Madsen v Darmali

Supreme Court of NSW|2024-05-03|Before: Rees J, Hulme J, McHugh J

Solicitors: TEP Legal (First and Second Defendants) File Number(s): 2024/5024

JUDGMENT

HER HONOUR: The application concerns the Court's management of proceedings when parties serve submissions which go beyond the Court's leave to provide further submissions after a hearing.
The defendants seek to vary a costs order made in their favour. The plaintiff was ordered to pay the defendants' costs on an indemnity basis, payable forthwith, save for the defendants' costs of submissions served after the hearing 'in reply' but beyond the bounds of the leave granted by the Court. The defendants later garnered the plaintiff's consent to pay the costs of the submissions served without leave.
The application is made under various heads of power but, specifically, r 36.15(2) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), which provides that an order may be set aside if the parties to the proceedings consent. The issue is whether the Court's discretion should be exercised in the manner sought. Before turning to the facts, it is timely to repeat some fundamental and uncontroversial propositions.

Reasonable opportunity to be heard

The defendants sought to explain their actions on the basis that they were denied procedural fairness at the hearing, as their counsel only got through one-third of what he wanted to say; "It would be a dark day … for case management" if the defendants were not permitted to rely on their further submissions given the seriousness of the subject matter.
It is a fundamental principle of our system of justice that the courts are obliged to give the parties a reasonable opportunity to be heard; the content of this obligation varies according to the circumstances of the particular case, where procedural fairness is an essentially practical concept: HT v The Queen (2019) 269 CLR 403 at 416-7, [17]-[18] (per Kiefel CJ, Bell and Keane JJ). As Lindsay J observed in C v W [2015] NSWSC 1774, "Any "right to be heard" (assuming that the language of entitlement is apt) is qualified by a consideration of what is "reasonably practical", and limited to a "reasonable opportunity" to be heard": at [105]. For example, in a busy list "the hearing time allocated to each matter does not allow for a leisurely pace, nor detailed engagement between the bench and the parties": Jakaj v Kinnane [2019] ACTSC 71 at [44] McWilliam AsJ (as her Honour then was). Sometimes, of course, "a judge, conscious that he is about to make a decision in accordance with that sought by a party will, particularly in a busy list, not invite address by that party": R v Tocknell (Court of Criminal Appeal (NSW), 28 May 1998, Hulme J, unrep) at 7.
As Murray Gleeson also observed extra-curially in "The Judicial Method: Essentials and Inessentials" (2010) 9(4) The Judicial Review 377, 381: (emphasis added) "The High Court of Australia strictly limits the time allowed for oral argument in applications for special leave to appeal. In some cases it permits no oral argument at all. The High Court does not have the resources to allow … applications to be presented with unlimited oral argument. It rations its time. … giving unlimited time for [argument] is not an essential part of the system. … [C]ourts … need to reconcile efficient deployment of scarce judicial time with the requirements of a fair hearing."
In Isicob Pty Ltd v Baulderstone Hornibrook (Qld) Pty Ltd (in liq) (2001) 17 BCL 198; [2001] QSC 064, White J noted, "It is far from unusual to confine submissions in a court to a limited period and is not thought to constitute a breach of the principles of procedural fairness that that should be so": at [83]. The same has been said in respect of directions concerning the filing of written submissions with page limits. In Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) v Quirk (2023) 414 ALR 516, Colvin J noted that such limits "should be scrupulously observed. If it is considered that there would be unfairness if a party was confined to the page limit then application can be made but parties should not take matters into their own hands by ignoring such limits or pursuing stratagems to frustrate their purpose": at [441].
Nor is the Court required to allot identical time to opposing counsel: Zan & Wen (No 2) [2023] FedCFamC1A 130 at [33] (per Austin, Tree and Christie JJ). Nor does a party have the right to make repeated submissions: Owners - Strata Plan No 74442 v Harrison [2023] NSWCATAP 144 at [62]. Nor is the Court obliged to permit the hearing time to be absorbed by the exposition of legal principles with which the Court is well-familiar.

The hearing

Turning then to the facts, during January 2024, ex parte orders were made by vacation Duty Judges to prevent the defendants from leaving the country or dealing with their assets. On 30 January 2024, the defendants filed a motion seeking to vary or limit these orders, as the defendants wished to travel overseas to visit family for Chinese New Year on 10 February 2024. Obviously enough, to achieve the desired result for the defendants, the motion needed to be determined in short order.
On 2 February 2024, the matter came before me in the Expedition List for directions. The parties were represented by counsel and solicitors. Although the defendants had served some 250 pages of affidavit material in support of their motion overnight, the plaintiff's counsel enquired whether the Court could hear the motion that day given the urgency of the substantive proceedings, assuming that the plaintiff's counsel could review the defendants' material in time. I listed the motion for hearing at 2 pm.
At 2pm, the defendants' counsel made opening submissions. The parties proceeded to read their affidavits and tender documentary material. The plaintiff's material comprised a three volume Court Book, whilst the defendants' material comprised a further two folders. The plaintiff's counsel did a 'walk through' of the plaintiff's substantive claims and key documents.
The defendants' counsel then made closing oral submissions. One of the bases on which the ex parte orders were sought to be varied was a lack of candour. A particular problem about which the defendants' counsel complained was that the plaintiff's Court Book was difficult to navigate and digest, such that it was difficult to understand precisely what evidence was said to support the plaintiff's substantive allegations. A further problem identified by the Court was that the evidence in respect of the defendants' travel plans did not go very far.
At 3.35pm, and given the limited remaining time available for the hearing of the motion, I called on the plaintiff's counsel to make closing submissions. Having regard to the defendants' submission that the ex parte orders should be set aside for lack of candour, I sought the assistance of the plaintiff's counsel to understand the material relied upon before the vacation Duty Judges. The plaintiff's counsel proposed, in the limited time remaining, to address the evidence served by the defendants on their motion and then send a list of the documents which had been drawn to the attention of the vacation Duty Judges, identifying the particular paragraphs of the affidavits relied upon and providing page references for documents in the Court Book to which the Court had been taken.
The defendants' counsel welcomed such a document, and sought a short period of time to put on any response. The plaintiff's counsel said the contents of the document would not take the defendants by surprise, as it would simply collate the documents described in the transcript of the hearings before the vacation Duty Judges. The defendants also sought leave to put on a supplementary affidavit in respect of the defendants' travel plans. The transcript records: "HER HONOUR: So that will be a supplementary affidavit and any material in reply, note in reply to the plaintiff's note which lists all the relevant material. If there's something you want to say about a particular item that you didn't realise was relevant, then you can do it by then."
The plaintiff's counsel then made submissions on the affidavits served by the defendants in respect of their motion. The defendants' counsel made submissions in reply.
I reject the contention that the defendants were denied procedural fairness at the hearing. The Court's obligation to give the parties a reasonable opportunity to be heard does not mean that the Court must patiently wait until counsel has made every submission they wish to make in full, without regard to the constraints of the allocated hearing time or the need to give another party a reasonable opportunity to be heard as well. The transcript of the hearing of the motion indicates that the defendants' counsel had the lion's share of the available speaking time.

The leave

The transcript records the following directions made when the hearing concluded at 4.30pm: "1. I direct the plaintiffs [sic] to provide any further note in respect of evidence relied upon in opposing the first and second defendants' motion by 6pm, 2 February 2024. 2. Direct the first and second defendants to file and serve any supplementary affidavit in respect of the first and second defendants' travel plans, together with any note in reply by 6pm on 5 February 2024. 3. Reserve judgment in respect of the first and second defendants' motion. 4. Stand the matter over for directions on 9 February 2024."
At 5.55 pm on 2 February 2024, the plaintiff's counsel emailed a document entitled "Plaintiff's aide memoire in relation to notice of motion 30 January 2024", copied to the defendants' counsel. The plaintiff's note identified the evidence relied upon in respect the defendants' motion as follows:
The plaintiff's note occupied one-page and fitted the description given by the plaintiff's counsel during the hearing. For each subject (presumably relied upon to support the orders made by the vacation Duty Judges), specific transcript references, affidavit paragraph references and pages of documents in the Court Book were given, presumably to support the import of that topic to support the ex parte orders sought from the vacation Duty Judges and, on the plaintiff's submissions, to be continued notwithstanding the defendants' motion.
At 5.56pm on Friday, 2 February 2024, the orders made at the hearing were recorded on JusticeLink. The direction in respect of the defendants was re-numbered as Order 4.

The Submissions

Shortly before 6.00 pm on 5 February 2024, affidavits from each of the defendants were served. The scope of the affidavit by the first defendant, David Darmali, went beyond Order 4: not only did the affidavit address the defendants' travel plans, but also the plaintiff's aide memoire, together with various paragraphs in the form of submissions. No point was taken in this regard.
At 7.16 pm on 5 February 2024, the defendants served a 15-page document entitled "Outline of first and second defendants' submissions in reply and aide memoire in relation to their 30 January motion" (the Submissions). I reject the contention that the Submissions were within the leave given, properly construed, and "perfectly permissible". A cursory comparison between the plaintiff's note and the Submissions broadcasts that the latter was not "in reply" to the former. On closer examination, the Submissions: 1. repeated many of the submissions made orally on 2 February 2024, 2. listed each of the affidavits relied upon by the defendants in support of their motion, 3. provided another aide memoire in respect of 13 bases on which the passport, freezing and disclosure orders were sought to be set aside, cross-referenced to the defendants' affidavits and transcript of the hearing before the first vacation Duty Judge; and 4. set out the legal principles to be applied, including comprehensive references to the case law embedded in 29 detailed footnotes.
In short, the Submissions were submissions in chief, not a note in reply to the plaintiff's note. The only thing the Submissions did not address was the plaintiff's note, which was not referred to at all. I reject the defendants' submission on this application that counsel went through each reference in the plaintiff's aide memoire and responded in terms. I have checked each and every reference in the plaintiff's further note: none are referred to in the Submissions. (Perhaps counsel had Mr Darmali's affidavit in mind when making this submission.) As for the proper construction of Order 4, the defendants were given leave to file "a note" in reply to the plaintiff's "further note", which indicated that comprehensive submissions were not permitted.
I reject the contention that the defendants should have their costs of the Submissions because the defendants' counsel believed that the Submissions were within the leave granted, where his instructing solicitor had not then obtained a copy of the orders as posted on JusticeLink, nor received the transcript of the hearing, "I didn't know that the orders were online. ... we were going off our handwritten notes". I regard this submission as disingenuous, where the defendants' counsel was there when the proposed directions were discussed; the scope of the direction was made plain to counsel at the time: see [1]. Counsel's instructing solicitor was also present to make a note of proceedings, if counsel was unable to do so.
Even when a person is charged with contempt, it is not necessary to show that the person charged was aware of the full terms of the court's order: Sun Newspapers Pty Ltd v Brisbane TV Ltd (1989) 92 ALR 535 at 538 (per Pincus J); Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2015) 238 FCR 209 at [18] (per Jagot J). As Pincus J noted in Sun Newspapers, "If a person sitting in court heard most, but not all, of the terms of an injunction pronounced by a judge and then promptly left to arrange matters so that what he knew to be the court's intention would not take effect, it does not seem likely that his not having heard the full terms of the order would be a defence to a charge of contempt": at 538.
Even more so, the Court is entitled to expect that qualified legal practitioners will adhere to orders made in Court, whether or not they have transcript or access to orders when later made available electronically. Were it otherwise, it would be a simple thing for legal practitioners and their clients to justify contravening court orders and directions on the basis that they thought the Court's orders were other than as made.

What to do with the Submissions

On 6 February 2024, my chambers communicated with the parties, observing that the materials provided by the defendants were of greater ambit than was anticipated by the directions made on 2 February 2024. Accordingly, if the plaintiff had any objections to the affidavits or wished to respond, he could do so by 4.00 pm on 7 February 2024. If the plaintiff did not wish to do so, his legal representatives were asked to notify my chambers by 4.00 pm that day. The plaintiff's solicitor promptly advised that their counsel was unavailable to prepare submissions within that timeframe and also objected, where the Submissions had been provided without the leave of the Court.
On 7 February 2024, my staff enquired of the plaintiff's solicitor as to when counsel might be available to prepare any submissions in reply. Later that day, my staff advised the parties that I had not had a timely reply from the plaintiff's legal representatives. Having read all of the material relied upon by the parties, I would make orders lifting the passport orders when I was out of Court later that day, where the defendants wished to travel overseas to celebrate Chinese New Year on 10 February 2024. At 4.12 pm, the plaintiff's counsel apologised for failing to respond to my staff's earlier email, which had only just been brought to his attention by his instructing solicitor. The plaintiff requested that the Submissions be addressed at the directions hearing on 9 February 2024. At 4.30 pm, my chambers replied to the parties, setting out the orders made on 2 February 2024. Further: "The submissions served by the first and second defendants go beyond what was envisaged by Order 4. Where this is an expedited matter, and to avoid further delay in the determination of the motion, the judge has asked that the plaintiff's counsel either: ● Provide any submissions in reply to the first and second defendants' written submissions by 4pm tomorrow; or ● Advise if they are not in a position to do so, in which case, the judge will put to one side the portion of those submissions which goes beyond that envisaged by Order 4."
The plaintiff's counsel promptly replied that he was unable to respond to the Submissions before 4.00 pm the next day, "while maintaining existing professional obligations owed in respect of other matters".
On 9 February 2024, I made orders setting aside the freezing and disclosure orders, with reasons to follow. The plaintiff was ordered to pay the defendants' costs of their motion. Further, in the event that any party sought to vary the costs order, directions were made for the party seeking a variation to file any affidavit and submissions, with any affidavits and submissions in response be filed thereafter, such application to be determined on the papers.
On 13 February 2024, I gave judgment, providing reasons for lifting the passport, freezing and disclosure orders: Madsen v Darmali [2024] NSWSC 76. I noted at [109]: "On 2 February 2024, the matter came before me in the Expedition List for directions, when I also heard the defendants' motion. Directions were made for the plaintiff to provide a note identifying the specific portions of the material relied upon, and for the defendants to put on further evidence in respect of their travel plans and any note in reply. The defendants served comprehensive written submissions in respect of their application, rather than in reply to the plaintiff's note. As the submissions should not have been sent, I have put those submissions to one side: Huynh v Attorney General (NSW) (2021) 107 NSWLR 75; [2021] NSWCA 297 at [249] (per Leeming JA) (successfully appealed on a separate issue); NT Power Generation Pty ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 at [192]."
I reject the defendants' submission on this application that it was unjust to exclude the Submissions without giving reasons for doing so. I refer to my reasons extracted above.
The paragraph of my first judgment, extracted above, was raised at a directions hearing on 16 February 2024. The plaintiff had then briefed new (senior) counsel. The defendants asked to put on written submissions to respond to that paragraph. As directions had already been made for the parties to file submissions in respect of any special costs order sought, the defendants' counsel was invited to address the matter in those submissions.
Rather than availing themselves of this opportunity to make submissions as to why the defendants should have their costs of submissions served beyond the bounds of leave granted, the defendants' counsel sought to deal with the issue by obtaining the consent of the plaintiff. In response to the defendant's enquiry as to whether the plaintiff would consent to an order for indemnity costs, on 21 February 2024, the plaintiff's senior counsel asked to know "in very brief terms" the basis on which it was intended to respond to my judgment "and get your costs of those submissions without leave?" The defendants' counsel responded promptly with a three-page email.
On 1 March 2024, the plaintiff's senior counsel advised that indemnity costs was agreed. I was later informed by the plaintiff's senior counsel, at a directions hearing on 22 March 2024, that "we didn't want to have a fight about the costs of his submissions."
The parties provided written submissions in respect of the remaining point of contention, being whether the indemnity costs should be payable forthwith. On 8 March 2024, the defendants' submission advised that the plaintiff consented to paying the defendants' costs on an indemnity basis, "the Costs to include, without limitation, the costs incurred by the Defendants of and relating to the Defendants' written submissions referred to in the reasons for judgment … at J[109]." The submissions did not address why the defendant should have the costs of those submissions. Rather, a footnote to the defendants' submissions recorded that, in light of the agreement between the parties and the form of the costs order, "It is assumed that the Court does not require submissions in relation to the costs being assessed on an indemnity basis and including the submissions referred to in J[109]".
On 19 March 2024, I gave judgment, ordering the plaintiff to pay the defendants' costs forthwith: Madsen v Darmali (No 2) [2024] NSWSC 268. However, at [17]: "I note that the plaintiff has agreed to pay the defendants' costs on an indemnity basis. I do not cavil with this. There was certainly an arguable basis for the defendants to seek such costs. The plaintiff has also agreed to pay the defendants' costs of written submissions prepared and provided to the Court other than in accordance with directions and orders made by the Court. While the plaintiff may choose to pay those costs if he wishes, it will not be pursuant to an order made by this Court. I make the following order: (1) Vary Order 4 made on 9 February 2024 such that the plaintiff is to pay the first and second defendants' costs of the motion filed on 30 January 2024 on an indemnity basis payable forthwith, other than the costs of the defendants' written submissions served on 5 February 2024."
Later that evening, the defendants' counsel sent a two-page email to the plaintiff's senior counsel, "You will not be surprised to hear that the defendants respectfully contend that her Honour fundamentally erred in excluding 'the costs of the defendants' written submissions served on 5 February 2024' from the costs orders made today". Further, "it is very unusual (personally I have never seen it in all my years of practice) for a Court not to make a costs order that the parties seek by consent". Given the footnoted assumption, on which the defendants' counsel had apparently proceeded in not making submissions on my primary judgment at [109], it was said be the Court's fault for not informing counsel that submissions should in fact be made on that point. Rather, it was said that the defendants "have never had any opportunity to [be] heard on that issue." This was said to be procedurally unfair to the defendants. Consent was sought to send an email to my Associate advising that, when the matter was next before the Court for directions, counsel would seek to be heard on this issue.
I reject the contention that the defendants should have their costs of the Submissions as it was not thought necessary to exercise the leave given by the Court on 9 February 2024, to make submissions as to why my earlier costs order should be varied, given the plaintiff's consent to varying that order. Making submissions beyond the scope of leave is a breach of counsel's professional responsibilities: Bull v Lee at [9]. It is a problem singularly unsuited for resolution by the consent of the parties. Nor is the Court obliged to advise the defendants' counsel that his effort to attempt to deal with this issue by obtaining the plaintiff's consent was ill-judged.

This application

The parties appeared in the Expedition List on 22 March 2024. The defendants' counsel sought to file a motion in Court, to vary my orders under r 36.15 or 36.16 of the UCPR in relation to the costs of the Submissions. I was not prepared to entertain the application, where the defendants had been given an opportunity to be heard. (In error, I said I had given the defendants two opportunities to be heard; in fact, I had given the defendants one opportunity, which they chose not to use in favour of garnering the plaintiff's consent).
I was invited by the plaintiff's senior counsel to nonetheless make the order by consent. I declined to do so, but noted that, if the defendants wished to file their motion, then the plaintiff could be excused from attendance where the defendants' problem in obtaining such an order was with the Court rather than with the plaintiff. The plaintiff's position on any such motion was noted.
I then proceeded to hear and determine various costs arguments, where the plaintiff had decided not to pursue his claim against another defendant. The defendant's counsel then rose to say that he was "not going to be cavilling with" my earlier approach to his proposed motion, but then proceeded to do just that. The defendants' counsel sought to file in Court an affidavit and submissions to be determined in chambers, "to avoid having to file a motion", in support of a variation of my earlier costs order. I declined to do so, but indicated that he could file a motion if he wished.
On 26 March 2024, the defendants filed their motion seeking to vary my earlier costs order. In support was an affidavit by the defendants' solicitor comprising 81 paragraphs and 22 pages, accompanied by an exhibit with 38 documents (albeit missing key documents such as the submissions of 5 February 2024 and my preceding orders). In addition, I was provided with further written submissions comprising some 20 pages (when appropriate line spacing was used). The motion was heard on 3 May 2024. The defendants' counsel made oral submissions for two hours.
During the course of these reasons, I have rejected the contentions advanced as to why the costs order ought to be varied given the plaintiff's consent. I decline to exercise the Court's discretion to so vary the costs order. Whilst I can well understand the commerciality of the plaintiff agreeing to the variation, rather than to incur the costs involved in arguing the point, serving submissions beyond the bounds of leave is a professional conduct matter. The fact that the plaintiff consents to the variation, regrettably, does not absolve the Court of its responsibility to supervise the conduct of those who appear before it: Bale v Mills at [59]. For these reasons, I dismiss the defendants' 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: 17 May 2024

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