Kathryn Ann Brennand and Brian Jonathan Naughton v Maureen Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School (No 2)
[2015] ACTSC 2
•22 January 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kathryn Ann Brennand and Brian Jonathan Naughton v Maureen Hartung and Best Practice Education Group Ltd t/as Blue Gum Community School (No 2) |
Citation: | [2015] ACTSC 2 |
Hearing Date(s): | 5 December 2014, 15 December 2014 (written submissions) |
DecisionDate: | 22 January 2015 |
Before: | Refshauge ACJ |
Decision: | 1. Subject to Order 2, the Appellants pay the Respondents’ costs of the original hearing and of the consideration as to costs on a party and party basis to be agreed or assessed. 2. There be deducted from the costs payable to the Respondents the costs of the Appellants on a party and party basis of the issue of the set off to the costs of the order of the learned Master made on 18 July 2013, to include at least the correspondence, attendances and other matters about that issue and to include notionally the amount equal to the costs of making a consent order to vary the Certificate of Assessment to take into account the set off. |
Category: | Principal Judgment |
Catchwords: | PROCEDURE - Costs – Special Order for Costs – Whether letter a Calderbank letter – No special order PROCEDURE – Costs – Whether unsuccessful party should have costs – Costs to be paid by unsuccessful party |
Legislation Cited: | Human Rights Commission Act 2005 (ACT), s 19A Court Procedures Rules 2006 (ACT), rr 4.2(3) sch 4, 21, 1110, 1726(2), 1852, 1855 |
| Cases Cited: | BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 |
| Parties: | Kathryn Ann Brennand (First Appellant) Brian Jonathan Naughton (Second Appellant) Maureen Hartung (First Respondent) Best Practice Education Group Ltd t/as Blue Gum Community School (Second Respondent) |
Representation: | Counsel Ms J Keys (Plaintiffs) Mr G Brackenreg (Defendants) |
| Solicitors Kathryn Brennand and Brian Jonathan Naughton Self-represented (Plaintiffs) Meyer Vandenberg (Defendants) | |
File Number(s): | SC 110 of 2012 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Harper M/Deputy Registrar Kennealy Date of Decision: 18 July 2013/9 August 2013 Case Title: Brennand v Hartung Citation: Brennand v Hartung [2013] ACTSC 132 Brennand v Hartung (Unreported, Australian Capital Territory Supreme Court, Deputy Registrar Kennealy, 9 August 2013) |
Refshauge ACJ:
On 5 December 2014, I dismissed an appeal from the Master by the appellants (the plaintiffs before the Master) because it was incompetent and I also dismissed an application made by them to review a decision of the Deputy Registrar on a reconsideration of an assessment of costs. I shall refer to the appellants (who were, of course, also the applicants for the review) as “the appellants” in these reasons.
The respondents (the defendants before the Master) sought an order for costs. A letter of the lawyers for the respondents was handed up on the basis of which I was asked to make a special order as to costs. I shall refer to the respondents as such in these reasons.
The appellants opposed such an order. I permitted the parties to file written submissions. The appellants have done so in the form of submissions by Ms Judith Keys of counsel. I have considered those. The respondents, having received the appellants’ submissions, advised that they did not propose to make any further submissions.
Factual background
The circumstances of the proceedings are set out in my decision, Brennand v Hartung [2014] ACTSC 326. I do not need to repeat what I there said but it is obviously relevant to my decision and I take into account my findings that I then made.
Having dismissed the proceedings, I invited the parties to address me as to costs. As I have noted above (at [2]), the respondents sought a special order for costs. In support, they tendered a letter sent to the appellants personally, dated 19 November 2013, and headed “Without Prejudice Save as to Costs”. In substance, the letter was in the following terms:
We refer to previous correspondence, particularly our letter to you dated 3 October 2013.
Without any admissions, we are instructed to make the following offers to you. Our client makes these offers on a purely commercial basis in an attempt to save the parties the further expense of contested strikeout applications.
Appeal from the decision of Master Harper
Our client will consent to your application to regularise your Appeal as being properly instituted in the Court of Appeal; the costs of that application to be costs in the cause.
