Plaintiff v Defendant

C. Those costs to be stayed until the resolution of the appeal.

2 The cancer case was brought pursuant to s 135BA of the Accident Compensation Act 1985. Sub-section (2) provides that compliance with s 134AB(1)-(21), (27), (28) and (38) of the Act is not required for actions brought under s 135BA. I accept that the ordinary rules of costs applied in this Court ought apply in this matter.

3 The plaintiff opposes the defendant's application for costs, essentially on the basis that the cancer case was wrongly determined. This will be determined elsewhere.

4 I will make orders in the terms proposed by Mr Gorton for the defendant.

5 The asthma case is a little more complicated. I propose to enter judgment for the plaintiff in the sum of $196,315. The defendant sought judgment in a sum $90 lower than this, but the Fox v Wood figure expressed in the defendant's calculations was this amount lower than the actual figure. Otherwise, I accept Mr Gorton's submissions on the appropriate judgment sum.[1]

6 I am told, and I accept, that on 15 February 2008, the defendant made a statutory offer (pursuant to s 134AB(12)) of $180,000 and the plaintiff made a statutory counter offer of $270,000 on 3 March 2008. Thus, if the judgment is in the range between $180,000 and $243,000,[2] s 134AB(28)(d) must apply and "each party bears its own costs".

7 In this case, in my opinion, the strict application of s 134AB(28)(d) operates unfairly to the detriment of the plaintiff. The biopsy scan that revealed the plaintiff's malignant plasmacytoma was conducted on 14 March 2008, that is eleven days after he committed himself to his statutory counter offer.

8 At the time the plaintiff made his counter offer, it is highly likely that he had no appreciation whatsoever that he was suffering from a terminal disease. I consider that his counter offer in all likelihood reflected a significant figure for future economic loss which, of course, was all but destroyed by his cancer. If I considered I had the power, I would set aside the statutory offers and adjudge costs on common law principles.

9 Regrettably, I do not consider that I have that power. The language of s 134AB(28) is direct and mandatory: "... each party bears its own costs - and the court must not otherwise make an order as to costs". Mr Grabau, acting amicus curiae at that stage, mounted an ingenious argument to the effect that the asthma case, by being heard with the cancer case, became indivisibly fused to it and s 135BA(2) therefore operated to render compliance with s 134AB(28) unnecessary. I am unable to accept this. Whilst the underlying facts were identical, the asthma case was tried with the cancer case for convenience and for strategic reasons.[3] It was the subject of separate submissions and ultimately separate verdicts. As a consequence, I consider that I am bound to order that "each party bear its own costs", an outcome that I consider manifestly unfair.

10 Lennon Mazzeo Lawyers and Aloe & Co, both former solicitors for the plaintiff, seek liens over the judgment sum. I shall recite a little of the history of the plaintiff's engagement of solicitors. I understand that during the currency of the asthma proceedings the plaintiff has been represented by at least the following solicitors:

Lennon Mazzeo Lawyers (from 28 September 2009 to 19 November 2009) (Lennon Mazzeo)

Aloe (from 20 November 2009 to about 18 January 2010)

Lennon Mazzeo entered into a costs agreement, relating to both cases, with the plaintiff on 30 September 2009.[4] The substance of that agreement was as follows:

(a) Costs (as opposed to disbursements) were payable only if there was a successful outcome (which is defined in the agreement).

(b) Disbursements must be repaid at "the conclusion of the matter".

(c) The plaintiff agreed to follow the reasonable advice provided to him by Lennon Mazzeo.

(d) The plaintiff agreed to continue instructing Lennon Mazzeo to act on his behalf.

(e) If the plaintiff terminated the retainer of Lennon Mazzeo, or if Lennon Mazzeo terminated the plaintiff's retainer "for good cause" during the "course of the matter and before ... an outcome", then all legal costs incurred would be charged but no "uplift fee" would be charged.[5]

(f) Similarly, Lennon Mazzeo reserved the right to "terminate (the) retainer if (the plaintiff did) not accept reasonable advice (Lennon Mazzeo Lawyers gave him) relating to the matter." In that event, all legal costs incurred would be charged but no "uplift fee" charged.

