Vizovitis v Ryan
[2012] ACTSC 155
•October 19, 2012
GEORGIA VIZOVITIS v EUNICE CATHERINE MARY RYAN t/as RYANS BARRISTERS & SOLICITORS
[2012] ACTSC 155 (19 October 2012)
PRACTICE AND PROCEDURE – apprehended bias – application for disqualification of trial judge during trial – applicable principles – apprehended bias not made out – application dismissed.
PRACTICE AND PROCEDURE – summary dismissal of proceeding during trial on ground that relief sought not reasonably proportional to likely cost and duration of proceeding – applicable principles – application dismissed.
PRACTICE AND PROCEDURE – costs – security for costs – application for security during trial – ground of justice of the case – security sought against individual – no evidence of inpecuniosity – no evidence of divesting of assets – no evidence of attempts to evade liability for costs if order made – application dismissed
Legal Practitioners Act1970 (ACT)
Legal Profession Act2006 (ACT)
Supreme Court Rules 1937 (ACT)
Court Procedures Rules 2006 (ACT)
Civil Procedure Act2005 (NSW)
Corporations Act2001 (Cth)
Barakat v Goritsas(No.2) [2012] NSWCA 36
Livesey v NSW Bar Association (1983) 151 CLR 288
Vakauta v Kelly (1989) 167 CLR 568
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Jones v Sutton (No.2) [2005] NSWCA 203
Bi v Mourad [2010] NSWCA 17
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34
Schellenberg v British Broadcasting Corporation [2000] EMLR 296
Wallis v Valentine [2003] EMLR 175
Jameel v Dow Jones and Co Inc [2005] QB 946 (Court of Appeal).
Grizonic v Suttor [2008] NSWSC 914
Ware v Amaral Pastoral Pty Ltd(No.4) [2012] NSWSC 920
Robson v Robson [2008] QCA 36 at [22]
No. SC 694 of 2004
Master Harper
Supreme Court of the ACT
Date: 19 October 2012
IN THE SUPREME COURT OF THE )
) No. SC 694 of 2004
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: GEORGIA VIZOVITIS
Plaintiff
AND:EUNICE CATHERINE MARY RYAN t/as RYANS BARRISTERS & SOLICITORS
Defendant
ORDER
Judge: Master Harper
Date: 19 October 2012
Place: Canberra
THE COURT ORDERS THAT:
The proceeding be listed for mention on 26 October 2012 to fix a date for a directions hearing convenient to counsel who will be appearing at the resumed hearing.
The defendant’s application in proceeding be dismissed.
The defendant pay the plaintiff’s costs of the application in proceeding.
The defendant has made an application in proceeding in this action, which is part-heard before me. The hearing has been fragmented, and is listed to resume on Monday 17 December 2012.
The defendant is a solicitor, and is sued in her capacity as the principal of a firm of solicitors which acted for the plaintiff in an action for damages for personal injury in this court, arising out of a motor vehicle collision.
The present action was commenced on 19 October 2004. The plaintiff sought, and continues to seek, declaratory relief in respect of two agreements as to costs which she signed, in respect of the legal costs the defendant was entitled to charge her for acting for her in the personal injury proceedings. The plaintiff seeks declarations that the two agreements are void, and orders that they be set aside. By way of consequential relief the plaintiff seeks taxation of the costs payable by her to the defendant and repayment of any overpayment she is found to have made.
Agreements as to costs between solicitor and client were contemplated and regulated by the Legal Practitioners Act1970 (ACT). That Act has since been repealed and replaced by the Legal Profession Act2006 (ACT), but the Legal Practitioners Act continues to apply in respect of agreements as to costs made before the present Act came into force. Section 191 of the earlier Act gives this court jurisdiction to set aside a fees agreement if the court is satisfied that the agreement was not fair and reasonable.
The plaintiff’s case is that the agreements which she signed were not fair and reasonable, and that in the circumstances the costs for which she is liable to the defendant should be calculated by reference to the scale of costs then set out in Schedule 4 to the Supreme Court Rules 1937 (ACT). The Supreme Court Rules have also been supplanted, by the Court Procedures Rules 2006 (ACT).
The plaintiff asserts that the defendant charged her more than scale, and should account to her for the difference.
The plaintiff also pleaded causes of actions under the Trade Practices Act 1977 (Cth) and the Fair Trading Act 1992 (ACT) but these were not pursued on hearing.
The defendant filed a memorandum of appearance in October 2004. The appearance stated that the defendant was represented by a solicitor, but gave the solicitor’s full name as that of the defendant. The appearance was said to have been filed on her behalf by her own firm. She has conducted the litigation in that manner throughout, and has not at any time been represented by a solicitor independent of herself or of her own firm, although she has engaged counsel for part of the hearing and for the present application.
The passage of the action towards trial was lengthy and complex. In September 2005 the parties signed and filed a certificate of readiness for trial, the plaintiff’s solicitor estimating the length of hearing at one day and the defendant at two days.
In March 2010 the hearing was fixed to commence before me on 7 June 2010, with an estimate of two days. The estimate has turned out to be almost ludicrously optimistic on both sides. The matter was reached on 8 June 2010, and the hearing continued throughout 9 and 10 June when it was stood over to a date to be fixed to complete the hearing. The Registrar appointed a listing hearing before the Deputy Registrar in December 2010, when the matter was listed to resume before me on 19 September 2011, with an estimate of a further three days. That portion of the hearing commenced on 19 September and ran through until 22 September 2011. Until then the defendant appeared unrepresented. The hearing resumed on 9 November 2011, when the defendant was represented by Mr BMJ Toomey QC. The hearing continued for a further four full days in that week, when it was necessary to stand it over again, until 2 April 2012, when the hearing continued for a further three full days. Counsel estimated that there would be a further week required to complete the hearing, and on 4 April the hearing was stood over to a date to be fixed.
On 3 July the defendant filed what has become the present application, a number of amendments having been made two days before the hearing of the application.
During August I fixed the application for hearing on 4 September and the balance of the hearing itself for the week commencing 17 December 2012.
The application was duly heard on 24 September, Mr MJ Neil QC appearing for the applicant defendant. Mr JM Hill, solicitor, appeared for the plaintiff.
Following the amendments, the orders sought were as follows:
(a) That I disqualify myself from the further conduct of the matter;
(b)In the alternative, that the court, not being satisfied that the proceedings involve a substantial claim that is reasonably proportional to the likely cost and duration of the proceedings, dismiss the proceedings with an order for costs in favour of the defendant;
(c)Alternatively, that I make directions for a management plan for the balance of the hearing including:
(i)That the hearing be completed within the five-day period commencing 17 December 2012;
(ii)That the plaintiff not be permitted to call further evidence;
(iii)That cross-examination of each witness for the defendant not exceed half a day;
(iv)That each party file and serve written submissions on or before Friday 8 February 2013;
(v)That oral submissions be made on a date to be determined, with each party limited to two hours.
(d)That the plaintiff provide security for costs in the sum of $300,000.00 within 14 days.
Senior counsel for the defendant relied upon an affidavit sworn by the defendant in support of the application. The affidavit runs to 60 pages, with almost 40 pages of annexures, and contains almost no evidence of fact. The affidavit recites, unnecessarily, a number of lengthy passages from the transcript of the hearing thus far. Most of the affidavit consists of submissions rather than evidence.
Senior counsel for the defendant announced his appearance with the defendant’s daughter and employed solicitor, Ms Emily Warren, as his junior.
I shall deal with the aspects of relief sought separately.
Apprehended bias
Senior counsel for the defendant made it clear that there was no complaint of actual bias on my part. What the defendant relied upon was apprehended bias, with the test being whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I am required to decide: Barakat v Goritsas(No.2) [2012] NSWCA 36 per Basten JA. The principle extends not just to an observer but also to the parties. In Livesey v NSW Bar Association (1983) 151 CLR 288 at paragraph 7, the court endorsed the principle that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of the question.
Senior counsel for the defendant submitted that there were a number of incidents during the course of the hearing which cumulatively gave rise to such an apprehension, notwithstanding that no single incident might have done so. Counsel listed the following:
(a)My decision that evidence in chief should be given orally rather than on affidavit.
(b)My order that an amount of about $21,000.00 held by the defendant in her trust account should be paid out to the plaintiff, which counsel said was inconsistent with a previous decision of Higgins CJ.
(c)My dismissal of an application by the defendant for security for costs.
(d)My decision to allow counsel for the plaintiff to reopen the plaintiff’s case after he had told the court it was closed, rather than permitting the defendant to pursue at that point a submission that there was no case to answer, at least on the issue as to whether the agreement or agreements between the parties as to costs had been fair and reasonable.
