New South Wales Supreme Court CITATION : Cachia v Denis Mockler & Rowley (Stewart) Cuddy trading as Stewart Cuddy & Mockler [2007] NSWSC 433 HEARING DATE(S) : 30/04/2007 JUDGMENT DATE : 4 May 2007 JUDGMENT OF : Hoeben J at 1 DECISION : Judgment in favour of the defendants; Plaintiff is to pay the defendants' costs of the proceedings CATCHWORDS : Claim against solicitors - recovery from solicitors of money paid for disbursements - whether Legal Profession Act 1987 entitled plaintiff to recovery of money so paid - whether monies paid to solicitors under "duress" - whether entitlement to aggravated or exemplary damages. LEGISLATION CITED : Legal Profession Act 1987 Motor Accident Compensation Act 1999 CASES CITED : Excel Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1984-85) 155 CLR 448 at 468-469 Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 149 PARTIES : Saviour Laurence Cachia - Plaintiff Denis Mockler & Rowley (Stewart) Cuddy trading as Stewart Cuddy & Mockler Solicitors - Defendants FILE NUMBER(S) : SC 11643/2006 COUNSEL : Plaintiff in person A Leslie QC - 1st & 2nd Defendants SOLICITORS : Plaintiff in person Stewart Cuddy & Mockler - 1st & 2nd Defendants IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HOEBEN J Friday 4 May 2007 11643/2006 – Saviour Laurence CACHIA v Denis Mockler and Rowley (Stewart) CUDDY trading as STEWART CUDDY and MOCKLER SOLICITORS JUDGMENT 1 HIS HONOUR: Nature of claim The plaintiff is not a lawyer and appears for himself. Nevertheless he does have considerable experience in conducting matters on his own behalf. He has appeared on a number of occasions in this Court, in the Court of Appeal and in Special Leave Applications before the High Court. 2 The nature of the claim is not altogether clear. The plaintiff alleges that he retained the defendants as his solicitors in respect of three personal injury claims. He says that in the course of those proceedings the defendants obtained from him $91,350 which they placed in their trust account. Despite frequent requests, he says the defendants failed to supply him with a bill of costs. 3 He says that despite requests on his part the defendants have refused to repay the $91,350. In these proceedings he claims from the defendants that amount, interest which at the present time is in excess of $110,000 and exemplary and aggravated damages. 4 The basis for the plaintiff's claim seems to be as follows: (i) In the absence of a bill of costs in accordance with the Legal Profession Act 1987, the defendants have no entitlement to the $91,350 and they should repay that amount plus interest to the plaintiff. (ii) In the absence of the defendants' entitlement to costs being assessed in accordance with the Legal Profession Act 1987, the defendants have no basis for retaining $91,350. (iii) The failure by the defendants to provide a bill of costs has prevented the plaintiff from recovering party party costs to which he was entitled as a result of the judgments obtained by him in his personal injury actions. (iv) The payment of the $91,350 by the plaintiff to the defendants was brought about by "duress" in that he was told that unless he paid the monies his claims could not proceed. (v) The plaintiff is entitled to aggravated and exemplary damages because the defendants have contumaciously failed to provide a bill of costs to him despite repeated requests and despite findings of the Professional Conduct Committee of the Law Society and the Legal Services Commissioner. 5 Under the particulars section of the Statement of Claim (para (i)) the plaintiff complains about the way in which the defendants conducted the litigation on his behalf. He specifies a number of respects in which he alleges the defendants had been negligent. After that recitation of facts the paragraph concludes as follows: "The Plaintiff apprehends that the said negligent conduct of the litigation was a factor in the Defendants not issuing the bill of costs. However, had they issued a bill the plaintiff would have contested it also on the ground of their negligence." 6 In reply to a request for particulars by the defendants in respect of that paragraph (exhibit F) the plaintiff clarified this aspect of his claim as follows: "3 The Plaintiff refers you to paragraph (i) of the Statement of Claim and last paragraph on page 2 and following of the Plaintiff's General Case Management Document. The said acts of negligence are delineated at paragraph 7 in the Statement of Claim, and as far as the instant proceedings are concerned, are of consequence only as stated in the said paragraph 7. See also last paragraph at page 1 of the Plaintiff's General Case Management Document. No damages claim arises from the acts of negligence in the instant proceedings." 7 It seems clear and the plaintiff did not demur when this was raised at the hearing of the matter, that in these proceedings the plaintiff is not making a claim in negligence against the defendants. 8 By way of defence the defendants admit that $91,350 was paid to them by the plaintiff. They say that except for $3,657 which was repaid to the plaintiff on 23 May 2005 the balance of the monies was applied with the consent of the plaintiff to the payment of disbursements associated with the conduct of his personal injury claims. 