Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 1105

New South Wales Supreme Court

CITATION : Kearns & Anor v Fair Trading Tribunal of NSW & Anor [2001] NSWSC 1105 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12699/01 HEARING DATE(S) : 29 November 2001 (In Chambers) JUDGMENT DATE : 30 November 2001

PARTIES : James Gordon Kearns and Ruth Sandra Kearns v Fair Trading Tribunal of NSW and Rick John Pecar JUDGMENT OF : Michael Grove J at 1

COUNSEL : R. Freeman (Plaintiff) R.F. Loveday AM QC (Second Defendant) SOLICITORS : Helliars (Plaintiff) Gordon A. Salier (Second Defendant) CATCHWORDS : JUDGMENTS AND ORDERS - COSTS - SUITORS FUND CERTIFICATE - ARBITRARY CAP ON AMOUNT RECOVERABLE - WHETHER ORDERS SHOULD BE AMENDED TO TAKE ACCOUNT OF LIMIT - OBSERVATIONS ON VARIOUS CHARGED ITEMS - SLIP RULE NOT AVAILABLE (PART 20 RULE 10) DECISION : AMENDMENT REFUSED

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Friday 30 November 2001 12699/01 - JAMES GORDON KEARNS and RUTH SANDRA KEARNS v FAIR TRADING TRIBUNAL OF NEW SOUTH WALES and RICK JOHN PECAR

