Gibson v Fisher HC Auckland CIV 2006-404-103

[2010] NZHC 1295

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2006-404-103

BETWEEN  NEVILLE JAMES GIBSON Plaintiff

ANDMICHAEL JOHN FISHER First Defendant

ANDRICHARD DIGBY WALLIS Second Defendant

ANDLEGAL SERVICES AGENCY Fifth Defendant

Hearing:         9 June 2010

Appearances: Plaintiff in person

Simon Hamilton for First Defendant
Todd Greenwood for Second Defendant
Graham Taylor and Rosaleen Taylor for Fifth Defendant

Judgment:      18 June 2010

JUDGMENT OF HARRISON J

In accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of

2:00 pm on 18 June 2010

SOLICITORS

Kennedys (Auckland) for First Defendant

Keegan Alexander (Auckland) for Second Defendant Bartlett Partners (Wellington) for Third Defendant (copy to Plaintiff in person)

COUNSEL

Graham Taylor; Rosaleen Taylor

GIBSON V FISHER AND ORS HC AK CIV-2006-404-103  18 June 2010

Introduction

[1]      Mr Neville Gibson has applied for an order granting leave to apply out of time to review a decision of Associate Judge Doogue ordering him to pay security for costs of $35,000 to each of the first and second defendants, Messrs Michael Fisher and Richard Wallis respectively, and $15,000 to the fifth defendant, the Legal Services Agency.

[2]      Mr Gibson's application, which was filed 19 working days out of time, is opposed by all three affected parties.   Counsel for the defendants accept that the statutory discretion to grant an extension of time will take into account the lapse of time, Mr Gibson's explanation for his delay, and whether his proposed application to

review has substance or merit.[1]   As Mr Graham Taylor for the LSA submits, it is

then necessary to stand back and, after reviewing the facts as a whole, assess where the interests of justice lie.[2]

Associate Judge's Decision

[1] Sutton v New Zealand Guardian Trust Co Ltd (1989) 2 PRNZ 111.

[2] Spicers Paper(NZ) Ltd v BPK & GA Buckley Ltd (1993) 6 PRNZ 16, 18-19. 

[3]      Associate Judge Doogue delivered a comprehensive reserved judgment on

21 July 2009.  He noted the relevant background as follows:[3]

[3] Gibson & Anor v Fisher & Ors HC Auckland CIV-2006-404-103, 21 July 2009, at [1].

Mr Gibson’s litigation has a lengthy history.   The brief background was described in the 2005 judgment of Young J in Minter Ellison Rudd Watts v Gibson CIV 2002 404 1987:

[1]       These proceedings concern a relationship between Minter Ellison Rudd Watts (“MERW”) and its client Neville Gibson and his litigation with Arthur Andersen (“AA”) then an international accountancy firm. In 1991

AA sued Mr Gibson for unpaid accountancy fees. Mr Gibson counterclaimed. The litigation was heard over 42 days between 2001 and

2002. Mr Gibson eventually got judgment against AA for $1.6 million including interest and costs. Mr Gibson now alleges that MERW breached their fiduciary, tortious, contractual, and ethical, duties in the preparation of his  case  against  AA.  He  says  the  litigation  was  not  prosecuted  with

diligence, his eligibility for legal aid was not explained and MERW had a

conflict of interest between its financial interest and its duties as lawyers to

Mr Gibson.

[2]       Mr  Gibson  seeks  equitable  compensation  for  these  breaches, alleges   that the litigation should have been completed years earlier and should have been funded by legal aid. He seeks damages of $6,183,000 arising  from  these  breaches,  and  general  and  aggravated  damages  of

$250,000.

[3]       The plaintiff denies any breaches of duties owed to Mr Gibson. The  plaintiff submits the following; that if there were any breaches after

1997 they were the responsibility of Mr Hurd, a partner of MERW only until 1997; if there were breaches they were contributed to by Mr Gibson; some of the allegations are barred by time (the Limitation defence); and finally, a release from liability given by Mr Gibson to Mr Hurd in 2002 also applies to MERW.

[4]      Associate  Judge  Doogue  categorised  this  proceeding  as  being  within  the "third  generation".     It  is  third  in  a  series  of  related  cases,  characterised  by Mr Gibson's allegations of incompetence against those who had represented him previously.   The first was his successful defence and counterclaim to Arthur Anderson's claim for fees owing for professional services.   The second was his unsuccessful defence and counterclaim to MERW's claim for fees of $70,000 outstanding for representing him in the Arthur Anderson litigation.  This is the third, where he now blames Messrs Fisher and Wallis for wrongly advising him to defend and counterclaim against MERW and for losses allegedly suffered as a result.  Both represented him at various stages in the MERW litigation.

