Aldag v Eistis

Aldag v Eistis - [2008] NSWDC 157 - NSWDC 2008 case summary — Zoe

Parties

Applicant/Plaintiff:

Aldag

Respondent/Defendant:

Eistis

Legislation Cited (4)

Civil Liability Act 2002(NSW)

Civil Procedure Act 2005(NSW)

Legal Profession Act 1987(NSW)

Legal Profession Act 2004(NSW)

Cases Cited (33)

Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; (2001) 47 ATR 1 Briginshaw v Briginshaw (1938) 60 CLR 336 Bryan v Maloney (1995) 182 CLR 609 De Sousa v Minister for Immigration (1993) 41 FCR 544 Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 383 Eurobodalla Shire Council v Wells [2006] NSWCA 5 Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134 Fowler, Corbett and Jessop t/as Haydon Fowler Corbett Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178 General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416 Guiney v Australand Holdings Ltd & Ors; Castlehaven Sales No 2 (trading as Castlehaven Realtors & Ors v Guiney & Ors [2008] NSWCA 44 Harley v McDonald [2001] UKPC 18; [2001] 2 AC 678 Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Ltd [2006] NSWSC 155 Jones v Bartlett (2000) 205 CLR 166 Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18; (2004) 133 FCR 582 CASES CITED: Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 Levick v Deputy Commissioner of Taxation; cf Steindl Nominees P/L v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683 Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No 3) [2000] SASC 286 Myers v Elman [1940] AC 282; [1939] 4 All ER 484; (1939) 109 LJKB 105; (1939) 162 LT 113; (1939) 56 TLR 177 New South Wales Department of Housing v Hume (2007) Aust Torts Reports 81-879 Orchard v South Eastern Electricity Board [1987] QB 565; [1987] 1 All ER 95; [1987] 2 WLR 102 Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 RDCW Diamond (Pty) Limited v Da Gloria [2007] NSWSC 1325 Re Bendeich (1994) 126 ALR 643 Ridehalgh v Horsefield [1994] Ch 205 Voli v Inglewood Shire Council (1963) 110 CLR 74 White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 Whyked Pty Limited v Yahoo!7 Pty Limited [2008] NSWSC 477 Woolcock Street Investments Pty Ltd v CDG Pty Ltd and Anor (2004) 216 CLR 515 Woollahra Municipal Council v Sved (1996) 40 NSWLR 101

In Lemoto v Able Technical Pty Ltd [2005] NSWCA 153 McColl JA at [92(g)] stresses that the procedure to be followed in determining applications for wasted costs must be as fair, simple and summary as fairness permits and that hearings:

This relates not only to the "sparing exercise of the jurisdiction" (at [93]) but also to the way in which such hearings are heard by the court. This point has been made even more strongly by Basten JA (with whom McColl JA and Young CJ in Eq agreed) in Fowler, Corbett and Jessop t/as Haydon Fowler Corbett Jessop v Toro Constructions Pty Ltd [2008] NSWCA 178 at [19]. This decision was handed down on the same day I heard this application, and I drew it to the attention of the parties after the hearing, by email, and have received further submissions from the applicant in reply. I have endeavoured to deal with this application in accordance with McColl JA's proposed time frame by providing this judgment as quickly as possible to the parties, although this may result in some informality in its contents.

The onus of proof lies on the applicant ( Fowler at [22]) and bearing in mind the grave consequences of a finding, which is akin to unprofessional conduct, the burden of proof should be to the Briginshaw standard ( Briginshaw v Briginshaw (1938) 60 CLR 336): Ideal Waterproofing Pty Limited v Buildcorp Australia Pty Ltd [2006] NSWSC 155 at [25]).

(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": Ridehalgh (at 229), Re Bendeich (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) 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: Ridehalgh (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) 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;

(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": Ridehalgh (at 238 - 239); Harley v McDonald [2001] UKPC 18; [2001] 2 AC 678 at 703 [50]; Medcalf (at [24])."

[141] An allied view is that the administration of justice may be better served by a party being legally represented notwithstanding that the party has a hopeless case. In Kumar v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 18; (2004) 133 FCR 582 at 587 [15], Mansfield J referred to 'the public interest for the client to be represented' even when a legal practitioner had advised that proceedings had no reasonable prospects of success on the basis that '[p]roceedings, even hopeless proceedings, are likely to be conducted more efficiently by a solicitor for a party than by a litigant in person'.

In RDCW Diamond (Pty) Limited v Da Gloria [2007] NSWSC 1325 at [20]-[22] Rothman J noted:

These provisions were also considered by McDougall J in Whyked Pty Limited v Yahoo!7 Pty Limited [2008] NSWSC 477, where his Honour explained the policy as follows:

In Eurobodalla Shire Council v Wells [2006] NSWCA 5 Ipp JA made a costs order against practitioners for the costs of a hopeless appeal where "the evidence adduced at trial did not establish necessary elements of Mrs Aldridge's cause of action" (at [26]).

[2002] QCA 416

[2003] QCA 157

[2000] SASC 286

(1938) 60 CLR 336

(1995) 182 CLR 609

(1993) 41 FCR 544

(1999) 168 ALR 383

(1999) 87 FCR 134

(1964) 112 CLR 125

(2000) 205 CLR 166

(2004) 133 FCR 582

(2000) 102 FCR 155

(1994) 126 ALR 643

(1963) 110 CLR 74

(1998) 156 ALR 169

(2004) 216 CLR 515

(1996) 40 NSWLR 101

(1994) 53 FCR 422

Cited By (1)

Aldag v Eistis

At a glance

Court

Decision date

Before

Source

Judgment (36 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (33)

Cited By (1)