9 The defendants deny that they failed to provide a bill of costs and in that regard rely upon the provisions of s199 of the Legal Profession Act 1987 (LPA). That section relevantly provides: "199. (3) If any costs have been paid without a bill of costs, the client may nevertheless apply for an assessment. For that purpose the request for payment by the barrister or solicitor is taken to be the bill of costs." 10 The defendants otherwise deny the allegations in the Statement of Claim. Factual background 11 No oral evidence was given. The matter proceeded on the basis of affidavits, correspondence and a statement from the defendants' trust account. Except as otherwise indicated, I find the background facts to be as follows. 12 The plaintiff was involved in three motor vehicle accidents, which occurred on 14 September 1973, 8 March 1980 and 28 July 1982. It was the plaintiff's contention that he suffered serious injuries in those accidents. Between the dates of the accidents and 1989 each matter proceeded separately and the plaintiff used a number of different firms of solicitors. It was not until 1989 that the matters were consolidated and proceeded together in the Supreme Court. 13 Mr Mockler began acting for the plaintiff in April 1991. At that time he was a partner with the firm of Blessington Judd. In 1992 when the defendants' partnership was established, he brought the plaintiff's matters with him and continued to act for the plaintiff. Not surprisingly by 1991-1992 the plaintiff was pressing Mr Mockler to have the matters fixed for hearing. 14 The matters were listed for hearing for two days commencing 26 October 1993 before McInerney J. A request for the payment of disbursements was made to the plaintiff by the defendants by letter dated 25 October 1993 as follows: "As you are aware we have briefed Mr Maurice Neil QC to appear on your behalf at the hearing of your matters, together with Mr Jay Anderson. We note that Mr Neil's fees will be in the vicinity of $4,000 per day plus conferences and that there will be at least one day's preparation. Mr Anderson is charging $1,750 per day. Although the matter is listed for hearing for two days we consider that the matter could take four days, possibly longer. We also anticipate incurring witnesses' expenses in calling to give evidence Mr Barrie Pike from Furzer Crestani, Dr Douglas Seaton, Dr James Grady and Dr John Douglas. It is anticipated that a further $5,000 at least will be required to meet these expenses. We require your written confirmation that the above terms are acceptable to you and confirmation that payment can be made as required as requested within a reasonable period. Should you have any enquiries please contact Mr Mockler. We look forward to receiving your instructions that these terms are acceptable. Yours faithfully" 15 The plaintiff responded by letter dated 26 October 1993 as follows: "I refer to your letter of October 25 1993. As per your request; I accept the figures which you outlined for fees and disbursements as being reasonable. I enclose herewith a cheque for $5,000 on account. On this day of the hearing I wish to express my relief at having finally arrived to a hearing of the cases. As you know, getting to a hearing was such a painfully protracted matter that I can hardly believe that that day is now here. Thank you Mr Elliot for your effort so far. Please ensure, insofar as it is within your control to do so, that at this crucial time everything goes smoothly." 16 As anticipated by the defendants, the matters did not conclude in the two days allocated to them. By letter dated 5 November 1993 the defendants advised the plaintiff as to the further conduct of the case. Included in that letter was the following: "We have discussed with counsel the issue of fees. Mr Neil QC and Mr Anderson have indicated that they accepted their briefs in this matter on the basis that their fees would be paid at the conclusion of the two days allocated. Under the circumstances, they require payment of their fees at this stage. The fees notes provided by each counsel are enclosed. Mr Neil QC's fees amount to $18,800 and Mr Anderson's amount to $7,535. Payment of these amounts is recommended. In addition, Mr Pike of Furzer Crestani has indicated that his firm cannot carry out further work, nor guarantee to give evidence at the hearing unless their fees of $3,124 have been paid. The account to this effect is enclosed. The transcripts which are of crucial importance to the formulation of submissions cost $900. An account is enclosed. While this firm is prepared to await payment of professional costs until the conclusion of these proceedings, it will not be possible to effectively continue preparation until the aforementioned outstanding disbursements have been paid. We note that there is $5,600 currently in your trust account. We request therefore that you forward to us the amount of $25,000 on account of the above disbursements. We stress the urgency of the provision of these funds, especially given that counsel