Kelly v Hogan

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

2592/03 TIMOTHY DENIS KELLY & ANOR V PAUL MARTIN HOGAN & ORS JUDGMENT 1 HIS HONOUR: The question before me for decision is whether to vacate the hearing dates for the final hearing of this proceeding, or in the alternative, to make orders for the determination of separate questions under Part 31 of the Supreme Court Rules. 2 The plaintiffs are solicitors practising under the name of "TD Kelly & Co". The second plaintiff joined the first plaintiff as a partner in the firm, after having been employed as an associate, on 31 January 2002. At relevant times they employed the second defendant, Ms Gould, as a solicitor. The firm acted for the first defendant, Mr Hogan, in a common law proceeding number 20164 of 1998, for damages for personal injury brought by Mr Hogan against the third defendants ("the Church"). 3 Ms Gould introduced Mr Hogan to TD Kelly & Co in September 1997, when Mr Hogan gave the firm instructions to commence the common law proceeding. Mr Hogan claims that he was never provided with a costs agreement or estimate of costs by the firm. Mr Kelly has given evidence that his firm's policy is not to ask clients to sign costs agreements, and to rely on justifying any bill as being "fair and reasonable" within ss 208A and 208B of the Legal Profession Act 1987 (NSW), if requested to do so. 4 Ms Gould had carriage of the matter for her employers. Between September 1997 and the time of the re-hearing, Mr Hogan and Ms Gould married. 5 The common law proceeding was initially brought in the District Court of New South Wales, and was transferred to the Common Law Division of this Court. Mr Hogan succeeded at first instance, obtaining a verdict in his favour in the sum of $2.96 million. The Church paid him approximately $500,000 out of that verdict. He says that Mr Kelly gave him a statement dated 5 April 2001 (which is in evidence before me) rendering costs of $60,000, deducting that amount and listed disbursements, leaving a balance paid to Mr Hogan of $218,076.04. Mr Hogan says he reluctantly banked that amount but kept it separate from his savings in case he might later be required to repay it. He contends that TD Kelly & Co had no authority to receive the payment from the Church or to use part of it to pay expenses. 6 There was then an appeal to the Court of Appeal, where the verdict was set aside and a re-hearing was ordered. The Church took steps to recover the $500,000 it had paid, and received reimbursement of the part of that amount that had been paid to Mr Hogan. There was an application for leave to appeal to the High Court of Australia, which dismissed the application. There was then a re-hearing in the Common Law Division, as a result of which Mr Hogan received a verdict of $1.2 million in his favour. The Church paid about $922,000 into court, an amount apparently calculated by reference to the verdict in the second trial less the amount outstanding to the Church in respect of its payment of part of the verdict in the first trial. 7 Mr Hogan obtained a party/party costs order against the Church in respect of the costs of the first trial. He was then ordered to pay the Church's party/party costs in respect of the appeal to the Court of Appeal. He was also ordered to pay the Church's party/party costs in respect of his unsuccessful application for special leave to appeal to the High Court of Australia. He obtained a costs order on an indemnity basis against the Church in respect of the second trial. 8 Mr Hogan claims that Mr Kelly failed to follow his instructions in various respects. In particular, he says that he instructed Mr Kelly not to brief in the appeal the senior and junior counsel who had been retained at the first trial, but Mr Kelly briefed them contrary to instructions; and he says that Mr Kelly caused the application for leave to appeal to the High Court to be made without telling him what appeal point would be asserted, although Mr Hogan asked Mr Kelly to do so on several occasions. Mr Hogan wishes to put these contentions forward to resist payment of the costs of TD Kelly & Co for the appeal and the application for special leave. Mr Kelly denies that he ever acted without or contrary to instructions. 9 TD Kelly & Co alleges that on 24 April 2003, the Church caused a cheque to be couriered to their offices, made payable to Mr Hogan, for over $922,000. The cheque represented the Church's calculation of the amount to which Mr Hogan was entitled pursuant to the judgment in the common law proceeding. They allege that on the same day Ms Gould uplifted the cheque from their offices, without authorisation. Subsequently, they allege, Mr Hogan deposited the cheque into a bank account in his name, or in which he had an interest, and then the Church stopped payment on the cheque. They allege that Ms Gould removed some of their files relating to the common law proceeding, although the files were later returned. 