[2024] SASC 71

Applicant: MATTHEW RICHARD SLATER No Attendance First Respondent: JEFFERY MALCOLM SMITH No Attendance - Solicitor: WOTTON & KEARNEY Second Respondent: ECOSOL PTY LTD No Attendance - Solicitor: WOTTON & KEARNEY Cross Applicant: JEFFERY MALCOLM SMITH In Person via AVL Cross Respondent: MATTHEW RICHARD SLATER In Person Hearing Date/s: 01/05/2024, 08/05/2024, 22/05/2024 File No/s: AMCCI-19-4466 B SUPREME COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SLATER v ECOSOL PTY LTD (No 4) [2024] SASC 71 Decision of the Honourable Justice Blue 29 May 2024 DEFAMATION - ACTIONS FOR DEFAMATION - COSTS DEFAMATION - ACTIONS FOR DEFAMATION - COSTS - OTHER MATTERS The cross-applicant Jeffery Smith was previously ordered to pay the costs of his action against the cross-respondent Matthew Slater in accordance with the ordinary basis applicable in the District Court of New South Wales up to 17 June 2021 and thereafter as if the action had proceeded from that date in the Magistrates Court: Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29. These reasons address the amount of the costs pursuant to that costs order. Held: 1 In relation to costs incurred up to 17 June 2021: (a) $2,244 is recoverable as solicitors costs while Mr Slater solicitors were on record (at [18]); (b) $5,082 is recoverable as counsel fees (at [25]); (c) $5,459.10 is recoverable as solicitors costs while Mr Slater solicitors were not on record (at [47]); (d) $214.50 for disbursements is conceded by Mr Smith (at [50]). 2 In relation to costs incurred after 17 June 2021: -- 1 of 20 -- (a) the trial listing fee for listing the Slater action for trial is not recoverable from Mr Smith (at [56]); (b) $38 being 100 per cent of four pages and $14.25 being 50 per cent of these pages of transcript of the hearing on 24 November 2021, and $35.50 being 50 per cent of the cost of car parking to view transcript for the purpose of oral closing addresses is recoverable from Mr Smith (at [83], [84], [88]); (c) costs of or associated with the purchase of transcript are not otherwise recoverable from Mr Smith at [85]); (c) $360.97 being 50 per cent of witness fees and service fees paid to or in respect of the Roys, Mr Hales, Mr Hornbuckle and Ms Veness are recoverable from Mr Smith at [106]); (e) witness fees as and service fees paid to or in respect of other witnesses are not recoverable from Mr Smith (at [103]); (f) $238.20 in respect of car parking to attend hearings is recoverable from Mr Smith (at [117]); (g) $615.54 being 50 per cent of the cost of copying tender books is recoverable from Mr Smith (at [122]); (h) $2,466.75 being 50 per cent of the cost of Janic’s work compiling documents pursuant to a discovery order is recoverable from Mr Smith (at [129]); (i) costs of transcript incurred by the respondents in the Slater action and recoverable from Mr Slater are not recoverable from Mr Smith (at [163]); (j) the 50 per cent of travel and accommodation costs incurred by Mr Smith and reimbursed by Ecosol are recoverable from Mr Slater and not recoverable from Mr Smith (at [167]). 3 Costs fixed at $16,768.82 (at [168]). 4 Liberty to apply to Mr Slater if he is required to pay the Lucent invoice dated 13 September 2022 in future (at [169]). Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), referred to. Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29; Slater v Ecosol Pty Ltd (No 3) [2024] SASC 70, discussed. -- 2 of 20 -- SLATER v ECOSOL PTY LTD (No 4) [2024] SASC 71 1 BLUE J: I previously delivered reasons for judgment for ordering that Matthew Slater pay the costs of his action against Ecosol Pty Ltd and Jeffery Smith (the Slater action) in accordance with the Magistrates Court costs scale and Mr Smith pay the costs of his action against Mr Slater (the Smith action) in accordance with the ordinary basis applicable in the District Court of New South Wales up to 17 June 2021 and thereafter as if the action had proceeded from that date in the Magistrates Court.1 2 I indicated that I would hear the parties as to the precise orders to be made. At the request or with the agreement of the parties, I determined to fix the amount of the costs pursuant to those orders myself rather than the quantum being fixed by taxation before another judicial officer. These reasons address the amount of the costs pursuant to the costs order made in the Smith action. NSW District Court costs 3 Mr Slater claims professional costs incurred with his solicitors Gretsas & Co (both on and off record), his barrister Richard Potter and disbursements in connection with the Smith action in the New South Wales District Court. Gretsas & Co on record 4 Subject to two qualifications, Mr Smith does not dispute “liability” in relation to the items claimed by Mr Slater for professional costs charged by Gretsas & Co when they were on record as acting for him in the District Court action. 5 The first qualification is in respect of a claim for $187 for an item dated 30 July 2020 described in the Gretsas & Co invoice as “Exchange of email correspondence with the other side and client and perusing report of settlement conference with proposed response back to the other side”. 6 Mr Smith objects to this item on the ground that the settlement conference was in the Slater action and not the Smith action. 7 Mr Slater contends that the settlement conference addressed both actions and therefore this item (or at least 50 per cent of this item) should be recovered from Mr Smith in the Smith action. 8 I uphold Mr Smith’s objection. The settlement conference was in the Slater action and was required to address settlement of the Slater action. I proceed on the assumption that, at the settlement, one or both parties made offers to settle both actions. However, the settlement conference was caused solely by the existence of the Slater action. Similarly, if there had been a settlement conference in the Smith action in the District Court of New South Wales, the mere fact that the parties may 1 Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29. -- 3 of 20 -- [2024] SASC 71 Blue J 2 have discussed settling the Slater action as well would not have been a reason to disallow or reduce the cost incurred by Mr Slater in the Smith action. 9 The second qualification is in respect of a claim for $233.75 for an item dated 3 August 2020 described in the Gretsas & Co invoice as “Exchange of email correspondence with counsel re transfer matters, with client and settling proposed orders”. 10 Mr Smith objects to this item on the ground that it relates to transfer under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) which became the subject of a transfer application by Mr Slater in the New South Wales Supreme Court and is not a cost incurred in the New South Wales District Court action. 11 Mr Slater produced the email correspondence passing between Mr Potter and Mr Gretsas and, in turn, between Mr Gretsas and Mr Slater. That correspondence addressed the forthcoming directions hearing in the District Court, the potential listing for trial and the relevance to the potential listing for trial of Mr Slater’s proposal to bring an application in the New South Wales Supreme Court to transfer the action to South Australia. In the course of that correspondence, Mr Potter provided some information concerning transfers. 12 I allow this item (subject to quantum considered below). It was an expense incurred in and relevant to the Smith action in the District Court. There was no transfer proceeding in existence in the Supreme Court at that stage. The question of transfer arose in and was relevant to the District Court action. 13 In relation to quantum generally, Mr Smith contends that the costs incurred and claimed should be allowed at 50 per cent based on a rule of thumb that ordinary costs are allowed at 50 per cent of full indemnity costs. 14 Mr Smith does not contend that the hourly rates charged by Mr Gretsas were excessive or not reasonable or that the time spent on the work the subject of each item was excessive or not reasonable. 15 It is true that sometimes a rule of thumb is applied that party/party or ordinary costs are a percentage of full indemnity costs, although that percentage when the subject of application of a rule of thumb is not fixed and often exceeds 50 per cent. However, it is not appropriate to apply a general rule of thumb in the present quasi- taxation process. 16 In any event, the hourly rate charged by Mr Gretsas was $425 per hour. I am satisfied that, in the context of a proceeding in the District Court of New South Wales, this was a reasonable rate. 17 The time spent on the various tasks does not appear to be excessive and appears to be reasonable. -- 4 of 20 -- [2024] SASC 71 Blue J 3 18 I allow the items claimed under this head except for the item dated 30 July 2020. The total allowed is $2,244. Counsel fees on record 19 Subject to one qualification, Mr Smith does not dispute “liability” in relation to the items claimed by Mr Slater for professional fees charged by Mr Potter when he was representing Mr Slater in the District Court action. 20 The qualification is in respect of a claim for $420 for an item dated 3 August 2020 described in Mr Potter’s invoice as “Reviewed cross vesting provisions and emailed”. 21 Mr Smith objects to this item on the same ground as in respect of the Gretsas & Co item of the same date addressed above. I allow this item for the same reasons. 22 In relation to quantum generally, Mr Smith makes the same contention addressed above that the costs incurred and claimed should be allowed at 50 per cent based on a rule of thumb that ordinary costs are allowed at 50 per cent of full indemnity costs. 23 I make the same observations concerning this item as in respect of the Gretsas & Co costs addressed above. In addition, it is rare to apply a rule of thumb to counsel fees as opposed to solicitors’ charges. 24 Mr Potter’s hourly rate was $600. In the context of a proceeding in the New South Wales District Court, this rate was reasonable. The time spent by Mr Potter on each item appears to be reasonable. 25 I allow the items claimed under this head. The total allowed is $5,082. Gretsas & Co off record 26 Subject to seven qualifications, Mr Smith does not dispute “liability” in relation to the items claimed by Mr Slater for professional costs charged by Gretsas & Co when he was self-represented and Gretsas & Co were not on record as acting for him in the District Court action. 27 The first “qualification” is that in the Gretsas & Co invoice dated 3 June 2020 there is a charge for $2,805 for various work associated with Mr Slater’s defence to be filed in the New South Wales District Court. That work included perusing the amended statement of claim, a draft defence and various attached correspondence; instructions; email and telephone attendances upon Mr Slater; and settling the complex defence. 28 Mr Smith initially objected to the quantum of this item, pointing to the fact that the invoice shows four units the subject of the charge for $2,805. However, it is apparent that this is a typographical error in the invoice and that it should read 60 units, which at the hourly rate of $425 gives a charge of $2,805 (inclusive of 10 -- 5 of 20 -- [2024] SASC 71 Blue J 4 per cent GST). It is apparent also that the work involved required several hours, rather than merely a number of minutes. I allow this item. 29 The second qualification is in respect of a claim for $77.90 in respect of an item dated 8 July 2020 described in the Gretsas & Co invoice as “Proposed transfer application and NSW District Court matter and perusing client reply”. Gretsas & Co charged $233.75 for this work. Mr Slater claims $77.90 on the basis of an apportionment two thirds to the Slater claim and one third to the Smith claim. 30 Mr Smith objects to this item on the ground that it relates to transfer under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) which became the subject of a transfer application by Mr Slater in the New South Wales Supreme Court and is not a cost incurred in the New South Wales District Court action. I reject that contention for the reasons given above. 31 Mr Slater produced the email chain. It shows that the work related to each action and to the interrelationship between them. The apportionment of one third to the Smith action is fair and reasonable vis a vis Mr Smith. I allow this item. 32 The third qualification is in respect of a claim for $46.75 for an item dated 10 July 2020 described in the Gretsas & Co invoice as “Email from client regarding Queensland Supreme Court order”. 33 Mr Smith objects to this item on the ground that it relates to the Slater action and not the Smith action. 34 Mr Slater produced the email. It shows that it related to each action. An apportionment of one half to the Smith action is fair and reasonable vis a vis Mr Smith. I allow this item at $23.37. 35 The remaining qualifications are in respect of claims for work on 4 June 2020, 11 July 2020, 11 July 2020 and 13 July 2020. 36 Mr Smith objects to these items on the ground that they may relate to the Slater action and there is no evidence that they relate to the Smith action. 37 The item for 4 June 2020 is described in the Gretsas & Co invoice as “Perusing email from client”. 38 Mr Slater produced the email and the chain of which it was the culmination. The chain commenced with an email from the Associate to Judge Gibson in the New South Wales District Court. It shows that the work related to the Smith action. I allow this item. 39 The items for 11 July 2020 are described in the Gretsas & Co invoice as “Perusing various emails and responding en mass” (11 units) and “Perusing various responding emails from client” (2 units). -- 6 of 20 -- [2024] SASC 71 Blue J 5 40 Gretsas & Co charged $607.55 for this work. Mr Slater claims $85.00 on the basis of an apportionment of two units to the Smith claim. 41 Mr Slater produced six email chains. They show that the work related in part to the Smith action, in part to the Slater action and in part to both actions. I allow these items at the claimed amounts totalling $85.00. 42 The item for 13 July 2020 is described in the Gretsas & Co invoice as “Exchange of email correspondence with client”. 43 Mr Slater produced the email chain. It shows that the work related to the Smith action. I allow this item at the claimed amount of $140.25. 44 In relation to quantum generally, Mr Smith contends that the costs incurred and claimed should be allowed at 50 per cent based on a rule of thumb that ordinary costs are allowed at 50 per cent of full indemnity costs. 45 I reject that contention for the reasons given above. I am satisfied that the hourly rate and times spent were not excessive and appear to be reasonable. 46 I allow the items claimed under this head subject to the reduction in [34] above. 47 The total allowed under this head is $5,459.10. Disbursements 48 Mr Slater claims $91 being the fee paid on 9 December 2020 to file a notice of motion. Mr Smith agrees this item and I allow it. 49 Mr Slater claims $115.50 being the fee paid on 29 June 2020 for transcript in the New South Wales District Court. Mr Smith agrees this item and I allow it. 50 The total allowed under this head is $214.50. SA Supreme Court costs 51 Mr Slater was at all times self-represented in the Smith action (and in the Slater action) after the Smith action was transferred to South Australia in June 2021. He does not claim any professional costs but claims various disbursements. Trial listing fee 52 Mr Slater claims $410 being the amount of the trial listing fee in respect of the Slater action paid by Mr Slater on 27 January 2021. 53 The total trial listing fee was $820. In January 2021 when the Slater action was listed for trial, Magistrate Hodder ordered that the applicant and the respondent were each to pay 50 per cent of the trial listing fee of $820. -- 7 of 20 -- [2024] SASC 71 Blue J 6 54 When the trial was listed and the trial listing fee was paid, the only action in South Australia was the Slater action. The Smith action was proceeding in the District Court of New South Wales. The trial listing fee was paid solely in respect of the Slater action. This cost was therefore caused solely by the Slater action and not by the Smith action. 55 The mere fact that a trial listing fee was not charged to Mr Smith in respect of the Smith action is not to the point. 56 Mr Slater is not entitled to recover under this head from Mr Smith in the Smith action. Transcript 57 Mr Slater claims $226 for the cost of transcript incurred in the New South Wales Supreme Court on 13 August 2021 for transcript of the hearing before Hamill J on 16 June 2021. 58 This transcript was of a hearing of Mr Slater’s transfer application in the Supreme Court of New South Wales. Hamill J made an order as to costs in that proceeding. The cost can only be recovered in that proceeding (if at all) and not in the Smith action. 59 Mr Slater claims $309.75 for the cost of transcript incurred in the South Australian Supreme Court on 30 September 2021 and $4.30 for car parking to view and obtain that transcript. 60 Mr Smith objects to both claims on the ground that the transcript was for the Slater claim. Mr Smith contends that, if there is to be an apportionment of the costs between the two actions, the costs should be apportioned principally to the Slater action and not the Smith action. 61 Mr Smith contends that the Ecosol defence in the Slater action pleaded 22 grounds of the justification defence, of which only four were raised in the Smith action. He contends that the costs should be apportioned 22/26ths to the Slater action and the remaining 4/26ths equally to the two actions such that only 2/26ths, or approximately ten per cent, is apportioned to the Smith action. 62 Mr Smith also contends that more imputations in respect of more publications were pleaded in the Slater action than in the Smith action. 63 Mr Smith also contends that the great majority of time spent in interlocutory hearings was devoted to interlocutory applications made by Mr Slater in the Slater action rather than to the Smith action. 64 Mr Smith also objects to the car parking claim on the additional ground that it is not a legitimate disbursement and is an insignificant travel claim. -- 8 of 20 -- [2024] SASC 71 Blue J 7 65 I do not uphold the additional ground. It is not disputed that the car parking was engaged in for the purpose of obtaining the transcript. Albeit relatively trivial in amount, it is allowable if the cost of the transcript itself is allowable. 66 The transcript in question related to the interlocutory hearing on 2 September 2021 (35 pages). 67 The hearing on 2 September 2021 was essentially a directions hearing rather than an argument. It principally addressed directions for the filing by Ecosol of affidavits concerning and listing for argument Mr Slater’s application for further and better discovery by Ecosol in respect of documents provided to Mrs Roy pursuant to the Queensland Supreme Court order. 68 I am not satisfied that Mr Slater reasonably required for the future the transcript of the hearing insofar as it addressed that matter or the other matters discussed during the hearing. I am not satisfied that the cost of the transcript was reasonably incurred. 69 Mr Slater claims $177 for the cost of transcript incurred in the Supreme Court on 23 February 2022 and $13 for car parking to view and obtain that transcript. The transcript related to the interlocutory hearings on 11 October 2021 (pages 1 to 8, 19 and 54 to 55) and 8 February 2022 (pages 1 and 57 to 60). 70 The first part of the hearing on 11 October 2021 (recorded at pages 1 to 58 of the transcript) comprised the balance of argument (part heard from 23 September 2021) on Mr Slater’s application for further and better discovery by Ecosol in respect of documents provided to Mrs Roy pursuant to the Queensland Supreme Court order. 71 I am not satisfied that Mr Slater reasonably required the transcript of the hearing insofar as it addressed that matter for future reference because I reserved judgment at that hearing (and subsequently delivered judgment on 24 November 2021). I am not satisfied that the cost of the transcript was reasonably incurred. 72 The hearing on 8 February 2022, insofar as it was recorded in the pages of the transcript that Mr Slater purchased, addressed the basis on which costs of action would be ordered. It was very brief. 73 I am not satisfied that that Mr Slater reasonably required the transcript of the hearing insofar as it addressed that matter for future reference. I am not satisfied that the cost of the transcript was reasonably incurred. 74 Mr Slater claims $66.50 for the cost of transcript incurred in the Supreme Court on 8 September 2023. The transcript related to the interlocutory hearings on 11 October 2021 (pages 58 to 60, 66 to 67 and 81) and part of the trial on 17 March 2022 (pages 1094 to 1095). -- 9 of 20 -- [2024] SASC 71 Blue J 8 75 The second part of the hearing on 11 October 2021 (recorded at pages 58 to 68 of the transcript) comprised argument on Mr Slater’s application that Ecosol and Mr Smith be dux litis. 76 I am not satisfied that Mr Slater reasonably required the transcript of the hearing insofar as it addressed that matter for future reference because I reserved judgment at that hearing (and subsequently delivered judgment on 24 November 2021). Further, Mr Slater did not request the transcript until after the close of evidence in the case. I am not satisfied that the cost of the transcript was reasonably incurred. 77 A further part of the hearing on 11 October 2021 (recorded at page 81 of the transcript) addressed settlement. I am not satisfied that Mr Slater reasonably required the transcript of the hearing insofar as it addressed settlement for future reference. I am not satisfied that the cost of the transcript was reasonably incurred. 78 The part of the trial on 17 March 2022 recorded at pages 1094 to 1095 of the transcript recorded a comment by me that the shareholders who has thus far given evidence had not had their opinions of Mr Slater altered by the impugned Ecosol publications. Although it may have been reasonable for Mr Slater to purchase that transcript for the purpose of closing address in the Slater action, it was not reasonable for Mr Slater to purchase that transcript for the purpose of closing address in the Smith action. 79 Mr Slater claims $180.50 for the cost of transcript incurred in the Supreme Court on 22 December 2023 and $19 for car parking to view and obtain that transcript. The transcript related to the hearings on 24 November 2021 (page 12) and 27 November 2023 (pages 17 to 19, 21, 23 to 26, 28, 32, 52 to 54, 77, 100 to 102 and 105). 80 The hearing on 24 November 2021 insofar as it was recorded at page 12 of the transcript that Mr Slater purchased addressed the reservation of costs of Mr Slater’s applications on which I delivered judgment at that hearing. That order was recorded in the record of outcome to which Mr Slater had access. I am not satisfied that the cost of the transcript was reasonably incurred. 81 The hearing on 27 November 2023 was the second occasion of argument on the principal costs applications. In broad terms (although there was a degree of overlap on occasions), the first part of the hearing addressed costs in the Slater action and the second part of the hearing addressed costs in the Smith action. 82 The transcript at pages 17 to 19, 21, 23 to 26, 28, 32 and 105 related to costs issues in the Slater action and is not recoverable from Mr Smith in the Smith action. 83 The transcript at pages 52 to 54 and 77 related to the Smith action. As it transpired, there was a third occasion on which I heard argument in relation to costs in the Smith action. In the circumstances, the cost of this transcript ($38.00) was reasonably incurred in the Smith action. -- 10 of 20 -- [2024] SASC 71 Blue J 9 84 The transcript at pages 100 to 102 related to costs issues in both actions. I allow 50 per cent of the cost of this transcript ($14.25). 