11.2 In an affidavit sworn on 12 February 2010, Mr Mazzeo stated that an offer of compromise from the defendant's solicitors was received on 4 November 2009. This offer of compromise was in respect of the cancer matter. The offer was in the sum of $250,000. It was sent to the plaintiff with a brief covering letter which explained the consequences of receiving an award of damages less than the offer. The offer remained open until 4.30pm on 17 November 2009. The following recitation of facts is drawn from Mr Mazzeo's affidavit of 12 February 2010.

11.3 On 17 November 2009 a conference was held at Mr Richard McGarvie SC's chambers. In addition to Mr McGarvie, also present were Mr McCredie of counsel, Ms Kleyn, Mr Mazzeo and the plaintiff. Mr McGarvie and Mr McCredie were engaged to represent the plaintiff at his trial listed to commence the following day. The plaintiff was given oral and written advice in relation to the offer to this effect[6]

• The cancer claim would most likely be lost.
• The offer of compromise should be accepted.
• The effect of a judgment figure of under the offer of compromise was explained.
• If the cancer case were lost, then the defendant would be entitled to seek its costs relating to that claim, which would be in the vicinity of $150,000 to $300,000.
• Certain evidence relating to the issue of causation in the cancer claim had been sought by Lennon Mazzeo, but when received, it was adverse to the plaintiff's case.
• It was the view of Mr McGarvie, Mr McCredie and Lennon Mazzeo that the offer of compromise ought be accepted.

11.4 The matter was listed for trial to commence on the morning of 18 November 2009. The morning was occupied with legal argument. Mr McGarvie SC and Mr McCredie withdrew from the case that day. Mr McCredie, after the plaintiff expressed, "in effect no confidence in him",[7] Mr McGarvie as a result of the plaintiff's "failure to accept" what was considered "to be reasonable advice".[8]

11.5 I ordered a mediation, which occurred before Gardiner AsJ on 19 November 2009. Mr Craig Harrison SC and Mr Brent Hutchinson of counsel were engaged by Lennon Mazzeo.

11.6 On both 18 and 19 November 2009, it was explained to the plaintiff by his solicitor that if he did not accept the reasonable advice of his practitioners, then it would be deemed a breach of the conditions of the costs agreement and Lennon Mazzeo would cease to act. The advice given on 17 November 2009 was in effect repeated on 18 November. The plaintiff did not accept it.

11.7 At the mediation, I understand the plaintiff was offered $400,000 plus costs plus retention of benefits already received in settlement of all claims[9] - that is, the cancer case, the asthma case and a pending Magistrates' Court proceeding for weekly payments of workers compensation. The plaintiff was advised to accept this offer by all of his then legal team. The plaintiff rejected this advice.[10]

11.8 Ms Kleyn appeared before me and sought leave for Lennon Mazzeo to withdraw as solicitors for the plaintiff. I granted that leave. In a letter dated 19 November 2009 from Mr Mazzeo to the plaintiff, the penultimate paragraph reads as follows:

"We regret that this step became necessary, however unfortunately we had no other alternative given that it is abundantly clear to us that you have lost confidence in us and that you have not complied with your obligations under our retainer, in particular that you cooperate with our office in relation to your claim and that you follow the reasonable advice that is provided to you by our office and continue to provide us with instructions."

Mr Mazzeo (at paragraph 18 of his 12 February 2008 affidavit) states that his firm was instructed to act in both the cancer case and the asthma case, and preparation and instructions "have at all times been in respect of the joint proceedings as the one action with two separate components".

