Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 2)

1. [1]

   I gave judgment in this matter on 12 January 2018: Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd [2018] NSWSC 4. I relevantly ordered that the plaintiff and Robert Lyndon Sayer-Jones were to pay the defendants’ costs of the summons and pay 90% of the defendants’ costs of a notice of motion filed by the defendants.

2. [2]

   Mr Tam of counsel for the defendants made an immediate application that costs be ordered on a gross sum basis. No notice of motion in that regard had been filed or served. Mr Tam submitted that there was an urgency about the matter because the plaintiff had served statutory demands on the two corporate defendants.

3. [3]

   I declined to deal with the matter immediately and directed that the defendants were to file a notice of motion seeking a specified gross sum costs order which would be returnable for hearing on 31 January 2018. That day was said to be convenient to both the defendants and to Mr Sayer-Jones. Accordingly, the defendants filed a notice of motion on 24 January 2018 seeking orders that the plaintiff and Robert Lyndon Sayer-Jones pay the defendants the sum of $22,581.85 on account of the costs order made by me and an amount of $17,601.94 in respect of the notice of motion seeking the gross sum costs order. The motion also sought an order that the liability of the plaintiff and Robert Lyndon Sayer-Jones be joint and several.

4. [4]

   The motion came on for hearing before me on 31 January 2018. At the outset Mr Sayer-Jones informed me that he was appearing only for himself in respect of the orders sought against him personally, and not on behalf of the plaintiff because he was no longer a director or shareholder of that company. He then made an application that I should disqualify myself on the basis of apprehended bias. The apprehension was said to arise from the fact that in 2014 I was a member of the Legal Profession Admission Board when that Board expelled Mr Sayer-Jones from the Admission Board’s legal study course. At the conclusion of submissions made by both parties concerning that application I said that I declined to recuse myself and that I would provide my reasons in the judgment concerning the defendants’ notice of motion.

5. [5]

   Mr Sayer-Jones then made a further application, that the hearing of the motion be adjourned for a period of two to three months because of a police investigation that was apparently being conducted into the circumstances of the commencement of the Local Court proceedings that were the subject of my earlier judgment. The basis for the adjournment application was an apprehension by Mr Sayer-Jones that he might be incriminating himself if he gave any evidence at the hearing of the defendants’ notice of motion. Submissions were then made by Mr Sayer-Jones in support of that application. However, before any ruling could be given on it by me Mr Sayer-Jones withdrew the application.

6. [6]

   I then proceed to hear the defendants’ motion. During that hearing Mr Sayer-Jones made an application that he be given leave to withdraw his undertaking to pay any costs ordered in favour of the defendants. Two reasons were put forward in support of that application. The first was that the decision in Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266 was wrongly decided. The second reason was that Mr Sayer-Jones said that he understood the costs he undertook to pay were the costs only of the summons and not the costs of the defendants’ notice of motion.

7. [7]

   The defendants read three affidavits being the affidavits of Nicola Kaethe Nygh sworn 24 January 2018, and two affidavits of Samuel Bruce Wheeler sworn 24 and 30 January 2018 respectively.

8. [8]

   Mr Sayer-Jones sought to cross-examine Ms Nygh. I gave leave to him to do so, having ascertained the scope of the matters he wished to ask, bearing in mind that this was an interlocutory application. It became necessary for me to disallow a number of questions sought to be asked by Mr Sayer-Jones when repetitive questions were asked, and when questions were asked which were not relevant to the issues to be determined on the notice of motion.

9. [9]

   Mr Sayer-Jones also sought to cross-examine Mr Wheeler. When I asked Mr Sayer-Jones to identify the matters generally about which he intended to cross-examine Mr Wheeler he indicated the following:

10. [10]

    It is necessary to add that Mr Wheeler’s affidavits went no further than annexing voluminous email correspondence between Mr Sayer-Jones and the defendants’ solicitors, Resolve Litigation Lawyers, amongst which were emails Mr Sayer-Jones had on several occasions sent to my Associate. With a few exceptions to be discussed presently, I have had little regard to the content of most of those emails because the content of them did not generally deal with the issues to be determined on the defendants’ notice of motion. However, the emails were relevant to the extent of the costs charged to the defendants by Resolve, insofar as the solicitors needed to read, and in many cases respond to, those emails.

