DEF v Trappett (No 2)

[2016] NSWSC 1843

Supreme Court

New South Wales

Medium Neutral Citation:

DEF v Trappett (No 2) [2016] NSWSC 1843

Hearing dates:

16 December 2016

Date of orders:

16 December 2016

Decision date:

16 December 2016

Jurisdiction:

Common Law

Before:

Beech-Jones J

Decision:

(1)   The plaintiff pay the third and fifth defendants’ costs of the proceedings.

 

(2)   There be no order as to the costs of the first, second and fourth defendants.

 (3)   The order for costs is stayed until 5:00pm on 14 February 2017.

Catchwords:

COSTS – no question of principle

Cases Cited:

Agricultural Societies Council of New South Wales v Christie [2016] NSWCA 331
DEF v Trappett [2015] NSWSC 1840
DEF v Trappett [2016] NSWSC 1698

Category:

Costs

Parties:

DEF (Plaintiff)
Mark Eustance (Third Defendant)
Most Reverend Archbishop Mark Coleridge (Fifth Defendant)

Representation:

Counsel:
M McAuley (Plaintiff)
TJ Boyle (Third and Fifth Defendants)

    Solicitors:
McAuley Hawach Lawyers (Plaintiff)
Unsworth Legal Pty Ltd (Third Defendant)
Mullins Lawyers, by their agents Carol & O’Dea (Fifth Defendant)

File Number(s):

2014/374692

Judgment

1. On 2 December 2016 I published reasons for judgment in these proceedings, DEF v Trappett (2016) NSWSC 1698 (the “principal judgment”). I dismissed the proceedings. The basis for the dismissal was that, in the end result, I concluded that the Court did not have jurisdiction to determine the dispute that had arisen between the plaintiff, a Catholic Priest, and the defendants, specifically the fifth defendant, his Archbishop.

2. In dismissing the proceedings I then made orders for the parties to exchange submissions as to costs which duly occurred. The third and fifth defendants sought an order for their costs. Specifically they sought an order that their costs be paid by the plaintiff on the ordinary basis up until 2 July 2015 and that their costs thereafter from 3 July 2015 be paid on an indemnity basis. The position of the plaintiff was that there be no order as to costs.

3. Logically, the first matter to consider is whether there should be any costs order. I will then address what the basis of any costs order should be, if I am minded to make one.

4. The starting point is that the third and fifth defendants, as the active contradictor to the plaintiff's claim, were successful and that, in the ordinary course, an order for costs of the proceedings would follow. The basis for resistance to that in the plaintiff's submissions is that he contends that there has been a relevant delinquency on the part of the third and fifth defendants, not so much in the conduct of the proceedings, but in the events that led up to the plaintiff commencing the proceedings. In particular, he points to the process that led to the assessment report that was the subject of the principal judgment. The submissions contend that the "undoubted misconduct of the assessors" which gave rise to the litigation is such the court should order that there be no order as to costs in favour of the third and fifth defendants.

5. The difficulty with that contention is that to entertain it the Court would have to embark upon the very inquiry that it found it had no jurisdiction to conduct (see the principal judgment at [189]).

6. Further, one thing is clear about costs determinations is that they are not a means of re‑litigating the substance of the dispute between the parties. Amongst other matters, to even entertain those submissions the Court would then have to consider the submissions of the third and fifth defendants made in the substantive hearing that the form of review made available to the plaintiff was such as to cure any complaints about the assessment report.

7. In those circumstances, I do not consider that I can embark upon the inquiry requested by the plaintiff. In my view, there should be an order for the third and fifth defendants to have their costs of the proceedings and that will include the costs of the hearing before Harrison AsJ that led to judgment in DEF v Trappett [2015] NSWSC 1840.

8. As stated, the third and fifth defendants also seek an order for indemnity costs from 3 July 2015. The significance of that date relates to a letter that was sent on 1 July 2015. It was stated to be without prejudice except as to costs. The third and fifth defendants proposed a settlement of the proceedings which involved a dismissal coupled with an undertaking being given by the defendants not to take any further step in reliance upon the assessment report and their consenting to an order to pay a portion of the plaintiff's costs of the proceedings to that time. That offer was rejected on 2 July 2015.

9. Clearly, in the end result the plaintiff has done far worse than what was proposed in that offer. The fact of the offer coupled with the pre-emptory rejection of it enlivens the Court's discretion to make an order for indemnity costs. However, as it is not an offer of compromise the court's discretion as to whether to ultimately order indemnity costs is unfettered.

10. In that regard, notwithstanding the rejection of the offer, I am not minded to make an order for indemnity costs for two reasons. First, there is the complexity of the issues that arose concerning jurisdiction. Ultimately, in determining that there was no jurisdiction, I departed from a number of first instance decisions of this Court and decisions of Supreme Courts of other States, although in the events that happened, the view I took appears to be consistent with the judgment of the Court of Appeal in Agricultural Societies Council of New South Wales v Christie [2016] NSWCA 331, which was published the day before the principal judgment.

11. Faced with a particularly complex area of law which was not settled and which concerned the powers of the Court to intervene, the plaintiff elected to bat on. In those circumstances that is a factor that bears upon an assessment as to whether an order for indemnity costs should be made.

12. The second matter is the interests at stake in the proceedings. There is a certain irony in this in that the plaintiff was on my findings not able to bring himself within the restraint of trade doctrine. Nevertheless, it is clear that the interests at stake during the proceedings concern a very vital matter to him, namely, the exercise of his faith. The priesthood is a calling to which he has devoted his life. In those circumstances a decision by him to seek vindication beyond what was being offered was understandable.

13. Given those two considerations, I do not consider that an order for costs on an indemnity basis is appropriate. Accordingly, the orders I make are:

(1)   The plaintiff pay the third and fifth defendants’ costs of the proceedings.

(2)   There be no order as to the costs of the first, second and fourth defendants.

14. [Discussion]

(3)   The order for costs is stayed until 5:00pm on 14 February 2017.

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Decision last updated: 16 December 2016