Ahmed v Harbour Radio Pty Ltd

[2016] NSWSC 219

Supreme Court

New South Wales

Medium Neutral Citation:	Ahmed v Harbour Radio Pty Ltd [2016] NSWSC 219
Hearing dates:	4 March 2016
Date of orders:	04 March 2016
Decision date:	04 March 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Plaintiff’s application for costs thrown away dismissed; defendant’s application for the costs of today dismissed. Proceedings referred to mediation by a private mediator if the parties are able to agree upon a mediator and terms for the mediation, failing which a court annexed mediation ordered in accordance with s 26(2) of the Civil Procedure Act.
Catchwords:	COSTS – costs thrown away by reason of late communication of a party’s position – no question of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 26(2), 27, 62(3)(g)
Category:	Procedural and other rulings
Parties:	Kim Anne Ahmed (Plaintiff) Harbour Radio Pty Ltd (First Defendant) Ray Hadley (Second Defendant)
Representation:	Counsel: R Rasmussen (Plaintiff) ATS Dawson (Defendants)   Solicitors: Turner Freeman (Plaintiff) Banki Haddock Fiora (Defendants)
File Number(s):	2009/297870
Publication restriction:	None

Judgment

1. HER HONOUR: Before the Court is an application by the plaintiff for the costs of a re-listing of the proceedings on 25 February 2016. The matter was re-listed in circumstances where, as a result of a ruling made in unrelated proceedings, a question arose as to whether the hearing of those unrelated proceedings and the hearing of these proceedings could both be accommodated within the same block of hearing time available to the Court. Shortly before the re-listing, counsel for the defendants concluded that it would not be possible to move the hearing date presently allocated and the listing was accordingly vacated.

2. Owing to a series of miscommunications and misapprehensions, it came about that the solicitor for the plaintiff was under the misapprehension that there had been an application by the defendants to change the hearing date. In fact, the re-listing was initiated by the Court for the purpose I have indicated. There followed an unfortunate exchange between the solicitors which regrettably reflects what might be considered to be a less than cooperative approach, particularly having regard to their obligation to assist the Court to further the overriding purpose. In the result, in my assessment there has been more hearing time spent this afternoon arguing the costs thrown away by the vacation of the listing than would have been the costs of that listing, had it proceeded.

3. Having considered the contents of the affidavit sworn by the solicitor for the plaintiff relied upon in support of the application, I have come to the conclusion that the Court should make no order as to the costs of the re-listing or of today. It is unfortunate that the two solicitors did not attempt to resolve this matter in an amicable or at least cooperative way without resorting to the degree of acrimony that has arisen.

4. The orders I make today are:

1. That the plaintiff’s application for the costs thrown away be dismissed.

2. That the defendants’ application for the costs of today be dismissed.

3. That the proceedings be referred to mediation by a private mediator if the parties are able to agree upon a mediator and terms for the mediation, failing which I order a court annexed mediation in accordance with s 26(2) of the Civil Procedure Act.

4. I note the duty of the parties under s 27 of the Civil Procedure Act to participate in good faith in the mediation.

5. I direct the parties to use their best endeavours to hold the mediation by the end of May. In the event that the proceedings are not settled at mediation, I will at the next listing call upon the parties to address the Court as to why an order should not be made pursuant to s 62(3)(g) limiting the time that may be taken by the hearing remitted by the Court of Appeal to a period of one week.

6. I stand the proceedings over to 13 May 2016.

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