Without proper justification 23 WCMS 3
Teenage daughters were joined late to a widow's claim, and associated issues resulted in five telephone conferences.
At arbitration the applicant discontinued with lack of a statement.
The daughters sought costs from the applicant or the solicitor, contending want of proper justification by 1998 Act s 341(4), or s 344 serious neglect.
Mr Molony said : "An assessment of whether a claim is brought without justification is to be made on the balance of probabilities: Locke v Riley (1996) 12 NSWCCR 671 per Nielson J.
"The relevant time to be considered is when the claim was commenced, not when it was discontinued: Duffy v John Fairfax & Sons PL, NSWCC No. 11861/96, unreported."
The arbitrator quoted Davis v State Rail  NSWCC 173 per Armitage J:
"I agree with what was said by Neilson J in this Court in Nikolov v BRS (Wholesale) PL (2000) 19 NSWCCR 329, that is to say that on dictionary definitions, 'without proper justification' means without genuine or real or appropriate justification, rather than without any possible justification.
"That conclusion appears to be compelled by the addition of the word 'proper' before 'justification' by the legislature, which seems to imply a higher standard of 'justification' than would have been required by the simple word 'justification' itself, or by the addition of the word 'any' before it."
There was evidence supporting the applicant's claim, Mr Molony said, thus it was not without proper justification.
To the solicitor's liability, Mr Molony noted Borg v Garnville PL  NSWWCCPD 30.
"Such an order can be made under s 344, or s 341(2) which also empowers the Commission to make an order against a legal practitioner: Popovski v MWS&DB  NSW WCC 6."
Then , "That does not mean that every mistake or omission in preparation by a legal representative, which results in a discontinuance, will attract an order for costs against the legal representative.
"There must be something which elevates the neglect, incompetence or misconduct leading to the discontinuance to a level of seriousness warranting an order that the legal representative pay costs."
Later, "The matter was a difficult and complex one, which called for and was given a much greater degree of time and procedural flexibility than is usual in Commission proceedings.
"The many opportunities which that flexibility offered the Applicant to remedy the perceived deficits in her case, before the arbitration date, in my view, make the applicant's legal representative failure to address those deficits not only an error, but a serious one, amounting to serious neglect.
"The failure of the applicant's legal representative to ensure that she in any way complied with the provisions of Rule 14.2 ... in respect of the applicant's proposed oral evidence compounds this. There is no doubt that that serious neglect delayed the determinations of the matter: it was discontinued as a result."
Ordered the solicitor pay the costs thrown away.