Young v King

Solicitors: L C Muriniti & Associates (Applicant) Stern Law (First & second respondents) Colin Biggers & Paisley Pty Ltd (Third & fourth respondents) Moray & Agnew (Fifth respondent) Kennedys Law (Sixth & seventh respondents) Gilchrist Connell (Eighth respondent) Mullane & Lindsay Solicitors (Ninth respondent) Litigant in person (Tenth respondent) Norton Rose Fulbright Australia (Eleventh respondent) N/A (Twelfth respondent) TressCox Lawyers (Thirteenth respondent) Walker Hedges & Co (Fourteenth, fifteenth & sixteenth respondents) N/A (Seventeenth respondent) DLA Piper Australia (Eighteenth respondent) Yeldham Price O'Brien Lusk (for Leonardo Muriniti) File Number(s): 40417 of 2003 and 40449 of 2014

A: Introduction

1. This is my eighth judgment in this matter, and it concerns the costs of these proceedings between neighbouring landowners (Land and Environment Court of New South Wales ("LEC") matters nos 03/40417 and 14/40449).
2. For reasons which appear from what follows, it would seem, regrettably, that this judgment will not be the last that this Court will deliver in these proceedings.

Earlier proceedings and decisions

1. In early 2004, consent orders were made in the substantive matter, by the then Chief Judge of this Court, McClellan ChJ, largely favourable to the applicant, Young: Young v King [2004] NSWLEC 93.
2. Those orders relied upon an undertaking given by the original respondents, Young's neighbours, the Kings, in respect of works which were of concern to Young.
3. Since 2008, Young has been trying to have this Court, and/or the Supreme Court, set aside the consent orders. Her objective has been (Young v King No 6 [2015] NSWLEC 111, at [120]) to have "... set aside entirely all that happened in her case in this Court in February and March 2004, so that McClellan J's decision is treated as a nullity, and everyone goes back to where they started, leaving it open for vastly altered pleadings and more defendants".
4. Young brought a "set-aside" Notice of Motion ("NOM") in the 2003 LEC proceedings on 23 May 2008.
5. That NOM ultimately came before me in September 2012, in a form finally settled on 27 March 2012, and I dismissed it on 19 October 2012: Young v King No 4 [2012] NSWLEC 236.
6. Young appealed that 2012 judgment, and in late 2013 the Court of Appeal remitted her LEC "set-aside" proceedings to this Court for re-hearing.
7. The Court of Appeal also then referred to this Court prerogative type proceedings (which became LEC matter No 14/40449), which she had commenced against the Kings subsequent to judgment No 4 (see judgment No 6, at [27] - [39], and Young v King [2013] NSWCA 364).
8. Both matters have since travelled together in this Court, and I disposed of both of them in favour of the Kings - judgment No 6, on 9 July 2015.
9. Young has also failed, at first instance and on appeal, in proceedings she brought elsewhere against parties, other than the Kings, whom she has now joined in these costs proceedings. For completeness, I note here also that those failed proceedings resulted in the making of substantial costs orders against Young.

Costs orders made, and sought

1. The 19 October 2012 decision (No 4) formally reserved costs, and both Kings and Young brought costs NsOM. Kings sought costs not only from Young but also from her lawyers, Leonardo Muriniti and Robert Newell, both of whom engaged solicitors to represent them. Those NsOM will be set out below ([21] - [22] - see also judgment No 6 at [43] - [48]).
2. Once Young had appealed against LEC judgment No 4, and had commenced her prerogative proceedings in the Supreme Court, it was generally agreed between the substantive parties, and with this Court, that the costs questions involved in those 2012 - 2013 NsOM should be deferred.
3. In judgment No 6 on 9 July 2015 (at [237]), I made the following orders, concerning costs: (3) The applicant is ordered to pay the respondents' costs of the proceedings in this Court since 8 March 2004, on a party-party basis, as agreed or assessed. (4) Order 3 is stayed for 42 days and the parties are directed to file any notices of motion seeking a different costs order by 20 August 2015.
4. It can be seen that order (3) subsumes that part of Kings' 2012 - 2013 NOM which involves Young (but not Muriniti or Newell). (See also T2.12.15, p113, LL20 - 44, and p120, L21 - p121, L15.)
5. On or about 6 August 2015, Young appealed against judgment No 6, in respect of both proceedings, apparently on the grounds that I erred in law by not providing adequate reasons for my rejection of the Appellant's "fraud allegations".
6. Pending that appeal, she also sought costs orders in her favour against not only the Kings, but also against sixteen other named respondents, who have never been parties to the substantive proceedings (see [27] below). Those additional sixteen include lawyers, experts in various disciplines, and Warringah Shire Council ("Council").
7. Young's current claims for costs supplant those in her November 2012 NOM, but are made on "precisely the same" basis as her "set-aside" attempts (T30.11.15, p30, L5), that basis being her claim of a broad-based "conspiracy" to defeat or defraud her, a claim in which she has comprehensively failed.
8. On 1 December 2015, her costs claims against eight of the additional sixteen respondents were summarily dismissed, with costs: Young v King (No 8) [2015] NSWLEC 187. I will return to that decision ([42] and [67] below).
9. Young's costs claims against the Kings and the other eight remaining respondents, and that part of the Kings' costs claims which seeks indemnity costs against Young (but not, at this stage, Muriniti, or Newell), were then argued on 1 and 2 December 2015, and are the subject of this decision.

B: What Claims are or have been made in this Court for Costs?

Claims made following the 2012 judgment (No 4)

1. Young sought, in her NOM filed 16 November 2012, orders: 1. That the Respondents pay the costs of the Applicant's Motion originally filed on 23 May 2008 (as finally formulated on 18 September 2012) ("the Motion"). 2. In the alternative, that each party pay their own costs of the Motion. 3. In the alternative, that the Respondents pay the costs of the Motion subject to the Applicant paying the costs of such interlocutory hearings where the costs were incurred by reason of the Applicant's lack of reasonably expected readiness; 4. In the alternative the costs of the Motion be reserved pending: a. The determination of the Applicant's proceedings for certiorari and mandamus in the Supreme Court of New South Wales ("the Supreme Court") such application in respect of the Final Orders in Land & Environment Court of New South Wales Proceedings 40417 of 2003 ("Proceedings 40417"); and/or b. The transfer (upon the application of the Applicant) of Land and Environment Proceedings 40417 of 2003 ("Proceedings 40417"), to the Supreme Court and back to the Land & Environment Court; and/or c. The hearing and determination of Proceedings 40417 upon transfer back to the Land & Environment Court as contemplated by (b); and/or d. The transfer of District Court Proceedings 2857 of 2007 ("Proceedings 2857") to the Land & Environment Court via the Supreme Court; and/or e. The hearing and determination of Proceedings 2857 of 2007 in the Land & Environment. 5. Such further orders as this Honourable Court deems fit.
2. Kings joined Young's solicitor, Muriniti, and her then counsel, Newell, as second and third respondents respectively, to a NOM, brought against Young, and amended on 21 March 2013, seeking (emphasis mine): 1 An order that the First, Second and Third Respondents on the motion for costs jointly and severally pay, on an indemnity basis, the Respondents' costs of the Notice of Motion originally filed on 23 May 2008 as finally formulated on 27 March 2012. 2 An order that First, Second and Third Respondents on the motion for costs jointly and severally pay, on an indemnity basis, the Respondents' costs of the Notice of Motion dated 24 May 2011, filed by the Respondents together with the costs, on an indemnity basis, of and incidental to the dispute with respect to the Applicant's Notice to Produce dated 29 or 30 March 2011. 3 An order that the Applicant's Notice of Motion filed 26 November 2008 (seeking orders granting access to the Respondents' land by experts) be dismissed. 4 An order that the First, Second and Third Respondents on the motion for costs jointly and severally pay, on an indemnity basis, the Respondents' costs of the Notice of Motion filed 26 November 2008. 5 An order that the First, Second and Third Respondents on the motion for costs jointly and severally pay, on an indemnity basis, the Respondents' costs of the Respondents' Notice of Motion filed 20 February 2009. 6 For more abundant caution, an order that the First, Second and Third Respondents on the motion for costs jointly and severally pay, on an indemnity basis, all costs reserved by the Land and Environment Court between 23 May 2008 and to date. 7 Further or other orders as the Court sees fit.
3. As already noted above ([15] and [18]) all of Young's NOM of November 2012, and some of Kings' of 2012 - 2013, have been overtaken by the present costs proceedings.

