Meshram v Bing Lee Electrics Pty Ltd (Costs)
[2024] FedCFamC2G 543
•17 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Meshram v Bing Lee Electrics Pty Ltd (Costs) [2024] FedCFamC2G 543
File number(s): SYG 2309 of 2021 Judgment of: JUDGE GIVEN Date of judgment: 17 June 2024 Catchwords: HUMAN RIGHTS – COSTS – Where applicant wholly unsuccessful in establishing claims – whether usual rule that costs follow the event dislodged by respondents’ alleged misconduct – whether unrepresented litigant should pay costs on an indemnity basis for failure to accept Calderbank offer Legislation: Australian Human Rights Commission Act 1986 (Cth) ss 46PO, 46PSA
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 139, 190, 214
Federal Court Act 1976 (Cth) ss 37M, 37N
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) rr 4.06, 6.01, 11.01, 22.02, 22.05
Federal Court Rules 2011 (Cth) 4.03, Part 40
Cases cited: Bhagat v Global Custodians Ltd [2002] FCAFC 51
Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159
Calderbank v Calderbank [1975] 3 All ER 333
Grass v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 61
Jones v Braund (No 3) [2020] NSWDC 74
Lamb v Sherman (2023) 298 FCR 79
Latoudis v Casey (1990) 170 CLR 534
Lee v Procter and Gamble Australia Pty Ltd (No 2) [2012] FMCA 1075
Lehrmann v Network Ten Pty Ltd (Costs) [2024] FCA 486
Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784
Meshram v Bing Lee Electrics Pty Ltd[2022] FedCFamC2G 718
Oshlack v Richmond River Council (1998) 193 CLR 72
Roads Corp v Love [2010] VSC 581
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229
Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537
Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129
Vink v Tuckwell (No 3) (2008) 67 ACSR 547
Division: General Federal Law Number of paragraphs: 138 Date of last submission/s: 7 February 2024 Date of hearing: 1 December 2023 Place: Sydney The Applicant: In person Counsel for the Respondents: Mr B Rauf Solicitor for the Respondents: Coleman Greig Lawyers ORDERS
SYG 2309 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AISHWARYA MESHRAM
Applicant
AND: BING LEE ELECTRICS PTY LTD
First Respondent
BIANCA NURSOO
Second Respondent
RAMZI YOUSIF (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE GIVEN
DATE OF ORDER:
17 JUNE 2024
THE COURT ORDERS THAT:
1.For the purposes of these proceedings:
(a)Peter Harris, who was initially named as the second respondent by the originating application, is to be referred to as the seventeenth respondent;
(b)Ritchie Djamhur, who was initially named as the third respondent by the originating application, is to be referred to as the eighteenth respondent; and
(c)Sean Ng, who was initially named as the fourth respondent by the originating application, is to be referred to as the nineteenth respondent.
2.The applicant must pay the costs and disbursements of Bing Lee Electrics Pty Ltd of and incidental to proceedings No NSD 530 of 2020 and SYG 2309 of 2021 (collectively the proceedings), on an ordinary basis.
3.The applicant must pay the costs and disbursements of Bianca Nursoo, on an ordinary basis, as follows:
(a)of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b)of the application in a proceeding made by the respondents on 28 September 2023 (costs application).
4.The applicant must pay the costs and disbursements of Ramzi Yousif, on an ordinary basis, as follows:
(a)of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b)of the costs application.
5.The applicant must pay the costs and disbursements of Mario Iacono, of and incidental to the proceedings including of the costs application, on an ordinary basis.
6.The applicant must pay the costs and disbursements of Richard Cortes, of and incidental to the proceedings including of the costs application, on an ordinary basis.
7.The applicant must pay the costs and disbursements of Claudio Musa, of and incidental to the proceedings including of the costs application, on an ordinary basis.
8.The applicant must pay the costs and disbursements of Ming Trang, of and incidental to the proceedings including of the costs application, on an ordinary basis.
9.The applicant must pay the costs and disbursements of Marian Mirza, of and incidental to the proceedings including of the costs application, on an ordinary basis.
10.The applicant must pay the costs and disbursements of Ken Zhuang, on an ordinary basis, as follows:
(a)of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b)of the costs application.
11.The applicant must pay the costs and disbursements of Fateen Khan, on an ordinary basis, as follows:
(a)of and incidental to the proceedings from 11 May 2020 to 1 September 2022 (inclusive); and
(b)of the costs application.
12.The applicant must pay the costs and disbursements of Kym Prendergast, of and incidental to the proceedings including of the costs application, on an ordinary basis.
13.The applicant must pay the costs and disbursements of Peter Harris, on an ordinary basis, as follows:
(a)of and incidental to the proceedings from 11 May 2020 to 10 November 2020 (inclusive); and
(b)of the costs application.
14.The applicant must pay the costs and disbursements of Ritchie Djamhur, on an ordinary basis, as follows:
(a)of and incidental to the proceedings from 11 May 2020 to 10 November 2020 (inclusive); and
(b)of the costs application.
15.The applicant must pay the costs and disbursements of Sean Ng, on an ordinary basis, as follows:
(a)of and incidental to the proceedings from 11 May 2020 to 10 November 2020 (inclusive); and
(b)of the costs application.
16.The costs and disbursements referred to in each of orders 2 to 15 above (inclusive) are to be paid in a sum either as agreed between the parties or, failing agreement being reached within 35 days of the date of this order, as taxed pursuant to Part 40 of the Federal Court Rules 2011 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
BACKGROUND
[4]
THE MISNUMBERING ISSUE
[5]
Submissions about the misnumbering issue
[20]
Resolution of the misnumbering issue
[25]
EVIDENCE IN THE COSTS APPLICATION
[35]
Affidavits
[35]
Exhibit “1R”
[38]
LEGISLATION
[44]
RELIEF SOUGHT
[51]
ISSUES FOR RESOLUTION
[53]
Whether to fix costs
[56]
Whether costs should follow the event
[61]
Alleged conduct disentitling
[66]
Deliberately protracting the proceedings
[73]
Failing to “consent” to the filing of the Amended Application
[81]
Breaching order 3 made by Justice Charlesworth on 9 July 2020
[85]
Changing of respondents’ defence in the litigation
[90]
Change of solicitor
[95]
The misnumbering issue
[103]
Conclusion
[104]
Offers of compromise and indemnity costs
[106]
Unrepresented litigants
[110]
Duty to act consistently with the overarching purpose
[126]
To whom costs ought be paid
[131]
CONCLUSION
[137]
SCHEDULE OF PARTIES
JUDGE GIVEN:
On 31 August 2023, the Court delivered judgment in these proceedings: see Meshram v Bing Lee Electrics Pty Ltd (No 2) [2023] FedCFamC2G 784 (substantive judgment). The result of the substantive judgment was the dismissal of each and all of the applicant’s claims against the respondents.
Upon delivery of the substantive judgment, the Court made orders that any costs application/s by the respondents be made on or before 28 September 2023, to be returnable for hearing at 10:15am on 27 November 2023 (August orders). A timetable was also made for the filing of evidence and written submissions by the respondents and Ms Meshram, 21 and 7 days (respectively) before that hearing fixture. Ms Meshram was present in Court for the making of the August orders.
On 27 September 2023, an application in a proceeding was filed for the respondents in accordance with the aforementioned grant of leave (costs application), and made duly returnable on 27 November 2023. The costs application having been filed after 4:30pm on 27 September 2023 and accepted for filing on 28 September 2023, is taken to have been made on 28 September 2023: see Lamb v Sherman (2023) 298 FCR 79 at [54] per Rares, Rofe and Downes JJ. The costs application was made within time provided by the August orders.
BACKGROUND
The background to these proceedings has been traversed by reasons given in each of Meshram v Bing Lee Electrics Pty Ltd[2022] FedCFamC2G 718 (interlocutory judgment) and the substantive judgment. For the purposes of the costs application, additional background matters have been revealed from evidence (predominantly regarding offers of settlement) and otherwise necessarily discerned from the Court file to the extent that they are now relevant to issues the parties raise. These will be addressed below as, and when, they arise.
THE MISNUMBERING ISSUE
An additional issue became apparent to the Court upon commencement of the writing of these reasons for judgment (misnumbering issue).
In short, the numbering used to identify the manifold respondents went askew during the life of the proceedings which, as addressed at [1] to [11] of the interlocutory judgment, had their genesis (in the Courts) in the Federal Court of Australia, before being transferred to this Court on 15 December 2021.
The misnumbering issue arose as follows.
