FEATURE ARTICLE -
Issue 94: Dec 2023, Professional Conduct and Practice
In Nahata v Robertson (No 2) [2023] NSWSC 1297 (6 November 2023), Peden J ordered the unsuccessful plaintiffs’ solicitor, Mr Jeffrey Lee, pursuant to s 99 of the Civil Procedure Act 2005(NSW), to pay the whole of the costs for which the plaintiffs were liable to the defendants – those being ordered on an indemnity basis – on the footing that, in acting as solicitor and court advocate for the plaintiffs, he engaged in conduct without reasonable cause in so acting. In Queensland, Rule 690 of the Uniform Civil Procedure Rules 1999 (Qld)- on disjunctive touchstones of “delay, misconduct or negligence” – as well as the inherent supervisory jurisdiction of the court, operate to furnish the court with the same jurisdiction to award costs against a legal practitioner – barrister or solicitor – in apt circumstances. The court in Nahata wrote:
[1] On 15 June 2023, I delivered judgment in the substantive proceedings, dismissing the plaintiffs’ application for the grant of an easement pursuant to s 88K Conveyancing Act1919 (NSW): Nahata v Robertson [2023] NSWSC 642 (Nahata). This judgment concerns the costs of those proceedings and ought be read together with it.
[2] Mr Jeffrey Lee was the solicitor for the plaintiffs. He represented the plaintiffs at directions hearings and the two-day hearing. His clients sought a drainage easement over the defendants’ property; a drainage easement was required by the local council in a deferred development consent for the plaintiffs to develop their land. The plaintiffs also commenced proceedings for an extension of the easement over neighbouring properties. Those second proceedings would have been heard together with the substantive proceedings, but were resolved without oral hearing.
[3] When giving judgment I made the following direction:
I will hear the parties on costs. … [there will be] the allocation of a hearing date.
I am also giving notice to Mr Lee that at that hearing I will be giving him an opportunity to show cause why costs in relation to the proceedings generally should not be ordered against him personally pursuant to section 99 of the Civil Procedure Act.
I direct Mr Lee by 4pm today to inform his clients of the directions hearing next Tuesday and of the purpose of that directions hearing and to provide his clients with a copy of (1) the reasons for judgment (2) Practice Note SC Gen 5 and section 99 of the Civil Procedure Act.
…
[24] I do not accept that it was for the defendants to either seek to strike out the plaintiffs’ case, nor provide them with more detailed reasons why the easement would not be granted. Each of the defendants’ enquiries was met with Mr Lee’s response to the effect of:
(1) The plaintiffs’ claim was not defective;
(2) The s 88K test was “easy to pass”; and
(3) No survey or other evidence was required.
[25] It would never have been possible for the plaintiffs to obtain an order under s 88K without that specification of the easement: see Studholme v Rawson (2020) 102 NSWLR 490; [2020] NSWCA 76 at [44] –[47] (Studholme) (Basten JA with Bell P, as the Chief Justice then was, and Gleeson JA agreeing); Nahata at [51]–[57]. The plaintiffs, through Mr Lee, never considered such specification was necessary and it was never provided. As such, the whole claim was doomed to fail. There was no dispute that there was public utility in the plaintiffs obtaining a drainage easement, however, evidence was required as to why the particular easement sought was “reasonably necessary”, in light of the issues raised by the defendants and the other alternatives. Mr Lee produced no evidence.
Failure to engage with defendants
[26] The substantive judgment found that the plaintiffs had not satisfied the requirement in s 88K(2)(c) to make “all reasonable attempts … to obtain the easement or an easement having the same effect but have been unsuccessful”: Nahata at [58]–[106].
[27] The defendants submit that, rather than some attempts having been made, the plaintiffs made no genuine attempts to negotiate, let alone all reasonable attempts.
[28] Mr Lee submits that there is “no evidence that [further engagement] would have avoided the costs of the proceedings” and that engagement would have been futile, because the defendants did not want the easement over their land. I do not accept that is an accurate statement of the evidence. Further, that submission fails to grapple with the requirements of the subsection and the principles relevant to indemnity costs.