11. [11]

    Ms Nygh was called by the defendants as an expert witness in relation to the reasonableness of the charges made by the defendants’ solicitors. She was admitted as a solicitor in June 1991. She commenced practice as a lawyer with Allen, Allen & Helmsley (now Allens) in 1992 where she remained until 2015. At Allens she practised in commercial litigation and dispute resolution. In 2015 she became Special Counsel at Resolve.

12. [12]

    Ms Nygh was one of the solicitors at Resolve who dealt with the claim made by the plaintiff. Her involvement concerned advising on and preparing evidence in support of the present application for a gross sum costs order. Mr Michael Daniel, a director of Resolve, and Mr Samuel Wheeler, who was initially a law graduate and subsequently a solicitor from 1 January 2018, were the two solicitors in the firm who were acting in the Local Court proceedings and in respect of the proceedings generally in this Court.

13. [13]

    Ms Nygh’s affidavit discloses that Resolve issued three invoices to the defendants. The first was dated 20 December 2017 totalling $7,145. However, the only work claimed for the Supreme Court proceedings in relation to that invoice was an amount of $276.

14. [14]

    The second invoice was issued on 11 January 2018 for professional costs and disbursements totalling $26,227.08 (the First January Invoice). That invoice was for work performed between 20 December 2017 and 9 January 2018.

15. [15]

    The third invoice was dated 23 January 2018 for professional costs and disbursements totalling $20,099.92 (the Second January Invoice). That invoice was for work performed between 10 and 22 January 2018.

16. [16]

    Ms Nygh, having conferred with Mr Wheeler, the solicitor responsible for the day to day carriage of the matter, estimated that costs and disbursements in relation to the summons were as follows:

17. [17]

    She estimated 90% of the defendants’ costs of the motion filed 3 January 2018 as follows:

18. [18]

    She estimated the defendants’ costs for the present application for a gross sum costs orders as follows:

19. [19]

    Ms Nygh also estimated the defendants’ cost in respect of the present application, not then invoiced, as follows:

20. [20]

    Ms Nygh identified the relevant charge-out rates for those solicitors involved in the matter as follows:

21. [21]

    Ms Nygh said that, based on her experience and observations, the professional work charged in the invoices was reasonable and that the hourly rates of charging were at or below the market rates for practitioners of similar seniority and experience. In addition, they were within the hourly rates of the Costs Assessment Rules Committee, Guideline, Costs Payable between Parties under Court Orders.

22. [22]

    Ms Nygh noted that the likely recovery at any costs assessment (i.e., the amount payable for party-party costs as opposed to indemnity costs) was approximately two thirds of the fees charges and 100% of disbursements including counsel’s fees. Based on her assessments and the discount referred to, Ms Nygh estimated that on a costs assessment the defendants would recover $7,701.85 in connection with the summons costs order, $14,880 in connection with the motion costs order and $17,601.94 in connection with the present application.

23. [23]

    As I noted earlier, Mr Wheeler’s affidavits read on this motion only annexed email correspondence passing between his firm and Mr Sayer-Jones. His affidavit of 24 January 2018 disclosed 86 pages of such emails between 9 and 24 January and his affidavit of 30 January disclosed 44 pages of such emails between 24 and 30 January. It may be noted that some emails were duplicated by reason of the email chains. However, those figures do not include many more emails sent by Mr Sayer-Jones prior to the hearing of the principal proceedings. Those are to be found in Mr Wheeler’s affidavit sworn 8 January 2018 read at the hearing of the principal proceedings.

24. [24]

    At the conclusion of the evidence, Mr Tam of counsel made submissions on behalf of the defendants. Thereafter Mr Sayer-Jones addressed me briefly but then sought leave to put in further written submissions on the issue of whether a gross sum costs order should be made. In the circumstances, I gave leave for Mr Sayer-Jones to lodge any further written submissions within seven days.

