Zaghloul v Woodside Energy Ltd
[2018] WASC 125
•23 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: ZAGHLOUL -v- WOODSIDE ENERGY LTD [2018] WASC 125
CORAM: KENNETH MARTIN J
HEARD: 22 MARCH 2018
DELIVERED : 23 APRIL 2018
FILE NO/S: CIV 2757 of 2016
BETWEEN: HASSAN MOHAMED MOHAMED ZAGHLOUL
Plaintiff
AND
WOODSIDE ENERGY LTD
First Defendant
ROBERT MALE
Second Defendant
MICHAEL HAMBLIN
Third Defendant
MELISSA HILL
Fourth Defendant
MICHAEL BRAMFELD
Fifth Defendant
RICHARD VAN LENT
Sixth Defendant
STEPHANIE CROFTS
Seventh Defendant
MORYS WILLIAM DAVIES
Eighth Defendant
ASHURST AUSTRALIA
Ninth Defendant
Catchwords:
Costs - Taxed bill - Review by taxing officer - Further review by judge - Errors of principle - Objections raised - Self-represented litigant - Costs on notice of discontinuance of plaintiff's defamation action - Multiple ongoing grievances by plaintiff
Legislation:
Nil
Result:
Application dismissed
Representation:
Counsel:
| Plaintiff | : | In Person |
| First Defendant | : | Mr J Blackburn SC & Ms M L Coulson |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | No appearance |
| Fifth Defendant | : | No appearance |
| Sixth Defendant | : | No appearance |
| Seventh Defendant | : | No appearance |
| Eighth Defendant | : | No appearance |
| Ninth Defendant | : | Mr J Blackburn SC & Ms M L Coulson |
Solicitors:
| Plaintiff | : | In Person |
| First Defendant | : | Coulson Legal |
| Second Defendant | : | In Person |
| Third Defendant | : | In Person |
| Fourth Defendant | : | In Person |
| Fifth Defendant | : | In Person |
| Sixth Defendant | : | In Person |
| Seventh Defendant | : | In Person |
| Eighth Defendant | : | In Person |
| Ninth Defendant | : | Ashurst Australia |
Case(s) referred to in decision(s):
B & J Engineering Pty Ltd (in liq) v Daroczy (1984) 57 ALR 240
Gibson v Commonwealth of Australia [2002] WASCA 323
Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155
Simmonds v Love [No 2] [2016] WASC 167
Soia v Bennett [2014] WASCA 204
W J Green & Co (1984) Pty Ltd v Tace Pty Ltd [No 4] [2010] WASC 363
Zaghloul v Woodside Energy Ltd [2017] WASC 316
KENNETH MARTIN J:
Introduction
Pursuant to O 66 r 55 of the Rules of the Supreme Court 1971 (WA) (RSC) I am dealing with a costs review application by the plaintiff, Dr Zaghloul, who is a self-represented litigant. On 11 October 2017, Registrar Davies, as taxing officer, issued a certificate of costs within this action consequent upon the aftermath of her own review as taxing officer of the first defendant's bill of costs, which was ultimately certified and allowed in the sum of $13,067.75.
Also on 11 October 2017, the taxing officer contemporaneously issued 14 pages of unpublished reasons explaining the basis upon which she conducted that taxing officer's review pursuant to RSC O 66 r 53.
The taxing officer's reasons explained that on 3 February 2017, the first defendant filed a bill of costs against the plaintiff. Further, that on 11 April 2017, there was a taxation of the first defendant's submitted bill of costs.
The first defendant's bill of costs as submitted claimed an amount of $32,442. However, this was evaluated at the taxation hearing on 11 April 2017 and indicatively allowed in the amount of $10,567.75 against the plaintiff.
For the present purposes of what is now a further review of this bill before a judge conducted under RSC O 66 r 55, I have had regard to the unpublished reasons of the taxing officer of 11 October 2017 upon the taxing officer's review of the allowance as indicated on 11 April 2017. I have also had the use of a 59‑page transcript of the taxation proceeding of 11 April 2017 where Dr Zaghloul represented himself and Ms Coulson (junior counsel on the present application for the first defendant) represented the first defendant.
As is now customary in this court, the first defendant's as submitted bill of costs was first provisionally assessed by another registrar (taxing officer) of the court. That process is in accordance with an informal service offered to the legal profession of Western Australia and to the public by this court: see direction 4.7.2 of the consolidated practice directions of this court.
