Plaintiff v Defendant

Supreme Court of Victoria|2009-02-11|Before: KAYE J

COSTS - Solicitor and client costs - High-handed conduct of defendant in pursuing unsuccessful cross-claim against plaintiff's former solicitors - Defendant experienced practising solicitor appearing in person - Persistently making grave and unsubstantiated allegations against defendants by counterclaim - Deliberate time-wasting by defendant - Failure to accept reasonable Calderbank offer.

For the Plaintiff and First Defendant by Counterclaim

For the Second and Third Defendants by Counterclaim

1 In this matter I have this day delivered a ruling in respect of a no case submission made on behalf of the second defendant by counterclaim, Mr David Hanlon, and the third defendant by counterclaim, Harwood Andrews Proprietary Limited.[1] I have upheld the submission, made on their behalf, that Mr Hanlon and Harwood Andrews do not have a case to answer in respect of the causes of action in the amended counterclaim by the defendant Mr Johnson. Accordingly, I will order that that counterclaim be dismissed.

2 Ordinarily, costs follow the event and that is the usual rule which applies to these courts. As I understand it, Mr Johnson has not made any submission to me to the contrary and, indeed, I do not see how he could do so. Ms Sofroniou, who appears on behalf of Mr Hanlon and Harwood Andrews, has submitted that, rather than making such an order on the usual party/party basis, I should make it on an indemnity basis. Ms Sofroniou has made that submission effectively on what she described as two bases.

3 The first basis, which she calls the narrower basis, arises out of a letter sent by her instructing solicitors to the defendant dated 18 August 2008 entitled "Without prejudice save as to costs", pursuant to the principles established in the case of Calderbank v Calderbank[2]. Ms Sofroniou submitted that the offer was a reasonable offer, and that it gave the defendant more than ample time to consider it and to respond to it. The offer was that the defendant withdraw the counterclaim against the two defendants to the counterclaim, and that those defendants, Mr Hanlon and Harwood Andrews, would bear their own costs.

4 The second basis advanced by Ms Sofroniou is what she described as a broader basis. That arises out of the nature of the allegations made in the counterclaim and the conduct of the defendant in this court in pursuing them in this trial. Essentially Ms Sofroniou has advanced a number of submissions, four of which were as follows. Firstly, she submitted that the allegations made in the defence and counterclaim, and repeated on an almost daily basis in this court by Mr Johnson, were very serious allegations, including allegations of fraud, malice and criminality on behalf of Mr Hanlon and Harwood Andrews.

5 Ms Sofroniou submitted, as indeed I have found in my ruling which I delivered earlier today, that there was not a skerrick of evidence to substantiate any of those allegations. Ms Sofroniou drew to my attention the usual principles which apply to practitioners and parties making such unsubstantiated allegations under the cloak of the privilege which is afforded to court documents and to proceedings in court.

6 The second point made by Ms Sofroniou is that the defendant has, on a repeated basis, abused his position at the Bar table and in court. He has repeatedly made allegations echoing the defence and counterclaim, which are hurtful and defamatory, without any substantiation, and that her clients should be awarded indemnity costs in order to go some way to alleviating the damage which has been done to them.

7 The third matter advanced by Ms Sofroniou is that there is evidence that the defendant delivered the counterclaim, and made allegations of the type reflected in it, for an ulterior purpose. The correspondence, which has already been tendered in the action, including the letter by the defendant dated 6 March 2008 which is Exhibit 36, and the letter of 17 March 2008, Exhibit H2, exemplify what Ms Sofroniou submits is the ulterior purpose of the defendant, namely, to endeavour to intimidate Mr Hanlon and Harwood Andrews from carrying out their lawful duties of representing their client without fear or favour.

8 The fourth submission made by Ms Sofroniou arises out of the manner in which Mr Johnson has conducted himself in this case. She has submitted that by his constant disobedience of rulings and directions I have given to him, he has wilfully flouted the processes of this court and thereby substantially protracted the hearing of this case.

9 In response Mr Johnson made a lengthy reply of more than 45 minutes' duration. At the completion of his submissions I adjourned for a short time, in order to compose some reasons for decision and to consider the matter. When I returned he further addressed me for ten minutes on matters which were entirely irrelevant.

10 Most of Mr Johnson's submissions, regrettably, in relation to Ms Sofroniou's application were irrelevant. Despite every endeavour I made, and indeed counsel made, to direct him to the points made by Ms Sofroniou, he did not seem interested in doing so, but rather wished to use the Bar table as a forum by which to make extravagant claims and speeches.

11 So far as I have been able to derive, and do probably more than justice to his submissions, he made some arguments which include the following. Firstly, he argued that the counterclaim which I will dismiss was only drafted as a holding document, and that Mr Johnson never contemplated that the trial will proceed on the basis of that document.

12 Secondly, he submitted that the plaintiff's case against him is without foundation, and accordingly, he submitted that there is substance to the allegation contained in the counterclaim that the defendants to the counterclaim were in some way acting maliciously or fraudulently.

13 Thirdly, Mr Johnson, in what seemed to me to be an irrelevant submission, went to some lengths to describe himself as an upholder and vindicator of human rights. I succumb to the temptation to echo Ms Sofroniou's retort to that submission, namely that there is no greater way to uphold human rights than to respect those of others. It seems to me that, by serially making unsubstantiated allegations of the type he has in this case, he has wilfully violated the rights of other litigants in this court.

14 Mr Johnson appears as a litigant in person, and as such, this court has extended to him considerable latitude in the conduct of this trial. I observe also that the same latitude and generosity has been extended to him by counsel for the plaintiff, Mr Devries, and by counsel for Mr Hanlon and Harwood Andrews, Ms Sofroniou. In the highest tradition of the profession and the Victorian Bar, they have gone out of their way to ensure that he is well warned of any application they might make, to assist him with legal authority, and indeed, they have made available to him documents which he has not been able to find in his own papers.

15 On the other hand, Mr Johnson is a solicitor of some 20 years call. He was admitted to practice by order of the Full Court of the Supreme Court, and he has told me he has conducted his practice for about 20 years. Throughout this trial, notwithstanding his protestations that he does not have any litigation experience, I have remarked on the skills which have been shown by Mr Johnson forensically when he wishes to apply his mind to the issues in the case. He well understood principles such as the rule in Browne v Dunn[3]. He cross-examined witnesses at some length, and, whilst much of the cross-examination was irrelevant, when he focussed on relevant matters, he applied such rules. He called a number of witnesses on his own account, and, by and large, managed to ask them non-leading questions with a full understanding of the rule that a party may not ask his or her own witnesses leading questions.

16 I say all that to demonstrate that Mr Johnson is no ordinary litigant in person to whom these courts are abundantly, and some may well say excessively, solicitous. Rather, Mr Johnson is a man of considerable capability, who I consider throughout this case has flouted and abused the rights and the courtesy and the latitude shown to him by other counsel, and by myself, in order to try to disrupt this proceeding. In particular, Mr Johnson has continually endeavoured to raise matters well outside the pleadings in this proceeding. Time and again I have directed him to the simple principle which binds these courts, that we are only permitted to, and we only, decide cases on the issues contained in the pleadings. Indeed, as a human rights lawyer, Mr Johnson will well understand the purpose served by pleadings, namely to give notification to the other side of allegations which are to be made in court, and to delineate the issues that are decided in court.

17 When the plaintiff made application to me on, I think, the second day of this trial to amend its own pleadings, an application which I allowed, Mr Johnson then demonstrated a good understanding of the rules relating to pleadings. Not withstanding all of that, Mr Johnson has sought, time and again, to raise and ventilate issues well outside the scope of the issues contained in the pleadings. He has not sought to amend his own pleadings, not once.

18 On the other hand, it has been a constant refrain by Mr Johnson that with this proceeding there should be combined an entirely different proceeding instituted against him by Trust Company Fiduciary Services Ltd in Action No. 9263 of 2008. He has submitted that that case should be heard alongside the current proceeding.

19 My limited understanding of that case reveals that it involves a claim by the plaintiff as mortgagee against Mr Johnson in respect of a mortgage by him of the Dorrington Street property. Mr Johnson has responded to that claim by issuing a counterclaim against, I think, ten different respondents. They include Dr Richard Ingleby of counsel, Mr Graham Devries, who currently represents the plaintiff, David List, psychologist, the Minister for Human Services, Federal Magistrate Daniel O'Dwyer, the Legal Services Commissioner and the Attorney General for the State of Victoria.

