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‘Troubling’: Judge says law firm’s, client’s applications unnecessarily complex
The parties involved in a law firm’s dispute with their former clients have been criticised by a Supreme Court judge for “unnecessarily” complicating the proceedings to determine costs.
Naomi Neilson
Dr Nicholas Chen, a judge of the NSW Supreme Court, said he “felt compelled to record” that he found a number of “troubling features” in two costs applications brought by both Benjamin & Khoury Solicitors & Attorneys and its former client, Dana Rahme.
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In the first, relating to a dismissal by consent of proceedings, the firm submitted there should be no costs order. In the second, Ms Rahme sought to vary a costs order that she pays Benjamin & Khoury in connection with a notice of motion filed in August 2022.
Judge Chen said the applications “generated an extraordinary amount of material”, including four volumes comprising 1,300-plus pages, separately tendered material and 17 affidavits.
“Notwithstanding that I made it clear that I would not be fossicking and ferreting around this material without the specific assistance of the parties during the hearing, as it happens, I was taken to but a mere fraction of it,” Judge Chen said in his written judgment.
The applications themselves took two days to hear.
“This, in and of itself, is concerning; it is particularly so given the underlying proceedings were themselves listed for two days.
“I have no doubt that the hearing of the appeal would have taken less time than the costs argument and involved appreciably less time.”
Judge Chen noted he told the parties he was “surprised” about the volume of material and the length of time the applications were anticipated to take. He said it would have been useful had the parties drawn specific attention to “pointed remarks in decisions … or indeed any authority of any kind”. This did not happen.
“Had it been so, then I would undoubtedly have taken a distinctly different – not to mention firmer – approach to all aspects of, and relating to, the conduct of the hearing,” Judge Chen said.
He added there was no “clear demarcation” between what should be considered on the applications, which has “extended the length of these reasons and unnecessarily increased the complexity”.
In addition to the issue with the applications, Judge Chen said there were concerns with the litigation itself, including the “extraordinary amount of interlocutory and ‘satellite’ litigation”.
“The reference to the interlocutory disputes, and the ‘satellite’ litigation, is not the product of curiosity: the parties’ submissions made considerable reference to it – and, as I have said, assumed intimate understanding of the fine detail of what was raised, argued and decided – such that it has been necessary to refer to them in order to gain of a degree of comprehension of the submissions advanced,” Judge Chen said.