[29] The focus of the test for indemnity costs is whether the plaintiffs’ conduct of the proceedings was unreasonable.
[30] It is correct that the defendants were adamant that they did not want the only easement proposed by the plaintiffs. However, they had provided the plaintiffs with reasons for that objection, including by way of an engineer’s report. The defendants had not only proposed possible alternative easements, but also sought further information from the plaintiffs about issues raised by their expert. However, and critically, the plaintiffs never engaged with the expert’s concerns, nor attempted to negotiate with the defendants an “easement having the same effect”.
[31] Generally, there is an obligation on parties to comply with the overriding purpose of the CPA. However, in the context of a s 88K application, the plaintiffs were required to make “all” reasonable attempts, and they failed to make any attempts. In my view, such conduct in running the litigation was unreasonable.
[32] The defendants further complain of the attitude taken by the plaintiffs, through Mr Lee, in wasting time over the Court Book, which also required further Court appearances. Mr Lee submits his conduct did not “materially” add to the length of the hearing and costs. The plaintiffs were silent on that issue. As detailed below, I consider Mr Lee’s conduct in relation to the Court Books was unreasonable.
[33] I accept both grounds provided by the defendants as reasons to order indemnity costs. First, the application was doomed to fail in light of clear authority. The Court could not make an order in the form sought on the material provided. It was also unreasonable for the plaintiffs, through Mr Lee, not to provide the defendants with a survey of the easement at any point in the proceedings. Secondly, the plaintiffs, through Mr Lee, failed to negotiate with the defendants at all about an easement. This behaviour is contrary not only to the overriding purpose of the CPA, but also the elements a party ought satisfy when seeking a s 88K easement. For these reasons an indemnity costs order in the defendants’ favour is warranted in the circumstances.
Section 99 Civil Procedure Act 2005 (NSW)
[34] The importance of the supervisory jurisdiction of the Court over legal practitioners in general law was recently discussed in Beau Timothy John Hartnett (t/as Hartnett Lawyers) v Anthony Robert Bell as Executor of the Estate of the late Mabel Dawn Deakin-Bell [2023] NSWCA 244 by Bell CJ (Adamson JA and Griffiths AJA agreeing). There, the Chief Justice set out the principles at [123] and emphasised at [133] that “[the] highest standards of integrity are expected of members of the legal profession”. As part of the Court’s inherent supervisory jurisdiction, the Court may make a wasted costs order against a legal practitioner.
[35] The Court also has jurisdiction pursuant to s 99 concerning wasted costs caused by a legal practitioner. That section provides in part:
99 Liability of legal practitioner for unnecessary costs
(1) This section applies if it appears to the court that costs have been incurred—
(a) by the serious neglect, serious incompetence or serious misconduct of a legal practitioner, or
(b) improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible.
(2) After giving the legal practitioner a reasonable opportunity to be heard, the court may do any one or more of the following—
(a) it may, by order, disallow the whole or any part of the costs in the proceedings -…
(ii) in the case of a solicitor, as between the solicitor and client,
(b) it may, by order, direct the legal practitioner -…
(ii) in the case of a solicitor, to pay to the client the whole or any part of any costs that the client has been ordered to pay to any other person, whether or not the client has paid those costs,
(c) it may, by order, direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party.
[36] There was no dispute between the parties as to the operation of the section. In Re Felicity; FM v Secretary, Dept of Family and Community Services (No 4) [2015] NSWCA 19 (Re Felicity) at [12], [14]–[15], [21]–[24] Basten JA (with whom Emmett JA agreed and Ward JA, as the President then was, substantively agreed) stated (citations omitted):
12 Principles extraneous to the power-defining criteria now include the “overriding purpose” identified and explained in ss 56–60 of the Civil Procedure Act. Few cases have given explicit consideration to these statutory obligations in relation to the power to award costs against a practitioner; nevertheless, it is appropriate for the court to take a “robust and proactive approach” to case management, in accordance with the terms of s 58.
