Supreme Court New South Wales Medium Neutral Citation: Lin v Firth [2013] NSWSC 1316 Hearing dates: 10 September 2013 Decision date: 10 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Plaintiff to pay defendant's costs of the notice of motion filed 18 July 2013 up to 24 July 2013. Catchwords: COSTS - motion resolved - only outstanding question was costs - no question of principle. Legislation Cited: - Oaths Act 1900 - Uniform Civil Procedure Rules 2005 Cases Cited: - Immigration and Ethnic Affairs (Cth), Re Minister for; ex parte Lai Qin [1997] HCA 6; 146 CLR 622 Category: Interlocutory applications Parties: Zhen Quan Lin (Plaintiff) Stephen Paul Firth t/as Firths the Compensation Lawyers (Defendant) Representation: Counsel: H.J. Marshall SC (Plaintiff) R.I. Goodridge (Defendant) Solicitors: Diamond Conway (Plaintiff) Firths (Defendant) File Number(s): 2013/115780 EX TEMPORE Judgment 1On 18 July 2013 the defendants filed a notice of motion which sought in prayer 1 the striking out of an amended statement of claim filed on 17 May 2013. Prayer 2 sought such further or other orders as the Court saw fit. In circumstances which I will describe, ultimately neither of those two prayers was pressed. Nevertheless, the defendant sought its costs of that motion. The plaintiff sought its costs of defending that motion on an indemnity basis. 2The fact that the motion did not proceed robs the Court of the usual guidepost for the determination of who should pay the costs of the motion, namely the event or outcome. The principles governing the exercise of the Court's discretion to award costs in those circumstances were set out by McHugh J in Re Minister for Immigration and Ethnic Affairs (Cth); ex parte Lai Qin [1997] HCA 6; 146 CLR 622. In summary, the Court looks to whether what led to the substance of the motion being resolved amounted to a capitulation by one party, reflected an overwhelming likelihood of success by the other party, or whether there was otherwise disentitling conduct by either party. 3For reasons that are unnecessary to explain, the affidavit material reveals that the background to these proceedings is thought, at least by the defendant, to have some connection with the circumstances surrounding the termination of the partnership known as Keddies and the actions taken by various clients of that firm, as well as the actions taken by former clients of the defendant. It goes without saying that the Court is not resolving any aspect of that dispute, even assuming it had any legal consequence. 4On or about 10 May 2013 the plaintiffs served on the defendant an affidavit from the plaintiff which set out in some detail his version of the events surrounding his retainer of the defendant to act in some personal injury proceedings. The text of the affidavit was in the English language. It appears to be common ground that the plaintiff cannot read, write or speak English but is fluent in Mandarin and can read and write in that language. 5On 20 May 2013 the plaintiff served an amended statement of claim on the defendant. The amended statement of claim had attached to it an affidavit typed in English in the name of the plaintiff, which was witnessed. It bore his signature in Mandarin. It said in English, "I am the plaintiff. I believe that the allegations of fact in the statement of claim are true". The statement of claim was required to be verified by r 14.23 of the Uniform Civil Procedure Rules 2005 ("UCPR"). UCPR 35 deals with the requirements for affidavits, including those that verify a pleading. It provides as follows: "An affidavit made by a blind or illiterate person may not be used unless: (a) the affidavit bears a certificate referred to in section 27A of the Oaths Act 1900, or (b) the court is otherwise satisfied: (i) that the affidavit was read to the deponent in the presence of the person before whom it was made, and (ii) that it appeared to that person that the deponent understood the affidavit." 6The defendant contends that the reference to "illiterate person" in UCPR 35.7 extends to a person who cannot read or write English, at least in circumstances where the text of the affidavit they swear is in English. 7On 27 May 2013 the defendant's solicitor wrote to the plaintiff's solicitor, complaining about the form of the verification and asserting that it required a certificate pursuant to s 27A of the Oaths Act 1900. It threatened that if these matters were not rectified then the defendant would move to strike out the amended statement of claim. 8On 31 May 2013 the plaintiff's solicitor responded, denying that there was any obligation to obtain a certificate under s 27A of the Oaths Act. The letter also included the following statement: "In any event, our client executed the affidavit verifying the amended pleading and his affidavit evidence on 9 May 2013 in the presence of an English-Chinese accredited translator and interpreter who interpreted the contents of each of the affidavits to Mr Lin. At the final hearing of this matter, we will be relying upon affidavits sworn by the interpreter in relation to her translation of the contents of the Affidavits to Mr Lin prior to his execution of same." 9On 5 June 2013 the defendant's solicitor responded. They vigorously disputed the contention that a certificate under s 27A of the Oaths Act was not required. They asserted that, on the face of the amended statement of claim, it was apparent that the plaintiff had not properly verified it. 10On 13 June 2013 the plaintiff's solicitor wrote to the defendant solicitor. Amongst other matters, the letter enclosed, by way of service, an affidavit from the interpreter concerning the plaintiff's execution of the affidavit verifying the statement of claim. The affidavit stated inter alia as follows: "During the conference, and before any documents were signed, I translated all statements made by the solicitor from the English language to the Mandarin language and I translated all statements made by Mr Lin from the Mandarin language to the English language. During the conference I did truly interpret the contents of the affidavit contained in the document annexed and marked 'A' to the Deponent, Zhen Quan Lin, and the form of oath administered to him before he swore the affidavit according to the best of my skill and ability." Annexure A to the affidavit was the amended statement of claim. 