Young v Racing NSW (No 2)

[2020] NSWDC 785

District Court

New South Wales

Medium Neutral Citation:

Young v Racing NSW (No 2) [2020] NSWDC 785

Hearing dates:

13 August 2020

Date of orders:

3 September 2020

Decision date:

03 September 2020

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Orders

(1) The plaintiff’s application for me to recuse myself is refused.

(2) The plaintiff’s application pursuant to UCPR r 36.15 to set aside judgement handed down on 14 November 2019 dismissing these proceedings (Young v Racing NSW [2019] NSWDC 662) is dismissed with costs.

(3) The plaintiff’s application for leave to cross-examine the defendants’ deponents is refused.

(4) The plaintiff is to pay the defendants’ costs of these proceedings as follows:

(a) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first and second defendants’ costs in the sum of $57,808.69.

(b) Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the third defendant’s costs in the sum of $39,563.79.

(5) Exhibits retained until further order.

Catchwords:

PRACTICE AND PROCEDURE – defendants bring application for gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) after proceedings summarily dismissed – plaintiff brings application under UCPR r 36.15 to set judgment aside – application to set aside refused – gross sum costs orders made

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56-62, 98(4)(c)

District Court Practice Note 6 Defamation List

Evidence Act 1995 (NSW)

Legal Profession Act 2004 (NSW) (repealed), s 322

Legal Profession Uniform Law 2014 (NSW), ss 169, 173, 174, 178, 180, 185

Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Thoroughbred Racing Act 1996 (NSW)

Uniform Civil Procedure Rules 2005 (NSW) rr 36.15, r 36.16, 42.1, 42.20

Cases Cited:

Amos v Monsour P/L & Ors [2009] QCA 65

Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 76

Brambles Holdings Ltd v Trade Practices Commission (No 3) (1981) 58 FLR 452

Cameron v Cole (1944) 68 CLR 571 at 591

Cassegrainv Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260

Coles v Burke (1987) 10 NSWLR 429 at 437

Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244

DEF v Trappett [2016] NSWSC 1387

Duraisamy v Sydney Trains [2019] NSWCA 269

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523

Florida Kitchens Pty Ltd v Number One Cutting (T/S Number One Marble and Granite) (No 2) [2020] NSWSC 216

Gorczynski v AWM Dickinson & Son [2005] NSWSC 277

Houston -v- Barniville & ors; Houston -v- Geoghegan & ors; Houston -v- The General Council of The Bar of Ireland; Houston -v- The General Council of The Bar of Ireland; Houston -v- O'Neill [2019] IEHC 601

Johnson v Johnson (2000) 201 CLR 488

Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193

Lemoto v Able Technical Pty Ltd & 2 ors [2005] NSWCA 153, 63 NSWLR 300

Mariusz Zmudzinski v Cheapa Campa Pty Ltd and Camper Travel Pty Ltd [2011] SWSC 997

Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 2) [2018] NSWSC 72

Merringtons Pty Ltd v Luxxotica Retail Pty Ltd [2006] VSC 25

Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396

Milillo v Konnecke [2009] NSWCA 109

O’Neill v Wilson [2011] QSC 220

Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121

Spencer v Bamber [2012] NSWCA 274

Taylor v Taylor (1979) 143 CLR 1

Vakautav Kelly (1989) 167 CLR 568

Varga v Scigliano [1995] NSWCA 482

Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No. 4) [2011] NSWSC 720

Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181

Woodroffe v National Crime Authority [1999] FCA 1689; (1999) 107 A Crim R 384

Young v Racing NSW [2019] NSWDC 662

Young v Royal Society for the Prevention of Cruelty to Animals New South Wales t/as RSPCA [2020] NSWSC 1001

Young v RSPCA (No 2) [2019] NSWDC 754

Texts Cited:

-

Category:

Procedural and other rulings

Parties:

Plaintiff: Gary Young
First Defendant: Racing NSW (ABN 862 816 044 17)
Second Defendant: Casino Racing Club Ltd
Third Defendant: Richmond Valley Council

Representation:

Counsel:
Plaintiff: In person
First and Second Defendant: Mr A T S Dawson SC / Mr T M Rogan
Third Defendant: Mr M A Karam

Solicitors:
Plaintiff: In person
First and Second Defendant: Yeldham Price O’Brien Lusk
Third Defendant: Swaab

File Number(s):

2019/224988

Publication restriction:

None

Judgment

The applications before the court

1. The plaintiff is a horse trainer. The first defendant performs statutory duties pursuant to the Thoroughbred Racing Act 1996 (NSW). The second defendant is a racing club registered with the first defendant. The third defendant is the council for the area in which the plaintiff resides.

2. As is set out in my previous judgment in these proceedings (Young v Racing NSW [2019] NSWDC 662 at [5] – [9]), the plaintiff was convicted of an offence of animal cruelty which was the subject of an ABC News website report on 12 December 2012. Some years later, on or about 22 January 2019, that news article came to the attention of a Mr Rudge, a Licensing Supervisor employed by the first defendant. Mr Rudge wrote to the plaintiff asking if the offender described was him and, if so, whether there was an appeal and what the outcome of the appeal had been. The plaintiff replied that he had “won that appeal” and that on 17 April 2019 the ABC had removed the article from its website. (In fact, the appeal was dealt with in 2016 under the Mental Health (Forensic Provisions) Act 1990 (NSW), s 32, but nothing turns on this). This ABC news item is asserted to be relevant to a dispute the plaintiff was having in relation to his entitlement to train his horses at the Casino racetrack. The plaintiff then commenced these proceedings on 19 July 2019, as well as the other proceedings referred to in my previous judgment at [10].

3. As the claims were of defamation as well as negligence, these proceedings were transferred from the Lismore District Court to the Sydney registry, where they were case managed in the Defamation List (and by further orders in chambers) by Levy SC DCJ. His Honour’s directions included listing applications brought by the defendants for summary dismissal for argument on the date agreed to by the parties (7 November 2019), with the plaintiff to appear by telephone, as well as making orders in chambers extending time for compliance by the plaintiff with the timetable. My only role in case management was to hear the application on 7 November 2019.

4. On 14 November 2019 I handed down judgment summarily dismissing the plaintiff’s claims against all defendants in these proceedings. In that judgment, I reserved the issue of costs, with liberty to apply. The defendants now bring an application for costs and for an order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) as well as r 42.20 of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) for gross sum costs orders.

5. Following the applications for gross sum costs orders being made, the plaintiff brought an application pursuant to UCPR r 36.15 to set aside the judgment of 14 November 2019 which is the subject of these costs applications. He has raised the same application in relation to another judgment (Young v RSPCA (No 2) [2019] NSWDC 754) to which the defendants in these proceedings are not parties. He also challenges the making of gross sum costs orders, principally on the ground that the defendants did not sign the costs agreements.

6. The “new hearing” which the plaintiff seeks is on the basis of unfairness (both in these proceedings and in Young v RSPCA (No 2) [2019] NSWDC 754), which he set out in a “partial list” in his written submissions as follows:

“A PARTIAL LIST OF INSTITUTIONAL PREJUDICES and SEVERAL VERY IMPORTANT INSTANCES DEMONSTRATING THE OPEN AND VERY CLEAR severe fully intentional prejudices of Gibson DCJ towards plaintiff as a remote area distant litigant…40 – 45% deaf…self represented litigant not worthy of being allowed…equal…access to her court and thus…presenting…an easy target for negligent or intentional prejudice by her honour totally denying to plaintiff anything that reasonably resembles a fair trial with equal access to the court or a fair and just and open hearing…”

[Plaintiff’s submissions; the plaintiff’s punctuation and presentation style has been preserved in all quotations]

The evidence and submissions

7. The first and second defendants rely upon the following submissions and affidavits:

1. Order 3 of their Notice of Motion filed on 19 September 2019.

2. Affidavits of Timothy Randolph Price sworn on 2 March, 28 May and 24 June 2020.

3. Submissions on costs prepared by Mr A T S Dawson SC and Mr T M Rogan dated 28 May 2020.

8. In response to the plaintiff’s application to set aside the judgment of 14 November 2019, the first and second defendants rely upon the submissions dated 24 July 2020, by the same counsel, in response to the plaintiff’s submissions dated 23 March 2020, as well as the schedule of costs dated 18 August 2020.

9. The third defendant relies upon the following submissions and affidavits:

1. Orders 1 – 3 of the notice of motion filed on 20 February 2020.

2. Affidavit of Ian Ramsey-Stewart sworn on 19 February 2019.

3. Affidavits of Marc Richard Baddams sworn on 25 March and 27 May 2020.

4. Written submissions dated 27 May 2020 prepared by Mr M A Karam of counsel.

5. Schedules of costs and additional submissions on quantum dated 19 August 2020.

10. In response to the plaintiff’s application to set aside the judgment of 14 November 2019, the third defendant relies upon Mr Karam’s submissions dated 23 July and 19 August 2020.

11. As the plaintiff is a litigant in person, the court prepared and circulated a draft list of submissions to the parties, which is reflected in the Index to the Court Book prepared by the defendants. The plaintiff did not participate in this process but has not raised any objection to the Court Bundle, which is marked Exhibit 1, beyond tendering, at my suggestion, his email of 8 August 2020, which has been marked as Exhibit A. Most of the contents of that document, however, relate to an application to set aside my judgment in the unrelated proceedings he has brought against the RSPCA.

12. The absence of any evidence or written submissions about costs by the plaintiff should be noted. The plaintiff entered into a consent timetable on 1 April 2020 requiring him to serve evidence and submissions by 30 April 2020 on the issue of costs but, as he acknowledged during the hearing, he did not do so.

13. Noting the contents of the Court Book, Exhibit A and the exchange of submissions after 13 August 2020, the plaintiff relies upon the following:

1. His written submissions dated 23 March 2020, which seek a two-day joint hearing for both these proceedings and the separate proceedings against the RSPCA.

2. Oral statements made to the court on return dates for this application as well as on 13 August 2020.

3. Emails to the defendants and to the court, such as his emails dated 24 June and August 10 and 11, 2020.

4. His further written submissions dated 8 August 2020 and attachments.

5. His further written submissions of 24 August 2020.

14. Two preliminary issues require consideration.

15. First, the plaintiff initially challenged the quantum of costs claimed and foreshadowed his intention to cross-examine the deponents. However, he failed to comply with the orders of 1 April 2020 and instead made the following statement in his submissions dated 8 August 2020:

“7. Plaintiff will not address issues arising in Young v Racing NSW as that will be the subject of any new hearing and will refer only to the dismissal judgment in Young v RSPCA et al 2019 NSWDC 754.”

16. These other proceedings to which the plaintiff is referring were brought against the RSPCA, and were not before the court for hearing, as the proceedings are currently before the Court of Appeal.

17. However, in an email dated 10 August 2020, the plaintiff advised he would nevertheless “request all witnesses to be cross-examined” and that these witnesses should be “excluded for the court,, [sic] PLEASE UNDERSTAND THIS CLEARLY [sic]”, on the basis that “the court has already ordered that I can cross-examine” (plaintiff’s presentation and punctuation retained).

18. This is not accurate. The orders I made on 1 April 2020 did not grant the plaintiff the right to cross-examine but required him to serve evidence and submissions which would include setting out reasons for seeking to cross-examine:

“By consent of the parties, vary orders (1) to (5) of Gibson DCJ’s orders of 26 March 2020 to provide:

3 Plaintiff to file and serve evidence in response on both applications for gross sum costs orders, including his reasons why he is entitled to cross-examine the deponents, as well as any further material in relation to the plaintiff’s application under r 36.15 Uniform Civil Procedure Rules 2005 (NSW), by 30 April 2020.

4 First, second and third defendants to file and serve any evidence in reply, including costs agreements between the solicitors for the defendants and their clients, and submissions on the costs applications by 28 May 2020.

5 Plaintiff to file and serve submissions on his application under r 36.15 Uniform Civil Procedure Rules 2005 (NSW) and in response on the costs applications by 25 June 2020.

6 First, second and third defendants to file and serve any submissions in response to the plaintiff’s application under r 36.15 Uniform Civil Procedure Rules 2005 (NSW) and in reply by 23 July 2020.

7 The applications are to be heard by AVL in Court 13A (Sydney) and Court 3 (Lismore) on Thursday 13 August 2020 (estimate half a day).

19. As is already noted above, the plaintiff never filed any material in compliance with the 1 April 2020 timetable and never indicated the areas about which he wished to cross-examine. As is set out below, I refused leave to cross-examine the deponents, whose affidavits related to issues of costs only.

20. Secondly, the plaintiff has also sought to challenge my judgment in Young v RSPCA (No 2) [2019] NSWDC 754: see page 1 of his submissions of 23 March 2020.

21. This judgment deals only with the applications in relation to these proceedings. The proceedings which were the subject of my judgment in Young v RSPCA (No 2) [2019] NSWDC 754, although referred to frequently by the plaintiff, were not listed for hearing before me, because these are the subject of a referral by Adamson J to the Court of Appeal: Young v Royal Society for the Prevention of Cruelty to Animals New South Wales t/as RSPCA [2020] NSWSC 1001. The plaintiff appears to have accepted this, as a consent order for an adjournment until after the Court of Appeal hearing date has now been agreed upon by the plaintiff and the solicitor for the RSPCA.

22. Mr Dawson SC suggested, and the plaintiff agreed, that the plaintiff’s application should be dealt with first, so that I can deal with the plaintiff’s complaints about my conduct of the proceedings leading to the 14 November 2019 judgment.

Complaints of bias

23. The plaintiff’s written submissions contain many complaints about the unfairness of these proceedings being conducted in the Sydney registry of the District Court and about his difficulty in hearing what was said during the hearing which followed the service of written submissions. Some of these were “institutional” in that they were the court’s fault and some were due to my conduct, specifically in my not doing more to help the plaintiff with his hearing problems.

