Green v Legal Profession Admission Board

Consideration

1. Ms Maltabarow's unchallenged evidence is that the Board has incurred $48,382 in costs, which comprised $32,102 for the Crown Solicitor's Office's professional fees (which did not include GST because of an arrangement between the Crown Solicitor's Office and the Board) and $16,280 in counsel's fees.
2. In calculating the Board's claim for costs against the plaintiff, Ms Maltabarow deposed that she deducted $4,815 from the Crown Solicitor's fees and $3,440 from counsel's fees, which were amounts that related to the proper construction of ss 16-20 of the Legal Profession Uniform Law (NSW) (Uniform Law). She did so on the basis that the plaintiff did not raise the issue which was, accordingly, not in dispute in the proceedings. She also discounted the balance of the Crown Solicitor's fees ($27,287) by 20% to arrive at a figure of $21,830. Ms Maltabarow did not discount the balance of counsel's fees, which, accordingly, resulted in an amount of $12,840. The total of the two figures is $34,670. Ms Maltabarow discounted this amount by a further 28% to arrive at the claim for fixed costs of $25,000.
3. Ms Maltabarow deposed as to the hourly charge-out rates for paralegals, Senior/Principal Solicitors and the Assistant Crown Solicitor for the period up to 30 June 2020 and thereafter. The hourly rates for paralegals are $150 up to 30 June 2020 and $155 thereafter; for Senior/Principal Solicitors are $384 up to 30 June 2020 and $397 thereafter; and for the Assistant Crown Solicitor are $480 up to 30 June 2020 and $496 thereafter. Counsel was engaged at the rate of $160 per hour up to a maximum of $1,200 per day (equivalent to 7½ hours).
4. The hourly rates charged by the Crown Solicitor's Office for its own staff would appear to be reasonable. The hourly rates at which the Crown Solicitor's Office engages counsel are significantly below market rate and do not adequately represent the value of services provided by counsel, particularly counsel as skilled as Ms Pham. This conclusion is fortified by the relative parity between the hourly rate paid to counsel and the hourly rate for a paralegal. I assume that this was the reason why Ms Pham's fees were not discounted for the purposes of the application, except for the deduction referred to above which was made to take account of matters not in dispute.
5. I accept Ms Maltabarow's evidence that the conduct of the plaintiff substantially increased the costs of the proceedings. The number of directions hearings referred to above was occasioned by the plaintiff's delay in clarifying the nature of the relief he sought and in filing the amended summons, which was foreshadowed at the first return date. Further, the plaintiff persisted in a claim for relief pursuant to s 69 of the Supreme Court Act 1970 (NSW), although a claim for such relief was otiose, having regard to the nature of an appeal (being a de novo appeal) under s 28 of the Uniform Law: see the principal judgment at [84]. The claim for damages was not maintainable: see the principal judgment at [110]-[116].
6. In addition, the Board attended to filing and serving the notice required by s 78B of the Judiciary Act, as the plaintiff, being self-represented, was insufficiently familiar with the requirements of the section to do so effectively. I infer that the Board did so in order to advance the administration of justice and fulfil its role as a model litigant. This work was necessary, having regard to the way the plaintiff put his case, although there was, as I found in [78] of the principal judgment, no real or substantial constitutional point.
7. It was the plaintiff's responsibility to prepare the court books. However, it is not uncommon, where one party is impecunious or self-represented, for the other party to prepare court books in order to advance the hearing and assist the court. In the present case the Board incurred the costs of preparing court books for the substantive hearing in order that the matter could be heard efficiently within the allocated time of one day.
8. The Board has been wholly successful in the proceedings. It is entitled to an order that the plaintiff pay its costs of the proceedings in accordance with the general rule that costs follow the event: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.
9. The Court of Appeal in Bechara (t/as Bechara and Co) v Bates [2016] NSWCA 294, summarised the relevant principles applicable to the making of a gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act as follows: "[12] The power to award a lump-sum should only be exercised when the Court considers that it can do so fairly between the parties and where an appropriate sum can be determined from the available materials: Harrison v Schipp (2002) 54 NSWLR 738; [2002] NSWCA 213 at 742-723 [21]-[22]; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 123. [13] The power may also be exercised where a party's conduct has unnecessarily contributed to the costs of the proceedings, especially where the costs incurred have been disproportionate to the result of the proceedings: Hamod v New South Wales [2011] NSWCA 375 at [818] per Beazley JA (Giles and Whealy JJA agreeing). [14] A 'broad brush' approach is appropriate. To require the same or similar level of detail as in a formal costs assessment would defeat the purpose of the lump sum order: Auspine Ltd v Australian Newsprint Mills Ltd (1999) 93 FCR 1; [1999] FCA 673 at 5 [16]; Penson v Titan National Pty Ltd (No 3) [2015] NSWCA 121 at [7]. [15] The courts have typically applied a discount in assessing costs on a gross sum basis: Hamod v New South Wales at [814]. ... [18] The Court is satisfied that the total costs of this litigation will become even more disproportionate if the costs are referred for assessment and a lump-sum costs order is not made. The reasoning in Hamod v New South Wales at [816]-[817] is apposite."
10. The allowances and discounts made by the Crown Solicitor's Office with respect to its fees and the level of detail provided in Ms Maltabarow's affidavit are sufficient to indicate that the sum claimed is fair to the plaintiff. For the reasons given above, I am satisfied that the plaintiff's conduct has unnecessarily and substantially added to the costs of the proceedings. I am also concerned that, if an order under s 98(4)(c) is not made, the costs of the assessment will exacerbate the disproportionality between the costs of the proceedings and the issues in dispute.
11. For the reasons set out above, I am persuaded that the Board's application for an order under s 98(4)(c) of the Civil Procedure Act ought be granted.

Orders

1. For the reasons given above, I make the following orders: 1. Order the plaintiff to pay the defendant's costs of the proceedings. 2. In respect of the costs payable pursuant to order (1) above, order the plaintiff, pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW), to pay to the defendant the amount of $25,000 within 28 days of the date of this order.

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