Appeal from the reconsideration decision of Deputy Registrar Kennealy
Our client will consent to your application to regularise your Appeal under Rule 1855 of the Court Procedures Rules 2006 (ACT); the costs of that application to be costs in the cause.
In the event that you do not apply to regularise your appeals by 26 November 2013, our client will move on its applications set out in our letter to you dated 3 October 2013. We will rely on this and previous correspondence in support of an application that you pay our client’s costs on the indemnity basis.
I shall mark the letter as Exhibit 1 in the proceedings.
In her submissions on behalf of the appellants, Ms Keys drew my attention to earlier correspondence. She annexed to her submissions the letter of the respondents’ solicitors dated 3 October 2013 to which reference is made in their subsequent letter extracted above (at [5]). She also annexed an email response she made to that subsequent letter.
I shall take the response of the respondent to the submissions of the appellants annexing thee documents as evincing no objection to me receiving them. I shall, accordingly, receive them as exhibits, marking the letter as Exhibit A and the email as Exhibit B.
The letter of 3 October 2013 (Exhibit A) sets out in some detail the arguments that the respondents advance as to why the appellants’ appeal against the decision of the learned Master was incompetent. They made reference to relevant rules in the Court Procedures Rules 2006 (ACT) and also to relevant authority.
As to the application for review of the reconsideration by the Deputy Registrar of the assessment of costs, they pointed out, also by reference to relevant rules, the error made in the method adopted by the appellants to make that application.
They then invited the appellants to withdraw the appeal and the application, failing which they would apply to the Court to strike them out as incompetent and would seek costs of their applications. Again, reference was made to the relevant rules.
I note that this meant that the appellants had detailed explanations as to the basis on which the respondents considered both the appeal and the application to be incompetent at least by the date of receipt of the letter of 3 October 2013.
The email (Exhibit B) was in response to the letter from the respondents’ solicitors dated 19 November 2013, that is the letter extracted above (at [5]). The substance of the email was as follows:
Your rationale for threatening to apply for indemnity costs unless the plaintiffs concede that your application in proceeding dated 23 October 2013 should prevail, is unclear, particularly as you seek orders setting aside both appeals and not ‘regularising’ them, and you have maintained that position since your letter dated 3 October 2013, in your Application in proceedings dated 23 October 2013, and in your submissions dated 25 November 2013.
The law
It appears that the letter of 19 November 2013 (Exhibit 1) was intended to be a “Calderbank letter”, that is an offer which, if not accepted, had costs consequences. See Calderbank v Calderbank [1976] Fam 93 and, in this jurisdiction, Quirk v Bawden (1992) 112 ACTR 1. In Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145, I considered in some detail the principles applicable to Calderbank letters. More recently, in Pires v Dibbs Barker Canberra Pty Ltd [2014] ACTSC 283 at [97]-[98], I summarised these principles, as follows:
97.The letter of offer is commonly called, therefore, a “Calderbank letter”, though there are some principles surrounding such letters and not just any letter of offer will suffice. I have set out some of these principles in Financial Integrity Pty Ltd v Farmer (No 4) [2014] ACTSC 145 at [24]-[46]. They may briefly, not exhaustively, be summarised as follows:
·the letter must be either an open letter or marked “without prejudice save as to costs” and thus be able to be tendered at any hearing or an application for costs;
·the offer in the letter must be a genuine compromise;
·the offer must be in clear terms and be a final offer, not subject to any further negotiation;
·generally an offer should not be “inclusive of costs”, though the authorities are not uniform on this issue;
·the letter must state expressly that, if the offer is not accepted, then a special order, such as for indemnity costs, will be sought;
·the offer must be open for a reasonable period, which is generally, though depending on the circumstances of each case, about 14 days;
·the offer must give the offeree a reasonable chance to consider the strength of the offeror’s case, so that the earlier in the proceedings the offer is made, the more information about the strength of the offeror’s case and the weakness of the offeree’s case should be provided;
·the Court, when asked to take into account the rejection of an offer made in a Calderbank letter, has a wide discretion and is not bound to make a special costs order;
·a very important consideration is whether the judgment is more favourable to the offeror than the offer in the Calderbank letter and the extent to which it is more favourable; and
·an almost equally important factor is whether, in all the circumstances, the offeree’s rejection of the offer was reasonable; that may involve a consideration of the extent of the compromise as compared to the strength of the cases of the offeree and the offeror.
