Young v King

Land and Environment Court (NSW)|2018-05-22|Before: Sheahan J

Solicitors: Stern Law (First and Second Applicants on the motion) L C Muriniti & Associates (First and Second Respondents on the motion) File Number(s): 2016/1607672016/160933

A: Introduction

This judgment deals with a Notice of Motion ("NOM") brought by the Respondent Kings seeking personal costs orders against the two lawyers who represented the Applicant Young in the substantive proceedings from early 2008, namely Leonardo Carlo Muriniti (and his firm) and Robert Duane Newell (together "The Lawyers").
In respect of the subject NOM, the Kings filed detailed Points of Claim ("POC") on 23 May 2017, and Newell and Muriniti filed Points of Defence ("POD") on 13 June 2017 and 7 July 2017, respectively.
Section 99 of the Civil Procedure Act 2005 ("CPA"), so far as is presently relevant, provides: 99 Liability of legal practitioner for unnecessary 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: … (ii) in the case of a solicitor, as between the solicitor and the client, (b) it may, by order, direct the legal practitioner: … (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.

B: Written Submissions

As required by the Court's directions, written submissions were filed by both sides prior to the hearing of the NOM.
Wright's comprehensive written submissions, specific to the NOM, were received on 2 May 2018.
Only late on the day before the hearing (i.e. on 21 May 2018) did anything in the nature of submissions on the NOM arrive from The Lawyers. Muriniti's assistant emailed to my associate six sets of written submissions previously relied upon for various purposes before the Court of Appeal, and dated respectively 27 October 2015, 12 May 2016, 23 May 2016, 20 June 2017, 21 June 2017, and 18 December 2017.
In the light of that course adopted at the last minute by Newell, Wright sought, and was granted, leave to provide me with copies of two sets of submissions he had made to the Court of Appeal, dated 6 March and 10 June 2016.
I have closely examined all these submissions.

C: Some Relevant History of the Primary Litigation

I have summarized the history of this litigation, so far as then relevant, in virtually all of my eleven earlier judgments in these proceedings (Nos 2 to 12).
It is, however, but one strand of a complex web of interlocking litigation, a very good summary of which can be found in Sackar J's judgment in Lawcover Insurance Pty Ltd v Leonardo Carlo Muriniti & Robert Duane Newell ("Lawcover1") [2017] NSWSC 1557, at [5]-[102].
In its 10 May 2018 decision (King v Muriniti [2018] NSWCA 98), the Court of Appeal made personal costs orders in favour of the Kings and against Muriniti in respect of the decision of the Court of Appeal (in Young v King [2016] NSWCA 282), upholding my judgments Nos 6 and 9. I referred to that substantive Court of Appeal decision (No 282) in my judgment No 12 (at [53]), in the context of allegations of apprehended bias.
In his judgment in King v Muriniti, on 10 May 2018, Emmett AJA conveniently summarized the presently relevant litigation history (at [61] to [71]) in these terms: Background to the Four Proceedings 61 Each of the Four Proceedings arose out of attempts made by Mrs Young to have orders made on 19 February 2004 by the L&E Court set aside. The orders were made in the Original Proceedings, which had been brought by Mrs Young against Mr and Mrs King. The Original Proceedings arose out of drainage problems experienced by Mrs Young in relation to the King Property, which adjoins the Young Property, both of which are situated in Forestville. The King Property is lower than the Young Property, such that the natural flow of water is from the Young Property to the King Property. The King Property slopes to the rear, such that the natural flow of water is from the front to the rear of the King Property. The rear boundary of the King Property is a common boundary with properties that have frontage to another street in Forestville. 62 In 2002, Mr and Mrs King carried out work on the King Property, involving excavation on the boundary with the Young Property. In the Original Proceedings in the L&E Court, Mrs Young alleged that Mr and Mrs King had carried out various unlawful works on the King Property, including the construction of a footing, construction of a retaining wall and underpinning of existing footings to a dwelling house. 63 The Original Proceedings were fixed for hearing on 16 February 2004 before Justice McClellan, Chief Judge of the L&E Court. After an opening by counsel for Mrs Young and a position statement by the solicitor for Mr and Mrs King, the parties entered into negotiations that led to the Settlement Agreement, whereby the dispute was resolved, except in relation to costs. The Settlement Agreement entailed the giving of an undertaking by Mr and Mrs King to the L&E Court to carry out certain works on the King Property, in consideration for which Mrs Young agreed to the dismissal of the Original Proceedings. 64 On 19 February 2004, for reasons given on that day, McClellan CJ accepted that the retaining wall operated to interrupt the flow of sub-surface water and, accordingly, unless adequately drained, certain problems identified by one of the experts who gave evidence was (sic) likely to occur. His Honour was satisfied that the works that Mr and Mrs King had agreed to undertake were made necessary by reason of the construction of the retaining wall, which Mr and Mrs King conceded had been constructed without consent. His Honour therefore concluded that Mrs Young had succeeded in the Original Proceedings. His Honour noted the undertaking given to the L&E Court on behalf Mr and Mrs King, ordered that the Original Proceedings be dismissed and ordered Mr and Mrs King to pay Mrs Young's costs. ... The orders were made by consent, except as to costs (the 2004 Orders). 65 On 8 March 2004, the undertaking given on behalf Mr and Mrs King was varied. The undertaking, as varied, was to: • carry out certain works identified in Exhibit A, which was in evidence in the Original Proceedings; • lodge a Development Application with the Council for the erection of a retaining wall on the boundary between the Young Property and the King Property, with such wall to include the drainage works referred to in Exhibit A; • make all reasonable endeavours to progress the development application; and • complete the retaining wall works following the Council granting development consent. 66 Mr and Mrs King lodged a Development Application with the Council, seeking approval of the works identified in Exhibit A. The works contemplated by Exhibit A involved some work on the Young Property, for which Mrs Young declined to give her consent. As a result, the Development Application was refused and the work contemplated by Exhibit A has not been carried out. 67 On 23 May 2008, Mrs Young filed a Notice of Motion in the L&E Court seeking such orders as the L&E Court deemed fit to compel compliance by Mr and Mrs King with their undertakings and declarations as to the effect of the orders made by the L&E Court in the Original Proceedings. In the alternative, the Motion sought an order that the order made on 19 February 2004 dismissing the Original Proceedings be vacated and that the Original Proceedings be reinstated. Ultimately, Sheahan J ... made orders on 9 July 2015 that the 2008 Motion be dismissed, that other proceedings commenced by Mrs Young be dismissed and that Mrs Young pay Mr and Mrs King's costs of the Original Proceedings since 8 March 2004. ... Issues in the Four Proceedings 68 Mrs Young thereafter commenced the Four Proceedings. The substantive complaints that were agitated in the Four Proceedings were as follows: (1) The primary judge failed or omitted to give adequate reasons for rejecting Mrs Young's fraud allegations. (2) That failure occurred after a trial of eight days and after reserving judgment for eight months. (3) It should be inferred from the inadequacy of the reasons and the lengthy delay in giving judgment that the primary judge overlooked important pleadings and essential evidence and argument, resulting in a miscarriage of justice. (4) The primary judge failed or omitted to consider submissions by Mrs Young that the elements of unilateral mistake at general law, and in particular the requirement that Mrs Young's legal representatives were affected by the same actual mistake, were not a condition precedent to the application of UCPR, r 36.15 in circumstances otherwise analogous to "unilateral mistake". (5) The Original Orders were obtained by reason of fraudulent representations on the part of one or all of Mr Griffiths, Mr Robert Springett (an expert retained for Mr and Mrs King), and Mr and Mrs King, which was prima facie established by incontrovertible written evidence, in that, in a letter of 5 January 2004, Mr Springett confirmed that the 65 mm drain referred to in Exhibit A was draining to the rear of the King property, whereas the L&E Court was told that the Exhibit A solution involved disconnecting the 65 mm drain from draining to Calca Crescent and taking it to an outlet in the rear. The contents of the letter of 5 January 2004 were known to Mr King. (6) A finding or determination by the primary judge that fraud cannot be established against "anyone involved in the matter", in the absence of reasons to displace the prima facie inference of fraud, was unsafe and the occasion of a miscarriage of justice. (7) The primary judge erred in applying Briginshaw principles without demonstrating reasoned regard to the totality of Mrs Young's evidence. (8) The primary judge erred in excluding evidence of Mr Hones and Mr Hemmings, who acted for Mrs Young, and the exclusion of that evidence was, for a variety of reasons, productive of a miscarriage of justice. (9) The primary judge erred in excluding evidence of Dr Perrens and Mr Warwick Davies, engineers retained on behalf of Mrs Young, and the exclusion of that evidence was, for a variety of reasons, productive of a miscarriage of justice. (10) The cumulative effect of the primary judge's reasons in the multiple judgments given in connection with the ongoing dispute between Mrs Young and Mrs and Mrs King discloses a reasonable apprehension of bias against Mrs Young's claim. 69 The entire thrust of Mrs Young's complaints in the hearing of the Four Proceedings was against the conduct of her former legal advisers and witnesses, as well as Mr and Mrs King and their advisers and the Council. Despite the very extensive and complex allegations of fraud, there was no evidence to support an alleged conspiracy involving Mr and Mrs King or their advisers or Mrs Young's former advisers or the Council, as was asserted in the course of the hearing. The primary judge was not directed to any evidence of conspiracy involving Mrs Young's advisers. There were simply assertions, without reference to evidentiary support, despite the extremely serious nature of the allegations. It was never suggested, for example, that Mrs Young's former advisers acted without authority. There was nothing to suggest that her former solicitor or barrister had exceeded their authority by entering into the Settlement Agreement or consenting to the 2004 Orders. Mrs Young's former advisers were, at all times, acting within the scope of their authority in resolving the Original Proceedings by entering into the Settlement Agreement and the Consent Orders. 70 The adequacy of the primary judge's reasons in rejecting the fraud allegations was originally the only ground of appeal raised on behalf of Mrs Young. Amendments were made to assert that the primary judge had delayed in delivering judgment and had overlooked important pleadings and essential evidence. Those grounds were rejected in the Principal Reasons, on the basis that the primary judge had made perfectly clear his reasons for rejecting the allegations of fraud, namely, the lack of evidence of any real probative value that would warrant a finding of fraudulent behaviour, especially given the Briginshaw standard. The absence of any evidence in relation to those critical allegations of fraud and mistake is significant in the light of the procedural history of the proceedings since 2008 and the express statements by the primary judge that he was anxious at all times in the course of case management to ensure that Mrs Young was given every opportunity to tell her story. Complaints of Mr and Mrs King 71 In the present applications, Mr and Mrs King contend that several features of the conduct of the Four Proceedings by Mr Muriniti and Mr Newell demonstrate serious neglect and serious incompetence that caused costs to be incurred improperly and without reasonable cause. Three categories of conduct are said to justify the making of an order under s 99 as follows: (1) bringing the Four Proceedings in circumstances where they had no reasonable prospect of success; (2) making very serious allegations of fraud that were wholly unsupported by evidence and that should never have been made, in circumstances where there was no evidence to support the serious allegations in the L&E Court; (3) the manner in which the Four Proceedings were conducted in this Court both before and during the hearing. ...
His Honour later added these comments (at [80]-[81]): 80 The hearing of the Four Proceedings occupied two full days, with the Court sitting longer than usual hours on both days. Most of the first day was taken up with Mr Newell's submissions relating to the allegations of fraud and the alleged inadequacy of the reasons of the primary judge in relation to his rejection of the allegation of fraud. Mr Newell was pressed repeatedly to identify the evidence supporting the allegations of fraud but failed to do so. 81 Mr Newell was unable to answer how the Settlement Agreement could be avoided or why it was that Mrs Young was not bound by the conduct of her duly authorised agents in entering into it on her behalf. The inability of Mr Newell to answer specific questions from the Court in the course of the hearing, particularly in relation to the fraud and conspiracy allegations and the mistake ground, added very considerably to the length of the hearing.
Emmett AJA made several references to "Exhibit A", and there will be other references to it later in this judgment. It is, therefore, appropriate - relevantly to all that follows - to note here that what I will continue to refer to as "Exhibit A" had been authored by Young's engineering expert Warwick Davies (to whom Emmett AJA referred in 68 quoted in [34] above), during the "experts' conclave" at the 2004 hearing before McClellan ChJ (as His Honour then was). It has been invariably referred to, in that "shorthand" way, ever since. I shall print it in bold type wherever it occurs in what follows, so as to distinguish it from other exhibits (or annexures) marked "A", among the evidence now before me.
In considering the provenance, in the present application, of the above quoted litigation history, the Court was urged to consider, as did the Court of Appeal, ss 91 (in Part 3.5 of the Act) and 190 of the Evidence Act 1995, which relevantly provide as follows: 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. Note. Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions. ... 190 Waiver of rules of evidence (1) The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of: ... (c) Parts 3.2-3.8, in relation to particular evidence or generally. ... (3) In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if: (a) the matter to which the evidence relates is not genuinely in dispute, or (b) the application of those provisions would cause or involve unnecessary expense or delay. (4) Without limiting the matters that the court may take into account in deciding whether to exercise the power conferred by subsection (3), it is to take into account: (a) the importance of the evidence in the proceeding, and (b) the nature of the cause of action or defence and the nature of the subject-matter of the proceeding, and (c) the probative value of the evidence, and (d) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
I will return to those sections of the Evidence Act ([145] below).

