Russell v Wisewould Mahony (a firm) (Ruling No 3)
[2018] VCC 52
•25 January 2018
There are thought she
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-16-04574
| CHRISTOPHER ANDREW RUSSELL |
| v |
| WISEWOULD MAHONY (a firm) |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | Ex parte application determined on the papers | |
DATE OF RULING: | 25 January 2018 | |
CASE MAY BE CITED AS: | Russell v Wisewould Mahony (a firm) (Ruling No 3) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 52 | |
RULING AS TO COSTS
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Subject:COSTS
Catchwords: Application by defendant for costs of the proceeding including costs associated with the application for summary judgment
Legislation Cited: Civil Procedure Act 2010
Cases Cited:Water Board v Moustakas (1988) 180 CLR 491
Ruling:Plaintiff pay the defendant’s costs of the proceeding to be assessed by the Costs Court on a standard basis. Plaintiff pay the defendant’s costs, limited to the first day of its application for summary judgment, to be assessed by the Costs Court on a standard basis.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Ms A Golding | Collins Biggers & Paisley Pty Limited |
HIS HONOUR:
1 In this matter, which the plaintiff appears as a self-represented litigant, the defendant has been successful in an application that the proceeding be dismissed pursuant to the provisions of the Civil Procedure Act 2010.
2 The defendant now makes application for costs of the proceeding, including the costs associated with the application for summary judgment, which application was conducted over three days, namely 15 and 16 June 2017 and 26 October 2017.
3 It is accepted by the defendant that the application was complex, given the issues which arose and the need for the defendant to establish the various grounds upon which the application was eventually determined in its favour.
4 In exercising my discretion as to costs, I do not consider the submissions made by the plaintiff that he was in some way prejudiced in his ability to either present or argue his position by reason of the statement made by the solicitors for the defendant that it did not propose to rely upon the decision in Water Board v Moustakas[1] to have any merit.
[1](1988) 180 CLR 491.
5 In reality, there was no controversy as to the law which applied in determining the defendant’s application and the choice by the defendant to rely on one particular authoritative case rather than another for the purpose of illustrating the operation of the law is of no real moment.
6 I am satisfied that the plaintiff approached his opposition to the application with an honestly held but fixated view of the facts which was totally misconceived and that no prejudice was done to the plaintiff in the defendant choosing the authority upon which it relied in mounting its argument.
7 There can be no doubt, however, that the obligation of the defendant in this instance was to assist both myself and the plaintiff to understand and grapple with the factual and legal issues which arose in the application.
8 In my opinion, it was incumbent upon the defendant, having regard to the complexity of the factual matrix upon which its application was founded, to ensure that the defendant’s argument was presented succinctly and efficiently.
9 Whilst over the three days during which the application proceeded, it was clear to me that the plaintiff understood the defendant’s arguments notwithstanding his vehement opposition to the various positions put by the defendant, I am nevertheless satisfied that the application for summary judgment should have proceeded more efficiently, and would have done so had the defendant:
(i) provided greater assistance to the Court in assembling the relevant material; and
(ii) prepared an indexed court book which allowed efficient access to the various passages of transcript which were pivotal to the findings in this instance.
10 The lack of careful consideration applied by Counsel when presenting the defendant’s position is well illustrated by:
(i) the discussion between myself and Counsel on 16 June 2017 as recorded at T108, L20 to T109, L30; and
(ii) the discussion between myself and Counsel on 26 October 2017 as recorded at T152, L7 to T155, L16.
11 That factual evidence upon which the defendant’s position as to the latter argument was founded had been available to the defendant since the generation of the relevant expert report. It was never the subject of written submissions and when presented in the course of oral submissions was so convoluted that it drew my comment that I had difficulty following the submission but would consider it carefully having had access both to the transcript and the expert evidence upon which it was based.
12 In my view, when exercising my discretion as to costs, I should take into account:
(i) the lack of assistance provided to me by Counsel in dealing with the aspects of the plaintiff’s claim to which I have referred above; and
(ii) the considerable time which I am satisfied was occupied in locating the relevant passages of transcript and expert evidence in the absence of a paginated court book.
13 In my opinion, there can be no argument that the defendant is entitled to the costs of the proceeding, having regard to the order which is made in this instance that the proceeding be dismissed.
14 As to the costs associated with the application which resulted in the order dismissing the proceeding, I am satisfied that the application was unnecessarily and substantially prolonged by the defendant’s failure to provide a comprehensive outline of argument and assemble all the relevant evidence in a paginated court book which was available to the parties at the time at which the application commenced.
15 For these reasons, whilst I am satisfied that I should make an order in favour of the defendant with respect to the costs of the proceeding, I am equally satisfied that I should limit the order to which the defendant is entitled with respect to the strike out application to one day.
16 Accordingly, I propose to make an order:
(1) That the plaintiff pay the defendant’s costs of the proceeding to be assessed by the Costs Court on a standard basis.
(2) That the plaintiff pay the defendant’s costs, limited to the first day of its application for summary judgment, to be assessed by the Costs Court on a standard basis.
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