Abbatangelo v Aleckson

Background

1. In the early hours of 25 August 2013 there was an altercation in the Rod and Reel Hotel at Woodburn on the north coast of New South Wales. The fight continued on outside the hotel. The plaintiff was involved in the fracas.
2. By a Statement of Claim filed on 17 August 2015 the plaintiff alleged that the defendant was the driver of a motor vehicle on Richmond Street at Woodburn, and that the motor vehicle collided with the plaintiff who was a pedestrian. The plaintiff suffered a head injury in the accident and had no memory of how it occurred.
3. By a Defence filed on 23 December 2015, the defendant denied negligence and raised s 54 of Civil Liability Act 2002 (NSW). The Defence specifically pleaded that the plaintiff violently assaulted a front seat passenger in the defendant's vehicle, as well as the defendant driver. The Defence pleaded that for reasons of his own safety and that of his passengers, the defendant drove the vehicle forward while the plaintiff continued to assault him.
4. The defendant also relied upon ss 52 and 53 of the Civil Liability Act as a complete defence, on the basis that the defendant's conduct was in self-defence.
5. Quite clearly there was a contest on liability, with two completely different versions of the accident being put forward by the plaintiff and the defendant.
6. On 22 March 2016 the solicitors for the defendant wrote to Mr Cameron asserting that the version of the defendant was "made good by the documents produced under subpoena by police". The letter said that the defendant's view was that the plaintiff's claim did not have reasonable prospects of success. For that reason, the defendant put Mr Cameron on notice that it would rely on the letter with respect to the issue of costs, including if appropriate, an application for a personal costs order against Mr Cameron.
7. It is noted that the basis for the application made in the motion by the defendant for a personal costs order, was not on the grounds that the case did not have reasonable prospects of success. Rather, counsel for the defendant made it plain that the late withdrawal of the solicitor for the plaintiff (dealt with below), resulted in the hearing date being vacated, and that Mr Cameron should face a personal costs order because he had failed to properly prepare the case for hearing.
8. Mr Cameron, as solicitor for the plaintiff, engaged Mr Palmer, a factual investigator. He provided a report to Mr Cameron dated 28 November 2016. That report contained signed witness statements from four people who had been interviewed by Mr Palmer.
9. The report attached the signed statement by Murray Worling. He worked at the hotel and saw part of the altercation. His statement was neutral, in the sense that he did not witness any events involving the plaintiff and the defendant.
10. The second statement was from Nicole Jannenga. She was a resident who became aware of shouting in the street. She did see someone lying on the ground seriously injured, but she did not see how that happened. Again, her statement was neutral, in that nothing she saw supported the version put forward by the plaintiff or the version put forward by the defendant.
11. The third statement was from Justin Brown, who was one of the travelling companions of the plaintiff. His signed statement completely supported the version of the plaintiff, which was that he was walking along the street and the defendant's car ran into the back of him and knocked him over. Mr Brown specifically said that the "police story", by which he meant the defendant's version, was "totally untrue".
12. The fourth statement was by Jye Abbatangelo, the son of the plaintiff. In this signed statement, he said that the fight was over and that he and his father were walking away from the hotel, when his father was run over by the defendant's car. In his signed statement he too said that the "police story" was a "complete fabrication".
13. While there was clearly going to be a hot contest on liability, Mr Cameron by the time he received the factual investigation report knew that there were two witnesses who supported the plaintiff's version, and two witnesses who were neutral. They did not gainsay the plaintiff's version, or assist the defendant.
14. On 12 April 2017 the proceedings were listed for a five day hearing commencing on 26 February 2018. The matter was listed again for mention on 30 October 2017 and 27 November 2017 and on both dates the hearing date of 26 February 2018 was confirmed.
15. Mr Cameron retained senior counsel to appear for the plaintiff at the hearing. An arrangement was made for Mr Cameron and senior counsel to travel to Melbourne for a conference with the plaintiff and his witnesses on 25 January 2018.
16. The plaintiff was informed of this arrangement by an email on 22 January 2018. Later that day the plaintiff left a voice message for Mr Cameron stating: "I will not be able to make it Thursday ring me back".
17. On 23 January 2018 Mr Cameron spoke to the plaintiff and advised him of the importance of attending the conference with senior counsel. The plaintiff indicated that he could not attend until 4.30pm on the day arranged. This was not a time suitable to Mr Cameron or senior counsel.
18. On 24 January 2018 Mr Cameron sent another email to the plaintiff concerning the proposed conference, but the plaintiff again advised that he would not be able to attend the conference as arranged.
19. Mr Cameron at that same time was making arrangements for Mr Brown and Mr Jye Abbatangelo to attend the conference in Melbourne, and to give evidence at the hearing. He was unable to contact those two witnesses. The plaintiff was unable to provide Mr Cameron with the current addresses for Mr Brown or Mr Jye Abbatangelo. Ms Millington, an assistant to Mr Cameron, made telephone contact with Mr Brown on his mobile phone number on 22 January 2018. Mr Brown advised that he would phone back with his current address and with a phone number for Mr Jye Abbatangelo, who he said he was still in contact with. He never rang back. Ms Millington did ring him again on several occasions, but each time the call went to voicemail.