At the time the proceedings were commenced in the Federal Court, there were 16 respondents to the proceedings, being:
(a)first respondent: styled as “Bing Lee Electrics Pty Ltd company & owner of Bing Lee Electrics Pty Ltd – Lionel Lee and Yenda Lee”;
(b)second respondent: Peter Harris;
(c)third respondent: Ritchie Djamhur;
(d)fourth respondent: Sean Ng;
(e)fifth respondent: Bianca Nursoo;
(f)sixth respondent: Ramzi Yousif;
(g)seventh respondent: Mario Iacono;
(h)eighth respondent: Richard Cortes;
(i)ninth respondent: Claudio Musa;
(j)tenth respondent: Ming Trang;
(k)eleventh respondent: Marian Mirza;
(l)twelfth respondent: Ken Zhuang;
(m)thirteenth respondent: Fateen Khan;
(n)fourteenth respondent: Kym Prendergast;
(o)fifteenth respondent: Martin Yalda; and
(p)sixteenth respondent: Dinh (Dione) Do Ngo.
At the first case management hearing on 9 July 2020, Justice Charlesworth made an order removing the names Lionel Lee and Yenda Lee from the description of the first respondent. This removal had no effect on the numbering of the respondents.
On 13 August 2020, Ms Meshram filed her Amended Application in the Federal Court which:
(a)simply omitted each of Messrs Harris, Djamhur and Ng as respondents, thereby abandoning her claims against them; and
(b)renumbered the remaining respondents by moving them up 3 places respectively. For example, Ms Nursoo was changed from being the fifth respondent to the second respondent, and so on and so forth for the remaining respondents.
On 10 November 2020, Justice Charlesworth made an order (in Chambers) formally removing each of Messrs Harris, Djamhur and Ng as the second, third and fourth respondents (respectively). No order was made as to costs in respect of those respondents at that time. While it is true that, by reference to the Amended Application, Messrs Harris, Djamhur and Ng were no longer the subject of the pleading from 13 August 2020, to the extent that they remained as parties to the proceedings until their formal removal it is appropriate that their departure from the proceedings, relevant to the issue of their costs, be 10 November 2020.
Following the transfer of the proceedings to this Court, the strike-out application was heard and determined by the interlocutory judgment, where at [133] the Court said as follows:
Accordingly, the following persons are no longer respondents to the proceedings:
(a) Bianca Nursoo, second respondent;
(b) Ramzi Yousif, third respondent;
(c) Ken Zhaung, ninth respondent; and
(d) Fateen Khan, tenth respondent.
On 1 September 2022 the Court gave effect to the above by an order made the following terms:
2. Pursuant to s 143 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) there be judgment for the respective respondents consequent upon the dismissal referred to in order 1 above, being the second, third, ninth and tenth respondents.
On 28 September 2022, Ms Meshram filed the Further Amended Application upon which the proceedings were ultimately heard and determined. That Further Amended Application continued the mis-numbering used by the Amended Application.
The misnumbering issue was not brought to the attention of Justice Charlesworth when the matter was in the Federal Court and was not readily apparent when her Honour made orders because the Federal Court file still bore the original numbering, such that when orders were produced, they referred to the individual respondents as originally numbered. By the time this Court came to hear the strike-out application, that application and the submissions made in support thereof, adopted the new numbering of the Amended Application. As a result of the misnumbering issue, the respondents are technically misdescribed in the interlocutory judgment and the substantive judgment.
By itself, this would likely not have been anything more than a matter of technical significance. However, the misnumbering issue has now crystallised to having practical consequences because, by their costs application, the respondents have re-enlivened the original numbering because costs are sought by individual respondents who were named by the originating application but who, for various reasons, departed the proceedings prior to the substantive judgment, in circumstances where all costs questions remained to be resolved.
On 20 December 2023, at my direction, my Associate wrote to the parties to notify them of the misnumbering issue and invite supplementary submissions as follows:
The Court would be assisted by the parties’ respective submissions as to how this mis/numbering is to be reconciled, particularly by reference to order 1(a) made by Charlesworth J on 10 November 2020 together with order 2 made by Judge Given on 1 September 2022 and the application now being made on behalf of all respondents. In particular, the parties should address how the number of the parties is to be reconciled and whether some additional order needs to be made to rectify the identity of which individuals were removed from the proceedings by the interlocutory judgment. Those submissions should also address any Rules of Court which might be required to be achieve uniformity on this question.
A timetable was set for the parties to simultaneously file their aforementioned supplementary submissions, by 4:00pm on 7 February 2024, after which the costs judgment would stand reserved. The parties filed their respective supplementary submissions within the time allowed by the grant of leave, although Ms Meshram’s submission was not processed by the Registry until the following day. I have had regard to both sets of supplementary submissions to the extent that they address the misnumbering issue (noting that Ms Meshram’s supplementary submissions strayed to other topics).
Prior to identification of the misnumbering issue, the Court anticipated that this judgment could have been delivered early in the 2024 Court term. The need for supplementary submissions, followed by two periods of leave on the part of the Court, regrettably resulted in that not being possible.
Submissions about the misnumbering issue
The respondents submit that the misnumbering issue can be resolved by a lengthy set of orders to amend the orders made by the Court on 1 September 2022 and 31 August 2023 to include references to each of the respondents by the various numbering they have had throughout the proceedings.
Ms Meshram makes supplementary submissions to the effect that:
(a)she is not responsible for the misnumbering issue and that the suggestion that it emanates from the Amended Application reflects the respondents’ “narcissist behaviour of blaming victim Ms Meshram”;[1]
(b)the failure of the respondents’ lawyers in identifying the misnumbering issue “is an implausible joke” and a sufficient basis alone to deny the respondents their costs of the proceedings;[2] and
(c)the Court’s failure to identify the “small error” of the misnumbering issue likely demonstrates that there are “big errors” in determinations made throughout the proceedings.[3]
[1] Supplementary written submissions filed 7 February 2024 at [2]
[2] Supplementary written submissions filed 7 February 2024 at [3] and [7]
[3] Supplementary written submissions filed 7 February 2024 at [5] to [7]
However, other than saying that the misnumbering issue should result in there being no costs order made against her, Ms Meshram did not propose any mechanism by which it could be resolved.
The question of with whom responsibility rests for the misnumbering issue is not especially helpful in resolving it. It is clear that its genesis is the filing of the Amended Application. There were no doubt opportunities for Ms Meshram, the respondents and the Court to have noticed it along the way. The fact remains that, until a certain point, no one did and it must now be resolved. To the extent that the misnumbering issue has caused additional supplementary submissions to be prepared to aid in its resolution, the fact it was not identified except by the Court until after the costs hearing, and not raised by any party prior to that, means I am satisfied that any costs associated with resolution of the misnumbering issue should be costs in the cause.
The regime proposed by the respondents to resolve the misnumbering issue would be both unnecessarily cumbersome, not substantively rectificatory and would cause additional confusion by reference to the text of the interlocutory and substantive judgments. For those reasons, the respondents’ proposal would also likely cause unnecessary and ongoing confusion in the appeal proceedings.
Resolution of the misnumbering issue
There is no specific mechanism in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules) to resolve this particular issue.
Rule 4.06 of the Rules requires that an application must be made in the approved form and must state the names and addresses of parties to the proceeding. However, the Rules are silent as to the numbering of parties, albeit the approved forms do adopt sequential numbering in a case involving multiple parties.
Rule 11.01 of the Rules deals with the inclusion of all necessary parties to a proceeding, but is also not instructive for a situation such as the present. It provides:
11.01 Necessary parties
(1) Subject to any order of the Court, a person whose participation is necessary for the Court to completely and finally determine all matters in dispute in a proceeding must be included as a party to the proceeding.
(2) The Court may require a person to be included as a party.
(3) A person required to be included as an applicant who does not consent to be included may be included as a respondent.
(4) The Court may decide a proceeding even if a person is incorrectly included or not included as a party.
In my view, the most elegant and preferable solution to the misnumbering issue is to re-cast the numerical description of relevant respondents who have been removed from the proceedings throughout (in each of the Courts) by re-adding them to the end of the schedule of respondents, and assigning them sequential numbering which has not previously been used to describe any respondent in these proceedings. In this way, the interlocutory judgment and substantive judgment, together with the orders made upon the delivery of each, will read consistently. For the purposes of the costs application, the orders which will give effect to its determination and any issue in the appeal proceedings, this solution allows those respondents to be numbered afresh, and consistently.
By renumbering the parties in the manner addressed below, the Court has not added any parties who were not otherwise in the proceedings initially. However, it is the case that in order to completely and finally determine all matters in dispute in these proceedings, the inclusion of those parties is necessary, and they must be precisely identified for the purposes of determination of the costs application.
Each of Martin Yelda and Dinh (Dione) Do Ngo will retain their numbering as the fifteenth and sixteenth respondents (respectively), despite the fact that no costs are sought in respect of either of them. It is in the interests of completeness to ensure that each of the original respondents to the proceedings[4] is necessarily present and accounted for (see [27] to [29] above).
[4]With the exception of Lionel and Yenda Lee who were wholly removed by Charlesworth J on 9 July 2020 in circumstances where they were named together with Bing Lee Electrics Pty Ltd as jointly being the first respondent
Next, orders will be made to the effect that:
(a)Peter Harris will be referred to as the seventeenth respondent;
(b)Ritchie Djamhur will be referred to as the eighteenth respondent; and
(c)Sean Ng will be referred to as the nineteenth respondent.