The Federal Court

Prior to the hearing of the NOM on 22 May 2018, this litigation had last been before me on 17 November 2017, on which date I delivered judgment No 12.
In that judgment I referred (at [56]-[62]) to related proceedings in the Federal Court of Australia, notably two judgments of Bromwich J - Young v Hughes Trueman Pty Ltd [2016] FCA 1176, and Young v Hughes Trueman Pty Ltd (No 5) [2017] FCA 690.
I also referred (at [62]) to the holding of a special costs hearing before Lee J on 27 April 2017.
That occurred in the context of the successful bankruptcy proceedings taken against Young by Hughes Trueman Pty Ltd, employer of one of her experts at trial, Dr Stephen Perrens, in respect of costs orders made against her after her unsuccessful proceedings against them.
Lee J took that hearing after Bromwich J had "independently recused himself" (in his judgment [2017] FCA 690).
I have since become aware of the terms of Lee J's judgment on that matter, handed down on 5 May 2017: Young v Hughes Trueman Pty Ltd (No 4) [2017] FCA 456.
As with, it would seem, all court hearings about any aspect of Young's litigation, her counsel, Newell, sought to divert Lee J from the matter-at-hand, into a consideration of her oft-repeated "grand conspiracy" allegations.
Despite their length, I consider it useful and relevant to now quote some passages from Lee J's judgment. The "Primary Judgment" to which His Honour refers is Bromwich J's judgment [2016] FCA 1176.
Lee J relevantly said, inter alia (at [30], [36], and [43]-[53]): 30. ... [I]n relation to the findings in the Primary Judgment as to the conspiracy allegation, the respondents point to the following: (a) "Underpinning the attempts by the applicant to set aside the 2004 Consent Orders has been an allegation of collusion or conspiracy by which those orders were arrived at, with the applicant alleging the respondents were parties to that conduct": at [15]. (b) "... not even a prima facie case was established for the existence of a conspiracy, and thus there could not be any arguable case": at [40]. (c) "The applicant, both in this Court and before the primary judge, has therefore failed at the first hurdle of showing any proper basis for inferring the existence of the conspiracy that she relied upon": at [42]. (d) "The applicant did not even get to the point of excluding other reasonable explanations": at [42]. (e) "There has not been placed before me a single scrap of evidence capable of demonstrating the existence of a conspiracy, ... Indeed the allegation of conspiracy or collusion does not appear to have any factual foundation at all": at [42]. (f) "It simply will not do for any party in litigation to make such serious allegations upon nothing more substantial than a bare assertion that this is the only possible explanation for what has transpired": at [43]. (g) "That [baseless] conspiracy theory continues to underpin the basis for her [case against] the respondents ... The conspiracy theory also underpins the basis for the assertion that the bankruptcy notice is an abuse of process, and breach of the particulars relied upon for the asserted improper collateral purpose in having the bankruptcy notice issue": at [44]. (h) "The applicant's central problem is that the conspiracy she alleges has never risen above a theory, and a mostly fanciful theory at that": at [45]. (i) "...there was simply no evidence whatsoever of a conspiracy, in the sense of there being nothing that was pointed to that was capable of supporting any such inference": at [58]. (j) "...the second limb was fanciful and ludicrous, relying as it did on establishing an entitlement to an asserted $83,000,000 in costs based on a wildly improbable conspiracy, without any precise expression of its terms and information, let alone evidence": at [65]. (k) "...the suggested abuse of process on the part of the respondents in causing the bankruptcy notice to issue was based on supposition and assertion": at [90]. (l) "The asserted conspiracy underlying this litany of litigation has never risen above a conspiracy theory, in the pejorative sense in which that term is used in common parlance": at [93]. ... 36. ... As will be seen, both before Bromwich J and, to the extent relevant, before me, Mr Newell was given every opportunity to put whatever he could to support the allegation that there was a basis for alleging the conspiracy. It did not get better as it went on. ... 43. After making that submission [as to lack of reasons in the Principal Judgment], the following exchange occurred: HIS HONOUR: When you say there's no reasons, what you say is it's not good enough for Sheahan J to simply say I'm not satisfied - or I - there is no evidence of a fraud or the like. That seems to be your complaint, that it's not enough to say I'm not satisfied. It's there. You have to go through letter and verse and explain why something isn't there. That's the essence of your argument, isn't it? MR NEWELL: Yes. You have to explain - if it was put ..... yes, but not as crudely as that. You have to - if you've been presented with pleadings and submissions, you have to say why they don't contend for what - why they don't support what it is they're contended to support. And that's an easy matter. As an example, if someone were to plead that a representation occurred, and the representation is you would have to please constitute it by certain facts, it's a straightforward matter to say, "I'm not satisfied ..... HIS HONOUR: Well, I haven't, as yet, seen anything to demonstrate to me the existence of a fraud or a conspiracy. *** HIS HONOUR: And the conspirators to that are initially, you say, the Council and the neighbours and then other persons come to join this conspiracy, do they? MR NEWELL: They do. HIS HONOUR: And the persons said to join this conspiracy, if I've understood it correctly, are your client's former lawyers, your client's former experts who are the current respondents, the Council and the neighbours. Is that roughly the grouping? MR NEWELL: Yes. HIS HONOUR: All right. And that's asserted, but where's the foundation for the formation or existence of such an agreement? MR NEWELL: Well, it's all to be inferred from conduct to which I will take your Honour. The core - the centre of the matter HIS HONOUR: You would ordinarily require there to be no reasonable alternative explanation before you would infer the existence of such an agreement. MR NEWELL: Well, I took your Honour - that's fine. Please - if you would let me make my submissions….. *** HIS HONOUR: Let me be very clear on this so you're left in no doubt whatsoever. You say a judge has to expressly spell out and explain why it is they're not satisfied there is any evidence of a conspiracy. I'm going to completely invert that. You are going to have to demonstrate to me the existence of this conspiracy, and I can tell you now reasoning that there is no other explanation for how this could have arrived at except for a conspiracy will not cut it - will not cut it. You're going to have to show me the basis for inferring the existence of such an agreement. MR NEWELL: I will show your Honour the basis for inferring a prima facie case. HIS HONOUR: No. It's going to have to be more than that. MR NEWELL: Can I take your Honour then, please, to - you will recall Sheahan J HIS HONOUR: I'm inviting you because it's essential to the success of your case to show me the evidence of the conspiracy. HIS HONOUR: But you could be in no doubt as to what I've said you will need to do. MR NEWELL: No. I understand, your Honour…. 44. What the transcript demonstrates overall is the repeated efforts made by his Honour to direct Mr Newell to focus on the elements of the alleged conspiracy and articulate, with some degree of precision, why it was that there was any basis, let alone a reasonable basis, for the making of the allegations. His Honour could not have been any plainer in directing Mr Newell to the task that confronted him as an advocate. THE ARTICULATION OF THE CONSPIRACY ON THE SPECIAL COSTS APPLICATION 45. Whatever else Mr Newell's submissions lacked, they did not lack persistence. 46. Like Bromwich J, I indicated to Mr Newell that he would need to satisfy me that arguably there was a proper factual foundation for alleging that there was an agreement between conspirators and that such an agreement was executed in whole or part. I was prepared, for present purposes, to assume detriment to Mrs Young. 47. The following particulars emerged when the alleged conspiracy was described in oral submissions before me: (a) a "technique of deceit" was used by a number of parties to represent to Mrs Young that she was getting a "drain and retain" solution to the drainage problem that was the subject of the dispute with her neighbours, the Kings (T58-59); (b) a "completely sham consent" was given by the Council to the Kings which (to the extent I follow the argument) represented a lie about the King's land draining to the street when this was a hydrological impossibility, and that this lie was represented by Council in order to divert attention away from what was required, that is, that the King's property had to drain to the rear (which would involve Mrs Young's land being used for drainage) (T59); (c) the conspiracy was all about imposing on Mrs Young a drainage obligation which was sufficiently financially taxing so as to require Mrs Young to sell her house and hence open it to demolition so that the relevant Council could put in the drainage solution that the Council wanted (T55-56); the Council had an intention to mislead her to get something to its benefit and her detriment, that is, to "misappropriate" or "steal" her land (T61, 74-75); (d) the motivation of the Council was because there was a water course under the King's house that was not working; so instead of asking Mrs Young to put in a drainage solution through her land, a "natural history myth" was devised; this was because, it is alleged, the Council had already illegally caused the redirection of subsurface water by allowing construction of a "granny flat"; Council had to design an illicit solution because (already being in breach of the Water Act 1912 (NSW)), it could not approach the relevant Minister for permission to redirect subsurface water because this would involve, in effect, saying: "I want to breach the Water Act so that I do not have a confrontation with the person on whose land I should be having the issue" (T60-61); (e) what then happened is that after the Council's malign intent was formed, a series of engineers (including the respondents) and lawyers (including the lawyers of Mrs Young) agreed to fall in and advance the Council's interests to injure Mrs Young (T62); (f) it was apparently not thought likely by the Council that Mrs Young would go to a lawyer (T62); but Mrs Young retained a consulting engineer (apparently without the prior knowledge of the Council (T65)); the engineer then recommended to her three potential lawyers, one of whom she retained; the engineer was, in doing so, "helping the Council" (T63) by directing her to lawyers that he knew would fall into the agreement to injure so as to "accommodate the Council" (T64); it is further suggested that the motivation for the engineer and lawyers forming and then joining the conspiracy was that "the relationship becomes the fulcrum for the agreement", which (when I pressed Mr Newell), was explained as meaning that engineers and lawyers do a lot of work for councils and "you're not going to expose the council. You're not going to get big people sacked and prosecuted and expect to get work" (T65); put more bluntly, when Mrs Young went to the engineer, he was prepared to sacrifice the interests of his client, Mrs Young, by reason of the fact that he was not going to "cross the Council" and he "will get a reward for helping them" to further his economic interests (T65); (g) by the time Exhibit A was provided to the L&E Court (which recorded the agreement between Mrs Young and the Kings which later became the subject of the set aside application), the conspiracy to further the Council's interests to the detriment of Mrs Young had extended, on my count, to 13 actors which included not only the original engineer and Mrs Young's lawyers but also counsel for Mrs Young, the lawyers for the Kings and the town planner and engineering experts for both Mrs Young and the Kings (T70-72). 48. When pressed for the objective evidentiary material upon which this conspiracy was based, the response of Mr Newell was, in essence, to point to the fact that it should have been clear that the consent was a sham and it was "screamingly obvious" that what was contained in Exhibit A was not a real or available "drain and retain" solution as was said to be represented. To conclude the explanation, the following exchange (at T69) occurred: HIS HONOUR: So the burden of the submission that's just made is that you say that because of the obvious difficulties with what the engineers should have perceived with exhibit A that the only rational explanation for them putting up to the court and, essentially, through the court to Mrs Young, is conscious, knowing untruth. MR NEWELL: Yes. HIS HONOUR: And, secondly, a conscious, knowing untruth in concert with others in order to further the malign purposes of the Council. MR NEWELL: It had - yes, that's right. 49. As with the argument before Bromwich J, Mr Newell came back to the notion that the L&E Court and Mrs Young had been misled by a number of persons and there could be no basis upon which this could be attributed to anything other than a conspiracy. In this regard, the Solicitors referred to the judgment of Isaacs J in R v Associated Northern Collieries (1911) 14 CLR 387 where his Honour referred to the fact that if several persons are seen as taking a variety of steps or tending towards an obvious purpose and are seen during a period of time taking steps to lead to one end, it is a question of fact as to whether or not those persons have combined together to bring about that end which their conduct seems so obviously adapted to effectuate. Of course, as a matter of law and logic this must be right but it is not correct, legally nor logically, to assert that just because a number of actors acted in a way which, taken together, caused (in a "but for" sense) an alleged detriment, that one can logically jump to the conclusion that the relevant actors were acting in concert - let alone that they were acting pursuant to an inferred agreement to cause damage. 50. What Associated Northern Collieries relevantly stands for is that when one considers the question of proof of a conspiracy, an inference that an arrangement or understanding existed can, in certain circumstances, be drawn from circumstantial evidence if the conduct of the alleged conspirators exhibits "a concurrence of time, character, direction and result": at 400. As Beach J recently observed in Australian Competition and Consumer Commission v Olex Australia Pty Limited [2017] FCA 222 at [478], where persons "meet without any apparent legitimate purpose, then this may assist in proving the existence of an arrangement or understanding". As noted above, a finding of conspiracy can be made in the absence of direct evidence, but it is necessary that circumstantial evidence is identified which shows something more than circumstances which could give rise to conflicting inferences of an equal degree of probability or plausibility or where the choice between them can only be made by conjecture (see Olex at [479]). 51. This is the central problem that confronts the Solicitors and has confronted them whenever the conspiracy has been examined in Court. There is nothing whatever that is pointed to by way of evidence to suggest that there is not an equally plausible explanation for the actions of each of the alleged co-conspirators. Indeed, here one can go much further than merely pointing to an available hypothesis consistent with the non-existence of a conspiracy: in the present circumstances, even assuming a wrong was caused, the type and motivations of the inferred agreement are so singular and so contrary to ordinary experience that any legal practitioner acting reasonably would conclude that there are a number of explanations (including inadvertence or negligence) which are plainly much more probable. Whatever the perceived deficiencies or shortcomings of the actions of one or other of the actors, how can it be reasonably said that anyone was acting in a way that did not have an apparent legitimate purpose, let alone that all persons were acting in concert and illegitimately? 52. It follows that, quite independently to the findings of Bromwich J, I have reached the conclusion that the alleged conspiracy is a fancy based on what appears to be a sense of grievance and a mixture of speculation and illogical leaps. There is no material to which I have been taken that provides a proper basis for extremely serious allegations against a public authority and a number of professionals. Indeed, the notion that a wide range of professionals would have fallen into a corrupt and deceitful plan by the Council to damage Mrs Young in the way articulated by Mr Newell, should have caused profound scepticism in any lawyer and been dismissed as fantastic, absent some cogent incriminating evidentiary material. In the absence of anything but conjecture, it was a misuse of the absolute privilege of the courtroom to advance it. 53. Although not relevant in forming my views on the material before me, it is far from surprising that other judges faced with analysing this conspiracy have reached the same conclusion, including Emmett JA who in Young v King [2016] NSWCA 282 at [90] concluded that there was not a "skerrick of evidence of the conspiracy hinted at by Mrs Young" and that despite "the very extensive and unnecessarily complex allegations of fraud" the allegation of conspiracy was "completely without foundation in the evidence and should never have been made".
Many of the same arguments - conspiracy, "sham consent", etc. - were repeated again in relevant Court of Appeal proceedings (Young v King [2016] NSWCA 282, and King v Muriniti [2018] NSWCA 98), and at the NOM hearing before me, in a constant effort by The Lawyers to justify their conduct of all the proceedings they have run on behalf of Young and/or themselves.
Wright also drew my attention, at the hearing on 22 May 2018, to another recent Federal Court judgment, this one delivered by Markovic J, on 19 April 2018, entitled Young v Hughes Trueman Pty Ltd (No 3) [2018] FCA 531.
That judgment concerned Young's appeal against the sequestration order made by the Federal Circuit Court against her estate. She raised 11 grounds of appeal, and Markovic J found none of them made out. The appeal was dismissed with costs.
Her Honour noted (at [13]) that Young is "heavily indebted to ... Muriniti for approximately $3m secured by way of an unregistered mortgage and caveat over [her] Forestville property".