24. The relevant principles are set out in Johnson v Johnson (2000) 201 CLR 488 and further explained in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344-5, 348 and 363. There is a two-stage test: the party making the claim must identify the conduct asserted to amount to the judge deciding the case other than on the merits, and then show a logical connection between that conduct and the feared deviation from the course of deciding the case on the merits.

25. The plaintiff’s generalised complaints about hearing problems during oral submissions do not even get to the first of these two steps, in terms of identifying the conduct in question, let alone identifying how that conduct amounted to deciding that case other than on the merits. Although given a timetable in which to list the specific areas of complaint of bias, with references to the transcript if possible, he has not done so. His complaints are, essentially, about the injustices caused by the court’s geographical and technological features. The complaints made about my conduct are:

1. My conduct of the unrelated RSPCA proceedings (see for example paragraphs 8 – 29). This includes a claim that I was “prejudicial against plaintiff to avoid being appealed against on a proper and legitimately lawful verdict WHICH SHOULD HAVE BEEN IN PLAINTIFFS FAVOUR. [Plaintiff will not address issues arising in Young v Racing NSW as that will be the subject of a new hearing]” (submissions, 8 August 2020, paragraph 9). Paragraphs 43 – 46 contain similar complaints, which are essentially that I rejected the plaintiff’s arguments.

2. My asserted insistence that the plaintiff travel to Sydney for the hearings. This is incorrect; the proceedings were transferred to Sydney by the Lismore registry conformably with District Court Practice Note 6 Defamation List; this is an administrative process and I was not consulted. Nor did I play any part in the bringing of this application or arrangements for the plaintiff’s attendance. As is set out in my earlier judgment, the proceedings came before Levy SC DCJ on the first return date, who made the notation that the plaintiff “will appear by telephone” in his orders dated 22 August 2020, when he listed the defendants’ applications for hearing on 7 November 2019. As set out in my previous judgment (at [20]), the plaintiff appeared by telephone conformably with the notation in the 22 August 2020 orders; he was not ordered to attend in person. Levy SC DCJ also made orders in chambers accommodating the plaintiff’s email request for an extension of time to file his amended statement of claim; he was not ordered to come to Sydney.

3. My asserted failure to assist the plaintiff with his hearing problems. I had no role in the case management or appearance arrangements of these proceedings, as is set out above. The plaintiff’s submissions, including his email dated 6 November 2019 and the two submissions headed “Hearing Date Nov 7 2019” and “Memorandum for Nov 7 Hearing”, do not refer to health problems of any kind, including hearing problems. The first time the plaintiff advised of these hearing problems, and what I did as a result, is set out in my associate’s email dated 3 March 2020, a copy of which is attached to the plaintiff’s written submissions dated 24 August 2020.

4. My failure to apply the “Federal Court’s defamation practice note” (submissions, 8 August 2020, paragraph 16). This is asserted to be my refusal to permit the plaintiff to go all the way to trial, which ‘MUST RAISE THE MOST SERIOUS RED FLAGS” (paragraph 15). This is asserted to be “a breach of s 109” where “she is openly aware of s 109 and yet actively within her court she deliberately evades it …the open and equal application of the law…where clearly federal court rules as federal law override all NSW law in this respect…and…she even celebrates that evasion…to expeditiously clear her calendar.” However, these proceedings are subject to the Civil Procedure Act 2005 (NSW) because they are brought in this court, and “section 109”, as the plaintiff calls it, has no application. The orders for the hearing of a summary dismissal application about which the plaintiff complains were made by Levy SC DCJ; I played no role in the case management of these proceedings beyond hearing this application. Moreover, when the proceedings came before me for hearing on 7 November 2019, the plaintiff made no objection to the summary application being heard; he asserted he had the answer to it in the form of a statement of claim he said he had copied from the Federal Court website. Finally, although it is only a minor point, the Federal Court Defamation Practice Note was published for use only for that Court, and published on 12 November 2019, so it could not have been applied to the judgment I handed down two days later.

26. By the time the proceedings came before me, the submissions had all been served (including the late amendments made by the plaintiff) and the format of the hearing (which Levy SC DCJ had noted was to include the plaintiff appearing via telephone) was already in place. In the absence of contemporaneous complaint by the plaintiff about any of these matters, it is hard to understand what he expected me to do.

27. If the plaintiff is suggesting that I expressed concluded opinions during the hearing on 7 November 2019, it is necessary to take into account that, where a judge has received written submissions and then participates in discussion of those submissions at the hearing, the court would be less likely to assume bias: Varga v Scigliano [1995] NSWCA 482 at page 14 per Handley JA.

28. The plaintiff provides no explanation for his delay in raising his complaints, which should be done during (or at least shortly after) the conduct complained of. The plaintiff only complained about the conduct of these proceedings after the defendants sought a gross sum costs order. An application should be made as soon as reasonably practicable after the party seeking disqualification becomes aware of the relevant facts. Otherwise the right to do so may be waived: Vakauta v Kelly (1989) 167 CLR 568; Cassegrain v Commonwealth Development Bank of Australia Ltd [2003] NSWCA 260.

29. Another problem is that the plaintiff has not in fact asked me to recuse myself from these proceedings, a step which really must be seen as a prerequisite (Houston -v- Barniville & ors; Houston -v- Geoghegan & ors; Houston -v- The General Council of The Bar of Ireland; Houston -v- The General Council of The Bar of Ireland; Houston -v- O'Neill [2019] IEHC 601 at [5]). He has instead told me that I must grant his application, set aside my judgment, and grant him a completely new hearing in proceedings which will go all the way to trial, on his present pleadings, to be conducted with all parties in person in Lismore District Court. He appears to be quite happy for me to hear this new case, as he told me during his oral submissions on 13 August 2020.

30. Applying the “fair-minded lay observer or bystander” test in the manner helpfully explained by N Adams J in Florida Kitchens Pty Ltd v Number One Cutting (T/S Number One Marble and Granite) (No 2) [2020] NSWSC 216, I consider any observer/bystander would not reasonably apprehend, in the circumstances set out above, that I might not have brought an impartial mind to the proceedings resulting in my judgment of 14 November 2019 or to the applications currently before the court. That bystander would be in a position to assess the conduct of everyone, including the plaintiff, and to understand how the court should reconcile the competing needs of the parties as well as the resources of the court, having regard to the overarching obligations set out in s 56 of the Civil Procedure Act 2005 (NSW).