20 It is understandable, indeed it was inevitable, that I reject the application which seem to be made or the imprecation advanced by Mr Johnson that the two proceedings be combined. Notwithstanding that direction which I reminded Mr Johnson of on a number of occasions, he seemed to rail against it throughout the case, and wasted a lot of time trying to raise issues which, if they have any relevance at all (on which I express no view), seem to arise out of the florid 156 page counter claim delivered by him in those proceedings.

21 As I stated, Mr Johnson has argued before me that the counter claim which he delivered in this case, was somewhat of a holding document which he drafted in haste over night. In my view, that assertion by Mr Johnson is nothing but disingenuous. Firstly, the counter claim is dated February 2008. This case did not come on for trial until 2 December 2008. In the meantime, there were a number of interlocutory proceedings. Mr Johnson had every opportunity to amend or change that counterclaim, or indeed to abandon it, had he wished to do so. Mr Johnson is a lawyer. He made serious allegations in the counterclaim, including involvement by Mr Hanlon in an alleged theft of documents, fraud by Mr Hanlon and Harwood Andrews, and malicious conduct by them.

22 Mr Johnson is a lawyer and an intelligent lawyer. He well understands those words and the meaning of them. It is in my view entirely disingenuous to claim that they were somehow or other put in the counterclaim in haste and did not mean what they say. Indeed, the wild allegations made from the privileged position of the Bar table by Mr Johnson in this proceeding indicate that those words were not simply placed on that document in error, but were done so deliberately.

23 The ordinary rule, as I say, is that where litigation is commenced against a defendant or respondent and that litigation fails, the defendant or respondent is entitled to an order for costs on a party party basis. It is only in exceptional circumstances that a court will order costs on a solicitor-client basis. This is particularly so where the unsuccessful party is unrepresented. Notwithstanding those principles, in my view this is a case where not only am I justified in awarding solicitor client costs to Mr Hanlon and Harwood Andrews, but indeed, the circumstances are such that such an order is necessitated.

24 The allegations made by Mr Johnson against Mr Hanlon, Harwood Andrews, are self-evidently particularly serious. They involve allegations, which if true, would impute severe and grave wrongdoing, and indeed criminal conduct, to a person who is admitted to practice as a barrister and solicitor of this court, and the firm by whom he is employed.

25 It is fundamental and trite, and well understood by practitioners of but a few days' call, that the privileged position occupied by a practitioner or litigant in filing court documents and in making allegations in court, carries with it important responsibilities. From the earliest days in the profession, every lawyer well understands that those allegations may only be made, and ought only be made, where it is clear the person making them has at least some reasonable foundation for such an allegation.

26 Mr Johnson as I say is a solicitor of 20 years' call. Indeed while he was giving his evidence, he acknowledged (at p.983 of the transcript) that he understood the principle to which I have just referred. Notwithstanding that, as I found in the ruling which I have already delivered today, Mr Johnson had not advanced one skerrick of evidence in support of the very serious allegations he made against Mr Hanlon and Harwood Andrews. Indeed, it would seem to me he did not even address some of those allegations in evidence or in his final address. When the defendant was offered the opportunity to address them in cross-examination of the plaintiff by Ms Sofroniou, he backed away from doing so. Notwithstanding all of that, he made other wild allegations against Mr Hanlon and Harwood Andrews in the course of this proceeding, all of which are without substance.

27 In my view, it was clear that Mr Johnson knowingly abused his privileged position in delivering the counterclaim in this case, and in making the type of allegations he has made throughout this case. As I stated, I am satisfied that he has had a full understanding of the serious nature of the allegations, and the responsibilities and duties which attach to any practitioner, including himself, in making them.

28 I agree with Ms Sofroniou's submission that his conduct in advancing those allegations without any foundation, and in repeating and persisting with them in court, could only be described, to say the least, as high-handed and contumelious conduct.

29 In addition to that, it is a matter of some concern for this court that Mr Johnson brought action against legal practitioners for doing nothing more than acting for a client in matters in which that client had an adverse interest to Mr Johnson. As a legal practitioner himself, Mr Johnson well understands that it is the duty and role of practitioners in this State to act for their clients without fear or favour.

