt with the relevant authorities, adding what he called “two additional riders” to them, neither of which appear to be relevant to the present case. The first is really immaterial as it deals with clients obtaining orders against their own lawyers, pointing out that the jurisdiction is not there to assist disappointed clients. The second rider was a body of principle taken from the judgment of the New Zealand Court of Appeal in Harley v McDonald [1999] 3 NZLR 545, suggesting that the jurisdiction to order costs could be invoked when incompetence or negligence amounted to a serious dereliction of duty to the court, with reference to professional standards. The Harley v McDonald decision was in connection with the inherent jurisdiction of the Court of Appeal in New Zealand to order costs against barristers. I do not think that it is really relevant in that it was seeking to establish the basis for exercising the inherent jurisdiction in New Zealand by reference to the tests applied in the United Kingdom before the UK wasted costs legislation came into effect. In the present case the court is dealing only with statutory jurisdiction, where s99(1) sets out the basis for exercising jurisdiction, independent of the requirements for professional conduct. This case is not dealing with general professional misconduct or unsatisfactory professional conduct matters which are dealt with by the appropriate disciplinary tribunal.

The factual basis for the claim

11 The applicant’s solicitor, in an affidavit, set out various matters on which he relies, and he has identified, as was required by an order I made, various transcript references which are claimed to support the application.

12 The important facts are set out in the following passages. There were a number of directions hearings held by me at which Mr Asuzu was present and appeared for Mrs Karwala. On a number of occasions I dealt with pleadings of the plaintiff in her capacity as cross-defendant to the cross-claim, the cross-claim being where the real fight was taking place. In particular on 25 July 2005 I ordered that a reply in defence to the cross-claim be struck out. On 5 September 2005 a new document had been filed and again I ordered that it be struck out. On 24 October 2005 I struck out part of the next document filed and directed that any allegation of forgery be particularised. On at least two occasions I suggested to Mr Asuzu that as he clearly had no understanding of probate pleading he should seek some help. Further attempts were made during the hearing to get some properly articulated defence to the cross-claim, including a defence of want of knowledge and approval. A perusal of the transcript will make that quite clear. In the long run I gave up, allowing the case to go forward on the basis that there was a claim of forgery and a claim of want of knowledge and approval, although neither was properly raised in respect of the wills really in question.

13 On the first day of the trial Mr Asuzu sought to file and have heard a motion for trial by jury without any notice to the other side. No proper reason was given for the application and there was no apparent comprehension of its difficulties. He dealt with an unsuccessful motion of the defendant for security for costs by addressing various principles for costs orders on final determination, which had no relevance to the security question.

14 The affidavit evidence of Mrs Karwala and most of her witnesses was, for a large part, inadmissible, although I did allow considerable latitude in this because Mrs Karwala was for a long time unrepresented. The barrister showed that he had no understanding of what was admissible and what was not. No attempt was made to have a coherent affidavit account in admissible form from the plaintiff. Objections to affidavit evidence took up much unnecessary time.

15 The plaintiff, through her counsel, sought to adduce oral evidence from a Dr Cameron without serving any report. A handwriting expert who had given an inconclusive report on a copy of one of the will documents was asked to look at the original will in the witness box and it was suggested that she should take it away and examine it overnight. I should add that there had not been properly raised any claim of forgery of the 1995 wills and it was for that reason, when an earlier application was made for inspection by a document examiner, that I refused the application.

16 Dr Lukaszewicz gave evidence without being able to refer, in any convenient form, to an ordered bundle of relevant documents which might have made her evidence valuable.

17 A Mrs Tcyzynski denied that the handwriting on certain documents of an attesting witness was her writing. It became apparent during the hearing that her evidence could not have been true yet the barrister continued to claim that the wills were forgeries based on that evidence.

18 The barrister seemed to have no understanding that it was unnecessary for a witness to give evidence orally which had already been put on affidavit. The transcript at page 30, and in many other places, makes this problem clear. Counsel made no attempt to or was unable to adduce oral evidence in any coherent way. In spite of my efforts to assist, for instance with the evidence of a Mr Racki, it was quite impossible to tell to what period of time his evidence related.

19 Mr Asuzu attempted to get into evidence medical reports on the basis they were admissible because they had been annexed to an affidavit of the plaintiff.

20 The barrister cross-examined a witness on a document the witness had never seen and on which he could give no sensible evidence. He took the view that because documents were somewhere in the file, although not put into evidence, they were before the court. At transcript page 86 when adducing evidence in chief from Dr Haber the following appears:

HIS HONOUR: I do not understand why there is not attempted to be tendered the medical reports of this doctor that you wish to be put into evidence. Mr Galitsky, if he thinks some of it is irrelevant, can object to those parts. You can adduce, from the doctor, any additional documents you wish, and he can be cross-examined. This is haywire.