(e)My suggestion to counsel for the plaintiff that he might wish to consider calling expert evidence as to the difference, if any, between the costs charged under the agreements and the costs which would have been payable at scale.
Senior counsel for the defendant relied upon the decisions of the High Court of Australia in Livesey v New South Wales Bar Association and in Vakauta v Kelly (1989) 167 CLR 568; and on the decision of the New South Wales Court of Appeal in Barakat v Goritsas (No.2), previously cited. Both arose from trials at first instance which had proceeded to judgment. The complaint of apprehended bias in Livesey related to two judges of the NSW Court of Appeal who had each previously participated in proceedings where a crucial witness for the appellant had given evidence and had been found by both judges to have been untruthful. Both matters had arisen out of the same facts. The High Court in a joint judgment held that either the appellant or a fair-minded observer might have entertained a reasonable apprehension that the views which the two members of the Court of Appeal had previously formed and expressed might result in the proceedings against the appellant being affected by bias by reason of prejudgment. The matter was remitted to a differently constituted Court of Appeal to be heard de novo.
Vakauta arose out of an action for damages for personal injury in which the trial judge had expressed strong negative views about the reliability and impartiality of the authors of medical reports tendered in the defendant’s case, based on his experience in previous proceedings. Toohey J noted at page 584 the observation of McHugh JA in the Court of Appeal below that “in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly”. As against that, his Honour noted that the fair-minded observer is not assumed to have a knowledge of the law or awareness of the judicial process. His Honour thought that such an observer was likely to conclude that the trial judge would approach the assessment of damages with a strongly held opinion that the evidence of the defendant’s medical witnesses (which he had not heard) would almost certainly be loaded against the plaintiff and therefore be worthy of little credence. His Honour concluded that there could be little doubt that the trial judge’s remarks would excite in the minds of the parties and members of the public a reasonable apprehension that he might not bring an unprejudiced mind to the resolution of the matter before him. A new trial was ordered.
In Barakat, the Court of Appeal dismissed an appeal from a trial judge who had refused an application to disqualify himself for apprehended bias following the hearing of interlocutory proceedings during which there had been a robust interchange between the trial judge and senior counsel for the appellants, in the course of which the judge accused counsel of impudence and directed him to be seated, and subsequently to leave the court, counsel refusing to do so. The exchange was described by Basten J as “at best unseemly”. The Court of Appeal concluded at para 66:
Neither the expression of views in respect of the issues relevant to the contempt charge, nor the exchanges between counsel for the applicants and the judge during the course of interlocutory hearings, taken individually or cumulatively, are sufficient to demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine fairly the issues that arise on the contempt charge, on the basis of the evidence and arguments as to the facts and law presented to him.
The appeal was dismissed.
Basten J in Barakat referred to the process identified by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at para 8, where their Honours referred to the two-step process required to be applied in determining an application for disqualification of a judge for apprehended bias:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The criticism of the trial judge in Ebner arose from personal shareholdings of the judge.
Basten J said in Barakat at para 12:
It is, accordingly, incumbent on the party seeking recusal to identify the issues which will need to be determined, the conduct which gives rise to the apprehension, and the logical connection between the conduct and the issues. There was a tendency in the applicant’s submissions to gesture rather too sweepingly towards statements made by the judge expressing frustration with the applications or, more usually, their counsel, without seeking to articulate the relevant reasoning by which the fair-minded lay observer would attribute a level of pre judgment warranting recusal.
The submissions of senior counsel for the defendant on the present application are open to the same criticism. Counsel identified a number of events during the trial to date with which his client was dissatisfied, but did not spell out the logical connection between my various rulings and decisions and the issues to be determined in relation to which either a party or a fair-minded lay observer “would attribute a level of prejudgment warranting recusal”.
I have nevertheless given careful consideration to the events listed by counsel, and as to whether, either individually or cumulatively, my conduct in respect of any of those events might reasonably give rise to such an apprehension.
A number of the matters about which the defendant complains involve interlocutory decisions which could have been, but were not, the subject of appeal.