30 Indeed, Mr Johnson referred me in argument to the well-known work of the author Geoffrey Robertson "The Tyrannicide Brief" which describes the life and death of the great advocate John Cooke, who gave his life in defence of such a noble principle. It is well known and well understood that it is not for barristers or solicitors to stand in judgment of their client. To do so would undermine and subvert not only the system of justice, but the rights of the clients.

31 I say all that because it is self evident that it is a particularly grave step to bring suit against a practitioner for actions taken by that practitioner when acting on behalf of a client, including such actions as lodging a caveat to protect the solicitor's costs and subpoenaing documents to court. Such a step, if taken, should only be taken where the person making the allegation has a substantial and significant body of evidence to do so. As I have remarked, Mr Johnson has not advanced any evidence in support of his allegations contained in the counterclaim, and has thus brought to this court a firm of solicitors and a practising solicitor and made allegations about them when, on the evidence before me, they had done nothing more than carry out the important duties of representing the interests of their client.

32 The conduct of Mr Johnson in that respect is even more highhanded given the fact that the Calderbank letter, to which I have already referred, was sent to him on 18 August 2008. That letter gave Mr Johnson a most generous opportunity to withdraw the counterclaim. It also gave him the opportunity to pause and consider the gravity of the allegations that he was making. The fact that he continued to persist with the allegations and his counterclaim, in my view, reinforces my conclusion that his conduct in this case has been highhanded.

33 I pause to interpolate that in my view the offer made on behalf of Mr Hanlon and Harwood Andrews was eminently reasonable, both in the terms of the offer and the time given to Mr Johnson to accept it. If there was nothing more about this case than the service of that offer and the failure of the defendant to accept it, I would have ordered solicitor client costs against Mr Johnson from early September 2008, pursuant to the principles discussed by the Court of Appeal in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No.2)[4].

34 However, in my view the letter serves the additional purpose to which I have just referred, namely it reinforces the submission properly made by Ms Sofroniou, and the conclusion which I have reached, that Mr Johnson has acted in a highhanded manner in this case.

35 In addition, in my view, the conduct of the defendant in the course of this trial is sufficient of itself to justify the award of solicitor client costs against him at least in respect of the costs of this trial. As I have remarked on so many times I cannot now recall, the conduct of Mr Johnson throughout this case has served only to protract the hearing of it. When Mr Johnson has applied his mind to the issues between himself and the plaintiff, he has been able to address relevant matters and to bring out matters of evidence which were important and which have assisted me.

36 I say that to indicate that I do not have before me someone who simply lacks the capacity to understand what is and what is not relevant. I have been driven to the conclusion that his conduct in this case, which is self evident from the overly long transcript, has been such as to unduly protract the hearing of this case on a daily, if not an hourly, basis. He has wasted the court's and the parties' time, time and again, with speeches and conduct which are entirely irrelevant to the case. He has disregarded rulings made by me. He has endeavoured to run issues which are not in the pleadings despite my constant reminder to him that he must adhere to the issues. In my view, his conduct has not simply been of someone who has been overborne by the emotion of being a litigant, but rather has been a calculated strategy to try to protract the hearing of this case and indeed, as I have remarked before, to derail it.

37 In Lollis v Loulatzis[5], I referred to a number of authorities in which the courts have taken into account the time wasting by a particular party in fashioning orders for costs to do justice between the parties. In my view, the conduct of Mr Johnson in this trial is not only sufficient, but indeed such as to necessitate, such an order.

38 Each of the reasons I have thus far advanced would in themselves, standing alone, be sufficient to justify an order for solicitor/client costs. In my view, taken in combination they necessitate such an order.

39 Accordingly, I uphold the submission made on behalf of the 2nd defendant by counterclaim Mr Hanlon, and the third defendant by counterclaim Harwood Andrews Proprietary Limited, that the defendant Mr Johnson pay the costs of the counterclaim, including any reserve costs, on a solicitor-client basis.

[1] Cressy v Johnson (No 1) [2009] VSC 35.

At a glance

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Judgment (47 paragraphs)

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Cases Cited (1)