WOODS (T/as TURNER FREEMAN) v HANOLDT (No 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, MEAGHER and HANDLEY JJA 31 August 1995 [1995] NSWCA 526 COSTS — SCR Pt52 R66(1)(c) FACTS The appellant's argued that costs should be awarded the respondent's original solicitors and on an indemnity basis. The respondent's original solicitors argued that no costs were 'incurred improperly' or without reasonable cause. Nor were any costs wasted by undue delay or by any other misconduct or default on the part of the respondent's solicitors within the meaning of SCR Pt52 R66(1)(c). HELD The respondent's original solicitor's submission is correct. Furthermore, there was no conscious or flagrant endeavour to abuse the process of the court. An ordinary costs order should be made. The respondent should pay the appellant's costs before the Dust Diseases Tribunal and on appeal and should have a certificate under the Suitors Fund Act in respect of costs of the appeal. ORDERS The respondent should be ordered to pay the appellant's costs before the Dust Diseases Tribunal and on appeal and should have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Clarke JA On 16 June 1994 this Court ordered that leave to appeal by granted, that the appeal by upheld and that the subpoena, insofar as it required production of the documents ultimately mentioned in the written judgment, be set aside. The Court then reserved the question of costs and its reasons. On 9 March 1995 the court delivered formal reasons for the orders which it had made but of course did not deal with the question of costs. The parties have now submitted written submissions on those costs. In their submissions, the appellants seek an order that costs be awarded against the respondent's solicitors (rather than the respondent) and that the costs be on an indemnity basis. It is said that the respondent took no part in bringing about or effecting the abuse of process and for this reason the proper order should be that the appellants' costs be paid by the respondent's solicitors. It was contended that the Court had power to make such an order pursuant to s76(1) of the Supreme Court Act 1970 and SCR Pt52 R66 and, in respect of the costs in the court below, by virtue of s29 of the Dust Diseases Tribunal Act 1989 and s75A(10) of the Supreme Court Act. The submissions that the costs should be ordered on an indemnity basis was based on the ground that the respondent's solicitors were fully qualified solicitors with a broad experience in personal injury cases who ought to have known better than to subpoena, or seek to subpoena, the appellants' work products, the act of abuse upon which the court allowed the appeal. 2 UNREPORTED JUDGMENTS The respondent's solicitors have furnished written submissions on their own behalf in which they state, accurately enough, that in the ordinary course the appellants' costs would be ordered to be paid by the respondent on a party/party basis. In a sense, in putting forward that submission they were acting contrary to the interests of their client. For this reason the respondent sought separate representation and her new legal advisors have filed an affidavit in which it is said that the respondent acted on the advice of her advisors. They have also submitted written argument in which they contend that, for the reason I have just mentioned, the respondent ought not to have to pay the costs. An alternative submission is that any costs order against her be on a party/party basis and that she have a certificate under the Suitors Fund. No reason appeared in the proceedings why, if no order was to be made against the respondent's solicitors, the respondent should not be ordered to pay the costs. In these circumstances, and with some diffidence, I think it is appropriate to approach the case on the basis either that the ordinary order is made or that the special order sought by the appellants is made. In their submissions the respondent's original solicitors argue, persuasively, that no costs were 'incurred improperly' or 'without reasonable cause'. Nor were any costs wasted by undue delay or by any other misconduct or default on the part of the respondent's solicitors within the meaning of SCR Pt52 R66(1)(c). I have concluded that they are correct in that submission. It is not inappropriate, in considering the present question, to observe that the trial judge upheld the validity of the subpoena and ordered the production of the documents. It would appear from his judgment that the argument which led to the subpoena being set aside was not developed before him. It is also worthy of note that that argument was not to the forefront of the appellants' submissions before this court but emerged as a type of sidewind during the dialogue between the bench and bar. Further, although the court has held that the action in issuing the subpoena and in seeking to enforce it was an abuse of process it was a step taken in proceedings upon the advice of counsel and I would reject the notion that there was any conscious or flagrant endeavour to abuse the process of the court. Counsel has not been represented before the court and, for this reason, it is not appropriate that we pass upon his actions. Notwithstanding, an acceptance of the evidence that the solicitors acted, in issuing the subpoena, on his advice necessarily means that counsel made a serious misjudgment. Having had regard to the various arguments I am not disposed to order costs against the respondent's solicitors nor am I disposed to make an order on an indemnity basis. In my opinion the ordinary order should be made. It follows that the respondent should be ordered to pay the appellant's costs before the Dust Diseases Tribunal and on appeal and should have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Meagher JA I agree with Clarke JA. Handley JA I agree with Clarke JA. The respondent should be ordered to pay the appellant's costs before the Dust Diseases Tribunal and on appeal and should have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Counsel for the Appellant: B TOOMEY QC Watkins Tapsell and Nolan: GA PALMER QC URJ WOODS (T/as TURNER FREEMAN) v HANOLDT (No 2) (Handley JA) 3 Mrs Hanoldt (as executrix to the estate of the Late Wilfried Hanoldt): PJ ASHTON (Solr) Solicitors for the Appellant: TURNER FREEMAN, PARRAMATTA 5 Watkins Tapsell and Nolan: WATKINS TAPSELL AND NOLAN, SUTHERLAND Mrs Hanoldt (as executrix to the estate of the Late Wilfried Hanoldt): ASHTON STEDMAN, WOOLLOOMOOLOO