Miles v Slack

SUBMISSIONS OF THE PARTIES

1. The written submissions of the defendant can be summarised as follows: 1. There has effectively been one win and one loss for each party and the most appropriate route is that there be no order as to costs in either appeal, with the intention that each party bear their own costs. 2. On the first appeal, the orders sought were that there be no order as to costs and, in the alternative, any award made to the plaintiff is limited to the plaintiff's costs in the Local Court or otherwise as the Court sees fit. This is because the usual practice that costs follow the event may be departed from if the Court considers it appropriate to do so. There are three reasons for disentitling conduct: 1. The plaintiff's appeal has been prosecuted solely for the purpose of increasing costs recoverable and this is a technical victory. 2. The plaintiff's behaviour during the proceedings and conduct leading up to the proceedings was such that it was disentitling conduct because he has been highly aggressive, threatening or outright abusive in his correspondence to the defendant's solicitor and other parties. 3. The plaintiff has been self-represented and, although they may be entitled to recover reasonably incurred disbursement and expenses, they are not entitled to compensation for their time or skill. 1. On the second appeal, there should be no order as to costs and declarations issued that the Forms C7, C8 and C3 certificates remain extant and are effective or that the defendant is entitled to enforce the examination orders under those certificates. 2. The plaintiff sought a declaration that the "proposed offset amount arising from matter number 2020/00315254 issued in the Local Court of New South Wales in the amount of 24,255.60 is invalid as that certificate is presently the subject of an application for review and therefore its force, effect and operation are suspended and not offset.
2. The written submissions of the plaintiff can be summarised as follows: 1. The plaintiff is "absolutely and substantially the successful party to the Appeals". This is because the plaintiff "succeeded in eradicating the injustice that the plaintiff suffered in the Court below", "succeeded in eradicating the abuse of the legal process that the defendant and her solicitor deliberately carried out" and "achieved a vital Caselaw" that will "guide decision making in the lower courts to protect the general public from injustice". 2. It was alleged that the defendant's solicitor "unlawfully applying and obtaining judgment against the plaintiff by using unlawful Costs Assessment Certificates with the full knowledge". The plaintiff has personally suffered the consequences of financial burden. Costs should be awarded against the solicitor and the defendant. 3. There should not be a cost order against the plaintiff in the second appeal. The plaintiff acted reasonably in asking the Local Court to set aside the examination orders based on "bad faith". 4. The plaintiff denies the allegations of misconduct. Counsel for the plaintiff should be criticised for being "very abusive in the court room on the day the appeals were heard". 5. The plaintiff was represented by a legal practitioner and incurred substantial legal costs as a result of the defendant's action. An email sent from the plaintiff was attached that showed he requested that he proposed consent orders on 12 July 2022. The proposed consent orders were apparently rejected.

