Makowski v Legal Profession Admission Board (No 3)

[2020] NSWSC 506

Supreme Court

New South Wales

Medium Neutral Citation:

Makowski v Legal Profession Admission Board (No 3) [2020] NSWSC 506

Hearing dates:

8 April 2020

Date of orders:

07 May 2020

Decision date:

07 May 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

The plaintiff’s application for costs is rejected.

Catchwords:

COSTS — party/party — exceptions to general rule that costs follow the event — alleged misconduct of a party

Legislation Cited:

NSW Admission Board Rules 2015, r 64

Cases Cited:

Makowski v Legal Profession Admission Board [2019] NSWSC 921
Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13

Category:

Costs

Parties:

Daniel Makowski (Plaintiff)
Legal Profession Admission Board (First Defendant)
Acting Executive Officer of the Legal Profession Admission Board (Second Defendant)

Representation:

Counsel:
H Atkin (First Defendant)

 

Solicitors:
NSW Crown Solicitor’s Office (First Defendant)

  Plaintiff (self-represented)

File Number(s):

2019/203641

Publication restriction:

Nil

Judgment

1. On 24 April 2020, I dismissed the summons filed by the plaintiff in these proceedings. [1] I ordered that the plaintiff pay the first defendant’s costs and granted liberty to the parties to apply should the parties contend for a different costs order.

   1. Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443.

2. The plaintiff has so applied and seeks an order that the first defendant pay the plaintiff’s costs.

3. In support of his submission, he relies on his own further affidavit dated 27 April 2020. Annexed to that affidavit is a letter from the Crown Solicitor’s Office, on behalf of the first defendant, dated 18 October 2019. The letter sets out the terms of the first defendant’s offer to the plaintiff, which was to the effect that the plaintiff should discontinue the proceedings and the first defendant would bear its own costs as well as not enforce the earlier costs order made against him.

4. The first defendant pointed out some of the difficulties with the claim being pursued by the plaintiff. It also suggested that he would be better served in applying to enrol in Contracts and Australian Constitutional Law in the upcoming Summer 2019–2020 session rather than awaiting the determination of the summons. The first defendant also suggested that it would be prepared to relax rule 64 of the NSW Admission Board Rules 2015 to enable him to enrol in those subjects at that time despite the fact that the plaintiff had previously failed to sit for examination in both subjects in the Summer 2018–2019 session.

5. Although the plaintiff did not accept this offer, he relies on the offer as a basis on which the first defendant should be paying his costs. He alleges that the offer was an attempt to bribe him.

6. I observed in my primary judgment that there was a common thread in the plaintiff’s approach. I was referring to the plaintiff’s tendency to make unsubstantiated allegations about the conduct of persons involved in his matter.

7. I also emphasised that a student-at-law who chose to represent himself in his own proceedings should adhere to the same obligations imposed on an officer of the Court. [2]

   2. Makowski v Legal Profession Admission Board (No 2) [2020] NSWSC 443 at [48].

8. The plaintiff’s suggestion that the defendant’s offer was an attempt to bribe him is another example of the plaintiff failing to adhere to a standard of conduct which should be expected of a student-at-law. There is no basis for the plaintiff’s submission. It is rejected.

9. The plaintiff makes a number of other submissions in support of his proposition that the first defendant should pay his costs. They may be summarised as follows:

1. The first defendant should not have appeared and advanced a contrary argument to that advanced by the plaintiff. It should not have acted as the contradictor. He submits that the first defendant has breached the principle in “Hardiman’s Case” (referring to R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13. The plaintiff misunderstands and misstates the “Principle” in Hardiman. It is not authority for the proposition that a defendant in the position of the first defendant should not oppose an application such as that brought by the plaintiff.

2. The first defendant has not acted as a model litigant. Again, without referring to all of the plaintiff’s extensive submissions, there is no basis for this submission insofar as it relates to the costs issue. The plaintiff, again, refers to the offer made by the first defendant and also suggests that in some way the first defendant hindered his preparation of the case by not allowing him access to Canvas and generally limiting his resources. The first defendant’s decision to preclude access to Canvas was the subject of the earlier judgment of Adamson J. [3] It was unrelated to the conduct of the litigation. Further, if there was any delay in the service of the first defendant’s outline of submissions or failure to comply with any other procedural orders of the Court (in the sense of being late with service of documents), those matters do not provide a basis for reversing the usual costs order. The plaintiff made no suggestion during the hearing that he was not able to present his case because of any failure of the first defendant to comply with any case management orders along the way.

   3. Makowski v Legal Profession Admission Board [2019] NSWSC 921.

10. The plaintiff’s submissions and affidavit do not provide any basis for an alteration to the costs order which I have already made and the plaintiff’s application for costs is rejected.

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Endnotes