ASUZU: It will be tendered. I believe it is already in the Court's documents.

HIS HONOUR: There is nothing before me in evidence. I do not have any Court documents. Any documents that have been subpoenaed are not in evidence. I do not look at bundles of documents that have been subpoenaed. There could be anything there. I will not look at them unless they are placed in evidence. There is nothing in evidence yet. None of these reports are in evidence. If you want to get them in, you will have to tender them.

ASUZU: Yes. (To doctor) I will give you another copy. I tender this letter.

At page 90, the following appears during the evidence of Dr Haber:

HIS HONOUR: …
Mr Asuzu, I propose to adjourn for ten minutes. You are to get the hospital records you want to put in. I assume there will be no objection to their being tendered. If you want to ask the doctor some sensible questions about them, you can do so. We cannot proceed like this. This is appalling. I do not propose to allow it to continue. I propose to adjourn while it happens.

SHORT ADJOURNMENT

21 A vast amount of time was wasted in unsuccessful attempts to put into evidence medical reports which had not been served and which did not comply with the expert evidence rules. At transcript page 135, dealing with an attempt to get into evidence the report of Dr Akkerman, the following appears:

HIS HONOUR: At the present moment, I do not propose to admit it. It may be, if Dr Akkerman is called, you may be able to adduce some evidence from him. The report, on no basis, complies with the rules as to expert evidence. It does not separate the assumptions from anything else. It does not bring about conclusions from assumed facts or known facts. It is quite impossible to have it admitted at this stage. At this stage I reject it. I am not stopping you calling the doctor.
ASUZU: Your Honour has to be very mindful of the mode of your rejection of vital medical evidence. My friend had said that Dr Akkerman's report is not a consultative-generated report. Such a consultative-generated report, you are also refusing, so I really do not know whether anybody is qualified in this State to ever diagnose as someone having dementia.
This case is about medical evidence and you seem to be not admitting anything. I have problem with that.

HIS HONOUR: As far as I know, I am admitting everything that is admissible, and some material which is of great doubt as to admissibility. I am not excluding anything that is admissible. At this stage this report is not admissible as an expert report, and I propose to reject it.

I am still giving you the opportunity of calling that doctor.

ASUZU: You might as well refuse Dr Akkerman from being called, but, nonetheless, that is the evidence that we are relying on.

22 A Mr Sadjak was cross-examined on an affidavit obviously prepared by Mr Kinsey, the solicitor for the defendant, and at page 184 the following appears:

HIS HONOUR: I do not wish to debate it with you. You continue, if you like.

ASUZU: Q. Can you tell the Court who prepared the document for you?
A. Is not for me. I didn't know it was for me specifically. No. The content of this - I don't even--

Q. Who sent that document to you to sign?
A. I don't know.

Q. It came from heaven?
A. I don't know.

HIS HONOUR: It might sound humorous, but it is quite unfair.

ASUZU: The witness has answered questions about things that happened 11 years ago, and this one that was done in 2004, there is a simple answer. Not too far away.

HIS HONOUR: He said he does not know.

ASUZU: Does the Court accept that the document was signed out of the sky? Then perhaps I stop here. It is not a difficult question. It is about the veracity of the account that he has given to the Court.

HIS HONOUR: You can keep asking it as long as you wish. It is perfectly obvious it was prepared by Mr Kinsey.
WITNESS: Would you come closer?


ASUZU: Do you want me to speak in your ears?

HIS HONOUR: Mr Asuzu, please sit down. I will direct you to withdraw from the Court any minute if you do not behave properly, as you should.

WITNESS: My GP has treated me with my ears, so what you are talking is not coming straight to me.

HIS HONOUR: Exactly.

Mr Asuzu, if you continue to behave like that, your right to appear in this case will be withdrawn.

(To witness) Thank you very much for your attendance. You are free to go, if you wish.

WITNESS: Thank you very much, your Honour. Sorry.

23 There were problems with the evidence of Dr Akkerman, whose report had been rejected. I said that he would be allowed to give oral evidence if the documents upon which he was to be questioned were put into some order with a copy being given to the other side. I had been asking for a coherent bundle of documents for most of the day. At page 186 and immediately thereafter the following passage appears:

Mr Asuzu, last night it was suggested that you should get together, in a bundle, those hospital notes, doctors' notes and other medical matters, which you thought were relevant and wished to put before the Court. It may be then that Dr Akkerman can be taken to those and, if qualified, give a relevant opinion, presumably on capacity. We cannot just have him here unless you are ready to do that. Are you ready to do that?

ASUZU: Yes, we are ready to do that, but every objection that my friend has put before Court you have been very willing to accept it.

