Ainsworth & Anor v Stapleton Johnson & Partners - [2020] NSWSC 252

Supreme Court

New South Wales

Medium Neutral Citation: Ainsworth & Anor v Stapleton Johnson & Partners [2020] NSWSC 252
Hearing dates: 13 March 2020
Date of orders: 18 March 2020
Decision date: 18 March 2020
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The summons filed on 6 December 2019 is dismissed;
(2) Each party is to bear his, her or its own costs of the proceedings.

Catchwords: COSTS – pre-trial discovery – substantive issue resolved – Civil Procedure Act 2005 (NSW) – displacing general costs principle – demonstration of manifest unreasonableness by the parties
Legislation Cited: Civil Procedure Act 2005 (NSW)
Defamation Act 2005 (NSW)
Heritage Act 1977 (NSW)
Cases Cited: Airways Corporation of New Zealand & Anor v the Present Partners of Price Waterhouse Coopers Legal & Anor [2002] NSWSC 521.
Equiti Capital Limited v Hewson [2015] NSWSC 1388
Fordyce v Fordham (2006) 67 NSWLR 497
Nichols v NFS Agri Business Pty Ltd (2018) 97 NSWLR 681; [2018] NSWCA 84
Procter v Kalivis (No 3) [2010] FCA 1194
Renton v Kelly [2018] NSWSC 1377
Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin (1997) 186 CLR 622; [1997] HCA
Totalise PLC v The Motley Fool Limited & Interactive Investor Limited, Court of Appeal for England and Wales, unreported 19 December 2001.
Category: Costs
Parties: Geoff Ainsworth (Plaintiff)
Lucas Stapleton Johnson & Partners Pty Ltd (Defendant)
Representation:
Counsel:
A.T.S. Dawson SC with T.B. Senior (Plaintiffs)
S.T. Chrysanthou (Defendant)
Solicitors:
H.W.L. Ebsworth Lawyers (Plaintiffs)
Kennedys Law

File Number(s): 2019/384731

Judgment

By summons filed on 6 December 2019 the plaintiffs sought orders for preliminary discovery under r 5.2 Uniform Civil Procedure Rules 2005 (NSW) (UCPR) in aid of a contemplated claim for damages for defamation. In the course of correspondence between the solicitors, which was extensive both before and after the commencement of the proceedings, the defendant’s solicitors, on 3 February 2020, in riposte to a preceding forensic lunge from the plaintiffs’ solicitors, volunteered what the former would regard as a mere amplification of information previously provided.
Whatever the correct categorisation of the information provided on 3 February 2020, the plaintiffs solicitors accepted it in full satisfaction of the summons save as to costs. In the event it was the competing claims for costs that occupied the time at the hearing. The plaintiffs no longer pressing the prayers contained in the summons are content for it to be dismissed with an order that the defendant pay their costs. For its part, the defendant argues that the plaintiffs are not entitled to costs and in the circumstances seeks a costs order in its favour.
I should say that on the evidence before me the various attempts by the parties through their solicitors to resolve their procedural differences, and indeed the whole of the dispute, were unsuccessful. The “disclosure” of information to the plaintiffs’ satisfaction on 3 February 2020 was not the product of any agreement between the parties. It was merely…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ainsworth & Anor v Stapleton Johnson & Partners

Details

AGLC: Ainsworth v Stapleton Johnson and Partners [2020] NSWSC 252
Case: [2020] NSWSC 252
Decision Date: 18 March 2020

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case of Ainsworth & Anor v Stapleton Johnson & Partners was heard. The plaintiffs, Ainsworth and another party, sought an order for pre-trial discovery from the defendants, Stapleton Johnson & Partners, who were legal representatives. The primary dispute revolved around whether the plaintiffs were entitled to the discovery requested and whether the defendants should be held accountable for costs associated with the application. The matter was determined by Justice Perram, who had to navigate the provisions of the Civil Procedure Act 2005 (NSW) and assess the general principles of costs in light of the specific circumstances of the case.

The court needed to decide if the Civil Procedure Act 2005 (NSW) could displace the general principle that a party to proceedings is generally entitled to recover costs from the opponent. This principle is rooted in the idea that costs should follow the cause, and the defendants argued that the Act’s provisions allowed for a different outcome in this case. The defendants further contended that any costs incurred should be considered in light of the manifest unreasonableness displayed by the plaintiffs in pursuing the application for discovery. The plaintiffs, on the other hand, argued that the statutory provisions did not apply to their situation and that they were entitled to costs as per the general principle.

Justice Perram held that the general principle of costs was indeed displaced by the provisions of the Civil Procedure Act 2005 (NSW). The judge found that the plaintiffs had demonstrated manifest unreasonableness in pursuing the application for discovery, leading to the conclusion that the defendants were not liable for the costs incurred by the plaintiffs. The reasoning hinged on the interpretation of the statutory provisions and the specific facts of the case, which showed that the plaintiffs' conduct was unreasonable. This decision underscored the importance of careful consideration of statutory provisions and the need for parties to act reasonably in litigation matters. The final orders reflected the court's findings, dismissing the application for costs and holding the defendants not liable for the costs incurred by the plaintiffs.

Orders