11.9 The plaintiff initially instructed Aloe in early July 2009. A costs agreement was provided to the plaintiff on 13 July 2009 which was returned signed by the plaintiff.[11] At this stage, the asthma case was set down for hearing in the County Court. The cancer case proceedings commenced by way of writ on 18 September 2009. The solicitors responsible for issuing that writ were Aloe. The fee agreement in its original and only form did not relate to the cancer proceedings.

11.10 Aloe assumed responsibility for the conduct of the asthma case from Clarke Toop, the plaintiff's third or fourth firm of solicitors. In order to gain access to the Clarke Toop file, Mr Aloe, on the plaintiff's behalf, agreed to pay Clarke Toop $21,405 for fees and disbursements relating to the asthma case "and no fault entitlements". Such sum was payable "at the conclusion of the proceedings".[12]

11.11 The costs agreement was similar in nature to the Lennon Mazzeo agreement, save that it related only to the asthma claim. It was, in effect, a "no win, no fee" agreement, but with the plaintiff accepting liability for all necessary and proper disbursements.

11.12 On approximately 22 September 2009, the plaintiff terminated the services of Aloe, Lennon Mazzeo taking over the conduct of both cases.

11.13 Mr Aloe gave evidence on this application. He states that whilst there was no costs agreement ever in place for the cancer claim both during the first period of his engagement and the second period, he acted for the plaintiff in relation to both cases.

11.14 Aloe & Co were re-engaged by the plaintiff some short time after 20 November 2009. By that time, Mr Karam had rejected the various offers made and the trial of the two matters before me was imminent. Mr Aloe engaged Mr Adams QC and Mr Grabau to appear at trial. No further fee agreement was entered into between the plaintiff and Aloe & Co.

11.15 The trial commenced on 30 November 2009 and concluded on 11 December 2009. It occupied eight sitting days. Considerable preparation obviously went into presenting the plaintiff's cases. I shall return to this aspect later.

11.16 Mr Karam resists the solicitors' applications for declarations of lien and says they ought not be entitled to any costs at all. Further, he says that to the extent than Lennon Mazzeo are entitled to their costs and disbursements, Aloe should pay them.

11.17 In short compass, as I understand him, Mr Karam alleges:

(a) as against Lennon Mazzeo or counsel engaged by them

• The advice to accept the offer of compromise was unreasonable
• He was threatened by junior counsel that if he did not accept the offer of compromise, he (junior counsel) would refuse to act further
• Lennon Mazzeo stage managed their termination of the retainer to delay the trial and pressure him into accepting the unreasonable offer of compromise
• Lennon Mazzeo acted unreasonably in failing to transfer the Magistrates' Court proceedings (for weekly payments) into the Supreme Court
• Senior counsel told him on 12 November he had a very good case on causation (in the cancer case) and he would succeed in court
• He (Karam) made every reasonable effort to settle at the mediation and followed Lennon Mazzeo's advice. He maintained that he did not, in fact, reject any monetary offer at the mediation conferences held on 12 November, 19 November and 26 November 2009
• Lennon Mazzeo amended the industrial asthma claim against Mr Karam's "advice" which was to the effect that such amendment was unnecessary
• Lennon Mazzeo and junior counsel were incompetent in managing his matter in that they rejected Mr Karam's advice that certain documents were not discoverable
• The amount claimed under the costs agreement is unreasonable and excessive
• He did not receive the letter of 18 November 2009 referred to in Mr Mazzeo's affidavit
• His cancer case should never have been brought at Common Law
• His serious injury certificate in the asthma case was deliberately omitted from the court book
• Lennon Mazzeo sought an expert opinion on the expected latency period against his wishes[13]