Dr Zaghloul objected to the informal assessment of the bill of costs. Hence, it became necessary for another registrar to conduct a formal taxation hearing. That took place with Registrar Davies on 11 April 2017. As is also customary, at the end of that hearing the taxing officer did not sign the allocator for the bill. In any event, Dr Zaghloul objected to the allocator then being signed (see ts of 11 April 2017, page 55). At that point of objection, the first defendant's bill was moving towards phases of written objection by the dissatisfied party and to an envisioned review by the (same) taxing officer of the taxation conducted under RSC O 66 r 53 and r 54.
A RSC O 66 r 53 review as conducted by the taxing officer proceeds upon evaluating written objections containing grounds and reasons lodged by the dissatisfied party about the allowance or disallowance of items or parts of items on the taxed bill.
RSC O 66 r 53(1) provides for a taxing officer's review in relation to any alleged 'errors in principle' made by the taxing officer as regards the allowing or disallowing an item or part of an item on a bill of costs taxed by them.
In accordance with directions given by the taxing officer, Dr Zaghloul provided his objections document entitled Grounds of Objection (court document 11). As filed by Dr Zaghloul on 21 April 2017, the document contained 36 distinct objections against the first defendant's bill, which was then indicatively allowed in the amount of $10,567.75.
In her reasons of 11 October 2017, the taxing officer meticulously evaluated each of the 36 discrete objections as raised by Dr Zaghloul (see [19]). In those reasons, the taxing officer dismissed or rejected each of the 36 objections evaluated upon her review.
Pursuant to O 66 r 54, the taxing officer also allowed the costs of the as completed review process in favour of the first defendant. Those costs were fixed in the amount of $2,500. That amount was added to the bill's reviewed amount of $10,567.75 as assessed on 11 April 2017. Hence, the taxation certificate signed and issued on 11 October 2017 favouring the first defendant was in the amount of $13,067.75.
It is necessary to note at this point that the first defendant's bill of costs against the plaintiff was lodged pursuant to RSC O 23. Rules 2 and 3 of that Order provide:
2. Plaintiff may discontinue; defence etc may be withdrawn
(1)The plaintiff may, at any time before receipt of the defendant's defence, or after the receipt thereof before taking any step in the action, by notice in writing, wholly discontinue his action against all or any of the defendants or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such defendant's costs of the action, or, if the action be not wholly discontinued, the costs occasioned by the matter so withdrawn.
(2)The costs referred to in subrule (1) shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.
(3)Save as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw the record or discontinue the action without leave of the Court, but the Court may before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise, as may be just, order the action to be discontinued, or any part of the alleged cause of complaint to be struck out.
…
3.Costs
Any defendant may enter judgment for the costs of the action, if it is wholly discontinued against him, or for the costs occasioned by the matter withdrawn, if the action be not wholly discontinued, in case such respective costs are not paid within 4 days after taxation.
On 19 October 2017, there being no voluntary payment by Dr Zaghloul to the first defendant in respect of any amount of the costs as now taxed and certified under the certificate of the taxing officer of 11 October 2017, the first defendant proceeded to obtain via RSC O 23 r 3 a judgment of this court in the amount of $13,067.75, plus a further $297 for the costs of entering judgment for those unpaid taxed costs (court document 22).
For completeness, I also note O 23 r 5, which provides:
5.Withdrawal of summons
A party who has taken out a summons in a cause or matter may not withdraw it except by leave of the Court.
I make mention of RSC O 23 r 5 since it is apparent that this rule was heavily relied upon by Dr Zaghloul during the taxation hearing on 11 April 2017 in submissions made to support his then freshly articulated verbal submission put to the taxing officer. Dr Zhagloul submitted that he required leave to discontinue his 2016 defamation action and that not having obtained any prior leave, his notice of discontinuance in the action (which was filed by him at court on 20 October 2016, then copied and served as an electronic attachment to the email that Dr Zaghloul sent to the defendants' solicitors (Ashurst)) was not a valid or effective notice of discontinuance. Correlatively, Dr Zaghloul argued to the taxing officer that his defamation action was not validly discontinued in October 2016. Hence, Dr Zaghloul submitted in April 2017 that his defamation action was, in effect, still fully alive against all defendants.