11On the same day the defendant's solicitor replied. That letter stated inter alia as follows: "All Ms Zhang [sic] diposes [sic] to in her affidavit is that she interpreted the affidavit at the end of the Statement of Claim. She does not swear that she interpreted the contents of the statement of claim to the plaintiff. We maintain that the statement of claim has not been properly verified. We note that you have yet to provide us with a properly verified amended statement of claim. In these circumstances, although the defendant's defence is due on 14 June 2013, the defendant is not in a position to prepare his defence until a properly verified amended statement of claim is served." The letter does not advert to the possibility of filing any notice of motion seeking any order, including strike-out. 12On 18 July 2013 the defendant's solicitor filed the notice of motion seeking the striking out of the amended statement of claim. 13On 24 July 2013 the defendant's solicitor served an affidavit from a solicitor in support of the application. The annexures to the affidavit are in large part items of correspondence to which I have already referred. However, the text of the affidavit recounts aspects of the history of the disputation between Keddies and Mr Firth that I have referred to. It records concerns said to be held by the solicitor as to "whether the contents of the amended statement of claim were indeed translated to the plaintiff and properly verified", and further records a concern that, by some means or other, the plaintiff had been manipulated into bringing the proceedings against the defendant. 14The concerns and suspicions recorded by the solicitor in that affidavit were capable, although not necessarily intended, of casting aspersions upon the professionalism of the plaintiff's solicitors. In essence, it might have been understood that the basis for striking out the amended statement of claim was not merely a lack of proper verification of the amended statement of claim but a more serious allegation that the proceedings were not being conducted via proper instructions from the plaintiff at all. 15The next step that occurred was on 15 August 2013. A supplementary affidavit from the interpreter was served in which she clarified that in paragraph 5 of her earlier affidavit she had "meant to say that I interpreted the entirety of the contents of the amended statement of claim before Mr Lin signed the affidavit in that document". Thus, this affidavit addressed the concern that was raised in the letter of 13 June 2013 sent by the defendant's solicitors. 16Next, on 19 August 2013 the defendant's solicitors wrote to the plaintiff's solicitors, indicating that they now accepted that the affidavit verifying the amended statement of claim was translated to the plaintiff in the presence of the authorised person. The letter stated that, in those circumstances, no further issue would be taken with the verification of the pleading. 17Thereafter, the parties' only dispute concerned the question of the costs of the motion. 18Counsel for the defendant, Mr Goodridge, has focused upon the request that was made in the letter from his instructing solicitors on 13 June 2013, pointing out the potential ambiguity in the interpreter's affidavit sworn that day. He points to the fact that, notwithstanding that concern being raised, it was not addressed for some two months until the affidavit of 15 August 2013 was provided. 19Counsel for the plaintiff, Mr Marshall SC, has pointed primarily to the serious nature of the concerns raised by the defendant's solicitor in his affidavit of 24 July 2013. In essence, he submitted that what had been a sharp exchange which was directed to whether the statement of claim had been properly verified appeared to have escalated by the service of that affidavit to a much more serious set of "concerns" or allegations said to support the striking out of the statement of claim. He submitted that a more narrowly focused concern being raised about verification would never have justified a strike out being granted, but would instead have led to some less draconian form of order being made by the Court. 20There is considerable force in both counsel's submissions. What in effect they point to is a series of unfortunate actions on both sides which escalated what should have been a relatively minor exchange into something that was potentially far more serious and not conducive to the overall conduct of the litigation. 21For my part, I am left with the letter of 13 June 2013, which raised a legitimate and focused concern about the verification of the statement of claim. This was a matter that could have been easily and quickly clarified. The plaintiff certainly had the opportunity to do so well before the filing of the defendant's notice of motion. In my view, its failure to address that legitimate concern is a factor which constitutes a form of unreasonable conduct which would justify some form of costs order. Equally, the unfortunate manner in which the defendant's solicitor escalated the nature of what was being debated in the correspondence in his affidavit of 24 July 2013, in my view, is also a piece of conduct which weighs in the balance, bearing in mind, as I have stated, that I do not derive any guidance from determining the outcome of the motion. 22I accept Mr Marshall SC's submission that it was unlikely that the statement of claim would have been struck out. Equally I accept that, given what was known about the plaintiff's level of English skill, if the motion of 18 July 2013 had been determined on the day that it was filed it was likely to lead to some form of relief being granted against the plaintiff. 23In the end, I propose to make a costs order that will satisfy no-one. I will order that the plaintiff pay the defendant's costs of the notice of motion up to and including 24 July 2013, being the date that Mr McQuilkin's affidavit was sworn and presumably filed. I will make no order in relation to costs thereafter. In my view, these forms of costs orders reflect the various factors and the findings I have made as to the conduct of both sides during the course of the motion. ********** 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. Decision last updated: 26 September 2013