10 On 1 May 2003 TD Kelly & Co commenced the present proceeding, in which they seek to establish and assert a lien for their unpaid legal fees and disbursements over moneys to which Mr Hogan is entitled under the verdict and the costs order. The verdict money of about $922,000 was paid into court by the Church. Pursuant to orders of the Court made on 19 May 2003, $506,221.32 was paid out to meet expenses connected with the second trial, including counsel's fees. The remainder of the fund, $422,882.87, was placed in a controlled moneys account in the name of the solicitors acting for TD Kelly & Co in the present proceeding, and that amount remains in the account. The Court's orders provide that no funds may be withdrawn from the account without the written consent of the solicitors for TD Kelly & Co and the solicitors for Mr Hogan, or further order of the Court. The orders say that the funds are held without prejudice to claims by any party that the fund is or is not affected by a lien or charge. 11 On 11 August 2003 the Court noted an agreement between TD Kelly & Co and the Church that an existing restraint upon the Church making any payment of proceeds of the common law judgment to Mr Hogan or Ms Gould would extend to any payment of costs to Mr Hogan in the common law proceeding. 12 I turn to the evidence concerning attempts by TD Kelly & Co to assess a bill of costs against Mr Hogan. 13 When the present proceeding was commence in May 2003, no bill of costs had been served on Mr Hogan, and no Application for Assessment had been filed. On 29 July 2003 Mr Hogan's solicitor wrote to the solicitors for TD Kelly & Co complaining about their delay in presenting a bill of costs for assessment, and urging them to take steps to resolve the question of costs amicably and expeditiously. 14 TD Kelly & Co prepared a bill of costs for $1,309,561.22, out of which they claim that $590,370.38 remains owing by Mr Hogan after credit is allowed for other payments. They also seek to recover the costs of the present proceeding. Given that about $423,000 is currently held in the controlled moneys account, they are "unsecured" for about $167,000, plus the costs of the present proceeding (if they obtain a costs order) - although they have some negative protection in respect of that amount, arising out of the Church's undertaking. 15 They served their original bill of costs on Mr Hogan and his solicitor on 1 August 2003. Subsequently they discovered that some disbursements had been omitted from the document, and that it contained some arithmetical errors, principally affecting Part B of the bill. They prepared a corrected bill of costs. They filed an Application for Assessment of the corrected bill of costs in this Court on 19 September 2003. Mr Hogan's solicitor received the corrected bill of costs from the Court on 8 October 2003. 16 Also on 8 October 2003, the solicitors for TD Kelly & Co wrote to Mr Hogan's solicitor explaining that the bill of costs served on 1 August 2003 had been amended. The letter enclosed a complete amended Part B of the bill with each amendment highlighted, and a schedule indicating the old and new pages. On 3 November 2003 Mr Hogan's solicitor wrote to the Costs Assessment section of the Court, seeking clarification as to the identity of the bill that was to be assessed, and complaining that amendments and addenda wasted time and caused confusion. He therefore sought service of a final bill without errors or amendments, and said that his client's objections would not be prepared until such a bill was served. The solicitors for TD Kelly & Co responded on 11 November 2003 purporting to clarify the situation and complaining that Mr Hogan's solicitor was, in effect, seeking an extension of time to commence his consideration of the bill. 17 The Costs Assessment section of the Court assigned the matter to a costs assessor for assessment. On 11 December 2003 Mr Hogan's solicitor wrote to the costs assessor seeking an extension of time for his client to file extensive objections and submissions, and complaining that an integrated and complete bill of costs had not been served. 18 The costs assessor wrote to the parties on 5 January 2004. He pointed out that under the Legal Profession Act he was required to confirm as payable any costs that were not disputed. He noted that he had received no materials from Mr Hogan. He said that he found the Application for Assessment of little confusing, and invited the solicitors for TD Kelly & Co to compile a single composite document by 21 January 2004. He gave Mr Hogan an extension of time to 21 February 2004 to provide written objections and submissions. 19 Mr Hogan changed his solicitor as from 5 February 2004. His new solicitor wrote to the costs assessor on 6 February 2004 saying that no composite bill had been served, as previously directed by the costs assessor. He said that objections to the bill of costs were in course of preparation and could be finalised once a clarifying document had been received. The costs assessor wrote to the parties on 10 February 2004 directing that an amended Application be served within 14 days if it had not already been served. He said that until this was done, he would not been a position to proceed with the assessment. Mr Hogan's solicitor wrote to the costs assessor on 11 February 2004 seeking confirmation that he would be allowed a month from the date of service of the amended Application for finalising his objections. 20 On 13 February 2004 the solicitors for TD Kelly & Co wrote to the costs assessor saying that his client sought an assessment of the bill of costs that had been filed on 19 September 2003, and no other. They said that Mr Hogan had had that document in his possession since 8 October 2003, and they invited the costs assessor to proceed to assessment. 21 The costs assessor responded on 18 February 2004 saying he was not in a position to require any particular format for presentation of the bill of costs, noting that TD Kelly & Co were insisting on assessment of the application filed on 19 September 2003. He said he was constrained to follow that course and that Mr Hogan would be required to lodge his objections and submissions in respect of that bill within 28 days. 22 Mr Hogan's solicitor wrote to the costs assessor on 25 February 2004. The letter pointed out that the Application filed on 19 September said that the bill of costs to be assessed had been served on 1 August 2003, but the document served on 1 August was different from the bill contained in the Application. A table in the letter highlighted differences in the two bills. The amounts claimed in Sections B, D & E of the later bill were greater than the amounts in those sections of the earlier bill by approximately $55,000, $2,400 and $57,000 respectively. The letter drew attention to s 201(2) of the Legal Profession Act, according to which an application for assessment may not been made unless at least 30 days has passed since the bill of costs was given, and claimed that TD Kelly & Co could not proceed with the application until it complied with that requirement. 23 On 3 March 2004 the costs assessor wrote to the parties, essentially agreeing with and amplifying the points made in the letter of 25 February. The letter expressed the costs assessor's preliminary view that TD Kelly & Co would be obliged to serve the bill of costs in its final form, and then at the appropriate time file a fresh Application for Assessment. The letter invited TD Kelly & Co to make a brief submission within 14 days, whereupon the costs assessor would determine whether he had jurisdiction to make an assessment and if so, whether his jurisdiction was confined to those components of the filed bill that had been served on 1 August. I am not aware whether TD Kelly & Co has made submissions with respect of the costs assessor's jurisdiction. The affidavit of Mr Louie dated 9 March 2004 implies that TD Kelly & Co still adheres to the views expressed on its behalf in the letter dated 13 February 2004. 24 On the face of the correspondence in evidence, it appears to me that the approach taken by the costs assessor is plainly right. For whatever reason, TD Kelly & Co and/or its legal advisers have mishandled the assessment process by making substantial changes to the bill of costs as served on Mr Hogan, and then making an application for assessment of the amended bill without ever properly serving it. That produced some confusion for Mr Hogan's legal adviser and also for the costs assessor. Having perused the papers in evidence, I regard it as quite unsurprising that they were confused by the information provided to them, and it was therefore reasonable for Mr Hogan's solicitor to demand, and for the costs assessor to require, a clear composite document. It was also correct for the costs assessor to conclude on the evidence that the strict entitlement of TD Kelly & Co to proceed to assessment would not arise until that step had been taken in accordance with the Act. 25 Mr Hogan has not yet rendered a bill of costs in assessable form to the Church. He complains that, apart from the absence of a comprehensible bill of costs from the firm, TD Kelly & Co have not yet given him access to their file, and without that access, it is impossible for him to prepare a bill for submission to the Church. 26 Late last year the Registrar fixed the proceeding for hearing before me on 31 March and 1 April 2004. When the case came before me for pre-trial directions in February 2004, counsel for Mr Hogan informed me that his client wished to contend that the hearing should be deferred until the assessment of costs have been completed. Counsel for TD Kelly & Co said his clients were opposed to vacation of the hearing dates. After further dialogue, counsel for TD Kelly & Co indicated that his client wished to amend their summons and file points of claim. I made directions accordingly. 27 By their amended summons filed on 10 March 2004, the plaintiffs seek the following orders, apart from costs: "1. A Declaration that, in the events which have happened, the Plaintiffs have a lien over the proceeds of any Judgment in the Common Law proceedings for unpaid legal fees and disbursements incurred in their professional capacity acting for the 1st Defendant in the Common Law proceedings." 1A. An Order that the 3rd Defendants (their servants, agents and/or representatives): a. Be restrained forthwith from paying to the 1st Defendant; or b. Alternatively pay into a controlled moneys account in their name and TD Kelly & Co's name; any moneys to which the 1st Defendant is entitled for his Judgment and costs in the Common Law proceedings (any payment from which is only to be made by consent of the parties or, failing which, Order of the Court) in an amount calculated as follows: i. $590,390.38 (being the total of TD Kelly & Co's Bill of Costs in assessable form; ii. Plus (if the Plaintiffs are successful in acquiring costs order against 1st and 2nd Defendant in these proceedings) the amount claimed by the Plaintiffs against the 1st and 2nd defendants for those costs; iii. Less the $422,051.83 currently held in the Rishworth Dodd & Co controlled moneys account; or such further or other calculations as this Honourable Court deems fit." "1B. Leave to any party to approach the Trial Judge and alternatively the Master with regard to any payment out of the fund referred to in paragraph 1A above." "2. Alternatively, an Order that the 3rd Defendants, their servants, agents or representatives, be restrained forthwith from making any payment of the proceeds of any Judgment in the Supreme Court Common Law Division Matter to the 1st and 2nd defendants." 28 The meaning of proposed orders 1, 1B and 2 is reasonably clear, but proposed order 1A is difficult to understand, because it rolls together several ideas. I take it to seek orders of two kinds, expressed as alternatives - namely an injunction to prevent the Church from paying certain money to Mr Hogan, and a mandatory order requiring the Church to pay certain money into a controlled moneys account. Both limbs of the proposed order seek to constrain the Church from paying any money to Mr Hogan in respect of his judgment and costs in the Common Law proceeding. Since the Church has already paid the net amount of the judgment into Court, an order with respect to payment of the judgment would seem to be pointless. But the Church has not yet paid Mr Hogan's costs, which have not been assessed, so there may be a point in making an order with respect to the costs claimed by Mr Hogan against the Church for the second trial. 29 The intention of the drafter seems to be to ensure that TD Kelly & Co's claim against Mr Hogan for costs has been adequately protected, in the event that the Church makes any payment in future to Mr Hogan. Proposed order 1A quantifies that claim by taking the sum claimed by TD Kelly & Co for costs in its bill of costs ($590,370.38), adding the amount of TD Kelly & Co's costs in the present proceeding, and then giving credit for the amount currently held in the controlled moneys account ($422,051.83, which, the drafter appears to assume, is available as "security" for TD Kelly & Co's costs). Draft order 1A seeks either that the Church be restrained from paying Mr Hogan the amount so quantified (so that, in effect, it would withhold that amount from any payment it made to Mr Hogan for his costs), or that the Church be required to pay the amount so quantified into a controlled moneys account from which withdrawals could be made only by consent of the parties or order of the Court. 30 At the pre-trial directions hearing counsel for Mr Hogan submitted that the hearing dates should be vacated and the proceeding should be stayed until the process of assessment of the costs payable by Mr Hogan to TD Kelly & Co has been completed. That application was strenuously resisted, and counsel for TD Kelly & Co submitted that if the Court were not prepared to hear the whole case on the allotted dates, it should at least determine his client's entitlement to a lien, as a separate question under Part 31 of the Supreme Court Rules. At my invitation, the parties subsequently filed notices of motion and supporting affidavit evidence, and provided me with written submissions. 31 By their notice of motion, TD Kelly & Co seek to "confirm" the hearing dates of 31 March and 1 April 2004, and in the alternative, they seek an order that their claim for a declaration that they have a lien over the proceeds of judgment in the common law proceeding for unpaid legal fees and disbursements, be heard as a separate question under Part 31. Mr Hogan's seeks an order that the hearing of the claim by TD Kelly & Co be stayed until completion of the assessment proceeding in respect of solicitor/client costs claimed by the firm against him in respect of the common law proceeding. 32 These are the matters before the Court for determination now. Mr Hogan has indicated to the Court that he is prepared to allow the status quo to continue, in that the existing interlocutory regime concerning money held in the controlled moneys account, and the existing interlocutory undertakings by the Church in respect of payment of further moneys under the principal judgment and the judgment for costs, would remain in place pending the outcome of the costs assessment, on the understanding that he would be entitled to apply to vary the orders if it became clear that an amount could be paid by him while leaving sufficient security for TD Kelly & Co's claim. This concession is significant because it means that TD Kelly & Co's claim will be reasonably well protected pending the outcome of the costs assessment. 33 I have decided that the appropriate course is to dismiss the application by TD Kelly & Co and to order a stay of the present proceeding pending assessment of costs, as contended for by Mr Hogan. 34 The lien claimed by TD Kelly & Co is a "fruits of the action" lien, that is an equitable right, on the part of a solicitor, to have his or her proper costs and disbursements paid out of money recovered on behalf of the client: Ex parte Patience; Makinson v The Minister (1940) 40 SR(NSW) 96, 100-101, per Jordan CJ. In Firth v Centrelink (2002) 55 NSWLR 451, 462-467, Campbell J set out the general principles governing the solicitor's right, one of which (at 464) is that "in relation to those situations where taxation is necessary to ascertain the quantum owing to the solicitor, the solicitor's right exists in the fund prior to the occurrence of the taxation". As Scarman J said in In the Estate of Fuld, dec'd (No.4) [1967] 3 WLR 314, 321, if this were not the law, the client could deprive the solicitor of the lien by failing to proceed to taxation (see also Johns v Cassel (Supreme Court of New South Wales, Hodgson J, 15 March 1993, unreported)). 35 It is arguable, however, that these propositions assume that at the time of assertion of the lien, the solicitor has a presently existing right to recover costs, and all that remains is that the costs be quantified by the taxation process. The present case is arguably different, because of s 182(1) of the Legal Profession Act. Section 182(1) (a provision bearing some similarity to s 42AA of the Property Stock and the Business Agents Act 1941 (NSW): see Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27) makes it clear that where, as here, a solicitor has not made disclosure of the matters required to be disclosed by s 175 (including such matters as the basis of calculating costs, billing arrangements, and the client's rights in relation to a review of costs), the client need not pay the costs claimed by the solicitor for legal services unless the costs have been assessed. It seems to me that if the client has no obligation to pay the solicitor's costs until the happening of a contingent event which may never happen, it is arguable that there is no proper basis for the solicitor to assert a lien the fundamental basis for which, as explained by Jordan CJ in Patience (at 101), is to provide security for the solicitor to recover money which is due to him (even if not yet quantified by taxation). As the Full Federal Court said in Worrell v Power & Power (1993) 46 FCR 214, the lien arises "when the judgment for costs is obtained, and before there has been taxation of costs", suggesting by inference that the lien does not arise until some entitlement to recovery of costs exists. 36 It is unnecessary and undesirable for me to decide whether this arguable view is correct, in the present interlocutory circumstances. If, contrary to the views I have expressed to be arguable, the solicitor is entitled to assert a lien notwithstanding s 182(1), in circumstances where he or she has not made proper disclosure under s 175, I would nevertheless hold in the present case that the determination of the solicitor's claim to a lien should be deferred until the costs assessment process is complete, for discretionary reasons. 37 Here, TD Kelly & Co have had available to them for about a year the costs assessment procedure set out in the Legal Profession Act. That is the procedure to be followed for the quantification of their claim against Mr Hogan. When a matter proceeds to costs assessment, the task of the costs assessor is defined by Part 11 Division 6 of the Act. The assessor must consider whether or not it was reasonable to carry out the work to which the costs relate, whether or not the work was carried out in a reasonable manner, and the fairness and reasonableness of the amount of the costs in relation to that work: s 208A. In assessing what is a fair and reasonable amount of costs, the costs assessor may have regard to the matters listed in s 208B, including the client's instructions and whether the work was done within the scope of the instructions. Mr Hogan has not yet given the costs assessor his objections and submissions regarding TD Kelly & Co's bill of costs. However, it seems likely that his objections will include objections based on the firm's conduct of his case against the Church, including in particular the conduct of the appeal and the application for leave to the High Court. Issues will arise as to whether the firm acted on instructions. 38 It is theoretically possible, though highly unlikely, that Mr Hogan's objections may succeed to such an extent that no further money becomes due and payable by him to the firm. It is possible, and at this stage the strength of the possibility is difficult to assess, that the bill of costs will be reduced in the assessment process to such a degree that the amount owing does not exceed the amount presently held in the controlled moneys account. If that happens, there may be no resistance to the firm being paid out of the account, and therefore no practical point in pursuing the present case. In the meantime, the firm has a degree of practical protection with respect to that amount, to the extent that the money is in an account and cannot be disbursed without their consent or an order of the Court. 39 If, in the assessment process, TD Kelly & Co establishes an entitlement, as against Mr Hogan, to be paid money in excess of the amount in the controlled moneys account, there is the prospect of further protection, admittedly difficult to assess at this stage. Funds may become available to meet that excess out of the costs recoverable by Mr Hogan from the Church. The firm has a lesser though still significant degree of practical protection with respect to any such funds, because of the Church's undertaking. The determination of the amount payable by Mr Hogan to TD Kelly & Co for the costs of the second trial is the foundation of Mr Hogan's claim against the Church to recover his costs of the second trial on an indemnity basis. 40 Therefore, to the extent that the present proceeding involves TD Kelly & Co seeking to establish their lien against Mr Hogan, the case is premature because of the absence of assessment, while the firm has a substantial degree of practical protection with respect to recovery of such costs as it may become entitled to receive once the assessment process is carried out. 41 If the Court were to allow the hearing of this proceeding to take place before TD Kelly & Co's bill of costs were to be assessed, there would be a risk of unintended or accidental consequences. It appears likely that Mr Hogan will rely, in the hearing of this proceeding, on various matters going to equitable defences and the exercise of the Court's discretion to refuse equitable relief, including allegations of misconduct by TD Kelly & Co in respect of their conduct of the common law proceeding and the costs assessment process. To a degree, these matters are likely to overlap with the issues raised before the assessor under s 208A and, more particularly, s 208B. Findings by this Court might cut across the conduct of the assessment, and even create issue estoppels (a concern not dissimilar from the issues raised by Young CJ in Eq, in another context, in Re Nortex Pty Ltd (in liq) [2003] NSWSC 1036 (12 November 2003)). 42 TD Kelly & Co's difficulty in seeking to maintain the hearing dates is compounded by the application for an order in terms of paragraph 1A of the amended summons. Paragraph 1A would have the effect of establishing a fund, to protect the firm, equivalent to the maximum amount to which the firm might become entitled out of the assessment process. It has the effect of assuming that the assessment process has been completed and that the outcome is entirely in favour of the firm. And it goes further. It seeks to provide protection for the firm in respect of the costs of the present proceeding, although necessarily the amount of those costs would not be known even at the conclusion of the hearing. In my opinion such an order would be oppressive and unjustified, in the absence of a costs assessment. 43 TD Kelly & Co's application for an order for separate determination under Part 31 must fail for generally similar reasons. The modern approach to an application in a commercial case for orders for the determination of separation questions under Part 31 is set out in the judgment of Rolfe J in ABB Engineering Constructions Pty Ltd v Freight Rail Corporation [1999] NSWSC 1037 (which I considered and applied in Hathway v Cavanagh (2002) 43 ACSR 497). 44 Here, the question whether the firm is entitled to assert a lien over funds to which Mr Hogan is entitled depends, in part, on whether Mr Hogan has any equitable defence to such a claim, and whether there are discretionary considerations that would weigh against the firm. Even assuming that the question of entitlement to assert a lien could be divorced from the issue of quantum of recoverable costs, determination of matters going to defences and discretionary considerations would be likely to involve disputed questions of fact, and indeed, questions which may arise, or be very similar to questions that may arise, in the costs assessment. The matter proposed as the subject of a Part 31 determination, namely the declaration sought in paragraph 1 of the amended summons, is not a discrete question which can be separated from the remainder of the proceeding, because the answer to it involves an examination of these disputed factual issues. If the question were limited to a determination of some abstract or bare legal entitlement to assert a lien, Part 31 would not be appropriate because the answer to that question would not be in any way determinative of the litigation. 45 For these reasons I have decided to vacate the hearing dates for the final hearing of the present proceeding. It seems to me appropriate to order that the proceeding be stayed until TD Kelly & Co's bill of costs in final form has been assessed. 46 The present case is analogous to the Court's well-established jurisdiction to order a stay for abuse of process, where a party seeks to pursue two proceedings in different forums raising the same or overlapping issues: Henry v Henry (1996) 185 CLR 571. 47 TD Kelly & Co contends that Mr Hogan should be denied relief because of his delay in proposing a stay of proceedings. It seems to me, however, that until 13 February 2004, when the intransigent and mistaken attitude of the firm to the costs assessment process finally became clear, there was a reasonable basis for Mr Hogan to hope that the difficulties that had been encountered in the costs assessment process would be resolved so as to make it possible to maintain the hearing dates. In any event, the mishandling of the costs assessment which prevented it from being resolved before the scheduled hearing was the work of the firm. 48 TD Kelly & Co makes submissions about ulterior motives on the part of Mr Hogan and Ms Gould. In my opinion these contentions are not supported by the evidence. Indeed, the making of the submissions tends to suggest that the firm has been more concerned to attribute bad faith to its opponents than to evaluate objectively their submissions about the difficulties of the costs assessment process. 49 I am inclined to give directions with respect to the costs assessment process, the effect to which would be to require TD Kelly & Co to serve a new bill of costs in final form on Mr Hogan, so as to re-commence the procedure under Part 11 Division 6 of the Legal Profession Act. It may be premature to give any directions in respect of Mr Hogan's objections and submissions on the bill of costs, but any problems as to whether either side makes satisfactory progress towards assessment could be handled by my granting liberty to apply on, say, three days' notice. 50 I shall hear the parties on the question of costs.

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