Each of the other respondents will retain the numbering first attributed to them by the Amended Application, because it is that numbering which is used to identify them in the interlocutory judgment, and continued in the Further Amended Application upon which the matter was ultimately determined by the substantive judgment.
A full list of the respondents which reflects the numbering used in this judgment forms the schedule to these reasons, as is the custom of the Court.
It is likely that the appeal proceedings may benefit from adopting the same numbering for ease of reference to the interlocutory judgment and substantive judgment going forward. That will be a matter for the parties to raise in the appeal proceedings, and for the Federal Court to determine for itself.
EVIDENCE IN THE COSTS APPLICATION
Affidavits
In support of their costs application, the respondents rely on the Affidavit of Caroline Kay Hutchinson sworn 10 November 2023 (Hutchinson Affidavit). Ms Hutchinson is the respondents’ (current) solicitor (see [95] to [102] below). Ms Meshram objected to Ms Hutchinson’s Affidavit on the basis that Ms Meshram had not had a sufficient period of time in which to consider it.
In addition to her reliance on a Response document and written submissions (each filed on 28 November 2023), Ms Meshram also relies on an Affidavit made by her on 27 November 2023 (Meshram costs Affidavit).
The respondents objected to the Meshram costs Affidavit on the basis that it was predominantly comprised of opinion evidence. It is accurate to say that, with the exception of some objective personal information (such as her age, gender and ethnicity) the Meshram costs Affidavit is really a written submission. The Court received the Meshram costs Affidavit as a submission (which was in one sense unnecessary because it largely repeats the content of the written submissions referred to in the preceding paragraph).
Exhibit “1R”
In addition to the Hutchinson Affidavit, the respondents sought to tender a bundle of documents.
The documents which form the bundle are entitled “Authority to Act”. They are in relevantly identical terms (save for the identity of the staff member to whom each pertains) being:
(a)Lionel and Yenda Lee (jointly);
(b)Bianca Nursoo;
(c)Ramzi Yousif;
(d)Mario Iacono;
(e)Richard Cortes;
(f)Claudio Musa;
(g)Ming Trang;
(h)Marian Mirza;
(i)Fateen Khan;
(j)Kym Prendergast;
(k)Peter Harris;
(l)Ritchie Djamhur; and
(m)Sean Ng.
(collectively, the authority documents).
Of the aforementioned authority documents, the document which jointly pertains to Lionel and Yenda Lee appears irrelevant because they do not seek costs. On review of Exhibit “1R’ in preparing this judgment, it became apparent that no authority document was included for any of Ken Zhuang, Martin Yalda or Dinh (Dione) Do Ngo.
The Court accepted the tender of the authority documents, which were collectively marked Exhibit “1R” over the objection of Ms Meshram. Those objections were twofold.
Firstly, Exhibit “1R” was sought to be tendered at costs hearing, instead of being advanced by Affidavit/s filed pursuant to the August orders. The respondents concede that the bundle of documents which forms Exhibit “1R” was tendered outside of the time allowed by the Court for the filing of evidence, but contend that there is no prejudice to Ms Meshram. I agree. The documents which form Exhibit “1R” go only to the identity of to whom the respondents say any costs ordered should be paid. The documents do not inform whether costs should follow the event and/or on what basis they should be ordered.
Some of the authority documents are also accompanied by a photocopy of the respective staff member’s NSW Driver Licence. The second basis for objection (albeit raised at the conclusion of the hearing) was that some of those Driver Licences have since expired. The significance of this was not particularly explained by Ms Meshram, and it is difficult to see any. As at the dates upon which those particular authority documents was executed, each of the respective Driver Licenses was current.
LEGISLATION
Section 214 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) relevantly provides:
214 Costs
…
(2) The Federal Circuit and Family Court of Australia (Division 2) or a Judge has jurisdiction to award costs in all proceedings before the Court (including proceedings dismissed for want of jurisdiction) other than proceedings in respect of which any other Act provides that costs must not be awarded.
(3) Except as provided by the Rules of Court or any other Act, the award of costs is in the discretion of the Federal Circuit and Family Court of Australia (Division 2) or Judge.
Note: For further provision about the award of costs, see Division 4 of Part 6 and paragraphs 192(4)(d) and (e).
Note 2 to ss 46PO(4) and 46PSA of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) make clear that this Court may award costs in proceedings under s 46PO, pursuant to s 214 of the FCFCOA Act.
Rule 22.02 of the Rules provides:
22.02 Order for costs
(1) An application for an order for costs may be made:
(a) at any stage in a proceeding; or
(b) within 28 days after a final decree or order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs in a proceeding, the Court may:
(a) set the amount of the costs; or
(b) set the method by which the costs are to be calculated; or
(c) refer the costs for taxation under Part 40 of the Federal Court Rules; or
(d) set a time for payment of the costs, which may be before the proceeding is concluded.
Relevant to the fact that these proceedings had their inception in the Federal Court, the Rules also make provision for costs of proceedings which are transferred from the Federal Court to this Court, by r 22.05 as follows:
22.05 Costs if proceedings transferred
(1) This rule applies if a proceeding is transferred to the Court from the Federal Court.
(2) If the Federal Court has not made an order for costs, the Court may make an order for costs including costs before the transfer.
(3) Unless the Federal Court otherwise orders, costs before the transfer must be in accordance with this Part.
It is relevant to note that s 46PSA of the AHRC Act specially makes provision for consideration in human rights proceedings of offers of comprise, as follows:
46PSA Costs—court may have regard to an offer to settle
If:
(a) proceedings have been instituted under section 46PO against a respondent to a terminated complaint; and
(b) an applicant or respondent has made, or makes, an offer to settle the matter the subject of the complaint; and
(c) the offer was or is rejected;
the court, or a judge of the court, in deciding whether to award costs in the proceedings, may have regard to the offer.
Note 1: The Federal Court, or a judge of that court, may award costs in proceedings under section 46PO—see section 43 of the Federal Court of Australia Act 1976.
Note 2: The Federal Circuit and Family Court of Australia (Division 2), or a Judge of that Court, may award costs in proceedings under section 46PO—see section 214 of the Federal Circuit and Family Court of Australia Act 2021.
In the interests of completeness, the following sections of the Court Act are also relevant in relation to costs. Section 190 of the FCFCOA Act provides:
190 Overarching purpose of civil practice and procedure provisions
(1) The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2) Without limiting subsection (1), the overarching purpose includes the following objectives:
(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);
(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court’s overall caseload;
(d) the disposal of all proceedings in a timely manner;
(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3) The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4) The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b) any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).
Section 191 of the FCFCOA Act imposes a duty on parties and their legal representatives as follows, failure to adhere to which can sound in costs, pursuant to ss 191(4):
191 Parties to act consistently with the overarching purpose
(1) The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.
(2) A party’s lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party’s behalf:
(a) take account of the duty imposed on the party by subsection (1); and
(b) assist the party to comply with the duty.
(3) The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party’s lawyer to give the party an estimate of:
(a) the likely duration of the proceeding or part of the proceeding; and
(b) the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:
(i) the costs that the lawyer will charge to the party; and
(ii) any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.
(4) In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).
(5) Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party’s lawyer to bear costs personally.
(6) If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer’s client.
RELIEF SOUGHT
The relief sought by the respondents’ costs application can be summarised as follows:
(a)Ms Meshram should be ordered to pay the respondents’ costs:
(i)on an ordinary basis from 11 May 2020 (when the proceedings were commenced in the Federal Court) until the lapsing/rejection of the respondents’ final offer of settlement on 11 November 2020;
(ii)on an indemnity basis from 12 November 2020 onwards; and
(iii)of the strike-out application which resulted in the interlocutory judgment, and of the costs application, each on an ordinary basis.
(b)that the costs of the various events-based time periods referred to at [51(a)] above, be ordered in a fixed amount;
(c)in the alternative to costs in a fixed amount, that costs for those events-based periods be paid in an amount to be assessed; and
(d)that all costs payable to the respondents be paid to Bing Lee on the basis that it has paid the individual respondents’ costs of these proceedings.
The position of Ms Meshram can be summarised as being that she ought be held safe from any adverse costs order, or at least from costs on an indemnity basis because:
(a)the proceedings are public interest litigation;
(b)costs ought not follow the event because the respondents engaged in relevant misconduct which disentitles them to costs; and
(c)Ms Meshram was unable to make any informed decision/s about offers of settlement made to her because:
(i)she is an unrepresented litigant; and/or
(ii)offers of settlement were made during the COVID-19 pandemic, and therefore she was unable to make any informed decision/s about those offers due to difficulties accessing legal services.
