Giuseppe Portale v Law Society of New South Wales

LEGISLATION CITED: Ritchie's Supreme Court Rules part 52 rule 11

Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333 Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 259 CASES CITED: Monie v Commonwealth of Australia (No. 2) [2008] NSWCA 15 Rockdale City Council v Micro Developments Pty Ltd [2008] NSWCA 128 Waters v PC Henderson Australia Pty Ltd NSWCA, 6 July 1994, unreported

PARTIES: Giuseppe Portale Law Society of New South Wales

COUNSEL: Mr Portale in person Ms Webster for the Law Society of NSW

SOLICITORS: Mr Pierotti for the Law Society of NSW

Mr Giuseppe Portale challenged an assessment of costs made against him. The costs were awarded against him and in favour of the Law Society of New South Wales in proceedings in the Administrative Decisions Tribunal.

In a summons filed on 9 June 2009 Mr Portale appealed from the assessment of costs and its review. The appeal was to the District Court and was heard by me. By agreement between the parties grounds 1 and 2 of Mr Portale's appeal were determined separately in a judgment delivered by me on 11 February 2010. In a judgment delivered on 26 February 2010 I determined grounds 3 through to 11 of the appeal grounds referred to in Mr Portale's summons.

Both the Law Society represented to by Ms Webster of counsel and Mr Portale who represents himself are seeking costs of the proceedings before me. The proceedings before me comprised the summons, which I have referred to. In addition they comprised a notice of motion filed by the Law Society on 14 December 2009. That notice of motion sought an order setting aside para 2 in a notice to produce which had been served by Mr Portale on the Law Society.

I have been assisted by both Ms Webster and Mr Portale in comprehensive written submissions filed by both of them on the costs orders which I should make with respect to the proceedings before me.

One of Mr Portale's arguments was that the judgment I delivered on 11 February 2010 was an interlocutory judgment and the Law Society did not seek its costs at the time. He says the matter is now closed. In that judgment I determined a challenge by Mr Portale to the law which was applicable to the assessment of costs against him in the Administrative Decisions Tribunal, as well as the applicability of a basis of assessment of costs referred to conveniently by reference to the authority Commonwealth Bank of Australia v Hattersley (2001) 51 NSWLR 333. That point was argued thoroughly by both sides and Mr Portale lost.

It was not in my opinion an interlocutory judgment. It was a final judgment disposing of certain grounds of his appeal. It did not dispose of the proceedings because there were the balance of the grounds to be determined. There was no prohibition from the Law Society waiting until the proceedings were ultimately determined for it to seek its costs.

So far as the balance of the proceedings were concerned, in my judgment delivered on 26 February 2010 I rejected in their entirety grounds 4 through to 11 inclusive of the grounds of appeal referred to by Mr Portale in his summons. As to ground 3, I rejected a number of arguments addressed to certain aspects of that ground. I upheld part of ground 3 in a way which is referred to over [30] - [33] inclusive of my judgment on 26 February 2010.

In other words Mr Portale was mostly unsuccessful, but partly successful in his arguments. Ms Webster referred me to authority on the question of parties being partly successful. One of those authorities was Monie v Commonwealth of Australia (No. 2) [2008] NSWCA 15 which in turn referred to a judgment of Mahoney JA as his Honour then was in the Court of Appeal in Waters v PC Henderson Australia Pty Limited NSWCA, 6 July 1994, unreported. In that case - referred to with approval by Campbell JA in Monie with whom Mason P and Beazley JA relevantly agreed - Mahoney JA obviously approved the annotation which was apparently contained in Ritchie's Supreme Court Rules to then Part 52, Rule 11. Mahoney JA extracted the following passage: "Where the proceedings involve multiple issues the application of the rule that costs follow the event may involve hardship where a party succeeds on some issues and yet fails on others. Particularly is this so where, for example, a defendant succeeds on issues that occupied the bulk of the time taken by the proceedings. Nevertheless unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed." 9. Ms Webster also referred to the judgment of the Court of Appeal in Rockdale City Council v Micro Developments Pty Limited [2008] NSWCA 128, where Giles JA, with whom Hodgson and Campbell JJA agreed, said at [115] that it was "well established that a successful claimant will ordinarily receive full costs, although failure on a clearly dominant issue or clearly separable issues may bring adjustment to the costs." Giles JA referred to a passage in an authority called Dodds Family Investments Pty Ltd v Lane Industries Pty Limited [1993] FCA 259. In a passage quoted, obviously approvingly by his Honour, the Court said: " Where there is a mixed outcome in proceedings the question of apportionment of costs is very much a matter for the discretion of the trial judge. The exercise of such a discretion will often depend upon matters of impression and evaluation ." 10. Mr Portale argued that the dominance or separability of any of the grounds of appeal in this case "cannot be adequately or properly differentiated, as each of the grounds of appeal had an intertwining and equal importance in the appeal and took on varying levels and degrees of importance as the appeal progressed."