85 I do not allow the car parking claim because the predominant purpose of Mr Slater’s viewing of the transcript related to the Slater action rather than the Smith action. 86 Mr Slater claims a total of $71 for the cost of car parking to view transcript incurred between 9 and 16 January 2023. 87 This preceded oral closing addresses on 1 February 2023. I am satisfied that this cost was reasonably incurred for the purposes of both actions. I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions given the extent of overlap between the issues at trial and the fact that the cost would have been incurred in the Smith action if the Slater action did not exist. 88 I allow 50 per cent of the costs by allocating equally to each action ($35.50). 89 The total allowed under this head is $87.75. Witness expenses 90 Mr Slater claims $129 for the cost of service on Scott Roy of an application and supporting affidavit seeking non-party discovery by Mr Roy/Flow Defence Pty Ltd. This cost is the subject of an invoice by Queensland Process Servers dated 23 November 2020. 91 This cost was incurred when the Smith action was in the District Court of New South Wales. It was incurred in and solely caused by the Slater action. Mr Slater is not entitled to recover this cost from Mr Smith in the Smith action. 92 Mr Slater claims $150 for the cost of service of subpoenas to produce documents on Jodie and Scott Roy. This cost is the subject of an invoice by Sunshine Coast Process Servers dated 20 October 2021. 93 The documents were equally relevant to both actions. I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions. 94 I allow 50 per cent of the cost, being $75. 95 Mr Slater claims $261.95 for the cost of service of a subpoena on Cameron Hales the subject of an invoice by Polo CPI dated 16 February 2022 and $150 for the cost of service of a subpoena on Andrew Hornbuckle the subject of an invoice by Queensland Process Servers dated 21 February 2022. 96 Mr Hales and Mr Hornbuckle gave evidence concerning dealings by their company Spel with Ecosol and their assessment of the value of the Ecosol -- 11 of 20 -- [2024] SASC 71 Blue J 10 business. Their evidence was equally relevant to both actions. This cost was equally caused by each action. I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions. 97 Mr Slater should recover 50 per cent in the Smith action, namely $130.97. 98 Mr Slater claims $160 for the cost of service of a subpoena on Lynne Veness the subject of an invoice by Effective Process Serving dated 8 March 2022. 99 Ms Veness gave evidence relating to the Ecosol’s and UAS’s websites. Her evidence was equally relevant to both actions. This cost was equally caused by each action. I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions. 100 Mr Slater should recover 50 per cent in the Smith action, namely $80. 101 Mr Slater claims $883 for the cost of service of subpoenas on Trevor John, Tony Walton, Alan O’Donnell and Robert Devizio the subject of an invoice by Effective Process Serving dated 1 March 2022. 102 Mr Slater also claims $502.84 for the witness fees paid to Mr John and $445 for the witness fee paid to Mr Walton. 103 Mr Slater called Mr John, Mr Walton, Mr Devizio and Mr O’Donnell primarily to give evidence of the effect of the impugned publications upon their views of Mr Slater. It is true that they were asked in cross-examination about the effect of the impugned publications on their views of Mr Smith but it is clear, and I find, that they would not have been called by Mr Smith in his action if Mr Slater had not called them. The cause of these expenses was the Slater action and not the Smith action. Mr Slater is not entitled to recover these costs from Mr Smith in the Smith action. 104 Mr Slater claims $1,353 for fees payable to Lucent Pty Ltd for the costs of complying with a subpoena for the production of documents the subject of an invoice by Lucent Pty Ltd dated 13 September 2022. 105 Mr Slater has not paid this invoice. Mr Smith informed me that Ms Turner of Lucent informed him that Lucent will not pursue payment of it. Given that it related to work done over two years ago, I find on the balance of probabilities that Lucent will not pursue it. I will give liberty to Mr Slater to seek payment of or towards it from Mr Smith in the unlikely event that Mr Slater is required to pay the invoice in future. 106 The total allowed under this head is $360.97. -- 12 of 20 -- [2024] SASC 71 Blue J 11 Car parking to attend hearings 107 Mr Slater claims a total of $138.10 for car parking to attend interlocutory hearings between 27 August 2021 and 2 March 2022, on 13 July and between 19 and 30 August 2022. 108 Mr Smith contends that this type of cost should not be recoverable. However, in the Slater action Mr Smith (in his capacity as a respondent in that action) (and Ecosol) claims Mr Smith’s own travel costs for travelling to court (albeit from Sydney). It is necessary for Mr Smith to be consistent across the two actions. 109 These hearings were joint hearings of both actions. They would have been required if only one action had been proceeding. These costs were equally caused by each action. I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions. 110 Mr Slater should recover 50 per cent of the costs in the Smith action, namely $69.05. 111 Mr Slater claims a total of $322.30 for car parking to attend at the trial between 7 and 17 March 2022, between 8 and 12 August 2022 and on 1 February 2023 and to attend at judgment on 10 July 2023. 112 The trial was a joint trial of both actions. Mr Slater’s attendance would have been required if only one action had proceeded to trial. These costs were equally caused by each action. I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions. 113 Mr Slater should recover 50 per cent of the costs in the Smith action, namely $161.15. 114 Mr Slater claims a total of $9 for car parking to attend at costs hearings on 16 February 2024 and 6 March 2024. 115 The hearing on 16 February 2024 was for the purpose of supplementary submissions by Mr Slater on his application for costs in the Smith action. It did not address the Slater action. The cost was caused by the Smith action and Mr Slater should recover the car parking cost of $7. 