ISSUES FOR RESOLUTION
By reference to the respective parties’ positions as summarised above, the issues which arise for resolution in the costs application can be summarised as follows. Whether, in the exercise of the Court’s discretion:
(a)costs should follow the event, specifically by reference to Ms Meshram’s contention that the respondents have engaged in conduct disentitling;
(b)if costs should follow the event, whether those costs should be paid on an ordinary or indemnity basis, having regard to:
(i)various offers of compromise which went between the parties, but specifically an offer made by the respondents to Ms Meshram on 4 November 2020;
(ii)Ms Meshram’s position as an unrepresented litigant; and
(iii)the duty of parties imposed by ss 191(1) and (2) of the FCFCOA Act to act consistently with the overarching purpose; and
(c)if a costs order is to be made:
(i)to whom those costs ought be paid, noting that Bing Lee says it has paid the individual respondents’ costs; and
(ii)whether to fix those costs and, if so, in what amount.
The following general costs principles were recently distilled by Lee J in Lehrmann v Network Ten Pty Ltd (Costs) [2024] FCA 486 by Lee J. Relevant to understanding the application of those principles in this Court is that ss 190 to 191 of the FCFCOA Act are relevantly analogous to ss 37M and 37N of the Federal Court Act 1976 (Cth) (respectively).
In Lehrmann at [27] to [30] Lee J observed:
[27] First, an award of costs is in the discretion of the Court and although it has often been remarked the discretion is unfettered, s 37N(4) of the FCA Act requires the Court to take account of any failure by a party to comply with the overarching purpose of the civil procedure provisions, which, as noted above, is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see s 37M(1).
[28] Secondly, an award of indemnity costs is not a punitive measure, but is designed to compensate a party fully for costs incurred when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs: Hamod v New South Wales [2002] FCAFC 97; (2002) 188 ALR 659 (at 665 [20] per Gray J, Carr and Goldberg JJ agreeing). Consistently with the requirement to facilitate the overarching purpose, such circumstances may include where a proceeding is unduly prolonged by groundless contentions: see Melbourne City Investments Pty Ltd v Treasury Wine Estates Ltd (No 2) [2017] FCAFC 116 (at [3]–[5] per Jagot, Yates and Murphy JJ).…
…
[30] Fourthly, as to offers of settlement, the relevant factors in considering whether the rejection of a Calderbank offer was unreasonable are well known and have been identified in many cases being: (a) the stage of the proceeding at which the offer was received; (b) the time allowed for the offeree to consider the offer; (c) the extent of the compromise offered; (d) the offeree’s prospects of success, assessed as at the date of the offer; (e) the clarity with which the terms of the offer were expressed; and (f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.
Whether to fix costs
Due to a concession made early in the costs hearing, it is first convenient to deal with the question at [53(c)(ii)] above, namely whether the Court should fix the amount of costs.
Given that the respondents’ starting position was to seek a fixed costs order, much of the content of the Hutchinson Affidavit went to quantifying those costs. As a result, by her Affidavit and submissions in reply, Ms Meshram focussed on challenging various individual expenses, rather than matters which would inform the Court’s exercise of its discretion.
There may be many cases in this Court where it is both practical and desirable to fix costs, having regard in particular to ss 190(1)(b) (and potentially also to s 139) of the FCFCOA Act. While the Court can understand the desirability on the part of the respondents to have any costs which the Court might order in the present case fixed, I am not satisfied that it is practical to do so given the degree of contentiousness between the parties of what can be generally described as an analysis of “line items” in invoices. Appreciating the degree of contentiousness early in the costs hearing, the respondents sought a brief adjournment to enable them to confer with and instruct their Counsel, as to whether to press for fixed costs.
Following that brief adjournment, Counsel for the respondents indicated that they no longer sought fixed costs orders.
Accordingly, the Court will proceed on that basis. In the event costs orders are to be made they will be made in terms that the amount of costs be as agreed or, failing agreement, as taxed under Part 40 of the Federal Court Rules 2011 (Cth) (FCA Rules) which is available pursuant to r 22.02(2)(c) of the Rules.
Whether costs should follow the event
The respondents seek their costs relying on the principle that costs follow the event: Oshlack v Richmond River Council (1998) 193 CLR 72 per McHugh J at [67], with the “event” referring to the outcome of some discrete stage/the entirety of proceedings where one party can be regarded as being the successful party. As confirmed most recently in Lehrmann (supra), the common law principle pertaining to costs is that a costs order is primarily to compensate a successful party and not punish an unsuccessful party.
The Court observed in the substantive judgment at [6] that, having been brought and pursued in the human rights jurisdiction, these proceedings are ones in which the parties had exposure to costs if unsuccessful. In Lee v Procter and Gamble Australia Pty Ltd (No 2) [2012] FMCA 1075, Barnes FM (as her Honour then was) relevantly said the following about costs in the human rights jurisdiction of the Court by reference to s 79 of the (then) Federal Magistrates Act 1999 (Cth)[5] at [4]:
The Court’s power to award costs in proceedings of this nature arises by virtue of s 79 of the Federal Magistrates Act 1999 (Cth). Section 86 of the Act provides for the making of rules of court with respect to costs. Neither the Disability Discrimination Act 1992 (Cth) nor the Sex Discrimination Act 1984 (Cth) prohibits the making of a costs order in relation to matters which involve a complaint made in reliance on the provisions of those Acts. Nor is any such prohibition to be found in the AHRC Act under which these proceedings were brought. Subject to the Rules, an award of costs is in the discretion of the federal magistrate (see s 79(3) of the Federal Magistrates Act).
[5] See now s 214 FCFCOA Act (extracted at [44] above)
The potential costs consequences of these proceedings were ventilated by the Court on numerous occasions including at:
(a)the first case management hearing in the Federal Court on 9 July 2020;[6]
(b)the second case management hearing in the Federal Court on 27 August 2020[7] and by Ms Meshram seeking to agitate an oral application to the effect that she be immune from any costs exposure;[8]
(c)the third case management hearing in the Federal Court on 29 October 2020, albeit primarily by the respondents seeking to highlight the increasing costs of the proceedings,[9] and again in the context of Ms Meshram seeking to avoid costs exposure;[10]
(d)the hearing of the strike-out application in this Court;[11]
(e)delivery of the interlocutory judgment by this Court;[12]
(f)the directions hearing in this Court on 14 October 2022;[13] and
(g)the final hearing.[14]
[6] Transcript 9 July 2020 at T3.3 to T3.26, T3.44 to T4.04, T14.26 to T14.28, T14.42 to T15.03, T17.07 to T17.12 and T22.01 to T22.06
[7] Transcript 27 August 2020 at T06.21 to T06.24, T07.08 to T07.11 and T07.42 to T07.45
[8] Transcript 27 August 2020 at T14.04 to T14.06, T14.16 to T14.20
[9] Transcript 29 October 2020 at T05.40 to T06.11, T06.24 to T06.26
[10] Transcript 29 October 2020 at T13.34 to T14.04
[11] Transcript 19 April 2022 at T53.17 to T53.21
[12] Transcript 1 September 2022 at T07.04 to T07.26 and T10.44 to T10.46
[13] Transcript 14 October 2022 at T04.44 to T05.02 and T18.33 to T18.41
[14] Transcript 13 March 2023 at T19.14 to T19.23 and T34.42 to T34.30
Accordingly, it could not be said that Ms Meshram is taken by surprise in relation to her potential liability for the respondents’ costs, consequent upon her having been unsuccessful in establishing her claims.
As noted at [52(a)] above, Ms Meshram continues to assert that she ought not be ordered to pay the costs of the respondents, despite the outcome of these proceedings, on the basis of the contention that the claims brought by her constitute “public interest litigation”. This issue has already been determined by the substantive judgment at [328] to [344] and will not be revisited in the costs application.
Alleged conduct disentitling
Another basis upon which Ms Meshram contends she should not be ordered to pay costs, despite her lack of success in these proceedings, is that the respondents allegedly engaged in relevant misconduct in these proceedings.
It is well-established that in the ordinary course, and in the absence of any disentitling conduct on the part of the successful party, can result in that party being denied costs despite the outcome. In Oshlack (supra) at [69], McHugh J said:
The traditional exceptions to the usual order as to costs focus on the conduct of the successful party which disentitles it to the beneficial exercise of the discretion. In Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd, Devlin J formulated the relevant principle as follows:
No doubt, the ordinary rule is that, where a plaintiff has been successful, he ought not to be deprived of his costs, or, at any rate, made to pay the costs of the other side, unless he has been guilty of some sort of misconduct.
see also Lee (supra) at [5] per Barnes FM citing Latoudis v Casey (1990) 170 CLR 534 and Ruddock v Vadarlis (No 2) (2001) 115 FCR 229.
There are no fixed categories of such misconduct, however, McHugh J provided the following guidance in Oshlack, also at [69]:
“Misconduct” in this context means misconduct relating to the litigation, or the circumstances leading up to the litigation. Thus, the court may properly depart from the usual order as to costs when the successful party by its lax conduct effectively invites the litigation; unnecessarily protracts the proceedings; succeeds on a point not argued before a lower court; prosecutes the matter solely for the purpose of increasing the costs recoverable; or obtains relief which the unsuccessful party had already offered in settlement of the dispute.