Mr Portale referred to efforts at settling these proceedings and tendered an exhibit this morning, which became Exhibit B, of an offer made by him to pay counsel's fees in the ADT. This offer was rejected by the Law Society. That offer was made in February this year. Many of the issues in this appeal centred on costs not related to counsel's fees.

Mr Portale also referred to the number of pages in the written submissions devoted to particular grounds of the appeal. However a good part of those pages comprised quotations from the authorities. I do not diminish that, because in fact it was after reviewing the authorities that I determined that Mr Portale should be successful in regards to part of his proceedings.

Nevertheless when I review my judgment of 26 February 2010, the overwhelming impression is that Mr Portale has failed on all grounds except one, and that was ground 3. He had already failed on grounds 1 and 2 in the earlier judgment. So far as ground 3 was concerned, he succeeded on an aspect of that ground. Arguments related to other aspects of that ground were rejected by me in [25] - [28] inclusive of that judgment.

To my mind the issues upon which he was successful were not clearly dominant. Although in some respects arguably they could be separate, they were no more separate than other grounds of appeal advanced by him.

I regard it as appropriate in the exercise of my discretion to award the costs of the summons proceedings which were the subject of my judgments both on 11 February 2010 and 26 February 2010 to the Law Society.

Insofar as the notice of motion was concerned, the Law Society through Ms Webster seeks an order that the notice of motion, or at least ground 2, be refused because it sought relief which is no longer relevant because of the determination I made in my judgment of 11 February 2010. What she says is right. Mr Portale argues that in fact the notice of motion has not been determined and she should not be permitted to reopen her case in order to seek her costs. Nevertheless I do not regard the proceedings in the notice of motion as yet determined. To a real extent the real issues in this case were determined in stages and I do not regard it as inappropriate to make certain orders at the close of the proceedings once all the substantial issues have been resolved.

Although in my opinion it was not unreasonable for Mr Portale - before the issue was settled by my judgment of 11 February 2010 - to seek the documents which he did in para 2 of his notice to produce, that is no longer any relief which is relevant to these proceedings. It was in effect determined by that earlier judgment and I determine the notice of motion by granting the orders sought in para 1 with costs.

Accordingly the orders which I make are these. On the notice of motion filed by the Law Society on 14 December 2009, I grant order 1 and order 3. On the summons filed 9 June 2009, I order the plaintiff to pay the defendant's costs.

WEBSTER: Just one note I'm sure your Honour would pick up revising the judgment.

WEBSTER: Your Honour referred to the judgment of the Court of Appeal in Rockdale City Council v Micro and referred to para 55 of Justice Giles' judgment. It was 115.

WEBSTER: And the Dodds judgment which is referred to must be 1993. I would have thought FCA for Federal Court of Australia and 26 Intellectual Property Reports I'd expect.

HIS HONOUR: Thank you, I'll do that on revising that judgment. In my judgment of 26 February 2010 I noted in re-reading it that in para 30, lines 3 and 4 I say "in paragraph 36 he said that claims". That should read "in 37". It's at the commencement of line 4 of para 30 and I will correct that before publishing it. MFIs 1 to 9 will go on the court file, as will the summons and notice of motion.

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