Duffy v Marr - [2017] VSC 384

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2016 05220

ANDREW PETER DUFFY AND ANOTHER	Plaintiffs
v
GRAEME DAVID MARR AND ANOTHER	Defendants

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 MAY 2017 (Further Submissions received 22 June 2017)
DATE OF JUDGMENT:	29 JUNE 2017
CASE MAY BE CITED AS:	DUFFY & ANOR v MARR & ANOR
MEDIUM NEUTRAL CITATION:	[2017] VSC 384

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COSTS – Interlocutory costs – Pleading amendment - Costs thrown away and costs of directions hearing – Whether court should otherwise order under r 63.17 – Whether immediate taxation should be directed – Civil Procedure Act 2010 (Vic), s 8(1), 9(1), Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 63.17, 63.20.1.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Castelan	MNG Lawyers
For the Defendants	Mr MS Goldblatt	Draddy Legal

HIS HONOUR:

On 26 May 2017, I granted leave to the defendants to file and serve a second further amended defence. Amongst other directions, I directed that the parties exchange submissions in respect of the plaintiffs’ application for costs and an order for immediate taxation.

I received submissions from the plaintiffs dated 31 May 2017, from the defendants dated 8 June 2017 and from the plaintiffs in reply dated 22 June 2017. The parties agreed that I should determine the question of costs on the basis of these written submissions without a further court attendance.

In the proceeding, the plaintiffs claim damages for defamation, injurious falsehood, and deceptive and misleading conduct.

Relevantly, the procedural history is as follows. Initially, the defendants were not legally represented and a form of defence was served but not filed. On 17 February 2017, the defendants’ current solicitors commenced to act and on 22 February 2017 filed a defence. The plaintiffs complained of deficiencies in that defence and required that if the defendants proposed to amend it, an amended pleading ought to be provided by 14 March 2017.

An amended defence was filed and served on 16 March 2017.

On 17 March 2017, I struck out some paragraphs of that amended defence and gave the defendants leave to file and serve a further amended defence that repleaded the paragraphs struck out on the basis that in respect of each imputation, the defences are taken as separate and distinct allegations with proper particulars.

Pursuant to that order, a further amended defence dated 7 April 2017was filed on 10 April 2017.

Without prejudice, confidential discussions between counsel followed the service of that amended pleading. On 1 May 2017, the defendants filed and served further and better particulars of the further amended defence. The parties’ legal representatives exchanged further correspondence about the sufficiency of the pleading.

On 23 May 2017, the defendants served a proposed second further amended defence. As noted, I granted leave to the defendants to file and serve this pleading.

Rule 63.17 provides that where a pleading is amended (whether with or without leave), the…

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 Duffy v Marr

Details

AGLC: Duffy v Marr [2017] VSC 384
Case: [2017] VSC 384
Decision Date: 29 JUNE 2017

CaseChat Overview and Summary

The case of Duffy v Marr was heard in the Supreme Court of Victoria. The dispute arose from a disagreement between the parties over the costs incurred in relation to a pleading amendment. The plaintiff, Duffy, sought costs related to the amendment of pleadings and the associated directions hearing, while the defendant, Marr, contested the claim. The case required the court to determine the appropriateness of the plaintiff's request for costs under the Civil Procedure Act 2010 and the Supreme Court (General Civil Procedure) Rules 2015.

The legal issues central to this case were whether the court should exercise its discretion to order costs under rule 63.17, given that the plaintiff's initial application for costs had been dismissed. Additionally, the court had to consider whether it should direct immediate taxation of the costs in question or defer it until a later stage. The plaintiff argued that the costs should be awarded due to the defendant's conduct, while the defendant contended that the plaintiff had not demonstrated sufficient grounds for the award of costs.

In its decision, the court noted that while the plaintiff's application for costs had been dismissed, the court retained the discretion to order costs under rule 63.17. The court examined the provisions of section 8(1) and 9(1) of the Civil Procedure Act 2010 and rule 63.20.1 of the Supreme Court (General Civil Procedure) Rules 2015. Ultimately, the court decided not to exercise its discretion to order costs, finding that the plaintiff had not provided sufficient justification for the award. Consequently, the court also determined not to direct immediate taxation of the costs and deferred the matter until a later stage.

No final orders were made in this case as the decision pertained to the interlocutory application for costs. The court's ruling was based on the discretion afforded under the relevant rules and acts, and the court's assessment of the plaintiff's application.

Orders