25. [25]

    On 5 February 2018 Mr Sayer-Jones emailed what were entitled “Written Submissions on Gross Sum Costs Order” but which included further submissions on the issues of apprehended bias and a release from his undertaking, in respect of neither of which had leave been given. Nevertheless, and being conscious of possible unfairness to the defendants in that regard, I have considered all of those further submissions.

26. [26]

    The three issues for determination are these:

(1) Apprehended bias

1. [27]

   I should first note the following about which I informed Mr Sayer-Jones at the hearing. I sat on the Legal Profession Admission Board from 2010 until the end of 2016. When the present case first came to my attention as the Vacation Judge in January the name “Sayer-Jones” rang a vague bell with me. I could not pinpoint why it was familiar.

2. [28]

   At the hearing, Mr Sayer-Jones reminded me that the question of his exclusion from the Board’s law course arose for consideration by the Board in 2014. A sub-committee was appointed by the Board comprising Justice Lindsay, Ms Margaret Allars SC and the Dean of Law at the University of Western Sydney to conduct a hearing into the matter. The sub-committee reported to the Board and recommended Mr Sayer-Jones’ exclusion from the course. The Board adopted that recommendation and resolved to exclude him. Mr Sayer-Jones did not remind me of what he was alleged or found to have done that led to that exclusion. As I said to Mr Sayer-Jones, I cannot remember to the present time what the basis for the exclusion was. In the seven years I served on the Board, the Board had to consider hundreds of matters involving admission to practice where offences and plagiarism were involved, exemptions to course requirements for applicants, and whether students should be excluded from the Board’s course.

3. [29]

   I accept, nevertheless, that the fact that I cannot remember that basis or the details of the matters discussed by the Board cannot of itself mean that I am not bound to consider whether I should recuse myself nor would that lack of memory be a reason for not recusing myself if otherwise it was appropriate to do so.

4. [30]

   Mr Sayer-Jones submitted that, since I was a member of the Board that excluded him and his credit was now in issue, a fair-minded and reasonably well informed observer might conclude that I might not approach the determination of the present matter with an open mind. No application had been made by Mr Sayer-Jones to recuse myself before I heard or delivered judgment on the substantive issue in the present proceedings.

5. [31]

   In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ said at [6]:

6. [32]

   In Helow v Secretary of State for the Home Department [2008] 1 WLR 2416 Lord Hope of Craighead said at [2]-[3]:

7. [33]

   In Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17 Hayne J said at [185]:

8. [34]

   In Isbester v Knox City Council [2015] HCA 20; (2015) 89 ALJR 609 Gageler J said at [59] that the test for apprehended bias in the curial context necessarily involved three analytical steps. He went on to say:

9. [35]

   Counsel for the defendants submitted that whichever three steps are taken (if there is any difference between them) none of the steps has been articulated in relation to the present case. However, if regard is had to the three steps identified by Gageler J in Isbester, the identification of step one, as Mr Sayer-Jones submitted, is that I was member of the Legal Profession Admission Board when a decision was taken to exclude Mr Sayer-Jones from the Board’s legal course. Expressing the matter as Hayne J does, it would be necessary to point to a reasonably held apprehension that I had an opinion about Mr Sayer-Jones that was adverse to him because of the Board’s decision.

10. [36]

    Even if a fair-minded observer might hold such an apprehension, Mr Sayer-Jones runs into difficulties at the second and third steps. He submitted that the identification of the second factor is that he knows that I am aware that, being a member of the Board, I was “instrumental in the student’s expulsion for reasons that are equivalent to striking someone off the Roll”. However, I do not consider that that is an appropriate articulation of step two. Whether that step is described as the factor that “might cause that deviation from a neutral evaluation of the merits” (Gageler J), or as the applying of the opinion I had of Mr Sayer-Jones from the exclusion decision to the issue here to be determined (Hayne J), it is not shown how the exclusion decision will influence the outcome of the present motion in the consideration of which no issue of Mr Sayer-Jones’ credit arises. Findings that go to the credibility of witnesses may be of particular significance when considering the view the fair-minded lay observer might form: Re iNova Pharmaceuticals (Australia) Pty Ltd and Secretary, Department of Health and Ageing [2011] AATA 196; (2011) 54 AAR 498 at [17]-[18]; Northern Rivers FM Radio Limited v Australian Broadcasting Tribunal (1990) 25 FCR 266 at 273.