98.In Financial Integrity Group Pty Ltd v Farmer (No 5) [2014] ACTSC 194 at [3], I considered that, in principle, the date from which any special order should be made is the last date on which the offer is open for acceptance by the offeror.
In this case, the appellants seemed to act for themselves. That is to say, there was no solicitor on the record, their address for service was their own address and they appeared to file their own documents.
The effect of a party being a litigant in person was something that I had not needed to address in Financial Integrity Pty Ltd v Farmer (No 4) but I did in Pires v Dibbs Barker Canberra Pty Ltd at [99], where I said
99.One issue which I had not earlier considered is the position where the offeree is a litigant in person. In such circumstances, this may be a relevant factor. In Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99 at [26], the NSW Court of Appeal considered that the fact that the offeror was
an unrepresented litigant, but never squarely and succinctly told ... why his motion and amended motion were doomed to fail
was a relevant factor which, with others, led to the Court declining to make a special costs order.
The position here was not so straightforward, however, for Ms Keys appeared for the appellants before the Master, before the Deputy Registrar and before me. I assume that she was instructed directly, as is permitted under r 1151 of the Legal Profession (Barristers) Rules 2014 (ACT).
Ms Keys was clearly actively involved in the proceedings, including, as I have noted above (at [17]), before the Deputy Registrar on the assessment of costs. I cannot assume that she was unaware of the respondents’ solicitors’ letter or did not provide any advice to the appellants concerning it. Indeed, the fact that it was she personally who sent the email which is Exhibit B enables me to infer that she was well aware of the contents of the letter and her duty to the appellants would have been to advise of it.
As such, it does not seem to me that the weight I can give to the fact that the appellants were not represented by a solicitor the same weight as I would otherwise give an unrepresented litigant.
Was the letter of 19 November 2013 a Calderbank letter?
The letter of 19 November 2013 (Exhibit 1) made no reference to Calderbank v Calderbank or the ACT decision applying those principles, Quirk v Bawden. As Hoeben J pointed out in Crump v Equine Nutrition Systems Pty Ltd t/as Horsepower (No 2) [2007] NSWSC 25 at [67], a letter may still operate as a “Calderbank letter” despite the absence of such a reference.
What is necessary, however, is that it is clear that the offer is intended as a “Calderbank offer”: Nobrega v Trustees of the Roman Catholic Church (No 2) [1999] NSWCA 133. As Barrett JA said in Whitney v Dream Developments Pty Ltd (2012) 84 NSWLR 311 at 323; [57]
Everything therefore depends on the message conveyed by the offer itself and any covering letter or attendant circumstances.
These circumstances will include matters such as those referred to by Garling J in Rail Corporation NSW v Vero Insurance Ltd (No 2) [2012] NSWSC 926 at [35]:
Whilst it is important that parties are on notice that reliance is to be placed on an offer, if not accepted, when an application for costs is later made, sophisticated parties, experienced in litigation, who are ably represented by lawyers who are also experienced in litigation, ought be expected to understand and appreciate that, if an offer is unreasonably rejected (or not accepted), costs consequences are likely to ensue.
What concerns me is that it seems clear from the email send by Ms Keys especially in her reference that the “rationale ... for indemnity costs ... is unclear” that she did not appreciate (and, therefore almost inevitably, neither did the appellants) that this was a “Calderbank offer”. No response or clarification was forthcoming from the respondents and, of course, there was no reference in the letter to the relevant decisions.
The conduct of the proceedings do not leave me with any degree of satisfaction that the appellants and Ms Keys were within the description of litigants set out in the comments by Garling J which I have extracted above (at [22]).
The question is, perhaps, more properly not whether the letter is a “Calderbank letter” but whether the failure to clarify the uncertainty affects its operation as such. This may then help me decide if I should make a special costs order given that the offer in it was not accepted. I do not need, therefore, to make a final decision as to whether the letter was a “Calderbank letter” because of this issue.