31. Even if an appellate court were satisfied that my conduct of the proceedings was less than satisfactory, that does not automatically result in the judgment in question being set aside. In Spencer v Bamber [2012] NSWCA 274, Basten JA explained (at [18]) that applications for disqualification share the tendency of complaints of inadequacy of reasons, namely that both amount to a disagreement with the conclusions reached. His Honour went on to note that, if a given finding, or even a series of findings, adverse to the appellant are nevertheless supportable, it would be unlikely to warrant the setting aside of the judgment on the basis of apprehended bias. It would be open to the Court of Appeal, however dissatisfied it may be with my conduct, to determine that the hopelessness of the case was sufficiently obvious to warrant the dismissal of the claim. The hopelessness of the pleadings and the plaintiff’s refusal to consider the complaints carefully set out in the defendants’ written submissions make it impossible for the claim to go forward in any meaningful way.

The plaintiff’s application to set aside the judgment under UCPR r 36.15

32. Mr Dawson SC sets out, in his submissions filed on 24 July 2020, a summary of the bases of the plaintiff’s application:

1. The plaintiff’s complaint that his hearing impairment was not adequately accommodated by the Court’s facilities (submissions, 23 March 2020).

2. His complaints about the distance of the court from his home, which he asserts requires him to travel long distances and/or use the telephone or AVL (submissions, 23 March 2020).

3. His complaints about the rejection of his application for discovery (emails, 24 June and August 10 and 11 2020). Mr Dawson SC adds that the plaintiff did not in fact make an application for discovery before suit, or for preliminary discovery.

4. “Open prejudices” displayed by the court, requiring a rehearing (submissions, 23 March 2020; email, 24 June 2020). This includes a complaint of giving the defendants’ costs application more serious treatment than the plaintiff’s claim.

5. The plaintiff’s request for what he calls “judicial notice of the adversities to this litigant previously placed before the court which brutalised any chance whatsoever that any form of equal access to the court existed for plaintiff” (this appears to refer to other proceedings brought by the plaintiff in other courts and before other judges, going back some years).

6. Claims that the defendants have withheld costs agreements or not paid the costs at all (i.e. that the costs are inflated and fictitious). I note the defendants’ submissions that this is contrary to the affidavit material filed.

33. Mr Karam, in paragraph 10 of his submissions, confirms his understanding of these being the complaints raised. Both counsel acknowledged the plaintiff’s complaints about my asserted lack of assistance but pointed out, as is set out below, that the plaintiff never complained of these problems to Levy SC DCJ or to myself until after their applications for costs was brought.

34. In his submissions of 24 August 2020, the plaintiff responds to the defendants’ outline. He starts with the following assertion at paragraph 3:

“3… [sic] THE COURT MUST RECALL ITS ORDER OF [sic] DECEMBER 2019 AND REHEAR THE MATTER WITH OPEN AND FULL ACCESS TO THE COURT FOR PLAINTIFF.”

35. Although the plaintiff appears to be hinting at a rehearing of the summary dismissal proceedings, this is not the case. I particularly note:

1. No further responses to the pleading problems raised by the defendants in their written submissions for the summary dismissal application are referred to and no proposed amended pleading is put forward. What the plaintiff is really saying is that the hearing that should go forward is the hearing of his substantive claim, with his pleadings in their current form.

2. No examples are given (in terms of transcript references or even a reference to specific topics) of the areas in which the plaintiff was having difficulties understanding or hearing what was being said in the courtroom. Instead, what is put forward is a bald claim that the plaintiff’s hearing difficulties and the “substandard” nature of the plaintiff’s own telephone (paragraph 9(h)) means that the plaintiff was denied his human rights.

3. The plaintiff provides no medical reports to explain why facilities provided by the court (which work for other deaf users) do not work for him. Nor is there any medical evidence for the illness he said prevented him from complying with court orders to provide submissions and evidence. The only medical certificate he has provided for the court is a certificate for one day (for “a condition”) in relation to the lateness of his 24 August 2020 submissions.

36. The plaintiff explained his failure to mention his hearing problems on 7 November 2019 at the time by saying that he was “putting on a brave face”. He inferred that I must have known about his hearing problem because of my associate’s email of 6 March 2020 in separate proceedings he brought against the RSPCA.

37. That email was sent after the plaintiff raised his hearing difficulties in the Supreme Court in court documents with which I was provided by that court. The instant that I was apprised of this difficulty, I immediately took steps to ask that the parties raise these hearing issues with the Supreme Court and to provide my email to the presiding judge, so that I could obtain guidance from the Supreme Court as to how to conduct these proceedings. I also took steps to list this argument in Lismore District Court to ensure the plaintiff was afforded every opportunity to participate in the hearing on 13 August 2020 and gave generous timetables to enable the plaintiff to put all his material before me.

38. Although it is repetitious to say so, the difficulty for the plaintiff remains that, beyond complaining (without evidence) of his substandard phone and trouble hearing on 7 November 2019, he has not identified any basis for the setting aside of the orders based on the merits (or lack thereof) of the defendants’ successful challenges to his pleadings as set out in my judgment of 14 November 2019.

39. The next difficulty is that the plaintiff proposes a wholly unrealistic scenario for the future of this litigation. He simply rejects, in his written submissions, the careful analysis by the defendants of the errors in his pleadings, saying that I have “egregiously misjudged and dismissed this massive deprivation of rights in this situation by a series of flippant references in open court such as “[sic]…this case was mostly decided on documents” as if that somehow was a reason to allow defendants to be heard properly and yet plaintiff [sic] was denied the same opportunity to be heard at oral argument [emphasis given by the plaintiff].”

40. What does the plaintiff consider would constitute “an equal access hearing”? He answers this in paragraphs 33 - 35 (again, I have retained his punctuation and spelling:

“33..WHAT CONDITIONS WOULD CONSTITUTE AN EQUAL ACCESS hearing

34..The minimum hearing required for…..fair AND equal access to the court would require….all hearings..each and every one….to be held at a facility similar to Lismore audio visual court..or..in a room close by…further to adhere to the FCA HOLDINGS in Dow Jones/Guttnik……AT LISMORE COURT IN PERSON…..Plaintiff clearly has substandard internet and phone service at his home and has been totally denied natural justice and equal access to the court.

35..For all of the above reasons the orders sought by plaintiff must be granted and the treaties closely scrutinised for the method of accomplishing same.”

41. The “treaties” in question are set out in some detail in the plaintiff’s submissions of 23 March 2020. An example is paragraph 32:

“32..Applicant concedes that the ICCPR treaty is not municipal law and is limited to Common Law Status however in the FCA Mabo cases Mason J made it extremely plain that the ICCPR requirements MUST be read as if they are contained in every…statute…law applied.”

42. I do not know what this means. Many of the plaintiff’s oral submissions were in this vein.

43. As counsel for the defendants point out, none of the plaintiff’s plans appear to address his continued failure to address any of the defects in the pleadings identified by them in their written submissions and resulting in my judgment of 14 November 2019. They submit that the inability of the plaintiff to establish any of the grounds set out in UCPR r 36.15 is clear.

The relevant principles of law

44. UCPR r 36.15 provides:

45. “36.15   General power to set aside judgment or order

46. (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith.

47. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent.”

48. Applications under UCPR r 36.15 should not be employed as an alternative to the bringing of an application for leave to appeal in a “timely” way: Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 at [16] per Basten JA.