• In relation to the cancer case there was no costs agreement and therefore he was not obliged to pay for costs and/or disbursements
• In relation to the asthma case the initial agreement was not revived and as a consequence he was not obliged to pay for costs and/or disbursements
• The trial only concerned the cancer claim, was lost, and so no costs and/or disbursements incurred in the trial are payable
• Aloe refused to transfer the Magistrates' Court proceedings to the Supreme Court
• Aloe misled the Court by providing untruths to the court which affected the outcome of the trial
• Aloe and a consultant engineer/ergonomist engaged by Aloe refused to allow the plaintiff to witness the sample taking process of a solvent. They then changed or substituted that solvent for another
• Aloe intentionally damaged the plaintiff's case by altering court documents relating to an Originating Motion filed on 7 September 2009
• Aloe did not respond to letters requesting progress reports or advice
• Aloe did not serve him honestly
• Aloe was dilatory in performing legal work
• Aloe refused to advise on appeal prospects
• Aloe encouraged the plaintiff to reject settlement offers.

12.1 I consider that Lennon Mazzeo acted conscientiously and in the plaintiff's interests at all times. Lennon Mazzeo were engaged on or about 30 September 2009 and their services were terminated on or abut 20 November 2009. In the period of seven weeks they had to prepare the plaintiff's Supreme Court trials and brief counsel to act.

12.2 I accept Mr Mazzeo's account of the advice given to the plaintiff relating to the offers made to settle the matters. I consider this advice was entirely reasonable.[14] I accept that, in rejecting that advice, Lennon Mazzeo were entitled to terminate the plaintiff's retainer pursuant to Clause 12 of the retainer and thus are entitled to charge the plaintiff for all legal costs incurred by them as well as disbursements. The amount of these costs and disbursements will be determined by a Taxing Master.

12.3 Aloe came back into the case under less than ideal conditions. He had to master complex issues of causation, brief senior and junior counsel, prepare witnesses, assist in the preparation of complex cross-examinations and deal with a highly proactive client. To my observation the plaintiff's legal team (including Aloe) performed admirably in difficult circumstances. Throughout their time in Court the plaintiff repeatedly interrupted the flow of evidence and sought to correct his counsel. On several occasions I adjourned the proceedings to allow these events to occur privately.

12.4 The causation issues in the cancer case occupied the vast bulk of evidence in the trial but both cases were alive throughout the eight sitting days. Mr Adams and Mr Grabau called five witnesses and the plaintiff. They cross-examined three witnesses called by the defendant. All witnesses bar the plaintiff were expert witnesses.

12.5 Mr Aloe answered from the witness box the various allegations made by the plaintiff and I accept his evidence in whole. Mr Aloe stated that when he resumed acting for the plaintiff he considered the original fee agreement to be reactivated and in the frenetic pre-trial activity he overlooked the fact that it related only to the asthma case. I find that the agreement between the plaintiff and Mr Aloe, as it related to the cancer case, was intended by both Aloe and the plaintiff to be of the same "no win/no fee" nature as the asthma case agreement.[15] The asthma case resulted in a successful outcome as defined by the Aloe fee agreement.

12.6 I consider therefore that by engaging Aloe on the terms I have described the plaintiff became, upon judgment, contractually liable to pay Aloe for all fees and disbursements in relation to the asthma case and all disbursements (including counsel) in the cancer case. I consider that the parties intended to revive the original asthma agreement and by their conduct did in fact do so. There is nothing in the plaintiff's argument that no written agreement means no liability to pay. Section 3.4.19 of the Legal Profession Act sets out the bases upon which legal costs are recoverable. It includes circumstances where a costs agreement is in place (3.14.19(a)) and also where it is not. In the latter case legal costs are recoverable:

"(b) in accordance with an applicable practitioner remuneration order or scale or costs; or

(c) if neither paragraph (a) nor (b) applies according to the fair and reasonable value of the legal services provided."[16]

13.1 The general principle of a solicitor's lien was expressed in Ex Parte Patience: Makinson v the Minister[17]

"A solicitor has no lien for his costs over any property which has not come into his possession. If, however, as the result of legal proceedings in which the solicitor has acted for the client, the client obtains a judgment or award or compromise for the payment of money, although the solicitor acquires no common law title to his client's right to receive the money or to any part of that right, he acquires a right to have costs paid out of the money, which is analogous to the right which would be created by an equitable assignment of a corresponding part of the money by the client to the solicitor. That is to say, the solicitor has an equitable right to be paid his costs out of the money; and if he give notice of his right to the person who is liable to pay it, only the solicitor and not the client can give a good discharge to that person for an amount of the money equivalent to the solicitor's costs..."