Claims made following the 2015 judgment (No 6)

1. Since delivery of judgment No 6, and pursuant to Order (4) made in it, the following NsOM relevant to costs have been filed in this Court:
2. On 11 August 2015, the Kings filed a NOM against Young for my costs order against her (14 above) to be on an indemnity basis;
3. On 20 August 2015, Young filed a NOM seeking (a) that her costs from 8 March 2004 be paid on an indemnity basis by 18 respondents, and (b) that the 3rd to 18th respondents indemnify her "against any costs order that might be made against her in relation to the application to vacate the 2004 orders on an indemnity basis from 8 March 2004 until the final disposal of the proceedings".
4. The first and 2nd respondents named in that NOM are the Kings, but the 3rd to 18th respondents ("R") are: (R3) Jason Hones, Young's solicitor in 2003 - 2004; (R4) Hones Lawyers, Jason Hones's firm; (R5) Ian Hemmings, counsel briefed by Hones on Young's behalf in 2003 - 2004; (R6) Stephen John Perrens, engaged by Young 2003 - 2004 as a hydraulic expert; (R7) Hughes Trueman Pty Limited, Perrens's firm at the time; (R8) Warwick Davies, engaged by Young as a geotechnical engineer; (R9) Stephen Noel Griffiths, Kings' solicitor in 2003 - 2004; (R10) Robert Charles Springett, an engineer engaged by Kings; (R11) Michael Brearley, a civil engineer engaged by Young in 2012; (R12) Ross Fraser, a civil engineer engaged by Young in 2008; (R13) Tony Tuxworth, a town planner engaged by Young in 2011; (R14) Copland Lethbridge, a surveyor engaged by Young; (R15) Bee & Lethbridge Pty Limited, R14's firm; (R16) Geoff Goodyer, a town planner engaged by Young; (R17) Victor Schubert, a town planner engaged by Kings in 2003; and (R18) Warringah Shire Council ("Council"), the local government authority covering the properties of the principal disputing parties. (For further information regarding the respondents, see Young v King No 8 [2015] NSWLEC 187, at [7] and [9]).
5. On 6 October 2015, the Kings filed a NOM seeking indemnity costs from Young, and her solicitor Leonardo Muriniti (who now employs Robert Newell as a solicitor), in respect of Young's NOM of 20 August 2015.
6. On 13 or 15 October 2015, Davies, Griffiths, and Brearley (R8, R9 and R11) filed NsOM variously seeking summary dismissal and costs (indemnity or otherwise).
7. On 16 October 2015, Tuxworth (R13) filed a NOM seeking that the claim against him be dismissed, and that he be granted indemnity costs against Muriniti from 20 September, or, alternatively, that the applicant pay the costs of his motion.
8. On 21 October 2015, the Council (R18) filed a NOM seeking summary dismissal and costs.
9. On 25 November 2015, Copland Lethbridge and Bee & Lethbridge Pty Ltd (R14 and R15) filed NsOM seeking (a) the summary dismissal of the applicant's NOM of 20 August 2015, and (b) that Muriniti indemnify them against any costs payable on an indemnity basis from 20 September 2015. They amended their NsOM on 30 November, to seek that the applicant also pay Goodyer's (R16) costs of the motion.
10. In the 2015 costs proceedings, Young did not pursue her November 2012 NOM (see [21] above), but she pressed her 20 August 2015 NOM ([26] above), which in all respects overtakes it.
11. Young's 2015 NOM is supported by her affidavit of that date, alleging that all 18 respondents should pay her costs, because they had all participated in an "unlawful means conspiracy" against her.
12. Clearly, the Kings are in a different category from the other sixteen named respondents to Young's costs motion (Tp78, LL36 - 37, and p119, LL49 - 50), but Young sought to rely on all her material against all eighteen respondents to the one motion (Tp81, LL6 - 13).
13. Accordingly, argument on the Kings' motion for its costs order to be made on an indemnity basis was conveniently heard at the same time as Young's arguments on her claims against all respondents. I will deal with the 16 other respondents first, and then return to the Kings.

The Court's management of these costs claims

1. On 10 September 2015, the Registrar set the costs motions down for hearing, commencing 30 November 2015, and gave directions.
2. At a pre-trial conference before me on 11 November 2015, I dismissed a NOM brought urgently by Young seeking the vacation of some of the directions given by Registrar Gray, and, in particular, the vacation of that 30 November 2015 hearing (see judgment No 7 [2015] NSWLEC 178).
3. On the first day of the costs hearing itself (30 November), eight of the 18 respondents (R8, R9, R10, R13, R14, R15, R16, and R18) succeeded on NsOM to have Young's costs claims against them summarily dismissed (judgment No 8 [2015] NSWLEC 187).
4. Those eight successful respondents were awarded their costs on their dismissal motions, but at least some of them seek further relief (such as indemnity costs orders, or personal costs orders), or intend to do so.

The summary dismissals

1. In summarily dismissing the claims against those eight respondents, I agreed with Mr Faulkner SC (appearing for Warwick Davies) that the Court's costs discretion could not embrace "any anterior conspiracy giving rise to the original wrong" (T11.11.15, p13, LL25 - 26).
2. I essentially upheld submissions by those respondents to the effect that: 1. Young's claims against them were an abuse of the Court's costs powers and processes in that: 1. they inappropriately invoked the Court's costs jurisdiction, and 2. they were a "collateral attack" on matters I had already decided. (See T11.11.15, p13, LL10 - 15, and the House of Lords in Hunter v Chief Constable of the West Midlands Police [1982] AC 529.) 1. they did not serve the interests of justice; and 2. the necessary "exceptional circumstances" did not exist in this litigation, so as to justify orders being made against non-parties (see No 8, at [16] - [31]).
3. I am now fortified in the view I took on the summary dismissal motions by the judgment on "abuse of process" recently given by Davies J in Stankovic v State of NSW [2016] NSWSC 18 (see, especially, [19], and [34] - [36]).

The remaining respondents

1. The costs hearing then proceeded - on 1 and 2 December 2015 - against the remaining 10 respondents, and this judgment deals with that hearing.
2. Those ten remaining respondents are (a) both the Kings (R1 and R2), (b) Young's lawyers from the initial litigation (R3, R4, and R5), (c) one of her key experts from earlier stages, Perrens, and his then employer (R6 and R7), (d) two other expert engineers she later engaged, Brearley and Fraser (R11 and R12), and (e) town planner Schubert (R17), engaged by the Kings at an early stage.
3. Any costs claims which remain unconcluded, and are to be pursued, will come (back) before the Court, after all parties have considered this judgment. (See Section F, commencing [116] below.)
4. As claims of conspiracy were central to the substantive case and are now central to Young's costs claims, I turn now to consider them.

C: Young's "Conspiracy" Claims

1. Allegations by Young of fraud, collusion, unconscionable conduct, and/or conspiracy have characterised, indeed dogged, the proceedings, to various degrees, since I first became involved in 2008.
2. I gave Young more than ample opportunity to argue her conspiracy case, and I dealt with it in several of my earlier judgments.
3. However, she has again sought to agitate such issues.
4. As Mr Wright (for the Kings) told the Court (T11.11.15, p6, LL29 - 30), Young's costs case is a "refabrication of the same conspiracy theory on the same old material".
5. Mr McManus (for 3 and 4Rs, Hones) submitted (T1.12.15, p100, LL31 - 32) that Young was "attempting to ... re-run that case and try and obtain different findings".
6. Dr Berveling (for the 13R, Tuxworth) observed (T30.11.15, p48, LL48 - 49), that Young's present claims against the new respondents are "essentially a claim for damages in tort, based on a conspiracy ... dressed up as a costs claim".
7. In view of the case argued against her that she is making a collateral attack on decisions already made by this Court, it is necessary to set out some of the more important extracts from some of my earlier judgments relevant to these conspiracy issues (some emphasis added):

Judgment No 2

1. In judgment No 2 ([2009] NSWLEC 125), I noted (at [68]) that there had by then been "continuing vague references by the applicant to possible illegality in the actions of the Kings and/or of the Council ...".