The letter otherwise seems to me, however, to comply with the usual formal requirements of a “Calderbank letter”. The question, however, is whether it should have the effect that a special order for costs should be made.
In this regard, I note also the comments of Crispin J in Whittle v Filaria Pty Ltd [2004] ACTSC 131 at [24]
... the Court is not deprived of the discretion to make a more favourable than usual costs order merely because the party against whom the order is sought can point to some deficiency in the manner in which the Calderbank offer has been expressed and hence be entitled to argue that it was not "certain" or that an unqualified acceptance would not have given rise, without more, to a binding contract.
Should the failure to accept the offer result in a special costs order?
The letter referred to both the appeal and the application for review. The respondents were successful in having the appeal struck out as incompetent.
While I found the application for review had been improperly commenced, I had no difficulty, however, in regularising it and then proceeded to determine the review: Brennand v Hartung at [14]-[15].
I then proceeded to hear the application for review itself. I dismissed the challenges that the appellants made to the reconsideration by the Deputy Registrar, though the respondents conceded that costs awarded to the appellants should have been offset against those assessed by the Deputy Registrar. Without objection from the respondents, I did make that adjustment to the amount allowed on the assessment.
Thus, while the respondents were wholly successful in having the appeal from the Master struck out as incompetent, as foreshadowed in their correspondence, they have not been successful in having the application for a review of the reconsideration by the Deputy Registrar struck out and that review was heard and determined, in which the appellants had some success.
While I express surprise and some concern that an admitted practitioner could not tell that the letter being Exhibit 1 was purporting to be a “Calderbank letter”, with the well-known potential consequences it has for a failure to accept the offer in it, I do not have any basis to suggest that she actually did not understand that this is what in substance it was. Given that such a letter is common in litigation in this Territory, counsel’s ignorance is regrettable. It would nevertheless have been very easy for the respondents to have dispelled that ignorance by a short email referring to Calderbank v Calderbank or to Quirk v Bawden, to neither of which was reference made in the letter itself.
I also note that the issue on which the respondents succeeded, in having the appeal from the Master dismissed as incompetent, was an issue of some complexity and the question of whether a decision is interlocutory or final is not an easy one. As Kirby J said, though of a different issue, in Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161 at 175; [42], there are “questions upon which the law does not speak with a clear voice”.
I have no doubt that, had the appeal been to the same court in both cases, the incompetence of the appeal would not have been a problematic issue. Despite representations and comments in judgments of this court, the rather idiosyncratic position of appeals from the Master has not been regularised by the legislature. Both parties have suffered from this.
I also note that the offer was only open for eight days. While the usual period of fourteen days to which I earlier referred (at [14]) is not a mandatory period, it is a relevant factor. I accept that details of the respondent’s arguments had been comprehensively put more than a month earlier in the letter of 3 October 2013 (Exhibit A) but it did not then make the claim for indemnity costs if the offer was not accepted by the appellants. The failure to clarify the basis of that claim when later made is relevant to the period during which the offer remained open.
In all the circumstances, I do not consider that a special order should be made.
Appellants’ Application
Despite not making such an application at the hearing, the appellants have now applied for costs themselves as well as opposing an order for costs in favour of the respondents.
The appellants address separate arguments in respect of each matter and I will deal with them accordingly.
Appeal from the Master
In respect of the appeal from the decision of the Master, counsel for the appellants raised certain arguments in which she sought an order for costs in favour of the appellants. I shall deal with each of them separately.
(a) The respondents were unsuccessful before the learned Master
I found the reasoning of counsel for the appellants on this issue difficult to follow. She referred to my findings that the learned Master had decided that the appellants could not sustain their case on the facts (Brennand v Hartung at [59]) and that the order was final as it “decided finally the rights of the parties” (at [61]).
It was submitted that this meant that the Applications in Proceedings of the respondents dated 23 October 2013 and 13 November 2013 made to the learned Master and which sought dismissal of the proceedings under rr 21 and 1110 of the Court Procedures Rules had been unsuccessful.