It is clear that the right exists independently of any curial intervention. A court merely enforces the lien, it does not create it. Additionally the declaration of that right need not quantify the precise figure to which the solicitor is entitled - that quantification may depend on agreement, taxation or assessment.[18] The right exists if the solicitor's exertions were fundamental to obtaining the judgment. The entitlement may arise despite the fact that a solicitors exertions had come to an end before judgment was obtained,[19] although slight or fleeting participation may be insufficient to establish a causal link between the solicitor's activities and the judgment.[20]

14 For the reasons I have expressed in paragraph 12, I consider that I ought declare liens in favour of both Aloe and Lennon Mazzeo. Whilst Lennon Mazzeo only acted for the plaintiff for a little less than two months, they prepared the cases for trial. A perusal of the items on their bill of costs demonstrates a significant application of time, effort and money on behalf of the plaintiff. I regard their preparation for both cases as fundamental to the plaintiff's judgment in the asthma case. Similarly, I regard Aloe's efforts ( as set out at para 12.3) as fundamental to the judgment in the asthma case, although contractually I have found they are not entitled to the legal costs in the cancer case.

15 It is necessary to say a little about the overlap between both cases. Whilst they were separate proceedings, the asthma case and the cancer case were brought relying on identical facts, and the identical exposure to solvents. It was essential, from the plaintiff's perspective that the cases be tried together, otherwise he ran the risk of 'falling between two poles'. Had the asthma case been tried separately he may well have encountered a defendant's argument that his cancer had obliterated his economic loss and overtaken any pain and suffering arising from the asthma. Had the cancer case been tried alone similarly he may have encountered an argument that his future economic loss was minimal because asthma had already rendered him unfit for work. Additionally, evidence gathered for the cancer case was indirectly relevant to the asthma case.[21] I consider that the work done on the cancer case was 'instrumental' to the judgment in the asthma case and I see no good reason to confine the lien to purely 'asthma case' work.

Section 134AB(30) of the Accident Compensation Act 1985 ("the Act")

16 Mr McCredie seeks an order pursuant to s 134AB(30) and (31) of the Act in relation to the cancer case. Sub-sections (30) and (31) read as follows:

"(30) A person who represents or acts on behalf of a worker is not entitled-

(a) to recover any costs from that worker in respect of any proceedings under this section; or

(b) to claim a lien in respect of those costs; or

(c) to deduct those costs from any sum awarded as damages-

unless an award of costs has been made by the court in respect of those costs or those costs are payable in accordance with this section by the worker.

(31) The court, on the application of-

(a) the worker; or

(b) the person representing or acting on behalf of the worker-

may determine the amount of costs to be awarded to the person representing or

acting on behalf of the worker."

17 Section 134AB(30) acts as a bar to the recovery of costs from a worker, or to claim a lien in respect of those costs unless either an award of costs has been made by the Court in respect of those costs or those costs are payable in accordance with this section by the worker.

18 In the cancer case, s 134AB(28)(a) requires that the worker must pay his own costs. Thus the worker's costs "are payable in accordance with this section by the worker". The language of s 134AB(30) is couched in the present tense; on one view, the sub-section only applies to a person currently representing or acting on behalf of a worker. I consider the sub-section must apply to all practitioners who either currently or in the past have represented or acted on behalf of a worker. The clear Parliamentary intent of s 134AB(30) is "to impose a degree of court supervision of the costs which may be paid personally by the worker, unless such costs are covered by the provisions of the Act".[22] It would be a nonsense if sub-s (30) could be avoided by the simple expedient of a solicitor ceasing to act for a worker.