Other instances of relevant misconduct include where the reversal of the ordinary costs rule is confined to a period up until the time at which a defendant reveals their true defence: see Grass v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 61 at [6] per Perram, Yates and Mortimer JJ (as her Honour the Chief Justice then was), citing Verna Trading Pty Ltd v New India Assurance Co Ltd [1991] 1 VR 129.
From Ms Meshram’s written and oral submissions, the Court has sought to distil the particulars of, by what, the respondents’ alleged misconduct is said to be constituted. A significant proportion of her submissions on this topic at hearing continued to focus on matters which went to analysing “line items”, despite this no longer being relevant by reference to the concession recorded at [59] above. Examples of those submissions included that the respondents acted unreasonably and to deliberately inflate costs by:
(a)preparing Affidavits of witnesses which were ultimately not relied upon. This complaint fails to understand that said evidence was prepared and filed in order to respond to parts of Ms Meshram’s evidence. When parts of her evidence were struck out, certain Affidavits of the respondents (or parts thereof) were not read and some witnesses therefore not called. Such occurrences fall within the exigencies of litigation;
(b)having a Senior Associate attend the mediation when she was not herself the relevant “decision maker” for Bing Lee. The respondents were entitled to be legally represented (including by more than one legal representative[15] at mediation); and
(c)disbursements such as fees for an interpreter in the Vietnamese language to assist in the execution of Mr Trang’s Affidavit, despite his not requesting an interpreter for the purposes of the hearing at which he gave evidence and was cross-examined.
[15] If that in fact that occurred
Aside from the matters referred to in the preceding paragraph which seem relatively unremarkable costs of litigation, the following are the broad categories of complaint which Ms Meshram says warrant the exercise of the Court’s discretion to deny the respondents their costs. Namely, that:
(a)the respondents deliberately protracted the proceedings;
(b)there was a failure to “consent” to the filing of the Amended Application (later understood to be an allegation that the respondents failed to articulate their “concerns” about the Amended Application to Ms Meshram);
(c)the respondents breached order 3 made by Justice Charlesworth on 9 July 2020;
(d)there was a change in the respondents’ position in the litigation (presumably an allegation of the species discussed in Grass (supra) (see [69] above); and
(e)a change of solicitor for the respondents allegedly being the catalyst for their seeking an extension of time in which to file evidence, and which had the effect of duplicating costs during handover to a new solicitor.
The respondents deny having engaged in misconduct as alleged, or at all.
Deliberately protracting the proceedings
Ms Meshram alleges that the respondents deliberately set out to delay and prolong the proceedings so that they could deliberately increase the amount of legal fees they would need to pay their solicitors, in order that any adverse costs order made against Ms Meshram would therefore also be higher.
Examples of this were said to include a delay in the matter being listed for mediation, when the Registrar adjourned that process across the Christmas period of 2020/21, in circumstances where Counsel for the respondents was said to be unwell on the initially scheduled date. Whatever the circumstances surrounding the change in mediation date (which was a process to which this Court was not privy), the Federal Court file records the mediation being relisted on 21 March 2021 which, allowing for the intervening Christmas shut-down period of the Court seems unremarkable. There is no evidence before me to otherwise demonstrate that the respondents were engaged in any scheme to delay the mediation.
Ms Meshram next says that the mediation continued for six months.[16] It is not uncommon for a Registrar of the Court to keep a mediation process ongoing in parallel to the proceedings in order to assist parties’ to reach a resolution. Again, there is nothing before the Court to establish that, if the mediation process did remain open for some period, this was otherwise than at the direction of the Registrar, much less than that it was a delay orchestrated by the respondents. Further, this does not appear to have delayed the proceedings in the sense that if the mediation did remain on foot, the proceedings were not held in abeyance pending its outcome.
[16] Transcript 1 December 2023 at T85.21
It is alleged that the respondents also failed to file a Defence until 14 November 2022 and that when they did, the Defence and the respondents’ Affidavit evidence, varied from the content of their concise statement filed on 16 September 2020, which made blanket denials. This is addressed further at [90] to [93] below.
Additionally, it was alleged that the Court prolonged the proceedings by:
(a)not striking out the Amended Statement of Claim in its entirely without leave to re-plead. This has already been addressed in the substantive judgment at [6]; and
(b)the Court failing to refer the matter for a second mediation after the proceedings were transferred from the Federal Court. While it is true that at the directions hearing on 14 October 2022, Ms Meshram requested that the matter be sent for mediation a second time, I was of the view that there was little utility in doing so in circumstances where the parties had already had the benefit of a Court-annexed mediation, which was ultimately unsuccessful. This submission is made despite complaints from Ms Meshram at the costs hearing that the mediation ordered when the proceedings were in the Federal Court had remained open for six months (see [75] above).
Every day in litigation is an opportunity to settle. Aside from the multitude of offers which had already gone between the parties (see [107] below) Ms Meshram could have approached the respondents’ solicitors at any juncture in order to seek to resolve these proceedings, should she have so desired.
Ms Meshram also takes issue with the fact that invoices (annexed to the Hutchinson Affidavit) appear to indicate that in a period which spanned the mediation, the respondents’ lawyers otherwise continued to prepare the matter for hearing. Assuming that characterisation is correct, such conduct could not logically be said to have prolonged the matter, but rather ensured that if the mediation process concluded unsuccessfully, preparation of the trial had not been delayed. To the extent there was some suggestion made that, by continuing to prepare the matter, the respondents did not approach to the mediation process in good faith, I am not satisfied there is any evidence to that effect, nor am I prepared to draw such an inference from the mere fact that work may have been ongoing in parallel. It is again somewhat at odds with the complaint about the mediation remaining open (see [75] above).
As observed in the substantive judgment at [5], if there were delays in this matter, and in particular resistance to the matter being heard, they were delays on the part of Ms Meshram.
Failing to “consent” to the filing of the Amended Application
Submissions in respect of this particular of alleged misconduct were initially expressed as being that the respondents did not “consent” in a timely fashion to the filing of the Amended Application in August 2020. Later, by reference to the content of correspondence from Legal Aid NSW (see [107(c)] below) it became apparent that the substance of this complaint is that the respondents did not, in a timely fashion, explain to Ms Meshram their further “concerns” about the proposed Amended Application, prior to its filing,
True it was that the respondents were initially asked by Justice Charlesworth to explain to Ms Meshram the deficiencies of the originating application to which, they said, it was impossible to respond. However, the suggestion now made by Ms Meshram that there was some ongoing obligation on the respondents to assist her in pleading her case against them is, with respect, mistaken.
Having already provided detailed particulars of the deficiencies in the originating application as requested by the Court (see [107(b)(i)] below, there was no additional obligation on the respondents to further assist her. Even if I am wrong about that, the respondents did in any event respond to the correspondence in question before the Amended Application was due, even if only briefly before. Accordingly, there was no disadvantage to Ms Meshram who:
(a)received additional feedback prior to the filing deadline;
(b)filed the Amended Application within time; and
(c)expressly rejected the respondents’ criticism even once it was provided, that the Amended Application suffered from any of the deficiencies which were proffered.[17]
[17] See [107](g) below
Ms Meshram did not require the consent of the respondents to file the Amended Application. I am not satisfied that the timing and/or content of their correspondence about that document constitutes misconduct on the part of the respondents relevant to the costs context, or at all.
Breaching order 3 made by Justice Charlesworth on 9 July 2020
This allegation is misconceived and, respectfully, proceeds on a misunderstanding by Ms Meshram of the Court’s orders.
At the first return date of the proceedings before the Federal Court, Justice Charlesworth made an order precluding the filing of any interlocutory application/s without leave of the Court.[18]
[18] Order 3 made on 9 July 2020
Years later, having been transferred by the Federal Court the proceedings came before me for first directions on 11 February 2022. Having reviewed the Federal Court file, including transcripts of what had transpired before Justice Charlesworth at previous case management hearings, I acceded to the respondents’ request that leave be granted to them to file their (long-foreshadowed) strike-out application. That leave having been granted, the filing of the strike-out application was not prohibited. Rather, and as contemplated by Justice Charlesworth, that interlocutory application was made with leave of the Court: this Court.
Next, included among the orders made upon delivery of substantive judgment on 31 August 2023, was an order in the following terms:
2. Pursuant to r 22.02(1)(b) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth), any costs application/s must be filed and served by the respondents on or before 28 September 2023 (costs application/s).
Accordingly, that interlocutory application was made with leave also. There is no breach by the respondents as alleged.
Changing of respondents’ defence in the litigation
This assertion is presumably made to establish conduct of the kind discussed in Grass (see [69] above).
It also proceeds on a lack of understanding of the finer points of litigation. On 16 September 2020, the respondents filed a concise statement in reply to the Amended Application, in the Federal Court. On 14 November 2022, the respondents filed a Defence to the Further Amended Application, as ordered. Those two documents are largely consistent in their terms and deny that conduct took place “as alleged”. By various of the Affidavits of the individual respondents filed in January 2023, many of those respondents gave evidence by which they accepted having interacted with Ms Meshram on the occasions alleged, but gave alternative versions of how those occasions unfolded.