Judgment No 3

1. In judgment No 3 ([2012] NSWLEC 42), I noted (at [21] - [25]), in respect of the aftermath of McClellan J's judgment of 2004, and the competing/rival contentions of Young and the Kings: 21 Put shortly, the applicant now says that the undertaking was acceptable to her at the time of the settlement, on the basis of a representation made to the court that there was entirely adequate drainage on the Kings' side of the boundary, but that the undertaking can now be shown to have been, and remain, really "illusory", or a "sham". 22 She also says that the settlement is tainted by "unconscionable conduct", implicating, in various ways, the respondents, the lawyers and experts on both sides at the time, the experts involved later, and possibly Warringah Council (and perhaps also its advisors). She alleges that, although she was heavily dependent on competent advice, her legal advisors acted in the interests of the Council, to the benefit also of the respondents - the agenda of the Kings became the agenda of the Council and was facilitated by the applicant's then solicitor. The Council's solicitors "puppeteered" the proceedings in this court, despite the applicant's solicitor advising her not to join the Council as a party to them. 23 She also says that the orders are infected by error(s) in the "expert conclave" process, which took place during the February 2004 hearing. As a result of illegal works by the respondents, causing further complex drainage complications, the applicant's house is in danger of collapsing - Mr Newell, the applicant's counsel, told the court that there is a 60% chance of that occurring within ten years (T16.6.11, p8). 24 Essentially, the applicant contends: (1) that an attempt was made to orchestrate a situation which would permit Council to: (a) legitimise the respondents' illegal granny flat, and (b) order that there be a drain put on the applicant's land, rather than make that the responsibility of the respondents to resolve, and (2) that the respondents, the Council, and lawyers and experts on both sides colluded in some way - the term "a Swiss Watch conspiracy" has been used - to "trick" her into that outcome, and ultimately deprive her of her land, at an under-value. 25 The respondents say simply that they made "all reasonable endeavours" to honour the undertaking, but that the development application ('DA') they lodged with Council, in accordance with the undertaking, was "scuttled" by the applicant's refusal to consent to it.

Judgment No 4

1. In judgment No 4 ([2012] NSWLEC 236), I dismissed the applicant's NOM to reopen, saying: 1. At [3] - [5], and [26] (in my introduction): 3 Mrs Young's position, put simply, is that she has discovered evidence which she contends establishes that those orders were procured "improperly", and, as events have unfolded, the court's orders have worked an injustice on her. Historically, courts never permit their orders to be a source of injustice (see Roach v B & W Steel Pty Ltd (1991) 23 NSWLR 110, at 114). 4 Various allegations of improper behaviour, said to infect the 2004 orders, began to crystallize and develop shortly after her 2008 NOM was filed, and once she had embarked on its lengthy and complicated course of case management. 5 Over the four years since the NOM was filed, the court has extended great latitude to Mrs Young and her present legal representatives, as an ever-expanding picture of a possible miscarriage of justice was being painted each time the matter came before the court. ... 26 Regrettably for Mrs Young, in respect of costs, the High Court has said on many occasions that a party is bound by the conduct of litigation by its legal representatives ... 1. At [85] - [89], and [107] (in the context of case-management in this Court, July 2008 - February 2009): 85 Whereas Jagot J seems to have regarded the contempt motion as the only course really open to Mrs Young to "enforce" the undertaking, after the lapse of time from 2004, I observe, with very great respect, that Mrs Young's decision to take that course regrettably served to inflame the conflict between the parties and their legal representatives, and to complicate early attempts by this court to find some resolution. 86 On the other hand, Biscoe J's later hint that separate proceedings should perhaps be commenced to secure a reopening of the 2004 orders (as distinct from other relief) was not embraced. The Court of Appeal, in one of its many judgments in the Teoh v Hunters Hill Council litigation, namely its judgment No 5 [2012] NSWCA 75, noted (at [11]ff) a series of cases which indicated that it has long been "the convenient practice", "the proper method", "the preferable course", or "the better course" for attacks on judgments on the grounds of fraud to be made the subject of new and separate proceedings, rather than a motion in the original case. See also Permanent Trustee Co (Canberra) Ltd v Stocks & Holdings (Canberra) Pty Ltd ('Permanent Trustee') (1976) 15 ACTR 45; (1976) 28 FLR 195, per Brennan J (at FLR 198-9). 87 None of the allegations and counter allegations which I recorded in my judgment of 31 July 2009 has yet been proven. 88 In his written submissions of 14 September 2012, when dealing with the applicant's now developed "allegations of collusion, fraud and corruption", Mr Wright says (par 47): The first hint of these allegations appeared at a directions hearing before Biscoe J upon the filing of an affidavit of Mr Muriniti sworn 14 August 2008 referring at paragraph 8 to 'a course of conduct appears to have been engaged in both by the respondents and Warringah Council which involved numerous subtle but significant deviations from planning law and practice'. (Mr Wright cites, in fn 17, T15.8.08. p5, LL20-30, and notes that: "At that stage, the contempt allegations were still being pursued") 89 Whatever may be the truth of any of the allegations of fraud or bad faith, each side became highly distrustful, over time, of the other's experts. ... 107 In addition, in August-September 2008, Biscoe J (as List Judge) hinted that declaratory relief, such as is sought in NOM 1, might be more appropriately sought in separate proceedings, rather than in a motion to reopen (see [63]-[65] of my earlier judgment, and [86] above). 1. At various paragraphs (in the long section of the judgment which chronicled the unprecedented series of mentions and directions hearings I conducted over the years to September 2012): 207 On 29 November 2011, Muriniti wrote at length to Stern. In that letter he expressed concern about the inconsistent use of terms such as "conspiracy", "fraud" and "collusion", and said: "It is our client's position that there was collusion for the improper purpose of an agenda to cause our client to have a drain on her land to drain your client's land. The purpose was to legitimate an illegal granny flat", and that a number of parties so acted prior to the proceedings commencing, during the proceedings, and after the proceedings in this respect. Collusion was said to be an important aspect of the SC case, and may be important in the DC case. Fraud is asserted in the formal 'grounds' document in the LEC case, only as the logical alternative to mistake by the legal representatives of the applicant during the negotiations for the underlying agreement. 208 The letter continued: At the same time, it is clear that the events which occurred could not have happened without collusion. Moreover, after mature consideration we consider that the fact of collusion sheds considerable light on the logic of events so as to inform the probabilities of our client's formal assertions. Our client does not resile from the proposition that the events which occurred were underwritten by a collusive course of conduct by certain parties. Moreover, we are anxious for your client to fully appreciate the circumstances of our client's claim. Our client hopes that your clients will consent to the Final orders being vacated so that the issues may be determined on the merits. ... 210 In pars 14 and 15 of the letter, Muriniti said: You should not assume from these comments that it is alleged (or will be alleged) that your clients (in contradistinction to their then lawyers) actively colluded with our client's lawyers for the purposes of and at the time of the 2003 proceedings. Your client only acted through his lawyers for the purposes of the proceedings. Certainly, it will be alleged that your clients understood that our client was at a disadvantage in that they were on notice of facts that would compel a reasonable person to contemplate that others were colluding to our client's disadvantage. So much is clear from the Grounds themselves which rely upon unconscionable conduct based on those facts. It will be material that your clients maintain proceedings against their former lawyers arising out of the final orders. There may therefore be an issue whether or not the material conduct of those lawyers may be brought home to your clients in the sense that it was the product of their express instructions. The Pike documents will shed light on this critical issue. ... 