O'Connor v Perry [2014] NSWSC 1386

Supreme Court New South Wales

Medium Neutral Citation: O'Connor v Perry [2014] NSWSC 1386 Hearing dates: 23 September 2014 Decision date: 10 October 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Mr O'Connor's motion is dismissed. The usual order as to costs is that they follow the event. In this case that is an order that Mr O'Connor pay the defendants' costs of the motion, as agreed or assessed. Unless the parties approach within seven days to have the matter relisted, that will be the Court's order. Catchwords: PROCEDURE - notice of motion - orders seeking further opportunity to apply for assessment of costs - section 350 of the Legal Profession Act 2004 - motion dismissed Legislation Cited: Evidence Act 1995 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133 Northey v Bega Valley Shire Council [2012] NSWCA 28 Metwally v University of Wollongong [1985] HCA 28; (1985) 60 ALR 68 Category: Procedural and other rulings Parties: Franck O'Connor (Plaintiff) Kristen Perry (First Defendant) Perry Legal ABN 63 403 321 507 (Second Defendant) Representation: Counsel: Mr Holmes (Defendants) Solicitors: Mr F O'Connor, unrepresented (Plaintiff) File Number(s): 2013/335237 Publication restriction: None

Judgment 1By summons filed in November 2013, Mr O'Connor sought orders designed to permit him to pursue his application for an assessment of legal costs after the applicable 12 month period. Section 350 of the Legal Profession Act 2004 (NSW) permits the Court to make such an order, if it "determines, after having regard to the delay and the reasons for the delay, that it is just and fair for the application for assessment to be dealt with after the 12-month period". 2Mr O'Connor obtained the order which he sought on 5 February 2014, when orders were made in his favour by consent. He did not avail himself of that opportunity or the opportunity to pursue a costs order. In March the proceedings were finally dismissed. By motion filed in August 2014, he seeks to set aside the earlier orders, so that he can pursue a further opportunity to apply for an assessment of his legal costs. 3That application is opposed by the defendants, Mr O'Connor's former solicitors. Their position was that the Court has no power to vacate the orders made by the Registrar on 5 February in Mr O'Connor's presence, granting him leave to bring an assessment application by 5 March 2014 and dismissing his summons other than as to costs; that the Court's discretion to set aside the further order made on 24 March dismissing the balance of the proceedings would not, in the circumstances, be exercised; and the orders sought in relation to the costs assessment would not be made. 4Mr O'Connor's motion was supported by affidavits sworn by he and his wife in August 2014. He was legally represented in the proceedings at one point, but in September 2014 his former solicitor filed a notice of removal. He appeared unrepresented at the hearing. 5The defendants relied on an affidavit sworn by Ms Perry. At the hearing, Mr O'Connor did not object to Ms Perry's affidavit being received, but alleged that it had not been properly executed. That allegation rested on his perception that the signature of the witness differed from that on another affidavit Ms Perry had sworn before that witness. The allegation was plainly a serious one, but its consequences, from Mr O'Connor's point of view were not readily apparent. It could, in any event, not be made out on a bare comparison of the two signatures he relied on. 6Mr O'Connor deposed that he had instructed Ms Perry to send letters of demand in two legal disputes in which he was involved. He signed a costs agreement and invoices for the work performed were later provided to him. He considered the costs charged to have been grossly out of proportion to the work performed and made no payment. Proceedings were brought against him in the Local Court in June 2013 in which a default judgment has been entered in an amount of $30,804.91 and an examination procedure is on foot. 7Mr O'Connor explained that he had commenced these proceedings, after obtaining assistance from the Newcastle University Legal Service. On 5 February 2014, he appeared before the Registrar. He was provided with a copy of proposed consent orders, which he refused to sign, in the following terms: "1 Pursuant to s.350 of the Legal Profession Act 2004, leave is granted to the Plaintiff to apply for assessment of the Defendant's costs, such application to be made by 5 March 2014. 2 The Summons is otherwise dismissed. 3 Make no order as to the costs of these proceedings." 8After hearing the parties the Registrar ordered: "1. Defendant to file and serve all affidavit material on which intend to rely in respect of the issue of costs by 19/2/14. 2. Plaintiff to file and serve any affidavit in reply by 12/3/14. 3. List for costs argument on 24/3/14 at 11am. 4. Orders 1-2 in SMO: By consent and without admission of liability, the Court orders that: (1) Pursuant to s.350 of the Legal Profession Act 2004, leave is granted to the plaintiff to apply for assessment of the defendant's costs, such application to be made by 5/3/14. (2) The Summons is otherwise dismissed." 9Mr O'Connor deposed that he had struggled to follow what had occurred at the 5 February hearing; that he had not made proper notes; that afterwards he had looked for a Court employee to tell him what orders had been made, but could find no-one; and that he thought the Court would later forward him a copy of the orders made. While he knew that he had been granted leave to seek a costs assessment, he did not know that a timetable had been imposed, which he had to adhere to. 10Mr O'Connor also deposed that he was not aware of the date to which the matter had been adjourned for argument as to the costs of the summons. He was then distracted with work and in mid-March asked his wife to call the Court. She told him that the defendants had not filed anything and there was no need for him to appear. 11Mrs O'Connor affidavit was difficult to follow. She deposed that: "2. I recall that my husband was in dispute with the defendants with respect to some legal costs. I was aware that he attended the Supreme Court in Sydney on a couple of occasions in relation to this matter. Insofar as I am aware, he had never been involved in any Supreme Court proceedings or proceedings of this nature. I recall he said to me sometime in the middle of March words to the effect of "we have got a Court date coming up you need to find out what we have to do". 3. A short time thereafter, I rang the Supreme Court Registry in Sydney. I spoke to a person whose name I did not obtain and I said to that person words to the effect of I have telephoned the Court for you. They said that the defendants didn't file anything and so you do not need to appear when the matter is next in court". 12Mr O'Connor did not appear at the hearing on 24 March, on his case because of the confusing terms of the orders made on 5 February and because the defendants filed no evidence to support their case, as the orders made on 5 February contemplated. On 24 March, in his absence, the Registrar ordered: "No Order. Note Order 2 made 5.02.2014, summons were dismissed. Close File." 13Ms Perry deposed that Mr O'Connor had made a complaint about her to the Legal Services Commissioner. After she was advised that it had been dismissed, she then pursued the outstanding costs in the Local Court. In October 2013, the Local Court proceedings were adjourned, so that Mr O'Connor could bring an application in this Court, for leave to have his costs assessed. He obtained that leave by consent in February 2014, but did not pursue any costs assessment. After these proceedings were later dismissed in March 2014, Ms Perry pursued her application in the Local Court. Mr O'Connor did not appear and default judgment was entered in the defendants' favour in July 2014. This motion was brought in August 2014. 14Mr O'Connor did not explain why he did not appear in the Local Court proceedings which Ms Perry pursued. It was only after he was served with an examination notice that he contacted the Court's registry by email, advising: "I have not attended the hearing on 24 march 2014 I was not notified of the hearing date and seek to find out what is my next step" 15On 9 July he was advised by the Court that his summons had been dismissed and the case closed; that he had a right to seek a review of the Registrar's decision, but that a 28 day time limit applied and that: "It is the responsibility of the parties to attend directions hearings and be aware of the dates listed for further directions. The Court does not notify parties of upcoming directions and hearing dates." 16Ms Perry deposed that Mr O'Connor then applied to the Local Court to have the default judgment set aside. That application has been adjourned, pending resolution of this motion.