116 The hearing on 6 March 2024 was for the purpose of my delivering judgment on the costs applications in the Slater action and Smith action. The cost was equally caused by each action. Mr Slater should recover 50 per cent of the car parking cost, namely $1. 117 The total allowed under this head is $238.20. -- 13 of 20 -- [2024] SASC 71 Blue J 12 Copying tender book documents 118 Mr Slater claims $1,231.07 for copying tender books being the amount of an invoice from Kwik Kopy dated 7 January 2022. 119 Mr Slater by oversight did not include this claim in his claim for costs to which Mr Smith responded. Mr Slater made this claim after I heard submissions on quantum of costs and reserved my judgment. Mr Slater seeks leave to include this claim. Smith opposes leave. 120 I grant leave to Mr Slater to include this claim. I accept that he omitted it by oversight. Mr Smith has had and taken the opportunity of making submissions in reply to it. 121 In relation to the merits of the claim, the tender books were provided for and were equally relevant to the Slater action and the Smith action. I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions. 122 Mr Slater should recover 50 per cent of the cost, namely $615.54. Liability for costs in the Slater action 123 Mr Slater makes contingent claims against Mr Smith in the Smith action for certain potential liabilities to Ecosol and Mr Smith in the Slater action if it is ruled in the Slater action that he is liable to Ecosol and Mr Smith for them. 124 These potential liabilities comprise: • Janic Consulting fees incurred in consequence of my discovery order made on 24 November 2021; • cost of transcript purchased by the solicitors acting for Ecosol and Mr Smith; and • travel expenses for the attendance of Mr Smith at trial in August 2022 and February 2023. Janic Consulting fee 125 Mr Slater contingently claims the cost of Janic to prepare documents for the purpose of further discovery pursuant to an order that I made on 24 November 2021. The claim is contingent on the question whether, and if so to what extent, I allow this claim against Mr Slater in the Slater action. -- 14 of 20 -- [2024] SASC 71 Blue J 13 126 In my reasons for judgment in the Slater action, I have allowed $4,933.50 as recoverable from Mr Slater, being the amount of the invoice rendered by Janic to Ecosol for that work.2 127 Although the order for further discovery was made in the Slater action against Ecosol, the documents in question were equally relevant in the Smith action. If the Slater action had not existed, a non-party discovery order could have been made in the Smith action to the same effect. 128 I reject Mr Smith’s contentions, insofar as they apply to this particular cost, that the apportionment should be other than equal between the two actions. 129 In these circumstances, Mr Slater should recover 50 per cent of the liability from Mr Smith in the Smith action, namely $2,466.75. Transcript costs 130 Mr Slater contingently claims the cost of transcript obtained by the solicitors for Ecosol and Mr Smith for the purposes of the Slater action. The claim is contingent on the question whether, and if so to what extent, I allow this claim against Mr Slater in the Slater action. 131 In my reasons for judgment in the Slater action, I have allowed a total of $12,094.35 as recoverable from Mr Slater.3 132 Mr Slater initially accepted Mr Smith’s statement in submissions that, although he was provided by Barry Nilsson Lawyers with the transcript they had purchased of the first segment of the trial in March 2022, he was not provided with and did not use the transcript they purchased of interlocutory hearings or of the second segment of the trial in August 2022. 133 Mr Slater subsequently withdrew his agreement and Mr Smith gave evidence. Factual finding 134 Mr Smith initially gave evidence that he was not provided with and did not use the transcript purchased by Barry Nilsson Lawyers of interlocutory hearings. 135 Subsequently, Ecosol’s solicitors provided information that they had reviewed Barry Nilsson Lawyers’ file which indicated that transcripts of specified interlocutory hearings between 22 January 2021 and 14 April 2022 were provided to Mr Smith. 136 Mr Smith then gave further evidence in which he accepted that transcripts of interlocutory hearings were attachments to emails sent to him by Barry Nilsson Lawyers which reported on each interlocutory hearing in question. He gave evidence that, to the best of his recollection, he did not open or download the 2 Slater v Ecosol Pty Ltd (No 3) [2024] SASC 70. 3 Slater v Ecosol Pty Ltd (No 3) [2024] SASC 70. -- 15 of 20 -- [2024] SASC 71 Blue J 14 attachments but forwarded the emails (with their attachments) to Mr Charlton who maintained a database for the purposes of the action. He gave evidence that, to the best of his recollection, he did not ever read the transcripts of interlocutory hearings or use their content for the purpose of closing addresses or otherwise. 137 Mr Smith was cross-examined at some length by Mr Slater. Mr Slater submits that Mr Smith has given three different versions in relation to receipt of transcripts of interlocutory hearings and invites me to reject Mr Smith’s evidence. He also invites me to find that Mr Smith gave deliberately false evidence on this topic. 138 In addition, after I initially reserved judgment on fixing the quantum of costs in the Smith action, Mr Slater made a submission contending that I should reject Mr Smith’s evidence because, he contends, Mr Smith gave knowingly false evidence during the cost hearing that led to my judgment in Slater v Ecosol Pty Ltd (No 2).4 Mr Slater contends that the falsity of that evidence is proved by a letter to Mr Slater from Professional Standards of the Law Society of New South Wales dated 10 May 2024. This contention is not relevant to any issues now to be determined but is put by Mr Slater as being relevant to the credit of Mr Smith. 