223 Mr Wright was concerned also to ensure that the 'nature of the case' document was regarded as a totally separate matter from the provision of appropriate particulars. He complained about Mr Newell's use of expressions such as his allegation of "a Swiss watch conspiracy" instigated by the Kings: You simply cannot continue to make such gratuitous and serious allegations against a person in open court. So if there is a case, and we have not wanted a case of conspiracy made, but if it is alleged it has to be alleged in the proper way (T14.12.11, p13, LL26-30). 224 Mr Wright also noted that there had been "a shift away from those forms of allegations to something in the nature of an unconscionable conduct allegation based upon actual or constructed (sic) knowledge of circumstances" (Tp13, LL33-36). ... 285 The suggestions of collusion, dating back to 2008-9, flowered into an allegation of at least one (perhaps criminal) conspiracy, in which some combination of the following was, or must have been, involved - the respondents, their lawyers and advisors over time; the local council, its officers, and its advisors; and her own former solicitor, barrister, and expert(s). 1. At [355] (in dealing with Young's response to Kings' motion to strike out her "reopening" motion): 355 Mr Newell conceded (Tp97, LL27-35) that, in any "hierarchy of culpability": Mrs Young's lawyers would be at the top, the council would be second, and the experts would be - the experts would be second and council would be third, and Mr King would be at the bottom. But having said that Mr King is involved essentially in what occurred because he gave the undertaking as I submitted yesterday in the full knowledge that it was a sham. He knew what he did was a sham, he knew how he was to benefit by reason of the sham, and none of this could have happened without him giving [the] undertaking with that knowledge and with the intention of benefiting from it. 1. At [395] - [402] (in dealing with Kings' "no case" submission): 395 As stressed throughout this judgment, the applicant's case "grew" as time went by. She bears the onus of establishing one or more bases upon which the 2004 orders can and should be set aside. 396 The primary basis she relies upon to set aside those orders is the alleged conspiracy, which the authorities say should have been the subject of fresh/separate proceedings. ... 397 In any event, Mr Wright argues that the conspiracy alleged by Mr Newell is not supported by any of the evidence dealt with, but only from the bar table, on the approximately thirty occasions on which the parties' respective counsel have debated aspects of the matter in front of me. 398 Mr Wright's comprehensive written submissions deal with the applicant's NOM, and were filed before the applicant's oral opening, but his summary dismissal NOM is based solely on that opening, and not on all that went before it, up to and including Mr Newell's lengthy and comprehensive written submissions ... 399 Nonetheless it is worth quoting in support of Mr Wright's NOM some of what he had said in his written submissions of 14 September 2012 on the applicant's NOM, based on her then filed evidence: 47. Mr Newell's oral and written submissions have been replete with allegations of collusion, fraud and corruption. ... Mr Newell has come back to the Court at repeated directions hearings to report that further investigations have led to remarkable new discoveries of nefarious conduct by the ever-burgeoning class of conspirators he says are arrayed against his client. 48. The allegations of fraud and corruption against the respondents (and others) involve serious criminal conduct. The allegations are scandalous. There is no evidence whatsoever to support them. They should never have been made but have been repeated constantly in written submissions and in open Court by Mr Newell. The applicant has been invited to withdraw the allegations but has not done so. The allegations made now over a period of several years could hardly be more serious particularly where they are made against professional people who are not parties to and are not represented in the proceedings in which the allegations have been made. ... 53. The allegation of 'collusion' appears repeatedly throughout the applicant's submissions. 54. The Macquarie Australian Encyclopaedic Dictionary defines 'collusion' as 'an agreement or cooperation, usually secret, for the purpose of fraud, deception, or the gaining of an advantage' and 'conspiracy' as '2. a combination of persons for an evil or unlawful purpose 55. Stroud's Judicial Dictionary of Words and Phrases (7th edition) says '"Collusion" only signifies agreeing together' ... 'But not infrequently 'collusion' is 'a deceitful agreement, or compact, between two or more, for the one party to bring an action against the other for some evil purpose.' 56. The essence of conspiracy is an agreement between two or more persons to carry out an unlawful act. The actus reus is the agreement to carry out the crime or unlawful purpose. [R v Bolton (1991) 155 J.P.N. 620] 57. The essence of the allegations made against the respondents and others here is that some form of agreement existed to perpetrate a fraud on the applicant 'by shifting a drainage burden onto her land.' 58. Whilst 'collusion' has been adopted as the preferred terminology in the applicant's submissions, the allegation is one of a grand conspiracy involving multiple participants, all of whom must have agreed together, over a period of years, to advance the criminal purpose of unlawfully shifting a drainage burden to the applicant's land (referred to in the applicant's submissions as 'the Agenda'). 59. The applicant's case theory of the Conspiracy began to develop it seems over the period from about mid-2009. It is still developing or at least was until the directions hearing before the Court on 18 June 2012 when Mr Newell announced that Warwick Davies had been uncovered as a co-conspirator. The respondent's former solicitors have also been implicated in the plot. 60. If the underlying purpose of the Conspiracy was to 'shift a drainage burden to the applicant's land', a very complex and sophisticated scheme must have been hatched at an early stage and then orchestrated with relentless Machiavellian cunning. 61 Who was the mastermind? 62. What was the motive? 63. It would seem that the Court is asked to accept that from as early as 1999 or 2000, the respondent's (sic) conceived the scheme and then co-opted un-named officers of Warringah Shire Council to shift the drainage burden to the applicant's land or those officers conceived the scheme and the co-opted the respondents. The applicant was then provoked or goaded into commencing these proceedings so that the proceedings could then be manipulated to produce the result that a 'sham undertaking' could be proffered to the Court. 64. The underlying motive is said to be to advance the 'Agenda' of the Council. This must also involve questions of 'corrupt conduct' within the meaning of sections 7 and 8 of the Independent Commission Against Corruption Act 1998 and, if done maliciously, would expose the responsible council officers to an action for misfeasance in public office. 65. At different but unidentified points of time from the inception of the Agenda to the making of the consent orders in February 2004, a host of other co-conspirators had to be recruited into the scheme. 66. Willing experts had to be located on both sides of the issue in the proceedings so that together, they could assist in advancing the premeditated 'solution' which became known (aptly with hindsight) as 'Exhibit A'. 67. The co-conspirators include the applicant's former solicitor, then the applicant's former barrister, then Dr Perrens, then (it is now revealed) Warwick Davies. At some stage, in the course of 2003 and early 2004, the respondent's former solicitors must also have been co-opted into the plot in order to perpetrate this fraud on the applicant. 68. At different points in time, it seems that the Council's external solicitor was also a direct participant (or an accessory after the fact) in perfecting the scheme. 69. Within the Council, numerous unidentified officers must have had the cunning and foresight to perceive that such a dire threat existed to the Council's interests, it was necessary for them to adopt a drastic but highly illegal and corrupt course of action to protect the Council's interests. 70. How and why did all these people manage to conceive such a complex agreement to perpetrate a fraud on the applicant? Those questions are not answered anywhere in the applicant's evidence. 71. There is not a scintilla of evidence of the essential element of the Conspiracy - the agreement. 72. In the absence of that evidence, the allegations should never have been made. 400 I accept those submissions. 401 The early allegations of collusion/fraud/conspiracy were detailed in late November 2011 ([207]), and they then "flowered" and widened, over the time since then, as recorded above (see [232], [257], [279], [281], [285], [286] (vi), [320] - [323], and [327] - [328]), but the respondents have not been implicated directly (c.f. [210]). 402 All that is put against them, in the end, are imputations of knowledge and/or of motive, and the invitation to the court to deduce that no alternative explanations or descriptions of their conduct work. The case against them, in the end, is a series of opinions, purportedly expert or otherwise, put to me from the bar table.