…
14 What can be derived from the case law is important, but needs no anxious analysis of authority. It is that to order costs against a lawyer requires a careful balancing of the public interest in maintaining and nurturing a legal profession which provides vigorous representation for litigants in court, uncompromised by a fear of personal sanctions for failure, against the need to maintain and nurture the obligation to provide independent advice to litigants and to give proper weight to the public interest in the efficient administration of justice. It is this latter element of the public interest which finds express recognition, in mandatory terms, in the overriding purpose provisions of the Civil Procedure Act.
15 The power invoked in the present case is that contained in s 99 of the Civil Procedure Act. It is a basic principle of statutory construction that that power must be read contextually, with explicit regard to ss 56–60 of the same Act and must be applied with explicit regard to those provisions in a specific factual context. Indeed, s 56(5) expressly empowers the court in exercising a discretion with respect to costs to take into account any failure to comply with the duty of a party or legal representative to assist the court to further the overriding purpose. Two aspects of s 99 provide a structure to the consideration of its operation. First, the elements identified in s 99(1) provide a gateway or condition precedent to the engagement of the power conferred by subs (2). The power itself is discretionary: the matters which constitute relevant preconditions to its engagement may also be relevant to the decision whether to make an available order against a legal practitioner, or to decline to do so. …
22 … it is convenient to consider both the conditions precedent and the discretionary factors by reference to the circumstances of the individual case. For example, different factors will be relevant where the absence of reasonable support for a proceeding derives from a misunderstanding of the law and a case where the absence of reasonable support derives from a lack of evidence. The kind of case may also be characterised by the stage at which it is contended that the proceedings reveal misconduct. This may well affect the extent of the order. For example, a proceeding commenced (or a defence proffered) on the basis of a misconception as to a basic element of law, may be misconceived from the outset so as to warrant an order that the practitioner responsible pay all of the costs of the successful party. By way of contrast, a case which was constructed around a viable legal premise, may be revealed to be hopeless when the evidence of a key witness fails to provide support. A failure to abandon the case at that stage may warrant an order against the practitioner for the wasted costs incurred from that point in time, but not from any earlier point.
23 The relevance of the obligations imposed on practitioners by s 56(4) of the Civil Procedure Act, and their place in the exercise of the discretion as to costs conferred by s 99 was identified in Kendirjian v Ayoub and in Kelly v Jowett. As explained by Pembroke J in Ireland v Retallack (No 2), what constitutes conduct of proceedings “without reasonable cause”, in circumstances for which the practitioner is responsible, is to be understood in the context of the obligations imposed on a solicitor under s 56(4), failure to comply with which may be taken into account in exercising a discretion with respect to costs, pursuant to s 56(5).
24 The various phrases used in s 99(1)(a) and (b) do not constitute discrete and independent concepts; nor are they to be treated as terms of art. There is no call to construe “serious misconduct” by reference to the term “unsatisfactory professional conduct”, as defined in the Legal Profession Act 2004 (NSW), s 496. The preferable course is that adopted in Ridehalgh v Horsefield, addressing the power of the court to order costs against a solicitor personally where such costs had been incurred by a party “as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative”. Bingham MR (delivering the judgment of the Court including Rose and Waite LJJ) stated:
‘Improper’ means what it has been understood to mean in this context for at least half a century. The adjective … covers any significant breach of a substantial duty imposed by a relevant code of professional conduct. But it is not in our judgment limited to that. Conduct which would be regarded as improper according to the consensus of professional (including judicial) opinion can be fairly stigmatised as such whether or not it violates the letter of a professional code.
‘Unreasonable’… aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive. But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner’s judgment, but it is not unreasonable.