Other Supreme Court decisions

It is important to note several other decisions of the Supreme Court, published around the time of, or since, my judgment No 12 (delivered on 17 November 2017).
On 16 November 2017, Sackar J delivered his judgment in Lawcover1, to which I earlier referred ([32]). It concerned a dispute which had arisen between The Lawyers and "Lawcover" regarding whether or not an appeal should be brought against the personal costs order I made against The Lawyers in Young v King (No 11) [2017] NSWLEC 34.
Sackar J's decision turned on the proper construction of the relevant contract of insurance, but His Honour included a comment (in [200]) that: [Mrs Young] had over the years paid dearly for [her lawyers'] irrational and reckless strategy. Pushing on with the application in the way they did raises, in my mind, real questions as to their judgment and more to the point their competence. To have imagined such a novel application could ever be made let alone have any remote chance of succeeding was not something together or alone they appeared to consider. The vigorous zeal they displayed has led to financial disaster for their client, now a bankrupt.
The costs of those proceedings were the subject of a further judgment by Sackar J on 3 May 2018: Lawcover Insurance Pty Ltd v Muriniti and Newell ("Lawcover2") [2018] NSWSC 558. I find His Honour's reasons in that judgment very useful on the principles to be applied when making orders for indemnity and/or fixed sum costs.
I also note a decision handed down by the Court of Appeal on 20 March 2018: Newell; Muriniti v De Costi ("De Costi") [2018] NSWCA 49.
De Costi concerned a franchise case conducted by The Lawyers in the District Court, after which personal costs orders were obtained against them. On the appeal brought by them, Beazley P summarized the matter's "complicated procedural history", and observed (at [21]) that the case raised "significant questions of principle" concerning, inter alia, the making of s 99 orders, and the impact of ss 348-9 of the Legal Profession Act 2004. Gleeson and White JJA agreed with the learned President's conclusions. The Lawyers were partially successful in that appeal, but were held liable for some elements of the costs claimed against them.
On 15 June 2018, Beazley P refused an application by The Lawyers for the adjournment of their appeal against Sackar J's decision of 16 November 2017, then listed for an expedited hearing on 19 June 2018.
The learned President surveyed some of the relevant history of Young's proceedings in this Court and elsewhere (see [4]-[17]) before considering the proceedings heard by Sackar J and The Lawyers' allegations against LawCover ([18]-[29]). Her Honour published, on 18 June 2018, reasons for refusing the adjournment: Muriniti; Newell v Lawcover Insurance Pty Ltd [2018] NSWCA 134.
She noted (in [1] and [2]) that the adjournment was sought: 1 ... until after the determination of a special leave application and, if granted, their appeal to the High Court in respect of this Court's decision in King v Muriniti [2018] NSWCA 98. ... 2 The basis of the adjournment application is the appellants' contention that, having regard to this Court's finding in King v Muriniti that a party cannot challenge, in costs proceedings, findings made in the substantive proceedings, they will be precluded from advancing one of their principal arguments on their appeal. ...
This Court understands that the Court of Appeal is still reserved on that appeal.

Documentary evidence from the Kings

In support of the Kings' claim, Wright relied upon the following: (i) Affidavit of Terence Stern sworn 1 September 2017 and the exhibit "TLS-1", setting out the correspondence that has passed between him and Muriniti since 2006; (ii) Supplementary affidavit of Terence Stern sworn 30 April 2018, annexing the exchange of particulars, and correspondence relating to The Lawyers' recusal applications; (iii) The transcripts of the numerous directions hearings in the period from May 2008 to September 2014; (iv) The transcript of the substantive hearing on 9 to 12 September, and 28 to 31 October 2014; (v) POC filed by the Kings' in relation to their claims for costs against The Lawyers, filed on 23 May 2017; (vi) The exchange of particulars between the solicitors then acting for Mr Muriniti and Mr Newell, and Mr Stem, concerning the POC, consisting of a request from Muriniti's then solicitor, dated 29 May 2017, and Mr Stern's reply, dated 19 June 2017; (vii) The Lawyers' POD filed on Mr Newell's behalf, on 13 June 2017, and on Mr Muriniti's behalf, on 7 July 2017; (viii) "For the avoidance of doubt", all of the material in evidence before the Court during in the 2014 hearing; (ix) The Kings also rely upon the Court's past findings in previous judgments, in particular, judgments 6 and 9, and the judgment of the Court of Appeal in the appeal from judgments 6 and 9; (x) In relation to the reserved costs on lawyers' motions for recusal, the Kings rely upon the correspondence annexed to the further affidavit of Mr Stern, dated 30 April 2018, and on the Court's judgment No 12, dismissing the recusal application.
The main purpose of Stern's 1 September 2017 affidavit was to place before the Court 1248 pages of material in Exhibit TLS-1.
That material is contained in six volumes, and a detailed index was provided, as was a schedule of folios of particular importance to the Kings. The documents are generally in strict chronological order (but see fols 1230-1236). Documents considered to attract privilege were identified to the Court (fols 297, 619, 1188-1189, and 1204). Volume 1 covered the period 2008 to 2010; Volume 2 2011; Volume 3 2012; Volume 4 2013; Volume 5 2014; and Volume 6 2015 to March 2016.
Exhibit TLS-1 includes much of the correspondence between the respective solicitors, said (Tp12, LL23-26) "to demonstrate the extraordinary delay and ... hostile and unreasonable conduct of Mrs Young and ... [The Lawyers] throughout the history of their involvement in the matter".
Stern's 30 April 2018 affidavit annexed some correspondence in the period 29 May to 24 August 2017, between Stern and the Lawcover lawyers who had been acting for The Lawyers:
On 29 May 2017 (annexure "A"), Yeldham Price O'Brien Lusk ("YPOL" - for Muriniti) sought particulars from Stern, in reference to the Kings' POC, filed 23 May 2017. With some protest, Stern replied at length on 19 June 2017 (annexure "B"). On 1 August 2017, YPOL confirmed by email (annexure "C") their intention to seek my recusal from hearing this NOM. Stern wrote to Barry.Nilsson (for Newell) on 2 and 24 August 2017 (annexures "D" and "F"), and to YPOL (annexure "E"), on 22 August 2017, regarding recusal,
The Kings also tendered three additional items of correspondence: 1. Exhibit K1 is a letter, dated 28 July 2017, from solicitors then still acting for Newell, to Stern, foreshadowing an application by Newell that I recuse myself from hearing this costs application, on the basis of (par 5) the "reasonable apprehension of bias rule". The letter sought Kings' agreement to join in the application for my recusal. 2. Exhibit K2 is a letter, dated 11 May 2018, from Stern to Muriniti, following the Court of Appeal decision (on costs) in King v Muriniti [2018] NSWCA 98, delivered on 10 May 2018, and, "in light of the findings and conclusions" in that decision, inviting Muriniti and Newell to consent to orders along the lines of those sought in the present NOM. 3. Exhibit K3 is Muriniti's 14 May 2018 reply to the letter in Exhibit K2. In it he (a) indicated his intention to apply to the High Court for special leave to appeal against the Court of Appeal decision of 10 May 2018, and (b) foreshadowed an application to me to adjourn the hearing of the present NOM until after the High Court's decision on the appeal.

