Lauro v Minter Ellison Lawyers

[2019] SASC 23

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

LAURO v MINTER ELLISON LAWYERS

[2019] SASC 23

Judgment of The Honourable Justice Hinton

28 February 2019

PROCEDURE - COSTS - GENERAL RULE - COSTS FOLLOW THE EVENT

On 23 January 2019 this Court dismissed an interlocutory application which sought the adjournment of an appeal against interlocutory orders made by a Judge of the District Court, and the associated Notice of Appeal. Each were signed by Mr Eric Lauro and were purportedly filed on the behalf of his father. The primary reason for dismissing both was that the substantive proceedings to which they related had concluded with judgment being awarded in favour of the respondent and yet no appeal had been instituted against the orders finally disposing of the matter. In the circumstances, this Court considered the interlocutory application and associated Notice of Appeal futile and, accordingly, ordered that they be dismissed.

Subsequently, the respondent made an application in this Court for Mr Eric Lauro to pay its costs of and occasioned by the application and appeal.

Held, allowing the application, Mr Eric Lauro is to pay 85% of the respondent’s costs of and occasioned by the interlocutory application and appeal to be taxed if not agreed.

Supreme Court Civil Supplementary Rules 2014 (SA) r 61(b), referred to.
Knight v FP Special Assets Ltd (1992) 174 CLR 178, considered.

LAURO v MINTER ELLISON LAWYERS
[2019] SASC 23

Civil

Hinton J:

1. On 23 January 2019 I dismissed an interlocutory application (FDN 3) seeking the adjournment of an appeal against interlocutory orders made by a Judge of the District Court, and the associated Notice of Appeal (FDN 1). The primary reason for dismissing each of the application and Notice of Appeal was that the substantive proceedings to which they related had concluded with judgment being awarded in favour of the respondent and yet no appeal had been instituted against the orders finally disposing of the matter. In the circumstances I considered the application and the Notice of Appeal futile and consequently ordered that they be dismissed.

2. The respondent applied for an order that its costs of and occasioned by the application and appeal be paid by Mr Eric Lauro.

3. Mr Eric Lauro is the son of the applicant. He appeared in this Court to make submissions on behalf of the applicant. The Notice of Appeal and the interlocutory application were both signed by Eric Lauro. Mr Eric Lauro did not possess lawful authority to institute either proceeding. He referred the Court to a letter in which his father, the purported applicant, had delegated to his son authority, his son claimed, to act as he had done. I rejected that letter as inadequate for the purpose for which it was deployed.

4. It is trite to observe that ordinarily costs follow the event and that, the general rule aside, this Court possesses the broadest discretion in relation to the question of costs. That power extends to making an award of costs against a non-party as is sought here.[1]

   [1]    Knight v FP Special Assets Ltd (1992) 174 CLR 178.

5. Hereafter, where I refer to Mr Lauro I should be taken as referring to Mr Eric Lauro unless otherwise indicated.

6. Mr Lauro submitted that no order for costs should be made against him. Rather, the parties should bear their own costs, or, the respondent should pay the applicant’s costs. In support of these contentions he submitted:

   i.     The Notice of Appeal was accepted for filing by the Registry on 18 September 2018 and the filing fee paid. The matter was then listed for hearing. In the circumstances Mr Lauro contends:

   If the Notice of Appeal was fundamentally deficient as argued before the Honourable Justice Hinton by counsel for MinterEllison, it follows that the Civil Registry ought not to have accepted it for filing, and my father would have still been within the applicable 21-day timeframe to have another Notice filed.

   ii.   It was not until the morning on the day submissions on the interlocutory application and associated Notice of Appeal were heard that the respondent advised him of the fact that, due to the failure to appeal against the final orders made on 18 September 2018, the appeal was without utility. Had the respondent done so sooner there would have been time to discontinue the appeal, consider an application to amend the Notice of Appeal, or file an additional Notice of Appeal attacking the orders made on 18 September 2018. Mr Lauro submitted:

   … because there was acquiescence of the deficiencies with the Notice of Appeal for a period of over 4 months, MinterEllison has also committed a “procedural irregularity” as defined under the relevant Court Rules to include: “failure to comply with a procedural obligation, unnecessary delay and, most relevantly, the unnecessary, vexatious or otherwise improper commencement of, or an unnecessary, vexatious or otherwise improper step in, a proceeding” (SCR4).

   iii.     Neither he nor his father had been advised of the orders made by Judge Chivell on 18 September 2018. This occurred despite the fact that on 4 October 2018 he sent an email to the District Court Civil Registry seeking a copy of the record in DCCIV-13-1810, the Record of Outcome for the hearing held on 18 September 2018, and transcripts for all the hearings held in his father’s absence that were not previously provided, particularly transcripts for the hearings held on 17 and 18 September 2018. The email referred to the fact that in the past copies of the transcript and record of outcome had been provided at no cost.

   Mr Lauro referred to earlier occasions when the Registry had provided him with the transcript and copies of the Record of Outcome as indicative of why he could expect the same treatment in response to his email of 4 October 2018.

   As it turned out the Registry did not provide the requested documents. This caused Mr Lauro to send a follow-up email on 15 January 2019.

   Mr Lauro submitted:

   Relevantly, and as specifically sought by the Honourable Justice Hinton during the above hearing, I reconfirm that, 23 January 2019 was the first that we learnt of the judgment given against my father on 18 September 2018, notwithstanding that, I made a number of oral and written enquiries, for and on behalf of my father between September 2018 and January 2019 to discover what (if any) further judgments/orders had been made by Chivell J on 18 September 2018.  …

   iv.   Mr Lauro further complained that the respondent ought to have notified the applicant that judgment had been awarded against his father. Mr Lauro contended:

   Your honour, there’s a moral and a professional obligation to at least notify what’s happened in the face of a party who is unfit and has been found to be a protected person by another court. That’s the crux of the issue.

7. In an affidavit filed 16 February 2019, Grant Mitchell, a partner with Minter Ellison Lawyers, deposed to receiving the Notice of Appeal dated 18 September 2018 on 20 September 2018. He did not consider that the failure to appeal against the orders of 18 September 2018 was fatal. In fact he expected a second notice of appeal would follow in time. When this did not occur, Mr Mitchell expected that an application to amend would be made. Mr Mitchell adds that he did not take any step to advise either Mr Lauro or his father of the orders made on 18 September 2018. He states that it did not occur to him that they would be unaware that orders were made, after all Mr Lauro and his father were aware that Judge Chivell had ordered the trial to continue on 18 September 2018. Further, he relied on Mr Lauro’s knowledge that orders could be made in his absence, referring to proceedings in the Magistrates Court involving both Eric Lauro and Minter Ellison where judgment was awarded against Mr Lauro after he failed to attend to conduct his trial.

8. At no time did Mr Mitchell receive any communication from Mr Lauro asking him about the outcome of proceedings on 18 September 2018.

9. With the departure of in-house counsel, Mr Mitchell briefed counsel to appear on the interlocutory application and in relation to the Notice of Appeal. It appears that it was not until counsel became involved that the respondent’s attitude regarding the utility of the application and appeal crystallised.

10. Lastly, Mr Mitchell advises that Minter Ellison seeks costs in the amount of $9,611.80 comprised of counsel’s fee ($3,738 plus GST) and Minter Ellison’s costs of $5,000 plus GST.

11. In the past Mr Lauro and his father have been in receipt of indulgences by the Registry and the District Court. Mr Lauro appears to expect that the same indulgences will invariably be extended as his matter has progressed, hence his email of 4 October 2018. I have not seen any order relieving either Natale or Eric Lauro from the usual charges for copies of the Record of Outcome and transcript. The absence of any order may go some way to explaining the non-response on the part of the Registry to Mr Lauro’s 4 October 2018 email. That said, when Mr Lauro sent his follow-up email on 15 January 2019, he did receive a response. He was advised:

    There has been no judicial officers that have agreed to a fee waiver of the said documents.

    A Copy of Record will cost $24.10

    Transcript dated 17/9/18 has 51 pages and Transcript dated 18/9/18 has 15 pages.

