Holden v Trustees of Sisters of Mercy (North Sydney) Property Trust [2015] NSWSC 1359 (29 September 2015)

Last Updated: 29 September 2015

Supreme Court New South Wales

Case Name:	Holden v Trustees of Sisters of Mercy (North Sydney) Property Trust
Medium Neutral Citation:	[2015] NSWSC 1359
Hearing Date(s):	6 August 2015
Date of Orders:	29 September 2015
Decision Date:	29 September 2015
Jurisdiction:	Common Law
Before:	RS Hulme AJ
Decision:	1. I disallow as between Michael Joseph and the Seventh Defendant’s solicitors the whole of the costs of and incidental to Mr Joseph’s drafting of the request for particulars dated 28 November 2014; 2. I disallow as between Michael Joseph and the Seventh Defendant’s solicitors 50% of the costs of and incidental to Mr Joseph’s preparation for and appearing on the hearing of the Notice of Motion filed on 15 January 2015. 3 Order Mr Joseph to refund to such solicitors any fees paid to him for such drafting, preparation or appearance and which have been disallowed. 4. Order Mr Joseph to file an affidavit within 28 days of these orders showing all of the said costs and that he has borne the costs disallowed and/or refunded such costs to the solicitors.
Catchwords:	PRACTICE AND PROCEDURE – request for particulars – unduly burdensome – abuse of process – no obligation to answer questions – insufficient particulars in statement of claim – liberty to amend
Legislation Cited:	Adoption of Children Act 1965 (NSW) Civil Procedure Act 2005 (NSW)
Cases Cited:	Procedural and other rulings
Category:	Costs
Parties:	Lynda Holden (Plaintiff) Trustees of the Sisters of Mercy (North Sydney) Property Trust (Defendant)
Representation:	Counsel: M Joseph (Seventh Defendant)
File Number(s):	2014/00308587
Publication Restriction:	No

JUDGMENT

1. On 15 May last I delivered judgment in this matter in respect of a notice of motion filed by the Seventh Defendant seeking that the Plaintiff provide answers to a request for particulars. In the course of those reasons I expressed the view that the request for particulars was an abuse of process and raised the question whether Mr Michael Joseph, the senior counsel who had drafted the request on behalf of the Seventh Defendant, should be responsible for the costs associated with or consequent on that request.
2. In my judgment of 15 May, I set out my reasons for concluding that the request was an abuse of process. They may be regarded as incorporated in these reasons and it is not necessary that I repeat them. However, because of the discretion which exists under s 99(2) of the Civil Procedure Act 2005 I should record my view that the abuse was obvious and gross. In so concluding I should acknowledge that I did not attempt to deal with the totality of the request. In an affidavit of 31 July last Mr Joseph submitted that the specific aspects of the request to which I directed attention in [19]–[37] of those reason were not examples of the balance of the request. I disagree. In my view they were a fair sample and even if they were not, their egregious nature meant that neither those acting for the Plaintiff nor I as the judge were obliged to go further and deal specifically with the hundreds of other questions and sub-questions that were included in the request.
3. In opposition to the making of any order against him, Mr Joseph said in his affidavit that he had relied in part on his experienced instructing solicitor whose professional judgement it was to send the request for particulars as drafted by Mr Joseph. Given the standing of senior counsel the suggestion is surprising. Having regard to the roles and responsibilities generally of those lawyers involved in litigation it would be a rare situation indeed where a solicitor, however experienced, would canvass the appropriateness of a request for particulars drafted by experienced, let alone experienced senior counsel. In any event, the fact that the request as drafted was sent, provides no excuse for the drafting of the request in the form it took.
4. Reliance was also placed on the fact that neither the Plaintiff nor the Seventh Defendant has sought costs against him and that, although they had originally declined to answer the request on the ground that it was oppressive, the legal advisers for the Plaintiff had ultimately answered the request or agreed to do so when in possession of more information after discovery. The latter circumstance, was said to be powerful evidence that the request was considered by other legal practitioners to be legally justified.
5. The reliance on the final response to the request omitted reference to some 50 responses to the effect “this is not a proper request for particulars” or “this is a matter of evidence” – but putting that aside, there are a number of reasons why those mentioned in the immediately preceding paragraph may have taken the stances that they have, and even if those stances do provide some evidence in Mr Joseph’s favour, when compared with my own experience and knowledge of the subject, I find the matters relied on unconvincing. The matters referred to in paragraphs [19]–[37] of my principal reasons are far more compelling.
6. Challenges were also made to a number of remarks made by me in the course of those reasons. The challenges go no significant distance toward showing that the request was not an abuse of process and I do not regard it as necessary to respond to these challenges seriatim. To do so would involve further detailed reference to many of the questions asked in the request for particulars and repetition of what is contained in my principal reasons. However, by way of example I will respond to two of the challenges. They were expressed in terms:-

18c The court considered that it was inconceivable that the Plaintiff or her legal advisors would have any significant information as to the internal events of the within Seventh and Eighth Defendant. [J27]. This is mere speculation, and untested or alleged by the Plaintiff. What the Defendant did know, was that the legal advisors for the Plaintiff has commenced numerous similar claims, and has made allegations in the statement of claim, justifying the Defendant’s request. On the other hand, the Defendant, contrary to the finding at [J28] had on my instructions no information as to the “internal workings” that give rise to these events.
18d Contrary to findings [1 at J[30-31]] the Court failed to accept (on my instructions) that the Seventh Defendant had no care control of the statutory adoption agency. Thus the requests did not emanate from the assumption that the Seventh Defendant was the employer of the Principal Officer. Such was submitted by the Defendant [23-26] and not challenged by the Plaintiff in its submissions.

7. What I had said in [27] to [31] was:-

27 Questions 3 to 23 must be considered against the background, firstly that it is inconceivable that the Plaintiff or her legal advisers could have any significant knowledge of all of the information sought relating to internal events within the Seventh to Eighth Defendants’ activities and operations some 45 or more years ago. Of course, knowledge on the part of a plaintiff is not the only test. A defendant is entitled to fair notice of the case a plaintiff proposes to advance but that does not entitle a defendant to ask and insist on answers to questions which, at the time they are asked, are pointless.
28 The relevant Defendants would be in an infinitely better position than the Plaintiff to know the answers to the questions 3 to 23 and even if they did not, could still adequately plead to the allegations in paragraphs 16 and 19.
29 A third very relevant matter is that in the way litigation is currently conducted a plaintiff is almost always required appreciably before trial to apprise a defendant of the plaintiff’s case in chief by written statements and documents. If the Plaintiff can make out the case pleaded in paragraphs 16 and 19, such documents would fairly apprise the Defendants of it.
30 A fourth consideration, and one which on its own, makes questions 3 to 23 as a group oppressive lies in the terms of s 12(5) of the Adoption of Children Act. I have set out some of the allegations in the statement of claim to the effect that the Seventh Defendant conducted the Catholic Adoption Agency and that this was registered as a private adoption agency under the Adoption of Children Act which I have quoted. Section 12(5) of the Act provides:

Anything done by the principal officer of a private adoption agency, or with his approval, shall, for the purposes of this Part and any regulations relating to private adoption agencies but without prejudice to any liability of the principal officer, be deemed to be done by the private adoption agency.

31 True it is that paragraph 23 of the statement of claim uses the terms “employee” and “agent” when in light of s 12(5) it probably need not have but that did not justify questions 3 to 23.

8. I had earlier observed:-

2 The proceedings were commenced by statement of claim filed on 21 October 2014 against eight Defendants. The substance of the Plaintiff’s complaint is that in or about October or December 1970, a child she gave birth to at that time was removed from her, adopted, and removed from Australia and that any consent she purportedly gave to such adoption was procured by forgery misrepresentation, duress, undue influence and improper means. (The statement of claim is not entirely consistent in its reference to these matters.)
4 The imposition on her is said to have occurred while she was in the “Waitara Home” in and after August 1970, in the Mater Misericordiae Hospital in or about September or December 1970 and thereafter when she had returned to the Waitara Home.
7 It is alleged that The Seventh Defendant, the Trustees of the Society St Vincent de Paul (NSW) National Council of Australia, conducted the Catholic Adoption Agency, that that agency was registered as a private adoption agency within the meaning of the Adoption of Children Act 1965 (NSW) and that statutory obligations imposed on the agency were imposed upon its principal officer.
8 The Eighth Defendant is said to have been the principal officer at all material times and an employee or agent of the Agency.
13 The statement of claim in paragraph 46 further alleges that the Plaintiff’s purported consent to the adoption was obtained by “duress, undue influence and improper means” by reason that the First to Eighth Defendants’ servants or agents:
(i) knew or ought to have known that the Plaintiff did not wish to surrender her child for adoption;
(ii) knew or ought to have known that the Plaintiff was not in a fit or proper medical or psychological condition to give informed consent;
(iii) directed the Plaintiff to sign the instrument of consent without allowing her to read it;
(iv) failed to explain the instrument of consent or provide a copy of it to her;
(v) misled the Plaintiff as to the effect of the instrument of consent;
(vi) failed to explain to the Plaintiff how to revoke her consent; and
(vii) misled the Plaintiff as to the nature of her right to revoke her consent.

9. In the Statement of Claim the Plaintiff had alleged that in August 1970 she had been admitted to the Home as an unmarried mother, where she was continually told that “as an 18 year old unwed Aboriginal girl who had no visible means of support she ticked all the boxes for having her baby removed at birth”. It was also alleged that

the Seventh Defendant, the Trustees of the Society of St Vincent de Paul conducted and had the care, control and management of the Catholic Adoption Agency;

the statutory obligations imposed on the Agency by the Adoption of Children Act were imposed upon the “Principal Officer” of the Agency;

the “principal Officer was an employee or agent of the Seventh Defendant for the purposes of the Seventh Defendant operating as the Agency and the Seventh Defendant was vicariously liable for the “Principal; Officer’s acts;

the Eighth Defendant was the “Principal Officer”.

10. In evidence on the hearing of the Notice of Motion, there was correspondence on the letterhead of the “Catholic Adoption Agency (NSW)” to the Director of the Child Welfare Department. The correspondence recorded that the Agency was “A Special Work of the St. Vincent de Paul Society”. There was also an extract from the Government Gazette recording that the Catholic Adoption Agency (New South Wales) had been approved as a Private Adoption Agency under the Adoption of Children Act, 1965 (as amended). When this evidence was tendered no point was taken that the Catholic Adoption Agency (New South Wales) was not the “Catholic Adoption Agency” referred to in the Statement of Claim.
11. There was no evidence of the matters asserted in paragraph 18c of Mr Joseph’s affidavit commencing “What the Defendant did know”.
12. Questions 3 to 23 were in terms:

Q3 Identify each fact and circumstance of the Seventh Defendant, their servants or agents for which it is alleged it conducted the Catholic Adoption Agency (CAA)?
Q4 When did each fact/circumstance occur?
Q5 Who is it said so acted?
Q6 What position or role did the person who so acted hold at the time of the act?
As to paragraph 19 of the SOC [which alleged that the “the ‘Principal Officer” was an employee or agent of the Seventh Defendant]
Q7 What are the material facts upon which it is alleged the Eighth Defendant was an employee of the Seventh Defendant?
Q8 Who on behalf of the Seventh Defendant entered into a contract of employment with the Eighth Defendant?
Q9 Who are the parties to the contract?
Q10 When was that contract entered into?
Q11 Identify the terms of the contract for employment.
Q12 Who on behalf of the Seventh Defendant, its servants or agents supervised and/or controlled and/or directed the Eighth Defendant’s conduct?
Q13 What directions if any were given by the seventh defendants its servants or agents to the eight [sic] defendant in respect to adoption of children by the CAA?
Q14 Who gave those directions?
Q15 When were they given?
Q16 What are the material facts upon which it is alleged the eighth defendant was the agent of the seventh defendant?
Q17 What was the scope of the agency?
Q18 What was the course of the agency?
Q19 What powers/acts of the Seventh Defendant its servants or agents did it permit the Eighth Defendant to exercise? What are the facts and circumstances relied upon as to how those powers were provided? Who on behalf of the Eighth Defendant so delegated such powers/acts? When was this done?
What are the facts and circumstances by which it is alleged the Seventh Defendant its servants or agents controlled the exercise of such powers by the Eight [sic] Defendant? Who on behalf of the Eight [sic] Defendant control/supervise the exercise of those powers by the Eighth Defendant?
Q20 Is it alleged that the agency arose by way of any supervisory regulatory power of the Seventh Defendant its servants or agents over the Eighth Defendant? If so identify each of those powers and the facts and circumstances by which they operated?
Q21 Is it alleged the agency arose out of actual or ostensible authority?
Q22 If actual agency:

(a) Identify when that authority was first given to the eighth defendant?(b) How was it given, in writing or verbally?(c) When was it given and by whom was it given, on behalf of the Seventh Defendant to the Eighth Defendant.(d) If in writing or verbally, by who on behalf of the seventh defendant authorised the writing or spoke the words?(e) Provide the effect of the document or spoken words (Pt 14.9 of UCPR).

(f) What was the scope of the actual authority given to the eighth defendant.(g) Whom on behalf of the Seventh defendant provided the authority to the Eight [sic] Defendant?

Q23 If ostensible agency:(a) Identify all the facts and circumstances by which it is alleged to have arose.(b) Identify all the facts and circumstances as to the manner by which it is alleged to have operated.(c) It is alleged that the Seventh Defendant its servants or agents gave any instructions to the Eight Defendant? If so by whom and what instructions did it give and when were they given?

(d) Who on behalf of the Seventh Defendant its servants or agents is it alleged authorised the provision of this agency to the Eighth Defendant.(e) When and how was this done?(f) Is it alleged that the Eighth Defendant held himself out as the Seventh Defendant?(g) If so how was this done? When was this done?

13. Of course on the hearing of the Notice of Motion the allegations in the Statement of Claim were not formally proved but the Court does not act in a vacuum. In the circumstances, and bearing in mind that I did not assert that the Defendants knew the answers to questions 3 to 23, I do not regard the statements made in [27] and [28] of my principal reasons as unwarranted.
14. Mr Joseph has also sought to justify the breadth of the request upon the ground that it was influenced by a number of factors, viz:
    • (a) The inadequacy of pleading. (Now found by the Court [J82]).
    • (b) The nature of the events pleaded including a “novel” duty of care. (See written submissions [22-30]).
    • (c) The age of the allegations leading to both limitations defences [J81].
    • (d) A stay because of abuse of process considerations. (See written submissions [9]-[13]. [These paragraphs seem to foreshadow a possible stay application.]
    • (e) The number of defendants and the alleged interplay between them.
    • (f) Multiple causes of action. (See written submission [14]) and interconnecting breaches of different duties of care. (See written submissions [31]-[35].
    • (g) That the central allegation involves “consents”.
15. Given my reasons for concluding that the request was an abuse of process I do not regard it as necessary to deal with these matters individually. Undoubtedly a number of them justified some expansion of the request beyond what would otherwise have been appropriate. However, even in combination, the matters relied on did not come close to justifying the number of questions that were asked or, in very many cases, the nature of those questions.
16. Once drafted, the request will presumably have been the subject of some attention and perhaps consideration by the solicitors acting for the Seventh Defendant, of their forwarding it to the solicitors for the Plaintiff, of consideration by the Plaintiff’s solicitors and counsel and, as the evidence on the application showed, two responses from the Plaintiff’s solicitors. Those responses were then no doubt considered by the Seventh Defendant’s legal advisers and at least the first response led to the filing of the notice of motion.
17. Thus, the request must have led to work being done by all of the lawyers I have mentioned with consequent costs being incurred. There is obviously something to be said for the view that the counsel who drafted the request should be responsible for all of these costs. On the other hand, the request was of a nature that the Plaintiff’s legal advisers were under no obligation to answer it in any detail. That they ultimately did so was their decision.
18. Furthermore, as I indicated in my reasons of 15 May, the Statement of Claim was insufficiently particularised in a significant number of respects which I identified. It seems likely therefore that some application on behalf of the Seventh Defendant was or would have been necessary to obtain proper particulars and, had it stood alone, the costs of any such an application would have had to be borne by the Plaintiff.
19. Shortly after I announced my decision on 15 May I was informed that the whole case had, in principle, been settled. Otherwise the detail that I went into in responding to the notice of motion was calculated to assist the Plaintiff appreciably in curing a number of defects in the Statement of Claim. For these and the reasons referred to in the immediately preceding paragraph, the Plaintiff should be regarded as responsible for part of the costs of the proceedings which I determined on 15 May.
20. In addition to a prayer that the Plaintiff be ordered to answer the request for particulars, the Notice of Motion sought other relief including that parts of the Statement of Claim be struck out or ordered to be re-pleaded. In substance the Seventh Defendant had some success in these areas as it did in a limited area where I concluded that further particulars were required. This argues against its counsel being ordered to bear all the costs of that notice of motion incurred by the Seventh’s Defendant.
21. There is one further aspect of my principle reasons to which I should refer. At [38] of those reasons of 15 May I remarked:

I have said enough to demonstrate that the request for particulars is an abuse of process. A respondent to such a request is under no obligation to hunt through it to find questions that should be answered. Indeed, though I do not find it necessary to rely on this it is impossible to avoid the impression that the request was drafted, not with the aim of obtaining information that the Defendants reasonably needed but to make the request as long and as burdensome as possible. There are of course other possible explanations but I do not need to pursue the topic. The request is, as I have said, an abuse of process.

22. In his affidavit of 31 July Mr Joseph said that he rejected “the motives attributed to me as the draughtsman at [38]”. In the way the proceedings leading to these present reasons occurred, there was no challenge to this evidence and it would accordingly be unfair not to accept it. In any event it is sufficient for present purposes to base my decision on the terms of the request without exploring the motives behind it.
23. Section 99 of the Civil Procedure Act provides for the making of costs orders against legal practitioners. So far as is presently relevant, the section provides:

(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.
(1) 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:
  • (i) in the case of a barrister, as between the barrister and the instructing solicitor, or as between the barrister and the client, as the case requires, or
  • (ii) in the case of a solicitor, as between the solicitor and the client,
• (b) it may, by order, direct the legal practitioner:
  • (i) in the case of a barrister, to pay to the instructing solicitor or client, or both, the whole or any part of any costs that the instructing solicitor or client, or both, have been ordered to pay to any other person, whether or not the solicitor or client has paid those costs, or
  • (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.
(2) The court may give ancillary directions to give full effect to an order under this section, including ...
(3) A party’s legal practitioner is not entitled to demand, recover or accept:

• (a) in the case of a barrister, from the instructing solicitor or client, or
• (b) in the case of a solicitor, from the client,

any part of the amount for which the legal practitioner is directed by the court to indemnify any party pursuant to an order referred to in subsection (2) (c).

24. The section was the subject of consideration in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; 63 NSWLR 300. Much of what was said there is of no relevance to the circumstances here but for present purposes I accept that, as was said at [92], the powers under s 99 “must be exercised with care and discretion and only in clear circumstances”.
25. The conclusion that the request for particulars was not only an abuse of process but an obvious and gross abuse argues significantly for Mr Joseph’s conduct in drafting it as he did being characterised as serious incompetence. However, I do not find it necessary to reach any concluded view on that. I am satisfied that a consequence of it being drafted as it was is that costs have been incurred improperly or without reasonable cause. The extent of Mr Joseph’s default and those of the consequences as were inevitable lead also to the view that the discretion under s 99(2) should be exercised so as to make an order under the section against him.
26. In the case of a barrister at least the section is restrictive. It authorises orders against a barrister in only the circumstances contemplated by ss (2)(a)(i), 2(b)(i) and (2)(c). There has been no relevant order against Mr Joseph’s instructing solicitor or client requiring them to pay costs so ss (2)(b)(i) has no application to the present circumstances. The circumstances do not preclude an order under the other provisions mentioned.
27. However, an order under ss 2(c) would be likely to result in the incurring of further costs in requiring the legal practitioners involved to separate out the costs consequent on their consideration and dealing with the request for particulars from other costs and/or the incurring of a costs assessor’s fees.
28. In the circumstances, and given the discretion that ss (2) confers, the appropriate order is to disallow the whole of the costs of Mr Joseph in and incidental to drafting the request for particulars and 50% of his costs of and incidental to preparation for and appearing on the hearing of the Notice of Motion filed on 15 January 2015.
29. Accordingly, the orders I make are:

(1) I disallow as between Michael Joseph and the Seventh Defendant’s solicitors the whole of the costs of and incidental to Mr Joseph’s drafting of the request for particulars dated 28 November 2014;
(2) I disallow as between Michael Joseph and the Seventh Defendant’s solicitors 50% of the costs of and incidental to Mr Joseph’s preparation for and appearing on the hearing of the Notice of Motion filed on 15 January 2015.
(3) Order Mr Joseph to refund to such solicitors any fees paid to him for such drafting, preparation or appearance and which have been disallowed.
(4) Order Mr Joseph to file an affidavit within 28 days of these orders showing all of the said costs and that he has borne the costs disallowed and/or refunded such costs to the solicitors.

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