20. The proposed conference with senior counsel in Melbourne did not proceed on 25 January 2018.
21. On 1 February 2018 Mr Cameron sent a letter to the plaintiff via express post serving a Notice of Intention of Ceasing to Act. A letter of the same date was sent to the plaintiff by express post, setting out the reasons for the need to file the Notice.
22. In his affidavit sworn 22 February 2018 (RX2) Mr Cameron said: "11. I took the view that the witnesses were no longer prepared to assist the plaintiff and were avoiding further involvement in the matter. Without these witnesses corroborating the plaintiff's version of events I took the view that the plaintiff's case had no reasonable prospects of success. 12. I was aware of my ongoing responsibility pursuant to s 347 of the Legal Profession Act 2004. 13. I wrote to the plaintiff on 1 February 2018 advising that I could no longer act for him."
23. In preparation for the hearing, the defendant filed a motion seeking an order for the evidence of Mr Worling to be taken by telephone. That motion was due to come on for hearing on Friday, 23 February 2018. In the meantime, the defendant had been served with Mr Cameron's Notice of Ceasing to Act. Mr Cameron had filed such a notice with the court, but the court had rejected it because it did not comply with the Rules. The List Judge, Judge Letherbarrow SC had his Associate write to the legal representatives of both parties indicating that the Notice was rejected. At the request of the defendant, the matter was listed for directions before Judge Letherbarrow SC on Wednesday, 21 February 2018. Counsel for the plaintiff acknowledged that the Notice was properly rejected as it did not comply with the rules. She made oral application for Mr Cameron to have leave to withdraw from the proceedings. An affidavit from Mr Cameron and an affidavit from Ms Millington (which were also tendered on this application) were read before the court. Mr Cameron participated in that directions hearing by telephone, as did the plaintiff.
24. Mr Cameron explained (DX3, T 5/43) that there were two issues so far as he was concerned. The first was that the arrangement had been made for 25 January 2018, for the plaintiff and his two witnesses to confer with Senior Counsel in Melbourne. The second factor, which Mr Cameron described as the more important factor (T 6/17) was that he could not find an address or a telephone number for Mr Jye Abbatangelo, in spite of the fact that he was the son of the plaintiff. Nor could he contact Mr Brown, who was not returning phone calls. Mr Cameron said to the court (T 6/71): "I then took the view that it might be that Mr Abbatangelo's witnesses were not as supportive as they were when I had statements from them but, in any event, if I couldn't subpoena them and I couldn't provide for their attendance at court, there was no reasonable prospect of this case being concluded successfully for the plaintiff and, in view of that, I felt not only disinclined to continue to act but I thought that I was obliged under the Legal Profession Act not to act any further."
25. The court stood the matter over for two days, to give Mr Cameron another chance to locate the witnesses, with the assistance of the plaintiff.
26. When the matter came back before the court on Friday, 23 February 2018, Mr Cameron appeared by telephone. He indicated that he had not changed his mind about prospects of success. He did say that he had spoken briefly to the two witnesses. Mr Cameron noted that they were "probably half a dozen different versions of the events", meaning from various witnesses, not just from Mr Brown and Mr Jye Abbatangelo.
27. Mr Cameron told the court (DX4, T 5/44): "Your Honour, there would be a prospect for that, if one could sit down with Mr Abbatangelo's two companions and take them through all the witness statements that were available at various times after they gave me their statements, then maybe there could be some way to be seen so that the case could be presented that would have some prospects. There are issues and I have to agree with Mr Abbatangelo. There are some issues that appear to be problematic with the defendant in the defendant's case but at the moment there is not just enough of it and it is impossible for me to come to that view at this time, and I did my best today to work through that with his two companions but, even after that, I was of the view that that wasn't possible."
28. Mr Cameron repeated (T 8/28) that he filed a Notice of Ceasing to Act because "I could not procure the attendance of the witnesses that would be necessary to prove the plaintiff's case". Mr Cameron reiterated that he had now lost senior counsel, and that there had not been the opportunity for the necessary lengthy conference with the witnesses prior to the case starting. He still sought leave to withdraw.
29. This left the plaintiff in the position of not having legal representation for the running of the case, due to start on Monday, 26 February 2018.
30. Judge Letherbarrow SC vacated the hearing date fixed for 26 February 2018, referred the plaintiff to the pro bono panel for legal assistance and stood the matter over for directions to 9 April 2019. Leave was granted to Mr Cameron to file a Notice of Ceasing to Act. The costs order made by Judge Letherbarrow SC was: "I order the plaintiff to pay the defendant's costs thrown away by the vacation of the hearing and reserve the question as to whether such costs should be paid by the plaintiff or by the plaintiff's solicitor, Mr Cameron."

