Solicitors:
Globalex Tax and Legal (Defendant)
File Number(s): 2017/00094073
[2]
EX TEMPORE Judgment (revISED)
This is an application for the summary dismissal of proceedings 2017/00094073. The proceedings were commenced in this Court by summons filed 28 March 2017. However, the proceedings as a whole have a much lengthier history than first meets the eye.
The summons purports to seek orders setting aside (or, in the alternative, varying) orders made by Chief Clerk Abdi in the Supreme Court. The orders in question related to an assessment of costs following Local Court proceedings that took place back in 2012 and 2013. The nature of the "judgment" made by Mr Abdi has been discussed by the Court of Appeal in Frumar v Owners of Strata Plan 36957 [2010] NSWCA 172 at [8]-[9] (Giles JA, dissenting in the outcome) and Doyle v Hall Chadwick [2007] NSWCA 159 from [47]. It is, to paraphrase what their Honours said, not a judgment in the usual sense. Rather, the certificate, as it was put by Hodgson JA in Doyle v Hall Chawick, "merges into the judgment and can no longer be set aside"
On 6 June 2012 Magistrate Heilpern, sitting in the Grafton Local Court, made orders that the plaintiff pay into court security of costs in the sum of $29,363. Exhibit 1 on the current notice of motion is a receipt (or evidence otherwise) of the payment of that sum into the Grafton Local Court. There was some discussion in the course of the hearing as to whether that money had been paid out to the defendants in accordance with orders that were finally made by Magistrate Heilpern on 12 March 2013. On that date, Magistrate Heilpern made various costs orders following civil litigation which his Honour described as a "lawyers' picnic". The security costs that had already been paid were ordered to be paid to the defendant - that is, the defendant in this Court - in partial satisfaction of the costs order.
As far as I am aware, and it seems clear, there was no attempt to seek judicial review of the substantive decision made by Magistrate Heilpern or his Honour's orders for costs. Nor was there any appeal to this Court pursuant to Part 3 Division 4 of the Local Court Act 2007.
However, pursuant to the relevant provisions of the Legal Profession Act 2004, which has since been replaced by the Legal Profession Uniform Law of 2016, there was a lengthy and, I gather, contentious process of costs assessment. There was a review of the original assessment, and on 22 July 2016, a Costs Review Certificate and accompanying reasons were issued by a panel consisting of a Mr Dyson and a Mr Wall. The certificate was issued pursuant to the provision of s 378 of the Legal Profession Act 2004. It was that certificate, or those certificates, that were entered as judgments of this Court in accordance with the provision of s 378(3)(b) of the Legal Profession Act 2004. I again refer to those two cases in the Court of Appeal that explained the nature of such a judgment.
Going back then to the certificate, and the decision of the assessment review panel, there is a limited process of review and appeal available from that decision and the associated certificate. Section 384 of the Legal Profession Act 2004 provides an avenue of appeal, which is to the District Court of New South Wales. There is no evidence that such an appeal was brought. Rather, the plaintiff, then represented by a solicitor, brought its summons to this Court. As counsel for the defendant points out, no grounds for the orders sought were stated in the summons.
The defendant now seeks summary dismissal of the summons and the proceedings commenced by that summons. The application is brought pursuant to Part 13 rule 4 of the Uniform Civil Procedure Rules NSW (2005), which provides:
"(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious, or
(b) no reasonable cause of action is disclosed, or
(c) the proceedings are an abuse of the process of the court,
the court may order that the proceedings be dismissed generally or in relation to that claim."
The plaintiff now appears unrepresented. As I have said, he was previously represented by a solicitor, who filed a number of affidavits on his behalf. He has filed written submissions - that is to say the unrepresented plaintiff has filed written submissions. Those submission assert, among other things:
"As recently as 12 May, the costs review panel has sought additional submissions."
That submission is based on a letter sente by Mr Wall (a member of the costs review panel) dated 12 May 2017. The letter commenced:
"This letter relates to a review completed by a panel comprising Michael J Dyson and Christopher P Wall in July of 2016."