[5]      The jurisdiction to order security for costs is:[4]

[4] R5.45 High Court Rules.

(1)      Subclause (2) applies if a Judge is satisfied, on the application of a defendant,—

(a)       that a plaintiff—

(i)       is resident out of New Zealand; or

(ii)      is a corporation incorporated outside New Zealand;

or

(iii)      is a subsidiary (within the meaning of section 5 of the Companies Act 1993) of a corporation incorporated outside New Zealand; or

(b)that there is reason to believe that a plaintiff will be unable to pay the costs of the defendant if the plaintiff is unsuccessful in the plaintiff's proceeding.

(2)      A Judge may, if the Judge thinks it is just in all the circumstances, order the giving of security for costs.

(3)       An order under subclause (2)—

(a)       requires the plaintiff or plaintiffs against whom the order is made to give security for costs as directed for a sum that the Judge considers sufficient—

(i)       by paying that sum into court; or

(ii)      by giving,  to the satisfaction of the Judge or the

Registrar, security for that sum; and

(b)may stay the proceeding until the sum is paid or the security given.

(4)       A Judge may treat a plaintiff as being resident out of New Zealand even though the plaintiff is temporarily resident in New Zealand.

(5)       A  Judge  may  make  an  order  under  subclause  (2)  even  if  the defendant has taken a step in the proceeding before applying for security.

(6)       References in this rule to a plaintiff and defendant are references to the person (however described on the record) who, because of a document filed in the proceeding (for example, a counterclaim), is in the position of plaintiff or defendant.

[6]      I interpolate to observe that both of the alternative jurisdictional prerequisites for an order for security were satisfied.   The  Associate Judge found  that, first, Mr Gibson was in fact resident outside of New Zealand[5]  and, second, Mr Gibson would be unable to pay costs ordered against him in the litigation if he failed.[6]   He focused  his  inquiry,  within  the  broad  ambit  of  what  was  "just  in  all  the

circumstances", primarily upon Mr Gibson's prospects of success.

[5] Gibson & Anor v Fisher & Ors, above n 2, at [12].

[6] Ibid, at [82]-[102].

[7]      As Associate Judge Doogue noted, the exercise of his discretion was to be guided by this authoritative statement:[7]

[7] AS McLachlan Ltd v MEL Network Ltd (2002) 16 PRNZ 747 (CA).

[15]      The rule itself contemplates an order for security where the plaintiff will be unable to meet an adverse award of costs.   That must be taken as contemplating also  that  an  order  for  substantial  security  may,  in  effect, prevent the plaintiff from pursuing the claim.   An order having that effect should be made only after careful consideration and in a case in which the claim has  little  chance  of  success.    Access  to  the  courts  for  a  genuine plaintiff is not lightly to be denied.

[16]     Of course, the interests of defendants must also be weighed.  They must be protected against being drawn into unjustified litigation, particularly where it is over-complicated and unnecessarily protracted.

[8]      With a degree of understatement, Associate Judge  Doogue observed that

Mr Gibson's third and current amended statement of claim was "difficult to follow".[8]

He tabulated what he described as "only the main heads of claim".  He then reviewed all the possible elements of Mr Gibson's claim,[9]  observing that his identification of the summarised elements represented Mr Gibson's best grounds for success against his lawyers.[10]

[8] Ibid, at [15].

[9] Ibid, at [16]-[60].

[10] Ibid, at [61].

[9]      When reaching a view on Mr Gibson's overall prospects of success against his former counsel, the Associate Judge recorded:

[64] Mr Gibson’s prospects in the present case are also heavily dependent on what the Court makes of him as a witness. He has not been favourably assessed in the earlier two rounds of litigation as I have noted in paragraph [40]. That may well be an augury of how that witness might be expected to perform should he be required to again give evidence in the High Court.

[65]      Of course, it is always possible that the Judge coming fresh to the

2002 proceedings would take a more favourable view of Mr Gibson’s credibility.  What assessment a Court will make of a witnesses veracity is

sometimes hard to anticipate and the position often does not clarify until

after there has been cross-examination and a detailed comparison of the witnesses account of matters with contemporary circumstances and documents.

