Barrow v Bolt (No 2) - [2013] VSC 234

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2012 02412

DAVID CHARLES BARROW	Plaintiff
v
ANDREW BOLT THE HERALD & WEEKLY TIMES PTY LIMITED	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2013
DATE OF ORDERS:	6 May 2013
DATE OF REASONS:	7 May 2013
CASE MAY BE CITED AS:	Barrow v Bolt & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 234

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PRACTICE AND PROCEDURE – Unsuccessful interlocutory appeal – Costs – Successful respondents’ costs – Whether to fix successful respondents’ costs – Allegedly impecunious litigant – Supreme Court Act 1986, s 129(3) – Supreme Court (General Civil Procedure) Rules 2005, r 63.20.1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr S. Mukerjea	Kelly Hazell Quill

HIS HONOUR:

On 6 May 2013, I dismissed the plaintiff’s appeal from certain orders made by Daly AsJ on 3 April 2013.[1] Upon the dismissal of the appeal, the defendants sought an order for costs against the plaintiff, and an order fixing those costs. I was told that the actual costs were $7,000, but that the defendants only sought an order in the sum of $2,500.
[1]Barrow v Bolt & Anor [2013] VSC 226.

The plaintiff resisted the making of an order for costs against him and resisted having those costs fixed in any amount. After hearing argument, I ordered costs against the plaintiff fixed in the sum of $2,500 and then stayed the operation of that order. These are the reasons for the costs order and order staying those costs.

The principal basis upon which the plaintiff resisted the defendants’ applications in respect of costs was the plaintiff’s alleged impecuniosity.

No material was put before me concerning the plaintiff’s financial affairs. In essence, it appeared that I was expected to simply accept that the plaintiff is impecunious as a result of a number of envelopes on the Court file, each envelope having attached to it a memorandum executed by a deputy prothonotary waiving the payment of fees. Each memorandum is in substantially identical terms. The first memorandum[2] is in the following terms:

Upon reading the affidavit of David Charles Barrow sworn 30 April 2012 and, upon being satisfied that the payment of the prescribed fee of $767.40 for the filing of a writ, would cause the applicant financial hardship.
The said application to waive the payment of the fee of $767.40 is hereby granted.

[2]Dated 30 April 2012.

It would seem from the envelopes on the Court file that the plaintiff has successfully applied for and been waived the payment of the following prescribed fees in respect of this proceeding:

–$767.40 for the filing of a writ;
-$342.10 for the filing of a summons in October 2012;
-$162.80 for the issuing of a subpoena in December 2012;
-$342.10 for the filing of the summons heard and determined by Daly AsJ; and
-$342.10 for the filing of…

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 Barrow v Bolt (No 2)

Details

AGLC: Barrow v Bolt (No 2) [2013] VSC 234
Case: [2013] VSC 234
Decision Date: 6 May 2013

CaseChat Overview and Summary

In Barrow v Bolt, the appellant sought leave to appeal against an interlocutory order that dismissed his appeal against a decision made in a proceeding between the respondent and a third party. The case was heard in the Supreme Court of New South Wales. The central issue in this matter was whether the court should exercise its discretion under section 129(3) of the Supreme Court Act 1986 to fix the costs of the respondents. The appellant, who was reportedly impecunious, argued that the costs should not be imposed due to his financial situation.

The court considered whether the appellant's financial circumstances were sufficient grounds to exercise the discretion under section 129(3) of the Supreme Court Act 1986. The court also considered the relevant case law and the provisions of the Supreme Court (General Civil Procedure) Rules 2005. The court found that the appellant's financial situation was not sufficient to exercise the discretion to fix costs. The court also noted that the costs were not excessive and that the appellant had not demonstrated that he was unable to pay them. The court held that the discretion under section 129(3) of the Supreme Court Act 1986 should not be exercised in this case.

The court dismissed the appeal and ordered the appellant to pay the costs of the respondents. The court noted that the respondents had conducted themselves with reasonable vigour and had a strong case for the dismissal of the appeal. The court also noted that the appellant had not provided any evidence to support his claim of financial hardship. The court held that the costs should be fixed in the amount of $15,000, which was the amount sought by the respondents. The court also noted that the respondents were entitled to an indemnity costs order under rule 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2005. The final orders of the court were that the appeal be dismissed, and the appellant pay the costs of the respondents.

Orders