Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd (in Liq) [No 7] - [2018] WASC 355

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST -v- JEAN MAURICE PTY LTD (IN LIQ) [No 7] [2018] WASC 355
CORAM:   KENNETH MARTIN J
HEARD:   19 SEPTEMBER 2018
DELIVERED          :   16 NOVEMBER 2018
FILE NO/S:   CIV 2935 of 2016
BETWEEN:   PIER (WA) PTY LTD AS TRUSTEE FOR ISANDI TRUST
Plaintiff
AND
JEAN MAURICE PTY LTD (IN LIQ)
First Defendant
SANCHO BAKERY PTY LTD
Second Defendant
FRANCK DUROLEK
Third Defendant
BELINDA DUROLEK
Fourth Defendant

Catchwords:

Practice and procedure - Successful party seeks personal costs order against opposing party's lawyer - Exceptional order - Involvement of independent counsel - Refusal of lawyer's former clients to waive privilege - Balancing of considerations

Legislation:

Nil

Result:

Partial costs orders issued

Category: A

Representation:

Counsel:

Plaintiff	:	Mr G R Ritter QC
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Non-party	:	Mr J G Fiocco & Mr J M Burke

Solicitors:

Plaintiff	:	HopgoodGanim Lawyers
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Non-party	:	Lark Lawyers

Case(s) referred to in decision(s):

Chisholm v Norgard (1991) 4 WAR 202
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Flower & Hart (A Firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
General Mediterranean Holdings SA v Patel [2000] 1 WLR 272
Harley v McDonald [2001] 2 AC 678
Medcalf v Mardell [2003] 1 AC 120
Michael v Freehill Hollingdale & Page (1990) 3 WAR 223
Modra v State of Victoria [2012] FCA 240; (2012) 205 FCR 445
Myers v Elman [1940] AC 282
Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 4] [2018] WASC 202
Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 5] [2018] WASC 203
Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 6] [2018] WASC 204
Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd [2018] WASC 22
Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd [No 2] [2018] WASC 23
Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd [No 3] [2018] WASC 24
Re Kuek [2012] FCA 494; (2012) 291 ALR 443
Reid v Hubbard [No 2] [2004] FCA 180
Ridehalgh v Horsefield [1994] Ch 205
White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169

KENNETH MARTIN J:

Overview

The Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd litigation is something of a saga: see Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd [2018] WASC 22; Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd [No 2] [2018] WASC 23; Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd [No 3] [2018] WASC 24; Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 4] [2018] WASC 202; Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 5] [2018] WASC 203; and Pier (WA) as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 6] [2018] WASC 204.
I published those six sets of reasons in the interval between 7 September 2017 and 2 July 2018, when I delivered a final judgment favouring the plaintiff after an assessment of damages trial conducted before me during May 2018.
That day, 2 July 2018, the plaintiff obtained judgment against all defendants in the amount of AUD$1,208,970.32. As part of the final orders, I then issued special costs orders: see [6], [7] and [8] of the final orders. In summary, the defendants were, at the end, ordered to pay the plaintiff's costs, including all reserved costs, on an ordinary party and party basis up to 17 August 2017 (with some exceptions), and then, for the period after that, costs on a complete indemnity basis.
The present costs application is related to the now resolved proceedings but is different in character. It is an application by the plaintiff seeking indemnity costs against the defendants' former lawyers of record, ABMS Lawyers, the principal of whom is Ms Mwenda Juliettie Somerville.
There are four discrete components in respect of which these costs orders are sought against Ms Somerville by the plaintiff. Under the plaintiff's minute of proposed costs orders of 12 July 2018 it seeks the court:
Order that, co-extensively with the defendants, their lawyers ABMS Lawyers pay the plaintiff's costs, including all reserved costs, on an indemnity basis of -
1.the applications by the defendants, by chamber summons filed 26 October 2017 and by substituted chamber summons filed 22 December 2017, to set aside judgment.
2.the defendants' (excluding the first defendant) applications to extend time to comply with the orders of 7 and 28 September 2017, notified by their minutes of orders dated 21 March 2018.
3.the defendants' (excluding the first defendant) application by chamber summons filed on 1 May 2018 to file expert evidence and to vacate the trial hearing dates.
4.the fourth defendant's application by notice of motion filed 24 April 2018 to expunge affidavit evidence and set aside judgment.
At the outset it should be said clearly that the present (opposed) application seeks an extraordinary costs order - going some distance above and beyond costs orders already made directly against the defendants within the interlocutory and final outcomes in the overall litigation.
At the hearing of the present application, ABMS Lawyers were represented by independent counsel and solicitors (Mr Fiocco and Mr Burke of Lark Lawyers). They have provided significant written and verbal assistance and the court is grateful to them for their collective assistance.

Fifteen legal principles: wasted costs orders against the opposition legal representatives