Judgment No 6

1. In my most recent substantive judgment (No 6 [2015] NSWLEC 111), on 9 July 2015, I said: 1. At [87] (when recording what the CA had said in dismissing Young's appeal against Garling J's dismissal of her action against Hones, Hemmings and Perrens - Young v Hones (No 2) [2014] NSWCA 338): The CA's judgment said (at [119] - emphasis mine): Finally, the grievance obviously felt by Ms Young at what has occurred can be discerned from the emotive language in which correspondence has issued from her solicitors and in which submissions have been put on her behalf. There is no doubt that Ms Young considers that a great injustice has been done to her. Her Counsel has described the L&E proceedings, and the settlement of those proceedings, as no more than an "illusion". It may well be that it is this sense of grievance that has led to the apparent readiness of Ms Young to conclude that her professional advisers must have acted fraudulently in conducting the proceedings. However, it is a serious matter to allege fraud and it was incumbent on her present advisers not only to comply with their ethical obligations when so doing but also to apply objectivity when advising Ms Young and in pleading such a cause of action. Unfortunately, the manner in which the pleadings have been drafted and the tone of the correspondence and submissions made on Ms Young's behalf does not give rise to a great deal of confidence in this regard. 1. At [96] - [97] (in a "background" section dealing with how Young conducts her litigation): 96 During argument and cross-examination before me in the late 2014 hearing, it became clear that Young's objectives were (1) to succeed in a High Court appeal in Young v Hones, and re-open her claim against her former lawyers and expert, (2) to succeed in this Court, and re-open the orders made in 2004, and (3) to then seek to have any proceedings remitted by the High Court, and the stayed District Court proceedings transferred together to this Court, to be heard with the re-opened LEC proceedings, in which she would seek to join Council as a respondent (Tpp150 - 153). (She has since failed in the High Court appeal - see [115] below.) 97 She seeks to have all matters progress together, because (Tp152, L19) her "predicament has been caused by a lot of people". She does not exclude the possible joinder of, for example, Warwick Davies, to the on-going proceedings (Tpp159 - 160), and has foreshadowed seeking costs from him and/or from Perrens. 1. At [140] (in a section dealing with the lead-up to the 2014 hearing, notably a mention on 3 September 2014): 140 There remained a tone of fraud and "grand conspiracy" in the dispute, and Wright put to the Court that Newell's case is that Exhibit A was not indeed a contract. McClellan J was satisfied that, on the evidence he received, the work identified in Exhibit A should form the basis of the defendants' undertaking, and that he should accept the undertaking, and make the orders dismissing the proceedings. 1. At [170] - [173], and [177] (in a section recording counsel's submissions at the conclusion of the September/October 2014 hearing): 170 At the core of Young's case is what Wright continues to describe as her "conspiracy theory" (or theories), involving a "hierarchy of villainy" (Tp581, L13), in which Council is the "arch villain" (Tp570, L30). 171 As Wright submits, there is, in the evidence, no basis for all the accused players to embrace such an elaborate scheme to prejudice her interests, and force her downstream neighbour's drainage to become her responsibility. Young must be called upon to produce "genuinely probative and strong evidence" to discharge her onus and upset the 2004 orders: Briginshaw v Briginshaw ("Briginshaw") [1938] HCA 34; 60 CLR 336, at 361 - 362, and s 140 of the Evidence Act 1995, which provides: Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 172 In his reply submissions, Newell (Tp600, LL34 - 36, and p601, LL12 - 13) eschewed Wright's repeated use of the word "conspiracy", but he and Young remain seriously concerned "about the conduct of a number of persons" who should be "brought [to] account". 173 The trouble with Newell's written submissions (and much of Young's material) is their focus on post-2004 events and discoveries. They amount to retrospective reconstruction of words and events completely outside their context at the time. As "setting aside" applications have to review what occurred at the time the relevant orders were made, much of those submissions and materials are irrelevant and unhelpful. I have had regard to all of them, but they do not need to be set out here. ... 177 [Wright] made the following submissions about the conspiracy he said continued to be alleged (Tp570, LL6 - 45): There are enormous difficulties confronting a plaintiff who seeks to establish any one of those broad general grounds. I have dealt with them in the submissions. They are grounds common to both proceedings. Even, although those still appear to be the broad grounds upon which the plaintiff relies, we keep having added to them new dimensions of the matters which have allegedly fed this profound sense of grievance that Mrs Young, through Mr Newell, continually tells your Honour she feels. They all come back to one amorphous ever-changing incomprehensible mess, and that is this conspiracy theory. ... One of the great difficulties your Honour has in understanding the case as it's now put with particularity is there are statements made about what was done to Mrs Young but almost always there is no statement as to who did it and in what combination or for what reason. It is still apparently - and your Honour sees this from the letter of 24 October 2014 annexing the new version of the conspiracy theory expressed through Mr Brearley and the statements in the letter - the council that is the arch villain behind all of this and it's the council that has a purpose, still unexplained, of shifting the drainage burden to Mrs Young's land. The instruments of the conspiracy are still Hones, Hemmings, Perrens, apparently Warwick Davies, apparently Mr Griffiths, wittingly or otherwise, and beneath it all, possibly still at the bottom as was put to your Honour 25 months ago, or finding a different place in the order of villainy or somewhere, are the Kings. Again, the allegation is there was not a single purpose by the Kings but an overarching purpose by the council to shift the drainage burden to Mrs Young's land. And, as we now understand the expression of the case, that involves something called "an implied approved drainage system"; whatever that could possibly mean I don't know but the suggestion most recently put is that the only way you can look at these plans, including the construction certificate plans, is that it presupposes that something exists over there on the other side of the boundary. 1. At [185], and [226] - [229] (in the "consideration" section): 185 Although Young's case has significantly "narrowed" since my dismissal of it in Young v King (No 4), and Newell eschewed, in terms, the "conspiracy" case, there remains at the heart of the matter the allegation of a grand "conspiracy", or a major "collusion", involving the Council, the Kings and the parties' legal teams, and respective experts, the purpose of which, for reasons never made clear, was to shift the drainage burden from the Kings' land to Young's. ... 226 Whilst not altering the civil standard of proof, allegations of fraud must be supported by strong and probative evidence, and such findings should not be made lightly. 227 Although a plethora of material was tendered, I was not taken to any evidence of any real, probative value, which would warrant a finding of fraudulent behaviour by anyone involved in these proceedings. Young's case is full of insinuations, and I agree with the statement made by Wright (Tp567, LL40 - 41) that "the evidence in this case and the way it is relied upon is so vast and complex that the allegations become almost impossible to unravel". 228 Newell sought to describe the case (at Tp562, LL16 - 17) as "a riddle, wrapped in a mystery, inside an enigma" (although he quoted Winston Churchill inaccurately), and that is a fair description of how he put Young's position to the Court. 229 In such circumstances, it would be entirely inappropriate to make a finding of fraud against anyone involved in the matter.

The conclusion to be drawn from those judgments

1. It is clear from the judgments quoted above that the Court (1) was aware, in clear, if general, terms, but well before the delivery of judgment No 6, of the ambit of Young's allegations of fraud and conspiracy against all 18 costs respondents, and (2) found no evidence of "any real, probative value" upon which to base any finding of fraud or conspiracy "against anyone involved in the matter" (judgment No 6 at [227] and [229], quoted immediately above, in 58 - further emphasis now added).
2. I reject Newell's attempts (T30.11.15, p63, LL19 - 34) to "read down" that finding to exclude anyone not a party to the substantive proceedings, and to rely on what he says is a failure by the respondents to deny the fact of a conspiracy (p65, L30 - p66, L10).

D: The Costs Claims now before the Court

1. As already noted: 1. Young's claims against eight of the 18 respondents were summarily dismissed early in the costs hearing: judgment No 8 [2015] NSWLEC 187 ([39] above); and 2. I will deal with the remaining eight non-party respondents before I deal with the Kings ([45] above).
2. The remaining non-party respondents on costs are Young's original legal team (R3, R4, and R5); her primary 2003 - 2004 water expert and his company (R6 and R7); two of her later experts (R11 and R12); and Kings' early planning expert (R17). (See [27] above).
3. In the summary dismissal segment of the costs proceedings, the primary advocate for the parties seeking dismissal was Mr T Faulkner SC (appearing for R8, Davies), but counsel for each other moving respondent also made submissions to the Court.
4. In the later segment of the costs proceedings, Messrs McManus, Miller SC, and Gray appeared for Hones, Hemmings and Perrens, respectively, all of whom had successfully fought off Young's common law proceedings against them in the Supreme Court.
5. The other remaining non-party respondents were all represented by competent counsel who made cogent submissions against Young's NOM.
6. Faulkner's successful submissions at the summary dismissal stage were adopted by many counsel appearing for non-party respondents at the December 1 - 2 hearing.
7. It is, therefore, appropriate to repeat here the following from judgment No 8 ([17] - [27], and [29] - [31]): 17 The central argument is that Young's broad costs NOM is an "abuse of process", as it is "not a proper resort to the Court's costs jurisdiction", and "seeks to re-litigate issues decided or barred" by judgment No. 6. 18 It fails the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 (per Barwick CJ), in that the Court can be satisfied that it cannot succeed, and that it would amount to a "collateral attack" on judgment No 6, against which Young has appealed. 19 The costs argument against non-parties "threatens to become new and costly satellite litigation", contrary to the principles in Lemoto v Able Technical Pty Ltd ("Lemoto") (2005) 63 NSWLR 300 (see McColl JA at [92]). 20 The purpose of a costs order is to compensate a successful party for the expense of conducting the proceedings, not to punish an unsuccessful party: see Latoudis v Casey [("Latoudis")] (1990) 170 CLR 534, and Oshlack v Richmond River Council [("Oshlack")] (1998) 193 CLR 72. 21 Nor is its purpose to compensate for loss caused by substantive wrongdoing: Harrison v Schipp [("Schipp")] [2001] NSWCA 13. 22 Costs orders against non-parties are generally "inappropriate". To achieve one, the circumstances need to be "exceptional" and the Court must be satisfied that considerations of justice require it: see Knight v FP Special Assets Ltd (1992) 174 CLR 178, at 192 and 203. 23 A clear interest in the subject, and an active role in the conduct of proceedings, would appear to be required (eg. solicitor, insurer, funder, director, receiver): FPM Constructions v City of Blue Mountains [2005] NSWCA 340. 24 It is sometimes said that the party against whom costs are claimed has to be "the effective litigant". In the present case, Mr Newell says Council is the "real party", aided and abetted by the other respondents (T30.11.15, P59, LL24 - 25). Orders were entered which ought not have been entered had the respondents done their duty to the Court and not "flagrantly misconducted themselves" (T30.11.15, p58, LL14 - 16). 25 The respondent Griffiths, and the witnesses against whom Young claims, enjoy immunity under the principles in Young v Hones (No 2) [2013] NSWSC 1429, which were not disturbed on appeal by the Court of Appeal (Young v Hones [2014] NSWCA 337). (See Dr Berveling's submissions, at pars 7 to 12, 12.B and 12.C.) 26 Mr Faulkner specifically submits (par 33) that Young's proposed costs order has nothing to do with the conduct of her two applications to set aside the 2004 orders. The arguments raised by Young in her affidavit and submissions in support of her costs NOM of 20 August 2015 were among those I rejected in judgment No 6, and Mr Newell admitted before the Registrar that the allegations in the present motion are "in essence the same" (T10.9.15, p12, L29). 27 I agree with Mr Faulkner and other counsel that there is no basis for an order that the presently moving parties should pay Young's costs of those applications. ... 29 Mr Faulkner relied also in this regard on the principles in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, as applied in Australian estoppel-type cases, such as Rippon v Chilcotin Pty Ltd ("Rippon") (2001) 53 NSWLR 198 (per Handley JA, with whom Mason P and Heydon JA agreed). 30 In Rippon, Handley JA set out the key principles (at [31] - [32]): 31 In Haines v Australian Broadcasting Corporation [(1995) 43 NSWLR 404] Hunt CJ at CL distilled the following statement of principle from the authorities: "There are obviously limitations to striking out pleadings or causes of action as an abuse of process upon the basis stated in Reichel v Magrath [(1889) 14 APP CAS 665] … The issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former … It must be an issue which was necessarily determined in the earlier case, and one of importance to the final result. It must have been properly argued - by which I mean that … the tribunal which decided it was an appropriate one to do so, that the parties were appropriate contradictors and that the issue was regarded by them as one of importance … In normal circumstances, the decision disposing of the issue must have been a final one … There may also be circumstances in which, notwithstanding the absence of an appeal, it is clear that the earlier decision has overlooked some binding authority, or that it has caused the unsuccessful party a manifest injustice … all the circumstances of the determination in the earlier case may be considered … ." 32 In State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 (64,077) at 64,089, another case involving abuse of process in seeking to re-litigate an issue, Giles CJ Comm D said: "… The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice, and amongst the matters to which regard may be had are - (a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or ultimate issue; (b) the opportunity available and taken to fully litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; … (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process." 31 I also agree with Mr Faulkner's submission (pars 50 - 53) that, as against the parties moving for summary dismissal, the second limb of Young's motion (the indemnification claim) ought also be dismissed.

