Young v King (No 10)

[2016] NSWLEC 70

Land and Environment Court

New South Wales

Medium Neutral Citation:	Young v King (No 10) [2016] NSWLEC 70
Hearing dates:	18 May 2016
Date of orders:	10 June 2016
Decision date:	10 June 2016
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	Two stay applications are dismissed with costs.
Catchwords:	PRACTICE AND PROCEDURE: Stays of Proceedings – principles to apply – outstanding questions of costs – personal costs orders – substantive decisions presently under appeal – stays refused – costs.
Legislation Cited:	Civil Procedure Act 2005 Legal Profession Act 1987
Cases Cited:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Candler v Crane Christmas & Co [1951] 2 KB 164 Degiorgio v Dunn (No 2) [2005] NSWSC 3 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; 63 NSWLR 300 Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 Patrick v Capital Finance Corp (Australasia) Pty Ltd [2004] FCA 1249 Ridehalgh v Horsefield [1994] Ch 205 TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 Vaughan v Dawson [2008] NSWCA 169 Young v Hones (No 3) [2014] NSWSC 499 Young v Hughes Trueman Pty Limited [2016] FCCA 989 Young v King (No 4) [2012] NSWLEC 236 Young v King (No 6) [2015] NSWLEC 111 Young v King (No 8) [2015] NSWLEC 187 Young v King (No 9) [2016] NSWLEC 4
Category:	Procedural and other rulings
Parties:	Margo Young (Applicant) Brendan King (First respondent) Kristina King (Second respondent) Jason Hones (Third respondent) Hones Lawyers (Fourth respondent) Ian Hemmings (Fifth respondent) Stephen Perrens (Sixth respondent) Hughes Trueman Pty Limited (Seventh respondent) Warwick Davies (Eighth respondent) Stephen Noel Griffiths (Ninth respondent) Robert Charles Springett (Tenth respondent) Michael Brearley (Eleventh respondent) Ross Fraser (Twelfth respondent) Tony Tuxworth (Thirteenth respondent) Copland Lethbridge (Fourteenth respondent) Bee & Lethbridge Pty Limited (Fifteenth respondent) Geoff Goodyer (Sixteenth respondent) Victor Schubert (Seventeenth respondent) Warringah Shire Council (Eighteenth respondent)
Representation:	Counsel: Mr R Newell, solicitor (Applicant) Mr M Wright, barrister (First & second respondents) No Appearance (Third & fourth respondents) Ms S Reid, solicitor (Fifth and seventeenth respondents) Mr S Gray, barrister (Sixth & seventh respondents) Mr T Faulkner, SC (Eighth respondent) No Appearance (Ninth respondent) No Appearance (Tenth respondent) Mr B Lim, barrister (Eleventh, fourteenth, fifteenth & sixteenth respondents) Ms J Reid, barrister (Twelfth respondent) Ms T Mandic, solicitor (Thirteenth respondent) No Appearance (Eighteenth respondent) Mr D Lloyd, barrister (for Leonardo Muriniti and L C Muriniti & Associates) Mr N Andrew, solicitor (for Robert Newell as a barrister)   Solicitors: L C Muriniti & Associates (Applicant) Stern Law (First & second respondents) Colin Biggers & Paisley Pty Ltd (Third & fourth respondents) Moray & Agnew (Fifth respondent) Kennedys Law (Sixth & seventh respondents) Gilchrist Connell (Eighth respondent) Mullane & Lindsay Solicitors (Ninth respondent) Litigant in person (Tenth respondent) Norton Rose Fulbright Australia (Eleventh respondent) N/A (Twelfth respondent) TressCox Lawyers (Thirteenth respondent) Walker Hedges & Co (Fourteenth, fifteenth & sixteenth respondents) N/A (Seventeenth respondent) Norton Rose Fulbright Australia (Eighteenth respondent) Yeldham Price O’Brien Lusk (for Leonardo Muriniti and L C Muriniti & Associates) Barry Nilsson Lawyers (for Robert Newell as a barrister)
File Number(s):	2016/160767 (formerly 40449 of 2014) 2016/160933 (formerly 40417 of 2003)

Judgment

Introduction

1. This judgment deals with applications made to stay matters and orders, pending some decision(s) by the Court of Appeal.

2. Those stay applications have been made on behalf of (1) the unsuccessful plaintiff/applicant, Mrs Young, and (2) the lawyers who have represented her since 2008: see Civil Procedure Act 2015, s 67.

