Application by Melinda Halloran

[2023] NSWSC 287

Supreme Court

New South Wales

Medium Neutral Citation:

Application by Melinda Halloran [2023] NSWSC 287

Hearing dates:

22 March 2023

Date of orders:

22 March 2023

Decision date:

22 March 2023

Jurisdiction:

Common Law

Before:

Dhanji J

Decision:

(1)   Paragraph 2 of the plaintiff's summons filed 6 December 2022 is dismissed.

(2)   I further order the moneys paid into Court pursuant to order 1 of the summons be paid to Ms Edwards.

Catchwords:

CIVIL – payment into court – r 55.9 of the Uniform Civil Procedure Rules 2005 (NSW) – resolution of District Court proceedings -– payment of the reasonable costs of the summons – whether the Court has the power to order that a filing fee be remitted

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 55.9

Category:

Principal judgment

Parties:

Melinda Halloran (Plaintiff)
Samantha-Lee Edwards (Interested Party)

Representation:

Solicitors:
N Millar, Holman Webb Lawyers (Plaintiff)
Self-represented (Interested Party)

File Number(s):

2022/367486

Publication restriction:

Nil

EXTEMPORE JUDGMENT (REVISED)

1. HIS HONOUR: This is a matter before me as duty judge seeking resolution of proceedings commenced by way of summons by the plaintiff, Ms Halloran. That summons was filed in this Court on 6 December 2022 and sought orders that moneys payable pursuant to a Deed arising out of the resolution of District Court proceedings 2020/00199197, be paid into court under r 55.9 of the Uniform Civil Procedure Rules 2005 (NSW) and, secondly, sought that the reasonable costs of the summons be payable to plaintiffs from the moneys paid into Court. The first order has been resolved with the moneys having been paid into court. The only question outstanding is the issue as to payment of the reasonable costs of the summons.

2. This afternoon Ms Miller, who appears for the plaintiff on the summons, has appeared and very helpfully outlined the circumstances leading to the hearing before me today in support of the claim. She relied upon two affidavits, both her own, the first of 2 December 2022 and the second of 12 January 2023.

3. It is necessary to canvass, at least in brief terms, the background leading to the summons in this Court. That background relates to the claim in damages brought in the District Court by Samantha Edwards against Ms Halloran (the plaintiff in this Court) and, as the second defendant, Debra Osborn.

4. The claim brought by Ms Edwards related to injuries suffered as a result of an accident when she was bucked from a horse. The horse was owned by Ms Halloran, the first defendant in the District Court proceedings. The premises on which the events occurred belonged to Ms Osborn, the second defendant in those proceedings. Ms Edwards was interested in purchasing the horse and was in the course of taking it for a test ride when, as I have indicated, she was bucked from the horse, sustaining a fracture to her wrist, which I understand was of some seriousness.

5. In the course of the matter in the District Court, Ms Edwards was represented by the Law Office of Conrad Curry. That representation pertained up until a relatively short time before the matter was listed for hearing in October of 2021. The Law Office of Conrad Curry, however, ceased to act a short time prior to the matter being listed for hearing, resulting in that hearing being vacated and the matter adjourned. Despite the proceedings remaining on foot, and the Law Office of Conrad Curry ceasing to act, no indication was given to the defendants in the District Court, at that stage, that the office of the Law Office of Conrad Curry intended to claim any lien over the proceeds of any settlement of the claim. It was in those circumstances that the matter continued.

6. Ultimately, Ms Edwards was able to obtain assistance through the pro bono scheme of the Bar Association and, in particular, obtained the assistance of Mr Green of counsel. The matter was listed in the sitting of the District Court at Newcastle commencing on 1 August 2022. During the course of what I understand to be the first week of those sittings, negotiations continued and ultimately a settlement was reached. Subsequent to that settlement being reached, a solicitor from the Law Office of Conrad Curry wrote to the first defendant's solicitors, indicating that that firm claimed a lien over the proceeds of any settlement. It was stated in the letter that the plaintiff had failed to pay and refused to engage with the firm on the issue of payment for costs.

7. That statement needs to be understood in the context of what I have been told today about the lead-up to the hearing date in October 2021. In particular, it seems that, leading into that hearing, the defendants had obtained expert evidence, as I understand it, with respect to the temperament of the horse. I have been informed that there was no expert retained by the plaintiff, Ms Edwards, and consequently no evidence to counter the evidence brought by the defendants’ expert. I have been informed and I accept that the defendants took the view that the plaintiff's case, in the absence of such evidence, was unwinnable. It would appear in the circumstances that Ms Edwards was in a difficult position as a result of what appears to have been something having gone awry in the preparation of her case, such that her prospects at trial were, it seems, at best negligible.