It worries me at this stage what is the grand design. Your Honour is not prepared to accept the treating doctor. You are not prepared to accept opinion of a psychiatrist, who has looked at the Court papers. At this moment I am very, very afraid of what is the evidence the Court is prepared to look at. Is it the technical evidence or the real evidence of the mental state of the deceased at the time?

I am particularly not very, very happy with the way you have disallowed all best evidence in this case, including the medical evidence. They were not designed with the testator's property in mind. They were designed at the time when he suffered the disease.

Now, the doctors that we will be calling, we made it point clear a month or two before this case. Those doctors are now being called, and they are being stopped from going into the witness box, or their medical opinion and reports are being rejected all at the time.

It is not fair to my client and to the progress of this very case. Why are the facts of this case being systemically removed from it? I do not think that my friend has the audacity to change the facts of this case, so I am not sure there is any law that allows or disallows such technical evidence from going into being heard.

First, the treating doctor. It is said her report is here and there. Well, her report might be here and there, but the important thing is the medical condition of the testator at the time it happened. So, I am going to prepare the medical evidence that we have, and then give it to my friend, and then, if it is not allowed - my intention is to tell the Court that Dr Akkerman is here. We notified to the Court that he will be called. We produced a report. If he was not a treating doctor - we have Dr Lukaszewicz, who is the treating doctor. Again, it is between the opinion, at the time when they did it, and what was put in their report.

HIS HONOUR: I am not sure what I am supposed to do about that. This case has been run on the basis that either the primary evidence would be put on affidavit or be in expert reports which were admissible. If reports are tendered which are not admissible the Court cannot do anything about it. The Court cannot allow inadmissible evidence to be put before it. That is why Dr Akkerman's report is rejected.

So far as Dr Lukaszewicz is concerned, there will be, as I understand it, far fewer problems. While her reports have been rejected, mostly because a lot of them is clearly inadmissible in this case, I am expecting that she will be called. Her affidavit is on the file and has been read. Basically everything in it has been rejected, but the affidavit has remained there, on the basis that she will be called. Because she was the treating doctor, and her notes are here, she will be able to give admissible evidence.

ASUZU: Well--

HIS HONOUR: Just a minute.

So far as some suggestion that this case is being run to admit technical evidence and not the important evidence, all the Court is wishing to do is to get the relevant evidence in. Its duty is to keep inadmissible evidence out. That is what I am trying to do. There is a lot of evidence so far in which, on a technical basis, might not have been allowed. However, it has been allowed.

So far as Dr Akkerman is concerned, we do not have any idea what this doctor is going to say because his report has been excluded. He will not be able to give any evidence of assistance to the Court in a reasonably comprehensive way, in a reasonable time, unless there has been prepared a bundle of documents which he can look at and will be asked, if he can, to give his expert opinion on testamentary capacity as a result of looking at that material. He has never seen the deceased. He can only give an expert opinion by looking at medical documents. He can only do that if there is a bundle of those documents which it is intended to ask him to look at. If there is a bundle of documents, that bundle can be tendered, probably without any real objection, and we can get on with the case.

Last night the suggestion was made, which I adopted, that you should produce that bundle of documents and have it ready for today. I understand that has not yet been done. If it is done, then Dr Akkerman can probably be called.

ASUZU: The important thing is the fact that we provided his name long before. Those documents, those bundles, were sent to him to look at it his own leisure. It is after looking at those bundles that he prepared a report, which, as an expert in the field of psychiatry, he has prepared to put before Court. So, if we have to do afresh what we had done in the past, we are prepared to do that, but, nonetheless, he did not produce a report from his own ideas of what the report would look like. He prepared a report from that bundle that was sent to him and now is here to defend it.

HIS HONOUR: I do not wish to keep repeating it. If you have the documents, in a convenient way, which were sent to him, we can probably proceed.

ASUZU: I have the bundle, which is from Bankstown Health Services and Bankstown Hospital. I have the South Western Sydney Area Health Services.

HIS HONOUR: A lot of that has no relevance whatsoever to this, I imagine. If you want to ask this doctor his opinion, based on particular documents, they will have to be identified. There will be page after page of nursing notes, which will be quite irrelevant to this matter. If you want to, you can give them to the doctor now. He could put a flag on the ones which he says are relevant to his opinion. Then, if you wish, you can tender them, and then he can give some evidence.

But, in this matter, it is not a question of complaint; it is a question of reasonable running of a case. Reasonable running of a case is that expert evidence be given, by way of a report, as to opinion, and then those experts be made available for cross-examination. When a report is inadmissible, there is no discretion for the Court to allow any evidence to continue.

I wish to assist you; not to exclude you.

I do not wish to say anything more about your other comments, which are quite inappropriate.

If you wish to do that, you can. The report will not be admitted.