Clearly, however, RSC O 23 r 5 must be seen to be about a pending interlocutory summons that is taken out and filed in an existing cause or matter, such as an undetermined chamber summons. Here, however, the court record shows there was never a relevant interlocutory summons pending or unresolved in the present action as at 20 or 21 October 2016 that was capable of bearing upon any need for Dr Zaghloul to obtain the leave of the court prior to lodging his written notice of discontinuance of his action.
I digress at this point to assemble a short chronology of events relating to Dr Zaghloul filing that notice of discontinuance for his action on 20 October 2016.
Chronology of key events
I find it convenient to assemble some underlying basic facts by extracting them from [2] - [5] of the reasons for decision of Master Sanderson in Zaghloul v Woodside Energy Ltd [2017] WASC 316 as published on 6 November 2017.
The Master's decision dismissing Dr Zaghloul's summons for summary judgment or, alternatively, for default judgment against seven defendants, are currently the subject of a pending appeal before the Court of Appeal. Nevertheless, a chronology of the key events is conveniently found in those reasons. I will interpolate some of my own further observations along the way.
At [2] - [3] of these reasons Master Sanderson observed:
The writ was filed on 7 October 2016. It was served on the first and ninth defendants on 10 October 2016. It was served on the other defendants, save the eighth defendant, at various dates after 10 October 2016. The eighth defendant was never served and although represented by the ninth defendant he has played no part in these proceedings. All of the other defendants who were served instructed the ninth defendant to act on their behalf.
… an email from the plaintiff to Ashurst which was sent on 19 October 2016 at 10.57 am. In that email the plaintiff said he had decided to discontinue the proceedings. He confirmed his position in another email sent the same day at 1.44 pm. As an attachment to that email there was a document referred to as a 'Defamation Discontinuance' … On 20 October 2016 at 12.30 pm Ashurst sent the following email to the plaintiff:
'We refer to your emails dated 19 October 2016 notifying us of your decision to discontinue the above proceeding and attaching a draft Notice of Discontinuance.
Please confirm that you have notified the Court of you wholly discontinuing the proceeding against all defendants by filing the Notice of Discontinuance. In addition, please provide us with the stamped Notice of Discontinuance.
If you do not do so before 3.00pm AWST today, the first and ninth defendants will file conditional appearances in the proceeding.'
I interpolate here that the court file (which was before the taxing officer - see ts 11 April 2017) discloses that three significant documents were filed on 20 October 2016. Two were filed by Dr Zaghloul. The other was filed by Ashurst for the first and ninth defendants.
The first document (court document 2) was a notice of discontinuance by Dr Zaghloul which read:
TAKE NOTICE that the Plaintiff wholly discontinues this defamation proceeding against the defendants without prejudice.
The notion of a 'without prejudice' discontinuance is something of a jurisprudential novelty invented by Dr Zaghloul. There is no such halfway house concept.
Filed with the notice of discontinuance was Dr Zaghloul's affidavit of the same day (court document 3). This read in part at par 3:
I discontinue this proceeding without prejudice on the basis of what I have found yesterday to be a technicality that could form the basis to dismiss my application, notwithstanding my belief that I have a course [sic] of action against the defendants, and to avoid waste of the Court's valuable resources.
Again, I interpolate that this contributed nothing substantive to what was done. A perceived 'technicality' on Dr Zaghloul's part was simply irrelevant.
Returning to [4] of the Master's reasons, it was observed:
In conformity with that email a representative of Ashurst attended at the Supreme Court Registry intending to inspect the file to ensure a notice of discontinuance had been filed. For reasons which are not entirely clear it was not possible for the representative to inspect to inspect the court file. So, out of an abundance of caution conditional appearances were filed on behalf of the first and ninth defendants.
I interpolate that those conditional appearances as filed for the first and ninth defendants by Ashurst (court document 4) on 20 October 2016 were filed after the two documents filed by Dr Zaghloul.
The learned Master continued at [4]:
Having filed those appearances Ashurst sent an email to the plaintiff at 6.02 pm on 20 October 2016. Relevantly it read as follows:
'We confirm your advice that you filed a Notice of Discontinuance in the above proceeding. We were unable to obtain a copy of the filed Notice of Discontinuance from the Court which advised that you are required to serve it on the defendants in the proceeding. Please promptly provide us with a copy of the filed Notice of Discontinuance.