19 The principles that apply to an application made by a solicitor to recover costs from a worker under s 134AB(30) were set out by J. Forrest J in Acir v Frosster.[23]

1. 26 In determining an application by a solicitor to recover costs from a worker under s 134AB(30), the following principles apply:

(a) A solicitor cannot recover solicitor/client costs from a client in proceedings under s 134AB (whether a claim for damages or a serious injury application) absent compliance with the provisions of s 134AB(30). In practice, this means, unless there is an interlocutory order, no entitlement to such costs arise until judgment or settlement.

(b) That entitlement is only enlivened by an order of the Court or where the section mandates that the worker's costs are payable in accordance with s 134AB.

(c) A Court may make an order for costs on a solicitor/client basis under sub-s 30. In doing so it has a general discretion as to the form of the order. It may order costs on a solicitor/client basis, or fix costs payable up to a certain level, or attach any other condition it sees fit. It is not limited to fixing the amount of such costs.

(d) In considering whether to make an order for solicitor/client costs (and, if so, in what form), a Court may, without limiting its general discretion, take the following matters into account:[9]

• The retainer between the worker and solicitor and the consequential entitlement of the solicitor to costs 'due and payable' by the worker to the solicitor.
• The purpose of sub-s 30 is to ensure Court supervision of any bills of costs rendered by the solicitor to a workers.
• The limit of 80% of party/party costs set by s 134AB(29) and imposed on the recovery of costs from the defendant.
• The extent to which the Court considers that non-recoverable costs have been expended by the solicitor on behalf of the worker to achieve the result obtained.
• The satisfaction of the Court that the worker understands his or her right to have the Court fix the amount of costs (either by way of taxation or by order pursuant to sub-s 31) and that the worker has a general understanding of his or her rights in relation to the avenues of redress or review of the costs sought by the solicitor.
• The manner in which the claim has been conducted, and in particular whether the solicitor has exposed the worker to adverse cost consequences which could have been avoided by careful and responsible preparation of the claim.
• A reliable estimate of the solicitor/client costs has been put forward providing the Court with some guidance as to the basis for the estimated amount of solicitor/client costs.
• Whether, in the circumstances of the case, it is desirable that the Court fix the amount of costs (by either setting a ceiling or approving the amount) as opposed to making an order for solicitor/client costs generally.
• Whether, in the circumstances of the case, it is appropriate to refer the estimation of such costs to an experienced officer of the Court, such as (in this Court) the Taxing Master."

20 I repeat my earlier remarks about the general standard of application and competence demonstrated by both Lennon Mazzeo and Aloe. I am satisfied that it is appropriate to make orders in favour of both solicitors. Aloe has not yet costed the file, Lennon Mazzeo have. Whilst Lennon Mazzeo claim a lien in the sum of $109,836.80, I am not required and do not propose to specify an amount of costs. Aloe's lien, as I have found, does not extend to legal costs in the cancer case, although in a practical sense this will make little difference as the total sum of the liens will greatly exceed the judgment sum.

(1) There be judgment for the defendant in proceeding number 9113 of 2009.

(2) The plaintiff pay the defendant's costs of the proceeding in matter number 9113 of 2009.

(3) The payment of those costs be stayed until the resolution of the appeals by the plaintiff relating to both matters.

(4) There be judgment for the plaintiff in proceeding number 9926 of 2009 in the sum of $196,315.

(5) The defendant pay into court the proceeds from the judgment sum in proceeding number 9926 of 2009, to be held by the Senior Master or his equivalent pursuant to s 113(1) of the Supreme Court Act 1986.

(6) Each party bear their own costs of proceeding number 9926 of 2009 pursuant to s 134AB(28)(d) of the Accident Compensation Act 1985.

(7) I declare Lennon Mazzeo Lawyers have a lien over the proceeds of the judgment sum of proceeding number 9926 of 2009.

