Holden v Trustees of Sisters of Mercy (North Sydney) Property Trust

On 15 May last I delivered judgment in this matter in respect of a notice of motion filed by the Seventh Defendant seeking that the Plaintiff provide answers to a request for particulars. In the course of those reasons I expressed the view that the request for particulars was an abuse of process and raised the question whether Mr Michael Joseph, the senior counsel who had drafted the request on behalf of the Seventh Defendant, should be responsible for the costs associated with or consequent on that request.

In my judgment of 15 May, I set out my reasons for concluding that the request was an abuse of process. They may be regarded as incorporated in these reasons and it is not necessary that I repeat them. However, because of the discretion which exists under s 99(2) of the Civil Procedure Act 2005 I should record my view that the abuse was obvious and gross. In so concluding I should acknowledge that I did not attempt to deal with the totality of the request. In an affidavit of 31 July last Mr Joseph submitted that the specific aspects of the request to which I directed attention in [19]–[37] of those reason were not examples of the balance of the request. I disagree. In my view they were a fair sample and even if they were not, their egregious nature meant that neither those acting for the Plaintiff nor I as the judge were obliged to go further and deal specifically with the hundreds of other questions and sub-questions that were included in the request.

In opposition to the making of any order against him, Mr Joseph said in his affidavit that he had relied in part on his experienced instructing solicitor whose professional judgement it was to send the request for particulars as drafted by Mr Joseph. Given the standing of senior counsel the suggestion is surprising. Having regard to the roles and responsibilities generally of those lawyers involved in litigation it would be a rare situation indeed where a solicitor, however experienced, would canvass the appropriateness of a request for particulars drafted by experienced, let alone experienced senior counsel. In any event, the fact that the request as drafted was sent, provides no excuse for the drafting of the request in the form it took.

Reliance was also placed on the fact that neither the Plaintiff nor the Seventh Defendant has sought costs against him and that, although they had originally declined to answer the request on the ground that it was oppressive, the legal advisers for the Plaintiff had ultimately answered the request or agreed to do so when in possession of more information after discovery. The latter circumstance, was said to be powerful evidence that the request was considered by other legal practitioners to be legally justified.

The reliance on the final response to the request omitted reference to some 50 responses to the effect “this is not a proper request for particulars” or “this is a matter of evidence” – but putting that aside, there are a number of reasons why those mentioned in the immediately preceding paragraph may have taken the stances that they have, and even if those stances do provide some evidence in Mr Joseph’s favour, when compared with my own experience and knowledge of the subject, I find the matters relied on unconvincing. The matters referred to in paragraphs [19]–[37] of my principal reasons are far more compelling.

Challenges were also made to a number of remarks made by me in the course of those reasons. The challenges go no significant distance toward showing that the request was not an abuse of process and I do not regard it as necessary to respond to these challenges seriatim. To do so would involve further detailed reference to many of the questions asked in the request for particulars and repetition of what is contained in my principal reasons. However, by way of example I will respond to two of the challenges. They were expressed in terms:-

What I had said in [27] to [31] was:-

I had earlier observed:-

In the Statement of Claim the Plaintiff had alleged that in August 1970 she had been admitted to the Home as an unmarried mother, where she was continually told that “as an 18 year old unwed Aboriginal girl who had no visible means of support she ticked all the boxes for having her baby removed at birth”. It was also alleged that

In evidence on the hearing of the Notice of Motion, there was correspondence on the letterhead of the “Catholic Adoption Agency (NSW)” to the Director of the Child Welfare Department. The correspondence recorded that the Agency was “A Special Work of the St. Vincent de Paul Society”. There was also an extract from the Government Gazette recording that the Catholic Adoption Agency (New South Wales) had been approved as a Private Adoption Agency under the Adoption of Children Act, 1965 (as amended). When this evidence was tendered no point was taken that the Catholic Adoption Agency (New South Wales) was not the “Catholic Adoption Agency” referred to in the Statement of Claim.

There was no evidence of the matters asserted in paragraph 18c of Mr Joseph’s affidavit commencing “What the Defendant did know”.

Questions 3 to 23 were in terms:

Of course on the hearing of the Notice of Motion the allegations in the Statement of Claim were not formally proved but the Court does not act in a vacuum. In the circumstances, and bearing in mind that I did not assert that the Defendants knew the answers to questions 3 to 23, I do not regard the statements made in [27] and [28] of my principal reasons as unwarranted.