3. I will not repeat the unhappy history of this dispute between neighbours, and the litigation it has spawned, but, for present purposes, it will suffice to note that Mrs Young lost both her substantive cases against the Kings – see Young v King (No 6) [2015] NSWLEC 111 – and I subsequently ordered her to pay their costs on an indemnity basis – see Young v King (No 9) [2016] NSWLEC 4.

4. Young also failed in her attempts, by a motion filed on 20 August 2015, to obtain orders for costs against the Kings and sixteen non-parties (listed in [15] below). Apart from the indemnity costs order I made in favour of the Kings, I have also ordered Young to pay, on a party-party basis, the costs of those sixteen other respondents on her costs application – see Young v King (No 8) [2015] NSWLEC 187, and Young v King (No 9), in which I held, essentially, that Young’s costs claims were an abuse of process, and a collateral attack on judgment No 6.

5. Some of the sixteen non-parties want the orders for costs made in their favour, against Young, to be on an indemnity basis, and/or they seek personal/special costs orders against her solicitor, Leonardo Muriniti, his firm, and/or his now employed solicitor Robert Newell.

6. Personal costs orders are also sought against them by the Kings. (In Kings’ case they are also seeking orders against Newell in respect of his time as a barrister briefed for Young by Muriniti).

7. Leading cases clearly warn courts to be extremely cautious and circumspect in considering the making of personal costs orders against legal practitioners: see, for example, the judgments of McColl and Hodgson JJA in Lemoto v Able Technical Pty Ltd (“Lemoto”) [2005] NSWCA 153; 63 NSWLR 300.

8. Muriniti and Newell continue to represent Young in these matters. However, Muriniti and his firm are represented Mr David Lloyd of counsel, briefed by Bruce Yeldham of Yeldham Price O’Brien Lusk, and Newell (for work done while a barrister) has lately been represented by Barry Nilsson Lawyers.

9. The case management/directions hearings conducted by the Registrar on 15 March and 12 April 2016 resulted in her fixing:

1. for hearing on 18 May 2016, the motions for stays, with which I am presently dealing; and,

2. for hearing on 2 – 3 August 2016, the costs motions which remain outstanding in this Court (and are detailed in Mr Yeldham’s material).

10. Meanwhile, Young has appealed to the Court of Appeal against judgment No 6, and the indemnity costs order I made against her in favour of the Kings in judgment No 9, and that appeal will be heard on 21 June 2016 (see T21.4.16, p14, LL25 – 50, and fol 307 of Young’s latest bundle). There is nothing before this Court to indicate a likely date for the Court of Appeal’s decision.

11. Young has also sought leave to appeal against judgment No 8, and the balance of judgment No 9. That application will return to the Court of Appeal for directions on 25 July 2016 (fol 307 again), and again there is nothing before this Court to indicate how long it will be before those matters are finalised.

12. It seems highly unlikely that Young’s appeal processes, in the Court of Appeal and possibly beyond, will be completed much before the end of 2016.

The Stay Motions

13. Muriniti’s amended Notice of Motion (“NOM”) filed in Court on Young’s behalf, in each of her two matters, on 18 May 2016, seeks orders:

1.   That all the costs applications against Leonardo Carlo Muriniti and Robert Duane Newell presently before this honourable court be stayed pending determination of the following appeals:-

(a)   2015/229797 & 2015/229805

(b)   2015/375996 & 2015/376036

(c)   2016/76351 & 2016/76373

2.   That all costs orders and all costs applications against the applicant, Margo Young be stayed pending determination of the appeals referred to in order 1 above.

3.   Such further and other orders as this Honourable court deems fit.

4.   Costs of the motion.

14. In respect of the personal costs orders sought against Muriniti and his firm, their solicitors filed, in each matter on 21 April 2016, a NOM seeking orders that:

1 Pursuant to section 67 of the Civil Procedure Act 2005, the prosecution of the following orders sought in the following motions be stayed pending the final determination of NSW Court of Appeal proceedings numbers 229797 of 2015, 229805 of 2015, 375996 of 2015, 376036 of 2015, 76351 of 2016 and 76373 of 2016:

1.1    All of the orders sought in the amended motion filed by the first and second respondents [(the Kings)] on 21 March 2013;

1.2   Orders 1 and 2 sought in the motion served by the [Kings] on 6 October 2015;

1.3   Orders 1, 2, and 4 sought in the motion filed by the fifth respondent on 13 April 2016;

1.4   Orders 1, 2, and 3 sought in the motion filed by the sixth and seventh respondents on 13 April 2016;

1.5   Orders 1, 2 and 3 sought in the motion filed by the eighth respondent on 18 March 2016;

1.6   Orders 1, 2 and 3 sought in the motion filed by the eleventh respondent on 10 March 2016;

1.7   Order 1, 2, and 4 sought in the motion filed by the twelfth respondent on 13 April 2016;

1.8   Orders 2 and 3 sought in the motion filed by the thirteenth respondent on 16 October 2015;

1.9   Orders 2 and 3 sought in the motion filed by the fourteenth, fifteenth and sixteenth respondents on 30 November 2015; and

1.10   Orders 1, 2 and 4 sought in the motion filed by the seventeenth respondent on 18 April 2016.

2.   Costs of this motion be Leonardo Muriniti's costs in the motions identified in prayer 1.

3.   Any other orders the Court sees fit.

15. The sixteen non-party respondents (“R”) to Young’s costs NOM of 20 August 2015 were:

(R3) Jason Hones, Young’s solicitor in 2003 – 2004;

(R4) Hones Lawyers, Jason Hones’s firm;

(R5) Ian Hemmings, counsel briefed by Hones on Young’s behalf in 2003 – 2004;

(R6) Stephen John Perrens, engaged by Young 2003 – 2004 as a hydraulic expert;

(R7) Hughes Trueman Pty Limited, Perrens’s firm at the time;

(R8) Warwick Davies, engaged by Young as a geotechnical engineer;

(R9) Stephen Noel Griffiths, Kings’ solicitor in 2003 – 2004;

(R10) Robert Charles Springett, an engineer engaged by Kings;

(R11) Michael Brearley, a civil engineer engaged by Young in 2012;

(R12) Ross Fraser, a civil engineer engaged by Young in 2008;

(R13) Tony Tuxworth, a town planner engaged by Young in 2011;

(R14) Copland Lethbridge, a surveyor engaged by Young;

(R15) Bee & Lethbridge Pty Limited, R14’s firm;

(R16) Geoff Goodyer, a town planner engaged by Young;

(R17) Victor Schubert, a town planner engaged by Kings in 2003; and

(R18) Warringah Shire Council (“Council”), the local government authority covering the properties of the principal disputing parties.

16. It is clear from the NsOM which remain current before this Court, and from the appearances on 18 May, that Rs 3, 4, 9, 10 and 18 are seeking no further orders (from this Court) regarding their costs, but thirteen of them (the Kings, plus Rs 5 to 8, and 11 to 17) persist.

The Kings’ outstanding claims against Muriniti, his firm, and Newell

17. Mr Lloyd, for Muriniti and his firm, reached an agreement with the Kings’ counsel, Mr M Wright, which Mr Wright explained to the Registrar in these terms (T21.4.16, p11, L49 – p13, L4):

... insofar as the Kings now intend to participate in this costs hearing, the question for us is extremely narrow. The only application the Kings make is for indemnification in relation to their motion filed on 6 October 2015, insofar as it relates to Mrs Young's motion against them filed on 20 August 2015, seeking indemnity costs against the Kings. So we are only seeking orders in respect of the dismissal of Mrs Young's motion.

18. At the hearing before me, Mr Wright explained (T18.5.16, p1, LL46 – 49, and p2, LL8 – 27)):

The Kings had agreed, in respect of what I will call the larger costs questions flowing from judgment 9 that they would not pursue orders against Mr Muriniti or Mr Newell for the time being because there is an appeal pending before the Court of Appeal.

...

... What the Kings are pursuing against Mr Muriniti is an order that they be indemnified by Mr Muriniti in respect of the costs Mrs Young has been ordered to pay, as a consequence of the dismissal of her notice of motion of 20 August 2015, in which Mrs Young sought an order for indemnity costs of the proceedings from March 2004 to date, against the Kings, even though they are the successful parties to the proceedings.

Our position simply is that irrespective of the determination of all other questions, and since the other non-party respondents have sought to pursue their motions to hearing in any event, that single question would be pursued by the Kings irrespective of the outcome of the appeal.

The reason I raise it now is that the representatives for Mr Newell on the earlier larger question are here today. There is no present intention, pending a determination of the appeal, to pursue that larger question either against Mr Newell, when he was a barrister, or Mr Muriniti. Insofar as there is presently an application to stay anything concerning the Kings, it is only in respect of the matter that I have identified, namely pursuing an order for indemnification in respect of the costs order against Mrs Young upon dismissal of her notice of motion of 20 August 2015.