Documentary evidence from The Lawyers

In response to the Kings' case on costs, The Lawyers relied on affidavits provided by Young herself (29 March 2018), and by Muriniti (14 May 2018).
Although Wright quipped (Tp10, L43) that he could tender Muriniti's affidavit in the Kings' case on costs, he made extensive well-founded objections to both affidavits, largely on the grounds that they flew squarely in the face of this Court's primary relevant judgments, namely Nos 6 and 9, both of which were upheld by the Court of Appeal, with costs, in Young v King [2016] NSWCA 282.
I allowed both of the affidavits to be relied upon, and I have examined them closely in my consideration of this NOM
Young's affidavit of 29 March 2018 repeats her version of events, a story which this Court and others have seen and heard many times before.
She pays particular attention to the role played by Warwick Davies (as distinct from Jack Davies) in her proceedings. At the time of this hearing on 22 May 2018, Warwick Davies had pending before the Court, an application for the costs order already made in his favour to be converted into a fixed sum order. That application has since been heard by this Court (on 22 August 2018), and judgment will be delivered as soon as practicable after delivery of this judgment.
Young deposes that, after becoming dissatisfied with the original outcome of her substantive proceedings against the Kings, she engaged a series of firms - and at least one barrister - before retaining The Lawyers.
It appears that Stuart Moffet of counsel recommended her to The Lawyers, sometime around the end of 2007, after he had drafted the Statement of Claim which commenced her related District Court proceedings. Moffet is alleged (Young, par 46) to have said of Newell, to Young, "If there is a conspiracy, he'll find it". (By September 2016, Moffet felt he had to arm himself against being dragged into allegations he was part of a widening conspiracy - see his email to Muriniti at 5:24pm Friday 2 September 2016 at annexure "X" to Young's affidavit of 29 March 2018, fol 77).
That fateful change in Young's representation came at about the end of 2007, by which time the Kings had also made a change - to Stern and Wright.
Muriniti deposes in detail to his dealings with Young, Newell, and Stern, since he and Newell came into the matter, before or around February 2008.
He annexes (pars 7 to 9, and Exhibits A, B, and C to his affidavit) his exchange of correspondence with Stern in May-June 2008.
He deposes (par 5) that he wrote to Stern, at that fairly early stage of his involvement (5 May 2018 -Muriniti's annexure "A"), to enquire "as to why the work which was prescribed in Exhibit A had not been undertaken" four years later.
Muriniti further deposes (on 14 May 2018, par 6) that Stern's response (Muriniti annexure "B") was "cryptic and unsatisfactory", and later (at par 76) quotes one paragraph only from Stern's letter of 6 May 2008.
That letter (annexure "B") replied to Muriniti's letter of 5 May 2008, in which, inter alia, Muriniti had said (p3): Because your clients failed to provide all necessary technical information and to address our client's concerns and the concerns of our client's expert, Dr Perrens, our client could not provide her consent to the development application, which our client was entitled to do in the circumstances. In any event, we note that our client did not give any undertakings to the Land and Environment Court that she would consent to any work being undertaken on her land. It was your clients who gave undertakings to the Court to effect all necessary work in order to address the drainage problem which had been created by their actions. ... On our instructions it was our client's understanding that all remedial work which was required to be effected would and could be effected within your clients' property and would not involve our client's property at all. ... It is our client's position that given your clients' failure to adequately address her concerns and the concerns of her expert, Dr Perrens, her reluctance to provide her consent for work to be undertaken on her property was quite proper and justified.
Stern's reply (Muriniti's annexure "B") included (par 2 - as mostly quoted by Muriniti at par 76): I do not intend to respond in detail to the lengthy allegations that you make in that letter, except to say, that my client denies the allegations therein. It should, however, be apparent, even from the version of events that appear in your own letter, that your client has refused to consent to the development application that is the subject of the orders made in the Land and Environment Court and has instead demanded concessions that were not the subject of those court orders as their "price" to provide their consent to our clients' development application.
The letter continued (par 3): The orders are quite clear, they require my client to "make all reasonable endeavors (sic) to progress the development application through council" (which they have clearly done) and to perform certain works after that development application is granted (which they cannot do because of your client's refusal to grant their (sic) consent to the development application). The orders do not require my client to take any further action until the development application is approved.
Muriniti wrote again (his annexure "C", p1 par 4), saying that Stern's response was "obfuscating the central issue and that is that the work which was required to remedy the problem which was created by your clients' unauthorised building work has not been remedied".
What followed from that 2008 exchange of correspondence can be traced from the history of the proceedings in this Court, as it has been recounted in my judgments and those of other courts.
For the present, however, I return to my attempted summary of Muriniti's affidavit, responding to the NOM brought by Kings, and presently before me.
He deposed at length to his consultations with experts, notably Dr Stephen Perrens and Warwick Davies, accusing them "and other experts" (in par 26) of "deliberate obfuscations and deceptive and misleading statements". He concluded, in the context of s 99 (at pars 57 to 61): 57. Whatever the problems have been with these proceedings, it has not been my doing or Mr Newell's doing or Mrs Young's doing. 58. It has taken years of hard work and deep reflection to deconstruct and make sense of what was going on and why. 59. The suggestion that I or Mr Newell somehow had breached s99 of the Uniform Civil Procedure Act or are remiss in any other fashion is something I totally reject. 60. What Mr Newell and I walked into, in my respectful submission, was nothing other than a conspiracy to defraud Mrs Young and an attempt to cover up the conspiracy by a concerted and determined attack on myself and Mr Newell which has involved, at first instance misleading and deceiving us by the very experts that we sought to consult and subsequently by a smear campaign and a vicious attack which is not abated to the present time. 61. I respectfully submit that neither myself nor Mr Newell can be blamed in understanding (until it was claimed otherwise) that Exhibit A was in fact a drain and retain solution given that many judicial officers who have looked at Exhibit A come to the same view. (I asked Muriniti about the "many judicial officers" to whom he referred in para 61 (see Tp56), and he responded that he was referring to only Smith J of the Federal Circuit Court and Bromwich J of the Federal Court.)
He then turned his attention more closely to Exhibit A, and in the context of his affidavit evidence on that matter, Muriniti deposed (at 62 and 63): 62. ... Exhibit A ... when properly understood [is] an insidious and perfidious document that has been designed to deceive and mislead both the court and anyone else looking at the matter at some future date. ... 63. The Kings were not innocent parties to the fraud which was attempted against Mrs Young. ... 64. [The Kings] ... had to have knowledge of the theory pursuant to which Mrs Young was to be made wholly responsible for draining and retaining her land.
He then continued his allegations regarding the Kings' alleged role in the so-called "great conspiracy", before adding (at 65 to 68): 65. What is further revealing, is that in 2014 when proceedings were heard which led to the judgment of Young v King No. 6. Evidence was given by Jack Davies of a watercourse running across the front Mrs Young's property across the boundary and under the Kings' house and out to the north-eastern corner where it no doubt it joined a larger watercourse which discharged out to Bates Creek. Finally, the unannounced council approved outlet emerged out of the mist. 66. The Kings never once challenged that evidence, it was never put to Mr Davies that his opinion was incorrect in any way and that there was no watercourse running under the Kings' house. It has never been asserted by the Kings that a watercourse did not cross the boundary and run under their house at any time. But if a watercourse crossed the boundary from Mrs Young's land and under the Kings' house and out to the north-eastern corner of their property (as Mr Davies unchallenged evidence disclosed) then construction of a mass concrete footing on the boundary by the Kings and the retaining wall which purportedly was in contemplation by the Kings and the council and presumably in contemplation in Exhibit A would have had the affect of breaching the Water Act. 67. It has taken a great deal of work and much reflection and research without the benefit of honest expert opinion to finally deconstruct the real theory (but false theory) which was constructed by all those involved which could have seen Mrs Young defrauded of her home. 68. The conduct of the people involved in the conspiracy to defraud Mrs Young of her home has now been further compounded by a determined and concerted program intended to brow beat and intimidate her legal representatives by the making of numerous costs orders against them.
He then posed (at 69) the question: ... Why are Mr Newell and Mr Muriniti still confronted with costs applications against them in circumstances where all that Mr Muriniti and Mr Newell have done is to discharge their duty as officers of this court as courageously and as honestly as they possible (sic) could in extremely difficult circumstances where experts retained to advice (sic) colluded to deceive them; provide misinformation and create confusion and all indications are that the Kings together with all the other parties are complicit in a scheme to defraud Mrs Young.
He then moved on to a critique of my judgment No 6, deposing (at 71-73): 71. It is clear from what his Honour has said that the understanding both of his Honour Sheahan J and McClellan J and in fact the understanding of other judges such as Judge Smith of the Federal Circuit Court who have also looked at Exhibit A is that Exhibit A when read by any rational, reasonable person describes a drain and retain solution. 72. It is clear also that Exhibit A was exquisitely designed to create just that understanding in the mind of an intelligent, reasonable person. 73. The fact that that understanding arises in the minds of judicial officers with significant experience in land and environment matters including drainage matters, such as his Honour McClellan J and Sheahan J, is a matter of no small moment. (These paragraphs also appear verbatim in a letter Muriniti wrote to his LawCover solicitor on 26 June 2017 - see fol 81, being p2 of annexure "Z" to Young's affidavit, to which I referred above at [72].)
Muriniti deposed (pars 77-79), in regard to the issue of Young's consent to some of the DA works being done on her land: 77. The claim that it's all Mrs Young's fault that she did not give her consent to the King's development application does not make sense. 78. Mrs Young's consent could only be required if there were to be works undertaken on her land: but there is nothing in the undertaking which the Kings gave that indicates that any work is to be undertaken on Mrs Young's land. On the contrary, the retaining wall that was envisaged and the drainage works that needed to be installed behind the retaining wall were all to be on the King's land; so, this begs the question - why is Mrs Young's consent required? There is no answer to these question (sic) that is apparent on the face of the undertaking given by the Kings to the court nor from a reading of Exhibit A. 79. To date, Terence Stern has never explained why Mrs Young's consent was required and if work was to be undertaken which required Mrs Young's consent, what that work was and why that work was a consequence of the undertaking or something that Mrs Young had to acquiesce to - given that Exhibit A did not make any reference to any work being undertaken on Mrs Young's land and the court understood (as is evident from his Honour's findings) - that the construction of the retaining wall and the drainage of the retaining wall to be placed entirely on the Kings' land was an obligation that the Kings had. The Kings were the ones who had to lodge the Development Application. Mrs Young's consent was irrelevant and would not be required as asserted. Therefore a priori, all the work had to be done on their land: they could not lodge a development application that would require work on Mrs Young's land if the work had to be undertaken on the King's land are, by parity of reasoning, precisely what was Mrs Young to consent to and why?
Muriniti then returned to his criticisms of Stern, Warwick Davies, and two other experts, Perrens and Robert Springett, to support his re-articulation of Young's conspiracy case.
He later deposed (pars 105-106): 105. The unspoken and unannounced premise (but false premise) that a watercourse resides on Mrs Young's land and runs parallel to the boundary of her land to the back of her property and that these fictional conditions on her land were effective in preventing ground water from reaching and crossing over the boundary and that a priori surface water might also have been dealt with by using drainage mechanisms like chimney drains to draw down surface water into the same water course and to further assist matters a fictional red brick work on the boundary was conceived which functioned to stop any surface water crossing over the boundary as well. 106. With this unspoken and unannounced premise in mind one now has an explanation for how ground water and surface water purportedly never crossed the boundary onto the Kings' land and also enabled the Kings to claim that they were entitled to pin back water onto Mrs Young's land and to also provide an explanation as to why the alleged "existing habitable rooms" under the Kings' house could be maintained.
After 111 numbered paragraphs, which I have very briefly summarized above, the numbering in Muriniti's affidavit continues from a second paragraph numbered "44", in which, with no context established, Muriniti makes reference to judgments of Sackar J and Basten JA.
In fairness to The Lawyers, I now set out the last seven paragraphs of the affidavit (numbered "48" to "54", on page 20): 48. In light of the findings of various judicial officers that Exhibit A is a document which prescribes a solution, the position adopted by the author of Exhibit A that it is nothing of the sort, cannot be reconciled with those finding, leading to the obvious question as to why Mr Warwick Davies wants to claim that Exhibit A is not a solution and nothing of the sort or merely some aide memoir notes. 49. Having pondered that question for some considerable period of time, the inevitable conclusion which I reached together with Mr Robert Duane Newell is that Warwick Davies made the claims that Exhibit A was not a prescription or a solution or anything of the sort in order to deflect enquiry as to what Exhibit A actually is and what the various presuppositions were which were made by the various experts and other persons involved in the 2004 proceedings to sustain the prescription contained within Exhibit A and what that prescription actually is. 50. In order to drill down to discover what the unannounced presuppositions were, how they were insinuated into various correspondence, documents and plans in such a way as to escape detection and how those insinuations were intended to be exposed in circumstances which had been contemplated to ambush Mrs Young has required an immense amount of investigation, reinvestigation, reflection and deconstruction. 51. It is estimated that hundreds of professional hours have been spent trying to unravel what, in my respectful submission, is an immense and very complex matter. 52. Robert Newell and myself have had to undertake this task confronted with the numerous instances of misinformation which were deliberately planted in various expert reports as well as written and oral advices which were provided to myself by the various experts to whom we had turned for expert advice and assistance. 53. Along the way we had to, from time to time, retrace our steps when we discovered that we had taken some wrong turns in our thinking or had wondered down a process of thinking which proved to be dead ends in circumstances where the experts we contacted were deliberately deceiving and misleading us, we were confronted with the task of trying to make sense of what was going on to a significant extent self-educating ourselves in matters of hydraulic engineering and surveying. 54. The task of deconstructing what the various parties involved in the conspiracy did to aid and abet the conspiracy and how various comments, documents and plans can then be interpreted either in isolation or jointly to unmask the real dishonest agenda of the parties involved, fell mainly on the shoulders of Mr Robert Duane Newell formally of counsel.

Oral evidence

Both Stern and Muriniti were required for cross-examination on their respective affidavits.

Stern

Stern confirmed that the Kings came to him, as new clients, to obtain advice on the costs which McClellan J ordered them to pay at the conclusion of the primary proceedings.
He acted for them in respect of that aspect of the case, and also in respect of (a) the District Court proceedings which Young had commenced against them and the Council (Tpp22-23), and (b) the contempt proceedings which Young commenced in this Court (Tp32).
Newell also asked him about his knowledge of the argument that arose in the case concerning Mrs Young's alleged refusal to give her consent to some works being carried out on her land as part of the Kings' DA, lodged in accordance with their undertaking to the Court (Tpp24-28).
Stern stressed (Tpp28-32) that he "constantly" (Tp28, L20) acts only "on instructions" sought and received from the Kings.

Muriniti

Muriniti adhered (Tp34) to his affidavit of 14 May 2018, before being challenged on some of it by Wright, and he testified (Tp35) that Young had waived privilege over some of its contents.
He took over Young's case from solicitor Stephen Walker, who had briefed Stuart Moffet of counsel. Moffet contacted Muriniti to refer Young to him (Tp37, and see [75] above).
Muriniti always "relied heavily" on Newell's advice - he "consulted with him, conferred with him, and acted upon his advice in a considered way as an experienced solicitor" (Tp38, LL20-23). Both The Lawyers were/are "very experienced litigation practitioners" (Tp39, LL12-13), but Muriniti had no prior experience with bringing contempt proceedings, and little experience in alleging conspiracy (Tp39).
The Lawyers had together brought one conspiracy case before - against American Express in the District Court. They lost it, and then lost an appeal, and ended up with personal costs orders against them, against which they also lost an appeal (Tp40).
They embarked upon Young's contempt proceedings in this Court, against the Kings, in order to enforce their undertaking from 2004 (Tpp40-41), but they abandoned contempt, and sought, from 2010/2011, to set aside the Court's 2004 orders, on various grounds, including mistake, and fraud/conspiracy (Tpp42-43). They also separately sued Young's former advisors, in the Supreme Court, for fraud or mala fides (Tp43).
Muriniti gave evidence (Tp44, LL10-34) that, "in late 2009/early 2010", they had formed a view that Mrs Young was the victim of something in the nature of fraud or conspiracy involving (individually named in the transcript) Warringah Shire Council, barrister Hemmings, solicitor Hones, expert Perrens, the Kings, and the Kings' former solicitor Griffiths.
Muriniti also testified (Tpp44-46) that he either could have obtained, or did in fact obtain, documents from Hones, Hemmings, Perrens, Warwick Davies, Springett, Copland-Lethbridge, Jack Davies, and Mike Boyden.
The following exchange then occurred between Wright and Muriniti (Tp46, LL24-32): Q. It's fair to say, isn't it, that in 2008/2009 you had available to you all the materials you considered necessary to form a view as to the nature of the case that could be brought by Mrs Young to set aside the 2004 orders? A. Yes. Q. Based upon that material you in close consultation with Mr Newell formed the view, didn't you, that Mrs Young had been the victim of some kind of conspiracy? A. Yes.
Muriniti was then asked about what evidence he had to connect Council and the Kings in a conspiracy (Tpp46-47), and he replied that Council had refused to investigate Young's complaints about drainage issues, and Kings' claims to have habitable rooms on ground level.
There then followed these exchanges (Tp47, L21 to p49, L40): WRIGHT Q. So all of those things together or individually do not evince any form of agreement between the Kings and the council, do they? A. Well no, I disagree. Q. Let me put it to you another way, Mr Muriniti. Individually and together the highest you could ever put any allegation of conspiracy between the council and the Kings is that there is some kind of circumstantial case to be made. That one has to draw a whole series of inferences from the nature of the matters you have just put to reach any conclusion that that necessarily involved a form of conspiracy between the Kings and the council, that right? A. Well, with respect, most conspiracy - are circumstantial. You draw-- Q. Let's talk about this conspiracy, I'm asking you about this one? A. Well, yes, there was circumstantial evidence, put together I drew the conclusion, together with Mr Newell, that the Kings were complicit. Q. Let me be very clear about this? A. Yes. Q. You together with Mr Newell drew the conclusion that the Kings were "complicit"-- A. Yes. Q. --in their conspiracy with the council based upon circumstantial evidence, is that right? A. I would have to reflect on whether all of the evidence that we considered was circumstantial. I don't think I can do that here, sitting in the witness box. I'm prepared to concede that some of the evidence that we considered was circumstantial. Q. You can't point to a specific piece of evidence, having been involved in this matter for many years and having had to review it quite closely for a whole lot of other purposes including other proceedings involving you and the Kings in the Court of Appeal, and also involving you and Lawcover, you cannot sitting here on oath identify for his Honour a direct piece of evidence which implicated the Kings in a conspiracy with the council, correct? A. No, I - disagree. The Kings undertook excavation on their land, they reduced the ground level, the council did nothing. This is - this was land in a catchment area-- ... Q. The Kings excavated, the council did nothing. That must, Mr Muriniti, require an inference to be drawn as to a motive and reason for the council doing nothing, correct? A. Correct. Q. That is a circumstantial case requiring the Court and you to prove an inference that the only rational explanation for the council's inaction was a conspiracy between the council and the Kings. You must agree with that? A. The act by the Kings of excavating is a direct piece of evidence, excavating. They excavated, the claimed they could put a-- Q. No, I'm not asking you to go back to - the propositions you put a moment ago, you said the Kings excavated and the council did nothing? A. That's right. Q. I'm putting to you that the only basis upon which you could assert that there was a conspiracy from between the Kings and the council arising from those two matters will be to infer and to be satisfied that the only available inference, based upon the council's inaction in response to the Kings excavation was that there was a conspiracy between them to harm Mrs Young. That must be right, mustn't it, Mr Muriniti? A. Yes. Q. It's correct to say, isn't it, that the matters you rely upon to attribute any kind of responsibility to the Kings must depend on some form of inference being drawn that things were done or not done by the Kings and the council in this instance under the specific intention of defrauding Mrs Young? A. Yes. Q. The same must be true, mustn't it, however you connect the web if there is to be an allegation proven to Court, and you must now accept as a matter of principle it would have to be proved to the Briginshaw standard, agreed? A. Yes. Q. That any connection between the Kings and Mr Hones depends upon inference and that the only inference is that the Kings somehow colluded or conspired with Mr Hones to harm Mrs Young, that that is the only plausible explanation of the evidence which you put forward leading to an assertion which you pleaded that the Kings were involved not just with the council but a range of other parties to defraud Mrs Young, correct? A. Yes. Q. To save time, that would be true of any relationship with the Kings with any of the persons up until 2014 you alleged were part of a conspiracy? A. Yes. Q. At that stage, one assumes, from the fact that you have brought proceedings in some parties, that it was the Kings? A. Yes. Q. The council? A. Yes. Q. Mr Hemmings? A. Yes. Q. Mr Hones? A. Yes. Q. Dr Perrens? A. Yes. Q. And possibly at that point, and I do this carefully, based upon what is in your affidavit now, possibly Mr Warwick Davies, correct? A. Not possibly. Not possibly-- Q. You had already formed the view when the matter came for hearing before his Honour in September and October 2014 that Mr Warwick Davies was part of the conspiracy? A. Yes. Q. You based that solely upon what you say in your affidavit are unsatisfactory responses he gave to you in relation to how you might interpret the document called exhibit A, is that it? A. Absolutely.
Wright then turned his cross-examination (Tp49, L42) to the wide-ranging costs application Young had brought after her loss of the primary proceedings (see judgments Nos 8 and 9).
The alleged conspirators to whom the evidence had already referred were supplemented by the addition, as costs Respondents, of engineers Ross Fraser and Michael Brearley (Tpp50ff).
They are both now regarded by Young's camp as conspirators, because they failed to tell The Lawyers things they should have told them as witnesses, even though they were engaged as "independent expert witnesses". Muriniti testified (Tp50, LL33-34): ... the conspiracy broadened when we consulted these people. Instead of telling us what we needed to know, they failed to tell us.
In the context of his dealings with Brearley, Muriniti gave the following evidence of more general relevance (Tp52, L38-p53, L36, and p54, LL2-50): WRIGHT Q. You formed the view and Mr Newell also advised you that it was his view that the only rational explanation for Mr Brearley's alleged omissions was that he was also complicit with the council, and all of the others, in a conspiracy to defraud Mrs Young? A. Correct. Q. Right? A. Yes. Q. Who was he complicit with? Everybody? A. I don't know. Q. You don't know? A. No, I don't know. There's - there - was evidence of conduct by Mr Brearley which was seriously suspect. He failed to tell us things that we believed were within the purview of his expertise. We drew appropriate inferences. Do I have some knowledge of these people meeting in a room and colluding together? No, but we certainly drew inferences which were logical, in my view were logical, were - properly deduced by applying appropriate critical thinking. Q. That's each of you and Mr Newell together, isn't it? Conferring about this, discussing-- A. Yes. Q. --Mrs Young's case? A. Yes. Q. This was at all times in determining who was involved, how you would advise Mrs Young as to who was involved, what action would be taken against individuals because of it-- A. Yeah. Q. --was something that was a matter of close consideration and conferral at all times between you and Mr Newell, wasn't it? A. That's right. Q. You didn't form your own views about it without consulting Mr Newell? A. We've held very extensive discussions. We've kicked these matters around. It's difficult to know where his views finish and mine start and vice versa. Q. All right, that's what I needed to hear from you, Mr Muriniti, but that's also true, isn't it, from throughout the whole history of this matter from your and Mr Newell's involvement from 2008? A. That's right. Q. You're a very tight team on this, aren't you? A. I think that's a fair description, yes. ... Q. ... You and Mr Newell conferred closely and drew what you have described as "appropriate inferences" from Mr Brearley's failings and omissions as an expert witness you had called in Mrs Young's case, specifically failing to notify you of certain matters which you considered to be material upon reflection, correct? A. Yes. Yes. Q. That is the highest you can put the allegation that Mr Brearley was involved in some form of conspiracy against Mrs Young, isn't it? A. Yes. Q. That's also true of Mr Fraser, correct? A. Yes. Q. Mr Tuxworth? A. Yes. Q. Mr Goodyer? A. Yes. Q. Mr Schubert? A. Yes. Q. It is a process of drawing the appropriate, and I must say adverse inferences against these individuals based upon their failings as experts or as witnesses to tell you things? A. Yes. ... Q. There's no direct or positive evidence of any of these people I have named, nor for that matter of the Kings, other than the matters you've identified for us earlier of them saying or doing anything by a way of positive evidence and positive actions that would support an allegation that anyone had conspired with anybody else to harm Mrs Young's interests. That's correct, isn't it? A. If by direct evidence you mean do I have confessions, do I have evidence of meetings with certain agreements were made to conspire against Mrs Young, no, I don't. Q. I take it then, or I'm going to finish with these questions in an abbreviated way or reflect upon them over lunch, it's fair to say, isn't it, Mr Muriniti, that you make some very firm statements in your affidavit in various paragraphs-- A. Yes. Q. --that neither you nor Mr Newell individually or together, or Mrs Young individually or with you, have done anything wrong in relation to making these allegations of conspiracy, that's right, isn't it? A. Yes.
Wright then questioned Muriniti on the statements he made in pars 57 to 61 of his affidavit (see [87] above).
Muriniti confirmed his view that the "years of hard work and deep reflection" involved in deconstructing and "making sense" of what had happened to Young had commenced in "at least 2009", and "may very well continue to this day" (Tp55, LL23-34). It provided a "sound basis for making allegations of conspiracy against all of the identified persons" (Tp55, L49 to p56, L1).
He generally accepted (Tpp58-59) that little new information, and no new expert advice, had come to him and Newell since 2014, and then this exchange occurred (Tp60, LL9-28): Q. ... Looking at the pleadings as they stood in 2014 and your certificate, and the material you had available to you, I am suggesting to you that there was no possible basis on the material you had available which could satisfy you as a competent solicitor that there was a provable fact on the materials you then had which would support an allegation of conspiracy against the Kings? A. I believe there was. Q. You continue to believe that to this day, do you? A. I do. Q. It must follow then, mustn't it, and don't be shy about this because you swore in your affidavit, his Honour's sitting right there-- A. Yes. Q. --it must follow from what you've just said to us that you still maintain a view, and I'm sure you'll express it with appropriate respect, that his Honour's conclusion on the evidence was wrong? A. I mean no disrespect, but I hold the view, and it's my honestly held view that my - that when I certified that certificate and now, yes, and I mean no disrespect to his Honour, reasonable minds can disagree.
He then added (Tp61, LL1-2): ... I'm bound by his Honour's finding, but I hold an honest opinion to the contrary
Wright then asked him (Tp61, L34 to p62, L50) about the views expressed by Emmett AJA in the Court of Appeal's review of my substantive decision ([2016] NSWCA 282 at [90]-[91], which I have already quoted above, at [10]): Q. I'm asking you how you can possibly say on oath and in light of the Court's finding that there was not a skerrick of evidence to support the findings. I want to ensure that you've had the opportunity to discuss before his Honour this morning that there was a basis to certify that there were provable facts? A. Well, that's what the Court found. That is what the Court found. We sought to argue before the Court in response to your client's cost application by putting forward 47 pages of submissions that there was evidence, and that with all due respect to the Court those submissions were not considered. Q. Mr Muriniti, you and Mr Newell, on Mrs Young's behalf, had every opportunity before his Honour at the hearing over eight days, and before the primary appeal before the Court of Appeal over two days, to put a case which supported the proposition that there was evidence to meet the Briginshaw standard of fraud, didn't you? A. We were given an opportunity, we obviously - the Court has found that we'd failed to do that. We tried to persuade the Court recently that in fact we did have the evidence. Now-- Q. All right, well let's just pause there for a moment. Whether or not you were permitted to rely upon 47 pages of submissions, there was no new evidence, and you've already agreed this must be right because I've already asked you this specific question-- A. Yes. Q. --no new evidence either during the hearing of the appeal, or the hearing of the costs application that would support a claim of fraud against the Kings? A. Yes. Q. Correct? A. Yes. Q. The same might be said of the fundamental failing in Mrs Young's case put by you, which was that there was simply no evidence of unilateral or common mistake, correct? A. Yes. Q. You know that his Honour found that the case failed, Mrs Young's case failed, because of the principle of finality of litigation in that she was bound by the conduct of her duly authorised agents in the proceedings before the Chief Judge in 2004, namely Mr Hemmings and Mr Hones. The Court of Appeal found the same thing, didn't it? A. Yes. Q. There was no evidence available to you in 2014, before 2014, or after 2014, which would suggest that Mr Hemmings or Mr Hones were doing other than acting within their instructions to conduct her litigation on her behalf? A. Well, I had my instructions from Mrs Young. I had my instructions from Mrs Young. Those instructions were that they accepted an undertaking without discussing with them, without her instructions. Q. That's not what I asked you. Let me just read to you from paragraph 91 of Emmett J's judgment? A. Yes. Q. In those circumstances there had been what you'd already described, Mrs Young's bound by the actions of her advisors. "There has never been any suggestion that Mr Hones, Mr Hemmings or Dr Perrens acted without authority." That statement is correct as a matter of evidence, isn't it? A. Again, I don't mean to be disrespectful, that is what the Court found. I don't know that I if you're asking me personally whether I accept that is a correct statement, without being disrespectful at all, I don't know that I can. Q. "There is not," and again I'm reading from the final sentence of paragraph 91 of his Honour's judgment, "a skerrick of evidence to suggest that either of them," that being Hones and Hemmings, "acceded their authority in negotiating the settlement agreement and asking McClellan J to make the original orders? A. Well that's what his Honour found in Mrs Young's case.