8. As I have indicated, there was, at that time, that is, subsequent to the vacating of the October 2021 hearing, no indication made by the Law Office of Conrad Curry that a lien was claimed over any settlement in relation to that firm's fees. Ultimately, as I have indicated, the matter was settled when it was next in the list for hearing in August 2022. The settlement involved amounts payable by each of the first and second defendants. It was a condition of settlement that the costs order made against the plaintiff, Ms Edwards, as a result of the vacation of the first hearing, be waived. The settlement also resolved all costs up until that point. In other words, Ms Edwards agreed to a settlement and anticipated that she would receive those funds, which would provide some compensation for her injury. I should note here that the settlement figure agreed was significantly discounted with respect to its relationship with Ms Edward’s injuries as a result of very significant questions surrounding her ability to establish the defendants’ liability. In other words, Ms Edwards left the Court having agreed to a figure, fully expecting to receive that figure, and in a context where it was not said to be a figure representing compensation for the injury as such, but rather a figure representing compromise between the parties having regard to the extent of the injury but most significantly to issues surrounding liability.

9. Ms Edwards has appeared before this Court today as an interested party to the summons and has indicated that she did indeed enter that settlement expecting to receive all of those moneys, and that is money upon which she is relying. The plaintiff on the summons in this Court, Ms Halloran, that is the first defendant in the District Court proceedings, seeks only the filing fee. Ms Miller is to be commended in relation to the manner in which she has conducted this hearing and the attitude that has been taken with respect to what is sought.

10. Ms Miller, on behalf of the plaintiff in this Court, makes the point that the plaintiff (the first defendant in the District Court) was in a difficult position. They entered into a settlement by which moneys were payable within 28 days of the notice of the relevant notice from Centrelink, but having entered into that agreement, received the letter dated 10 August 2022 from the Law Office of Conrad Curry indicating that that firm had a lien over the settlement moneys. The plaintiff (first defendant in the District Court) was in a bind in that, through events quite out of her control, she was required to pay money but was not able to pay that money to either Ms Edwards or to the solicitors.

11. In the event, acting responsibly, it was considered that the most appropriate thing to do was to bring the proceedings in this Court, seeking an order so that issues might be resolved. Having done so, the Law Office of Conrad Curry made no claim in this Court. Rather, by letter dated 13 December 2022, that firm wrote to advise that its lien, asserted by way of a letter dated 10 August 2022, was unconditionally withdrawn. The letter further advised that there was no issue with Ms Edwards applying to the Supreme Court for release of the total amount of funds held, subject only to an indication that that course was not opposed other than as to any application that the Law Office of Conrad Curry bear any liability for costs. It would have been, clearly, far preferable for all concerned if that lien had been withdrawn prior to the plaintiff having gone to the trouble and expense of lodging the summons in this Court.

12. The Court is left in the difficult position where one of two parties not responsible for the costs incurred on filing the summons, is asked to bear that cost. I can accept that, for the plaintiff in this Court (that is the first defendant in the District Court), the proceedings have been protracted and difficulties have been caused as a result of the conduct of Ms Edwards’ case. But the other side of that coin is that, as much as the plaintiff has been dragged through that process, so too has Ms Edwards as she sought to achieve some compensation for injuries suffered on the basis of her claim in negligence.

13. Ultimately, the question is finely balanced but in circumstances where I am not able to allocate responsibility to either party, I am unfortunately left in a position where I am unpersuaded that order 2 as sought should be made and I decline to make that order.

14. I note that whilst it was raised in the course of argument that I might waive or, indeed more properly, order that the filing fee be remitted, it does not appear that I have the power to do so. That power does lie with the Prothonotary of this Court and, certainly, it would be open to the plaintiff on the summons to approach the Prothonotary with a view to having that fee remitted. I make no comment as to what the Prothonotary might do. That would be a matter for her.

15. I make the following orders:

1. Paragraph 2 of the plaintiff's summons filed 6 December 2022 is dismissed.

2. I further order the moneys paid into Court pursuant to order 1 of the summons be paid to Ms Edwards.

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Decision last updated: 28 March 2023