would ideally seek to meet with you again in conference prior to your departure to Malta in December. We also note that counsels' fees will need to be set aside for the further five days hearing allocated in March 1994. While counsel have confirmed that they do not require payment until the conclusion of the five days, it will be necessary to make satisfactory arrangements as to payment at this stage. It is estimated that these costs will amount to approximately $40,000. We will also obtain details of the further costs likely to be incurred in calling Dr Seaton, Dr Douglas, Dr Grady and Barrie Pike to give evidence. Details of these expenses will be provided. …" 17 By letters dated 10 November 1993, 22 November 1993 and 14 December 1993 the plaintiff responded to that letter. He urged the defendants to keep costs to a minimum and asked whether the defendants could persuade counsel to defer their claim for fees until after the litigation was completed so that they could be paid from the damages. Additional monies were also forwarded to the defendants. 18 By letter dated 11 January 1994 the defendants advised the plaintiff that they had received $15,000 from him and had applied that money by way of $990 to the Reporting Services Branch for transcript, $10,000 to Maurice Neil QC and $4,001 to Jay Anderson. The plaintiff was advised that Mr Neil QC was still owed $8,800 and Mr Anderson $2,534 and that since counsel were not prepared to wait for payment of their fees, these outstanding amounts should be paid after the plaintiff's return from Malta. 19 In relation to future fees, the letter stated: "In relation to the future hearing, it is our very strong recommendation that the same counsel be retained. Because of the nature of the actions, their potential, the difficult legal and factual issues involved, and the attitude taken by the GIO, we consider that it is essential to retain the existing Queens Counsel. Satisfactory arrangements must be made within fourteen days of your return to Australia to cover the likely counsel fees to be incurred in a five day hearing. We would estimate this to be an amount of up to $35,000. While it will not be necessary to pay this amount into trust prior to the hearing, satisfactory arrangements by way of a mortgage or other suitable security will be required. Counsel are not prepared to proceed in the matter without adequate protection for their fees. It is possible that the hearing could go for more than five days in which case further monies would be required. It is noted that we are not seeking payment of our own professional costs or disbursements in advance of verdict. We are not however prepared to underwrite counsels' fees in the event that you do not pay them as agreed, as we will be primarily liable to pay them in those circumstances. In the event that these matters have not been resolved prior to 28 January 1994 then counsel would be at liberty to withdraw from the proceedings. If you have any concern about any of the matters raised in this letter, then you should obtain independent legal advice. Would you please contact Mr Mockler or Mr Elliot on you return to Australia to discuss these issues and the future conduct of the matter …" 20 Additional monies were received from the plaintiff by the defendants. As of 8 March 1994 $63,000 had been received. After four days of hearing, the evidence concluded on 17 March 1994. The matters were then further adjourned so that written submissions could be prepared by each side. By letter dated 7 April 1994 the defendants reported: "We have alerted counsel to the difficulties suffered by your wife and yourself and to your desire to add to your claim for aggravated damages. We have also notified Mr Neil QC as to your desire to have a copy of the draft of the written submissions. We would request that you also provide to us any submissions which you think are relevant in order that they may possibly be incorporated into the draft if counsel determine this to be appropriate. We enclose for your attention the following bills arising from the hearing which concluded on 17 March 1994. 1. Memorandum of fees due to Mr MJ Neil QC. 2. Memorandum of fees due to Mr Jay O Anderson. 3. Transcript fee. 4. Account from Dr James Grady. 5. Account from Dr John Douglas. 6. Account from Dr D Seaton. We request that you authorise payment of these accounts as soon as possible from the monies in your trust account. …" 21 By letter dated 28 April 1994 the plaintiff responded: " … In reference to your letter: I do not think that I need independent legal advice since you are acting for me. I hold you, my solicitors, to be charged with the responsibility to act in my best interests; indeed, I believe that you do so act. The appropriate payment of the appropriate bills is a matter which I have entrusted in your hands. That is the reason why you act for me and for which you rightly and justly deserve payment from me. I do not have the legal knowledge to decide what is appropriate, nor am I in possession of the requisite facts which would enable me to have an informed opinion. Please pay appropriate bills as is appropriate. I note that I