We understand that you also filed an affidavit in relation to the proceeding. Please also promptly provide us with a copy of the affidavit.
Finally, as we are engaged to act on behalf of all the defendants in the proceeding, please direct any further correspondence concerning the proceeding (including without limitation, copies of the Notice of Discontinuance and the affidavit referred to above) to Ashurst and not to the individual defendants.'
The Master's reasons continued at [5]:
The plaintiff responded by email dated 21 October 2016 and sent at 12.19 am. It provided a copy of the notice of discontinuance which had indeed been filed and a copy of the affidavit in support.
A minor factual disagreement appears to arise on the present application as to whether Dr Zaghloul served notice to Ashurst on 20 October 2016 by email with a copy of the notice of discontinuance document he filed at court, or on 21 October 2016, as Ashurst contends and as the Master found. Dr Zaghloul contends he emailed a copy to Ashurst from his phone on 20 October 2016. Ashurst says it received nothing until the next day and hence the reason for it filing the conditional appearances late on 20 October 2016. The disagreement as to dates is of no real significance to the present review.
I simply observe as a matter of pragmatism that in order for a notice of discontinuance to be effective under RSC O 23 r 2, it first needs to be filed at court so that the court is advised of the state of the action being conducted before it. Clearly, the notice of discontinuance should then be served upon all relevant defendants or their legal representatives so they are also appraised of the state of the action. However, if the notice of discontinuance is not filed at court by the discontinuing party, the court has nothing to proceed upon as regards the effecting of the discontinuance of the action.
The three documents filed at court on 20 October 2016 are recorded on the court file as being filed in the following order: the notice of discontinuance, Dr Zaghloul's affidavit in regard to his discontinuance and then the conditional memorandum of appearances by the first and ninth defendants. This order of filing was noted by the taxing officer as the taxation hearing on 11 April 2017 (see ts page 18).
The present RSC O 66 r 55 application by Dr Zaghloul to review the review of the taxing officer
On 23 October 2017, Dr Zaghloul filed two more documents within the present action. The first was entitled (by him) 'Appeal notice (Registrar's decision) ORDER 66 RULE 55' (court document 24). A subtitle as seen on that document reads 'Notice of appeal from decision of Registrar'. The document advances Dr Zaghloul's 12 so‑called 'grounds' of appeal put against the taxing officer's review outcomes.
The second document was his 'Outline of Submissions In Support of the Appeal Against Taxation' (court document 25). This is a 52‑paragraph document ending as signed by Dr Zaghloul. On its face, these written outline of submissions do not readily reconcile to, or seem to correlate with, the 12 so-called 'grounds' of appeal as articulated under the earlier document.
A large component of Dr Zaghloul's written outline of submissions of 23 October 2017 appears to be directed at advancing another contention that his notice of discontinuance of 20 October 2016 was wholly ineffective (it being filed without the prior required leave of the court as he would say), so that Dr Zaghloul's defamation action brought against the nine defendants remained in full force and effect. By his arguments, this was so notwithstanding that his notice of discontinuance was both filed at court and then served on the defendants' lawyers of record (Ashurst).
It is swiftly apparent that Dr Zaghloul's so-called appeal notice is conceptually misconceived. An appeal is a creature of statute. There is no basis provided for any full scale appeal to be taken against the certificate of a taxing officer once the certificate is issued in the aftermath of a taxing officer's review, where that review is conducted and completed under O 66 r 53 and r 54.
Instead of an 'appeal', RSC O 66 r 55 provides a very limited further 'review' opportunity to a Judge of this court to correct any error in principle made by a taxing officer.
First, it is important to appreciate from the start the strict review parameters of RSC O 66 r 55. The rule provides:
55.Review of taxation by judge
(1)If a party is dissatisfied with the certificate of the taxing officer as to any item or part of an item objected to under rule 53 of this Order, he may, within 14 days from the date of the certificate, or such other time as the Court, or the taxing officer at the time he signs his certificate, allows, apply to a judge in chambers for an order to review the taxation as to that item or part of an item.
(2)The judge, if of opinion that the taxing officer has made an error in principle, may thereupon make such order to rectify the error as the judge thinks just.
