Danis v Oliveri Legal Pty Ltd (No 2)

[2023] NSWSC 124

Supreme Court

New South Wales

Medium Neutral Citation:

Danis v Oliveri Legal Pty Ltd (No 2) [2023] NSWSC 124

Hearing dates:

On the papers

Date of orders:

22 February 2023

Decision date:

22 February 2023

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

(1) To the extent otherwise eligible, the Court grants an indemnity certificate to the defendants pursuant to s 6 of the Suitors’ Fund Act.

Catchwords:

COSTS — appeals — suitors’ fund — appeal allowed due to apprehended bias — no evidence of misconduct by defendants

Legislation Cited:

Suitors’ Fund Act 1951 No 3 (NSW), s 6

Cases Cited:

Danis v Oliveri Legal Pty Ltd [2023] NSWSC 89

Category:

Costs

Parties:

Mr Emil Danis (Plaintiff)
Oliveri Legal Pty Ltd (First Defendant)
Mr Emanueli Oliveri (Second Defendant)

Representation:

Counsel:
Mr R D Wilson SC (First and Second Defendant)

Mr E Danis (Plaintiff self-represented)

Solicitors:
Oliveri Lawyers (First and Second Defendant)

File Number(s):

2022/295047

Publication restriction:

Nil

JUDGMENT

1. On 14 February 2023, I allowed an appeal, Danis v Oliveri Legal Pty Ltd [2023] NSWSC 89, from the Local Court that had been filed by the plaintiff.

2. One of the orders I made was that the defendants were to pay the plaintiff’s costs of the proceedings in the Supreme Court (the costs of the appeal).

3. On 17 February 2023, the defendants sent an email to my Associate seeking an order under s 6(2) of the Suitors’ Fund Act 1951 No 3 (NSW) granting an indemnity certificate to the defendants in respect of the appeal. The basis for the application is my “decision and reasoning”.

4. The plaintiff responded, also by email, on 20 February 2023, opposing the orders. The plaintiff stated that the matter was closed, and that in any event, there should not be any order made because the orders in the Local Court had been a product of the “defendants’ falsehoods and manner in which they conducted the case …”

5. As both sides, in their emails, put forward their respective reasons in favour and against the sought orders, I did not consider it necessary to relist the matter or call for further submissions. To do so would have had no benefit but would rather have unnecessarily added to the costs.

6. I note that following the matter being set down for the delivery of this judgment, the plaintiff sent a further email to my Associate, once again making allegations of impropriety against the defendants. The allegations have no relevance to my decision under the above Act and I have not taken them into account.

7. I allowed the appeal because of apprehended bias on the part of the Magistrate in respect of, in effect, matters of procedural fairness. No part of my decision suggested any acceptance of deceit or improper conduct on the part of the defendants.

8. As to the matter being closed, it has always been open to a party following a hearing to seek consequential costs orders. Once again, the plaintiff is wrong.

9. Section 6(2) says that the Supreme Court may grant an indemnity certificate to a successful party to an appeal from a decision of a “court” on a question of law or fact. The Local Court is a court falling under this Act.

10. My decision flowed from the actions of the Magistrate. They were not a product of anything said or done by the defendants. I think this is an appropriate case for the grant of an indemnity certificate.

11. The defendants have also sought a recommendation that they be reimbursed for “all of the costs incurred as a result of the preparation and the appeal, including the costs that are required to be paid pursuant to the foregoing orders”.

12. The intent of the recommendation seems to be that the Suitors’ Fund will not only pay the defendants’ costs of the appeal but also the plaintiff’s costs of the appeal, which the defendants are obliged to pay under my earlier orders.

13. I am not prepared to make the recommendation. Submissions may be made to the Suitors’ Fund, but the result will be a matter for the fund. I also note that the plaintiff was self-represented so his costs will be limited.

14. Accordingly, in addition to the previous orders, I make the following order:

1. To the extent otherwise eligible, the Court grants an indemnity certificate to the defendants pursuant to s 6 of the Suitors’ Fund Act.

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Decision last updated: 23 February 2023