have supplied you, at your request, with monies in excess of $65,000 on account, to cover your liability. This is a large amount of money, and considering that an award of damages with costs is expected, is probably vastly higher than in the majority of other personal injury cases. …" 22 It is not necessary nor would it be useful to set out in its entirety the whole of the correspondence between the plaintiff and the defendants. The above extracts are sufficient to illustrate the nature of the correspondence and its tone. 23 What is clear from the correspondence is that the defendants forwarded to the plaintiff copies of all of the accounts which they had received which required payment. The entries in the trust account statement when reconciled with these accounts and with receipts and with photocopy cheques make it clear that the defendants did pay $87,143 by way of disbursements directly associated with the plaintiff's litigation. I am satisfied that those payments were made with the express authority of the plaintiff. This is clear from the correspondence passing between them, particularly the plaintiff's letter of 28 April 1994. 24 The hearing of the plaintiff's matters resumed in April 1995. McInerney J delivered judgment on 26 May 1995 and a supplementary judgment on 5 February 1996. The effect of those judgments was a verdict for the plaintiff in the sum of $41,436 plus costs for the 1973 accident, $6,300 for the 1980 accident and $17,954 plus half costs for the 1982 accident. 25 By letter dated 23 May 1996 the plaintiff terminated the defendants' retainer. Included in that letter was the following: "2. I have supplied to you on account approximately $90,750. Most of this amount would be refundable to me plus interest accrued thereon. I am paying interest of the order of 11.5% on borrowed money and this would reflect my loss on monies which are being held by you in excess of requirements." 26 A suggestion was then made by the plaintiff that outstanding issues between him and the defendants ought be resolved by discussion. 27 The defendants replied by letter dated 29 May 1996. They accepted that their retainer had been withdrawn and said: "Two matters remain to be dealt with in respect of our firm's representation of your interests. The first is the finalisation of all outstanding accounts to third parties, including doctors. We are in the process of checking accounts on our file. As requested, we will send any outstanding accounts to you for payment. The second matter is our own costs of acting on your behalf. As we have advised before, we consider that the only appropriate course is to have solicitor client costs determined by an independent assessor appointed by the Court. This will involve the preparation of an itemised Bill of Costs, which will be given to you so that you may make such objections as you wish. Following this the assessor will make a ruling as to the amount payable. Our files are being prepared for this purpose and you will receive a formal bill in due course." 28 Thereafter in correspondence on a number of occasions the plaintiff sought from the defendants an itemised Bill of Costs. None was provided to him. By letter dated 3 April 1997 the defendants made the following reply to one of those requests: "Thank you for your letter dated 22nd March 1997. Your comments have been noted. We have requested the assessor to attend court and to review the documentation produced although in view of the Appeal it may be preferable if you could make available a copy of the Appeal Books prepared for a short time to enable the Assessor to verify the exhibits that were tendered and to reduce time that otherwise would be wasted attending in court and obtaining access to exhibits. We note your comments in relation to the monies paid to our office. We enclose for your information a copy of the trust statement. We note that at no stage have we either sought or been paid professional costs and all monies paid have been for approved disbursements to counsel etc. As such no interest is payable. It would be appreciated if you would provide a copy of the Appeal Books as soon as possible that the assessor can proceed without further delay and unnecessary costs being incurred." 29 The plaintiff continued to request an itemised Bill of Costs during 1998 and 1999. On 21 August 1999 the plaintiff requested the repayment of $91,350 because the defendants had not supplied him with a Bill of Costs. Further requests for a Bill of Costs and/or a refund of the $91,350 were made in 2000, 2001 and 2002. No money was paid to the plaintiff nor was any Bill of Costs provided to him. 30 In 2002 the plaintiff complained to the Law Society. The Professional Standards Committee of the Society reported on the matter in July 2005. It was satisfied that there was a reasonable likelihood that Mr Mockler would be found guilty by the Tribunal of unsatisfactory professional conduct in failing to provide a detailed Bill of Costs, but on the whole of the material before it, the Committee dismissed the complaint. 