CONSIDERATION

1. I turn to the first issue of costs. There is a broad discretion as to costs: CPA s 98. The general rule is that costs follow the event: UCPR r 42.1. However, the Court has a discretionary power to depart from the general rule where there has been disentitling conduct: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at 88 [40] (Gaudron and Gummow JJ).
2. In Galati v Deans (No 3) [2018] NSWSC 1861, Ward CJ in Eq (as her Honour then was) summarised at [17]: The power to award costs pursuant to s 98(1) of the Civil Procedure Act 2005 (NSW) is, subject to the rules of court and to statute, discretionary; it is well recognised that the discretion is a very wide one (Oshlack v Richmond River Council (1998) 193 CLR 72; 152 ALR 83; [1998] HCA 11; Elite Protective Personnel Pty Ltd v Salmon (No 2) [2007] NSWCA 322), though it must of course be exercised judicially (having regard to its statutory context, established principle and the circumstances of the relevant case; and the overriding statutory context in which this discretion falls to be exercised (that being the need for parties to conduct their proceedings with a view to the just, quick and cheap resolution of the real issues in dispute)). Costs orders are compensatory in nature, to reflect the vindication of the successful claim or defence thereof, not punitive (Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45; [1990] HCA 59; Ohn v Walton (1995) 36 NSWLR 77).
3. In Commonwealth of Australia v Gretton [2008] NSWCA 117, Hodgson JA (with whom Mason P agreed) observed at [121] that: [U]nderlying both the general rule that costs follow the event, and the qualifications to that rule, is the idea that costs should be paid in a way that is fair, having regard to what the court considers to be the responsibility of each party for the incurring of the costs.
4. That observation was cited, with apparent approval, by the Court of Appeal in Heath v Greenacre Business Park Pty Ltd [2016] NSWCA 34 at [98] (Gleeson JA with whom Macfarlan and Leeming JJA agreed).
5. I agree with the submission of the defendant that there has essentially been one "win" for the plaintiff for the first appeal and one "win" for the defendant for the second appeal. However, I reject the submission of the defendant that the plaintiff only had a "technical victory". If the appeals in this case had been heard separately, the general rule would militate that the plaintiff be awarded his costs for the first appeal and the defendant be awarded their costs for the second appeal.
6. The instant case is distinguishable because the two matters were heard together, represented by the same legal representatives and there is, at the very least, an intertwining of the issues insofar that the "Form C3" certificate was relevant to both appeals.
7. When I consider the proceedings as a whole, neither party can be said to be successful. There is, therefore, no basis for an order for costs in favour of either party by reference to that event: Sabouni v Revelop Building and Developments Pty Ltd [2021] NSWSC 123 at [8] (Black J). I reject the plaintiff's submission that he has "absolutely and substantially" won the proceedings because I have found that judgments may be enforced against him on the basis of the certificates made by the Review Panel.
8. I also note that the mere fact that the Court's judgment may possibly guide decision-making for lower courts is not a reason to award costs to a party. This is because it is inherent in the functions of this Court, being an appellate court from decisions of the Local Court, to provide guidance to the Local Court as to questions of law.
9. Although unnecessary to decide, I wish to make some remarks about the plaintiff's behaviour in his correspondence to the legal representatives of the defendant. The correspondence that is before me and the allegations made by the plaintiff in his written submissions against the defendant's solicitor and counsel are grossly improper, aggressive, abusive and, in some ways, scandalous. They are wholly inappropriate and should be admonished. Had it been necessary to decide, I would have been minded to not award costs or reduce the award of costs to the plaintiff on the basis of his conduct.
10. I now turn to the appropriate orders to be made. Apart from costs, the only issue contended by the parties were the orders to be made for the second appeal.
11. In my view, the defendant's submission that this Court should declare "that the three review certificates [Form] C7 2020/00346848, [Form] C8 2020/00346819 and [Form] C3 2020/00297573 remain extant and are effective" or "that…the Defendant is entitled to enforce the Examination Orders 2020/00[3]46848, 2020/00346[4]19 and [Form] C3 2020/00297573" is misconceived.
12. As I indicated in my judgment at [134], the judgments obtained with respect to Form C3 should be set aside. The Form C3 certificate is not effective. It remains suspended under s 86 of the LPULA Act. There is therefore no basis for examination orders to be made under that certificate. Therefore, there is no basis for those declarations sought in that respect to be made.
13. The declaration sought by the defendant in relation to matter number 2020/315254 is not a matter that is before this Court on appeal. The defendants did not explain why a declaration should be made in relation to that matter. It is therefore not appropriate to make the declaration sought.

ORDERS

1. For these reasons, the Court makes the following orders in relation to the first appeal: 1. Grant leave to appeal. 2. Appeal allowed with respect to the First Amended Notice of Motion dated 29 October 2020 for setting aside the judgments entered upon the filing of Form C3 and Form C4A (as defined by the judgment in Miles v Slack [2022] NSWSC 926) and costs of that motion. 3. Pursuant to s 41(1)(a) of the Local Court Act 2007 (NSW), vary the order of the Local Court to the effect that the judgments entered upon the filing of Form C3 and Form C4A are set aside pursuant to r 36.15(1) of the Uniform Civil Procedure Rules 2005 (NSW). 4. Pursuant to s 41(1)(a) of the Local Court Act 2007 (NSW), vary the order of the Local Court to the effect that there is no order as to costs and each party to pay their own costs in that Court. 5. No order as to costs and each party to pay their own costs on appeal.
2. In relation to the second appeal, the Court makes the following orders: 1. Appeal dismissed. 2. No order as to costs and each party to pay their own costs.

Amendments 20 September 2022 - Orders (4) and (5) of the first appeal (at [25]) amended pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW). 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: 20 September 2022