COSHOTT v DOWNS and ANOR [1994] NSWCA 64

COSHOTT v DOWNS and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and SHELLER JJA 1 June 1994, 1 June 1994 [1994] NSWCA 64

ORDER THAT PLAINTIFF'S SOLICITOR PAY DEFENDANT'S COSTS PERSONALLY — solicitor not heard before order made — summons seeking that order be quashed — solicitor's client not a party — solicitor's client has real interest — court should not determine proceedings as presently constituted — no adjournment due to delay and neglect of client's interest — costs of present proceedings to be paid by claimant — no intention to decide any matter of substance.

In August 1988 Downs DCJ ordered the plaintiffs solicitor personally to pay the costs of the defendant of discontinued proceedings. The order was on the basis of what the judge perceived as shortcomings in the preparation of the plaintiff's case which had made it necessary for the plaintiff's counsel to seek the order for discontinuance of the proceedings. The solicitor took the view that the order against him would be set aside upon application to the Supreme Court because he had not been given an opportunity to be heard before the order was made against him. By summons, to which the client was not made a party, the solicitor asked that the order be quashed. One consequence of the course taken by the solicitor was that when his client's discontinued proceedings were recommenced they were stayed pending compliance by the solicitor with the order for costs, and those proceedings remain stayed in 1994.

HELD: (1) the client had a real interest in these proceedings since inter alia, one possible result would be that, eventually, she might be ordered to pay the costs the solicitor had been ordered to pay personally. The court therefore held it should not determine the proceedings as presently constituted and should not make any orders in the absence of the client. (2) In considering whether to grant an adjournment the court must take into account the long delay in the proceedings, for which the solicitor was principally responsible, and the neglect of his client's interest during that period of delay. In view of this, it was simpler and clearer to dismiss the proceedings. (3) Costs of the present proceedings should be awarded against because the defect in the proceedings lay mainly at his door and was associated with the neglect of his client's interest, this being one of the discretionary factors which persuaded the court to dismiss the appeal. (4) It was not the intention of the court, in dismissing the proceedings due to a defect in their constitution, to decide any matter of substance which was raised.