Ms Meshram now says that by having initially denied that “the alleged conduct” occurred, the respondents could not later give evidence that certain interactions were accepted as occurring, but that the alleged conduct did not occur during those interactions.
It is understandable that an unrepresented litigant might not fully understand the nuance of the above distinctions. However, I am not satisfied that the respondents withheld their true position until the filing of the Defence. The “alleged conduct” which was denied by the Concise Statement, and later the Defence, was conduct said to contravene the relevant legislation. That alleged conduct continued to be denied and was, ultimately, not established as having occurred during the interactions in questions.
I am not satisfied that by detailing their own versions of events by the Affidavit evidence, that by reference to pleadings, the respondents misconducted themselves such that they should be denied their costs, or in fact at all.
Change of solicitor
On 30 January 2023, being 42 days before the hearing was due to commence, a Notice of Change of Lawyer was filed with the Court which had the effect that Ms Hutchinson replaced the respondents’ initial solicitor (Mr Skyring) as the solicitor on the record (NOCL). This was apparently due to the departure of Mr Skyring as a partner from the law firm, Coleman Grieg.
At the hearing of the costs application, this allegation came to be understood as being firstly that the change of respondents’ solicitor was allegedly the cause of an extension of time sought by the respondents on 16 December 2022 for further time in which to file evidence, but that a different reason was falsely given.
By a letter from Mr Skyring sent to the Court on 16 December 2022 (under cover of email to which Ms Meshram was copied), the explanation given for requesting the extension was:
The current difficulty experienced by the Respondent’s concerns the impact of the intervening Christmas period causing difficulties in finalising the Respondent’s evidence.
Ms Meshram says that the respondents used Christmas as a “false excuse”[19] for why their evidence could not be prepared in time. Ms Meshram alleges that the delays were caused by the departure of Mr Skyring as their solicitor.
[19] Transcript 1 December 2023 at T106.11 to T106.16 and T107.13 to T107.23
That allegation is not supported at a factual level, when regard is had to the chronology. Firstly, the request on 16 December 2022 was made by Mr Skyring. Mr Skyring was also still at Coleman Grieg and corresponding with Ms Meshram and the Court on each of 20 December 2022 and 24 December 2022 in relation to further requests (this time by Ms Meshram) for an extension. This indicates that he was still acting for the respondents at least as at 24 December 2022. There is no probative evidence before me to demonstrate that the request by the respondents to a variation in the timetable in mid-December 2022 was anything other than as the request suggested, and as Counsel submitted at the costs hearing, because not all witnesses statements were completed, and the Christmas period posed an intervening obstacle to that occurring.
Further, the respondents’ substantive Affidavits[20] were all lodged for filing on 30 January 2023 within 30 minutes of the NOCL. The NOCL is dated 20 January 2023 which suggests that Mr Skyring’s departure was shortly before the evidence was completed, not six weeks earlier with Christmas being used as a ruse. I am not satisfied that Mr Skrying’s departure as the respondents’ solicitor was specifically the cause of the respondents’ evidence being late, given that he did not cease his representation of them until the same date that the evidence was filed.
[20] As opposed to later Affidavits of service filed for them
The second aspect of how Mr Skyring’s departure as solicitor for the respondents is said to constitute misconduct relevant to costs, is that Ms Meshram alleges that there was, necessarily, an increase in the respondents’ legal fees by reason of his exit as the solicitor on the record. The respondents refute this and say that Ms Hutchinson was at all relevant times Mr Skyring’s more senior partner and had oversight over this case. The respondents say there was minimal duplication in the former taking day-to-day carriage of the proceedings from the latter.
There is nothing before me to indicate that the departure of Mr Skyring to take up partnership in a different law firm was a scheme on his part, the part of Coleman Grieg, but specifically not a scheme by the respondents to either delay of prolong these proceedings, much less to intentionally inflate their own costs. In any event the question of any duplication of tasks at or around the departure of Mr Skyring would be one for an assessor, if it arises at all.
The misnumbering issue as misconduct
In the interests of completeness, the misnumbering issue does not give rise to any basis upon which the respondents ought be denied their costs of these proceedings (or any part of it), noting that the misnumbering issue has its origins in the Amended Application. While unfortunate, overall, I am not satisfied that the misnumbering issue constitutes misconduct on the part of the respondents (or their lawyers) in the relevant sense referred in in Oshlack (supra), or at all.
Conclusion
For the aforementioned reasons, I am not satisfied that the respondents have misconducted themselves in these proceedings in a way which would oust the general rule that costs should follow the event, or in fact at all.
I am satisfied that costs should follow the event in respect of all respondents because:
(a)as detailed at [11] above, Ms Meshram abandoned her claims against Messrs Harris, Djamhur and Ng by the Amended Application and they should have their costs of the proceedings to 10 November 2020;
(b)as detailed at [12] to [13] above, each of Bianca Nursoo, Ramzi Yousif, Ken Zhuang and Fateen Khan succeeded in their application to have all claims against them struck our by the interlocutory judgment. I am satisfied that costs should follow that event; and
(c)the remaining respondents in respect of whom costs are sought succeeded in the substantive judgment. They should have their costs consequent on their success in the proceeding.
Offers of compromise and indemnity costs
A number of offers of compromise have gone between the parties during the life of these proceedings. Principles in relation to offers of settlement have already been set out above by reference to Lehrmann (supra) at [30] per Lee J (see [55]) above.
Based on the evidence now before the Court, those offers arose as follows:
(a)the parties came before the Justice Charlesworth on 9 July 2020 for an initial case management hearing, on which occasion:
(i)Justice Charlesworth requested (although did not order) that the respondents assist Ms Meshram by writing to her about the deficiencies they perceived in the originating application; and
(ii)Ms Meshram was ordered to file an Amended Application by 13 August 2020, once she had had the benefit of the respondents’ letter.
(b)on 20 July 2020, the respondents wrote the following two letters to Ms Meshram:
(i)an open letter detailing the deficiencies in the originating application, as the Court had requested (July open letter). The July open letter also included an open offer to Ms Meshram which invited her to discontinue the proceedings, at least against each of the individual respondents. The July open letter indicated that in the event the proceedings were unsuccessfully maintained against the individual respondents, costs would be sought including on an indemnity basis; and
(ii)a letter sent on a without prejudice basis and clearly stating it was made in accordance with the principles of Calderbank v Calderbank [1975] 3 All ER 333 (Calderbank) offering to pay Ms Meshram $5,000 contingent upon (inter alia) her discontinuance of the proceedings against all respondents (July Calderbank).
(c)on 27 July 2020, Legal Aid NSW (who appeared to be assisting Ms Meshram at that juncture but not to have entered an appearance in the proceedings) wrote to the respondents’ solicitors and provided a copy of the proposed Amended Application requesting feedback about it (Legal Aid letter). A copy of the Legal Aid letter is not in evidence, however its existence can be inferred from other correspondence replying/referring to it;[21]
[21] Annexure “C” to the Hutchinson Affidavit
(d)while not required of them (by the Court or any other duty), the respondents eventually replied to Ms Meshram on 12 August 2020, copying Legal Aid NSW as a courtesy (reply to Legal Aid letter);
(e)on 13 August 2020, the Amended Application was filed by/for Ms Meshram;
(f)on 19 August 2020, the respondents’ solicitors wrote to Ms Meshram by letter again sent on a without prejudice basis, in accordance with the Calderbank principles, and offering $10,000 contingent upon (inter alia) her discontinuance of the proceedings against all respondents (August Calderbank). The August Calderbank was also sent to Legal Aid as a courtesy;
(g)on 24 August 2020, Legal Aid NSW wrote to the solicitors for the respondents on a without prejudice basis. The letter complained that the reply to Legal Aid letter had been sent only the day before the Amended Application was due to be filed, and also rejected the proposition that the Amended Application was in any way deficient. The letter also rejected the August Calderbank and made a counter-offer that the respondents pay Ms Meshram $80,000 and that the proceedings would otherwise resolve on the terms proposed by the respondents in the July Calderbank and August Calderbank;
(h)on 27 August 2020, the proceedings returned before Justice Charlesworth for further case management, on which occasion Ms Meshram was ordered to file and serve:
(i)a witness statement for each of the witnesses she proposed to call at the trial on the liability issue, such statements to contain:
(A)a summary of the evidence to be given by the witness; and
(B)a statement of each allegation in the amended originating application to which the evidence related;
by 29 October 2020;
(i)on 23 October 2020, having failed to secure the consent of the respondents for an extension of the time in which to file her witness statement/s, Ms Meshram approached the Court and the proceedings were listed for further case management before Justice Charlesworth on 29 October 2020, on which occasion the Court admonished Ms Meshram for the lack of progress in her prosecution of the proceedings and failure to adhere to the timetable set on the previous occasion. The Court also made clear that the matter could not proceed to mediation until such time as the respondents were in a position to understand the case put against them, by provision to them of Ms Meshram’s witness statement;
(j)on Wednesday, 4 November 2020, the respondents’ solicitors wrote to Ms Meshram by letter sent on a without prejudice basis in accordance with the principles in Calderbank, referring to the aforementioned lack of progress discussed at the case management hearing on 29 October 2020 (November Calderbank). The November Calderbank:
(i)again offered to settle the proceedings by payment from the respondents to Ms Meshram of $10,000 contingent upon (inter alia) her discontinuance of the proceedings;
(ii)unlike the August Calderbank, was not sent to Legal Aid NSW; and
(iii)was open until 4:00pm on Wednesday, 11 November 2020.