49. What is the nature of the application: is the judgment asserted to have been obtained irregularly, illegally and/or against good faith?

50. I do not consider that the judgment can be said to have been given “illegally”. The plaintiff does not identify any such illegality in his submissions.

51. As to lack of good faith, the plaintiff does not suggest trickery or wrongdoing in terms of presentation of the argument on November 7, 2019 (Beck v LW Furniture Consolidated (Aust) Pty Ltd [2012] NSWCA 7), or identify other conduct by the opponents which is bad faith.

52. The plaintiff essentially complains of irregularity in terms of fairness from the court, rather than from his opponents, because his disability, age and geographical distance were insufficiently catered to by the court providing him with appropriate facilities which, in this case, he insists is for the whole of the case (from beginning to end) to be conducted in person by all parties in the Lismore District Court.

53. The denial of procedural fairness by a court is a “fundamental irregularity” which would entitle a person aggrieved to set aside an order as a matter of unconditional right: Cameron v Cole (1944) 68 CLR 571 at 591; Taylor v Taylor (1979) 143 CLR 1 at 16. In those circumstances, a denial of procedural fairness of the kind complained about by the plaintiff would fall into the category of an irregularity.

54. However, the denial of procedural fairness has to come from the opposing party or the court, not from the plaintiff himself. Applications under UCPR r 36.15 to set aside a judgment are unlikely to be granted where the applicant’s own conduct was the reason for the asserted unfairness, such as walking out of the courtroom: Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396. In the present case, where Levy SC DCJ had arranged for him to appear by telephone to cater for his geographical disadvantages, he should have asked for assistance as soon as he had any difficulties, if not at the hearing, then certainly as soon as judgment was handed down; that is one of the purposes for which UCPR r 36.16 was designed.

55. Even if the plaintiff was having difficulty hearing and thus in participating in the oral argument portion of the case, that would not of itself automatically warrant the setting aside of the judgment. The grant of an order under UCPR r 36.15 is discretionary and the requirement for “sufficient cause” is a significant one, given the need for finality in protecting judgments from being set aside for slight or uncertain causes: Kendell v Carnegie [2006] NSWCA 302; (2006) 68 NSWLR 193 at [45] per Bryson JA. While Bryson JA noted that the terms “irregularly” and “illegally” may extend to conduct that is in contravention of the rules but does not involve misconduct or dishonourable behaviour (at [52] – [53]), the kind of behaviour generally described in successful applications suggests that the conduct must so seriously undermine the judgment’s authority as to warrant such a course: Coles v Burke (1987) 10 NSWLR 429 at 437 per Kirby P.

56. In exercising the discretion, I would have to take into account what the plaintiff really wants, which is not a rehearing of the defendant’s application at all. He want to go to hearing no matter what the defects in his pleading, in the court of his choice, in person, in circumstances where international treaties are relied upon to support his position in ways that I cannot understand.

57. The overriding principles set out in s 56 of the Civil Procedure Act must be taken into account. A plaintiff should not be entitled to insist upon going all the way to a hearing where the causes of action pleaded are so hopeless as to amount to an abuse of process, as I found to be the case. This was not simply a badly drafted claim, but one for which no cause of action against any of the defendants was even discernible and where the plaintiff had the benefit of extensive written submissions from the defendants when preparing the amended statement of claim that was put before the court on 7 November 2019.

Findings concerning the application to set aside judgment

58. I decline to make any of the orders sought by the plaintiff. The plaintiff has failed to identify any specific occasion where his inability to hear the words spoken during the oral submissions at the hearing following upon those documents caused him any difficulty. The real problem is that the plaintiff continues to assert the correctness of his pleadings and to his right for the proceedings to go to trial on those pleadings.

59. Additionally, if there are errors of law in my judgment, these are not a basis for the setting aside of the judgment (Weber v Aquaqueen International Pty Ltd [2013] NSWSC 1181 at [121]) but for appeal (Coren v Master Builders Association of New South Wales Pty Ltd at [16]).

60. The above reasons constitute my reasons for declining to recuse myself and dismissing the plaintiff’s application to set aside judgment. To assist the plaintiff, I propose to date those orders from the date of this judgment rather than the date of the hearing (13 August 2020). I advised the plaintiff in open court of those orders so that the costs hearing could proceed.

The costs applications

61. The first issue for determination is the entitlement of the plaintiff to cross-examine the three deponents whose evidence on costs is relied upon by the defendants.

62. When the defendants brought this application, the plaintiff was served with affidavits containing the relevant supporting documentation. A timetable was put in place on 1 April 2020, including a special order requiring him to identify the cross-examination in question. The plaintiff did not serve any material by the due date of 30 April 2020 and has not sought any extension to do so. Nor has he identified the reasons for cross-examination as required.

63. Is a party who has not filed any evidence entitled to cross-examine the opposing witnesses and, if so, are there any limitations or restrictions upon the topics in question? Are there any special considerations in relation to costs issues, bearing in mind that gross sum costs orders operate as an alternative to the assessment process, where the entitlement to cross-examine, although theoretically possible, is rarely granted? It would arguably significantly undermine the increasingly popularly used procedure for gross sum costs orders if the deponent were able to be cross-examined about a wide range of issues, particularly where the opposing party has not performed the equivalent of a challenge to an assessed bill of costs by identifying the costs challenged and the basis for it.

64. It was with these concerns in mind, and noting similar directions were made in Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 2) [2018] NSWSC 72 (“Marlinspike”), that I included, in order 3 of my orders of 1 April 2020, a requirement for the plaintiff to give reasons why he should be entitled to cross-examine the deponents. As already noted, the plaintiff has not complied with order 3. The only submission the plaintiff makes is to demand that those being cross-examined by him be excluded from the courtroom while they are not being cross-examined, adding:

“This is not an interlocutory hearing..this is a question of fact and

factfinding...over a seperate issue..ie is a money judgement to be

ordered

the court has already ordered I can cross examine..”

[Plaintiff’s spelling, layout and grammar retained]

65. The first point to note is that, whether the application before the court is for costs orders or relief in the proceedings, the overriding principles set out in s 56 of the Civil Procedure Act 2005 (NSW) must be applied to ensure that there is a just, quick and cheap resolution of the real issues in dispute in the motion. In Mariusz Zmudzinski v Cheapa Campa Pty Ltd and Camper Travel Pty Ltd [2011] SWSC 997, Black J refused leave to cross-examine a deponent on a cross-vesting application where the intention was to challenge evidence before the Court on the basis that it did not set out the applicant’s true financial position. Black J (at [4]) refused to permit cross-examination because the credit or honesty of the solicitor whose affidavit attached the material in question was unlikely to have any impact on the cross-vesting application.

Should cross-examination be permitted?

66. The defendants oppose orders for cross-examination for the following reasons:

1. The plaintiff has not complied with the orders made on 1 April 2020 to file evidence and identify the areas for cross-examination and should not now be permitted to raise these matters by ambush.

