NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 2)
[2011] NSWLEC 98
•08 June 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 98 Hearing dates: 1 - 5 November 2010, 9, 10, 22 and 23 November 2010, 13, 16, 21 December 2010 Decision date: 08 June 2011 Jurisdiction: Class 4 Before: Pain J Decision: 1.The Notice of Motion filed on 27 November 2009 is dismissed.
2.Costs are reserved.
3.Exhibits to be returned.
Catchwords: COSTS - wasted costs claim - whether serious neglect or serious incompetence on part of lawyer justifying award of costs in favour of former client - whether failure to comply with retainer where no wasted court costs justifies award of costs under s 99 of Civil Procedure Act 2005 - no wasted costs within court proceedings demonstrated Legislation Cited: Civil Procedure Act 2005 s 56, s 57, s 98, s 99
Courts and Crimes Legislation Further Amendment Act 2010
Evidence Act 1995 s 140(2)
Freedom of Information Act 1989 (repealed)
Legal Profession Act 1987 (repealed) s 198M
Supreme Court Act 1981 (UK) s 51
Supreme Court Act 1970 s 76C (repealed)
Uniform Civil Procedure Rules 2005 Pt 6 r 6.29, Pt 42 r 42.3(2)(g)
Water Act 1912
Water Management Act 2000 Sch 10
Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 appendix 4, r 1, r 10Cases Cited: Bagley v Pinebelt Pty Ltd [2000] NSWSC 655
Briginshaw v Briginshaw (1938) 60 CLR 336
Condor Asset Management Ltd v Excelsior Eastern Ltd [2006] NSWSC 510
Dubow v Fitness First Australia Pty Ltd [2007] NSWSC 1390
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Etna v Arif [1999] 2 VR 353
European Hire Cars Pty Ltd v Beilby Poulden Costello [2009] NSWSC 526
Harley v McDonald [1999] NZLR 545 Harley v McDonald [2001] 2 AC 678
Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v
Minister Administering the Water Management Act 2000 [2008] NSWLEC 165; (2008) 160 LGERA 50
Holmes v DMS Pacific Exports [2007] NSWSC 563
Hutchins Pastoral Company Pty Ltd v Minister Administering the Water Management Act 2000 [2010] NSWLEC 30
Hutchins Pastoral Company Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2010] NSWLEC 241
Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155
Karwala v Skrzypczak; Re Estate of Ratajczak [2007] NSWSC 931
Kelly v Jowett [2009] NSWCA 278; (2009) 76 NSWLR 405
Kendirjian v Ayoub (No 2) [2008] NSWCA 255
Leicester v Walton [1995] NSWCA 258
Lemery Holdings Pty Limited v Reliance Financial Services Pty Ltd; School Holdings Pty Ltd v Dayroll Pty Ltd [2008] NSWSC 1114
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Maurice Tarabay v Licha Bechara [2010] NSWSC 202
Medcalf v Mardell [2003] 1 AC 120
Mummery v Irvings Pty Ltd (1956) 96 CLR 99
Myers v Elman [1940] AC 282
Orchard v South Eastern Electricity Board [1987] QB 565
Puruse Pty Ltd v Council of the City of Sydney [2009] NSWLEC 163; (2009) 169 LGERA 85
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622
Re The Black Stump Enterprises Pty Ltd (No 2) [2006] NSWCA 60
Redowood v Goldstein Technology [2004] NSWSC 515
Ridehalgh v Horsefield [1994] Ch 205
Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1
Treadwell v Hickey [2010] NSWSC 1119
Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356
Weller v Phipps [2010] NSWCA 323
Wentworth v Rogers [1999] NSWCA 403
Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477Texts Cited: GE Dal Pont, Lawyers' Professional Responsibility in Australia and New Zealand, 2nd ed (2001) LBC Information Services Category: Principal judgment Parties: Hutchins Pastoral Company Pty Ltd Danwillach Pty Ltd
Delta Creek Pty Ltd
(Applicants on the Notice of Motion)
Taylor & Whitty Pty Ltd (First Respondent on the Notice of Motion)
John Taylor (Second Respondent on the Notice of Motion)
Peter King (Third Respondent on the Notice of Motion)Representation: Mr B O'Donnell (Applicants on the Notice of Motion)
Mr T Faulkner (First and Second Respondents on the Notice of Motion)
Mr M Elliott (Third Respondent on the Notice of Motion)
Kell Moore (Applicants on the Notice of Motion)
Blackstone Waterhouse Lawyers (First and Second Respondents on the Notice of Motion)
Lee & Lyons (Third Respondent on the Notice of Motion)
File Number(s): 41292 of 2006
Hutchins Pastoral Company Pty Ltd, Danwillach Pty Ltd and Delta Creek Pty Ltd (the Applicants) have filed a Notice of Motion dated 27 November 2009 seeking various costs orders against Taylor & Whitty Pty Ltd (T&W), the First Respondent on the Notice of Motion; Mr John Taylor, the Second Respondent on the Notice of Motion; and Mr Peter King, the Third Respondent on the Notice of Motion. The Minister administering the Water Management Act 2000 (the WM Act) is not a party to the Notice of Motion. The Applicants are no longer parties in the substantive proceedings having discontinued on 6 November 2009. The name of the lead applicant in the substantive proceedings was changed to NA & J Investments Pty Ltd by consent orders dated 21 May 2010. The substantive proceedings are continuing with approximately 40 named applicants.
Mr Taylor and T&W are the principal of the firm and the firm of solicitors which acted previously for the Applicants in the substantive proceedings. Mr King is the barrister who formerly represented the Applicants in the ongoing substantive proceedings. The Applicants seek various orders including that their costs of the proceedings in which they are no longer parties and the costs of discontinuing from the proceedings (including the Crown's costs awarded at the time of the discontinuance) are payable by the Respondents.
Costs are sought pursuant to s 99 of the Civil Procedure Act 2005 (the CP Act) which provides:
(1) This section applies if it appears to the court that costs have been incurred:
(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.
(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following:
(a) it may, by order, disallow the whole or any part of the costs in the proceedings:
(i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or
(ii) in the case of a solicitor, as between the solicitor and the client,
(b) it may, by order, direct the legal practitioner:
(i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or
(ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,
(c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party.
...
(5) The court may give ancillary directions to give full effect to an order under this section, including directions to a legal practitioner to provide a bill of costs in assessable form:
(a) to the court, or
(b) to a party to the proceedings, or
(c) in the case of a barrister, to the instructing solicitor or client, or both, or
(d) in the case of a solicitor, to the client.
...
(7) In this section, client includes former client.
Costs are sought under s 99(1)(a) for serious neglect or serious incompetence. Serious misconduct is not alleged. Section 56 of the CP Act is relevant to the consideration of s 99 and stated at the time of the hearing:
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
(3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court.
(4) A solicitor or barrister must not, by his or her conduct, cause his or her client to be put in breach of the duty identified in subsection (3).
(5) The court may take into account any failure to comply with subsection (3) or (4) in exercising a discretion with respect to costs.
Since the hearing s 56 has been amended ( Courts and Crimes Legislation Further Amendment Act 2010 commenced 1 April 2011). The amendments do not relevantly alter s 56 for the purposes of this case.
Particulars
A letter from solicitors dated 19 March 2010 outlining the particulars of the Applicants' claims was sent and stated as follows:
Particulars of allegations against Taylor & Whitty Pty Ltd and Mr John Taylor
The allegations of serious neglect, serious incompetence of a legal practitioner within the meaning of s 99(1)(a) of the Civil Procedure Act 2005 (NSW) ("the CPA ") against Taylor & Whitty Pty Ltd and Mr John Taylor are as follows:
Commencing proceedings in a manner inconsistent with instructions
1. Mr Taylor and/or Taylor & Whitty commenced proceedings in the Hutchins Applicant's names in a manner contrary to the Hutchins Applicants' instructions.
(1) In December 2006, Mr Stewart Hutchins, a director of the Hutchins Companies, approached Mr Taylor of Taylor & Whitty in relation to a dispute with the NSW Department of Natural Resources as to whether the Department had correctly calculated the Hutchins Companies' water entitlements under Rule 10 rather than Rule 1 of the "History of Extraction Rules" in Appendix 4 of the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 (NSW) made under the Water Management Act 2000 (NSW) - Rule 10 applied to properties that had been amalgamated and the Hutchins Applicants contended that their properties had not been "amalgamated" within the meaning of Rule 10 ("the Amalgamation Claim "). Mr Hutchins gave instructions to Mr Taylor that Taylor & Whitty should:
(a) advise in relation to the merits of the Amalgamation Claim;
(b) act on behalf of the Hutchins Companies in relation to the Amalgamation Claim.
(2) On 22 December 2006, an unknown officer or agent of Taylor & Whitty commenced proceeding number 42192 of 2006 in the NSW Land and Environment Court ("the LEC ") in the name of the Hutchins Applicants as joint applicants with two unrelated parties, Cummins [sic] Partnership Pty Ltd and NA & J Investments Pty Ltd ("the LEC Proceedings"). The proceeding was commenced by filing a Class 4 Application, which was signed by the unknown officer or agent of Taylor & Whitty. The Class 4 Application sought remedies in relation to a challenge to the validity of the Water Management Act and the Water Sharing Plan ("the Validity Claims") but did not seek remedies in relation to the Hutchins Applicants' Amalgamation Claim.
(3) The Hutchins Applicants did not give instructions for proceedings to be commenced jointly with Cummins [sic] Partnership Pty Ltd and NA & J Investments Pty Ltd.
(4) The Hutchins Applicants did not give instructions for proceedings to be commenced which did not include the Amalgamation Claim.
(5) The Hutchins Applicants did not give instructions for proceedings to be commenced in relation to the Validity Claims.
The above conduct constitutes serious neglect and/or serious incompetence of a legal practitioner within the meaning of s 99(1)(a) of the CPA. The conduct caused the Hutchins Applicants to incur the following costs:
for the commencement of an action they had not authorised;
for the Hutchins Applicant's attempt to extricate themselves from the LEC Proceeding through the Notice of Motion filed 24 August 2009; and
the necessity for the Hutchins Applicants to pay the Respondents costs of the LEC Proceedings to 24 August 2009 as ordered on 6 November 2009 as a condition of the Hutchins Applicants discontinuing the LEC Proceedings and recommencing the Amalgamation Claim as a separate proceeding.
Joining further parties and causes of action to the proceedings
2. Mr Taylor and/or Taylor & Whitty joined to the LEC Proceedings further parties with further causes of action in a manner that delayed the determination of the Amalgamation Claim and resulted in greater delays and expense in finalising the Amalgamation Claim.
(1) Taylor & Whitty knew or ought to have known that:
(a) the Validity Claims were complex, would take some time and would be costly to prepare and argue;
(b) the addition of further applicants to the proceeding would add further costs and add to the time it would take to finalise the matter;
(c) the Amalgamation Claim was relatively simple and, on its own, could have been dealt far more swiftly than the Validity Claims;
(d) the longer the resolution of the Amalgamation Claim was delayed, the more the Hutchins Applicants would suffer in terms of lost water.
(2) Taylor & Whitty never advised the Hutchins Applicants of the above matters.
(3) The directors of the Hutchins Applicants repeatedly asked Mr Taylor and other officers of Taylor & Whitty questions regarding:
(a) whether their Amalgamation Claim was being "lost" in the Validity Claims; and
(b) whether the Validity Claims were not inconsistent with their Amalgamation Claim.
The directors cannot recall the dates of every occasion on which the above questions were asked, but among them were the following:
(i) On 16 May 2007, at a directions hearing in the LEC Proceedings, Mr Hutchins asked Mr King (who was there briefed by Taylor & Whitty) how the Hutchins Companies' Amalgamation Claim would fit with the other claims brought in the action. Mr Hutchins said words to the effect of:
"How do you represent the other parties who want the Water Sharing Plan overturned and us where our case depends on the Water Sharing Plan being held to be valid, in the one case?"
In response, Mr King assured Mr Hutchins that the Hutchins Applicants' dispute with the Department of Natural Resources would be "pursued and heard individually, but within the one case."
(ii) On an unknown number of occasions between 16 May 2007 and the mediation conducted in or about September 2007, Mr Hutchins informed Mr Taylor and Mr Nathan Archibald, a solicitor then employed by Taylor & Whitty, that he was concerned that the Hutchins Companies' dispute with the Department regarding their water allocation should not be included with the other cases and parties in the LEC Proceeding.
(iii) During the mediation in September 2007, Mr Hutchins asked Mr Nathan Archibald an employed Solicitor of Taylor & Whitty on at least two occasions, when the Hutchins amalgamation claim was going to be discussed at the mediation. Mr Archibald informed Mr Hutchins that his amalgamation claim would be discussed "shortly".
(iv) At the conclusion of the mediation in September 2007, Mr Hutchins asked Mr Nathan Archibald, why his dispute with the Department had not been discussed and expressed concerns that it was being lost in the other issues in the LEC Proceeding. Mr Hutchins raised similar concerns with Mr Taylor some time later at the offices of Taylor & Whitty in Finley. He was told it was "discussed behind closed doors" but was never given any details.
(v) On 26 June 2008, Mr Hutchins had a telephone conversation with an unknown officer of Taylor & Whitty in which he expressed his concern that his specific causes of action were being "lost".