The major complaint would appear to be as to my allowing the plaintiff to reopen and call further evidence after her counsel had stated in open court that (with the exception of certain documents which he expected to tender during cross-examination in the defendant’s case), the plaintiff’s case was closed. This was not an interlocutory decision which could have been the subject of immediate appeal. Depending upon the final orders in the case, my allowing the plaintiff to re-open and call further evidence at that point will be available as a ground of appeal. I cannot, however, see my decision in that regard as demonstrating prejudgment as to the issues to be determined at the conclusion of the trial.
Senior counsel for the defendant did not seriously suggest that any of the first three matters which he relied upon were capable individually of demonstrating bias. It does not seem to me that, considered cumulatively, the totality of the complaints made on behalf of the defendant can be seen as doing so.
There is a further reason why I would be reluctant to disqualify myself at this time. We are sixteen days into the hearing. The plaintiff has been represented by solicitors and counsel for the whole of that time. For the last nine days the defendant has been represented by Mr Toomey of Queen’s Counsel. The amount wasted in costs if I were to disqualify myself would scarcely bear contemplation. In the absence of agreement between the parties with a view to shortening the matter, it would be necessary for the hearing of the action to commence afresh before another judicial officer. The court time wasted, when the court is under-resourced and there is a significant delay in obtaining hearing dates, would be deplorable. Of course the waste of court time and of costs on both sides could not stand in the way of my ordering my disqualification if I were persuaded that apprehended bias had been established, but fortunately for the reasons I have given, I am not. The application by the defendant for my disqualification fails.
Dismissal of the proceedings
Senior counsel for the defendant submits that I should dismiss the action on the ground that the likely cost and duration of the proceedings are out of all proportion to the amount in issue. Counsel submits, and I accept, that if the plaintiff is successful in the action, the most she is likely to recover is of the order of $50,000.00, with the practical range being between $23,000.00 and $40,000.00.
There is no evidence before me as to the costs to date on either side, or the likely further costs of another week of hearing, but I accept that the costs on each side probably greatly exceed the amounts notionally in issue.
Senior counsel for the defendant referred to a number of authorities which, he submitted, should satisfy me that the defendant is entitled to have the proceedings dismissed with costs. Firstly, he submitted that the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 endorses the principles of efficiency in the conduct of litigation.
True it is that the High Court in Aon emphasised the significance of rule 21 of the Court Procedures Rules 2006. I accept without reservation that the Court Procedures Rules are to be applied with the prescribed objective of achieving the just resolution of the real issues, and the timely disposal of the proceedings (and all other proceedings in the court), at a cost affordable by the parties. Aon was, however, a decision which arose in the context of an application by a plaintiff to amend its pleadings so as to introduce a fresh and previously unpleaded cause of action at the start of the trial, with the effect that the period the court had set aside for the trial was wasted.
It is a matter of great regret that the hearing of this action has occupied such an inordinate amount of court time, particularly having regard to the amount at issue, but both parties must be seen to have contributed to this in the manner in which they have conducted the case. I may merit criticism for not imposing strict time limits on the giving of evidence in chief, and on cross-examination of individual witnesses (though this itself might have provided grounds for appeal by a dissatisfied party) but it is the parties who have presented their cases and opposed the cases of the other side. The parties are, on the one side, an experienced solicitor represented at much of the trial by Queen’s Counsel, and on the other side a party represented by a national firm of solicitors and by counsel. The parties must be taken to have given consideration to whether the amount at issue justified the claim being pursued and opposed in the manner it has been.
Senior counsel for the defendant referred to a number of other decisions relating to the dismissal of cases, and to unusual costs orders being made where costs or other prejudicial factors far outweighed or were wholly disproportionate to the amount in issue. Jones v Sutton (No.2) [2005] NSWCA 203 was a decision of the New South Wales Court of Appeal on appeal from a judge of the District Court in a defamation action where the plaintiff had been awarded damages of $5,000.00. The trial judge found that the action had been politically motivated rather than a genuine attempt by the plaintiff to vindicate his reputation. The costs had been massively disproportionate to the damages. The Court of Appeal held that such an action should not be encouraged by orders with the effect that costs followed the event. The Court of Appeal substituted a costs order limited to a four-day hearing and the reasonable costs of preparation for a jury trial (the trial had taken some eleven days in all).