Muriniti admitted (Tp63, LL7-24) instructing Newell to accuse Hones and Hemmings of "buttering their own bread", in the sense of "trying to facilitate for themselves [legal] work from the Council, to their commercial advantage".
There then followed these exchanges between Wright and Muriniti (Tp63, L26- p64, L16): Q. Earlier I discussed with you the involvement of your client's own witnesses including Mr Fraser and Mr Brearley. Was their motivation to butter their own bread in the same way? That is to facilitate work from this council professionally in their areas of expertise? Is that what you say was a motive? A. No, I think it's slightly different. I think there's a culture-- Q. There's a what? A. --I think there is - what I've discerned and what I believe is that there's a culture which is extent where if a person such as Mr Brearley doesn't toe the line, he can expect to be blacklisted. Q. You're suggesting, are you, that the reach and scope of the council's influence is such that people in the position of Mr Brearley would consider themselves at risk of ruin if they were blacklisted by the council for future work? A. Ruin might be putting it too high, but certainly at a disadvantage. Q. That means, does it, that any of these people who were engineers or town planners were motivated by a fear that if they said something contrary to the council's interests, they might not get work from the council in the future? Is that what you're saying? A. Not just from the council. I think - it's quite possible that there's a network whereby there's a culture whereby people like Mr Brearley could be blacklisted across a number of councils. Q. Where's the evidence to support that assertion in these proceedings? A. Well there is no evidence. You're asking me what I inferred, that that is that looking at this matter, looking at how people behaved, that is the inference that I've drawn. Q. All right, you draw an inference from their conduct and nothing else, is that right? A. That's right. Q. What else would support the suggestion that there is the culture you describe that this council and across, what, other councils-- A. Possibly, yes. Q. --could cause these people to be so fearful they would not act in a way that was consistent with Mrs Young's interests? A. That's right.
Muriniti did "not necessarily" accept (Tp64, LL32-34) that it was "a more reasonable hypothesis" that people worried about such consequences "would have declined to act for Mrs Young at all".
Wright then asked Muriniti about the role of lawyers engaged by The Lawyers' professional indemnity insurers.
At an early stage of the hearing on 22 May 2018 there had been the following exchange at the Bar table, between Wright and Newell (Tp12, L49 to p13, L21): WRIGHT: All right. I don't know what arrangements were made between you and those representing you, Mr Newell. NEWELL: Let's not go into that. WRIGHT: I don't know why you're sniggering, they're your lawyers, not mine. NEWELL: Really. WRIGHT: Unless they're now part of the conspiracy, which may well be the case. NEWELL: Yes, they definitely are. WRIGHT: Sorry, they definitely are? NEWELL: Most certainly are. WRIGHT: All right. NEWELL: You should see our application to the Court of Appeal. WRIGHT: That's great, and that'll just give me some additional questions to put to Mr Muriniti.
During his cross-examination, Wright confronted Muriniti with the gravamen of that exchange, and the following evidence was given (Tp64, L36 to p65, L31): Q. ... Let's go beyond those that you say were involved in this conspiracy in 2014. We heard Mr Newell say to his Honour this morning that your professional indemnity insurer, Lawcover, and Mr Newell's professional indemnity insurer, whoever that might be, and the solicitors appointed for Lawcover being Yeldham Lusk, whatever the full name is, O'Brien-- A. Yes. Q. --and counsel apparently briefed by them, and the solicitors appointed to act for Mr Newell's insurer and any counsel, are all part of the conspiracy too. Do you hold that view? A. Part of the conspiracy against Mrs Young, is that what you're asking? Q. And by extension against you apparently. The statement was made at the bar table this morning that they're part of the conspiracy? A. Yes. Q. Do you hold that view? A. Yes, but not - necessarily against Mrs Young specifically. Q. What specifically is the conspiracy that they're involved in then? A. It's a matter in which we've been represented. Q. If you're not being represented in a way that satisfies you, it follows, does it, that the representation is subject to some form of conspiracy against you? A. Yes. Q. It must follow as night follows days, doesn't it? A. Well no, it's the manner - in which we were represented. Which doesn't make sense in my view. All right, and therefore we formed the view that these people could not be trusted. Q. So the flavour then of the complaint you make against your insurers and their legal representatives, or yours, is consistent with the nature of the complaint you assert should be made against the experts if they do something wrong, if they fail to tell you something or fail to do something in the interest of, in the case of the expert, Mrs Young, it follows that they're part of a conspiracy, does it? That's the only rational inference you can draw. Is that what you're saying? A. I'm saying that in this case I've drawn an inference, yes. Q. The answer's yes? A. Yeah. Q. No other plausible or rational explanation of behaviour? A. No.
Wright's next series of questions concerned the lawyers engaged by Young, after Hones/Hemmings and before Muriniti/Newell, namely Stephen Walker and Stuart Moffet (Tp65, L37 to p66, L8): Q. Should we assume from your evidence before his Honour now, Mr Muriniti, that the conspiracy is now closed, there are no new actors that could come to your attention? A. Yes. Q. Is Mr Walker, Ms Young's former solicitor, your predecessor, part of the conspiracy? A. Yes. Q. You say because, do you, he failed to plead things in the District Court statement of claim that he should have pleaded and pleaded things that he should not have pleaded? A. Correct. Q. Is Mr Moffet the barrister part of the conspiracy? A. Yes. Q. For the same reasons? A. Yes. Q. Because he drew the statement of claim? A. Yes.
Wright then asked Muriniti about his current arrangements with Young (Tp66, L10 to p67, L3): Q. You still hold instructions, do you, from Mrs Young, even though she's bankrupt? A. Yes, to the extent that she's able to be represented, yes. ... Q. But if she were not bankrupt, or if she is discharged, you will consider yourself able, would you, to pursue this conspiracy case against existing actors, that being for present purposes the Kings, the council and the numerous parties you joined to the cross proceedings before his Honour, plus the persons you've just identified in some further action based upon this conspiracy? A. If that were possible, yes. Q. You don't consider that Mrs Young's opportunity to pursue those things is now spent because she has failed in all these proceedings? A. As I said, if there were some other avenue, other than avenues that have been exhausted - ... Q. Putting aside the bankruptcy, if she were not bankrupt, would you consider that she's still able to pursue a conspiracy case, however framed, against the people I've identified, existing identified persons, plus Mr Walker and Mr Moffet? A. Presently I don't know that I'm able to answer that. I'm tempted to say perhaps she's exhausted those avenues, but I don't know, I'd need to think about it.
He then tested Muriniti on pars 66 to 68 of his affidavit. These were quoted above (at [89]) but, for convenience, I now repeat them: 66. The Kings never once challenged that evidence, it was never put to Mr Davies that his opinion was incorrect in any way and that there was no watercourse running under the Kings' house. It has never been asserted by the Kings that a watercourse did not cross the boundary and run under their house at any time. But if a watercourse crossed the boundary from Mrs Young's land and under the Kings' house and out to the north-eastern corner of their property (as Mr Davies unchallenged evidence disclosed) then construction of a mass concrete footing on the boundary by the Kings and the retaining wall which purportedly was in contemplation by the Kings and the council and presumably in contemplation in Exhibit A would have had the affect of breaching the Water Act. 67. It has taken a great deal of work and much reflection and research without the benefit of honest expert opinion to finally deconstruct the real theory (but false theory) which was constructed by all those involved which could have seen Mrs Young defrauded of her home. 68. The conduct of the people involved in the conspiracy to defraud Mrs Young of her home has now been further compounded by a determined and concerted program intended to brow beat and intimidate her legal representatives by the making of numerous costs orders against them.
Muriniti testified that he, rather than Newell, drafted his affidavit (Tp67, LL11-19), but some of the contents of the subject paragraphs appear to be contradicted by the transcript of Jack Davies's evidence in 2014 (Tp67, LL21-46). Muriniti conceded to Wright (L50): If you're right, then I'm wrong, yes.
He gave the following evidence (Tp68, L18 to p70, L34): A. We now know things, or we believe we know things, that we didn't know in 2014. So I'm talking about an ongoing process that's continued until relatively recently. Q. That then, is it, a process of continued analysis, reflection and consultation between you and Mr Newell about the case? A. Yes. Q. But with no new material? A. That's right. Q. The material was as it stood in 2014? A. Yes. Q. Indeed, it was as it stood when you had gathered it all together and considered Mrs Young's case, no later than the end of 2009, early 2010, wasn't it? A. Possibly, yes. Q. With the possible exception of bringing on board different experts later on A. Mm. Q. --in fairness to you? Is that right? A. Yep. Q. You go on in paragraph 68, and this isn't the first time you've made statements like this, so let's just look at that for a moment. "The conduct of the people involved in the conspiracy to defraud Mrs Young of her home has now been compounded by a determined and asserted program intended to browbeat and intimidate her legal representatives by the making of numerous costs orders against them." Is that right? A. Yes. That's right. Yes, right. Q. The Court's made the cost orders. Is it the Court that's browbeating and intimidating you? A. No, I don't mean that at all. Q. Who do you mean? A. I mean the cost applications have been made by various parties against myself and Mr Newell. ... Q. In other words, the applications were brought for an improper purpose, is that right? A. Well, yeah. ... Q. ... They failed and had no prospect of success, did they? Because you were relying upon the same failed conspiracy argument to ground those applications, correct? A. Yes. Q. It was that conduct which led to the making of personal costs applications against you that his Honour has determined already-- A. Yes. Q. --wasn't it? A. Yes. ... A. Then there was - then there were proceedings against myself and Mr Newell. Q. Arising from the fact that you had brought costs applications against third parties-- A. Yes. Q. --not only with no prospects of success, but simply with no rational basis? A. Well I - don't hold that view. WRIGHT: Plainly not.
Wright then questioned Muriniti about par 105 of his affidavit (already quoted at [94] above, but now repeated for convenience): 105. The unspoken and unannounced premise (but false premise) that a watercourse resides on Mrs Young's land and runs parallel to the boundary of her land to the back of her property and that these fictional conditions on her land were effective in preventing ground water from reaching and crossing over the boundary and that a priori surface water might also have been dealt with by using drainage mechanisms like chimney drains to draw down surface water into the same water course and to further assist matters a fictional red brick work on the boundary was conceived which functioned to stop any surface water crossing over the boundary as well.
Wright elicited the following evidence from Muriniti (Tp71, L26 to p72, L12): Q. ... You did not make any assertion in the course of the proceedings before his Honour in 2014 there was anything in the nature of a parallel watercourse, did you? A. No, we didn't. No. Q. This again is something, is it not, that you and Mr Newell together have surmised or concluded from your analysis that that is some kind of artifice that must have been put to explain facts on the land, was it? A. Yes. Q. You're not suggesting, are you, that there is in fact a watercourse running parallel to the boundary? A. No, it's a fiction. Q. It's a fiction? A. Yes. Q. Where in any of the evidence that you rely upon in 2014, in particular from the experts you called, such as Mr Fraser, I know you didn't read his affidavit but you certainly prepared it and filed it, and from Mr Brearley which would possibly support the suggestion that those advising Mrs Young at that time would postulate that there was a watercourse running parallel to the boundary? A. The fact that - this is - we reached this conclusion in attempting to explain how you could have a situation where it's claimed there were habitable rooms in the Kings house when there was no evidence of such habitable rooms, and, if you looked at the natural conditions of Mrs Young's land and the Kings' land, you've got a natural depression which would see a significant volume of water crossing the boundary unless - and you've got a significant amount of groundwater crossing the boundary - in the absence of a theory that would address the natural problems that one encounters, groundwater, surface water, watercourse, how does one reconcile these things and have a retaining wall on the boundary that doesn't breach the Water Act, and that can deal with the volumes of water that one expects - would expect to find during a rainfall event in that area? There has to be a mechanism. What we concluded is that the fiction that had been created to answer that is this parallel watercourse, doesn't exist, but it would be maintained that it did.
Wright then returned to the experts, and Muriniti gave the following evidence (Tp72, L14 to p74, L2): Q. ... Mr Jack Davies in the course of the 2014 hearing was described by Mr Newell as something along the lines of, "a good guy"? A. Yes. Q. In other words on Mrs Young's side. Is he still a good guy or is he part of the conspiracy now? A. That's an open question as far as I'm concerned. I believe he was part of the conspiracy. Q. You believe that, do you, because he was the person that introduced Mrs Young and Mrs Hemmings? A. That's not the only reason. Q. What's the other reason, or other reasons? A. ... what he didn't point out to us was, look, there has to be a means by which once you create a retaining wall you can address the breach of the Water Act. He didn't walk us through that. Then we have a situation where he's discharged from the conclave and told he can go home, right? Well, why did that happen? He was - if the - solution was going to be a hard engineering solution, why was he sent home? Okay? What did those experts come up with that militated against Mr Davies continuing to be in that conference? What did he hear? Well, it seems to - us, after deliberation, that what those experts were working on was a hypothesis or a parallel watercourse that - they never mentioned. ... ... A. Warwick Davies. Three years after I'm consulting with him he finally tells me exhibit A is not a solution to anything. ... Q. ... Mr Springett ... [was] not being frank ...
Muriniti conceded (Tp73, LL1-15) that he had had the key technical material available "within 18 months to two years of taking instructions" in early 2008, and "there's no new material" in 2018.
Near the end of his cross-examination, Wright put to Muriniti (Tp73, L17-34): Q. How can it be that two reasonably competent practitioners can be involved in a matter on the same material for over ten years and still be formulating the basis upon which they assert Mrs Young had a claim? How can that be, Mr Newell - Mr Muriniti? A. I'm sorry, I'm not sure I understand your question. Q. You certified a case as being provable on those documents in 2014? A. Yes. Q. Right? A. Yeah. Q. Four years later you were still formulating the basis upon which you assert whatever it is you say happened to Mrs Young - can be explained. How could it be that it could still be the case ten years after you are instructed that you're still formulating your hypothesis, your case theory on the same materials? A. Because the people we would ordinarily rely on, the experts, were giving us a lot of nonsense. ...