[66]     There  are  other  aspects  of  Mr  Gibson’s  character,  apart  from credibility, that might give pause for thought in the present litigation.  I do not think it is unfair to say that he has given the impression of having tunnel vision when it comes to his claims.  To say he has been single-minded about pursuing the various rounds of litigation would be an understatement.  All of this is unlikely to escape the attention of a Court assessing his objectivity and reliability as a witness in the current litigation.

[10]     Associate Judge Doogue concluded:

[71]      Standing  back  and  looking  at  matters  overall,  I  would  not  rate Mr Gibson’s  chances  of  obtaining  a  successful  outcome  in  the  present litigation as even approaching a 50/50 chance of success. In making my own judgment I think it is sensible not to overlook what sort of impression the litigation made on Ronald Young J as well.

[72]      Overall, I consider that:

a)Mr  Gibson’s  claims  generally  are  not  likely  to  succeed because of:

i)        Mr Gibson’s credibility;

ii)        Other factors impacting adversely on the impression he would make on a Court – that is, his lack of balance and “tunnel-vision”;

b)The  claim  about  the  advice  on  prospects  of  success  is unlikely to succeed because of:

i)The relevant improbability that counsel would give an emphatic and unequivocal forecast of success;

ii)        The consideration that counsel’s obligation was not to guarantee success but, rather, to undertake with all proper care the task of estimating the plaintiff’s prospects of success in the proceedings.

iii)       The absence of any written record of advice on this subject.

c)        The  claim  based  on  failure  to  assist  with  the  legal  aid application has very low prospects of success because:

i)        Mr Gibson never received a grant of legal aid;

ii)        Therefore his lawyer could not have been in breach of his obligations which are said to have been contingent on such a grant.

d)The negligence claim relating to the failure to advise on the Limitation Act 1950 claim is likely to fail because no loss was suffered.

…

[74]      Finally, there is one further aspect which is relevant. Mr Gibson is a self-represented  litigant  who  understandably  has  some  difficulty  dealing with what has become a complicated case.   I mean no disrespect to him when I say that his pleadings are of excessive length and lack shape and focus.   All of this is symptomatic of his problems in dealing with the litigation.  These are further grounds for caution in predicting that he might enjoy success in the current case.

[11]     Associate Judge Doogue separately considered Mr Gibson's claim against the LSA for negligence and misfeasance in public office.  Again he prepared a tabulated summary of Mr Gibson's pleading.  He found on that cause of action as follows:

[79]      There has not been any argument to speak of on the merits that would assist in assessing the strength of the plaintiff’s case. However, as Mr Taylor for the fifth defendant points out, all of the issues raised in this litigation were, or could have been, raised in the appeal proceedings that Mr Gibson issued following a refusal of a grant of legal aid.   Mr Taylor also raised the possibility that if the current proceedings that the plaintiff has

brought seek to raise matters that could have been litigated in earlier proceedings, the plaintiff may be vulnerable to an application to strike out.

[80]      It may be pertinent to note that the plaintiff would not even be able to  establish  that  the  LSA  made  the  wrong  decision  on  his  legal  aid application.  He is driven to arguing that even though the agency’s decision was vindicated on review and appeal, the processes it followed in reaching its decision were tainted.   This leads into what is, in my view, the real problem  that  Mr  Gibson  has  with  this  claim  which  arises  from  the requirement that he demonstrate that he suffered damages as a result of the defendant’s conduct.

[81]      There are other problems as well.  An example is the allegation that the Legal Services Agency was in breach of its obligations in declining legal aid when a specialist legal advisor had recommended a grant.  That would seem to elevate the status of a recommendation beyond a justifiable level and to treat it as resulting in a mandatory requirement that legal aid be granted if such an advisor thought it should be.   Such a conclusion seems unlikely to be arrived at by the Court in considering his claim.

[12]     The Associate Judge undertook a final balancing exercise, concluding as follows:

[105]    Mr Gibson’s claim is not a strong one against any of the defendants. It is likely that because of his financial position he will not be able to meet any orders for costs that might be made against him in this proceeding.  This is not a case where the Court should refrain from making an order on the ground that it is the actions of the defendants that have rendered the plaintiff impecunious.

[106]    I am aware that if the Court makes an order for security, the practical effect may be to bring Mr Gibson’s proceedings to a permanent halt.  That is a weighty factor that the Court must take into account in deciding if an order for security for costs ought to be made.