In evaluating the plaintiff's present application I have sought to apply the following essential principles which I assess as pertinent to a personal costs application of this exceptional character.
First, this court holds a clear jurisdiction to issue an adverse costs order against the opposing parties' lawyers - under its inherent (disciplinary) jurisdiction over legal practitioners. As to that proposition, see Michael v Freehill Hollingdale & Page (1990) 3 WAR 223, 233 (Seaman J); Ridehalgh v Horsefield [1994] Ch 205, 239; and then Medcalf v Mardell [2003] 1 AC 120 [13].
Second, the exercise of this jurisdiction is not to be lightly invoked and calls for an exercise of great care in its application: see Reid v Hubbard [No 2] [2004] FCA 180 [18] (Heerey J).
Third, the Rules of the Supreme Court 1971 (WA) (RSC) by O 66 r 5 display circumstances in which an inherent power of the court vested under s 16(1)(a) of the Supreme Court Act1935 (WA) is exercised: Michael v Freehill Hollingdale & Page, 233 (Seaman J), see lines 39 to 41. The relief by the exercise of this jurisdiction is both punitive and compensatory in character: see Myers v Elman [1940] AC 282, 302 - 303 (Lord Atkin) and 318 - 319 (Lord Wright).
Fourth, the evidentiary onus to provide a proper basis for making an adverse costs order of this character rests on the moving party at the civil standard.
Fifth, the terms 'Improper', 'Unreasonable' or 'Negligent' as seen used in the RSC and in the cases as against opposing lawyers' acts or omissions complained about, invoke terminology with well settled meanings: see Ridehalgh v Horsefield, 232 as regards the terms 'Improper', 'Unreasonable' and 'Negligent'. For example, the word 'Negligent' is to be understood in a non‑technical way - to denote a failure to act with the competence to be reasonably expected of ordinary members of the legal profession.
Sixth, it is necessary to remember a legal practitioner is well capable of making a wrong decision without thereby being negligent ‑ as that term is understood in the non‑technical way. Hindsight should not be used in any evaluation of the legal practitioner's conduct.
Seventh, a solicitor may not avoid personal responsibility by sheltering behind the advice given by counsel - if the prevailing circumstances dictate that the solicitor should have personally turned his or her own mind to the subject matter of the advice provided and reasonably reached a contrary position: see White Industries (Qld) Pty Ltd v Flower & Hart (A Firm) (1998) 156 ALR 169, 249, affirmed in Flower & Hart (A Firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134, 148 (Lee, Hill & Sundberg JJ); Modra v State of Victoria [2012] FCA 240; (2012) 205 FCR 445 [37] (Gray J), and then refusing leave to appeal from that decision Re Kuek [2012] FCA 494; (2012) 291 ALR 443 [15], [16] and [23] (Jessup J).
Eighth, in confronting a costs application of this nature, a legal representative could suffer prejudice in answering a case put against them, when confronted by a refusal by their own client to waive their legal professional privilege: see Ridehalgh v Horsefield (237) and Medcalf v Mardell [23] - [24].
Ninth, the implications of a client's refusal to waive privilege needs to be evaluated practically, as distinct from on a purely theoretical basis: Re Kuek [27] (Jessup J).
Tenth, a 'docket' judge holding a regular interlocutory familiarity and understanding of the developing dynamics of a proceeding over a period of time may be better placed or advantaged to make a reliable evaluation upon the more likely source of rival potential responsibility ‑ as between the relative roles of a solicitor and counsel who are on the same side in a proceeding: see Re Kuek [23] and [27] (Jessup J).
Eleventh, the ultimate jurisdiction of a court to issue an adverse wasted costs order remains discretionary. That is so even if the existence of improper, unreasonable or negligent conduct as well as the causation of loss is established: see Ridehalgh v Horsefield, 239. In Ridehalghthe Master of the Rolls, Sir Thomas Bingham, said this:
[C]ourts should apply a three‑stage test when a wasted costs order is contemplated. (1) Has the legal representative of whom complaint is made acted improperly, unreasonably or negligently? (2) If so, did such conduct cause the applicant to incur unnecessary costs? (3) If so, is it in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs? (If so, the costs to be met must be specified and, in a criminal case, the amount of the costs). (231)
Twelfth, the procedure to be adopted upon such a costs application must be as fair and as simple as fairness permits. Fairness requires that a respondent legal representative who is sought to be made the subject of such an order be very clearly told what they have done wrong and what is claimed against them: see Toulson J in General Mediterranean Holdings SA v Patel [2000] 1 WLR 272.
Thirteenth, unless the circumstances are exceptional, the judicial officer who determined the underlying litigation ought to be the judicial officer who determines a subsequent wasted costs application brought against an opposition lawyer arising out of that concluded litigation.
Fourteenth, the making of a wasted costs order is a jurisdiction that should be reserved for only those cases where the unjustifiable conduct can be proved without recourse to using disproportionately costly procedures: see Medcalf v Mardell at [57] citing Harley v McDonald [2001] 2 AC 678.
Fifteenth, the legitimate interest of an applicant in seeking a wasted costs order is financial - by reference to a reduction in their legal costs otherwise to be borne by that party. The application must be merit based and be clearly established. An application must not raise any suspicion of it being brought only as an abuse of process: Medcalf v Mardell [58].

Evaluation of present circumstances

I now turn to scrutinise each of the four areas in respect of which the plaintiff pursues what are extraordinary wasted costs orders against the defendants' former lawyers.
It is a matter of record that ABMS Lawyers were the third firm of legal practitioners which acted for the present defendants. Previously, two other Perth based law firms had acted for the defendants, but then respectively ceased to act for the defendants.
On 10 October 2017, I issued orders against all defendants for damages to be assessed, in these terms:
1.The defendants' defences be struck out;
2.There be judgment for the plaintiff against all defendants for damages and for statutory compensation to be assessed; and,
3.The defendants are to pay the plaintiffs' costs, including reserved costs, to be taxed of the litigation to date.
Also on 10 October 2017, the third and fourth defendants filed notices indicating that they were, from that time, acting for themselves ‑ ie in person.
On 12 October 2017, I issued orders granting leave for the defendants' (second) firm of legal practitioners, Patrick Legal, to cease acting on behalf of the first and second (ie corporate) defendants.
Between 17 and 23 October 2017 ABMS Lawyers (but effectively, only Ms Somerville as the principal) filed documentation at this court, notifying that her firm was from then, going on the record as the legal representative for all defendants.
To that point, there had been some intense commercial litigation fought between the protagonists in this court. This is described across my reasons, Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd and Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd [No 2] (revised and published on 25 January 2018). So it was the case that ABMS Lawyers was commencing in late October 2017 to act in circumstances where a judgment for damages to be assessed had already issued. From that point the residual civil dispute was to be an assessment of the plaintiff's damages.
Back on 7 September 2017, I had issued orders that the first, second and third defendants pay into court an amount of AUD$1.6 million, or deliver into court 29 gold ingots. Those orders were not met within the stipulated time for compliance, namely, by 26 September 2017.
The plaintiff then sought to have the unmet orders enforced against all defendants by a sanction of a springing order. On 28 September 2017, I issued further orders, this time against all four defendants - allowing time for compliance with the original orders by 4.00 pm Australian Western Standard Time on Thursday, 5 October 2017: see Pier v Jean Maurice [No 2] [32].
But the 28 September 2017 orders extending the time frame for a compliance were still not met. Consequently, as I later explained in Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd [No 3]:
[41]Judgment was then extracted by the plaintiff for damages to be assessed by the plaintiff's solicitors at 10 October 2017. Whilst expressed in terms of it being a judgment that day, as it was in terms of its formal extraction, strictly, the judgment was self-executing and took effect from just after 4.00 pm on 5 October 2017 in the face of the default.

First matters raised to support an adverse wasted costs order against ABMS Lawyers

The first area in respect of which adverse indemnity costs orders are sought against ABMS Lawyers concerns its clients' (the defendants') failed application to set aside the judgments obtained against them - under the terms of the self‑executing springing orders which, by then, had sprung. Reasons for decision dismissing that unsuccessful application are the subject of Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd [No 3], first delivered ex tempore on 16 January 2018, but subsequently revised and published on 25 January 2018.
That was an amended application on behalf of all the defendants advanced in the circumstances I explain in those revised reasons. Such an application by the defendants had been the subject of discussion at two prior directions hearings on 31 October 2017, and then on 11 December 2017. At both of those directions hearings, the defendants had been represented by an independent junior barrister briefed by ABMS Lawyers (Mr Williamson).
When the substantive application came to be argued on 16 January 2018 the defendants were then represented by both senior and junior counsel - as the record indicates (Mr McIntyre SC and Mr Williamson).
In dismissing that application, after referring to the leading decision in the area FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268 and to relevant rules of this court, see RSC O 3 r 5(1) and (2), I said this in Pier v Jean Maurice [No 3]:
[48]Hence followed directions that I issued on 11 December 2017 for the parties to exchange submissions about jurisdiction and supplementary orders to that effect.
[49]Since then, the defendants have altered the basis of their proposed application, moving away from how it was originally framed under their chamber summons of 26 October 2017.
[50]No doubt, following discourse with counsel that day, the defendants now seek leave, in effect, to file a substituted chamber summons that is framed in terms of it being an application to support an extension of time for compliance with my previous orders - made pursuant to O 3, r 5 of the rules of this court and to vary or substitute orders and as well to set aside judgment.
[51]That is effectively the application the defendants move now through senior counsel today and under a submitted minute of proposed orders on 22 December 2017.
[52]The main question to be addressed, from a jurisdictional perspective, is whether, in fact, I hold power or jurisdiction to actually make orders which are now sought on the amended application of the defendants.
I also dealt with, but did not in the end accept, an argument then advanced by senior counsel for the plaintiff. This submission had been to the effect that, by reason of slightly different wording in RSC O 3, r 5(1) and (2), the FAI v Southern Cross decision was distinguishable and did not apply in Western Australia. (My attention was drawn on this hearing by Mr Fiocco to a further authority on the same point against that submission, namely, the reported reasons of then Acting Master Adams in Chisholm v Norgard (1991) 4 WAR 202, 203.)
I had identified a body of local authority against the plaintiff's submission on the FAI v Southern Cross issue, before concluding that it was not necessary (at [59]) for me to finally resolve that issue. I then said in Pier v Jean Maurice [No 3] at [60]:
[60]I am content to approach today's application on the hypothetical basis that I do hold full power to extend time for a compliance with previous orders I made via RSC (WA) O 3, r 5(1) or (2) and therefore set aside any judgment that has sprung and has been entered.
However, the significant legal point which I then concluded wholly undermined the (amended) application of the defendants on that set aside application, was that their materials, on proper analysis, were not actually seeking any extension of time to enable a future compliance with my previously unmet orders. The defendants were not foreshadowing then to either pay AUD$1.6 million into court or to deliver into court 29 gold ingots. That had been the subject of the orders I had made against all defendants, accompanied by the sanction of a springing order - if there was non-compliance by the extended time line of 5 October 2017. Something else entirely was then being foreshadowed by the defendants - in lieu of meeting the unmet order.
In those reasons I continued at [62]:
[62]As I pointed out in dialogue with senior counsel for the defendants, if, today, the defendants had, say, been approaching the court on the basis of proffering either AUD$1.6 million or a proffering of 29 legitimate gold ingots, the subject of previous affidavits of Mr Durolek, then it would be the case that I could then proceed to consider whether or not to exercise a discretion I hold to enlarge time for a compliance with the unmet orders as previously made. But that is clearly not the case. It is not what the defendants now seek even on their amended application.

