Lawyers fees slashed ... Bills unpaid ... Client and former solicitors in dispute over money ... Solicitors who were sacked from defamation case having trouble getting their hands of their costs ... Client wants the money paid to him ... Trouble in libel land ... Defamatorium
Habib: wanting his lawyers costs paid to him (pic: The Monthly)
THE courtroom wrangles of one of Australia's most celebrated torture victims are now the centre of long-winded and agonising cost wars.
In one of numerous cost assessment processes Mamdouh's barristers have had their defamation trial fees slashed to bargain-basement levels and his legal team has been struggling to beat the former Egyptian to the dough.
For the heroic work in Habib v Radio 2UE and Macquarie Radio Network, 72 percent was chopped out of Clive Evatt's bill (taking it from $243,970 down to a paltry $68,190) and Roger Rasmussen's by 57 percent (from $161,600 to $70,200).
Habib's former solicitor Peter Erman had his bill sliced by 62 percent to $13,325 and 30 percent pared from the bill of replacement solicitor Ecevit Demir, crimping it down to $55,935.
The District Court defamation trial was one thing. Judge Judy Gibson originally dismissed the case, Habib successfully appealed, the radio defendants then went to the High Court and lost.
Ultimately, the trial came before Len Levy DCJ. The defamation concerned the upsetting allegation that Habib was running in the City to Surf while claiming a disability pension.
In fact, Habib was not seeking a disability pension at the time of the broadcasts by the usual cabal of drones and nasties: John Laws, Ray Hadley and Steve Price.
The judge awarded Habib $95,000 for the Laws broadcast (including $25,000 in aggravated damages) $25,000 for the Price broadcast and $25,000 for the Hadley broadcast, plus costs.
With interest, the verdict amounted to $144,776 against 2UE and $31,520 against 2GB.
Before the case came back on for trial, Habib sacked Peter Erman as his solicitor and hired well known Turk about town Ecevit Dimir.
The Court of Appeal's decision to overturn the decision to strike out Habib's claim was made in July 2009.
However, costs of the CA proceedings were not finalised until March 28, 2013. A review panel issued a certificate of determination for $156,801.45 - a miserable $12,000 above the verdict.
Neither the solicitors nor counsel have been paid. Apparently, Bruce Burke, from Banki Haddock Fiora, solicitor for the defendant broadcasters was told by Habib's new advisor, Mike Dudman of DGT Costs Lawyers, not to pay Erman, who is looking for around $300,000 in solicitor-client costs.
But, there's more.
Erman was also sacked from the case Habib ran against the Commonwealth, in relation to his unlawful imprisonment and torture while he was detained in Pakistan, Afghanistan, Egypt and Guantanamo Bay.
Robert Beach-Jones, Clive Evatt, William Nicholson and Roger Rasmussen were also terminated from that case following a decision of the Federal Court to refer it to mediation.
Habib's claim against the Commonwealth was settled for a handsome figure in November 2010.
Costs for that have been assessed at an eye-watering $767,000, but remain unpaid.
There was also Habib's defamation case against The Smellograph arising from an article in February 2005 that gave rise to an imputation the plaintiff "knowingly made a false claim about the nature of his support for Sheik Omar Abdul Rahman, a convicted terrorist".
The team of Erman, Evatt and Rasmussen, again, carried the flag for Habib
Justice Peter McClelland didn't think much of the whole thing and awarded the plaintiff $5,000. The costs were a trifling $370,000, with the Smello forgoing costs for another defamation case in which Habib was unsuccessful.
According to one version of events Habib asked lawyers for the newspaper to pay the costs directly to him.
Subsequently, the money was paid into court with consent orders made by McClellan for party/party costs to be paid to Erman, on condition $18,000 went to Habib.
Erman also acted in Federal and High Court appeals against the government's decision not to issue the former Guantanamo resident with a passport. The case was settled in the High Court with the Commonwealth agreeing to pay costs of $50,000.
Again, Habib sacked Erman as the solicitor in the passport case and the funds are still being held in trust by the AGS.
For the 2UE and 2GB case, which the defendants unsuccessfully took to the High Court, party-party costs of the special leave proceedings were taxed at around $27,000.
In November 2011 the money was paid into a controlled ANZ bank account at Bankstown. It is understood that Habib visited the bank and asked to have the funds be transferred to him.
Levy DCJ in April 2012 ordered that the funds be paid to Erman.
However, the hiatus continues.
Peter Erman is still chasing the costs for the 2UE/2GB District Court trial and has asked the Court of Appeal for help.
However, the panel review certificates were issued in Habib's name, not Erman's.
Lawyers for the defendant broadcasters have been told that Erman has no authority to act for Habib.
Ecevit Demir also has been seeking a District Court costs assessment for the 2UE/2GB case.
In April this year, by consent, Beazley Singleton was dealt into the equation. On receipt of a certificate of assessment, money payable to Habib should be paid into a controlled account held by Beazley Singleton.
Possibly this means Evatt and Rasmussen can improve their rate of return. Trying to block lawyers getting their hands on a bucket of money is not all that simple.
Maybe, Habib feels let down because lawyers promised him the world. Now he thinks what they think is their money is mostly his money.
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Evatt: undervalued
SO back to the party-party cost assessment for the 2UE/2GB District Court trial before Levy.
Assessor Mark Campbell was awe-struck by the breezy idiosyncrasies of the defamation jurisdiction. Clearly he has no appreciation of the important role Clive Evatt plays in keeping the entire defamation industry afloat.
Some of the assessor's observations also misconceived the fretful nature of defamation work, including:
- An over-reliance on Evatt at least far as Demir's bill is concerned. Demir has no specialisation in defamation and Erman specialises in commercial law.
- Evatt's bill does not comply with 111B of the regulations. the descriptions are vague. It was difficult to understand from the bill exactly what work was performed.
- Evatt's bill suggests a daily rate of between $5,500 and $6,600.
- The claims appear to be "somewhat arbitrary", and not based on a system of time measurement.
- Rasmussen's daily rate is $4,500 plus GST, but his descriptions of work are "vague".
- Many of the barristers' costs appear to be unreasonable - such as duplicate claims and internal conferences.
- Costs disclosures were not issued by Evatt or Rasmussen.
- Evatt's claimed hourly rate of $1,100 was considered excessive.
- The appropriate rate for Evatt should be $500 an hour and $5,000 a day, including GST. The appropriate rate for Rasmussen was determined at $400 an hour and $4,000 a day, including GST.
- Evatt, although highly experienced, is not senior counsel and his rates must fall below that of a silken one.
- The appropriate rate for the solicitors is $300 an hour plus GST.
- Overall costs of the four day trial were hacked back by over 50 percent from $532,358 to $207,250.
God knows the costs of Bruce McClintock and Ms Rubagotti for the defendants.
Maybe Judge Judy was correct. The whole thing should be been struck out on day one. It would have saved everyone a lot of misery.