[107]    Against the last consideration must be balanced the consideration that the defendants are entitled to be protected against the financial consequences of being caught up in litigation that has little merit and which will cost them a lot of money to defend.

[108]    In my view orders in terms common to all the defendants should be made for each defendant other than the fifth defendant, who has sought security for a lesser figure than the other defendants.

…

[110]    I have no doubt that the proceedings have been, and will continue to be, expensive for the defendants.  Every step in the proceedings seems to be accompanied by great volumes of paper.  Prolix and duplicatory pleadings, late filing of court documents and general disorganisation have exacerbated, and will continue to exacerbate, the expense.   I have no reason to believe that this pattern will not continue.  It was for these reasons that the hearing of  the  current  application  overran  from  its  first  fixture  and  had  to  be

adjourned part-heard.  In the end the one day time estimate became one and a half days actual hearing time.

[111]    My approach shall be that the amount to be ordered should not go beyond what is necessary to make reasonable provision for security for costs in the light of the objective of the rule.  That objective is to ensure so far as is reasonably possible that the defendants, if successful, are not left holding costs orders which are empty and of no assistance in meeting their out of pocket expenses because of the plaintiff’s inability to pay.

[112]    I  understand  that  the  consequences  of  this  order  may  be  those described in AS McLachlan Ltd v MEL Network Limited that I have cited at paragraph [10].  That is, the order I am going to make may have the effect of preventing Mr Gibson from pursuing his case.  While such a result will have a very adverse effect from Mr Gibson’s point of view, nonetheless the justice of the case requires that it be made.

Legal Principles

[13]     The  first  or  procedural  step  is  to  examine  together  both  the  length  of Mr Gibson's delay in filing an application to review out of time and his explanation for it.

[14]     Mr Simon Hamilton for Mr Fisher is right to emphasise the tight statutory time limit of five days for filing an application to review a decision of an Associate Judge, with the consequential inference that this right must be exercised promptly. However, Mr Gibson's delay of 19 working days was not extreme or inordinate.  As he notes, he filed his application to review within the time limit normally allowed to appeal a judgment of this Court to the Court of Appeal.

[15]     Furthermore,  I  am  satisfied  that  Mr Gibson  genuinely  misunderstood  the High Court Rules about whether a challenge to a decision of an Associate Judge is by way of appeal or review.  He joins company with many in the legal profession who have made the same mistake.   It is inconceivable, given his litigation history since  2002,  that  Mr Gibson  did  not  intend  to  challenge  an  adverse  judgment, irrespective of its merits.   His track record of tenacious pursuit of any and every professional whom he might possibly blame for his financial misfortune speaks for itself.

[16]     Mr Gibson intended, I am satisfied, to challenge Associate Judge Doogue's decision from the day of delivery but he misinterpreted the appropriate rules.  His misunderstanding of legal principles and procedure is a constant theme of this litigation.   However, on this application the defendants have not suffered any prejudice  from  the  short  delay  apart  from  the  inconvenience  and  expense  of defending this application.

[17]     The  inquiry  then   focuses  on  the  underlying  substance  or  merits  of Mr Gibson's application to review.   Associate Judge Doogue had an appropriate jurisdictional foundation for making orders for security for costs.   As noted (at para [6]  above),  he  found  the  existence  of  both  of  the  alternative  qualifying conditions - that Mr Gibson resided out of New Zealand and that he would be unable to pay costs ordered against him in the proceeding if he failed.  He then exercised his discretion, taking particular account of the likelihood that orders for security would bring Mr Gibson's litigation to an end.

[18]     Accordingly, if he was to succeed on his substantive application to review, Mr Gibson  would  have  to  establish  that  Associate  Judge  Doogue  made  a  truly reviewable error: that is, he erred in principle; or he failed to give proper weight to a relevant factor or gave undue weight to an irrelevant factor; or he was plainly wrong. In a case like this, Mr Gibson would have to satisfy a high threshold.  I shall explain why, in my judgment, his substantive application to review would not even approach that threshold.

[19]     By way of introduction, I observe that Associate Judge Doogue undertook an extraordinarily careful evaluation of the underlying merits of Mr Gibson's claim.  In an  effort  to  introduce  a  degree  of  intelligibility  to  Mr Gibson's  third  amended statement of claim, the Associate Judge reconstructed Mr Gibson's various causes of action.  Counsel confirmed that the Associate Judge's tabulated summaries were his own work.  I have found them invaluable in reviewing Mr Gibson's application.

[20]     By reference to each of the three possible grounds of challenge to Judge Doogue's decision, Mr Gibson does not suggest an error of principle, and nor could he.    He  expressly  acknowledges  that  Associate  Judge  Doogue  approached  the

applications for security in accordance with McLachlan.  His determination followed a full consideration of Mr Gibson's prospects of success.  For that purpose, as noted, the Associate Judge himself attempted to re-cast the claim into a meaningful form, and proceeded accordingly.

[21]     Mr Gibson's   principal   submission   was   that   Associate   Judge   Doogue overlooked a relevant factor or factors.  However, on analysis of his synopsis, it is apparent  that  Mr Gibson  is  submitting that  the  Judge was  plainly wrong in  his evaluation of the merits, and that this error unduly influenced his decision.  In order to determine this argument I have independently reviewed Mr Gibson's statement of claim.

Defendants

(1)      Mr Fisher

[22]   Like Associate Judge Doogue, I have had to undertake an exercise in reconstruction in an attempt to make sense of Mr Gibson's pleading.  It fully justifies the Associate Judge's condemnation of prolixity and duplication.[11]   In my judgment it suffers from a number of independently fatal defects.

[11] Gibson & Anor v Fisher & Ors, above n 3, at [110].

[23]     Ronald   Young J's   judgment   in   the   MERW   litigation[12]     reveals   that Mr Gibson's primary line of defence to MERW's claim for outstanding fees was based  upon  his  assertions  that  the  firm  acted  incompetently  in  pursuit  of  his successful counterclaim against Arthur Anderson for $1.6m including interest and costs.    Mr Gibson  also  asserted  a  counterclaim  against  MERW  for  damages  of

$6.183m.

[12] Minter Ellison Rudd Watts v Gibson HC Auckland CIV-2002-404-1987, 24 August 2005.

[24]     In summary, Mr Gibson's claim against Mr Fisher appears to make these material allegations:

(1)Mr Fisher was engaged by a firm of solicitors under a contract of retainer as Mr Gibson's counsel between November 2002, when the MERW litigation was filed, and November 2003;

(2)Mr Fisher advised Mr Gibson about the prospects of success, strategic planning and  the overall management of the proceeding including advice that he would succeed completely as to liability (by which I assume  Mr Gibson  means  in  defending  MERW's  claim  and  in pursuing  a  counterclaim)  and  that  the  only  issue  would  be  the quantum of a damages award in Mr Gibson's favour.

Particulars are given of Mr Fisher's advice that Mr Gibson had causes of  action  available  to  him  by  way of  counterclaim  for  breach  of contract, breach of fiduciary duty and negligence.  The advice of the particular breach of fiduciary duty was that MERW had failed to inform Mr Gibson of his right to apply for legal aid for which he was eligible.  The advice of breach of contract is limited to an allegation of MERW's negligence in failing to advise on the merits of his counterclaim and costs;

(3)Mr Gibson paid Mr Fisher a total of $89,000 in legal fees which was excessive and in breach of their original agreement to cap fees at

$40,000;

(4)Mr Fisher's advice was "given negligently and carelessly" because "Mr Gibson did not succeed in the proceeding where judgment was entered against him".   Particulars are given as a failure to advise Mr Gibson that his claims against MERW for breach of contract and negligence were statute barred.   A separate particular is said to be negligent advice relating to Mr Gibson's agreement to settle the claim for fees for professional services brought by his counsel in the original proceeding, Mr David Hurd, for $107,000;

(5)In  the  result,  Mr  Gibson  says  he  suffered  consequential  losses totalling $925,000.

[25]   The primary reason for Mr Gibson's failure both on his defence and counterclaim  in  the  MERW  litigation  is  laid  bare  in  Ronald  Young J's  adverse findings  about  Mr Gibson's  reliability  and  credibility.[13]      The  Judge  found  that Mr Gibson's evidence was untruthful, evasive, inconsistent, completely lacking in insight, reconstructive "and at times incredible".[14]    Mr Gibson cannot blame his counsel for Ronald Young J's evaluation of his own evidence.   His defence and counterclaim were doomed to failure in light of these findings.   It is difficult to contemplate  a  more  complete  or  sustained  rejection  of  a  witness'  evidence. Mr Gibson appealed unsuccessfully to the Court of Appeal.

[13] Ibid, at [96]-[115].

[14] Ibid, at [115].

[26]     Ronald  Young J  found  that  Mr Gibson's  defence  and  counterclaim  were unmeritorious  and  a  factual  fabrication.     Any  advice  given  by  Mr Fisher  to Mr Gibson about the merits of his defence and counterclaim could only have been based on an assumption of the accuracy of Mr Gibson's factual account.  He would have  acted  on  instructions.    Once  that  factual  substratum  was  discredited  and rejected by Ronald Young J, the competence or otherwise of any advice given by counsel paled progressively into causal insignificance.  Its effect was overwhelmed by the weight of the trial Judge's adverse findings on credibility and reliability.  Mr Gibson was never going to succeed against MERW in those circumstances.

[27]     Mr Gibson's claim against Mr Fisher faces another, equally fatal, obstacle.  It proceeds on the pleaded premise that Mr Fisher's advice was given negligently and carelessly because Mr Gibson was unsuccessful at trial.   There is, of course, no necessary or logical connection between the two events; the fact of  an adverse judgment does not of itself equate with negligent performance of professional services.

[28]     To establish an allegation of negligent advice Mr Gibson would have had to, first, identify the particular advice and, second and more importantly, establish that

no skilled lawyer, acting with proper care and skill, could reasonably have formed the opinion conveyed within the advice given.  Mr Gibson's third amended statement of claim purportedly particularises the advice in two parts.[15]   However, he has failed to identify the errors in either of the identified parts of advice or, assuming it was given, that the opinion or advice was not reasonably open to Mr Fisher on the factual narrative provided by Mr Gibson.

[15] Paras 9 and 17.

[29]     Instead, Mr Gibson particularised a separate and unrelated failure to advise that his counterclaim for breach of contract and negligence was statute barred.  Even if this was so, it did not cause Mr Gibson any loss, as the Associate Judge noted.[16]

While  Ronald  Young J  reached  a  provisionally  adverse  view  on  limitation,  he decided against Mr Gibson on other grounds.[17]

[16] Gibson & Anor v Fisher & Ors, above n 3, at [34].

[17] Gibson v Minter Ellison, above n 15, at [17].

[30]     Mr  Gibson  alleges  independently  and  without  particulars  that  Mr Fisher assured him that he "would succeed completely as to liability".[18]     That counsel would give such an assurance is inherently improbable.   But, when considered in conjunction with an identical assertion made earlier by Mr Gibson in the MERW litigation against his then previous counsel, it defies belief.   The allegation was comprehensibly rejected by the Court of Appeal in the MERW litigation.[19]     The coincidence of allegations of two such highly improbable assurances, made in successive proceedings, says much about the underlying credibility of Mr Gibson's claim against Mr Fisher.

(2)      Mr Wallis

[18] Third amended statement of claim, at para 10.

[19] Gibson v Minter Ellison, above n 15, at [73]-[83].

[31]     Mr  Wallis  succeeded  Mr  Fisher  and  represented  Mr  Gibson  at  trial.    In summary, Mr Gibson's claim against Mr Wallis repeats and expands upon similar allegations made against Mr Fisher.  I do not intend to rehearse them here.  They do not lead anywhere.  However, a good part is devoted to Mr Gibson's application for legal aid in April 2005, after Mr Fisher's retainer had been discontinued but before

trial commenced in the MERW litigation on 6 July 2005.   Mr Gibson asserts that Mr Wallis owed him a duty of care to assist him in advancing his application for legal aid.  The allegation is apparently based upon an alleged breach of s 66 Legal Services Act 2000, which prohibits a listed provider from taking payments from a legally aided client without the LSA's authority.

[32]     Mr Gibson's pleading on this point is especially discursive.  I have not been able to make any sense of it.   The Associate Judge did his best, concluding that Mr Wallis could not possibly have been in breach, even if a duty was owed.[20]   It is not appropriate to waste judicial resources on trying to make intelligible what is unintelligible.  However, Associate Judge Doogue must be correct; s 66 cannot apply if, as he actually pleads, Mr Gibson was not in receipt of legal aid.  I note also that,

like the allegation of an assurance of success by counsel, Mr Gibson's allegation of breach of a duty to secure legal aid mirrors an allegation made by Mr Gibson in his counterclaim against MERW.[21]

[20] Gibson & Anor v Fisher & Ors, above n 3, at [55]-[58].

[21] Gibson v Minter Ellison, above n 15, at [13]-[33].

[33]     I note  two  other  points  relating to  Mr Gibson's  claim  against  Mr Wallis. First, like MERW and Mr Fisher, Mr Wallis is subject to the same allegation of giving Mr Gibson an assurance of success at trial.  Mr Gibson relies on an affidavit from  a  Mr Brian  McAlister,  who  apparently  provided  financial  support  for Mr Gibson's fees, to the effect that at a meeting in "about July 2004" he heard Mr Wallis give an assurance to the effect that "[MERW] are completely gone on liability".  Even if Mr Wallis spoke those words, which is inherently improbable, it goes without saying that his advice would have been based on Mr Gibson's factual narrative which, as noted, Ronald Young J totally rejected at trial.

[34]     Second, Mr Gibson alleges that Mr Wallis failed to seek instructions from him about a settlement offer made by MERW before trial.   Mr Wallis denies this allegation.    This  contest  would  normally be  resolved  at  trial.    However,  given Mr Gibson's track record before Ronald Young J, and the Associate Judge's view, which I endorse, that it is inherently unlikely a barrister in Mr Wallis' position would

deliberately fail to communicate a significant offer from the other side, it can safely be concluded now that Mr Gibson's allegation could never succeed.

(3)      LSA

[35]     Mr Gibson's case against the LSA is even weaker.  I can do no better than completely adopt Associate Judge Doogue's summary of its unarguability.[22]    I am satisfied that Mr Gibson's case would always fail on causation even if he could prove breach of a duty.

Decision

[22] Gibson & Anor v Fisher & Ors, above n 3, at [75]-[81].

[36]     It  follows  from  this  analysis  of  Mr Gibson's  claim,  reconstructed  in  an attempt  to  make  some  sense  of  it,  that  I  endorse  Associate  Judge  Doogue's assessment of Mr Gibson's chances of success against any of the defendants as not even  approaching  50%.[23]    It  could  never  be  said  that  the  Associate  Judge's painstaking assessment was plainly wrong.   If anything, I would go further and categorise Mr Gibson's claim as having "little chance of success".[24]

[23] Ibid, at [71]-[72].

[24] AS McLachlan Ltd v MEL Network Ltd, above n 5, at [15].

[37]     However, in my judgment the likelihood that an order for security for costs will bring proceedings to an end is not the only material discretionary factor.  It is an important factor, as Associate Judge Doogue recognised.   But, in exercising his discretion, he also took account of the interests of the defendants who must be protected against being drawn into litigation which, because of the nature of its conduct by the plaintiff, is overcomplicated and unnecessarily protracted and expensive, and where the defendants if successful have no prospect of recovering a

favourable order for costs.[25]   Associate Judge Doogue was entitled to give weight to

that factor.[26]

[25] Ibid, at [16].

[26] Gibson & Anor v Fisher & Ors, above n 3, at [107]-[110].

[38]     The Associate Judge referred to the prolix and duplicatory nature of the proceedings, its generation of great volumes of paper at every step, and its general disorganisation.  Mr Gibson is plainly responsible for this chaos, which has greatly compounded the expense for each defendant.  Associate Judge Doogue was satisfied that the same pattern would continue as long as the litigation continued.

[39]     Mr Hamilton explained the disproportionate demands placed on his time and resources by this litigation and the physical encroachment of the paperwork within his office.   Each separately represented defendant is being put to unjustified and escalating levels of expense simply because of the incompetent and misdirected nature of Mr Gibson's conduct of this proceeding.   They would never be able to recover this additional cost impost in an award of costs according to scale.  In these particular circumstances each defendant is entitled to be safeguarded against the contingency of success against an impecunious plaintiff.

[40]     The power to order a plaintiff to give security for costs exists to meet this very contingency.  When all relevant factors are taken into account, there could not be  a  more  deserving  case  for  an  order.    That  observation  also  serves  as  the conclusory step of standing back and assessing where the interests of justice lie when deciding whether to grant leave to apply out of time to review Associate Judge Doogue's decision.

[41]     Mr Gibson does not, and could not, challenge the amounts of security for costs fixed in favour of each defendant.

Result

[42]     Mr Gibson's application for leave to apply out of time to review the decision of Associate Judge Doogue delivered on 21 July 2009 ordering him to pay security for costs is dismissed.

[43]     Costs  must  follow  the  event.    Mr  Gibson  is  ordered  to  pay  costs  and

disbursements to each defendant according to category 2B.

Rhys Harrison J