Craig v Johnson - [2021] NSWSC 90

Supreme Court

New South Wales

Medium Neutral Citation: Craig v Johnson [2021] NSWSC 90
Hearing dates: 9 December 2020
Decision date: 17 February 2021
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.
(3) Costs reserved.

Catchwords:
COSTS — costs assessment — application for leave to appeal from decision of costs review panel — where asserted negligence by solicitors for opponents incurred costs of their clients — correspondence between solicitors in negligence claim — subpoenaed documents substantially covered by privilege —negligence assertedly arising from failure of opposing party to alert applicants as to futility of their own appeal — role of solicitors for opposing party in adversarial system

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Evidence Act 1995 (NSW), s 136
Legal Profession Uniform Law Application Act 2014 (NSW), ss 76, 89

Cases Cited:
Craig and Ors v Silverbrook and Ors [2013] NSWSC 1687
Craig v Silverbrook [2016] NSWSC 530
Craig & Ors v Johnson & Ors [2018] NSWSC 1539
Craig v Silverbrook [2016] NSWSC 530
Craig v Johnson [2020] NSWSC 423

Category: Procedural rulings
Parties:
Loretta Kistmah Craig (1st Applicant)
Vincent Desmond Craig (2nd Applicant)
D & L Craig and Associates Pty Ltd (3rd Applicant)
DLC Properties Pty Ltd (4th Applicant)
DLCF Pty Ltd (5th Applicant)
Anthony Francis Johnson (1st Respondent)
JWS Consulting Group Pty Ltd (2nd Respondent)
Jonathan McCartney Cheyne (3rd Respondent)
Richard Gordon Lilly (4th Respondent)
Byron Wolton Koster (5th Respondent)
Jeremy Charles Davis (6th Respondent)
James Rozsa (7th Respondent)
Samuel Francis Johnson (8th Respondent)
Andrew Christie Williams (9th Respondent)
Peter Smith (10th Respondent)
John Storrie Keeves (11th Respondent)
James Colin Marshall (12th Respondent)
James Hunwick (13th Respondent)
Kevin Lynch (14th Respondent)
Kate Fitzgerald (15th Respondent)
David Hudson Proudman (16th Respondent)
Paul Geoffrey Turner (17th Respondent)
Gordon Radford (18th Respondent)
Aldo Nicotra (19th Respondent)
Damian Thomas Reichel (20th Respondent)
Peter James Rose (21st Respondent)
Rohan Scott Madders (22nd Respondent)
Shelley Denise Hemmings (23rd Respondent)
Robert Wyld (24th Respondent)
Craig Wappett (25th Respondent)
Peter Damian Slattery (26th Respondent)
Richard Arthur Gelski (27th Respondent)
Michael Dunlaney (28th Respondent)
Roxanne Kylie Smith (29th Respondent)
Ruveni Kelleher (30th Respondent)
Prashanth Kainthaje (31st Respondent)
David Colenso (32nd Respondent)
Marko Anthony Komadina (33rd Respondent)
Matthew John Allchurch (34th Respondent)
Austin Benjamin Bell (35th Respondent)
John David Powell (36th Respondent)
Sarang Katdare (37th Respondent)
Michele Laidlaw (38th Respondent)
Christine Lynne Ecob (39th Respondent)
Amanda Seaton (40th Respondent)
Ivor Kaplan (41st Respondent)
Anthony Groom (42nd Respondent)
John Graham Kench (43rd Respondent)
Antonietta Vozzo (44th Respondent)
Karina Anita Marcar (45th Resondent)
Jee-Soen Lee (46th Respondent)
Paul Andrew Reidy (47th Respondent)
Benjamin William Charles Renfrey (48th Respondent)
Robert Guy Johnston (49th Respondent)
Janet Anne Dransfield (50th Respondent)
Cameron Alan Jorss (51st Respondent)
Jane Trethewey (52nd Respondent)
Mark Geoffery O’Brien (53rd Respondent)
Joanne Staugas (54th Respondent)
Timothy Peter Bowley (55th Respondent)
Michael John Bywell (56th Respondent)
Richard Grant McMullan (57th Respondent)
Rick Malone (58th Respondent)
Peter John Francis Van Den Dugen (59th Respondent)
Paul Victor Svilans (60th Respondent)
Christopher John…

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 Craig v Johnson

Details

AGLC: Craig v Johnson [2021] NSWSC 90
Case: [2021] NSWSC 90
Decision Date: 17 February 2021

CaseChat Overview and Summary

The case of Craig v Johnson involved a dispute concerning the assessment of costs following a decision by a costs review panel. The applicants sought leave to appeal against the panel's decision, arguing that the costs incurred were due to the negligence of the solicitors for the respondents. The crux of the argument was that the opposing party's solicitors failed to inform the applicants about the futility of their appeal, which allegedly led to unnecessary costs. The High Court was tasked with determining whether the applicants were entitled to appeal the costs review panel's decision and whether the documents subpoenaed in the negligence claim were protected by legal privilege.

The primary legal issues revolved around the circumstances under which costs incurred due to alleged negligence of opposing solicitors could be recovered and the extent to which documents exchanged in the context of a negligence claim are protected by legal professional privilege. Additionally, the court needed to consider the role and responsibilities of opposing solicitors in an adversarial legal system and whether there was a duty to disclose the futility of an appeal to avoid unnecessary costs.

The court held that the applicants were not entitled to appeal the costs review panel's decision as the alleged negligence did not pertain to the conduct of the litigation itself but rather to a separate negligence claim. Furthermore, the court found that the subpoenaed documents, which included correspondence between the solicitors involved in the negligence claim, were substantially covered by legal privilege. The court emphasised that in an adversarial system, there is no general obligation for one party's solicitors to inform the opposing party about the futility of an appeal, thereby rejecting the applicants' claims for costs recovery based on the alleged negligence of the respondents' solicitors.

No specific final orders were made in the text provided, but the court's decision effectively dismissed the applicants' claims for costs recovery and leave to appeal, upholding the costs review panel's decision.

Orders