(8) I declare Aloe & Co Pty Ltd have a lien over the proceeds of the judgment sum of proceeding number 9926 of 2009, such lien not to include any legal fees relating to proceeding number 9113 of 2009 but to include disbursements for that proceeding and their costs and disbursements of proceeding number 9926 of 2009.

(9) Pursuant to s 134AB(30) of the Accident Compensation Act 1985 Lennon Mazzeo Lawyers are entitled to such costs as are agreed or allowed by the Taxing Master in respect of their representation of the worker in proceeding number 9113 of 2009.

(10) Pursuant to s 134AB(30) of the Accident Compensation Act 1985 Aloe & Co Pty Ltd are entitled to such costs as are agreed or allowed by the Taxing Master in respect of their representation of the worker in proceeding number 9113 of 2009, such costs not to include any legal fees relating to that proceeding but to include disbursements relating to that proceeding.

(11) Such amount as is approved upon the taxation of Bills of Costs rendered by Lennon Mazzeo Lawyers and Aloe & Co Pty Ltd in relation to both proceedings be paid to those firms from the proceeds of proceeding number 9926 of 2009 that are held in court.

(12) The costs of Lennon Mazzeo Lawyers and Aloe & Co Pty Ltd arising out of this application for costs be paid from the proceeds of proceeding 9926 of 2009 that are held in court.

(13) I stay the operation of orders 4 to 12 until the resolution of the appeals.

JUDGMENT: CALCULATION OF INTEREST AND DEDUCTIONS

• Total loss at time of issue on 28 March 2008: $52,000

Net Compensation paid to 14 February 2008: $43,712.60

• 13 February 2008: Statutory Offer pursuant to s 134AB(12)(b) of $180,000.
• 3 March 2008: Statutory Counter Offer of $270,000
• Section 134AB(12)(c) - 90% Statutory Counter Offer = $243,000
• Judgment is less than 90% of the Statutory Counter offer.
• Under s 134AB(28)(d) - each party must bear their own costs.

[1] See T552ff. I have annexed the defendant's written calculation handed up in discussion to these reasons.

[2] Representing 90% of the plaintiff's counter offer.

[4] The full costs agreement (Lennon Mazzeo) is appended to these reasons.

[6] See affidavit of N. Mazzeo of 12 February 2010, paragraph 9. The full text of a letter setting out the advice is contained therein.

[7] Affidavit of Nick Mazzeo of 12 February 2010, paragraph 12.

[8] Affidavit of Nick Mazzeo of 12 February 2010, paragraph 12.

[9] Affidavit of Nick Mazzeo of 12 February 2010, paragraph 19.

[10] Affidavit of Nick Mazzeo of 12 February 2010, paragraph 19..

[11] The full costs agreement (Aloe) is annexed to these reasons.

[12] Affidavit of John Aloe of 5 February 2010.

[13] The above allegations came either from a document styled Statement of Facts in Support of the Affidavit of the Plaintiff tendered on the application by the Plaintiff, or orally in submissions by the Plaintiff.

[14] The best evidence of this is the judgment itself.

[15] That the plaintiff was liable for all disbursements but only liable for Aloes legal costs in the event of a successful outcome.

[16] Legal Profession Practice Act s 3.14.19(a), (b) and (c).

[17] (1940) SR (NSW) 96 at 100. Applied in Worrell v Power & Power [1993] FCA 551; (1993) 46 FCR 214 at 223, 224 and AKKI Pty Ltd v Martin Hall Pty Ltd (1994) 35 NSWLR 470 at 474.

[18] Roam Australia Pty Ltd v Telstra Corp Ltd [1997] PCA 980 per Lehare J.

[21] For example evidence of life expectancy (per Associate Professor Wolf) as a result of the cancer also bore directly on future economic loss in the asthma case.

[22] Acir v Frosster [2009] VSC 539 per J. Forrest J at [7].