11. [37]

    In Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 the joint judgment of Gummow A-CJ, Hayne, Crennan and Bell JJ said at [69]:

12. [38]

    That is what is, in substance, asserted in this case – that I have a disposition or a pre-existing mental structure which is adverse to Mr Sayer-Jones from the Board’s decision which means that I have prejudged the issue now to be determined, namely, whether a gross sum costs order should be made and not, it should noted, an order whether or not Mr Sayer-Jones should pay costs. That has already been determined, and that is not challenged. Such a concern does not demonstrate that the fair-minded lay observer might reasonably apprehend that I might prejudge the issue I now have to determine.

13. [39]

    Mr Sayer-Jones correctly identified that some of the material contained in the emails attached to Mr Wheeler’s affidavit asserted a peripheral wrongdoing on his part. I say “peripheral” because it concerned the change of shareholding and directorship in the plaintiff after my first judgment. However, the defendants indicated that they did not tender the particular emails contained in paragraphs 83-96 of Mr Wheeler’s affidavit of 24 January 2018 and they did not rely on concomitant paragraphs in their written submissions, being paragraph 20 and the second sentence of paragraph 22.

14. [40]

    Accordingly, in the material in evidence before me, no issue of credit is involved in the decision making. The issue is simply whether the costs orders I had previously made should be varied so that instead of those costs being agreed or assessed in the ordinary course they should effectively be assessed by me as a gross sum costs order. A determination of that matter is based on legal principles which have been identified in a number of cases that are collected in Hamod v State of New South Wales [2011] NSWCA 375 and Zepinic v Chateau Constructions (Aust) Ltd (No 2) [2014] NSWCA 99.

15. [41]

    As Lord Hope said in Helow, the fair-minded observer is not unduly sensitive or suspicious; before she takes a balanced approach to any information she is given she will take the trouble to inform herself on all matters that are relevant; and she is able to put whatever she had read or seen into its overall social, political or geographical context.

16. [42]

    My statement of the legal principles concerning gross sums costs orders and my application of them to the facts will either be correct or incorrect when judged objectively, and will be subject to consideration on an appeal which does not defer to any advantage I have as a primary judge: cf. Abalos v Australian Postal Commission (1990) 171 CLR 167; [1990] HCA 47; Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78Fox v Percy (2003) 214 CLR 118; [2003] HCA 22.

17. [43]

    Accordingly, having regard to Gageler J’s third step, the approach required to determine the present motion means that any apprehension of a deviation from a neutral evaluation cannot be considered reasonable. Similarly, with regards to Hayne J’s third step, it is difficult to see how an apprehension that I would not consider the present matter afresh or in accordance with the proper principles (on the assumption of an adverse view of Mr Sayer-Jones) could be reasonable. Viewed in the way referred to in Michael Wilson, any connection between the decision to exclude Mr Sayer-Jones by the Board and the possibility of pre-judgment must be regarded as tenuous.

18. [44]

    Mr Sayer-Jones relied on Australian National Industries Ltd v Spedley Securities Ltd (In Liq) (1992) 26 NSWLR 411. However, that decision is distinguishable as the following passage of Mahoney JA’s judgment (Meagher JA agreeing) (at 442) makes clear:

19. [45]

    In those circumstances, I do not consider that a fair-minded observer might consider that a decision based on legal principles on how costs already ordered should be assessed might not be the decision of an impartial mind.

20. [46]

    There is a further, although subsidiary, consideration. No application was made by Mr Sayer-Jones for me to recuse myself until after I had delivered judgment in the principal proceedings, and then only for the present motion. Although I dealt with costs in those proceedings, the present application is one simply in effect to vary those costs orders by providing for payment on a gross sum basis. Whilst I accept that it would not be impossible for another judge to consider the present issue, some weight needs to be given to the ordinary arrangement that the judicial officer who decides the principal issue also determines the question of costs, a fortiori, where the costs order has been made and the issue is only how it is assessed.