    Please find attached the Waiver of Fees Documentation required to be completed if you would like your request to be waived.

12. I do not know what action Mr Lauro subsequently took.

13. The fact is, whether he be represented or not, Natale Lauro is responsible for the timely and efficient prosecution of the proceedings he instituted in the District Court and, subsequently, in this Court. I appreciate that it is difficult for the unrepresented litigant to engage in litigation in the higher courts. Access to justice demands that the Registry and the judiciary provide a measure of assistance to the unrepresented litigant so that they are aware of what is expected of them. But such assistance will and must always fall short of advice and cannot compromise the court’s independence and impartiality.

14. In my view, it was no part of the Registry’s function to take positive action to alert Natale Lauro to the existence of the final orders made on 18 September 2018 nor to alert him to the fact that the appeal he instituted was futile.

15. Both Natale and Eric Lauro knew that the District Court trial was to resume on 18 September 2018. Natale Lauro did not attend Court on 18 September 2018. When he chose to leave the courtroom on 18 September 2018, Eric Lauro must have known that orders could be made in his absence. The responsibility for informing themselves of whether orders were in fact made and the content of those orders lay with the Lauros. I do not accept that the Registry was in any way at fault for the position in which the Lauros now find themselves.

16. Similarly, I do not think that the respondent was obliged to inform the Lauros.

17. I note that the respondent filed written submissions in relation to the appeal on 23 January 2019 at 11.41 am electronically. The email header indicates that the same submissions were sent to Mr Lauro at the same electronic address via which he has communicated with the Court. Those submissions make plain the respondent’s objection to the competency and futility of the appeal. Mr Lauro and his father had less than three hours’ notice of the respondent’s attitude toward the utility of the application and appeal. It appears that the Lauros did not, in the time available to them, appreciate the significance of the contentions advanced nor appreciate that final orders were made by Judge Chivell on 18 September 2018.

18. Strict compliance with the Supreme Court Civil Supplementary Rules 2014 (SA) required the respondent’s written submissions to be emailed to the Court and served at least two clear business days before the hearing of the appeal. I imagine one reason for the delay lies in the failure on the Lauros’ part to lodge and serve written submissions. I assume the Lauros’ explanation lies in the intention to have the appeal adjourned, but until such time as an order adjourning the appeal was made, the Lauros were obliged to comply with the rules. That said, the Lauros’ non-compliance did not operate to exonerate the respondent from having to comply with the rules.

19. The costs application is made against Mr Lauro on the basis that he has instituted the appeal and the interlocutory application without authority to do so. I accepted that argument in addition to the argument that both the application and appeal were futile as reasons for dismissing the application and appeal. I note, however, that despite there being no order permitting Mr Lauro to appear on behalf of his father, it appears that he has been permitted to do so in the lower Court. That does not render the application and appeal competent, but it goes some way to explaining why Mr Lauro may have acted as he did.

20. In all the circumstances I have concluded that it is appropriate to make an order that Mr Lauro pay 85% of the respondent’s costs of and occasioned by the application and appeal to be taxed if not agreed. I have discounted the costs payable to reflect the fact that the respondent did not comply with rule 61(b) of the Supreme Court Civil Supplementary Rules 2014 (SA) with the consequence that the Lauros did not have the sort of notice that that would ordinarily be provided in order that they might consider their position and response. I also take into account the fact that the argument on the utility of the appeal was, in effect, brought forward due to the respondent’s attitude toward the appeal and interlocutory application.

21. In his written submissions under the sub-heading, “Sundry Matters/Orders”, Mr Lauro seeks:

    i.     that the Court direct that the $2,526.00 Supreme Court Civil Registry filing fee paid in relation to the Notice of Appeal be refunded due to the Registry’s error in accepting the Notice as competent in the first place; and

    ii.    that an extension of time in which to appeal against the orders made on 18 September 2018 be granted.

22. I decline to make either order. For the reasons I have already given, I do not think that the Registry was at fault. An application for an extension of time should be made as and when Natale Lauro institutes an appeal against the orders of 18 September 2018 and not before.