Crockett v Roberts (No 2) - [2001] TASSC 106

[2001] TASSC 106

CITATION: Crockett v Roberts & Anor (No 2) [2001] TASSC 106

PARTIES:  CROCKETT, Louise Mary
  v
  ROBERTS, Mr D
  STATE OF TASMANIA (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  646/1986
DELIVERED ON:  27 August 2001
DELIVERED AT:  Hobart
HEARING DATE:  16 August 2001
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Procedure - Costs - Departing from the general rule - Order for costs on an indemnity basis - Relevant considerations - Whether a "special case" - Court's discretion - Whether there ought be immediate recovery following taxation.

Electrona Carbide Industries Pty Ltd and Attorney-General for the State of Tasmania v Baillieu Bowring (Tas) Pty Ltd B9/1987, followed.
Aist Dig Procedure [574]

REPRESENTATION:

Counsel:
           Plaintiff:  C J Gunson
           Defendants:  P Turner
Solicitors:
           Plaintiff:  Abetz Curtis & Worsley
           Defendants:  Director of Public Prosecutions

Judgment Number: [2001] TASSC 106
Number of paragraphs: 4

Serial No 106/2001
File No 646/1986

LOUISE MARY CROCKETT v MR D ROBERTS
and THE STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT COX CJ

27 August 2001

In consequence of my dismissal of the plaintiff's application that the defendants produce certain documents claimed by them to be privileged (see Reasons for Judgment [2001] TASSC 95), counsel for the defendants now seeks an order that the plaintiff pay their costs of and incidental to the application on an indemnity basis and that the defendants be at liberty to enforce the order once the taxation process has been concluded without waiting for the final determination of the proceedings. Counsel for the plaintiff does not oppose an order that she pay the costs of the unsuccessful application, but submits that they should be taxed on a party and party basis and that she should not be required to meet the costs until the conclusion of the proceedings.

Costs on an indemnity basis are not ordered unless there are special circumstances (Quick on Costs, 4.730). One category of case said to constitute special circumstances justifying the order is said to be "When the prosecution or defence of proceedings ought not to have been undertaken or continued had the party been properly advised" (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 410; Blackburn v State of New South Wales (unreported, New South Wales Supreme Court, Hunt J, 9 August 1991); Smith v Perpetual Trustee Australia Ltd (No 2) (unreported, Young J, 24 June 1992). It is this category in which counsel for the defendants submits the present case fits. I held that privilege had been clearly established and that even if the plaintiff's contention that confidential information gleaned from her records and not authorised by her to be disclosed had been the source of that material, the privilege still remained and that she had no remedy therefore by way of the order sought. It was a short point and the contention had little merit, in my view, although I took time to consider it…

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 Crockett v Roberts (No 2)

Details

AGLC: Crockett v Roberts (No 2) [2001] TASSC 106
Case: [2001] TASSC 106
Decision Date: 27 August 2001

CaseChat Overview and Summary

The Supreme Court of Tasmania heard an application for costs in the matter of Louise Mary Crockett v Mr D Roberts and the State of Tasmania (No 2). The plaintiff, Louise Mary Crockett, sought an order for the defendants to produce certain documents that they claimed were privileged. Following the dismissal of the plaintiff's application, counsel for the defendants applied for an order that the plaintiff pay their costs on an indemnity basis, with the defendants able to enforce the order immediately after taxation. The plaintiff's counsel did not oppose an order for costs but argued that the costs should be taxed on a party and party basis and that the plaintiff should not be required to pay until the conclusion of the proceedings.

The legal issues before the court were whether the circumstances of the case constituted special circumstances that justified the order of costs on an indemnity basis, and whether the plaintiff should be required to pay the costs immediately after taxation or wait until the conclusion of the proceedings. The court noted that costs on an indemnity basis are only awarded in special circumstances, such as when proceedings ought not to have been undertaken or continued if the party had been properly advised. The court also considered that it was unusual to award such costs in respect of relatively short interlocutory proceedings.

In deciding the case, the court held that it was not persuaded that special circumstances existed in this case to warrant an order for costs on an indemnity basis. The court found that the plaintiff's contention that confidential information had been disclosed without her authorisation did not undermine the privilege that had been established, and that the contention had little merit. The court also noted that the defendants were represented by counsel employed by the Office of the Director of Public Prosecutions, and that there was no suggestion that reimbursement of costs taxed on a party and party basis would not adequately compensate the Office for the time expended by counsel and other employees in addressing the issues raised by the application.

The court also declined to order that the plaintiff pay the defendants' costs immediately after taxation. The court held that permitting enforcement of the order at this stage of the proceedings could be unduly burdensome to the plaintiff, who is subject to disability and whose estate is administered by State Trustees Ltd pursuant to the State Trust Corporation of Victoria Act 1987 (Vic). The court saw no unfair disadvantage to the defendants in having to wait until the conclusion of the proceedings to recover or possibly set off this small part of the overall costs. The court ordered that the plaintiff pay the defendants' taxed costs of the application and certified for counsel, but directed that execution not issue for such costs until final judgment is entered in the proceedings or until further order.

Orders