The term ‘negligent’ was the most controversial of the three. It was argued that the Act of 1990, in this context as in others, used ‘negligent’ as a term of art involving the well known ingredients of duty, breach, causation and damage. Therefore, it was said, conduct cannot be regarded as negligent unless it involves an actionable breach of the legal representative’s duty to his own client, to whom alone a duty is owed. We reject this approach: (1) As already noted, the predecessor of the present Order 62 rule 11 made reference to ‘reasonable competence’. That expression does not invoke technical concepts of the law of negligence. It seems to us inconceivable that by changing the language Parliament intended to make it harder, rather than easier, for courts to make orders. (2) Since the applicant’s right to a wasted costs order against a legal representative depends on showing that the latter is in breach of his duty to the court it makes no sense to superimpose a requirement under this head (but not in the case of impropriety or unreasonableness) that he is also in breach of his duty to his client.
We cannot regard this as, in practical terms, a very live issue, since it requires some ingenuity to postulate a situation in which a legal representative causes the other side to incur unnecessary costs without at the same time running up unnecessary costs for his own side and so breaching the ordinary duty owed by a legal representative to his client. But for whatever importance it may have, we are clear that ‘negligent’ should be understood in an untechnical way to denote failure to act with the competence reasonably to be expected of ordinary members of the profession.
In adopting an untechnical approach to the meaning of negligence in this context, we would however wish firmly to discountenance any suggestion that an applicant for a wasted costs order under this head need prove anything less than he would have to prove in an action for negligence ….
We were invited to give the three adjectives (improper, unreasonable and negligent) specific, self-contained meanings, so as to avoid overlap between the three. We do not read these very familiar expressions in that way. Conduct which is unreasonable may also be improper, and conduct which is negligent will very frequently be (if it is not by definition) unreasonable. We do not think any sharp differentiation between these expressions is useful or necessary or intended.
[37] In Tuitupou v Davis [2019] NSWSC 160 at [61] –[65] Ward CJ in Eq (as the President then was) stated:
61 There is both inherent and statutory jurisdiction to make such an order if there is evidence that there has been a serious dereliction of duty, serious misconduct or gross negligence on the part of the legal practitioner (see Myers v Elman [1939] 4 All ER 484; [1940] AC 282 at 209 , 304 , 319 ; and G E Dal Pont, Lexis Nexis, Solicitor Manual, revised ed (at 16 January 2019) at [25,000.10]) — the former in the exercise of the Court’s supervisory jurisdiction over its officers; the latter pursuant to s 99(1) of the Civil Procedure Act.
62 The statutory jurisdiction is enlivened if it appears to the Court that costs have been incurred: by the serious neglect, serious incompetence or serious misconduct of a legal practitioner; or improperly, or without reasonable cause, in circumstances for which a legal practitioner is responsible. Section 99(2)(c) provides that, after giving the legal practitioner a reasonable opportunity to be heard, the Court may by order direct the legal practitioner to indemnify any party (other than the client) against costs payable by that party.
63 For a costs order against a legal practitioner to be made, a causal connection must be established between the client’s loss (whether the opposing client or the legal practitioner’s own client) and the legal practitioner’s serious dereliction of duty, serious misconduct or gross negligence. Mere negligence (or incompetence) is not sufficient to permit (or warrant) the making of such an order (see for example what was said by Drummond J in Re Bendeich (No 2) (1994) 53 FCR 422 (at 427) as cited in the Solicitor Manual at [25,005.10]):
Lawyers should know that, so long as they are not guilty of either professional misconduct or gross, as opposed to mere, negligence in the way they conduct their client’s case, they will not be exposed to any personal liability to pay either the costs of their own client or those of the opposing litigant.
64 As with costs orders generally, the purpose of such a costs order is not to punish the relevant legal practitioner nor to prove that he or she is guilty of professional misconduct; rather, such orders are primarily compensatory in nature.
65… The jurisdiction should be: exercised sparingly …; “with considerable caution”…“with care and discretion and only in clear cases”…; and “not with the benefit of hindsight”…
[38] A legal practitioner will not have acted improperly or unreasonably “simply because he or she acts for a party who pursues a claim or defence which is plainly doomed to fail”: Lemoto v Able Technical Pty Ltd (2005) 63 NSWLR 300; [2005] NSWCA 153 at [92(b)] (McColl JA, Hodgson and Ipp JJA agreeing). Further, at [92(d)]:
[The Court] must make full allowance for the exigencies of acting [as an advocate in court]; only when, with all allowances made, a legal practitioner’s conduct of court proceedings is quite plainly unjustifiable can it be appropriate to make a wasted costs order.
[39] The object of ordering costs against a lawyer is, in part, to protect clients from a legal practitioner’s serious dereliction of duty, or otherwise serious misconduct or gross negligence. Circumstances where a legal practitioner’s conduct has been found to meet the requisite level of seriousness, such that a wasted costs order ought be made includes where the practitioner has failed to fulfill procedural responsibility (leading to the incurrence of unnecessary costs), or where the legal practitioner has failed to give reasonable consideration to relevant law or facts related to the claim: see eg Dempster v McAndrew [2003] NSWSC 994 (Campbell J). See also relevant commentary in G E Dal Point, Law of Costs (5th Ed, 2021, LexisNexis).
[40] When considering the application of s 99, there is a three-stage approach as explained by Brereton JA in Rahman v Al-Maharmeh (No 2) [2021] NSWCA 151 at [22] (Meagher and Leeming JJA agreeing):
… asking first, has the legal representative of whom complaint is made acted improperly, unreasonably, or negligently; secondly, if so, did such conduct cause the applicant to incur unnecessary costs; and thirdly, if so, is it in all the circumstances just to order the legal representative to compensate the applicant for the whole or any part of the relevant costs.
[41] What is required is a careful application of legal principles to the particular facts before the Court.
[42] In the authorities referred to by the parties, wasted costs orders under s 99 have been made in circumstances where:
(1) extensive and poorly articulated allegations of fraud and conspiracy were made without evidence or explanation as to why the grounds were pressed (R v Muriniti [2018] NSWCA 98 , per Basten JA and Emmett AJA, Gleeson JA agreeing);
(2) “incomprehensible” and baseless oral submissions were made in support of amended grounds of appeal that were sought to be relied upon at hearing, without written submissions or any satisfactory explanation for the lateness of the application (Nadarajapillai v Naderasa (No 2) [2015] NSWCA 209 , per Emmett JA, McColl and Macfarlan JJA agreeing);
(3) there were serious issues in the evidence adduced, including false statements in affidavits and illegally obtained evidence, and allegations of improper conduct against the opposing solicitor made without evidence (Newell: Muriniti v De Costi (2018) 97 NSWLR 398; [2018] NSWCA 49 , per Beazley P, Gleeson and White JJA agreeing);
(4) notification alerts indicating that the opposing party was secretly monitoring the solicitors’ review of documents on an online platform were not disclosed (NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838 , per Ward CJ in Eq, as the President then was); and
(5) untenable and misconceived claims were made that demonstrated a misunderstanding of legal principle in a judicial review application were made (Re Felicity).
[43] Here, there are two categories of Mr Lee’s conduct that must be assessed:
(1) His conduct in relation to the preparation of some Court Books; and
(2) His conduct in the litigation generally.
…
Determination
[121] For the reasons above, I consider that the following conduct of Mr Lee was improper and delinquent, rather than merely incompetent and/or unreasonable and without reasonable explanation.
[122] Mr Lee refused to engage with the defendants’ lawyers about the appropriate form of Court Book, despite clear orders and further explanations from the Court and the other lawyers. His provision of the wasted Court Book to the Court was without the defendants’ consent and contrary to the Court’s orders, despite the defendants indicating they had prepared a compliant Court Book and the plaintiffs asking Mr Lee to consent to that Court Book.
[123] There is no explanation for Mr Lee’s failure to comply with the directions for a chronology, joint statement of real issues in dispute and to engage in limiting the objections to evidence and include those documents in the Court Book. He appears to have made a unilateral decision that such documents were “not needed”.
[124] Mr Lee’s decision not to have any person appear for the plaintiffs at the pre-trial directions on 17 May 2023 was based on his communicated decision that it was “not needed”, despite the purpose of that directions hearing to resolve the practical problem of his failure to comply with the Court’s orders.
[125] Mr Lee’s conduct at the beginning of the hearing on 23 May 2023, and in particular his responses to questions from the Court and his false statement to the Court about his difficulties in preparing a Court Book including pagination, have not been defended. However, there is only an apology for Mr Lee’s conduct on 24 May 2023.
[126] I consider that Mr Lee’s conduct had the effect of causing the defendants to incur unnecessary costs in communicating with him with a view to co-operating in compliance with the Court’s orders, and also the cost of additional Court appearances.
[127] I consider it just to order that Mr Lee pay the defendants’ costs incurred in connection with the wasted Court Books, as this is appropriate compensation in the circumstances. I note the plaintiffs instructed Mr Lee to agree with the defendants on the issue of the Court Books, which would have saved some costs, and Mr Lee ignored that instruction. I accept Mr Lee’s statement to the Court that he will not charge his clients for these wasted costs.
Other conduct of Mr Lee during hearing
…
[166] Fifthly, it is alleged that Mr Lee’s conduct of the hearing itself demonstrated serious incompetence and/or serious misconduct.
[167] I accept that various aspects of Mr Lee’s conduct during the trial wasted time and was not of assistance to his clients or the Court. For example, contrary to the Court’s pre-trial directions, Mr Lee had not engaged with the defendants’ objections to his clients’ evidence. When given the opportunity to deal with each of the objections, Mr Lee did not engage with the Evidence Act 1995 (NSW) in any way. For example:
HER HONOUR: … He then goes into, in effect, expert evidence talking about the way these things will be carried out. Does he have any expertise?
LEE: Your Honour, my client, Himanshu Nahata is very knowledgeable about…
HER HONOUR: Does he have any expertise to satisfy section 79 of the Evidence Act?
LEE: No, your Honour.
…
HER HONOUR: …Mr Lee, why don’t you have a look at all of those paragraphs? It’s not saying you won’t be able to say these things in submissions. But is it evidence that complies with the Evidence Act?
LEE: Yes, I fully understand your Honour’s rulings, and I was trying to make — this is actually a response to the affidavit of Mr Robertson, as I recall, and I’m trying to — it’s a reply. So, I was trying to convince my friend that section 88K works this way. I know it sounds like a submission. I realise that, your Honour.
…
HER HONOUR: Yes. How can you have that, Mr Lee?
LEE: Again I raised it to try to convince my friend that direction tooling was a method and I do not know how else to inform my friend, so we did this because my client, Himanshu Nahata actually met with a directional drilling technology person at the site, and the directional drilling technology person, informed my client that it is possible to do it –
HER HONOUR: But then you accept it’s hearsay?
LEE: — I did not get directional drilling technology person to give me an affidavit, no, your Honour. … Once again, your Honour. I apologise for putting it as in evidence… My objective was to once again inform my friend what section 88K is about.
[168] Further, Mr Lee was often discourteous and did not seem to understand how an officer of the Court ought to behave. A few examples are:
(1) At the view of the properties, he sought to have opinions of Court staff concerning their visual assessment of the height of trees recorded on transcript to support a submission he wished to make.
(2) At the commencement of his submissions, he threw papers, such that an adjournment was required so he could compose himself.
(3) He consistently interrupted, and threatened appeals, even before a ruling was made.
[169] I do not accept Ms Keesing’s submission that the “regrettable” exchanges with the Court did not add to the length of the hearing or the costs incurred. Had Mr Lee complied with the orders to confer on objections, considered the application of the rules of evidence and not been argumentative and interrupted, time would have been saved. While this conduct alone is insufficient to make an order under s 99, it remains a relevant consideration to the exercise of the costs discretion.
Determination
[170] Taking all the matters into account, I consider that there is no reasonable explanation for Mr Lee’s conduct other than serious incompetence, or serious misconduct or neglect of his professional obligations, that is beyond mere incompetence. I have given full allowance for the exigencies of the litigious environment in which Mr Lee was acting, having regard to his representations that he was a lawyer of over 30 years’ experience, and no barrister was needed for the hearing. Mr Lee’s conduct was not a mere mistake or error of judgment. Instead, I consider Mr Lee’s conduct in question involves a failure by him “to fulfil [his] duty to aid in promoting in [his] own sphere the cause of justice”: NHB Enterprises Pty Ltd v Corry (No 5) [2020] NSWSC 1838 at [574] (Ward CJ in Eq, as the President then was).
[171] Further, this is a case where the proceedings were commenced on the basis of Mr Lee’s misconception as to a basic element of law, namely, what an applicant must prove in a s 88K case. While bringing such an application for an easement was not of itself misconceived, because the plaintiffs required an easement to develop their property, Mr Lee never considered it necessary to bring forward to the Court any of the essential evidence for the application to be successful; instead, he was adamant that the plaintiffs’ deferred development consent was all that was required and the defendants’ refusal to agree to the particular easement sought absolved the plaintiffs from engaging with the defendants’ legitimate concerns. Mr Lee did not revise his attitude at any time, despite the correspondence and offers made by the defendants’ lawyers and despite questions from his own clients. That dogged and fundamentally misconceived attitude demonstrates “serious dereliction of duty, serious misconduct or gross negligence”.
[172] This is not a case where some evidence or witness failed to provide support for the case, such that a different outcome might have been possible. Instead, here, there was no evidence, upon which the Court could legitimately exercise the discretion to order an easement over the defendants’ land, despite the public utility in them developing their land and having some form of easement for stormwater drainage. I consider that Mr Lee’s conduct caused the costs of the whole proceedings to be wasted. I consider it just to order that Mr Lee compensate the plaintiffs for the wasted costs.
Other non-compliance with Court orders
[173] At the costs hearing, Ms Keesing was asked whether Mr Lee had complied with the Court’s direction given on 15 June 2023 when judgment was delivered, to notify the plaintiffs of the Court’s orders concerning the future determination of costs and provide them with a copy of the judgment, a copy of NSW Supreme Court Practice Note Eq 5 and s 99. I ordered Mr Lee to provide an affidavit to the Court as to whether he had complied with that direction. He provided an affidavit within the timeframe ordered.
[174] Mr Lee’s affidavit is to the effect that he did not comply with the 15 June 2023 direction. He affirms that he:
(1) attended Court when judgment was delivered with his “assistant”;
(2) did not take notes;
(3) did not hear the direction; and
(4) did not check the transcript.
[175] That day he sent a reporting email to his clients. Only after the plaintiffs asked for a copy of the judgment, he provided one to them.
[176] On 28 July 2023, Mr Lee was provided with the transcript from 15 June 2023, but did not comply with the direction.
[177] Mr Lee apologises in his affidavit for not complying with that direction.
[178] While this failure by Mr Lee to comply with a Court order is not relevant to the issue of the costs of the proceedings, it does not reflect well on Mr Lee that he failed to comply with another Court direction to provide his client with that important information. The failure to take notes or listen to the Court’s direction has not been explained. A solicitor and officer of the Court ought to do better.
Orders
[179] For the reasons identified above, the appropriate orders are:
(1) Plaintiffs to pay the defendants’ costs on an indemnity basis, as agreed or assessed.
(2) Mr Jeffrey Lee, solicitor, to pay the plaintiffs the whole of the costs, for which the plaintiffs are liable, pursuant to s 99(2)(b)(ii) Civil Procedure Act 2005 (NSW).
(emphasis added)
