AB v Constable Joshua Hedges (No 3)

[2015] NSWSC 1319

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	AB v Constable Joshua Hedges (No 3) [2015] NSWSC 1319
Hearing dates:	3 June 2015
Date of orders:	09 September 2015
Decision date:	09 September 2015
Jurisdiction:	Common Law
Before:	Hidden J
Decision:	Plaintiff to pay 1st defendant’s costs on judicial review proceedings, 1st defendant to pay plaintiff’s costs of contract proceedings.
Catchwords:	COSTS – related proceedings for judicial review and in contract – plaintiff unsuccessful in one but successful in the other.
Legislation Cited:	Civil Procedure Act 2005
Category:	Costs
Parties:	AB (plaintiff) Constable Joshua Hedges (1st defendant) Magistrate Albert Sbrizzi (2nd defendant)
Representation:	Counsel: Ms P Conway (plaintiff) Mr M Hutchings (1st defendant) Submitting appearance (2nd defendant)     Solicitors: Mr Emanueli Oliveri, Oliveri Lawyers (plaintiff) Phillip Salem, Sparke Helmore Lawyers (1st defendant) Crown Solicitor (2nd defendant)
File Number(s):	2012/76236
Publication restriction:	Yes

Judgment

1. HIS HONOUR: The plaintiff seeks the costs of these proceedings generally, that is the judicial review proceedings and the contract proceedings. In written submissions, developed orally, his counsel, Ms Conway, noted that he had sought to have the contract claim dealt with first and, if he had, that would have been the end of the matter. Indeed, she argued that the judicial review proceedings were dealt with first because the defendant had not filed points of defence in relation to the contract claim, despite a direction by Registrar Bradford to do so.

2. I understand the force of that argument, but I am not persuaded that the matter should be approached in this way. The plaintiff resisted an application by the defendant in the Children’s Court to set aside the costs order which the magistrate had made in chambers. Having been unsuccessful in the matter, he sought judicial review in this Court. It appeared to me to be appropriate to deal with those proceedings first. The plaintiff was again unsuccessful, and I anticipated that at that time that the question of costs would be first pursued in the Local Court.

3. In the event, that course was not adopted. The claim in contract proceeded and I found that it was established.

4. The reality is the two related proceedings were conducted, the plaintiff succeeding in one but not the other. I accept the submission of Mr Hutchings, for the defendant, that it is appropriate that costs follow the event in each of those proceedings. Mr Hutchings acknowledged that the plaintiff’s costs would likely exceed those of the defendant and that there should be a set off between the two.

5. Accordingly, in the judicial review proceedings the plaintiff is to pay the 1st defendant’s costs, while in the contract proceedings the 1st defendant is to pay the plaintiff’s costs. Ms Conway also sought an order for interest on costs, pursuant to s 101(4) of the Civil Procedure Act 2005. That order was sought on the basis that the plaintiff would recover costs of the proceedings as a whole. In the light of the decision I have made it may be necessary to reconsider whether that application can be pursued. If it is to be, I am prepared to consider further submissions on it and the parties should contact my Associate to make arrangements for that purpose.

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Amendments

20 October 2015 - Correction to Medium Neutral Citation

20 October 2015 - Correction to Judgment title - superfluous v removed after Constable

Correction to first entry for parties - RB replaced with AB

Decision last updated: 20 October 2015