Bi v Mourad [2010] NSWCA 17 was also an appeal from the District Court. A judicial registrar in that court had dismissed the plaintiff’s action, pointing out that four years had elapsed since the proceedings had commenced, and that it was nine years since the cause of action arose, but that the plaintiffs had still not properly formulated their case. The claim by the plaintiffs had been for damage to a house caused by excavation on an adjoining block of land. The unanimous view of the judges of the Court of Appeal was that the judicial registrar had acted properly in dismissing the action in the circumstances, and leave to appeal was refused.
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219 was a decision of the Court of Appeal of Western Australia on appeal from the District Court of that state. The respondent to the appeal had sued in the Magistrates Court and recovered $550.00 plus costs of $368.00. A judge of the District Court struck out an appeal from the Magistrates Court for the reason that if the appeal were permitted to proceed the legal costs would run into thousands of dollars, completely disproportionate to the amount of the claim and the nature of the case, and also that the appeal had no reasonable basis and no reasonable prospects of success. The Court of Appeal dismissed an appeal from the District Court, noting that the costs of such an appeal to the respondent alone were likely to be in the order of $12,000.00, grossly disproportionate to the amount in issue.
Senior Counsel for the defendant cited observations made by Beazley JA in Bellingen Shire Council v Colavon Pty Ltd [2012] NSWCA 34. This matter was before the NSW Court of Appeal on appeal from the decision of a judge of the District Court of that state on a second trial following an earlier successful appeal. The action had involved a claim by the owner of a milk truck which had left a road and rolled down an embankment, against a Shire Council having responsibility for maintenance of the road. Beazley JA adverted to ss 59 and 60 of the Civil Procedure Act 2005 (NSW). Section 59 is concerned with elimination of delay and s 60 with proportionality of costs. Section 60 requires the court to implement its practice and procedure with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute. Her Honour noted that to uphold the appeal would involve a third trial, which would be the fifth set of proceedings between the parties, with the potential for a third appeal.
Again, this was a proceeding which had been determined at first instance and was the subject of consideration on appeal. It did not involve intervention during the course of a trial at first instance which had not yet concluded.
Senior counsel for the defendant drew my attention to three decisions of the British courts, which I mention without descending into detail as to the facts: Schellenberg v British Broadcasting Corporation [2000] EMLR 296 (Queens Bench Division, per Eady J); Wallis v Valentine [2003] EMLR 175 (Court of Appeal) and Jameel v Dow Jones and Co Inc [2005] QB 946 (Court of Appeal). Each of these related to an action for damages for defamation, and none involved the dismissal of an action during the course of a trial before judgment.
In Grizonic v Suttor [2008] NSWSC 914, Brereton J applied the three English decisions to which I have just referred (Schellenberg, Wallis and Jameel) in ordering permanent stays of proceedings brought by a plaintiff who was by then unrepresented, in circumstances where the plaintiff had left the courtroom once his Honour embarked upon the hearing. His Honour referred to the repeated failure of the plaintiff to pursue the proceedings in a manner which could facilitate their resolution, the modest financial position of the defendant, the grossly inefficient use of court and judicial resources which would result from proceeding further, and the plaintiff’s financial position which meant that costs orders against him would be no antidote to the prejudice his default had occasioned. The plaintiff having declined to participate further in the proceeding, his Honour concluded that the action should not be allowed to proceed any further.
Senior counsel for the defendant also referred me to an ex tempore judgment of Beech-Jones J in Ware v Amaral Pastoral Pty Ltd(No.4) [2012] NSWSC 920, in which his Honour refused an application to amend the defence late in the piece. His Honour said that to allow the amendments would result in an expansion of the issues such that the cost and expense would become out of all proportion to what was in issue. His Honour also referred to the late stage of the trial at which the application was made, and the lack of adequate explanation for the delay in bringing the application.
I have given careful consideration to all of the authorities cited by senior counsel for the defendant. With the benefit of hindsight, I might have taken different steps before the start of the hearing if the lawyers for either party had given me any inkling that the hearing was likely to occupy not two or three days but seventeen days so far with another week to come. But the court cannot be expected to second-guess experienced practitioners in their estimates of the likely length of a trial. It is by no means unusual for solicitors or counsel to turn out to have been unjustifiably optimistic with such estimates, although I have never come across so great a discrepancy between the expectation and the actuality as in the present case. But notwithstanding the change in approach over recent years to case management, the conduct in practical terms of the hearing of an action like this is to a great extent in the hands of counsel, and the court cannot be blamed for the excessive length of time which has been taken.