JUDGMENT 1 HIS HONOUR: This judgment follows a hearing in chambers on 29 November 2001. Application was made by Mr Pecar (the defendant) who appeared for himself at trial, that I correct or amend the order for costs and issue of a Suitors Fund certificate which I made on 25 October last. In the chamber hearing the Hon R.F. Loveday AM, QC appeared (pro bono) for Mr Pecar and Mr Freeman of counsel, as he did at trial, appeared for the plaintiffs (Mr Kearns, a solicitor, and his wife). 2 The amendment was sought pursuant to Part 20 Rule 10 (the slip rule) and I was also asked to have regard to the overriding purpose proclaimed in Part 1 Rule 3. 3 It is convenient to recapitulate some chronology of events. The plaintiffs did not pay the defendant for some carpentry work which he did in restoration of property owned by Mrs Kearns in the absence of the availability of a preferred contractor, a Mr Wilkinson. As I did in the previous judgment, I again mention in passing that Mr Williamson deposed that the work performed by the defendant was of "a high quality and quite faithful to the heritage value of the building". The defendant sought payment through the Fair Trading Tribunal and an order was made in his favour. Between the refusal by the plaintiffs to pay for the work and the hearing in the Tribunal, Mr Kearns suffered a stroke. On the occasion of the first listing by the Tribunal he sought and obtained an adjournment. A second application was declined. The sole basis upon which relief was sought and granted in this Court was that the plaintiffs had been denied natural justice in being forced to hearing without adequate enquiry into the issue of Mr Kearns illness and his fitness to participate in the hearing. 4 It has been said that the defendant pressed for the Tribunal to proceed on the occasion of second listing. If that be so, it would be entirely understandable. The flawed decision was that of the Tribunal which filed a submitting appearance in the proceedings in this Court, however the defendant himself appeared to oppose the grant of relief. 5 As noted in the earlier judgment, the originating process did not expressly claim costs but an application was made at the hearing and when it was, the defendant responded that, if a question of costs arose, he sought a Suitors Fund certificate. The order for the defendant to pay the plaintiffs' costs was made following the event of the outcome of the summons and the defendant was granted the certificate sought. 6 What has provoked the present application is the production of accounts from solicitors. Solicitors who did not appear for the defendant but gave him some advice have rendered an account for $1,108.25 and the solicitors for the plaintiffs have tendered an account for $14,108.50. By consent, copies of these accounts were produced at the chamber hearing and I have initialled them and placed them with the papers. It is common ground that available indemnity pursuant to the Suitors Fund certificate is limited to a total of $10,000.00. 7 The defendant's submission is that I would have intended that he not be personally liable for costs and that that intention was manifest in the grant of the certificate. It is submitted that to make that intention clear I should correct an omission by specifying that the defendant should have his costs pursuant to the certificate and be liable to the plaintiffs for their costs only to the extent of the balance of maximum indemnity ($10,000.00) thereafter available. The plaintiffs oppose this and contend that there has been no mistake nor any error arising from accidental slip or omission. 8 I consider that the plaintiff's contention is correct. There is a difference between intention and expectation and I intended to order costs to follow the event although, had I turned or had my attention turned to it, I would have expected that the certificate would see the defendant not out of pocket. Had that expectation been met there would be no cause to make any amendment to the orders and this circumstance provides a reasonable test for ascertaining whether a slip as such has occurred. Overview of the circumstances suggests that it has not. The order for costs against the defendant was made in the circumstance that he had chosen to oppose the relief being sought by the plaintiffs. 9 Mr Loveday pointed out that the defendant really had no idea what a Suitors Fund certificate was but had implemented advice that, if any question of costs arose, he should ask for one. I find that easy to accept but I do not think that that vests me with a jurisdiction to reopen the matter and in my view that is effectively what is being sought. Nor can I accept that Part 1 Rule 3 provides a facility for applying qualifications to orders which have been made where qualifications arise in respect of matters subsequent. Just, quick and cheap resolution of real issues does not authorize relitigation of those issues even if they relate exclusively to costs. Essentially what is sought is a different order for costs from that presently made. 10 However the present order must imply that the costs to be recovered by the plaintiffs are reasonable and proper costs and the order is for payment between party and party as distinct from indemnity. What the defendant is now seeking is a "capped" order for costs which is different from either of those. 11 The parties have agreed that I have the accounts which have been rendered available and it might be helpful to the assessment of what are reasonable and proper costs to make some observations in particular concerning the account from the plaintiffs' solicitors. I make the following comments: (i) The plaintiffs' claim was based upon an alleged denial of natural justice arising out of the insistence on proceeding by the Tribunal and this has been dealt with in my earlier judgment. A considerable bulk of the affidavit material was entirely irrelevant to the issue being brought before this Court and I would not have considered that the costs order which I made should enable the plaintiffs to recover the costs of producing irrelevant and unnecessary material. (ii) Much of the work charged for was done by the solicitor/plaintiff himself. By the time he drew the summons and affidavit in support (in respect of which he neglected to seek an order for costs and in respect of the latter what was relevantly required was a recitation of the circumstances surrounding his health and the refusal of adjournment) he claims to have briefed counsel, submitted an addendum to brief, perused a draft and (separately) a preliminary advice from counsel, conferred with counsel on two occasions of an hour each, and spent ninety minutes himself on "research". There are numerous other unreferenced but charged activities. (iii) There is a claim for attending on counsel for three hours on the day before the hearing (21 October) but it is noted that there is no claim for actually attending the hearing. As at that time the affidavits were said to be already prepared and no deponent on either side was required for cross examination. I find it difficult to conceive what would require a conference of this length in respect of this claim, at that juncture. (iv) There are fees for two named counsel (other than Mr Freeman who appeared) listed as fee disbursements of $1,760 and $1,650. As the plaintiffs' solicitor has charged for drawing affidavits himself, it is difficult to identify, in the light of the limited issue being litigated, for what such fees might have been incurred. The above comments do not exhaust the items in the account which appear to me to merit very close scrutiny but, as stated, the comments are intended to assist in keeping appropriate focus on what was required to litigate the issue and to exclude charges for activity which was irrelevant, unnecessary or extravagant. 12 For completeness I should record that I was invited to consider that the slip rule has been utilized more liberally in respect to matters relating to costs than otherwise but I regret that I cannot perceive authority for reopening the issue of costs because the amount claimed when quantified is unexpectedly high or even astonishingly high. When an amount of costs is perceived as unreasonable, the remedy lies in procedures for discipline of assessment and not in reconstruction of the costs order. Despite the evident force in the contention that claimed costs are disproportionate to the subject of dispute, I do not consider that I can, either by reference to the rules or ex debito justitiae, relieve the defendant from the situation in which circumstances have placed him. 13 Neither counsel raised the question of the costs of the attendance in chambers, but both expressed concern about escalation of costs with particular reference to the quantum of dispute. I expressly make no order in respect of the costs of that attendance. However for the reasons above expressed, I must decline to vary the orders made on 25 October 2001.