F: The Relevant Principles to Apply

As noted above (at [4]), the principles to apply to the question of making orders under s 99 of the CPA have recently been restated in King v Muriniti [2018] NSWCA 98.
In that decision, Emmett AJA said (at [56]-[60]): 56 Section 99 applies, relevantly, if it appears to the Court that a solicitor has been responsible for the incurring of costs and that the costs were incurred by the serious neglect, serious incompetence or serious misconduct of that solicitor. Section 99(2) relevantly provides that, after giving the solicitor a reasonable opportunity to be heard, the Court may direct the 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. In addition, the Court may also direct the solicitor to indemnify a party other than the solicitor's client against costs payable by that party. 57 The relevant effect of those provisions for present purposes is that, if it appears to the Court that a party to proceedings has incurred costs to a lawyer acting for that party and that the costs were incurred by the serious neglect, serious incompetence or serious misconduct of a solicitor, other than the lawyer acting for that party, the Court may direct that solicitor to indemnify that party against the costs payable by that party to that party's lawyer. ... 58 In deciding whether to make such an order, there must be a careful balancing of the following: • the public interest in maintaining and nurturing a legal profession that provides vigorous representation for litigants in Court, uncompromised by the fear of personal sanctions for failure and the need to maintain and nurture the obligation to give independent legal advice to litigants, on the one hand, and • the public interest in the efficient administration of justice in the light of the overriding purpose of the provisions of the Procedure Act to facilitate the just, quick and cheap resolution of the real issues in the proceedings ... , on the other hand. Section 99 must be read contextually with regard to those objects and the requirement that proceedings in any court are to be managed having regard to: • the just determination of the proceedings; • the efficient disposal of the business of the Court; • the efficient use of available judicial and administrative resources; and • the timely disposal of the proceedings ... . 59 Under s 56(3) of the Procedure Act, a party to civil proceedings is under a duty to assist the Court to further the overriding purpose stated above and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. In addition, under s 56(4), a solicitor or barrister representing the party in proceedings must not, by the conduct of that solicitor or barrister, cause a party to civil proceedings to be put in breach of the duty referred to in s 56(3). Under s 56(5), the court may take into account any failure to comply with those requirements in exercising the discretion with respect to costs. 60 What constitutes the conduct of proceedings without reasonable cause in circumstances in which a legal practitioner is responsible must be understood in the context of the obligations imposed on the legal practitioner by s 56(4) of the Procedure Act. ... The making of misconceived allegations wholly unsupported by any evidence constitutes incompetent and unreasonable conduct by a practitioner. That is so even if the practitioner makes the allegations on the express instructions of a client, since such conduct will constitute a breach of the practitioner's separate obligation under s 56(4) ... .
His Honour later added, in conclusion (at [99]-[101]): 99 Of course, it is not sufficient to attract s 99 to demonstrate that a case is hopeless. The conduct of the legal practitioner, Mr Muriniti in this case, must go beyond that. However, I am not persuaded that there was material available to Mr Muriniti that would have justified making the allegations that were made before the primary judge, on the hearing of the Four Proceedings or on the hearing of the present applications. Had the fraud and conspiracy claim been formulated with some greater clarity, the primary judge may have been in a position to explain in greater detail his reasons for concluding that the fraud or conspiracy case was not made out. That deficiency was the result of the way in which the case was conducted before his Honour. 100 I am satisfied that Mr Muriniti was responsible for the incurring of Mr and Mrs King's costs in the Four Proceedings and that the costs were incurred by serious incompetence and serious neglect on his part and on the part of those employed by him. It is therefore appropriate for the Court to make an order under s 99 of the Procedure Act against Mr Muriniti in favour of Mr and Mrs King. 101 One course would be to order Mr Muriniti to pay to Mr and Mrs King the costs that Mrs Young has been ordered to pay to them. However, Mr and Mrs King would then be out-of-pocket to the extent that the costs actually incurred exceeded the costs recoverable under an order for costs on the ordinary basis. I consider, therefore, that the appropriate order is that Mr Muriniti pay to Mr and Mrs King the amount of costs reasonably incurred by them in responding to the Four Proceedings. Mr Muriniti should pay the costs incurred by Mr and Mrs King in the present applications.
Wright also relied upon the decision of Basten JA in Re Felicity (No 4) [2015] NSWCA 19, for the reformulation of the relief sought in this personal costs application (see [16]c.f. [17] above).
In his written submissions, he said (pars 16 to 18 - footnotes and citations omitted): 16. ... Two key principles concerning the proper construction of s99 CPA emerge from Basten JA's judgment. 17. First, in deciding whether to order costs against a practitioner, there must be a careful balancing of the public interest in maintaining and nurturing a legal profession which provides vigorous representation for litigants in court, uncompromised by the fear of personal sanctions for failure, against the need to maintain and nurture the obligation to give independent legal advice to litigants and to give proper weight to the public interest in the efficient administration of justice. Importantly, the latter element finds express recognition in mandatory terms, in the overriding purpose provisions of the CPA. 18. Secondly, as a basic principle of statutory construction, s99 must be read contextually with explicit regard to ss56-60 CPA. The section must be applied with specific regard to those provisions in a specific factual context. Section 56(5) of the CPA expressly empowers the Court, in exercising a discretion with respect to costs, to take into account any failure to comply with the duty of a party or legal representative to assist the court to further the overriding purpose set out in s56 CPA.
Those submissions were not challenged by Newell, and I accept them.
Provisions similar to s 99 operate in the Federal sphere, and Wigney J summarised the relevant principles, in Mitry Lawyers v Barnden [2014] FCA 918, in these terms (at [42]): 1. Instituting or maintaining a proceeding on behalf of a client which has no, or substantially no, prospect of success will not, without more, invoke the jurisdiction to make a costs order against a lawyer. 2. Something which involves "unreasonable conduct" is required. 3. What constitutes unreasonable conduct will depend on the circumstances of the particular case. 4. The element of acting unreasonably involves some deliberate or conscious decision taken by reference to circumstances unrelated to the prospects of success, with either a recognition that there is no chance of success, or an intention to use the proceeding for an ulterior purpose, or to abuse the processes of the court, or with a disregard of any proper consideration of the prospects of success. 5. The circumstances must involve or result in a serious dereliction of duty owed to the court, or serious misconduct in promoting the course of, and the proper administration of, justice. 6. An ulterior purpose or an abuse of process cannot be assumed simply because the case is hopeless. 7. The reason that the mere pursuit of an unmeritorious case is not so sufficient to invoke the jurisdiction to make a costs order against a lawyer is that a party is entitled to have a practitioner act for him or her in an unmeritorious case. The court is concerned to avoid the risks of a practice developing whereby lawyers endeavour to browbeat their opponents into abandoning clients, or particular issues or arguments, for fear of personal costs orders being made against them.

Wright for the Kings

Wright submits (Tp74, L47 to p77, L6), and the Court accepts, that: 1. As between The Lawyers, their "exercise" on Young's behalf was "indivisible", and they "were each equally responsible for promoting, preparing, advancing the so-called conspiracy theory, and a case based upon what was undoubtedly a false premise ... that the lawyers acting for her at the 2004 hearing were clearly [not] acting within their authority". The Lawyers "were participants in a joint enterprise", and "you could not ... separate the conduct between them. They are both liable for how the proceedings were conducted, equally". The case they mounted was "effectively based on inference upon inference. In reality it was pure speculation". and 1. The Lawyers' submissions on the present costs application, which "do no more than rearticulate the conspiracy theory", on the basis that this Court would disregard its previous findings against the case put by Young and The Lawyers should be rejected.
I accept, in respect of (b) above, Wright's submission that, even if I thought that s 91 of the Evidence Act ([37] above) might work in The Lawyers' favour, I should exercise the discretion afforded me by s 190 of the Evidence Act ([37] above) to have further regard to my earlier findings in the litigation (see Tp75, L33 to p76, L2). However, in King v Muriniti [2018] NSWCA 98, all three judges who constituted the Court of Appeal - Basten and Gleeson JJA, and Emmett AJA - held that s 91 was not engaged. I am bound by their reasoning, with which I respectfully agree, in regard to the present s 99 application).
I also agree with Wright (Tp77, LL16-17) that there has never been any "reasonable or rational basis to assert that the Kings had participated in any conspiracy against Mrs Young".
I have already found that the substantive proceedings were an "abuse of process", and that Young should pay the Kings' costs on an indemnity basis. Now the Court must consider if that liability imposed on Young should be indemnified by her guiding lights in the case, The Lawyers.
Their conduct at every stage, and in every aspect, of the proceedings, has been clearly shown to be incompetent, negligent and unreasonable, indeed "disgraceful" and unworthy of professionals, and yet Muriniti testified that, but for Young's bankruptcy, they will continue to press the failed claims they made on Young's behalf (see [128] above, and Wright at Tp92, LL19-23).
Wright concluded his oral submissions (at Tp92, LL3-19) in these terms: ... each of Mr Newell and Mr Muriniti are responsible for serious incompetence and serious misconduct in their conduct of these proceedings. It is self-evident since they still attempt to develop this theory and add new people to it that it is the two of them together that have driven this thing from the beginning. They must bear responsibility for the conduct of these proceedings and for the visiting of these extraordinary costs on the Kings. It is perhaps exemplified by that truly extraordinary application they made to your Honour seeking costs against the Kings, again based only on the conspiracy theory where there was no disentitling conduct by the Kings that they should pay Mrs Young's costs on an indemnity basis, and the addition of every other then identified person as a respondent to the cost proceedings leading your Honour to have what's perhaps extraordinary for this Court the kind of hearing that had to be conducted up on level 9 of the Supreme Court. How could any practitioner, with even a moderate level of competence, or a sense of their professional responsibilities, consider it appropriate to visit that kind of burden on the Court and in front of all these parties?