21. [47]

    For these reasons, I do not consider that I should recuse myself from hearing the present application.

(2) Application to withdraw the undertaking

1. [48]

   In my earlier judgment I set out at [67]-[70] the circumstances in which Mr Sayer-Jones came to give the undertaking to be personally responsible for any costs ordered in favour of the defendants against the plaintiff. In the light of a submission made by Mr Sayer-Jones (noted at [6] above), the following should be added to explain the circumstances of the giving of the undertaking more completely.

2. [49]

   As I noted in my earlier judgment at [21], the matter came before me on 9 January 2018 initially to hear the defendants’ notice of motion filed 3 January 2018. When Mr Sayer-Jones sought to appear for the plaintiff I asked him why he should be given leave to appear in light of the way the proceedings were constituted and the Court of Appeal’s decision in Tanamerah Estates. I gave a copy of that decision to each of the parties and adjourned to give them time to read it. Subsequent to the adjournment I asked Mr Sayer-Jones to tell me what cause of action he personally had against the defendants. When he was not able to do so the following exchange occurred.

3. [50]

   Mr Tam then read the affidavits in support of the notice of motion that he relied upon. There was then argument about whether Mr Sayer-Jones should be permitted to cross-examine the deponents of the affidavits. After some debate, Mr Sayer-Jones said that he did not have any need to cross-examine the deponents and that he did not object to anything in the affidavits.

4. [51]

   The following exchange then occurred:

5. [52]

   Thereafter Mr Tam submitted that the most expeditious course would be for me to determine all issues on that day. The following exchange then occurred:

6. [53]

   As indicated earlier, the two bases on which Mr Sayer-Jones said in oral submissions that he should have leave to withdraw his undertaking were: first, that the Court of Appeal’s decision in Tanamerah Estates was wrongly decided; and secondly, that he did not understand that he was undertaking to pay the defendants’ costs on their notice of motion in contradistinction to the costs of the summons. However, in his written submissions he put forward five reasons as follows:

7. [54]

   Mr Sayer-Jones accepted that I was bound to follow Tanamerah Estates but said that he wished to make the submission that Tanamerah Estates was wrongly decided so that he would be able to argue that proposition on any appeal from my judgment.

8. [55]

   The question for me to consider, therefore, on Mr Sayer-Jones’ application is whether he provided the undertaking on a misunderstanding and under pressure, and to consider it based on the principles relating to releasing a party from his or her undertaking.

9. [56]

   It should first be noted that paragraphs (c), (d) and (e) (above) appear to be based on a misconception by Mr Sayer-Jones that the defendants sought the undertaking. They did not, as the transcript (set out at [49] above) makes clear. In commencing the proceedings and seeking to appear on the Plaintiff company’s behalf, Mr Sayer-Jones was obliged to comply with the Rules and, in particular, r 7.1(3) which is expressed in mandatory terms. What that rule required was clarified in Tanamerah Estates, a decision that bound me.

10. [57]

    To avoid the result that the Plaintiff’s proceedings would be stymied entirely, or would have needed to be adjourned so that, in some fashion, they could proceed in compliance with r 7.1 generally, I offered Mr Sayer-Jones the opportunity to proceed if he was prepared to give such an undertaking. That course seemed to me to be entirely consistent with the Court of Appeal’s view of r 7.1 in Tanamerah Estates, particularly at [16] and [21]. As the transcript discloses, the defendants did not have any input into the matter. At this remove, and after reflection, I should probably have sought such input, but the defendants have made no complaint about that.

11. [58]

    As to (a) and (c) above, Mr Sayer-Jones provided the undertaking without hesitation, and without any request to consider the matter. His stated desire after giving the undertaking to prepare written submissions was not sought on the basis of any adjournment being given to do so before the matter proceeded.

12. [59]

    Paragraph (b) of Mr Sayer-Jones’ submission is not understood. Such an undertaking to the court would not ordinarily be given in writing.