Senior counsel for the defendant has been unable to take me to any decision where a judge at first instance has brought a trial to a halt and, in effect, entered summary judgment for one side or the other during the course of the trial, purely on the basis that the trial has run for much longer than estimated and as a consequence has cost the parties much more than they might have originally expected. All of the authorities to which I have been taken involve either judicial intervention prior to the start of the trial, or appellate decisions after judgment.
A number of the matters of which senior counsel for the defendant complains may prove to be relevant on the question of what orders about costs should follow the trial, but I am not persuaded that intervention to bring the trial to a halt midstream is warranted or in the interests of justice. The defendant must fail in her claim for this relief.
Security for costs
The defendant seeks an order that the plaintiff provide security for costs in the sum of $300,000.00.
Rule 1900 of the Court Procedures Rules 2006 authorises the court to order a plaintiff to give appropriate security for a defendant’s costs. An application for security must be supported by an affidavit setting out the facts relied on and the grounds on which the order is sought. Rule 1901 limits the circumstances in which the court may order security to eight sets of circumstances. None of the first seven apply. The eighth applies simply where the court is satisfied that the justice of the case requires the order to be made.
Rule 1902 permits the court to have regard on an application for security for costs to specified matters including the means of the people standing behind the proceeding, the prospects of success or merits of the proceeding, the genuineness of the proceeding and the estimated costs of the proceeding.
The learned authors of Civil Procedure ACT (LexisNexis Butterworths 2002) note that the “justice of the case” ground has no counterpart elsewhere in Australia, except in South Australia and Queensland. It has been noted in South Australia that it would be rare for security to be ordered on this ground except where the plaintiff would have difficulty in paying costs if unsuccessful: Byrt v Giannopoulos, Supreme Court of South Australia, Perry J, 27 January 1993, unreported. Inability to pay or difficulty of enforcement of a costs order would appear to be a minimum prerequisite. Evidence that the plaintiff was taking steps to divest assets to avoid liability for a future costs order would also be relevant to the exercise of the discretion: Robson v Robson [2008] QCA 36 at [22]. Other examples cited by the authors of the commentary arise under the Corporations Act2001 and are not presently relevant.
There is undoubtedly a power to order security notwithstanding the dismissal of an earlier application for security, and during the course of a trial, but security will generally not be ordered against an individual plaintiff resident in Australia in the absence of unusual circumstances.
The defendant in her affidavit in support of the application has referred to the plaintiff’s regular trips to her native country, Greece, over a number of years. The plaintiff has in the past always returned to Australia, where she lives, and there is no reason to suspect that she will not continue to do so in the future. Perhaps more to the point, there is no reason to suspect that her trips to Greece have been motivated in any way by an intention to avoid any costs liability which might arise out of the present action, or otherwise to evade creditors.
There is no suggestion of impecuniosity, although the defendant queries the extent of the plaintiff’s assets. In any event, the court would not be expected to use the sanction of an order for security of costs to deprive an impecunious plaintiff of the right to challenge the fairness and reasonableness of a costs agreement with her solicitor, unless perhaps there was a suspicion that the plaintiff was using the statutory challenge procedure to avoid paying her proper debts. That can hardly be the case here, where the costs the subject of the agreement have been paid and the plaintiff effectively seeks reimbursement of an overpayment.
The claim for security for costs must also fail.
Case management
In the event that the defendant is unsuccessful in her prayers for other relief, as she has been, she seeks orders about the further hearing of the action. As I said during the hearing, I propose to proceed with the hearing on 17 December 2012, and to list the matter for directions on a date prior to that which is convenient to counsel who will be appearing at the resumed hearing, with a view to making directions designed to ensure that the hearing concludes within the week which has been set aside.
I propose to direct that the matter be listed for mention on Friday 19 October 2012 for the purpose of fixing a date for that directions hearing.
Costs of the present application
The defendant has not succeeded in obtaining any of the relief which she sought in the application in proceeding. The application will be dismissed with costs.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Harper.
Associate:
Date: 19 October 2012
Counsel for the applicant: Mr MJ Neil QC & Ms E Warren
Solicitor for the applicant: Ryans Barristers & Solicitors
Counsel for the respondent: Mr JM Hill
Solicitor for the respondent: DibbsBarker Lawyers
Date of hearing: 24 September 2012
Date of judgment: 19 October 2012
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