I pointed out at [63] that what was, in fact, then proposed on materials submitted by the defendants via Mr Durolek's various affidavits was not, in truth, in the nature of a proposed compliance by the defendants after an extension of time. Rather, as I said at [64], the defendants were seeking then only to:
[64][V]ary the previous orders I made and to try to set up by replacement retrospectively some sort of substituted regime of residual equity position by regard to various real properties of the defendants, including over lands and houses in England, Australia and in France.
After noting at [65] that nothing specific was being offered to the court by the defendants in terms of money paid in or gold produced, I observed at [66]:
[66]Worse than that, however, is that, across all the relied upon materials that have been filed by Mr Durolek from November 2017, by now his third firm of local legal practitioners representing him, that across all those affidavits (of which there are now four) that there was no mention by Mr Durolek about the whereabouts of the sale proceeds as the purchase price received from the plaintiff following settlement in November 2016. There is no mention at all of gold ingots once said to be purchased using these funds as transferred and held for Mr Durolek at a bank in France.
Hence, I then concluded at [71] and [72]:
[71]Even if I had found that I had the power to extend time for compliance, compliance is not being sought. Even then, if I was contemplating extending time for compliance, were that sought, I could not even begin to approach an exercise of my discretion to that end in circumstances where the unexplained underlying position over 29 gold ingots and a false certificate from a French bank is not addressed for these defendants.
[72]In all those circumstances, on a jurisdictional basis, the amended application is conceptually deficient and must be dismissed. I dismiss it now and with indemnity costs ordered against all the defendants.
Dismissing the set aside application of the defendants on 16 January 2018, I issued orders to that effect including an indemnity costs order against the defendants in these terms:
1.The defendants' application be dismissed.
2.The plaintiff is to file and serve any expert witness statements in relation to the assessment damages and statutory compensation by 2 March 2018.
3.The matter is listed for a further directions hearing on Thursday, 22 March 2018 at 9.30 am.
4.The defendants do forthwith pay the plaintiff's costs of the application on an indemnity basis to be taxed in due course, save for any costs that are assessed by a taxing officer to be of an unreasonable amount or were unreasonably incurred.
The plaintiff's present argument seeking a wasted costs order against ABMS Lawyers is advanced in circumstances where the defendants' failed application to set aside judgment, that I dismissed on 16 January 2018, was then argued by both senior and junior counsel who had then been engaged to act on behalf of the defendants by ABMS Lawyers. Nevertheless, the plaintiff's submission is that the engagement of senior and junior counsel should not detract from me now making wasted costs orders against ABMS Lawyers in all the circumstances. That submission was made notwithstanding that all defendants, despite request, refused to waive legal professional privilege to allow the principal of ABMS Lawyers, Ms Somerville, to put before the court a full explanation of her instructions and the advice to her clients at the time, and to reveal to the court in her defence the advice that she received from the junior and senior counsel who were specifically briefed to advise and appear as regards that application.
The plaintiff relies upon some verbal observations I made at the directions hearing on 11 December 2017. At that hearing the defendants were represented by junior counsel. But Ms Somerville was present as the instructing lawyer of record that day. The plaintiff argues that even with the benefit of senior and junior counsel engaged, it should have been very clear to Ms Somerville from what was then said by me that the application was defective and should not have been brought or persisted with following my observations at that directions hearing.
In light of this extraordinary application after the event for costs orders against the defendants' lawyers, I have (with the parties' consent) gone back and reviewed afresh the transcripts of the directions hearings conducted on 31 October 2017 and 11 December 2017 in this action.
On 31 October 2017, I had the following exchange (below) with Mr Williamson, then junior counsel for the defendants, who was appearing for the first time for these defendants. I had said (ts 165):
Where I'm headed, I think, is that assuming I've got the power to vary the sprung order for judgment in respect of damages and statutory compensation - something that I need to be satisfied about in due course, but I will make that assumption - the question is whether that should be varied or not. And that can only be done on the basis of evidence.
On 11 December 2017, there was a further directions hearing attended by senior counsel (Mr Ritter QC) for the plaintiff and again by junior counsel (Mr Williamson) instructed by Ms Somerville of ABMS Lawyers for the defendants. On that occasion I made this observation (ts 172):
The question of my jurisdiction to set aside a springing order which has sprung, rather than have the parties go down the track of investigating that, I have done some research since the last directions hearing, and it seems to me that applying the decision of the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, that there is jurisdiction to extend time for compliance with the springing order which has sprung. That line of authority has been applied in this court. In particular, I refer to Allanson J's decision in Ward v Keet [No 4] [2010] WASC 268 at [53] where his Honour says:
First, it is common ground the court has power to extend time under a springing order which has 'sprung'.
Following that there was an exchange with counsel which I began in these terms:
The question really then is whether I would exercise it, which leads to my second point, and the question that arises in regard to the second point on the defendant's chamber summons effectively phrased as setting aside the judgment, but in fact it would be applying that line of authority to extend time for compliance, is that the very event which has led to the springing order, namely, the failure to provide this security by reference to orders that I made, and then I think extended at least one [sic], has still not been met.
Now, on that basis, it seems to me that it's until the default that's actually led to the order which has now sprung, it's completely untenable to even contemplate hearing argument about setting that aside, given the subsisting default as of now.
RITTER, MR:   Yes.
WILLIAMSON, MR:   I agree with you entirely, your Honour.
KENNETH MARTIN J:   All right. Thanks, Mr Williamson.
WILLIAMSON, MR:   That would have been my submission too.
KENNETH MARTIN J:   Yes.
WILLIAMSON, MR:   Your Honour, is that [sic] the first thing that needs to be dealt with is the - whether or not, in particular, the various orders have been complied with, and the most important of those, of course, is the putting amount into some form of escrow. (ts 173)
The position I articulated, by way of attempted assistance to counsel on 11 December 2017, was effectively the same position I subsequently reached under the Pier v Jean Maurice [No 3] reasons published on 25 January 2018 (but earlier delivered ex tempore, on 16 January 2018).
The problematic issue for the defendants was always that the application as then pursued was not, in truth, an application to extend time to enable a compliance with the original orders concerning payment of money or the delivery of gold. What was really being sought by the defendants' application was something else - by way of an 'after the event' variation to those original orders. This was always misconceived in legal concept.
That legal misconception ought to have been appreciated, particularly after the remarks I made in chambers on 11 December 2017 when junior counsel and Ms Somerville were both present. However, I would also assess that the issue that day had become somewhat obscured as, indeed, it was again at the argument at 16 January 2018. That obscurity had arisen from the different legal position taken by the plaintiff over a collateral point - to the effect that other than by an appeal, it was not even possible for me to extend time, since the FAI v Southern Cross line of authority did not apply in Western Australia. The plaintiff was then submitting that the defendants had no option other than to appeal out of time to the Court of Appeal any of my orders which had taken effect on 5 October 2017.
In the end, I had resolved the application of the defendants on the basis that the FAI v Southern Cross line of authority did apply, but that the application was still wholly defective as it did not seek to extend time for the purposes of a compliance with any prior orders.
I have again reviewed all the materials filed at the court on this application of the defendants in the period prior to the arguments of 16 January 2018, particularly the written submissions filed for the defendants on 9 January 2018: see court document 169.
Closely reviewing those materials again, leads me to an end conclusion that in all the prevailing circumstances, Ms Somerville, as a relatively junior and inexperienced legal practitioner (admitted to practice in April 2013) on this occasion, was entitled to rely on guidance to her and to her clients by both senior and junior counsel. They were briefed and appeared, pressing this application for the defendants as one of potential merit. The application failed and had been pressed for in circumstances where an extension of time to enable a compliance was never actually ever sought. Hence the application was misconceived and, in effect, always doomed to fail. Again it is true that I warned of the problem at the 11 December 2017 directions hearing.
But those deficiencies in the application ought to have been well appreciated by experienced senior and junior counsel who were involved then. I am prepared to infer in the circumstances that senior and junior counsel did provide advice to the defendants and to Ms Somerville concerning the application. She was entitled to look to them for guidance on that application. To single out Ms Somerville for a personal costs exposure in these particular circumstances would, as I assess matters, not be just or appropriate. This is particularly so where the court does not see the full picture concerning the advice from both senior and junior counsel at the time - given the defendants' refusals to waive their privilege. That feature will not always be of significance. But in this instance it is for me here.
Depending on the facts, there can be instances where it is not appropriate to differentiate in terms of decisional responsibility, where the position of the lawyer of record - in contradistinction to that of counsel, is clear. That is not the case presently. Here a differentiation in responsibility overall, is appropriate.
Consequently, I would not render a personal costs order against ABMS Lawyers for such circumstances as regards the plaintiff's first grievance.

Second matter raised: orders sought under the defendants' minute of orders filed by ABMS Lawyers on 21 March 2018

I can deal with this incident more briefly. There was a routine directions hearing held before me on 22 March 2018 in the action. On that occasion, Mr Vinciullo attended on behalf of the plaintiff. Mr McIntyre SC then appeared on behalf of the second, third and fourth defendants. By that time the first defendant was in liquidation.
At this directions hearing, and essentially as had been sought, by the earlier exchanged conferral minute of the plaintiff, I ultimately issued orders in terms:
1.The defendants file and serve any responsive witness statement to the material currently filed by the plaintiff in relation to the assessment of damages and statutory compensation by 16 April 2018.
2.The plaintiff may file and serve any responsive affidavit and materials by 23 April 2018 concerning the assessment of damages.
3.The plaintiff has leave under s 471B of the Corporations Act 2001 (Cth) to proceed with the action against the first defendant, Jean Maurice Pty Ltd (in liq).
4.The action be listed for an assessment of damages and statutory compensation hearing for two days on 7 and 8 May 2018.
There are some noteworthy features in those orders which are relevant to subsequent arguments arising from that directions hearing.
As seen from order 1 above, I fixed 16 April 2018 as the date for a receipt of responsive materials from the defendants - for the purposes of the assessment of damages hearing. I then allowed a week for the plaintiff to file any responsive materials. Although order 1 of those orders did not explicitly refer to expert materials, it was plain by that time the plaintiff had filed an expert accounting report of Ms Marke to be used as its evidence at the assessment hearing. Therefore, if the defendants wished to respond by filing any expert evidence of their own to rely upon at that future hearing, then they would have needed to do that by 16 April 2018.
This position was evident given the time lines I then set, in particular, bearing in mind order 4 of those orders, which had fixed a two‑day assessment of damages hearing for 7 and 8 May 2018.
The plaintiff's second wasted costs grievance on the present application, by reference to which a further wasted costs order against ABMS Lawyers is now sought, arises out of the fact that prior to this directions hearing, as would be expected, the second, third and fourth defendants, through ABMS Lawyers, had filed a rival minute of proposed orders on behalf of the defendants on 21 March 2018.
The defendants' rival minute sought to have the plaintiff's advocated assessment of damages hearing stayed, pending the hearing of a further application as then foreshadowed by par 2 of that minute ‑ this time under RSC O 3 r 5(1), to extend the period within which the defendants could comply with my orders of 28 September 2017:
2.[T]o a date determined by this Court to enable the Defendants with the leave of the Court to effect and complete the sale of lands situated in the United Kingdom (previously described).
That same minute also sought leave for the second, third and fourth defendants to file further materials in support of that as foreshadowed fresh application to set aside the judgment and also to set aside my previous orders.
By that same minute, the defendants also sought leave to vary the terms of the asset freezing orders I had issued much earlier in 2017 - to enable a raising, it was put, of AUD$1.6 million by the defendants. Further variations to previous orders were sought by that minute, including passport surrender orders.
The tenor of the proposed orders under the defendants' rival minute of 21 March 2018, envisaged the court would likely be moved at the 22 March 2018 directions hearing by counsel for the defendants for the relief the subject of the defendants' minute - ie extending time for compliance, thereby enabling future compliance by a payment of funds into a joint bank account and then a discharge of, or variation to, the court's prior freezing orders.
Hence, the magnitude of the defendants' then foreshadowed counter applications under their minute, at least on paper, appeared to be expansive. It then led, according to Mr Vinciullo's affidavit (affirmed 12 July 2018 in support of this application for costs against ABMS Lawyers) and read on the present application, to an extensive amount of preparation on the plaintiff's lawyers' part - in anticipation of what looked to be on paper, a heavily contested directions hearing.
The present application for wasted costs is made on the basis that after the plaintiff's counsel (Mr Vinciullo) at that hearing had articulated the plaintiff's position under its minute, senior counsel for the defendants (Mr McIntyre SC) simply did not seek to then press for any contrary relief or orders at all, as had been otherwise foreshadowed under the defendants' minute filed and exchanged the previous day. Hence, the plaintiff asserts that all the intensive legal preparations overnight and the next day, in the end, were for nought. There was, in effect, as things turned out, little if any contest at the hearing despite the strongly opposing rival positions seen under the exchanged respective minutes.
Towards resolving this issue, I have again reviewed the transcript and the materials pertaining to the 22 March 2018 directions hearing. By a 12 July 2018 affidavit filed in support of the present application, Mr Vinciullo says at par 34:
I attended court with Mr L Ayres, a partner, and Mr G Pearce, from our firm on 22 March 2018 as counsel for Pier WA and Mr McIntyre SC appeared for the defendants. When the matter came before the Court, Mr McIntyre SC did not argue or advance any of the defendants' foreshadowed claims.
However, Ms Somerville's affidavit of 22 August 2018, sworn for her firm, ABMS Lawyers, in resistance to the present application, says, at par 43:
The Minute and the affidavit were initially drafted by me but settled by Mr Williamson.
Mr Somerville's affidavit makes reference to one of her clients' (Mr Durolek's) then affidavits sworn on 20 March 2018 in support of the orders foreshadowed as sought in the defendants' minute. She continues at pars 44 - 45:
44.Mr McIntyre SC appeared for the defendants at the directions hearing on 22 March 2018. After hearing the submissions made by Mr Vinciullo for the plaintiff, Mr McIntyre did not seek orders in terms of the Minute.
45.The Court ordered the defendants to file any responsive witness statement in relation to assessment of damages by 16 April 2018 and listed the assessment of damages for hearing on 7 and 8 May 2018.
On this wasted costs issue, I would also mention that at page 24 of Mr Vinciullo's 12 July 2018 affidavit, he attaches ABMS Lawyers' covering letter, enclosing the defendants' rival minute of 21 March 2018, sent the day before the directions hearing. That letter foreshadowed a request for adjournment of the directions hearing. It read:
Subject to leave of the Court for our client to sell the properties in London, we have instructions to make an application to set aside judgment on the basis that our client will have cash to put into Court/trust account. We will then be seeking orders in terms of the attached minute.
That covering letter casts a little light upon the timing by which the defendants' minute of proposed orders had been framed to take effect in the future, if at all.
The essence of the plaintiff's wasted costs grievance against ABMS Lawyers on this aspect of its application arises under pars 28 and 29 of its written submissions which contend, in effect, that the foreshadowed orders for the second, third and fourth defendants 'must be taken to have been abandoned'. It is further argued at par 62 that it must be assumed 'the application was baseless and was never going to be made' and 'was unreasonably maintained until and including the hearing'. Hence, there is said to be 'unreasonable conduct by ABMS Lawyers', ultimately resulting in 'wasting the costs incurred by Pier', in preparing to resist the foreshadowed orders under that minute.
In present circumstances, in particular, bearing in mind the extraordinary nature of the adverse costs jurisdiction, I am not prepared at the end to reach a conclusion that the conduct of ABMS Lawyers, assessed in overall context, was 'unreasonable conduct' under the terms of the RSC O 66 r 5 - for the purpose of making the present costs orders as now sought. As seen, senior counsel was engaged to appear at this directions hearing for the defendants. At the time, the costs at the end of that directions hearing were reserved. Ultimately, all reserved costs were awarded to the plaintiff under the subsequent final orders I issued.

In circumstances where legal professional privilege has not been waived by the defendants so that, once again, I do not hold a full insight into the underlying circumstances with these defendants and the nature of the advice that was given by senior and junior counsel concerning the foreshadowed orders sought under the defendants' minute, I am not prepared to single out Ms Somerville for an adverse personal costs order against her. As a junior practitioner, Ms Somerville was again entitled here to a level of sensible guidance and proper direction from both junior and senior counsel.
The directions hearing listed that day to programme an assessment of damages hearing was set some time beforehand. I accept that there would have been some wasted costs for the plaintiff's lawyers in preparing to resist the defendants' application as foreshadowed under the defendants' exchanged minute of proposed orders. But sometimes counsel need to make urgent, or 'on the run' tactical decisions during a hearing as it proceeds, in less than optimal circumstances.
One of the most helpful services an independent barrister can render to assist in the overall administration of justice is to fearlessly divest what present or emerge to be unmeritorious arguments on its side when necessary. That is a practice to be promoted - even in circumstances where it may take some time for 'the penny to drop' concerning the demerits of an argument, a legal point, or towards a factual position previously taken on that side of the bar table. Things are rarely static in a civil courtroom. As a matter of policy, there ought to be no potential personal costs sanction looming in the background to subconsciously bear against a fearless discharge of that jettison responsibility, when it is called for at any level.
Here, I do not know all of the underlying background circumstances surrounding this application sufficiently to render any reliable adverse judgment against any of the 'players' on the defendants' side. In this instance, I think it would have been asking too much of a relatively inexperienced legal practitioner like Ms Somerville to expect her to overrule or argue against a different position taken by her engaged senior counsel, particularly during the course of running arguments that unfolded in chambers at that hearing.
Consequently, I will not render any adverse costs order against ABMS Lawyers as regards the second aspect of the present application.

Third and fourth aspects of the plaintiff's wasted costs application: the defendants' application by chamber summons filed on 1 May 2018 (heard Friday, 4 May 2018) to file expert evidence and to vacate the trial hearing dates