13. [60]

    In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 the High Court held at pp 177-178 that a court has the power to release a party from an undertaking in the absence of consent of the other party, and that one basis for doing so would be if new facts had come into existence or were discovered which rendered the enforcement of the undertaking unjust.

14. [61]

    In Shaoyong (David) Guo v Xinwei Song [2018] NSWSC 12 Black J said at [58]:

15. [62]

    Mr Sayer-Jones does not point to any change in the circumstances since he gave the undertaking nor does he show how the interests of justice are not maintained if he is held to that undertaking. Moreover, as the transcript clearly shows, at the time Mr Sayer-Jones gave the undertaking the only matter then in consideration was the defendants’ notice of motion. In any event, if, as he says, Mr Sayer-Jones believed that he was giving an undertaking personally to pay the costs associated with the summons, a determination of the proceedings generally occasioned by the filing of the summons involved a determination of other interlocutory applications such as the defendants’ notice of motion to dismiss the summons.

16. [63]

    As I noted in my earlier judgment at [69], the Court of Appeal in Tanamerah Estates said that the requirement in r 7.1(3) Uniform Civil Procedure Rules 2005 (NSW) provides a degree of protection to a defendant against incurring legal costs which may be irrecoverable from the corporate plaintiff. The matter is particularly highlighted in the present case where there have been two changes (once after the plaintiff obtained ex parte orders from Rothman J and once after my judgment of 12 January 2018) in relation to the shareholding and directorships of the plaintiff, with the result that the plaintiff is, as Mr Sayer-Jones acknowledges, without assets to pay the costs order against it, and he no longer controls the plaintiff.

17. [64]

    Leave to release Mr Sayer-Jones from the undertaking given on 9 January 2018 should be refused.

(3) Should a gross sum costs order be made?

1. [65]

   Section 98 of the Civil Procedure Act 2005 (NSW) relevantly provides:

2. [66]

   In Harrison v Schipp [2002] NSWCA 213; (2002) 54 NSWLR 738 Giles JA said of the earlier equivalent provision to s 98(4) (Pt 52A r 6(2) Supreme Court Rules 1970 (NSW)):

3. [67]

   In Hamod v State of New South Wales Beazley JA (with whom Giles and Whealey JJA agreed) said:

4. [68]

   A further relevant consideration is whether one party is acting for themselves: Zepinic at [29]; Chaina v Presbyterian Church (NSW) Property Trust (No. 26) [2014] NSWSC 1009 at [50].

5. [69]

   The defendants submitted that a gross sum costs order was appropriate for four reasons:

6. [70]

   Mr Sayer-Jones submitted that no proper basis was shown for ordering a gross sum costs order. He submitted that he conducted the proceedings in an entirely appropriate and economical way which had the effect of minimising costs. He submitted that he should not be deprived of the right to test the fees charged by Resolve in a costs assessment. He submitted that Ms Nygh did not have the expertise to give an opinion on the reasonableness of the fees charged by Resolve. He appeared to submit in his written submissions that the extent of the email correspondence was the fault of Resolve. He submitted that there was no evidence as to whether he would be able to meet a costs assessment and pay any costs ordered.

7. [71]

   In my opinion, Ms Nygh was appropriately qualified to give evidence about the reasonableness of the fees of Resolve. Although Ms Nygh had not acted in an appeal from a Local Court to the Supreme Court, I am satisfied that her experience in both administrative law matters and in commercial litigation generally provided a sufficient basis for the opinions she expressed. Further, her opinion as to the reasonableness of the hourly charging rates of the solicitors is borne out by a consideration of the Costs Assessment Rules Committee, Guideline, Costs Payable Between Parties Under Court Orders.

8. [72]

   I do not consider that Resolve acted inappropriately by having a junior solicitor, Mr Wheeler, work under the supervision a senior partner, Mr Daniel. It is clear that Mr Wheeler had the day to day carriage of the matter and the costs charged to the defendants were thereby reduced because of his much lower charge-out rate.