(3)The certificate of the taxing officer is final and conclusive as to all matters which have not been objected to in accordance with these rules.
A close conceptual interrelationship as between the two reviews pursuant to O 66 r 53 and r 55 is also readily apparent from the face of these provisions. In the first place, it should be noted both reviews are only concerned with 'errors in principle' and then, as regards 'items' or 'parts of items', as allowed or disallowed under the bill.
Second, it should also be appreciated that O 66 r 53(1) provides for the initial identification by a dissatisfied party of an alleged error in principle by their written objection identifying the grounds and reasons for that objection. By O 66 r 55(1), attention is directed back to the item(s) on the bill of costs at a second review opportunity before a judge, which has earlier been objected to at an O 66 r 53 review. They are the subject of an application to any judge in chambers to review a taxation outcome 'as to that item or part of an item'.
Third, the item(s) from the bill of costs as objected to at a review application made to a judge in chambers can only be rectified if the judge is satisfied that the asserted error is an error in principle. It is firmly established that errors in principle will not be errors over the mere quantum of a taxed allowance for an item: see Rankilor v Circuit Travel Pty Ltd [2012] WASCA 155 [1], [2] and [75].
As I indicated, the taxing officer's unpublished reasons for decision of 11 October 2017 issued upon the completion of the taxing officer's review conducted under RSC O 66 r 53. Those reasons dealt with each of the 36 written objections as raised by Dr Zaghloul at the first review at some length (see [19]). Each such objection was dismissed or rejected.
The limited scope of any further review taken to a judge under O 66 r 55 has been the subject of my previous observations in W J Green & Co (1984) Pty Ltd v Tace Pty Ltd[No 4] [2010] WASC 363 [11], [23]. At [23], I said:
Obviously, taxing officers hold expertise in taxations about costs determinations. They deal in the day-to-day nitty-gritty of assessing the costs in litigation, by reference to scales and allowances at a level of detail that judges do not. That is one reason why any further review opportunity window that is allowed under O 66 r 55 to a judge is an extremely limited one.
I had referred in that same respect to some earlier observations by EM Heenan J in Gibson v Commonwealth of Australia [2002] WASCA 323. I then rendered some similar observations about the review processes in Simmonds v Love [No 2] [2016] WASC 167, noting that since 2010 the taxation review rules had been evaluated at length by Murphy JA in Rankilor v Circuit Travel at [62] - [78] (McLure P & Newnes JA agreeing). I also mentioned the observations of Mitchell J in Soia v Bennett [2014] WASCA 204.
In Soia his Honour observed at [27]:
The requirements of r 53(1) I have described above are more than merely formal requirements. An objection under r 53(1) defines the scope of the taxing officer's review under r 54 and the judge's powers under r 55. The specification of the items objected to and the ground of objection in a way that identifies the alleged error of principle, also facilitates the subsequent steps in the objection process. If the written objection clearly identifies the error of principle, then the taxing officer's reasons under r 54(2) can indicate whether the taxing officer has applied that principle. If the taxing officer accepts that the principle has been applied as alleged, the task of the judge reviewing under r 55 may simply be to determine whether the application of that principle was actually erroneous.
Mitchell J continued in Soia at [28]:
Because upon a review of a taxation a judge may rectify only errors of principle, it is particularly important that the party seeking review should require the taxing officer to state the ground and reasons of his decision on each objection and equally important that the taxing officer should give clear but concise reasons. This will only be achievable if the objection under r 53 specifies the items or parts of items objected to and the grounds and reasons for the objections, cast in terms of an alleged error of principle.
On the present further review application, Dr Zaghloul acts under the significant disadvantage of being a self‑represented litigant. If he is still under the impression that he holds full rights of appeal via O 66 r 55 against the taxing officer's certificate of 11 October 2017, then the misapprehension must be swiftly corrected. This is not an appeal.
Next, it is apparent that the two documents as filed by Dr Zaghloul on 23 October 2017 do not readily align or correlate in any clear or discernible way with Dr Zaghloul's earlier 36 written objections. Those 36 objections were all evaluated by the learned taxing officer and are seen to be dismissed or rejected seriatim at [19] of those reasons. Matters are rendered more complicated for me by the further tranche of written submissions filed by Dr Zaghloul of 13 March 2018 (court document 38). From those submissions, Dr Zaghloul seeks to identify four main so-called issues. From there, Dr Zaghloul then sought to raise multiple sub‑issues. How these sub‑issues correlate, if at all, to the 36 objections put to the taxing officer on the first review, or even to his 12 so‑called 'grounds' of appeal, is left to pure speculation. My search for a common relevant error of principle arising to be evaluated at both reviews is essentially left to educated guesswork and, to say the least, this is not satisfactory.
