Wagdy Hanna and Associates Pty Ltd v National Library of Australia
[2015] ACTCA 26
•16 June 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Wagdy Hanna & Associates Pty Ltd v National Library of Australia |
Citation: | [2015] ACTCA 26 |
Hearing Dates: | 21 August 2014, written submissions received 15, 19 September 2014 |
DecisionDate: | 16 June 2015 |
Before: | Penfold, Burns JJ and Cowdroy AJ |
Decision: | The appellant is to pay the respondent’s costs on an indemnity basis. |
Category: | Costs |
Catchwords: | PROCEDURE – Costs – order that respondent’s costs of appeal be paid by unsuccessful appellant subject to written submissions by parties – respondent’s refusal to agree to appellant’s proposal for staged appeal – litigation relating to relevant dispute began in 1990s – respondent not unreasonable in seeking finality – staged determination of issues on appeal very unusual – appellant denied knowing appeal was without merit having regard to involvement of eminent local lawyers – no lawyers appeared on appeal – no inference that appeal is reasonably arguable necessarily to be drawn from conclusion that matter is reasonably arguable at first instance – no basis for ordering lawyers at first instance to pay costs of appeal – order for appellant to pay respondent’s costs on indemnity basis confirmed. |
Legislation Cited: | Court Procedures Rules 2006 (ACT), r 1753(2)(a) and (b) |
Cases Cited: | Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32 Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2012] ACTSC 126 |
Parties: | Wagdy Hanna & Associates Pty Ltd (Appellant) National Library of Australia (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr B Meagher SC (Respondent) |
| Solicitors Self-represented (Appellant) Ashurst Australia (Respondent) | |
File Number: | ACTCA 42 of 2012 |
Decision under appeal: | Court: Supreme Court of the ACT Before: Refshauge ACJ Date of Decision: 3 August 2012 Case Title: Wagdy Hanna & Associates Pty Ltd v National Library of Australia Citation: [2012] ACTSC 126 |
THE COURT:
Proceedings
On 21 August 2014 we delivered our decision in the matter of Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2014] ACTCA 32. In that matter we dismissed the appeal, and subject to written submissions of the parties, ordered that the appellant pay the respondent’s costs on an indemnity basis.
Thereafter, parties filed written submissions on costs.
Appeal Proceedings
At the appeal, the appellant sought to have the findings of the primary judge set aside. The appellant advanced the following grounds of appeal:
Facts supported by documentary evidence had been disregarded in favour of incorrect Oral evidence given by mistake or deliberately by the defendant representatives.
His Honour mistook the facts and/or did not refer to relevant matters
And this lead to the wrong application/interpretation of the law.
As noted in the decision on the appeal at [26]:
Mr Hanna provided the Court with extensive written and oral submissions in support of the appellant’s appeal. Mr Hanna’s written submission ranged widely over the minutiae of the evidence presented to the primary judge, often with little obvious purpose. We do not propose addressing every factual issue identified by Mr Hanna, and we will restrict ourselves to addressing those issues we perceive as important to the resolution of this appeal.
The Court observed that the critical matter in issue was whether the appellant could maintain the proceedings (both at first instance and on appeal) in view of the releases provided in the Deed of Settlement that was concluded between the parties and dated 14 May 1999.
We concluded that the effect of the Deed was to release the National Library of Australia from any liability that might have otherwise arisen under the claim made by the appellant before the primary judge.
Respondent’s Submissions on Costs
Unsurprisingly, the respondent’s submissions, which were lodged first, do not seek to detract from the reasons for decision of the primary judge or of the Court of Appeal. The respondent re-asserts that the effect of the Deed was to release the respondent from any and all liability in respect of the proceedings at first instance. In summary, the respondent submits that the appellant failed to address the findings of the primary judge that the respondent was not estopped from relying on the Deed with respect to the proceedings on foot. This failure is said to demonstrate that the claim should not have been commenced, nor progressed to appeal. The respondent therefore submits that a costs order on an indemnity basis is appropriate.
Appellant’s Submissions on Costs
The appellant’s submissions canvassed two bases in support of the contention that the appellant should not be required to pay the respondent’s costs.
Respondent’s failure to agree to staged determination of issues
The appellant submits that it attempted to conduct the appeal in a reasonable and expedient manner. It submits that its intentions are evidenced in an email it sent to the respondent on 1 October 2012. In the email, the appellant explained to the respondent that with leave of the Court, it wished to conduct the “appeal on an incremental bases [sic]” with only the status of the Deed and the limitation issue being determined at the first stage. If the appellant was unable to convince the Court that neither the Deed nor the limitation issue prevented its claim being heard, then the matter would progress no further. The appellant submits that the respondent rejected the approach offered.
The appellant submits that in rejecting the approach offered, the respondent needlessly extended the time and costs associated with the conduct of the appeal. The appellant submits that the respondent should bear the costs of the appeal from the point at which the offer was to come into effect, 4 October 2012, until the date at which this Court delivered its judgment, 21 August 2014.
Responsibility of appellant’s lawyers for the continuation of the proceedings
Alternatively the appellant submits, in effect, that the Court should reject the implication of the respondent’s submissions that proceedings before the primary judge were commenced without a proper basis. The respondent’s submissions drew attention to the finding of the primary judge in Wagdy Hanna & Associates Pty Ltd v National Library of Australia [2012] ACTSC 126 at [339] that:
the litigation was commenced in the face of the Deed of Settlement and then its continuance in the light of the comprehensive evidence of the defendant’s witnesses which showed the flimsiness of the inferences that were necessary to underpin the plaintiff’s case.
In support of its submission, the appellant makes the argument that it did not have the impression that the proceeding was without merit. The appellant submits that it was not aware that its claim was unmeritorious, since:
(a)it had been advised in relation to the matter by “a senior litigation Partner [sic]” (later to become a member of a merits review tribunal); and
(b)two other local lawyers (described by the appellant respectively as “a very Senior Lawyer and a Statesman of the Legal Profession in Canberra generally and the ACT Law Society Particularly [sic]” and “the very senior Mr Richard Thomas who was addressed by His Honour Refshauge ACJ [as follows]: ‘... But it may be in your well known creative way ...’”) had both agreed to act in the matter.
In effect, the appellant submits that, but for the willingness of its lawyers to act in the manner, it would not have commenced the proceeding and continued to the appeal. The appellant therefore seeks an order that its lawyers bear the costs of the proceedings. In making this submission, the appellant refers to an ethical requirement imposed on a solicitor not to commence or continue proceedings unless the solicitor believes that there is a reasonably arguable case, and relies upon r 1753(2)(a) and(b) of the Court Procedures Rules 2006 (ACT).
Consideration
Staged appeal process
No doubt there are circumstances in which it is efficient and appropriate for a court to deal with a discrete part of the matters in issue before considering the whole matter; this is sometimes done where the resolution of a particular issue will almost certainly lead to the early resolution of the proceedings as a whole, for instance where a decision about the admissibility of a key piece of evidence in a criminal trial will lead to either a plea of guilty or a decision to abandon the prosecution. The appellant, in explaining its proposal of a staged determination of the matter, referred to the Deed and the limitation issues as “the two fatal issues”, and it may be that in principle there would have been some virtue in the appellant’s proposal.
However, this matter has been in the ACT Supreme Court since at least 2003 and other courts since the 1990s. We are not aware that the appellant has succeeded on any substantive matter in that time. Against that background, the respondents cannot be criticised for refusing to countenance any proposal which ran the risk of dragging out the final resolution of the matter any longer than was absolutely necessary.
We also observe that a “staged” or incremental appeal proposed by the appellant would be highly unusual, and would have required the Court’s approval. Litigation may be heard in stages in only rare cases, and for valid reasons, but this procedure applies usually where cases are heard at first instance. It would be a rare case indeed for an appeal to be determined “incrementally” as the appellant proposed.
Responsibility of lawyers
The appellant’s argument that its lawyers should pay the costs of the appeal also fails.
First, an application for an order under r 1753 must be made in accordance with the requirements for applications in proceedings. This “application” has been made purely in a written submission and without any notice to the lawyers concerned.
Secondly, whatever advice the appellant received from lawyers about the strength of its claims when they were instituted and heard in the ACT Supreme Court, it is noteworthy that the appellant had no legal representation in the Court of Appeal, being represented instead, by leave of the Court, by Mr Wagdy Hanna. Clearly, the mere fact that an action is unsuccessful at first instance does not establish that the claim was not reasonably arguable. On the other hand, the absence of legal representation on appeal, for which there are of course several possible explanations, does not permit any inference that the appellant had legal advice that the appeal was reasonably arguable.
Conclusions
Nothing in the appellant’s submissions has persuaded us to depart from the foreshadowed order that the appellant pay the respondent’s costs on an indemnity basis. Accordingly, we so order.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 16 June 2015 |
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