2. This is not a “money claim” as asserted by the plaintiff, but an application for costs of completed litigation where cost should follow the event, and should be conducted conformably with costs assessment and issues practice. Appellate courts have warned about “satellite litigation” resulting in costs which could be greater than the cause of action itself: Lemoto v Able Technical Pty Ltd & 2 ors [2005] NSWCA 153, 63 NSWLR 300. It would undermine provisions such as s 98 (and, for that matter, the Costs Practice Note (GPN - Costs) in the Federal Court) if the alternative to costs assessment were to be not only more expensive, but more combative, than the process it purports to modernise. The purpose of gross sum costs orders is to provide a speedy and less expensive alternative where the costs and delay of an assessment are sought to be avoided. In Amos v Monsour P/L & Ors [2009] QCA 65 at [28] ff, Fraser JA compared the two methods (assessment and gross sum costs orders) and noted that each was intended to be a speedy process and should be conducted accordingly.

3. The deponents are not parties, but solicitors. Even where costs are not involved, courts may be reluctant to make orders for the cross-examination of practitioners in relation to “case management” and/or correspondence issues, or even matters of substance, such as legal professional privilege (Brambles Holdings Ltd v Trade Practices Commission (No 3) (1981) 58 FLR 452 at 454).

4. While the District Court is a creature of statute, it nevertheless has power to restrain abuse of process pursuant to ss 56 – 62 of the Civil Procedure Act. The plaintiff’s demands that the deponents be excluded from the courtroom other than for the purpose of his cross-examination, and that “representation” (email 10 August 2020) should be arranged to accommodate this, as well as his statements to the court insisting on his need to see these witnesses’ faces while they are cross-examined, suggest that the nature of the cross-examination is to put allegations of criminal and professional misconduct. I agree with counsel for the defendants that the allegations the plaintiff proposes to make can be put in oral submissions without requiring cross-examination.

67. As to 63(d) above, I set out the reasons why I am particularly concerned about the three deponents being cross-examined as to their honesty and/or credit.

Cross-examination on credit

68. The entitlement of a party to cross-examine on credit issues must be seen in the context of the restrictions set out in the Evidence Act 1995 (NSW).

69. Part of the plaintiff’s concerns appear to be based on the limitations of cross-examination via AVL (a concern shared by the court in some circumstances: DEF v Trappett [2016] NSWSC 1387). That is understandable. However, the plaintiff’s insistence, in his most recent emails, that he should be able to see the faces of the persons he cross-examines and that they should be absent from the courtroom for the rest of the time suggests that the plaintiff is going to put serious (and unparticularised) allegations to all of them.

70. Some of this cross-examination may relate to costs; in his first written submissions, the plaintiff accuses the deponents of “price gouging” and “price fixing” (email of 23 March 2020). If so, there must not only be an evidentiary basis for such a claim but also a nexus with the facts in issue. While no material has been put before the court, that still might be acceptable, but the plaintiff’s most recent emails hint at a much wider cross-examination, and that is a matter of concern. In particular, his demands that these witnesses remain outside the court and be excluded from conducting their clients’ costs applications, suggest some conspiracy allegations will be put.

71. In Woodroffe v NCA (1999) 107 A Crim R 384, the applicants submitted that they should be permitted to cross-examine a deponent for the following purposes:

1. to assist in establishing that the first and third respondents have engaged in illegal conduct in procuring the issue of the warrant, so that no public interest immunity claim should be permitted;

2. to challenge the bona fides of the first respondent in making and maintaining the claim for public interest immunity, with a view to showing that his affidavits should be given little weight; counsel said the applicants wished to test the veracity and legitimate extent of the claim for public interest immunity; and

3. to elicit the existence and nature of documents by obtaining a description of them, and to get some information as to their content, so as to show that the balancing of public interest considerations should lead to the claim for public interest immunity being rejected.

72. Mansfield J considered (at [34] – [35]) that none of these grounds was sufficient basis for cross-examination (the decision was upheld on appeal: Woodroffe v National Crime Authority [1999] FCA 1689). While the basis for cross-examination in that case differed, the case is a good example of the caution exercised by the courts in granting leave to cross-examine on credit or honesty issues, especially where a member of the legal profession is involved. The plaintiff’s angry claims that the defendants’ solicitors have committed criminal offences and must be referred to the Legal Services Commission and the police paint a clear picture of what would occur if cross-examination were permitted.

73. Cross-examination is not an automatic right, particularly in an application such as the present, where the relevance of credit in terms of the quantum of costs payable in a gross sum order application is hard to see, especially in the absence of some form of evidence in reply.

A limited right to cross-examine?

74. In Marlinspike at [7] – [10], Davies JA granted a limited right to cross-examine, although it should be noted that this was done in circumstances where there was at least some evidentiary material indicating the conflicting issues.

75. Ordinarily, I would have given consideration to this alternative. However, the tenor of the plaintiff’s most recent emails persuaded me that this is not an option open to the court. This was confirmed by the plaintiff’s statements in the hearing before me that he intended to put to them matters he had not given any notice of and which would include a series of allegations of breaches of the LPUL amounting to professional misconduct as well as criminal offences.

Conclusions concerning the right to cross-examine

76. The plaintiff’s failure to comply with my orders of 1 April 2020 would arguably be of itself sufficient reason for refusing the right to cross-examine. There is no material put before the court demonstrating any challenge or conflicting evidence. However, given that the plaintiff is a litigant in person, I might have shown him some leniency in this regard, notwithstanding the fact that the deponents are solicitors and the basis upon which their evidence is to be challenged is tenuous at best.

77. The real problem is the plaintiff’s last-minute demands for these persons to be excluded, for alternate representation to be arranged and the demand to “see their faces as they answer”. These are ominous words and, in the context of the plaintiff’s other emails to the court, foreshadow potentially unpleasant, as well as unnecessary, scenes of confrontation in the courtroom. The tenor of that cross-examination can be guessed from the manner of presentation and contents of the extracts of the plaintiff’s correspondence set out in this judgment. In those circumstances, the right to cross-examine should not be permitted.

78. The above are my reasons for refusing the plaintiff leave to cross-examine, a ruling I gave in the course of the 13 August 2020 hearing.

The costs orders to be made

79. The principal that costs should follow the event (UCPR r 42.1) is particularly apposite in these proceedings. The plaintiff submits that he has been unfairly treated by the court and should not have lost the case, but otherwise makes no submissions as to why costs should not follow the event.

80. The first issue is the plaintiff’s challenge to the validity of the costs agreements.

The costs agreements

81. Once again, I note that, on 26 March 2020, the parties entered into a consent timetable for the provision of submissions, which was varied on 1 April 2020, and which required the plaintiff to provide submissions and evidence by 30 April 2020. He never did so. Instead, he issued notices to produce to the defendants in which he sought a wide range of documents relating to the assessment of costs, including copies of the costs agreements. The copies produced were those in the possession of the recipients of the notice to produce, namely the solicitors for the defendants. They provided copies of the costs agreement which had been signed by the solicitors themselves, but which had not been signed by the defendants themselves.