31 As can be seen from the trust account statement and from a reconciliation of the accounts paid by the defendants, there was a difference between the amount of $91,350 provided to the defendants by the plaintiff and the accounts paid by the defendant of $3,607. That money was refunded to the plaintiff by letter dated 23 May 2005. I infer that as a result of the plaintiff's complaint to the Law Society, the defendants carried out a reconciliation of the trust account statement and determined that there was no basis for these monies being retained by them and repaid that amount to the plaintiff. 32 The plaintiff appealed to the Court of Appeal from the three judgments of McInerney J. That appeal was heard in 1998 and was unsuccessful. Thereafter the plaintiff made two unsuccessful applications to the High Court for special leave. He also made two further unsuccessful applications to the Court of Appeal seeking that it reconsider its dismissal of his appeal. In all of those matters the plaintiff appeared for himself. Costs orders were made against the plaintiff in respect of those unsuccessful applications. 33 In the course of these proceedings Senior Counsel for the defendants advised the Court that the defendants would not be seeking any profit costs from the plaintiff for their work and that from the defendants' point of view the matter was finished. Submissions 34 The plaintiff prepared written submissions in support of his claim. Those submissions largely repeated the matters in the Statement of Claim. At the heart of the submissions was the proposition that the defendants had wrongfully requested and obtained monies from him because no Bill of Costs had been provided by them. The plaintiff submitted that because the process of assessment in s192 LPA had not been followed the monies paid by him were refundable by the defendants with interest. 35 That submission misunderstands the scheme of the LPA. The Act sets out a process which needed to be followed before solicitors could bring proceedings for the recovery of costs. In this case no such proceedings were needed by the defendants. The monies had already been paid by the plaintiff to them. 36 The only provision in the LPA for the repayment of monies received by solicitors from a client was where the client had successfully applied for the assessment of a Bill of Costs and the proper officer of the Supreme Court had determined that excessive costs had been paid (s199). As was pointed out in submissions, it was still open to the plaintiff to make an application for assessment because the defendants' requests for payment would be deemed to be the Bill of Costs. The plaintiff had not done so (s199). 37 It follows that the plaintiff's reliance upon the LPA as a basis for recovering the monies paid by him to the defendants and interest on those monies is misconceived. That claim must fail. 38 It was submitted by the plaintiff that because the defendants' entitlement to costs had not been assessed in accordance with the LPA, they were not entitled to retain the $91,350 provided to them by him. As indicated, to the extent that the plaintiff relies upon the LPA to support that submission, it must fail. 39 Leaving aside the provisions of the LPA it is difficult to discern the basis on which the plaintiff asserts that the defendants in some fashion "retain" the monies which he provided to them. The plaintiff clearly understood (his own letters make that clear) that almost all of the $91,350 provided by him to the defendants had been used by them to pay disbursements, in particular counsels' fees. This was done with his knowledge and consent. In no way could it be realistically said that the defendants "retained" those monies. 40 When these matters were put to the plaintiff in argument he responded that he did not accept that the disbursements had been paid by the defendants as they asserted and that further proof was needed that counsels' fees and medical accounts had in fact been paid. Implicit in that submission was the assertion that the defendants had falsified a large number of documents including receipts, photocopy cheques and the trust account statement. 41 While it is true that until the hearing of this matter the defendants had not provided to the plaintiff copies of the receipts which they had in respect of the payment of the disbursements, the evidence that such disbursements were paid by the defendants is overwhelming. There is not a shred of evidence to the contrary. The plaintiff's assertion that he did not believe this to be the case is without foundation and is of no probative value. 42 Although it was not raised in the Statement of Claim, the plaintiff submitted that the defendants were not entitled to request monies from him by way of disbursements because of the limitations imposed on the recovery of legal fees by the Motor Accident Compensation Act 1999 and by Part 11 Div 5B of the LPA. Those submissions are misconceived in that those legislative provisions did not come into effect until many years after the payments were made. 43 The plaintiff submitted that the failure by the defendants to provide a Bill of Costs had prevented him from recovering party party costs to which he was entitled as a result of the judgments obtained by him in his personal injury actions. This submission is irrelevant to these proceedings. These proceedings claim a refund of the monies advanced for disbursements and interest on that refund. They make no claim for lost party party costs payable by a third party. 