E: The Costs Hearing following the summary dismissal judgment

1. When judgment No 8 was delivered, Newell appeared to accept that its reasoning would suggest that Young would not succeed against any of the remaining respondents (T1.12.15, p79, LL25 - 27). However, he was not prepared to "surrender and pay the costs of the parties who have been brought here" (LL30 - 31).
2. Consistent with my approach to Young throughout this litigation, I was prepared to afford Newell every opportunity to make her case against the remaining respondents, but I did not accept his suggestion that the balance of the costs proceedings ought be "stayed or adjourned", pending the hearing of the appeal against judgment No 6 (LL34 - 40).

Young's evidence

1. Newell then sought to read and tender all the evidentiary material he had proferred to the Court, and served on the respondents, in advance of the costs hearing.
2. That material included some on the alleged conspiracy, which he conceded (p85, L13) had been assembled only after the delivery of judgment No 6 (see argument at T1.12.15, pp79 - 97).
3. Newell submitted that Young's costs application was "based upon the submissions which articulate a conspiracy resulting in the incurring of costs" (T1.12.15, p84, LL17 - 19), despite continuing his concession that it was fundamentally the same alleged conspiracy I had rejected in judgments Nos 4 and 6.
4. I rejected Young's post-No 6 material, and I now give the reasons I promised.
5. In [71] above, I used the neutral word "assembled", in reference to that material, because Newell's submissions regarding it were so inconsistent that the Court could not conclude that he was indeed seeking leave to adduce relevant "fresh evidence". He conceded (at Tp85, L13) that it was "created subsequent to the hearing", but when asked (Tp87, LL1 - 13) if it came into existence "afterwards" he said it "did not", and hinted that its "significance" may have emerged after the July 2015 decision.
6. If the material were relevant to the conspiracy argument at the heart of the substantive proceedings, it was plainly "unreasonable" for it not to have been put forward at trial: see Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589 at 602, and Rippon v Chilcotin Pty Ltd [2001] NSWCA 142; 53 NSWLR 198, at [19].
7. Throughout this litigation Newell has consistently revisited Young's material, to draw a more sinister inference from it than he had advanced before, but at this stage he could not explain why this material was not before the Court at the substantive hearing. The principle of finality must prevail: D'Orta Ekenaike v Victorian Legal Aid [2005] HCA 12; 223 CLR 1, per the plurality at [34] to [36]; see also McHugh J at [165], and Callinan J at [380]).
8. In the result, I admitted, on a provisional basis, subject to relevance, and subject to s 136 of the Evidence Act 1995, the material which Young had before the Court as at 9 July 2015 (see Miller's summary at Tp96, LL31 - 35). Much of it is argumentative, and objectionable, but, as it was in the nature of submissions, it has been considered by the Court on that basis.

Respondents' evidence

1. The Court also received the following other evidence, from the respondents, without objection: 1. A bundle of material tendered by Faulkner on his (successful) motion for summary dismissal of the costs claim against Warwick Davies (Exhibit 8R1, tab 3). Inter alia, the exhibit contained correspondence between Muriniti and Davies's solicitor regarding particulars. Muriniti's letter of 2 September 2015 includes the following "particulars" of the alleged conspiracy: At the heart of that conspiracy was a scheme to create two streams of understanding. One stream was to cause our client and the court to understand that the drain and retain problems created on our client's land by Warringah Shire Council and by the Kings would be properly addressed and resolved by the erection of a retaining wall wholly situated on Brendan and Kristina King's land with an appropriate drainage mechanism again wholly situated on Brendan and Kristina King's land and draining through their land to be constructed within an inter-allotment drainage easement, again fully burdening Brendan and Kristina King's land over the benefit of our client's land. The second stream of understanding about which the court knows nothing (as is reflected in the judgment of Sheahan J of this year) and about which our client knows nothing (about which lack of knowledge is of course reflected in her numerous affidavits and in the evidence given by her to the court) was sought to be insinuated by the conspirators surreptitiously by the employment of such techniques as neurolinguistics devices, the planting of files of cryptic but false clues, within correspondence and Council documents, expert reports and plans and drawings which were created variously by Brendan and Kristina King, the Council, your clients' and the other conspirators. All these devices and clues were then to be discovered by a corrupt independent expert (removed to the oversight of the court) whose decision was going to bind our client and who would falsely purport to discover that our client had agreed to drain and retain her own land and that her land had previously had a drainage system on it, the alleged existence of which would be relied upon as justification for why (it would falsely be claimed) both the Kings and the council had not breached the Water Act. 1. A bundle of material tendered by Miller, counsel for Hemmings, on behalf of 3R to 7R (Exhibit 5R1). In its final form, that exhibit (a) contained four documents filed or proposed by Young in her Supreme Court proceedings against Hones, Hemmings, Perrens, and their firms, and (b) sought to notionally produce also the "Nature of the Case Statement" filed by Young in the 2003 LEC proceedings, and put before the Court again amongst her costs materials. 2. Two affidavits sworn by Kings' solicitor, Terence Stern (on 10 August 2015 and 2 October 2015), and filed in support of their NsOM for indemnity costs of both the proceedings and Young's NOM for costs. 3. Muriniti's letter to Stern dated 27 October 2015, and tendered by Wright (Exhibit K1). That letter sought to explain further breaches by Young's team of the timetables laid down by the Court for submissions etc. In it Muriniti says, inter alia: The process of drafting the submissions has required a protracted and complex forensic process which has involved frequently re-examining a large amount of documentation in order to tease out the facts buried in misleading and obscure language. ... we now believe that we have a firm, if not complete, understanding of what was done by whom and why and how both the court and our client were seriously misled to put it mildly. ... The complex machinations of various respondents in these proceedings, including your clients, has taken a very long time to unravel and the matter requires a minute and detailed understanding and familiarity with a mountain of documents which have had to be analysed in order to weave together and forensically demonstrate convincingly the conspiracy in which your clients and others in these proceedings have been parties. ... ... submissions which we believe will reveal precisely what was attempted against our client and the Court, how it was attempted, why it was attempted and the devices which were employed in that attempt. 1. A facsimile sent by Springett to Perrens and Warwick Davies on 13 February 2004, tendered by Miller (Exhibit 5R2). That facsimile was stated on its face to be four pages in length, but the exhibit comprised only the first three. In it Springett appears to be reporting to Perrens and Warwick Davies on site investigations he carried out a day or so earlier, just prior to the original trial of the LEC proceedings. He investigated subsoil drainage on and affecting the subject lands, and he said that, in the course of his work, he had verified the presence of a dual drainage system. He also expressed some views on its operation. (See also Tp144.)