24 At page 241 and on many other occasions I again drew attention to the pleadings.

25 On 20 February Mr Asuzu sought leave to file an amended defence to the cross-claim, raising some extraordinary matters of non-delegation of will-making power. A lot of time was spent discussing this matter and in the end it was rejected. There is some further discussion about the pleadings on page 311 of the transcript which I will not set out.

26 At page 425 it will be seen, in dealing with the evidence of Anna Andrysiak, that the barrister once again endeavoured to get in oral evidence, which evidence had already been given on affidavit. The following passage appears on that page:

HIS HONOUR: I reject that question too. If you are wanting to ask this witness to give the evidence in paragraph 6, it is already there. Is that what you are interested in? Have you looked at paragraph 6 or not?

ASUZU: Yes, I have. I am trying to avoid going to paragraph 6 per se and for the witness to say in her own words, analyse to the court, her relationship with this defendant.

HIS HONOUR: She said she knew her for 10 years. She said she met her in church. She said in 1995 she was a dinner guest at her house and after that she was being told about this old man. I don't want her to repeat all that. Have you got some relevant questions? You shouldn't be allowed to ask any, but if you have got any--

ASUZU: I don't know why you don't want her to repeat.

HIS HONOUR: I have told you at least three times I don't intend to have repeated the evidence which has been given in chief. The parties in this case were required to put on their primary evidence by affidavit. That is what has been done. The reason for that is so we don't waste time having it said orally and I don't intend to allow it.

ASUZU: But for the record, the litigation of proceedings has been recorded and for the record--

HIS HONOUR: This affidavit, and everything that is written in it, which has been admitted into evidence, is part of the record. It doesn't have to go on to the transcript. Surely you know that.

27 I regret to say that so far as inadequacy of preparation and incompetence in advocacy is concerned this was the worst case which has come before me since I was appointed to the court. Had the action been competently handled there is no doubt that it would not have taken so long. There is no doubt whatsoever that increased costs were incurred by the defendant as a result of the increased time of hearing which, had the matter been handled properly, would not have been needed.

28 As against all of this it is necessary to bear in mind the fact that it had become apparent to me at various directions hearings before Mr Asuzu was instructed, that the plaintiff, Mrs Karwala, was a very difficult litigant. I have no doubt that she was also a difficult client in that she would have made demands on any legal representative as to adducing evidence and what should be put before the court, which might have been difficult to put aside. It was also perfectly clear that she was being assisted to a great extent by a lady who acted as interpreter for her whose forthright approach would probably have made life difficult for any barrister or solicitor. Nevertheless it is the duty of counsel to present a case in a reasonably competent way, the court, of course, making allowances for the difficulties which are often involved with particular clients. Even taking all that into account it is perfectly clear that the barrister was quite incompetent in his conduct of this particular piece of litigation and that his incompetence led to the costs being increased. In saying that I do not place much significance on the fact that the original estimate of the case was for a four day hearing. Had all the witnesses been able to speak English, had the parties been reasonable, and had the affidavit evidence been in reasonable form, it is possible that with competent representation the hearing could have been concluded in four days. However, for my own part I take little notice of estimates because some judges hear cases more quickly than others and one does not always know the difficulties that particular clients will bring forward. In spite of that, there can be no doubt whatever that the case should not have lasted longer than eight days and probably not longer than six.

29 At one stage during the hearing or during some other application, I had formed the view that the barrister was appearing pro bono for Mrs Karwala. I thus said to his counsel on the hearing of this motion that that had been my understanding and I had expected that there would be some evidence to that effect. Mr Weber SC said that he had no instructions about that and as the barrister was present in court I assume that my understanding was incorrect. The barrister gave no evidence.

30 I finally take into account the fact that the hearing could possibly have been more difficult had Mr Asuzu not appeared. That is a matter which is difficult to determine because had there been no representation, there would not have been nearly so much room for argument about unarguable matters. The point is that had the matter been handled competently it would not have taken ten days and because it was not handled competently, it did. In my view it took two days longer than it should have through serious incompetence. Finally I consider that in the circumstances of this case it is proper and just to make an order against the barrister. Some might consider that some of his behaviour amounted to serious misconduct, but I consider that behaviour occurred through serious incompetence rather than intentional misconduct.

What should be the result?

31 In my view it would be a quite unreasonable expense to require the costs of the full hearing be assessed and then order the barrister to pay some part of those costs. It is fairer to fix an amount. I consider that an order should be made that the barrister indemnify the defendant/cross-claimant against costs incurred by her in the amount of $9,000, which I estimate to be the approximate costs of two days’ hearing.

1. That Mr Asuzu, barrister, indemnify the defendant/cross-claimant against the costs payable by her to her lawyers to the extent of $9,000.

2. That amount be paid to the defendant/cross-claimant or as she directs within 28 days from this date.

3. Order the respondent pay the applicant’s costs of the notice of motion.

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