Supreme Court New South Wales

• Medium Neutral Citation: Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd [2013] NSWSC 878
• Hearing dates: 28 June 2013
• Decision date: 28 June 2013
• Jurisdiction: Equity Division - Technology and Construction List
• Before: Stevenson J

Decision

Cause shown

• Catchwords: PROCEDURE - duty to opponent - communications with the Court - Bar Rule 53 - Solicitors Rule 23
• Legislation Cited: Solicitors Rules; Bar Rules
• Category: Procedural and other rulings
• Parties: Robert Hamilton Hill as Trustee of the Ashmore Superannuation Benefit Fund (first plaintiff); Christine Hill as Trustee for the Ashmore Superannuation Benefit Fund (second plaintiff); Halo Architectural Design Services Pty Ltd (first defendant); Alan Stapleton (second defendant); RICS Australasia Pty Ltd (third defendant)
• Representation: Counsel: R Cheney SC (for the solicitor); T O Bland (first defendant); Solicitors: Moray & Agnew (plaintiffs); Court Solicitors & Barristers (first defendant)
• File Number(s): SC 2013/83771
• Publication restriction: Nil

EX TemPORE Judgment (REVISED)

1 The hearing in this matter took place on 26 June 2013. I reserved judgment on that day. At the time that I reserved judgment, I indicated to the parties that, as I am going on four weeks leave, I hoped to deliver my reasons by today.

2 Yesterday, at approximately 11.40am, my Associate notified the parties that judgment would be handed down today.

3 At about 4.10pm, my Associate received from the solicitor for the plaintiffs an email, which was copied to the first defendant's solicitor, and which stated:

"We give notice that in the event of the plaintiff being successful... the plaintiff wishes to apply for an order that the first defendant pay their costs on an indemnity basis. An outline of the plaintiffs' submissions on costs is attached."

4 There was attached a document called "Plaintiff's Costs Submissions". That document drew attention to some correspondence passing between the solicitors for the parties prior to the commencement of the proceedings, and developed arguments, which re-agitated and elaborated on some submissions made at the hearing, as to why a special order for costs should be made should the plaintiff be successful. I did not take those submissions into account in the formulation of my judgment, the terms of which had been finalised when the further submissions were received.

5 I had made no direction for further submissions. The plaintiffs' solicitor did not seek or obtain the consent of the first defendant's solicitors before forwarding the submissions to my Associate.

6 It is quite inappropriate for a practitioner to behave in this way. If a party achieves success, and wishes to rely on an offer or communication made before the commencement of proceedings, or indeed any other matter, to seek a special costs order, the time to make that application is after judgment is given.

7 In my opinion, it is not appropriate to make submissions concerning costs in anticipation of a successful result.

8 Further, art 56 of r 23 of the Solicitors Rules, which is in the same terms as Bar Rule 53, is in the following terms:

"A practitioner must not, outside an ex parte application or a hearing of which the opponent has had proper notice, communicate in the opponent's absence with the court concerning any matter of substance in connexion with current proceedings unless:

(a) the court has first communicated with the practitioner in such a way as to require the practitioner to respond to the court; or

(b) the opponent has consented beforehand to the practitioner dealing with the court in a specific manner notified to the opponent by the practitioner."

9 These rules reflect the obvious proposition that, otherwise than is set out in the rules, practitioners should not make unsolicited communications to the Court. Practitioners should not have to be reminded by the Court of these matters.

10 When the matter was called for judgment this morning, the solicitor for the plaintiffs appeared to take the judgment. Once judgment was delivered, she sought to make an application for a special costs order. I drew her attention to r 23, art 56. I told the solicitor I proposed to give her an opportunity to show cause why I should not refer this matter to the Law Society. So that the solicitor could consider her position, the matter was stood in the list.

11 The solicitor now appears by Senior Counsel who has read an affidavit sworn by the solicitor. In that affidavit, the solicitor apologised to the Court and to the first defendant's solicitor for her conduct. In the affidavit, she explained that her motivation in forwarding the submissions to my Associate was to foreshadow to the first defendant's solicitor, and to the Court, the plaintiffs' intention to make an application for a special costs order in the event they were successful. She said she was mindful of my observation that my staff and I are about to go on leave and, because she thought the time available for argument might be limited, wanted to give as much notice as possible of the plaintiffs' intention. She said she did not intend to influence my judgment or, indeed, to have me read the submissions before judgment was delivered.

12 I accept the explanation the solicitor has given and I accept the apology that she has given to the Court. I note the apology she has given to the first defendant.

13 In those circumstances, I do not consider it necessary for me to take the matter any further.

14 I will, however, publish these reasons to remind practitioners of their obligations when communicating with the Court and in the hope that these obligations become better understood.

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Decision last updated: 02 July 2013