Applicable Legal Principles

1. In written submissions (MFI 2), counsel for the defendant made the following submissions, which I accept. "Costs against practitioners generally 17. In Lemoto v Able Technical Pty Ltd [2005] NSWCA 153: (2005) 63 NSWLR 300, McColl JA set out at [92] a number of guiding principles which the court will take into consideration when exercising a power to order a legal practitioner to pay the costs of proceedings in which the practitioner has represented a party: (a) The jurisdiction to order a legal practitioner to pay the costs of legal proceedings in respect of which he or she provided legal services must be exercised "with care and discretion and only in clear cases": Ridehaigh (at 229), Re Bendeich [1994] FCA 1504: (1994) 53 FCR 422: Deputy Commissioner of Taxation v Levick [1999] FCA 1580: (1999) 168 ALR 383 per Hill J at [11]; Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 at [44]; Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416 at [8] per White J (with whom Davies and Williams JJA agreed);De Sousa v Minister for Immigration [1993] FCA 146; (1993) 41 FCR 544; Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No 3) [2000] SASC 286: (b) A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail: Ridehaigh (at 233); Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 at [56] per Lord Hobhouse; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) [1998] FCA 806; (1998) 156 ALR 169 (affirmed on appeal, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134); Levick v Deputy Commissioner of Taxation; cf Steindl Nominees P/L v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683; (c) the legal practitioner is not 'the judge of the credibility of the witnesses or the validity of the argument': Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297; the legal practitioner is not 'the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him'; Myers v Elman (at 304, per Lord Atkin); Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; (2001) 47 ATR 1 at [34] per Callinan J; (d) A judge considering making a wasted costs order arising out of an advocate's conduct of court proceedings must make full allowance for the exigencies of acting in that environment; only when, with all allowances made, a legal practitioner's conduct of court proceedings is quite plainly unjustifiable can it be appropriate to make a wasted costs order; Ridehaigh (at 236, 237); (e) A legal practitioner against whom a claim for a costs order is made must have full and sufficient notice of the complaint and full and sufficient opportunity of answering it: Myers v Elman (at 318);Orchard v South Eastern Electricity Board (at 572); Ridehaigh (at 229); (f) Where a legal practitioner's ability to rebut the complaint is hampered by the duty of confidentiality to the client he or she should be given the benefit of the doubt: Orchard v South Eastern Electricity Board (at 572); Ridehaigh (at 229); in such circumstances '[t]he court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in ail the circumstances fair to do so': Medcalf (at [23] per Lord Bingham); (g) The procedure to be followed in determining applications for wasted costs must be fair and 'as simple and summary as fairness permits...[h]earings should be measured in hours, and not in days or weeks... Judges ... must be astute to control what threatens to become a new and costly form of satellite litigation'; Ridehaigh (at 238 - 239); Harley v McDonald [2001] UKPC 18; [2001] 2 AC 678 at 703 [50]; Medcalf (at [24]). Section 99 Civil Procedure Act 18. In Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477 at [12], McDougall J, while noting that the general law provided valuable guidance as to the exercise of the discretion to award costs against a legal practitioner, held that the discretion must be exercised by reference to the statutory formulation of the power. His Honour remarked: 'Further, and more generally, it is necessary to bear in mind that the power to order costs against a legal practitioner is that now found in s 99 of the Civil Procedure Act, and to be exercised in accordance with the terms of that section. There is a danger in substituting analyses of, or glosses upon, the section for the language employed in it.' 19. The central concepts in s 99(1) namely 'neglect', 'incompetence', 'misconduct', 'improperly' or 'without reasonable cause' are not defined in the section or otherwise in the Civil Procedure Act. 20. The court's power to make a costs order against a legal practitioner pursuant to s 99 was considered by Sully J in Ideal Waterproofing Pty Ltd v Buildcorp Australia Pty Ltd [2006] NSWSC 155. His Honour concluded at [17] that s 99 should be applied consistently with the principles stated in Ridehaigh v Horsefield [1994] Ch 205. This approach was subsequently supported by Wlndeyer J in Karwal v Skrzypczak [2007] NSWSC 931 at [9]: McDougall J in Whyked Pty Ltd v Yahoo!7 Pty Ltd [2008] NSWSC 477 at [17]- [19] and Bryson AJ in European Hire Cars Pty Ltd v Beilby Poulden Costello [2009] NSWSC 526 at [59]. 