(vi) On 29 November 2007, Mrs Jenny Hutchins (a director of the Hutchins Companies) attended a meeting of the applicants and solicitors in the LEC Proceeding at Finley. Mrs Hutchins raised the Hutchins Applicants concern that further applicants should not be added to the proceeding because the Hutchins Applicants were not concerned with the Validity Claims but were involved in the LEC Proceedings on the issue of their Amalgamation Claim.
(vii) On 30 November 2007, Mr Hutchins had a lengthy telephone conversation with Mr Dale Brooks, an employed solicitor of Taylor & Whitty, in which Mr Hutchins objected to more parties being joined to the LEC Proceeding.
(viii) Some time in December 2007, Mr Hutchins expressed his concern to Mr Taylor that adding more parties to the LEC Proceeding would complicate and delay the proceeding.
(4) Taylor & Whitty joined in the LEC Proceedings various other applicants, in relation to the Validity Claims as well as other claims relating specifically to those new applicants. In particular:
(a) As particularised at sub-para 1(2) above, when the LEC Proceeding was commenced, the following applicants were named in addition to the Hutchins Applicants:
(i) Cummins [sic] Partnership Pty Ltd; and
(ii) NA & J Investments Pty Ltd.
(b) On 20 April 2007, Taylor & Whitty caused to be filed a Further Amended Application in the LEC Proceedings that joined the following further applicants (the same document appears to have been filed again on 23 April 2007):
(i) Vittorio Rossato;
(ii) Ursula Narelle Rossato;
(iii) Stephen Leslie Huggins; and
(iv) Carol Margaret Huggins.
(c) On 14 December 2007 Taylor & Whitty filed a Further Amended Application adding the following further applicants to the LEC Proceedings:
(i) Robert Dennis Adams;
(ii) Milton Robert Alexander;
(iii) Bartter Enterprises Pty Limited;
(iv) Vittore Michaele Belatto;
(v) Deana Elizabeth Belatto;
(vi) Anita Maree Hogan;
(vii) Scott Elizabeth Hogan;
(viii) WG & PE Booth;
(ix) Glenda Lorraine Brill;
(x) Andrew Malcolm Browning;
(xi) Catherine Elizabeth Browning;
(xii) Ian Harvey Clark;
(xiii) RWG & KE Foster;
(xiv) Antonio Galluzzo;
(xv) Rita Elma Galluzzo;
(xvi) Judith Elizabeth Graham;
(xvii) Neville Patrick Heath;
(xviii) Debra Jayne Heath;
(xix) James William Hermiston;
(xx) Jan Elizabeth Hermiston;
(xxi) Glen Alexander McKersie;
(xxii) RL & HL Rollinson;
(xxiii) Rex Gordon Schultz;
(xxiv) Selesian Downs Pty Ltd;
(xxv) Geoffrey Julian Walsh;
(xxvi) Pamela Dorothy Walsh;
(xxvii) Alastair Ross Wells; and
(xxviii) Woodpark Pastoral Company Pty Ltd.
(d) On 24 April 2008, Taylor & Whitty caused to be filed a Further Amended Application that added the following applicants to the LEC Proceeding:
(i) Ray Hawke;
(ii) Scott Hogan;
(iii) Anita Hogan;
(iv) Phillip Ronald Johnson;
(v) RJ & PR Porter;
(vi) AM & RL Rollinson;
(vii) Robert A Scellato; and
(viii) JA & VA Stephens.
The above conduct constitutes serious neglect and/or serious incompetence of a legal practitioner within the meaning of s 99(1)(a) the CPA. The conduct delayed the finalisation of the Hutchins Applicants' Amalgamation Claim. The conduct caused the Hutchins Applicants to incur the following costs:
costs associated with preparing the Validity Claims;
costs associated with adding these parties to the LEC Proceeding;
costs associated with the Hutchins Applicant's attempt to extricate themselves from the LEC Proceeding through the Notice of Motion filed 24 August 2009; and
the necessity for the Hutchins Applicants to pay the Respondents costs of the LEC Proceedings to 24 August 2009 as ordered on 6 November 2009 as a condition of the Hutchins Applicants discontinuing the LEC Proceedings and recommencing the Amalgamation Claim as a separate proceeding.
Incompetent pleadings
3. [Not pressed]
Neglecting the conduct of the Amalgamation Claim in favour of the Validity Claims
4. Mr Taylor and/or Taylor & Whitty neglected the conduct of the Hutchins Applicants' Amalgamation Claim in favour of the Validity Claims. In particular:
(1) [Not pressed]
(2) [Not pressed]
(3) There was no consideration nor advise [sic] given as to what effect the joining of additional parties in the LEC Proceeding would have on the prosecution of the Hutchins Applicants Amalgamation Claim nor on whether the proceedings should be split such that the Amalgamation Claim could progress while the Validity Claims were adjourned awaiting the outcome of other cases raising similar issues in the NSW Court of Appeal and in the High Court of Australia.
...
5. The above neglect delayed the determination of the Amalgamation Claim. The Hutchins Applicants incurred unnecessary costs in terms of:
(1) preparing the Validity Claims; and
(2) the necessity for the Hutchins Applicants to pay the Respondents costs of the LEC Proceedings to 24 August 2009 as ordered on 6 November 2009 as a condition of the Hutchins Applicants discontinuing the LEC Proceedings and recommencing the Amalgamation Claim as a separate proceeding.
The above constitutes serious neglect and/or serious incompetence of a legal practitioner within the meaning of s 99(1)(a) the CPA.
Continuing to assert a retainer after it had been terminated
6. Officers of Taylor & Witty continued to assert to the NSW Crown Solicitors Office ("the CSO"), being the solicitors for the Respondents in the LEC Proceedings ("the Crown Respondents"), that Taylor & Whitty continued to act for the Hutchins Applicants after Taylor & Whitty knew, or ought reasonably to have known, that its retainer had been terminated.
(1) On 4 April 2008, Mr Hutchins wrote to Mr Taylor expressing his "frustration and disappointment" with Taylor & Whitty's services and foreshadowing that the Hutchins Companies intended to engage new lawyers and were considering leaving the LEC Proceedings.
(2) The Hutchins Applicants terminated Taylor & Whitty's retainer by a letter of their new solicitors, Kell Moore Pty Ltd, dated 11 December 2008.
(3) On 8 September 2009, Kell Moore again wrote to Taylor & Whitty re-iterating that the Hutchins Companies had terminated Taylor & Whitty's retainer in December 2008 and informing them that:
"[T]o the extent that you still consider that you are retained to act on behalf of the Hutchins Companies in these proceedings (which in our view was not the case as of December 2008), we on behalf of the Hutchins Companies now formally terminate that retainer."
(4) In correspondence and conversations with officers of the CSO after both these dates, Taylor & Whitty either asserted that they continued to hold a retainer for the Hutchins Applicants or did not disabuse the CSO of the notion that Taylor & Whitty still held a retainer on behalf of the Hutchins Applicants. In particular:
(a) On 11 February 2009 in an email from Mr Josh Wolf of Taylor & Whitty to Ms Rebecca Kiu of the CSO (in response to a letter from Ms Kiu to Mr Wolf of 3 February 2009), Mr Wolf gave the Hutchins Applicants' consent to certain consent orders being made without indicating that Taylor & Whitty no longer acted for the Hutchins Applicants and were simply passing on instructions from Kell Moore.
(b) On 25 September 2009 in a telephone conversation between Mr Taylor of Taylor & Whitty and Dr David Galbraith of the CSO, in which Mr Taylor did not inform Dr Galbraith that Taylor no longer held a retainer for the Hutchins Applicants in the context of Mr Taylor and Dr Galbraith discussing the propriety of Kell Moore having filed an appearance in the LEC Proceedings on behalf of the Hutchins Applicants on 26 August 2009.
(c) On 29 September 2009 in a telephone conversation between Mr Wolf of Taylor & Whitty and Dr Galbraith of the CSO, Mr Wolf said words to the effect that, while he expected that in due course Taylor & Whitty's retainer to act for the Hutchins Companies would be terminated, it had not been terminated as yet.
(5) Taylor & Whitty's assertion to the CSO that it still acted for the Hutchins Applicants, and the CSO's consequent confusion as to who was properly acting for the Hutchins Applicants, delayed the Crown Respondents' decision to grant the undertaking that was eventually given and upon which the Hutchins Applicants were given leave to discontinue their involvement in the LEC Proceedings.
(a) [not pressed]
(b) The Crown Respondents did not give the desired undertaking until 6 November 2009 (see order 3 made on that day).
(6) The Crown Respondents' delay in providing the undertaking made it necessary for the Hutchins Applicants to prosecute the Notice of Motion filed 24 August 2009 in an effort to resolve the resulting impasse. The Hutchins Applicants incurred costs as a result, including their own costs of the motion and the obligation to pay the Crown Respondents' costs of the motion pursuant to order 6 made on 6 November 2009 (but note orders 7 and 8 also made on that day).
The above conduct constitutes serious neglect and/or serious incompetence of a legal practitioner within the meaning of s 99(1)(a) the CPA.
Failing to co-operate with the Hutchins Applicants' new lawyers
7. Taylor & Whitty refused to co-operate with the Hutchins Applicants' new lawyers, Kell Moore:
(1) Taylor & Whitty refused to provide Kell Moore with a copy of their file in the matter in circumstances where Taylor & Whitty asserted that the Hutchins Applicants owed them fees but refused to render them an invoice, or even an estimate, for those fees. In particular reference is made to:
(a) On 19 August 2009 Kell Moore wrote to Taylor & Whitty seeking access to Taylor & Whitty's file for the LEC Proceedings.
(b) On 31 August 2009 Kell Moore wrote to Taylor & Whitty seeking access to Taylor & Whitty's file for the LEC Proceedings and indicating that Kell Moore understood that the Hutchins Applicants did not owe any fees to Taylor & Whitty.
(c) On 22 October 2009 Kell Moore wrote to Taylor & Whitty seeking clarification as to whether the Hutchins Applicants owed any fees to Taylor & Whitty and seeking access to Taylor & Whitty's file for the LEC Proceeding.
(d) On 23 October 2009 Taylor & Whitty wrote to Kell Moore indicating that fees were still owing and promising to render an invoice in the next 14 days.
(e) On 5 November 2009 Kell Moore wrote to Taylor & Whitty seeking an invoice and or access to Taylor & Whitty's file of the LEC Proceeding.
(f) 13 November 2009 Kell Moore wrote to Taylor & Whitty again seeking an invoice and or access to Taylor & Whitty's file of the LEC Proceeding;
(g) On 16 November 2009, Taylor & Whitty to Kell Moore saying they were in the process of completing a final account of costs and disbursements and that they would not release the file until that account was paid;
(h) Kell Moore is yet to receive an invoice or final account of costs and disbursements from Taylor & Whitty.
(2) Taylor and Whitty refused to authorise Kell Moore to inspect the court file.
(a) Kell Moore first requested Taylor & Whitty's permission to inspect the Court file in the LEC Proceeding by letter erroneously dated "17 March 2009" but sent on 17 August 2009.
(b) The matter was discussed between Mr Taylor and Mr Williams of Kell Moore on 17 August 2009.
(c) Kell Moore sent a further request by letter on 19 August 2009.
(d) Kell Moore sent a further request by letter on 8 Septmeber2009.
(e) Taylor & Whitty gave Kell Moore the requested authority on 11 September 2009.
The above conduct constitutes serious neglect, serious incompetence of a legal practitioner within the meaning of s 99(1)(a) the CPA. The conduct caused Kell Moore to have an incomplete understanding of the LEC Proceedings. This resulted in inaccuracies in the affidavits of Andrew Williams sworn 21 and 31 August 2009 supporting the Notice of Motion referred to sub-para 6(6) above and also meant that some of the orders sought in that motion were inappropriate. As a result, the matter was delayed while the motion and affidavits were corrected and the Hutchins Companies incurred further costs associated with preparing the Amended Notice of Motion filed 23 October 2009 and the affidavit of Andrew Williams sworn 27 November 2009 in support of it.
Particulars of allegations against Mr King
The allegations of serious neglect, serious incompetence of a legal practitioner within the meaning of s 99(1)(a) of the CPA against Mr King are as follows (defined terms are the same as for the Taylor and Whitty particulars above).
Failing to advise that the Hutchins Applicants' Amalgamation Claim be litigated separately
1. Mr King failed to advise Taylor & Whitty or the Hutchins Applicants to separate the Amalgamation Claim from the Validity Claims so that the Hutchins Applicants Amalgamation Claim could be run separately and not await the Validity Claims.
(1) Mr King knew or ought to have known the matters that it said Taylor & Whitty knew or ought to have known in sub-para 2(1) of the Taylor & Whitty particulars above.
(2) Mr King never advised Taylor & Whitty or the Hutchins Applicants of the above matter particularised in sub-para (1) above, despite the directors of the Hutchins Applicants having directly asked him questions regarding:
(a) whether their Amalgamation Claim was being "lost" in the Validity Claims; and
(b) whether the Validity Claims were not inconsistent with their Amalgamation Claim.
The directors cannot recall the dates of every occasion on which the above questions were asked of Mr King, but among them is the communication particularised at sub-para 2(3)(i) of the Taylor & Whitty particulars above.