At the review hearing held before me on 22 March 2018, Dr Zaghloul verbally sought to bracket together his so-called 'grounds' of appeal. First (as I understood him), he aggregated a common grievance under his 'grounds' 1, 3 and 8. His first grievance challenged the jurisdiction of the taxing officer, asserting she effectively held no jurisdiction to proceed with a taxation hearing - at the point at which Dr Zaghloul verbally raised an, until then, nascent contention that his defamation action had not actually been discontinued as a result of the notice of discontinuance he filed at court back on 20 October 2016 (almost six months earlier) (see ts page 7). However, it is apparent to me from the transcript of 11 April 2017 that Dr Zaghloul's submission was then advanced by reference to misconceptions about the workings of O 23 r 5. He put to the taxing officer (see ts page 7):
The court has not provided leave for me to withdraw or discontinue. So, therefore there is no basis upon which rule - the order relied on by the first respondent applied.
The taxing officer ruled upon that verbal submission at the 11 April 2016 taxation hearing, rejecting it (see ts 12 to 13):
Well, I am against you in respect of that. The position is, it seems to me, that your writ was filed on 7 October [2016] and, on 20 October, the notice of discontinuance was accepted for filing. And in that document, the plaintiff gives notice that the plaintiff wholly discontinues his defamation proceeding as against the defendants.
In my view, the words 'without prejudice' have no work to do in that document. It seems to me that, by operation of order 23 … rule 2(1), that the action has been discontinued and the obligation arises pursuant to that rule for the plaintiff to pay the defendants' costs. So I take the action as having been discontinued by that notice and the obligation to pay costs arises.
Before me, Dr Zaghloul endeavoured to develop many more submissions based on his idiosyncratic interpretation of RSC O 23 r 2. He argued that the taxing officer, faced with his ineffective discontinuance verbal submissions, from then on lacked jurisdiction to proceed and to tax the first defendant's bill of costs. That followed from his view that his action had not been validly discontinued and was alive. In my view, the submission as to a lack of jurisdiction in the taxing officer, put on such a basis, is wrong and misconceived. I am further of the view that the taxing officer was fully empowered to proceed and to tax the bill as submitted.
As matters proceeded before me, Dr Zaghloul appeared to also contend, either in substitution for or, going further, that the taxing officer made a jurisdictional error by failing to exercise a discretion to refer his submission about the ineffectiveness of his discontinuance to a judge for direction via RSC O 26 r 45. That is a submission about the use of a discretionary power held by the taxing officer. It is not a submission that goes to the taxing officer's jurisdiction. No error in discretion by the taxing officer deciding to proceed and to complete the taxation that day is disclosed.
In my view, there was and is no error of principle detectable in the approach by the taxing officer in proceeding with the taxation of the first defendant's bill of costs on 11 April 2016. Nor was there any failure to correctly exercise discretion subsequent to hearing Dr Zaghloul's verbal submission as articulated on 11 April 2017 as to the effect that his action was not ended under his own hand as from 20 October 2016. Dr Zaghloul's notice of discontinuance was filed at court by him on 20 October 2016 then served upon Ashurst as the solicitors for the defendants on that or on the following day.
Dr Zaghloul's associated arguments are seemingly tied to the filing of conditional appearances on behalf of the first and ninth defendants at court by Ashurst on 20 October 2016 (in circumstances where it was then approaching the last day for the filing of appearances and when Ashurst said it had not been notified of an actual filing at court by Dr Zaghloul of a notice of discontinuance or served with a notice of discontinuance at that time). Those arguments are not relevant to present issues. They do not relevantly bear upon the validity or legal effectiveness of the notice of discontinuance document that Dr Zaghloul undoubtedly filed at court on 20 October 2016.
