Supreme Court New South Wales Medium Neutral Citation: Hans Ekblad v Lorraine Ekblad (No 2) [2015] NSWSC 1676 Hearing dates: On the papers Date of orders: 11 November 2015 Decision date: 11 November 2015 Jurisdiction: Common Law Before: Wilson J Decision: Costs in favour of the first defendant, in the sum of $8,265.16. Catchwords: COSTS – application by the first defendant to recover costs of legal representation – UCPR r 42.1 - impecuniosity of plaintiff –the slip rule Legislation Cited: Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005 Cases Cited: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 Roads and Traffic Authority (NSW) v Palmer (No 2) [2005] NSWCA 140 Category: Costs Parties: Hans Ekblad (Plaintiff) Lorraine Ekblad (Defendant) Local Court of New South Wales (Second Defendant) Representation: Counsel: Plaintiff in person First Defendant in person File Number(s): 2014/166262 Judgment 1. On 3 June 2014 the plaintiff, Hans Ekblad, filed a summons in this Court seeking leave to appeal against an order of the Local Court of 8 April 2014 dismissing his application for an Apprehended Domestic Violence Order ("ADVO") against his former wife, Lorraine Ekblad, now Lorraine McNuff. 2. On 4 February 2015 the Court made orders refusing the plaintiff the leave that he had sought and, insofar as it was necessary to do so, dismissing the summons: Ekblad v Ekblad & Or [2015] NSWSC 507. No orders were made as to costs. 3. Subsequently, on 6 May 2015 the first defendant sought an order for costs in her favour against the plaintiff. The second defendant, the Local Court of New South Wales, did not join that application, or make any separate application for costs against the plaintiff. 4. A timetable was set for the first defendant and plaintiff to file relevant evidence on the question of costs, and to provide the Court with written submissions. The application was to be determined on the papers with the parties accepting that course. Each party has filed the material upon which each seeks to rely, in accordance with those orders. The Evidence 1. The first defendant filed an affidavit sworn by her on 19 May 2015, which annexed a number of documents, including invoices issued by a firm of solicitors previously retained by her in relation to these proceedings. 2. The first of the invoices, annexure C to the affidavit of 19 May 2015, an invoice dated 31 July 2014, related to "professional costs of and incidental to acting on your behalf to 28 July 2014". The costs are particularised in the invoice by reference to 18 specific items, each of which appears to reflect professional work done by the solicitor then acting for the first defendant, in relation to the summons filed by the plaintiff on 3 June 2014. The professional costs charged by the invoice amount to $3,897.50. 3. There is an additional cost charged for disbursements, being "file archiving", "email charges", and "printing, copying and scanning". 4. Inclusive of disbursements and GST the invoice billed the first defendant for the amount of $4,596.85. 5. The first defendant also relies upon annexure D to her affidavit, which is a further invoice from the firm of solicitors retained by her, and which charges for professional costs and disbursements in acting for the first defendant in the "Supreme Court Appeal of ADVO issued by Hans Ekblad" up to and including 20 January 2015. 6. Professional costs to the firm were invoiced at $1,717.10 and fees payable to counsel noted as $2,200.00 (see also annexure E to the affidavit). Disbursements made up the balance of the invoiced charge, a total of $3,977.91. 7. The invoices in evidence before the Court show payments into trust of various sums by the first defendant to her solicitors, in payment of the fees charged. 8. The first defendant did not incur legal costs beyond 20 January 2014. Having been advised by her solicitor that the prospective costs likely to accrue between 20 January 2015 and the date of the hearing of the plaintiff's appeal, 4 February 2015, would be a further $16,300.00, the first defendant terminated the firm's retainer. She thereafter acted for herself, and appeared in person before the Court on 4 February 2015. 9. The plaintiff filed and relied upon an affidavit of 9 June 2015 from his current partner, Melissa Harris, and an affidavit sworn by the plaintiff on 10 June 2015. 10. The affidavit of Ms Harris is largely irrelevant to the question of costs. Indeed, it is difficult to see how anything Ms Harris might have to say could conceivably go to the question of whether or not costs should be awarded to the first defendant in relation to the plaintiff's failed court action. 11. Most of the 187 paragraphs of the affidavit, many of them in bold text, with underlining and capitalisation, seek to traverse the rulings of this Court and of the Local and Family Courts, or simply to heap abuse on the first defendant and her former lawyer. Ms Harris complains that the courts are gender biased (against men), unjust, and discriminatory; she accuses the first defendant of being, amongst other things, vindictive, intimidating, and malicious; whilst she levels unsubstantiated allegations at the first defendant's former lawyers, accusing them of unethical conduct and, more seriously, of "colluding" with the first defendant to pervert the course of justice. 12. The few references to matters relevant to costs in the affidavit of Ms Harris do no more than express disbelief at the quantum of the legal costs sought by the first defendant, and assert criminal conduct by her and her former solicitors, intended by them to deceive the Court. 13. Regrettably, the plaintiff's affidavit, dated 10 June 2015, advances the matter no further. Like Ms Harris, he has used his affidavit not to provide evidence relevant to the determination of the application for costs, but rather to make abusive and unsubstantiated allegations against the first defendant and a number of named lawyers. 14. The writing style employed is identical to that evident in the affidavit of Ms Harris, with many sections capitalised, or rendered in bold or underlined text. 15. Like Ms Harris, the plaintiff asserts that, contrary to evidence filed by the first defendant (which establishes sums paid by her to her former solicitors in payment of invoiced charges), the first defendant has never paid for legal assistance relevant to the plaintiff's appeal, and the invoices she has tendered are fraudulent. These claims are advanced by way of assertion; no evidence is filed supportive of them. 16. The plaintiff asserts impecuniosity, as a recipient of the Newstart Allowance, and seeks to contrast his own position with that of the first defendant, who is employed. Determination 1. It is well established that costs follow the event: r 42.1 of the Uniform Civil Procedure Rules 2005. The "event" here is the judgment handed down on 4 February 2015. Ordinarily, a successful party is entitled to hold a "reasonable expectation" of being awarded costs against the unsuccessful party: Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at [67] and [134]. 2. Although there is generally considered to be an onus on the losing party to establish a basis for departure from this usual rule, the plaintiff has not advanced anything to discharge the onus. I have had regard to his asserted impecuniosity but, given that the plaintiff deposes as to his capacity to pay the legal costs he incurred in these proceedings, it is not a feature of the matter sufficiently persuasive such that an order refusing the first plaintiff's application is appropriate. 3. The fact that one party is employed and another is not does not dictate the refusal of an order for costs. That must be particularly the case where the litigation launched by the losing party was ill advised, as was the case here. 4. Additionally, the plaintiff made a conscious choice to launch his appeal in the Supreme Court, rather than pursue the appeal already filed by him in the District Court, presumably without regard for the additional costs that would necessarily be incurred by both parties in withdrawing an appeal to the District Court and initiating a second set of proceedings in this Court. 5. The plaintiff asserts that the invoices placed before the Court by the first defendant as annexures C and D are fraudulent, and were created by the first defendant and her former lawyers for the purpose of deceiving the Court, but there is no reason to doubt that the invoices are genuine. Certainly no evidence has been tendered to suggest otherwise. 6. Although the plaintiff contends that the amounts of money invoiced by the first defendant's former lawyers are so large as to be unbelievable, his astonishment at the sums involved arguably does no more than suggest the plaintiff's unfamiliarity with the scale of legal fees. Whilst the legal fees paid by the first defendant are indeed large, they are consistent with what a firm of solicitors typically charges for the work particularised in the invoices. 7. Since no objective evidence is advanced by the plaintiff to justify what is a most serious allegation of an act done to pervert the course of justice, it must be rejected without reservation. 8. The plaintiff submits that the Court has no jurisdiction to determine the application for costs, asserting that the court is functus officio. I am unable to accept that submission. 9. In delivering judgment on the substantive matter of the plaintiff's appeal, the Court made no orders as to costs. However, the defendant sent an e-mail to the Court immediately following the conclusion of the hearing on 4 February 2015, asserting that she had intended to raise the issue of costs and ask that costs be addressed, but had forgotten to do so. As a self-represented party this is not surprising. 10. The slip rule (r 36.17 UCPR) permits this Court to rectify situations where parties have inadvertently neglected to make an application for costs at the hearing: Roads and Traffic Authority (NSW) v Palmer (No 2) [2005] NSWCA 140. This is in accordance with the rationale behind the slip rule – to prevent injustice to parties. 11. Subsequently, the matter was re-listed on 6 May 2015 so that an application for costs could be made and a timetable was set for the parties to provide submissions on costs. 12. I also note that the issue of costs had been raised by Ms McNuff in submissions filed with the court on 7 January 2015, annexed and marked A to her affidavit dated 19 May 2015. Arguably, the issue remained a live one. 13. It is clear on the evidence that the first defendant incurred legal costs in defending the plaintiff's action. I am satisfied that the costs referred to in Annexure D of her affidavit ($3,977.91) were incurred and paid by her, and relate to the present matter. I am also satisfied that the professional costs referred to in Annexure C of her affidavit ($4,285.25) were incurred and paid by her, and relate to the present matter. I cannot be satisfied that the disbursements referred to in that invoice relate solely to this matter, as opposed to Family Court and other related litigation. 14. I am satisfied that there should be an order in favour of the first defendant that the plaintiff pay costs in the sum of $8265.16. 15. The further application made by the first defendant for enforcement of the costs order made in her favour in the Local Court is not one that can be dealt with by this Court. Enforcement is a matter for the first defendant to pursue. 16. In his written submissions the plaintiff seeks a number of orders. They are: 1. An order to set aside Ms McNuff's cost claim of $8,574.76; 2. An order to set aside Ms McNuff's cost claim of $15,000; 3. If orders noted at (1) and (2) above are not granted, 1. An order to have the entire ADVO appeal matter reheard in the Supreme Court of NSW on its full merits and evidence; 2. Leave to adduce further evidence in the matter; 3. Leave to adduce and rely upon witnesses in this matter; 4. Leave to subpoena any material relevant to these proceedings; and 5. Leave to file a cross claim against Ms McNuff. 1. An application for costs, dealt with on the papers with the consent of the parties, is not an opportunity to re-open and re-litigate the whole of the proceedings before the Court and before the Local Court. The "orders" sought by the plaintiff through the medium of his affidavit and submissions are inapposite. ORDERS 1. Costs in favour of the first defendant, in the sum of $8,265.16. ********** 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: 11 November 2015