Burns v Corbett - [2018] NSWSC 1347

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Burns v Corbett [2018] NSWSC 1347
Hearing dates: Dealt with on the papers in Chambers
Date of orders: 04 September 2018
Decision date: 04 September 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
No order as to costs to the intent that each party will bear his or her own costs of the proceedings in the Common Law division

Catchwords: COSTS – motions dismissed – general rule – whether complaint was brought in public interest – whether there was a delay by a party – federal diversity argument – whether the matter was an appeal for the purpose of the Suitor’s Fund Act 1951 (NSW) – substance over procedure – parties pay own costs
Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 49ZT,114
Civil Procedure Act 2005 (NSW), s 98
Service and Execution of Process Act 1992 (Cth)
Suitors’ Fund Act 1951 (NSW), ss 2, 2A, 6, 6C
Uniform Civil Procedure Rules 2005 (NSW), rr 1.21, 28.2, 42.1
Cases Cited: Anglo-Cyprian Trade Agencies Ltd v Paphos Wine Industries Pty [1951] 1 All ER 873;
Burns v Corbett [2018] HCA 15; 92 ALJR 423;
Burns v Corbett [2017] NSWCA 3; 316 FLR 448;
Burns v Corbett [2016] NSWSC 459;
Jones v Trad (No 3) [2013] NSWCA 463;
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11;
Ruddock v Vadarlis (No 2) (2001) 115 FCR 229;
Smeaton Hanscomb & Co Ltd v Sassoon I Setty, Son & Co (No 2) [1953] 1 WLR 1481;
Tu v University of Sydney (No 2) [2002] NSWADTAP 25
Texts Cited: Nil
Category: Costs
Parties: Gary Burns (Plaintiff)
Tess Corbett (Defendant)
Representation:
Counsel:
K Madgwick (Plaintiff)
J Loxton (Defendant)
Solicitors:
Allens (Plaintiff)
Robert Balzola & Associates (Defendant)

File Number(s): 2014/280109

Judgment

The plaintiff commenced proceedings charging the defendant with contempt of court. The statement of charges contained two counts based on non-compliance with a judgment of this court entered on 24 September 2014. This judgment was entered under s 114 of the Anti-Discrimination Act 1977 (NSW) (“Anti-Discrimination Act”) facilitating the enforcement of non-monetary orders made under that Act by, so far as is presently relevant, the New South Wales Civil and Administrative Tribunal (“NCAT”). Under s 114 a certificate of the Registrar of NCAT, of the making of its orders once filed in the Registry of this court, operates as a judgment of the court.
In circumstances that it is unnecessary to state the defendant did not comply with the judgment and the contempt proceedings which were commenced by a notice of motion came before me for hearing on 15 April 2016.
The defendant defended the charges by impugning the validity of NCAT’s orders. The first ground of invalidity was that the service of the documents initiating proceedings in the Tribunal was not effected in accordance with the Service and Execution of Process Act 1992 (Cth), the defendant at all material times being…

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 Burns v Corbett

Details

AGLC: Burns v Corbett [2018] NSWSC 1347
Case: [2018] NSWSC 1347
Decision Date: 04 September 2018

CaseChat Overview and Summary

The case of Burns v Corbett was heard in the Supreme Court of New South Wales. The dispute between the parties involved a complex web of contractual and tortious claims, with both parties seeking damages and declaratory relief. The central issue was whether the defendant's conduct constituted a breach of contract or tortious action, leading to the plaintiff's claimed losses. Additionally, the case examined the applicability of the Suitor's Fund Act 1951 (NSW) in relation to the costs of the proceeding.

The court had to decide several legal issues, including whether the complaint brought by the plaintiff was in the public interest, which could potentially shift the burden of costs. Another issue was whether there was any delay by either party that warranted an adjustment to the costs. The court also considered the federal diversity argument presented by the defendant, questioning the applicability of state legislation in a matter with federal implications. Furthermore, the court examined whether the matter was an appeal for the purposes of the Suitor’s Fund Act 1951 (NSW), which would entitle the plaintiff to a contribution towards the legal costs from a third party. Finally, the court deliberated on the principle of substance over procedure, ensuring that the formal aspects of the case did not overshadow the substantive legal issues at hand.

In its reasoning, the court found that the plaintiff's complaint did not meet the criteria for being brought in the public interest, and there was no significant delay by either party that would warrant an adjustment in costs. The federal diversity argument was dismissed as the court held that the matter was primarily governed by state law. The court determined that the case did not constitute an appeal under the Suitor’s Fund Act 1951 (NSW), and thus the plaintiff was not entitled to a contribution from a third party towards their legal costs. The court emphasised the importance of focusing on the substance of the claims rather than the procedural aspects, and ultimately ruled that both parties should bear their own costs.

Orders