That does not follow at all. The respondents sought in both Applications that the proceedings be dismissed. They were. In that sense, the respondents were successful. The learned Master saw as a head of power to do so r 21(4) of the Court Procedures Rules. I did not demur from this proposition.
That the learned Master considered whether the appellants should be given a further opportunity to formulate their case and decided that this was not possible on the pleaded facts and dismissed the proceedings rather than allow them to amend the Statement of Claim (which would have been an interlocutory decision) does not detract from the source of the power available to the learned Master to make the decision he did.
In any event, a party is by no means necessarily to be deprived of his, her or its costs because the arguments used do not find favour with the court which gives the party the relief it seeks. This may, in appropriate cases, justify the court in depriving that party of some or all of its costs, for instance if it has delayed or extended proceedings on arguments that do not find favour with the court as explained by Middleton J in BHP Billiton Iron Ore Pty Ltd v National Competition Council (No 2) [2007] FCA 557 at [23]. That was not the case here.
The appellants had not complied with an order made by the learned Master in accordance with its terms but had prepared a Statement of Claim which was to encompass the joinder of a third defendant which the appellants also sought. See Brennand v Hartung at [28]-[29]. The respondents sought to have the proceedings dismissed. They were successful. I commented on this in Brennand v Hartung at [36]-[38]. I did not find that the source of the power the learned Master exercised was not in r 21 of the Court Procedures Rules. I am satisfied that it would have given him that power.
There is, however, a more fundamental problem in this submission by the appellants. The submission can only be directed to the order for costs made by the learned Master. This is because the argument put by the appellants was as follows:
[The appellants] have been prejudiced in connection with the hearing of the both the [the respondents’] Applications in Proceedings filed 13 November 2013 and 23 October 2013, because they have addressed unsuccessful Applications to their detriment; and should be compensated by [the respondents] for the costs incurred in connection with those unsuccessful applications.
The reference to “unsuccessful applications” is odd, for the respondents were successful in both Applications, for the appellants’ proceedings were, as sought, dismissed. I can only assume that the appellants are suggesting that they were “unsuccessful” because they relied on an argument said not to have been accepted by the learned Master.
The errors in this reasoning are obvious. The respondents were successful, even if their reasoning was not accepted; in any event, I am not satisfied that the respondents’ reasoning was not accepted, a finding that is quite consistent with my decision in Brennand v Hartung.
What makes the submission quite unsustainable, however, is that such a challenge, were there to be a rational basis for it, would amount to a challenge to the order for costs made by the learned Master, not to anything I have to decide.
Since the appeal has been dismissed as incompetent, there is no basis on which I could uphold the appeal and vary the costs order of the learned Master, which is what the effect of the appellants’ submissions would be.
Accordingly, this submission is wholly irrelevant to the decision I have to make as to costs of these proceedings. In any event, it discloses no basis on which I could make an order for the costs of the appellants. It is, therefore, unsurprising that counsel referred to no authority which might be said to justify the submission.
(b) The respondents failed to engage in mediation
Counsel for the appellants referred to Ezekiel-Hart v Law Society of the Australian Capital Territory (No 2) [2012] ACTSC 135 at [26]-[35] in which I said (at [26]) “I do not suggest that, in appropriate cases, it is not relevant whether a party engaged in mediation or not”. Indeed, I said (at [30]), in a passage cited with approval in Electro-Optus Systems Pty Ltd v New South Wales [2013] ACTSC 155 at [5]-[7], as follows
There may be, however, consequences of a failure properly to engage in mediation. Just as the courts have made costs consequences follow a failure to act reasonably in respect of offers of compromise (as in Calderbank v Calderbank [1976] Fam 93), so the courts are likely to have to grapple with the need to provide sanctions for parties who fail to take reasonable opportunities to engage in other forms of dispute resolution, such as mediation.
I do not resile from the thoughts there expressed.
Counsel for the appellants then referred to a chronology in her submissions. Such submissions are, of course, not the place for assertions of fact; if a party wishes to rely on facts, these should be adduced as evidence, either orally in a proper hearing, in an affidavit or in an agreed statement of facts. None of these methods were adopted by the appellants and I would be perfectly entitled to disregard and dismiss these assertions of fact. Where the appellants are unrepresented, more latitude is often accorded. They were represented. I have, however, granted the appellants an indulgence by admitting the letters annexed to the submissions of Ms Keys, as set out above (at [7]-[8]).