19. Newell’s solicitor withdrew from the stay hearing at that point (T18.5.16, p2, LL29 – 50).

20. When asked, later in that hearing, to repeat his position, for the record, Wright said (T18.5.16, p24, LL26 – 46, and p25, LL1 – 12):

... the Kings are only pursuing at the moment, because the appeal is on foot, that aspect of their notice of motion filed on 6 October 2015 which seeks, in effect, a form of costs order against Mr Muriniti relating to your Honour's dismissal of Mrs Young's notice of motion of 20 August 2015, in which she sought an order for indemnity costs of the whole of the proceedings from March 2004 to date against the Kings.

We accept that in relation to the broader questions of costs of the proceedings at large, at least as between Mrs Young and the Kings, that the pursuit of indemnity, or indemnification against Mr Muriniti and Mr Newell, should abide the decision of the Court of Appeal.

...

... the extent to which we might pursue further relief against each of Mr Muriniti and his firm and Mr Newell should abide the decision of the Court of Appeal, noting, because it doesn't seem presently to be clear, and I want to make this clear as well, what is listed for hearing before the Court of Appeal before 21 June is the substantive appeal against judgment 6 in both sets of proceedings, that's the original 2003 proceedings here and the transfer to the Supreme Court proceedings, but also the application for leave to appeal against judgment 9 insofar as it affects the Kings. That is being determined inter parties on 21 June. The balance of the application for leave against the other respondents is what has been stood over to 25 July. That's important in relation to what I say about why we're only pursuing that limited relief.

21. In effect, the Kings have voluntarily stayed their personal costs order applications against Young’s lawyers until after the primary appeal (against judgment No 6) has been heard.

22. No other stays have been agreed.

The principles regarding the granting of stays

23. In the Court of Appeal in October 2015, Gleeson JA heard an application for a “stay pending the hearing of an appeal” from the judgment and orders of Stevenson J in a complex contract/possession dispute: Lawrence v Gunner (“Lawrence”) [2015] NSWCA 322.

24. On his way to granting a limited stay, His Honour summarized the relevant principles thus ([10] – [15]):

10   The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 (Kalifair) at [17]-[20].

11   A successful party is prima facie entitled to the fruits of his or her judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a risk that if money is paid it will be unable to be recovered if the appeal succeeds, or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381 at [15]. The Court will weigh considerations such as the balance of convenience and the competing rights of the parties.

12   It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [5].

13   It is appropriate to consider first whether the appeal raises a serious question to be tried, in the sense of arguable grounds, and if so, where the balance of convenience lies: Kalifair at [18]; Vaughan v Dawson [2008] NSWCA 169 at [17] (Campbell JA).

14 As already mentioned, the notice of appeal is not particularly informative. The requirements of the rules concerning a notice of appeal are set out in UCPR r 51.18. The notice is required to state, briefly but specifically, the grounds relied upon in support of the appeal. In addition, subrule (2) requires the appellant to also specify any material facts that the appellant contends that the court below should, or should not, have found. Here the notice of appeal does not comply with these requirements.

15   As Campbell JA observed in Vaughan v Dawson [2008] NSWCA 169 at [22], having a notice of appeal that does not comply with the rules is an unpromising start for proving there is a serious question about whether the appeal will succeed. Nonetheless, Campbell JA accepted that it may not be fatal if there is reason to believe that the notice of appeal could be amended to state properly arguable grounds. This requires one to consider on a broader basis whether the appellants have shown a prospect of successfully appealing from the judgment. I adopt that approach here.

25. The present applications for stays are not the classic situation of a successful party at first instance seeking to protect its “fruits of victory” pending an appeal, but no cogent submission has been made to question the application of the above-stated principles to the present situation.

The evidence before the Court

26. In support of the stay applications, Newell relied on Young’s affidavit of 29 April 2016, and the exhibited further bundle of documents (to which I have already referred ([10] and [11] above)), and Lloyd relied on an affidavit of 26 April 2016, sworn by Muriniti’s solicitor, Bruce Alexander Yeldham, and the bundle of documents exhibited to it (see [9](2) above).

27. Young deposes (par 5) that she will seek from the CA leave “to adduce further evidence [which] relates to admissions made by the lawyers and engineers” in the costs hearing before me in December 2015. Much of the rest of her affidavit and bundle repeats her earlier claims, allegations, and submissions, and it again understates my findings in regard to them. (See [48] – [49] below). She also indicates (par 10) that she does not wish to waive her privilege over materials in Muriniti’s files, nor to impede her lawyers’ defence against costs applications.

28. Yeldham is a very senior legal practitioner who has “acted for solicitors in numerous matters including applications involving personal costs orders” (par 1). He deposes to a concise history of the 2003 matter, Muriniti’s later involvement in Mrs Young’s set-aside proceedings, and the NsOM at the heart of the 2015 – 16 costs proceedings. On the question of privilege he deposes (pars 21 and 22):

21   Mr Muriniti may seek to rely on his file in order to prepare his evidence in response to the Personal Costs Motions. If he wishes to do so, Mr Muriniti will be required to obtain Mrs Young's consent to waive her privilege over the file. Based on my experience, I believe this will require Mrs Young to seek independent legal advice. There would be a clear conflict of interest between Mrs Young and Mr Muriniti on the question of whether Mrs Young should agree to waive her privilege. This is particularly so while there are proceedings still on foot in the Court of Appeal.

22   This conflict may impede Mr Muriniti's ability to continue to act for Mrs Young in the Appeal proceedings. If Mr Muriniti is unable to continue to act for Mrs Young in those proceedings, it is likely to disrupt the prosecution of the Appeal proceedings.

29. He estimates (par 23) that defence of the personal costs motions may cost Muriniti “around $55,000 plus GST”, but adds the caveat that “the figure may well be higher”. The costs and disbursements incurred by each of the costs applicants, he estimates, “may be in the region each of $28,000” (par 24).

30. He deposes also that Muriniti has instructed him (par 26) “that, to the extent it is within his control ... he will use his best endeavours to prosecute these appeals and applications expeditiously”.

Submissions

Introduction

31. The principal submissions, both written and oral, in favour of the stays were made by Newell (for Young), and Lloyd (for Muriniti), and those against by Wright (for the Kings), Faulkner (for R8, Davies), Horvath (in writing for R5, Hemmings), and Gray (for R6/7, Perrens).

32. The other active non-party respondents were content to adopt and endorse the submissions of Faulkner, Horvath, and Gray, except that counsel for R17 (Schubert) cited (par 2) the relevance of his client’s uninsured status to the consideration of questions of justice, and the solicitor for R13 (Tuxworth) neither consented to, nor opposed the stays, but would submit to the orders of the Court (T18.5.16, p29, LL3 – 4).

33. The submissions made on Young’s behalf assert that her appeals have “good prospects of success”, especially after “admissions” alleged to have been made by respondents during the costs hearings so far. Accordingly, it would be “perverse” of the Court to allow the costs applications to proceed while at least the appeal against judgment No 6 is on foot.

34. Those submissions rely on some remarks in Lemoto ([7] above), and it is convenient to say something about that case at this stage.

Lemoto

35. Lemoto concerned an application for a personal costs order against a solicitor under Pt 11 Div 5C of the Legal Profession Act 1987. Such matters depend often upon disputes about the existence or perception of there having been “reasonable prospects of success”, or not, when action was taken. The Court of Appeal was alive to the prospect that even the process of a Div 5C application can cause prejudice to the client who obtains such an order.

36. Ipp JA agreed with both Hodgson and McColl JJA, and added no comments of his own, but Hodgson JA agreed with McColl JA’s lengthy judgment, adding only “a few comments” of his own, notably (at [5]) concerning how time-consuming, expensive, and complicated the necessary hearing(s) may be.

37. His Honour added (at [6]):

Further, the whole process may be complicated by considerations of the interests of the party represented by the persons against whom an order is proposed. A s.198M order is, in itself, in the interests of that party, in that it may relieve that party of the costs of the proceedings; but the process of determining whether such an order should be made may be very much against that party’s interests, by depriving that party of its legal advisers and thereby hindering proper consideration of the possibility of an appeal and the institution and conduct of an appeal, and also by giving rise to disclosure of privileged communications (which, even if it does not involve loss of the privilege for other purposes, could be to the detriment of that party). This may not be a serious difficulty if it is this party itself that applies for the s.198M order, because in that case the party chooses to subject itself to these possible disadvantages. But if, as in this case, the process is initiated by another party, or by the Court, the possible disadvantages to the party for whom the relevant legal services were provided need to be kept steadily in mind.

38. McColl JA noted (at [19]) that the legislative intention of Div 5C was, at least in part, to prevent “unmeritorious claims” and “spurious defences”.

39. The factual history in Lemoto was very complex, and Her Honour went through it, and the history of the provisions, in painstaking detail. She cautioned several times that the discretion to make such serious orders must be exercised with “care”, “discretion”, “circumspection”, and only “in clear cases”, extending every element of natural justice to the practitioner involved – the order must be “just in all the circumstances” ([138]).

40. Her Honour made the following general observations ([189] – [196]):

189 First, the fact that Division 5C appears in legislation which makes elaborate provision in Part 10 for the discipline of legal practitioners suggests that Division 5C should not be invoked where the conduct impugned is “sufficiently egregious to give rise to a contention that a person is permanently, or at least indefinitely, unfit for practice”: see New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 at [5], [27] per Spigelman CJ. This tends to reinforce the proposition that the Division 5C power should be exercised with caution.

190 Secondly, no doubt Division 5C was introduced with the purpose of eliminating claims for damages which are not “fairly arguable”. However, it runs the grave risk of becoming an instrument of injustice if not properly understood and applied. Division 5C requires the legal practitioner to form a belief about the prospects of success in circumstances where he or she is not merely considering the client’s interests and the duty to the court, but will inevitably be concerned about his or her potential exposure to a personal costs orders. There is a real risk that the over-cautious will refuse to act, potentially depriving a client of an effective remedy. As Lord Steyn said in Medcalf [v Mardell [2002] UKHL 27; [2003] 1 AC 120] (at [42]):“The law reports are replete with cases which were thought to be hopeless before investigation but were decided the other way after the court allowed the matter to be tried.”

191 Lord Steyn’s observation highlights the necessity to approach a submission that a legal practitioner has contravened s 198J with considerable circumspection. It would be a sad consequence of Division 5C if it influenced legal practitioners to become “timorous souls” as opposed to “bold spirits”: cf Candler v Crane Christmas & Co [1951] 2 KB 164 at 178 per Lord Denning.

192 Thirdly, because Division 5C operates at the fault line between a legal practitioner’s duty to the Court and his or her duty to the client it has the potential to expose clients to unfortunate consequences. Thus in Degiorgio v Dunn (No 2) [[2005] NSWSC 3] where the defendant sought costs on an indemnity basis not only from the unsuccessful plaintiff but also from his solicitor, the solicitor withdrew from the retainer immediately it became clear that an application for a costs order against him would be pursued. At the hearing on costs, the plaintiff appeared without legal representation and his former solicitor was represented by counsel.

193   There is a real risk if s 198M applications are made immediately after proceedings have concluded (which I accept is the most realistic time for any such application) that the client may be prejudiced if the legal practitioner ceases to act because of a perceived conflict of interest leaving the client unable to secure advice as to the prospects of a successful appeal from the person most familiar with the proceedings.

194   Fourthly, I share the concern expressed elsewhere of the risk of a practice developing whereby solicitors endeavour to browbeat their opponents into abandoning clients or particular issues or arguments for fear of personal costs orders being made against them: see Levick v Commissioner of Taxation [[2000] FCA 674; (2000) 102 FCR 155] (at 166); Patrick v Capital Finance Corp (Australasia) Pty Ltd [2004] FCA 1249.

195   Finally, as I earlier noted, in Ridehalgh [v Horsefield [1994] Ch 205] at 238 – 239 the Court of Appeal warned that judges “must be astute to control what threatens to become a new and costly form of satellite litigation”. Despite this warning the House of Lords observed in Medcalf (at [13]):“… [T]he clear warnings given in [Ridehalgh] have not proved sufficient to deter parties from incurring large and disproportionate sums of costs in pursuing protracted claims for wasted costs, many of which have proved unsuccessful.”

196 What has happened in this case is a salutary warning to courts to ensure that Division 5C applications do not assume a costly life of their own.

41. Young’s submissions on Lemoto would appear to be more relevant to the actual costs arguments which are to come, albeit under different legislation, rather than to the present stay applications.

For a stay

42. Lloyd, however, relied on Hodgson JA’s par [6], on Muriniti’s behalf, and was careful to emphasise the differences between the present situation and the more traditional circumstances of a stay application. He made no submission on the prospects of success of any element of Young’s appeals, but urged the Court to give weight to what Newell would say in this regard. He was optimistic that any stay granted would expire by the end of this year, and argued that no respondent would suffer any prejudice, not covered by interest.

43. Newell reiterated the Young camp’s view that success on appeal is “very much on the cards” (T18.5.16, p16, L48), and that her prospects were enhanced by “admissions” made by respondents during the earlier costs hearings. He relied on pars [190] – [196] of Lemoto. He stressed the concern regarding privilege issues, and the possibility of inconsistent findings. If Young succeeds on appeal she is likely to bring “common law proceedings for damages for deceit and conspiracy” (T18.5.16, p4, LL2 – 4).

Against a stay

44. Faulkner emphasised the need for the Court to be satisfied, firstly, that the appeal has any prospects of success, and he relied upon the failure of those seeking a stay – including Yeldham and Lloyd – to so demonstrate. If satisfied that the appeal raised serious questions for decision, the Court would need to consider the balance of convenience, and that is clearly in favour of no stay. No prejudice has been made out, beyond some theoretical or hypothetical inconveniences. The respondents have been the victims of abuse of process, and are now subjected to these very “late” stay applications, brought only after substantial costs have already been incurred by them.

45. Horvath’s written submissions were along much the same lines as Faulkner’s. There were no “interests of justice” served by granting any stay, and a stay will cause injustice to the non-parties who were brought into a doomed costs application. The claimed prejudice can be put no higher than the possibility that Muriniti may seek to rely on his file to resist costs claims against him and any resulting conflict between him and Young may impede his ability to act for her further on her appeal. It would be hard to imagine there could be anything material in his file which he has not already put before the Court on her behalf.

46. Wright emphasised that Muriniti and Newell had been on notice from late 2012 that the Kings would seek personal costs orders in respect of what had occurred to that point, yet they remained as Young’s representatives, lost again in 2015, and then embarked on a clear abuse of process regarding costs. There was “no conceivable basis” upon which Young could have been awarded her costs, and there was “no disentitling conduct” on the Kings’ part (apart from the alleged conspiracy) to displace the normal costs practice. It was “unreasonable and improper” for Young’s lawyers to pursue the hopeless costs NOM of 20 August 2015. The now alleged “risk of conflict” arose in reality when Young’s lawyers continued to act for her despite the threat of personal costs orders.

Applying the principles to the present case

47. In terms of “serious question” and “arguable grounds” (Lawrence, at [13]), Young again relies in her appeal on the arguments she has consistently made and lost throughout this litigation. As I said in judgment No 8, at [2]:

2   The consistent claim put to the Court by Young over the years has been that the 2004 decision and orders worked an injustice against her, as a result of an “unlawful means conspiracy” involving Kings, Warringah Council, and a range of others, devised by Council from at least 2001, and aimed at forcing an easement and drainage works on to her land.

48. I have repeatedly rejected her allegation of conspiracy etc, which lately embraced the sixteen added respondents, but Young and Newell continue (subs par 2) to impugn my decisions in this regard, on the flimsy basis that I used the term “inappropriate” in one paragraph of judgment No 6 ([229]).

49. In judgment No 9, delivered on 19 February 2016, I set out my findings and pronouncements from my earlier judgments, regarding Young’s allegations of fraud, collusion, conspiracy and so on throughout her litigation, and I concluded (at [59] and [60]):

59   It is clear from the judgments quoted above that the Court (1) was aware, in clear, if general, terms, but well before the delivery of judgment No 6, of the ambit of Young’s allegations of fraud and conspiracy against all 18 costs respondents, and (2) found no evidence of “any real, probative value” upon which to base any finding of fraud or conspiracy “against anyone involved in the matter” (judgment No 6 at [227] and [229], ... further emphasis now added).

60   I reject Newell’s attempts (T30.11.15, p63, LL19 – 34) to “read down” that finding to exclude anyone not a party to the substantive proceedings, and to rely on what he says is a failure by the respondents to deny the fact of a conspiracy (p65, L30 – p66, L10).

50. I clearly am not now in any position to express any view that those issues can now found a “serious question” to be tried, or any “arguable grounds” to be pressed, in her pending appeal(s).

51. However, support has lately been found, from a rather unexpected source, for my oft-repeated view regarding the conspiracy arguments.

52. In “parallel” Supreme Court litigation between Young and Hones, Hemmings and Perrens (and associated entities), substantial costs orders were made against Young by Garling J: Young v Hones (No 3) [2014] NSWSC 499.

53. Perrens and his employer sought to enforce the orders made in their favour by issuing a bankruptcy notice against her, and Young challenged it in the Federal Circuit Court (“FCC”).

54. Young annexed at tab 6 of her affidavit of 29 April 2016, read before me on her current stay application, a copy of the transcript of the hearing of that challenge on 16 March 2016 by Smith J. In that hearing, Newell appeared for Young, and Mr S Gray of counsel for Perrens and his employer.

55. Much of Newell’s argument before Smith J repeated the assertions on which Young had failed before. For example, he argued, (tab 6, fol 191, L31 – fol 192, L34) that:

Had Perrens and Davies given evidence and disclosed what was being discussed in the conclave, then the fraud on the court and on the applicant would have been compellingly demonstrated.

56. In fact, Perrens was not called in the hearing before me that led to judgment No 6.

57. In the most recent hearing before me, Gray, appearing again for Perrens and his employer, took me to that part of the FCC transcript, and also to His Honour’s judgment, delivered on 29 April 2016 (Young v Hughes Trueman Pty Limited [2016] FCCA 989).

58. In his judgment, Smith J noted the history of all Young’s relevant litigation, and referred to my substantive judgments Nos 4 and 6, and to the “related” District and Supreme Court proceedings.

59. In recording the orders I made in judgment No 6, His Honour said of my thinking (at his [15] – emphasis mine):

... What he could not reasonably have contemplated was that it would be the unsuccessful applicant who was to file an application for costs. If that were not remarkable enough, the applicant sought costs not only against her successful neighbours, but against all of their alleged co-conspirators including the respondents. The basis of that extraordinary application was that there had been a conspiracy to defraud her and so each of the conspirators had caused her to incur the costs of seeking to set aside the orders made by consent. That is, it was based on precisely the same claim as the application which had failed.

60. His Honour went on ([16]) to summarise the effect of my judgments Nos 8 and 9, and then continued ([17] – [22] – emphasis mine):

17.   Undeterred, the applicant has sought leave to appeal from both the decision to refuse to set aside the consent orders and the decision on the application for costs against the respondents (amongst many others). In essence, the applicant argues that she should have the opportunity to pursue that application for leave to appeal. She says that it has strong prospects. In my view, her right to pursue that avenue should not be preferred to the right of the respondents to insist on satisfaction of the bankruptcy notice.

18.   First, there is no basis whatsoever for the underlying allegation of conspiracy. It is unarguable and should not, on any view, have ever been argued by members of the legal profession. Justice Sheahan was correct to find that the application for costs was an abuse of process.

19.   Secondly, the argument that Sheahan J gave inadequate reasons for his judgment is plainly wrong and would not, in any event, have provided any basis for setting aside the bankruptcy notice in those (sic – these) proceedings.

20.   Thirdly, there are strong discretionary grounds upon which leave to appeal might be refused. Those include the fact that it concerns an application for costs against non-parties in long drawn out and multi-faceted proceedings.

21.   Fourthly, even if there were some chance of leave to appeal being granted, and the appeal succeeding, that is still insufficient in my view to justify the setting aside of the bankruptcy notice ...

22.   ... It is remarkable, if it [be] true, that a pensioner has accrued a liability to her lawyers for legal fees in the amount of $3,000,000 because of a drain.

61. His Honour’s conclusion ([23]) says (emphasis again mine):

This application was ill-conceived, ill-prepared and poorly presented. Mr Newell, who has represented the applicant in numerous cases in numerous jurisdictions since 2008, and who appeared for her in these proceedings submitted that the matter was complicated and difficult. He was wrong. It is simple. There is no evidence of a conspiracy of any sort and no basis whatsoever for setting aside the bankruptcy notice. The application is dismissed.

62. Accepting for the moment that a judge who heard these stay applications did not share Smith J’s confidence that my decision in judgment No 6 would be found, on appeal, to be correct, it would be necessary for the court to consider the balance of convenience, so I have done so.

Conclusion

63. The arguments against granting any stay are clearly overwhelming, and the submissions of the opponents of such relief are clearly to be preferred.

64. The Kings have been seriously prejudiced at least since 2008, and sixteen non-parties to this litigation have already been put to great cost and inconvenience in successfully defending Young’s totally unmeritorious costs claims against them.

63. Nothing should be allowed to delay the (1) recovery of such costs as have already been ordered, nor (2) the hearings of (a) the primary appeal, (b) the application for leave for a further appeal, or (c) the outstanding costs issues listed for hearing before me on 2 August 2016.

64. The two motions for stays ought be dismissed, and the applicants on them ought pay the costs of the respondents to them.

Orders

67. The Orders of the Court are:

1. The applicant/plaintiff Young’s amended Notice of Motion of 18 May 2016 is dismissed.

2. The Notice of Motion filed on behalf of Muriniti and his law firm on 21 April 2016 is dismissed.

3. The applicant/plaintiff and the Muriniti interests are jointly and severally ordered to pay the costs occasioned to all the respondents by the notices of motion.

4. All outstanding costs matters are stood over to Tuesday 2 August 2016 at 10:00am.

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Decision last updated: 01 May 2018