21. Ridehaigh (above) concerned aspects of the proper construction and application of s 51(6) and (7) of the English Supreme Court Act 1981 (UK), provisions which generally correspond with the terms of s 99 of the Civil Procedure Act. The judgment of Bingham JR, Rose LJ and Waite LJ in Ridehaigh is particularly useful because of the consideration given to the meaning of 'improper', 'unreasonable' and 'negligent' in respect to the jurisdiction to award costs against legal practitioners. Their Lordships said at 223-233: 'Improper' means what it has been understood to mean in this context for at least half a century. The adjective covers, but is not confined to, conduct which would ordinarily be held to justify disbarment, striking off, suspension from practice or other serious professional penalty. It covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code. 'Unreasonable' also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable. The term 'negligent' was the most controversial of the three. It was argued that the Act of 1990, in this context as in others, used 'negligent' as a term of art involving the well known ingredients of duty, breach, causation and damage. Therefore, it was said, conduct cannot be regarded as negligent unless it involves an actionable breach of the legal representative's duty to his own client, to whom alone a duty is owed. We reject this approach.... But for whatever importance it may have, we are clear that 'negligent' should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession. In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence; 'advice, acts or omissions in the course of their professional work which no member of the profession who was reasonably well-informed and competent would have given or done or omitted to do'; an error 'such as no reasonably well-informed and competent member of that profession could have made': see Saif Ali v. Sydney Mitchell & Co. [19801 A.C. 198,218, 220, per Lord Diplock. We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended." 22. The proposition that the jurisdiction is to be exercised with caution and sparingly is not contentious. Indeed it is the first principle referred to by McColl JA in [92] of Lemoto. The principle was held to be applicable to the s 99 jurisdiction in Kelly v Jowett [2009] NSWCA 278 at [60]. Also, in Whyked Pty Ltd McDougall J said at [184]: 'I do not think the exercise of the power given by s 99 of the Civil Procedure Act should be undertaken in such a way as to deter legal practitioners from advancing difficult cases, or from accepting instructions from impecunious clients. As a matter of general policy, someone with a case that is not manifestly hopeless should not be denied the opportunity to litigate it'. 23. However, there does not need to be ''serious dereliction" for s 99 to apply: see Windeyer J in Karwal, McDougall J in Whyked Pty Ltd and Barret J in Treadwell v Hickey [2010] NSWSC 1119 at [36], As stated above, the statutory formulation must be adhered to. It is for that reason that any 'test of serious dereliction' is irrelevant when considering exercising the statutory jurisdiction."

Particulars of the claim under Section 99

1. By letter dated 24 July 2019 particulars were sought from the defendant of the basis for the claim, so as to give Mr Cameron a sufficient opportunity of answering it. The response was contained in a letter from the solicitors for the defendant dated 31 July 2019. That letter referred to the procedural background and said that "the grounds relied on by the defendant are plain". Those grounds were expressed as follows: "Put simply, the hearing that was otherwise scheduled for 26 February 2018 was vacated as a result of Mr Cameron's conduct of the proceedings on the plaintiff's behalf in the lead-up to the hearing. Such conduct is referred to in the affidavits of Ms Millington sworn 22 February 2018, Mr Cameron dated 22 February 2018 and the transcripts of the mentions before his Honour Judge Letherbarrow dated 21 February 2018 and 23 February 2018. Apart from anything else, and at the risk of stating the obvious, the various trial preparations referred to by Mr Cameron both in his affidavit and on transcript ought, on any view, have been undertaken much earlier than they were."
2. It is to be noted that these particulars did not contain an allegation that Mr Cameron had commenced or maintained the proceedings when he did not have a basis for a belief in their reasonable prospects of success.

