Bugeja v Norris Somers [2013] NSWDC 307

District Court New South Wales

Medium Neutral Citation: Bugeja v Norris Somers [2013] NSWDC 307 Decision date: 01 November 2013 Before: Cogswell SC DCJ Decision: Dismiss the notice of motion Catchwords: Appeal - procedure - stay of proceedings - concurrent proceedings in two courts - not an abuse of process - relief sought significantly different - security for costs - concern about stifling opportunity to litigate - no requirement for payment. Legislation Cited: Legal Profession Act 2004 (NSW), s 384. Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(c), 51 Category: Interlocutory applications Parties: Norris Somers (Applicant) Elizabeth Bugeja (Respondent to Application) Representation: Counsel: E A White (Applicant) G P George (Respondent to Application) File Number(s): DC 2013/00286402

Judgment

Introduction 1A firm of solicitors acted for a woman in family law proceedings. She disputed their costs. The firm had its costs assessed by a costs assessor. The assessor determined those costs. The woman has appealed to this Court against that determination. However, the firm of solicitors has asked me to prevent her proceeding with her appeal. Alternatively, they have asked me to order her to pay money into court as security against costs that may be ordered against her of the appeal. The woman's name is Elizabeth Bugeja. The firm of solicitors is Norris Somers.

History 2The background to the litigation has many twists and turns. A solicitor who originally practised as Norris Somers acted for Mrs Bugeja. That solicitor died. Another solicitor, at some stage it seems, took over the practice. When he sought from Mrs Bugeja the costs of her Family Court proceedings she said that she had an arrangement with the solicitor who had died. The effect of the arrangement was that she had paid the bill. This was not acceptable to the new solicitor. He took a couple of steps to remedy the situation, so far as he was concerned. He secured an order from the Family Court of Australia over an amount of $38,000 which Mrs Bugeja was owed by her husband. That $38,000 is now sitting in trust. The second thing he did was to submit what he said was his bill - his bill unpaid by Mrs Bugeja - for assessment by a costs assessor under the Legal Profession Act 2004 (NSW). But things became even more complicated. 3Before proceeding further I should say that I have referred to a dead solicitor, a solicitor who took over the practice and a firm known as Norris Somers. There is, I understand, a live issue about the ownership of the name Norris Somers or the practice and the date when the ownership was assumed. I do not have to determine those matters and I am, in order to determine the case that has been given to me today, simply going to refer the dead solicitor and the new solicitor. 4The new solicitor submitted his costs assessment on 31 May 2012. On 19 July 2012 his application was referred to a particular costs assessor. On 6 August 2012 Mrs Bugeja, through her solicitors, made a submission to the costs assessor. The submission was substantial and set out reasons why she should not have to pay any of the assessed costs. However, about six weeks later Mrs Bugeja decided to seek much more significant relief than simply making a submission to the costs assessor. She brought proceedings in the Supreme Court. In the Supreme Court she sought an order that the costs assessment being conducted, in respect of which she made a submission, be stayed. She sought orders about the $38,000 which was being held in trust and she sought other orders. 5The Supreme Court summons was filed by Mrs Bugeja on 26 September 2012 and was given directions for the filing of evidence on 24 October. The new solicitor sought from the Supreme Court an order for security for his costs of the Supreme Court proceedings. He was successful and the Supreme Court ordered Mrs Bugeja to pay $12,500 into court as security for the new solicitor's costs. She did that on 6 March 2013. The order had been made on 29 January 2013. Coincidentally, the day before she paid that money into court something unexpected happened so far as Mrs Bugeja was concerned. Although she had sought an order from the Supreme Court staying the progress of the assessment, the costs assessor issued his assessment on 5 March 2013. The new solicitor had been successful and the costs assessor assessed the costs owing to him by Mrs Bugeja in an amount of over $30,000. 6Mr G P George, who appears as counsel for Mrs Bugeja before me today, has been somewhat critical of the costs assessor in proceeding with his assessment in circumstances where there were proceedings for them to be permanently stayed. He points out the costs assessor in fact had filed a submitting appearance which provided that the costs assessor "submits the orders of the Court". That is apparent from exhibit 2. I do not accept Mr George's criticism, although on the other hand I can understand why his client may have been lulled into believing that the assessment process may not have continued once she filed proceedings and the submitting appearance was filed. I make no criticism of the assessor in filing a submitting appearance. He was submitting to the orders of the Court, but of course no order had been made. He was simply proceeding with his job appropriately and expeditiously. In hindsight it might have been more appropriate for Mrs Bugeja to have sought a temporary stay of the process of determining the costs. 7Once the certificate was issued the new solicitor had it registered in the Local Court and in accordance with the law it became a judgment against Mrs Bugeja. 8About a month after getting the judgment, on 9 August 2013, the Supreme Court case came on for hearing before Rothman J, on 17 September 2013. It is common ground in these proceedings that his Honour was unwilling to hear the matter, as a judgment had been entered in the Local Court based on a certificate and if he was to proceed to hear the case he might find himself issuing a conflicting judgment. His Honour declined to proceed with the hearing on that day and apparently suggested that the appropriate course was for Mrs Bugeja to challenge the certificate which had been issued by the costs assessor. Mrs Bugeja took that advice and within a week filed, in this Court, a summons seeking leave to appeal from the costs assessment. That summons will be heard, subject to orders I make today, in due course. It will be an appeal against the assessment provided for by s 384 of the Legal Profession Act. 9At this point we return to the case which has come before me today for me to decide. A month after Mrs Bugeja filed her summons appealing from the costs assessment, the new solicitor filed a notice of motion in this Court on 23 October 2013 asking for two principal orders. The first was that Mrs Bugeja's appeal be "stayed as an abuse of process of the Court on the ground that the plaintiff has concurrent proceedings on foot in the Supreme Court". The second principal relief was that Mrs Bugeja "provide security for the defendant's costs in an amount of $25,000".