139 In my reasons for judgment in Slater v Ecosol Pty Ltd (No 2)5 I referred to the fact that Mr Smith had produced an invoice from FM Legal dated 15 April 2024 for $2,739, being invoice number 354, and another invoice from FM Legal dated 16 April 2024 for $2,216 being invoice number 356. The narratives and amounts charged in the two invoices were largely the same such that they essentially duplicated each other. 140 During the hearing of the primary costs applications, Mr Slater invited me to find that Mr Smith deliberately forged invoice number 354 to falsely inflate the amount of legal costs he had incurred in his action. In reasons for judgment on the primary costs orders,6 I rejected that invitation, finding that the second invoice superseded the first and Mr Smith in his submissions had overlooked that fact. 141 After delivery of those reasons for judgment, on 9 April 2024 Mr Slater made a complaint to the Office of the NSW Legal Services Commissioner. He relevantly said: FM Legal Pty Ltd … was ordered by the SA Supreme Court recently to provide information with regards one of their former clients, Jeff Smith. FM Legal has failed to comply with that order and on the evidence deliberately tried to circumvent it in what was an apparent effort to protect Mr Smith. … I am outraged this firm believes complying with a Supreme Court order was optional particularly as an officer of the court. I demand that OSLC require FM Legal to 4 [2024] SASC 29. 5 [2024] SASC 29 at [252]-[256]. 6 Slater v Ecosol Pty Ltd (No 2) [2024] SASC 29. -- 16 of 20 -- [2024] SASC 71 Blue J 15 immediately fully comply with the SA Supreme Court order by emailing the relevant chambers ccing us and confirming that the invoices they had sent through were in full compliance with the order without trying to create like their previous statements to Chambers they had provided all PAID invoices, which did not fully comply with the order. FM Legal have emailed me to say they had fully complied with the order but that is not sufficient in the circumstances because I am only a party. 142 The complaint was referred to the Law Society of New South Wales to be dealt with under chapter 5 of the Legal Profession Uniform Law (NSW). Section 276 of that Law requires preliminary assessment of a complaint. Section 277 empowers the relevant authority to close a complaint without further consideration of its merits if, amongst other things, it forms the view that the complaint requires no further investigation (except so far as it is a consumer matter). There is no obligation on the relevant authority to notify the respondent about the complaint unless and until it decides to investigate the complaint under section 282. 143 In its reasons for decision attached to its letter to Mr Slater dated 10 May 2024, the Professional Conduct Committee summarised the facts taken from Mr Slater’s complaint and the attachments to his complaint. The Committee stated that it determined to close the complaint on the basis that it required no further investigation. In doing so, it relevantly noted three matters. The first matter was as follows: It appears that the subject of the complaint is attributable to a misunderstanding or miscommunication between the Associate and Mr Gomez. It appears the Law Practice did initially provide chambers with all the orders [sic] pursuant to the Order. While the Associate then clarified whether the provided invoices were ‘all the invoices… whether paid or unpaid and whether subsequently withdrawn’, it appears from Mr Gomez’s reply that he interpreted this question as whether all of the provided invoices ‘were rendered and paid’. Given that the respondent solicitor has communicated to the Complainant that the Law Practice has fully complied with the Order, the Committee is not satisfied that there was a breach of the court order. 144 The second matter was that the complaints process was not an alternative avenue to enforce orders where a breach is alleged to occur and the third matter was that the Committee was not satisfied that the alleged conduct could, if established, amount to unsatisfactory professional conduct or professional misconduct. 145 Mr Slater contends that the reasons of the Committee prove that Mr Smith committed perjury in his evidence before me because the Committee found as a matter of fact that Ms Mitchell fully complied with the requested order. 146 For the sake of completeness, I observe that I had not ordered FM Legal to provide information or documents. Rather, I had merely given leave to Mr Slater, with the consent of Mr Smith, to contact FM Legal requesting that they email to Chambers the invoices in question. -- 17 of 20 -- [2024] SASC 71 Blue J 16 147 I reject Mr Slater’s contention for several reasons. First, the Committee did not make an affirmative finding that FM Legal had complied with the court order but merely that it was not satisfied that FM Legal had not complied. This is an important distinction. 148 Secondly, Mr Slater in his complaint and its attachments did not refer to invoice 354 or invoice 356. Nor did he refer to the question whether invoice 354 was initially issued by FM Legal and then withdrawn and superseded or was forged by Mr Smith. The Committee simply could not assess or make a finding on that question in these circumstances. 149 Thirdly, it appears that the Committee made its determination on the face of the information provided to it by Mr Slater in the complaint and its attachments. There is no basis to consider that the Committee received any information directly from FM Legal. In particular, the statement by the Committee that “the respondent solicitor has communicated to the complainant that the Law Practice has fully complied with the Order” is clearly taken from Mr Slater’s statement in the complaint that “FM Legal have emailed me to say they had fully complied with the order”. There is no basis to find, as Mr Slater submits, that this was information provided by FM Legal directly to the Committee. Further, the purpose of dismissing a complaint on a peremptory basis under section 277 is to avoid the need for an investigation. 