Young's case

1. Newell relied on voluminous written submissions, plus oral submissions he made on each of the three days of the costs hearing, but he replied to his opponents' submissions, rather than making submissions in chief.
2. He emphasised that he relied upon both ss 98 and 99 of the Civil Procedure Act 2005. I set them out in full in judgment No 8 (at par 10), as those respondents then arguing for summary dismissal also relied upon them. The most relevant elements of those sections for the present case are now repeated: 98 Courts powers as to costs (1) Subject to rules of court and to this or any other Act: (a) costs are in the discretion of the court, and (b) the court has full power to determine by whom, to whom and to what extent costs are to be paid, and (c) the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis. (2) Subject to rules of court and to this or any other Act, a party to proceedings may not recover costs from any other party otherwise than pursuant to an order of the court. (3) An order as to costs may be made by the court at any stage of the proceedings or after the conclusion of the proceedings. ... (6) In this section, costs include: ... (c) in the case of proceedings transferred or removed into the court, the costs of the proceedings before they were transferred or removed. 99 Liability of legal practitioner for costs (1) This section applies if it appears to the court that costs have been incurred: (a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or (b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. (2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following: (a) it may, by order, disallow the whole or any part of the costs in the proceedings: (i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or (ii) in the case of a solicitor, as between the solicitor and the client, (b) it may, by order, direct the legal practitioner: (i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or (ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs, (c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party. ... (7) In this section, client includes former client.

Submissions by the non-parties

1. The non-party respondents made individual submissions, both written and oral. As already noted, their counsel relied also on submissions made in support of the summary dismissal motions dealt with in judgment No 8.
2. Reference was made in the respondents' submissions to: 1. the constant shifting since 2008 in Young's position in her various proceedings (against Kings and other respondents) (see, e.g., judgment No 6 at [84] - [92]); 2. the total "disconnect" between Young's successful 2004 proceedings and her unsuccessful, "always hopeless" actions, post 2008 (Tp119, L44); 3. the far-fetched nature of her "ever burgeoning, ever changing" conspiracy allegations (Tp115, L7), "unsupported by evidence, impossible to understand" (Tp118, LL29 - 30); Young's failure to establish any of the elements of conspiracy, such as motive, causation, or agreement, and the lack of any evidence of the involvement of any of the respondents in any conspiracy. See, e.g., Ballard v Multiplex [2012] NSWSC 426, per McDougall J, at [66] - [72], where His Honour discussed the distinction between "the immediate purpose of a combination and the ultimate object or motive of the combiners", and said ([68]): As Viscount Simon LC put it in Crofter Hand Woven Harris Tweed Co v Veitch [1942] AC 435 at 445, "the test is not what is the natural result to the plaintiffs of such combined action, or what is the resulting damage which the defendants realise or should realise will follow, but what is in truth the object in the minds of the combiners when they acted as they did. It is not consequence that matters, but purpose ...". 1. the failure of Young's current lawyers to properly examine and assess, in and since 2008, her prospects of success in her set-aside efforts; 2. the findings made, adverse to Young, and to her position, in my various judgments, especially No 6; 3. the use of a costs application to attempt to re-run one or more cases which Young had already lost; 4. the principles circumscribing the Court's statutory and summary power to award costs (Knight v FP Special Assets Ltd ("Knight") (1992) 174 CLR 178), including (a) the requirements of, e.g., s 56 of the Civil Procedure Act 2005 (which provides that the "overriding purpose of this Act and rules of court ... is to facilitate the just, quick and cheap resolution of the real issues ..."), and (b) well-recognised limits on making costs orders against experts (Macquarie International Health Clinic Pty Ltd v Sydney Local Health District Sydney Local Health District v Macquarie Health Corporation Ltd [2013] NSWSC 970); 5. the clear inapplicability of s 99 to the costs issues before the Court (see e.g. Tp100 - 101), and the unavailability of s 98 against the lawyer respondents; and 6. the "unworthy" allegations made, and "intemperate" language used, in Young's submissions. As McManus put it (Tp111, LL37 - 40): "... these are not submissions worthy of being found in legal submissions of an officer of this Court to your Honour asking you to decide serious questions, and it is repeated throughout and amplified in the supplementary submissions ...". See also Tp112, LL37 - 38. Miller suggested that Newell's conduct of the matter was "beyond scandalous and worthy of report" (Tp138, L45, and see also Tp160, L47 - p161, L3).
3. Unsurprisingly, Miller (appearing for Hemmings) added many submissions referring to the events leading up to the commencement of the Class 4 proceedings (e.g. Kings' letter to Council on about 22 August 2001, in "MY1", folder 1, tab 31), to the way McClellan ChJ conducted the original hearing, and to the evolution of Exhibit A (see Tp137, LL38 - 45). His submissions also addressed the Young v Hones Supreme Court proceedings (in which Hemmings was a defendant).

Consideration

1. It is necessary to refer here to relevant authority on the role and application of ss 98 and 99 of the Civil Procedure Act 2005 ([80] and 82 above).
2. The principles to apply when considering relying on s 98 to order costs against a non-party were discussed at length by McColl JA (with whom Sackville AJA and Adamson J agreed) in Yu v Cao [2015] NSWCA 276, at [136] - [156]. The interests of justice must require such an order ([136]).
3. I respectfully adopt and apply Her Honour's reasoning, which I will not repeat here. The present circumstances do not meet Her Honour's tests. See also Knight, at 192 and 203.
4. The question of ordering costs as between a lawyer and a former client was dealt with by Pain J in NA & J Investments Pty Ltd v Minister Administering the Water Management Act 2000 (No 2) [2011] NSWLEC 98. Inter alia, Her Honour said ([246], [254] - [256]): 246 As Kelly v Jowett [("Kelly v Jowett") [2009] NSWCA 278; 76 NSWLR 405] most recently identified, the purpose of s 99 in the CP Act is to enable the Court to supervise lawyers who fail in their duty to the Court in the conduct of litigation to which the CP Act is directed. The section is not intended to apply to claims which may arise between a client and solicitor and/or barrister which falls outside the CP Act framework. ... 254 ... no cases in the Supreme Court or this Court have awarded costs under s 99 to a client resulting from a breach of retainer by his or her solicitors. The orders made are generally in favour of an opposing party who has incurred costs as a result of the actions of the other party's lawyers which have fallen under s 99 ... [W]ithout s 99 an opposing party has no ability to recover costs wasted as a result of the conduct of the other party's lawyer. ... 255 Another reason to question whether actions which are essentially professional negligence claims should be considered under s 99 is that lengthy litigation in relation to wasted costs applications is discouraged, Lemoto at [92(g)]. In keeping with the principles in s 56 of the CP Act for the just, quick and cheap disposal of proceedings, emphasised in Kelly v Jowett at [57], any costs litigation should be as short as possible. Originally set down for five days, this matter eventually ran for twelve days, ... This has resulted in a "new and costly form of satellite litigation": Lemoto at [92(g)] ... 256 ... wasted costs are generally considered where the presiding judge will be aware of all the relevant evidence, which is likely to be of short compass, and does not require lengthy consideration of disputed facts to determine the outcome as the relevant evidence will be largely known to the court. ...

Newell's reply submissions

1. Newell's submissions failed to come to grips with the gravamen of the submissions made against Young.
2. He discounted the arguments made on behalf of Hones, Hemmings and Perrens, on the basis that their success in Young's Supreme Court proceedings turned only on questions of immunity (Tp148).
3. He argued that s 99 applied because there was a "demonstrable" conspiracy which led to "enormous and peculiar machinations" to shift the drainage burden to Young's land (Tp149). "If we can't deny that there was a levels changing excavation, how do we deny that there was a conspiracy to conceal that matter?" (Tp150, LL23 - 24).
4. He also argued that the 2003 - 2004 lawyers should pay costs now, despite the 2004 costs order in Young's favour, because they failed to write her a letter explaining the outcome of the case (Tp152). "... [S]erious mischief occurred in Court from 16 to 19 February 2004. ... [and] there was a premeditated intention to put forward a sham settlement before His Honour." (Tp155, L35 - 37). The experts should pay costs because they "failed to reveal matters" (Tp60, LL35 - 40, and Tp156, L38), and/or they did not deny they were in the conspiracy (Tp65, LL32 - 33).
5. He said that the conduct of all involved except Young, Muriniti and Newell, has been "patently unreasonable" (Tp154, L20).

