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Legislative Assembly for the ACT: 2003 Week 8 Hansard (21 August) . . Page.. 3063 ..
MR STANHOPE (continuing):
A disgraced former Canberra lawyer has been ordered to appear in the ACT Supreme Court tomorrow to be quizzed over the extent of his assets and the non-payment of a $448,000 court judgment. ...
The Roche brothers, who now live in Queensland, were ordered in April to pay Canberra lawyers Peter Glover and Peter Sheils, QC, $448,897 over the purchase by Watling Roche in 1998 of the law practice of Sheils and Glover.
This is the significant part:
A punitive costs order was later added by Justice Ken Crispin because of the Roches'-
and I draw this to members' attention-
manifestly groundless defence of the claim and imprudent refusal to settle the case for $400,000, plus costs.
We need to have regard to the language of Justice Ken Crispin in this particular case. He made a punitive costs order because of the Roches', the solicitors, "manifestly groundless defence of the claim and their imprudent refusal to settle the case". The law recognises what it is we are seeking to codify. As I say, this is not startling, it is not radical, it is not new. It is what the courts do in any event.
For the sake of the record and for the information of members-of course you know it is not new to the law; we have seen it as reported in the Canberra Times today-we can refer also to the case of Brendon Ewart William Kelson v David Syme & Co Ltd, ACT Supreme Court 87 (27 August 1998). I will refer to a part of that case relating to the issues we are dealing with here and the fact that these issues are grappled with and dealt with by courts. This is the finding of the judge:
It was submitted by Mr Wheelhouse, who appeared for the defendant, that indemnity costs were awarded only in "clearly exceptional cases or very limited circumstances". In fact, the discretion has been described as "absolute and unfettered", though it is clear that it must be exercised judicially-
And he makes a few references for that.
The exercise of this discretion has been said to be appropriate where there is "some special or unusual feature in the case to justify the court in exercising its discretion in that way"-
That is the case of Preston v Preston, and it has other references as well.
Woodward J expressed the view, at 401, that it was appropriate to consider awarding costs on a solicitor and client or indemnity basis whenever it appeared that an action had been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success, because in such cases the action could be presumed to have been commenced or continued for some ulterior motive or because of some wilful disregard of the known facts or the established law.
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