150 Fourthly, the material provided by Mr Slater was the same material (or a subset of the material) provided to me during the cost hearing that led to my previous reasons for judgment. There is nothing in that material that leads to a finding that Mr Smith forged invoice 354 as opposed to its having been initially issued by FM legal and then superseded by invoice 356. 151 Mr Slater’s suggestion of forgery by Mr Smith is fanciful. Disregarding invoice 354, Mr Smith already had incurred costs well exceeding the offers by Mr Slater: there was no need to forge an additional invoice. Such a forgery would have been foolhardy given the risk of discovery, especially given the limited benefit (if any) that it would have. If Mr Smith were determined to forge an additional invoice, he surely would not have duplicated work the subject of a real invoice. 152 Returning to the factual issue of receipt and use of the transcripts, it is common ground that Mr Smith received and used for the purpose of closing addresses the transcript of the first segment of the trial (March 2022), although he does not now recall whether the version he used was the version sent to him by Barry Nilsson lawyers or the version maintained by Mr Charlton (which is immaterial in any event). 153 It also appears to be common ground that Mr Smith did not receive or use the transcript of the second segment of the trial. In any event, that is irrelevant because Bary Nilsson Lawyers do not claim against Mr Slater to have purchased the second segment of the trial. -- 18 of 20 -- [2024] SASC 71 Blue J 17 154 I find that, although Mr Smith received transcript of such of the interlocutory hearings up to the hearing on 14 January 2022 as was purchased by Barry Nilsson Lawyers, he did not use that transcript. I accept Mr Smith’s evidence that, although this is possible, he does not recall using it and it is unlikely. It is inherently unlikely that Mr Smith used that transcript because he would have not needed to refer to it before trial and he would have had no importance at or during trial. 155 Having considered Mr Slater’s submissions concerning Mr Smith’s evidence and Mr Smith’s credit in detail, I have no reason to reject Mr Smith’s evidence in this respect. Analysis 156 In the Slater action, I have allowed as disbursements the costs incurred by the respondents in that action for the purchase of transcript of the interlocutory hearings on 10 June 2021, 23 September 2021 and part of the hearing on 14 April 2022. 157 At the time of the purchase of the transcript of the June 2021 hearing, the Smith action was in the District Court of New South Wales. It is clear that the transcript was purchased solely for the purposes of the respondents in the Slater action. The cost is not recoverable by Mr Slater from Mr Smith. 158 At the time of the purchase of the transcript of the September 2021 hearing, Barry Nilsson Lawyers, who purchased the transcript, were acting only for the respondents in the Slater action. It is clear that the transcript was purchased solely for the purposes of the respondents in the Slater action and not for the purposes of Mr Smith in the Smith action. Further, I have found above that Mr Smith did not in fact use this transcript for the purposes of the Smith action. Even if I had found otherwise, it does not alter the fact that the transcript was purchased, and the cost incurred, solely for the purposes of the Slater action. 159 The final 45 pages of the transcript of the hearing on 14 April 2022 related solely to the Slater action. The cost is not recoverable by Mr Slater from Mr Smith. 160 In the Slater action, I have allowed as a disbursement the cost incurred by the respondents in that action for the purchase of transcript of the first tranche of the trial in March 2022. 161 At the time of the purchase, Barry Nilsson Lawyers were acting not only for Ecosol and Mr Smith as respondents in the Slater action but also for Mr Smith as the applicant in the Smith action. I accept that the purchase was made partly (albeit predominantly) for the purpose of the Slater action and partly (albeit a subsidiary purpose) for the purpose of the Smith action. 162 However, it is clear that the purchase would have been made if the Smith action had not existed and that the purchase would not have been made if the Slater action had not existed. For the reasons given in my reasons for judgment in Slater -- 19 of 20 -- [2024] SASC 71 Blue J 18 v Ecosol (No 3), 7 the costs of the transcript purchased by Barry Nilsson Lawyers were caused by the Slater action and not the Smith action. 163 Mr Slater is therefore not entitled to recover under this head from Mr Smith in the Smith action. Travel costs 164 Mr Slater contingently claims the cost of travel by Mr Smith to attend the trial in August 2022 and February 2023. The claim is contingent on the question whether, and if so to what extent, I allow this claim against Mr Slater in the Slater action. 165 In my reasons for judgment in the Slater action, I have allowed a total of $1,188.55 as recoverable from Mr Slater.8 I have allowed 50 per cent of the cost incurred on the basis that it was equally caused by the Slater action and the Smith action. 166 Given the reduction in the amount recovered in the Slater action, it would not be appropriate and would involve double counting to allow any claim by Mr Slater against Mr Smith in the Smith action. Mr Slater accepts this and I would in any event reach this conclusion. 167 Mr Slater is not entitled to recover under this head from Mr Smith in the Smith action. Conclusion 168 I fix the amount of costs payable by Mr Smith to Mr Slater pursuant to my order dated 6 March 2024 at $16,768.82. 169 I give liberty to apply to Mr Slater if he is required to pay the Lucent invoice dated 13 September 2022 in future. 7 [2024] SASC 70. 8 Slater v Ecosol Pty Ltd (No 3) [2024] SASC 70. -- 20 of 20 --