(3) Taylor & Whitty joined in the LEC Proceedings number 42192 various other applicants, in relation to various other claims, as particularised in sub-para 2(4) of the Taylor & Whitty particulars above. Mr King did not advise against this course or advise of its negative consequences upon the Hutchins Applicants' as particularised in sub-para (1) above. Indeed, by letter to Taylor & Whitty of 4 December 2007, Mr King expressed the view that "I consider the addition of new parties to be a positive development, as it shows support for the case regarding the challenge to the WSP".
The above constitutes serious neglect and/or serious incompetence of a legal practitioner within the meaning of s 99(1)(a) the CPA. The conduct delayed the finalisation of the Hutchins Applicants' Amalgamation Claim. The conduct delayed the finalisation of the Hutchins Applicants' Amalgamation Claim.
The conduct caused the Hutchins Applicants to incur the following costs:
costs associated with preparing the Validity Claims;
costs associated with adding these parties to the LEC Proceeding;
costs associated with the Hutchins Applicant's attempt to extricate themselves from the LEC Proceeding through the Notice of Motion filed 24 August 2009; and
the necessity for the Hutchins Applicants to pay the Respondents costs of the LEC Proceedings to 24 August 2009 as ordered on 6 November 2009 as a condition of the Hutchins Applicants discontinuing the LEC Proceedings and recommencing the Amalgamation Claim as a separate proceedings.
Incompetent pleadings
2. [Not pressed]
Neglecting the conduct of the Amalgamation Claim in favour of the Validity Claims
3. Mr King neglected the conduct of the Hutchins Applicants' Amalgamation Claim in favour of the Validity Claims in the same manner as particularised against Taylor & Whitty in para 4 of the Taylor & Whitty particulars above. This conduct delayed the determination of the Amalgamation Claim. The Hutchins Applicants incurred unnecessary costs in terms of:
(1) preparing the Validity Claims; and
(2) the necessity for the Hutchins Applicants to pay the Respondents costs of the LEC Proceedings to 24 August 2009 as ordered on 6 November 2009 as a condition of the Hutchins Applicants discontinuing the LEC Proceedings and recommencing the Amalgamation Claim as a separate proceedings.
The conduct constitutes serious neglect and/or serious incompetence of a legal practitioner within the meaning of s 99(1)(a) the CPA.
Particulars as alleged against T&W and Mr Taylor will be referred to as T&W Part and particulars as alleged against Mr King will be referred to as King Part. The Applicants' counsel stated in closing submissions that T&W Part 4(1) and (2) were not pressed as a result of rulings on evidence made in the course of the proceedings concerning privilege over what occurred during mediation proceedings. Consequently these are not set out. T&W Part 4 was reduced to a single particular and was submitted to be part of Part 1. King Part 3 relies in turn on T&W Part 4. The same consideration applies to King Part 3, which can be considered part of King Part 1.
Evidence
Extensive affidavit and oral evidence was given in the hearing. In the course of the hearing I made numerous rulings on whether affidavit and oral evidence could be admitted due to claims of legal professional privilege and confidentiality of mediation proceedings. My rulings were generally to uphold claims of legal professional privilege and confidentiality of mediation proceedings so that much of the affidavit material filed could not be relied upon. An agreed chronology as between T&W and Mr Taylor and the Applicants was provided and follows, slightly modified. Mr King did not object to it being handed up and treated as an aide memoir. Not all the disputed matters identified in the chronology are particularised or raised by the Applicants' nine issues of disputed fact identified below in the summary of evidence and elaborated on in the Applicants' submissions (see par 74 - 94 below). Other litigation which the Applicants were or are involved in apart from the substantive proceedings include Porter v Minister for Natural Resources (06/41290) and native vegetation proceedings in the Supreme Court. Porter , commenced 22 December 2006 and discontinued 16 May 2007, related to challenges to the Water Sharing Plan for the Lower Murrumbidgee Groundwater Sources 2003 (the Plan). I mention these in order for the events in the chronology to be understood. Arnold v Minister Administering the Water Management Act (07/40049) and Harvey v Minister Administering the Water Management Act 2000; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [ 2008] NSWLEC 165 ; (2008) 160 LGERA 50) are also referred to in other evidence.
Date
Event
28 February 1997
Applicants purchase 17 properties. For rating (but not title) purposes, the lots are divided into three parcels, one owned by each company.
Before 1 January 2000
Hutchins Pastoral Company, Danwillach and Delta Creek (the Applicants) granted bore licences 50BL198153, 50BL198157 and 50BL198156 respectively, under the Water Act 1912 .
June 1999
Applicants approach the Department of Natural Resources (the Department) to combine their water rights.
September 1999
Department refuses the Applicants' request.
2000
Applicants again request to combine their water rights.
23 April 2001
Department links the Applicant's licences such that water could be extracted from any of them up to a single total figure.
December 2005
Mr Archibald commences work for T&W.
27 February 2006
Mr Hutchins writes to the Department regarding the way in which it planned to convert the Applicants' water rights into rights under the WM Act.
9 May 2006
Hutchins write to the Department regarding the way in which it planned to convert the Applicants' water rights into rights under the WM Act.
Late 2006
Applicants engage Pike Pike & Fenwick regarding Porter (a planned attempt to overturn the Plan).
8 September 2006
Hutchins write to the Department regarding the way in which it planned to convert the Applicants' water rights into rights under the WM Act.
1 October 2006
WM Act commences with respect to the Applicants' water rights. The Plan (as amended) commences. Applicants granted a single water access licence.
October 2006
Applicants engage Mr MacFarlane of Matthews & Dangar regarding the way in which the Department converted their water rights into rights under the WM Act.
October -November 2006
Exchange of correspondence between Matthews & Dangar and the NSW government regarding the way in which the Department had converted the Applicants' water rights into rights under the WM Act.
3 October 2006
Mr MacFarlane writes to the Department regarding the way in which it had converted the Applicants' water rights into rights under the WM Act.
9 November 2006
Mr MacFarlane writes to the Department seeking a response to his letter of 3 October regarding the way in which it had converted the Applicants' water rights into rights under the WM Act.
November 2006
Mr Taylor claims this is when the Hutchins first approached him. ( Disputed by Mr Hutchins. The contents of any conversation are also disputed .)
28 November 2006
Mr MacFarlane writes to the Department seeking a response to his letter of 3 October regarding the way in which it had converted the Applicants' water rights into rights under the WM Act.
30 November 2006
Department replies to Mr MacFarlane.
November / December 2006
Mr MacFarlane retires from practice. Mr Stanford recommends T&W.
5 December 2006
Hutchins meet T&W. ( Dispute as to what issues the Hutchins were interested in. Dispute as to the contents of the conversations that occurred.) Hutchins compose a facsimile attaching material regarding the Applicants' water rights to T&W. Mr Hutchins meets with Mr Taylor shortly afterwards.
6 December 2006
T&W receives faxed material.
18 December 2006
Hutchins fax further material. regarding the Applicants' water rights.
On or about 18 December 2006
Mr Taylor has discussions with Mr Hutchins.
19 or 20 December 2006
Mr Rossato contacts Mr Taylor.
19 December 2006
Mr Taylor consults Mr Taylor SC regarding application. Mr Taylor drafts an application to be filed in Court.
19 December 2006
Mr Taylor telephones Mr Hutchins and asks him for a cheque for a filing fee.
20 December 2006
The Hutchins drive to Finley to give a cheque for $1400 for filing fee.
20 December 2006
Mr Taylor tells Mr Archibald in Sydney to prepare to file applications.
On or about 20 December 2006
Mr Commins has a conversation with Mr Hutchins regarding T&W's involvement in water cases and Porter .
20 or 22 December 2006 and after
Mr Taylor receives instructions from Mr Commins.
20-22 December 2006
Mr Archibald and Mr Taylor confer regarding the applications.
20-22 December 2006
Mr Commins gives T&W $1318 as a filing fee for an application.
After 20 December 2006
Mrs Huggins and Mr Thompson contact T&W and give instructions.
Before or on 22 December 2006
Mr Taylor has telephone conversation with Mr Hutchins. Dispute as to what was said.
22 December 2006
T&W files a Class 4 application in the names of the Applicants, Commins Partnership and NA & J Investments and another in the names of the Rossatos and Huggins.
Early 2007
Mr Taylor allocates the matter to Mr Archibald. Mr Archibald takes instructions from the Hutchins and other applicants.
Early March 2007
Mr Hutchins has discussions with Mr Rossato regarding his case.
9 March 2007
Hutchins and Mr Rossato meet with Mr Taylor and Mr Archibald at the offices of T&W.
13 March 2007
T&W writes to the Applicants suggesting they get an opinion from Mr King and enclose a fee agreement. Hutchins agree sometime soon after.
16 March 2007
T&W files an amended application.
16 March 2007
Pike Pike & Fenwick's submission to the Ombudsman.
22 March 2007
T&W briefs Mr King.
27 March 2007
Mrs Huggins corresponds with the Hutchins and others regarding the Porter Ombudsman submission.
31 March 2007
T&W receives an opinion from Mr King.
5 April 2007
Mr Hutchins receives a letter from T&W enclosing their instructions to Mr King and his opinion.
On or about 5 April 2007
Mr Hutchins receives an invitation from T&W to attend a conference with Mr King in Sydney on or about 13 April 2007.
Sometime in April 2007
T&W instructs Mr King to draft Points of Claim (POC). Dispute over whether this occurred before or after the conference on 13 April 2007
13 April 2007
Conference between Mr Archibald, Mr King and Mr Hutchins in Sydney. Dispute over what was said and done at the conference.
20 April 2007
T&W files a further amended Class 4 application. The Rossatos and Huggins added as applicants.
20 April 2007
Short minutes filed pursuant to which the Rossato proceedings ( 06/41293) is discontinued and the applicants in that proceedings are added as co-applicants to the substantive proceedings. Directions hearing. Mr and Mrs Hutchins not present.
23 April 2007
T&W files a copy of the further amended application.
23 April 2007
T&W files POC dated 20 April 2007.
2 May 2007
Mr Hutchins receives email from T&W with a copy of the POC.
Shortly after 7 May 2007
T&W receives a letter from the Crown Solicitor's Office (CSO) requesting particulars. T&W instruct Mr King to draft a response.
14 May 2007
Hutchins receive advice from Mr Robertson SC in Porter that it has little prospect of success. They give instructions to discontinue it.
16 May 2007
Directions hearing. Mr King appears for applicants in several proceedings relating to the WM Act including in the substantive proceedings. Porter discontinued. The Hutchins attend but Mr Taylor and Mr Archibald do not. The Hutchins have a conversation with Mr King afterwards, the contents of which are disputed .
16 May 2007
T&W sends the Applicants a costs agreement regarding substantive proceedings, as well as an invoice for services rendered so far.
16 May 2007
T&W sends particulars to the CSO.
After 16 May 2007
Mr Taylor claims he had a number of discussions with Mr Hutchins and others about the addition of former applicants in Porter as new applicants in the present proceedings. Mr Hutchins does not recall any such conversations.
Between 16 May and 1 September 2007
Mr Hutchins claims he, on a number of occasions, expresses concerns to Mr Taylor and Mr Archibald regarding whether the Hutchins Companies' amalgamation claim was being "lost" in the validity claims. Disputed.
18 May 2007
Meeting of the applicants at Finley attended by Mr Hutchins, Mr Taylor, Mr Archibald, Mr King and others.
May-September 2007
Preparation for mediation.
24 May 2007
Mr Archibald receives an email from Mrs Huggins.
29 May 2007
Meeting at Colembally Bowling Club.
30 July 2007
Directions hearing. Mr Archibald attends. Mediation ordered for 10 and 11 September 2007.
10 August 2007
T&W sends report to clients.
30 August 2007
Meeting at Coleambally Bowling Club.
1 September 2007
Mr Hutchins gives Mr Archibald a document estimating his losses.
1 September 2007
Mr Hutchins sends Mr Archibald a letter setting out "our water situation".
3 September 2007
T&W engage Booth Associates Pty Ltd.
5, 7 & 13 September 2007
Booth Associates sends report (the Booth report) on the Applicants' losses to Mr Hutchins and Mr Archibald.
10-11 September 2007
Mediation.
12 September 2007
Conference with Mr King. Dispute over what was said.
18 September 2007
T&W receives letter from the CSO regarding alleged problems with the pleadings and particulars (no complaint made about the pleadings of the amalgamation claim).
30 August 2007
Meeting at Coleambally Bowling Club.
October 2007
Mr Archibald hands the matter over to Mr Brooks within T&W.
10 October 2007
T&W sends report to clients.
12 October 2007
T&W sends memo of fees to the Applicants.
November 2007
Mr Taylor instructs Mr Brooks to brief Mr Priestley.
26 November 2007
T&W sends email to all five clients including the Applicants.
29 November 2007
T&W holds a meeting at Finley for current and proposed applicants. Mr Hutchins did not attend but Mrs Hutchins did. New applicants discussed. Dispute about Mrs Hutchins' words at the meeting. Dispute over what was said by representatives of T&W.
29 November 2007
Hutchins receive a copy of a brief to Mr Priestley. Dispute over whether it had already been sent to Mr Priestley or whether it was a draft.
30 November 2007
Mr Hutchins telephones Mr Brooks. Dispute as to contents of the conversation.
30 November 2007
T&W files amended POC.
December 2007
Mr Archibald ceases work for T&W.
4 December 2007
Mrs Hutchins writes to T&W with comments on instructions to Mr Priestley.
6 December 2007
T&W files an amended POC.
10 December 2007
Mr Hutchins receives a report from Mr King.
14 December 2007
T&W files a further amended application.
17 December 2007
Meeting at Coleambally Bowling Club.
December 2007 to April 2008
Hutchins assist T&W prepare the matter for hearing (then set down to be heard in May 2008).
27 or 28 February 2008
Mr Taylor meets with Mr Hutchins and some or all of the other applicants to discuss how costs would be split. Dispute : Mr Taylor says the meeting occurred on 28 February; Mr Hutchins says it occurred on 27 February.
13 March 2008
Mr Hutchins receives a report from Mr King.
17 March 2008
Ms Bickerton of T&W emails draft affidavit to Mr Hutchins.
18 March 2008
Mr Hutchins swears an affidavit.
26 March 2008
Directions hearing in the native vegetation proceedings.
27 March 2008
Mr Hutchins forwards to Mr Taylor and Mr King correspondence from his accountant regarding the Department's calculation of the Applicants water rights.
3 April 2008
Mr Hutchins meets with Mr Williams of Kell Moore to discuss T&W's conduct of the proceedings.
5 April 2008
Hutchins write to T&W (letter dated 4 April 2008) expressing their "frustration and disappointment" with the management of the case.
7 April 2008
Mr Taylor has telephone conversation with Mr Hutchins.
7 April 2008
Mr Hutchins receives a report from T&W concerning advice from Mr King regarding the native vegetation proceedings.
7 April 2008
Applicants retain Kell Moore to advise in relation to T&W's conduct of the proceedings.
On or just after 7 April 2008
Mr Hutchins has a telephone conversation with Mr Taylor regarding his dissatisfaction with T&W's work.
10 April 2008
Mr Taylor receives Hutchins letter dated 4 April 2008.
11 April 2008
Mr Hutchins emails Mr Taylor regarding his concerns.
12 April 2008
T&W files an amended POC and a further amended application pursuant to leave given by Jagot J on 3 April 2008
18 April 2008
Mr Hutchins receives a report from Mr King to Mr Taylor regarding directions hearing of 26 March 2008 in the native vegetation proceedings.
22 April 2008
Mr Hutchins emails Mr Taylor and Mr King regarding his concerns with his cases.
24 April 2008
T&W files a further amended application and POC. More applicants added.
30 April 2008
Mr Priestley's opinion delivered.
1 May 2008
Mr Hutchins receives an email from Mr King regarding the substantive proceedings and the native vegetation proceedings.
12 May 2008
Mr Hutchins emails Mr King regarding his dissatisfaction and the issue of the way in which the Department had converted the Applicants' water rights.
18 June 2008
Harvey and Tubbo decisions handed down by Jagot J.
25 June 2008
Mr Hutchins telephones Mr Williams seeking advice regarding the Harvey and Tubbo decisions.
25 June 2008 (or shortly after)
T&W sends memorandum of fees to the Hutchins.
26 June 2008
Mr Hutchins calls Mr Taylor expressing concerns.
30 June 2008
Mr Williams telephones Mr Taylor regarding Kell Moore's involvement. Requests documents.
4 July 2008
Mr Williams writes to T&W. Mr Taylor telephones Mr Williams.
6 July 2008
Mr Taylor claims there was a telephone conversation between him and Mr Williams. Mr Williams denies this.
11 July 2008
Telephone conversation between Mr Taylor and Mr Williams.
15 July 2008
Mr Williams writes to Mr Taylor seeking additional information.
15 July 2008
Telephone conversation between Mr Taylor and Mr Williams.
16 July 2008
Kell Moore receives a bundle of FOI documents from Mr Hutchins, which includes a copy of the Class 4 application.
17 July 2008 (or thereabouts)
Applicants retain Kell Moore to act for them in the native vegetation proceedings.
18 July 2008
Mr Williams writes to Mr Taylor seeking copies of all pleadings since 22 December 2006 and states he is in receipt of the "Class 4 Application".
21 July 2008
Mr Williams has a telephone conversation with Mr Taylor about provision of pleadings. Mr Taylor provides most recent pleadings.
23 July 2008
Mr Williams receives documents from T&W, which he is told is the current pleading in the substantive proceedings. Mr Williams gives the Hutchins some preliminary advice shortly afterwards.
25 July 2008
Mr Taylor SC applies to vacate hearing.
31 July 2008 (or shortly after)
Mr Hutchins forwards a report from T&W to Kell Moore.
1 August 2008
Mr Williams has a telephone conversation with Mr Taylor.
22 August 2008
Applicants give authority for T&W to give the native vegetation file to Kell Moore.
26 August 2008
T&W receives Applicants' authority.
16 September 2008
Kell Moore receives T&W's native vegetation file.
17 September 2008
T&W files a second further amended application and a second further amended further POC.
29 October 2008
Mr Hutchins receives a report from T&W.
December 2008
Mr Hutchins says he instructs Kell Moore to terminate T&W's retainer in the substantive proceedings and to act for the Applicants.
11 December 2008
Kell Moore writes to T&W. ( Dispute over whether this was in fact a termination of retainer.)
11 December 2008
Mr Taylor has a telephone conversation with Mr Williams regarding the Hutchins leaving the substantive proceeding.
On or about 11 December 2008
Mr Williams contacts Mr King.
17 December 2008
Mr Hutchins writes to Mr King informing him of the Applicants' intention to leave the substantive proceeding. Mr King replies.
Sometime in 2008
Mr Wolff commences at T&W and works on the Hutchins matter.
23 January 2009
Kell Moore writes to CSO about the Applicants' future involvement in the substantive case.
3 February 2009
Mr Wolff receives a letter from the CSO seeking clarification whether T&W's consent earlier given to certain consent orders was on behalf of all the applicants.
4 February 2009
Mr Williams has a telephone conversation with Mr Taylor. Mr Williams tells Mr Taylor, among other things, that he would seek the Applicants' instructions regarding the foreshadowed adjournment of the substantive proceedings. Mr Williams asks for a history of the proceedings.
4 February 2009
CSO replies to Kell Moore and Mr Williams has a telephone conversation with the CSO's Ms Kiu.
5 February 2009
CSO writes to Kell Moore.
11 February 2009
Mr Williams has a telephone conversation with Mr Taylor giving the Applicants' consent to the proposed adjournment. Discusses the Applicants' future involvement in the case.
11 February 2009
Mr Wolff writes to Ms Kiu giving consent to certain orders on behalf of all applicants, including the Applicants.
12 February 2009
Mr Williams writes to Mr Taylor confirming consent to the proposed adjournment. Addresses the future involvement of the Applicants in the case.
20 February 2009
Kell Moore writes to CSO enclosing draft statement of claim.
3 March 2009
CSO writes to Kell Moore requesting the final statement of claim.
17 April 2009
Kell Moore writes to the CSO enclosing a finalised statement of claim and requesting certain undertakings.
17 April-23 June 2009
Mr Williams makes several phone calls to the CSO seeking a response to his correspondence of 17 April 2009.
12 May 2009 (AM)
Mr Williams has a telephone conversation with Mr Taylor regarding the substantive proceedings being adjourned to October 2009 and costs issues.
14 May 2009
Mr Wolff speaks to Mr Williams regarding the substantive proceedings being adjourned to October 2009.
23 June 2009
Mr Williams speaks with an officer of the CSO who informs Mr Williams that they were still seeking instructions.
23 June 2009
Kell Moore receives correspondence from CSO indicating that the CSO was still seeking instructions on its response to Kell Moore's letter of 17 April 2009.
17 July 2009
Mr Williams telephones the CSO seeking a response to Kell Moore's letter of 17 April 2009.
13 August 2009
Mr Williams telephones the CSO seeking a response to Kell Moore's letter of 17 April 2009.
17 August 2009
Kell Moore writes to T&W seeking their authority to view the Court file.
17 August 2009
Mr Taylor calls Mr Williams about getting advice from counsel.
17 August 2009
Mr Williams has a telephone conversation with Mr Taylor regarding Kell Moore's request for an authority to view the Court file.
Shortly after 17 August 2009
Mr Taylor seeks advice from Mr King regarding the Applicants' access to the Court file.
19 August 2009
Mr Taylor calls Mr Williams to let him know he is waiting for counsel's advice regarding access to the Court file.
19 August 2009
Kell Moore writes to T&W regarding Kell Moore's request for authority to view the Court file.
19 August 2009
Mr Taylor calls Mr Williams about being in Canberra next week.
21 August 2009
Mr Williams signs misjoinder motion and swears affidavit in support.
24 August 2009
Kell Moore files the misjoinder motion and an appearance as solicitors for the Applicants.
On or shortly after 25 August 2009
Mr Taylor becomes aware of the misjoinder motion and the appearance. He is still awaiting Mr King's advice regarding access to the Court file.
31 August 2009
Kell Moore receives correspondence from T&W. Kell Moore replies.
2 September 2009
Directions hearing on the misjoinder motion.
8 September 2009
Kell Moore writes to T&W reiterating that their retainer had been terminated in December 2008 and formally terminating any retainer T&W might consider it still had.
8 September 2009
Kell Moore writes a letter to T&W, on a "without prejudice save as to costs" basis regarding access to the Court file.
8 September 2009
Kell Moore makes further request for access to the Court file.
Shortly before 11 September 2009
T&W receives Mr King's advice regarding Kell Moore having access to the Court file.
11 September 2009
T&W gives Kell Moore authority to view the Court file.
23 September 2009
Kell Moore receives a letter from the CSO regarding the notice of appearance and authorisation to act on behalf of the Applicants.
25 September 2009
Mr Taylor has a telephone conversation with Dr Galbraith of the CSO regarding Kell Moore having filed an appearance.
28 September 2009
Kell Moore replies to the CSO's letter of 23 September 2009 regarding who acted for the Applicants. Copied to T&W.
28 September 2009
(approx.)
Kell Moore inspects the Court file.
29 September 2009
Kell Moore writes to the CSO indicating that, having gained access to the Court file, Kell Moore now realised that the misjoinder motion was based on a false premise and that there would be a need for amendments to the motion.
29 September 2009
Mr Wolff has a telephone conversation with Dr Galbraith. Dispute over what was said.
2 October 2009
Directions hearing. Applicants given leave to file an amended misjoinder motion.
21 October 2009
Kell Moore writes to the CSO requesting certain undertakings and explaining the proposed amended misjoinder motion.
22 October 2009
CSO replies to Kell Moore's letter of 21 October 2009.
22 October 2009
Kell Moore writes to T&W requesting access to their client file.
23 October 2009
Directions hearing. Amended misjoinder motion filed in Court. Matter stood over for two weeks to give the CSO time to decide whether it would grant the undertakings requested by Kell Moore.
23 October 2009
Kell Moore receives correspondence from T&W about outstanding costs.
4 November 2009
CSO writes to Kell Moore offering a form of undertaking.
5 November 2009
Kell Moore writes to the CSO and T&W regarding costs issues.
6 November 2009
Directions hearing. Misjoinder motion dismissed by consent. Undertaking given by the Crown. Applicants discontinue from the proceedings. Applicants ordered to pay Crown's costs, but not until any wasted costs motion against T&W had been dealt with.
19 November 2009
Kell Moore files proceedings in the Supreme Court regarding the way in which the Department calculated Applicants' water rights.
Evidence for the Applicants
The following affidavits were read by the Applicants: three affidavits of Mr Hutchins, a director of the Applicants, dated 28 April 2010 (in chief), 21 October 2010 (in chief) and 8 October 2010 (in reply); two affidavits of Mrs Hutchins, also a director of the Applicants, dated 28 April 2010 (in chief) and 8 October 2010 (in reply); and three affidavits of Mr Williams, solicitor for the Applicants, dated 27 November 2009 (in chief), 30 April 2010 (in chief) and 12 October 2010 (in reply to affidavits of Mr Taylor and Mr Wolff). All were also cross-examined, often at length.
Events referred in these affidavits are contained in the chronology and do not therefore need to be summarised in that regard. The chronology identifies those areas where there is a factual dispute as between the parties. As will become clear in my findings later in the judgment I do not consider I need to resolve all the issues of fact raised by the Applicants and consequently it is not necessary that I summarise all of the extensive written and oral evidence presented. I will set out some of the cross-examination although it plays a limited role in my determination.
Mr Hutchins
Mr Hutchins' affidavit dated 28 April 2010 identifies the land, bore licences and water access licences held by the Applicants and the nature of the amalgamation claim. In relation to the engagement of T&W he rang Mr Taylor on 5 December 2006 and faxed 18 pages of material to T&W, exhibited to the affidavit except for some missing pages. He met with Mr Taylor shortly afterwards and sets out the conversation he believes occurred at that meeting. Further material was faxed to T&W. He recalled some discussion about the validity of the Plan. His evidence about what was said at the meeting was otherwise given orally. He states that he did not give instructions to commence proceedings on behalf of the Applicants as joint applicants with any other parties or in relation to any challenge to the validity of the Plan or the WM Act. He gave T&W a cheque of $1400 in December 2006 which was a filing fee to commence the substantive proceedings.
Mr Hutchins refers to a telephone call with Mr Brooks on 30 November 2007 in which he states he complained about the joinder of additional parties.
Mr Hutchins states that he did not receive a copy of the Class 4 application filed on behalf of the Applicants and only saw this when Kell Moore obtained access to the Court file in September 2009. His affidavit refers to obtaining advice jointly with the Rossatos in March 2007, discontinuing Porter in May 2007, attending a directions hearing on 16 May 2007, preparation for mediation in September 2007, not agreeing to the joinder of further parties in November 2007 and his decision to approach Kell Moore. He made statements on numerous occasions to Mr Taylor and Mr Archibald that he was concerned that his amalgamation claim was being lost in the proceedings and that he did not want to challenge the validity of the Plan.
The affidavit dated 21 October 2010 states that he was not advised that the amalgamation claim was relatively simple and could be dealt with more swiftly than the validity claims, and that the longer the resolution of the amalgamation claim the more the Applicants would suffer loss of water. The affidavit in reply dated 8 October 2010 disputes a number of statements made in affidavits of Mr Archibald, Mr Brooks and Mr Taylor relied on by T&W and Mr Taylor. He responds to Mr King's affidavit about the conference on 13 April 2007 and denies that draft POC were provided to him at that meeting. He also disputes that there was discussion about pursuing a validity claim. He disputes there was a reference in the meeting to his football skills.
Mr Hutchins was cross-examined by counsel for T&W and Mr Taylor about the Applicants' involvement in Porter . Counsel pointed out that par 16 of Mr Hutchins' affidavit dated 28 April 2010 imparted a conversation between himself and Mr Taylor in which Mr Hutchins indicates that he was involved in Porter . Although Mr Hutchins did not believe that Pike Pike & Fenwick joined them as Applicants to those proceedings without instructions, he states that their objective in being part of Porter was to have the amalgamation issue heard, not to overturn the Plan. In May 2007, the Applicants discontinued those proceedings after receiving advice from Mr Robertson SC that they did not enjoy reasonable prospects of success in overturning the Plan. Mr Hutchins conceded that had they received favourable advice, the Applicants would have continued the claim.
When asked about his meeting with Mr Taylor in December 2006, Mr Hutchins did not remember expressing concern that Porter would not go ahead and said that at that time he did not want the Plan overturned. He admitted discussing Arnold . He recalled Mr Taylor telling him that he was looking at all avenues to challenge the government's decision as to the reduction of ground water entitlements, that the application needed to be filed urgently and that there was insufficient time to obtain advice from counsel. Mr Hutchins insisted that he did not want to keep his options open; he was not interested in the validity arguments and only wanted to have the amalgamation issue heard. Mr Hutchins admitted discussing the validity issues with officers of T&W, including Mr Taylor and Mr Archibald, in accordance with his affidavit in reply. He also admitted discussing them with Mr King on 13 April 2007. When it was suggested that after discontinuing Porter the Hutchins were interested in overturning the Plan, Mr Hutchins denied this.
With regard to the joinder of other applicants, in cross-examination Mr Hutchins said that he discussed the Hutchins' approach to T&W with Mr Rossato, Mrs Huggins and Mr Commins. In cross-examination it was suggested that Mr Hutchins did not complain to Mr Brooks on 30 September 2007 but that he was pleased with the addition of other parties. Mr Hutchins disagreed. Counsel for T&W and Mr Taylor also put to Mr Hutchins that at the end of 2007, Mr Hutchins was keen to have extra people added to the case so that the costs might be spread more thinly. Mr Hutchins replied that he was concerned about getting an indemnity from the new applicants so that costs from T&W and the Crown might be shared. It was suggested to Mr Hutchins that he did not express concern about the way the case was being conducted until April 2008 and even then, in the letter they wrote to the T&W of their frustrations dated 4 April 2008, the Hutchins did not complain about the additional applicants or the inclusion of the validity arguments. Mr Hutchins agreed. The letter from Kell Moore to T&W dated 4 July 2008 (exhibit 4) sent on behalf of the Applicants does not mention any complaint about the validity issues or of being part of a group of applicants. Counsel suggested that the letter accurately reflected the view of the Hutchins in July 2008. Mr Hutchins agreed.
In cross-examination by Mr King's counsel, Mr Hutchins accepted that when he was asked a question that he could not give an honest answer to, he would say "our claim was only the amalgamation claim". When asked whether Mr Hutchins could identify the part of the pleading that concerned the amalgamation claim and whether he could understand it, he replied in the affirmative. Referring to Mr Hutchins' affidavit in reply at par 6A, counsel asked Mr Hutchins to clarify which parts of the Points of Claim (POC) he thought were "hardly intelligible" but Mr Hutchins was unable to do so as he could not remember and did not know.
In relation to what occurred at the conference on 13 April 2007 (issue 4), Mr King's counsel directed Mr Hutchins to his affidavit of 28 April 2010, in which Mr Hutchins does not mention the meeting with Mr King on 13 April 2007. Mr Hutchins said he did not forget about the meeting at the time he swore this affidavit but chose not to include it because he did not think it was a "big deal" as it was a brief discussion which concerned only the amalgamation claim. He said that Mr King thought the best thing to do was to fight their case on a broader basis than Porter . Mr Hutchins disputed suggestions by counsel that Mr King told him there were several claims common to all actions and that it was clear there would be a group of people including the Applicants who would pursue the validity claims. The meeting is referred to in Mr Hutchins' affidavit in reply but he does not disclose that the validity claims were discussed.
When asked about the directions hearing on 16 May 2007 (issue 5) and other parties such as Mr Commins, Mr Thompson, Mrs Huggins and Mr Rossato, Mr Hutchins understood at that time that they were concerned with either amalgamation or reliance issues but not with the validity of the Plan.
In re-examination Mr Hutchins was asked about his level of education given his statement in chief that his selection of words is not very good at times, the topic of validity claims was common topic of conversation generally in the local area and what he meant in relation to some words in the letter of complaint dated April 2008, inter alia.
Mrs Hutchins
Mrs Hutchins' first affidavit was largely directed to confirming what was said in Mr Hutchins' affidavits as she was present at many of the meetings he referred to and heard many of the telephone calls attested to. Mrs Hutchins attended a meeting at Finley with Mr Brooks on 29 November 2007 and other potential parties where she says she did not agree to the joinder of additional parties. She disputed Mr Brooks' evidence of what was said at that meeting. She overheard the telephone call between Mr Hutchins and Mr Brooks the following day, 30 November 2007 and confirmed Mr Hutchins' recollection of that conversation.
Mrs Huggins
The Applicants also read an affidavit of Mrs Huggins, dated 25 October 2010. Mrs Huggins states she and her husband, Mr Huggins, are parties to the substantive proceedings in this Court. She is aware that Hutchins Pastoral Company was also involved in the proceedings but has now ceased to be a party. Annexed to her affidavit is a copy of the original Class 4 application filed on 22 December 2006 (06/41293) identifying Mr and Mrs Huggins and the Rossatos as the applicants in those separate proceedings. Replying to an affidavit of Mr Taylor, Mrs Huggins states she was referred to T&W by Mr Commins regarding water allocation issues. In December 2006 she made contact with an officer of that firm indicating that she and her husband "wished to be involved in any proceedings relating to seeking to redress, water or compensation for losses". She states that she was aware of others, including that "the Hutchins family and a few other businesses severely affected by the water policy change process had also asked T&W to act on their behalf". Replying to an affidavit of Mr Archibald, Mrs Huggins recalls that she received an email invitation to meet Mr King and others on 13 April 2007 "to discuss the claim which was common to us". She states she does not recall being informed that Mr Hutchins and another had also been invited to a meeting with Mr King in Sydney on the same day. She recalls that although Mr and Mrs Hutchins attended a collective meeting at another time for wide ranging discussions, they did not fully participate as they left the meeting early. Replying to an affidavit of Mr King, Mrs Huggins recalls that "after the formal part of the mediation, Mr Hutchins repeatedly expressed concern about the fact that no negotiations were taking place in respect of his amalgamation claim."
Mr Commins
The Applicant also read an affidavit of Mr Commins dated 5 August 2010. Mr Commins is a director of Commins Partnership Pty Ltd, a party in the substantive proceedings. Mr Commins provides a brief summary of his company's participation in Porter . He states that on or about 20 December 2006 he spoke with Mr Hutchins and was told that T&W was "running a case for the Murray Ground Water Irrigators (otherwise known as the Arnold case)". Mr Commins states that he made preliminary enquiries directly to T&W about commencing class action litigation, but did not discuss any of this with Mr Hutchins. Mr Commins recalls that there was a deadline by which any issues concerning the Plan had to be filed of 22 December 2006. Mr Commins paid a filing fee of $1318 to T&W. He understood the filing fee related to an action to be instituted by T&W on behalf of Commins Partnership Pty Ltd and two other parties who were not the Applicants.
In reply to an affidavit of Mr Taylor, Mr Commins states that he was not contacted by Mr Hutchins "and asked by him to join the action that he was proposing to commence with Taylor & Whitty". Mr Commins disagrees (with the statements in Mr Taylor's affidavit) that Mr Taylor telephoned him to discuss the Court applications before they were commenced. Mr Commins understood the points of claim relating to his multi-party proceedings which he did not understand would include the Applicants were in relation to challenging the validity of the Plan. He also understood that the proceedings commenced by T&W on behalf of the Applicants and others related to amalgamation claims which were combined with proceedings (also issued by T&W) for other parties which included challenging the validity of the Plan. Mr Commins understood "that the initial proceedings that had been instituted by Taylor & Whitty were related just to the reliance issue and that following the advice of Mr Peter King, they were subsequently expanded to include issues relating to the validity of the water sharing plan".
Dr Galbraith
Dr Galbraith gave oral evidence. He is a senior solicitor employed by the Crown Solicitor's Office (CSO) since May or June 1995. The CSO was instructed soon after six or seven matters were commenced in late 2006 and early 2007 challenging the validity of the amendments to water sharing plans made under the WM Act, including the substantive proceedings. Dr Galbraith was the senior solicitor on these matters until April or May 2010.
Dr Galbraith's initial knowledge of Kell Moore's involvement in the matter was when he received a letter dated 23 January 2009. He understood their involvement in the substantive proceedings was to advise the Applicants in respect of what appeared to be a dispute between the Applicants and T&W who were the solicitors on record for all the applicants at that time. Dr Galbraith did not recall when he first started communicating with T&W about Kell Moore's involvement. He recalled the conversation with Mr Taylor of 25 September 2009 and that he called T&W because they had not filed affidavits according to directions. He had made a file note of that conversation. Dr Galbraith also recalls a conversation with Mr Wolff on 29 November 2009 which he initiated because he received a copy of a notice of change of solicitor from Kell Moore prior to receiving a copy of a notice of ceasing to act from T&W. In his file note of that date, Dr Galbraith recorded Mr Wolff saying that the T&W's retainer had not been terminated and that the filing of the notice of change of solicitor by Kell Moore was premature.
Evidence for T&W and Mr Taylor
The following affidavits were read: affidavit of Mr Archibald, lawyer, dated 10 June 2010; affidavit of Mr Brooks, lawyer, dated 11 June 2010; and two affidavits of Mr Taylor, solicitor and director of T&W dated 21 June 2010 and 11 October 2010 (supplementary). As much of the factual material is identified in the chronology it is not necessary to summarise all it.
Mr Archibald
In his affidavit dated 10 June 2010 Mr Archibald states that he was employed as a lawyer with T&W from December 2005 to December 2007. He annexes copies of two Class 4 applications he filed at the Court registry on 22 December 2006 on the instruction of Mr Taylor. The application for 06/41292 identifies the Applicants and two others as the applicants in the proceedings. The application for 06/41293 identifies four individuals (not Hutchins parties) as the applicants. Mr Archibald states it was his intention, following analysis of each clients' case and advice from counsel, that amendments to the applications would be likely to be made. In early 2007 Mr Archibald took detailed instructions from Mr Hutchins and the other clients on behalf of whom the two Class 4 proceedings had been commenced.
Mr Archibald states that on a number of occasions he attended meetings with the Hutchins and the other clients in the proceedings to discuss the litigation and the claims each client wished to make. He discussed invalidity arguments with Mr Hutchins. Mr Archibald states that at no time did Mr or Mrs Hutchins tell him that they did not want invalidity arguments included in the case. At no time did the Hutchins inform him that they did not want any of the other clients as co-applicants in the proceedings. It was his understanding that the Hutchins, together with the other clients, wished to bring a single action in their various names in order to save costs and to include in the action arguments that the Plan was invalid.
On or about 13 April 2007 Mr Archibald attended a meeting in Sydney with Mr King and Mr Hutchins during which they discussed Mr King's written advice dated 31 March 2007 including the amalgamation claims and validity arguments. He states that at no stage during the meeting did Mr Hutchins express any complaint about anything in the advice or anything else said at the meeting. In accordance with the advice Mr Archibald instructed Mr King to draft POC which were filed with the Court on 23 April 2007. Shortly thereafter Mr Archibald sent a copy of the POC to the Hutchins. At no time did the Hutchins raise any question or concern with Mr Archibald about the substance of the POC or make any complaint about the parties named. At some stage in 2007 Mr Archibald agreed with Mr Hutchins that as costs (of the proceedings) were now being shared five ways, and as the Hutchins' had paid the entirety of the application filing fee, there should be an adjustment on the Hutchins' account with T&W.
Mr Archibald attended a meeting with Mr and Mrs Hutchins and other clients at the Coleambally Bowling Club on 29 May 2007. At no time at, or after, the meeting did they express any concern to Mr Archibald about the inclusion of validity arguments in their proceedings or about the possibility of adding further applicants to their case. Mr Archibald denies that Mr Hutchins expressed any concerns to him between 16 May 2007 and 1 September 2007. Mr Archibald attended the mediation for the matter on 10 - 11 September 2007, and in October 2007 passed carriage of the Hutchins matters to Mr Brooks.
Mr Archibald was cross-examined by the Applicants' counsel about his recollection that he did not recall any complaints from the Applicants. He was also cross-examined about his familial relationship with Mr Taylor because he is married to Mr Taylor's brother's (Mr Taylor SC) daughter.
Mr Brooks (issue 8)
In his affidavit dated 11 June 2010 Mr Brooks states that he has been employed as a solicitor by T&W since May 2005. From some point in 2007 he assisted Mr Taylor and Mr Archibald in the litigation of the substantive proceedings. From late 2007 Mr Brooks assumed shared responsibility for the case under the supervision of Mr Taylor. Mr Brooks states that he attended a meeting at the Finley office of T&W, with Mr Taylor and "the five original clients" (including Mrs Hutchins but not Mr Hutchins) on 29 November 2007. At no stage during the meeting did Mrs Hutchins say she did not agree to extra applicants being added or express any complaints about there being multiple applicants in the case.
In reply to Mr Hutchins' affidavit of 28 April 2010, Mr Brooks denies a telephone conversation with Mr Hutchins on 30 November 2007 during which Mr Hutchins claims he complained about additional parties joining the proceedings. Mr Brooks states that he spoke with Mr Hutchins on a number of occasions about how the costs would be split with the new applicants, and at no time did Mr Hutchins make any complaint about new applicants being joined. At all times from 29 November 2007 Mr Brooks understood all the clients were very keen to add additional applicants in order to reduce their share of the costs. Mr Brooks states that if he was aware there was not unanimous agreement regarding the joining of additional applicants he would have reported it immediately to Mr Taylor. On 17 December 2007 Mr Brooks attended another meeting with the clients (including Mr Hutchins) at Coleambally, and states that at no stage during that meeting did Mr Hutchins express any disagreement with the joinder of additional applicants or make any complaint. Mr Brooks states that the matter was initially set down for hearing in April 2008 and subsequently in August 2008. He states that Mr Hutchins assisted with preparation of the case and at no stage expressed any complaint about the claims being made in the case or the number of applicants.
Mr Brooks was cross-examined by the Applicants' counsel challenging his recollection of events.
Mr Wolff (issue 9)
In his affidavit dated 18 June 2010, Mr Wolff states that he was employed by T&W from 2008 until 2010, and that from 2007 he assisted Mr Taylor with the substantive proceedings. Mr Wolff states that it was his understanding that T&W remained the solicitors on the record for all the applicants, including the Applicants, as there could only be a single solicitor on the record in litigation. Regarding Dr Galbraith's file note dated 29 September 2009 of their telephone conversation, Mr Wolff does not recall the words he used. However, he was of the view that the filing of a notice of change of solicitor by Kell Moore was premature as he understood the Hutchins remained undecided regarding the proceedings.
Mr Wolff was cross-examined by the Applicants' counsel challenging his recollection of events.
Mr Taylor
In his affidavit dated 21 June 2010 (redacted following objections and matters of privilege) Mr Taylor states that T&W continues to act as the solicitors for all the applicants in the substantive proceedings. Many of the documents contained in T&W's file relating to the proceedings are privileged, and Mr Taylor states he is not instructed to waive privilege over any privileged material. In or about late November 2006 Mr Taylor had a short meeting with the Hutchins and conveyed that T&W were acting for a number of other groundwater irrigators in the lower Murray area for the purpose of challenging the government's decision which reduced groundwater entitlements, and invited Mr Hutchins to provide the relevant documents as soon as possible and to talk to Mr Archibald.
Exhibited to Mr Taylor's affidavit is a copy of a facsimile dated 5 December 2006, sent 6 December 2006, from Mr Hutchins to Mr Archibald providing copies of documents outlining the history of extraction calculations for the Applicants' properties (exhibit 1 tab 1). In addition to receiving another facsimile on or about 18 December 2006, Mr Taylor had two discussions with Mr Hutchins, one by telephone and the other at Mr Taylor's office where they discussed the amalgamation issues, other possible causes of action (including validity claims), Porter , the costs of litigation, and the limitation period. Mr Taylor was of the view that the three month limitation period for challenges to entitlements under the Plan was to expire for the Applicants on 23 December 2006. He indicated to Mr Hutchins that there was insufficient time to obtain advice from counsel about appropriate causes of action in the first instance. Mr Taylor said that an application seeking a broad range of relief should be filed before close of business 22 December 2006 to preserve their interests and that it could be amended later. According to Mr Taylor, Mr Hutchins responded to the effect that he knew other people with similar claims and that he would contact them "and ask them to let me know whether they will join me and share the costs".
Mr Taylor states that on 19 December 2006 he obtained advice from Mr Taylor SC about the form of application to be filed to preserve the position of the clients, and thereafter drafted an application. After a request from Mr Taylor, Mr Hutchins attended T&W's Finley office with a cheque for $1400 for the application filing fee. In the period 20 - 22 December 2006 Mr Taylor spoke for the first time with three other persons who subsequently became parties. As at 22 December 2006 it was Mr Taylor's belief that the Hutchins' had invited these other persons to join the action.
On 22 December 2006 Mr Taylor instructed Mr Archibald to file two applications (one in the name of individuals and one in the name of corporations). Mr Taylor states that before the applications were filed he spoke with each client about signing the application on their behalf. When he drafted the applications, Mr Taylor had the expectation that they would be amended once more detailed instructions had been obtained from the clients and advice was obtained from counsel. From early 2007 until approximately October 2007, Mr Archibald had conduct of the cases under Mr Taylor's supervision.
The balance of his affidavit outlines further actions taken by Mr Taylor in relation to the matter. He states on several occasions that the Hutchins did not express to him any misgivings about their participation in these proceedings. He also attaches copies of correspondence between his office and Kell Moore in 2007 and 2008 concerning the proceedings.
In cross-examination by Mr King's counsel he stated that in March 2007, at the time T&W instructed Mr King, it was Mr Taylor's understanding that the Applicants wanted to advance arguments on the validity claims and to be co-applicants with other clients of his in those proceedings. T&W briefed Mr King to provide answers to a number of particular questions.
In cross-examination by the Applicants' counsel, Mr Taylor said his normal practice was to keep file notes but he admits that there are a number of conversations for which he has not indicated that there are file notes or said that he did not write file notes for them.
The Applicants' counsel put to Mr Taylor that his first meeting with the Hutchins occurred on 5 December 2006, not in November as stated in his affidavit (disputed issue of fact 1). Mr Taylor replied that he believed it occurred before that date but that he does not have a file note of that conversation. Counsel suggested that the earlier date was not supported by the fact that material was faxed to T&W on 6 December 2006 and the facsimile message refers to a telephone conversation. However, Mr Taylor suggested that the message could be referring to a telephone call with Mr Archibald on 5 December 2006 as he recalled referring Mr Hutchins to Mr Archibald and that the facsimile was addressed to Mr Archibald. Counsel suggested to Mr Taylor that without taking a file note of that conversation, he could not be certain that the conversation occurred in the way in which he deposed it in his affidavit. Mr Taylor disagreed, saying he could remember the substance of the conversation, which meant he could remember this belief as to what Mr Hutchins was bringing to him as a problem but not the exact words used or the order in which they were said.
Counsel put that all the documents faxed to T&W by the Applicants related to amalgamation claims. Mr Taylor could not recall all of the pages he was sent but based on material exhibited to affidavits which is missing some pages, he agreed that they all relate to the amalgamation claim. Mr Taylor agreed that all the material summarised in the body of the file note of the conversation with Mr Hutchins on 18 December 2006 relates to the amalgamation claim and the word "validity" appeared only in the margin which contained Mr Taylor's comments on the material in the body of the file note. When counsel suggested that Mr Hutchins mentioned only the amalgamation claim during that meeting and that it was Mr Taylor who mentioned validity, he accepted this.
Counsel also put that during the conversation on 18 December 2006, Mr Hutchins did not offer to get other people into the matter. Mr Taylor disagreed with this proposition but admitted that there was nothing in the file note of 18 December 2006 to this effect. It was suggested that Mr Taylor misremembered Mr Hutchins' remark and that in fact, what Mr Hutchins had said was he had told other people who had also been in Porter that he had visited Mr Taylor. Mr Taylor said that as far as he could remember, he was not aware that Mr Hutchins had told anyone else about the meeting but after the meeting, he was contacted by individuals who were previously unknown to him.
When asked whether Mr Taylor had express instructions from the Applicants to commence proceedings in their name jointly with other people, Mr Taylor admitted that he did not (disputed issue of fact 2). He wished to clarify that every person who came to him after the discussion with Mr Hutchins on 18 December 2006 was unknown to him and either directly or indirectly came through Mr Hutchins' contact with them. In circumstances where there were identical pleadings and where there was a time limit to commence proceedings, it seemed to him to be the best choice to commence proceedings jointly. He assumed he could do this because the other parties had previously known Mr Hutchins.
Mr Taylor (issue 2) admitted to filing two applications, one in the name of all the corporate parties and one in the name of all the individual parties and that in hindsight, he could have filed one combined application. He explained this was because the other people were introduced as a result of a discussion with Mr Hutchins and they had the same limitations and identical claims. There were going to be opportunities to separate if necessary but Mr Taylor was not in a position to advise as to the claims because it was just before the Christmas vacation period and it was not possible to obtain counsel's advice as to the nature of their rights or their claims.
Mr Taylor did not personally send a copy of the application filed 22 December 2006 to the Applicants and did not have any record of anyone else in the firm sending it either. Had there been evidence in the file that the application was sent, it would have been in his affidavit. Mr Taylor disagreed with the proposition that the reason his firm did not send the application to the Applicants was because it was evidence that he had commenced proceedings in a manner inconsistent their instructions.
Referring to par 7 of Mr Taylor's affidavit dated 21 June 2010, counsel put to Mr Taylor that the words he attributed to Mr Hutchins were incorrect and that rather than saying "I'm not sure if it deals with all my issues anyway", he actually said, "I'm not sure it deals with my issue, anyway", referring to the amalgamation claim. The Applicants' counsel further put to Mr Taylor that Mr Hutchins said he was not interested in the validity claims, but only in the amalgamation claim. Mr Taylor disagreed with these propositions.
Contrary to par 21 of Mr Taylor's affidavit dated 21 June 2010, it was suggested to him that Mr Hutchins did not invited Mrs Huggins to join the action, as stated in par 12 of her affidavit. Mr Taylor conceded that this was possible.
The Applicants' counsel questioned Mr Taylor about par 23 of his affidavit dated 21 June 2010, (issue 3) where he says he rang each client after he had completed the initial application. He recalled reading it to them but did not spend a lot of time in relation to the content because he understood that there was urgency in making sure that the application was filed. Counsel directed Mr Taylor to par 25 - 26 of Mr Commins' affidavit and par 13 of Mrs Huggins' affidavit in which they similarly express no recollection of Mr Taylor discussing the content of the application. Moreover Mrs Huggins found it unlikely because then she would have known that Mr Rossato was included in the application (06/41293). Mr Taylor partially disagreed with this evidence in that he read the single applications in their original form to the clients, but Mrs Huggins' evidence was correct in relation to no identification of other parties being joined. Although there was no file note of the conversation, Mr Taylor disagreed with counsel's suggestion that he did not read out the application to Mr Hutchins.
At par 24 of his affidavit dated 21 June 2010, Mr Taylor states that "Mr Hutchins was the client to whom [he] spoke most often about the case". The Applicants' counsel suggested that this was because Mr Hutchins' calls were memorable as he was complaining and constantly asking about his amalgamation claim. To the contrary, Mr Taylor said Mr Hutchins was an enthusiastic member and called to ask whether more material was needed or to mention anything that he felt would help the whole case.
When questioned about the joinder of other parties in cross-examination by the Applicants' counsel, Mr Taylor insisted that during discussions after the discontinuance of Porter , neither Mr nor Mrs Hutchins expressed "any objection or complaint about the possibility of additional applicants being added". Similarly with regard to the meeting at Finley on 29 November 2007, Mr Taylor said that Mrs Hutchins did not express any objection or complaint about additional parties being added.
Evidence for Mr King
Two affidavits of Mr King dated 29 June 2010 and 3 November 2010 were read. In the former affidavit Mr King states that he is junior counsel to Mr Taylor SC for the Applicants in the substantive proceedings. T&W are his instructing solicitors for all applicants. He was first briefed on 22 March 2007 and received instructions from various persons including Mr Archibald, Mr Brooks and Mr Wolff under the supervision of Mr Taylor.
Upon receiving his instructions on 22 March 2007 Mr King perused two Class 4 applications filed by T&W on 22 December 2006, and the amended applications filed on 16 March 2007. Mr King formed the belief that the Applicants, along with other persons, had given T&W instructions to commence proceedings and that such persons consented to being joined as parties to the action challenging the Plan made on 1 October 2006. Mr King was also briefed in two similar matters including the Arnold proceedings.
Mr King is not aware of the circumstances surrounding T&W's preparation and filing of the Class 4 applications or the amended applications or whether they obtained advice about the form of the applications. Mr King identifies that in an endeavour to reduce costs he entered into a retainer and costs agreement with the Applicants and another party through the offices of T&W. At no time was he advised or instructed that the Applicants objected to the sharing of costs or the costs agreement. On 31 March 2007 Mr King provided a written advice responding to various questions put to him by T&W.
During the conference with Mr Archibald and Mr Hutchins on 13 April 2007, Mr King provided a draft POC which Mr Archibald and Mr Hutchins appeared to read. Mr King recalls that he went through each cause of action in his draft POC with Mr Archibald and Mr Hutchins in detail. Mr King suggested they consolidate the actions to save costs and for the sake of convenience. At no stage was he instructed that the Applicants did not wish to be parties to the proposed consolidated proceedings.
As instructed, on 23 April 2007 Mr King appeared in the Court before Jagot J who made orders consolidating the proceedings with the consent of the CSO. Following detailed discussions between the representatives of the parties, consent orders were made by Talbot J on 18 May 2007 for the further conduct of the proceedings including discovery and interrogatories. On that date Mr King recalls exchanging pleasantries with the Hutchins and indicated he was pleased with the timetabled outcome for the Applicants.
On 11 - 12 September 2007, Mr King appeared at a conjoint mediation for the applicants in three Class 4 proceedings (including the Applicants) relating to three different water sharing plans. Mr Hutchins was in attendance together with Mr Taylor and Mr Archibald. Mr King recalls that Mr Hutchins was actively involved in the mediation, and in preparation for it had commissioned a detailed analysis of his alleged financial losses (resulting from the water sharing plan decisions) from Booth Associates Pty Ltd (the Booth report). Mr King does not believe he said words to the effect "you will get your water back" to Mr Hutchins.
Mr King attended a meeting of interested applicants at the Finley RSL Club on 15 December 2007. In early March 2008 Mr King was informed that Mr Taylor SC was instructed to lead as senior counsel at the substantive hearing. After consultation with Mr Taylor SC and T&W, the application and POC were further amended in September 2008.
On or about 11 December 2008 Mr King recalls being informed by Kell Moore that T&W's instructions in the related Supreme Court proceedings had been terminated, and that Kell Moore would be instructing him in the conduct of those proceedings. Mr King was then instructed by Kell Moore for a further 12 months.
Mr King states that at no stage at the meetings or discussions with the Hutchins or any of his instructing solicitors was he instructed that the Applicants did not consent or withdrew consent to being the lead applicant. During 2008 Mr King was not instructed to redraft or amend the pleading in the action except to add or remove parties.
The additional affidavit of Mr King dated 3 November 2010 corrects the dates of mediation to 10 - 11 September 2007, inter alia.
In cross-examination by the Applicants' counsel concerning the conference with the Applicants on 13 April 2007, counsel put to Mr King that he did not go through the POC or give the Applicants a copy of it. Mr King disagreed and clarified that he was concerned to ensure that he made a good impression on T&W and that the matter was conducted efficiently. He was particularly interested in obtaining clear instructions in relation to the Applicants' case because of the confusion with respect to the commencement of two sets of proceedings within the three month time bar period by two different solicitors.
Secondly, it was put to Mr King that he did not get instructions to start preparing the POC until after the conference of 13 April 2007. Mr King said that after Biscoe J made directions on 30 March 2007, he discussed with Mr Archibald the desirability of having at least a draft POC for consideration at the conference. He obtained instructions to settle the POC after the conference. Thirdly, counsel put that Mr King did not go through the possible causes of action in the document with the Applicants in the way suggested in his affidavit. Mr King disagreed; he discussed the pleadings, a pleading program, an amended application and POC. He was concerned to ensure that T&W was aware of Mr King's understanding of the claims which the Applicants sought to advance. Fourthly, counsel put that Mr King did not discuss with the Applicants the consolidation of proceedings with other parties. Mr King replied that Mr Hutchins was interested in saving costs in a common attack on the Plan or challenge to the Plan and that where there were additional claims, such as amalgamation claims, they should be addressed in the one action, if possible.
Fifthly, counsel put that Mr Archibald did not mention Mr Hutchins' football skills in an analogy relating to leading the class action. This was inaccurate according to Mr King, who recalled that at the end of the conference, Mr Archibald suggested that Mr Hutchins could lead the action because of his football skills. Mr King recalled specific details about Mr Hutchins' footballing history.
Applicants' submissions
The relevant principles applying to the determination of an order under s 99 of the CP Act are identified in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300 and Kelly v Jowett [2009] NSWCA 278; (2009) 76 NSWLR 405. It is necessary to understand the legislative framework for the main proceedings in order to understand the case. The management of bore licences under the Water Act 1912, water access licences under the WM Act and the conversion of Water Act entitlements to the WM Act scheme (Sch 10 WM Act) have to be understood. Appendix 4 of the Plan has rules for determining history of extraction and includes r 10 which states:
Where properties have been amalgamated, all extraction prior to amalgamation will be combined and together with extraction occurring after amalgamation will be used to calculate [history of extraction].
The Applicants' amalgamation claim is that each of the companies owns a separate parcel of land for which each was granted a separate bore licence under the Water Act. In calculating their water allocations the Minister and his Department treated the three parcels of land owned by them as if amalgamated for the purpose of r 10. As two licences had low or zero extraction years for the relevant period and the benefit of this was lost as a result of the amalgamation, the Applicants' water entitlements were lower than they would have been if treated separately.
T&W Part 2 - joining further parties and causes of action to the proceedings
In relation to T&W Part 2(1) and (2), as stated above at par 243 the Court can only speculate (which it should not do in a costs application) about whether the validity claims were complex, would take time and be costly, that the addition of further applicants would add to the costs and the time taken to finalise the matter and the longer the delay in the resolution of the amalgamation claim the more they would suffer loss of water. As pointed out by counsel for T&W and Mr Taylor this also assumes that the claim would be successful, a conclusion which is outside the scope of this costs application ( Lai Qin at 624). There is no evidence to support these submissions that such legal advice should have been given and that the amalgamation claim should be split while the validity claims were adjourned to await the outcome of other cases on appeal. The full extent of advice as referred to on numerous occasions in the evidence given to the Applicants and the context for it is not known because of legal professional privilege. As submitted by the Respondents, that loss of water to the Applicants would result is not a legal matter about which advice should be given, and is a matter self-evident to the Applicants. A claim based on this particular cannot be upheld and any evidence which went to this question does not need to be considered.
Further as submitted (par 150) the Applicants were aware of the validity claims since May 2007 on their own evidence.
Consequently, I do not need to resolve factual issue 6 of whether Mr Hutchins made numerous oral complaints to Mr Taylor and other employed solicitors of T&W before sending the first letter of complaint dated 4 April 2008. T&W Part 2(3) identifies several occasions on which the Hutchins allege that they told Mr Taylor and his employed solicitors of their concerns that their claim was being "lost" including on an unknown number of times between 16 May 2007 and the mediation in September 2007, during and after the mediation in September 2007 to Mr Taylor and Mr Archibald and in a telephone call on 26 June 2008. Mrs Hutchins also attended a meeting at Finley on 29 November 2007 at which she says she raised concerns about other parties being joined as the Applicants were concerned only with their amalgamation claim. On 30 November 2007 Mr Hutchins spoke at length on the telephone to Mr Brooks concerning whether more parties ought be joined in the proceedings in this Court. Further, sometime in December 2007 Mr Hutchins expressed his concern to Mr Taylor that adding more parties would complicate and delay proceedings. The content of the conversations identified by the Applicants as when complaints were made is all disputed by Mr Taylor, Mr Archibald and Mr Brooks, whose evidence collectively was that no such complaints were made to them. I would need to make findings as to credit given the different evidence and it is unnecessary to do so.
Also particularised (Part 2(3)(i)) is a conversation with Mr King after a directions hearing at court on 16 May 2007, which I will refer to in relation to Mr King.
Part 2(4) refers to the joinder of further parties on the following dates:
(a) 22 December 2006 (this was considered above in relation to Part 1).
(b) 20 April 2007 the Rossatos and Huggins were joined.
On 20 April 2007, Jagot J gave leave for the applicants in proceedings number 06/41293 (the Huggins and the Rossatos) to discontinue the proceedings and to be joined as co-applicants in the substantive proceedings. At the hearing not much was said by the Applicants about the joinder of these further parties on this date and it is not clear if it is pressed. There is no evidence of a complaint made by the Applicants at the time of the joinder of the Rossatos. As identified in the submission for T&W and Mr Taylor (par 165) the Hutchins joined with the Rossatos to get advice jointly from Mr King in March/April 2007 and entered into a joint costs agreement. Of the additional matters raised by T&W and Mr Taylor in submissions (par 169) the most telling is that there is no evidence of costs being wasted within the Court process or outside it as a result of this joinder.
(c) 14 December 2007
Joinder of a large number of parties on 14 December 2007 followed the unsuccessful mediation in September 2007. Issue 8 raised by the Applicants concerns events at a meeting with Mr Brooks and others on 29 November 2007 at Finley attended by Mrs Hutchins where joinder of additional parties was raised. While there was dispute in the evidence of Mrs Hutchins and Mr Brooks about whether there was agreement to the joinder of other parties at the meeting, in the course of the hearing the focus shifted to the telephone call between Mr Hutchins and Mr Brooks on the following day. The next day, 30 September 2007, Mr Hutchins had a telephone discussion with Mr Brooks where Mr Hutchins appeared to reluctantly agree to the joinder of further parties as identified in the Applicants' submissions at par 103. Regardless of any dispute about what was said at the meeting in Finley on 29 November 2007, I agree with the submissions for T&W and Mr Taylor (par 167) that the evidence concerning the telephone call on 30 November 2007 between Mr Hutchins and Mr Brooks suggests reluctant agreement to the joinder of further parties on Mr Hutchins' part. In those circumstances there does not appear to be any basis for submitting that this joinder of multiple parties occurred in the absence of the Applicants' instructions. There is no basis for finding that the Applicants' instructions were implemented in a seriously negligent or seriously incompetent manner.
(d) 24 April 2008
No submissions were made about this joinder and apart from the fact it occurred I am unable to draw any conclusions about it.
The Applicants have not established serious neglect or serious incompetence on the part of Mr Taylor or T&W by the joinder of additional parties in the manner specified in the particulars.
T&W Part 3, 4 and 5
Part 3 was not pressed at the hearing. Part 4 was reduced in final submissions to one particular and subsumed into Part 1. Part 5 sets out the unnecessary costs said to have been incurred by the Applicants for which reimbursement is sought and does not need to be separately considered.
T&W Part 6 - continuing to assert retainer after its termination
Part 6(1) identifies that Mr Hutchins wrote to Mr Taylor on 4 April 2008 stating he intended to engage new lawyers. Part 6(2) states the retainer was terminated by letter dated 11 December 2008 from Kell Moore to T&W and Part 6(3) again by letter dated 8 September 2009. Part 6(4) identifies occasions on which it is alleged T&W asserted that they continued to hold a retainer for the Applicants or did not disabuse the CSO of the notion that T&W still held a retainer from the Applicants. As a result Part 6(5) alleges there was confusion on the part of the CSO resulting in delay in providing the undertaking which was the basis for the Applicants remaining in the proceedings until 6 November 2009. That delay is alleged to have made necessary the misjoinder motion filed on 24 August 2009 which had to be abandoned, resulting in the Applicants' own costs and those of the Crown for the motion being incurred.
According to the chronology for 11 December 2008, there is a dispute between the parties as to whether Kell Moore's letter of that date did effect a termination of the T&W retainer by the Applicants. As will become clear it is not necessary to resolve that dispute.
Issue 9 raised by the Applicants is whether on 29 September 2009 Mr Wolff represented to Dr Galbraith that the Applicants had not yet terminated T&W's retainer. Part 6 refers to the Applicants terminating T&W's retainer by letter dated 11 December 2008 (Part 6(2)), confirmed again by letter dated 8 September 2009 (Part 6(3)). Part 6(4) identifies three occasions when officers of T&W are said not to have disabused the CSO that T&W still held a retainer on behalf of the Applicants (email dated 11 February 2009, telephone call on 25 September 2009 between Mr Taylor and Dr Galbraith and telephone call on 29 September 2009 between Mr Wolff and Dr Galbraith). The Applicants rely on the evidence of Dr Galbraith, in particular that the file notes of the conversations with Mr Taylor and with Mr Wolff were accurate records of what was said in the telephone conversations. The particular assertion relied on is the statement by Mr Wolff according to the file note of 29 September 2009 that the retainer of T&W had not yet been terminated and the filing of the notice of change of solicitor by Kell Moore was premature.
Accepting that this file note was an accurate description of what was said in that telephone call (Mr Wolff could not recall the words he used), this statement should not be viewed in isolation. The affidavit and oral evidence of Mr Williams and Mr Taylor and Dr Galbraith's oral evidence confirms that there had been discussions about the role of Kell Moore and T&W in relation to the Applicants with the CSO since 23 January 2009 when Kell Moore first wrote to the CSO (see par 292 below). The numerous interactions including correspondence between the parties are set out in the letter of particulars and in the chronology from 11 December 2008 up to the Applicants' discontinuance on 6 November 2009.
As identified by counsel for T&W and Mr Taylor (par 179) Dr Galbraith understood he had to deal with Kell Moore in relation to the Applicants before and after any of the telephone calls in September 2009 relied on in the particulars. As emphasised, two solicitors acting for an applicant when court rules provide for only one solicitor to be on the record was an unusual circumstance. None of the experienced solicitors who gave evidence had encountered such a circumstance before and the various discussions between these solicitors highlight the lack of clarity about the best way forward. I agree with the submission for T&W and Mr Taylor that part of the relevant context to consider is that as long as the Applicants remained in the proceedings, T&W were their solicitors on the record.
The oral evidence of Dr Galbraith does not refer to the retainer issue as represented by Mr Wolff as being relevant to any delay by the CSO in providing an undertaking sought by Kell Moore or the cause for confusion as alleged in Part 6(5). Further, there is no basis for suggesting that there was any delay in the CSO agreeing to an undertaking because of confusion over the timing of the termination of T&W's retainer as a result of the statement by Mr Wolff in the telephone call in September 2009. As submitted by counsel for T&W and Mr Taylor (written submissions at par 196):
(a) on 23 January 2009, Kell Moore approached the CSO and raised a number of matters, including undertakings about jurisdiction and Anshun estoppel if other proceedings were commenced. Nothing was said about an undertaking that the CSO would not rely on any statute of limitation if fresh proceedings were commenced;
(b) on 5 February 2009, the CSO sent a letter setting out a summary of Kell Moore's position. Nothing was said about an undertaking about limitation;
(c) on 17 April 2009, Kell Moore submitted a further draft pleading and sought undertakings about jurisdiction and Anshun . Nothing was said about an undertaking about limitation;
(d) on 23 June 2009, the CSO wrote to Kell Moore and said it has been attending to other matters and "regrets" the delay. It also confirmed that the CSO was still seeking instructions from their client regarding Kell Moore's letter dated 17 April 2009;
(e) on 17 July 2009 and 13 July 2009, Kell Moore telephoned the CSO to progress the matter without success, affidavit of Mr Williams dated 27 November 2009 at par 25;
(f) on 24 August 2009, the misjoinder motion was filed and served;
(g) on 21 October 2009, Kell Moore wrote to the CSO and for the first time sought an undertaking about limitation;
(h) on 22 October 2009, the CSO replied and said an undertaking about limitation had not previously been sought and instructions would need to be obtained;
(i) on 6 November 2009, the Applicants discontinued with an undertaking from the CSO about limitation but no undertaking about jurisdiction or Anshun estoppel.
As submitted by T&W and Mr Taylor , the first time the undertaking sought by Kell Moore in the terms finally agreed by the CSO was in October 2009. The Applicants' counsel accepted in closing submissions that the evidence is that the matters particularised did not result in any wasted costs or only very little as the period of delay is between 24 August and 4 November 2009 at most on the Applicants' case. As T&W and Mr Taylor submitted, the Applicants have not established that there was any link between the filing of the misjoinder motion on 24 August 2009 and the telephone conversation between Mr Wolff and Dr Galbraith on 29 September 2009.
As already identified above as a general failing of this costs application, the main hurdle the Applicants have not overcome in relation to an allegation that Dr Galbraith was mislead in relation to whether T&W's retainer had been terminated on 29 September 2009 is that there is no evidence that any court time was wasted as a result. There cannot therefore be any wasted costs which fall within a claim under s 99. Nor is serious neglect or serious incompetence established.
T&W Part 7 - failing to cooperate with the Applicants' new lawyers
Part 7(1) concerns the allegation that T&W refused to cooperate with Kell Moore by refusing to provide a copy of the T&W file in a timely way. This is said to have resulted in Mr Williams having an incomplete understanding of the substantive proceedings resulting in the misjoinder motion proceeding on an inaccurate assumption, causing delay when the motion and affidavit had to be corrected in an amended notice of motion filed on 23 October 2009 and the affidavit in support. The correspondence relied on in Part 7(1)(a) - (g) commencing on 19 August 2009 to 16 November 2009 from Kell Moore to T&W and in reply concerning access to T&W's file is set out in the particulars and identified in the chronology. To the extent there was disagreement between Mr Taylor and Mr Williams about whether there was a telephone call on 6 July 2008 (as stated in the chronology), nothing hangs on it and I do not therefore need to resolve that issue.
Mr Taylor gave written and oral evidence about the circumstances at the time of the request for access to T&W's file concerning the need to get advice about legal professional privilege. The single file related to all the applicants in the proceedings and separating material relating only to the Hutchins was not a simple task. He also had to consider whether unpaid costs remained outstanding in relation to the Applicants.
As submitted by counsel for T&W and Mr Taylor there was no unacceptable delay in the provision of the file to the extent that was able to be provided in these circumstances. The Applicants have not established serious neglect or serious incompetence in these circumstances.
Part 7(2) alleges a refusal by T&W to allow access to the Court file. The request for access was by letter dated 17 August 2009. Access was given on 11 September 2009. Lack of timely access is alleged to have resulted in Kell Moore having an incomplete understanding of the substantive proceedings which resulted in inappropriate orders being sought in the misjoinder motion and supporting affidavit. The orders originally sought were to remove other parties from the proceedings as Kell Moore was not then aware there were additional parties from the outset. There was delay while the motion and affidavit were amended and additional costs incurred in doing so.
For the reasons given by T&W and Mr Taylor (par 184), that does not suggest undue delay in the provision of access to the Court file in view of the privilege issues that arose in this case. Further, Mr Taylor told Mr Williams he would be occupied by proceedings in the High Court to be heard on 24 August 2009. Shortly after advice was received from counsel by Mr Taylor concerning legal professional privilege matters, access was authorised. That Kell Moore chose to file the misjoinder motion in the meantime does not result from serious neglect or serious incompetence on the part of T&W and Mr Taylor. That conclusion stands regardless of the fact that Kell Moore had a copy of the original Class 4 application as provided in the FOI documents provided to Kell Moore in July 2008.
There is no evidence that Court costs were wasted, as is necessary for a claim pursuant to s 99. Nor is there any basis to find there was serious neglect or serious incompetence on the part of T&W and Mr Taylor in relation to this particular. There is no basis established by the Applicants for awarding any costs under s 99 as sought in relation to any of these particulars. The Notice of Motion as against T&W and Mr Taylor ought to be dismissed.
Particulars against Mr King
The case mounted against Mr King contracted in the course of the hearing with two aspects of the claim being Part 2, incompetent pleadings, and Part 3 not pressed, save for that picked up by Part 1. As identified by Mr King's counsel there is very little remaining of the case against Mr King.
King Part 1 - failing to advise amalgamation claim should be litigated separately
As already identified above at par 195 and 204 the matters which Mr King is alleged to have failed to advise about (Part 1(1), (2)) are in turn matters identified in T&W Part 2(1) and (2) (validity claims complex, take time and costly, further applicants would add to costs, amalgamation claim simple, and delay results in loss of water). I have already identified that the challenge based on these particulars cannot succeed. These are not self-evidently correct matters about which any of the Respondents should have been aware and therefore failed to advise upon. No evidence has been brought forward to establish that these were such matters, rather the assertion is simply made. Mr King's counsel's submissions to that effect are accepted (par 196 topic (i)). This failure is further identified in Mr King's counsel's submissions (par 204 topic (vi)) where the extent of the failure to bring forward evidence of what would be required to establish the amalgamation claim, the likely defences to such a claim, inter alia, is identified.
Further no breach of duty to the Court has been identified in relation to Mr King's actions whereby an alleged failure on his part has resulted in disruption to court processes, as I have found above and as submitted by Mr King, par 197 topic (ii).
The additional factor in relation to Mr King emphasised by his counsel which needs to be borne in mind is that he was not briefed by T&W until March 2007 and did not therefore provide advice until after proceedings were commenced with multiple applicants and claims. His conduct must be considered in light of the circumstances as he found them. For the reasons given by his counsel at par 186 and par 200 i), particularly that Mr King was entitled to believe that the Applicants intended to be part of a group where validity claims were made and some had alternative claims, the specific costs sought in relation to the validity claims and the Applicants' costs of discontinuing from the proceedings cannot be claimed from him. It has not been established that his behaviour caused these costs to be incurred.
As submitted by Mr King's counsel, there is an absence of evidence to establish serious neglect or serious incompetence, par 198 topic (iii). Comprehensive and thorough submissions summarised above at par 200 topic (v), headed failure to take account of many matters, provide further reasons why this claim is not maintainable. These reasons include that a barrister in Mr King's position was entitled to consider the Applicants' wishes to be part of a group action where the best claims were the validity claims; all considered that the issues could be heard together early, then April 2008; the usual rule is that all issues should be tried together as separate determinations lead to unforeseen complications and delay (per Tepko ); the amalgamation claim followed the validity claims as if the Plan was invalid it did not matter how the rules under it were applied. Further there was a real risk that if an application for an order for separate determination was made it would fail with a resulting costs order against the Applicants. As these submissions all appear correct I adopt them. Further, as submitted at par 200 xiii) there can be no suggestion that Mr King should have considered the amalgamation claim was so strong as to justify separate determination, a submission linked to the finding I have already made that success in the amalgamation claim cannot be assumed in this costs application.
As identified in Mr King's submissions par 206 - 208 topic (vii), whether a separate hearing of the amalgamation claim would have been permitted was not certain and indeed contrary to the Court's preferred practice of having all related matters in issue determined at the same time. As such an application would not necessarily succeed and such an application might have resulted in a costs order against the Applicants. This submission also applies to Mr Taylor and T&W and was made by their counsel.
The triggers for the failure to advise raised by the Applicants in relation to Mr King are the disputed matter of what was said at a conference held with Mr Hutchins and Mr Archibald on 13 April 2007 and whether draft POC were presented and discussed at the conference (issue 4). This is not particularised and strictly speaking in light of my earlier ruling that matters not particularised should not be pressed it should not be allowed. The meeting on 13 April 2007 was not referred to in Mr Hutchins' first affidavit. It was addressed in Mr King's affidavit and in the affidavit in reply of Mr Hutchins and was the subject of cross-examination of Mr Hutchins, Mr King and Mr Archibald. Mr Hutchins' evidence was that draft POC were not presented, whereas Mr King's evidence is that such a document was. Mr Archibald who was present cannot recall when he asked Mr King to prepare the POC. There is no dispute the final POC were sent to Mr Hutchins by email dated 2 May 2007.
For the reasons given above in relation to why Mr King's behaviour must be assessed as reasonable as a barrister in light of the circumstances he found himself in, there is no point in making findings of credit which will be adverse to at least one of the parties when there is no utility in doing so. For the purposes of considering the principles applicable to the application of s 99 I will assume the worst case against Mr King namely that the draft POC were not at the meeting. Accepting Mr Hutchins' evidence that no POC were discussed at the conference on 13 April 2007 does not mean that there was no consideration of the amalgamation claim in the context of the proceedings overall at that conference. The purpose of the conference was to discuss the proceedings with one of the Applicants' directors, Mr Hutchins.
There is also a dispute between Mr Hutchins and Mr King about what was said following a directions hearing on 16 May 2007 (issue 5). This is also identified as another trigger giving rise to a failure to advise of various particularised matters. Assuming for the purposes of this judgment only that Mr Hutchins' evidence of what was said is correct, as stated by Mr King's counsel the alleged exchange was very brief (see par 211) and simply cannot give rise to a finding that an obligation on the part of Mr King to provide certain advice was triggered given all the other matters known to Mr King, as identified above. There can be no finding of serious neglect or serious incompetence in relation to Mr King's conduct based solely on that conversation.
The alleged failure of Mr King to advise against the joinder of a large number of additional parties by T&W (Part 1(3)) is also raised. For the reasons given already concerning the matters he is alleged to have failed to advise on not being self-evidently proven, there can be no finding of failure by Mr King. That he expressed a view about the positive benefits of joining additional parties in a letter dated 4 December 2007 as identified in the letter of particulars is immaterial to support the Applicants' claim. As submitted by Mr King's counsel, par 215 - 216, the addition of more parties did not mean that more costs would be incurred or more time taken as the validity claims concern issues of statutory construction which issues were not expanded by the addition of further parties.
A final factual dispute raised somewhat faintly in the Applicants' counsel's submissions and not particularised against Mr King is what was said at a conference on 12 September 2007 (issue 7) between Mr Hutchins and Mr King. This was not identified as having any bearing on any of the matters raised against Mr King and I will not consider it further.
As submitted by Mr King's counsel at par 218 - 221 (topic (x)), the Applicants have not established a causal connection between the alleged conduct of Mr King and any wasted costs. To the extent costs concerning the validity claim were already incurred before and after Mr King was briefed he is not liable for those given that he played no initial part in the proceedings. There were arrangements in place for the sharing of costs. If the amalgamation claim was heard separately and failed, costs would be likely to have been incurred, and the validity claims would have been the only possibility to obtain water at the desired level.
The Applicants have not discharged the onus of proof they bear of establishing serious neglect or serious incompetence on the part of Mr King. The Notice of Motion as against Mr King should be dismissed in its entirety.
Orders
The Court makes the following orders:
1. The Notice of Motion filed on 27 November 2009 is dismissed.
2. Costs are reserved.
3. Exhibits to be returned.
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Decision last updated: 10 June 2011
Key Legal Topics
Areas of Law
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Administrative Law
Legal Concepts
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Standing
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Costs
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Judicial Review
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