9. [73]

   Further, I am satisfied that it was not inappropriate for Resolve to brief Mr Tam as counsel in the matter. Mr Sayer-Jones’ submission, that Resolve should immediately have briefed senior counsel or a senior junior familiar with administrative law, should be rejected. This was a relatively small matter involving a small sum in question. Moreover, the defendants were only notified of the ex parte orders shortly before Christmas during the Court vacation when it is notorious that barristers take leave and few are available.

10. [74]

    Section 56(2) of the Civil Procedure Act provides that the Court must seek to give effect to the overriding purpose, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings, when it exercises any power given to it by the Act or Rules. The facility to make a gross sum costs order under s 98(4)(c) is such a power. Moreover, s 60 of the Civil Procedure Act provides that the practice and procedure of the Court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.

11. [75]

    The claim in the Local Court was variously said to be either $75,931 or $35,931. In either case that is a small claim as far as litigation is concerned. What occurred in the Local Court resulted in the proceedings in this Court which I determined in my earlier judgment on 12 January 2018. The proceedings in the Local Court are now not being pursued because, as Mr Sayer-Jones’ emails disclose, he asserts that he was defrauded by the person from whom he purported to purchase the debt on which he sued in the Local Court. There is a strong need, therefore, for the present proceedings to be brought to an end in the quickest, fairest and most economical way. In that regard, all that is outstanding is the costs which I have already ordered should be payable by Mr Sayer-Jones.

12. [76]

    Ms Nygh acknowledged in her evidence that the costs charged to the defendants by Resolve were high although she did not consider that they were unreasonable in the circumstances. Her principal reason for thinking that the costs were high was because of the extent of the email correspondence which those solicitors were obliged at least to read and in many cases answer. Unaided by Ms Nygh’s expert opinion in that regard, I would have been of a similar view that the costs had been unnecessarily increased by the reason of the excessive email correspondence generated by Mr Sayer-Jones.

13. [77]

    Unlike many proceedings where a gross sum costs order is sought where proceedings are lengthy and complex (for example, Chaina v Presbyterian Church) the present proceedings are relatively confined and straightforward. That in itself may provide a proper basis for such an order: Australasian Performing Rights Association Limited v Marlin [1999] FCA 1006 at [4]. As Rares J said in Keen v Telstra Corporation Limited (No 2) [2006] FCA 930 at [6]:

14. [78]

    It is a reasonable inference, and I so infer, that Mr Sayer-Jones will continue to remain unrepresented in any costs assessment process. I am not critical of the way Mr Sayer-Jones conducted the proceedings before me, except as to his prolific use of email, but, as with any self-represented litigant even one with some legal training as Mr Sayer-Jones has obviously had, there is a need at times for the Court to be vigilant to ensure that proper procedures are followed and that all that is litigated are the true issues between the parties. The problem was evident at times in relation to Mr Sayer-Jones’ desire to cross-examine witnesses, both in the principal proceedings and on the present motion, on matters that were not properly in issue between the parties and in the manner of his cross-examination which was at times unfocused and repetitive. I mention these matters, not to be critical of Mr Sayer-Jones, but because there is a strong likelihood that any assessment of costs is likely to be conducted in a similar manner which will lengthen that process and result in the incurring of additional costs.

15. [79]

    Moreover, Mr Sayer-Jones has demonstrated on a number of occasions an uncompromising approach to the litigation. He is very conscious of his legal rights and has on occasions expressed his intentions to take full advantage of those rights. For example, in an email to Resolve of 11 January 2018 in reference to the undertaking as to costs he said:

16. [80]

    In similar vein, in his written submissions on the present application, Mr Sayer-Jones said this:

17. [81]

    Some further examples of this are found in emails sent by Mr Sayer-Jones to Resolve. On 9 January 2018 he said in an email:

18. [82]

    In an email dated 10 January 2018 to Resolve he said this:

19. [83]

    In an email dated 13 January 2018 to Resolve Mr Sayer-Jones said this:

20. [84]

    As soon as I published my reasons for judgment in relation to the principal proceedings, Mr Sayer-Jones indicated, without having seen my reasons, that he would appealing against my judgment. Further, during the course of the hearing of the present motion when Mr Sayer-Jones sought an adjournment to prepare written submissions to respond to the defendants’ motion, he said that, if that adjournment was not granted, his primary submission in the Court of Appeal (thereby assuming an appeal from an adverse decision) would be that he was denied procedural fairness in the ability to prepare submissions.

