Russell v Aitken Partners (A Firm) (Ruling No. 5)

[2018] VCC 50

Life ha

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

Case No. CI-16-05222

Christopher Andrew Russell	Plaintiff
v
Aitken Partners ( A Firm )	Defendants

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF RULING:	25 January 2018
CASE MAY BE CITED AS:	Russell v Aitken Partners (A Firm) (Ruling No. 5)
MEDIUM NEUTRAL CITATION:	[2018] VCC 50

Ruling

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Subject:  Costs - Application for summary judgment

Ruling:The Plaintiff pay the costs of the Second Defendant on an indemnity basis

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N/A	In Person
For the Defendant	N/A	K&L Gates

HIS HONOUR:

1       On 29 June 2017 the plaintiff made application for summary judgement against the defendant.

2       On 1 August 2017 the defendant’s solicitors addressed a letter to the plaintiff in the following terms:

“It is our client’s position that your application is misconceived and will not succeed. The application suffers from the same defects as your attempted application referred to before the Court at the directions hearing on 5 April 2017 (and withdrawn by you at that directions hearing) and your subsequent attempted application made by email to the Court on 22 June 2017. You will recall that His Honour Judge Saccardo did not grant you leave to pursue that application and noted in the orders dated 23 June 2013 (sic) that the application was “misconceived with no merit”.

Your three most recent applications rely upon the admissions at paragraph 37 (a) of our clients defence. As you know at that directions hearing on 5 April 2017 His Honour cautioned you in respect of relying on that admission as the sole basis of a summary judgement application. To the extent your current application relies upon the overarching obligations under the Civil Procedure Act it is our view that you have confused the substantive law with procedural requirements, and your application remains misconceived.

It is our clients intention to oppose your application for summary judgement and we expect that our client will succeed in doing so. The court has already cautioned you that costs will follow the event should you proceed with your application. We put you on notice that in the event your application is unsuccessful we intend to seek an order that you pay our clients costs of the application on an indemnity basis and that they be paid immediately.

Our client will rely on this letter on the question of costs should it be necessary for it to do so”.

3       On 5 December 2017 I delivered a ruling that the plaintiff’s application for summary judgement be dismissed and ordered the plaintiff to pay the costs of the proceeding. At that time I gave the defendant liberty to apply as to the form of a costs order which should be made.

4       In its affidavit in support of the application made for indemnity costs the defendant rightly points out that at a directions hearing on 5 April 2017 I explained to the plaintiff the law which applied to an application for summary judgement, provided to the plaintiff the relevant commentary as to the law applicable to applications for summary judgement as set out in Williams Civil Procedure Victoria and cautioned the plaintiff as to the cost consequences associated with pursuing such an application which was unsuccessful.

5       At that time I explained to the plaintiff the fact that the admission made by the defendant in paragraph 37(a) of its defence did not operate so as to defeat the defendant’s defence or warrant the entry of summary judgement against the defendant.

6       As I understand the plaintiff’s submissions dated 21 January 2018, the plaintiff essentially opposes the application for costs on the basis that he is not a member of the legal profession and that he “failed to formulate his claim in a manner so that it might be considered on its merits.”

7       Whilst due allowance must be made for the fact that the plaintiff:

·    is self represented; and

·     is not a lawyer,

given that the plaintiff elected to proceed with this application, when considered in the context of:

(i)    my advice to the plaintiff at the directions hearing on 5 April 2017;

(ii)  the defendant’s letter of 1 August 2017; and

(iii) the misconceived nature of the application,

I am satisfied that a costs order should be made in favour of the defendant with respect to this application on an indemnity basis.

8 In making that statement I am cognisant of my obligations and powers under sections 7-9 of the Civil Procedure Act 2010.

9       I also give due weight to the fact that the plaintiff is self – represented and for that reason was entitled to the guidance provided by me in the course of the directions hearing referred to above, but in the context of that guidance elected to proceed with the application.

10      The defendant’s costs fixed on an indemnity basis have been assessed by Ms Jenny Young, a costs lawyer, in a letter dated 15 December 2017 in the sum of $9,323.87.

11      I am satisfied that I should fix the defendant’s indemnity costs in that amount.

12      The defendant seeks an order that the costs order in this instance contain a term that those costs be payable forthwith.

13      The making of such an order is unusual and given that the plaintiff is self-represented I am not satisfied that is it is appropriate that I make such an order.

14      For these reasons I am satisfied that I should make an order that the payment by the plaintiff of the costs the subject of this order be stayed until the conclusion of the proceeding or further order by the court.

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