I must also render at this point my assessment as to the inapplicability of a case heavily relied upon by Dr Zaghloul in his endeavours. This is a decision of the Supreme Court of the Australian Capital Territory in B & J Engineering Pty Ltd (in liq) v Daroczy (1984) 57 ALR 240. The decision concerned O 30 r 1, r 2 and r 3 of the Rules of the Supreme Court 1937 (ACT), which dealt with the discontinuance of actions in that forum (see page 242). Dr Zaghloul invoked the decision in support of his contention that his notice of discontinuance of 20 October 2016 was either ineffective or invalid because he said he failed to obtain the leave of this court prior to discontinuing his action.
However, the facts of B & J Engineering Pty Ltd (in liq) v Daroczy are very different to the present. The notice of discontinuance as filed at the ACT court in that action was never served on those defendants, unlike the facts in the present case. Further, the defendants only came to learn of that document some 3 1/2 years after it was filed at court. During that time the underlying litigation proceeded intensively and significantly towards a trial. Here, Dr Zaghloul's writ was filed on 7 October 2016. It was then served by him upon the defendants on 11 October 2016.
From Shepherd J's discrete reasons (see page 245), his Honour's decision was based upon the perceived inability to discontinue in the ACT Supreme Court without leave where a writ had not been served at the time the notice of discontinuance was filed. Again, they are not the facts in the case at present. Hence, B & J Engineering Pty Ltd (in liq) v Daroczy is distinguishable in important respects to the instant facts. It is of no present assistance to Dr Zaghloul.
Next, during oral arguments put to me, Dr Zaghloul sought to bracket together his other so‑called 'grounds' of appeal 7, 10, 11 and 12. He did so to globally contend that the taxing officer made an error of principle in relation to quantum by the amount that she ultimately allowed and certified. It must be remembered that at this taxation hearing on 11 April 2017, the taxing officer had assessed the first defendant's submitted bill of costs. That bill was assembled by reference to seven specified claimed items in the aggregate amount of $32,442 from Dr Zaghloul as the discontinuing plaintiff. Of the most numerical monetary significance in that bill as submitted were items 2, 3 and 4. They claimed amounts of $19,660.30 (under item 2), $6,925.60 (under item 3) and $1,046.10 (under item 4) (these three items amounting to $27,632.).
The taxing officer resolved, without objection, to render a global determination in respect of those three claimed items. There is no criticism of that global approach. She ultimately taxed off (ie, disallowed) $22,131 of the claimed sums (see ts 54) (although the amount identified at the time looks to be in error to the extent of $100). Hence, upon the first defendant's submitted bill claim for what had been a total of $27,632 for items 2, 3 and 4, the taxing officer only would have allowed $5,500 on 11 April 2017. In effect, approximately 80.096% of the first defendant's claimed amounts under items 2, 3 and 4 of its bill was foreshadowed as being taxed off (disallowed). Yet, according to Dr Zaghloul, that $5,500 result reflects an underlying error of principle.
The alleged quantum error, from Dr Zaghloul's words to me at the review hearing, was eventually distilled to this bare proposition: 'the just allowance was too much' (see ts page 107). But why that is remains a mystery.
During Dr Zaghloul's verbal submissions to me at the review hearing, it seemed his underlying position was that any amount allowed by the taxing officer on this bill exceeding $99 (allowed under item 1 for the filing of a memorandum of appearance) was wrong and so would reveal an error in principle. The tortured misconception inherent in that submission is self‑evident.
It is clear from my review of the transcript of 11 April 2017, and then the reasons of 11 October 2017, that the conduct of the taxing officer across the 11 April 2017 taxation and in the subsequent review was careful, measured and fully appropriate in the circumstances. No error of principle is disclosed as to quantum, or at all. Dr Zaghloul's contentions to the contrary are threadbare and, ultimately, meritless. Indeed, they reek of being advanced simply to stave off a looming day of him ever paying anything to the first defendant. That conduct will carry an adverse costs consequence for him, which I will explain at the end of these reasons.
The balance of Dr Zaghloul's so-called 'grounds' of appeal seemed to fall generally under his global contention that he was denied procedural fairness within the conduct of the taxation hearing on 11 April 2017 and thereafter. Dr Zaghloul is also aggrieved from a procedural fairness perspective as regards the conduct of the taxing officer's evaluation of his 36 individual written objections under the RSC O 66 r 53 review, which is reasoned in the review reasons of the taxing officer of 11 October 2017.