Consideration

1. Counsel for the defendant submitted that Mr Cameron should have checked the availability of witnesses before the matter was set down for trial. He pointed out that Mr Cameron did not know that these witnesses were not going to co-operate. He further submitted that a case listed for February was only being prepared in January, when conferences were being arranged with key witnesses and contemplation was being given to the issue of the subpoenas to those witnesses. Counsel for the plaintiff also made submissions to the effect that Mr Cameron was guilty of running a case which did not have reasonable prospects of success.
2. Counsel for Mr Cameron disputed this last submission. He pointed out that the particulars did not extend to such an allegation, and that since Mr Cameron had signed statements from two witnesses, which supported the plaintiff's version of the accident, the plaintiff's case had reasonable prospects of success. Neither of those witnesses had changed the account given in those signed statements. Counsel for the defendant also pointed out that Mr Jye Richardson was the son of the plaintiff, and that a solicitor would not normally think that there would be a problem in getting the plaintiff's son to come to court or to co-operate in attending a conference. He submitted that there was no evidence of the usual practice by a plaintiff's solicitor. Mr Cameron had signed statements after having appointed an investigator, which suggested responsible conduct, rather than misconduct.
3. Counsel for the defendant submitted that even if steps should have been taken earlier than the January attempt to arrange a conference with senior counsel, that fell far short of serious misconduct. Counsel for the defendant submitted that the defendant had not proved causation. There was no proof as to when things should have been done, and if they had been done earlier whether the outcome would have been different. He also pointed out that the defendant had its own problems in getting ready for trial, in that it needed an order for telephone evidence, which was only being sought on the Friday before the trial was due to commence. The defendant's own evidence was not complete.
4. I find that the costs thrown away by reason of vacation of the hearing date were caused, not by any act of Mr Cameron, but rather were caused by: 1. the plaintiff not co-operating in coming to a conference with senior counsel a month before the hearing; 2. the plaintiff not being able to tell Mr Cameron the contact details for his own son Jye; 3. Jye Abbatangelo evading contact with Mr Cameron; 4. Justin Brown evading contact with Mr Cameron.
5. While steps could have been taken earlier than January to prepare for the February trial, the circumstances were unusual. Firstly, one would expect a litigant with a worthwhile case to make arrangements, or change arrangements, to come to a conference with senior counsel, who was willing to fly to Melbourne. Secondly, one would expect that there would be no problem in getting the plaintiff's son to court and to securing his co-operation in giving evidence in support of his father, without the need for a subpoena. Thirdly, Mr Cameron held signed statements from two witnesses who supported the plaintiff's case, and he knew that two other witnesses did not harm the plaintiff's case.
6. In the particular circumstances of this case, I find that what Mr Cameron did was not neglect, incompetence or misconduct let alone serious neglect, incompetence or misconduct, as required by s 99(1)(a) of the Civil Procedure Act 2005. His conduct was not "improper" in the sense of being professional misconduct, or unsatisfactory professional conduct. Further, in the absence of evidence of proper professional practice, my own view is that his conduct was not improper. Mr Cameron's conduct was not "unreasonable" as it was not conduct which was vexatious, or designed to harass the other side, or conduct for which there was no proper motive. I accept his explanation of the preparation which he did for the case. What Mr Cameron did was both reasonable and justified. Finally, the conduct of Mr Cameron was not "negligent", because in my view there was no failure to act with the competence reasonably to be expected of members of the legal profession.
7. Nor was Mr Cameron responsible for the circumstances in which the costs arising from the vacation of the hearing date were incurred. Those costs were not incurred improperly, or without reasonable cause, in circumstances for which Mr Cameron was responsible, as required by s 99(1)(b) of the Civil Procedure Act 2005. My reasons are set out in paragraph 42 above.
8. I find that the defendant has not made out a case for the costs to be paid personally by Mr Cameron.

Orders

1. My orders are: 1. Dismiss the defendant's Notice of Motion filed on 27 February 2018. 2. Order the defendant to pay the costs of the respondent Donald Stuart Cameron of the Notice of Motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 August 2019