21. [85]

    All of these matters are clear indicators to me that any costs assessment process is likely to be strongly contested by Mr Sayer-Jones and is thereby likely to be protracted and more expensive.

22. [86]

    There can be little doubt that the plaintiff is an empty shell. In an email dated 12 January 2018 to Resolve Mr Sayer-Jones said:

23. [87]

    Moreover, apart from a reference to bankruptcy proceedings against him in the email set out at [83] above, there are other references in emails from Mr Sayer-Jones to bankruptcy if a gross sum costs order is made against him. Those references give rise to doubts about Mr Sayer-Jones’ ability to meet any costs order.

24. [88]

    The matters that I consider justify a gross sum costs order in the present case are:

25. [89]

    As I have noted earlier, the authorities mandate a broad brush approach to the identification of any gross sum order that should be made. A judge making such an order can bring his or her own experience to bear on figures put forward. In coming to the views I have reached in relation to the amounts I have, however, been chiefly guided by the opinion of Ms Nygh. Having said that, whilst I consider the figures for party/party costs identified by Ms Nygh for the summons costs order and the defendants’ earlier motion costs order to be reasonable, I consider the amount identified for the present application to be unreasonably high.

26. [90]

    Although Ms Nygh has distinguished between costs in relation to the summons and those in relation to the defendants’ first motion filed 3 January 2018, in the light of my findings in my earlier judgment, the distinction is somewhat artificial. I concluded at [79] of that judgment that the vast majority of the time at the principal hearing was taken up with argument about the summons which necessarily included prayer 2 in the defendants’ motion. I also concluded that the evidence prepared in support of the defendants’ motion was relevant to the issues argued on the summons. That meant that the defendants were successful entirely on the summons and on the principal issue argued on the motion, being prayer 2. It was for those reasons that I ordered the plaintiff and Mr Sayer-Jones to pay 90% of the defendants’ costs of the motion.

27. [91]

    The authorities also tend to point to the need for an impressionistic discount of the costs actually incurred to take account of the contingencies that would be relevant in any formal costs assessment: Hamod at [820] and the cases there referred to. Another reason for the discount is that the successful party will receive those costs at a much earlier time than would occur if the matter went to assessment. Mr Tam agreed that this discount is over and above the reduction made by Ms Nygh whereby on an assessment approximately two thirds of the fees and 100% of disbursements including counsel’s fees would be assessed as party-party costs (see [22] above). He submitted, however, that the discount would be a small one particularly because of the costs estimated to be incurred after Ms Nygh had prepared her affidavit (see [19] above).

28. [92]

    A review of the authorities shows a varied approach to the amount of this discount. Some of the cases are noted in Ritchie's Uniform Civil Procedure NSW LexisNexis, Sydney 2005 at para [98.65] and they vary from 30% to nil.

29. [93]

    In my opinion, the further discount in the present case should be small because the case itself was a small one involving a small amount in issue, and the costs in relation to the present motion do not include the estimated costs that postdate Ms Nygh’s affidavit, such costs including the actual appearance to argue this motion. That motion was heard from 9:30am to 1:50pm. I accept that the estimates provided by Ms Nygh are likely to be significantly short of the actual costs incurred. Set against that is that the starting point for the costs for the present motion were high.

30. [94]

    The defendants have been successful on the present motion, and they should have an order for costs of that motion in their favour against the plaintiff and Mr Sayer-Jones who resisted the motion. Those costs should also be payable on a gross sum basis.

31. [95]

    Mr Sayer-Jones asked that whatever orders I made should only be enforceable after seven days from the making of the orders to give him time to appeal from the orders. I will so order.

32. [96]

    In those circumstances, I make the following orders: