Kennett and Anor v Mayrana Pty Ltd and Ors (No 11) [2009] NSWIRComm 99 (29 June 2009)

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Kennett and Anor v Mayrana Pty Ltd and Ors (No 11) [2009] NSWIRComm 99
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
IRC 3679 and 3680

HEARING DATE(S):
16 February 2009, 17 February 2009, 18 February 2009

DATE OF JUDGMENT:
29 June 2009

PARTIES:
MATTER NUMBER IRC 3679 OF 2003
_________________________________

KEITH FRANKLIN KENNETT
First Applicant

KF KENNETT NOMINEES PTY LIMITED
(ACN 007 739 568)
Second Applicant

MAYRANA PTY LTD
(ACN 101 363 688)
First Respondent

GARRATT'S LIMITED
(ACN 000 003 725)
Second Respondent

CHRISTOPHER CAMPBELL
Third Respondent

MICHAEL TRAYNOR
Fourth Respondent

KATARINA MUC t/as GH HEALEY & CO - SYDNEY
First Respondent to Motion

GREGORY HARRISON HEALEY t/as GH HEALEY & CO - SYDNEY
Second Respondent to Motion

JOHN P BERWICK
Third Respondent to Motion

MATTER NUMBER IRC 3680 OF 2003
_________________________________

MYONG HO PAK
Applicant

MAYRANA PTY LTD
(ACN 101 363 688)
First Respondent

GARRATT'S LIMITED
(ACN 000 003 725)
Second Respondent

CHRISTOPHER CAMPBELL
Third Respondent

MICHAEL TRAYNOR
Fourth Respondent

KATARINA MUC t/as GH HEALEY & CO - SYDNEY
First Respondent to Motion

GREGORY HARRISON HEALEY t/as GH HEALEY & CO - SYDNEY
Second Respondent to Motion

JOHN P BERWICK
Third Respondent to Motion

CORAM:
Schmidt J

CATCHWORDS: Costs - applicants seeking costs orders against respondents, their legal advisors and counsel - indemnity costs orders sought by first and second respondents against applicants - whether there should be a departure from the usual costs order - costs order against successful party, which has failed in relation to a substantial claim in the proceedings - costs in favour of respondents in relation to agreement for sale of College - departure form usual costs order because of misconduct by successful parties - costs in favour of respondents - whether respondents should have been separately represented - Calderbank offers - 'walk away' offers - costs in favour of respondents, other than in relation to jurisdictional argument - indemnity costs after refusal of offer - orders sought under Rule 209 of the Industrial Relations Commission Rules - orders sought against legal representatives - wasted costs - absence of a party to proceedings - complaint as to joinder of unnecessary respondents - failure to put on timely expert evidence - costs orders made

LEGAL REPRESENTATIVES
APPLICANTS IN IRC 3679 OF 2003
Mr A McQuillon of counsel
SOLICITORS:
Mitchell Lawyers

APPLICANT IN IRC 3680 OF 2003
No appearance
FIRST AND SECOND RESPONDENTS:
Mr AJ Bulley of counsel
SOLICITORS:
Gray & Perkins

THIRD RESPONDENT:
Mr Williams SC with Mr BKB Cross of counsel
SOLICITORS:
Gilchrist Connell Lawyers

FOURTH RESPONDENT:
Mr PL Carr of counsel
SOLICITORS:
Yeldham Price O'Brien Lusk
DLA Phillips Fox

FIRST AND SECOND RESPONDENTS TO MOTION:
Mr R Darke SC with Ms M Castle of counsel
SOLICITORS:
Middletons

THIRD RESPONDENT TO MOTION:
Mr GP Craddock SC
SOLICITORS:
McCabe Terrill Lawyers Pty Ltd

CASES CITED:
Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12
BEA Systems Pty Limited v Industrial Relations Commission (NSW) (2005) 63 NSWLR 347; (2005) 143 IR 111
Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157
Crowe v UCS Developments Pty Limited [2003] NSWIRComm 234; (2003) 130 IR 266
Gorman and anor v Parkinson and ors [2008] NSWIRComm 99
Kennett and anor v Mayrana Pty Ltd and ors & Myong Ho Pak v Mayrana Pty Ltd and Ors [2005] NSWIRComm 134
Kennett and anor v Mayrana Pty Ltd and ors & Myong Ho Pak v Mayrana Pty Ltd and Ors [2005] NSWIRComm 367
Kennett and Anor v Mayrana Pty Ltd and Ors (No 3) [2006] NSWIRComm 266
Kennett and Anor v Mayrana Pty Ltd and Ors (No 4) [2006] NSWIRComm 357
Kennett and Anor v Mayrana Pty Ltd and Ors (No 5) [2007] NSWIRComm 199
Kennett and Anor v Mayrana Pty Ltd and Ors (No 6) [2007] NSWIRComm 234
Kennett and Anor v Mayrana Pty Ltd and Ors (No 7) [2007] NSWIRComm 236
Kennett and Anor v Mayrana Pty Ltd and Ors (No 8) [2007] NSWIRComm 239
Kennett and Anor v Mayrana Pty Ltd and Ors (No 9) [2008] NSWIRComm 106
Kennett and Anor v Mayrana Pty Ltd and Ors (No 10) [2008] NSWIRComm 207
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Leichhardt Municipal Council v Green [2004] NSWCA 341
Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Re Black Stump Enterprises Pty Ltd and Associated Companies (No 2) [2006] NSWCA 60
Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306
The Anderson Group Pty Limited v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706
Unitedglobalcom, Inc v Industrial Relations Commission (NSW) (2005) 142 IR 204
Van Eeden v Henry; Henry v Van Eeden (2005) 62 NSWLR 301
Whyked Pty Limited v Yahoo!7 Pty Limited [2008] NSWSC 477
Yim v Industrial Relation Commission of NSW [2007] NSWCA 77; (2007) 162 IR 62
Zahos v Industrial Relations Commission of NSW (2005) 148 IR 208

LEGISLATION CITED:
Industrial Relations Act 1996
Legal Profession Act 2004

TEXTS CITED:

JUDGMENT:

Matter No IRC 3680 of 2003

MYONG HO PAK v MAYRANA PTY LTD AND OTHERS
Application under s.106 of the Industrial Relations Act 1996

1 Judgment was given in this matter on 27 May 2008 (see Kennett and Anor v Mayrana Pty Ltd and Ors (No 9) [2008] NSWIRComm 106). Orders were made on 4 November 2008, with the question of costs reserved (see Kennett and Anor v Mayrana Pty Ltd and Ors (No 10) [2008] NSWIRComm 207).

2 Discussions between various of the parties resulted in a number of agreements and consent orders being made. This judgment deals with what was left unresolved.

3 The applicants sought an order for their costs against the first and second respondents and against their former solicitors, Mr Healey and Ms Muc and Dr Berwick, their counsel. Mr Pak did not, however, appear at the hearing to advance any argument in support of his application, or to oppose the orders sought against him.

Costs orders sought by the 1st and 2nd Respondents - Mayrana Pty Limited ('Mayrana') and Garratt’s Limited ('Garratt's)

4 The first and second respondents sought an indemnity costs order against the applicants, relying on offers of compromise made in June 2006 and September 2007, as well as the conduct of the proceedings, which it was argued amounted to misconduct, sufficient to warrant a departure from the normal rule that costs should follow the event.

5 As I have said, Mr Pak did not appear to defend the orders sought. The respondents conceded that the orders made in his favour, bettered those which they had offered. The order made in his favour was for $1,700. An offer of compromise made on 29 June 2006 was for $1,000. In those circumstances, a costs order in his favour would be made, in the ordinary course. The same offer was made to Professor Kennett. Rule 216(6) of the Industrial Relations Commission Rules, contemplates that the proper costs order in Professor Kennett’s case would be costs in his favour up to the offer and costs for the respondents, subsequently.

6 Nevertheless, the respondents argued that given the applicants’ misconduct in the proceedings, as well as their failure to make out the claimed unfairness of the sale agreement, there would be orders in their favour against the applicants. The respondents also relied on a 'walk away' offer made to the applicants in September 2007, after the applicants had been cross examined, arguing that it was unreasonable for that offer to have been refused.

7 For Professor Kennett it was argued that there would be no departure from the usual rule, because the applicants had succeeded in the proceedings, by demonstrating the unfairness of their consultancy contracts. Their failure to establish the claim advanced in relation to the sale of the College, did not warrant any departure from the usual order.

8 In any event, these respondents ought not to have been separately represented in the proceedings. Costs had already been agreed with the other respondents and so no order for costs would be made in favour of these respondents.

Evidence

9 Affidavit evidence sworn by Professor Kennett was tendered and he was cross examined. Mr Healey, Ms Muc and Dr Berwick also gave affidavit evidence and Mr Healey and Dr Berwick were cross examined.

Should there be any departure from the usual costs order in favour of the respondents?

10 The first question to be determined is whether there should be any departure from the normal rule, that costs should follow the event. While it is rare for a successful party to be ordered to pay the losing party’s costs, the discretion given by s 181 of the Industrial Relations Act 1996 ('the Act'), permits such orders to be made by this Court.

11 That requires a good reason for any departure be established in the particular circumstances before the Court (see Leichhardt Municipal Council v Green [2004] NSWCA 341). Professor Kennett resisted such a departure from the usual order, because the applicants succeeded in the case which they had brought.

12 Certainly, that both Professor Kennett and Mr Pak succeeded, in part, in the cases which they brought must be taken into consideration. Firstly, they successfully resisted a jurisdictional challenge. Then, on the merits, contrary to the cases advanced by the respondents, the applicants both succeeded in establishing that a consultancy had been agreed with Mayrana, the purchaser of Excelsior Business College ('the College'); that they had both worked at the College after the sale in those consultancies and that the consultancy contracts were relevantly unfair. Consequential money orders were made in favour of Mr Pak, but not Professor Kennett. This flowed from an assessment of what should have been fairly paid in each case as to salary and notice and deducting various sums from that amount, including moneys owed by the vendor of the College, Excelsior College Pty Ltd ('Excelsior'). In Mr Pak’s case the money order made was $1,707.36. No money order was made in favour of Professor Kennett.

13 What the applicants failed to establish was the unfairness of the sale contract by which the respondents had acquired the College, of which Professor Kennett and Mr Pak were the working directors, through their shareholding in Excelsior. That company was not a party to these proceedings. This part of the case rested on the applicants’ complaint that they had been forced to agree to a sale price which did not fairly reflect the true profitability of the College, as a result of the unfair conduct of the personal respondents to the proceedings, Mr Campbell, a director of the second respondent, Garratt’s and Mr Traynor, who had been engaged by the purchaser to conduct a due diligence exercise in relation to the College. It cannot be doubted that the hearing and much of the difficulty and delay in the case, was the result of the applicants’ pursuit of this aspect of their claims.

14 The respondents relied on the history of these proceedings, which has undoubtedly been deplorable, as various earlier judgments have revealed, to establish misconduct. There can be no question that much cost was incurred as the result of the applicants' constant and repeated failure to adhere to the Court’s directions and orders, even when timetables were fixed by agreement. The respondents too, undoubtedly, incurred unnecessary costs, as a result of the approach adopted by the applicants. I am entirely satisfied that justice could not permit the respondents being ordered to bear such costs.

15 The proceedings were commenced in 2003. From the outset the applicants were represented by Mr Healey. There were four conciliation conferences before Kavanagh J, the last in December 2004. By that stage Dr Berwick had been briefed. Directions were given by her Honour for preparation of the matter for hearing. In Kennett and anor v Mayrana Pty Ltd and ors & Myong Ho Pak v Mayrana Pty Ltd and Ors [2005] NSWIRComm 134, Marks J dealt with what he then considered to be gross delay in the prosecution of the case. His Honour ordered the applicants to bear the costs of the interlocutory proceedings, then observing that ‘I am really unsure as to whether the delay lies with the applicants personally or with the applicants’ legal practitioners, whoever they may be’ (at [8]) and

16 His Honour’s decision was appealed, but the appeal failed (see Kennett and anor v Mayrana Pty Ltd and ors & Myong Ho Pak v Mayrana Pty Ltd and Ors [2005] NSWIRComm 367). There, it was noted that Kavanagh J had directed that the applicants' amended summonses be served by 14 January 2005. The amended summons was not filed until April 2005. Thereafter, the proceedings continued to be plagued with difficulty and delay on the applicants’ part, both when the proceedings were before Staunton J and when they were reallocated to me. As Marks J found, determining where fault really lay for what occurred, namely with the applicants or their legal representatives is not easy, but what is unarguable is that fault did not lie with the respondents. They ought not to have to bear the costs consequences of what was inflicted upon them.

17 Nevertheless, account must undoubtedly also be taken of the fact that the applicants later succeeded in meeting the respondents’ jurisdictional challenge. They also succeeded in demonstrating that they had been engaged under consultancy agreements by the purchaser of the College, Mayrana, under which they had worked and that those agreements were relevantly unfair. What must also be considered, however, is what occurred during the applicants’ protracted pursuit of that outcome and what was finally achieved by way of money order, as a result of all of the considerable effort and resources devoted by the parties and the Court, to this contest.

18 Not only were there difficulties and delays in the matter being programmed before Staunton J, the adjournment of the hearing finally fixed before Staunton J and its reallocation to me, flowed from an adjournment application which followed from the applicants filing further evidence, just before the commencement of the hearing fixed before Staunton J. Much of the further difficulty and delay which followed the adjournment of that hearing, was occasioned by the applicants' pursuit of the sale of contract case. Kennett and Anor v Mayrana Pty Ltd and Ors (No 3) [2006] NSWIRComm 266, was concerned with the applicants' motions to have set aside summonses for the production of documents by the applicants’ accountant, Mr Rodgers, the expert Mr Prior and otherwise to delay production of those documents to the respondents, until after the respondents had put on their evidence. The orders sought were refused and costs reserved.

19 Kennett and Anor v Mayrana Pty Ltd and Ors (No 4) [2006] NSWIRComm 357, given in November 2006, was concerned with the respondents’ unsuccessful challenge to the Court's jurisdiction. Costs were reserved.

20 In Kennett and Anor v Mayrana Pty Ltd and Ors (No 5) [2007] NSWIRComm 199, it was explained:

21 The applicants' motions followed a direction that no further affidavit evidence should be filed in the proceedings without leave first being granted by the Court. At [11] in Kennett (No 5), I noted that the motion relied on was deficient, because no grounds or reasons for the late filing of further evidence were given. The supporting affidavit sworn by Mr Healey, which it was said contained such grounds, did not deal with that issue. There was no explanation for why late evidence was being put on for Mr Pak and his application was refused.

22 Further evidence was sought to be called from Mr Prior. His reports of April and September 2006 were already in evidence. There was also no explanation given in the motion as to why further evidence was sought to be called from him. Both Mr Prior and Mr Healey were called and cross examined. Mr Prior’s evidence was that in February 2007, he had come to the realisation that he could not stand by his existing reports. In March 2007, he was given access to an affidavit Mr Traynor had sworn, which annexed his working papers. This caused Mr Prior to realise that the College’s records were completely unreliable, so that further investigations were necessary on his part. Those investigations were commenced and Mr Prior was later also instructed to prepare a report as to a valuation of the College.

23 This evidence and the submissions then advanced showed that the applicants no longer wished to rely on the expert reports in evidence, but wished to advance their claims by reference to new reports which Mr Prior was preparing. As to Mr Healey’s evidence, it was observed:

46 Mr Healey's affidavit evidence and the answers which he gave in cross examination, showed that mistakes had been made in the information with which Mr Prior had been provided in 2006. Relevant annexures to Mr Pak's affidavit were not supplied, nor was Mr Prior given access to relevant documents, even though they had been produced in 2006, in answer to a summons issued for the applicants, at Mr Prior's request. So it was, that not until 2007, that Mr Prior had the opportunity to consider those documents, when he saw them as annexures to Mr Traynor's affidavit.

47 Mr Healey was not able to explain how this situation had come to arise, or even when it had first been appreciated, even in the affidavit which he swore on 2 August, on the day before he was cross examined. Indeed, why Mr Healey was called to explain these matters was not readily apparent, given his evidence that he was not the solicitor on the record and did not have carriage of the matter. Nevertheless, that this situation emerged as it did, only through the answers which he gave in cross examination, was most regrettable. Had it been revealed in the applicants' motions, as it should have been, considerable time would have been saved in unnecessary cross examination of Mr Healey and Mr Prior.

24 Leave was given to lead Mr Prior’s further reports, other than the valuation report, as to which I observed:

52 This valuation emerged from further instructions given to Mr Prior in July 2007. Why those instructions were given was not revealed. Indeed, there was no explanation given at all for the late production of that evidence. On the evidence, that report had no connection with the parties' transaction. Nor was the report connected with any of the relief sought in the applicants' second further amended summonses. The applicants' summonses did not seek a variation of the parties' arrangements to provide for such a valuation, and no money orders were sought by reference to such a concept. Nor had Mr Pak or Professor Kennett mentioned the idea of such a valuation in any of their evidence, as a basis for their claims.

54 As to Mr Prior's three other reports, I concluded that the leave sought had to be granted. The difference between this application and that made in relation to Mr Pak's further evidence, was that it was not simply a late attempt to bolster the case being advanced, by revisiting evidence already given, which was always available to have been called and which had been dealt with in the jurisdictional judgment.

55 The 2007 reports were entirely different to Mr Prior's 2006 reports, being based, at least in part, upon information which Mr Prior did not have in 2006. Those reports flowed from the conclusions which Mr Prior reached in 2007, as to the unreliability of the records which the applicants had maintained at Excelsior College. Those conclusions led him to a position where he no longer adhered to the views which he had expressed in his 2006 reports. The result was that Mr Prior's 2007 reports put the applicants' cases on quite a different basis to that which they had earlier advanced.

56 I accepted that proper criticism could be directed to the applicants, for this late and marked change in course, given the stage the proceedings had reached, when this development came forward.

57 On Mr Prior's evidence in cross examination, it seemed that there was no reason why the conclusions which he reached in 2007, could not have been reached in 2005 and 2006, when the applicants were obliged to put on their evidence. Mr Prior always had access to the applicants, Mr Rogers, Mr Brash and Mrs Brash. Had Mr Prior been provided with the information which he required at the proper time, there is no reason to think the exercise he undertook in 2007, could not have been undertaken before he provided his first report in April 2006. These proceedings were commenced in 2003. Provision of the relevant documents, such as a 2001 price list and Mr Traynor's working papers, depended on the applicants providing them, or obtaining access to them, in so far as that material was not in their hands.

58 Providing Mr Prior with the information which he required, in order to provide a report about the adequacy of the due diligence exercise conducted by Mr Traynor in 2002 and the profitability or otherwise of the College in that year, did not depend on any conference of experts, to which Mr Prior repeatedly referred in his evidence.

59 It appeared that the necessary information was forthcoming in 2007, in part from Professor Kennett, Mrs Brash and Mr Brash and in part from the documents attached to Mr Traynor's affidavits. Those documents had already been produced to the Court in 2006, in answer to a summons issued for the applicants. The failure to provide those documents to Mr Prior earlier, plainly did not rest with the respondents.

60 Mr Prior's final opinions rested on the view which he reached in 2007, as to the unreliability of the records maintained by the applicants, prior to the sale of the College. On the evidence, there was no reason to think that the information on which that opinion finally rested, could not have been provided earlier, prior to Mr Prior preparing his 2006 reports, if the matter had been given proper attention by the applicants and their advisers at the necessary time.

62 What could not be overlooked however, it seemed to me, was that Mr Prior's evidence was relevant both to the claimed unfairness of the parties' contracts and arrangements and the money orders sought. On the evidence as it stood at the conclusion of Mr Prior's cross examination, it was quite apparent that if the leave sought were not granted, the applicants' cases would in all likelihood fail, because Mr Prior had resiled from his 2006 opinions, thereby removing what appeared to be an important plank in the applicants' case. I accept Dr Berwick's submission that in those circumstances, to refuse the leave would have been devastating for the applicants' cases.

63 In all of the circumstances, I concluded that this was a situation where a discretion had to be exercised in favour of the applicants and, as was conceded for them, a costs order made against them, in relation to all of the costs thrown away in the respondents meeting Mr Prior's 2006 evidence. This includes any time spent in cross examining Professor Kennett and Mr Pak about matters relevant to those reports, which are no longer relevant to the claims advanced, given the receipt of Mr Prior's 2007 reports.

64 I accept, as the respondents explained, that the granting of this leave may present difficult forensic challenges for the respondents, which will have to be met. Nevertheless, I came to the conclusion that I am bound by the observations of the High Court, that an applicant ought not to be shut out from litigating an issue which is fairly arguable. I am satisfied that would be the practical effect of now precluding receipt of Mr Prior's 2007 reports, he having resiled from his 2006 opinions. The errors seemingly made by the applicants' advisers, put this situation into a category of the kind discussed by Kirby J in JL Holdings Pty Ltd at [169] - [180]. Undoubtedly, the new evidence is of considerable importance to the applicants; the evidence suggested that the new evidence has come forward as the result of fault on the part of the applicants' advisers and human error; there is sufficient time for the respondents' expert to reply to these reports and a costs order may be made, to rebalance the parties' competing claims as to justice.

27 Leave was also given to call evidence from Mr Rodgers, Mrs Brash and Mr Brash, to explain the assistance provided to Mr Prior in formulating his further reports.

28 In Kennett and Anor v Mayrana Pty Ltd and Ors (No 6) [2007] NSWIRComm 234, I dealt with challenges to certain of the evidence of Mr Prior, including challenges as to his expertise. Some objections were upheld and others were not.

29 In Kennett and Anor v Mayrana Pty Ltd and Ors (No 7) [2007] NSWIRComm 236, further objections to further evidence called from Mr Prior was dealt with. Parts of those reports took the form of summaries of inquiries which Mr Prior had made into various matters, where evidence was called from those of whom Mr Prior had made his inquiries, but evidence was not led from them as to the subject matter of Mr Prior’s inquiries. Leave to recall those witnesses was refused, it being observed:

26 The application to recall Mr Brash and Mrs Brash, was made on the basis that Mr Prior's evidence should be admitted provisionally and the applicants given leave to recall those witnesses, to give further evidence about matters dealt with in Mr Prior's report. I concluded that this application had to be refused, given the history of these proceedings. There has been an unrelenting stream of applications, amended and further amended applications by the applicants, repeatedly seeking leave for various further indulgences, including the calling of late evidence. Leave to call Mr Prior's further expert evidence, as well as further evidence from Mr Rodgers, Mr Brash and Mrs Brash, was given in August, after Mr Prior had resiled from the opinions which he had earlier expressed in his 2006 reports. (See Kennett (No 5) at [39] to [67]).

27 As noted in Kennett (No 5) preparation of Mr Prior's further expert evidence was commenced in February 2007, with the assistance of Mr and Mrs Brash. Evidence was called from them as to the assistance which they provided. The applicants have made various forensic decisions in the conduct of their case. They have been relieved of the consequences of many of them, as well as the consequences of errors seemingly made by their legal advisers.

28 This further application to recall Mr Brash and Mrs Brash to lead even further evidence from them, was made not only after Professor Kennett and Mr Pak had given their evidence, but also after Mr and Mrs Brash had been called and excused. To support their application, the applicants complained as to the time at which they had received the respondents' objections to Mr Prior's latest reports, in the week before the resumption of the hearing. That there would be an objection to the hearsay parts of the report, cannot have come as any surprise to the applicants, given the form of the reports; the conclusions which Mr Prior reached and the applicable authorities.

29 There comes a point, in any proceedings, where a party is not entitled to any further indulgences from the Court. At the end of the day, justice must be given to both parties.

30 In Kennett and Anor v Mayrana Pty Ltd and Ors (No 8) [2007] NSWIRComm 239 on 19 September 2007, I dealt with even a further application to call evidence from Professor Kennett. I, again, noted that the motion provided no grounds or reasons for the application and that the only reason proffered in an affidavit sworn by Professor Kennett was that he and Mr Pak had been asked questions in cross examination as to the basis of the profit formula used to calculate the sale price of the College. The application was refused, it being observed:

5 That Professor Kennett had had the time to consider other ways in which the applicants' claims might have been advanced, by the advantage which had flown from the way in which this case had been conducted by the applicants and the considerable delays which had resulted, was not a proper basis for granting yet another departure from adherence to the Court's directions in relation to the filing of the applicants' evidence. Such directions are not given for spurious reasons, but in order that the Court may ensure that all hearings proceed in an orderly and fair fashion. This approach to case management is entirely in the public interest, given the resources which are devoted to hearings and the competing calls which are made on the Court, by numerous parties other than the applicants.

31 It follows that there can be no question that the difficulty and delay which repeatedly arose in these proceedings, as well as a very substantial part of the costs incurred, and of the twenty odd days of hearing time which was finally devoted to these proceedings, resulted from the applicants' pursuit of the claim brought in relation to the sale of the College. That case failed utterly. While the applicants succeeded in resisting the argument pressed by the respondents as to jurisdiction, their evidence then being taken at its highest, the claim was ultimately not made out on the merits, when their case was tested at trial.

32 Given what was revealed in the evidence given by Professor Kennett and Mr Pak, as to how it came to be that the applicants pressed a claim that the College had made a profit of $300,000, despite the sale price which they finally agreed to accept at the crucial 1 August 2002 meeting, which was not calculated by reference to such a profit level, a conclusion that the sale agreement was consequently unfair was not available.

33 There was never such a profit. The claimed profit figure only ever arose out of a misunderstanding and an utter failure by the two personal applicants to pay any sensible attention to what the College’s profitability really was, given the information which they maintained through the staff they employed at the College. It was College staff who provided to the purchaser of the College more reliable information than the incorrect representations which Mr Pak and Professor Kennett persisted with, even in the face of what the College’s staff was advising them and the respondents.

34 Instead of a profit of $300,000, the information provided to the purchaser by Mrs Brash, who was in charge of maintaining the College’s financial affairs, was that the profit was only $25,000. In truth it was less. Despite the mighty forensic endeavours later undertaken in these proceedings with Mr Prior's dubious assistance, finally in submissions the applicants conceded that they had been unable to establish that the College had made any profit at all. That concession was properly made, but despite this, money orders were still pressed in relation to the claimed unfairness of the sale contract. Pursing that course also resulted in further hearing time, cost and delay.

35 Professor Kennett in his evidence on costs still maintained the view that a different evidentiary case could have shown otherwise. In his evidence at trial, the Professor had himself unsuccessfully endeavoured to show a profit, which failed because the documents on which he relied to establish the claimed profit, did not establish what he asserted, leading to an objection to that part of his evidence being upheld. The applicants were thereafter given further opportunities to demonstrate a profit through the expert evidence which they called from Mr Prior. Those efforts also failed. In those circumstances, Professor Kennett’s persistent opinion cannot be accepted as having any foundation in reality.

36 I am satisfied that the situation does not leave open, in justice, a conclusion that the respondents should now be ordered to bear the applicants' costs of this substantial aspect of the litigation.

37 There is no question that there is a discretion to award costs against an applicant who has succeeded on some parts of a claim brought, but has failed on others. In Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306, the Court of Appeal observed at [24]:

38 I am satisfied that this is a clear case where the discretion to order costs against a party which has brought multiple claims and has not succeeded on all of them, should be exercised in favour of the respondents who have successfully resisted a substantial claim. They must have an order of costs in their favour, in respect of the applicants' unsuccessful claim in relation to the sale of the College.

39 It was also argued by Professor Kennett, however, that no costs order at all should be made in favour of the first and second respondents, because all respondents were in the same interest and should have had the same representation. It was further argued that these respondents were not entitled to be separately represented, unless they first sought and obtained the Court’s leave and that because a settlement had already been arrived at with the other respondents, no order as to costs would be made in favour of these respondents.

40 These were somewhat unusual submissions, the question of separate representation having been raised for the first time, in submissions on costs. Ordinarily such a matter should be raised at the outset (see Van Eeden v Henry; Henry v Van Eeden 2005 62 NSWLR 301 at 64).

41 I am satisfied that justice could not permit the approach urged. As between the respondents, responsibility for any unfairness established and the basis upon which consequential money orders could and should be made against them, had to be established by the applicants in accordance with the High Court’s decision in Brown v Rezitis [1970] HCA 56; (1970) 127 CLR 157. There the High Court warned against money orders being made on a joint and several basis. Money orders must reflect the real connection which a particular respondent is shown to have had with the unfairness found in respect to the contract in question, as discussed by the Court of Appeal in Zahos v Industrial Relations Commission of NSW (2005) 148 IR 208 at 221.

42 In this case, I am unable to accept the submission that all respondents should have had the one representation. Their respective connections with the contracts in question and the claimed unfairness were different to Mr Traynor who was engaged to conduct a due diligence on the College for the purchaser. He, it was claimed, had connived with Mr Campbell to do the applicants out of a fair price for the College. The direct benefit of what had been contrived, was that of the purchaser Mayrana. No actual benefit was alleged to have flown to either of the personal respondents. Neither Mr Campbell nor Mr Traynor were parties to any of the contracts in question. While Mr Campbell was a director of one of the corporate respondents, Mr Traynor was not.

43 It follows that while all respondents had an interest in resisting the applicants’ claims, their interests were not identical and the cases which the applicants had to establish against each of them, was different.

44 Undoubtedly, the fact of separate representation added to costs. How that came about was not explored. There was some commonality of representation initially, but that ceased at a particular point. The inference is that some conflict was appreciated by the respondents, but that was not explored.

45 While there was not an entire commonality of interest, as between all of the respondents, at trial there was, nevertheless, a co-operative approach as between their legal representatives, in a proper endeavour to ensure that the trial was conducted efficiently. There was, for example, no unnecessary duplication, in relation to the cross examination of witnesses.

46 I can see no basis in this situation on which the approach urged for the applicants can be accepted. There is a costs risk which a party must accept when litigation is commenced against another party. I can see no basis upon which the applicants may properly be relieved of the consequences of the decisions which they made as to their pursuit of the personal respondents whom they joined to the proceedings. Those decisions included decisions made in relation to the opportunities which arose to settle with some or all of the respondents, which the applicants rejected out of hand. This is a matter I will return to.

47 In all of those circumstances, I am satisfied that justice could not permit costs orders being made in favour of the applicants in relation to their pursuit of the claims made in relation to the sale of the College. Nor could any relief be refused to these respondents in relation to the costs which they incurred, in successfully resisting this part of the claim, because the applicants also separately pursued Mr Campbell and Mr Traynor.

Should there otherwise be a departure from the usual costs order in favour of the applicants?

49 Despite establishing relevant unfairness of the consultancy contract in the principal judgment, Kennett (No 9), Professor Kennett finally had no money order at all made in his favour when Kennett (No 10) was given in October 2008. In the case of Mr Pak, an order of $1,707.36 was made. In the result, the position in this case is that any money order made in favour of the applicants in relation to the costs incurred in their pursuit of what was fairly owed to them by the applicants under the consultancy agreements, even if otherwise reasonably incurred, can only be regarded as being entirely out of proportion to what was truly here in issue between the parties. These were pyrrhic victories indeed.

50 There are other matters which weigh heavily against any order at all being made in favour of the applicants, to which I now turn.

51 The first and second respondents sought that a costs order be made in their favour, on an indemnity basis, arguing that the High Court’s approach in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, required such a result. There McHugh J discussed the circumstances in which such orders may be forthcoming at [67] to [70]:

52 Relevantly to this case, situations where such costs might be ordered against an applicant who has succeeded in having orders made in his or her favour include proceedings which are maintained when a party unnecessarily protracts the proceedings and where only nominal damages are obtained, already offered in settlement of the dispute. That is certainly this case.

53 There can be no question that the way in which the case was conducted, repeatedly resulted in unreasonable delay and expense, as I have earlier outlined. The claim that the College had made $300,000 in profit on which the claimed unfairness of the sale contract rested, was plainly groundless and ought never to have been pursued by the applicants as it was. The applicants’ concession in final submissions that they had not established that the College had made any profit at all, was properly made, reflecting as it did that the expert and other evidence led had demonstrated no unfairness, of any kind, on the respondents’ part in relation to the sale price. Still, the applicants persisted with their pursuit of money orders in relation to the sale price of the College, further unnecessarily protracting the proceedings. At that point there can have been no misapprehension that there was no prospect of success in relation to that claim, but still the applicants persisted in pressing those claims.

54 Finally, while the applicants established the existence of the consultancy contracts and their unfairness, it may not be overlooked that Professor Kennett achieved no money orders at all in his favour and Mr Pak only orders of $1,707.36. There can be no question that Professor Kennett did not achieve a judgment better than the earlier offers which he received from the respondents. The same conclusion must be reached in Mr Pak’s case. He had been offered $1,000 to settle. He had also received a 'walk away' offer. Had he accepted either offer, he would have been better off given what flowed from the continuing pursuit of the case. There can be no question that the offer made in September 2007 ought to have been accepted.

55 On 13 September 2007, a Calderbank offer was made. That was after the jurisdictional argument, during the course of the hearing, the day that Kennett (No 6) was given. It dealt with various of the difficulties the applicants were encountering at the trial. Kennett (No 5) had been handed down in August, giving the applicants leave to lead further evidence from Mr Prior, after he had abandoned his original opinions. The difficulty with the claims they were seeking to advance must have been abundantly clear to the applicants, when they received the respondents’ September 2007 offer and still, it was refused.

56 The offer was made on a ‘walk away’ basis. While Professor Kennett finally achieved no money order, there can be no question that Mr Pak too, would have been far better off, had he accepted the respondents 'walk away' offer, which was made after some 12 hearing days, rather than pursuing over 11 further days of hearing, before the principal judgment was given.

57 The first time that the respondents had invited the applicants to discontinue the proceedings was in September 2003. There was no response to that invitation. On Professor Kennett's evidence, offers were also made and rejected in conciliation. In June 2006, the respondents offered to settle the matter on the basis of a payment of $1000 to each applicant. The offer was open for 28 days, but there was no response. That offer was made before the hearing on jurisdiction in September 2006. Undoubtedly, the applicants ought to have given the offer serious thought, given the state of the College's finances. As the principal judgment revealed, their claim in relation to the sale of the College was always doomed to failure. The College never had the represented profit of $300,000 and the applicants had no proper basis for ever making such a representation.

58 Nevertheless, at that stage, Mr Prior was in the throws of preparing his first report, which supported the view that there was such a profit. Given this, I have come to the view, albeit with some difficulty, that it was not unreasonable for the applicants to have refused that offer.

59 The same conclusion may not be reached in relation to the September 2007 offer, after Mr Prior had withdrawn his original opinions, having finally received Mr Traynor’s working papers and being unable, in reality, to find fault with them. His struggle to come up with an alternative basis for supporting the claimed profit level, which was finally revealed always to have rested on a misunderstanding of something Mrs Brash had told Mr Pak, utterly failed. Had the applicants paid proper attention to the affairs of the College and what its financial records revealed, the representation as to a $300,000 payment, would never have been made.

60 It follows that there can be no question that the applicants should have accepted this 'walk away' offer. It was quite unreasonable to have refused it. In the face of its rejection and the applicants' misconduct in the proceedings, can justice permit any order other than that the applicants be ordered to pay the respondents costs on an indemnity basis? In Baulderstone Hornibrook Engineering Pty Limited v Gordian Runoff Limited (No 2) [2009] NSWCA 12, the Court of Appeal has again revisited the question of offers of settlement:

18 It is unnecessary and undesirable to restate, in any detail, the principles and public policy underlying Calderbank offers. Parties to litigation are expected to act reasonably in the running, and the resolution by compromise, of litigation. Stubbornness, intransigence and unrealistic and unreasonable expectations and demands can lead to unnecessary and unreasonable demands on scarce public resources. Just as parties are obliged to exhibit co-operation and openness in the conduct of litigation (see the principal judgment at [160]-[170] and Ingot Capital Investments Pty Limited v Macquarie Equity Capital Markets Ltd [2008] NSWCA 206 at [421]) they are obliged not to act unreasonably in the consideration and dealing with settlement offers.

19 BHE submitted that the offers were not genuine in that they were made only to trigger the costs sanctions. Reference was made to Leichhardt Municipal Council v Green [2004] NSWCA 341 at [19] and [39]. The relevant question is: was each letter a genuine attempt to reach a negotiated settlement? I am not prepared to conclude that each was otherwise than a genuine attempt to resolve the matter. In one sense, each was a demand to capitulate, but by the time of each of these letters a very large body of costs had been incurred. An offer to forego them was real. (I should not be taken to conclude that size of costs offered to be foregone is the only basis upon which an offer like this in a so-called “walk away” offer would be genuine.) There are now many authorities on genuineness of offers. All these are fact and circumstance specific to the case and the parties. The offer need only be, or be part of, a genuine attempt to reach a negotiated settlement. It has not been demonstrated that this was not a genuine offer.

61 In this case, it is unarguable that the offers on which the respondents relied were each genuine and that the September 2007 offer ought to have been accepted. On the evidence they were dismissed out of hand. Undoubtedly, a 'walk away' offer must contain a real and genuine element of compromise, or it will not be taken into account. (See The Anderson Group Pty Limited v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; (2006) 67 NSWLR 706 at [8]). In Leichhardt Municipal Council, where the Court of Appeal had to consider whether another 'walk away' offer was a genuine offer of compromise, it was observed:

47 The conclusion that indemnity costs should not be viewed as a necessary or automatic consequence of not accepting a defendants offer does not in any way deny the general discretionary power of the Court regarding costs in such circumstances. It merely recognizes that, influenced but not bound by the rules, a Court will be reticent to award such indemnity costs following defendant offers of settlement. It cannot be forgotten that the power to award indemnity costs is within the Court's general discretion in any event (see s148AB District Court Act 1973, s76(1)(c) Supreme Court Act 1970). It is preferable to consider applications for indemnity costs following unaccepted offers of compromise by defendants as being applications for a favourable exercise of the Court's general discretion to award indemnity costs. As far as Calderbank offers go there is very little difference, the costs consequences of these lying entirely within the Court's general inherent discretion on costs. Nothing said in GIO General Ltd v ABB Installation & Service Pty Ltd (supra) derogates from this conclusion. The Court there merely held that the trial judge's discretion not to award indemnity costs was not appellably erroneous. The decisions of Dunford J in Bishop (supra) and McKerlie (supra) can be regarded likewise. The authorities (especially Jones v Bradley) emphasise the width of the discretion and the unusual nature of an award of indemnity costs in relation to Calderbank letters.

48 The circumstances warranting favourable exercise of the discretion were considered by Sheppard J in Colgate Palmolive v Cussons [1993] FCA 536; (1993) 118 ALR 248 to include:

"(a) The making of allegations of fraud knowing them to be false, and the making of irrelevant allegations of fraud;

(b) Evidence of particular misconduct that causes loss of time to the court and the other parties;

(d) The fact that the proceedings were commenced in wilful disregard of known facts or clearly established law;

(e) The making of allegations that ought never to have been made or the undue prolongation of a case by groundless contentions;

62 In the circumstances of this case, the refusal of the 2007 offer is but another reason for the view which I have reached, that justice between these parties requires a departure from the usual costs order. Clearly there was never any basis for the claimed unfairness of the sale agreement, because as was so clearly established at trial, the College never made a profit of $300,000. Professor Kennett’s continued insistence that it did, is fanciful. The applicants' persistent misconduct in the litigation is also beyond doubt. In that context, given the costs to which the respondents had been put in resisting the claim, the September 2007 'walk away' offer undoubtedly contained a very significant element of compromise. As further discussed in Leichhardt Municipal Council:

56 In Multicon (supra) Rolfe J expressed the view that unreasonableness was prima facie found in the failure by the offeree to accept the offer which was not bettered on judgment. Rolfe J did emphasise, however, the primacy of the facts in the circumstances of each case. Subsequent decisions of this Court, principally Jones v Bradley (supra) have emphasised that these are all-important and that there is no presumption of indemnity costs in situations such as this (which the reasoning of Rolfe J seems to imply). The question of reasonableness in rejecting an offer is not answered by a presumption; it depends on the circumstances of each case.

57 Furthermore, there is no apparent "general delinquency" (Oshlack (supra)) on the part of the plaintiff sufficient to move the Court to displace the general rule on costs. Such costs orders should be reserved for the most unreasonable actions by unsuccessful plaintiffs. An instance would be peremptorily dismissing an offer of compromise (however small) such that an inference can be drawn that no bona fide consideration was given to early settlement of the claim. That was not the case here. This was a small offer by the defendant, albeit in a genuine effort to settle proceedings at an early stage. Given all the circumstances including the nature of the offer, I do not think it can be said that it was unreasonable for the plaintiff to have refused it.

63 Here, it was entirely unreasonable for the applicants not to have accepted the September offer. Consistent with the applicants’ general approach to the proceedings, the evidence showed that there was no bona fide consideration of that offer, or any other of the offers which the applicants’ received. It will be necessary to return to the detail of that evidence below.

64 Suffice it is to now observe, that having considered all of these matters, I have concluded that a just order as to costs so far as these respondents and the applicants are concerned, is a costs order, on the usual basis, in favour of the applicants, in relation to the costs of the hearing of the jurisdictional argument (Kennett (No 4)). Otherwise, there must be an order in favour of the first and second respondents, that the applicants should pay their costs of the proceedings, and on an indemnity basis from the expiry of the September 2007 offer.

65 The jurisdictional argument which the respondents pursued at the outset of the hearing, was decided on the basis of the applicants' evidence, taken at its highest. The evidence at trial later showed that the claim in relation to the sale of the business ought never to have been brought. The applicants were in constant breach of their duties to this Court. The applicants’ pursuit of that claim and their constant failure to adhere to the Court’s orders and directions unarguably resulted in costs unnecessarily being incurred. The successful case on the consultancy contracts was a pyrrhic victory, with the costs incurred out of all proportion to what was at issue between the parties; a victory achieved in the face of offers of settlement, the last one which undoubtedly ought to have been accepted. That the nominal money outcome achieved in Mr Pak’s case, could justly result in any costs order being made in the applicants' favour, beyond the giving of the jurisdictional argument, is not a conclusion which is justly available.

The Orders sought by Professor Kennett against his legal advisers

66 In Re The Black Stump Enterprises Pty Ltd and Associated Companies (No 2) [2006] NSWCA 60 the Court of Appeal observed:

10 One of the difficulties for a court when applying the test set out in those authorities is in making an assessment as to whether it is the solicitor or client that is the real cause of the problem.

67 The test referred to was that in Lemoto v Able Technical Pty Ltd [2005] NSWCA 153; (2005) 63 NSWLR 300. The difficulty identified in Re The Black Stump was one which challenged Marks J and it was still a problem confronting the Court at this stage of these proceedings.

68 While the orders sought in the motion were not so framed, it was conceded that in considering Professor Kennett’s application, the Court would have to take account of the fact that he had succeeded in the case which he had brought both as to jurisdiction and in relation to the consultancy agreement. As observed by McDougall J in Whyked Pty Limited v Yahoo!7 Pty Limited [2008] NSWSC 477, the failure of the respondents' strike out application places an insuperable difficulty in the way of the orders sought in Professor Kennett's motion, as was properly conceded.

69 The parties advanced their arguments by reference to various authorities, including the judgment of the Court of Appeal in Lemoto, which was concerned with orders sought under the Legal Profession Act 2004, which requires that solicitors and barristers not provide legal services unless they are of the view that the claim or defence has reasonable prospects of success (s 198). This is not such a case, but the parties were agreed that what was there discussed, was of relevance to what is here in issue.

70 In order to consider the various ways in which these orders were pressed and resisted, it is necessary to outline certain of the evidence given by Professor Kennett and that given by the applicants’ legal advisers. The onus, of course, now falls on Professor Kennett to make out a basis for the orders which he seeks.

71 Again, Professor Kennett swore a number of affidavits in support of his application, upon which he was cross examined. There were various conflicts in the evidence which Professor Kennett gave and that given by Mr Healey and Dr Berwick. I have been able to resolve them, in large measure by having regard to what contemporaneous documents reveal and by taking note of various inconsistencies in Professor Kennett’s own evidence. It is convenient to observe immediately that I had difficulty in accepting aspects of Professor Kennett’s evidence, as well as that of Mr Healey. The same difficulty did not arise in relation to Dr Berwick’s evidence.

72 It was Professor Kennett’s evidence that he first consulted Mr Healey in early 2003, when he provided him with ‘certain papers’ relating to the sale of the College and his employment there after the sale, they being every document in his possession relevant to the sale. Those documents did not include the sale agreement, which was, on Professor Kennett’s evidence in one affidavit, not obtained until it became an annexure to Mr Campbell’s affidavit of August 2006, and in another, that despite his instructions to Mr Healey that the documents should be obtained from the respondents, that he had himself provided the deed of sale, well before the hearing. In cross examination, Professor Kennett explained that his instructions to Mr Healey from the outset were that he and KF Kennett Nominees Pty Limited, the second applicant, had suffered loss as the result of the unfair sale contract. Correspondence from Furzer Crestani in April 2005 suggested that the sale document had been provided to them, when their advice was sought.

73 On Professor Kennett’s evidence, the documents he provided did not initially include the College’s financial records relevant to establishing the claimed unfairness of the sale agreement. Professor Kennett did not have all of those documents. He later discovered that Mrs Brash had some of them. When that was, was not clear on his evidence, but it was after Mr Prior was retained. Despite this, Professor Kennett believed that from the outset, he had provided sufficient information for Mr Healey to properly plead his claims, because he had provided ‘the two essential information pages in the Deed of Sale’ namely, the payment of $700,000 based on a net profit of $300,000 and the formula for determining net profit. The difficulty with that evidence is apparent, given the conclusions reached in the principal judgment. The explanation for the applicants bringing a case based on the notion that the College had a profit of $300,000, rested on their inattention to the affairs of the College and Excelsior. The disorganised state of the financial records caused problems in the due diligence exercise conducted by Mr Traynor, in Furzer Crestani's examination of the College's profitability, Mr Prior’s examination and even Professor Kennett’s own evidence. That he properly instructed Mr Healey with the necessary and relevant information from the outset, may not be accepted.

74 Professor Kennett said that Mr Healey’s advice was that the applicants take proceedings against the first and second respondents, as well as Mr Campbell and Mr Traynor. He was never advised to join Excelsior as a party, or of any difficulties which might flow from its non-joinder.

75 Professor Kennett claimed in one affidavit that even though he met with Mr Rossetto and paid him $5,000 for the work he undertook in relation to establishing the College’s profitability and value, that he never instructed Dr Berwick to retain this firm to advise the applicants and that Mr Rossetto was never properly instructed. In his view, this resulted in substantial loss of time and cost. This evidence was obviously contradictory and implausible, in the face of other parts of his evidence, as well as that of Mr Healey and Dr Berwick.

76 Professor Kennett also claimed that from the outset, he had given clear instructions that the College purchase price was to be determined by means of a specified formula, which had been amended in the final sale agreement and that Mr Traynor had failed to apply the agreed formula, with his results thus not being a true reflection of the net profit figure. He and Mr Campbell had participated in the manipulation of the net profit figure for the benefit of the second respondent. Again, the difficulty with this opinion was that it paid no attention to the problems resulting from the state of the records and the applicants' failure to provide them to their advisers, in any timely fashion.

77 This was confirmed by Professor Kennett’s evidence in another affidavit, that when he met with Dr Berwick, he told him that Mr Rossetto did not require the primary source documents to which Mr Rossetto was seeking to apply the formula, Professor Kennett could provide the necessary figures himself. All that Mr Rossetto had to do was to follow the formula. Professor Kennett said that he could provide all bank statements and cash book entries, which Mrs Brash had, but still Dr Berwick appeared to be unwilling or unable to comprehend the issue of establishing a profit figure of $300,000. He believed that Mr Rossetto had not been briefed with necessary documents and had been wrongly instructed to evaluate the business, which was in his view no part of any issue in the proceedings.

78 It was quite apparent from this evidence that Professor Kennett still does not understand how it was that the onus fell on the applicants to establish their case at trial by reference to the relevant records. His understanding that the College had a profit of $300,000, or how that might be established, was entirely deficient. That issue has since been tested at trial, where it was established that there was no such profit and that Mr Traynor’s calculations, based on the College records and the agreed formula, were not in error. The difficulty in comprehension about which Professor Kennett complained, was patently not Dr Berwick’s.

79 Professor Kennett also claimed that March 2006 was the ‘first occasion that I had been advised as to the circumstances surrounding the investigation by Mr Prior and the preparation of a report on my behalf in the proceedings’. He was retained by Mr Healey without prior instruction. Again, that evidence may not be accepted, given other evidence, which I will come to.

80 Professor Kennett also complained that he was given no advice, at any stage, as to his prospects of success, or that he should make or accept any offers of settlement. This evidence may not be accepted. Not only was it contradicted by both Dr Berwick and Mr Healey, in cross examination Professor Kennett agreed that such offers were discussed with him, but he never accepted them. His real complaint was that he was never properly advised in relation to the various offers which he undoubtedly received.

81 Professor Kennett also complained about the attention paid by Mr Healey to the proceedings, including delays in the preparation of affidavits and expert evidence. He also complained about the lack of attention which the expert, Mr Prior, gave to the matter and that he was not informed that the respondents had produced documents which had been subpoenaed. Dr Berwick gave evidence which supported those complaints, as did Mr Healey, in relation to the difficulties encountered with Mr Prior. Professor Kennett denied himself contributing to the problems which emerged, or that his legal advisers encountered any difficulty in making contact with him, or dealing with him. I am entirely unable to accept that Professor Kennett’s approach to the proceedings did not contribute to the difficulties about which he complained, for the reasons which I have already explained. Nevertheless, I am also of the view that he alone was not responsible for the difficulties which emerged.

82 Finally, Professor Kennett complained about Dr Berwick’s attention to the matter in early 2008. There is no doubt that there was a foundation for his concerns, given that during the course of the hearing in February, it became apparent that Dr Berwick was unwell and had to withdraw. Professor Kennett formed the view that Dr Berwick had lost interest in the case. As it transpired, that was not the difficulty, although on Professor Kennett’s evidence, the problems revealed in the medical reports were not matters which Dr Berwick had ever raised with him. This was, undoubtedly, because it was not until the hearing in February, that Dr Berwick himself came to realise that he was unwell.

83 I turn to the evidence of Ms Muc and Mr Healey. There is no question that Mr Healey always had the practical carriage of the matter. Ms Muc was initially an employed solicitor with GH Healey & Co, who became Mr Healey’s partner in 1994, in GH Healey – Bondi. Her practice was in personal injury litigation. Mr Healey retired from the partnership in 1997 and he then became a consultant to the firm. He also practised as a consultant in other firms and in another partnership. Mr Healey and Ms Muc married in 2008. In her evidence, Ms Muc outlined details of illnesses and problems in her personal life between 2002 and 2008. In July 2008, she transferred her practice to Mr Healey.

84 Ms Muc was the solicitor on the record and had a general awareness of the instructions received by Mr Healey from the applicants. The matter concerned an area of practise in which she had no expertise and its day to day carriage was left with Mr Healey, who gave evidence as to what had occurred in these proceedings. He had not always personally attended to the matter. From time to time he was assisted by other employed solicitors, or paralegal staff.

85 It was Mr Healey’s evidence that in 2002 he had known Professor Kennett for some four years. He was initially consulted about appearing for the applicants in October 2002. He found Professor Kennett confident, self assured, forceful and with a strong belief in his own views. Dr Berwick gave a similar description, which was consistent with Professor Kennett’s conduct in the witness box. Mr Healey and Dr Berwick described how Mr Pak deferred to Professor Kennett. He spoke little and allowed Professor Kennett to give instructions and answers on his behalf. Mr Healey and Mr Pak communicated in English and Mr Healey found that Mr Pak had sufficient command of English not to require an interpreter. It was however, difficult to obtain detailed instructions from Mr Pak, who was not forthcoming with information, even when questioned. Again, Dr Berwick’s evidence was to similar effect, although he finally came to the view that an interpreter was required. That evidence was also consistent with Mr Pak’s conduct when giving evidence. In the principal judgment, I described what occurred when Mr Pak gave his evidence and what use he made of the interpreter (see Kennett No (9) at [13] to [47]).

86 Mr Healey was instructed in 2003, he then drafted the initiating summons, although, on his evidence he was then not very experienced in s 106 matters. He explained that on his initial instruction, while he was aware that Excelsior was the vendor of the College, he did not believe that it was a necessary party to the proceedings. When he later again turned his mind to the question, after the Court of Appeal gave its judgment in Yim v Industrial Relation Commission of NSW [2007] NSWCA 77; (2007) 162 IR 62, there was in his opinion a limitation problem, because of the provision made in s 108B of the Act. The position of Excelsior had not arisen in conciliation, or in the jurisdictional argument. When it arose in final submissions, no application was made to join Excelsior, Mr Healey explained, because of the limitation difficulty.

87 While Dr Berwick had advised as to the amendment of the summons on various occasions, he never advised that Excelsior should be made a party to the proceedings. Mr Healey explained that the applicants were not seeking to shelter themselves from consideration of whether Excelsior owed money to the respondents. That position had never been discussed. The claims advanced in relation to the sale of the business were based on the applicants’ shareholding in Excelsior and the understanding that they were parties to the sale contract. He had repeatedly asked for, but was not supplied with a copy of the contract. Professor Kennett could not do so, because he said that ‘I am not paying Rhodes & Associates to release the file’. Nevertheless, Mr Healey always understood that Excelsior was the vendor of the College.

88 Mr Healey had to draft the summons without seeing the relevant documents. It was necessary to file the summons, given the statutory 12 month limitation period. On the applicants' instructions, he formed the view that the case as pleaded had reasonable prospects of success. Dr Berwick’s evidence was to similar effect. This evidence was not challenged.

89 Mr Healey instructed counsel to appear at the conciliation conferences. Dr Berwick was not initially available and so other counsel were engaged. Dr Berwick was briefed from the fourth conciliation conference.

90 Mr Healey’s evidence was that he found it difficult to obtain instructions from Professor Kennett, who was always extremely busy and travelled overseas regularly, often without notice, and that he was often unavailable to confer with him or counsel. Mr Healey never took a proof of evidence from Professor Kennett. Initially, Professor Kennett instructed that he did not have the financial records of Excelsior, he had been locked out of the College and could not get access to them. Later, however, he found records at his house. Professor Kennett denied this, on his evidence the documents he found were with Mrs Brash.

91 Mr Healey claimed that he relied on Dr Berwick’s advice and that 'at no stage in the proceedings did Dr Berwick express a view that the proceedings, or any aspect of them, did not have reasonable prospects of success'. This was challenged in cross examination. That evidence may not be accepted, given the written advice given by Dr Berwick at various times, which included, for example, in April 2005, that in his view there were numerous difficulties with the claimed unfairness of the sale agreement and that he had thus recast the summons in order to concentrate ‘on the loss of promised employment opportunities rather than loss of a purchase price’, which reduced the amount of the claim. Dr Berwick said:

92 Instructions to proceed were sought from the applicants, Dr Berwick complaining about Mr Healey's inattention to the matter and his unwillingness any longer to meet with the applicants, in the absence of a solicitor. Dr Berwick’s evidence was that in 2005, he was concerned to get the primary affidavits on, the proceedings then having been on foot since 2003.

93 This advice from counsel resulted in the most extraordinary reply from Mr Healey on 13 April, in regrettably intemperate terms, but not, it seems advice to the applicants as to the real nature of the difficulty Dr Berwick had identified. In his letter to the applicants of that same date, much of what Dr Berwick had said to Mr Healey was outlined, but Mr Healey there made no reference to Professor Kennett’s mistaken belief as to profitability. As Kennett (No 9) demonstrated, Dr Berwick’s assessment in April 2005 was correct. There was no such profit.

94 On Dr Berwick’s evidence, Professor Kennett’s mistaken belief as to profitability was, nevertheless, a matter he repeatedly discussed with the applicants. Professor Kennett’s repeated response was that he had relied on Mr Pak for this understanding. Dr Berwick raised the possibility that a conflict might exist in his letter of 11 April to Mr Healey. The applicants instructed him to proceed.

95 As was Dr Berwick’s evidence, he made repeated contact with Mr Healey in relation to the need to ensure effective preparation and presentation of the applicants' case. Repeatedly, when the matter came before the Court, the applicants were in default.

96 Mr Rossetto was first engaged to advise the applicants on the question of profitability, at Dr Berwick’s instigation. There can be no question that if the applicants' claims in relation to the sale agreement were to succeed, the applicants needed to call expert evidence. In Mr Rossetto’s later correspondence, he advised that he found it difficult to obtain instructions or relevant documentation from the applicants. Mr Rossetto advised in writing on 14 April 2005 that he had reviewed the sale contract and Excelsior’s financial statements for a number of years leading up to June 2002. On the information available to him, he was not able to place a value on the company’s net profit.

97 On 4 May 2005, Dr Berwick again wrote to GH Healey, complaining about Mr Healey’s inattention to the matter, enquiring of a Ms Tan, what action was being taken in relation to expert evidence, in the face of ongoing criticism from Marks J as to the applicants’ inactivity.

98 On 5 May, Dr Berwick wrote again, in response to instructions that Mr Pak now claimed that it was Mr Campbell who had suggested a profit figure of $300,000. Dr Berwick advised that it was important for this to be reflected in an affidavit. Dr Berwick also expressed concern about Mr Pak’s understanding, and suggested that a Korean interpreter be engaged. That suggestion was not taken up.

99 On 22 July, Mr Rossetto confirmed to GH Healey that without further information, he could not make any assessment as to the profitability of the College. There were ongoing problems with the expert evidence. Professor Kennett was reluctant to fund what was involved. Dr Berwick was of the view that if properly resourced, Mr Rossetto could give the necessary evidence, but Mr Prior was then engaged.

100 On 10 November 2005, Mr Healey wrote to Dr Berwick, in relation to an appearance before Staunton J, when the applicants were again in default of the Court's directions. He advised that Mr Prior had been retained, who had suggested that summonses to produce documents be served.

101 Those summonses were issued by the applicants and documents were produced to the Court by the respondents, but the documents were never provided to Mr Prior. There has never been any proper explanation given by Mr Healey as to how this oversight occurred. Those documents included Mr Traynor’s working papers, which had led him to the view that the College was trading at a loss. Those documents were crucial to the views Mr Prior had been asked to reach, that the College had a profit of over $300,000. This omission can only have been as the result of errors made on Mr Healey’s part, in the conduct of this litigation. He had day to day carriage of the matter while others from his office attended to various matters from time to time, they were plainly acting under his direction. As Dr Berwick explained, if those documents had been inspected by Mr Healey, or anyone else engaged with him on the matter, their significance had not been appreciated. No one informed Dr Berwick, Professor Kennett or Mr Prior of the existence of these documents. Mr Prior swore an affidavit in September 2006, without having seen this material.

102 When the materials later came to light, with the service of Mr Traynor’s affidavits, Mr Prior resiled from the opinions he had expressed. In Kennett (No 5) leave to file a new expert's report, and other underpinning evidence, was given.

103 As Dr Berwick explained, in Mr Campbell’s case, he was already a respondent when he was first briefed. The complaint was that he and Mr Traynor bullied and harassed Mr Pak and Professor Kennett into giving away their College, in circumstances where the share price of Garratt’s subsequently plummeted. He was a proper party, in Dr Berwick’s opinion, on the instructions.

104 Dr Berwick’s evidence was that he had not been informed about the strike out motion, until a day or so before the hearing. The non-joinder of Excelsior was not relied on by the respondents, at that stage. It was a point which had occurred to Dr Berwick, but given the statutory limitation period and the fact that the respondents had not relied on its absence to support the strike out, he did not concern himself with its absence. At that stage, the respondents had invited a settlement offer and Mr Berwick sought to convince his clients to make one, but without success.

105 In February 2007 Dr Berwick had written again, urging the finalisation of the evidence which Mr Prior had concluded, needed to be prepared. In March 2007, Dr Berwick wrote again, when no one had attended an arranged conference, noting the need to further amend the summons, which required input from Mr Prior’s new report. Dr Berwick’s brief had been taken and its return was also urged.

106 In April 2007, Dr Berwick wrote again, urging that an offer of settlement be made by the applicants, saying:

107 In June 2007, Dr Berwick wrote again, noting that Mr Prior's further report remained outstanding and that 'I cannot make any estimate as to the likely success of this case.' He noted that he was waiting on instructions as to the offer that Mr Traynor be let out of the case and that he had received no instructions on another offer which had been made to the applicants. Dr Berwick urged that this offer be accepted. In his view, the case against Mr Traynor depended on Mr Prior’s view that Mr Traynor had breached an accounting standard. Dr Berwick thought that the claim was a difficult one, albeit not hopeless. Professor Kennett instructed that he did not wish to let Mr Traynor out.

108 Dr Berwick explained the ongoing difficulty experienced in obtaining evidence from Mr Prior. A number of documents, which Dr Berwick described as ‘works in progress’, were produced and discussed in the context of the requirements in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. When Mr Prior finally swore his further affidavits, he still had concerns about the adequacy of his report. Later his opinions were withdrawn when Mr Traynor’s working papers were produced. During the course of the hearing, undertakings were given that a final report would be provided, but Mr Prior was unable to do so until July 2007. Dr Berwick understood that the problems had flown from the exercise being undertaken in relation to ‘theoretical revenue’, on which Mr Prior had been working with Mrs Brash.

109 On Dr Berwick’s evidence, Professor Kennett was always adamant that he was entitled to the full compensation which he claimed. The applicants were repeatedly encouraged to make offers and to accept offers which they received by both Mr Healey and Dr Berwick. Professor Kennett was not interested in any compromise. That evidence was corroborated by Mr Healey and by the fact that the applicants made no offers and accepted none that were made to them.

110 Mr Healey explained that he first learned of Dr Berwick’s illness on 22 February 2008, when Dr Berwick told him that he was ill and would have to withdraw. Nevertheless, in previous months Mr Healey had noticed various unusual behaviours. Dr Berwick and his treating medical practitioners confirmed that the difficulties experienced during the hearing on 20, 21 and 22 February 2008 were the consequence of that illness. Eventually, Dr Berwick came to the realisation that he had to withdraw and seek treatment. It was on 22 February that he informed Mr Healey, his opponents and the Court of his difficulty.

111 Dr Berwick said that despite all of the difficulties encountered, the case which he had recast, namely that advanced in relation to the applicants’ consultancy agreements, finally succeeded. It was the case which the applicants persisted with, in the face of his advice, in relation to the sale of the College, which failed.

Orders sought under Rule 209 - expenses paid direct by Professor Kennett

112 The parties were in agreement that the onus which fell on the applicants, to establish the orders which they sought, had to be approached in the way discussed by the Court of Appeal in Lemoto.

113 It became apparent in submissions that the orders sought were orders which would result in relieving Professor Kennett of the obligation to pay any professional costs and disbursements to either counsel, or his solicitors, in relation to the entirety of the proceedings, as well as positive orders requiring the repayment of expenses associated with the litigation, which Professor Kennett had himself already paid direct, not as disbursements incurred by his solicitors. This included the expenses incurred in retaining other counsel, who had appeared before Dr Berwick had been briefed; engaging witnesses, including various expert witnesses; Court filing fees and photocopying expenses. Orders requiring that counsel and the solicitors should indemnify Professor Kennett against costs orders made against him and in favour of the respondents, were also sought.

114 It is convenient, initially, to consider the extent of the orders which may be made under Rule 209 of the Industrial Relations Commission Rules. There was no issue between the parties that orders made under Rule 209, could include not only professional costs, but disbursements, in respect of which reimbursement was sought by a legal practitioner. There was no consensus that the Rule permitted orders requiring the repayment of expenses of the litigation, which had not been incurred by the legal representatives, but which had earlier been paid directly by Professor Kennett.

209 Barrister or solicitor or agent to repay costs due to delay, misconduct etc

(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Commission that a barrister, solicitor or agent is responsible, the Commission may, after giving the barrister, solicitor or agent a reasonable opportunity to be heard:

(a) disallow the costs as between the solicitor or agent and the solicitor’s or the agent’s client,

(b) disallow the costs as between the barrister and that barrister’s instructing solicitor or as between the barrister and the client,

(c) direct the barrister, solicitor or agent to repay to the client costs which the client has been ordered to pay to any other party,

(d) direct the barrister, solicitor or agent to indemnify any party other than the client against costs payable by the party indemnified.

(2) Without limiting the generality of sub rule (1), a barrister, solicitor or agent is responsible for default for the purposes of that sub rule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the barrister, solicitor or agent:

(3) The Commission may, before making an order under sub rule (1), refer the matter to the Registrar for enquiry and report.

(4) The Commission may order that notice of any proceedings or order under this Rule must be given to the client in such manner as may be specified in the order under this sub rule.

116 It was common ground that the meaning of the word ‘costs’ when used in the Rule, was broad enough to extend beyond professional costs, to include expenses paid as disbursements by a legal practitioner, for which they sought recompense from the client. I can, however, see no basis on which the power to ‘disallow costs as between’ a solicitor or barrister and a client, can be read so as to also encompass an order requiring that other expenses of the litigation paid direct by the client and not incurred by the legal practitioner as a disbursement which the legal practitioner seeks to have reimbursed by the client, may be ordered to be born by the solicitor or barrister.

117 That does not mean that such expenses may not be recoverable at all, but that, it seems, would require a different claim to be pursued elsewhere. In my view, however, the Rule does not contemplate orders that a legal practitioner pay a client in respect of expenses of the litigation, which have been already paid direct by the client and have not been incurred as disbursements by the legal practitioner. Such an order would not be an order either ‘disallowing’ the costs as between the solicitor or barrister and the client (Rule 209 (1)(a) or (b)). The order would not concern costs which the client has been ordered to pay to any other party (Rule 209(1)(c)). Nor would such an order require a ‘barrister, solicitor or agent to indemnify any party other than the client against costs payable by the party indemnified’ (Rule 209(1)(d)).

118 The result may seem curious. Perhaps the explanation is that the Rule was drafted at a time when there was an expectation that the expenses of litigation would normally be born, in the first instance, by a legal practitioner, who would later be recompensed by the client for such disbursements, rather than by the client direct.

119 In this case, it was the evidence that the modern practice of a contingency based fee arrangement was agreed between the applicants and their legal representatives, at least at the outset. What the terms of that arrangement were, was not revealed. Presumably, that explains why it was that Professor Kennett bore certain expenses of the litigation direct, including expenses seemingly associated with Mr Pak’s case, such as the costs of an interpreter. Be that as it may, the Rule does not contemplate an order requiring that a legal practitioner reimburse a client for costs the client has already paid directly.

Orders sought against Professor Kennett’s legal representatives - wasted costs

120 Orders were sought under Rule 209(1)(a), (b) and (c). It is convenient to deal with these orders together. Essentially, Professor Kennett sought to be relieved from paying his legal advisers any of their costs, as well as orders requiring them to repay to him, the costs he is ordered to pay the respondents.

121 There was an issue between the parties as to what complaints were in truth being advanced in the applicants' motion and, for the solicitors and Dr Berwick, that given the Court of Appeal’s approach in Lemoto, the applicants had to be held strictly to the complaints which they there made, because the legal representatives were entitled to ‘full and sufficient notice of the complaint’ (at [92] (e)).

122 For Professor Kennett, it was argued that such notice had been given and that his complaints should not be approached technically, because the Court of Appeal had also observed in Lemoto that ‘the procedure to be followed in determining applications for wasted costs must be fair and ‘as simple and summary as fairness permits ... hearings should be measured in hours, and not in days or weeks ... judges must be astute to control what threatens to become a new and costly form of satellite litigation.' (at [92] (g).

123 As was referred to in Lemoto at [85], the Court’s power to make orders against legal representatives is a wide one:

The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor's duty to ascertain with accuracy may suffice. ... It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the Court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the Court and to realize his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action. Thus it may in proper cases take the place of an action for negligence, or an action for breach of warranty of authority brought by the person named as defendant in the writ. The jurisdiction is not merely punitive but compensatory. The order is for payment of costs thrown away or lost because of the conduct complained of. It is frequently, as in this case, exercised in order to compensate the opposite party in the action." (emphasis added)

124 Undoubtedly, the motion and submissions were cast in wide terms. The orders sought were:

1. An Order that the former solicitors for the Applicants, namely, Katarina Muc and/or Gregory Harrison Healey trading as G.H. Healey & Co - Sydney, solicitors, repay to the said Applicants the costs to the said Applicants have paid to the said solicitors.

2. An Order disallowing the costs as between Dr J. Berwick, Barrister and Katarina Muc and/or Gregory Harrison Healey trading as G.H. Healey & Co - Sydney, solicitors.

3. An Order disallowing the costs as between Dr J. Berwick, Barrister and the Applicants.

4. Alternatively, an Order that the Applicants' former solicitors, namely, Katarina Muc and/or Gregory Harrison Healey trading as G.H. Healey & Co - Sydney, solicitors, repay to the said Applicants any costs which the Applicants have been ordered to pay to any other party herein.

5. Alternatively, an Order that Dr J. Berwick, Barrister, repay to the said Applicants any costs which the said Applicants have been ordered to pay any other party herein.

6. Alternatively, an Order that the Applicants' former solicitors, namely, Katarina Muc and/or Gregory Harrison Healey trading as G.H. Healey & Co - Sydney, solicitors, indemnify the said Applicants against costs payable to the applicants to any of the Respondents in the proceedings IRC 3679 of 2003.

7. Further or alternately, an Order that Dr J. Berwick, Barrister, indemnify the said Applicants against costs payable by the Applicants to any of the Respondents in the proceedings IRC No. 3679 of 2003.

126 From the submissions advanced at the hearing it became evident that an order was sought in relation to the entirety of the proceedings, even, for example, costs incurred in attending the unsuccessful conciliation conferences, including the fees of counsel engaged, Mr Hughes and Mr Somerfield. No complaint was made in the motion about this aspect of the proceedings and how such an order could be made, was not explained other than by reference to the fact that the overall conduct of the matter had to be considered, as did the fact of any orders made in favour of the respondents. I am unable to see how that is a basis on which the orders sought could rest, given the Court of Appeal's approach in Lemoto.

127 In written submissions, it was revealed that the wasted costs about which the applicants complained were:

20.9.06	Application for adjournment to refer to Full Bench and read Mr Prior's further report
10.4.07	Leave application to rely on second further amended summons and adjournments
13.4.07	Seek leave to file further affidavit and further amended summons
12.6.07	Notice of Motion to file further affidavits by Mr Prior, Professor Kennett and Mr Pak
14.6.07	Further application for adjournment of Notice of Motion of the Applicant's use of interpreter by Mr Pak.
15.6.07	Late start regarding issue of interpreter
19.6.07	Adjournment due to lay witness (Mrs Brash) unavailable and issue of interpreter; Prior's report incomplete - further time sought
26.7.07	Seeking leave to adduce further evidence from Prior, Rodgers and Brashs. Two motions were being dealt with, one dated 8 June 2007 and the other 12 June 2007. The Court observed at p. 695 and p. 696 that the evidence was to be put on a long time ago. Page 699 the court critizes Dr Berwick for his lateness
3.8.07	Hearing of applications adjourned from 26 July 2007.
11.9.07	Adjournment occasioned by amendment of Notice of Motion - interpreter not available.
17.9.07	Adjournment granted to allow Dr Berwick to confer with Mr Prior.
19.9.07	Hearing of Notice of Motion regarding further evidence from Professor Kennett
20.9.07	Adjournment application due to Dr Berwick having conflicting commitment in criminal trial
21.9.07	Adjournment to allow Dr Berwick to take instructions regarding closure of case; difficulty in obtaining instructions from Mr Healey
19 and 20.2.08	Adjournment application for the purpose of providing written submissions (para 49 judgment 27 May 2008)
21.2.08	Adjournment sought and granted (para 56, 27 May 2008 Judgment)
22.2.08	Further application for adjournment to stand over the matter generally to file further written submissions (paras 57 and 58 judgment 27 May 2008)
Feb-Mar	retaining alternative counsel, Mr Latham for hearing on 11-13 March 2008 (T 13 22.2.08)

128 This table apparently came from a notice of motion filed by one of the other respondents, which had pursued, but settled, claims against the applicants' legal advisers in relation to costs. This, it was argued, had given Dr Berwick and the solicitors adequate notice of what was claimed against them in this respect, at least. There is an obvious difficulty with that submission it seems to me, but finally nothing turns on this.

129 Even if it be accepted that sufficient notice had been given about this aspect of the claimed orders, the approach adopted did not establish what was contemplated by the Court of Appeal in Lemoto. There McColl J, with Hodgson and Ipp JA agreed, observed at [92] - [93]:

92 The new Division 5C should be construed against the background of the following principles which can be gleaned from the English and Australian authorities which have considered the power to order legal practitioners to pay the costs of proceedings in which they have represented parties:

(a) The jurisdiction to order a legal practitioner to pay the costs of legal proceedings in respect of which he or she provided legal services must be exercised "with care and discretion and only in clear cases": Ridehalgh (at 229), Re Bendeich [1994] FCA 1504; (1994) 53 FCR 422; Deputy Commissioner of Taxation v Levick [1999] FCA 1580; (1999) 168 ALR 383 per Hill J at [11]; Levick v Deputy Commissioner of Taxation [2000] FCA 674; (2000) 102 FCR 155 at [44]; Gitsham v Suncorp Metway Insurance Ltd [2002] QCA 416 at [8] per White J (with whom Davies and Williams JJA agreed); De Sousa v Minister for Immigration [1993] FCA 146; (1993) 41 FCR 544; Money Tree Management Service Pty Ltd v Deputy Commissioner of Taxation (No 3) [2000] SASC 286;

(b) A legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he or she acts for a party who pursues a claim or a defence which is plainly doomed to fail: Ridehalgh (at 233); Medcalf v Mardell [2002] UKHL 27; [2003] 1 AC 120 at [56] per Lord Hobhouse; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1998) 156 ALR 169 (affirmed on appeal, Flower & Hart (a firm) v White Industries (Qld) Pty Ltd [1999] FCA 773; (1999) 87 FCR 134); Levick v Deputy Commissioner of Taxation; cf Steindl Nominees P/L v Laghaifar [2003] QCA 157; [2003] 2 Qd R 683;

(c) the legal practitioner is not "the judge of the credibility of the witnesses or the validity of the argument": Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297; the legal practitioner is not "the ultimate judge, and if he reasonably decides to believe his client, criticism cannot be directed to him": Myers v Elman (at 304, per Lord Atkin); Arundel Chiropractic Centre Pty Ltd v Deputy Commissioner of Taxation [2001] HCA 26; (2001) 47 ATR 1 at [34] per Callinan J;

(d) A judge considering making a wasted costs order arising out of an advocate's conduct of court proceedings must make full allowance for the exigencies of acting in that environment; 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: Ridehalgh (at 236, 237);

(e) A legal practitioner against whom a claim for a costs order is made must have full and sufficient notice of the complaint and full and sufficient opportunity of answering it: Myers v Elman (at 318); Orchard v South Eastern Electricity Board (at 572); Ridehalgh (at 229);

(f) Where a legal practitioner's ability to rebut the complaint is hampered by the duty of confidentiality to the client he or she should be given the benefit of the doubt: Orchard v South Eastern Electricity Board (at 572); Ridehalgh (at 229); in such circumstances "[t]he court should not make an order against a practitioner precluded by legal professional privilege from advancing his full answer to the complaint made against him without satisfying itself that it is in all the circumstances fair to do so": Medcalf (at [23] per Lord Bingham);

(g) The procedure to be followed in determining applications for wasted costs must be fair and "as simple and summary as fairness permits...[h]earings should be measured in hours, and not in days or weeks... Judges ... must be astute to control what threatens to become a new and costly form of satellite litigation": Ridehalgh (at 238 -- 239); Harley v McDonald [2001] UKPC 18; [2001] 2 AC 678 at 703 [50]; Medcalf (at [24]).

93 The authorities concerning the sparing exercise of the jurisdiction to make wasted costs orders against legal practitioners (sub-paragraph (a)) are consistent with cases in which orders are sought that a lay non-party pay the costs of litigation; such an order is exceptional: Aiden Shipping Co Ltd v Interbulk Ltd [1986] AC 965 at 980 per Lord Goff; Taylor v Pace Developments Ltd [1991] BCC 406 at 410; Symphony Group Plc v Hodgson [1994] QB 179 at 192-3 per Balcombe LJ; Flinn v Flinn [1999] VSCA 134 at [24].

130 When asked in submissions to provide an explanation of what appeared in this table, so that the submission that there had been delay and resulting wasted costs on the occasions specified, as a consequence of the legal representatives' conduct of the proceedings, could be understood, it was submitted for the applicants that they had no obligation to give such an explanation. This was because there was an apparent pattern of wastage flowing from delay, which these occasions evidenced. The information so provided as to such delay was argued to be a sufficient basis for that pattern to be identified and, for the claim for a costs order in relation to wasted costs to be sustained. To do more would take too long, inconsistent with the emphasis in Lemoto on simplicity of process.

131 I am entirely unable to accept that submission. Lemoto is concerned with misconduct which leads to loss, in a context where there is an emphasis on prompt and efficient disposal of litigation, as a core element of the proper administration of justice. A legal practitioner’s duty to the Court to ensure that the business of the Court is conducted with expediency is also emphasised. A complaint that there has been delay or even a 'pattern of delay', is not sufficient. There can be real difficulty in determining who is responsible for particular delay as between a party and their legal advisers. In this case, there appears to have been a mix of problems flowing from the approach and conduct of the applicants, their legal representatives and the failure of the expert to produce evidence within required timeframes.

132 In order for an application such as this to succeed, what has to be established is firstly, that delay has occurred and secondly, that the legal practitioner is responsible for that delay, with resulting wasted costs, which the client ought not, in fairness, to have to pay.

133 In his evidence, Mr Healey denied that he and his firm had failed to attend to the matter in a timely way. He agreed that there had been repeated warnings from various judges as to failures to comply with directions, but expressed the opinion that case management had been taken too far, and that various delays had resulted from problems with putting on expert evidence. I certainly do not accept that Mr Healey and his firm had no responsibility for the difficulties which occurred. The judgments already given do not permit that conclusion. The onus, nevertheless, fell on Professor Kennett to establish what failures Mr Healey and Dr Berwick truly had responsibility for. This table did not meet that onus.

134 While in Lemoto the Court of Appeal contemplated a summary process, for the consideration of a application such as this, it did not envisage a cursory one. As it observed, the jurisdiction to order a legal practitioner to pay the legal costs must be exercised 'with care and discretion and only in clear cases.'

135 The briefest reference to the table shows that the problem identified by Marks J and the Court of Appeal in Re The Black Stump was not addressed. Assuming there was delay, who was responsible? Mr Healey, Dr Berwick, Professor Kennett, Mr Pak or Mr Prior? Nether Mr Pak nor Mr Prior was called to give evidence, but the evidence which was led left no doubt that they, as well as the legal representatives and Professor Kennett, contributed to the problems repeatedly encountered in the case.

136 The difficulty with the approach adopted was put beyond doubt by what was pointed out by Mr Darke SC. The briefest analysis, even of the first adjournment application relied on in the table, by reference to the transcript of the proceedings that day, showed that on the first day of the hearing of the jurisdictional argument, an application was made at the outset of the hearing by Dr Berwick, that the argument was one which should be heard by the Full Court. He sought an adjournment of the hearing, so that the Full Bench could be approached. That application was opposed by the respondents and the application was then rejected. The argument was short and the hearing then proceeded. Neither delay, nor wasted costs could thereby be established. Another example pointed to was one occasion relating to a delay when Mr Pak was caught up in traffic.

137 The onus which fell on Professor Kennett could not be established without taking the Court to what in fact occurred on the occasions that it is claimed that there was delay, for which the legal representatives were responsible. While it was complained that what was necessary to be done to meet this onus would take too long, what Mr Darke was able to point to, by a momentary examination of the relevant transcript, showed that not only would the required exercise not take long, it was vital. In his submissions, Mr Craddock made similar observations in relation to other of the entries in this list. Still, the exercise was refused to be undertaken for the applicants.

138 It may be that this claim has some merit, given the critical observations repeatedly made in the judgments, but that cannot be judged, no real attempt having been made to meet the onus which fell on Professor Kennett. Without that exercise being undertaken, there was no case for the legal practitioners to meet and none for the Court to consider. Consequently, no orders can be made on this basis.

139 Professor Kennett’s case was otherwise pressed both on the basis of inaction and action, which he claimed led to unnecessary costs being incurred, costs being wasted and costs orders being made against him. As to inaction, the case advanced rested in a large part on the complaint that the legal representatives had been negligent in not ensuring that Excelsior was a party to the proceedings. It was argued that it was a necessary party and that its absence led to the entire claim that the sale contract was unfair being a futile exercise, which never had any prospects of success. The fact that the claim was run in its entirety and failed on the merits, was irrelevant.

140 There is no question that although the vendor company was an obvious party to the proceedings brought by the applicants, it was never made a party. There is also no question that the applicants always themselves knew who the vendor of the College was. They were the working proprietors of the College, through their directorship and shareholding in Excelsior, which owned the College. On the evidence, when the applicants first instructed Mr Healey in 2002, they did not have copies of the sale documents, but they instructed him as to Excelsior’s role in the transaction.

141 Dr Berwick was not briefed until December 2004. Even at that point, it appears that the sale documents had not been obtained. He appeared for the applicants at the fourth conciliation conference before Kavanagh J and later advised and appeared for the applicants in the proceedings, until he withdrew during final submissions.

142 The Court’s directions are intended to get parties to ligation such as this into conciliation quickly, before much expense is incurred. The initiating summons was later amended a number of times, but Excelsior was never added as a party. The absence of Excelsior as a party was not a point taken by the respondents at the jurisdictional hearing. On his evidence, Dr Berwick thought about its addition at this stage, but never took the steps necessary to achieve that result, regarding it to be unnecessary in the circumstances and potentially creating difficulty in the proceedings. Its absence as a party did not arise until final submissions, after Dr Berwick had withdrawn from the proceedings.

143 At that stage, the applicants had conceded that they had not established that the College had made any profit at all, but yet still persisted with their claim that the money orders claimed should nevertheless be made in their favour, in respect of the originally agreed sale price of the College, which depended on a profit of $300,000. When the absence of Excelsior was raised as creating an obvious difficulty, for making of the orders still pressed, no application for its joinder was made. As was submitted, it was arguable even at that point, that joinder could have been ordered, had it been sought. Dr Berwick explained that he had proposed to put arguments as to why its presence as a party was unnecessary.

144 On Mr Healey’s explanation in cross examination, at that stage, he took the view that such an application could not then be made, given the provisions of s 108B of the Act, which provides a time limit for commencement of proceedings under s 106 of the Act, to ‘not later than 12 months after the termination of the contract’, with the possibility of a further three months extension, in ‘exceptional circumstances’.

145 Did this establish, as was argued for Professor Kennett, that the absence of Excelsior made the entire proceedings a futility from the outset and that there might have been a different result, if it had been a party, so that he ought to be relieved of the obligation to pay his legal representatives any of their legal costs and to have them repay any costs which he is ordered to pay the respondents?

146 I am unable to come to the conclusion urged. Not only did the claim in relation to the consulting agreements succeed, but the merits of the claim advanced by the applicants in relation to the sale of the College, was argued in full, despite the absence of Excelsior. The problem was that the claim failed comprehensively, as the applicants themselves conceded in submissions. Not only did the applicants fail to establish a profit of $300,000, or that any profit at all was achieved by the College as they had represented to the purchaser before the sale, they otherwise failed to establish the unfairness claimed in respect of the sale agreement. Even if Excelsior was a party, the claim would have failed.

147 The absence of Excelsior as a party to the proceedings was dealt with in two ways in the judgment. The first, in considering how it came to be that money orders were being pressed in relation to the sale contract, even after the applicants had conceded that they had not established any profit. The basis on which that order was being pressed was sought to be explored with the applicants' counsel in submissions, after Dr Berwick had retired. It was in that context, that it was conceded for the applicants that orders of variation of the sale contract could not be made, because the other party to that agreement, Excelsior, the vendor company, was not a party to the proceedings, having regard to the judgment in Yim.

148 It was here argued that joinder could have been ordered if sought, on the approach of the Full Bench of this Court in Crowe v UCS Developments Pty Limited [2003] NSWIRComm 234; (2003) 130 IR 266, and of the Court of Appeal in Unitedglobalcom, Inc v Industrial Relations Commission (NSW) (2005) 142 IR 204 and BEA Systems Pty Limited v Industrial Relations Commission (NSW) (2005) 63 NSWLR 347. Reference was also made to the judgment of Marks J in Gorman and anor v Parkinson and ors [2008] NSWIRComm 99, where his Honour also had to deal with a situation where the relevant contractual party was not a party to the proceedings. He took the view that the proceedings were not a nullity and that:

27 Of course, as is well established by authority, a Court should not make an order "which directly affects a third person's rights against or liabilities to a party....unless the person is also joined as a party." per Lockhart, von Daussa and Sackville JJ in News Limited at [524]. Nevertheless, I could not preclude, for the purpose of this interlocutory proceeding, that this Court would not make orders varying or avoiding the contract with the Institute despite the Institute not being joined as a party to the proceedings. The Court might need to consider arguments to the effect that the applicants would not seek to enforce any monetary order against the Institute and that the only persons who were shareholders in and the controlling mind of the Institute are otherwise named as respondents to the proceedings. Of course, I raise these matters merely by way of conjecture.

149 No matters of this kind were of course addressed in submissions in this case. If joinder had been sought, no doubt further expense would have been incurred in running the joinder argument, but nothing positive would have been achieved, so far as the applicants were concerned, even if joinder had been ordered. That was because the applicants had run their case on the merits and it had failed, as they had themselves already acknowledged. The difficulty was not that the absence of Excelsior frustrated any order being made in favour of the applicants. The problem was that they had failed to show the unfairness of the sale agreement which they claimed.

150 The second way in which the absence of the vendor company arose for consideration was when the calculation of money orders came to be considered. It was not in dispute that there was money owing by Excelsior to the first respondent under the sale agreement. The applicants were the directors and shareholders of the company and had the benefit of that money. On the evidence, after the sale, while working for the purchaser, Mr Pak took a cheque for student fees which should have been paid to the purchaser and which, instead, he banked in Excelsior's account. That money had never been returned. Through their shareholding in Excelsior, both Professor Kennett and Mr Pak had received the benefit of that misappropriated money. Understandably in those circumstances, in final submissions the applicants conceded that in formulating the money orders which they were pressing the Court to make in their favour, regard could be had to the evidence as to this and other money owed by Excelsior. The formulation of money orders was approached on that basis, even though the applicants later objected to that course (see Kennett (No 10)).

151 As has oft been observed in the authorities, applicants in proceedings such as this, must come to the Court with clean hands, if seeking the exercise of the Court's discretion in their favour. If Excelsior had been a party, that would, of course, have merely provided another foundation for the approach adopted to the formulation of the money orders made.

152 In Lemoto, the Court of Appeal considered how applications such as this must be approached and the onus which falls on an applicant, who seeks orders of the kind here pressed. Orders such as this are regarded as exceptional. A mere mistake, or error of judgment by a legal practitioner is not a sufficient basis upon which such an order may be made. Such orders are not only compensatory, but also disciplinary orders.

153 I am satisfied that the applicants failed to meet those tests, so far as the absence of Excelsior as a party to the proceedings is concerned. At [92](b) in Lemoto, McColl JA observed that one of the principles by which applications such as this must be governed is that:

154 At trial, the claim made in relation to the sale agreement was shown to have been such a claim. It was not the absence of Excelsior as a party to the proceedings which brought about that result. Contrary to the opinion to which Professor Kennett still held in giving his evidence as to his costs application, the claim pressed by the applicants in relation to the true profitability of the College simply never had any basis in fact. It always rested on the applicants’ misunderstanding of information provided by Mrs Brash to Mr Pak, their entirely inadequate record keeping and their inattention to the true state of the affairs of the College. On the evidence, similar problems continued during the course of these proceedings.

155 The legal representatives could not reasonably be expected to have appreciated this, especially at the outset, when Mr Healey received instructions. Dr Berwick came to this realisation in 2005, drew it to attention, but the applicants pressed on, with the assistance of Mr Prior. Given the difficulty which the accounting experts appear to have experienced in dealing with the records which the applicants maintained, when they were finally uncovered by Professor Kennett and procured from Mr Traynor, it would be to expect the impossible, to have expected the legal representatives to discern from the outset, that the case pressed in relation to the unfairness of the sale agreement, would eventually be revealed to have been an entirely hopeless one, because it rested upon the applicants' misunderstanding of the profitability of the College. That was finally revealed both by the expert evidence led at trial, and also through the cross examination of Professor Kennett, Mr Pak and other witnesses such as Mrs Brash and Mr Brash.

156 Finally, it seems to me, that the jurisdictional judgment, where the applicants demonstrated an arguable case, their evidence then being taken at its highest, provides an insuperable difficulty for the applicants in making out a claim that the proceedings were always, in reality, a futility, even in part.

157 While in submissions there was some concession for Professor Kennett that a costs order would have to take proper account of the success achieved on the jurisdictional point and the later success on the merits of the claims advanced in relation to the consultancy agreements, the orders pressed were not reformulated to reflect that concession, nor were submissions advanced as to how that would be achieved.

158 I am satisfied that the failure to join Excelsior as a party to the proceedings, is not a basis upon which the order sought might justly rest.

159 Professor Kennett next complained that the joinder of these respondents was unnecessary; resulted in considerable costs and in their absence, the case ‘would have been concluded in a relatively short period of time, much shorter than the extended hearing time of 23 days’.

160 Mr Campbell was a director of Garratt's, a public company. He had conducted the negotiations with the applicants, who claimed that they had been bullied by Mr Campbell and Mr Traynor into accepting an unfair price for the College. That case was not made out. Mr Traynor had been engaged by the purchaser, to conduct a due diligence exercise, as to the College's profitability, which was claimed to have been misrepresented. That case was also not made out. That there was difficulty with the case advanced in respect of Mr Traynor was apparent from the jurisdictional judgment given in Kennett (No 4) (at [120]).

161 Nevertheless, on his own evidence, Professor Kennett thought that the personal respondents should be parties to the proceedings, given their involvement in the unfairness about which he complained, essentially a collusion which deprived the applicants of promised work and a fair price for the College which they had sold as a going concern. That was the basis of the original instructions given by Professor Kennett, as reflected in his own evidence and the original summons filed in 2003. The High Court’s judgment in Brown v Rezitis was regarded as providing a foundation for the legal representatives’ view that orders might be made against these personal respondents, if an evidentiary case was made out to support those instructions.

162 That the addition of the personal respondents lengthened the proceedings is difficult to see. No evidentiary case was finally put on for Mr Traynor, although he defended the case brought against him. While he swore affidavits which were filed and served, Mr Traynor was not called to give evidence. It was the applicants who tendered one of his affidavits in their case. At trial there was an examination, through the applicants' expert evidence, of the due diligence exercise which Mr Traynor had conducted; necessary even if Mr Traynor had not been a party, given that it was this exercise which the applicants claimed was flawed and wrongly concealed the $300,000 profit which the College had in reality made. Complaints were also advanced against Mr Campbell in relation to the unfairness of the consultancy contract.

163 Mr Campbell also gave evidence in the proceedings, but that would have been necessary in any event, given that he represented the purchaser in the negotiations. In these circumstances, I am unable to see how the absence of Mr Campbell and Mr Traynor as parties to the proceedings would have resulted in a great deal of time saving.

164 No doubt joining Mr Campbell and Mr Traynor added to the costs of the proceedings. That they were not necessary parties to the claims advanced, given that this was a case where there was never a suggestion that any money orders could not have been met by the corporate respondents, one of which was a publicly listed company, is a different matter. That does not mean, however, that there was requisite misconduct on the part of Mr Healey, in their original joinder, given Professor Kennett’s instructions at the outset.

165 The case brought against the personal respondents was that they were culpably associated with the unfairness of the sale agreement, given their conduct at a meeting at which Mr Traynor's due diligence report was discussed, his view being that the College had traded at a loss. At the meeting, a new sales price was agreed between the applicants and Mr Campbell, which was not dependent on profit.

166 The difficulties with the case, as it was prepared and run, became apparent. On Dr Berwick's’ evidence, he advised that that matter should be settled and that the offer to settle with Mr Traynor on a 'walk away' basis should be accepted. Indeed he 'implored' that it be accepted, but Professor Kennett was not interested in that settlement, or any other. In his evidence Professor Kennett agreed that he had received such advice, as he had received advice in relation to other offers, but believed that the advice had been inadequate and perfunctory, particularly because it had not been put in writing. Mr Healey and Dr Berwick disputed this. Their evidence must be accepted. Acceptance of offers made were plainly pursued with Professor Kennett by both counsel and his instructing solicitors. There was no suggestion that Professor Kennett ever asked for any written advice about settlement, but correspondence does refer to offers of settlement received and instructions being pursued.

167 Nor do I accept the claim that the consequence of failing to make out a case against the personal respondents, namely a costs order in their favour, was not appreciated by Professor Kennett, as was argued for him. While Professor Kennett initially denied in cross examination that he had been given advice as to why Mr Campbell and Mr Traynor should be joined, later he said that he could not recall what advice he had been given by Mr Healey and finally he accepted that he had been given advice.

168 On his own evidence he thought they were responsible for the unfairness which he complained about; that was what he had instructed from the outset; he always believed that they ought to have been parties to the proceedings and he rejected advice that the claim against Mr Traynor should be settled, by allowing him out of the proceedings, without even a costs order in his favour.

169 It must also be considered that the practices of this Court are designed to ensure that early in the litigation, before much is incurred by way of costs, the applicants' attention is drawn to what costs might be incurred in the proceedings and the costs consequences, if they do not succeed. In preparation for a conciliation, information as to costs incurred, and those which may be incurred if the case goes to trial, must be exchanged by the parties. Costs is then a matter dealt with at conciliation. Here, there were four conciliation conferences directed at achieving a settlement. On Professor Kennett’s own evidence, he received offers of settlement at conciliation, which he rejected. The conciliations all failed to produce any agreement.

170 As Professor Kennett explained in cross examination, he just could not see why he should himself make any offers of settlement. He believed that he had a case against the respondents. He explained that if advice had been given to him in some different terms, he might have accepted it, especially in relation to Mr Traynor and Mr Campbell. At one point, he vehemently denied being given any advice as to what he risked by refusing to make or accept any offers. This was patently implausible, in the face of the four conciliation conferences and the correspondence in evidence.

171 Dr Berwick and Mr Healey’s evidence, that costs was the subject of advice, is entirely plausible and that of Professor Kennett, that he did not receive such advice, is not. Indeed, at one point in cross examination Professor Kennett agreed that he understood that he was at risk of a costs order, if he did not succeed.

172 On the evidence, the real problem with the pursuit of these proceedings, even in the face of the growing difficulties in making out the case the applicants sought to establish, was Professor Kennett’s persistent belief that he would succeed.

173 The applicants received various offers of settlement, but they rejected all of them and never made any offers of their own. Dr Berwick and Mr Healey’s evidence was that Professor Kennett was not interested in settlement, but always intent on his pursuit of the claim that the College had a profit of $300,000 and that the applicants had unfairly been deprived of the initially agreed purchase price. Even after the hearing of his claim on the merits and its rejection on the evidence, Professor Kennett remained unshaken in his view that the College had such a profit level. That was the evidence he gave in support of his costs application.

174 That, it seems to me, makes the evidence of the legal practitioners as to his disinterest in a settlement entirely plausible, including when it was proposed that he release Mr Traynor, without any costs order. Professor Kennett's claim that he asked, but was never advised as to why he should agree to that offer, was not plausible, particular given Dr Berwick’s evidence that he recommended that course and the evidence as to the steps which he took to ensure that it was followed up with Professor Kennett by the solicitors. Various documents in evidence corroborated that this offer was pursued with Professor Kennett.

175 The idea that Professor Kennett had nothing in writing and no quiet opportunity to consider the question of settlement, may simply not be accepted.

176 Professor Kennett’s evidence that he asked for, but never received advice on what a reasonable settlement of the claim would be, may be accurate, in one sense. The difficulty in the legal advisers giving him such advice was patent, given the difficulty which the experts had in establishing that the College had made profits, as Professor Kennett still believes. Professor Kennett was advised by Dr Berwick to accept the respondents’ 'walk away' offer, made during the course of the protracted hearing. That advice was plainly sound, but given Professor Kennett’s persistent view, even now, as to the profitable state of the College’s operation, the evidence of Mr Healey and Dr Berwick, that he was just not interested in any settlement, must be accepted.

177 It again seems to me that in considering this aspect of the applicants' claim, it cannot be overlooked that the applicants succeeded in resisting the jurisdictional challenge to their claims, their evidence then being taken at its highest. The claims against the personal respondents later failed on the merits, the applicants being unable to establish that the College had achieved any profit. That, and the view that no case had been made out against Mr Campbell, in relation to the claimed unfairness of the consultancy contract, led to the dismissal of the claims against the two personal respondents.

178 Given the approach of the Court of Appeal in Zahos, a judgment given after the proceedings were commenced, the pursuit of the personal respondents was in these proceedings finally dismissed as flawed, given the type of connection with the contract in question, which had to be established if an order was to be made against a non-party to the contract. Even though the view was here initially taken that the personal respondents could be pursued, given the High Court’ approach in Rezitis, why these claims were not settled when the opportunity arose, can only be explained by Professor Kennett’s desire to pursue the claims he was making, contrary to the advice he was undoubtedly given, that the matter should be settled.

179 On the evidence, I cannot be satisfied that the Lemoto onus which fell on the applicants was established in relation to this complaint.

180 There is no question that this case required expert accounting evidence, if it was to succeed. That was apparent from the outset, when instructions were given to Mr Healey. It was the advice of both Mr Healey and Dr Berwick, albeit accepted reluctantly by Professor Kennett, that such evidence was required, if the claim was to succeed. Professor Kennett complains about the delay in obtaining that evidence and the legal representatives' inattention to what was necessary to be done, in order to put that evidence on, in accordance with the Court’s directions.

182 The Court’s processes envisage that the evidence gathering process will not be undertaken until the conciliation process has failed to produce an agreement. That ensures that costs are kept to a minimum, so that they don’t become an impediment to a settlement.

183 When the fourth conciliation failed to produce an agreement, directions were given by Kavanagh J. That necessitated evidence, including expert evidence, being marshalled. On the evidence that was recognised by Dr Berwick, who gave advice accordingly and suggested that Mr Rossetto of Furzer Crestani be instructed. Both Professor Kennett and Mr Healey sought to distance themselves from the engagement of the firm. That evidence seemed to be quite ludicrous. Advice was sought from that firm, with counsel's assistance and the applicants' active involvement. Advice was later received. Documents were supplied and considered, conferences attended, including by the applicants and an account rendered and paid. The April 2005 advice did not support the applicants' claims, causing Dr Berwick to call attention to the problem this presented and the need to overcome it, if the claim was to be pursued.

184 The evidence showed that while Furzer Crestani was engaged and Professor Kennett met with Mr Rossetto on a number of occasions, the information he was provided with, was inadequate. On Professor Kennett’s own evidence, he did not at that stage have all of the relevant documents, they were later discovered to be with Mrs Brash. The legal advisers alone cannot be held responsible for this ongoing problem.

185 In April 2005, Dr Berwick advised Mr Healey in writing that after Mr Rossetto’s investigation, the proposition that the applicants were entitled to the originally agreed price was not sustainable; that more work was required, to generate a profit figure, but that Professor Kennett was not inclined to incur the expense involved, even though the end result of a great deal of discussion and investigation was that neither Professor Kennett nor Mr Pak gave particularly detailed attention to profit at the time of the negotiations with the purchaser of the College. Professor Kennett relied on Mr Pak, who relied on Mrs Brash. Professor Kennett was mistaken in his belief that the College always had a profit of $300,000. This view, of course, was finally vindicated by the judgment given in Kennett (No 9).

186 In the face of those problems, the case was recast, in order to concentrate on the loss of promised employment opportunities. Dr Berwick urged Mr Healey to pay closer attention to the matter and to ensure timetables fixed by the Court were adhered to. Dr Berwick also informed Mr Healey that he was no longer prepared to meet with Professor Kennett and Mr Pak in the absence of a solicitor. Mr Healey wrote to Professor Kennett drawing some, but not all, of Dr Berwick's observations to his attention. He was certainly advised of the difficulty with the claim in relation to the College’s profitability.

187 It was Mr Healey’s evidence that it was at his instigation that Mr Prior was instructed. On Professor Kennett's evidence it was in March 2006 that Mr Prior was engaged, however in correspondence from Dr Berwick to GH Healey of 4 May 2005, Dr Berwick advised that Professor Kennett had left a message that he had engaged a forensic accountant. Dr Berwick sought instructions, observing that if further amendments were to be made to the summons, by which the profit claim was to re-emerge, there would be difficulties in the litigation. He implored someone at the firm to take control of the matter.

188 On the correspondence and the evidence of Professor Kennett and Dr Berwick, Mr Healey's attention to the matter was a matter of ongoing difficulty. I accept that evidence in part. Some of the problems flowed from matters over which Mr Healey did not have control.

189 In further correspondence from Dr Berwick to GH Healey of 5 May, he outlined a change in instructions from Mr Pak, to the effect that it was Mr Campbell who had suggested profitability of $300,000. Dr Berwick suggested that a Korean interpreter be arranged, given these alterations and a doubt as to Mr Pak’s level of understanding.

190 Given what had been done to that point, to produce the necessary expert evidence, that proper attention was not being given by Mr Healey to the matter was apparent. I do not accept Professor Kennett’s case that the problems were of Dr Berwick’s making. To the contrary, in so far as the preparation of the matter was advancing, it was at Dr Berwick’s urging.

191 On 30 June 2005, GH Healey sent draft affidavits of Professor Kennett, Mr Pak and Mrs Brash to counsel, it being noted that the expert’s report had still not been received. On 22 July, GH Healey advised the respondents' solicitors that all evidence in chief had been filed, but there was still no expert evidence.

192 In October 2005, GH Healey wrote to Dr Berwick advising that Furzer Crestani had not produced a report, there had been a breakdown in communication between the applicants and that firm, which did not believe a $300,000 profit could be established. This confirmed what Dr Berwick had advised in April. Mr Prior had been identified as an expert with appropriate investigative background and he had been retained. He had advised on the terms of a summons to produce documents to be issued. The summons was issued and documents were produced, but they were never provided to Mr Prior. Mr Healey’s evidence suggested that this was the fault of the respondents. That may not be accepted. Clearly, responsibility for the fact that documents which he had sought for his clients, which had been produced and which were critical to the expert evidence being prepared and which were simply never provided to the expert, rested with him.

193 Mr Prior was never provided with a letter of instructions, but his brief was quite clear, to show that the College had made the represented $300,000 profit. Mr Healey met with Mr Prior, Professor Kennett and the College’s accountant Mr Rodgers. Professor Kennett was asked to provide documents and to meet further with Mr Prior. Professor Kennett’s evidence was that he produced what was required in a timely manner. That evidence was contradicted by other evidence given by Professor Kennett, as to the circumstances in which he later came to find College records with Mrs Brash and the evidence which he gave at trial. Nevertheless that Mr Healey failed to provide Mr Prior with the subpoenaed documents, eventually led to great difficulty. His reports of April and September 2006, had already been tendered in the proceedings, but they were withdrawn by Mr Prior in February 2007.

194 There had been a series of correspondence from Dr Berwick commenting on various controversial case management issues, which it, GH Healey, had been attending to. In August 2006, Dr Berwick wrote to GH Healey:

195 This was a reference to the advice given by Dr Berwick in April 2005, earlier quoted. In March 2007, GH Healey wrote to Professor Kennett regarding his concern at the time being taken by Mr Prior to produce his report and the cost involved, as well as Dr Berwick’s advice, that unless Mr Prior’s evidence was immediately available, it would not be admitted into evidence. Mr Healey explained what had been done to prepare that evidence and that he had sought to renegotiate Mr Prior’s fees. He advised that without the evidence of Mr Prior, the case was doomed to failure and confirmed that the costs of the proceedings would be born by the unsuccessful party. He also confirmed counsel’s advice as to the need to seek to further amend the summons.

196 In June and July 2007, motions were filed seeking leave to rely on further evidence from Mr Prior. This was dealt with in Kennett (No 5), given on 10 August 2007. There it was revealed that Mr Prior had advised in February 2007, that he could not longer stand by his earlier reports and that it was in March 2007, that he was given access to Mr Traynor’s affidavit and the annexed documents. His further consideration had led him to quite different conclusions. The result was that Professor Kennett was given leave to rely on Mr Prior's further reports.

197 As to Mr Healey, it is relevant to note that I observed in Kennett (No 5) that:

42 The cross examination of Mr Prior showed that after his earlier reports had been filed in 2006, Mr Prior continued to give consideration to his evidence. He was uneasy about the reliability of the Excelsior College records and had the view that a conference of experts would be useful. By February 2007, he had come to the realisation that he could no longer stand by what he had said in his earlier reports and, with the assistance of Mrs Brash and Mr Brash, he had commenced further investigations, which depended on him being provided with other information, including the College's 2001 price list. He explained that in March 2007 he was given access to an affidavit sworn by Mr Traynor which annexed his working papers. Mr Traynor had conducted a due diligence on the College during the sale process. Mr Prior had expressed opinions in his 2006 reports on what Mr Traynor had done. As a result of his consideration of this further material, Mr Prior had come to the conclusion that the Excelsior College records were completely unreliable. That conclusion led to further investigations, which led to the 2007 affidavits and reports. Mr Prior was also later instructed to prepare even a further report, as to his valuation of the College. This report was annexed to one of his 18 July affidavits.

45 As it emerged, the upshot of these developments was that, in truth, while not revealed in the motions themselves, the applicants no longer wished to rely on the opinions expressed in Mr Prior's 2006 affidavits and reports in support of their claims, but wished to now advance their claims by reference to the opinions expressed in Mr Prior's 2007 affidavits, reports and valuations. The respondents, of course, had had no opportunity to have their expert consider, or respond to those new approaches

56 I accepted that proper criticism could be directed to the applicants, for this late and marked change in course, given the stage the proceedings had reached, when this development came forward.

198 That there was a failure by Mr Healey to pay proper attention to what was necessary to be done, to put on expert evidence in a timely fashion, in accordance with the Court’s directions, was confirmed by the evidence led at the hearing as to costs. While what was then revealed showed that some of the difficulties rested with Professor Kennett himself, especially at the stage when Furzer Crestani was engaged, and that much of the later difficulty, after the withdrawal of the first reports, rested with Mr Prior, what Mr Healey was squarely responsible for, was the failure to attend to the documents produced in answer to the summons issued on Mr Prior’s advice, when he was first engaged. There can be no question on the evidence that responsibility for this failure rested with him. On his behalf it was argued that what had to be shown was serious neglect. I am satisfied that this was shown.

199 Had any proper attention been paid to that material by Mr Healey, which was finally only given to Mr Prior when Mr Traynor’s affidavits were filed, the withdrawal of Mr Prior’s original opinions is likely to have been avoided.

200 Professor Kennett’s description of what occurred with the preparation of Mr Prior’s evidence as having gotten entirely out control, must be accepted. That Dr Berwick was responsible for what occurred was not established.

201 I am satisfied that a case has been established against Mr Healey in accordance with the Lemoto tests and that Professor Kennett should be relieved of the solicitor's costs thrown away as the result of the withdrawal of Mr Prior’s original reports. This must include all of the costs associated with the preparation of the original reports, the costs associated with the summons to produce the documents in question and the various reports and hearings which finally resulted in leave to proceed with fresh reports. Professor Kennett should also be reimbursed the costs he has been ordered to pay the respondents, in respect of their costs thrown away as the result of the withdrawal of Mr Prior's original reports, on the same basis.

202 The same conclusion may not be reached in relation to what was done thereafter in pursuit of the case which even now, Professor Kennett believes could have been established. In the face of the correspondence, the judgment in Kennett (No 5), as well as Professor Kennett’s evidence as to his meetings with Mr Prior and the further assistance he gave to him, Professor Kennett’s evidence that he never understood why Mr Prior withdrew his original opinions and that he had protested at and objected to the basis on which Mr Prior sought to establish the claimed $300,000 profit in his second report, may not be accepted.

203 Kennett (No 5) explained how it came to be that Mr Prior's first reports were withdrawn. On his own evidence, Professor Kennett was the driving force behind the pursuit of the claim advanced by the applicants in relation to the sale agreement. The applicants were given every reasonable opportunity to make out that claim, through their own evidence, and the evidence of their expert and other witnesses. Professor Kennett still believes that a $300,000 profit could have been shown, despite what was concluded in Kennett (No 9). He must bear the consequences of his pursuit of that unshakable belief.

204 It was argued for Professor Kennett that Rule 209 of the Industrial Relations Commission Rules contemplated that orders could be made in his favour in respect of the consequences of Dr Berwick’s illness and his withdrawal from the proceedings. What occurred amounted to a default, where the proceedings could not conveniently proceed, or were adjourned, without useful progress. On Dr Berwick’s evidence, the reason why the hearing of the submissions on 20, 21 and 22 February 2008 could not proceed, was the result of the consequences of the illness from which he was suffering. That evidence must be accepted. That being so, it must also be accepted that the order Professor Kennett seeks is available to be made. The Rule in this respect is compensatory, rather than disciplinary.

205 The Rule clearly contemplates that a client such as Professor Kennett may be sheltered from the cost consequences which must inevitably fall upon someone, when such an illness occurs. In the circumstance, I am satisfied that the discretion should be exercised in favour of Professor Kennett, both in respect of Dr Berwick's costs and the costs Professor Kennett has been ordered to pay the respondents, in this respect. Neither Professor Kennett nor Dr Berwick are responsible for Dr Berwick falling ill, but clearly the Rule contemplates that the consequences of such a situation, if it arises, may properly fall on the legal representative, rather than on the client. In this case, that seems to me a just outcome, particularly given the evidence as to how it was that Dr Berwick came to appreciate his illness and to seek treatment and the consequences which resulted for Professor Kennett.

206 There was also a claim that delay resulted from the application to have Mr Pak give evidence through an interpreter, for which the legal representatives had responsibility. Mr Pak’s role in what occurred was not explored. That application was made without notice and an adjournment was sought, so that an interpreter could be arranged. The application was opposed, with the result that a further adjournment was sought, so that relevant evidence could be put on. The adjournment was granted and eventually evidence was given, in part, by use of an interpreter. This, and what resulted, is dealt with in Kennett (No 9) at [13] - [47].

207 I am satisfied that it was not established that Dr Berwick and Mr Healey were responsible for what transpired. Having in mind what I observed in the judgment in relation to Mr Pak and his command of English, when considered with what was here revealed in the evidence, namely Dr Berwick having raised the question of the need for an interpreter long before these applications were made, and Mr Healey's evidence that the problems encountered with communication with Mr Pak were not his command of English, that an inference that it was the legal representatives, rather than Mr Pak, who was responsible for how this application emerged, is not available.

208 Mr Pak had filed a motion in similar terms to that relied on by Professor Kennett, but he did not appear to press it. That motion is dismissed accordingly, with costs.

1. The first and second respondents are to bear the applicants' costs of the hearing of the jurisdictional argument and otherwise, the applicants are to bear the first and second respondents' costs of the proceedings and on an indemnity basis, from the date of the offer of settlement made on 13 September 2007.

2. The costs as between Professor Kennett and his former solicitors, thrown away as the result of Mr Prior resiling from the opinions expressed in his first reports, as dealt with in the judgment, are disallowed.

3. Mr Healey is to repay Professor Kennett the costs he must pay the respondents in relation to their costs thrown away as the result of Mr Prior resiling from the opinions expressed in his first reports, as dealt with in the judgment.

4. The costs as between Professor Kennett and Dr Berwick in relation to the proceedings on 20, 21 and 22 February 2008 are disallowed.

5. Dr Berwick is to repay Professor Kennett the costs he must pay the respondents in relation to the costs of the proceedings on 20, 21 and 22 February 2008.

AMENDMENTS:

30/06/2009 - missing word - the word 'former' inserted before the word 'solicitors' - Paragraph(s) [3] and Order 2

LAST UPDATED:
30 June 2009

Industrial Relations Commission of New South Wales

Kennett and Anor v Mayrana Pty Ltd and Ors (No 11) [2009] NSWIRComm 99 (29 June 2009)