Thus, in view of the attitude of the respondents (set out above at [8]), I have read this material.
The submissions assert that the proceedings were commenced after the Children and Young People Commissioner (s 19A of the Human Rights Commission Act 2005 (ACT)) had attempted to resolve the issue in a letter to the first respondent to which there was no response.
When the proceedings were commenced and the respondents appointed lawyers, it is asserted that the first appellant made an oral offer of compromise on 22 May 2012 suggesting in a confirmatory email that the appellants “would welcome the opportunity to discuss settlement of these proceedings”. A letter from the first appellant dated 20 June 2012 confirmed an offer of settlement, namely that her daughter be immediately enrolled, and noted that the offer had lapsed.
There are a number of problems with this. I note what I also said in Ezekiel-Hart v Law Society of the Australian Capital Territory at [36]
The difficulty I have is that in this case I have no real evidence but merely assertions in submissions. If Mr Ezekiel-Hart were to be able to have made out a case that he should not have to pay the defendants’ costs because they had not agreed to mediation, I would have to have had evidence, such as in an affidavit.
Despite what I have said above (at [55]), this remains an issue.
Secondly, I do not consider that the principles I outlined will ordinarily apply to attempts at mediation prior to the commencement of proceedings unless it is clear that there are special circumstances. This may be particularly so where the parties are not then represented.
Thirdly, while there was some suggestion in the offers of settlement that the appellants were willing to “discuss settlement”, it was, in reality, an offer to settle on specific terms which are far from the final outcome of the proceedings. It may be a discourtesy not to respond to an offer of settlement, but the rejection of an offer is not a reason for applying the principles I have outlined. As I also said in Ezekiel-Hart v Law Society of the Australian Capital Territory at [29]
Nevertheless, even where mediation is compulsorily ordered, the Court cannot, and should not, try to order the parties to settle; they must do so, if at all, of their own free will.
Fourthly, the respondents themselves did engage in negotiation. The letters of 3 October 2013 and 19 November 2013 are instances, though these were, of course, after the decision of the learned Master.
Fifthly and, perhaps, decisively, the relevance of the negotiations to which the submissions refer is only to the costs order of the learned Master; it is, as I have pointed out earlier (at [49]), not a matter that is relevant to the decisions I have to make, especially as there is no operative appeal from the decision of the learned Master.
Accordingly, there is no basis on which these submissions can be taken into account on the decision I have to make as to costs.
(c) Conclusion
There is no basis in the appellants’ submissions for me either declining to make an order for costs in favour of the respondents in respect of my dismissal of the appeal from the learned Master or for ordering that the respondents pay the appellants’ costs.
Application for review of the reconsideration of the Deputy Registrar
The appellants made four submissions in regard to the costs of the application to review the reconsideration of the Deputy Registrar. Again, the submissions included assertions of fact which had not been proved in the required way as I have earlier mentioned (at [54]). As before, the attitude of the respondents have permitted me to read these assertions, but I express concern that counsel, not litigants in person, should make such a fundamental error in making the submissions.
I shall deal with each issue in turn.
In the first argument, Ms Keys noted that the Certificate of Assessment was only served on 10 October 2013, when it was apparently served with a Bankruptcy Notice. She also asserted that the appellants have paid to the solicitor for the respondents the amount claimed in the Certificate to be held on trust pending determination of the appeal.
Counsel for the appellants did not deign to explain why or how this fact is relevant to the question of the costs of the order I must make in respect of the applicants’ application.
I cannot see any relevance in these matters and, in the absence of explanation or argument on behalf of the appellants, do not give them any weight in the decision as to costs or any further consideration.
Secondly, Ms Keys submitted that the respondents are said not to have conceded that there should be a set-off in the amount of $2,870 until after their application to strike out the appellants’ application was filed.
I accept that this is relevant to the question of costs and I shall take it into account. It seems to me that the respondents should have set off against their costs the appellants’ costs of raising this issue and, notionally, of having it dealt with by consent.