The third and fourth aspects of the plaintiff's costs grievances both relate to the assessment of damages hearing which was heard across four days, namely, 7, 8, 23 and 28 May 2018 and culminated in my reserved reasons finding in the plaintiff's favour under Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 6] [2018] WASC 204, delivered 2 July 2018.
The personal costs order application against ABMS Lawyers via the third grievance is essentially the subject of my reasons in Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 4] [2018] WASC 202. Those reasons were first delivered ex tempore on 4 May 2018, then subsequently revised and published on 2 July 2018.
The grievance, in essence, relates to the defendants' urgent last minute application I heard on Friday afternoon, 4 May 2018. This was on the last working day before the commencement of the two days fixed for the assessment of damages hearing. The defendants' application sought to vacate those hearing dates - on the basis of their late filing of a report from an expert accountant, Mr Monaghan, who had been engaged by the second, third and fourth defendants.
In the end, I did not accede to that adjournment application. But I nevertheless accommodated a receipt of Mr Monaghan's late expert report by rescheduling the rival expert accountants to have them give concurrent evidence, once all the lay evidence was heard. Both expert accountants' evidence was then programmed by me to be heard concurrently, on Wednesday, 23 May 2018.
That rescheduling was enabled in circumstances where 23 May 2018 had, fortuitously, just become available in my list - by a resolution of another matter previously fixed for hearing on that date.
The orders I issued on 4 May 2018 can be found under [19] of my Pier v Jean Maurice [No 4] reasons. In particular, I refer to orders 4 and 6 of those reasons. Under order 6, I granted leave for an application by the plaintiff foreshadowed that day to concurrently seek costs orders as against the lawyers of record for the second, third and fourth defendants.
The fourth and last aspect of the plaintiff's costs grievances against Ms Somerville, relates to another application that was advanced only on behalf of the fourth defendant at the assessment of damages hearing. This became the subject of my reasons under Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 5] [2018] WASC 203. Again, the application was refused. I again delivered reasons at the time on an ex tempore basis. That was on the first day of the assessment hearing on 7 May 2018. I subsequently revised, edited and published those reasons, on 2 July 2018.
The reasons in Pier v Jean Maurice [No 5] are self‑explanatory. An application was advanced on the first day of the hearing by counsel for the fourth defendant. It was a lengthy application. It saw the fourth defendant, Mrs Durolek, cross-examined on an affidavit she had filed on her own behalf. Cross‑examination saw Mrs Durolek's express a position that was then exposed as one of her misunderstanding over what had previously occurred. It revealed her concern over a trivial point of no real forensic relevance - that ought properly to have been explained earlier to her by her lawyers, as being meritless. But obviously, that did not happen.
The consequence was a loss of most of the first day allocated for the assessment of damages hearing by hearing and pursuing this distracting application. Fortunately, the balance of the lay evidence, including cross‑examination, adduced at that hearing was able to be completed across the second day of the hearing. Later, the parties' expert evidence was received concurrently from both expert accounting witnesses - across an extra day of the hearing, on 23 May 2018. There then followed a five‑day hiatus after that for the parties to prepare and exchange written closing submissions concerning the assessment of damages hearing. Those written submissions were then briefly spoken to by respective counsel at the assessment hearing's conclusion, on the morning of 28 May 2018.
Having once again reviewed all the materials submitted for the hearings on 4 May 2018 concerning the fourth defendant's application heard on 7 May 2018, on the third grievance complained of by the plaintiff, I am satisfied that in this aspect of the plaintiff's grievances, there should be a personal costs order against ABMS Lawyers. That is appropriate upon what I assess was causatively wasteful and clearly unreasonable conduct of Ms Somerville - in the way by which she went about the engaging of Mr Monaghan as the defendants' accounting expert for the assessment of damages hearing.
In short, as her own affidavit of 22 August 2018 candidly reveals, Ms Somerville had, on instructions from Mr Durolek, contacted Mr Monaghan on 10 April 2018. That was in circumstances where it was then known the defendants' responsive materials (including their expert evidence) to be used at the assessment of damages hearing were due to be filed and exchanged some six days later, ie, on 16 April 2018. However, Mr Monaghan, as Ms Somerville relates, had told her on 10 April 2018, that it would not be possible for him to provide his expert accounting report within that time frame. He had told Ms Somerville then that he would need three to four weeks. Nevertheless, Ms Somerville engaged him for the defendants to provide his expert accounting report - in an unsatisfactory way as I explain below.
Inexplicably, Ms Somerville wrote a letter to Mr Monaghan on 10 April 2018, wrongly telling him that his 'report [would be] required to be filed a couple of days before the hearing of 7 and 8 May 2018'.
Mr Monaghan's expert report was not received until Thursday, 3 May 2018. It was filed at court by Ms Somerville's firm that afternoon via the court's electronic filing system. The plaintiff's lawyers were only informed about that report on the morning of Friday, 4 May 2018. It was the first they had heard of such an expert report being used by the defendants.
The circumstances in which Mr Monaghan was engaged were unacceptable, even for a junior practitioner of limited litigation experience such as Ms Somerville. Her affidavit sworn and filed on 22 August 2018 says she now appreciates her error. She says at par 50:
I regret using the phrase 'required to be filed' in the above statement and now acknowledge that it carries connotations of the requirement being by way of Court order. That was not my intent.
Of course, what should properly have happened here, if the defendants did still wish to rely on an expert accounting report from Mr Monaghan in circumstances where Ms Somerville had only spoken to him on 10 April 2018, would have been to urgently seek leave of the court (after a proper unresolved conferral) to extend the time line of 16 April 2018 to allow receipt of a late report of this kind. That course should have been taken well prior to the expiry of the first directed time line for the filing of evidence imposed by the court running out and becoming the subject of another compliance default by the defendants.
Hypothetically, assuming the plaintiff's lawyers had opposed leave for a late receipt of a report from Mr Monaghan (ie, later than 16 April 2018) then an application by Ms Somerville's firm, on behalf of the defendants, made before 16 April 2018 seeking an extension of time, should have openly been made before time ran out.
Had that course been taken instead, then, the court would have been in a position to openly address this late expert evidence problem, rather than needing to clean it up on 4 May 2018, then in circumstances of great, but wholly unnecessary, urgency.
I find that position upon the third grievance is not a scenario in which a refusal by the defendants to waive their privilege bears at all upon me obtaining a reliable overall perspective about what happened here.
There was clearly unsatisfactory and unreasonable conduct by ABMS Lawyers surrounding the third grievance. The engagement of junior counsel who attended on that Friday afternoon at the hearing of this application, provides no mitigatory palliative against what was the misconceived basis upon which Mr Monaghan had been engaged at leisure as an expert for the defendants by Ms Somerville herself.
It would appear that Mr Durolek personally had found Mr Monaghan, but had left Ms Somerville to formally take steps to engage him. The unsatisfactory conduct position is still, unmistakenly clear. The leisurely approach to the engagement of an expert adopted by Ms Somerville as from 10 April 2018 displayed what was less than the competence expected of any legal practitioner. Ms Somerville should then have divined, if not from her law school procedure course, then certainly as a matter of daily experience of practice in courts at any level, that for her to engage Mr Monaghan on the basis that her firm could file materials from him, particularly as an expert witness well out of time - violating a time line set by the court's orders for the receipt of all materials - was unreasonable. It was wholly unacceptable conduct for any legal practitioner. The correct way to proceed was before the prescribed time had expired. Ms Somerville's conduct, even on her own explanation, was a deliberate choice of the wrong way of doing things in this situation. It is necessary, that Ms Somerville's conduct here be called out by an adverse costs order - if it has causatively delivered any adverse cost consequences to the plaintiff. In my view, it has - to a limited extent only. The causatively adverse cost consequence was only the unnecessarily occasioning of the event of the urgent chambers hearing on the afternoon of Friday, 4 May 2018. That hearing was otherwise completely avoidable, had Ms Somerville chosen the correct way of proceeding, as regards her engaging this expert witness. The extra question is whether Ms Somerville is causatively responsible for any further wasted costs beyond an unnecessarily wasted Friday afternoon's attendances at chambers.
It will be remembered at that time, I addressed the expert report problem by allocating a later and separate day (23 May 2018) for the concurrent receipt of expert evidence on both sides. That came to pass in due course and Mr Monaghan's evidence was concurrently received at that time with that of the plaintiff's expert accountant, Ms Marke.
In the end, 23 May 2018 proved to be a long day. It was fully occupied first with the receipt of two rival tranches of expert accounting evidence, then the questioning and cross-examination of the two rival accounting experts upon their respective reports. I deal with that opposing expert evidence essentially in Pier (WA) Pty Ltd as trustee for Isandi Trust v Jean Maurice Pty Ltd (in liq) [No 6] at [112] ‑ [126].
The presenting further costs question, as argued by the plaintiff, is whether but for Ms Somerville's unfortunate decision to engage Mr Monaghan late without the leave of the court and the consequential late preparation and receipt of a report by Mr Monaghan (who is not to be blamed for any of this), did she also caused a need for the third hearing day, when otherwise the assessment of damages might have been completed in only two originally allocated days? I have considerable doubt about that alleged further causative consequence, having heard all the trial's considerable evidence.
In the end, I am not presently satisfied to the requisite civil standard that this causative question can be answered in the affirmative. Essentially, a very large amount of non‑expert evidence was adduced from the plaintiff. Much time was occupied by the cross‑examination of the plaintiff's lay witnesses. Those lay evidence activities, in my view, were otherwise very likely to have consumed most of the two allocated hearing assessment days. That would have still left a need to adduce Ms Marke's expert accounting evidence across an extra (third) hearing day, on my overall assessment of what unfolded.
That is particularly so in light of my evaluation of the intersecting intrusion, from a court time consumption perspective, of the fourth matter complained of and which I discuss next. It overlaps with these overall observations on the third grievance of the plaintiff's present application and I turn to it.