Newell for The Lawyers

In his oral submissions, Newell restated all the old arguments he and Muriniti have made about the parallel watercourse or drainage system, the disputed absorption pit, the Courts' inadequate reasons, and so on.
Those things have regularly been said to prove the conspiracy, which now embraces all the people nominated by Muriniti - "beginning with the Kings" (Newell at Tp83, L9), who, The Lawyers submit, "must have had special knowledge the Council" would act in their interests, and against Young's (Tp83, L26 and p84, L22), culminating in "at the very least the demolition of [her] house to make way for ... the substantial easement necessary to drain the fictional watercourse" (Tp84, LL39-41). Kings could not "get away with that without complicity by Mrs Young's lawyers" (p85, LL6-7).
This Court and others have heard all this before, and decisively ruled against it, but Newell says the Court should now not take the next logical step of making the personal costs orders now sought, because "we were the lawyers who were prepared to assist Mrs Young" (Tp85, LL18-19), despite the conspiratorial unhelpfulness of all the experts they retained. The difficulties encountered with those experts (Tpp85-86), Newell submitted, "can hardly be put at the feet of Mr Muriniti or myself either" (Tp86, LL9-10).
At that point in Newell's closing submissions (Tp87, LL15-46), the then Council solicitor David Thomas, an agreed town planning paper before McClellan J, and the mysterious unnamed "independent expert" came back into the picture - to facilitate the "morphing" of the Exhibit A "agreement" about "a drain and retain solution on Mr Kings' land to one whereby there was a retaining wall on the boundary necessitating the logical consequence that some drain would be on Mrs Young's land".
There then followed (Tp89) some short submissions about the authority of Hones and Hemmings to settle on Young's behalf - "what they did was conspire to cause Mrs Young to acquire a financial burden which would ultimately cause her to lose her home" (Tp89, LL9-11).
In reality, the major burdens on Young were, and are, the direct result of poor decisions taken by her, at the instigation of The Lawyers.
Finally (Tp90, L9-p91, L2), The Lawyers submit that the District Court statement of claim prepared and filed by Walker and Moffet committed Young to a set of propositions "inconsistent with drain and retain": That doesn't just show a conspiracy, it demonstrates the frightening breadth of the - once you understand what that document attempts to say, you cannot be surprised at the suggestion that this conspiracy has enormous breadth" (p90, LL43-45).

Wright in reply

Wright responded thus to that last submission (Tp91, LL31-47): ... Much moment is made in reply apparently on the nature of the District Court statement of claim filed on Mrs Young's behalf by the new conspirators Walker and poor Mr Moffet. What is remarkable is that of all the documents Mr Newell and Mr Muriniti must have had from the time they were first instructed was the document being the statement of claim in the District Court, once they were first instructed to take over the matter from those practitioners. More than ten years later it dawns upon the two of them that that document represents either a new manifestation of or a confirmation of the conspiracy. HIS HONOUR: A misleading version of the settlement in this Court. WRIGHT: Yes. How could that not be apparent to someone of even moderate competence if it's so central to your case when you first review those materials, or, being generous, you take the period up until 2010 when you commence proceedings against Hones, Hemmings and Perrens in the Supreme Court? It just beggars belief.

H: Consideration

Wright summarized Kings' case for personal costs orders in his written submissions in chief (pars 54 to 61, and 80 to 87 - footnotes and most citations omitted) in the following terms: The Conduct of Whole Proceedings, including the 2014 Hearing involved Serious Neglect and Serious Incompetence 54. Throughout the period from the time the lawyers commenced to act for Mrs Young in May 2008 to September 2012, there were repeated directions hearings before judges of the Court at which Mr Newell, instructed by Mr Muriniti sought further adjournments necessitated by their failure to comply with directions. During this period ever more complex versions of the conspiracy theory emerged including that set out in the first version of Young's statement of grounds, the "second amended statement of grounds" filed on or about 17 April 2012, the "Nature of the Case" statement served in incomplete form on 27 January 2012 and Mr Newell's undated written submissions filed before the hearing on 17 to 19 September 2012. 55. Throughout the proceedings the lawyers have been responsible for extraordinary delay and constant changes of position. Mr Muriniti repeatedly served voluminous documents late and without leave very soon before directions hearings thus necessitating yet further adjournments. 56. The lawyers' incompetent conduct of the 2014 hearing is clearly illustrated by the belated and misconceived attempts to subpoena Messrs Hones and Hemmings, Dr Perrens and Mr Warwick Davies to give evidence contrary to the Court's directions concerning the filing of evidence and to a course to which Mr Newell had committed. 57. Related to this failure was the equally belated and misconceived attempt to construct an entirely artificial basis for drawing a Jones v Dunkel inference against the Kings if they failed to call Messrs Hones and Hemmings. Mr Muriniti attempted to construct the basis for this inference in a letter to Mr Stern dated 25 August 2014. In anticipation of having to deal with the suggested inference, the Kings had incurred the cost of preparing detailed separate submissions on this question. Mr Newell later abandoned the Jones v Dunkel submission, without notice, late on day 7 of the hearing. 58. In the course of the first day of the 2014 hearing, Mr Newell accused Mr Sternof breaching the implied undertaking by providing an affidavit sworn by Mrs Young in her District Court proceedings to Mr Hemmings' instructing solicitor. He attempted to enforce a notice to produce directed to Mr Stern requiring production of correspondence that would confirm that someone from the Kings' camp had provided the affidavit to Mr Hemmings' instructing solicitor. The forensic purpose was to suggest that there was a close tactical relationship between the Kings and Mr Hemmings such that they were in the same camp. That allegation was not withdrawn until day 8 of the hearing when Mr Newell was pressed to do so. 59. Most of the first day of the hearing was wasted dealing with the subpoenas to Mr Hones and Mr Hemmings and with the Court's continuing efforts to require Mr Newell finally to identify the evidence he actually intended to rely upon. 60. In this respect, the lawyers' serious incompetence was compounded by the fact that it was not until immediately before and during the 2014 hearing that any attempt was made to subpoena either of Messrs Hones and Hemmings or Dr Perrens and Warwick Davies. 61. The lawyers' conduct of the 2014 hearing was in breach of their duty under s56 of the CPA. It involved serious incompetence and serious misconduct by pursuing allegations against the Kings and Mr Stern without foundation and without evidence and by the actual conduct of the hearing described above. ... Conclusion 80. Since 2008, at the hands of the lawyers, the Kings have been forced to endure a decade of wholly unnecessary further litigation. In that time, the lawyers have made extremely serious allegations of fraud and conspiracy against the Kings, and others, with no evidentiary foundation. 81. The proceedings initiated by the lawyers on Mrs Young's behalf were finally brought to hearing over eight days in September and October 2014. The Court delivered judgment 6 on 9 July 2015, rejecting all of the allegations that had been made against the Kings. 82. Thereafter, the Kings (along with the multitude of third party respondents) were made parties to a wholly unmeritorious claim brought by the lawyers that they should pay Mrs Young's costs of the whole of the proceedings even though they were the successful party. Apart from an attempt to resurrect the conspiracy theory, there was no suggestion made that the Kings had been responsible for any disentitling conduct. The claims for costs against were rightly and inevitably dismissed in judgment 9 delivered on 19 February 2016. 83. The Kings have also had to endure an appeal from this Court's judgments. The appeal was also dismissed and it is plain from the judgment of the Court of Appeal that the 10 grounds of appeal raised against them were entirely without merit. 84. Mrs Young is now bankrupt. 85. From the beginning of their involvement in early 2008, the lawyers' conduct of the proceedings involved serious neglect and serious incompetence within the meaning of s99(1)(a) CPA. 86. Their conduct of the proceedings on Mrs Young's behalf has resulted in costs being incurred improperly and without reasonable cause within the meaning of s99(1)(b) CPA. 87. Costs are compensatory, not punitive. [Latoudis v Casey (1990) 170 CLR 534] The purpose of a costs order is to compensate the successful party for the expense of conducting the proceedings. [Oshlack v Richmond River Council (1998) 193 CLR 72, at [67]] Whilst little can be done to redress the hardship inflicted on the Kings by the lawyers' conduct, at least the Kings should be compensated for the costs they have been forced to incur in having to defend proceedings that should never have been commenced and which should not have been conducted in the manner that the lawyers have conducted them.
In response, Newell's recycled written submissions, running to hundreds of pages, revisited The Lawyers' conspiracy allegations, all the allegedly unfounded judicial criticisms of their case and their conduct, their failed arguments about inadequacy of reasons, speculation about evidence not called at trial, from alleged conspirators, and so on.
No real argument was presented in those submissions about the principles I should apply to the Kings' application, and the tenor of their oral submissions has been set out earlier in this judgment ([150]-[156]).
The end result is that I remain satisfied that The Lawyers have been guilty of serious incompetence and serious misconduct, on at least the following grounds: 1. they made, without evidence, allegations of fraud and/or conspiracy against the Kings; 2. they commenced, pursued, and later abandoned, completely misconceived contempt proceedings against the Kings; 3. they pleaded and pursued mutually inconsistent allegations of mistake; 4. Newell drafted prolix pleadings and Muriniti certified, without any real basis, that the pleaded allegations had "reasonable prospects of success on provable facts and a reasonably arguable view of the law" (Wright subs par 49); and 1. they bombarded the Court, and all those they dragged into the proceedings, with vast quantities of irrelevant affidavit and other documentary evidence.
I have written at length, in earlier judgments in this case, regarding personal costs orders - see No 8 at [17] to [27]; No 9 at [82] to [87], and [108] to [113]; No 10 at [7] and [35] to [40]; and, most relevantly, No 11 at [154]-[213].
I adopt here my remarks in No 11 as a supplementary basis, if any is needed, for now acceding to the present application by the Kings for personal costs orders.
The Lawyers' position remains intransigent, indeed it hardens as time passes. Hence I have set out at length the appellate judgments, the remarks of Lee J in the Federal Court, and the evidence given before me by Muriniti at this latest hearing.
I conclude that Muriniti and Newell have been, and remain, jointly and equally responsible for a most egregious abuse of process, which damaged not only their own client, but caused great harm and expense to the Kings, who have consistently been found blameless.
As I have previously determined, Newell was the principal author of the ever-evolving conspiracy theory, but it was embraced by Muriniti, and, under pressure from them, by their client.
The Lawyers were each liable in their own right, professionally, until the end of June 2014, when Newell left the NSW Bar.
Thereafter, Muriniti as Young's solicitor, the principal of the firm, and the employer of Newell as a solicitor advocate, must be held wholly responsible for the conduct of Young's proceedings.
I now turn, lastly, to the outstanding issue of the Kings' costs on The Lawyers' recusal application.

I: The Reserved Costs of the Recusal Application

In judgment No 12, at Wright's request, I reserved the costs of The Lawyers' failed recusal application in respect of the present NOM (see [72] and 74(b) of judgment No 12).
Wright submits that such costs should now be the subject of an order in favour of the Kings on an indemnity basis (subs 71 to 79), and I accept his submissions in this respect.
Stern warned The Lawyers' solicitors that the recusal course was misconceived, manifestly hopeless, and would fail, in view of the judgments delivered by the Court of Appeal on Young's appeal against my judgments Nos 6 and 9.
As Wright observed (subs 76-77 - footnote omitted): 76. The Court of Appeal found that the ground of appeal relating to apprehended bias was completely without substance and amounted to no more than a complaint that Mrs Young had been unsuccessful in her numerous attempts to set aside the 2004 consent orders. 77. The lawyers' submissions on the application for refusal (sic - recusal) maintained the assertion rejected by the Court of Appeal, that the Court had failed in judgment 6 to give adequate reasons for refusal. The lawyers made the same criticisms of the Court of Appeal in dismissing Mrs Young's appeal and the High Court in refusing Mrs Young's application for special leave to appeal. The lawyers' submissions on the recusal motions display the same failure or refusal to accept that the past arguments they had put on Mrs Young's behalf concerning the conspiracy theory and the adequacy or reasons have been rejected repeatedly. To continue to repeat these arguments amounts to an abuse of process in light of these earlier judgments.
Those costs clearly form part of the burden The Lawyers have unfairly caused to befall the Kings, and an appropriate order is called for.

J: Conclusion and Orders

The Kings have been entirely successful in their present application, and the Court, therefore, makes orders in accordance with the amended formulation put to the Court by Wright, namely that: 1. Leonardo Carlo Muriniti indemnify Brendan King and Kristina King against the costs payable to them on account of legal fees and disbursements in relation to the proceedings brought against them in this Court by Margo Young pursuant to the indemnity costs orders of this Court set out at paragraph 122 (1) of the Court's judgment in Young v King (No 9) [2016] NSWLEC 4 dated 19 February 2016; 2. Robert Duane Newell indemnify Brendan King and Kristina King against the costs payable to them on account of legal fees and disbursements in relation to the proceedings brought against them in this Court by Margo Young pursuant to the indemnity costs orders of this Court set out at paragraph 122 (1) of the Court's judgment in Young v King (No 9) [2016] NSWLEC 4 dated 19 February 2016; 3. Leonardo Carlo Muriniti pay the costs of his notice of motion dated 17 August 2017 seeking judicial recusal on an indemnity basis; 4. Robert Duane Newell pay the costs of his notice of motion dated 17 August 2017 seeking judicial recusal on an indemnity basis; 5. Leonardo Carlo Muriniti and Robert Duane Newell pay the costs of the Kings' Further Amended Notices of Motion dated 10 December 2017 on an indemnity basis; 6. The Kings are granted liberty to apply on three working days' notice in respect of the working out of these orders. 7. The following exhibits are now returned: 1. Exhibit TLS-1 to Stern's affidavit of 1 September 2017 (comprising six lever arch folders and a USB stick). 2. Exhibits K1 to K3, tendered at this hearing. 3. Annexures "A" to "Z" to Young's affidavit of 29 March 2018. 4. Exhibit K1, left on the Court file following the delivery of judgment in Young v King (No 11) [2017] NSWLEC 34.

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: 26 September 2018

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (21)

Cited By (2)