Again, on my assessment, in the taxation process and in the following review process by the taxing officer, more than abundant measures of procedural fairness were afforded to Dr Zaghloul - in what was an economically disproportionate allocation of scarce resources overall. Courtesy of a system providing generous costs review opportunities (that was clearly designed on a premise of represented parties acting reasonably and with some semblance of economic rationality), Dr Zaghloul has now enjoyed a bountiful number of opportunities to make all his points and to be heard upon his cost exposure grievances that it will be remembered were first evaluated at $10,567.75.
A recurrent theme of Dr Zaghloul's cry of denial of procedural fairness invariably reverts back to his base position that his notice of discontinuance did not validly terminate the consequence for his action. Even if (hypothetically) that position were to be accepted, still the terms of RSC O 23 r 2(1) were nevertheless engaged to 'bite' him - from a costs exposure perspective by reason of the document he filed.
Dr Zaghloul's views upon his viable 'undead' action notwithstanding his filed discontinuance, in due course, then led him to 'up the ante' considerably against the defendants. He did so by attempting to file three more documents in his 'undead' action. That happened on 2 October 2017 (before the RSC O 66 r 53 review decision of the taxing officer was delivered on 11 October 2017), namely:
(a) a statement of claim (court document 16);
(b) another affidavit of Dr Zaghloul (court document 17); and
(c)a chamber summons seeking summary judgment and, further or in the alternative, a default judgment against the defendants who had not entered appearances at that point (court document 18).
That last chamber summons came before the Master on 2 November 2017. The Master, after hearing argument, dismissed Dr Zaghloul's chamber summons (see [1]). The Master concluded Dr Zaghloul's application for summary or default judgment were incompetent and that he should pay costs of that exercise (see [11] and [12]).
The Master's decision published 6 November 2017 is now the subject of appeal by Dr Zaghloul to the Court of Appeal. That appeal is yet to be determined and was pending receipt of a hearing date. In consequence, I have refrained in these reasons from unduly elaborating over the substantive merits of Dr Zaghloul's contention about his notice of discontinuance of 20 October 2016 as being legally ineffective, without his obtaining prior leave from the court enabling him to validly discontinue. However, I needed to canvass that issue incidentally, to the extent required to determine the alleged jurisdictional and procedural fairness issues raised by Dr Zaghloul as put against the certificate of taxation of 11 October 2017 on the present RSC O 66 r 55 further review application. By my assessment, no errors of principle were identified, let alone shown. Hence, the present review application of Dr Zaghloul should be dismissed with costs.
Notwithstanding that Dr Zaghloul is a self-represented litigant, the wholly uneconomic and grossly disproportionate resourcing scale of the present review exercise was made more expensive and costly than it ought to have been. What is a significant waste of this court's resources was incurred under what is an effective failure by Dr Zaghloul to appreciate the legal constraints of an O 66 r 55 review and to find and focus on any true error of principle. Instead, there was a proliferation of time‑consuming exchanges of unnecessary written materials. Those materials seemingly multiplied exponentially over time in a fashion which, on my assessment, was unnecessarily wasteful and is ultimately inexcusable.
A court must be very cautious before making an indemnity costs order against a self‑represented litigant. However, enough is enough in the present circumstances. I am well‑satisfied that it is both necessary and appropriate to mark this court's firm disapproval of what I see as an attempted manipulation of its costs review processes to attempt to effectively stave off the day of ever having to render a payment of any costs to the first defendant. That attempt has failed.
The review application should be dismissed with an order for indemnity costs made against Dr Zaghloul payable forthwith. That order for indemnity costs should issue in the usual terms, namely that the applicant is to pay the respondent's costs of this application on an indemnity basis, save for any costs that are assessed by a taxing officer to be of an unreasonable amount, or that were unreasonably incurred.
The court's orders should issue in the following terms:
(1)Review application of the plaintiff under RSC O 66 r 55 is dismissed with costs.
(2)The plaintiff is to pay the first defendant's costs of the RSC O 66 r 55 review application on an indemnity basis, save for any costs that are assessed by a taxing officer to be of an unreasonable amount, or that were unreasonably incurred.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AC
RESEARCH ASSOCIATE/ORDERLY TO KENNETH MARTIN & CORBOY JJ23 APRIL 2018
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