Walton v Walton

I gave judgment in these proceedings on 16 March 2015, dismissing the plaintiff’s claim: Walton v Walton [2015] NSWSC 218.

On 1 April 2015 I heard argument as to costs and ordered that the plaintiff pay the defendants’ costs: Walton v Walton [2015] NSWSC 405 at [34(2)].

I also ordered that the plaintiff’s solicitor, Mr Shane Neagle, show cause by 10 April 2015 why I should not:

I have now received an affidavit sworn by Mr Neagle on 10 April 2015, together with written submissions from Mr Michael McHugh SC.

In his affidavit, Mr Neagle said that he did not “take issue with or oppose” costs orders to the effect set out at [3(a) and (b)] above, but asked that the “professional conduct referral not be made”.

Mr Neagle said:

Mr Neagle gave a detailed account of his “recent personal circumstances” and said that:

Mr Neagle then set out, in some detail, the “[b]ackground to the costs application”, what he described as the “[c]ollegial [s]upport” he had received in preparing the material referred to in my 1 April 2015 judgment (including consultations with a number of unnamed junior counsel and senior solicitors) and his “reasoning for adducing and submitting on particular matters properly and necessarily addressed by the ex tempore judgment [of 1 April 2015] at paragraphs [28], [29] and [30]”.

Mr Neagle said that:

In his affidavit in support of the costs application, Mr Neagle referred to the “history” between him and the defendants’ solicitor: see [28(f)] of my 1 April 2015 reasons. In his 10 April 2015 affidavit , Mr Neagle said:

So far as concerns the matter referred to at par [30] of my 1 April 2015 judgment, Mr Neagle said in his 10 April 2015 affidavit:

Mr McHugh submitted that the matters set forth in Mr Neagle’s affidavit warranted the conclusion that referral of the matter to the Law Society was no longer warranted and that:

Mr McHugh also submitted that notwithstanding Mr Neagle’s “appropriate” admission that I have set out at [6] above, his conduct could not be said to rise to the level of professional misconduct.

Mr McHugh concluded:

I have given careful consideration to Mr McHugh’s measured and thoughtful submissions, but am not able to accept them.

It is not appropriate that I express any view about whether Mr Neagle’s conduct is, or is not, professional misconduct or unsatisfactory professional conduct. It is, however, appropriate that the Law Society consider that question so that it can consider what, if any, further action is appropriate. In my opinion, the public interest does require that I refer my reasons of 1 April 2015, and these reasons, to the Law Society.

So far as concerns the question of costs, Mr McHugh submitted that:

Mr McHugh drew my attention to the decision of RS Hulme J in Harris v Villacare Pty Limited [2012] NSWSC 452. In that case, one of the matters that his Honour considered was an affidavit sworn by a solicitor in the proceedings which was some 83 pages in length and which his Honour described as a “waste of paper” (at [31]). Nonetheless, his Honour concluded that “only something of the order of 90%” of the affidavit was a waste and, with a “desire to adopt a conservative view”, confined an order under s 99 of the Civil Procedure Act to 80 per cent of the costs in question (at [68]).

In this case, Mr McHugh submitted that:

I accept Mr McHugh’s submission that the defendants would have incurred some costs on the costs application in any event. However, as I pointed out in my reasons of 1 April 2015 (at [2]), but for the material adduced by Mr Neagle, costs would have been dealt with on the papers. There would have been no cause for the defendants to engage their solicitor to brief counsel to appear on the costs application and to have their solicitor and counsel peruse the large folder of material (little or none of which was, in my opinion, relevant).

In those circumstances, I consider it appropriate that Mr Neagle pay 90 per cent of the costs.

Accordingly, pursuant to s 99(2) of the Civil Procedure Act I order that:

I propose to refer these reasons, and those of 1 April 2015, to the Law Society for it to consider what, if any, further steps should be taken concerning the matters referred to in those reasons.