82. At the hearing, the plaintiff alleged that the failure to provide costs agreements signed by the defendants amounted to “obtaining financial benefit by deception” (T 30) and was not only such grave misconduct that the defendant solicitors should be referred to the Legal Services Commission but also denied any entitlement to costs, as the costs agreements were void for illegality (T 31, 32, 37).

83. The fact that a costs agreement produced to the court does not bear a signature carries no consequence at all. First of all, Part 4.3 of the LPUL does not apply to commercial or government clients, and it cannot be in dispute that the defendants obviously fall within this category.

84. Even if the defendants did not fall within such a category, it has long been the case that costs agreements need not be signed in order to be enforceable if they were entered into in circumstances where conduct was sufficient to amount to acceptance: Swaab v Sayed [2013] NSWSC 887 at [28]; see also s 180(3) of the LPUL. Section 322 of the repealed Legal Profession Act 2004 (NSW) similarly provided that a method of accepting the agreement includes continuing to provide instructions after receiving the Costs Agreement. The same is the case in other jurisdictions, such as Queensland: O’Neill v Wilson [2011] QSC 220.

85. In addition, in the present case, there is evidence of acceptance of conduct conformably with the principles set out in Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 535, which was referred to with approval by Kunc J in Swaab v Sayed. In his affidavit of 28 May 2020 at paragraph 7, Mr Price gives evidence that the general counsel of Racing NSW expressly instructed him that the terms of both the initial retainer and the updated retainer were acceptable. There is similar evidence for the third defendant.

86. The plaintiff faces an additional hurdle in raising such a complaint in a gross sum costs order application. Even if the costs agreements were invalid for such a reason, this would not affect the exercise of the court’s discretion under s98(4)(c). This is because the question before the court is the actual costs the party seeking those costs has paid. In Ventouris Enterprises Pty Ltd v Dib Group Pty Ltd & Anor (No. 4) [2011] NSWSC 720, a gross sum costs order was made pursuant to s 98(4)(c) notwithstanding the fact that Counsel’s fee agreement was void because it included an uplift fee. This entitlement is reflected in s 185(3) of the LPUL.

87. In addition, the purpose of a gross sum costs order application is not for a costs assessment procedure to take place in the court room, but for an informed assessment of the actual costs, having regard to the information before the court. The court is entitled to take an impressionistic discount of the costs actually incurred or estimated. In the present case there is evidence that the amounts the subject of the claims are paid in full in relation to each of the three defendants.

88. The plaintiff deliberately waited until the day of this hearing to raise these issues. If he had complied with the timetable for submissions and evidence and set out these objections then, the defendants could have responded appropriately in accordance with being given notice of these claims.

89. I am satisfied that the costs agreements are valid but that, even if they were not, it would still be appropriate for me to proceed to hear the application for a gross sum costs order.

The plaintiff’s application for the defendants’ legal representatives to be referred to the Legal Services Commission

90. The plaintiff has told me that it is my obligation to refer the solicitors for the defendants to the Legal Services Commission for disciplinary procedures to be commenced in relation to their professional misconduct for not obtaining costs agreement signed by their clients.

91. This submission is entirely without merit. Once these solicitors had provided their clients with costs agreements that they themselves had signed, the ball was in their clients’ court. It was not necessary for the defendant solicitors to camp on the doorstep of their clients, insisting upon the immediate return of a signed document. The defendants in these proceedings are sophisticated clients; they are not only familiar with litigation but have in-house legal representation as well.

92. The remaining issue is whether the costs should be assessed or the subject of a gross sum costs order and, if so, the quantum to be determined, which includes determining the basis on which the costs are awarded and the making of “rule of thumb” discounts to allow for the benefits of the quicker and cheaper process of assessment of costs.

93. I first note my reasons for refusal of the plaintiff’s submission that costs should be assessed in the usual way. The additional expense of a costs assessment, as set out in the affidavit material (notably by Mr Baddams), is relevant, as is the likely delay and unpleasantness in what I observe is already a very bitter piece of litigation. The manner in which this application has been conducted by the plaintiff to date, in terms of his allegations about the defendants’ solicitors, reinforces my view that assessment of costs would not be an appropriate course to take.

The sums sought on assessment

94. In their outlines of submissions, Mr Dawson SC and Mr Karam set out the relevant legal principles and authorities outlining both the circumstances in which gross sum costs orders may be made as well as the steps necessary for the parties to take to ensure that the information is accurately and fairly put before the court. I do not need to repeat those principles.

95. As to the reliability of the material in support of the application, I have read the affidavits of the solicitors with care and attention, and I am satisfied that the comprehensively outlined costs and disbursements and supporting documentation such as costs agreements and evidence of disbursements are appropriate.

96. One of the issues challenged by the plaintiff was the assertedly high rates charged, as well as increases in fees charged during the matter. The explanation given in the correspondence suggests that this is necessary because of the plaintiff’s manner of conducting litigation. I consider this a reasonable and even understandable basis for an increase in fees. Nor is such an increase necessarily limited to future costs. The entitlement of a solicitor to replace even a bill which has already been sent, with a second which is higher than the original bill, is explained in Gorczynski v AWM Dickinson & Son [2005] NSWSC 277.

The first and second defendants’ costs

97. The remaining issue in dispute is the quantum of the costs the plaintiff or to pay. I have read the supporting evidence provided by the first and second defendants in the affidavit material. They seek an order for costs in the amount of $57,808.69. This sum is made up is as follows:

1. The amount of $55,808.69 set out in Mr Price’s affidavit sworn on 2 March 2020 (paragraph 14) and

2. The further amount of $2000 (for junior counsel) claimed in paragraph 10 of the affidavit of Mr Price sworn on 28 May 2020.

98. Mr Price’s affidavit of 24 June 2020 confirms that the costs have been paid in full.

99. The sums are put forward on a party/party costs basis, and not on an indemnity basis, with the appropriate percentage-style adjustments to allow for the vicissitudes of the costs assessment process. No interest on costs is claimed.

100. I also note that GST is excluded from the sum claimed, as both the first and second defendants our bodies corporate registered for GST by whom GST is paid, and have claimed against GST in the business activity statements filed subsequent to payment of the relevant invoices (see Merringtons Pty Ltd v Luxxotica Retail Pty Ltd [2006] VSC 25 at [10]).

The plaintiff’s submissions on quantum

101. The plaintiff claims, in relation to costs, that there was “no compliance with the notice to produce” of 8 July 2020 by the solicitors for the third defendant and that when the solicitors for the first and second defendant complied they produce documents which “clearly shows [sic] prima facie evidence of criminal activity as set out below, i.e. obtain benefits by deception” (paragraph 38 of his submissions).