The appellants submitted next that there are two errors in the Bill of Costs which were overlooked. Two items were specifically mentioned, namely item 211 which claimed $10,863.82 for 48.07 hours for which the scale (item 31) was said to be $45.20 per hour, leading to an amount of $2,172.76 instead of the claimed amount and item 213 which was the instruction for brief item which was charged at fifty percent of specific items but for which r 4.2(3) of Sch 4 of the Court Procedures Rules set a limit of thirty percent.
These, however, show a misunderstanding of the Bill of Costs and the assessment procedure.
As to item 211, the total hours were 48.07 but the appropriate item in Schedule 4 was item 22, providing for a rate of $240.50 per hour, and, where applicable, item 23, providing for a rate of $168.50 per hour. There was clearly a mixture of these, for the total claim divided by the hours leads to an hourly rate of $226, well within the appropriate range.
As to item 213, it did claim fifty percent of the costs claimed in item 211 and 212, but this did not breach the restriction in r 4.2(3) of Schedule 4 of the Court Procedures Rules. As I explained in Brennand v Hartung at [176](a), there are various ways of calculating the “Instructions for Brief” item – one was to add an uplift fee to selected items, the other was to calculate a percentage of the whole bill. Item 4.2(3) refers to the latter.
If one takes the total of the Bill of Costs of the respondents (excluding disbursements), namely the solicitor’s costs referred to in the rule, but, of course, excluding item 213, that totals $23,350.52. The permitted maximum under the rule, namely thirty percent, would be $7,005.16. This is substantially more than the $5,803.61 actually claimed.
There has been no breach of r 4.2(3) of Schedule 4 of the Court Procedures Rules.
In any event, neither the request for a reconsideration by the Deputy Registrar nor the application for a review of the reconsideration by the Deputy Registrar made any reference to these objections, though a more general reference to the items, but in a completely different context, was made.
Both rr 1852 and 1855 of the Court Procedures Rules which regulate the processes require the grounds for objection to be stated in the document seeking reconsideration or review as the case may be. Thus, the appellants would have required leave to rely on these items. Given that there is no substance to the objections, such leave would not be given.
These matters do not affect the costs orders I must make.
The final matter was that the appellants’ application was made on the basis that the terms of the order for costs of the learned Master was relied on by the Deputy Registrar but that I found it needed correction under the slip rule. See Brennand v Hartung at [142]-[157].
I accept that the record needed correction and I suggested that this should be done under the slip rule. I held, however, that the argument of the appellants as to the order of the learned Master was wrong for it was an order subject to r 1726(2) of the Court Procedures Rules and not one subject to the principles set out in Memorandum of Leach VC (1823) 1 Sim & SP 357; 57 ER 143 which was the approach submitted by the appellants.
While there is some need for rectification, the application of the rules was clear and I held that no error had been made by the Deputy Registrar.
I do not consider that this issue is relevant to the costs order I must make.
The appellants also raised an additional issue, namely that the respondents were not successful in having the appellants’ application struck out as incompetent because the application was regularised on 3 December 2013.
While the respondents did not have the appellants’ application struck out as incompetent, the application was nevertheless dismissed, the event which is that which costs normally follow. Thus, even though the respondents’ application was not successful in its terms, or on the basis on which it was sought, the ultimate result was the same.
Further, as the appellants note, this application was “regularised”; that is to say, it was accepted that it was in improper form and, before it could be heard, had to be put in proper form. This is effectively a finding that the complaint of the respondent was correct. In order to have the proceedings “regularised”, the appellants had to seek an indulgence of the court. As I pointed out in Ezekiel-Hart v Law Society of the Australian Capital Territory at [58]-[60], and in Doyle v Gillespie (2010) 4 ACTLR 188 at 211, [135] a party seeking and obtaining an indulgence from the court should ordinarily pay the costs of doing so.
Conclusion
It seems to me that the appellants should pay the respondents’ costs of the appellants’ application, but that this should be offset by the costs associated with the set-off to which I have found that the appellants were entitled.
Conclusion
I shall make appropriate orders to give effect to these reasons.
| I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 22 January 2015 |
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