44 Even if it were a relevant consideration, it is clear from s199(3) LPA that the plaintiff has not been prevented from recovering his party party costs. Moreover the costs orders against the plaintiff as a result of his unsuccessful appeals may well exceed any entitlement which he still has to party party costs. 45 The plaintiff submitted that the payment of $91,350 to the defendants for disbursements was brought about by "duress". The only particulars provided of this "duress" was that the requests for money were made so late that the plaintiff had no choice but to provide the money otherwise his claims would not have been able to proceed. 46 There is no factual basis for this claim. The correspondence makes it clear that the plaintiff was given ample warning of the costs likely to be incurred in pursuing his claims. His payments were made to the defendants voluntarily and with full knowledge of the purpose for which the money would be applied. There was no threat ever communicated to the plaintiff. At most he was advised that unless counsel fees were paid by a certain date, counsel would regard themselves as free to withdraw from the brief. The claim for "duress" has not been made out. 47 The final component of the plaintiff's claim is for aggravated and exemplary damages. The basis for the claim is the defendants' refusal to provide him with a Bill of Costs. Reliance was placed on the findings of the Professional Conduct Committee of the Law Society. 48 There is, of course, a distinction between exemplary and aggravated damages. The classic statement of the distinction is that of Windeyer J in Uren v John Fairfax & Sons Pty Limited (1966) 117 CLR 118 at 149: "Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment—moral retribution or deterrence." 49 The way in which the plaintiff has particularised this aspect of his claim does not provide any basis for either aggravated or exemplary damages. It is true that the Law Society was critical of Mr Mockler's failure to provide an itemised Bill of Costs but the plaintiff has not suffered any loss thereby. This is because of s199 LPA and the defendants' acknowledgment in open court that they will not be seeking any profit or other costs from the plaintiff relating to the work performed by them in respect of his personal injury claims. Even without that concession, the conduct of Mr Mockler falls considerably short of that which would entitle a plaintiff to claim either aggravated or exemplary damages. 50 Insofar as exemplary damages are concerned, the defendants relied upon the dicta of Brennan J in Excel Petroleum (NSW) Pty Limited v Caltex Oil (Australia) Pty Limited (1984-85) 155 CLR 448 at 468-469. His Honour there stated that exemplary damages are parasitic on compensatory damages. The defendants submitted that without an entitlement to compensatory damages there can be no entitlement to exemplary damages. In these proceedings no basis has been established by the plaintiff for the award of compensatory damages. It follows that no basis for the awarding of exemplary damages has been made out. 51 A matter to which the plaintiff did not refer but which is relevant to this part of his claim is that the defendants retained in their trust account between 1996 and May 2005 an amount of $3,607 which should at the very least have been repaid to the plaintiff before May 2005. Does the defendants' conduct in retaining those monies in their trust account constitute "conscious wrongdoing in contumelious disregard of another's rights" such as is necessary to support an award of exemplary damages? 52 Even if the plaintiff were able to overcome the dicta of Brennan J in Excel Petroleum, the defendants' conduct in retaining this money in their trust account falls considerably short of conduct necessary to establish an entitlement to exemplary damages. Quite clearly the defendants intended for a considerable period of time to submit to the plaintiff a Bill of Costs in which they would claim their profit costs in respect of the plaintiff's personal injury claims. It is clear that those profit costs would have greatly exceeded $3,607. In view of their difficulties with the plaintiff, the defendants no doubt wished to retain those monies on account of the costs to which they then considered they were entitled. 53 For the above reasons the plaintiff's claim for aggravated and exemplary damages fails. Conclusion 54 The plaintiff has failed to make out any of the matters relied upon in his Statement of Claim. Accordingly, there must be judgment entered in favour of the defendants. Since he has failed in these proceedings, I see no reason why the plaintiff should not pay the defendants' costs. 55 The orders which I make are as follows: (i) There will be judgment in favour of the defendants. (ii) The plaintiff is to pay the defendants' costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.