Nida v BKA Practice Co Pty Ltd (No 3)

[2020] VSC 856

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02232

ROONA FAZAL NIDA	Plaintiff
v
BKA PRACTICE CO PTY LTD	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	16 December 2020
CASE MAY BE CITED AS:	Nida v BKA Practice Co Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 856

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COSTS – Unsuccessful application for extension of time to seek judicial review of Magistrates’ Court orders for payment of debt and costs to solicitor – Appeal from Associate Justice’s refusal of extension of time – Appeal dismissed – Solicitor seeking indemnity costs of appeal – Solicitor an incorporated practice – Whether indemnity costs should be awarded Whether decision in Bell Lawyers Pty Ltd v Pentelow applies to application for indemnity costs – Solicitor only entitled to recover counsel’s fees and disbursements incurred.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Nida	NOH Legal
For the First Defendant	Mr J Searle	Belleli King & Associates

HIS HONOUR:

1. On 20 November 2020 I delivered judgment in this proceeding dismissing Ms Nida’s appeal from a decision of an Associate Justice, who had refused her an extension of time to commence judicial review proceedings of Magistrates’ Court orders ordering her to pay the first defendant, solicitors, a debt and costs.[1] I gave directions for submissions as to costs. Only the first defendant, the solicitors, filed submissions as to costs.

   [1]Nida v BKA Co Pty Ltd (No 2) [2020] VSC 770.

1. The first defendant acknowledged that an incorporated legal firm acting for itself, as it did in the litigation, cannot recover its professional costs of acting for itself. That follows from the High Court’s decision in Bell Lawyers Pty Ltd v Pentelow[2] and subsequent authority, particularly the judgment of Macaulay J in Guneser v Aitken Partners Pty Ltd.[3] But it submitted that that principle only applied to costs sought on a standard basis and not on an indemnity basis, as the costs should be awarded in this case. I see nothing in the authorities nor in logic to support that distinction and I consider that the principle applies equally to claims for indemnity costs as it does to standard costs. Therefore the first defendant is only entitled to recover reasonable fees and disbursements, including counsel’s fees, that it incurred in connection with this proceeding to be taxed by the Costs Court on a standard basis in default of agreement. But for the sake of completeness, I will state my conclusion on whether, if available to be awarded, I would have awarded indemnity costs.

   [2](2019) 372 ALR 555 (‘Bell v Pentelow’). See also United Petroleum Australia Pty Ltd v Herbert SmithFreehills [2020] VSCA 15.

   [3][2020] VSC 329.

1. The first defendant relied upon the following submissions to support its application for indemnity costs. First, the plaintiff’s submissions in support of this appeal were filed late, in accordance with her conduct throughout the litigation. The submissions were overly lengthy and contained many propositions without support from authorities or evidence. The submissions did not demonstrate error by the Associate Justice, but rather took the Court to historical matters and irrelevant points. There never were any special circumstances for the plaintiff’s delay in commencing the proceeding. Her conduct included the commencement and continuation of proceedings with some ulterior motive in mind or wilful disregard of known facts; undue prolongation of the case by groundless contentions; the pursuit of a defence or a claim that was high handed or presumptuous; particular misconduct that had caused loss of time to the Court and to other parties; and commencement or pursuit of allegations which were without chance of success. The plaintiff had engaged in vexatious, costly, unmeritorious and time-wasting behaviour.

1. I do not consider that, in the exercise of the costs discretion, that an award of indemnity costs against the plaintiff would have been appropriate, if that power had been available.[4] The plaintiff exercised a right of appeal from the Associate Justice’s decision refusing her application for an extension of time to commence the proceeding. I accept that in submissions, the plaintiff traversed matters unrelated to the Magistrates’ Court orders and which were ultimately unrelated to the matters that the Court had to decide. But the Court needed to receive some context for her challenge to the Magistrates’ Court orders. Her submissions about the Magistrates’ Court hearing on 9 May 2018 raised procedural fairness arguments, which required consideration, although I did not accept them. Despite time occupied by plaintiff making submissions that proved not to be relevant, the hearing was completed in the day allocated to it.

   [4]See as to indemnity costs Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189, Sunland Waterfront (BVI) Pty Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237.

Conclusion

1. Applying the principle in Bell Lawyers Pty Ltd v Pentelow,[5] the first defendant is not entitled to receive its professional costs, but is entitled to recover reasonable fees and disbursements, including counsel’s fees, that it has incurred in connection with the appeal.[6] They must be taxed by the Costs Court on a standard basis in default of agreement.

   [5]Bell v Pentelow (n 2).

   [6]Supreme Court Act 1986 s 24(1); Supreme Court (General Civil Procedure) Rules 2015 rr 63.81-2.