It warrants recording that, at the costs hearing, Ms Meshram twice asserted from the Bar table that on 11 November 2020 she had made a subsequent counter-offer to the November Calderbank, offering to settle the proceedings for $60,000. There is no evidence before the Court to corroborate that statement. In the absence of any factual dispute by the respondents, I am prepared to give Ms Meshram the benefit of the doubt and assume that she did make such a counter-offer on that date (November counter-offer). However, in the absence of the November counter-offer being before me, it is not possible to conclude when on 11 November 2020 it was made and by what method it was sent. It is also not possible to conclude whether, by it, Ms Meshram expressly rejected the November Calderbank or whether Ms Meshram was simply silent about the November Calderbank offer, and allowed it to lapse. However, there does not seem to be a material difference between those contingencies in the sense that Ms Meshram does not say that she was unaware of the making of the November Calderbank offer, nor that she failed to understand that it was an offer of settlement. Rather, Ms Meshram contends that, absent legal representation she was unable to properly consider the November Calderbank, and that because of COVID-19 restrictions, she was unable to obtain legal representation. These latter aspects are addressed at [121] below.
The respondents say that by reason of Ms Meshram’s rejection of the November Calderbank, the Court should exercise its discretion to order Ms Meshram to pay their costs on an indemnity basis from 12 November 2020 until the conclusion of the proceedings (or, in the case of respondents for whom the proceedings ended earlier, until any such respective dates).
Unrepresented litigants
Ms Meshram contends that she ought not pay costs at all or, it appears, in the alternative that she ought not have to pay costs on an indemnity basis, because she is an unrepresented litigant.
Describing Ms Meshram as an unrepresented litigant is not entirely accurate because she has had, at various junctures in the proceedings, been legally assisted, as follows:
(a)it can be inferred that between about July to August 2020, Ms Meshram had some assistance in and around the drafting of the Amended Application, consideration of and response/s to the July and August Calderbanks (see [107(c)] to [107(g)] above) from Legal Aid NSW;
(b)on Friday, 20 November 2020 a Notice of Address for Service was filed by a solicitor which had the effect under r 4.03 of the FCA Rules of appointing them as Ms Meshram’s lawyer (first lawyer);
(c)a Court-annexed mediation in the proceedings took place, facilitated by a Registrar of the Federal Court, commencing on 22 March 2021;
(d)on 23 March 2021, Ms Meshram’s lawyer filed a Notice of Withdrawal (first Notice of Withdrawal) in the Federal Court. It can be accepted by reference to the Notice of Intention to Withdraw as Lawyer attached to the first Notice of Withdrawal, that the mediation took place between Ms Meshram’s first lawyer notifying their intention to withdraw (being 15 March 2021), and that process being completed. However, there is no dispute between the parties that Ms Meshram’s first lawyer did not attend the mediation with her;
(e)on 27 September 2022, a Notice of Address for Service was filed in this Court by new solicitors, which had the effect under r 6.01 of the Rules of appointing a new lawyer as Ms Meshram’s legal representative (second lawyer);
(f)on 28 September 2022, the Further Amended Application was filed; and
(g)on 6 October 2022, the second lawyer filed a Notice of Withdrawal (second Notice of Withdrawal) with this Court.
It can, however, be accepted that for the preponderance of the proceedings, Ms Meshram has been unrepresented.
While, contrary to what Ms Meshram contends, there is no rule that simply by reason of being unrepresented, a litigant is automatically held safe from an indemnity costs order, her lack of representation is a relevant consideration in assessing the offers of compromise made.
In Roads Corp v Love [2010] VSC 581 at [49] Vickery J observed that:
A relevant factor in the consideration of an award of costs will arise where a party in the litigation is self-represented. In the usual case, such a person, while having every right to proceed unrepresented, will suffer the limitations of a lack of knowledge of the law, an unfamiliarity with court practices and the risk of lack of objectivity.
In Bhagat v Royal and Sun Alliance Life Assurance Australia Ltd [2000] NSWSC 159 (Bhagat) at [13] Hodgson CJ in Eq observed:
… I accept that a court does have to make allowances for the position of litigants in person, and to try to ensure that such a litigant does not lose out because of lack of expertise; although there is a limit to what the Court can do in that regard, while still remaining an impartial determinant of a dispute. The Court may in those circumstances refrain from making orders against litigants in person for conduct that might be considered as justifying orders for costs against represented litigants. By the same token, litigants in person can cause great hardship and expense to other parties, through making allegations and claims that lawyers would recognise as allegations and claims that could not reasonably or even properly be made, and through making proceedings much longer and much more expensive than they would otherwise be, by not focusing accurately on the real issues in the case. Conduct of that nature by legally represented parties would often lead to orders for indemnity costs. Litigants in person may escape the consequence of indemnity costs, but I do not think that the circumstance that a party is a litigant in person is a ground for displacing the ordinary result that costs follow the event.
In later proceedings involving the same applicant as in Bhagat, the Full Federal Court confirmed the aforementioned decision did not have the effect that litigants in person can always escape the consequence of indemnity costs, and the Court’s broad discretion applies: see Bhagat v Global Custodians Ltd [2002] FCAFC 51 at [56] to [60] per O’Loughlin, Whitlam and Marshall JJ.
In Spalla v St George Motor Finance Ltd (No 8) [2006] FCA 1537 at [20], citing Bhagat (supra), Kenny J said:
On the one hand, litigants in person, even if partially assisted by lawyers, often produce significant difficulties and unnecessary expense for the parties against whom they proceed: see Bhagat v Royal & Sun Alliance Life Assurance Australia Ltd at [13] per Hodgson CJ in Eq These difficulties arise from their lack of knowledge of the law, unfamiliarity with court practice and, sometimes, lack of objectivity and want of lawyerly skills in reading and writing. Mr Spalla suffers, to some degree, from the disabilities of most self-represented litigants. There may be other factors too that compound a self-represented litigant’s inability to utilise court procedures appropriately. On the other hand, a person’s capacity to gain redress for legal wrongs in the courts should not depend on his or her ability to pay for legal representation. In seeking to balance these considerations, the courts have been generally more reluctant to make orders for indemnity costs against self-represented litigants than against legally represented litigants.
In Jones v Braund (No 3) [2020] NSWDC 74 at [54(b), (f) and (h)] Abadee SC DCJ relevantly found:
I do not intend to convey by these reasons that self-represented litigants should receive preferential status when considering applications to alter the usual costs consequences of rejected settlement offers. Further, in contested litigation, a represented party is not an unrepresented litigant’s keeper. But in the circumstances of this particular case I consider that:
…
(b) the emotive nature of the plaintiff’s responses to both the Calderbank letter and the offer of compromise was indicative of a litigant who evinced little or no appreciation of the costs consequences for rejection of the offer of compromise;
(c) this lack of appreciation of the costs consequences of rejecting the offer of compromise was a circumstance which should have been apparent to the defendant;
…
(f) the reasonableness of the plaintiff in rejecting the offer of compromise is elevated by the matters referred to in (a)-(e);
…
(h) in the particular circumstances of this case, the private and public objects, or purposes, of the rules are not subverted by the Court exercising its discretion.
In all the circumstances of this case, I make the following finding about the November Calderbank and the circumstances of its non-acceptance:
(a)it was made at a relatively early phase of the proceedings;
(b)it did expressly foreshadow an eventual application for indemnity costs;
(c)given the ultimate findings that the conduct alleged did not take place, it is fair to say that Ms Meshram’s prospects of success at an early juncture were not good. However, for reasons discussed shortly, the ability of an unobjective, unrepresented, lay litigant to make a proper assessment of that state of affairs was (at least in this case) extremely limited;
(d)while representing an increase in quantum from the July Calderbank ($5,000), the November Calderbank was in essentially the same terms as the August Calderbank ($10,000), which had already been rejected;
(e)it appears from references within the November Calderbank to Ms Meshram’s failure to adhere to timetables and her lack of progress in prosecuting the proceedings that this was the basis upon which the offer was re-made on identical terms. However, based on what had passed between Ms Meshram and Justice Charlesworth at the case management conference on 29 October 2020, it ought to have been apparent to the respondents that the significance of this lack of progress did not appear to have resonated with Ms Meshram;
(f)Ms Meshram had, by the Legal Aid letter, already expressly rejected the August Calderbank which offered to settle the proceedings by payment to her of $10,000;
(g)while the prospect of adverse costs consequences had been raised with Ms Meshram at relevant Court fixtures up to the making of the November Calderbank (see [63] above), there was sufficient reason to assume that this was also not resonating with Ms Meshram;
(h)the period for acceptance of the November Calderbank was only 7 days, spanning from a Wednesday to a Wednesday (see [107(j)] above);
(i)the respondents appear to have appreciated that at the time the November Calderbank was made, Ms Meshram was neither legally represented nor even being assisted by Legal Aid NSW because, unlike the August Calderbank, they did not send a courtesy copy of the November Calderbank to Legal Aid NSW;
(j)in circumstances where the November Calderbank was open for only seven days and Ms Meshram was unrepresented, the intervening weekend meant that it may not have been feasible or realistically achievable to obtain meaningful advice in such a short timeframe, especially from any newly-retained lawyer who would have needed to familiarise themselves with the case so as to assess the relative merits of the offer; and
(k)as has been detailed above[22] on Friday, 20 November 2020 Ms Meshram became legally represented by a private law firm.
