Cairncross v Anderson t/as ERA Legal (No 3)

[2016] NSWSC 1478

Supreme Court

New South Wales

Medium Neutral Citation:	Cairncross v Anderson t/as ERA Legal (No 3) [2016] NSWSC 1478
Hearing dates:	In Chambers
Decision date:	18 October 2016
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) The defendants, Daren Anderson trading as ERA Legal and Gallande Pty Limited trading as ERA Legal, must pay the costs of the plaintiff, Ms Tiffany Cairncross, of the motion on the ordinary basis.
Catchwords:	COSTS – application for indemnity costs – notice of motion founded on advocate’s immunity – whether motion so lacking in merit as to call for indemnity costs
Cases Cited:	Attwells v Jackson Lalic Lawyers Pty Limited (2016) 90 ALJR 572; [2016] HCA 16 Cairncross v Anderson t/as ERA Legal (No 2) [2016] NSWSC 1326 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397
Texts Cited:	G E Dal Pont, Law of Costs, (3rd ed 2013, LexisNexis Butterworths)
Category:	Costs
Parties:	Tiffany Cairncross (Plaintiff/Respondent) Daren Anderson trading as ERA Legal (First Defendant/ First Applicant) Gallande Pty Limited trading as ERA Legal (Second Defendant/ Second Applicant)
Representation:	Counsel: N J Owens (Applicants) M Henry (Respondent)   Solicitors: Yeldham Price O’Brien Lusk (Applicants) Shine Lawyers (Respondent)
File Number(s):	2015/163787

Judgment

Introduction

1. At the conclusion of my substantive judgment dismissing a notice of motion brought by the defendant, ERA Legal, founded on the advocate’s immunity, I reserved the question of costs, and invited written submissions from both parties: see [52] of Cairncross v Anderson t/as ERA Legal (No 2) [2016] NSWSC 1326. Counsel for each party duly provided me with very helpful written submissions, and both of them made it clear that they were content for me to determine the question of costs in Chambers.

Submissions

2. Senior counsel for Ms Cairncross, the plaintiff, submitted that the motion of the defendant had never possessed reasonable prospects of success. It was submitted that, if there had ever been a question about that, it was laid to rest when the judgment of the High Court of Australia in Attwells v Jackson Lalic Lawyers Pty Limited (2016) 90 ALJR 572; [2016] HCA 16 (Attwells) was delivered on 4 May 2016. It was said that the contention of the defendant that the claim of the plaintiff was doomed to failure was itself doomed to failure, especially after the advocate’s immunity was clarified and narrowed on the date of publication of the judgment.

3. Relying upon the authority of Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353, senior counsel submitted that I would make the exceptional order that the losing party on the motion should pay indemnity costs with regard to the entirety of it.

4. In the alternative, it was said that I would make such an order with regard to costs incurred after the date of the promulgation of Attwells.

5. Counsel for the defendant submitted that the motion was reasonably arguable and diligently prosecuted. He submitted that there was no basis upon which I could find that the motion was disputing indisputable facts, or brought for an ulterior purpose of the defendant.

Determination

6. Turning to my determination, it is certainly true that, in the ultimate, the motion did not find favour with me. But I do not come to the conclusion that it was so devoid of legal merit as to warrant the exceptional remedy of indemnity costs. In particular, the breadth of the immunity was and is to a degree contestable.

7. As well as that, I think it possible that judicial minds may reasonably differ about the approach I adopted to the question left open at [61] of the judgment of the plurality in Attwells, as referred to at [40] of my judgment.

8. Separately, I accept the proposition of the defendant that the motion featured no futile dispute about incontrovertible facts: see General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130.

9. Finally, I consider that there is no basis upon which I could be affirmatively satisfied that the motion was brought for an ulterior purpose on the part of the defendant: see Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401.

10. Indemnity costs are an exceptional remedy that should, in my opinion, be used sparingly, see G E Dal Pont, Law of Costs, (3rd ed 2013, LexisNexis Butterworths) at 541. In the circumstances of this case, I am not persuaded that there should be departure from the “default position” of the losing party on the motion paying the costs of the victorious party on the ordinary basis.

Order

11. For those reasons, I make the following order:

1. The defendants, Daren Anderson trading as ERA Legal and Gallande Pty Limited trading as ERA Legal, must pay the costs of the plaintiff, Ms Tiffany Cairncross, of the motion on the ordinary basis.

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