102. The plaintiff also claims that both firms of solicitors “displayed unclean hands before this court and do not come to this court in good faith” (paragraph 40(a)). There is an unspecified claim of overcharging and of attempting to hide documents which would reveal the truth.

103. The plaintiff’s written submissions of 24 August 2020 raise a new argument not addressed in the course of the hearing before me, namely that, where there are multiple successful defendants with separate representation, the court will not normally allow more than one set of costs where the interest of the successful defendants is identical and there is no conflict of interest between them, citing Milillo v Konnecke [2009] NSWCA 109 at [109] – [130]. In the present case, the plaintiff brought entirely separate causes of action against the third defendant in circumstances where I am satisfied that separate representation of this defendant was required.

104. The plaintiff’s submissions of 24 August 2020 bristle with allegations of criminal conduct, such as those made in paragraph 64:

“Clearly this application discloses a prime facie case of obtain benefits by deception. A criminal offence, plus the making of this application … by parties with anything but clean hands.”

105. Paragraph 67 and 68 set out what are described as “the elements of obtain benefit by deception”. In paragraph 73 of his written submissions the plaintiff tells me that “both defendants must be reported to authorities by this court for their acts and lack of action in advising clients in this matter as set out and as follows”, which is followed by references to sections 169, 173, 174, 178, 180 and 185 of the LPUL. He insists that I should deny the defendants’ applications and states that it would be a denial of natural justice to order costs “until a proper and legitimate hearing is held.”

106. It would be fair to say that these submissions reflect the manner of the plaintiff’s previous submissions as well as his oral submissions during his appearance in court. These submissions, which are repetitive, do not engage with the issues raised by the defendants.

107. In hearing the plaintiff’s submissions, I am conscious of my additional obligations to litigants in person, a topic to which the plaintiff frequently referred, but I have been guided by the wise observations of Bell P in Duraisamy v Sydney Trains [2019] NSWCA 269 at [25]:

“I would add only this, and it is to note that Senior Counsel for the respondent relies upon the High Court’s endorsement in Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 at [47] of the observation of Samuels JA in Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep):

“The absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.””

108. In his written submissions, Mr Dawson SC asked me to record in these reasons that the allegations raised by the plaintiff against his instructing solicitors are wholly without foundation (paragraph 18). Mr Karam made a similar submission. I have done so above, but would add the following observation. Allegations of unsatisfactory professional conduct (or worse) are allegations of the utmost seriousness and should not be made in the course of proceedings other than in compelling circumstances, as they have the capacity to draw the court’s attention away from the merits of the case. When made repeatedly, as has been the case in this litigation, they may amount to a form of intimidation. While I am sure that the plaintiff’s indignation about his perceived injustices has perhaps led him to express himself more warmly than might otherwise be the case, it is to be hoped that the future conduct of these proceedings on appeal will be carried out in the light of the observations of Bell P as set out above.

Conclusions concerning the first and second defendants’ costs

109. Taking all of the above into account, I am satisfied that the sums sought by the first and second defendants for costs are reasonably based and supported by all the documentation I require for the purposes of s 98(4)(c). I do not consider that they should be the subject of any further deduction.

The third defendant

110. The third defendant’s submissions of 19 August 2020 note the following challenges to their claim for a costs order:

1. Failure to provide a signed costs agreement.

2. A discrepancy between the hourly rates specified in the engagement letter for work by Mr Baddams and Miss Streltsova and some of the charges (specified below).

3. Charging a higher amount in respect of work undertaken by the solicitors than the rate in the engagement letter, which is asserted to amount to conduct involving obtaining a benefit by deception (this actually overlaps with (b) above).

4. Failure to disclose the increase to the hourly rates to the client.

5. Conduct amounting to unsatisfactory or professional misconduct which should be referred to the Legal Services Commissioner.

6. Claims of gross overcharging.

111. Many of these complaints overlap with the claims the plaintiff makes in relation to the first and second defendants, and should be rejected for the same reasons.

112. As to the discrepancy in hourly rates for certain entries, the solicitors for the third defendant acknowledge that the hourly rates applied in respect of these two solicitors for the items in question were incorrect. This is explained to be an inadvertent clerical error, in that the correct fee rate code was not entered into the billing software, which accordingly failed to apply the reduced professional fee rates for tenders, as set out in the letter of engagement, as to the rates to be applied to work for the file. A credit of $5060 excluding GST has been applied and a copy of the relevant credit notes is annexed to the submissions. The amount as paid in full has accordingly been revised downwards.

113. As is the case with the first and second defendant, the third defendant’s written submissions draw to my attention that Part 4.3 of the LPUL does not apply to commercial or government clients. The engagement letter issued to the third defendant expressly refers to the need for the engagement letter to be read in conjunction with the tender for legal services.

114. The amount claimed for the hearing is the sum of $32,563.79 excluding GST. My attention is drawn to Penson v Titan National Pty Ltd (no 3) [2015] NSWCA 121 at [25], where Campbell AJA explains that, if a lawyer’s memorandum of costs and disbursements includes an item for GST, and the client is entitled to an input tax credit for GST paid, and if a costs order requires the opposite party to pay the amount of the clients costs, the amount payable under the costs order does not include GST.

115. As to the reasonableness of the fees charged, I have the benefit of a report from Mr Ramsey-Stewart, the substance of which was not challenged by the plaintiff during the application. This affidavit comprehensively refers to rates chargeable by practitioners and confirms the reasonableness of both the charges and the percentage deductions made to allow for the assessment being carried out by the court and not a costs assessor. I note Mr Ramsey-Stewart’s fees of $3000 for preparation of this report, which I consider to be reasonable in the circumstances. I also note the claim of an additional $6000 exclusive of GST for the bringing of this application for gross sum costs order as well as opposing the plaintiff’s application, which is not merely reasonable but modest. No interest on costs is claimed.

Deductions and increases in costs

116. The plaintiff has addressed me on the subject of the appropriate discount in his written and oral submissions and appears to be submitting that there should be in the order of 60% or even more, in relation to all the defendants.

117. From the documentary evidence provided, I am satisfied that the appropriate discounts have already been made by the third defendant’s solicitors to take into account reductions on assessment.

Conclusions concerning the quantum of the third defendant’s costs

118. Taking all of the above circumstances into account, I propose to make a gross sum costs order for the revised total sought by the third defendant in these proceedings, and not to make any further deductions.  

Orders

1. The plaintiff’s application for me to recuse myself is refused.

2. The plaintiff’s application pursuant to UCPR r 36.15 to set aside judgement handed down on 14 November 2019 dismissing these proceedings (Young v Racing NSW [2019] NSWDC 662) is dismissed with costs.

3. The plaintiff’s application for leave to cross-examine the defendants’ deponents is refused.

4. The plaintiff is to pay the defendants’ costs of these proceedings as follows:

1. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the first and second defendants’ costs in the sum of $57,808.69.

2. Pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), the plaintiff is to pay the third defendant’s costs in the sum of $39,563.79.

5. Exhibits retained until further order.

**********

Decision last updated: 22 December 2020