[22] See [124(b)] above
In those circumstances, it would have been neither inconvenient nor difficult for the November Calderbank to have been:
(a)open to acceptance for a longer period; and/or
(b)re-made to Ms Meshram only a week and a half after its expiry so that she might, with the benefit of her newly appointed lawyers, consider it with professional advice.
I am not satisfied that the COVID-19 pandemic restrictions presented additional obstacles to Ms Meshram obtaining legal advice generally or in relation to consideration of the November Calderbank because:
(a)judicial notice can be taken of the fact that by November 2020, Sydney/NSW was in a period of relative freedom of movement between a series of lockdowns;
(b)like the Courts, law firms continued to operate, even if using remote technologies;
(c)there is no suggestion, let alone evidence, that Ms Meshram was suffering from the COVID-19 virus in the week in question (4 to 11 November 2020); and
(d)Ms Meshram did in fact secure legal representation only one week later.
I also take into account that the amount offered in the November Calderbank was a small sum which, relative to the outcome of the proceedings (costs aside), was not an especially large compromise.
To the extent that Ms Meshram points to her lack of representation at the time the November Calderbank was made and remained open I accept that, in all the circumstances of this case, including that it was only open for one week, Ms Meshram’s lack of legal experience, unfamiliarity with Court practices, and her lack of objectivity as an unrepresented litigant who was somewhat fixated on her case,[23] she was not capable of properly assessing the November Calderbank at the time it was made, without objective advice: see Vink v Tuckwell (No 3) (2008) 67 ACSR 547 per Robson J.
[23] See substantive judgment at [3]
Those same personal factors were patently extant for the balance of the proceedings and the hearing of the costs application, throughout most of which Ms Meshram was unrepresented. Notwithstanding the considerable concerns expressed by the Court in the substantive judgment, and in these reasons about Ms Meshram’s conduct of the proceedings as a whole, considering the authorities extracted at [114] and [118] above, the Court is reluctant in the exercise of its discretion to order costs on an indemnity basis.
In all the circumstances of this case, I am not satisfied that Ms Meshram’s failure to accept the November Calderbank was sufficiently unreasonable to warrant the respondents having their costs of these proceedings, on an indemnity basis.
Duty to act consistently with the overarching purpose
In reaching overall conclusions about costs in this matter, the Court has considered whether there has been any relevant failure to comply with the duty imposed by s 191 (1) and/or (2) of the FCFCOA Act by any of the parties. If such a failure was found to arise, the Court is mandated to consider it when exercising its discretion to award costs: see ss 191(4) of the FCFCOA Act.
Neither Ms Meshram nor any respondent expressly made allegations of a failure to comply with the duty in s 191 of the Act. However, by their nature, the allegations of misconduct made by Ms Meshram in response to the costs application were substantively allegations that the respondents failed to conduct the proceeding (including the mediation and the making of settlement offers) in a way which was consistent with the overarching purpose to, inter alia, facilitate the just resolution of the dispute as quickly, inexpensively and efficiently as possible.
For the reasons given above in respect of the misnumbering issue,[24] misconduct allegations and/or offers of compromise, I am not satisfied that any of the respondents or their legal representatives failed to act in accordance with their respective ss 191(1) or (2) duties. Nothing at [120] above alters my view in that regard.
[24] See [21(b)] above
Given matters addressed by the substantive judgment at [37] to [42], I have also given consideration to whether Ms Meshram conducted these proceedings for her part in a way which facilitated the resolution of the dispute as quickly, inexpensively and efficiently as possible. The answer is: not really.
However, for the reasons which have been given at [123] to [124] above in respect of Ms Meshram’s inability to objectively and reasonably assess the November Calderbank, her failure to approach the proceedings with speed and pragmatism is explained, albeit not excused, by the limitations she demonstrated as an unrepresented litigant. That is not to say that failure of an unrepresented litigant to adhere to their s 191(1) duty could never sound, for example, in an order that costs be paid on an indemnity basis. However, in the present matter, having already concluded that Ms Meshram should pay the respondents’ costs of the proceedings on an ordinary basis, I am not satisfied that her reticence[25] or inability to have the matter proceed in as timely and efficient a manner as possible requires any further adjustment to my decision, specifically I am not satisfied that her conduct warrants an order for indemnity costs by reference to s191(4) of the FCFCOA Act either.
[25] See for example substantive judgment at [5]
To whom costs ought be paid
The final aspect of relief sought by the respondents relates to the terms in which the costs orders should be made. By reference to paragraph 12 of the prayers for relief sought by the costs application the respondents say that, to the extent that the Court were satisfied that Ms Meshram ought pay the costs of any or all of the individual respondents, payment should be ordered to be made to Bing Lee. Bing Lee says that, in accordance with the terms of each of the authority documents which form Exhibit “1R”, it has paid the legal fees of the individual respondents in these proceedings (see [39] to [40] above).
The authority documents were (understandably) drafted by reference to the proceedings in the Federal Court, which are identified by their proceedings number in those documents. By operation of r 22.05 of the Rules, the Court has power to make costs orders in respect of costs in the Federal Court prior to the transfer to this Court if the Federal Court has not made an order for costs. It is not in dispute that in proceedings NSD 530/2020 the Federal Court made no costs orders at any time. However, it is potentially a matter of moment that fresh authority documents were not executed in relation to the proceedings in this Court.
Further, and as noted at [40] above, certain of the authority documents were omitted from Exhibit “1R”. In respect of Mr Yalda and Ms Ngo, this does not seem material as they do not seek costs. However, Mr Zhuang does seek costs and no authority document has been provided in relation to him.
The failure to update the authority documents by reference to these proceedings, and the omissions from Exhibit “1R” of certain authority documents were probably mere oversights, however they are not for the Court to rectify.
To the extent that Mr Zhuang’s costs are sought, it will be a matter for Bing Lee to pursue reimbursement from him, if any, of any order made in his favour. Similarly if, as Bing Lee asserts, it has met the legal costs of each of the individual respondents then no doubt it will be a simple matter of having those individuals execute relevant directions to pay and to provide those to Ms Meshram, to achieve a re-direction of any costs ordered in favour of the individual respondents, to Bing Lee.
Orders will be made for payment of the respondents’ costs individually, and Bing Lee can remedy this issue for itself.
CONCLUSION
By reason of finding that all costs in the proceedings should be paid an ordinary basis, it follows that there is no distinction between the costs of the proceedings at large, and the costs of the two interlocutory applications, being the strike-out application which resulted in the interlocutory judgment, and of the costs application.
Accordingly, Ms Meshram should pay the respondents’ costs and disbursements of, and incidental to these proceedings, including of:
(a)the Federal Court proceedings, pursuant to r 22.05 of the Rules;
(b)the interlocutory application; and
(c)the costs application;
on an ordinary basis, as agreed or (pursuant to r 22.02(2)(c) of the Rules) failing agreement, as taxed under Part 40 of the FCA Rules. I will so order.
I certify that the preceding one hundred and thirty-eight (138) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given. Associate:
Dated: 17 June 2024
SCHEDULE OF PARTIES
SYG 2309 of 2021 Respondents
First Respondent:
BING LEE ELECTRICS PTY LTD
Second Respondent:
BIANCA NURSOO
Third Respondent:
RAMZI YOUSIF
Fourth Respondent:
MARIO IACONO
Fifth Respondent:
RICHARD CORTES
Sixth Respondent:
CLAUDIO MUSA
Seventh Respondent:
MING TRANG
Eighth Respondent:
MARIAN MIRZA
Ninth Respondent:
KEN ZHUANG
Tenth Respondent:
FATEEN KHAN
Eleventh Respondent:
KYM PRENDERGAST
Twelfth Respondent:
N/A
Thirteenth Respondent:
N/A
Fourteenth Respondent:
N/A
Fifteenth Respondent:
MARTIN YALDA
Sixteenth Respondent:
DINH (DIONE) DO NGO
Seventeenth Respondent:
PETER HARRIS
Eighteenth Respondent:
RITCHIE DJAMHUR
Nineteenth Respondent:
SEAN NG
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