The fourth matter complained of

The conduct complained of under the fourth grievance is the subject of my reasons in Pier v Jean Maurice [No 5]. On my view, it reflects unhappily on everyone involved for the fourth defendant. That is apparent from the reasons. See particularly [13], [14], [15] and [16]. At [18] I said:
On my assessment, this is a case where the present application ought not to have been brought. It is a serious thing to accuse a legal practitioner of misleading the court without foundation. Quite frankly, that suggestion ought to have been withdrawn. I remain concerned it was not withdrawn once the true position was exposed today.
Refusing that application, I issued at that time an indemnity costs order against the fourth defendant, on a basis of what I assessed to be extraordinary circumstances. I also gave leave at that time for an application for costs to be concurrently brought against the lawyers for the fourth defendant. See [20] of those reasons for decision.
Again here, I have reviewed the assessment hearing's transcript concerning this aspect of the plaintiff's costs application. Clearly, dealing with that matter concerning the fourth defendant then consumed the major part of the first hearing day on 7 May 2018 - that was otherwise allocated for the assessment of damages hearing.
It is plain that this application was drawn and pursued with the input of counsel. Ms Somerville's affidavit (22 August 2018) says at par 66:
Mr Williamson drafted and settled the chamber summons. I initially drafted the affidavit [of the fourth defendant], but it was settled by Mr Williamson.
The application of the fourth defendant had very little to do with the assessment of damages hearing fixed for hearing that Monday and Tuesday - other than possibly displaying a belief from the fourth defendant that it could lead to a setting aside of the judgment obtained against her.
Once I had pronounced in ex tempore reasons rejecting the fourth defendant's application at 3.44 pm on 7 May 2018, the defendants' counsel then withdrew any suggestion the court had been misled (see ts 293). But the retraction did not, as I assessed it, then, amount to a withdrawal of what had always been a misguided attack strongly directed against a legal practitioner throughout the course of 7 May 2018. That had unfolded in spite of my efforts to deflect counsel from advancing it any further: see ts 209, 210, 214, 254, 286.
Add for completeness that Ms Somerville attended court at the time that judgment was being delivered at the assessment of damages reserved decision in July 2018. At that time she was seeking leave to remove herself as the lawyer of record for the second, third and fourth defendants. But she also put on the record at that time her personal withdrawal of any suggestion that the legal practitioner concerned had misled the court by passages in an earlier affidavit the fourth defendant had challenged as being misleading. That was proper, albeit at a late stage.
In the end, upon the fourth grievance, I am of the view that this was again a situation in which, due to the heavy involvement of more experienced and independent counsel, the responsibility for what was a misconceived application on behalf of the fourth defendant, should not be laid at the doorstep of Ms Somerville. It is clear from the materials filed and from the way in which argument proceeded before me across most of Monday, 7 May 2018 that counsel was fully committed to advance that application for the fourth defendant at that time and did so with considerable determination.
In such circumstances, and particularly where the defendant clients did not waive their privilege, I assess that it would be unfair to attribute responsibility by a costs exposure solely against such an inexperienced legal practitioner. Again, she was entitled to receive better guidance upon a very serious application such as this. It is clear to me she did not receive the proper level of guidance ‑ namely, that such application was always misconceived. That would have been the proper advice that should have been given from counsel in these circumstances. It would be unrealistic to expect an inexperienced legal practitioner like Ms Somerville to overrule her client and junior counsel on a considered point of challenge such as this.
The temporal ramifications of this argument were such that it effectively consumed most of the first day of the assessment of damages hearing. To the extent a third day was then consumed by the receiving, hearing and cross-examination of the expert evidence, that time consequence was, I assess, always going to result from the lengthy advancement of this application on behalf of the fourth defendant. The expert evidence, as I said earlier, most likely would have needed an extra day, in any event. But this fourth grievance was itself another cause of an extra day in hearing time being needed.

Returning briefly to the third matter, its causative waste consequence in the end was, in my view, only a wastage associated with the chambers hearing across the afternoon of Friday, 4 May 2018. That waste should be the extent of the personal responsibility of Ms Somerville under the third matter. But that is the extent of the liability of ABMS Lawyers in all the circumstances. The other aspects of the plaintiff's grievances have not been made out.

Orders

Consequently, the appropriate order prima facie, would seem to be that ABMS Lawyers should pay to the plaintiff on an indemnity basis (and concurrently with the defendants but on the basis of costs being recovered only once) the solicitor/client costs occasioned to the plaintiff by reason of the preparation for and attendances at the urgent chambers hearing convened on the afternoon of Friday, 4 May 2018, to be taxed, if not agreed and paid within 30 days of their ascertainment either by agreement or by taxation.
As regards the costs of the present application, my prima facie view in light of a mixed end result, that all participants should bear their own costs.
These reasons will now be provided to the parties for their consideration as to a making of final orders. They will then be publicly available and accessible on the court's website 48 hours after publication to the parties - unless there is an application made seeking to the contrary in that 48‑hour period.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AC
RESEARCH ASSOCIATE/ORDERLY TO KENNETH MARTIN & CORBOY JJ
21 NOVEMBER 2018