Supreme Court New South Wales

• Medium Neutral Citation: Reid v Wright [2014] NSWSC 904
• Hearing dates: 17 June 2014
• Decision date: 04 July 2014
• Before: Harrison J

Decision

Order the defendant to pay the plaintiff's costs of her motion filed 12 May 2014, assessed in the sum of $600.

• Catchwords: COSTS - request for transcription of solicitor's file notes - delay in complying - where no contest that transcription was necessary
• Legislation Cited: Civil Procedure Act 2005
• Cases Cited: Reid v Wright [2014] NSWSC 795
• Category: Costs
• Parties: Christine Reid (Plaintiff); Diane Wright t/a D M Wright and Associates Solicitors (Defendant)
• Representation: Counsel: O Jones (Plaintiff); B Phillips (Defendant); Solicitors: Greg Walsh & Co Solicitors (Plaintiff); DLA Piper (Defendant)
• File Number(s): 2013/234613
• Publication restriction: Nil

Judgment

1 HIS HONOUR: Ms Reid has commenced these proceedings against Ms Wright claiming damages for negligence in the course of acting as her solicitor with respect to a family law dispute. Ms Reid filed a notice of motion on 12 May 2014 seeking orders that Ms Wright transcribe her file notes, apparently prepared in the course of performing that retainer.

2 On 12 June 2014, Ms Reid sought to move upon her motion when the matter was before me for another purpose, with which I dealt in reasons for judgment delivered on 17 June 2014: see Reid v Wright [2014] NSWSC 795. I had earlier expressed the hope that the issue of transcription of the file notes could be resolved between the parties without orders from me. I was informed on 17 June 2014 that the parties had in fact resolved the issue, but not the question of costs. These reasons deal with that issue.

3 Ms Reid submits that Ms Wright had no basis upon which to oppose the orders sought for transcription of the file notes. She contended that the filing of a motion and any court time associated with prosecuting it should never have been necessary.

4 The affidavit of Angela Skocic sworn 19 June 2014 reveals that Ms Reid issued a subpoena for the production of Ms Wright's file on 1 November 2013. Ms Wright produced six volumes of documents in answer to the subpoena on 2 February 2014. That material included the less than fully legible file notes. On 2 April 2014 Ms Reid asked for the file notes to be transcribed. No reply to her solicitor's letter was received. The notice of motion was then filed on 12 May 2014. Ms Wright indicated that the 2 April 2014 letter had been overlooked, but still did not provide the transcription or indicate that it would be provided. Ms Reid reiterated the need for the transcription by letter dated 11 June 2014. Ms Wright ultimately agreed to transcribe the file notes at 4.17 pm on 16 June 2014, but did not agree to pay the associated costs of the motion. Ms Reid indicated immediately thereafter that she would seek such costs.

5 Robert Crittenden swore an affidavit on 24 June 2014 in response. Mr Crittenden suggested that Ms Reid did not give Ms Wright sufficient time to respond to the request for transcription of the file notes before filing the notice of motion. He said that it was premature and unnecessary.

6 Ms Reid's motion was in fact listed for 13 June 2014. It was clearly overtaken by the events on 12 June 2014 before me. Ms Wright contended that she had not acted unreasonably in response to Ms Reid's request. That was said to be because Ms Wright never resisted transcribing the file notes, either before or after the motion was filed. On the contrary, Ms Wright agreed to do so within three business days of Ms Reid identifying the file notes that she wanted transcribed.

7 Ms Wright contends that I could not be satisfied that Ms Reid was almost certain to have succeeded in relation to her motion if it had proceeded to be heard on the merits. That is because she had never in terms refused to provide a transcription and no adverse costs order would be made in the absence of such a refusal. Alternatively, even if Ms Wright had refused to transcribe the notes, they are not all illegible and Ms Reid should have nominated which parts she could not decipher.

8 This dispute is bordering upon the unseemly. A moment's reflection by both parties should have led to the resolution of this tedious contest without any recourse to the Court. The Civil Procedure Act 2005 says as much. On balance, however, Ms Reid was entitled to receive a legible copy of Ms Wright's file notes sooner or later, which is an inevitable conclusion howsoever one looks at it.

9 I consider that Ms Wright should pay the costs of Ms Reid's motion dated 12 May 2014. I assess those costs in the sum of $600.

10 It is to be hoped that this litigation proceeds more smoothly hereafter once the real issues that should be important to the parties have been identified.

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Decision last updated: 04 July 2014