It then set out the documents which it had received and particularised a complaint made by the plaintiff in relation to the earlier costs assessment. Under the heading "Other Issues", Mr Wall said this:
"The panel observes that the role of an assessor, and on review, the role of the panel, is to determine the fair and reasonable amount of costs. It is not an essential part of the role of an assessor or the role of the panel to determine how much has been paid in respect of the amount paid. The Form 10 certificate of determination of costs by the costs review panel does have a provision for indicating the amount paid and thus the amount owing. However, this is not an essential part of the panel's determination. If there is a genuine dispute as to how much has been paid in respect of the costs assessed pursuant to the orders of the court, then that dispute can be dealt with by the court in which the panel's certificate was registered and will be treated as a judgment. The panel would be inclined not to amend its certificate on this basis."
There was then a reference to whether or not the plaintiffs had been provided with the opportunity to make submissions and reference to a further ground. Ultimately, the letter indicates that it did not propose to revisit or revise or amend its costs certificate and concluded with:
"If the panel found that there was an inadvertent error, then the panel has the discretion to correct that error. Even had the panel found an inadvertent error, the likelihood is that the panel would not have amended its determination. McGuire's [sic] waited too long to obtain the certificates and raise the issue."
So whilst there certainly was correspondence on 12 May 2017, it was not correspondence by which further submissions were sought. It will be seen, rather, that the panel confirmed its earlier decision. Whether or not there is any avenue of appeal from that decision - by way of judicial review, prerogative relief or otherwise - is not a question with which I need now be concerned.
The power to set aside an order or judgment is found in 36.15 of the Uniform Civil Procedure Rules. There was some issue raised at the beginning as to whether or not this is even a judgment amenable to being set aside because of those comments made by the Court of Appeal to which I have earlier referred. Insofar as a submission was maintained that there was no power to set aside such a judgment - and I am not completely sure that it was maintained - I reject that submission. As was demonstrated by way of example, if a party was to register a certificate of costs with the Court, having doctored it or changed it, it would clearly be a judgment that was given against good faith. And so, contrary to the submission (if it is maintained), I am of the view that there is a power in the Court to set aside a judgment such as that which was entered in this case, based on the costs certificate. However, having said that, the power to do so under r 36.15 is limited. The provision is this:
"(1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith."
The circumstances in which a court will summarily dismiss an action are strictly constrained. That has been said in many cases. The kind of language that is employed in such cases is that it must be found that the suit is "so obviously untenable that it cannot succeed" or that it is "manifestly groundless" or that it is "hopeless": see, for example, Dey v Victorian Railway Commissioners (1949) 78 CLR 62 [1949] HCA at 91 and General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 at 129. There are many other cases to similar effect. So the test at this stage as to whether the proceedings should summarily be dismissed is a very high one.
However, in the absence of any evidence or suggestion that the judgment was entered in bad faith, irregularly or illegally, the summons is destined to fail. To adopt that language to which I have just referred, the case is manifestly groundless and so obviously untenable that it cannot succeed. The circumstances prevailing here are such that the application brought by the summons has no prospect of success. In those circumstances, the primary order sought in the notice of motion must be granted.
Before making that order, I note the undertaking of the solicitor for the defendant that it will not attempt to enforce that part of the judgment which is covered by the payment by the plaintiff of $29,365 into the Grafton Local Court in accordance with the learned magistrate's orders. I make the following orders:
1. Proceedings 2017/00094073 are dismissed.
2. The plaintiff is to pay the defendant's costs of these proceedings.
3. I note the undertaking of the defendant and its solicitors that it will not seek to enforce that part of the costs order or judgment comprised by the payment of $29,365 by the plaintiff into the Grafton Local Court on 19 June 2012. I expect that in accordance with that undertaking, it will not seek to enforce any interest on that part of the claim.
4. I also note (in revising this judgment) that the defendant indicated an application for indemnity costs but withdrew that application on the basis that it may seek an order for costs (including, presumably, indemnity costs) against the solicitor responsible for filing the original summons.
[3]
Amendments
22 June 2017 - Typographical error amended.
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Decision last updated: 22 June 2017
Parties
Applicant/Plaintiff:
Padraig Christopher McGuire
Respondent/Defendant:
Sporting Shooters Association of Australia NSW Coffs Harbour Branch Inc