Mr Joseph has also sought to justify the breadth of the request upon the ground that it was influenced by a number of factors, viz:

Given my reasons for concluding that the request was an abuse of process I do not regard it as necessary to deal with these matters individually. Undoubtedly a number of them justified some expansion of the request beyond what would otherwise have been appropriate. However, even in combination, the matters relied on did not come close to justifying the number of questions that were asked or, in very many cases, the nature of those questions.

Once drafted, the request will presumably have been the subject of some attention and perhaps consideration by the solicitors acting for the Seventh Defendant, of their forwarding it to the solicitors for the Plaintiff, of consideration by the Plaintiff’s solicitors and counsel and, as the evidence on the application showed, two responses from the Plaintiff’s solicitors. Those responses were then no doubt considered by the Seventh Defendant’s legal advisers and at least the first response led to the filing of the notice of motion.

Thus, the request must have led to work being done by all of the lawyers I have mentioned with consequent costs being incurred. There is obviously something to be said for the view that the counsel who drafted the request should be responsible for all of these costs. On the other hand, the request was of a nature that the Plaintiff’s legal advisers were under no obligation to answer it in any detail. That they ultimately did so was their decision.

Furthermore, as I indicated in my reasons of 15 May, the Statement of Claim was insufficiently particularised in a significant number of respects which I identified. It seems likely therefore that some application on behalf of the Seventh Defendant was or would have been necessary to obtain proper particulars and, had it stood alone, the costs of any such an application would have had to be borne by the Plaintiff.

Shortly after I announced my decision on 15 May I was informed that the whole case had, in principle, been settled. Otherwise the detail that I went into in responding to the notice of motion was calculated to assist the Plaintiff appreciably in curing a number of defects in the Statement of Claim. For these and the reasons referred to in the immediately preceding paragraph, the Plaintiff should be regarded as responsible for part of the costs of the proceedings which I determined on 15 May.

In addition to a prayer that the Plaintiff be ordered to answer the request for particulars, the Notice of Motion sought other relief including that parts of the Statement of Claim be struck out or ordered to be re-pleaded. In substance the Seventh Defendant had some success in these areas as it did in a limited area where I concluded that further particulars were required. This argues against its counsel being ordered to bear all the costs of that notice of motion incurred by the Seventh’s Defendant.

There is one further aspect of my principle reasons to which I should refer. At [38] of those reasons of 15 May I remarked:

In his affidavit of 31 July Mr Joseph said that he rejected “the motives attributed to me as the draughtsman at [38]”. In the way the proceedings leading to these present reasons occurred, there was no challenge to this evidence and it would accordingly be unfair not to accept it. In any event it is sufficient for present purposes to base my decision on the terms of the request without exploring the motives behind it.

Section 99 of the Civil Procedure Act provides for the making of costs orders against legal practitioners. So far as is presently relevant, the section provides:

The section was the subject of consideration in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; 63 NSWLR 300. Much of what was said there is of no relevance to the circumstances here but for present purposes I accept that, as was said at [92], the powers under s 99 “must be exercised with care and discretion and only in clear circumstances”.

The conclusion that the request for particulars was not only an abuse of process but an obvious and gross abuse argues significantly for Mr Joseph’s conduct in drafting it as he did being characterised as serious incompetence. However, I do not find it necessary to reach any concluded view on that. I am satisfied that a consequence of it being drafted as it was is that costs have been incurred improperly or without reasonable cause. The extent of Mr Joseph’s default and those of the consequences as were inevitable lead also to the view that the discretion under s 99(2) should be exercised so as to make an order under the section against him.

In the case of a barrister at least the section is restrictive. It authorises orders against a barrister in only the circumstances contemplated by ss (2)(a)(i), 2(b)(i) and (2)(c). There has been no relevant order against Mr Joseph’s instructing solicitor or client requiring them to pay costs so ss (2)(b)(i) has no application to the present circumstances. The circumstances do not preclude an order under the other provisions mentioned.

However, an order under ss 2(c) would be likely to result in the incurring of further costs in requiring the legal practitioners involved to separate out the costs consequent on their consideration and dealing with the request for particulars from other costs and/or the incurring of a costs assessor’s fees.

In the circumstances, and given the discretion that ss (2) confers, the appropriate order is to disallow the whole of the costs of Mr Joseph in and incidental to drafting the request for particulars and 50% of his costs of and incidental to preparation for and appearing on the hearing of the Notice of Motion filed on 15 January 2015.

Accordingly, the orders I make are: