Supreme Court New South Wales Medium Neutral Citation: Le v Brydens Lawyers Pty Limited (No 2) [2017] NSWSC 445 Hearing dates: On the papers Date of orders: 21 April 2017 Decision date: 21 April 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Brydens to pay Mr Le's costs of the proceedings on an indemnity basis. Catchwords: PRODEDURE - Costs - Departing from the general rule – application for an indemnity costs order – order granted Legislation Cited: Civil Procedure Act 2005 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Anderson v Edwards [2009] NSWCA 375 Le v Brydens Lawyers Pty Limited [2017] NSWSC 180 Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087 Firth v Yang [2014] NSWCA 92 Viro v The Queen (1978) 141 CLR 88 Category: Costs Parties: Tan Thanh Le (Plaintiff) Brydens Lawyers Pty Limited ACN 160 267 818 trading as Brydens Compensation Lawyers (Defendant) Representation: Counsel: Mr W Ward (Plaintiff) Mr R Sheldon SC (Defendant) Solicitors: Gajic Lawyers (Plaintiff) Brydens Lawyers Pty Limited (Defendant) File Number(s): 2016/199623 Publication restriction: None Judgment 1. I gave judgment in this matter in Le v Brydens Lawyers Pty Limited [2017] NSWSC 180. Mr Le now seeks an order for indemnity costs. 2. In the earlier judgment I discussed the circumstances in which I concluded that the Court's discretion had to be exercised in favour of Mr Le, in granting him leave to pursue an application, out of time, for the assessment of Brydens' costs of acting for him in proceedings successfully brought in the District Court. 3. I also considered that Garling J's conclusions in Mackowiak v Hagipantelis; Bickhoff v Hagipantelis [2015] NSWSC 1087 as to the proper construction of the Legal Profession Act 2004 (NSW) regarding the provision of an itemised bill, were correct. Further, I also concluded that given that Mr Hagipantelis, the principal of Brydens, was bound by that decision, had not challenged it and had also dealt with Mr Le's request for an itemised bill, Brydens ought to have acted in accordance with his Honour's conclusions, rather than refusing to provide Mr Le with an itemised bill. Having failed to do so, Brydens was ordered to provide that bill, it being in breach of its obligations under the Legal Profession Act. 4. The usual order as to costs under the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) is that they follow the event, on the basis that the successful party will recover costs as agreed or assessed. There is no issue, however, that the Court also has the discretion to order indemnity costs. Whether that discretion would be exercised in this case was in issue. 5. In resisting Mr Le's application for an indemnity costs order, Brydens relied on: * Mr Le's need to seek an extension of time to pursue his application for assessment of its costs, with the result that he would have incurred costs in any event, because of his dilatory conduct; * Mr Le had filed evidence only at the last minute to explain how the affidavit he had sworn had been interpreted to him, before he had executed it; * That evidence was vital to the conclusion that the extension of time he sought should be granted, given what the affidavit disclosed as to his apparent sophisticated understanding of English; * Until the interpreter's evidence was led, his claimed lack of understanding of his rights was at odds with his apparent command of English; * Brydens had not been a party to Garling J's judgment Mackowiak and could not have challenged that decision. Accordingly, it had exercised its right to challenge his Honour's interpretation of the Legal Profession Act 2004 in the only way open to it, by submitting that it was not a binding precedent; * Brydens was entitled to rely on the Court of Appeal's earlier obiter dicta in Firth v Yang [2014] NSWCA 92 to advance its case as to its obligations to provide an itemised bill. That reliance could not provide a basis for an adverse costs order against it; * As a matter of precedent Mackowiak did not decide the proper construction of s 332A as between anyone other than the parties to those proceedings: Viro v The Queen (1978) 141 CLR 88. 1. In the result, Brydens submitted that there should be no order in Mr Le's favour on the costs of his application for extension of time and given the judgment in Firth v Yang, Mr Le should not otherwise be entitled to an order on other than the usual basis. 2. Despite these submissions, I am satisfied that Mr Le is entitled to have a costs order made in his favour in relation to all of the matters over which the parties joined issue, on an indemnity basis. 3. Brydens having acted for Mr Le in the District Court proceedings, there can have been no question, on its part, as to Mr Le's limited command of English, which it finally did not challenge in these proceedings, not requiring him for cross-examination. Nor did it challenge, in cross-examination, the interpreter's evidence as to how it was that he came to swear his affidavit. That was what Mr Le relied on to support his application for leave to assess Brydens' costs out of time, together with the nature of the advice it had given him, as to his right to have those costs assessed. Similar issues arose in Mackowiak as to the nature of the advice which had been given to those clients. 4. The approach which Brydens pursued in these proceedings in the circumstances, I consider, was entirely cynical. 5. Brydens' knowledge of the fact of Mr Le's limited command of English and the circumstances to which he deposed, in support of his application for leave to have its costs assessed out of time, ought to have led it to consent to that application. Its approach was inconsistent with the obligations imposed on parties by s 56 of the Civil Procedure Act 2005, namely, to assist the Court in furthering the overriding purpose there specified, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings. 6. Further, not only was its failure to provide Mr Le with an itemised bill inconsistent with its obligations under the Legal Profession Act 2004, its resistance of the order sought involved the pursuit of hopeless technical points, notwithstanding the earlier obiter dicta in Firth v Yang on which its case depended. That was a judgment delivered before Mackowiak was decided. 7. In Anderson v Edwards [2009] NSWCA 375, in issue was whether an indemnity costs order should be made against solicitors in a negligence action. The Court of Appeal held at [35]: "The appeal was hopeless and when one puts that together with, what I believe is, a matter of public interest, that when the public suffers at the hands of solicitors, it is not in the public's interest that technical points should be taken, especially hopeless points, in the hope that the case will settle and the clients not receive what they should have received from the profession in this State." 1. These circumstances are not dissimilar. In fact they favour even more strongly the conclusion that an indemnity order should be made in favour of Mr Le, given that what was in issue in this case. 2. The arguments Brydens advanced had already been rejected in Mackowiak. Given the nature of the fiduciary relationship which exists between a solicitor and a client, Brydens should not have advanced again the submissions which its principal, Mr Hagipantelis, had already failed to establish in Mackowiak. That case was not challenged on appeal, as it ought to have been, if he and Brydens proposed to deal with other of their clients as they had dealt with the plaintiffs in Mackowiak. 3. The result of Brydens' failures to abide by its statutory obligations was that Mr Le was unnecessarily put to the costs which he has incurred in these proceedings. The course pursued, it seems to me, was quite contrary to what the public interest required in the circumstances and like in Anderson v Edwards, must lead to an indemnity costs order being made in favour of Mr Le. Orders 1. For these reasons, I order that Brydens pay Mr Le's costs of these proceedings on an indemnity basis. ********** 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: 21 April 2017