Conclusion re the non-parties

1. The arguments which prevailed in favour of the non-party respondents who secured summary dismissals in judgment No 8 (set out in [42] and [67] above) prevail again in favour of the remaining non-party respondents, for the reasons there given: Young's costs application is an "abuse of process" (No 8 at [17] - [23]. See also [30], and the cases cited therein.).
2. The courts have hesitated to try to define too closely what will constitute an abuse of process. It depends on all the facts and circumstances of the case at hand. In Rogers v The Queen ("Rogers") (1994) 181 CLR 251, McHugh J said (at 286): Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.
3. That passage in Rogers was cited with approval by the plurality of the High Court more recently in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, at [89].
4. I agree with Faulkner and other counsel that (Tp31, LL40 - 41) "this application remarkably falls within all three of those categories" defined by McHugh J.
5. Young's costs applications against the remaining non-party respondents should be dismissed, with costs.

The Kings

1. Turning now to the position with the Kings, I came to the firm conclusion in judgment No 6 that, having been totally unsuccessful, Young should pay their costs.
2. Recalling that the Kings had long before informed the Court that they would seek an order for indemnity costs, not only against Young but against one or both of Muriniti and Newell, I made an order for costs (Order (3)) on the traditional "party-party basis, as agreed or assessed", but left an opening (Order (4)) for the question to be further argued (see [14] above).
3. Quite extraordinarily, Young took that opportunity to seek indemnity costs against the Kings, as well as 16 other respondents, all of whom have now successfully resisted any such orders.
4. However, virtually nothing in Newell's copious written submissions on her behalf dealt directly with any suggested merits in a costs claim by her against the Kings, except in the sense that they might be punished for "disentitling conduct", i.e. their part in the conspiracy alleged against all respondents (Tp79, LL4 - 6).
5. It must be clearly stated that there is nothing in any of my earlier judgments in this matter which would warrant my not making an order in Kings' favour, and I am certainly not persuaded by this latest hearing to reverse the effect of Order (3).
6. It is also clear that Young cannot possibly succeed on her 2012 NOM for a costs order against the Kings, and, for completeness, it should now be formally dismissed.
7. However, I still have to decide if I should accede to Kings' motion that Order (3) be effected on an indemnity basis. It is to that question that I now turn.
8. Wright relied on the well-known cases and well-established principles on indemnity costs, to which I referred in Styles v Wollondilly Shire Council (No 3) [2001] NSWLEC 133, at [8] - [14]. Nothing since 2001 has invalidated the summary in that judgment, and I adopt and apply it in this present case.
9. It is obvious, from all that I said of Young's set-aside case in judgments Nos 4 and 6, that the Court believes that that case was doomed from the start, yet her pursuit of it has been relentless, and Kings are clearly entitled to be compensated for all the expense it has caused them, including in respect of the abandoned contempt case, and that part of the prerogative proceedings which was conducted in the Supreme Court before their referral to this Court: see Latoudis, Oschlack, and Schipp, to which cases I referred in judgment No 8, and see also Civil Procedure Act 2005 ss 98 and 149E, and Uniform Civil Procedure Rules r 42.
10. I accept Wright's submission (par 15) that: ... [T]he Kings have conducted the proceedings efficiently and in accordance with their duty to advance the overriding purpose under s56(1) and (3) CPA. They have now endured 16 years of this dispute with Mrs. Young and 8 years of her relentless attempts to resurrect her original 2003 proceedings. During those 8 years, the Kings have also had extremely serious and baseless allegations of fraud made against them along with others. The Court has already determined that those allegations were without foundation and were unsupported by evidence.
11. The proceedings have taken so long, and have cost the Kings so much, because Young (by her own actions, and by actions taken by lawyers, in whom she maintains her confidence, on her instructions) have continued to pursue a case based upon a conspiracy and/or some fraud, for neither of which has any probative evidence been adduced.
12. As Wright says (par 25), that case, including its contempt and prerogative components, "was manifestly hopeless and demonstrably devoid of merit".
13. In addition, she must bear the responsibility for the gross delay, and the fragrant and repeated breaches of the Court's directions, of which I have spoken in earlier judgments.
14. Wright gave (in par 28) additional particular examples of her "unreasonable conduct", including: (iv) Filing and service of huge volumes of prolix, irrelevant, repetitive pleadings and evidence, including the nature of the case statement; (v) Abandoning a substantial part of her evidence at the 2014 hearing.
15. As he commented (in par 30): ... [T]he Court gave Mrs. Young every opportunity through repeated indulgences to advance a case explaining why she was the victim of an injustice. In spite of those repeated indulgences, she was unable to bring forward any coherent evidence to support the serious allegations she has made against the Kings.
16. Young had responsibilities under s 56 of the Civil Procedure Act 2005, and she has not fulfilled them - that constitutes the "relevant delinquency" to which the cases refer.
17. I accept Wright's submission (par 29) that Young's proceedings and her unreasonable conduct of them "amount to an abuse of process".
18. As a consequence, I am prepared to amend Order (3) to provide that Young pay the Kings' costs on an indemnity basis.

F: Unfinished Business

1. In reviewing judgment No 8, I note that my orders did not reflect my finding (in [31]) regarding the second limb of Young's NOM of 20 August 2015 concerning indemnification. I will rectify that omission in the orders which I will make at the conclusion of this present judgment.
2. There remain outstanding, however: 1. the Kings' claims for indemnity costs against Muriniti and/or Newell, including those in paragraphs (2), (4), (5), and (6) of the Kings' amended NOM, filed 21 March 2013; and 2. some claims for indemnity/personal/special costs orders either already made or clearly foreshadowed, by at least some of the sixteen non-party respondents.
3. That 21 March 2013 NOM also refers, in paragraph (3), to an outstanding NOM by Young (seeking access to the Kings' land) which may need to be formally dismissed. The Kings' costs on it are embraced in paragraph (4) (117 above).
4. After the delivery of judgment No 8, I referred the then known outstanding issues to the Registrar for directions, and she dealt with them in a preliminary way - this judgment being then outstanding - on 17 December 2015.
5. I have reviewed the transcript and file-cover record of that hearing, and I note that the Council (18R) wishes to take no further part in the proceedings (T17.12.15, p4, LL17 - 29). All other respondents agreed, and told the Registrar that they wished to await delivery of this judgment (T17.12.15, p3, LL25 - 26) before settling their positions. As already noted, some respondents have outstanding prayers for further costs orders (indemnity, personal, or special), and others have reserved their rights to seek such relief.
6. It was also noted before the Registrar (T17.12.15, p2, LL37 - 47) that the Court of Appeal had stood over Young's appeal against judgment No 6 until 24 February 2016, pending costs outcomes in this Court.

G: Orders

1. I make the following orders at this stage: 1. In response to the Notices of Motion filed on 11 August 2015 and 6 October 2015 by the 1st and 2nd Respondents, Order (3) made in these matters on 9 July 2015 is amended to read as follows: The Applicant is ordered to pay all the 1st and 2nd Respondents' costs of all the Applicant's proceedings in this Court since 8 March 2004, including the costs of the discontinued contempt proceedings, and ordered also to pay the 1st and 2nd Respondents' costs of that part of matter 14/40449 as was conducted in the Supreme Court, all on an indemnity basis. 1. The Applicant's Notice of Motion filed on 20 August 2015, insofar as it sought orders for costs against the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 11th, 12th and 17th Respondents, and/or any indemnity for costs from the 3rd to the 18th Respondents, is dismissed, and the applicant is ordered to pay the costs incurred by all those respondents in defending those claims. 2. Insofar as Order (2) hereof refers to the costs so incurred by the 1st and 2nd Respondents, the Applicant is ordered to pay their costs on the Notice of Motion of 20 August 2015 on an indemnity basis. 3. The Applicant's Notice of Motion filed 16 November 2012 is dismissed. 4. Order (4) made on 9 July 2015 is discharged. 5. So much of the 1st and 2nd Respondents' Notice of Motion, as amended on 21 March 2013, and so much of their Notice of Motion, filed on 6 October 2015, as seek orders for costs on an indemnity basis against Leonardo Muriniti and/or against Robert Newell, are stood over for hearing on a date to be fixed by the Registrar. 6. All Respondents to these costs proceedings who/which wish to seek any further relief from this Court, and Messrs Muriniti and Newell as Respondents to one or more Notices of Motion still before the Court, are ordered to appear before the Registrar on Tuesday 15 March 2016 at 10am for the making of further directions. 7. The exhibits currently before the Court concerning costs will be retained until further order.

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: 19 February 2016